Hall v. State, 57940

• Decision Date: 09 February 1989
• Docket Number: No. 57940,57940
• Citation: 539 So.2d 1338
• Parties: Michael A. HALL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1338

539 So.2d 1338

57 USLW 2511

Michael A. HALL v. STATE of Mississippi.

No. 57940.

Supreme Court of Mississippi.

Feb. 9, 1989.

Minor F. Buchanan, Jackson, for appellant.

Mike Moore, Atty. Gen. by Pat Flynn, Sp. Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

ROBERTSON, Justice, for the Court:

I.

Today's appeal implicates the grand form of our government. The making of rules of evidence to govern trials in our courts is a function at the core of the judicial power. We have exercised that power by adopting the Mississippi Rules of Evidence, effective January 1, 1986. While the ink was yet wet on the pages of our rules book, the legislature purported to change and enlarge upon the Rules of Evidence by enacting the Evidence of Child Sexual Abuse Act. The two clash here, as substantial hearsay evidence presented in prosecution of this child sexual battery case has been held admissible under the statute, although excludable under the rules.

The legislature has enacted upon a matter at the core of the judicial power. In such circumstances the statute should not be enforced. The integrity of the judicial department of the government of this state demands no less.

II.

A.

Michael A. Hall, thirty-six years of age at the time of trial in July of 1986, was married to Sue Ann Strong Hall in 1971. The Halls had two children: Keith, born March 3, 1974, and Chad, born June 2, 1979. Hall and his wife were divorced in February of 1981 and Sue Ann Hall was given custody of the children.

In September, 1983, Sue Ann, by agreement, allowed the boys to go and live with their father, who at the time was living in a trailer in Edwards, Mississippi. Shortly thereafter, Hall moved to Vicksburg taking the boys with him. The next several years saw little stability in the lives of the two boys as they bounced back and forth between Hall and his ex-wife, between Warren and Hinds Counties.

At some time in 1983 the Hinds County Department of Public Welfare received a complaint that Chad was an abused child. In April of 1985, Debbie Graham, a social worker of the Hinds County DPW received a complaint that Chad was being sexually abused by his father. Shortly thereafter, Graham obtained an order from the Youth Court of Hinds County that Keith and Chad be removed from Hall's custody, and they were taken to Christians In Action Center, a children's emergency shelter.

At the shelter the children were interviewed by Brenda Chance, a social worker specializing in children's therapy. Chad was also physically examined by Dr. Julia Sherwood, a pediatrician. Collectively, the findings of Graham, Chance and Dr. Sherwood suggested that Hall was engaged in a continuous course of sexual abuse of his then five-year-old son.

B.

These proceedings were commenced on October 29, 1985, when the Grand Jury of the Second Judicial District of Hinds County, Mississippi, formally charged Michael A. Hall with sexual battery upon his son, Chad. See Miss.Code Ann. Sec. 97-3-95 (1985). The indictment specifically charged that between August 1, 1984, and September 30, 1984--later amended to November 15, 1984--Hall feloniously engaged in the sexual battery by penetrating Chad's anal opening with his penis.

On July 10, 1986, the prosecution sought to clear the way for use at trial of hearsay versions of Chad's complaints against his father, moving for an order declaring Chad "unavailable" as a witness, and citing the provisions of the recently enacted Evidence of Child Sexual Abuse Act, Miss.Laws, ch. 345 (1986), codified as Miss.Code Ann. Secs. 13-1-401, et seq. (Supp.1988). The motion recited that there was a substantial likelihood that Chad would experience traumatic or emotional distress if he were required to testify against his father in open court. Chad was examined and evaluated by Dr. Charleton E. Stanley, Ph.D., a psychologist, and by Kimberly Lee McAlister, a psychology technician, each of whom testified in support of the prosecution's motion. Prior to trial the court held that Chad was unavailable. Miss.Code Ann. Sec. 13-1-403(1)(c)(ii) (Supp.1988). The net effect of this ruling, if the statute be enforceable, was that out-of-court statements Chad had made to Graham and Chance would be admissible as evidence supporting the charge laid in the indictment.

The case was called for trial on July 21, 1986. The prosecution first presented evidence through Keith, Chad's ten-year-old brother, that Hall had indeed sexually abused Chad. Graham and Chance were called, each of whom reported to the jury conversations had with Chad. The essence of these conversations was statements by Chad describing a course of sexual acts his father performed on him. Beyond this hearsay evidence, Graham and Chance were each allowed to give an opinion that Chad was telling the truth when he said Hall had sexually abused him. Chance was also allowed to give an opinion that Chad exhibited behavior characteristic of a sexually abused child. ¹

The defense consisted primarily of Hall's denials of any improper or illegal sexual acts toward Chad. The defense called Dr. Daniel Cox, a psychologist, who questioned the credibility of the opinions offered by the prosecution experts.

