Hosford v. State
| Decision Date | 27 April 1988 |
| Docket Number | No. 57567,57567 |
| Citation | 525 So.2d 789 |
| Parties | Billy HOSFORD v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Richard W. Hamilton, Pascagoula, for appellant.
Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Leyser Q. Morris, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and PRATHER and SULLIVAN, JJ.
Billy Hosford appeals from his conviction of sexual battery of felonious sexual penetration of a child under twelve years of age, and sentence to thirty years in prison.
We reverse Hosford's conviction because of the erroneous admission of inflammatory irrelevant evidence and prosecutorial
misconduct. Of necessity, we also address the responsibility of the trial judge to see that his court has adequate facilities to conduct a trial.
Hosford was indicted by the Greene County grand jury on December 10, 1985, for the felonious sexual penetration of Anna Woodall, a child under twelve years of age on June 16, 1985, in violation of Miss.Code Ann. Secs. 97-3-95 and 97-3-97. Anna was born September 27, 1976, and was eight years old at the time.
Mrs. Sheila Hosford had four children by a previous marriage, and she and Hosford had one child. On Sunday, June 16, 1985, Hosford and Mrs. Hosford and their children spent the afternoon on a picnic with Jerry and Alice Woodall, two of their children, Anna and Kimberly, and Stacy Webb, a twelve-year-old who lived with her father in Birmingham.
When the frolic was over, Anna and Kimberly and Stacy Webb wanted to spend the night with Tabitha and Angela Duiett at the Hosfords. The parents agreed. Two of the Hosfords' children stayed overnight with the Woodalls.
The Hosfords lived in a trailer with two bedrooms. The air conditioner in the back bedroom was not functioning on that warm night, so Hosford and Mrs. Hosford and all six children spent the night in the living room where there was a bed and couch. Anna slept on the bed.
When she got her children the next day, Mrs. Woodall was told by Anna that Hosford had engaged in cunnilingus with her the night before while they were in bed.
Following his trial on March 24, 1986, the jury returned a verdict of guilty, and Hosford has appealed.
We have examined the record and concluded that, while factually weak, a jury issue was made on Hosford's guilt. We recognize that in cases of this nature, when the prosecuting witness is of tender years and must testify on the most intensely personal matter a child could be called upon to relate under circumstances that would be extremely difficult even for an adult, that the State is faced with what at times must appear an insuperable burden. 1 Constitutional due process absolutely requires, however, that credible evidence subject to cross-examination be adduced before a court and jury before any accused can be convicted of a crime. Neither the State nor this Court is at liberty to change this.
Hosford complains of Anna's statements to her mother on Monday when Mrs. Woodall picked her up, and on Tuesday when she told her what Mrs. Hosford had said to Hosford when he was molesting her. Because we are reversing this case for a new trial on other grounds, we do not address this assignment of error. Upon retrial the circuit judge should carefully evaluate the Tuesday statement by Anna to her mother and determine whether it is competent and admissible.
Over strong objection and protest by defense counsel the State's attorney cross-examined Hosford about his physical abuse of Mrs. Hosford, and complaints made in Youth Court and with the county welfare department about his mistreatment of his stepchildren and Mrs. Hosford. Mrs. Hosford was also asked if Hosford had physically abused her, and about her complaints to the welfare department of physical abuse by her husband to her and the children. Then, in rebuttal the State offered Reece McCoy, an employee of the county welfare department who investigated child abuse matters. Over defense objection he was permitted to testify that his office had Again, over the objection of the defense, the State asked the following series of questions of Hosford:
investigated and made two reports on violence in the Hosford family. The circuit judge did, however, refuse to permit the State to ask McCoy the details of the reports. This particular line of questioning dealt with alleged acts of violence of Hosford towards his wife and stepchildren, none intimating sexual conduct.
