IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Aug :19: KA COA Pages: 17 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY MCCOY APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE...1 STATEMENT OF FACTS...4 SUMMARY OF THE ARGUMENT...6 ARGUMENT...6 THE CIRCUIT JUDGE CONSIDERED LEGITIMATE FACTORS IN IMPOSING SENTENCE. ALTHOUGH THE SENTENCE IS HARSH AND THE DEFENDANT REMORSEFUL, THE JUDGE DID NOT ABUSE HIS JUDICIAL DISCRETION IN IMPOSING A SENTENCE WELL WITHIN STATUTORY GUIDELINES....6 CONCLUSION...12 CERTIFICATE OF SERVICE...14 i

3 TABLE OF AUTHORITIES STATE CASES Adams v. State, 794 So.2d 1049, 1059 (Ct. App. Miss. 2001) Bateman v. Gray, 963 So.2d 1284, 1290 (Ct. App. Miss. 2007) Bell v. State, 769 So.2d 247, 251 (Miss. Ct. App. 2000) Davis v. State, 724 So.2d 342 (Miss. 1998)...11 Edwards v. State, 878 So.2d 1106, 1110 (Ct. App. Miss. 2004) Faerber v. Faerber, 13 So.3d 853, 865 (Ct. App. Miss. 2009) , 9 Franklin v. State, 773 So.2d 970, 972 (Miss. Ct. App. 2000) Gray v. State, 90 Miss. 235, 43 So. 289, 291 (1907)...12 Hensley v. State, 72 So.3d 1065 (Miss. 2001)...11 Kelley v. Day, 965 So.2d 749 (Ct. App. Miss. 2007)...9 Steed v. State, 752 So.2d 1056 (Miss. 1999)...9 Stromas v. State, 618 So.2d 116, 122 (Miss. 1993)...11 Taylor v. State, 741 So.2d 960, 963 (Ct. App. Miss. 1999) Taylor v. State, 122 So.3d 707 (Miss. 2013)...12 Vaughn v. State, 964 So.2d 509, 512 (Ct. App. Miss. 2006) Wallace v. State, 607 So.2d 1184, 1188 (Miss. 1992)...11 STATE STATUTES Miss. Code Ann (1)(c)...2 Miss. Code Ann (1)...3 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY ALLEN McCOY APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE In this appeal from his conviction of four counts of sexual battery and one count of exposing a fifteen (15) year old sexually confused youth (R. 42) to HIV, TIMOTHY McCOY, according to his victim, failed to reveal his status as HIV positive. (R. 48, 123) McCoy, on the other hand, testified to the contrary and claimed the victim agreed to have sex after receiving assurance from McCoy that condoms would be used to protect him. (R ) McCoy contends on appeal the trial judge erred in allowing his personal bias to influence his sentencing of the defendant which, although within the limits prescribed by statute, was exceedingly harsh and wrongfully influenced by his personal prejudice against the defendant s sexual orientation. TIMOTHY ALLEN McCOY, a forty-one (41) year old Caucasian male and a self-confessed homosexual, prosecutes a criminal appeal from his convictions of sexual battery and exposing another to HIV returned in the Circuit Court of Newton County, Marcus D. Gordon, Circuit Judge, presiding. During a trial by jury conducted on April 9, 2013, McCoy was convicted of four counts of sexually battering fifteen (15) year old G.G. and one count of willfully and unlawfully exposing G.G. 1

5 to human immunodeficiency virus (HIV). A multi-count indictment returned on February 8, 2013 (C.P. at 3-5), charged that McCoy, th... on or about the 13 day of April... as part of a continuing series of acts connected together and constituting one with the other parts of a common design, scheme and plan, COUNT ONE, did willfully, unlawfully and feloniously engage in sexual penetration with G.G., a child over fourteen (14) years of age and under sixteen (16) years of age, by performing fellatio on G.G., when Timothy Allen McCoy was more than thirty-six (36) months older than G.G., contrary to and in violation of Section (1)(c), Miss.Code Ann. (1972). The indictment charged in COUNT TWO that McCoy... did willfully, unlawfully and feloniously engage in sexual penetration with G.G., a child over fourteen (14) years of age and under sixteen (16) years of age, by causing G.G. to perform fellatio on the said Timothy Allen McCoy, when Timothy Allen McCoy was more than thirty-six (36) months older than G.G., contrary to and in violation of Section (1)(c) Miss.Code Ann. (1972). COUNT THREE charged that McCoy... did willfully, unlawfully and feloniously engage in sexual penetration with G.G., a child over the age of fourteen (14) years and under sixteen (16) years of age, by inserting his penis into the anal opening of G.G., when Timothy Allen McCoy was more than thirty-six months older than G.G., contrary to and in violation of Section (1)(c), Miss.Code Ann. (1972). COUNT FOUR charged that McCoy... did willfully, unlawfully and feloniously engage in sexual penetration with G.G., a child over the age of fourteen (14) years and under sixteen (16) years of age, by causing G.G. to insert his penis into the anal opening of Timothy Allen McCoy, when Timothy Allen McCoy was more than thirty-six (36) months older than G.G., contrary to and in violation of Section (1)(c), Miss.Code Ann. (1972). 2

