Pustay v. State
| Decision Date | 04 October 2016 |
| Docket Number | NO. 2013-KA-00977-COA,2013-KA-00977-COA |
| Citation | 221 So.3d 320 |
| Parties | Thomas PUSTAY a/k/a Thomas Stephen Pustay a/k/a Thomas Stephan Pustay, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, FOR APPELLANT.
OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER, FOR APPELLEE.
BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
CARLTON, J., FOR THE COURT:
¶ 1. Thomas Pustay appeals his conviction of two counts of the crime of touching a child for a lustful purpose and three counts of the crime of sexual battery. After our review of the record, we find no error by the trial court. As a result, we affirm Pustay's conviction and sentence.
¶ 2. On May 11, 2005, Jane,1 Pustay's biological niece and his adopted daughter, reported alleged sexual abuse by her father to an official at her school. At the time she reported the abuse, Jane was in the eleventh grade.2 Jane then met with Pass Christian Police Chief John Dubuisson and Assistant Chief Tom Ruspoli. Jane informed them that Pustay, who was a chief investigator with the Pass Christian Police Department, began inappropriately touching her around the fifth grade. The touching escalated into sexual intercourse that lasted from the sixth grade to the eleventh grade, or two weeks prior to her report.
¶ 3. Chief Dubuisson and Assistant Chief Ruspoli also interviewed two of Jane's friends, Ashley Stephens and Magan Helveston. Ashley told the police that Jane came to school upset, and Ashley encouraged Jane to tell the school officer about Pustay's abuse. After speaking with Jane and her friends, Chief Dubuisson and Assistant Chief Ruspoli determined the alleged acts occurred outside of the city and turned the investigation over to Investigator Carolyn Prendergast with the Harrison County Sheriff's Office.
¶ 4. Investigator Prendergast transported Jane to the Child Advocacy Center, where an advocate interviewed her while Investigator Prendergast watched from a separate room. Investigators also transported Jane to Memorial Hospital for evaluation, but due to the length of time between the last reported sexual encounter and the examination, a rape kit was not performed.
¶ 5. On the same day as Jane's report, Investigator Prendergast interviewed Karen Pustay, Jane's adoptive mother and Pustay's wife, who told investigators that Pustay admitted the sexual abuse to her. Jane was then removed from the home and placed in foster care. While in foster care, Jane attempted to have the charges dropped but refused to admit the allegations were false.
¶ 6. A Harrison County grand jury indicted Pustay on February 6, 2006. After a trial held on May 7, 2007, the jury found Pustay guilty of five of the six counts in the indictment. On May 21, 2007, the trial court sentenced Pustay to serve a total of forty years in the custody of the Mississippi Department of Corrections (MDOC). On May 25, 2007, Pustay timely filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). A year later, on May 16, 2008, Pustay filed a pro se motion to dismiss. Then, five years later, on February 25, 2013, Pustay filed a pro se motion for a new trial.
¶ 7. The trial court judge who presided over Pustay's trial failed to rule on his posttrial motions. After waiting six years to receive a ruling on his posttrial motions, Pustay filed a pro se petition for mandamus with the Mississippi Supreme Court on June 10, 2013, to require the trial court to render a decision. On June 25, 2013, the Clerk of the Mississippi Supreme Court issued a letter to the trial-court judge now assigned to the case, who had been appointed to the position after the trial, and asked for a response. On July 25, 2013, the trial-court judge entered an order denying Pustay's posttrial motions. Pustay then filed his pro se notice of appeal.
¶ 8. On appeal, Pustay asserts thirteen separate assignments of error. We have edited and reordered the issues for clarity: (1) whether the trial court erred in allowing the State to treat its own witness as hostile and establish its case through impeached testimony; (2) whether the trial court erred in limiting Pustay's cross-examination of a State's witness; (3) whether the trial court improperly limited Pustay's testimony; (4) whether the trial court erred in denying Pustay's motion to review the records of relevant youth-court proceedings; (5) whether Pustay's indictment was insufficient and vague, rendering it defective; (6) whether the trial court erred in its Batson analysis and in placing jurors stricken by Pustay back onto the jury; (7) whether the trial court erred in admitting irrelevant and prejudicial evidence of Pustay's character in violation of Mississippi Rule of Evidence 404(b) ; (8) whether the trial court erred in excluding relevant and probative evidence under Mississippi Rule of Evidence 412 ; (9) whether the trial court erred in admitting improper lay-opinion testimony; (10) whether Pustay received constitutionally ineffective assistance of counsel, which resulted in prejudice; (11) whether the lesser-included count of Count II, lustful touching, merged with Count VI, sexual battery; (12) whether the evidence was sufficient or whether the verdicts were supported by the weight of the evidence; and (13) whether cumulative error requires reversal.
¶ 9. Pustay claims the trial court committed reversible error during the State's interrogation of Karen. Specifically, Pustay claims that it was error for the trial court to admit Karen's recorded statement to police officers as part of the State's impeachment of her testimony.
¶ 10. The standard of review for "a trial court's admission or exclusion of evidence is abuse of discretion." Carothers v. State , 152 So.3d 277, 281–82 (¶ 14) (Miss.2014) (citing Osborne v. State , 54 So.3d 841, 845 (¶ 12) (Miss.2011) ). "Our trial judges are well-suited to make these calls" as to the admission or exclusion of prior inconsistent statements as impeachment evidence. Id. at 284 (¶ 21).
¶ 11. The State called Karen to testify. Her direct examination began as follows:
At this point in the examination, the State objected on the grounds that Karen's answer was not responsive. The State then asked permission to treat Karen as a hostile witness and ask leading questions. The defense objected, but the trial court granted the State's request on the grounds of Karen's "recantation under oath."
¶ 12. The State then continued its examination with questions about Karen, her husband, her family, and other personal matters:
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