Jordan v. State

• Decision Date: 16 February 2012
• Docket Number: No. 2008–KA–01761–COA.,2008–KA–01761–COA.
• Citation: 80 So.3d 817
• Parties: Timothy W. JORDAN, Glenn E. Grose and Johnny Grose, Appellants v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

80 So.3d 817

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

v.STATE of Mississippi, Appellee.

No. 2008–KA–01761–COA.

Court of Appeals of Mississippi.

Sept. 14, 2010.Rehearing Denied June 7, 2011.Certiorari Granted Sept. 8, 2011.Certiorari Dismissed Feb. 16, 2012.

George T. Holmes, Leslie S. Lee, Hunter Nolan Aikens, Joshua Aaron Turner, Jackson, Alan Todd Alexander, Oxford, attorneys for appellants.

Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appellee.

Before KING, C.J., GRIFFIS and ISHEE, JJ.

KING, C.J., for the Court:

¶ 1. In 2006, Krystal Jordan, Timothy Jordan, Glenn Grose, and Johnny Grose were indicted for sexual battery, gratification of lust, and child neglect of A.B., Krystal and Tim's then three-year-old daughter.¹ Krystal pled guilty to three counts of sexual battery and felony child abuse. Because the trial court denied Tim's motion for a severance, the remaining defendants underwent a joint trial where Krystal testified against them. All three men were convicted of the charges. Aggrieved, Tim, Glenn, and Johnny appeal separately, raising several issues for the Court's review.

For the sake of judicial efficiency, we have grouped their issues as follows:

I. Did the trial court err by denying Tim's motion for severance;

II. Did the trial court err by allowing the State to amend the dates contained in the indictment, expanding the time in which the alleged offenses occurred;

III. Did the trial court err by allowing improper hearsay testimony, including the forensic interview, to be admitted into evidence under the tender-years exception;

IV. Did the trial court err by allowing the State to ask Krystal leading questions; V. By allowing Carnelia Fondren and Pammie Davidson to testify, did the trial court erroneously allow improper legal opinions, comments on the evidence, and bolstering of Krystal's veracity;

VI. Did the trial court err by not allowing the defense to cross-examine Gloria Hollis Becerril regarding her pending drug charge; and

VII. Is the verdict against the overwhelming weight of the evidence?

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Numerous witnesses testified during this trial. Because the State bore the burden of proving that the defendants committed the crimes charged beyond a reasonable doubt, we will focus on the State's witnesses.

I. The State's Case–In–Chief

a. Martha Hester Grose

¶ 3. Martha Hester Grose is A.B.'s maternal great-grandmother. Martha testified that on October 30, 2005, she had received Tim's permission to keep A.B. for a few days. On the first night, A.B. complained of pain whenever she urinated and during her bath. Curious, Martha looked and saw that A.B.'s legs and inner thighs were red. Martha asked A.B. if anyone had “hurt her down there,” and A.B. replied yes. Martha testified that A.B. named Tim, Krystal, Johnny, and Glenn as the perpetrators. Martha did not report the alleged abuse that night.

b. Gloria Hollis Becerril

¶ 4. The next morning, Martha took A.B. to Gloria Hollis Becerril, who is A.B.'s maternal grandmother, and relayed A.B.'s allegations to Gloria. Gloria checked the child's genitalia and saw that it was red and “raw.” Gloria questioned A.B. about the alleged abuse; and again, A.B. named Krystal, Tim, Glenn, and Johnny as the perpetrators. Gloria testified that A.B. specifically told her that Tim had sexually assaulted her in the shower. Afterwards, Gloria called the Department of Human Services (DHS) to report the alleged abuse.

¶ 5. Gloria also testified regarding A.B.'s behavior following the allegations of sexual abuse. A.B. would masturbate, grab peoples' private parts, express a desire to touch someone or to have someone touch her, abuse the family dog, physically assault and fondle her baby sister, and simulate oral sex with food.

¶ 6. On cross-examination, Gloria testified that she was afraid that A.B. would accuse her of sexual abuse. The defense elicited from Gloria that she once had a sexual relationship with Glenn and also questioned Gloria about her pending drug charge.

c. Rhiannon Shaw

¶ 7. Before this incident, DHS had received a few anonymous calls regarding Krystal's drug abuse, alleged prostitution, and possible child neglect. On October 31, 2005, Rhiannon Shaw, a DHS family protection specialist, received a phone call from Gloria. Gloria reported that A.B.'s bottom was “raw” and that A.B. had disclosed that Krystal, Tim, Glenn, and Johnny had touched her inappropriately. Shaw instructed Gloria not to question A.B. anymore, and she immediately scheduled a forensic interview and medical examination of A.B.

