Baine v. State, 89-KA-0551

• Decision Date: 12 August 1992
• Docket Number: No. 89-KA-0551,89-KA-0551
• Citation: 606 So.2d 1076
• Parties: John E. BAINE a/k/a "Red" Baine v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1076

606 So.2d 1076

John E. BAINE a/k/a "Red" Baine v. STATE of Mississippi.

No. 89-KA-0551.

Supreme Court of Mississippi.

Aug. 12, 1992.

Thomas H. Pearson, Cheryl Ann Webster, Clarksdale, for appellant.

Michael C. Moore, Atty. Gen., Patricia W. Sproat, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

This appeal from a conviction for touching a child for lustful purposes and another count for sexual battery arose from the August 10, 1988 judgment of the Circuit Court of Coahoma County. ¹ The circuit judge sentenced the defendant to five years on the first count and twenty years on the second, to run consecutively.

The appellant timely filed a notice of appeal and raises the following issues:

A. Whether the trial court erred in admitting out-of-court statements made by the complainant.

B. Whether the trial court erred in admitting experts' opinions on the veracity of the complainant's statements.

C. Whether the trial court erred in allowing the state to introduce as rebuttal witnesses three persons who had sat in the courtroom during the trial.

Because the trial court committed no reversible error, this Court affirms Baine's conviction.

A. Facts

On January 29, 1988, Ms. Daley ² picked up her seven-year-old daughter, Susie, from the day-care center. Susie had been staying at the facility, operated in the home of John "Red" Baine and his wife, Bobbie for several years. On the way home Susie described a sexual battery committed toward her by "Mr. Red". After Susie's revelation, Ms. Daley notified the police, who notified the welfare authorities. When Ms. Daley took Susie for a medical examination, the examining physician found Susie's hymen to be very irregular in shape. Susie's statements led to this indictment against Baine.

B. Procedural History

On June 21, 1988, a Coahoma County grand jury issued a multi-count indictment against John "Red" Baine, charging him with touching a child for lustful purposes in violation of section 97-5-23 of the Mississippi Code and sexual battery in violation of section 97-3-95 of the Mississippi Code. The original indictment alleged that Baine committed crimes against three female children under the age of 14, including Susie Daley.

On July 14, the state gave notice that, pursuant to section 13-1-403 of the Mississippi Code, the state intended to offer the out-of-court statements of several young children. The court ruled that, of the four counts in the indictment Counts III and IV would be severed, leaving Counts I and II with Susie Daley as the sole complainant in this trial.

The jury convicted Baine on July 29, 1988. On August 8, the defendant filed for a judgment of acquittal notwithstanding the verdict or, alternatively, for a new trial, which was denied by the trial court.

II. LEGAL ANALYSIS

Under this Court's standard of review, the admissibility of evidence rests within the trial court's discretion. Wade v. State, 583 So.2d 965, 967 (Miss.1991). This Court must determine, however, if the trial court employed the proper legal standard in its factfindings governing evidence admissibility. If the trial court incorrectly perceived the applicable legal standard, this Court operates with a substantially broader standard of review. See Holland v. State, 587 So.2d 848, 855 (Miss.1991) (admissibility of confession); see also United States v. Vernor, 902 F.2d 1182, 1188 (5th Cir. [Miss.] 1990), cert. denied, --- U.S. ----, 111 S.Ct. 301, 112 L.Ed.2d 254 ("clearly erroneous" standard applies to review of trial court's finding of trustworthiness of out-of-court statements).

A. Whether the trial court erred in admitting out-of-court statements made by the complainant.

1. Whether the trial court erred in admitting into evidence statements made by the complainant to her mother.

Baine contends that statements Susie made to her mother on the day of the alleged last incident should not have been admitted as excited utterances, especially the statements made at home later in the evening. The state contends the trial court properly admitted the statements under evidence rule 803(2), the hearsay exception for excited utterances.

According to the record, Susie first began attending Bobbie's Day Care in August, 1984. On the evening of January 29, 1988, Mrs. Daley picked Susie up from the day care at 6:00 p.m. Within two blocks of the day-care center, Susie said, "Mom, if I tell you something, do you promise I won't get in trouble?" When Ms. Daley assured her daughter that she would not be in trouble, Susie said, "Mom, Mr. Red has been playing with my bad spot." Ms. Daley asked her daughter how long this activity had been occurring; her daughter replied that the abuse had occurred throughout the duration of her attendance at the day-care center. Susie told her mother that, on this particular day, Baine had hurt her. Once Ms. Daley and Susie arrived home, Mr. and Ms. Daley asked Susie if the touching could have been an accident. Susie replied, "No, not under my clothes." Susie also indicated that Baine had touched her inside her shirt, on her breasts.