6 Finally, COUNT FIVE charged that McCoy... did willfully, unlawfully, feloniously and knowingly expose G. G. to human immunodeficiency virus (HIV), contrary to an[d] in violation of Section (1), Miss.Code Ann. (1972)... The jury found McCoy guilty of all five (5) counts. (C.P. at 27) G.G., the fifteen (15) year old victim, testified the homosexual activity taking place was consensual. (R , 154) The defendant agreed. (R ) The defendant s testimony reflects that three of the four acts of sexual battery charged in the indictment never took place (R ) and that G.G. told McCoy he was eighteen (18) years old. (R. 95) G.G., on the other hand, testified he told McCoy he was fifteen (15) years of age. (R. 43) Following a sentencing hearing conducted on April 11, 2013, the trial judge sentenced McCoy to serve a total of seventy-five (75) years in the custody of the MDOC. (R ; C.P. at 28) One issue is raised on appeal to this Court, viz., [t]he trial court erred in allowing personal bias to influence sentencing even though the sentence imposed was within statutory guidelines. (Brief of the Appellant at 6) Wilson Carroll, a practicing attorney in Jackson, represented McCoy very effectively at trial despite overwhelming evidence of his client s guilt. Justin Cook, an attorney with the Indigent Appeals Division of the Office of the State Public Defender, has interceded for McCoy in his appeal to this Court. Mr. Cook s representation has been equally creative and constitutionally effective. 3

7 STATEMENT OF FACTS Counsel opposite has penned a fair and accurate synopsis of the facts supporting McCoy s convictions. The sordid details of the acts committed are not necessary for a fair resolution of the lone issue presented for review. It is enough to say that sexual acts consisting of both oral and anal intercourse took place by two willing participants who found each other on an internet chat site for gay adults. McCoy admitted he had consensual sex with the victim with respect to one of the four counts of sexual battery charged in the indictment but denied performing the acts described in the other three counts. McCoy testified he told G.G. he was HIV positive and that G.G. agreed to have sex after being assured the use of condoms would protect him. (R ) G.G. denied that condoms were used or their use ever discussed. (R ) At the time of the criminal offenses for which McCoy was on trial, G.G. was fifteen (15) years of age and living with his mother and step-father in Clinton, Mississippi. (R. 27) G. G. s mother was divorced from G.G. s father, John Grady (R. 28), who was living in Decatur when the offenses took place during a week in April 2013, while G.G. was visiting his Dad in Newton County. (R. 28) McCoy, who testified in his own behalf, claimed G. G. instigated the internet contact, and the sex was consensual. (R ) McCoy freely admitted he was HIV positive and claimed he informed G.G. of this fact. (R. 98) While this revelation disturbed G.G., the youthful victim, according to McCoy, agreed to having both oral and anal intercourse provided condoms were used. (R ) G.G., on the other hand, testified McCoy denied he was positive for any sexuallytransmitted diseases. (R. 48) 4

