Hosford v. State

• Decision Date: 21 March 1990
• Docket Number: No. 07-KA-58055,07-KA-58055
• Citation: 560 So.2d 163
• Parties: Billy HOSFORD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 163

560 So.2d 163

Billy HOSFORD v. STATE of Mississippi.

No. 07-KA-58055.

Supreme Court of Mississippi.

March 21, 1990.

Rehearing Denied May 23, 1990.

Fielding L. Wright, Jr., Pascagoula, for appellant.

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice Jan. 3, 1989, Mike C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, PRATHER and ANDERSON, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Billy Hosford was indicted, tried and convicted in the Circuit Court of Greene County, Mississippi, on a charge of sexual battery and sentenced to a term of thirty (30) years in the custody of the Mississippi Department of Corrections. He has appealed here and assigns three (3) errors in the trial below.

The victim in this case is a female child, who was eight (8) years of age at the time of the crime. On January 13, 1985, the sister of the victim was admitted to Greene County Hospital for treatment of tonsillitis. Her mother stayed at the hospital with the child that night. Other members of the family who were left in the home with the victim during the night were three children, girls, ages 10 and 6, and a boy, age 7 and appellant, the children's stepfather. While the victim was sleeping in her bunk bed, appellant entered her room, nude, awakened her and "put his thing" between her legs and then into her mouth, where he kept it until "stuff came out." The victim testified that by "his thing" she meant "private part."

I.

THE LOWER COURT ERRED IN REFUSING TO GRANT A MISTRIAL WHEN EVIDENCE OF OTHER CRIMES AND VIOLATION OF OTHER COURT ORDERS WERE ADDUCED OVER THE OBJECTIONS OF THE APPELLANT.

The victim was called as the first witness for the State. After she testified to facts related hereinbefore, the prosecutor asked her the following question:

Q. Has Billy ever done this to you before,--

A. (The victim nodded "Yes")

At this point, without making an objection or asking that the jury be admonished to disregard the question and answer, appellant's counsel requested a mistrial. It was denied and the trial proceeded.

Appellant based his motion for mistrial solely on the issue of past crimes. Now he also contends that the crimes were vague and remote. In Sims v. State, 512 So.2d 1256 (Miss.1987), the Court said:

[T]his Court's longstanding rule must again be reiterated, that when an objection is made at trial on one ground and on another ground on appeal, we will not accept such untimely argument as a ground for reversal. [citations omitted] ... An objection to evidence may not be made upon one ground in the lower court and be presented upon an entirely different theory in this Court.

Sims v. State, 512 So.2d at 1258. This Court has held in similar cases of sexual battery involving small children that admission of evidence of "substantially similar prior sexual acts with the same person" are properly admitted. Coates v. State, 495 So.2d 464, 468 (Miss.1986); Hicks v. State, 441 So.2d 1359, 1360-61 (Miss.1983); Speagle v. State, 390 So.2d 990, 993 (Miss.1980); Davis v. State, 367 So.2d 445, 446 (Miss.1979).

Counsel for appellant called appellant's wife, the mother of the victim, who testified that at the time of the alleged offense, the family had no bunk beds. This was contradictory to the victim's testimony. On cross-examination, the prosecutor asked her when the bunk beds were acquired. She replied that the beds were acquired in August of 1985. The following questions were then asked:

Q. Who bought them and installed them, put them up?

A. Who bought them and installed them; Billy.

Q. Billy Hosford?

A. My husband.

* * * * * *

Q. About a year ago, after Billy had been ordered not to see these children?

BY MR. HAMILTON: Your Honor, I'm going to object. This is hearsay.

BY THE COURT: Overruled. Go ahead.

BY MR. HARKEY:

Q. Do you know Billy was ordered not to see those kids?

A. That's right.

Q. So he got the bunk beds and installed them at a time that he wasn't supposed to be there in the home at all?

A. No, he did not. He never came to the home when he was ordered not to come.

BY MR. HAMILTON: Your Honor, what has all this got to do with anything?

BY MR. HARKEY: I'm testing her credibility, Judge, her story.

BY THE COURT: Go ahead....

