Eakes v. StateEakes v. State
This criminal appeal arises from Ricky G. Eakes’ conviction, in the Circuit Court of Kemper County, of two counts of sexual battery and one count of attempted sexual battery.1
For the first count of sexual battery, Eakes was sentenced to twenty years, charged with a fine of $10,000.00, and court costs of $165.00. The sentence imposed for the second count of sexual battery was twenty years in Mississippi Department of Corrections (MDOC), to run consecutively to count I. A third twenty-year sentence, to run concurrently with counts I and II, were imposed for the attempted sexual battery conviction. Eakes was also ordered to receive sex abuse counseling from the Department of Corrections. Eakes’ motion for Judgment Notwithstanding the Verdict (JNOV) or for new trial was overruled. Eakes subsequently appealed to this Court, requesting review of the following issues:2
A. Whether the trial court erred by failing to dismiss the indictment;
B. Whether the trial court erred in allowing a multi-count indictment;
C. Whether the State violated Rule 4.06;
D. Whether the trial court erred in refusing to grant Appellant a one-week continuance;
E. Whether the trial court erred in denying Appellant‘s discovery motion;
F. Whether the trial court erred in denying individual and/or sequestered voir dire;
G. Whether the trial court erred by admitting hearsay testimony;
H. Whether the trial court erred by admitting evidenсe of prior bad acts, of Appellant‘s character, and by admitting irrelevant, prejudicial, and inflammatory testimony;
I. Whether the trial court erred in allowing the testimony of three children;
J. Whether the trial court erred by allowing the State to lead the child witnesses;
K. Whether the trial court erred by excluding relevant evidence offered by Appellant;
L. Whether the trial court erred by granting instructions S-1, S-3, and S-4 and by denying instructions D-10 and D-8;
M. Whether the trial court erred in denying Appellant‘s motion for JNOV or for new trial;
N. Whether the verdict is against the overwhelming weight of the evidence;
O. Whether Appellant suffered ineffective assistance of counsel; P. Whether the trial court erred in the determination of Appellant‘s sentence;
Q. Whether the trial court erred in its determination of the attorney fee approved for Appellant‘s trial counsel;
R. Whether, despite the lack of objections at trial, the record reflects plain error regarding admission of hearsay, admission of prior bad acts, and admission of prejudicial and irrelevant testimony; and
S. Whether Appellant was denied a fair trial by the accumulation of errors.
II. STATEMENT OF THE FACTS
Lewis Myers had three children: a son, Shawn, aged twelve, and two daughters, April, aged nine, and June, aged seven at the time of trial.3 On May 11, 1991, the three children spent the night at the home of Ricky Eakes, who was a friend of their father, Lewis Myers. The testimony introduced at trial established that during that night, Ricky Eakes came into their bedroom, sat on the bed and put his hand inside Aрril‘s panties. When she told him to stop, he did. Later that night, Eakes came back and got into the bed with April and June. He placed his hands on April‘s breasts, between her legs, and inserted his penis into her rectum. April in her own terms described anal and digital penetration, attempted anal penetration and attempted cunnilingus by Eakes.
April eventually told Shawn of this activity, who in turn told their stepmother, Marianne.4 Lewis and Marianne took April for a medical examination. A physical exam revealed that April had no tears, bruising, or lacerations in her vagina or rectum, no loss of sphincter tone in the rectum5, and her hymen was intact. However, the child tested positive for chlamydia in her vagina, gonorrhea of the anus, and for gonorrhea and chlamydia in her mouth. Both gonorrhea and chlamydia are transmitted either by ejaculation or by vaginal discharge. Following treatment with antibiotics, repeat testing by the health department two weeks later showed April to be free of gonorrhea and chlamydia. April again tested negative for any sexually transmitted diseases in February 1992.
Lewis Myers reported the incident to Deputy Sheriff Mike McKee, who in turn asked for an investigation by Linda Palmer, a social worker with the Department of Human Services (DHS). Upon investigation, Palmer learned of a similar incident between Eakes and April in December 1990 and in March 1991. Shawn and June corroborated April‘s testimony of these actions, but not on all of the dates.
About one week after thе complaint against Eakes, the Myers’ house burned and the Myers family moved in with the three children‘s grandmother, Mrs. Linda M. Greer and her son, Tom Greer. Shortly thereafter, Palmer learned that Shawn and June were also infected with venereal disease. June told Palmer that Eakes had put his hands around her throat as if to choke her and his finger down her throat.6
After Eakes was arrested, the Myers children told conflicting stories. April accused her uncle, Tom Greer, of sexually abusing her. However, when testifying before the grand jury, April recanted this accusation against Todd, stating that Eakes suggested this action. Shawn also accused Tom Greer of sexually abusing him, but also recanted his story before the grand jury, asserting that
Ricky Eakes, with his mother, denied his presence in the home on the night of December 1990, when the incident was alleged to have occurred. He testified that he was in Arkansas. Further, he denied any sexual actions toward any of the Myers children or any suggestions that they falsely accused their Uncle Tom of misconduct. He asserted a dispute with Lewis Myers over a relationship with another woman.
The sheriff obtained a blood test from Eakes under court order, but Eakes refused additional tests for chlamydia or gonorrhea. The sheriff did not force Eakes to provide the tests despite the fact a warrant had been issued for the same.
An inmate at the jail with Eakes testified that Eakes stated to him that he was not worried because he and his girlfriend had “got checked, and he had took a shot.” Two of his girlfriends denied having had venereal diseases.
