Hobgood v. State
| Decision Date | 23 March 2006 |
| Docket Number | No. 2004-KA-01917-SCT.,2004-KA-01917-SCT. |
| Citation | 926 So.2d 847 |
| Parties | Richard HOBGOOD a/k/a Ricky Buchanan Hobgood v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
George T. Holmes, Jackson, attorney for appellant.
Office of the Attorney General, by Deirdre McCrory, attorney for appellee.
EN BANC.
¶ 1. On January 28, 2004, Richard Hobgood was convicted in the Hinds County Circuit Court, First Judicial District, of sexual battery of a child under the age of 14, pursuant to Miss.Code Ann. Section 97-3-95(1)(d). He was sentenced to life in the custody of the Mississippi Department of Corrections, pursuant to Miss.Code Ann. Section 97-3-101(3). Hobgood asserts the trial court erred by: (1) ruling the victim was unavailable pursuant to Miss. R. Evid. 804; (2) allowing hearsay evidence under the tender years exception; (3) allowing the State to bolster its case with double hearsay; (4) allowing the State's expert witness to vouch for the victim's credibility; (5) allowing expert opinion testimony on child sexual abuse; (6) precluding Hobgood from presenting evidence in defense of his charges based on relevancy; and (7) sentencing Hobgood to life, without a hearing, an opportunity to present mitigating evidence, or considering other penalties. Finding no reversible error, we affirm the trial court.
¶ 2. From June 1, 2000, until June 27, 2001, Hobgood, then age 28, was living with his girlfriend in Jackson. Due to his girlfriend's emotional problems and difficulties with Hobgood, her two minor children lived with their maternal grandmother, Jane Doe1. However, for a period of time, their mother regained custody, and the two children lived with her and Hobgood.
¶ 3. On June 28, 2001, Christina Cooke was baby-sitting the victim and his sister while staying at Doe's home. The victim, who was 5 years of age at that time, approached Cooke and asked if he could tell her a secret. He then proceeded to describe to Cooke how Hobgood forced him to lie on the bed and performed anal sex on him, something which the victim called "bad medicine." Cooke then called Doe and informed her that she needed to return home. When Doe arrived, Cooke asked the victim to tell Doe what he had told her, and he repeated the story "word-for-word."
¶ 4. Doe and Cooke took the victim to see psychotherapist Denise Detotto. Detotto spoke individually with each of them about the victim's allegations and then directly questioned the victim. When asked, the victim told Detotto that:
Ricky Hobgood had been giving him bad medicine. When I asked what he meant by that he said that Mr. Hobgood would have him pull his pants down and he would put his thing in his bootie, that there would be water and that Mr. Hobgood would then wipe off the water with a towel.
Detotto testified that the victim told her it happened frequently and that it was painful. She also testified that the victim was told to do "bad medicine" to his younger sister.
¶ 5. Following the meeting with Detotto, the victim was taken to the University of Mississippi Medical Center where he met with Dr. Gowdagere Srinath, a pediatrician. The victim gave a vivid description of the abuse to Srinath, which included a demonstration of a humping movement. Dr. Srinath testified that his physical examination of the victim revealed decreased anal tone, which was consistent with the description of abuse the victim had given him. While at UMMC, the victim also met with Jackson Police Department Officer Jay Albright, and described what Hobgood had done. Albright also questioned Doe and a social worker with whom the victim had met.
¶ 6. On January 26, 2004, the court held a pre-trial hearing on the State's motion to have the victim declared unavailable so his testimony could be admitted under the tender years exception. The State called Detotto to testify, and established that she has a master's degree in psychology with a specialization in clinical mental health, and attended a four-year doctoral program at the Massachusetts School of Professional Psychology. During the first and second years she took part in clinical programs and was assigned to the children's assessment team at the University of Massachusetts Medical Center in Worcester, Massachusetts. After eliciting her significant credentials, the state began questioning Detotto regarding her examination of the victim. The record does not reveal that the State moved to qualify her as an expert, but neither does the record reveal that Hobgood objected to her testimony.
