David Earl King v. State of Mississippi ( 2001 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-KA-00786-SCT
DAVID EARL KING AND NATHAN PAUL KING
a/k/a DOOLEY
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 10/2/2001
TRIAL JUDGE: HON. MIKE SMITH
COURT FROM WHICH APPEALED: WALTHALL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: GARY L. HONEA
JOHN M. COLETTE
WAYNE DOWDY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
DISTRICT ATTORNEY: JAMES DANIEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 09/18/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
¶1. David Earl King (King) and his adopted son, Nathan Paul King (Dooley), were convicted
in the Circuit Court of Walthall County, Mississippi, Honorable Mike Smith, Circuit Judge,
presiding, of the crimes of conspiracy to commit sexual battery, sexual battery, and
contributing to the delinquency of a minor. King was sentenced to serve consecutive,
respective terms of five years, thirty years, and one year in the custody of the Department of
Corrections (DOC), and to pay respective fines of $5,000.00, $10,000.00, and $1,000.
Dooley was sentenced to serve consecutive, respective terms of two and one-half years, fifteen
years, and one year in the custody of the Department of Corrections, and to pay respective
fines of $5,000.00, $10,000, and $1,000. Aggrieved by this judgment and sentence, King
appeals, presenting the following issues, edited for clarity, for this Court’s resolution:
I. Whether the trial court erred in denying bail to King.
II. Whether the trial court erred with regard to discovery.
III. Whether the trial court erred in overruling the King's motion for
severance.
IV. Whether pretrial and trial publicity denied the King a fair trial.
V. Whether the trial court erred in regard to the State’s disclosure of
the deal made with co-indictee Gary Bates.
(a) Whether the trial court erred in refusing King’s request for
a cautionary instruction regarding Gary Bates’s guilty plea.
VI. Whether the trial court erred in admitting certain pornographic
evidence.
VII. Whether M.R.E. 404(b) was violated.
VIII. Whether the trial court erred in ordering that the venire list be
sealed or by refusing King’s request for individualized voir dire.
IX. Whether the trial court erred by overruling, in part, King’s motion
to suppress.
X. Whether the defendant’s constitutional protection against double
jeopardy was violated.
XI. Whether the trial court erred in submitting certain instructions to
the jury.
(a) Aiding and abetting instructions
(b) Instruction 23
(c) Instruction 25.1
XII. Whether the jury’s verdict is against the overwhelming weight of
the evidence, contrary to the law of this State, and the result of bias
and prejudice.
XIII. Whether the trial court erred in sentencing King.
XIV. Whether cumulative error requires reversal.
Dooley also appeals, presenting the following edited issues:
I. Whether the trial court erred by admitting rebuttal testimony of
the State’s rebuttal witness, H. G., a minor, in violation of MRE
404 (b).
2
II. Whether the trial court erred in failing to instruct the jury
regarding MRE 404 (b) evidence.
III. Whether the trial court erred by allowing the jail nurse, a State’s
witness, to testify regarding an alleged relationship between the
defendants, Nathan Paul King and David Earl King, in violation of
MRE 404 (b).
IV. Whether the trial court erred in sealing the jury panel list in this
action from Dooley.
V. Whether the trial court erred in granting the State’s jury
instruction No. 21 because the instruction misstated the law of
aiding and abetting.
FACTS AND PROCEDURAL HISTORY
¶2. King is the founder and patriarch of the Valley of the Kings, an independent, non-
denominational “holiness” church in rural Walthall County. Dooley is his adopted son. A.B.1,
a minor, and his family, were members of King’s congregation. The church was located on 58
acres that also included the King residence and out-buildings where A.B.’s family lived for a
period of time.
¶3. In the late evening of March 1, 2001, King and Dooley were arrested by Walthall
County law enforcement officers (LEO) at their homes inside the Valley of the Kings complex
on a variety of sexual assault charges arising from their alleged homosexual misconduct with
A.B. A third co-defendant, Gary Bates (Bates), a vagrant, was arrested sometime later. Upon
searching King’s house, and particularly King’s bedroom, officers found much homosexual
pornographic material, as well as sexual lotions and devices, all as described by A.B.
¶4. An initial preliminary hearing was held on March 5, 2001, before the Honorable Marion
McKenzie, Justice Court Judge. Bond was denied, and King filed for a petition for a writ of
1
We use the fictitious initials of A.B. for the minor whom King and Dooley were convicted of
molesting. It is improper to use the full name of a minor.
3
habeas corpus. A hearing was held before the Honorable Mike Smith, Circuit Court Judge, on
March 6, 2001, in Walthall County. Judge Smith also denied King’s requested bond. King
then filed an Emergency Motion for Bail to this Court, which was denied by Justice Easley on
May 18, 2001.
¶5. King, Dooley, and Bates were indicted by the Walthall County Grand Jury in a multi-
count indictment. King and Dooley were charged with conspiracy to commit sexual battery,
sexual battery, and contributing to the delinquency of a minor. Bates pled guilty and testified
for the State in exchange for a lesser sentence.
¶6. King filed a series of pretrial motions, including one for a change of venue which was
granted. The trial began on August 27, 2001, in Franklin County, and continued for three days.
The evidence produced at trial established that King, Dooley, and Bates had, on numerous
occasions, fondled and engaged in oral and anal sex with A.B. At the conclusion of the trial,
the jury found King guilty on all three counts. Sentencing commenced immediately, and King
received a total term of thirty-six years in the custody of the DOC and a total fine of $16,000,
together with all costs of court. Dooley was also found guilty and sentenced. Bates, in
exchange for his cooperation with the State, pled guilty to a sole count of conspiracy and
received a probated sentence.
¶7. King timely filed a motion for JNOV, or in the alternative, for a new trial, on September
6, 2001. Dooley filed his on September 7, 2001. King alleged eighteen separate areas of
error, as did Dooley. After a hearing, their motions were denied. The trial court issued an
amended sentencing order on October 2, 2001. King and Dooley timely perfected their
appeals to this Court.
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ANALYSIS
ISSUES RAISED BY KING
I. WHETHER THE TRIAL COURT ERRED IN DENYING BAIL TO
KING.
¶8. In his first issue, King complains of the trial court’s refusal to release him on pretrial
bail.2 This refusal, he contends, “was just the first step” in his being denied “either a fair
prosecution or a fair trial.” The State disputes that King was denied a fair trial, then argues that
the refusal of bail is of no moment to King’s appeal. This Court agrees. See Jones v. State,
798 So. 2d 1241, 1255 (Miss. 2001); King v. State, 580 So. 2d 1182, 1185-86 (Miss. 1991)
(“[W]hether the judge improperly incarcerated James has nothing to do with the merits of this
case and, as a consequence, reversal is not a possible remedy.”); Benson v. State, 551 So. 2d
188, 195 (Miss. 1989) (“The trial court’s denial of bail is not grounds for reversal of the
judgment rendered against the defendant.”).
¶9. This assignment is without merit.
II. WHETHER THE TRIAL COURT ERRED WITH REGARD TO
DISCOVERY.
¶10. Here, King contends that the State “failed to establish complete disclosure” and that the
“prejudice to [him] was immense as even at trial new material was being used” and that “[t]oo
many critical items just ‘slipped through the cracks.’” He complains that the “trial court’s
order on this issue was a mere excuse” and “[t]he trial court’s decision ... after trial was mere
justification.”
2
Bail was originally denied by the justice court judge, and ultimately, by this Court.
5
¶11. Beyond citing a few general principles related to discovery requirements, the foregoing
is the substance of King’s argument in this assignment of error. He does not cite to any
specific evidence the State failed to disclose nor does he pinpoint any specific ruling of the
trial judge denying him disclosure of requested evidence in the State’s possession. Indeed, in
ruling on this issue as raised by King in his motion for a new trial, the trial judge stated as
follows:
2. To the Court’s knowledge, the State produced all documents, etc.
requested by the defendants. There has been no complaint to the Court
of any specific document, etc. that was not produced.
3. The Court is unaware of anything that the State did not disclose. There
has been no complaint to the Court of any specific matter that was not
disclosed.
¶12. The trial court has considerable discretion in matters pertaining to discovery, and its
exercise of discretion will not be set aside in the absence of an abuse of that discretion. Gray
v. State, 799 So. 2d 53, 60 (Miss. 2001). Judgments of the trial courts come to this Court
clothed with a presumption of correctness, and it is the burden of the appellant--King–to
overcome that presumption. Branch v. State, 347 So. 2d 957, 958 (Miss. 1977). “Our law
is clear that an appellant must present to us a record sufficient to show the occurrence of the
error he asserts and also that the matter was properly presented to the trial court and timely
preserved.” Acker v. State, 797 So. 2d 966, 972 (Miss. 2001) (quoting Lambert v. State, 574
So. 2d 573, 577 (Miss. 1990)). See also Pulphus v. State, 782 So. 2d 1220, 1224 (Miss.
2001) (“Issues cannot be decided based on assertions from the briefs alone. The issues must
be supported and proved by the record.”) (citing Robinson v. State, 662 So. 2d 1100, 1104
(Miss. 1995)).
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¶13. Mere assertions that a discovery violation occurred, without proof, or any meaningful
argument whatsoever as to what particular evidence was not disclosed, is insufficient to warrant
reversal. King has failed to meet his burden of proof; no abuse of discretion has been
demonstrated.
¶14. Next, King argues that he was not given exculpatory evidence. He argues that it was
discovered after the subsequent civil case was dismissed against him that there was no hard
medical or psychological inculpatory evidence against him. Apparently, he is arguing that he
should have been told that fact and the failure to so inform him was a discovery violation.
¶15. Initially, King’s argument relies on matters outside of the record and is thus improper
for our consideration. See, e.g., Mason v. State, 440 So. 2d 318, 319 (Miss. 1983) (“Facts
asserted to exist must and ought to be definitively proved and placed before us by a record,
certified by law; otherwise, we cannot know them.”). Additionally, as the State points out, King
fails to assert any error by the trial judge. Since King never gave the judge an opportunity to
rule on this issue, our review of it has been foreclosed. See Leverett v. State, 197 So. 2d 889,
890 (Miss. 1967) (“The Supreme Court is a court of appeals, it has no original jurisdiction, it
can only try questions that have been tried and passed upon by the court from which the appeal
is taken.”). If King was dissatisfied with the State’s disclosure of exculpatory materials, he was
under a duty to bring that fact to the attention of the trial judge. The failure to do so amounts
to a waiver of the issue.
¶16. King’s argument, procedural bars notwithstanding, is as hard to follow as it is without
merit. He concludes that this is a “pure-form Brady question.” In Brady v. Maryland, 373
U.S. 83, 83, S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the Supreme Court of the United States held
7
that “the suppression by the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution." Id. at 87, 83 S. Ct. at 1196-97.
