Nunnery v. State
126 So. 3d 105
| Miss. Ct. App. | 2013Background
- Dft Twila Nunnery was tried for neglect of her adopted daughter (Count I) and touching a child for lustful purposes (Count II) based largely on testimony from the victim (Jane), Nunnery’s husband Quentin (who admitted abusing Jane and testified Nunnery participated), and a recorded police interview in which Nunnery acknowledged witnessing abuse.
- Jane (14 at trial) testified to sexual abuse by Quentin and that Nunnery demonstrated and touched her; she had limited memory of details and said she tried to block the incidents out.
- Investigator Connie Keene testified about statements Jane made during a post‑report interview; Keene’s testimony essentially duplicated Jane’s in‑court account.
- Dft attempted to call Dr. Stan Smith as an expert to opine on Nunnery’s propensity to sexually abuse (using ABEL testing); the court excluded Smith.
- Dft did not testify and presented no other evidence; the jury convicted on both counts and the court imposed consecutive terms (10 and 15 years).
- Dft appealed, raising hearsay/Confrontation Clause, Keene’s testimony, exclusion of expert testimony, testimony about Nunnery and Quentin’s premarital relationship, plain error, and cumulative error.
Issues
| Issue | Nunnery's Argument | State's Argument | Held |
|---|---|---|---|
| Admission of Keene’s testimony recounting Jane’s out‑of‑court statements (tender‑years/hearsay) | Keene’s testimony was hearsay; court should have held an 803(25) (tender‑years) hearing and made on‑the‑record findings | Jane testified at trial and Keene’s testimony did not add new substantive details; any error was harmless given other evidence | Trial court erred by not making tender‑years findings, but error was harmless (no reversal) |
| Keene’s testimony was improper, prejudicial, inflammatory | Testimony was inflammatory and unfairly prejudicial | No controlling authority cited by Dft; issue waived for failure to cite authority | Waived; issue without merit |
| Exclusion of Dr. Stan Smith (expert on sexual interest/propensity) | Smith should have been allowed to testify based on testing (ABEL) | Dft failed to cite authority supporting admission; trial court’s exclusion proper | Waived for failure to cite authority; issue without merit |
| Testimony about Quentin and Nunnery’s premarital relationship (ages, pregnancy) | Testimony was prejudicial and barred by Rules 404(b)/403 | Dft failed to contemporaneously object; issue waived | Waived for failure to object at trial; issue without merit |
| Plain error based on Confrontation Clause and leading questions | Admission of hearsay violated Confrontation Clause; State used leading questions on direct | Jane testified and was cross‑examined (no Confrontation violation); leading questions permissible to develop child’s testimony | No plain error: Confrontation Clause not implicated; leading questions allowed for child witness |
| Cumulative error | Multiple nonreversible errors combined to deny a fair trial | Only a single nonreversible error (harmless); no aggregation causing reversal | No cumulative error; conviction and sentences affirmed |
Key Cases Cited
- White v. State, 48 So.3d 454 (Miss. 2010) (abuse‑of‑discretion standard for hearsay admissibility)
- Veasley v. State, 735 So.2d 432 (Miss. 1999) (tender‑years exception: presumptions and case‑by‑case mental/emotional age determination)
- Klauk v. State, 940 So.2d 954 (Miss. Ct. App. 2006) (harmless‑error analysis when improperly admitted statements are cumulative of testimony)
- Bennett v. State, 933 So.2d 930 (Miss. 2006) (failure to cite authority waives issue on appeal)
- Rubenstein v. State, 941 So.2d 735 (Miss. 2006) (failure to make contemporaneous objection waives error)
- Eakes v. State, 665 So.2d 852 (Miss. 1995) (leading questions permitted on direct to develop testimony of child witnesses)
- Conners v. State, 92 So.3d 676 (Miss. 2012) (plain‑error standard; requires manifest miscarriage of justice)
- Starr v. State, 997 So.2d 262 (Miss. Ct. App. 2008) (plain‑error doctrine requires substantive/fundamental rights violation)
- Ross v. State, 954 So.2d 968 (Miss. 2007) (cumulative‑error doctrine: aggregation of nonreversible errors can produce reversible error)