III. THE LAW
A. Whether the trial court erred by failing to dismiss the indictment.
1. The Parties’ Contentions
Eakes contends the indictment is defective because it fails to specify the dates and locations that the alleged offenses occurred, fails to specify statute, fails to allege an overt act or frustration of purpose as to the attempt charge, fails to set forth the facts necessary to establish the offenses. As a result of these defects, Eakes claims he was not apprised of the nature of the charges against him, and he may be subject to double jeopardy in the future. Eakes further claims the trial court erred by allowing a substantive mid-trial amendment of the indictment from sexual battery to attempted sexual battery, forcing Eakes to suddenly defend against new elements and issues.
The State counters that a specific date in a child abuse case is not necessary and that the sexual battery statutory language was tracked in the instant indictment. Further, the indictment indeed alleged an overt act, to wit: “placing his penis into her anal cavity.” Regarding frustration of purpose, the State claims this was an element of proof for the State at trial rather than an element which was required in the indictment. The State also takes issue with Eakes’ double jeopardy argument, claiming that the indictment was sufficiently specific to prevent future charges of sexual battery on the same child within the same dates. The State argues that the amendment of the indictment from sexual battery to attempted sexual battery, in conformity with the evidence presented at trial, was one of form rather than of substance. Regardless of any amendment to the indictment, the State contends Eakes could have been convicted of attempt as a lesser included offense.
2. Analysis
The indictment charged Eakes with four counts of sexual battery against April Myers. Following April‘s trial testimony, which established one completed digital-vaginal penetration, one completed penile-anal penetration, one attempted penile-anal penetration, and two attempts at cunnilingus, the defense moved for a dismissal of counts three and four. The State responded with a motion to amend the indictment by reducing counts three and four to fondling. The trial court declined to allow this substantive amendment of the indictment, granted Eakes’ motion to drop count three, and allowed the State to amend the fourth count to attempted sexual battery. Eakes claims this amendment is one of substance rather than of form.
An indictment may only be amended at trial if the amendment is immaterial to the merits of the case and the defense will not be prejudiced by the amendment. Griffin v. State, 584 So.2d 1274, 1276 (Miss. 1991). However, amendments as to the substance of the charge must be made by the grand jury. The test for whether an amendment to the indictment will prejudice the defense is whether the defense as it originally stood would be equally available after the amendment
“An attempt to commit a crime is, as a general rule, an indictable offense, which is separate and distinct from the crime itself.” Mason v. State, 430 So.2d 857, 858 (Miss. 1983) (citing
Eakes also contends that the indictment was defective because it did not set forth specific dates. If an indictment includes the seven enumerated items provided in Unif.Crim.R.Cir.Ct.Prac. 2.05, it is sufficient to provide the defendant with notice of the charge against him. Roberson v. State, 595 So.2d 1310, 1318 (Miss. 1992). Rule 2.05 says the indictment must be “a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation against him.” See also Smallwood v. State, 584 So.2d 733, 738 (Miss. 1991) (indictment legally sufficient if it gives accused fair notice of offense with which he is charged).
While Rule 2.05 sets forth the requirement of the date the offense occurred, it also states that “[f]ailure to state the correct date shall not render the indictment insufficient.” In Morris v. State, 595 So.2d 840, 842 (Miss. 1991), this Court found that a specific date in a child sexual abuse case is not required so long as the defendant is “fully and fairly advised of the charge against him.” The abuse in Morris allegedly occurred continuously over a period of years.
Eakes’ indictment alleges his crimes of sexual penetration against April Myers occurred “on, about or between” December 1, 1990 and December 24, 1990; February 1, 1991 and April 30, 1991; and “on or about” May 11 and 12, 1991. At trial April was more specific, claiming Eakes had abused her on December 26, 1990, January 26, 1991, and March 16, 1991. She also provided particular reasons and/or events which caused her to be at Eakes’ home on these dates. The dates testified to are close to the dates charged in the indictment. Given that Eakes was fully and fairly advised of the charges against him, the lack of specific dates in the indictment is not fatal.
While Eakes claims the indictment lacks the specific location the abuse occurred and the reference to the statute violated, the indictment clearly states that the violations occurred in Kemper County and cites
B. Whether the trial court erred in allowing a multi-count indictment.
1. The Parties’ Contentions
Eakes claims the multi-count indictment is improper because the alleged offenses are not based on two or more connected acts or transactions, and are not separate parts of a common scheme or plan. Instead, the time period between the offenses should have mandated severance of the counts for trial. The trial court‘s failure to follow the proper procedure upon request for severance is, according to Eakes, cause for reversal.
The State answers that the multi-count indictment was proper because the incidents were connected by the identity of victim and identity of the act committed. Moreover, the trial judge followed the procedure recommended
2. Analysis
When a multi-count indictment has been returned and the defendant requests severance, a hearing should be held on the issue. Corley v. State, 584 So.2d 769, 772 (Miss. 1991). The State bears the burden of a prima facie showing that the offenses are within the language of
Eakes was heard on the severance issue pre-trial. First, the defense claimed that separate events over a wide number of days could not be combined in a multi-count indictment, citing McCarty v. State, 554 So.2d 909 (Miss. 1989). The State cited Allman v. State, 571 So.2d 244 (Miss. 1990) in support of a finding that the offenses with which Eakes was charged were within the language of
This Court subsequently explained that transactions involving the same victim and the same kind of act committed by the same defendant are connected, for purposes of
The transactions upon which Eakes’ offenses are based occurred over a period of five months. This time period is insignificant, given that nine months was insignificant in Allman. The transactions in the case sub judice involve the same victim and the
Section 99-7-2 furthеr provides that multiple offenses properly charged in a single indictment are properly tried in a single trial.
