Smith v. State

• Decision Date: 22 April 2008
• Docket Number: No. 2006-KA-01728-COA.,2006-KA-01728-COA.
• Citation: 989 So.2d 973
• Parties: Leslie W. SMITH, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

989 So.2d 973

Leslie W. SMITH, Appellant v. STATE of Mississippi, Appellee.

No. 2006-KA-01728-COA.

Court of Appeals of Mississippi.

April 22, 2008.

Rehearing Denied September 2, 2008.

David G. Hill, Oxford, Brian H. Neely, Tupelo, attorneys for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.

Before LEE, P.J., BARNES and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. Leslie W. Smith was indicted on June 20, 2002, on three counts of sexual battery. After trial, Smith was found guilty on all three counts and sentenced to thirty years for each count, with ten years suspended on each count, to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, he assigns the following issues for review:

I. Whether the trial court erred by refusing to dismiss Smith's indictment.

II. Whether Smith was denied effective assistance of counsel.

III. Whether the trial court erred in allowing improper hearsay testimony to be admitted into evidence under the tender years exception.

IV. Whether the trial court erred in denying Smith's challenges for cause during voir dire.

V. Whether the trial court erred by denying Smith's motions based on the sufficiency of the evidence.

VI. Whether the trial court erred by not declaring a mistrial based upon a complete deterioration of the attorney/client relationship between Smith and his attorney.

VII. Whether jury instructions C-7, C-8, and C-9 were improper statements of the law and based on a fatally flawed indictment.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY¹

¶ 2. This case arose from complaints by C.C. that she was sexually molested by Smith. At the time the alleged offenses were committed, Smith was dating C.C.'s mother and living with the family. Subsequently, Smith was indicted on three counts of sexual battery by a Pontotoc County grand jury.

¶ 3. Count I of the indictment stated that between December 1, 2001, and December 9, 2001, Smith:

did willfully, unlawfully, and feloniously commit sexual battery upon C.C., a human being, by penetrating the victim's anus/rectum with his penis, and at the time of the said offense, Defendant was above the age of 18 years, having a date of birth of March 21, 1975, and the victim was under the age of 16 years, having a date of birth of November 11, 1992.

Count II of the indictment stated that between July 1, 2000, and November 30, 2001, Smith:

did willfully, unlawfully, and feloniously commit a sexual battery upon C.C., a human being by penetrating the victim's mouth with his penis, and at the time of the said offense, Defendant was above the age of 18 years, having a date of birth of March 21, 1975, and the victim was under the age of 16 years, having a birth date of November 11, 1992.

Count III of the indictment stated that between July 1, 2000, and November 30, 2001, Smith:

did willfully, unlawfully, and feloniously commit a sexual battery upon C.C., a human being by performing cunnilingus on the victim, and at the time of the said offense, Defendant was above the age of 18 years, having a date of birth of March 21, 1975, and the victim was under the age of 16 years, having a birth date of November 11, 1992.

¶ 4. Prior to trial, Smith made a motion for a suppression hearing to determine whether certain hearsay testimony was admissible. At issue was the testimony of several of the State's witnesses who were expected to testify as to what C.C. told them about the alleged sexual abuse. Hearings were held on November 11, 2003, and later continued until December 12, 2005. During the hearing, the State offered witnesses to establish that the statements at issue were admissible under the tender years exception set out in Rule 803(25) of the Mississippi Rules of Evidence. After hearing the testimony of those witnesses, the trial judge held the statements to be admissible, finding that "based on her age, knowledge, and experience" there was no reason for C.C. to fabricate anything, and her statements were substantially reliable. Accordingly, Smith's motion to exclude the testimony was denied.

¶ 5. Smith's trial was held on December 12, 2005. During pretrial motions the State moved to amend the indictment against Smith. The State requested that the language, "and the victim was under the age of 16 years," contained in each count of the indictment be amended to that of "and the victim was under the age of 14 years." The State contended that this was an amendment as to form rather than substance, which was necessary to bring the indictment in conformity with the statutory language defining sexual battery. However, the trial court denied the State's request, noting that allowing the amendment would prejudice Smith by raising the possible maximum sentence from thirty years to life imprisonment.

