Nicholson v. State

• Decision Date: 09 October 1997
• Docket Number: No. 93-CT-01378-SCT,93-CT-01378-SCT
• Citation: 704 So.2d 81
• Parties: Eddie NICHOLSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 81

704 So.2d 81

Eddie NICHOLSON v. STATE of Mississippi.

No. 93-CT-01378-SCT.

Supreme Court of Mississippi.

Oct. 9, 1997.

James C. Mayo, Fair & Mayo, Louisville, for appellant.

Michael C. Moore, Attorney General, Pat. S. Flynn, Asst. Attorney General, Jackson, for appellee.

En Banc.

JAMES L. ROBERTS, Jr., Justice, for the Court:

Introduction

¶1 This matter comes before the Court, en banc, after granting petitioner's application for writ of certiorari on May 29, 1997. Eddie Nicholson was indicted by a grand jury of Winston County for the crime of sexual battery, charging sexual penetration of an eleven year old girl with his finger. Nicholson was convicted of sexual battery by a jury of his peers, and sentenced to twenty years in the custody of the Mississippi Department of Corrections by the Circuit Court of Winston County, Mississippi, on November 30, 1993. The Court of Appeals affirmed the lower court on January 28, 1997, and denied the petition for rehearing on April 8, 1997. The petition for writ of certiorari was filed with this Court on April 17, 1997.

¶2 The following issues were raised for certiorari review:

I. The lower court erred in allowing rebuttal testimony of an alleged sexual act with another person;

II. The lower court erred in denying surrebuttal testimony by Nicholson;

III. The lower court erred by denying a continuance after the State was allowed to amend the indictment and the State improperly amended the indictment; and

IV. The State failed to provide proper Rule 4.06 discovery.

¶3 The Court granted certiorari review on Issues I. and IV., found Issue II. to be moot, and denied certiorari review of Issue III.

Statement of the Case

¶4 Eddie Nicholson was the coach of a girls' softball team in Louisville, Mississippi, during the summer of 1993. L.T.B. testified that on a bus trip back from a game in DeKalb, Nicholson ran his hand up her leg and put his finger in her vagina. ¹ She also testified that several times during that summer he had taken her and other team members home from practice and games. He would take the others home first, and then on the way to her house he would feel her breasts and between her legs. L.T.B. said this started on the second day of practice. On one occasion, he pulled out his penis and tried to make her hold it.

¶5 Several days after the DeKalb trip, L.T.B. told her mother about the recurring abuse. Mrs. B. then made a complaint to the Louisville Police Department. Nicholson was indicted by the grand jury of Winston County for sexual battery, convicted, and sentenced to twenty years in the custody of the Mississippi Department of Corrections.

Analysis and Authority

I.

¶6 The lower court permitted the State to cross-examine Eddie Nicholson about allegedly touching and fondling the breast of C.D., a teammate of L.T.B., over Nicholson's objection and continuing objections. This allegation was not charged in the indictment against Nicholson. The court had previously denied Nicholson's motion in limine on this same issue.

¶7 The court, in rebuttal, permitted the State to call C.D., though she was not disclosed or listed in discovery, but was sworn as a witness before the trial commenced. Over Nicholson's strenuous objection, C.D. was permitted not only to testify, but to testify in rebuttal about alleged specific sexual acts of Nicholson toward her. Nicholson asserts that admission of evidence of remote sexual activity with someone other than the prosecutrix is reversible error.

¶8 The following testimony is pertinent to this issue. On direct examination of Nicholson by his attorney, in response to the question of whether or not Nicholson "did or didn't" he answered:

A. NICHOLSON: I didn't touch this child in any type form or fashion. The only thing I did was try to help them play softball better. I've never done anything wrong to any child. I never have and I never will.

¶9 On cross-examination by the State, Nicholson was asked:

Q. THE STATE: Do you deny that you have also committed an offense like this....

¶10 At this point, counsel for Nicholson began objecting, and asked that the question be asked outside the presence of the jury; questioning continued with the jury out.

FURTHER CROSS-EXAMINATION BY THE STATE

Q. Mr. Nicholson, do you deny that before ball practice on one of the occasions that you carried C.D. to a store and at which time you were fondling her and feeling her breasts?

A. Nicholson first said he couldn't remember and when pressed said "I'm denying it."

¶11 The State argued that Nicholson, by stating on direct examination that "he had never done anything like this to any child," had "opened the door to us going into other acts that he had committed with other children when he did that."