8 Three (3) witnesses testified for the State of Mississippi during its case-in-chief, including the victim, G. G., the 15-year-old male who identified Timothy McCoy in court as the man who engaged in various acts of sexual penetration in April, 2012, on a dirt road in Newton County. (R. 47, 49-50) Brian Kelly, an investigator at the time with the Newton County Sheriff s Department, testified he interviewed McCoy, and McCoy gave him a voluntary statement not reduced to writing admitting that McCoy and G.G.... got to that road, they parked, they talked a few minutes, and then they gave and received oral and anal sex on each other. (R ) McCoy told Kelly that no condom was used. (R. 73) At the close of the State's case-in-chief, McCoy s motion for a directed verdict was overruled. (R. 88) The defendant, Timothy McCoy, thereafter testified in his own behalf. He admitted performing one of the sexual acts but denied the other three. (R ) McCoy claimed he told G.G. prior to any sexual activity he was HIV positive. (R. 98) The State produced two witnesses, Sammy Stevens, and G.G. in rebuttal. (R. 115, 120) Following closing arguments, the jury retired to deliberate at a time not reflected by the record. (R. 151) It subsequently returned with guilty verdicts on all five (5) counts. (R ) A poll of the jury reflected the verdict was unanimous. (R. 152) McCoy s Motion for New Trial, apparently filed pro se, was filed on April 18, 2013, and denied, if at all, on November 15, (C.P. at 32-33, 37) McCoy invites this Court to remand this case to the trial court for the purpose of determining an appropriate sentence. (Brief of the Appellant at 10) He requests assignment of this matter to a different circuit court judge. (Brief of the Appellant at 11) 5

9 SUMMARY OF THE ARGUMENT The trial judge did not abuse his judicial discretion in sentencing McCoy to seventy-five (75) years in the custody of the MDOC. The sentence, while harsh, was within the limits prescribed by statute and McCoy has failed to demonstrate beyond a reasonable doubt the sentence was influenced by the court s personal prejudice and bias against homosexuals. Faerber v. Faerber, 13 So.3d 853, 865 (Ct. App. Miss. 2009). Indeed, the victim himself admitted to being sexually confused with regard to his own sexual orientation. (R. 42) McCoy admitted he had consensual sex with the victim with respect to physical acts described in one of the four counts of sexual battery charged in the indictment. Prior to imposition of sentence McCoy told Judge Gordon he knew it was wrong to... have sex with an eighteen year old person or a fifteen year old person. (R. 160) Finally, McCoy had a criminal record that Judge Gordon considered prior to sentencing. (R ) ARGUMENT THE CIRCUIT JUDGE CONSIDERED LEGITIMATE FACTORS IN IMPOSING SENTENCE. ALTHOUGH THE SENTENCE IS HARSH AND THE DEFENDANT REMORSEFUL, THE JUDGE DID NOT ABUSE HIS JUDICIAL DISCRETION IN IMPOSING A SENTENCE WELL WITHIN STATUTORY GUIDELINES. Despite McCoy s expression of sorrow over what took place (R. 155), the trial judge imposed a sentence of thirty (30) years on Count One, twenty-five (25) years on Count Two, ten (10) years on Count Three, ten (10) years on Count Four, and ten (10) years on Count Five with 6

10 counts one through four to run consecutive while count five to run concurrent with the sentences imposed on the other four counts. (R ) The total sentence imposed is seventy-five (75) years, well within the statutory guidelines which, as noted by Judge Gordon at sentencing, would have amounted to a total of one hundred thirty years (130) years, collectively. (R. 155) McCoy contends that although his sentence was within statutory guidelines, the trial judge abused his judicial discretion in imposing a seventy-five (75) year sentence which McCoy describes as unnecessarily severe. (Brief of the Appellant at 9) McCoy argues that during sentencing the judge... made multiple comments that a reasonable person would conclude reveal a bias against homosexuals. (Brief of the Appellant at 6) Stated differently, the judge was... wrongly influenced by personal prejudice against the defendant s sexual orientation and his... consideration of an impermissible factor was a clear abuse of discretion and violated McCoy s due process rights. (Brief of the Appellant at 7 and 9) McCoy did not receive the maximum penalty as suggested by appellant in his brief at page 7. The court s remarks appear innocuous to us and would not, as appellant claims,... cause a reasonable person to question whether the judge was impartial. (Brief of the Appellant at 8) We say this for the following reasons. The victim himself testified he willingly engaged in homosexual acts with McCoy and as to his own sexual orientation he, at the moment, was sexually confused. (R. 42) This observation is counter-productive to McCoy s complaint the trial judge was personally biased toward homosexuals. In addition to the detestable nature of the multiple offenses, there were several other legitimate factors considered by the trial judge in sentencing McCoy. Regrettably, these factors are 7

