Jordan v. State

• Decision Date: 16 February 2012
• Docket Number: No. 2008–CT–01761–SCT.,2008–CT–01761–SCT.
• Citation: 166 So.3d 1 (Mem)
• Parties: Timothy W. JORDAN, Glenn E. Grose and Johnny Grose v. STATE of Mississippi.
• Court: Mississippi Supreme Court

166 So.3d 1 (Mem)

Timothy W. JORDAN, Glenn E. Grose and Johnny Grose

v.STATE of Mississippi.

No. 2008–CT–01761–SCT.

Supreme Court of Mississippi.

Feb. 16, 2012.

ORDER

GEORGE C. CARLSON, JR., Presiding Justice, for the Court.

This matter came before the Court en banc on the Court's own motion. The Court, by order entered on September 8, 2011, granted the separate petitions for writ of certiorari filed by Timothy W. Jordan, Glenn E. Grose and Johnny Grose, through their respective counsel, as well as a petition for writ of certiorari filed by Glenn E. Grose, pro se, in order to carefully review the issues and the record in this matter. Having done so, the Court now finds that there is no need for further review, and that the writs of certiorari should be dismissed.

IT IS THEREFORE ORDERED that the four writs of certiorari are hereby dismissed.

SO ORDERED.

TO DISMISS: WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR AND PIERCE, JJ.

CHANDLER, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, J.

KING, J., NOT PARTICIPATING.

CHANDLER, Justice, objecting to the order with separate written statement:

¶ 1. Because my review of the issues and record indicates a new trial is warranted, I do not join the Court's order. I would reverse and remand for a new trial based upon the admission of videotaped hearsay statements in violation of the defendants' right of confrontation guaranteed by the Sixth Amendment to the United States Constitution, and the admission of hearsay testimony given by an accomplice's attorney.

FACTUAL BACKGROUND

¶ 2. This Court granted certiorari to review the Court of Appeals' decision affirming the convictions of Timothy Jordan (Tim), Glenn E. Grose (Glenn), and Johnny Grose (Johnny) of multiple counts of sexual battery, gratification of lust, and child neglect concerning Tim's daughter, A.B.¹ Jordan v. State, 80 So.3d 817 (Miss.Ct.App.2011). The defendants each received multiple life sentences after their joint trial. At the trial, evidence established that A.B. had been sexually abused over a period of several months. The State bore the burden to prove beyond a reasonable doubt that the perpetrators of that abuse were Tim, Glenn, and Johnny. The State's evidence of their guilt consisted of a videotaped statement of A.B. in which she named Tim, Glenn, and Johnny as her abusers, A.B.'s statements to her grandmother, great-grandmother, and therapist that her abusers were Tim, Glenn, and Johnny,² and the testimony of A.B.'s mother, Krystal Jordan, that she had assisted Tim, Glenn, and Johnny in sexually abusing A.B. Krystal, who is mentally retarded, gave this testimony as a condition of her plea agreement with the State. Tim, Glenn, and Johnny all testified and denied that they had sexually abused A.B.

¶ 3. A.B., the daughter of Tim and Krystal Jordan, was three years old at the time of the conduct alleged in the indictment. In May 2005, Tim, Krystal, and A.B. went to stay with A.B.'s great-grandmother, Martha Hester Grose, and her husband, Larry Grose, who lived with Johnny at Johnny's trailer. Johnny was disabled from rheumatoid arthritis

and confined to a wheelchair. His brother, Glenn, lived in a house on the property but was a frequent visitor to the trailer. Witnesses established that A.B. frequently was in the company or care of Tim, Glenn, Johnny, and Larry, as well as other men.

¶ 4. On October 30, 2005, A.B. disclosed to Martha that Tim, Krystal, Glenn, and Johnny had sexually abused her. The next day, Martha brought A.B. to the home of her daughter, A.B.'s grandmother, Gloria Beccaril. A.B. said that Tim, Glenn, and Johnny had touched her.³ Immediately, Beccaril contacted Rhiannon Shaw, a family-protection specialist with the Mississippi Department of Human Services (DHS). Shaw recently had begun an investigation into the conditions at the Jordan home due to a report of child neglect and that Krystal was prostituting herself in exchange for drugs.

¶ 5. Shaw arranged a forensic interview of A.B. on November 3, 2005. After the forensic interview, A.B. underwent a medical examination by a pediatrician that confirmed that A.B. had been sexually abused. The pediatrician testified that A.B. had inflammation and bruising on her genitalia and that her anus was dilated, which was the result of repeated penetration over months.

