Hammond v. State, 94-02262
| Decision Date | 22 September 1995 |
| Docket Number | No. 94-02262,94-02262 |
| Parties | 103 Ed. Law Rep. 1276, 20 Fla. L. Weekly D2170 Michael Bush HAMMOND, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant
Attorney General, Tampa, for Appellee.
Michael Bush Hammond, who was convicted of committing lewd and lascivious acts, committing sexual batteries on mentally defective victims, and engaging in sexual activity while in a position of familial or custodial authority, has appealed on numerous grounds. Because the trial was infected with multiple errors, we reverse.
Two of the three youngsters who accused Hammond of various sexual acts were students of John Conklin at Lavoy Exceptional School; the third boy was a cousin of one of the other two. Hammond was a close friend of Conklin, who had rented a room to him for the previous thirteen years, and the two had lived together in Fort Myers and Ohio for sixteen years prior to moving to Tampa. Conklin was charged separately in this case and received a nonincarcerative sanction. Although Hammond had worked briefly at Lavoy in 1986, at the time of his arrest he worked as a teacher's aide in a school for the emotionally disturbed and emotionally handicapped at Northside Mental Health Center, and he also served as a part-time aide at Angels Unaware, a group home for developmentally disabled adults. On weekends he often maintained a booth at a flea market. During the period of the allegations of wrongdoing, Hammond twice appeared as the Santa Claus at the Lavoy Christmas party and he volunteered a pottery demonstration on another occasion, but he otherwise maintained no relationship with Lavoy.
Jimmy Allen, Charlie Thomas, and Ricky Steadman became acquainted with Hammond because Conklin would invite them to spend the night at his home. Although this practice was not approved by school officials, apparently it was not unusual for Lavoy teachers or those at other schools for the mentally handicapped to invite their students home to help them learn community and everyday life skills. Hammond, however, did not like Conklin's practice of allowing the young men to visit, particularly when Conklin was absent. If they rode their bikes to the Conklin home when Hammond was there alone, he would not permit them to stay. At least once Hammond confronted Conklin about the children, and their verbal differences escalated into a pushing and shoving match.
Over objection by defense counsel, the trial court found Jimmy Lee Allen, seventeen, who had an IQ of 50 and a mental age of six to eight, competent to testify. Jimmy said he went to Lavoy School from the time he was thirteen until he was fifteen, where his favorite teacher was Mr. Conklin. Jimmy first agreed with the prosecutor that while he was a student at Lavoy, Conklin took him on trips off the school campus and took him to Conklin's home, sometimes for overnight visits. However, Jimmy later said that he started going to Conklin's house when he was sixteen, and his visits there were over the course of one year. Jimmy knew that the Conklin house was red, but he could not remember its exact location. He also knew that Mike Hammond lived there.
Jimmy had his own upstairs bedroom at Conklin's house, where he slept alone. Jimmy testified that on one occasion when he was sixteen, he was seated on the downstairs sofa when Hammond touched his penis to the outside of Jimmy's mouth on his upper lip. Hammond's penis did not penetrate Jimmy's mouth, because Jimmy moved his face away. Jimmy did not know what time of year this happened. When asked if it happened in 1990, 1991, or 1992, Jimmy responded it happened all year. He said, "Yep," in response to the question, "It happened all year one time?"
Over objection, Jimmy testified that Conklin and a man named Preston did other things to him at other times. Jimmy never said anything about any incidents with either Hammond or Conklin until he talked to the police. The defense impeached Jimmy with his deposition, in which he admitted that he had told the police he had made up his initial allegations against Conklin, explaining that he was jealous and angry at Conklin for paying attention to other kids. Jimmy agreed that it might be true that he threatened to get Conklin or Hammond in trouble.
Eighteen-year-old Charlie Thomas, who had an IQ of 45 to 50 and a mental age of five or six, was found competent to testify over defense objection. Charlie went to Lavoy School from the time he was thirteen until he was seventeen. Charlie used to visit Conklin on the weekends at Conklin's house. Other kids, including Charlie's brother J.B., Jimmy Allen, and Ricky Steadman, would also play there.
Charlie testified that when he was sixteen, Hammond once pulled down Charlie's pants and then put Charlie's penis in his mouth. Charlie tried to get away but could not. He did not know what time of year this incident occurred, but he thought that it happened in the living room at night when he first started going over to Conklin's. He continued to visit Conklin's house until he was eighteen because he and his brother had a Nintendo over there. Charlie never told anyone about the incident. When first questioned by the school principal, an HRS representative, and the investigating detective about what had happened, Charlie did not say anything. When reminded of his previous statements, Charlie could not remember having said that Mr. Hammond only touched his penis.
The competency of Ricky Steadman, who was thirteen years old but had a mental age of eight to ten, also was at issue. Ricky testified that he first went to Conklin's house when he was eleven or twelve, and there were other kids there at the same time. During the first week he started going to Conklin's house, Ricky went into Mr. Hammond's room to change clothes. There Hammond pulled down Ricky's pants and molested him. Ricky stated that, while he was standing up, Hammond stuck his penis inside his "butt." On cross examination Ricky admitted that he had initially said that the incident occurred with Hammond on top of him on the bed, but when reminded that Hammond's 300-pound-plus weight could have crushed him, he changed his mind and said the incident happened when he was standing up. Ricky felt that this occurred sometime around the month of February, but he was not sure in what year.
Two or three years later Ricky told his mother about what Hammond had done to him. About two months after his mother had called the police and he had described the event to an officer, after Jimmy Allen had gotten into some trouble, Detective Townly began questioning Ricky about the incident. Ricky said that he talked to the detective after having been told by some other kids that he could sue and get money. The detective and a man named Mike Atkins from HRS took him out to eat many times, bought him a basketball, and talked to him about the molestation almost every day until the trial.
Ricky knew he was thirteen years old at the time he was testifying (April 1994) and that his birthday was in September. However, he thought he was twelve years old the past December (1993) and that he turned eleven in 1991. Ricky alleged that everything happened in the first week he went to the Conklin home but that he was never molested again. Ricky's IQ was 90, in the borderline range between normal and mentally deficient.
We have detailed the testimony of the accusers because the prosecution's entire case essentially rested upon their shoulders. No medical evidence corroborated their allegations, possibly because of the passage of time. Although all of the boys testified that other boys were at the Conklin home when they visited, there were no witnesses to any of the alleged lewd acts. Hammond testified in his own behalf, denying all of the charges. The defense theory was that the boys were angry with Hammond for not welcoming them into the Conklin...
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