¶ 8. Via a two-way mirror, Shaw observed the forensic interview, which was conducted on November 3, 2005, by Ejeera Joiner of Family Crisis Services. The jury viewed the forensic interview. Afterwards, Shaw was questioned about the interview. Shaw testified that A.B. stated that Krystal, Tim, Glenn, and Johnny had touched her “nu-nu.” A.B. also said that Tim, Glenn, and Johnny touched her “nu-nu” with their penises, and A.B. demonstrated the acts using anatomically correct dolls.

¶ 9. During cross-examination, Shaw testified that A.B.'s statements were inconsistent at times, and Joiner did lead A.B. on some questions. For instance, A.B. did not name Glenn as a perpetrator until Joiner asked about Glenn specifically. Also, Joiner asked A.B. about her grandmother, and A.B. stated that her grandmother had touched her as well.

d. Tomiko Mackey

¶ 10. Tomiko Mackey, a licensed clinical social worker, was accepted as an expert in the field of forensic interviewing. Through Finding Words Mississippi, Mackey conducted forensic interviews and trained others in the field.

¶ 11. Mackey testified that Joiner had followed the proper protocol during A.B.'s forensic interview. But Mackey took issue with some of Joiner's methods of questioning. First, Mackey indicated that Joiner had asked A.B. several questions at once without giving her an opportunity to respond. Second, Mackey mentioned several times that Joiner had questioned A.B. about the defendants in groups instead of addressing each defendant individually. And third, Mackey testified that Joiner had improperly led A.B. when she inquired about Glenn.

¶ 12. Despite these issues, Mackey observed that A.B. was able to disclose the events, and she consistently named Tim, Glenn, and Johnny as the perpetrators. As a result, Mackey opined that A.B.'s disclosures were consistent with those of a child who had been sexually abused.

e. Dr. Thomas Fowlkes

¶ 13. Dr. Thomas Fowlkes, who specializes in emergency medicine and correctional medicine, treated Krystal for alcohol and drug abuse and psychiatric illness while she was incarcerated at the Lafayette County Detention Center. Dr. Fowlkes testified that Krystal had expressed a desire to commit suicide, so he prescribed her an antidepressant. Dr. Fowlkes also put Krystal on antipsychotic medication. When asked about Krystal's mental capacity, Dr. Fowlkes testified that Krystal was tested and determined to be mildly retarded, which stemmed from her drug use.

f. Krystal Jordan

¶ 14. Krystal admitted she had a history of drug abuse, and she had a sexual relationship with all three defendants. Krystal stated that A.B.'s sexual abuse began when she was pregnant with C.B., Krystal and Tim's youngest daughter. During Krystal's pregnancy, Tim asked Krystal if he could have sex with A.B. Krystal agreed, and she assisted Tim in sexually penetrating the child while they were in the shower. Krystal testified that A.B. screamed and yelled for help during the sexual assault. During subsequent sexual assaults, Krystal drugged the child with Lortab to keep her calm. Krystal also testified that Tim sexually assaulted A.B. a second time in their home.

¶ 15. After C.B. was born in May 2005, Krystal and Tim, along with their children, moved to Johnny's trailer. Krystal testified that Tim continued to sexually abuse A.B. Eventually, Glenn found out about Tim's acts and requested to have sex with A.B. as well; Krystal obliged. Krystal described one incident in which Glenn and Tim took turns sexually assaulting A.B. When Johnny learned that the other men were having sex with A.B., he requested to have sex with her as well. Johnny is wheelchair bound and suffers from rheumatoid arthritis, making it difficult for him to use his hands. Because of Johnny's physical impairments, Krystal helped Johnny sexually assault A.B. by removing their clothes and by sitting A.B. on top of Johnny. Krystal also described how she taught A.B. to perform oral sex on Johnny. Krystal testified that, in total, Glenn had sex with A.B. approximately three or four times, and Johnny had sex with A.B. twice.

¶ 16. On cross-examination, the defense presented several letters that Krystal wrote to the defendants while they were incarcerated; Krystal denied writing some of the letters. However, in these letters, Krystal maintained her innocence and that of the defendants. When questioned regarding specific passages in the letters, Krystal claimed that she could not recall what her words meant. The defense also questioned Krystal about her plea agreement. Krystal had difficulty answering the questions, but she did acknowledge that she received a plea deal and stated that she did not think the State would take away her plea deal if she did not testify against the defendants.

g. Pammie Davidson

¶ 17. Pammie Davidson was employed with the district attorney's office as the victim's advocate coordinator, and she helped prepare Krystal for trial. The State questioned Davidson about prior statements that Krystal made to her regarding Tim, Glenn, and Johnny. The defense objected on the ground of hearsay. However, the trial court allowed Davidson's testimony as a prior consistent statement under Mississippi Rule of Evidence 801(d)(1)(B).

h. Carnelia Fondren

¶ 18. Next, the State called Krystal's attorney, Carnelia Fondren. The...