However, in the case at bar, King has failed to reveal what exculpatory evidence the State had,
but refused to disclose. There is simply no Brady question–pure-form or otherwise–in this
case. King states that the case against him was “just talk, innuendo and speculation....” That,
however, is, a more apt description of the argument made by King on this issue.
¶17. King argues that because the State did not call either Lisa B. Yazdani, the psychologist,
or Lacey O’Quinn, the DHS social worker (both of whom interviewed A.B.) their testimony
would not have inculpated him; therefore their testimony would have exculpated him. This
argument is nonsensical. As the State points out, these two reports, which were disclosed to
King, were not exculpatory, but were inculpatory. Since King cites to no evidence that was
withheld from him, and since he does not attempt to demonstrate the exculpatory nature of this
allegedly withheld evidence, this assignment is without merit.
III. WHETHER THE TRIAL COURT ERRED IN OVERRULING
KING'S MOTION FOR SEVERANCE.
¶18. Here, King complains that the trial court erred in overruling his motion to sever his trial
from that of Dooley. King also argues that the trial court erred in failing to instruct the jury
to consider the case of each defendant separately and individually.
¶19. Regarding severance of trials, URCCC 9.03 states as follows:
The granting or refusing of severance of defendants in cases not involving the
death penalty shall be in the discretion of the trial judge.
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The court may, on motion of the state or defendant, grant a severance of
offenses whenever:
1. If before trial, it is deemed appropriate to promote a fair determination
of the defendant's guilt or innocence of each offense; or
2. If during trial, upon the consent of the defendant, it is deemed necessary
to achieve a fair determination of the defendant's guilt or innocence of
each offense.
URCCC 9.03. The court’s refusal of a severance will not be overturned absent “showing of an
abuse of discretion.” Minor v. State, 482 So. 2d 1107, 1109 (Miss. 1986); Hicks v. State,
419 So. 2d 215, 216 (Miss. 1982). When the evidence at trial goes equally to the guilt of both
defendants, and not to one more than the other, it is not error to try the defendants jointly.
Johnson v. State, 512 So. 2d 1246, 1254 (Miss. 1987).
¶20. Therefore, to warrant reversal on these grounds, King must demonstrate that (1) Dooley
attempted to exculpate himself at the expense of King, i.e., there was a conflict of interest
between the two; and (2) that the balance of the evidence introduced at trial went more to the
guilt of Dooley than to the guilt of King, such that the jury may have found King guilty by
association. Duckworth v. State, 477 So. 2d 935, 937 (Miss. 1985). King has failed to make
that showing.
¶21. King argues there is “no question the focus of this entire action was King himself.”
(emphasis in original). He cites Walker v. State, 729 So. 2d 197 (Miss. 1998), where this
Court found that severance is necessary when the balance of evidence introduced at trial tends
to go more to the guilt of one defendant than the other. King argues this is particularly true
when the disparity of evidence introduced against one defendant would tend to inculpate a co-
defendant by association. See Swanagan v. State, 759 So. 2d 442, 445 (Miss. Ct. App. 2000).
9
¶22. Though it would seem obvious that these principles are meant to protect the co-
defendant against whom the State has less evidence, that point is apparently lost on King, who
argues that the vast weight of the evidence was aimed at him, and not at Dooley. Since “the
balance of the evidence introduced at trial tend[ed] to go more to the guilt of one defendant
[meaning King] rather than the other [meaning Dooley],” King concludes that the court erred
in denying his motion to sever. Beyond this misguided argument, King makes no further
attempt to demonstrate prejudice.
¶23. King’s argument on this point fails because it misapplies controlling precedent. Since
the bulk of the evidence was aimed at King, there is no way that he was prejudiced by being
tried jointly with Dooley, and no way that the jury found him guilty by association. This
argument might be applicable to Dooley,3 but not King. Therefore, in the case at bar, like in
Duckworth, there is no showing of prejudice, and accordingly, “no grounds to hold that the
trial court abused its discretion” in overruling King’s motion for severance. See Caston v.
State, 823 So. 2d 473, 487-88 (Miss. 2002) (Co-defendants did not seek to exculpate
themselves at defendant’ expense).
¶24. Finally, King argues that the trial court erred in failing to instruct the jury that it was to
consider the case of each defendant separately and individually. Initially, it is noted that King
3
Though he does not specifically address this argument, Dooley does, pursuant to M.R.A.P 28 (i),
adopt King’s brief. Thus, technically, he has raised this issue. However, because he offers no argument,
and because King’s argument of this issue makes no mention of Dooley, in this Court’s view, Dooley has
waived this possible error for failure to make meaningful argument in support of his issues. Pate v. State,
419 So. 2d 1324, 1325-26 (Miss. 1982) (Supporting the argument of his issues with reasons and
authorities is part of an appellant's burden on appeal and the failure to do so constitutes a waiver of those
issues).
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failed to request such an instruction. A trial court has no duty to give unrequested instructions.
Therefore, this contention is procedurally barred. Giles v. State, 650 So. 2d 846, 853-54
(Miss. 1995) (no error where no instruction requested); Buggs v. State, 754 So. 2d 569 (Miss.
Ct. App. 2000) (No request for limiting instruction to instruct jurors as to what evidence could
be considered against each defendant for the numerous crimes charged in the multi-count
indictment; therefore, there is no error.).
¶25. Moreover, beyond arguing that the failure to instruct the jury on this point was error,
King offers no argument in support of his position. He merely cites United States v.
Buckhalter, 986 F.2d 875 (5th Cir. 1993), and asserts that prejudice attached to both Dooley
and him, thus, he claims, reversal is proper. The failure of King to properly brief this issue
obviates the necessity of our review. See Pulphus v. State, 782 So. 2d at 1224 (“Issues cannot
be decided based on assertions from the briefs alone. The issues must be supported and proved
by the record.”) (citing Robinson, 662 So. 2d at 1104).
¶26. Procedural bars notwithstanding, this issue is without merit. Buckhalter does not stand
for the proposition that a trial judge is required to instruct the jury to consider the guilt of each
defendant separately. Rather, in that case, the court merely commented on the fact that the
trial judge followed that procedure. Buckhalter, 986 F.2d at 877. Moreover, in the present
case, individual jury instructions were given for each defendant on each separate count, save
the conspiracy count, which by necessity required the mention of all the alleged participants
in the conspiracy.
¶27. This assignment is without merit.
11
IV. WHETHER PRETRIAL AND TRIAL PUBLICITY DENIED KING
A FAIR TRIAL.
¶28. King argues that he was denied a fair trial because of the extensive media coverage.
However, due to the pretrial publicity in Walthall County, the State did not oppose and the trial
judge granted King’s motion for a change of venue from Walthall to Franklin County.
Although King cites the failure to grant another change of venue, he has not cited to any further
request for a change of venue, and this Court has found none. We can only consider questions
that have been tried and passed upon by the court from which the appeal is taken. Leverett v.
State, 197 So. 2d at 890. Accord, Patterson v. State, 594 So. 2d 606, 609 (Miss. 1992). The
trial judge cannot be held in error for failing to rule on a motion that was never brought to his
attention. Thus, this issue is procedurally barred.
¶29. Moreover, the State submits that this issue is procedurally barred because King has
again failed to assert any error committed by the trial judge. Indeed, King admits that
“procedurally the Circuit Judge did all that was required.” However, he concludes that, in the
end, “it came up short.” Because King has failed to allege any error by the trial court, and
because he has admitted that the trial court did all that was required, this issue has been
specifically waived.
¶30. Alternatively, the issue is without merit. A change of venue requires that a defendant
be tried in an atmosphere in which public opinion is not saturated by bias, passion or prejudice
against him. Seals v. State, 208 Miss. 236, 44 So. 2d 61, 67 (1950). King argues that
everyone in Southwest Mississippi had heard about the case. Indeed, King asserts that 30 of
the 73 potential venire had shown knowledge of the case. However, the record reveals that only
12
two had made up their minds and stated that they could not fairly try the case, and they were
both stricken for cause.
¶31. In Gray v. State, 728 So. 2d 36, 66-67 (Miss. 1998), this Court affirmed a finding that
the jury was impartial because “the panel members were asked repeatedly by the trial judge, the
State's attorneys, and Gray's attorneys if they could be fair and impartial[, and there was]
nothing in the record to indicate that the jurors were not fair and impartial.” When King raised
this issue in his post-trial motion, the trial court denied it, stating the following:
The defendants received a fair and impartial trial. There was newspaper publicity
of the case in every county in the State of Mississippi because the Jackson
Clarion Ledger newspapers are circulated in every county. There was absolutely
no pretrial publicity, however, in the Franklin County Advocate, the only
newspaper published in Franklin County, Mississippi. The Court questioned the
jury every day as to any newspaper that they may have seen or television news
report that they might have heard and each time, each member of the jury advised
the Court every day that there had been absolutely no contact by anyone
regarding the trial and that no one had tried to get around them and discuss the
trial. There was no trial publicity during the pendency of the action that was
received by any member of the jury.
Thus, the record supports the conclusion that the trial judge did everything requested of him
to prevent outside influences on the jury. Indeed, as King points out in his brief, the trial judge
“took the exceptional step of sealing numerous hearing and closing the court file.” And again,
as King argues in his brief, “procedurally the Circuit Judge did all that was required.” He
certainly did all that was requested.
¶32. Beyond speculation and unsupported assertions, King has presented no concrete
evidence establishing that adverse public opinion was prejudicial to his case. A reviewing court
does not act upon innuendo and unsupported representation of fact, Gerrard v. State, 619
So. 2d 212, 219 (Miss. 1993), or upon assertions in briefs, but is bound by the matters
13
contained in the official record. Saucier v. State, 328 So. 2d 355, 357 (Miss. 1976). King’s
failure to timely bring his concerns to the attention of the trial judge, and his failure to include
evidence of the prejudice he now claims, constitute a waiver of this issue.
¶33. This assignment is without merit.
V. WHETHER THE TRIAL COURT WAS IN ERROR IN NOT
COMPELLING THE COMPLETE, PRETRIAL DISCLOSURE OF
THE AGREEMENT OF THE STATE WITH ITS WITNESS, GARY
BATES.
¶34. Next, King claims that the State should have been required to disclose the details of its
deal with co-defendant Gary Bates. He cites Sayles v. State, 552 So. 2d 1383 (Miss. 1989),
for the proposition that lack of complete knowledge of one’s accusers limits a defendant.
While this is a correct statement of the law, it does not specifically hold nor does it imply that
every detail of a plea bargain must be turned over to the defendant.
¶35. Moreover, King admits that the State provided him with Bates’s statement prior to trial
and that it informed him that it was discussing possible probation for Bates for his testimony.
Indeed, the record makes clear that King knew that Bates had made a deal with the State and that
King was allowed to impeach Bates’s testimony with this information.