11 not mentioned by appellant in his brief which focuses solely on the comments made by the circuit judge and eschews any reference to McCoy s prior record. Immediately post-verdict on April 9, 2013, the circuit judge ordered a pre-sentencing investigation and report. (R. 153) Sentencing itself took place on April 11, 2013, at which time Judge Gordon questioned the defendant about his prior misdemeanor convictions. (R ) Although McCoy had no prior felony convictions, this was not McCoy s first rodeo involving children. In 2001 McCoy was sentenced to twelve (12) months probation in Guilford County Georgia. In 1990 McCoy was sentenced to ten (10) months with two (2) months probation for enticing a child in Burke County Georgia. (R. 161) While uncertain about his actual conviction, McCoy was questioned by Judge Gordon about a conviction of simple assault in November of 1998, and a conviction of simple assault in (R. 162) Judge Gordon took these prior incidents involving misconduct into account in addition to his observation that McCoy, a forty-two (42) year old HIV positive man, participated in various sexual acts with a fifteen(15) year old minor on a dirt road in Newton County during the wee hours of the morning. Although the sex was consensual and the contact with McCoy may have been instigated by G. G. who described himself as being sexually confused at the moment about his sexual identity, consent was neither a defense to the crime nor a particularly heavy mitigating factor in sentencing. Finally, McCoy admitted to Judge Gordon prior to sentencing he knew having sex... with an eighteen year old person or a fifteen year old person was wrong. (R ) McCoy correctly notes both the Supreme Court and the Court of Appeals as well... presume that a judge, sworn to administer impartial justice, is qualified and unbiased. Bateman 8

12 v. Gray, 963 So.2d 1284, 1290 (Ct.App.Miss. 2007). This presumption is overcome only by showing beyond a reasonable doubt the judge was biased or unqualified. Faerber v. Faerber, 13 So.3d 853, 865 (Ct.App.Miss. 2009) [emphasis ours]. Such a showing has not been made successfully here. The imposition of a sentence is within the discretion of the trial court, and... trial judges may consider all kinds of information when sentencing. Vaughn v. State, 964 So.2d 509, 512 (Ct.App.Miss. 2006). Although the judge is... largely unlimited as to the kind of information he may consider, or the source from which it may come, we agree with McCoy that one s sexual orientation should not be a relevant aggravating factor influencing the duration of one s sentence. The statements and expressions made by the trial judge during McCoy s sentencing were not so egregious that a reasonable person would question whether the judge was impartial or biased to the extent that it influenced his sentencing of the defendant. It would appear to a reasonable person, as well as to a reviewing court, that McCoy s prior record and his placing a fifteen (15) year old youth at risk for HIV would justify the sentence imposed for each count of the indictment. Admittedly, the sentence is severe because of several separate but connected offenses arising out of a single episode. But McCoy was not a first timer in a court of law which had previously found him guilty of other misconduct. (R ) In Steed v. State, 752 So.2d 1056 (Miss. 1999), reh denied, cert denied, a statement made by the trial judge during sentencing pertaining to the defendant being a crook and a thief did not constitute bias and was merely a conclusion drawn from the evidence presented. In Kelley v. Day, 965 So.2d 749 (Ct.App.Miss. 2007), the Court of Appeals held that the action of the trial judge in ordering an unwed father out of the courtroom, and the judge s statements 9

13 made during a hearing did not demonstrate any prejudice on the part of the judge toward the unwed father in a child support modification action. The same is equally true here where the emphasis appears to have been on homosexual acts against a youth - whether 15 or 18 years of age - by a grown man who was HIV positive. Particularly relevant to our observations are the following comments made by Judge Gordon during sentencing: BY THE COURT: In reviewing the section, reviewing your activities, I refer again to the sentencing statute, and my thoughts regarding sentences is controlled by the fact that you have some education, including some education in college, and that you as an adult man, forty-one years old, with your background, knowing what s involved with you having sex with a minor person, that you joined with that young fellow, not knowing him, and taking him in your car and driving a short distance to a dirt road with a strange person and having anal sex and fellatio at a time when you had HIV, knowing what you were doing, knowing that this was a minor child, soliciting him to a wrongful act, an act that shocks the [conscience] of people of this country, that you would do that to a minor child, causing that child possibly to live a life such as you. * * * * * * (R ) According to G.G. he was sexually confused at the moment about his sexual orientation. (R. 42) Judge Gordon s pre-sentencing comment that the acts performed upon him by McCoy might cause G.G.... possibly to live a life such as you... and... [p]erhaps, he will become a person as you..., reflect a concern for a youth exposed to an unhealthy alternative lifestyle by an adult male who was HIV positive. No reasonable person in today s America would disagree with that concern. Considering all relevant factors, the comments made by the circuit judge prior to sentencing are insufficient to defeat the presumption that judges are presumed to be unbiased and impartial. The remarks do not suggest a sentence wrongfully influenced by personal prejudice against McCoy s 10

