Hibbler v. State

• Decision Date: 20 June 2013
• Docket Number: No. 2010–KA–01124–COA.,2010–KA–01124–COA.
• Citation: 115 So.3d 832
• Parties: R.C. HIBBLER, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

115 So.3d 832

R.C. HIBBLER, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–01124–COA.

Court of Appeals of Mississippi.

Oct. 23, 2012.

Rehearing Denied April 2, 2013.

Certiorari Denied June 20, 2013.

Ottowa E. Carter Jr., attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

EN BANC.

ROBERTS, J., for the Court:

¶ 1.A jury sitting before the Noxubee County Circuit Court found R.C. Hibbler guilty of statutory rape.The circuit court sentenced Hibbler to twenty years in the custody of the Mississippi Department of Corrections(MDOC).Hibbler appeals.Because we find merit to Hibbler's claim that he received ineffective assistance of counsel, we decline to address Hibbler's claims that there was insufficient evidence to find him guilty and that the jury's verdict is contrary to the overwhelming weight of the evidence.Consequently, we reverse the judgment of the circuit court and remand this matter for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2.Hibbler's conviction stems from his contact with Jane,¹ a thirteen-year-old girl who had been diagnosed with “reactive attachment disorder” and who has been described as having “borderline intellectual functioning.”It is undisputed that Jane visited Hibbler's home to play with Hibbler's twin daughters on Saturday, April 16, 2005.Hibbler was sixty-nine years old at that time.

¶ 3.The following Tuesday, Jane told an unidentified “case manager” that Hibbler had raped her the previous Saturday.She had not told her family or anyone else that Hibbler had raped her.The case manager told Jane's school counselor, Travonder McCloud, that Jane said she had been raped.That same day, McCloud relayed Jane's allegation to the Macon Police Department.Later that Tuesday, Robert Brown, the Macon Chief of Police, and Janie Tate, a social worker, took Jane to see Dr. Sykes,² a pediatrician.Dr. Sykes examined Jane and concluded that her hymen was still intact.Dr. Sykes also recommended that Chief Brown and Tate take Jane to be examined by Dr. Mark Burtman, a obstetrician and gynecologist.Still that same day, Dr. Burtman tested Jane for sexually transmitted diseases and concluded that Jane had chlamydia.On April 28, 2005, Chief Brown and Tate took Jane to meet with Carla Horne, a Licensed Professional Counselor with the East Mississippi Children's Advocacy Center.

¶ 4.On June 29, 2005, Hibbler voluntarily went with Chief Brown to the Noxubee County Health Department, where Hibbler was tested for sexually transmitted diseases.Hibbler did not have chlamydia.Approximately two months later, Hibbler was indicted and charged with statutory rape.He pled not guilty and hired Attorney Jeffrey Hosford to represent him.³

¶ 5.Hibbler went to trial in March 2008.The prosecution called Jane, who was sixteen years old at that time, as its first witness.The circuit court allowed the prosecution to ask Jane leading questions during direct examination due to what the circuit court later described as Jane's “obvious ... diminished intellectual functioning.”

¶ 6.Jane testified that on April 16, 2005, she had been playing outside Hibbler's house with Hibbler's twin daughters when Hibbler told her to “come in the house.”Jane said that Hibbler “pulled [her] in [his] room” after she complied.According to Jane, Hibbler “put [her] on the bed” and “had sex with [her].”When asked to explain what she meant, Jane said, “He raped me.”Jane testified that she did not see any of Hibbler's “body parts,” but Hibbler hurt her and made her bleed.Jane further testified that when Hibbler was finished having sex with her, he slapped her and told her, “Don't tell.”Jane said she then got dressed and ran home.When the prosecution asked Jane to identify Hibbler, the following exchange transpired:

Q.And the individual that you've indicated here is Mr. Hibbler, the one who had sex with you.Is that—do you see him in the courtroom today?

A.(No verbal response).

Q.If you would just take a minute and look around the courtroom and see whether or not he's in here.Do you see him in the courtroom, [Jane]?

A.(No verbal response).

Q.Do you see Mr. Hibbler here, [Jane]?If you see him, could you point to him, please, ma'am?

A. [ (]The witness pointed to Mr. Hibbler).

The following exchange is Hosford's entire cross-examination of Jane:

Q. [Jane]—

A.Yes.

Q. —were you diagnosed by the doctors with a condition called [c]hlamydia?

A.Yes.

Q.And you had to take medication for that; is that correct?

A.Yes.

Q.And after that, you went to see several doctors, didn't you?

A.Yes.