¶36. In his opening statement, Dooley’s counsel4 stated, in part, as follows:
And the evidence is going to show that Gary Bates has worked a deal. And we
will explore with Gary Bates what his deal is after he gets up on the witness
stand and admits that he had horrible, despicable homosexual relationships with
[A.B.].
4
Although this statement was made by Dooley’s counsel rather than King's, King was also privy
to this information as evidenced by King’s questioning of the State’s witnesses.
14
King specifically questioned the victim’s mother about the deal, asking her, “Do you know that
he’s got - - he’s got a plea with the District Attorney where he gets probation; did you know
that?” He also questioned Bates himself about the deal, in an effort to attack Bates’s
credibility. Also, in the argument of a later issue in his brief, King concedes that he “also had
some notice that the State had promised Bates a probated sentence in return for his testimony.”
Finally, in the trial court’s denial of King's and Dooley’s motions for a new trial, the trial judge
stated, “[t]he District Attorney’s plea bargain recommendation form was available to the
defendants and had they requested same, it would have been provided to them. Had they
requested it and it had not been provided, the Court would have compelled disclosure.” Thus,
it is obvious to this Court that King did in fact have knowledge of the deal given to Bates in
exchange for his testimony and that he was allowed to impeach Bates’s testimony with this
information.
¶37. King also asserts that it is especially true that a defendant is limited by a lack of
complete knowledge of one’s accusers when the jury is not adequately instructed on such
testimony. For this proposition, King cites Moore v. State, 787 So. 2d 1282 (Miss. 2001).
However, he makes no argument in support of this assertion, nor does he explain how Moore
is applicable to his case. This cursory argument is insufficient to overcome the presumption
of correctness which attends the judgment of the trial court. Branch v. State, 347 So. 2d at
958. Moreover, Moore is distinguishable from the case at bar because in that case, the
defendant requested a cautionary instruction, while King did not. King’s failure to request a
cautionary instruction constitutes a waiver of this issue.
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(a) Whether the trial court erred in refusing King’s request for a
cautionary instruction regarding Gary Bates’s guilty plea
¶38. King specifically raises the lack of a limiting instruction regarding Bates’s testimony
in a later assignment. For clarity, that issue is discussed here. King complains that the trial
court committed reversible error in failing to instruct the jury, upon his request, “to not
consider the guilty plea of Gary Bates in consideration of the guilt or innocence” of King.
However, as mentioned, King did not formally request that the trial court give such an
instruction to the jury. He did orally request such an instruction during Bates’s testimony,
however, the trial judge suggested that they wait until all the instructions were given prior to
the jury beginning its deliberations. The record does not indicate that King ever requested such
an instruction again.
¶39. Bates pled guilty to the charges against him, agreed to testify against King and Dooley,
and consequently received a significantly lower sentence than did King and Dooley. The trial
court granted a general cautionary instruction regarding the credibility of witnesses; however,
the instruction did not instruct the jury regarding Bates’s testimony in particular. Because of
the facts surrounding Bates’s testimony listed above, we conclude that the general cautionary
instruction was insufficient to inform the jury of the caution with which Bates’s testimony
should be viewed. See Moore v. State, 787 So. 2d at 1287-88 (holding that the failure to give
a requested cautionary instruction regarding informant's testimony constituted reversible error
in a capital murder prosecution, given the unreliability of jailhouse informants and the fact that
the general instruction regarding witness testimony did not advise the jury to weigh informant's
testimony with caution and suspicion).
16
¶40. However, King is procedurally barred from asserting the absence of an individualized
instruction as to Bates’s testimony as error. Cummins v. State, 515 So. 2d 869, 872 (Miss.
1987) (no error where no request for accomplice cautionary instruction); Kelly v. State, 778
So. 2d 149, 152-53 (Miss. Ct. App. 2002). Although it is true, as King argues, that we have
held that the ultimate responsibility for the jury to be properly instructed rests with the trial
court, Duvall v. State, 634 So. 2d 524, 526 (Miss. 1994), we have also held that “[a] trial judge
will not be put in error on a matter which was not presented to him for his decision.” Parker
v. Miss. Game & Fish Comm'n, 555 So. 2d 725, 730 (Miss. 1989).
¶41. The trial judge may instruct the jury upon applicable principles of law (1) at the request
of a party, as provided by Miss. Code Ann. § 99-17-35 (Rev.1994), or (2) on the court's own
motion as specified in URCCC 3.07. See Newell v. State, 308 So. 2d 71, 78 (Miss. 1975).
The trial court has no affirmative duty to offer jury instructions sua sponte or to suggest
instructions for the parties to consider. Giles v. State, 650 So. 2d at 854. Even though this
instruction should have been granted, the trial court’s failure to give it was never brought to its
attention. This Court should not be the first tribunal that considers the oversight.
¶42. Moreover, King has failed to demonstrate how the absence of this instruction caused
him prejudice. It is the duty of the appellant, not only to demonstrate error in the introduction
of the evidence, but also to show the prejudice to the defense that arose from that erroneous
ruling. See McGowan v. State, 706 So. 2d 231, 243 (Miss. 1997); Flowers v. State, 726 So. 2d
185, 189 (¶ 17) (Miss. Ct. App. 1998). Irrespective of Bates’s testimony, substantial evidence
17
established that King committed these crimes. Thus, this Court concludes that the error in
failing to so instruct the jury, if it can in fact be credited to the trial court, was harmless.
¶43. This assignment is without merit.
VI. WHETHER THE TRIAL COURT ERRED IN ADMITTING
CERTAIN PORNOGRAPHIC EVIDENCE.
¶44. Next, King asserts error in what he characterizes as the “blanket admission of any
evidence deemed pornographic irrespective of the origin, substance, date, or relevance of the
suspect evidence to the alleged crimes.” King complains that irrelevant pornography was
erroneously admitted, some of which was over ten years old and only one photograph of which
could be characterized as child pornography. He submits that the only reason for the
introduction of this evidence was to unfairly prejudice him in violation of M.R.E 403.
¶45. Fifteen boxes of property were seized from the King residence. In an effort to sort
through this mass of material, the trial court held what King describes as “an extensive hearing
on these materials the State chose to submit, on a box-by-box basis.” At this hearing, the trial
judge stated, “If it was found in his bedroom and it’s pornographic, I think it’s gonna be
admissible.” King complains that this “wide-open field” was too broad. However, King’s
characterization of the judge’s ruling as a “blanket admission” is inaccurate. The record (and
even King’s brief) supports the conclusion that the trial judge individually viewed the multitude
of evidence and ruled on the admissibility of each piece of potential evidence.
¶46. King also argues that, while perhaps distasteful, “the mere possession of certain suspect
materials is not illegal.” He cites various authorities for the proposition that pornography is
protected by the First Amendment, and that, although obscene pornography is not, no
18
determination of the obscene nature of this pornography was made by the trial judge. King
submits that the trial judge failed to conduct the appropriate examination to determine whether
the evidence was obscene.
¶47. King’s constitutional argument misses the point. The pornography was admissible in
toto due to the nature of the charges against King, one of which was contributing to the
delinquency of a minor. Had King been on trial for possession of child pornography, a
determination of the obscene nature of the pornography seized might well have been necessary.
However, these charges were not brought against him.
¶48. A.B. testified that King showed him pornography inside his locked bedroom. The fact
that large amounts of pornography was in fact found inside King’s bedroom is a relevant issue
to the charge of contributing to the delinquency of A.B. because it makes A.B.’s accusations
more probable than they would have been without the evidence. See M.R.E. 401 (“‘Relevant
Evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would
be without the evidence.”).
¶49. Of course, even relevant evidence may be inadmissible if it fails the balancing test of
M.R.E. 403. However, this evidence was not substantially outweighed by the danger of unfair
prejudice. Had the evidence consisted of child pornography, then Rule 403 might have
warranted its exclusion; however, the bulk of the evidence admitted was garden variety
homosexual material. Thus, there was no danger that the jury would convict King for molesting
A.B. based solely on his possession of child pornography.
19
¶50. Finally, King does not cite to any specific piece of pornography that was admitted
erroneously. He has failed to point out any of the State’s exhibits which the trial court
incorrectly labeled pornographic. Accordingly, he has waived this issue.
¶51. This assignment is without merit.
VII. WHETHER M.R.E. 404(B) WAS VIOLATED.
¶52. In this issue, King complains that, “the State, in its disclosure and introduction of
evidence under MRE, Rule 404 (b), did not comply with the orders of the trial court, nor did
this evidence pass the filter of MRE, Rule 403.” Though he does not specifically assert any
error on the part of the trial court, this Court assumes that King intended to argue that the trial
court erred in its rulings on the objections made by King to certain testimony referred to only
by page number in King’s brief. However, after reviewing the witnesses’ testimony to which
King objected, we conclude that no reversible error occurred.
¶53. First, King objected during the testimony of Adra Gibson, Dooley’s biological mother.
Gibson had been asked about her relationship with Dooley. She testified:
One time, when he left from the house, he came up there to the trailer to visit
with us, and not long after that, Brother King came up there on the outside and
shot a gun, and -
King objected to testimony regarding King shooting a gun. The objection was sustained, and
the jurors were instructed to disregard the statement. They all indicated that they would.
¶54. Glen King (Glen), King’s son, was asked, on direct examination by the State, where
Gary Bates slept at the King residence. King objected to this testimony. Because Glen could
not answer the question from personal knowledge, the objection was sustained, and Glen was
not allowed to answer the question.
20
¶55. Glen was also asked about a conversation he had with A.B. regarding King. King
objected on hearsay grounds, but the objection was overruled based upon the tender years
hearsay exception, which states as follows:
The following are not excluded by the hearsay rule, even though the declarant is
available as a witness:
(25) A statement made by a child of tender years describing any act of sexual
contact performed with or on the child by another is admissible in
evidence if: (a) the court finds, in a hearing conducted outside the
presence of the jury, that the time, content, and circumstances of the
statement provide substantial indicia of reliability; and (b) the child
either (1) testifies at the proceedings; or (2) is unavailable as a witness:
provided, that when the child is unavailable as a witness, such statement
may be admitted only if there is corroborative evidence of the act.
M.R.E. 803(25). The trial judge had previously heard argument, outside the presence of the
jury, on the reliability of A.B.’s statements (which described sexual contact with King), and
A.B. had previously testified regarding the statement. Though perhaps cumulative, allowing
Glen to testify to this statement was not erroneous, especially since Glen had solicited the
statement from A.B., and since defense attorneys had attacked A.B.’s credibility. See M.R.E.
801(d)(1)(B) (“A statement is not hearsay if: The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is . . . (B)
consistent with his testimony and is offered to rebut an express or implied charge against him
of recent fabrication or improper influences or motive....").