C. Whether the State violated Rule 4.06.
D. Whether the trial court erred in refusing to grant Appellant a one week continuance.
1. The Parties’ Contentions
Eakes claims the State failed to use due diligence in discovery and disclosure of witness statements, expert reports, and other exculpatory materials. More specifically, Eakes finds fault in the State‘s late disclosure of his blood test results, results of any tests performed on a bedspread taken from the home of Ricky‘s mother, allegedly upon which April said her blood was located, a search warrant for tissue samples from Eakes, and DHS records compiled by Linda Palmer regarding the Myers children.
The State contends that: no blood or tissue tests were run; therefore, there were no results to disclose to the defense; no tests were run on the bedspread; therefore, there were no results to disclose to the defense; the bedspread was handed over to the defense at the time it was requested; the prosecution did not plan to use the bedspread at trial and informed both the defense and the trial judge of their decision. Therefore, failure to provide the defense the bedspread until the defendant asked for it was a technical violation with no resulting prejudice.
Eakes complains that the trial judge refused to agree to a one week continuance of the trial to allow Eakes to examine (DHS) records not tendered until just prior to trial. Eakes claims the continuance would have put the trial at the second week of the court term, which the trial judge had no ability to pretermit by holding court in other counties in the district.
Eakes announced he was ready for trial, proceeded through voir dire, and questioned two witnesses before he renewed his motion, which was precipitated by Eakes’ need to study the welfare records of the Myers children. According to the State, Eakes was at fault because he had failed to request these records until four days prior to trial. Moreover, the State claims Eakes suffered no prejudice from denial of his motion.
2. Analysis
1. Box v. State, 437 So.2d 19 (Miss. 1983) (Robertson, J., specially concurring), first set forth the procedure trial courts should follow when confronted with a discovery violation. Miss.Unif.Crim. R.Cir.Ct.Prac. 4.06 now reflects the Box procedure. When faced with previously undisclosed evidence to which the defendant has objected, the trial court should give the defendant a reasonable opportunity to familiarize himself with the evidence. If the defendant thereafter believes he may be prejudiced by admission of the evidence because of his lack of opportunity to prepare to meet it, he must request a continuance. Should the defendant fail to request a continuance, he has waived the issue. If he indeed requests a continuance, the State may opt to proceed without the undisclosed evidence, else the trial court must grant the continuance. Cole v. State, 525 So.2d 365, 368 (Miss. 1987), cert. denied, 488 U.S. 934, 109 S.Ct. 330, 102 L.Ed.2d 348 (1988).
The chancellor‘s order authorizing disclosure of the youth court records was not
While the prosecuting attorney could have obtained the youth court records via a youth court order,12 that was not done in this case because the district attorney did not feel these records were necessary for trial. The prosecution had a report from Linda Palmer, lab results from tests on April, and copies of reports from the testing lab, all of which were furnished to Eakes during discovery. The prosecution had also provided the defense with a list оf witnesses and copies of April‘s statements.
Eakes did have the records at issue from the time the trial began to the time he filed his appeal. Still, Eakes has yet to assert any particulars regarding how he was prejudiced or what he would have done differently had he been provided the records any earlier.13 This Court finds that Eakes’ delay in requesting a continuance until after the trial had begun, in combination with his failure to affirmatively show any prejudice, waives any error and prevents reversal.
E. Whether the trial court erred in denying Appellant‘s discovery motion.
1. The Parties’ Contentions
Eakes claims he was denied access to the three child witnesses and April‘s doctor because the children were in the custody of the county human services department. The State contends the trial court was correct in finding that it had no authority to issue the order requested by Eakes because a witness may refuse to discuss his testimony with defense counsel prior to trial.
2. Analysis
When the pre-trial motions were heard, Eakes requested that the trial court issue an order instructing the Myers children to talk to defense counsel. The trial court noted that Eakes knew the children were in custody of DHS and that he knew which social worker was assigned to the case; therefore, defense counsel could certainly attempt to contact and question the children. However, the trial court stated that the legal guardian or custodian (DHS) could deny the request and the court could not order witnesses to confer with counsel prior to trial. Eakes also requested that the court order April‘s physician to talk to defense counsel and provide April‘s medical records. The State had not seen the child‘s medical records and did not intend to use them at trial. Nonetheless, the trial judge concluded that April‘s venereal disease would be an issue at trial; therefore, he ordered that the medical records be obtained and furnished to the court for inspection. The trial court would then review the records and furnish anything of relevance to defense counsel. Eakes still wanted an order requiring that the doctor talk to him; the trial court refused, stating there was no authority for such an order. The trial court also ordered the State to provide the defense with any statements relevant to this case made by April to the treating physician.
While it is true that the defense cannot be denied access to prospective witnesses, Lacy v. State, 629 So.2d 591, 593 (Miss. 1993), the circuit court clearly lacks authority to require a witness to talk to defense counsel prior to trial. Tolbert v. State, 511 So.2d 1368, 1378 (Miss. 1987); Boches v. State, 506 So.2d 254, 261 (Miss. 1987). The trial judge in the instant case correctly determined that he lacked the authority to issue the orders requested by Eakes. There is no merit to this issue.
F. Whether the trial court erred in denying individual and/or sequestered voir dire.
1. The Parties’ Contentions
Eakes claims the trial court should have allowed individual, sequestered voir dire of the venire due to the intimate nature of the questions asked regarding whether any member of the venire had been either victim оr perpetrator of sexual abuse. The State responds that the trial court followed Uniform Criminal Rule of Circuit Court Practice 5.02 and the procedure approved by this Court in Russell v. State, 607 So.2d 1107 (Miss. 1992).
