Pitts v. State
| Decision Date | 05 March 2020 |
| Docket Number | NO. 2019-KA-00275-SCT,2019-KA-00275-SCT |
| Citation | 291 So.3d 751 |
| Parties | Cody L. PITTS a/k/a Cody Lee Pitts v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, Jackson
EN BANC.
CHAMBERLIN, JUSTICE, FOR THE COURT:
¶1. A Harrison County jury convicted Cody L. Pitts of one count of touching a child for lustful purposes in violation of Mississippi Code Section 97-5-23(1) (Supp. 2019). After the verdict, the Harrison County Circuit Court, First Judicial District, sentenced Pitts to serve ten years, day for day, without the possibility of parole or early release in the custody of the Mississippi Department of Corrections.
¶2. Pitts now appeals his conviction and sentence. He alleges two errors. First, he argues that the trial court abused its discretion by admitting evidence under Mississippi Rule of Evidence 803(25) —the tender-years exception to the rule against hearsay. Second, Pitts maintains that the trial court abused its discretion by giving jury instruction S-6: an instruction concerning the uncorroborated testimony of a sex-crime victim.
¶3. After review, we find that the trial court did not abuse its discretion. Accordingly, we affirm.
STATEMENT OF FACTS
¶4. Billy1 was born on September 10, 2006. When Billy was five years old, his mother, Janice, married Pitts—making Pitts Billy's stepfather. Pitts was born on September 28, 1988. In June 2012, the family moved to Pass Christian, Mississippi, and lived there until November 2012. While living in Pass Christian, Pitts began to sexually abuse Billy. This abuse continued as the family moved repeatedly until Janice and Pitts separated in October 2014.2
¶5. In January 2015, Janice noticed behavioral changes in Billy and suspected that Billy was having issues at school. When Janice asked Billy what was bothering him, Billy began disclosing to Janice that Pitts had been sexually abusing him. Billy disclosed to Janice that Pitts had touched Billy's private areas. Billy further explained to Janice that Pitts had touched Billy's testicles and that Pitts had put his mouth on Billy's "winky-wonky."
¶6. After Billy's initial disclosure, Janice reported the abuse to the Richton, Mississippi, police department in January 2015.3 Billy also began seeing a therapist after his initial disclosure. It took several months for Billy to fully disclose all the details about the abuse he suffered at the hands of Pitts. Over the course of Billy's disclosures, Janice realized that Pitts had sexually abused Billy while the family lived in Pass Christian. As a result, Janice reported the abuse to the Pass Christian police department, and a forensic interview was arranged. In June 2016, Daniel Dooley, a forensic interviewer at the Child Advocacy Center in Gulfport, Mississippi, conducted a forensic interview of Billy.
¶7. On February 20, 2017, a Harrison County grand jury indicted Pitts on one count of touching Billy for lustful purposes under Section 97-5-23(1). Pitts entered a plea of not guilty on March 20, 2017, and the case proceeded to trial on March 13, 2018.
¶8. Before trial, the trial judge held two separate hearings outside the presence of the jury to determine the admissibility of Billy's disclosures to Janice and Dooley and to determine whether Billy was competent to testify at trial. At the first hearing, Janice and Dooley testified about Billy's disclosures. After the second hearing, the trial judge found Billy competent to testify at trial but reserved ruling on the admissibility of Billy's disclosures until Billy testified.
¶9. At trial, the State called Billy as its first witness. Billy spoke about several instances of sexual abuse by Pitts that had occurred while Billy was in kindergarten in Pass Christian. Billy explained how Pitts had told him to take his clothes off. Billy described how Pitts touched Billy's testicles and licked Billy's penis after school in the bedroom that Pitts and Janice shared in Pass Christian. Billy testified further that Pitts told him not to tell anyone because Pitts would get into "very big trouble."
¶10. On cross-examination, Billy was asked about the circumstances surrounding his disclosures. Billy explained that after he first told his mother about the abuse, Janice "said thank you and then she called the police." Additionally, defense counsel asked Billy if anyone told him what to say, and Billy replied, "my momma only told me to say the truth." Billy also insisted that no one had promised him a reward for testifying.
¶11. After Billy's testimony in front of the jury, the trial judge conducted a hearing outside the presence of the jury to rule on whether Janice and Dooley could testify about Billy's disclosures to them. The trial judge specifically addressed each reliability factor under Mississippi Rule of Evidence 803(25) on the record and ruled that Billy's disclosures had substantial indicia of reliability and were, therefore, admissible under the tender-years hearsay exception.
¶12. After the trial judge's ruling, Janice testified about Billy's disclosures to her and Dooley testified regarding Billy's forensic interview. After a video recording of the forensic interview was introduced into evidence and played for the jury, Dooley testified that Billy's disclosures during the forensic interview were consistent with a child that had been sexually abused.
¶13. Pitts testified and denied all of Billy's accusations. Pitts described a good familial relationship with Billy, and he asserted that Janice had induced Billy to make the accusations after he and Janice separated.
¶14. Pitts was convicted of touching Billy for lustful purposes and was sentenced to serve ten years, day for day, without the possibility of parole or early release in the custody of the Mississippi Department of Corrections. Pitts was also ordered to register as a sex offender upon being released from incarceration. Pitts then filed an unsuccessful motion for a new trial, or in the alternative, judgment notwithstanding the verdict.
¶15. Pitts now appeals and argues that the trial court erred by finding Billy's out-of-court statements admissible under Mississippi Rule of Evidence 803(25). Pitts also argues that the trial court erred by giving jury instruction S-6. As a preliminary matter, we note that Pitts did not raise either of these issues in his motion for a new trial or, in the alternative, judgment notwithstanding the verdict. But the errors now raised by Pitts were preserved by contemporaneous objections in the trial court and are not required to be raised in a posttrial motion. Jackson v. State , 423 So. 2d 129, 131–32 (Miss. 1982).4
STANDARD OF REVIEW
¶16. We review the admission of hearsay evidence for abuse of discretion. Blake v. State , 256 So. 3d 1161, 1168 (Miss. 2018). "This Court will affirm the trial court's ruling unless it can safely say that the trial court abused its discretion in allowing or disallowing evidence to the prejudice of the accused." Tubbs v. State , 185 So. 3d 363, 367 (Miss. 2016) (citing Ellis v. State , 934 So. 2d 1000, 1004 (Miss. 2006) ).
¶17. "This Court reviews the grant or denial of proposed jury instructions for an abuse of discretion." Quinn v. State , 191 So. 3d 1227, 1231–32 (Miss. 2016) (citing Victory v. State , 83 So. 3d 370, 373 (Miss. 2012) ). "[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Victory , 83 So. 3d at 373 (internal quotation marks omitted) (quoting Newell v. State , 49 So. 3d 66, 73 (Miss. 2010) ).
ANALYSIS
¶18. Pitts argues that the trial judge abused his discretion by permitting Billy's mother, Janice, to testify about what Billy disclosed to her. Specifically, Pitts asserts that Billy's statements to Janice lacked the substantial indicia of reliability required under Mississippi Rule of Evidence 803(25).
¶19. At the outset, we note that Billy testified at trial and was subject to cross-examination. On cross-examination, Billy's veracity and motive for testifying were questioned. As a result, Pitts's right to confrontation under the Sixth Amendment is not at issue. See Crawford v. Washington , 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ; Marquis v. State , 242 So. 3d 86, 90 (Miss. 2018). Additionally, Pitts does not dispute that Billy was a child of tender years for purposes of Rule 803(25).
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