Appellant contends that admission of the testimony about a court order deprived him of a fair and impartial trial. However, the questions by the prosecutor were for the purpose of discrediting the witness and to show that the bunk beds were in the house at the time of the crime; that, according to Mrs. Hosford's admission, appellant had not violated the court order forbidding him to come to the family home; that, if he couldn't have come to the home, he couldn't have installed the bunk beds in August of 1985; and that the beds would have had to have been in the home at the time of the sexual battery in January of 1985. This Court has held that where facts are susceptible of two interpretations they constitute a fair target for the State's cross-examination. Hines v. State, 472 So.2d 386, 391 (Miss.1985); see also Shanklin v. State, 290 So.2d 625 (Miss.1974), where this Court said:

"Whether a question put on cross-examination calls for collateral fact, or whether it is within the scope of the direct examination is always for the court to determine. The court's discretion, where properly exercised, will not be interfered with on appeal."

Id. at 628.

Mrs. Hosford testified that she did not believe the incident related by the victim.

The assigned Error I is rejected.

II.

THE LOWER COURT ERRED IN ALLOWING THE STATE'S EXPERTWITNESS TO TESTIFY, OVER THE CONTINUOUS OBJECTIONS OF THE APPELLANT, AS TO HEARSAY AND AS TO SUCH MATTERS AS HER OPINIONS ON THE PROSECUTRIX'S TRUTHFULNESS, THEREBY IMPROPERLY BOLSTERING THE TESTIMONY OF THE PROSECUTING WITNESS AND DENYING THE APPELLANT'S RIGHT TO A FAIR TRIAL.

Appellant next contends that the testimony of Brenda Chance, a child therapist, contained inadmissible hearsay and further impermissibly bolstered the testimony of the victim. The prosecution characterizes the testimony of Brenda Chance as two-pronged, i.e., (1) that which recounted things told to Chance by the victim, and (2) that which comprised Chance's expert opinion concerning the victim's behavior. The State argues that both forms of testimony were admissible. We address each category separately but first overview the fabric of the testimony given by therapist Chance.

Much of Chance's testimony involved a description of characteristics and traits common among sexually abused children. She indicated that the victim in this case exhibited the described characteristics and, in her opinion, had been sexually abused. She further testified that while the victim had likely been abused by more than one person, that appellant was the most threatening due to his family status as a primary provider. According to Chance, the victim saw herself as a maternal figure and protector of appellant due to the psychological damage she sustained from the abuse. Chance was specifically asked by the prosecutor if there were any possibility that the victim had confused appellant with any other individual who had abused her. Chance replied in the negative.

At issue in this part of Chance's testimony are two claims: (1) that her testimony concerning the veracity of the victim's complaint was impermissible "bolstering", and (2) that testimony regarding child abuse syndrome characteristics was improper expert testimony under the 700 series of the Mississippi Rules of Evidence.

With regard to the complaint of bolstering, appellant relies on House v. State, 445 So.2d 815 (Miss.1984) for the proposition that when an expert witness testifies that he believes a prosecution witness is telling the truth, the testimony constitutes improper bolstering. In House, however, quite unlike the present case, the statements of the victim which were relied on by the expert were a product of a hypnotic trance. The Court in House was primarily concerned with whether the testimony stemming from hypnosis by the expert was proper expert opinion. In the present case, Chance's testimony was the direct product of her observations of the victim's display of varying emotions when speaking about each abuse and, moreover, was elicited in direct response to the defense assault on the credibility of the victim. Chance's testimony is excerpted below:

Q. What type of affectational response did [the child] have in regards to differentiating between what Billy Hosford did and what other individuals did to her? How did she differentiate between those?

A. All right. With the other offenders she appeared more angry, easier to express what the others had done to her. But when it came to talking about Billy Hosford, she was much more fearful and anxious; reluctant to tell me what happened. Primarily scared of what the repercussions would be when she divulged more and more details.

Q. Has she been consistent?

A. Yes, she has.

Q. In what Billy had done to her as opposed to what other individuals had done to her, has she been consistent in that regard?

A. Correct.

Q. Based upon your educational background and your counseling sessions with [the child], do you have an opinion as to the possibility that [the child] has confused Billy Hosford with other individuals who have victimized her?

* * * * * *

A. I don't think that she has confused what has happened, primarily because of what I have already said. The emotional response that she has toward each perpetrator is very specific; very, very specific. And that toward him is specific also.

Viewed out of context, the above-quoted testimony treads close to the brink of reversible error as a comment upon the truthfulness of the child's accusations. Had such statements been made wholly without reference to the impeachment of the victim on cross-examination, reversible error may well have occurred. In Williams v....