Edwards v. State

• Decision Date: 22 January 1992
• Docket Number: No. 90-KA-0708,90-KA-0708
• Citation: 594 So.2d 587
• Parties: Jimmy EDWARDS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 587

594 So.2d 587

Jimmy EDWARDS v. STATE of Mississippi.

No. 90-KA-0708.

Supreme Court of Mississippi.

Jan. 22, 1992.

Sam Clifton, Sr., Cleveland, for appellant.

Mike C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

In this case, the Bolivar County Grand Jury indicted Jimmy Edwards in November 1989 on three counts of sexual battery under Miss.Code Ann. Secs. 97-3-95 & 99-7-2 (1972). More specifically, the Grand Jury indicted Edwards for "feloniously engag[ing] in sexual penetration with [his seven-year-old nephew], FJ, by inserting his penis into the anus [and] mouth of said FJ."

Upon completion of a trial at the Bolivar County Circuit Court, the jury found Jimmy Edwards guilty of all three counts. Judge John L. Pearson sentenced Edwards to fifteen years imprisonment for each of the first two counts and twenty years on the third count. ¹

A. Facts

On June 11, 1990, FJ testified that his uncle, Jimmy Edwards, sexually battered him on three separate occasions. On the first occasion, in July 1988, FJ and three of his cousins were playing outside Edwards' home when Edwards called FJ to come inside. Once inside, Edwards anally raped FJ. See Appendix, infra (FJ's testimony).

On the second occasion, in the summer of 1989, FJ and his three cousins were again playing outside Edwards' home. Edwards again called FJ "to step inside"--after which Edwards "started sucking on [FJ's] thing" and then "made [FJ] do the same thing to him [Edwards]." See Appendix, infra (FJ's testimony).

Finally, FJ testified that, in August 1989, Edwards again anally raped him in a bedroom of Edwards' home. FJ's cousin, ten-year-old ALS, testified that she witnessed the incident which transpired in the bathroom of Edwards' home. See Appendix, infra (ALS's testimony).

Edwards' sexual activities ultimately ended when FJ informed his mother, TS, about the incidents. TS testified that FJ "felt ashamed" and was "real scared" when he discussed the matter with her. TS then testified that she contacted the Bolivar County Sheriff's Department and provided investigators with the information about the incidents; Charles Gilmer was one of these investigators.

Gilmer testified that, during his investigation, he interviewed FJ and ALS and that both children described the acts committed by Edwards. ² These interviews, Gilmer noted, led to the arrest of Edwards.

Of course, Edwards denied the accusations, and his wife, Patsy, provided supportive testimony. ³

B. Issues

As noted, a jury found Edwards guilty of sexual battery. He now appeals his conviction and has presented this Court with six issues. For brevity's sake, these issues have been paraphrased and consolidated:

1. WHETHER THE TRIAL JUDGE ERRONEOUSLY REFUSED TO PERMIT EDWARDS' CHILDREN TO TESTIFY?

2. WHETHER THE TRIAL JUDGE ERRONEOUSLY REFUSED TO GRANT EDWARDS' MOTION FOR A CONTINUANCE?

3. WHETHER THE TRIAL JUDGE ERRONEOUSLY REFUSED EDWARDS' INSTRUCTIONS?

4. WHETHER THE TRIAL JUDGE ERRONEOUSLY REFUSED TO GRANT EDWARDS' MOTIONS FOR A DIRECTED VERDICT, J.N.O.V., AND NEW TRIAL?

II. ANALYSIS

A. Issue # 1

Edwards asks this Court to determine whether the trial judge erroneously refused to permit his two children, FP and FS, to testify. FP and FS were among the children playing outside Edwards' home prior to at least two of the rape incidents.

1. Background

On March 30, 1990, Bolivar County Youth Court Judge John W. Valentine conducted a hearing in response to a petition filed by the Bolivar County Department of Human Services. On the basis of the evidence adduced at this hearing, Judge Valentine issued a protective order, in which he declared FP and FS "to be abused children." He ordered that there "be no contact by the parents with the children" and that "any future contact by the parents with the children is to be determined by the Bolivar County Mental Health Counselor, Mr. Paul Davey."

No one disputes that Edwards was "aware" of this order. And no one disputes that Judge Valentine issued sanctions against Edwards for violating the order when he called FP and FS to testify at a trial (not the trial in the case sub judice ) in which he and his wife were being prosecuted for dissemination of sexually-explicit material to minors (hereinafter "dissemination case"). Specifically, the judge issued the sanctions because Edwards called FP and FS to testify and, thus, violated the order that there "be no contact by the parents and the children" without first informing the Youth Court (FS did not actually testify, and FP became emotionally distraught while testifying).