The forensic interview

¶ 6. The forensic interview was conducted by Ejeera Joiner at Family Crisis Services, a nonprofit entity. Shaw testified that she and another Family Crisis Services employee had observed the interview through a two-way mirror, and the interview was videotaped. After a pretrial hearing, the trial court admitted the videotape of the interview under the tender-years exception to the hearsay rule after finding that A.B. was unavailable to testify due to the substantial likelihood she would be psychologically traumatized by testifying. See M.R.E. 804(a)(6) ; M.R.E. 803(25). Shaw authenticated the videotaped interview that was played for the jury.

¶ 7. Joiner did not testify. Tomiko Mackey, an expert in forensic interviewing, testified that she had studied the videotape of A.B.'s forensic interview at the request of the district attorney's office. She testified that Joiner had used the peer-reviewed RATAC protocol in performing A.B.'s interview. Mackey stated that the RATAC protocol allows the interviewer to make three possible findings: that the interview is consistent with abuse, that it is inconclusive, or that there are no findings of abuse.

¶ 8. On the video, Joiner established that A.B. had referred to her vagina as her “nu-nu.” Joiner asked A.B. if anyone had touched her “nu-nu” and it was not nice. A.B. responded, “Christy⁴ and them,” and later, “Tim and them.” When asked who else had touched her “nu-nu,” A.B. responded, “Johnny.” Joiner then asked if someone else had touched it, and A.B. responded in the negative. Then, Joiner asked, “Who is Glenn?” A.B. had no response. Then, Joiner asked, “Tell me who all touched you. You said Tim touched you, who else?” A.B. then stated, “Johnny ... Glenn.” Joiner asked where Glenn had touched her, and A.B. said “my nu-nu.” When asked where Johnny had touched her, A.B. said “nowhere.” She denied that any of the men had hurt her. A.B. pointed to her vagina when asked where they had touched her, and she said her pants were down. In succession, Joiner asked A.B. whether Tim, Glenn, Johnny, her mother, or her grandmother had ever touched her nu-nu, and she responded yes to each one. When asked if Krystal knew about the touching, A.B. said yes. In response to further questioning, A.B. indicated that she had seen Tim's, Johnny's, and Glenn's penises, and that Tim and Glenn had touched her with their penises. But when asked where Tim had touched her with his penis, A.B. responded “nowhere.” Using dolls representing herself and Tim, A.B. demonstrated abuse by Tim and stated that he had put his penis in her “butt.” A.B. also stated that Tim had cut her in the side with a knife, and that Krystal had touched her “nu-nu” with a knife; Shaw testified that these two allegations were unsubstantiated.

¶ 9. Mackey testified that, due to Joiner's departure from Family Crisis Services, she never had discussed the interview with Joiner. Mackey was critical of Joiner's forensic interviewing techniques. She criticized Joiner's failure to ask follow-up questions and her use of confusing compound questions. Also, Mackey stated that Joiner's introduction of Glenn's name into the interview “was wrong” because it was suggestive. Mackey was unable to explain why A.B. was inconsistent in some of her responses. However, Mackey testified that, after viewing the interview multiple times, she concluded that A.B.'s interview was consistent with sexual abuse. Mackey also created an inexact transcript of the interview that was admitted into evidence.

Krystal's testimony

¶ 10. Krystal testified as part of her plea agreement, under which she pleaded guilty to three counts of sexual battery and one count of felony child neglect. She received twenty years, with ten years suspended, for sexual battery, and ten years for child neglect, with all sentences to run concurrently. In anticipation of Krystal's testimony, Dr. Thomas Fowlkes testified that he had treated Krystal at the Lafayette County Detention Center. Krystal had admitted to prior drug abuse. Dr. Fowlkes testified that a court-ordered mental evaluation had concluded that Krystal was mildly mentally retarded. He stated that Krystal's mental state had deteriorated further during the three years she had been incarcerated due to her abuse of inhalants

that had caused irreversible brain damage.

¶ 11. Due to her mental deficiencies, Krystal had such difficulty testifying that the trial court permitted leading questions. Krystal testified that she routinely had had sex with Glenn and Johnny at Johnny's trailer in exchange for drugs. She testified that she had assisted Tim in having sex with A.B. on several occasions. She testified that, before each incident, she had pacified A.B. with a Lortab

pill. Krystal testified that, when Glenn and Johnny heard about this, they requested permission to have sex with A.B. Krystal related several incidents in which she had helped Glenn and Johnny have sex with A.B.

LAW AND ANALYSIS

I. THE ADMISSION OF A.B.'S VIDEOTAPED HEARSAY STATEMENTS

A. Constitutional principles

¶ 12. The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI. “[I]ntroduction of evidence admitted via a hearsay exception does not necessarily foreclose Confrontation Clause scrutiny.” Birkhead v. State, 57 So.3d 1223, 1233 (Miss.2011). The Court applies de novo review to a Confrontation–Clause objection. Id.

¶ 13. In Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1363, 158 L.Ed.2d 177 (2004), the United States Supreme Court...