Fisher v. State

• Decision Date: 05 September 1996
• Docket Number: No. 92-KA-00933-SCT,92-KA-00933-SCT
• Citation: 690 So.2d 268
• Parties: Derrick T. FISHER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 268

690 So.2d 268

Derrick T. FISHER v. STATE of Mississippi.

No. 92-KA-00933-SCT.

Supreme Court of Mississippi.

Sept. 5, 1996.

Rehearing Denied April 10, 1997.

Ross Parker Simons, Pascagoula, for Appellant.

Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Attorney General, Jackson, for Appellee.

Before PRATHER, P.J., and PITTMAN and McRAE, JJ.

PITTMAN, Justice, for the Court:

Statement of the Case

The Appellant, Derrick Fisher, was tried and convicted of the capital rape of his eleven year-old niece. His appeal raises eight issues, five of which we feel merit discussion: whether the trial court erred by failing to require the State to narrow the time frame in the indictment to a specific date; whether certain communications between Fisher and his wife should have been allowed at trial; whether the State properly proved the age of Fisher at trial in accordance with the capital rape statute; whether the trial court erred in excluding the testimony of defense witness Vicki Parker, Deputy Chancery Clerk of Jackson County; and whether the capital rape statute which requires the imposition of a death sentence or life imprisonment is a violation of the separation of powers doctrine. Because we find that certain statements made by Fisher to his wife were in confidence and constituted prejudicial error, we reverse and remand for a new trial consistent with this opinion.

Statement of the Facts

Fisher was indicted, tried and convicted of the capital rape of his eleven year-old niece. The indictment alleged that Fisher had carnal knowledge of his niece between the 14th day of April 1990 and the 1st day of September, 1990. This 140-day time span in the indictment was challenged in pre-trial motions, and the indictment was later amended on the day of trial to reflect a time period of thirty-one days, from July 1, 1990, to August 1, 1990.

According to the child's testimony, she had sexual intercourse with Fisher at least three times during a period covering several Rhonda Fisher, the defendant's wife, testified that the sexual relationship between Fisher and his niece was brought to light when she found a note their niece had written to Fisher. Detective Williams, who interviewed the defendant, testified at trial as did several other witnesses including the defendant's aunt, Shirley Anderson (to rebut the testimony of Rhonda), and the defendant himself. Fisher testified that he had never been alone with the child and never had sexual contact with her. Additionally, he said he had gone to the chancery court to have his wife committed for drug addiction about five months ago but dropped the action when he found out she would have to go to Whitfield.

months in 1990. She could not give exact dates.

Discussion of the Law

I. DID THE TRIAL COURT ERR BY FAILING TO REQUIRE THE STATE TO NAME A SPECIFIC DATE IN THE INDICTMENT?

Prior to trial, Fisher filed a Motion to Quash the Indictment. He gave as his grounds the "vagueness" of the four month period of time covered by the indictment from "between the 14th day of April 1990 and the 1st day of September in the year of our Lord, 1990 ..." The trial court denied his motion, but instructed the State to narrow the time frame as much as possible. The State then amended the indictment to show the time frame as "between the first day of July, 1990 and the first day of August, 1990." Fisher then filed a Motion to Compel a Definite Statement of Essential Facts and a Notice of Intent to Claim Alibi. The trial court denied the Motion and allowed the State to proceed on the indictment as amended. Fisher now claims that the thirty day period was too oppressive to alibi.

Fisher cites Mississippi Uniform Criminal Rules of Circuit Court Practice, rule 2.05 ¹ which requires the indictment to be a "... plain, concise and definite written statement of the essential facts charged," and to "fully notify the defendant of the nature and cause of the accusation against him." Fisher claims that it was "essential" that the prosecution provide him a specific date so he could maintain an alibi defense.

Fisher also cites Van Norman v. State, 365 So.2d 644 (Miss.1978), where the Court held that the state was required, since the defense was one of alibi, to prove the specific day of the crime. The indictment charged Van Norman with adultery. After the state's case concluded, the defense introduced evidence to show that he had an alibi for that day. The state was allowed to amend the indictment to show another date. The Court noted that adultery was not a continuing offense, and each act constituted a separate offense, therefore, the amendment constituted a new offense. Id. at 647. This case is factually distinguishable; Fisher knew well in advance the time covered by the indictment.