2. Analysis
Pre-trial, Eakes requested individual sequestered voir dire, due to the nature of the case and the sensitive questions which might be asked on voir dire. The trial court denied the motion, but noted that individual voir dire for further exploration would be allowed if an individual juror responded to a question put to the entire panel.
Unif.Crim.R.Cir.Ct.Prac. 5.02 governs the procedure for conducting voir dire. Russell v. State, 607 So.2d 1107, 1110 (Miss. 1992). The Rule allows for individual examination of venire members “only when proper to inquire as to answers given or for other good cause allowed by the court.” Unif.Crim. R.Cir.Ct.Prac. 5.02. Pursuant to this Rule, questions during voir dire will generally be propounded to the entire venire. Russell, 607 So.2d at 1110 (citing Billiot v. State, 454 So.2d 445, 456 (Miss. 1984)). The trial court, in the case sub judice, followed Rule 5.02. Additionally, there is neither a showing nor an allegation that the jury was not fair and impartial. There is no error here.
G. Whether the trial court erred by admitting hearsay testimony.
1. The Parties’ Contentions
Eakes complains of the trial court‘s admission of hearsay from Deputy Mike McKee, Dr. Alice Lorenzana, a doctor specializing in pediatrics, who initially examined April, and Linda Palmer, a Department of Human Services social worker. While Eakes admits the trial court conducted the hearing mandated by
The State counters that Palmer‘s testimony was properly admitted pursuant to
2. Analysis
Linda Palmer testified that April, Shawn, and June had identified Eakes as the perpetrator of this crime. When Palmer first began to repeat what April had told her, Eakes objected to the hearsay. The State argued such testimony was admissible pursuant to
[a] statement made by a child of tender years describing any act of sexual contact performed with or on the child by another ... 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) thе 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.
Pursuant to this Rule, the trial court conducted a hearing outside the presence of the jury and quoted the requirements of
Palmer then testified to what April had told her about the incidents with Eakes and to April‘s and Shawn‘s allegations against Tom and their recanting of these allegations. On cross-examination, Eakes raised the question of June and Shawn having venereal disease and asked Palmer if she knew the source of that disease, which she did not. On redirect, the State continued on this path and asked Palmer what June had said Eakes did to her. Although Eakes objected, the trial court determined that since Eakes had opened the door, the State could pursue this line of questioning. Eakes then objected as to hearsay, which objection was overruled on the basis of
“The `substantial indicia of reliability’ required by
The trial judge conducted a hearing outside the presence of the jury, as required by
Deputy McKee testified that the Myers children claimed “Ricky” was April‘s abuser. Eakes objected to hearsay and the objection was sustained. The court did not instruct the jury to disregard, nor did Eakes request such an instruction. However, at this point in the trial, the Myers children had already testified and been cross-examined. McKee‘s hearsay testimony was, at most, cumulative and did not serve to further prejudice Eakes.
Dr. Lorenzana likewise testified that April, while providing a medical history,16 said she had been sexually abused and named “Ricky” as her abuser. Eakes objected to hearsay, but the objection was overruled and the testimony was allowed pursuant to
[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness.
This Rule allows statements identifying the perpetrator in child abuse cases. Doe, 644 So.2d at 1205 (citing Jones v. State, 606 So.2d 1051, 1056 (Miss. 1992) and Mitchell v. State, 539 So.2d 1366 (Miss. 1989)). A dual-pronged test must be met prior to admission of evidence pursuant to
Applying, the two-part test which must be met prior to a finding of admissibility, it is first noted that the motive behind informing a treating physician that one has been sexually abused is consistent with the purposes of promoting treatment. The doctor cannot begin to treat the patient without knowing the patient‘s complaint. Surely prevention of further abuse is part of the treatment of sexual abuse; therefore, the motive behind identifying the perpetrator is also consistent with the purposes of promoting treatment. Given the premise underlying the “medical history/diagnosis” exception to the hearsay rule, i.e., that patients do not lie to their doctors when requesting treatment, a statement
In Doe, this Court expanded Jones, supra, to allow a finding that the identity of the child‘s sexual abuser was pertinent to treatment, therefore reasonably relied upon by the treating physician, although the perpetrator was not a member of the child‘s household. Since the alleged perpetrator in Doe was the child‘s father, whose visitation rights were at issue, this Court reasoned that prevention of further abuse was an immediate concern. Doe, 644 So.2d at 1206. It follows that prevention of further abuse will always be an immediate concern, whether the perpetrator has daily, weekly, or only sporadic opportunity to abuse a child.
There is no logical reason to find that a statement identifying the perpetrator is sufficiently pertinent to treatment and reliable if the perpetrator is someone who has regularly scheduled contact with the child but not if the perpetrator is, instead, a family friend, an acquaintance, or a stranger. The statement regarding April‘s identification of Eakes as her abuser, although he was not a member of April‘s household or someone who had regular contact with the child, was properly admitted pursuant to
In the instant case, the trial court did not make any on-the-record findings regarding the prerequisites to admission pursuant to
H. Whether the trial court erred by admitting evidence of prior bad acts, of Appellant‘s character, and by admitting irrelevant, prejudicial, and inflammatory testimony.
1. The Parties’ Contentions
Eakes complains of the trial court‘s admission of testimony by Linda Palmer, Cleveland Earl Wrencher and Kim Scarbrough.
