46 So. 3d 396
Miss. Ct. App.2010Background
- Fulgham was convicted in Webster County Circuit Court of sexual battery and touching a child for lustful purposes; sentences run concurrently (20 and 10 years).
- Fulgham appeals alleging (1) sua sponte limiting instruction was not given when admitting a transcript of a recorded conversation and (2) cross-examination was improperly curtailed by limiting questions to the victim’s mother.
- At trial, the State introduced an audiotape and an accompanying transcript of a June 2009 telephone conversation; Fulgham objected to both.
- Fulgham did not request a limiting instruction; the transcript was the subject of cross-examination, and the court corrected a transcript error to Fulgham’s satisfaction.
- The trial record showed the victim was fourteen at the time of the incident in December 2008; mother testified about later conversations and a recording was played for the jury.
- The circuit court convicted Fulgham on both counts and sentenced him; on appeal, the Mississippi Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Limiting instruction on transcript use | Fulgham argues trial court erred by not giving sua sponte limiting instruction. | State contends no error because Fulgham failed to request such instruction and no prejudice shown. | No reversible error; failure to request limits preserved; transcript admissible. |
| Cross-examination of the victim’s mother | Fulgham contends government prevented relevant testimony about prior tendencies. | State asserts no proffer, thus issue not preserved for review. | Waived; no preserved proffer; judgment affirmed. |
Key Cases Cited
- Coleman v. State, 697 So. 2d 777 (Miss.1997) (tape primary evidence and transcript for convenience; need limiting instruction if requested)
- Dye v. State, 498 So.2d 343 (Miss.1986) (tape primary evidence; transcript used for convenience with limiting instruction)
- Denson v. State, 858 So.2d 209 (Miss.Ct.App.2003) (permitted use of transcript where court instructed tape is primary evidence)
- Onori v. United States, 535 F.2d 938 (5th Cir.1976) (methods for handling contested transcripts; defendant may request limiting instruction)
- Brown v. State, 890 So.2d 901 (Miss.2004) (burden to request limiting instruction rests with trial counsel)