At the conclusion of all of the evidence, the jury returned a verdict that Hall was guilty of sexual battery as charged in the indictment. The Circuit Court sentenced Hall to a term of twenty-five years imprisonment in the custody of the Mississippi Department of Corrections. Following denial of the usual post-trial motions, Hall perfected his appeal to this Court and presents a veritable plethora of assignments of error.

III.

A.

Our outcome determinative question concerns the admissibility of the extensive testimony of the two social workers, Debbie Graham ² and Brenda Chance, ³ of statements Chad made to them. Eschewing the child's graphics, Graham and Chance had Chad describing the ways in which his father had sexually abused him. Each of these statements is garden variety hearsay. Each is a statement made by another, Chad, to the respective witnesses, Graham and Chance, offered by the prosecution to convince the jury that Hall did to Chad what Chad said he did. See Rule 801(c), Miss.R.Ev.

B.

We first consider our Rules of Evidence, for if the testimony at issue is there found admissible our inquiry is at an end, subject only to Hall's Confrontation Clause challenge. ⁴ As we have said, what Chad told Graham and Chance, when relayed to the jury by Graham and Chance, is hearsay. "Hearsay is not admissible except as provided by law." Rule 802, Miss.R.Ev. [Emphasis supplied] We search for a valid law under which such hearsay may be admitted.

Rule 803, Miss.R.Ev., itemizes twenty-three specific exceptions to the hearsay rule. Evidence falling within one of these exceptions is admissible, notwithstanding that it be hearsay or that the declarant, Chad, be available to be called as a witness. Each of the statements Chad is said to have made to Graham or Chance described events said to have occurred weeks, if not months, earlier. The prosecution gains no profit from the excited utterance exception, Rule 803(2), Miss.R.Ev., ⁵ nor do we have a statement of Chad's then existing state of mind, for these are "statement[s] of memory or belief to prove ... fact[s] remembered ..." Rule 803(3), Miss.R.Ev. ⁶ Nor are these statements made for purposes of medical diagnosis or treatment. Rule 803(4), Miss.R.Ev. ⁷ Without doubt, Graham and Chance sought to aid and counsel Chad, but neither are they physicians nor may the services they rendered be stretched into the world of the medical. ⁸ See Cassidy v. State, 74 Md.App. 1, 536 A.2d 666, 678-89 (1988); contrast State Farm Mutual Automobile Insurance Co. v. Gregg, 526 So.2d 554, 557-58 (Miss.1988). No other specific exception within Rule 803 is remotely applicable.

Rule 803(24), Miss.R.Ev., furnishes a dynamic catchall. Hearsay not covered under any of the Rule's twenty-three specific exceptions may be admitted if it has "equivalent circumstantial guarantees of trustworthiness" and if certain other procedural requisites are met. ⁹ See Cummins v. State, 515 So.2d 869, 873 (Miss.1987). The record before us fails to reflect any "trustworthiness" finding by the Circuit Court, nor are we prepared to imply one. Moreover, neither we nor the Circuit Court have been presented argument that the statements Chad made to Graham and Chance are "more probative" than "any other evidence which the proponent can procure through reasonable efforts," See Rule 803(24)(B). Today's hearsay fails under Rule 803(24), but in so saying we are not saying similar evidence may never be received under this catchall hearsay exception, only that the proponent must satisfy the trial court that each of the requisites of the rule is met. See Cummins v. State, 515 So.2d at 873; State v. Smith, 315 N.C. 76, 90-98, 337 S.E.2d 833, 843-48 (1985). As we must review such matters, the trial court should preserve for the record its findings on each point suggested by the rule. Cf. Peterson v. State, 518 So.2d 632, 636 (Miss.1987).

Rule 804 provides further exceptions to the hearsay rule. These are available to a party only where the declarant is unavailable as a witness. Chad, of course, was physically present within the jurisdiction. He simply was not called. Rule 804(a) legally defines "unavailability as a witness." ¹⁰ We have considered carefully each of the five circumstances of "unavailability" provided in Rule 804 and find it inescapable that within the rule Chad was "available". The prosecution finds no aid or comfort in Rule 804's additional hearsay exceptions.

C.

These things said, we can but conclude that nothing in the Mississippi Rules of Evidence affords legal undergirding for Graham and Chance to tell the jury what Chad said. The State argues, however, that the Rules of Evidence are not the only form of law which may supply the rule it seeks. The State points to the Evidence of Child...