Polk v. State

205 So. 3d 1157, 2016 Miss. App. LEXIS 258
CourtCourt of Appeals of Mississippi
DecidedMay 3, 2016
DocketNo. 2014-KA-01497-COA
StatusPublished
Cited by5 cases

This text of 205 So. 3d 1157 (Polk v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Polk v. State, 205 So. 3d 1157, 2016 Miss. App. LEXIS 258 (Mich. Ct. App. 2016).

Opinion

LEE, C.J.,

for the Court:

¶ 1. James Earl Polk Jr. was convicted in the Circuit Court of Marion County of murder and sentenced to life in the custody of the Mississippi Department of Corrections and fined $5,000. Polk now appeals, asserting: (1) his right to confrontation was violated when the trial court admitted statements made by his cousin and codefendant, Howard Earl Polk Jr. (Howard), through the testimony of three witnesses; (2) his right to confrontation was violated when the trial court admitted the testimony from a medical examiner who did not perform the autopsy or author the autopsy report; (3) his constitutional and statutory rights to a speedy trial were violated; and (4) cumulative error. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

112. In October 1996, Polk was charged with Kimberly Rowell’s murder, which occurred on August 25, 1993. However, in January 1997, an order was entered withdrawing the charges, and Polk was released from custody.

¶3. On February 23, 2012, Polk was again charged with Rowell’s murder. The indictment also charged Polk’s cousin, Howard. Howard died prior to trial.

¶ 4. On August 26, 2014, Polk filed a motion to dismiss for lack of a speedy trial. In his motion, Polk claimed: “certain witnesses have died, memories have faded, [and] documents and evidence have been lost that would have been exculpatory.” At a hearing on the matter, Polk argued [1160]*1160that he suffered actual prejudice due to a missing crime-scene video and the deaths of James Carney, chief investigator; Dor-man Pritchard, investigator; Russell Liner, investigator; and Howard. However, the trial court denied Polk’s motion to dismiss for lack of specificity as to actual prejudice.

¶ 5. Polk also filed a motion in limine to restrict the testimony of Dr. Mark Le-Vaughn, Mississippi’s chief medical examiner. Dr. Emily Ward was the medical examiner who performed Rowell’s autopsy and authored the autopsy report. However, due to health issues, Dr. Ward was unavailable to testify at trial.1 At the hearing, the trial court ruled that Dr. Le-Vaughn would be allowed to testify; however, Dr. LeVaughn’s testimony would be limited.

¶ 6. On September 15, 2014, Polk was arraigned, and his trial began. At trial, Polk objected when the court admitted out-of-court statements made by Howard through the testimony of Theresa Dolla-han, Benny Blesett, and Brandy Hilburn. Polk argued that Howard’s statements were testimonial and were used to inculpate Polk. However, the trial court overruled Polk’s objections.

¶ 7. On September 18, 2014, a jury convicted Polk of Rowell’s murder. Subsequently, Polk filed a motion for a judgment notwithstanding the verdict or, in the al-terative, a new trial, which was denied. Polk appeals.

DISCUSSION

I. Howard’s Statements

¶ 8. In his first issue, Polk claims his right to confrontation under the Confrontation Clause of the Sixth Amendment to the United States Constitution was violated when the trial court admitted out-of-court statements made by Howard through the testimony of Dollahan, Bles-ett, and Hilburn. Specifically, Polk claims Howard’s statements were testimonial and were used to inculpate Polk. This Court reviews a Confrontation Clause objection de novo. Beecham v. State, 108 So.3d 402, 404 (¶ 5) (Miss.Ct.App.2011).

¶ 9. The Confrontation Clause guarantees a criminal defendant the right “to be confronted with the witnesses against him.” U.S. Const, amend. VI.; Miss. Const, art. 3, § 26. “In Crawford v. Washington, [541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004),] the United States Supreme Court held that testimonial statements of witnesses absent from trial can be admitted ... only where the declarant is unavailable and the defendant had a prior opportunity to cross-examine.” Smith v. State, 986 So.2d 290, 296 (¶ 20) (Miss.2008). “The Court declined in Crawford to define ‘testimonial’ statements, but noted that the term, at a minimum, [applies to] ‘prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.’” Id. at 297 (¶ 21) (quoting Crawford, 541 U.S. at 68, 124 S.Ct. 1354).

Although the Crawford court expressly refrained from attempting a comprehensive definition of “testimonial,” it did provide the following analysis:
Not all hearsay implicates the Sixth Amendment’s core concerns. The text of the Confrontation Clause applies to “witnesses” against the accused — in other words, those who “bear testimony.” “Testimony,” in turn, is typically “a solemn declaration [1161]*1161or affirmation made for the purpose of establishing or proving some fact.” An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.

Frazier v. State, 907 So.2d 985, 997 (¶ 40) (Miss.Ct.App.2005) (quoting Crawford, 541 U.S. at 51, 124 S.Ct. 1354). The Crawford court further stated:

Various formulations of this core class of “testimonial” statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, [and] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Crawford, 541 U.S. at 51-52, 124 S.Ct. 1354 (internal citations and quotation marks omitted).

¶ 10. Finally, “Crawford cites Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), for the proposition that the admission of a codefendant’s statement against a defendant without the opportunity to cross-examine the codefen-dant is a violation of the Confrontation Clause.” Smith, 986 So.2d at 297 (¶ 22) (citing Crawford, 541 U.S. at 57, 124 S.Ct. 1354). In Bruton, the codefendant’s confession to authorities directly named Bru-ton as an accomplice. Bruton, 391 U.S. at 124, 88 S.Ct. 1620.

A. Theresa Dollahan

¶ 11. Dollahan, a family friend, testified that Howard and Polk visited her home on the day after Rowell’s murder. During direct examination by the State, Dollahan testified as follows:

Q: Tell me this again, what did [Howard] say his reason for visiting your house was? What was [Howard] trying to do?
A: To show me he could do what he wanted to do and to smart off about killing Kim Rowell.
Q: So [Howard] — did [Howard] say he killed Kim Rowell?
A: Yes, he did. Yes, he did.
# * *
Q: Ms. Dollahan, you stated that [Howard] talked about killing Kim Ro-well.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony Giles v. State of Mississippi
Court of Appeals of Mississippi, 2020
Aundra Johnson v. State of Mississippi
Court of Appeals of Mississippi, 2020
Kadarius White v. State of Mississippi
223 So. 3d 859 (Court of Appeals of Mississippi, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
205 So. 3d 1157, 2016 Miss. App. LEXIS 258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/polk-v-state-missctapp-2016.