14 sexual orientation which has done nothing but get McCoy into deep trouble. G.G. testified he told McCoy he was fifteen (15) years of age. (R. 43) McCoy told Judge Gordon he knew it was wrong to.. have sex with an eighteen year old person or a fifteen year old person... (R ) While McCoy did not receive the maximum sentence, he did receive a healthy portion considering the age and youthfulness of the victim compared with the age of McCoy. Also entering the equation was McCoy s indifference to his status as HIV positive, and McCoy s prior record. These circumstances, we think, are rather egregious circumstances which justify the penalty imposed. The Supreme Court has held on countless occasions that [i]f a sentence does not exceed the maximum period allowed by statute, it will not be disturbed on appeal. Adams v. State, 794 So.2d 1049, 1059 ( 30) (Ct. App. Miss. 2001), citing and quoting from Stromas v. State, 618 So.2d 116, 122 (Miss. 1993); Taylor v. State, 741 So.2d 960, 963 ( 16) (Ct. App. Miss. 1999) [ (I)t is the general rule that where a sentence is within terms authorized by statute, the sentence will not be disturbed on appeal. ] See also Hensley v. State, 72 So.3d 1065 (Miss. 2001). following: In Adams, supra, we find the following language relevant to McCoy s complaint: * * * However, [s]entencing is generally within the sound discretion of the trial judge and the trial judge s decision will not be disturbed on appeal if the sentence is within the term provided by statute. Bell v. State, 769 So.2d 247, 251 (Miss. Ct. App.2000)(citing Davis v. State, 724 So.2d 342 ( 10) (Miss. 1998)). If a sentence does not exceed the maximum period allowed by statute, it will not be disturbed on appeal. Stromas v. State, 618 So.2d 116, 122 (Miss. 1993); Wallace v. State, 607 So.2d 1184, 1188 (Miss. 1992). * * * * In Edwards v. State, 878 So.2d 1106, 1110 (Ct. App. Miss. 2004), the Court stated the We, as an appellate court, must afford sentencing courts with 11

15 substantial deference in determining sentences. Franklin v. State, 773 So.2d 970, 972 ( 6) (Miss. Ct. App. 2000).... To be sure, sentencing is within the complete discretion of the trial court. Taylor v. State, 122 So.3d 707 (Miss. 2013). That discretion has not been abused here because the sentence imposed, although severe, was not unreasonable. We invite this Court to find that McCoy has failed to establish the remarks made by the trial court are sufficient to cause a reasonable person to question whether the judge was impartial to the extent his personal bias against homosexuals improperly influenced the sentencing of Timothy McCoy. CONCLUSION McCoy s complaint targeting the statements and comments made by the trial judge bring to mind the following language found in a somewhat similar context in the ancient case of Gray v. State, 90 Miss. 235, 43 So. 289, 291 (1907): * * * [W]e are to be understood as emphatically reprobating the vicious tendency, manifest in so many cases recently brought to this court, to seize upon observations of counsel for the state that have utterly no influence upon the jury, and even upon the doings and sayings of the circuit judge which by no possibility could have in the slightest degree infringed the constitutional and statutory rights of a defendant. * * * Let it be remembered, once for all, that if this plan of objection was to prevail, the spectacle would actually be presented of this tribunal sitting here to try, not whether the defendant in a cause had been properly found guilty of the charge against him, but whether the district attorney or the circuit judge had been guilty of some supposed grievous offense. We try, not the circuit judge, and not the district attorney, but the defendant. [emphasis ours] Appellee respectfully submits that no reversible error took place during the trial of this cause. Accordingly, the judgments of conviction for four (4) counts of sexual battery and one count 12

16 of willfully exposing another to HIV, together with the seventy-five (75) year sentence imposed for Counts One through Five, all within limits prescribed by statute, should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

17 CERTIFICATE OF SERVICE I, BILLY L. GORE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Marcus D. Gordon Circuit Court Judge P.O. Box 220 Decatur, MS Honorable Mark Duncan District Attorney P.O. Box 603 Philadelphia, MS Justin T. Cook, Esq. Office of State Public Defender Indigent Appeals Division P.O. Box 3510 Jackson, MS This the 19th day of August, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 14