Additionally, Fisher cites Wilson v. State, 515 So.2d 1181 (Miss.1987). Wilson was convicted of capital rape and raised as an issue on appeal the fact that the state had not narrowed the time of the crime to a specific date. The Court declined to reverse but said:

However, we note that in cases of this nature, it is important that a defendant be given the specific date or dates of the alleged acts if at all possible. [cite omitted]

In all fairness, notice of a specific date is often essential to the preparation of a defense-especially where an alibi defense is relied on.

Id. at 1183.

The law is clearly with the State on this issue. In fact, we disposed of a factually similar issue in Morris v. State, 595 So.2d 840 (Miss.1991). Morris claimed, as does Fisher, that the wide period of time in the indictment (three months) kept him from presenting an alibi defense to the sexual battery charge. Morris filed a Motion to Compel A Definite Statement of Essential

Facts Morris citing Wilson for the proposition that notice of a specific date is essential to the preparation of a defense, especially an alibi defense. Justice Hawkins, speaking for the Court, stated that the indictment was sufficient in advising the defendant and in giving a time frame within which these (events) were supposed to have happened. Justice Hawkins pointed out that traditionally time and place requirements have been viewed as not necessitating specificity, because they ordinarily do not involve proof of an element of the crime. Morris, 595 So.2d at 842 (citing 2 W. LaFave & L. Israel, CRIMINAL PROCEDURE § 19.2 (1984)). He further noted that Wilson requires the defendant be given the specific date only if possible. Id.

II. DID THE TRIAL COURT ERR BY ALLOWING AT TRIAL CONFIDENTIAL STATEMENTS MADE BY FISHER TO HIS WIFE?

Prior to trial, Fisher's attorney filed a Motion in Limine based on M.R.E. 504(b) to prohibit any marital communications that were to be confidential. The trial court denied the motion. At trial Fisher's wife, Rhonda, testified to a conversation between Derrick and her that took place before Derrick's aunt, Shirley Anderson. During which, Rhonda stated that Fisher "denied it [having sex with his niece] right there at the time." Rhonda testified shortly after this statement that "later on that day Derrick admitted the truth to me." No contemporaneous objection was made at that time. Sometime later during Rhonda's testimony, defense counsel objected on the basis of the marital privilege to prohibit Rhonda from testifying at that point to what Fisher had admitted.

Fisher argues that Rhonda's statements in which she stated he admitted it [the abuse] to her were confidential and barred by the marital privilege, which he invoked before trial, during trial and in a Motion for a New Trial. Fisher cites the Comment to Rule 504 "[r]ule 504(b) states the general rule. One spouse can prevent the other from testifying regarding the confidential communication in either a civil or criminal proceeding." Fisher also cites several pre-rule cases that state one spouse is incompetent to testify against the other.

He also relies on Bayse v. State, 420 So.2d 1050 (Miss.1982), where a police officer was allowed to testify to Mrs. Bayse's statements made to the police after a murder that incriminated her husband, and this Court reversed on the issue of spousal privilege. The Court referenced § 13-1-5 as the applicable statute insofar as the privilege asserted was concerned. Basically, the Court said that Mrs. Bayse was not competent to testify but labeled this a privilege.

The State maintains first that Fisher did not make a contemporaneous objection at the time the controversial statements were made. See Irving v. State, 498 So.2d 305 (Miss.1986), cert. denied, 481 U.S. 1042, 107 S.Ct. 1986, 95 L.Ed.2d 826 (1987). Additionally, the State argues that because Fisher's attorney cross-examined Rhonda concerning the statements made by the defendant, he is doubly barred from raising this issue on appeal. See Mitchell v. State, 539 So.2d 1366, 1373 (Miss.1989) (where the Court held that it was improper for the defendant's attorney to re-cross the witness concerning the objectionable testimony and then ask for a mistrial).

In the alternative, the State argues that the objectionable statement ("he denied it right there") was made before the aunt, therefore, not subject to the privilege. MISS. R. EVID. 504(a); Shell v. State, 554 So.2d 887, 894 (Miss.1989), cert. granted, 498 U.S. 1, 111 S.Ct. 313, 112 L.Ed.2d 1 (1990) (remanded to MS Supreme Court for reconsideration of death sentence concerning aggravating circumstances). They argue that no "contemporaneous objection" bars consideration of the second objectionable statement ("later on that day Derrick admitted the truth to me").

In addition, the State notes a conceptual contradiction between M.R.E. Rules 504 and 601(a)(2). Rule 601(a)(2) states in pertinent part:

(a) In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2):

(2) Either spouse is a competent witness...