¶56. King also objected to Glen’s testimony as follows: “He’s told me about some other
things, rumors that he has heard in the community, that were not related to this particular
21
conversation.” In response, the court warned Glen not to testify to any rumors about any other
victim.5
¶57. Finally, King objected to the testimony of Melody Stewart. Stewart was a nurse at the
jail where King and Dooley were housed prior to trial. She testified that she observed Dooley
and King lying on their sides, together in the bottom bunk. King was facing the wall, and
Dooley was facing King. When Stewart entered the cell, Dooley jumped up immediately, but
King initially refused to get up, falsely claiming that another nurse had already come by. After
fumbling with his crotch area, King finally did arise, and Stewart testified that he had a
noticeable erection.
¶58. King complains that the trial court committed reversible error by allowing Melody
Stewart to testify not once, but twice, first in the State’s case-in-chief, and second in rebuttal
to Dooley’s testimony. However, the record reveals that Stewart testified only once before
the jury, and this was in rebuttal to Dooley’s testimony. Though she was called during the
State’s case-in-chief, her only testimony at that time occurred outside the presence of the jury,
and King’s objection thereto was sustained by the trial court.
¶59. King complains that Stewart’s testimony failed the balancing test of M.R.E. 403
because it was not related in any way to the charged crimes and because King never put his
character in issue by testifying, either directly, or through other witnesses.
¶60. Though character evidence is not permissible to show conformity therewith on the
occasion of the alleged crimes, M.R.E. 404(b), it is, as King freely admits, admissible as
5
Glen also testified that his father threatened A.B.’s family through him and that his father instructed
him to say in court that A.B. was always trying to perform oral sex on Glen.
22
rebuttal evidence to explain, repel, counteract or disprove evidence of the adverse party.
Williams v. State, 539 So. 2d 1049, 1051 (Miss. 1989). Dooley testified that he had never
engaged in any kind of homosexual conduct with King. Therefore, evidence that he and King
engaged in homosexual activities while incarcerated was admissible to impeach his testimony.
Though it is arguable that the probative value of this evidence was outweighed by its prejudicial
effect, this Court is of the opinion that the probative value of this testimony was not
substantially outweighed by the dangers espoused in M.R.E. 403, especially considering that
Dooley opened the door to this testimony through his denial.
¶61. Generally, evidence of a crime other than that charged in an indictment is not
admissible against the accused. Townsend v. State, 681 So. 2d 497, 506 (Miss. 1996).
However, "[a]dmission of evidence and testimony about evidence is within the broad discretion
of the trial court, requiring a reversal only on a demonstrable abuse of that discretion." Id. at
507. King has failed to demonstrate an abuse of discretion.
¶62. Moreover, the jury was specifically instructed that it could consider Stewart’s
testimony “for the limited purpose of determining the truth and veracity of the defendant’s,
Nathan Paul King, testimony.” The trial court further instructed the jury: “you are not
permitted and hereby instructed not to consider any testimony regarding and testimony of H.G.
and Melody Stewart in arriving at your decision as to whether or not David Earl King and
Nathan Paul King are guilty of the charges” for which they were on trial. This instruction cured
any possible prejudice that could have occurred. See Day v. State, 589 So. 2d 637, 644 (Miss.
1991). The jury is presumed to follow the instructions of the trial court. Davis v. State, 660
So. 2d 1228, 1253 (Miss. 1995); Walker v. State, 671 So. 2d 581, 618 (Miss. 1995); Collins
23
v. State, 594 So. 2d 29, 35 (Miss. 1992). King has not attempted to show any evidence that the
jury failed to follow the trial court’s limiting instructions, thus, the presumption that it did
must prevail.
¶63. In short, it appears that King got everything he asked from the trial court. All the
objections to the testimony of these witnesses cited as error by King were sustained by the
judge and cautionary instructions were given where necessary and/or requested.
¶64. This issue is without merit.
VIII. WHETHER THE TRIAL COURT ERRED IN ORDERING THAT
THE VENIRE LIST BE SEALED OR BY REFUSING KING’S
REQUEST FOR INDIVIDUALIZED VOIR DIRE.
¶65. Here, King complains that the trial court erred in sealing the names of the potential
venire and by denying individual voir dire. Citing Miss. Code Ann. § 13-5-32 (Rev. 2000), as
amended, King contends that, “[b]y going outside the statute, error was committed.”
¶66. The standard of review in examining the conduct of voir dire is abuse of discretion.
Jackson v. State, 791 So. 2d 830, 835 (Miss. 2001). An appellant must show actual harm or
prejudice before this Court will reverse a trial court's limitation on voir dire. Stevens v. State,
806 So. 2d 1031, 1054 (Miss. 2001). A trial court's finding that an impartial jury was
impaneled will not be reversed unless the court abused its discretion. Holland v. State, 705
So. 2d 307, 336 (Miss. 1997).
¶67. Regarding this issue, Miss. Code Ann. § 13-5-32 states as follows:
The names of jurors drawn from the jury box shall be made available to the
public unless the court determines in any instance that this information in the
interest of justice should be kept confidential or its use limited in whole or in
part.
24
In Valentine v. State, 396 So. 2d 15, 17 (Miss. 1981), this Court expanded the requirements
of § 13-5-32 by holding that, before sealing a venire list, the trial court must give notice and
a hearing to the defendant. Valentine, 396 So. 2d at 17. Those guidelines were not followed
in the case at bar. Instead, during a pretrial hearing, the trial court announced that it intended
to seal the venire list because, “I don’t want any improper contact with any proposed juror from
anybody.”
¶68. Interestingly, the Court in Valentine did not reverse based on the trial court’s error in
sealing the venire list. Indeed, King has not cited to any case in which the appellate courts of
this State have ever reversed a criminal case on these grounds. He does, however, state the
following: “in not following the specific provisions of the statute, the trial judge was in error.
United States v. Clay, 159 F. Supp. 2d 1357 (M.D. Ala. 2001).”
¶69. In Clay, the federal court granted a new trial because the jury selection plan for criminal
cases violated the Jury Selection and Service Act (JSSA).6 In that case, the court administrator
almost always granted temporary deferrals to potential jurors and then, upon expiration of the
deferrals, constructed the venire lists in such a way as to prefer the previously deferred jurors
over those who were drawn directly from the qualified wheel. The court held that this
procedure substantially violated the JSSA provision requiring random selection of names from
the district's qualified wheels and that the practice allowed a disproportionate number of white
jurors and created the potential for racial discrimination.
6
28 U.S.C. §§ 1863(a), 1863(b)(5).
25
¶70. Clay is distinguishable from the case at bar. First, this case deals with State, not federal
law. Also, the trial judge’s actions here created no potential for race discrimination, a
substantial factor in Clay. Clay provides no support for King’s position. The failure to cite
relevant authority, or to make any connection between the authority cited and his case
constitutes a procedural bar. Pace v. State, 419 So. 2d at 1325-26.
¶71. Also fatal to this assignment, however, is King’s failure to demonstrate, or even argue,
that he was prejudiced by the trial court’s failure to follow this procedure. Indeed, he states,
“[King] does not complain of the Jury’s conduct and deliberations here.” This statement
constitutes a waiver of this issue. Branch v. State, 347 So. 2d at 958 (holding that judgments
of the lower court come to this Court clothed with a presumption of correctness, and it is the
burden of the appellant to overcome that presumption).
¶72. Further, this Court has held that where the defendant has “alleged no prejudice as a
result of the trial court’s noncompliance with [a] statute and . . . has altogether failed to
demonstrate that the jury was not chosen from a fair cross-section of the community,” it will
not reverse a criminal conviction. De La Beckwith v. State, 707 So. 2d 547, 598 (Miss.
1997). See also Adams v. State, 537 So. 2d 891, 894 (Miss. 1989) (“To be sure, one may find
among our recent cases continued general observation that our jury selection laws are
directory and not mandatory.”)
¶73. King also asserts that the trial court committed error in refusing his request for
individualized voir dire. He cites Carr v. State, 655 So. 2d 824 (Miss. 1995), and argues that
the remedy found in Carr, the juror questionnaire and individual voir dire, was also denied.
26
However, as King readily admits, it is well-established this rests in the sound discretion of the
trial judge, and is rarely afforded. Ballenger v. State, 667 So. 2d 1242, 1250 (Miss. 1995).
¶74. The manner in which voir dire in criminal cases will be conducted is governed by
URCCC 3.05 which provides in pertinent part:
In the voir dire examination of jurors, the attorney will question to the entire
venire only on matters not inquired into by the court. Individual jurors may be
examined only when proper to inquire as to answers given or for other good
cause allowed by the court. No hypothetical questions requiring any juror to
pledge a particular verdict will be asked.
This Court has held that this rule's similar predecessor allows a circuit court, in its own
discretion, to utilize individualized, sequestered voir dire. Russell v. State, 607 So. 2d 1107,
1110 (Miss. 1992); Hansen v. State, 592 So. 2d 114, 126 (Miss. 1991). However, this Court
has further held that the predecessor rule did not require more than what it states on its face.
Russell, 607 So. 2d at 1110; Hansen, 592 So. 2d at 126; White v. State, 532 So. 2d 1207, 1218
(Miss. 1988); West v. State, 463 So. 2d 1048, 1054 (Miss. 1985). We conclude that the trial
court in the case sub judice did not abuse its discretion under Rule 3.05.
¶75. Beyond asserting that the pretrial publicity and its effect on prospective jurors, King
does nothing to demonstrate an abuse of discretion. He makes no argument regarding the
prejudicial effect of not being allowed to individually voir dire the venire, nor does he provide
the Court with any evidence supporting his brief assertions regarding the effect of the alleged
publicity on the prospective jurors. Without the inclusion of this information in the record
before us, we cannot know it.
¶76. This assignment is without merit.
27
IX. WHETHER THE TRIAL COURT ERRED BY OVERRULING, IN
PART, KING’S MOTION TO SUPPRESS.
¶77. Here, King argues that the trial court erred in “denying the defendant’s motion to
suppress certain evidence seized after illegal search and seizure.” However, King does not
bother to enlighten us as to what “certain evidence” the trial court should have suppressed. The
appellant, King, bears the burden of showing some reversible error by the trial court. The
failure to do so constitutes a waiver. Branch v. State, 347 So. 2d at 958.
¶78. Procedural bar notwithstanding, King argues that, although the initial search warrant was
proper, the officers exceeded the scope of that warrant by searching areas and seizing items
not specifically included on the warrant. He cites various cases and laws forbidding such a
general search. At trial, King unsuccessfully sought to suppress the second search warrant.
He argues here that “[t]his continued rummaging by the State should have been suppressed."
See United States v. Runyan, 275 F.3d 449 (5th Cir. 2001).
¶79. King also argues that “even the State admitted that nothing was added to the underlying
facts and circumstances for the second alleged search warrant.” However, contrary to King’s
assertions, the record shows that the second search warrant was undergirded by information
additional to that upon which the first warrant was based. The trial court made a specific
finding of this fact in its ruling.