A. I haven't fooled with nobody.
Q. You haven't fooled with nobody?
A. No, sir.
Q. You haven't fooled with Tabitha?
A. No, sir.
Q. You haven't fooled with Richard?
A. No, sir.
Q. You haven't fooled with Crystal?
A. No, sir.
Q. You haven't fooled with Angela?
A. No, sir.
Q. You have never made Tabitha place her mouth on your penis?
A. No, sir.
Q. Never?
A. Never.
Q. So if she were to come in this courtroom and tell this jury that you made her do it, that would be a lie, too?
The State had made no effort during the presentation of its case in chief to present evidence of Hosford's violence toward his own family, or acts of sexual, deviant conduct with his stepchildren.
We first note that the State was obligated to present all relevant evidence bearing upon Hosford's guilt as part of its case in chief, not initially through cross-examination of the defendant and his witnesses, and then offering evidence of such conduct in rebuttal. In Roney v. State, 167 Miss. 827, 150 So. 774 (1933), we held:
[I]t is the general rule in this state, as elsewhere, that the party who has the burden of proof, and the duty to open the case, must in his opening, and before he rests in his proof, introduce all the substantive evidence upon which he relies to establish his demand, and the extent of that demand....
167 Miss. at 830, 150 So. at 775. We further stated that it was only when it was necessary "that justice may be done," that the rule be relaxed. We then laid down the following rule:
[S]o it is that appellate courts do not attempt to lay down precise rules for the control of the discretion of the trial courts in this matter, else the discretion would be unduly limited and hampered; but there is a rule which will be found of substantial aid in this connection, and while obviously not at all inclusive of all cases, it will cover most cases. That rule is that when the question is not free from doubt whether the evidence offered in rebuttal is that which belongs to the evidence in chief, or whether it is rebuttal evidence proper, the court should resolve the doubt in favor of the reception in rebuttal where (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, and (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal. [Emphasis added]
167 Miss. at 831-32, 150 So. at 775-76.
Clearly, this rule requires that there be some doubt as to whether the proposed evidence is properly a part of the case in chief or rebuttal. It is only in such doubtful cases that it should be permitted. Manifestly, no party should be permitted as a deliberate trial tactic to decide in advance of trial to withhold a part of his case in chief, but instead attempt to suggest such evidence in cross-examination of the witnesses for the opposing side, and then offer the evidence in rebuttal. See: People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615, 623 (1955).
Moreover, evidence of Hosford's physical abuse of his wife or stepchildren was not simply procedural error, but was Turning to the State's cross-examination of Hosford about acts of deviant, sexual conduct with his stepchildren, we again note that if the State had possessed any evidence of such misconduct and deemed it relevant to the issue of his guilt, it was under a duty to make profert of it as part of its case in chief. Roney v. State, supra. At that time its competency, which we do not deem necessary to address on this appeal, could have been tested. Profert could have been made to the court in chambers without inflaming the jury. If the court had determined such evidence admissible, it would have been proper for the State to offer what proof it had, and when Hosford and other defense witnesses took the stand, to cross-examine them fully and at length as to any such conduct. This salutary procedure was ignored. In the absence of some showing of necessity under the guidelines of Roney v. State, supra, it was reversible error to permit the State to present its case in this manner.
also manifestly incompetent at any stage of the trial proceedings. It was evidence of other misconduct which had no probative value on the issue before the jury, and which was inflammatory and extremely prejudicial. Neither at trial nor on appeal has the State suggested a plausible excuse for this line of questioning. 2
The error was egregiously compounded by the fact that the State, insofar as this record shows, had no evidentiary basis to ask such questions. Wide latitude should be given in the cross-examination of witnesses, but basic fairness requires that before the State asks questions to the accused directed to whether he is guilty of a series of totally different crimes, it have some basis in fact to ask them. This would be the case even if commission of such crimes were admissible evidence before a jury. Even though the defense objection was sustained, the State's conduct in asking these questions constituted reversible error.
The prosecuting attorney as a representative of the State has an obligation to be fair in his prosecution. This is an obligation he can fulfill without relaxing his solemn duty to vigorously prosecute. In ...
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