In the case sub judice, Edwards attempted to subpoena FP and FS to testify on his behalf; however, he did not first inform the Youth Court. Thus, FP and FS's guardian ad litem presented to Bolivar County Circuit Court Judge John L. Pearson a motion to have FP and FS declared unavailable for trial. The guardian cited as her bases for the motion: (1) the protective order, and (2) the probable emotional harm to FP and FS which testifying might cause.

Judge Pearson held a pre-trial hearing on the guardian's motion. The judge heard from Edwards, the guardian, and the county attorney--the latter two of whom spoke on behalf of the Youth Court. The judge also heard from Paul Davey, ⁴ who provided his explanation for concluding that the children would be emotionally harmed if permitted to testify.

After the hearing, the judge expressed an inclination to grant the guardian's motion ⁵ absent a showing by Edwards of a "colorable need" for calling his children to testify: ⁶

JUDGE PEARSON:

[T]his Court needs to know and would request of the defense that they make an offer of proof by stating to the Court what they know or feel or what information they have as to what testimony these children might give, either one or both of them.

EDWARDS: Your Honor, the only thing that we have to offer here is some of the same things that we offered in trial last week [in the dissemination case].

JUDGE: Well, I wasn't present, so I don't know.

....

EDWARDS: ... Specifically, we believe that the children are going to just plainly deny that anything took place....

....

JUDGE: Let me ask you this.... Have you ... ever interviewed these children?

EDWARDS: No, sir.

JUDGE: Well, you really didn't know what they were going to testify to when they came in the court the other day?

EDWARDS: Somewhat, Your Honor. I have never talked to the children.

Id. at 34 & 36-37. Judge Pearson finally concluded that no colorable need existed

for permitting Edwards to call his children to testify.

2. Relevant Law ⁷ and Disposition

In response to the judge's decision, Edwards contends in this appeal that the State should have been "estopped from raising the [availability] issue at such late date" because: (1) FP had already testified during the trial in the dissemination case, and (2) the State failed to timely object to the children being called to testify during the trial in the case sub judice.

Edwards' contention is unpersuasive. In this case, the guardian--not the State--was charged with protecting the children's interest. See Miss.Code Ann. Sec. 43-21-121(1)(e) & (2) (1972 as amended) ("The youth court shall appoint a guardian ad litem for the child ... in every case involving an abused or neglected child which results in a judicial proceeding; ... In addition to all other duties required by law, a guardian ad litem shall have the duty to protect the interest of a child for whom he has been appointed."). Therefore, Edwards is wrong to refer to the State and its failure to object.

And Edwards cannot quarrel with the guardian's decision to seek to enforce the Youth Court's "Protective Order" at such a "late" date. Edwards flagrantly ignored the Protective Order in the case sub judice--just as he had done in the dissemination case--and the guardian was simply attempting to avert another flagrant violation of the "Protective Order" which could have resulted in the issuance of additional sanctions. It seems likely that the guardian would have presented her motion in a more timely manner if Edwards had complied with the "Protective Order" and informed the Youth Court before attempting to call the children to testify. In accordance with the "Protective Order," the guardian was duly entitled to do whatever was necessary to protect the interest of the children--no matter how untimely Edwards perceives her actions to be. Edwards should have followed rules of procedure which should have been familiar to him in view of the sanctions issued against him for failing to inform the Youth Court before calling his children to testify in the dissemination case.

Edwards additionally contends that the judge's refusal to permit his children to testify is violative of the federal and state constitutions, which entitle a defendant to access to witnesses. Appellant's Brief at 6 (citing U.S. CONST. amend. VI; MISS. CONST. art. 3, Sec. 26). This Court's opinion in Gray v. State, 472 So.2d 409, 412-13 (Miss.1985), addresses Edwards' contention. In short, this Court held in Gray that "the accused's right to compulsory process is not absolute and the State [or judge] may require a showing of some colorable need for persons to be summoned lest the right be abused." Id. at 413 (citing cases for support). Accordingly, in the case sub judice, the judge provided Edwards with an opportunity to show a "colorable need"; however, Edwards was unable to meet this burden. At most, Edwards noted that he "believe[d] that the children [would] just plainly deny that anything took place." Edwards' belief is highly questionable; neither he nor his attorney had interviewed the children, nor had they sought the Youth Court's permission to interview them. In view of the foregoing, this Court rejects Edwards' contention that the federal and state constitutions provide him with an absolute...