¶80. This assignment is without merit.
X. WHETHER THE DEFENDANT’S CONSTITUTIONAL
PROTECTION AGAINST DOUBLE JEOPARDY WAS VIOLATED.
28
¶81. Dooley testified on his own behalf, and as a result of his testimony, the State called
H.G.7 to testify in rebuttal. At trial, King, through counsel, acknowledged, “I don’t believe
[H.G.]’s testimony would have anything to do with my client.” However, here on appeal, King
complains that, since H.G. is the victim in the severed count of his and Dooley’s indictment,
allowing H.G.’s testimony in this case gave the State a “double ‘bite at the apple,’” allowing the
State a dry run at trying Dooley in the H.G. case. Since H.G.’s charge was against Dooley only,
as acknowledged by King at trial, King has no stake in this issue, and no standing to complain.
¶82. King also argues, without clear explanation, that the double jeopardy clause is somehow
implicated. It is obvious to this Court that the prohibition against double jeopardy was not
violated in this case.
¶83. This assignment is without merit.
XI. WHETHER THE TRIAL COURT ERRED IN SUBMITTING
CERTAIN INSTRUCTIONS TO THE JURY.
¶84. Next, King argues that the trial judge erroneously submitted three instructions to the
jury. However, as the State correctly points out, King failed to object to the granting of these
instructions.8 By failing to object to these instructions at trial, King waived this issue on
appeal. See, e.g., Cross v. State, 759 So. 2d 354, 357 (Miss. 1999); Moawad v. State, 531 So.
2d 632, 635 (Miss. 1988); Cole v. State, 525 So. 2d 365, 374 (Miss. 1987).
7
We use the fictitious initials H.G. for the minor whose alleged sexual abuse at the hands of Dooley
formed the basis of Count four of the indictment against Dooley.
8
Dooley did object to the granting of instructions 20 and 21. However, King did not. As King’s
counsel said at trial (regarding another subject), “[b]ut there ain’t no they here, Judge. We are tried
together but we have separate clients to represent.”
29
¶85. King argues that these issues are preserved for appeal under Jackson v. State, 672
So. 2d 468, as corrected 684 So. 2d 1213 (Miss. 1996), and Duplantis v. State, 708 So. 2d
1327 (Miss. 1998). He offers no specific page citation for this proposition, and after a
thorough review of these cases, this Court understands why. Neither Jackson nor Duplantis
holds that a contemporaneous objection is not required.9 Nor do they provide any other reason
to find that this issue is not barred. Thus, the procedural bar remains in effect.
¶86. Alternatively, the issue is without merit. “In determining whether error lies in the
granting or refusal of various instructions, the instructions given must be read as a whole.
When so read, if the instructions fairly announce the law of the case and create no injustice,
no reversible error will be found.” Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997).
(a) Aiding and abetting instructions
¶87. First, King complains that submission of the aiding and abetting instructions “is but
another example of the overkill mentality in this trial.” King claims the instructions were an
9
In fact, Jackson held seven of the assigned errors were procedurally barred for the defendant’s
failure to object at trial. However, Jackson did note that no contemporaneous objection is necessary to
preserve plain error, such as the prosecutor’s comment on the defendant’s failure to testify, a situation not
present in the case at bar. Jackson also commented on the failure of the defendant to provide a complete
record of the instruction conference for the Court to review. This is perhaps the reason King cites it.
However, in Jackson, the record was supplemented by the State, and, after noting that the defendant had
failed in his burden to provide this Court with a complete record to review, this Court held that the
defendant’s failure to supplement the record obviated the necessity of review of the issue. Jackson, 684
So. 2d at 1226.
Duplantis held two of the assigned errors procedurally barred for the defendant’s failure to object
at trial. Duplantis did restate the well-recognized rule of law that the refusal of an instruction is
procedurally preserved for our review by the mere tendering of the instruction and an objection to its refusal
is not necessary. Duplantis, 708 So. 2d 1339-40. However, as King is objecting on appeal to the
granting of the State’s instructions rather than the refusal of his own, Duplantis is not on point and offers
him no support.
30
incomplete statement of the law which gave undue prominence to aiding and abetting on the
part of King. He urges the Court to remember that he was not charged with aiding and abetting,
but with a direct conspiracy count. King argues that “[a]iding and abetting may be part of a
conspiracy, but the outline of same in State’s Instruction 21 fell far short of what is required
for conviction." See Vaughn v. State, 712 So. 2d 721 (Miss. 1998).
¶88. As long as the instructions given properly instruct the jury of the elements of the crime
and are correct statements of law, then no reversal will be granted. Malone v. State, 486 So. 2d
360, 365 (Miss. 1986).
¶89. Instruction 20 states as follows:
The Court instructs the Jury that every person who assists, aids or abets in the
commission of a crime is equally as guilty as those who actually commit the
crime. However, the Court further instructs you that before you can find a
person guilty of aiding and abetting in the commission of a crime, you must find
from the credible evidence, beyond a reasonable doubt, that such person or
persons arranged for, counseled or commanded another to commit the crime of
sexual battery. Mere presence by a person or persons at the scene of a crime or
mere association with those who commit a crime is not enough to prove
participation in it.
Instruction 21 states as follows:
The Court instructs the Jury that aiding and abetting involves some participation
in the criminal act and this may be evidenced by word, overt act or deed.
¶90. What renders one an “aider and abetter” is well settled. In Crawford v. State, 133 Miss.
147, 97 So. 534 (1923), this Court ruled that to aid and abet in the commission of a felony,
one must “do something that will incite, encourage, or assist the actual perpetrator in the
commission of the crime.” Id. at 151. See Malone v. State, 486 So. 2d at 363 (To “aid and
abet” means that one must “do something that will incite, encourage, or assist the perpetrator
31
in the commission of a crime.”); Williams v. State, 463 So. 2d 1064, 1066 (Miss. 1985) ("One
who aids and abets another is an accessory before the fact and is guilty as a principal"); Shedd
v. State, 228 Miss. 381, 386, 87 So. 2d 898, 900 (1956) (Aiding and abetting involves a
community of unlawful purposes at the time of the act and some participation in the act in
furtherance thereof); Gibbs v. State, 223 Miss. 1, 6, 77 So. 2d 705, 707 (1955) (Aiding and
abetting involves participation in the criminal act).
¶91. One who aids and abets necessarily enters into an agreement that an unlawful act will
be done. He participates in the design of the felony. So when considered in this manner, the
instruction properly advised the jury under the facts that, if it believed that Dooley and King
formed a common design and purpose to sexually assault A.B., and that in pursuance of that
common design Dooley did in fact so assault A.B., then King is guilty as charged.
¶92. The instructions, when considered in conjunction with all others, had no tendency to
mislead or confuse the jury or to impermissibly assign undue prominence to King’s aiding and
abetting or to lower the State's burden of proof. These instructions, rather, properly stated the
law of aiding and abetting. Moreover, they were adequately supported by the evidence
presented at trial.
¶93. This assignment is without merit.
(b) Instruction No. 23
¶94. Although he acknowledges that he failed to object to this instruction at trial, King
argues this question is subject to plain error review. See United States v. Myers, 198 F.3d 160
(5th Cir. 1999); Riggs v. State, 744 So. 2d 365 (Miss. Ct. App. 1999). He makes this
submission for two reasons: (1) King did not testify at this trial, and (2) in the case of both
32
rebuttal witnesses, their testimony was basically about unrelated, uncharged acts that had no
bearing at all on what was before the trial court at this time.
¶95. The cases cited by King offer him no support. Neither case holds that the reasons cited
by King are sufficient for reversal based upon plain error. Although they both outline what is
required for reversal on those grounds, they also both clearly state that a crucial requirement
is that the defendant must demonstrate prejudice. King’s cursory argument fails in that regard.
¶96. King argued at trial for a limiting instruction regarding the testimony of H.G. and
Stewart. However, now, on appeal, he claims that Instruction Number 23's only purpose was
to highlight–not limit–said testimony. The fact that King requested this instruction operates
to waive any objections to it here. Moreover, although King claims that, while Instruction
Number 23 may have been limiting to Dooley, it was not limiting to him, the plain wording of
the instruction belies his contention. The instruction states as follows:
The Court instructs the Jury that the testimony of [H.G.] and Melody
Stewart was offered for the limited purpose of determining the truth and veracity
of the defendant’s, Nathan Paul King, testimony. You may give this testimony
such weight and credibility as you deem proper under the circumstances for the
limited purpose of determining the truth and veracity, Nathan Paul King.
However, the Court further instructs the Jury that under laws of the State
of Mississippi, you are not permitted and hereby instructed not to consider any
testimony regarding and testimony of [H.G.] and Melody Stewart in arriving at
your decision as to whether or not David Earl King and Nathan Paul King are
guilty of the charges of conspiracy to commit sexual battery, sexual battery (two
counts) and contributing to the delinquency of a minor, said to have occurred on
or before the 1st day of March, 2001, for which they are presently on trial.
The instruction tells the jury (1) that the only purpose of the testimony of H.G. and Stewart was
to aid in determining the “truth and veracity” of Dooley’s testimony; and (2) that the jury was
33
prohibited from using the H.G. and Stewart testimony “in arriving at your decision as to
whether or not David Earl King and Nathan Paul King are guilty” of the charged crimes.
¶97. Clearly, the instruction appropriately limited the jury’s use of the testimony of H.G. and
Stewart to its proper and only purpose. The jury is presumed to follow the instructions of the
trial court, Davis v. State, 660 So. 2d at 1253; Walker v. State, 671 So. 2d 581, 618 (Miss.
1995); Collins v. State, 594 So. 2d 29, 35 (Miss. 1992), and, King has failed to overcome the
presumption.
¶98. This assignment is without merit.
(c) Instruction No. 25.1
¶99. King contends that this instruction is a “restatement and extension” of Instruction
Number 24, which he labels “the conspiracy elements instruction.” The result, he contends,
was that the jury would presume that, if the defendants conspired together to commit sexual
battery, they must also have committed the sexual battery. He also comes to the nonsensical
conclusion that “it is reversible” when the jury “is given a literal roadmap to conviction through
instructions.”10
¶100. Instruction Number 25.1 states as follows:
The Court instructs the Jury that if you believe from the evidence in this
case, beyond a reasonable doubt, that on or before the 1st day of March, 2001,
in Walthall County, Mississippi, the defendants, David Earl King and Nathan
Paul King, also known as “Dooley”, males over the age of eighteen years, did
wilfully, unlawfully, feloniously and knowingly commit the crime of sexual
battery, then you should find the said David Earl King and Nathan Paul King, also
10
Had the jury not been given that “roadmap”, King would certainly be arguing that the instructions
were inadequate. Of course the instructions gave the jury a roadmap to conviction, that is their purpose;
however, they also gave the jury the choice of whether to follow that map.
