TAPPER v. State of Miss., 2009-KA-00544-SCT.

• Decision Date: 18 November 2010
• Docket Number: No. 2009-KA-00544-SCT.,2009-KA-00544-SCT.
• Citation: Tapper v. State, 47 So.3d 95 (Miss. 2010)
• Parties: Randy Lamar TAPPER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

47 So.3d 95

Randy Lamar TAPPER

v.STATE of Mississippi.

No. 2009-KA-00544-SCT.

Supreme Court of Mississippi.

Aug. 26, 2010.

Rehearing Denied Nov. 18, 2010.

Office of Indigent Appeals by Justin Taylor Cook, attorney for appellant.

Office of the Attorney General by John R. Henry, Jr., attorney for appellee.

EN BANC.

CARLSON, Presiding Justice, for the Court:

¶ 1. Randy Lamar Tapper was convicted by a Jackson County Circuit Court jury on two counts of sexual battery and five counts of touching of a child for lustful purposes. Tapper was sentenced to life imprisonment on each count of sexual battery and to fifteen years on each count of touching of a child for lustful purposes, with all sentences to run consecutively. After the trial judge denied his Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, Tapper perfected this appeal, alleging errors at the trial-court level. Finding Tapper's assignments of error to be without merit, we affirm the judgment of the Circuit Court of Jackson County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. The mother of C.C. and L.P., ¹ the two victims, testified at trial that she gave her daughters permission to play at Randy Tapper's house with his daughter during the summer of 2006. The two girls spent the weekend of August 18, 2006, with Tapper. After the girls returned home the following Monday, they came into their residence by themselves and went to bathe. Their mother discovered that their vaginal areas were red, and the girls told her that they were “burning.” The girls were then taken to the emergency room.

¶ 3. Toby Nix, an emergency-room staff nurse at Singing River Hospital, treated C.C. on August 20, 2006. Nix testified to conducting a sexual-assault examination on C.C. and to finding erythema, or redness, in C.C.'s vaginal area and a single pinworm in the hymenal area. Catherine Shaver, also an emergency-room nurse at Singing River Hospital, examined L.P. on August 20 and testified to noticing erythema in L.P.'s vagina and moist secretions. Further, Nicole Tapper, Randy Tapper's wife, testified that during the summer of 2006, C.C. and L.P. would stay the night at her home and sleep with her husband.

¶ 4. During her testimony, L.P. asserted that Tapper touched her “wrong spot,” or vagina, and her leg with his hand and his penis. She testified that Tapper attempted to put his “wrong spot” into her “wrong spot,” which caused her to scream. L.P. also testified to seeing Tapper try to put his “wrong spot” into her sister's, C.C.'s, “wrong spot” as well. L.P. stated that Tapper had touched her “wrong spot” with his “wrong spot” (penis) about five times over the summer of 2006. Nurse Shaver also testified that at the emergency room, L.P. told her that Tapper had put his penis between her buttocks and her legs, and he had threatened to hurt her and her parents. C.C. testified that Tapper touched her “coochie,” or vagina, with his hand; however, during trial, she could not remember many events from the time in question. Nurse Nix testified that C.C. had told her that Tapper had touched her vagina with his penis and his finger.

¶ 5. Laura Greer, the former program coordinator for the South Mississippi Child Advocacy Center, testified that she had performed forensic interviews with L.P. and C.C., and the jury was played a tape of these interviews. S.F., a minor, ² also testified that she and her sister would spend the night at Tapper's house when she was nine years old and her sister was eight. She stated that Tapper would “always try to take his private and put it in mine.” S.F. further testified that Tapper had threatened to kill her if she told anyone.

¶ 6. Tapper testified in his own defense. He denied sexually abusing or inappropriately touching either L.P. or C.C. Tapper stated that the two girls had made up the allegations “[b]ecause [their] mother knew that I knew there was inappropriate things going on inside her home, and I'm afraid she knew that I was going to turn her in for them.” ³ Also, he accused another person of S.F.'s molestation. The defense rested after Tapper's testimony.

¶ 7. The jury returned verdicts finding Tapper guilty of one count of sexual battery upon C.C., one count of touching of a child for lustful purposes (touching) upon C.C., one count of sexual battery upon L.P., and four counts of touching upon L.P. The trial court sentenced Tapper to life in the custody of the Mississippi Department of Corrections on both counts of sexual battery and to fifteen years on each count of touching, all to run consecutively. After a hearing, on Tapper's Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, the trial court entered an order denying Tapper's motion. Thus, Tapper appealed to this Court.