2. Analysis
a. Linda Palmer‘s Testimony
According to Eakes, Palmer‘s testimony regarding June Myers was unduly prejudicial pursuant to
Eakes also complains of Palmer‘s testimony regarding statements made by June Myers to the effect that the child was afraid of Eakes and that Eakes had stuck his fingers down her throat. Also specified by Eakes as inadmissible is Palmer‘s telling of June‘s reaction to the anatomically-correct dolls. This subject, too, was first introduced by Eakes. When cross-examining June, he asked whether she had ever told Palmer that Eakes had done anything to her (June).17 When June said she had, Eakes asked if it was true. June admitted it was not. Eakes’ attack of June‘s credibility opened the door for the State to further explore the matter on redirect. Crenshaw v. State, 520 So.2d 131, 133 (Miss. 1988).
Eakes claims Wrencher‘s and Scarbrough‘s testimony should have been excluded pursuant to
b. Kimberly Scarbrough‘s Testimony
Kimberly Scarbrough testified that Eakes had exposed himself to her and her daughter. Eakes lodged no objection and thoroughly cross-examined the witness. The State first notes Eakes’ lack of objection at trial, then submits that this testimony was proper rebuttal; therefore, no finding of prejudicial value versus probative value was necessary. The State says it did nothing more than enter the door opened by Eakes.
Although Eakes was slow to object when the State questioned him about any perversions during cross-examination, he did eventually object. The trial court sustained the objection and instructed the jury to disregard this line of questioning. When the prosecutor suggested that he might be allowed to call the witness Scarbrough to rebut Eakes’ denial of perversion, the court observed that it would be permissible in light of the delayed objection. Eakes made no objection to the prosecution‘s suggestion or the court‘s indication of acquiescence. That is, not only did Eakes not object when Scarbrough was called but he failed to object when the prosecutor first broached the subject of her being called or to note any exception whatever to the court‘s indication that it would be admissible. Any error was waived by Eakes’ failure to object to Scarbrough‘s testimony. Robinson v. State, 585 So.2d 735, 737 (Miss. 1991);
c. Cleveland Earl Wrencher‘s Testimony
On direct examination, Eakes said he had never had a venereal disease and had never been treated for such a disease. He also presented testimony from two women with whom he had been sexually intimate, Sharon Spears and Tammy Herring, to the effect that they had not been infected with venereal disease as a result of their sexual relations with Eakes. In rebuttal, the State offered testimony of Cleveland Earl Wrencher. Wrencher testified that Eakes had said, while in jail, that he wasn‘t worried about the charges pending against him because he and his girlfriend had been checked, and he had received an injection. Eakes’ objections on the grounds of hearsay and relevancy were overruled. The State claims Wrencher‘s testimony was properly allowed pursuant to
Instead, the situation is more akin to that presented in Pinkney v. State, 538 So.2d 329 (Miss. 1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), and Lewis v. State, 580 So.2d 1279 (Miss. 1991). In Pinkney, the defendant claimed he had confessed only because a deputy held a gun to his head. Another officer testified that he had never seen that deputy carry a gun. This Court held that the second officer‘s testimony was a statement of fact, rather than reputation or character evidence. Pinkney, 538 So.2d at 348. In Lewis, the defendant faced charges of aggravated assault with a gun. Lewis claimed he had acted in self-defense, taking the gun from the victim who was the initial aggressor. He further testified that he had not had a gun in his possession on the night
Applying the reasoning of Pinkney and Lewis to the instant case, whether Eakes had been infected with venereal disease was relevant to the merits of the case. Eakes sought to prove he had never had venereal disease; and, therefore, could not have given it to April, nor had he likely had sexual contact with April, else he would have bеcome infected. Wrencher‘s testimony; therefore, constitutes a statement of fact relevant to the merits of the case. Wrencher‘s testimony was properly admitted.
I. Whether the trial court erred in allowing the testimony of the three Myers children.
1. The Parties’ Contentions
Eakes claims June Myers could not understand the questions asked, could not frame answers, and was not sufficiently responsible to tell the truth. The State responds that
2. Analysis
Eakes claims the children were incompetent to testify because of the inconsistencies between their early accusations against Tom Greer and their subsequent retractions of these allegations. This is insufficient to find a person incompetent to testify. June, the only one of the children whose competency as a witness was questioned by Eakes at trial, was examined through witness voir dire by the circuit clerk at the trial court‘s direction, by the district attorney, and by the trial judge prior to offering any testimony. She indicated that she understood what it meant to tell the truth and promised to tell the truth in court. The trial court found her competent to be a witness. Pursuant to
J. Whether the trial court erred by allowing the State to lead the child witnesses.
1. The Parties’ Contentions
Eakes contends the trial court erred in allowing the State to lead the three child witnesses on cogent points. The State claims this Court has sanctioned the leading of child witnesses in order to develop a complete and coherent accounting of events.
2. Analysis
K. Whether the trial court erred by excluding relevant evidence offered by Appellant.
1. The Parties’ Contentions
Eakes contends that the Myers children‘s testimony regarding their alleged sexual relationships with Tom Greer and the existence and source of their venereal diseases should have been allowed pursuant to
The State answers, regarding the Myers children‘s alleged sexual relationships with Tom Greer and the existence and source of their venereal diseases, that Eakes did not follow the procedure required by
2. Analysis
Although any sexual relationships between Shawn and Tom or June and Tom were nоt relevant to the charges for which Eakes was on trial, such evidence was presented, at least as to Shawn. Evidence admissible pursuant to
Eakes attempted to show that April named Eakes as her abuser because she thought he was responsible for the fire which burned the Myers’ house. However, the record reveals that the Myers’ house burned after Eakes had been arrested as a result of April‘s accusations. Nonetheless, Eakes was allowed to ask April on cross if she had been told that he burned the house; she denied having been told Eakes was responsible for the fire. Additional testimony from Margie Eakes regarding the burning of the Myers’ house was inadmissible because irrelevant. There is no error here.