¶12 Counsel for Nicholson objected and argued, "Your Honor, I have all kind of cases here that he cannot go into anything with someone else." The State responded that "that's true, until he opens the door."

BY DEFENSE COUNSEL: No. I mean, it's just not admissible, any conduct with someone else. I mean, you've permitted him [the prosecutor] to go into whatever took place with this person, but he [the prosecutor] cannot go into it, Your Honor, and he just can't go into anything with anybody else. There is no evidence of any prior convictions and he just can't go into some third party. I mean, he just cannot do it, and he knows he can't.

¶13 The court then allowed the State to cross-examine Nicholson about C.D. ² The State does not offer any authority for being allowed to do so, and Nicholson submits that under Elmore v. State, 510 So.2d 127 (Miss.1987), and Mitchell v. State, 539 So.2d 1366 (Miss.1989), such testimony is inadmissible. The trial court further allowed the State to call C.D. to testify as a rebuttal witness. Nicholson's counsel put a continuing objection into the record.

BY Mr. MAYO: In Order, Your Honor, that I won't run afoul, would you let the record show that I have a continuing objection to each question and answer that may be asked of this witness so I won't have to get up in front of the Jury again?

¶14 The Court of Appeals held concerning this issue on appeal: "The other alleged victim's testimony [C.D.] regarding her should not have been permitted." COA op. at 5. The Court of Appeals went on to note that the State had argued that the evidence was admissible as general impeachment, and stated that pursuant to this Court's holding in Jackson v. State, 645 So.2d 921, 923 (Miss.1994), attempts to impeach the witness could only be done through cross-examination, not by "extrinsic evidence." Id. at 923-24. The Court of Appeals then held, "We reject this alleged error because it was not properly preserved [for appeal]." This statement is incorrect in light of a careful review of the record, and the standing objection read into the record by Nicholson's attorney.

Nicholson's Argument

¶15 Nicholson, on more than one occasion, while objecting to the questioning of C.D., cited to Elmore v. State, 510 So.2d 127 (Miss.1987), and Mitchell v. State, 539 So.2d 1366 (Miss.1989), and again cites the cases in the brief of the appellant in support of his argument that the lower court committed reversible error in allowing the highly prejudicial testimony by C.D. In Elmore, this Court held:

"In the context of sexual crimes, however, we have long recognized a relaxation of that rule [prohibiting evidence of other crimes].... [W]e have regarded that substantially similar acts with the same person, that is, sexual acts of the same general type as those charged in the indictment," are probative and admissible.

Coates, 495 So.2d at 468.

Elmore is charged with committing sexual battery upon V.E. It is Elmore's alleged criminal act toward V.E. which the State attempted to prove. Any attempt by Elmore to commit sexual battery on the rest of his family, while arguably relevant, is far less probative and at least equally, if not more, prejudicial. We hold that the admission of evidence of remote instances of sexual misconduct with someone other than the prosecutrix was reversible error.

Elmore, 510 So.2d at 131 (emphasis added).

¶16 Nicholson additionally cites Mitchell v. State, 539 So.2d 1366, 1372 (Miss.1989), in which this Court construed whether or not bad acts or wrongs toward children other than the victim were admissible.

It should be emphasized that these cases specifically limited evidence of other sexual relations to those between the defendants and the particular victim. In this case evidence was admitted on Mitchell exposing himself to children other than Shannon. The State would have this Court expand the holding in these cases to include testimony that shows a defendant's character of lustful behavior toward children in general, not just toward Shannon. Such expansion would not be consistent with the purposes of M.R.E. 404(b), nor consistent with the notion that a defendant is on trial for a specific crime and not for generally being a bad person.

Therefore, we reverse and remand on this aspect of Mitchell's assignment of error, as well.

¶17 Nicholson argues that he was not charged in the indictment of a crime against C. D., only L.T.B., and urges the Court to affirm the holding of Elmore and Mitchell and to exclude the testimony of C.D. and to reverse on the basis of M.R.E. 404(b).

The State's Argument

¶18 The State counters with the argument that the trial court was correct in finding that Nicholson's remarks fall within M.R.E. 404(a)(1) and opened the door to rebuttal testimony. M.R.E. 404(a)(1) states:

(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:

(1) Character of Accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecutor to rebut same.

(emphasis added).

¶19 The State argues that neither Elmore nor Mitchell...