Madden v. State
| Decision Date | 13 September 2012 |
| Docket Number | No. 2010–KA–01148–COA.,2010–KA–01148–COA. |
| Citation | 97 So.3d 1217 |
| Parties | Amy MADDEN, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Leslie S. Lee, Jackson, Justin Taylor Cook, attorneys for appellant.
Office of Attorney General by W. Glenn Watts, attorney for appellee.
EN BANC.
MYERS, J., for the Court:
¶ 1. Amy Madden was indicted by a Forrest County grand jury on Count I, sexual battery upon her daughter, Jane Doe,1 “between on or about December 25, 2007, through April 25, 2008,” by engaging in the act of sexual penetration, “to wit: by placing an unknown object into her anus[,]” and on Count II, child neglect for feloniously permitting Scott Conley, Jane's father, to physically and sexually abuse Jane, continuously, “between on or about December 25, 2007, through April 25, 2008[.]”
¶ 2. Madden was convicted by a jury sitting before the Forrest County Circuit Court of sexual battery and felony child neglect. On Count I, the trial court sentenced Madden to twenty years in the Mississippi Department of Corrections (MDOC), with eight years to serve, twelve years suspended, and five years of post-release supervision. On Count II, the trial court sentenced Madden to eight years in the custody of the MDOC. The trial court ordered both counts to run concurrently with one another.
¶ 3. Because we find that Conley's guilty plea to sexual battery upon Jane was used as evidence to indicate Madden's guilt at trial and because the trial court failed to comply fully with Rule 803(25) of the Mississippi Rules of Evidence, we reverse the judgment of Madden's convictions and sentences and remand this case to the trial court for a new trial in accordance with this ruling.
¶ 4. On April 25, 2008, Madden was involved in a minor traffic accident in Petal, Mississippi. She was subsequently arrested and charged with misdemeanor driving under the influence (DUI). Madden's two daughters, Jane, age three, and Ashley Doe, twenty-one months, were with Madden in the car at the time. No one was injured as a result of the accident, but both children reportedly had a dirty and unkempt appearance about them. So authorities transported the children to Forrest General Hospital in Hattiesburg, Mississippi, and contacted the Mississippi Department of Human Services (DHS). That evening, DHS had the children placed in the care of licensed foster parents, Sue and John Smith.
¶ 5. Approximately one week later, Jane reportedly began exhibiting inappropriate behavior while at the Smiths' home. According to Sue, the first incident occurred while she and her eleven-year-old daughter were dressing Jane and Ashley after the children's bath. Sue's daughter said: “Momma, [Jane] is sticking this toy up her bootie.” Sue stopped Jane and asked her why she was doing that. Jane replied, “Scottie, my daddy, did this to me.” Sue questioned Jane further, and Jane said, “My daddy, Scottie, sticks his finger in me.” Sue told the jury that when Jane first arrived at their home, Jane's bottom was “very raw,” a condition which Sue thought odd at the time because Jane was already potty trained and did not wear diapers. Jane had been prescribed medication for her condition, so Sue asked Jane if her daddy had stuck his finger in her to apply medication. Jane replied: Jane then inserted her finger into her vagina.
¶ 6. Sue called Andrea Thornton at DHS. Thornton set up a forensic interview at a child advocacy center, which was conducted on May 7, 2008. Thornton, who testified on behalf of the State at trial, testified that the findings of that interview were inconclusive due to Jane's inability to sit still during the interview. Thornton thereafter referred Jane for counseling at the Shafer Center for Crisis Intervention in Hattiesburg, Mississippi, a private, non-profit organization that helps victims of sexual violence and other traumatic experiences. Jane's first visit to the Shafer Center occurred on June 17, 2008.
¶ 7. On May 21, 2008, Jane underwent a forensic medical examination at the “Children's Justice Center.” Dr. Kathy Kolar, who has a Ph.D. in nursing research, conducted the examination. Dr. Kolar testified on behalf of the State at trial and stated that Jane's “genitalia were within normal limits.” Dr. Kolar also stated that in her opinion, the medical exam neither confirmed nor denied that sexual abuse had taken place.
¶ 8. Jane reportedly continued to exhibit inappropriate behavior while at the Smiths' home, and she began to tell Sue more things. According to Sue, Jane told her a number of times that her mother had stuck a purple stick in her and that she would do the same to her mother. Jane said the object hurt her and made her bleed. Jane indicated the length of the object with her hands and said it made a “buzz, buzz noise, and that it moved back and forth.” Jane also reportedly said that her daddy has a tail and that he would “pee-pee way down in her mouth.” Jane then demonstrated the act with the use of her finger.
