Lambert v. State

• Decision Date: 12 December 1990
• Docket Number: No. 89-KA-0576,89-KA-0576
• Citation: 574 So.2d 573
• Court: Mississippi Supreme Court
• Parties: Floyd LAMBERT, Jr. v. STATE of Mississippi.

Page 573

574 So.2d 573

Floyd LAMBERT, Jr. v. STATE of Mississippi.

No. 89-KA-0576.

Supreme Court of Mississippi.

Dec. 12, 1990.

Thomas J. Lowe, Jr., Jackson, William E. O'Hare, Smith & O'Hare, Cleveland, for appellant.

Mike C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and ROBERTSON and SULLIVAN, JJ.

ROBERTSON, Justice, for the Court:

Today's appeal asks that we judge behavior no more fathomable that it has become so familiar. A man has repeatedly sexually molested his young stepdaughter and when called to account, presents the familiar denials and defenses. The case in the end turns on an evidentiary question which commands no small amount of sensitivity on our part. We hold that the hearsay statement of the victim was erroneously received as evidence but that the error is legally harmless, as the victim testified and was subject to cross-examination on the matters in issue.

II.

Alicia A. ¹ was born October 22, 1974. For years Alicia lived with her mother, stepfather and stepbrother in rural Bolivar County, out from Beulah, Mississippi.

On October 9, 1981, Floyd Lambert, Jr., Alicia's stepfather, was twenty-four years of age, having been born on September 22, 1957. On that night Lambert took the six-year-old Alicia from her bed, and tied her up and raped her. Alicia was taken to the emergency room of the Bolivar County Hospital in Cleveland where she was seen and treated by Dr. Arthur Lindsey, Jr., a family practitioner, and by Dr. Abide, a gynecologist, who at the time of trial was deceased. Dr. Abide's records reflect that he found lacerations and bleeding from the vaginal area which he diagnosed as "vaginal trauma."

Alicia testified that Lambert repeatedly forced her to have sex with him over the next six years or so, often two or three times a week, and that he would force her to perform oral sex on him at times before intercourse. The last of these incidents occurred about March 6, 1988. Lambert would often times use a condom to keep Alicia from getting pregnant. Alicia told her mother what was happening, a fact which at trial her mother denied.

The whole sordid affair came to light on April 14, 1988. Alicia was a student in the seventh grade at Rosedale Junior High School. Jane Shook, a school nurse employed by the Bolivar County Health Department, went to Rosedale Junior High and presented an awareness program to the seventh grade students. She asked any student who was having a problem to let her know in writing. Alicia wrote on a form Shook had given her, "I have a problem that I would like to talk about." Alicia then reported to Shook what her stepfather had been doing to her which led to Lambert's arrest.

On October 4, 1988, the Grand Jury for the First Judicial District of Bolivar County, Mississippi, returned an indictment and in Counts 1 and 2 charged Lambert with statutory rape of Alicia A. on October 9, 1981, and on March 6, 1988. Miss.Code Ann. Sec. 97-3-65(1) (Supp.1988). The indictment further charged in Count 3 that Lambert had committed sexual battery upon Alicia A. on March 6, 1988, by requiring that she perform fellatio on him. Miss.Code Ann. Sec. 97-3-95(c) (Supp.1988). The case was called for trial on October 31, 1988, and in due course the jury found Lambert guilty on all counts. On November 16, 1988, the Circuit Court sentenced Lambert (a) to thirty years imprisonment upon his conviction of rape in Count 1, (b) to twenty years imprisonment upon his conviction in Count 2, the sentence to be served after completion of Lambert's service of the sentence imposed in Count 1, and (c) to ten years imprisonment upon his conviction on Count 3, that sentence to be served by Lambert following completion of his service of the sentences imposed on the two rape charges. Lambert's aggregate sentence is sixty years imprisonment.

Lambert moved for a new trial and his motion was denied. He now appeals to this Court.

III.

Lambert makes no challenge to the sufficiency or weight of the evidence against him on any of the three counts. Notwithstanding, we have carefully examined the record of proceedings against him, because of the gravity of the charges and the severity of the sentences. Alicia A. testified at trial quite credibly and, together with the other facts and circumstances presented, we are without doubt that the evidence was legally sufficient that Lambert may stand convicted on each of the three counts. Moreover, we perceive no deficiency in the weight of the evidence such that the Circuit Court may be said to have abused its discretion in denying Lambert's motion for a new trial.

IV.

