Baker v. State, No. 2003-KA-02137-COA.

• Citation: 930 So.2d 399
• Decision Date: 28 June 2005
• Docket Number: No. 2003-KA-02137-COA.
• Parties: Steven Michael BAKER a/k/a Stephen Michael Baker, Appellant, v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

930 So.2d 399

Steven Michael BAKER a/k/a Stephen Michael Baker, Appellant, v. STATE of Mississippi, Appellee.

No. 2003-KA-02137-COA.

Court of Appeals of Mississippi.

June 28, 2005.

Rehearing Denied December 13, 2005.

Certiorari Denied June 1, 2006.

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Ross Parker Simons, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before KING, C.J., CHANDLER and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. This case comes before the Court as an appeal from the conviction of Steven Baker of sexual battery of a child under the age of fourteen. Convicted by a jury in the Circuit Court of Jackson County, Baker has appealed raising four issues. Finding these issues to be without merit, we affirm.

STATEMENT OF FACTS, COURSE OF PROCEEDINGS AND DISPOSITION IN THE COURT BELOW

¶ 2. On June 22, 2002, Ms. Jean Roe¹ took her granddaughter, Jane Doe, to Singing River Hospital after the child provided Roe with information which led her to believe that Jane had been the victim of a sexual assault. Jane, age nine, informed emergency room physician Dr. Steven Demetropoulos that her sister's husband, Steven Baker ("Baker"), and his brother had "put their thing inside her in her area where she urinates, and they have done this over some period of time. It's hard for her to quantify, she thinks about a year." Dr. Demetropoulos performed a limited examination of Jane. While there were no obvious tears or abrasions, Jane's hymenal ring was missing. Dr. Demetropoulos made a diagnosis of "acute alleged sexual abuse."

¶ 3. After the hospital visit, Jane was taken to the Pascagoula Police Department where she was interviewed by Detective Sergeant Sheila Jenkins, who specializes in sexual assault cases. Jane informed Jenkins that Steven Baker had put his "thing," or penis, in her private parts, or vagina, on more than one occasion. Based on these allegations, Baker was arrested and, after he had executed a Miranda rights and waiver form, interviewed by Detective Jenkins. During the videotaped interrogation, Detective Jenkins misrepresented several matters to Baker: first, that everything she told him was true; second, that Baker's stepdaughter had also accused him of sexual abuse, and third, that Baker's brother had accused him of sexual abuse of Jane. While Baker initially denied all allegations of abusing either Jane or his stepdaughter, approximately twenty minutes into the interview, he admitted that in "May of last year," he had molested, but not penetrated, Jane. Ten minutes later, Baker retracted the earlier admission and requested a polygraph test and rape kit test. When Detective Jenkins was leading Baker back to his cell, he indicated a desire to continue the interview. Shortly thereafter, Baker admitted that he had sexual intercourse with Jane "maybe twice." Specifically, Baker admitted that "two to three months ago," he "got aggravated" with Jane when he had to call her several times to come inside. Telling Jane that "this was a punishment," Baker had intercourse with her but stopped when Jane complained of the pain. Baker admitted that the following day he again touched Jane inappropriately but denied any penetration; he stated that this second incident, with no penetration, was the same as he related in his earlier admission. Baker adamantly continued to deny that he had ever touched his stepdaughter in any inappropriate manner.

¶ 4. On August 14, 2002, Baker was indicted on two counts of sexual battery upon a child under the age of fourteen; the indictment alleged the battery to have occurred "on or about from 2000 thru June 22, 2002." Each count of the indictment was identical in wording, stating that Baker:

did willfully, purposely, unlawfully and feloniously commit Sexual Battery upon [Jane], a child who was at the time in question under the age of 14 years, and Steven M. Baker was at the time 24 months older than [Jane], by engaging in the act of sexual penetration, to wit: by placing his penis into her vagina.