Eakes was not allowed to present Debbie Quick‘s testimony that she had lived with Eakes while he was married to her mother and he had never abused her. Again, the trial court properly sustained the State‘s relevancy objection and did not err in refusing to allow this testimony.
L. Whether the trial court erred by granting instructions S-1, S-3, and S-4 and by denying instruction D-10.
1. The Parties’ Contentions
Eakes contends instructions S-1, S-3, and S-4 did not fully and correctly state the law, were confusing and misleading, were inadequate, or charged the jury on specifics missing from the indictment. Particularly, Eakes claims S-1 does not completely state the elements of either sexual battery or attempt and does not track the statute. Of S-3, Eakes complains that it is peremptory. S-4, according to Eakes, served only to confuse
The State claims the instructions given, when read together, adequately and accurately instructed the jury on the law of this case.
2. Analysis
The specific instructions in question are located in Appendix 1. The law on sexual battery is clear. The elements of sexual battery are sexual penetration of a child under the age of fourteen years.
Attempted sexual battery requires a design and endeavor to sexually penetrate a child under the age of fourteen years, an overt act toward commission of the offense, and failure or prevention of completion.
This Court does not review jury instructions in isolation. Malone v. State, 486 So.2d 360, 365 (Miss. 1986). All instructions are to be read together and if the jury is fully and fairly charged by other instructions, the refusal of any similar instruction does not constitute reversible error. Lee v. State, 529 So.2d 181, 183 (Miss. 1988). Refusal of a repetitive instruction is proper. Allman v. State, 571 So.2d 244, 252 (Miss. 1990). Although Eakes’ proffered D-10 would also have properly charged the jury on the elements of attempted sexual battery, there was no error in failing to give this cumulative instruction.
Despite Eakes’ contention to the contrary, Instruction S-3 is not peremptory. This instruction merely defines “sexual penetration” as it applied in this case. And while Eakes did not raise consent as a defense, submission of Instruction S-4, regarding the impossibility of consent of a child younger than fourteen years, was not error.
M. Whether the trial court erred in denying Appellant‘s peremptory instruction, motion for JNOV, or for new trial.
N. Whether the verdict is against the overwhelming weight of the evidence.
1. The Parties’ Contentions
Eakes claims that his peremptory instruction, D-8, should have been granted because the evidence, even viewed most favorably to the State, shows only that the three child witnesses had venereal diseases, that all three were “confirmеd liars,” and that Eakes and his “sex partner” had no venereal diseases. For these same reasons, Eakes contends failure to grant either JNOV or new trial is reversible error. In sum, Eakes argues that the evidence presented does not support a guilty verdict. The State contends the evidence presented at trial is sufficient to support the verdict and no reasonable juror could have found Eakes not guilty.
Eakes contends the verdict is against the overwhelming weight of the evidence because the State‘s “star witness was an admitted liar who gave at least three differing versions of the events allegedly involving Ricky [Eakes].” Only because “[t]he jury was swayed by the sordid accounts from the children” was Eakes convicted, according to him. Again, the State claims the evidence is sufficient to support the guilty verdict and no reasonable juror could have found Eakes not guilty.
2. Analysis
Eakes’ peremptory instruction, motion for JNOV, and motion for new trial
“The standard of review of a post-trial motion is abuse of discretion.” Flowers v. State, 601 So.2d 828, 833 (Miss. 1992) (citing Robinson v. State, 566 So.2d 1240, 1242 (Miss. 1990)). This Court will order a new trial only when it is convinced that the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. McNeal v. State, 617 So.2d 999, 1009 (Miss. 1993); Burrell v. State, 613 So.2d 1186, 1191 (Miss. 1993).
In determining whether a jury verdict is against the overwhelming weight of the evidence, just as when determining whether a peremptory instruction is proper, this Court accepts as true all evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Allred v. State, 605 So.2d 758, 760 (Miss. 1992); Nicolaou v. State, 612 So.2d 1080, 1083 (Miss. 1992). Factual disputes are properly resolved by the jury and do not mandate a new trial. McNeal, 617 So.2d at 1009.
April testified that Eakes had sexually abused her on three occasions and described anal and digital penetration, attempted anal penetration, and attempted cunnilingus. She further testified that Eakes had threatened to harm other members of her family if she told anyone about the abuse. June, Shawn, Palmer, and McKee substantially corroborated April‘s testimony. Dr. Lorenzana testified that April had, just after the last incident complained of, been treated for gonorrhea and chlamydia in her mouth, chlamydia in her vagina, and gonorrhea in her anus. Any questions regarding weight and worth of witness testimony or witness credibility were for the jury to resolve. No unconsciоnable injustice is sanctioned by allowing the jury verdict to stand; the evidence does not lead to the conclusion that no reasonable jury could have found Eakes guilty. Nothing here warrants reversal by this Court.
O. Whether Appellant suffered ineffective assistance of counsel.
1. The Parties’ Contentions
Eakes, who is represented on appeal by the same lawyer who defended him at trial, claims he suffered ineffective assistance of counsel because his attorney failed to make objections, did not make a fifteen-day motion under
The State claims Eakes suffered no prejudice because his attorney failed to file his fifteen-day motion pursuant to
2. Analysis
To successfully claim ineffective assistance of counsel the defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and adopted by this Court. Knight v. State, 577 So.2d 392, 394 (Miss. 1991). This test requires a showing of (1) deficiency of counsel‘s performance (2) sufficient to constitute prejudice to the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss. 1990). The burden to demonstrate both prongs is on the defendant who faces a strong but rebuttable
The record is replete with objections lodged by defense counsel, yet he now claims failure to object but provides no specifics. Consequently, he has failed to meet the burden of demonstrating either prong of the Strickland test.
