Foley v. State
| Decision Date | 15 September 2005 |
| Docket Number | No. 2004-KA-00375-SCT.,No. 2004-KA-00070-SCT.,2004-KA-00070-SCT.,2004-KA-00375-SCT. |
| Parties | Scott Anthony FOLEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Benjamin Louis Taylor, Jack R. Jones, III, Southaven, attorneys for appellant.
Office of the Attorney General, by Jean Smith Vaughan, attorneys for appellee.
Before WALLER, P.J., DICKINSON and RANDOLPH, JJ.
¶ 1. Scott Anthony Foley was indicted in the Circuit Court of DeSoto County for: (1) felonious sexual intercourse with a child under the age of 14 and 24 months younger than Foley (rape); (2) felonious sexual penetration with a child less than 18 (sexual battery); and (3) possession of materials depicting children under the age of 18 engaging in sexually explicit conduct (child exploitation). The first two counts pertained to Foley's conduct with a female child, K.F. The third count pertained to other children who remained unidentified. A trial was held concerning the first two counts while a separate trial adjudicated the third. The appeals from both trials have been consolidated and all three counts are considered below.
¶ 2. Scott Foley and Deborah Foley Houck were previously married and adopted Deborah's niece, K.F., during their marriage. After divorcing, Deborah retained physical custody of K.F. while Scott was allowed some visitation. Soon after a weekend visit with Foley, K.F., who was five years old at the time, told a therapist named Dr. Ruth Cash (sometimes referred to as Outz in the record) that Foley showed her pornographic images on his computer. K.F. also made comments to Cash indicating that Foley was undressing in front of K.F, placing a vibrator "in her," forcing her to "touch him," and forcing her to perform oral sex on him. A subsequent physical exam was conducted by Ninah Sublette, a sexual assault examiner, that revealed substantial injuries to K.F.'s vagina and anus consistent with some sort of blunt, penetrating trauma. K.F. also made remarks to Sublette indicating that Foley had performed oral sex on K.F., forced K.F. to touch him inappropriately, and inserted a vibrator into parts of K.F.'s body.
¶ 3. Scarlett Barnes, a social worker who talked with K.F. in a counseling session, also witnessed K.F. drawing pictures of what appeared to be penises and using explicit language to refer to the subject of those drawings when questioned. K.F. also drew pictures of sexual intercourse and mentioned the pictures were similar to events occurring at Foley's home the previous weekend. Josh Zacherias, a detective from the DeSoto County Sheriff's Department, was informed of the allegations of sexual abuse of K.F. by the Department of Human Services and obtained a search warrant to search Foley's home. Vibrators matching descriptions given by K.F. were found in locations where K.F. indicated they were kept. Stacks of compact discs containing pornographic images of children were also found in Foley's home and seized. Foley's home computer was also seized and later turned over the Federal Bureau of Investigation. Foley was arrested and charged with capital rape, sexual battery, and possession of child pornography. Foley was tried and found guilty of all counts in separate trials. On Counts I and II, the circuit court sentenced Foley to life imprisonment for the crime of capital rape and thirty years for the crime of sexual battery. On Count III, Foley was sentenced to twenty years for possession of child pornography.
¶ 4. The two separate appeals are consolidated into one opinion because of common issues of law and facts and for judicial economy. We will begin our discussion with issues common to both trials and then consider issues specific to one of Foley's two trials.
¶ 5. Many issues presented by Foley concern evidentiary rulings of the circuit court and will be examined under an abuse of discretion standard. Broadhead v. Bonita Lakes Mall, Ltd. P'ship, 702 So.2d 92, 102 (Miss.1997) (citing Sumrall v. Miss. Power Co., 693 So.2d 359, 365 (Miss.1997)). Issues requiring a different standard of review are noted below and analyzed accordingly.