34
known as “Dooley”, guilty of the crime of conspiracy to commit sexual battery
as to count one; further, if you believe from the evidence in this case beyond a
reasonable doubt that on or before the 1st day of March, 2001, in Walthall
County, Mississippi, the said David Earl King and Nathan Paul King, also known
as “Dooley”, did wilfully, unlawfully and feloniously engage in sexual
penetration of [A.B.], said act having occurred at a time when the said [A.B.] was
a child under the age of sixteen (16) years and at a time when the said defendants
were at least thirty-six (36) or more months older than the said [A.B.], then you
should find the said David Earl King and Nathan Paul King, also known as
“Dooley”, guilty of sexual battery as to count two; further, if you believe from
the evidence in this case beyond a reasonable doubt that on or before the 1st day
of March, 2001, in Walthall County, Mississippi, the said David Earl King and
Nathan Paul King, also known as “Dooley”, did wilfully, unlawfully, feloniously
and intentionally commit acts which contributed to or tended to contribute to
the neglect or delinquency of [A.B.], a child under the age of eighteen (18)
years, by wilfully, unlawfully, feloniously and intentionally providing the said
[A.B.] with sexual aids and literature, showing the said [A.B.] pornographic
materials and by engaging in sodomy in the presence of said [A.B.] then you
should find the said David Earl King and Nathan Paul King, also known as
“Dooley”, guilty of contributing to the delinquency of a minor as to count three.
This instruction properly states the elements of each of the three crimes with which King was
charged. It is not a “restatement and extension” of Instruction Number 24, which explains in
detail more the law of conspiracy.11 Neither Instruction Number 25.1 nor Instruction Number
11
The court instructs the Jury that the defendants, David Earl King and Nathan
Paul King, also known as “Dooley”, have been charged with the offense of
conspiracy for having voluntarily entered into a scheme or agreement between
themselves and one or more other persons to commit certain crime, namely, sexual
battery.
A conspiracy is an agreement or understanding between two or more persons
to violate the law. The agreement to violate the law need not be formal or express,
but may be inferred from the circumstances, particularly by statements, acts and
conduct of the alleged conspirators. The State is not required to prove that the
conspirators entered into a solemn oral or written compact setting forth the existence
and details of the conspiracy. It is sufficient to show the existence of the conspiracy
if the State proves, beyond a reasonable doubt, that two or more persons, including
David Earl King and Nathan Paul King, also known as “Dooley”, in any manner or
through any express or inferred contrivance, knowingly came to a common
understanding to violate the law as set forth herein.
Thus, if you believe from the evidence in this case, beyond a reasonable doubt,
35
24, read individually or together, supports King’s contention that the jury was led to presume
that it must convict of sexual battery if it found that the defendants conspired to commit sexual
battery.
¶101. Moreover, King has failed to carry his burden of proof. He argues that Instruction
Number 25.1 is “[i]naccurate, confusing or misleading,” but he does not demonstrate in what
way. Pate v. State, 419 So. 2d at 1325-26 (Appellants must support the argument of issues
with reasons and authorities); Branch v. State, 347 So. 2d at 958 (“There is a presumption that
the judgment of the trial court is correct, and the burden is on the appellant to demonstrate
some reversible error to this Court.”); Johnson v. State, 154 Miss. 512, 513, 122 So. 529, 529
(1929) (“It is the duty of counsel to make more than an assertion; they should state reasons for
their propositions, and cite authorities in their support . .. .”).
¶102. This assignment is without merit.
XII. WHETHER THE JURY’S VERDICT IS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE, CONTRARY
TO THE LAW OF THIS STATE, AND THE RESULT OF BIAS AND
PREJUDICE.
¶103. The jury convicted King on all three charged counts. In this issue, King alleges that
the jury’s verdicts are “against the overwhelming weight of the evidence,” and that they are “the
result of bias and passion . . . .” Without providing any evidence to support this assertion, King
that on or before the 1st day of March, 2001, in Walthall County, Mississippi, an
express or inferred agreement existed among David Earl King, Nathan Paul King,
also known as “Dooley”, and any other person or persons to commit the crime of
sexual battery, it is your sworn duty to find the said David Earl King and Nathan
Paul King, also known as “Dooley”, guilty of conspiracy to commit the crime of
sexual battery.
36
submits that the verdicts are not credible and that the jury had its collective mind made up prior
to entering deliberations. He argues that improper evidence was brought before the jury, which
he claims was essentially uninstructed.
¶104. Our standard of review for claims that a conviction is against the overwhelming weight
of the evidence or that the trial court erred in not granting a motion for a new trial has been
stated as follows:
[This Court] must accept as true the evidence which supports the verdict and will
reverse only when convinced that the circuit court has abused its discretion in
failing to grant a new trial. A new trial will not be ordered unless the verdict is
so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction unconscionable injustice.
Todd v. State, 806 So. 2d 1086, 1090 (¶ 11) (Miss. 2001). There is a presumption that the
judgment of the trial court is correct, and the burden is on the appellant to demonstrate some
reversible error to this Court. Branch v. State, 347 So. 2d at 958. Supporting the argument
of his issues with reasons and authorities is part of an appellant’s burden on appeal. Pate v.
State, 419 So. 2d at 1325-26. King’s failure to make any pertinent and meaningful argument
constitutes a waiver of this issue.
¶105. Alternatively, this issue is without merit. As even a casual reading of the facts and the
evidence presented against King will demonstrate, the jury’s verdict of guilty on all counts
finds more than sufficient support in the evidence. This evidence, taken together with other
reasonable inferences flowing therefrom, establishes that the evidence against King was
overwhelming. Accordingly, this issue is without merit.
XIII. WHETHER THE TRIAL COURT ERRED IN SENTENCING KING.
37
¶106. King was sentenced to five years and a $5,000 fine on the conspiracy count; thirty years
and a $10,000 fine on the sexual battery count; and one year and a $1,000 fine on the
contributing to the delinquency of a minor charge. These sentences represent the maximum
sentences for each crime, and the trial court ordered that the prison time be served
consecutively. King, 67 years old, complains that this is, in effect, a life sentence. He
contends that his sentences are “unduly harsh and grossly disproportionate to the crimes
charged . . . .”
¶107. This Court has repeatedly held that the imposition of a sentence, if it is within the limits
prescribed by statute, is a matter left to the sound discretion of the trial court, and that the
appellate courts will not ordinarily disturb a sentence so imposed. Bell v. State, 797 So. 2d
945, 950-51 (Miss. 2001); Stromas v. State, 618 So. 2d 116, 122 (Miss. 1993); Reed v. State,
536 So. 2d 1336, 1339 (Miss. 1988); Boyington v. State, 389 So. 2d 485, 491 (Miss. 1980).
In Bell, this Court stated, in pertinent part, as follows:
It is the prerogative of the Legislature to determine the appropriate sentence for
crimes, and we do not consider the statutory punishment of thirty years for the
crime of sexual battery to be excessive, especially when the victim is a child of
tender years. Child molestation has become rampant in our society, and due to
the nature of the offense, the emotional (and sometimes physical) harm to the
child victim is irreparable.
797 So. 2d at 950-51.
¶108. King also argues in this issue, and repeatedly throughout his brief, that it was unfair for
Gary Bates to receive a lesser sentence. He argues that although Bates made “the only
admission of sexual battery” in this case, “the trial court chose to let Bates go relatively free,
and King will die in prison.” This recurrent argument overlooks the fact that, unlike either
38
King or Dooley, Bates confessed to his crimes, pled guilty, and testified for the State. A
reduced sentence was therefore proper for Bates.
¶109. Moreover, the evidence showed without dispute, save the biased testimony of Dooley,
that King was the instigator and orchestrator of all of the crimes involved in this case. The
State argues that, “[g]iven the detestable nature of the crimes involved herein, the statutory
maximum was–if anything–to lenient for King.” It goes on to quote Matthew 18: 2-7, which
states:
And whoever welcomes a little child like this in my name welcomes me. But if
anyone causes one of these little ones who believe in me to sin, it would be
better for him to have a large millstone hung around his neck and to be drowned
in the depths of the sea. Woe to the world because of the things that cause
people to sin! Such things must come, but woe to the man through whom they
come!
This authority, while worthy of the highest personal attention, is not a proper source of
consideration for this Court, for “we do not judge men; that is for the Highest Court. We pass
upon facts as measured by the law, and must at all times retain our equilibrium, to see that the
shields erected after centuries of experience to prevent miscarriages of justice are
maintained.” King v. Kelly 243 Miss. 160, 175, 137 So. 2d 808, 814 (1962).
¶110. Nothing in the record or presented by King warrants reversal or reduction of his
sentence. It is within the statutory limits, and it is a just punishment for the despicable crimes
for which he was found guilty by a fair and impartial jury.
¶111. This assignment is without merit.
XIV. WHETHER CUMULATIVE ERROR REQUIRES REVERSAL.
39
¶112. In his final assignment of error, King argues that the cumulative effect of the errors in
his trial warrant reversal. This Court will review “whether the cumulative effect of all errors
committed during the trial deprived the defendant of a fundamentally fair and impartial trial.”
Wilburn v. State, 608 So. 2d 702, 705 (Miss. 1992). We have held that individual errors, not
reversible in themselves, may combine with other errors to make up reversible error. Hansen
v. State, 592 So. 2d at 142; Griffin v. State, 557 So. 2d 542, 553 (Miss. 1990). The question
is whether the cumulative effect of all errors committed during the trial deprived the defendant
of a fundamentally fair and impartial trial. McFee v. State, 511 So. 2d 130, 136 (Miss. 1987).
¶113. King addresses three general areas which he believes “created an inescapable
atmosphere” of his guilt. First, King offers vague and unsupported allegations that the State
was after his money. He claims that a large portion of money seized from him has never been
accounted for. King fails to allege any error by the trial court, and he does not offer any
credible evidence that this money was in fact seized or that it has not been accounted for. This
argument does not form the basis for reversal of King’s conviction.
¶114. Next, King claims that the rules of evidence were forgotten during the testimony of
A.B.'s mother, Adra Gibson, Glen King, Melody Stewart, and H.G. However, King fails to
specify what portions of these witnesses’ testimony was wrongfully admitted or what rulings
of the trial judge were erroneous. Thus, he has failed to carry his burden of showing some
reversible error to this Court. Branch v. State, 347 So. 2d at 958. Moreover, after reviewing
the testimony of these witnesses, this Court has found no error committed by the trial judge.
40
¶115. Finally, King contends that the trial court’s gag order was violated, as “emphasized by
a television interview of State’s witness, Glen King and King’s relative, by WDAM television
of Hattiesburg during the trial.” Initially, as the State points out, this complaint, true or not, is
not a ground for reversal of King’s judgments of conviction and sentence. Additionally, the
trial court was careful to inquire of the jurors regarding any possible taint by the news media.