Admittedly, counsel‘s failure to make a fifteen-day motion pursuant to
Even if counsel‘s decision to refrain from making an opening statement is deemed deficient performance rather than trial strategy, no effort is made to show how this “deficiency” prejudiced Eakes. Again, Eakes fails to meet the burden of demonstrating both prongs of the Strickland test.
Regarding the failure to offer an instruction on the theory of the defense and his inadequacy in jury selection, counsel offers only “[n]o instruction as to the theory of defense was made” and counsel “did not handle jury selection well.” Not only is neither prong of Strickland met, but counsel has not attempted to rebut the presumption that his pеrformance falls within the broad spectrum of reasonable professional assistance. McQuarter, 574 So.2d at 687. There is no error here.
P. Whether the trial court erred in the determination of Appellant‘s sentence.
1. The Parties’ Contentions
Eakes contends the trial judge considered irrelevant matter and unreliable hearsay and relied on same in setting Eakes’ sentence. Specifically, Eakes points to Garth Tindle‘s testimony regarding Eakes’ illegal conduct, immoral acts, and child abuse and the medical conditions of the three Myers children. The State notes that Eakes’ sentences are within statutory limits and claims the trial court merely relied upon evidence presented at trial in its determination.
2. Analysis
In Corley v. State, 536 So.2d 1314, 1319 (Miss. 1988), the appellant, Corley, claimed the trial court had, in sentencing, impermissibly considered improper comments by the prosecutor and a collateral criminal charge pending against Corley. This Court stated: “It is well settled in this State that the imposition of sentence in a criminal proceeding is within the sole discretion of the trial judge, and that this Court will not reverse a sentence where it is within the limits prescribed by statute.” Corley, 536 So.2d at 1319.
The maximum penalty for sexual battery, first offense, is thirty years.
Q. Whether the trial court erred in its determination of the attorney fee approved for Appellant‘s trial counsel.
1. The Parties’ Contentions
Eakes contends that the trial judge erred in providing his defense counsel only $15.00 per hour above the statutory $1,000.00. Since no proof was presented regarding actual costs, Eakes claims the trial judge should have employed the presumption that the actual costs were $25.00 per hour. The State
2. Analysis
Following trial and sentencing, a fee hearing was held. Defense counsel was allowed the $1,000.00 statutory maximum for non-capital cases and a $15.00 per hour allowance for overhead for 139 1/2 hours. The $15.00 per hour amount was reached by the trial judge after counsel‘s monthly overhead expenses were presented. The trial court noted that counsel‘s actual overhead expenses were less than $10,000.00 a year while the $25.00 per hour figure provided in Wilson v. State, 574 So.2d 1338 (Miss. 1990) and Pruett v. State, 574 So.2d 1342 (Miss. 1990) was based on annual overhead expenses of $52,000.00. The court concluded that the presumption of $25.00 per hour for overhead expenses had been rebutted and awarded defense counsel $15.00 per hour. Defense counsel now claims that no proof rebutting the $25.00 per hour figure was produced or, alternatively, that the judge rather than the State produced proof to rebut the $25.00 per hour figure.
In Wilson, this Court created a rebuttable presumption that an appointed attorney‘s overhead expenses are $25.00 per hour. However, the trial court is bound by this only in the absence of actual proof to the contrary — proof offered by the lawyer that it is more or by the State that it is less. Wilson, 574 So.2d at 1340-41. Although proof in the instant case that defense counsel‘s expenses were less than $25.00 per hour was offered by defense counsel himself rather than by the State, the presumption was nonetheless rebutted. There is no error here.
R. Whether, despite the lack of objections at trial, the record reflects plain error regarding admission of hearsay, admission of prior bad acts, and admission of prejudicial and irrelevant testimony.
S. Whether Appellant was denied a fair trial by the accumulation of errors.
A careful and thorough examination of the record reveals neither plain error nor denial of a fair trial by accumulation of errors.
IV. CONCLUSION
Finding no error warranting reversal, Eakes’ conviction and sentence are hereby affirmed.
COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, PAY A FINE OF $10,000.00 AND COURT COSTS OF $165.00 AFFIRMED.
COUNT II: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS AFFIRMED. COUNT II TO RUN CONSECUTIVE TO COUNT I.
COUNT III: CONVICTION OF ATTEMPTED SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED. COUNT III TO RUN CONCURRENT WITH COUNTS I AND II.
HAWKINS, C.J., and PITTMAN, BANKS, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
McRAE, J., concurs in result only.
DAN M. LEE, P.J., dissents with separate written opinion joined by SULLIVAN, J.
APPENDIX 1 — JURY INSTRUCTIONS AT ISSUE
S-1 read as follows:
COUNT I
The Court instructs the Jury, as to Count I, that should you find beyond a reasonable doubt from the evidence in this case that:
1. Between Dec. 1 and the 26th day of December, 1990, in Kemper County, Mississippi;
2. the Defendant, Ricky Gene Eakes, did wilfully and unlawfully engage in sexual
penetration with April Myers, a female child under the age of fourteen (14) years, by the act of anal sexual intercourse; then it is your sworn duty to find the Defendant guilty of Sexual Battery in Count I.
Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt then you shall find the Defendant not guilty under Count I.
