Baine v. State, 89-KA-0794

• Decision Date: 10 June 1992
• Docket Number: No. 89-KA-0794,89-KA-0794
• Citation: 604 So.2d 249
• Parties: John E. BAINE, a/k/a "Red" Baine v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 249

604 So.2d 249

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

No. 89-KA-0794.

Supreme Court of Mississippi.

June 10, 1992.

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

Michael C. Moore, Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and McRAE, JJ.

McRAE, Justice, for the Court:

John E. Baine, a/k/a "Red" Baine, appeals from his conviction under Miss.Code Ann. Sec. 97-5-23 (Supp.1988) of touching a child for lustful purposes. Baine was tried before a jury in the Circuit Court for the Second Judicial District of Panola, on change of venue from the Circuit Court of Coahoma County, on September 6 and 7, 1988, and was found guilty. On September 9, 1988, he was sentenced to serve five (5) years to be served only in custody of the Mississippi Department of Corrections, said sentence to run consecutively to the sentences imposed in Causes 7350, Count I and Count II, Coahoma County Circuit Court. Baine appeals and assigns the following as error:

I. THE TRIAL COURT ERRED IN THAT IT ALLOWED DR. TIMOTHY SISEMORE, A CLINICAL PSYCHOLOGIST, WHO QUALIFIED AS AN EXPERT IN THE FIELD OF CLINICAL PSYCHOLOGY, SPECIALIZING IN CHILD ABUSE, TO TESTIFY TO THE ALLEGED CHILD ABUSE VICTIM'S OUT OF COURT STATEMENTS AND TO TESTIFY TO THE FACT THAT THE ALLEGED VICTIM WAS IN FACT AN ABUSED CHILD. ¹

II. THE TRIAL COURT ERRED IN THAT IT DID NOT GRANT THE DEFENDANT A MISTRIAL UPON THE STATE OF MISSISSIPPI SOLICITING CERTAIN INADMISSIBLE, IMPROPER, AND HIGHLY PREJUDICIAL EVIDENCE FROM THE WITNESS, ANITA REGINELLI, AFTER THE TRIAL COURT HAD PREVIOUSLY RULED THAT THE DEFENSE WAS NOT ENTITLED TO AN ORDER SUPPRESSING REGINELLI'S TESTIMONY BASED ON THE STATE OF MISSISSIPPI'S ASSURANCES THAT IT WOULD NOT SOLICIT SUCH TESTIMONY FROM REGINELLI.

Finding that neither assignment merits reversal, we affirm.

FACTS

Red Baine ("Baine") and his wife, Bobbie Baine operated a day care center in Clarksdale, Mississippi. W.V., ² then nine years old, attended the center from June through September of 1986. W.V., an eleven-year-old sixth grader at the time of trial, testified that during the time she attended the Baine Day Care Center, Baine touched her "in the wrong place" about once a day around lunch time, sometimes in Baine's bedroom. According to W.V., Baine placed his hand under her clothing and underwear and touched her between her legs, on her buttocks, and on her breast area. When asked whether Baine's hands were "still" or "moving around," W.V. responded that "[t]hey were moving around." W.V. added that when the alleged touching occurred, she and Baine were often lying on the bed watching television. On cross-examination, W.V. testified that she got on the bed voluntarily and that there were other places in the house where she could have watched television. She professed not to know why she did not tell other day care workers Baine was allegedly doing to her, but she stated that she did not tell her mother because she was afraid her mother would not believe her.

Eleven-year-old J.H. testified that she, too, attended the Baine Day Care Center. When asked if she had seen "anything bad or unusual happen to [W.V.]," she stated that "Mr. Red stuck his hand down her pants." She further testified that the activity occurred while Baine and W.V. were N.Y., another eleven-year-old, also testified that "Mr. Red touched [W.V.] in a bad way." She then added: "In bad spots, too.... In her breast and on the bottom." When asked whether Baine had touched W.V. on the front or back of the bottom, she responded: "Both." The prosecutor asked N.Y. to describe how Baine touched W.V. to which the witness responded: "He was rubbing and squeezing." N.Y. testified that the incidents happened "a lot."

lying on the bed after lunch watching television.

Brenda Spinosa testified that she had used the services of Baine Day Care Center prior to February, 1987. In July, 1986 she went in the Baine's house to pick up her child and observed Baine lying on his bed with his arms around W.V. and another female child. The sight struck her as "unusual."