¶ 6. C.C., who was thirteen at the time, testified that on numerous occasions Smith touched her with his private parts during the time he was dating C.C.'s mother. She identified Smith's private as his penis. Specifically, she stated that Smith "put his private in [her] bottom," which she described as both her buttocks and vagina. She remembered that on one occasion Smith caused her to bleed. C.C. further testified that on other occasions she was forced to perform oral sex on him and allow him to perform oral sex on her. She stated that these incidents of abuse occurred at several different locations including: (1) her grandmother's house, (2) the trailer in which they lived, (3) the barn behind their trailer, (4) the swimming pool behind her grandmother's house, and (5) Smith's mother's house. According to C.C., she notified her grandmother that Smith was "touching [her] with his private parts," who in turn, notified C.C.'s mother. However, both refused to believe her after Smith denied the allegations. Subsequently, Smith's mother was also notified of C.C's accusations. In response, C.C. was chastised for lying by both her mother and Smith's mother, and she was told that if she continued to lie she would be placed in a foster home. C.C. testified that she was scared by the prospect of being placed in a foster home, and because of this, she recanted her accusation. Further, C.C. testified that she was reluctant to disclose any further abuse because she was convinced that no one would believe her. It was not until sometime later that C.C. mustered the courage to tell her stepmother and father, who then took her to see a social worker with the Department of Human Services (DHS).

¶ 7. Carol Langendoen and Tomiko Mackey, both licensed social workers, testified for the State as experts in the field of child sexual abuse. Langendoen, who conducted the forensic interview of C.C., was also accepted by the trial court as an expert in forensic interviewing. Mackey conducted more than fifty therapy sessions with C.C. after her forensic interview. According to both, C.C. gave very detailed information concerning three specific instances of sexual abuse by Smith. While being questioned about the varying degrees of abuse for which she was subjected, C.C. specifically stated that Smith forced her to fondle his penis, engage in oral sex, and that he "put his private in her butt," indicating both her buttocks and vagina. Although Langendoen described C.C. as being in a tentative stage of disclosure, she testified that C.C. became very descriptive once she allowed herself to open up. According to Mackey, C.C. was able to provide detailed sensory information about each incident of abuse including: where she was at the time, what the location looked and smelled like, what she was wearing, what Smith's penis looked like what she touched, what she tasted, and the physical pain she experienced. It was Langendoen's and Mackey's expert opinions that the report that C.C. provided was consistent with that of a child that had been sexually abused.

¶ 8. The State also presented Dr. William Marcy who testified as a medical expert for the State with a specialty in child abuse cases. After conducting a brief interview with C.C., Dr. Marcy conducted a head to toe examination on her. In doing so, he devoted special attention to those areas that C.C. complained of sexual abuse, including the genital and anal area. The most significant thing that Dr. Marcy found was that during C.C.'s anal exam the muscle inside her anus was "somewhat lax." Dr. Marcy characterized this as uncommon and the most dramatic he had ever seen. He stated that normally when the anus is probed there is a natural reaction by the muscle to tighten. In C.C.'s case the probe did not seem to be anything unusual to her. Based on his exam, Dr. Marcy was under the impression that, "at a minimum," C.C. had been subjected to anal rape, extensive fondling, and genital to genital contact. His clinical diagnosis was that C.C. had been subjected to child abuse, and he had no reason to believe that it was caused by any person other than Smith.

¶ 9. Smith offered several witnesses including C.C.'s mother, his mother, and himself in order to show that C.C. had fabricated her story. These witnesses alleged that N.S., one of C.C.'s childhood friends, also made similar accusations of abuse against her stepfather, and this may have planted a seed in C.C.'s mind to make up her story about Smith. Each also testified that C.C. loved Smith and had never shown any resistance or shyness toward him. Further, both C.C's mother and Smith's mother testified that C.C. recanted her allegation, telling them "Ok, I lied." However, on cross-examination, they admitted that this statement came after C.C. was told that if she continued to lie, she would be put in a foster home. C.C.'s mother also admitted that she originally tried to protect Smith from the authorities, but now she believed that he did commit the crime.

¶ 10. The State called V.S., N.S.'s mother, as a rebuttal witness. V.S. denied that N.S. had ever made any accusation...