¶ 7.Next, the prosecution called McCloud, who testified regarding her involvement in relaying Jane's report.During cross-examination, Hosford asked McCloud to elaborate regarding why she had been counseling Jane for approximately two years.McCloud responded that Jane “has what we call reactive attachment disorder.She has a diagnosis—she had a diagnosis of—I can't remember, borderline intellectual functioning or something.”McCloud elaborated that reactive attachment disorder occurs “when the child is not getting everything that she needs at home[, so]she develops an attachment.”McCloud went on to testify that “it's hard for [Jane] to socialize.”

¶ 8.The prosecution called Horne as an expert forensic interviewer.The prosecution asked Horne to explain “the protocol that [she] used” when she interviewed Jane.Horne explained, and then said that during her interview, Jane had said that Hibbler had “touched her on her pancake.”Next, the prosecution asked Horne to identify a document.Horne again testified that Jane had said that she had been touched “on her pancake.”Horne clarified that Jane meant “where you go to the potty.”Hosford did not object to Horne's hearsay testimony.

¶ 9.Hosford finally objected when Horne began to testify as to what Jane said when Horne had asked Jane, “[W]hat did he touch you with[?]”The circuit court excused the jury from the courtroom.During arguments on the admissibility of Horne's hearsay testimony, the prosecution requested a hearing on the tender-years exception.The circuit court later stated that “Hosford should have objected to the testimony of the witness to begin with that she is not competent as a witness.”The circuit court went on to state that “if you had made an objection to the child testifying ..., I might have declared the child unavailable.”Ultimately, the circuit court held that Horne was prohibited from testifying as to what Jane said during her interview.However, the circuit court further held that Horne would be allowed to “testify as to her observations of [Jane's] demeanor,” and that Horne could “offer an opinion as to whether or not the symptoms and characteristics she observed in [Jane were] consistent with the symptoms and characteristics of small children who have had sexual abuse.”After the jury returned to the courtroom, Horne testified that Jane's “knowledge of sexual—her knowledge about the physical body changes in someone who is having sex.She shouldn't have that knowledge unless she's been provided that information from somewhere.”

¶ 10.During cross-examination, Horne conceded that “[thirteen-]year [-]old children get pregnant every day.”Horne also admitted that she had not asked Jane whether she had any other sexual experiences.Next, Chief Brown testified that his observation of Hibbler's bedroom was consistent with Jane's description.

¶ 11.Called as an expert witness, Dr. Burtman testified that Jane denied that she had ever had any sexual contact with anyone other than Hibbler.Dr. Burtman confirmed that Jane tested positive for chlamydia.Dr. Burtman testified that he decided to test Jane for sexually transmitted diseases after he discovered that Jane had a white vaginal discharge.According to Dr. Burtman, the only way that Jane could have tested positive for chlamydia was “if there was actual penile penetration of the vagina.”

¶ 12.Dr. Burtman also testified that the antibiotic Azithromycin can successfully treat chlamydia in approximately two to four weeks.The prosecution asked Dr. Burtman the following hypothetical question: “If a male had [c]hlamydia on April the 16th, 2005, would he have time to clear up, say, in late June or July?”Dr. Burtman answered, “It's entirely possible even without treatment he may become negative after a matter of a few weeks.So, yes, by June he could be completely free of the disease.”

¶ 13.On cross-examination, Dr. Burtman testified that Jane's hymen was intact when Dr. Sykes examined her.However, Dr. Burtman explained that Jane's hymen could remain intact even if Hibbler had intercourse with her.When asked whether he could “say [with] medical certainty that [chlamydia] would have cleared up in two to three weeks,” Dr. Burtman conceded that he could not be certain, but it was possible.Dr. Burtman added that some people contract chlamydia and clear up without even realizing that they had ever been infected.

¶ 14.Hibbler's first witness was Jane's mother, Cathy.⁴Hosford attempted to have Cathy testify that she told Hibbler's wife, Betty, that Jane had said that Hibbler did not rape her.However, Cathy denied that she had ever told Betty that Jane had lied about Hibbler raping her.Cathy's testimony did not benefit Hibbler's defense in any way.Hibbler's wife, Betty, testified after Cathy.Betty testified that Hibbler was diabetic and that he had suffered from erectile dysfunction during their entire twenty-year marriage.According to Betty, she and Hibbler had never had intercourse.⁵

¶ 15.Betty also testified that Cathy had said that an unspecified person persuaded Jane to falsely accuse Hibbler.Hosford never asked Betty whether she had tested positive for chlamydia.During cross-examination, the prosecution asked Betty to elaborate on whether she and Hibbler had ever had intercourse.Betty answered, “We make out every now and then.”She also...