Later that night, when Susie went to bed, Ms. Daley lay down beside her daughter and talked. Susie related that she hated Christmas at the day-care center because every time she got near the mistletoe Baine would grab her and kiss her. When questioned by her mother, Susie said, "Well, mom, it's not like we kiss." Susie further explained, "It's like married people kiss."

The defense raised no objection to Ms. Daley's recounting Susie's statements. Further, the Court found Susie's statements to be "spontaneous and without indication of manufacture." The Court agreed that Ms. Daley could not relate other people's sides of the conversations. At trial, Susie testified.

Mississippi's evidentiary rule 803(2) states that, even with the declarant available to testify, the hearsay prohibition does not apply to an excited utterance, "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Miss.R.Evid. 803(2) (1988). Recently, this Court observed that a child's statements made to her mother on the same day that sexual abuse occurred could arguably have been admissible as excited utterances had they not been given only in response to the mother's questions. In the Interest of C.B., 574 So.2d 1369, 1372 (Miss.1990); see also Griffith v. State, 584 So.2d 383, 387 (Miss.1991) (remanding for an 803(2) determination); Mitchell v. State, 539 So.2d 1366, 1369-71 (Miss.1989) (discussion of rule in other jurisdictions). But see Sanders v. State, 586 So.2d 792, 795 (Miss.1991) (fact that child makes statements in response to questions does not ipso facto disqualify statements from being considered excited utterances). In Morgan v. Foretich, 846 F.2d 941, 946-48 (4th Cir.1988) the court concluded that a child's description of his abuse three hours after the incident should have been admitted "whether or not the child would be competent to be a witness." See also United States v. Iron Shell, 633 F.2d 77, 85-86 (8th Cir.1980), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981) (nine-year-old assault-with-intent-to-rape victim's declarations made 45 to 75 minutes after assault were admissible under 803(2)). According to the Advisory Committee's Note on the equivalent federal rule, for a declaration to instill the confidence required by 803(2), it must have been uttered "in a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." Fed.R.Evid. 803, Advisory Committee's Note (citing 6 Wigmore Sec. 1747, p. 135) cited in S. Saltzburg & M. Martin, Federal Rules of Evidence Manual, v.1 at 374 (1990).

Thus, the weight of authority supports the characterization as an excited utterance of a child's allegations of abuse volunteered within hours after the abuse allegedly occurred. While authorities do not fix a particular time period, the key indicia of trustworthiness appear to be evidence of excitement, voluntariness of statement, and closeness in time of the statement to the alleged incident.

In this case, regarding preservation for review, the defense specifically stated, in chambers, that it did not object to Ms. Daley's relating Susie's declarations. At trial the defense objected only to Ms. Daley's testimony about Susie's comments unrelated to the crime or other people's comments. Thus, Baine has not preserved this point for review by this Court. Notwithstanding the defense failure to preserve the error and although the trial court did not specifically mention evidence rule 803(2), the court effectively satisfied the rule's requirements in its finding that Susie's declarations met the Williams v. State, 427 So.2d 100 (Miss.1983) requirements of spontaneity and non-manufacture. Thus, the court properly admitted Ms. Daley's recitation of Susie's declarations, and the court made its proper ruling of admissibility plain on the record. On both procedural and substantive grounds, the appellant's allegation of error fails in this issue.

2. Whether the trial court erred allowing the child-abuse expert witnesses to testify to the alleged child-abuse victim's out-of-court statements.

The defendant asserts that the trial court improperly allowed as inadmissible hearsay Welfare Department employees, Anita Reginelli and Terri Haltom, psychometrist ³, Lisa Lilly, and psychologist, Dr. Timothy Sisemore, to relate out-of-court statements Daley had made to them. Baine urges that, because the complaining witness herself, testified, her hearsay declarations cannot have a sufficiently probative value to be admitted under evidence rule 803(24), the residual hearsay exception. Baine contends that the state introduced the hearsay declarations in order to bolster Daley's...