DISCUSSION

¶ 8. Tapper presents three issues for this Court's consideration: (1) whether the trial court violated Tapper's fundamental right to a fair and impartial jury by failing to excuse jurors for cause; (2) whether the trial court erred in denying the motion to quash the indictment for not adequately informing Tapper of the nature of the charges against him; and (3) whether Tapper's convictions for touching merge with his convictions for sexual battery and therefore violate his rights under the Double Jeopardy Clause of the United States Constitution.

¶ 9. We now restate the issues for the sake of clarity in today's discussion.

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO EXCUSE JURORS FOR CAUSE.

[1] [2] [3] ¶ 10. “The determination of whether a juror is fair or impartial is a judicial question, and it will not be set aside except where there is a finding that the determination clearly appears to be wrong.” West v. State, 820 So.2d 668, 671 (Miss.2001) (citing Carr v. State, 555 So.2d 59, 60 (Miss.1989)). “[T]his Court will treat with deference a venire person's assertions of impartiality.” Barfield v. State, 22 So.3d 1175, 1184-85 (Miss.2009) (citing Scott v. Ball, 595 So.2d 848, 850 (Miss.1992)).

[4] ¶ 11. Tapper asserts that the trial court erred in failing to excuse three jurors for cause. He also contends that it was error for the trial court to grant a challenge for cause by the State. Specifically, Tapper argues that jurors number 6, 9, and 31 should have been struck for cause because they each declared that Tapper should have to prove his innocence in clear contradiction to Tapper's fundamental right not to testify. The State moved to strike juror number 23 for cause, and the trial court granted this challenge because that juror's brother had been prosecuted by the same [prosecutor's] office and tried by the same judge for fondling, and the juror stated that he did not believe his brother's trial was fair. Tapper, however, asserts that “the disparate treatment by the trial court of defense counsel's motions as compared to the State's motion cannot be reconciled.” Tapper's argument with respect to juror number 23 is simply without merit. “Any juror shall be excluded ... if the court be of opinion that he cannot try the case impartially, and the exclusion shall not be assignable for error.” Miss.Code Ann. § 13-5-79 (Rev. 2002).

[5] ¶ 12. Tapper also ultimately challenged jurors number 6, 9, and 31 peremptorily. A prerequisite to Tapper's claim on appeal “is a showing that he had exhausted all of his peremptory challenges and that the incompetent juror was forced upon him by the trial court's erroneous ruling.” Chisolm v. State, 529 So.2d 635, 639 (Miss.1988); see Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988) (the loss of a peremptory challenge does not constitute a violation of the constitutional right to an impartial jury).

¶ 13. During the jury-selection conference, defense counsel challenged jurors number 6, 9, and 31 for cause, and after hearing arguments from the prosecutor and defense counsel, the trial judge refused to remove these jurors for cause. Eventually, defense counsel exercised peremptory challenge D-2 on juror number 6, peremptory challenge D-4 on juror number 9, and peremptory challenge D-10 ⁴ on juror number 31. Therefore, none of these challenged jurors sat on the trial jury.

¶ 14. In Christmas v. State, 10 So.3d 413, 423 (Miss.2009), we reiterated:

This Court has explained that a prerequisite to presentation of a claim of a denial of constitutional rights due to denial of a challenge for cause is a showing that the defendant had exhausted all of his peremptory challenges and that the incompetent juror was forced by the trial court's erroneous ruling to sit on the jury. Chisolm v. State, 529 So.2d 635, 639 (Miss.1988)

Christmas, 10 So.3d at 423 (emphasis added) (citing Mettetal v. State, 615 So.2d 600, 603 (Miss.1993)).

¶ 15. While the record reveals that Tapper had exercised all of his twelve peremptory challenges, Tapper is unable to show that any of these three challenged jurors were forced upon him by eventually sitting on the trial jury. Christmas, 10 So.3d at 423. Thus, Tapper's claim must fail. After defense counsel exercised peremptory challenge D-10 on juror number 31, Tapper, through counsel, exercised peremptory challenge D-11 on juror number 33 (juror number 32 had been struck for cause), and peremptory challenge D-12 on juror number 41. Therefore, according to the record, Tapper, through counsel, accepted as members of the trial jury juror number 36 and juror number 38, before exercising peremptory challenge D-12 on juror number 41.

¶ 16. For these reasons, we find this issue to be without merit.

II. WHETHER TAPPER'S INDICTMENT SHOULD HAVE BEEN QUASHED.

[6] ¶ 17. The question of whether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review, by this Court. Montgomery v. State, 891 So.2d 179, 185 (Miss.2004) (citing Nguyen v. State, 761 So.2d 873, 874 (Miss.2000); Peterson v. State, 671 So.2d 647 (Miss.1996)).

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