¶ 6. Foley contends that in both cases the trial court erred by allowing statements of K.F. to be brought before the jury through the testimony of medical professionals who examined or interviewed K.F. The State called a number of medical professionals and counselors as part of its case-in-chief. One of those witnesses, Dr. Cash, was to testify as to statements made to her by K.F. Recognizing that such statements would be hearsay, the circuit court judge first determined that the statements of K.F. to Dr. Cash would be admissible under Mississippi Rule of Evidence 803(4) as a statement made for the purposes of medical treatment, and thus an exception to the hearsay rule of exclusion.1
¶ 7. K.F.'s statements made to Dr. Cash in the course of therapy fall easily into the exception outlined above. In addition to the exception under M.R.E. 803(4), the circuit court judge interviewed K.F. and found her to be unavailable as a witness due to her young age and because of developmental characteristics that would make questioning of her impractical, if not impossible. K.F.'s age, court-determined unavailability, and the nature of the allegations in the case put K.F.'s statements squarely within the tender years exception to hearsay as provided by Mississippi Rule of Evidence 803(25).2
¶ 8. As stated above, though, M.R.E. 803(25) requires a three-pronged test be met before a child's testimony may admissible in evidence under the tender years exception. First, it must be shown that a child of tender years has described some sexual contact with or on the child by another; second, the court must find that a number of factors show that the statements contain substantial indicia of reliability; and finally, either the child must testify at the proceedings or be unavailable. Before a child may be rendered unavailable, however, M.R.E. 803(25) requires that there be corroborative evidence of the act before the statement(s) be admitted. The first criterion is easily met inasmuch as K.F. was five to six years old at the time of her allegations of sexual abuse. As to the prong concerning substantial indicia of reliability, the comments to M.R.E. 803(25) give a number of factors to be considered when determining whether a child's allegations of sexual abuse meet the reliability standard.3
¶ 9. In the present case, the circuit court judge interviewed K.F. personally and examined the context of the statements she made. We find that K.F.'s statements had the requisite substantial indicia of reliability and the circuit judge's decision to apply the tender years exception to K.F.'s testimony was not in error. K.F.'s comments, spontaneously made to a number of professionals trained to detect abuse and its effects, showed an overwhelming sense of adult knowledge of sexual topics of which children in their earliest years should have no knowledge. Additionally, the statements were made without the presence of adults who might have coached her and, based on expert testimony, were voluntarily given and not elicited by certain questions. The defense objected to the reliability of K.F.'s statements by pointing out the possibility that K.F.'s allegations were related to a custody battle, that there were allegations of abuse by people other than Foley, and that K.F. exhibited signs of immaturity. The circuit court judge, though, was in the best position to make that determination, and there is no evidence that the circuit judge faltered in finding K.F.'s statements contained the required substantial indicia of reliability.
¶ 10. The hearsay exception under M.R.E. 803(25) requires that a child either testify or, if unavailable, the child's statements are corroborated with evidence of the act alleged. The circuit judge determined that due to age and developmental issues, K.F. was unavailable to testify. Foley argues that this also made her statements unreliable, but M.R.E. 803(25) expressly contradicts this argument by allowing an unavailable child's testimony to be admissible so long as it passes the safeguards to protect against untrustworthy testimony. There is no doubt that the overwhelming physical evidence of abuse to K.F.'s person corroborated the statements by K.F. alleging sexual abuse. Thus, K.F's statements met all the criteria to find admission under the tender years exception and the medical statement exception to hearsay. Foley incorrectly avers that the circuit court restricted his Sixth Amendment rights to cross-examine K.F. by allowing the testimony of medical professionals to bring in K.F.'s comments. Foley's argument ignores the fact that such allowances make up the basic nature of hearsay exceptions based on the unavailability of the declarant. Foley's arguments to the contrary are without merit.
¶ 11. Foley asserts an additional argument on this issue in the appeal of his second trial. Foley asks us to find that allowing such testimony violated his Sixth Amendment right to confront adverse witnesses as discussed by the United States Supreme Court's decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The United States Supreme Court's decision in Crawford held that out-of-court statements by witnesses that are testimonial in nature are not allowed under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Id. Foley argues that admitting the testimony of medical personnel and counselors concerning K.F.'s statements violates Crawford because he had no chance to cross-examine K.F. Under Crawford, Foley...
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