¶ 5. Baker proceeded to trial on July 16, 2003. The trial court denied Baker's motion to suppress his videotaped confession. Testimony was then taken from Roe, Dr. Demetropoulos, and Jane, who testified that Baker put "his thing" inside her private parts more than one time. Trial recessed for the evening, but Baker did not return to court the following morning as instructed. The trial judge briefly recessed the proceedings to allow defense counsel to telephone Baker. Unable to reach Baker by phone, his counsel objected to proceeding with the trial in the absence of his client; counsel argued that there was no proof at that point that Baker had voluntarily absented himself from trial. The judge postponed trial for another half hour and directed the prosecution to check with local hospitals and law enforcement to determine whether there was some legitimate reason for Baker's absence. Baker's bail bondsman arrived and represented to the court that his office had called Baker's father and had been informed that Baker was dropped off at 8:30. At ten o'clock, the prosecution reported that inquiries to local hospitals indicated that no one matching Baker's name or description had been there for any purpose. Defense counsel's renewed motion for mistrial or continuance was denied. Shortly thereafter, Baker's father appeared in court and represented that "my oldest son came and got my younger son during the night last night and headed towards Panola County. I called the sheriff's department to have them arrested, whatever, but I have to have the bail bondsman to send the proper paperwork."

¶ 6. The trial proceeded with Detective Jenkins testifying as to her interviews of Jane and Baker. Baker's videotaped confession to Jenkins was admitted over objection by Baker's counsel, and Baker was convicted, in absentia, of one count of sexual battery. At the August 1, 2003, sentencing hearing, Baker admitted that he "did flee" during trial because he was afraid of never seeing his family again except from behind a glass window. The minimum sentence being twenty years' imprisonment and the maximum being life imprisonment, the trial court sentenced Baker to thirty years, without possibility of parole or any form of early release.

¶ 7. At the hearing on Baker's motion for JNOV or, in the alternative, a new trial and for post-conviction bail, Baker again admitted that he had voluntarily absented himself from trial. Baker stated that he "ran" out of "pure fear" when his attorney informed him that "he actually felt that you would sentence me to dual life sentences for both counts that I had facing." The court denied the motion in all respects. Subsequently, Baker's trial counsel, Robert J. Knochel, was released as attorney of record, and Ross Simons was appointed to represent Baker on appeal. Baker timely perfected his appeal to this Court.

ISSUES AND ANALYSIS

I. WHETHER BAKER WAS DENIED DUE PROCESS WHEN FORCED TO DEFEND AGAINST AN INDICTMENT WHEN THE TIME FRAME FOR THE CRIME CHARGED SPANNED ONE-AND-A-HALF TO TWO-AND-A-HALF YEARS.

¶ 8. The purpose of an indictment is to inform the criminal defendant "with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense and to enable him to effectively assert his constitutional right against double jeopardy in the event of a future prosecution for the same offense." Moses v. State, 795 So.2d 569, 571(¶ 13) (Miss.Ct.App.2001) (citing U.S. v. Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986)). The indictment, under which Baker was charged, identified the time frame of the crime as "on or about from 2000 thru June 22, 2002." Baker correctly asserts that the minimum period of time under the indictment was, thus, 538 days and the maximum, 903 days. Baker's appellate counsel argues that trial on the subject indictment violated Baker's right to be tried on an indictment which afforded him sufficient information concerning the crime so as to allow him to make an adequate defense and so as to protect him from being subject to another trial for the same crime. We reject Baker's contention for two reasons.

¶ 9. First, Baker's trial counsel made no objection to the sufficiency of the indictment. Section 99-7-21 of the Mississippi Code provides that "[a]ll objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward. . . ." Miss.Code Ann. § 99-7-21 (Rev.2000). Further, the Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal "absent a showing of cause and actual prejudice." Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990); Brasington v. State, 760 So.2d 18, 26(¶ 41) (Miss.Ct.App.1999). Our courts have identified two instances where deficiencies are deemed jurisdictional: where "the indictment fails to charge a necessary element of a crime," and where "there exists no subject matter jurisdiction." See Banana v. State, 635 So.2d 851, 853 (Miss.1994) (where defendant enters a guilty plea, he waives all non-jurisdictional rights and defects; Mississippi law dictates only two exceptions in which plea does not waive defect: where indictment fails to charge necessary element of the crime and lack of subject matter jurisdiction); Holifield v. State, 852 So.2d 653, 657(¶ 8) (Miss.Ct.App. 2003) (quoting Banana); Smith v. State, 806 So.2d 1148, 1150(¶ 4) (Miss.Ct.App. 2002) (same). "Traditionally, time and place have been viewed as not requiring considerable specificity because they ordinarily do not involve proof of an element of [the] crime." Morris v. State, 595 So.2d 840, 842 (Miss.1991).

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