Lambert has designated two issues on this appeal, one of which we may dispatch summarily. The prosecution called as an expert witness Dr. Henry McCrory, a specialist in obstetrics and gynecology who practices medicine in Clarksdale, Mississippi. Dr. McCrory testified that he had examined Alicia A. and, based upon his physical and medical findings, he was of the opinion that she had been sexually active for a number of years. In the words of Dr. McCrory, "My findings were consistent with a lady who had had sexual intercourse frequently over a prolonged period of time, for years." Dr. McCrory, of course, made no attempt to state who Alicia's sexual partner(s) may have been.

On appeal, Lambert charges that receipt of this testimony was error. He argues that this testimony had the effect of telling the jury that Lambert had raped Alicia repeatedly "for five years, two to three times a week." Lambert argues that this offends Rule 404(b), Miss.R.Ev., which proscribes production of evidence of other crimes, wrongs or acts except under limited circumstances.

The point is without merit. First, Lambert offered no objection to this testimony at trial. He thus waived any right to present the matter on appeal. See Rule 103(a)(1), Miss.R.Ev. Lambert argues that we nevertheless consider the point. We decline to do so. Lambert's strategy, beginning with opening statement, was, not to deny that Alicia had been sexually active, only to deny that he had been her sexual partner. In opening statement and throughout trial, Lambert attempted to show that Alicia would try frequently to go into Rosedale where she ran around with boys. Cf. Hosford v. State, 560 So.2d 163, 169 (Miss.1990). We perceive no potential for injustice suggesting we should waive our procedural rule in the premises.

V.

A.

Lambert's primary complaint on appeal is that the prosecution was allowed to present to the jury statements Alicia had made to others to the effect that he had raped and molested her, all of which Lambert says offends the hearsay rule. See Rule 802, Miss.R.Ev. He identifies five prosecution witnesses through whom the said-to-be offensive hearsay statements were offered: (1) Jane Shook; (2) Elbert Craig, an investigator with the Bolivar County Sheriff's Department; (3) Queen Esther Coleman, a Bolivar County welfare worker; (4) Dorothy Marie Johnson, the Lambert's neighbor; and (5) Shonnie Harris, Alicia's aunt, with whom Alicia was living at the time of trial.

Four of these may be dealt with quickly. The case of the statements elicited through welfare worker Coleman and Alicia's aunt, Shonnie Harris, Lambert's attorney made timely and proper objections which the Court sustained. The Court denied Lambert's motions for mistrial but did instruct the jury to disregard the answers given. We have repeatedly held such an antidote sufficient unto the day. See, e.g., Dennis v. State, 555 So.2d 679, 682 (Miss.1989); Shoemaker v. State, 502 So.2d 1193, 1195 (Miss.1987).

In the case of Sheriff's Investigator Craig and Lambert's neighbor, Dorothy Johnson, no objection was offered and Lambert may not argue these points for the first time on appeal. Rule 103(a)(1), Miss.R.Ev. Moreover, from our reading of the record it appears quite likely that Lambert's attorney may have consciously not objected to Investigator Craig's testimony as he proceeded on cross examination to explore discrepancies between two statements Alicia had given.

B.

This brings us to the evidence elicited through Health Department Nurse Jane Shook. It is important to understand that Shook was the first witness called by the prosecution at the beginning of the trial. As indicated above, Shook testified that she received a written note from Alicia to the effect that "I have a problem that I would like to talk about." The prosecuting attorney then asked "What was that problem?" At that point defense counsel stated the following objection:

Your Honor, I object to Mrs. Shook testifying as to hearsay. The proper predicate has not been laid for the introduction of that hearsay.

The prosecuting attorney then established that Alicia was thirteen years old at the time and that she had not mentioned her problem to anyone else in the school system and that she came to Shook for help. Then the prosecuting attorney asked to be allowed to introduce Alicia's statements to Shook. At that point the record reflects:

BY THE COURT: Approach the bench, please.

WHEREUPON, THE ATTORNEYS FOR BOTH PARTIES APPROACHED THE BENCH FOR A BRIEF CONFERENCE OUT OF THE HEARING OF THE COURT REPORTER.

The next matter the court reporter has preserved for the record has the prosecuting attorney repropounding his objected-to question, to which Shook answered that Alicia "said that her stepfather had made her have sex with him....I asked her how long this had been going on and she said, 'when I was in the first grade was the first time'."

Then the following colloquoy took place:

Q. It had gone on for a long period of time?

A. This is what she told me.

Q. Now, Mrs. Shook, when you were talking with the girl, what was her demeanor? In other words, how was she acting?

A. Her first statement to me was, "I don't think anything is going to be done about this, but I am going to tell you about it." Then she told me that her stepfather had...