¶116. None of the issues raised by King, in this assignment or any of those discussed
previously, rise to the level of reversible error either standing alone or when considered
together. The evidence supported the finding that King was the ringleader of this abominable
enterprise, and the jury made that finding. Its verdict finds substantial support in the evidence
and King has failed to demonstrate any procedural or substantive errors that warrant reversal.
Thus, his convictions and sentences are affirmed.
ISSUES RAISED BY NATHAN PAUL KING
¶117. Nathan Paul King (Dooley) was indicted on four counts, which include: Count 1,
conspiracy to commit sexual battery in violation of Miss. Code Ann. §§ 97-1-1 and 97-3-95
(d); Count 2, sexual battery, in violation of Miss. Code Ann. § 97-3-95 (d); Count 3,
contributing to the delinquency of a minor, in violation of Miss. Code Ann. § 97-5-39 (1); and
Count 4, sexual battery. Counts 1-3 related to A.B., the minor child who King was convicted
of molesting. Count 4 related to H.G. and was severed from this trial and reserved for later
prosecution.
¶118. Dooley and King were tried together, and their appeals have been consolidated. Dooley
was sentenced to a total term of eighteen and one-half years and received a total fine of
41
$16,000.00, together with all costs of court. Aggrieved by this sentence, Dooley appeals,
raising five issues for the Court’s consideration:
I. WHETHER THE TRIAL COURT ERRED BY ADMITTING
REBUTTAL TESTIMONY OF THE STATE’S REBUTTAL
WITNESS, H.G., A MINOR, IN VIOLATION OF MRE 404 (B).
¶119. Dooley testified on his own behalf during the trial. During his direct examination, his
attorney asked specifically if he had ever had any type of sexual contact with A.B., Gary Bates,
or King. Dooley denied ever having any such relations.
¶120. On cross-examination, Dooley was asked whether he had ever engaged in any
homosexual activity with any other people. He denied that he had. He was also asked if he
knew who H.G. was. Dooley responded: “If I seen him, I wouldn’t know him. But I just
understand he’s some connection with [A.B.’s] family, is all I know. I don’t know how he’s kin
or anything.”
¶121. Over Dooley’s objection, the State was allowed to call H.G. as a rebuttal witness. H.G.
testified that, inter alia, Dooley tried to molest him by “sticking his penis in [H.G.’s] rectum.”
Dooley argues that allowing this testimony of alleged improper sexual conduct between
Dooley and H.G., a minor, which conduct was unrelated to the crimes for which he was on trial
constitutes reversible error.
¶122. Evidence of uncharged misconduct or other offenses is inadmissible where the only
purpose for the evidence is to raise the “forbidden inferential sequence,” i.e., to suggest that
because the defendant engaged in other misconduct or committed another offense, he probably
committed the offense for which he is then on trial. See, e.g., Lancaster v. State, 472 So. 2d
363, 368 (Miss. 1986); Blanks v. State, 547 So. 2d 29, 37 (Miss. 1989).
42
¶123. In Mitchell v. State, 539 So. 2d 1366 (Miss. 1989), this Court rejected the argument
that evidence of a defendant's prior sexual misbehavior with other children is admissible during
the State's case-in-chief to show "the system of criminal action and lustful disposition of [the
defendant] toward children." Mitchell, 539 So. 2d at 1372. This Court held that to allow
"testimony that shows a defendant's character of lustful behavior toward children in general,
not just [toward the victim at issue]," would "not be consistent with the purpose of M.R.E.
404(b)." Id. This Court concluded that under Rule 404(b) "evidence of other sexual relations
[should be limited] to those between the defendant and the particular victim [at issue]." Id. This
Court explained that to admit evidence of prior bad acts involving victims other than the one
for whom the defendant was on trial would be "[i]nconsistent with the notion that a defendant
is on trial for a specific crime and not for generally being a bad person." Id. Accordingly,
Mitchell requires an identity of victims in sexual abuse cases, i.e., the prior bad act sought to
be admitted must have been committed upon the same victim that the defendant is currently on
trial for having allegedly harmed. Consequently, if the evidence of prior bad acts concerns acts
committed upon victims other than the one involved in the instant case, the prior bad acts
evidence is inadmissible on direct under our rules of evidence. See Elmore v. State, 510
So. 2d 127, 131 (Miss. 1987) (holding that "the admission of evidence of remote instances of
sexual misconduct with someone other than the prosecutrix was reversible error").
¶124. In Nicholson v. State, 704 So. 2d 81 (Miss. 1997), Nicholson was accused of sexual
battery. The State was allowed to question Nicholson during cross-examination regarding
fondling allegations involving another girl. Nicholson denied these allegations, and the State
43
introduced the evidence through a rebuttal witness. This Court held that the State could not
introduce inadmissible evidence through rebuttal witnesses, when the rebuttal was first set up
by cross-examination of defense witnesses. Nicholson, 704 So. 2d at 82.
¶125. Here, the State asked on cross-examination whether Dooley ever had any homosexual
activity with any other people. Dooley denied any activity. Dooley was also asked if he knew
H.G. He stated that “If I seen him, I wouldn’t know him. But I just understand he’s some
connection with [A.B.’s] family, is all I know. I don’t know how he’s kin or anything.” Clearly,
Dooley knew H.G. as Dooley was also indicted for sexual battery of H.G. albeit that count was
severed from the trial involving A.B. H.G. was called as a rebuttal witness and testified that
Dooley tried to molest him.
¶126. Based upon Baine v. State, 604 So. 2d 258 (Miss. 1992), this evidence was admissible
because it was somewhat related in time and character to the crime for which Dooley was on
trial. In Baine, the defendant was indicted under § 97-5-23 for sexually molesting three
children who attended his wife's day care center. Baine, 604 So. 2d at 259. The charges were
severed, and he was convicted in separate trials of touching two of the victims for lustful
purposes. Id. During one of these trials, his victim, despite being instructed not to, made
several references to what Baine had done to "us," apparently referencing the abuse suffered
by other attendees of the center. Id. at 261. The defense repeatedly approached the bench to
move for mistrial based upon the child's use of plural pronouns. Id. However, the trial court
denied the motions and refused to admonish the jury on grounds that an admonition would
simply call the jury's attention to the matter. Id. This Court affirmed, holding that the general
44
rule excluding evidence of other crimes to be inapplicable since Baine's actions toward these
other children were "integrally related in time, place, and fact to the molestation of [the instant
victim]." Id. at 262.
¶127. While acknowledging that "[t]he general rule in Mississippi is that in criminal trials,
with certain exceptions, proof of other criminal conduct by the accused is inadmissible" Id.
(quoting Darby v. State, 538 So. 2d 1168, 1173 (Miss.1989)), in Baine this Court noted,
"[p]roof of another crime is admissible where the offense charged and that offered to be proved
are so connected as to constitute one transaction." Id. The State, after all, has a legitimate
interest in telling a rational and coherent story of what happened to the victim. Id. (citing
McFee v. State, 511 So. 2d at 136). See also Neal v. State, 451 So. 2d 743, 759 (Miss. 1984)
(upholding murder conviction despite trial testimony which revealed that defendant had
contemporaneously killed or raped three other victims); Turnage v. State, 752 So. 2d 1049,
1053 (Miss. Ct. App. 1999) (affirming despite testimony that defendant molested another
child not included in the indictment because the abuse occurred simultaneously).
¶128. In the instant case, A.B. was allegedly abused in a bedroom by Dooley, King and Bates
from the early spring through the fall of 2000, and H.G. was allegedly abused in a barn by
Dooley around Christmas 2000. All of the abuse occurred at the same compound over the
course of the spring, fall and winter of 2000. All of the abuse allegedly involved Dooley. The
indictment charged Dooley with various crimes involving both minors albeit the charge
involving Dooley and H.G. was severed.
¶129. The State argues that this error is harmless considering the overwhelming evidence of
Dooley’s guilt. We agree. There was ample evidence in this case for the jury to return a
45
verdict of guilty. Further, as discussed in more detail in the following issue, the trial court
gave instruction 23, which is a limiting instruction that stated that the only purpose of the
testimony from H.G. was to aid in determining the “truth and veracity” of Dooley’s testimony
and that the jury was prohibited from using H.G.’s testimony “in arriving at your decision as
to whether or not David Earl King and Nathan Paul King are guilty” of the charged crimes.
Accordingly, the error, if any, is harmless. This issue is without merit.
II. WHETHER THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURY REGARDING 404 (B) EVIDENCE.
¶130. Here, Dooley argues that the trial court erred in failing to give an appropriate limiting
instruction regarding the testimony of H.G. and Melody Stewart. The necessity for such an
instruction when M.R.E. 404(b) evidence is admitted, informing the jury of the limited purpose
for which the evidence may be considered, has been plain in this State since this Court’s
decision in Smith v. State, 656 So. 2d 95 (Miss. 1995). In that case, this Court said that such
a limiting instruction must be given if M.R.E. 404(b) evidence is to be introduced on the
question of guilt, even if one is not requested by the defense, unless the aggrieved party
specifically requests that one not be given. Smith, 656 So. 2d at 100. Accord, Webster v.
State, 754 So. 2d 1232, 1240 (Miss. 2000). Dooley neither requested an instruction nor
asked that one not be given. Thus, it was the responsibility of the trial court to sua sponte
instruct the jury on the limited use of this evidence.
¶131. However, despite Dooley’s allegations to the contrary, the record clearly shows that
the jury was properly instructed on this point. Instruction 23 states as follows:
The Court instructs the Jury that testimony of [H.G.] and Melody Stewart
was offered for the limited purpose of determining the truth and veracity of the
46
defendant’s, Nathan Paul King, testimony. You may give this testimony such
weight and credibility as you deem proper under the circumstances for the
limited purpose of determining the truth and veracity of the defendant, Nathan
Paul King.
However, the Court further instructs the Jury that under laws of the State
of Mississippi, you are not permitted and hereby instructed not to consider any
testimony regarding and testimony of [H.G.] and Melody Stewart in arriving at
your decision as to whether or not David Earl King and Nathan Paul King are
guilty of the charges of conspiracy to commit sexual battery, sexual battery (two
counts) and contributing to the delinquency of a minor, said to have occurred on
or before the 1st day of March, 2001, for which they are presently on trial.
The instruction tells the jury (1) that the only purpose of the testimony of H.G. and Stewart was
to aid in determining the “truth and veracity” of Dooley’s testimony; and (2) that the jury was
prohibited from using the H.G. and Stewart testimony “in arriving at your decision as to
whether or not David Earl King and Nathan Paul King are guilty” of the charged crimes. The
jury is presumed to follow the instructions of the trial court. Davis v. State, 660 So. 2d at
1253; Walker v. State, 671 So. 2d at 618; Collins v. State, 594 So. 2d at 35. Thus, this
assignment lacks merit.
III. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE
JAIL NURSE, A STATE’S WITNESS, TO TESTIFY REGARDING
AN ALLEGED RELATIONSHIP BETWEEN THE DEFENDANTS,
NATHAN PAUL KING AND DAVID EARL KING, IN VIOLATION
OF MRE 404 (B).
¶132. Melody Stewart, the on-site nurse at Marion-Walthall County Detention Center in
Columbia, Mississippi, was called as a State’s witness. Stewart initially testified during the
State’s case-in-chief, outside the presence of the jury, regarding an incident where Stewart
walked into King's and Dooley’s cell and found them lying in the same bunk. She testified that
when King reluctantly stood up, he had an erection. The trial court sustained King’s objection
to this testimony.
47
¶133. However, during Dooley’s direct-examination, he testified that he had never engaged
in any sexual act with King. Thereafter, during its rebuttal case, the State recalled Stewart,
who was allowed to give the same testimony that had previously been held inadmissible. She
testified that she observed Dooley and King lying on their sides, together in the bottom bunk.
King was facing the wall, and Dooley was facing King. When Stewart entered the cell, Dooley
jumped up immediately, but King initially refused to get up, falsely claiming that another nurse
had already come by. After fumbling with his crotch area, King finally did arise, and Stewart
testified that he had a noticeable erection.
¶134. Dooley argues this evidence was improperly admitted in violation of M.R.E. 404(b).
He argues that the evidence was not probative on the charges against him and that,
consequently, it failed the M.R.E. 403 balancing test because of its highly prejudicial nature.
Dooley also points out that Stewart testified that Dooley and King were not having sex.
However, Dooley overlooks the fact that he had testified that he had never engaged in any
sexual act with King. Stewart’s testimony was probative on this point and thus a proper
subject for rebuttal, as it belied Dooley’s claim that he had never engaged in any sexual act with
King.
¶135. Moreover, as discussed in the previous assignment, the jury was properly instructed on
the use of this evidence. Accordingly, this assignment is without merit.
IV. WHETHER THE TRIAL COURT ERRED IN SEALING THE JURY
PANEL LIST IN THIS ACTION FROM DOOLEY.
¶136. In this assignment, Dooley argues that the trial court committed error by unilaterally
sealing the jury list from both him and the State without any notice or opportunity for a
48
hearing. He also asserts error in the trial court’s failure to allow a juror questionnaire and an
individual voir dire of the jury panel.
¶137. The jury panel may be sealed under specified conditions. Miss. Code Ann. § 13-5-32
(Rev. 2002) provides as follows:
The names of jurors drawn from the jury box shall be made available to
the public unless the court determines in any instance that this information in
the interest of justice should be kept confidential or its use limited in whole or
in part.
¶138. In Valentine v. State, 396 So. 2d 15, 17 (Miss. 1981), this Court expanded the
requirements of § 13-5-32 by holding that, before sealing a venire list, the trial court must give
notice and a hearing to the defendant. Valentine, 396 So. 2d at 17. Those guidelines were not
followed in the case at bar. Instead, during a pretrial hearing, the trial court announced that it
intended to seal the venire list because, “I don’t want any improper contact with any proposed
juror from anybody.”
¶139. Interestingly, the Court in Valentine did not reverse based on the trial court’s error in
sealing the venire list. Moreover, Dooley has not cited to any case in which the appellate
courts of this State have ever reversed a criminal case on these grounds, nor has he argued or
demonstrated any prejudice resulting from this error. He simply argues that “the trial judge
committed an error in sealing the members of the jury panel from the Appellant. United
States v. Clay, 159 F. Supp. 2nd 1357 (M.D. Ala. 2001).”
¶140. As previously noted, Clay is distinguishable from the case at bar.12 A substantial factor
in Clay was the potential issue for race discrimination in the construction of venire lists.
12
See Issue VIII of David Earl King, supra.
49
United States v. Clay, 159 F. Supp. 2d 1357 (M.D. Ala. 2001). The procedure at issue in Clay
was held to be a violation of the Jury Selection and Service Act.13 The trial judge’s actions here
did not create any such potential for race discrimination. Moreover, this case involves state,
not federal law. Since Clay is distinguishable from the case at bar, and Dooley has cited no
other authority, and has failed to show that sealing of the venire panel list prejudiced him in any
way, this error does not form the basis for reversal.
¶141. This assignment is without merit.
V. WHETHER THE TRIAL COURT ERRED IN GRANTING THE
STATE’S JURY INSTRUCTION NO. 21 BECAUSE THE
INSTRUCTION MISSTATED THE LAW OF AIDING AND
ABETTING.
¶142. In his fifth issue, Dooley complains that the trial court erred in overruling his objection
to Instruction Number 21, one of the aiding and abetting instructions. At trial, Dooley
objected as follows:
The defendant, Nathan Paul King, objects to Instructions 30 [sic] and 31 [sic]
regarding the aiding and abetting, there being no evidence, in the record, that
supports the granting of the instructions nor was he charged with the crime of
aiding and abetting in any of the counts of the indictment.
On appeal, he argues that “[t]he basis of the objection was the incompleteness of the law of
aiding and abetting and repetitive and disarranged nature of Instruction No. 21 in comparison
to State’s Instruction No. 20.” However, as the record shows, Dooley’s objection at trial did
not consist of the same objections he makes here. Therefore, they are not properly before this
Court. Patterson v. State, 594 So. 2d 606, 609 (Miss. 1992); Barnett v. State, 563 So. 2d
13
28 U.S.C. §§ 1863(a), 1863(b)(5).
50
1377, 1380 (Miss. 1990). Moreover, the law is clear that “an objection on one or more
specific grounds constitutes a waiver of all other grounds.” Doss v. State, 709 So. 2d 369, 378
(Miss. 1996) (quoting Conner v. State, 632 So. 2d 1239, 1255 (Miss. 1993)).
¶143. Procedural bar notwithstanding, Dooley’s objections, both at trial and here on appeal,
are without merit. Instruction Number 20 states as follows:
The Court instructs the Jury that every person who assists, aids or abets in the
commission of a crime is equally as guilty as those who actually commit the
crime. However, the Court further instructs you that before you can find a
person guilty of aiding and abetting in the commission of a crime, you must find
from the credible evidence, beyond a reasonable doubt, that such person or
persons arranged for, counseled or commanded another to commit the crime of
sexual battery. Mere presence by a person or persons at the scene of a crime or
mere association with those who commit a crime is not enough to prove
participation in it.
Instruction Number 21 states as follows:
The Court instructs the Jury that aiding and abetting involves some participation
in the criminal act and this may be evidenced by word, overt act or deed.
¶144. Our law is clear that one who aids and abets another in the commission of an offense
is guilty as a principal. Davis v. State, 586 So. 2d 817, 821 (Miss. 1991); Malone v. State, 486
So. 2d at 363-64; Shedd v. State, 228 Miss. 381, 386-87, 87 So. 2d 898, 900 (1956). Plainly,
the evidence in the record of this case shows that Dooley and King aided and abetted each other
in the commission of the crimes, and the instructions, if proper statements of the law, were
therefore properly granted. McCullum v. State, 794 So. 2d 286, 289-90 (Miss. Ct. App.
2001).
¶145. As opposed to isolating one jury instruction, jury instructions are considered as a
whole. Malone v. State, 486 So. 2d at 365. However, reversible error is present when the trial
51
court grants instructions of the State that are clearly erroneous. Duvall v. State, 634 So. 2d at
526. The United States Supreme Court has held that the failure to submit the essential
elements of a crime to the jury via proper instructions is fundamental error. Screws v. United
States, 325 U.S. 91, 107, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945). However, the instructions at
issue, read together, properly stated the law of aiding and abetting. See, e.g., Simmons v. State,
568 So. 2d 1192, 1203-04 (Miss. 1990); Davis v. State, 586 So. 2d at 821.
¶146. What renders one an “aider and abetter” is well settled. In Crawford v. State, 133 Miss.
147, 97 So. 534 (1923), this Court ruled that to aid and abet in the commission of a felony,
one must “do something that will incite, encourage, or assist the actual perpetrator in the
commission of the crime.” 133 Miss. at 151. See Malone v. State, 486 So. 2d at 363 (To “aid
and abet” means that one must “do something that will incite, encourage, or assist the
perpetrator in the commission of a crime.”); Williams v. State, 463 So. 2d at 1066 ("One who
aids and abets another is an accessory before the fact and is guilty as a principal"); Shedd v.
State, 228 Miss. at 386, 87 So.2d at 900 (Aiding and abetting involves a community of
unlawful purposes at the time of the act and some participation in the act in furtherance
thereof); Gibbs v. State, 223 Miss. 1, 6, 77 So. 2d 705, 707 (1955) (Aiding and abetting
involves participation in the criminal act).
¶147. As long as the instructions given properly instruct the jury of the elements of the crime
and are correct statements of law, then no reversal will be granted. Malone v. State, 486 So. 2d
at 365. One who aids and abets necessarily enters into an agreement that an unlawful act will
be done. He participates in the design of the felony. So when considered in this manner, the
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instruction properly advised the jury under the facts that, if it believed that Dooley and King
formed a common design and purpose to sexually assault A.B. and that in pursuance of that
common design Dooley did in fact so assault A.B., then Dooley is guilty as charged.
¶148. This assignment is without merit.
CONCLUSION
¶149. Finding no reversible error as to either King or Dooley, we affirm the circuit court's
judgment.
¶150. DAVID EARL KING: COUNT I: CONVICTION OF CONSPIRACY TO COMMIT
SEXUAL BATTERY, AND SENTENCE OF FIVE (5) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY FINE OF $5,000,
AFFIRMED. COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF
THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND PAY FINE OF $10,000, AFFIRMED. COUNT III:
CONVICTION OF CONTRIBUTING TO THE DELINQUENCY OF A MINOR AND
SENTENCE OF ONE (1) YEAR IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AND PAY FINE OF $1,000, AFFIRMED. THE
SENTENCES IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY.
NATHAN PAUL KING a/k/a DOOLEY: COUNT I: CONVICTION OF
CONSPIRACY TO COMMIT SEXUAL BATTERY, AND SENTENCE OF TWO AND
ONE-HALF (2 1/2) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AND PAY FINE OF $5,000, AFFIRMED. COUNT II:
CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FIFTEEN (15) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY
FINE OF $10,000, AFFIRMED. COUNT III: CONVICTION OF CONTRIBUTING TO
THE DELINQUENCY OF A MINOR AND SENTENCE OF ONE (1) YEAR IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND PAY FINE
OF $1,000, AFFIRMED. THE SENTENCES IMPOSED IN THIS CAUSE SHALL RUN
CONSECUTIVELY.
PITTMAN, C.J., SMITH, P.J., WALLER, COBB AND CARLSON, JJ., CONCUR.
McRAE, P.J., CONCURS IN RESULT ONLY. GRAVES, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.
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