¶ 7. Detotto further testified that the victim attended therapy sessions with her for slightly more than one year. In her opinion, the victim would be re-traumatized, "like taking a scar [sic] off a wound", if forced to testify in front of Hobgood since he had not seen him in two years. The trial court found, pursuant to Miss. R. Evid. 804(a)(6), there was substantial likelihood the victim's emotional or psychological health would be substantially impaired if he were required to testify in the physical presence of the accused, and therefore declared him to be unavailable.
¶ 8. Hobgood now contends the trial court erred in this determination, because its decision was based on an expert opinion that was not properly elicited pursuant to Miss. R. Evid. 7022. However, Hobgood failed to object to Detotto's testimony in the hearing, and thus is procedurally barred from raising this issue on appeal. See Robinson v. State, 585 So.2d 735, 737 (Miss.1991). Notwithstanding the procedural bar, Hobgood's argument is also without merit.
¶ 9. Although this Court has not specifically addressed the standard to be applied when qualifying a witness as an expert in child abuse cases, it is clear from the record that the trial court found Detotto qualified to deliver expert testimony. However, this is not what Hobgood challenges.
¶ 10. Hobgood challenges the State's failure to use the magic words of "tendering" Detotto as an expert witness during the pretrial hearing.3 To find in favor of Hobgood would put form over substance so as to cause a miscarriage of justice. The State and the trial court complied with Rule 702, in eliciting Detotto's qualifications in open court. Hobgood was put on notice of her qualifications, credentials and the nature of her testimony. Hobgood had ample opportunity to challenge these qualifications but chose not to do so. We find Hobgood's argument without merit.
¶ 11. The trial court admitted the victim's statements regarding Hobgood's "bad medicine", under Miss. R. Evid. 803(25), the tender years exception. These statements and a description of the abuse were testified to by: Doe, Cooke, Detotto, Albright, Srinath and Detective Carnell Kitchens. Hobgood asserts their testimony violated his right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the United States Constitution and Article 3 Section 26 of the Mississippi Constitution, citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). However, Hobgood failed to contemporaneously object to this testimony, but because Hobgood raises an issue implicating his fundamental rights, it is not procedurally barred. This Court reviews the admission or exclusion of evidence for abuse of discretion. Clark v. State, 891 So.2d 136, 139 (Miss.2004) (citing Herring v. Poirrier, 797 So.2d 797, 804 (Miss.2000)).
¶ 12. Crawford only applies to the use of testimonial statements, and unfortunately the United States Supreme Court left "for another day any effort to spell out a comprehensive definition of `testimonial'". Crawford, 541 U.S. at 68, 124 S.Ct. 1354. In this Court's recent decisions in Clark, 891 So.2d at 140 and Burchfield v. State, 892 So.2d 191, 202 (Miss.2004), we concluded that a statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused. That is clearly not the circumstance in the present case. Thus, the trial court did not err in admitting the testimony of Doe, Cooke, Detotto or Srinath, as the victim's statements related by them were not testimonial under Crawford.
¶ 13. These individuals were not working in connection with the police. Further, their statements were not made for the purpose of aiding in the prosecution. There was a previous relationship between the victim and Doe and Cooke. The victim's unsolicited statements were made to them for the sake of his well-being and not for the purpose of furthering the prosecution. The same can be said of statements to Detotto and Srinath. While no previous relationship existed, the purpose of these statements was to seek medical and psychological treatment. The victim was taken to Detotto and Srinath at the family's request and not sent there by police to further their investigation. Had the police directed the victim to seek treatment from a doctor and a therapist for the purpose of discovering evidence to aid in the investigation then it might be possible for the statements to implicate the Confrontation Clause.
¶ 14. The statements testified to by Albright and Kitchens were testimonial and should have been excluded. Therefore, the trial court erred in admitting them. However, similar testimony was properly admitted from four other witnesses. Therefore, this testimony was duplicative, and the error is harmless.
¶ 15. When Albright arrived at UMMC, he met with DHS personnel, a social worker and Doe. When called at trial, the State questioned him regarding his conversations with Doe and the social worker. Albright testified, over objection, to the details of the abuse related by Doe and the social worker. The trial judge overruled Hobgood's objection ...
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