COUNT II
The Court instructs the Jury, as to Count II, that should you find beyond a reasonable doubt from the evidence in this case that:
1. Between the 26th day of January, 1991, and April 30, 1991 in Kemper County, Mississippi;
2. the Defendant, Ricky Gene Eakes, did wilfully and unlawfully engage in sexual penetration with April Myers, a female child under the age of fourteen (14) years, by the act of anal sexual intercourse;
then it is your sworn duty to find the Defendant guilty of Sexual Battery in Count II.
Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt then you shall find the Defendant not guilty under Count II.
COUNT III
The Court instructs the Jury, as to Count III, that should you find beyond a reasonable doubt from the evidence in this case that:
1. On or about the 11th day of May, 1991, in Kemper County, Mississippi;
2. the Defendant, Ricky Gene Eakes, did wilfully and unlawfully attempt to engage in sexual penetration with April Myers, a female child under the age of fourteen (14) years, by the act of attempting to place his penis into her anus.
then it is your sworn duty to find the Defendant guilty of attempted Sexuаl Battery in Count III.
Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt then you shall find the Defendant not guilty under Count III.
S-3 read as follows:
The Court instructs the Jury that “sexual penetration” as used in these instructions is defined by statute and includes the act of inserting the penis into the anus. This is anal sexual intercourse.
S-4 read as follows:
The Court instructs the Jury that a person under the age of fourteen (14) years is not capable of giving consent to any sexual penetration. Therefore, consent is not a defense to the crime of sexual battery where the victim is younger than fourteen (14) years.
D-10 read as follows:
COUNT I
The Court instructs the jury that, in order to find the Defendant, Ricky Gene Eakes, guilty of the charge of sexual battery, you must first find, beyond a reasonable doubt, from the evidence in this case that:
1. On or about December 26, 1990,
2. in Kemper County, Mississippi,
3. the Defendant, Ricky Gene Eakes, engaged in sexual penetration with April Myers,
4. a female child under the age of fourteen (14) years,
5. by the act of penis-anal intercourse. The State must prove each of these elements beyond a reasonable doubt. Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Ricky Gene Eakes, to be not guilty, of Count I.
COUNT II
The Court instructs the jury that, in order to find the Defendant, Ricky Gene Eakes, guilty of the charge of sexual battery, you must first find, beyond a reasonable doubt, from the evidence of this case, that:
1. On or about January 26, 1991, 2. in Kemper County, Mississippi,
3. the Defendant, Ricky Gene Eakes, engaged in sexual penetration with April Myers,
4. a female child under the age of fourteen (14) years,
5. by the act of penis-anal intercourse.
The State must prove each of these elements beyond a reasonable doubt. Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Ricky Gene Eakes, to be not guilty of Count II.
COUNT III
The Court instructs the jury that, in order to find the Defendant, Ricky Gene Eakes, guilty of the charge of attempted sexual battery, you must first find, from the evidence in this case, beyond a reasonable doubt, that:
1. On or about May 11, 1991,
2. in Kemper County, Mississippi,
3. the Defendant, Ricky Gene Eakes,
4. intended to engage in sexual penetration with April Myers,
5. a female child under the age of fourteen (14) years,
6. by the act of inserting his finger or fingers in her vagina,
7. and committed a direct, ineffective act toward the commission of that act,
8. but was prevented from so doing,
9. and the act was not committed.
The State must prove each of these elements beyond a reasonable doubt. Should the State fail to prove any one (1) or more of these elements beyond a reasonable doubt, then you shall find the Defendant, Ricky Gene Eakes, to be not guilty, of Count III.
DAN M. LEE, Presiding Justice, Dissenting:
Ricky G. Eakes was convicted of two counts of sexual battery and one count of attempted battery by a jury in Kemper County, Mississippi, and sentenced to a term of imprisonment of forty years. Eakes appealed to this Court, requesting review of nineteen issues most of which I believe have little, if any, merit. However, today the majority is expanding our exceptions to the hearsay rule to a point that I cannot accept, and in affirming Eakes’ conviction, acquiesces to the use of unnecessary bolstering testimony. Because I find the majority‘s position unacceptable, I respectfully dissent.
Hearsay is “a stаtement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
This exception provides:
Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term medical refers to emotional and mental health as well as physical health.
This Court has interpreted this exception to allow statements of “causation and fault [and it] has been expanded to include the identity of the perpetrator in child abuse cases.” Jones v. State, 606 So.2d 1051, 1056 (Miss. 1992). This exception was expanded further by this Court in Doe v. Doe, to include non-resident parents whose visitation
Children have vivid imaginations and are easily manipulated by others. To accept a child‘s accusations made against a parent, a loved one or a household resident, under
The majority, in today‘s opinion, acquiesces in the use of cumulative testimony which improperly bolstered the State‘s case against Eakes. As noted above, April Myers testified at trial as to who had sexually abused her. The testimony of Linda Palmer, Detectivе McKee and Dr. Lorenzana concerning the identification of April‘s perpetrator was cumulative, unnecessary and prejudicial against Eakes. Once the victim had testified, the jury should have been permitted to weigh for themselves her testimonial credibility. Once the other testimony was admitted, it was April et als against Eakes. April‘s credibility was improperly bolstered by the cumulative evidence and this may have played a direct role in the jury‘s verdict.
The court‘s of this state have an obligation to safeguard the rights of the accused to receive a fair trial. The Mississippi Rules of Evidence are designed to effectuate this goal by providing a framework from within which the courts and the parties must work. Today, I fear that this Court has stretched the hearsay exceptions too far and has also consented to the use of needless, cumulative testimony at the risk of prejudice to the defendant. Accordingly, I respectfully dissent.
SULLIVAN, J., joins this opinion.