B.V., W.V.'s mother, testified that W.V. continually begged not to have to go to Baine Day Care Center. B.V. stated that during the period W.V. was attending the center,

[t]here was a tremendous change in my child in that the fact that my child would not sleep in her own bedroom. She would get up during the night and come and sleep on the floor either on my side of the bed or my husband's side of the bed. That continued about six months. For the last year and a half my child has been in the bedroom, sleeping in the bed with me and my husband in the center. She will not even play in her room and she will not sleep in her room.

The mother took W.V. to Memphis, Tennessee for counseling with Dr. Timothy Sisemore, a clinical psychologist.

Over a continuing objection interposed by the defense, Dr. Sisemore testified that W.V. had told him that she had been touched and rubbed between her legs, on her buttocks, and in the breast area. W.V. allegedly stated that the touching occurred inside her clothes and underwear.

Anita Reginelli, a social worker for the East Bolivar County Welfare Department testified that she had interviewed W.V. According to Reginelli, W.V. "appeared embarrassed, frightened." Reginelli further testified that her office had classified the W.V. report as "substantiated sexual abuse."

The defense called a number of witnesses including mothers of other children who had attended the Baine Day Care Center, a neighbor of the Baine, Baine's son, and Baine's wife. Each of these witnesses testified that they had observed no untoward conduct on the part of Baine. Baine himself took the stand and testified that while he had hugged, patted, and touched W.V. in a "loving way," he had never placed his hands under her clothes, had never harbored or exhibited lustful or sexual desire for the child, and had never lain on a bed with her.

LAW

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING DR. TIMOTHY SISEMORE, A CLINICAL PSYCHOLOGIST, TO TESTIFY CONCERNING W.V.'S OUT-OF-COURT STATEMENTS?

W.V. attended eight counseling sessions with Dr. Timothy Sisemore, a clinical psychologist. The purpose of these meetings was to enable Dr. Sisemore to form an opinion concerning whether W.V. had encountered sexual abuse and to provide treatment for the emotional trauma arising from the alleged abuse. Testifying for the prosecution, Sisemore discussed his meetings with W.V. and the conclusions he drew therefrom. Prior to trial, the defense filed a motion in limine seeking to prevent Sisemore from revealing what W.V. had told him concerning the details of her alleged encounters with Baine. The trial court overruled the motion, holding that such declarations, although hearsay, would be admissible under MRE Rule 803(4). At the time of the trial below, Rule 803(4) read as follows:

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 Baine argues that since psychologists do not engage in "medical" diagnosis or treatment, Rule 803(4) is inapplicable to statements W.V. made to Dr. Sisemore.

or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

When the trial court considered Baine's motion in limine, we had not yet addressed the question of whether the Rule 803(4) exception to the hearsay rule extended to statements made to psychologists. A few months later, the Court tip-toed around the subject in Hall v. State, 539 So.2d 1338 (Miss.1989). In holding that the hearsay testimony of two social workers did not fit within any of the Rule 803 exceptions, the Court noted in passing that the hearsay statements were not "made for purposes of medical diagnosis or treatment." Hall, 539 So.2d at 1342. While not explicitly stating that Rule 803(4) did not apply to statements concerning mental as opposed to physical health, the Court observed in a footnote that Rule 803(4) "statements may be made either to a physician or to diagnostic medical personnel." Hall, 539 So.2d at 1342 n. 7.

In Mitchell v. State, 539 So.2d 1366 (Miss.1989), a decision handed down three weeks after Hall, the Court again alluded to but did not decide the issue. Although the Mitchell case apparently did not involve the testimony of a mental health professional, the Court stated in dicta that "many courts, State and Federal, with evidence rules similar to ours admit statements by child sexual abuse victims to physicians and psychologists while being examined, diagnosed, and treated following an incident of sexual abuse under exceptions analogous to MRE 803(4)." Mitchell, 539 So.2d at 1368 (emphasis added). The clear implication is that the Mississippi rule is subject to a construction similar to that imposed in other jurisdictions. The issue was clouded somewhat, however, by Leatherwood v. State, 548 So.2d 389 (Miss.1989) wherein the Court held that statements made by a child rape victim to a social worker employed by a mental health center were not covered by the Rule 803(4) exception. Id. at 398. The Court noted that the social worker "was not a physician nor may the services she rendered be stretched into the world of the medical." Id.

A 1991 amendment to MRE Rule 803(4) settled the matter once and for all. The Rule now reads as follows:

Statement 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...