¶ 9. Sue said they had to keep a constant eye on Jane because she “was acting out sexually on herself on a daily basis,” and she would try to do so on Ashley and others.
¶ 10. Sue recalled one incident where Jane was playing with a child's “light-up spoon.” Jane inserted the spoon into her mouth in a sexual motion and began making herself “gag.”
¶ 11. On June 17, Sue took Jane to the Shafer Center. There they met Shan Terrica Barnes, who would become Jane's therapist. Barnes testified that she had been informed by Thornton prior to Jane's first visit to the Shafer Center that there had been an allegation of possible sexual abuse, but no sexual abuse had been disclosed at a forensic interview previously conducted with Jane. Because no sexual abuse had been disclosed, Barnes said DHS only wanted the Shafer Center to conduct what the center calls, “psycho-education” with Jane, which involves educating “the caregiver and the children about sexual abuse, their body, good touch, [and] bad touch.”
¶ 12. Barnes said the June 17 meeting was intended as an informal intake-assessment session—the purpose of which was to gather some general background information on Jane. This, according to Barnes, is usually done with the child's parent(s) or caregiver(s) outside the presence of the child. In this instance, however, Jane stayed with Sue during the meeting.
¶ 13. Barnes had Jane sit on the floor and color, while Barnes and Sue talked. As Barnes and Sue were talking, Sue made a remark about “bath time,” at which point, Jane looked up and said, “Mommy stuck her finger in my bootie.” Barnes sat Jane on her lap and asked Jane to talk about bath time. Barnes related the following to the jury:
[Jane] told me, “[Ashley] has tits” .... Then she said, “I have tits.” Next she ... pulled down the top portion of her shirt to show me. [Jane] told me she had a belly button and at the same time she was pulling up her shirt showing me. I poked her belly button and she laughed. [Jane] then said she has, “Uh, uh.” And she was trying to pull her pants down, but she was sitting in my lap thus she could not get them down. I told her we are not to show our private parts to everybody. I asked [Jane] who could she show her privates to? She stated, “Mommy, daddy, and C.D.”
....
[Jane] stated, “Daddy called me bitch head.” [Jane] giggled during this conversation. [Jane] reported that she gets naked while mommy and daddy pull their pants down. I stated, “You get naked and mommy and daddy do, too?” [Jane's] voice appeared to get loud and she said, “No. Mommy and daddy pull their pants down and I get naked.”
I stated, “Oh, you get naked and mommy and daddy pull their pants down?”
She stated, “Yeah.”
I asked [Jane], “What does mommy's private look like?”
She replied, “Like me.”
I asked [Jane], “What does daddy look like?”
[Jane] stated, “Shit, and I don't like shit.”
Barnes said Jane then hopped from her lap and began jumping on the couch in the room, at which point Sue pulled a spoon from her purse. Jane took the spoon and tried to stick it in her pants. Jane then stuck the spoon in her mouth in an “oral motion,” and she began to “gag continuously.” Jane threw the spoon out and started gyrating and fell back on the couch. She then said,
¶ 14. Barnes testified that she stopped the meeting at that point because Jane had made a disclosure. Barnes told Sue that Jane could not come back to the Shafer Center until Jane had a forensic interview. Afterwards, Barnes contacted both DHS and the district attorney's office.
¶ 15. Barnes did not see Jane again until July 21, 2008, which was when Jane began her therapy. Jane had seventeen therapy sessions in total; the last one occurred in September 2009.
¶ 16. Jane reportedly told Barnes at the July 21 session that her mother had “stuck a stick in her bootie and it made her bleed ... [and] that mommy laughed.” Barnes said that Jane indicated that the stick was big; it moved; and it went,
¶ 17. Barnes said there were some therapy sessions where Jane either did not disclose any sexual abuse or she did not disclose anything new. At a session in September 2008, Jane reportedly said that “mommy licked her bootie.” Barnes asked Jane where her bootie was, and Jane first said, “I can't show you.” Barnes asked Jane if she could point to it. Jane then pointed to her vaginal area. In November 2008, Jane reportedly told Barnes that “when mommy stuck the stick in her bootie, she licked her titty.” In December 2008, during “play therapy,” Jane reportedly picked up a toy microphone that was lying on the floor among other toys in the room and indicated to Barnes that the microphone was similar in size to the stick her mother had inserted inside her.
¶ 18. Other witnesses for the State included Venus Gray, a DHS supervisor; Dr. Lucille...
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