Taylor v. State, 98-KA-00292-COA.

Decision Date23 March 1999
Docket NumberNo. 98-KA-00292-COA.,98-KA-00292-COA.
Citation744 So.2d 306
PartiesThomas TAYLOR a/k/a Thomas Edward Taylor a/k/a "Tinker", Appellant, v. STATE of Mississippi, Appellee.
CourtMississippi Court of Appeals

Armstrong Walters, Columbus, Attorney for Appellant.

Office of the Attorney General by Pat Flynn, Attorney for Appellee.

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

LEE, J., for the Court:

¶ 1. Thomas Taylor, fifty-five years of age, was convicted of capital rape in the Circuit Court of Lowndes County, Mississippi and sentenced to life imprisonment. His court appointed attorney appeals the conviction on three assignments of error. Taylor, filing a supplemental pro se brief, appeals on thirty-three assignments of error.

FACTS

¶ 2. Thomas Taylor, also known as "Tinker," was convicted of the rape of an eight year old girl. The rape occurred on January 3, 1997. At the time of the incident, he had been living in the child's home along with the child's mother, stepfather, and three younger sisters. Testimony failed to establish exactly when Taylor had moved in with this family, but it was clear that he had moved in at some time between Thanksgiving and Christmas of 1996.

¶ 3. The child testified that on the night of the rape she woke up and went to the kitchen to get some water. Taylor was in the kitchen, and he took her into his bedroom where he raped her. Her mother was not home and her stepfather and younger sisters were asleep. After the rape he told her not to tell anyone what had happened. She did not tell her mother because she was afraid. The child's mother testified that on January 11 the child was crying and complained that "her privates were sore and had some bumps." The mother took her to the emergency room of a local hospital to see a doctor. The physician who examined her testified that the child's hymenal ring was more dilated than normal for a child of that age, which was consistent with penetration. He also testified that she had multiple ulcerations on the vagina and a heavy discharge characteristic of herpes. Her test for herpes was positive. The child said nothing to the doctor or her mother about having been raped. After leaving the hospital, the child's mother asked her if anyone had been "messing with her", and she answered that Thomas had. The mother called the police and reported the rape.

¶ 4. An investigator from the Columbus Police Department testified that he interviewed the child and her mother on January 11, 1997, and arrested Thomas Taylor after the interviews. The investigator testified that two of the child's aunts had made statements to him prior to this incident about sexual abuse of the child by the stepfather. These statements were determined to be hearsay and were not allowed into evidence. The women could not be located to testify. The investigator said that the two women had filed a complaint with the Department of Human Services ( "DHS"), but that the child had denied to him that her stepfather had sexually abused her. A witness for the DHS stated that there had been six complaints filed against this family but that only two were in regard to sexual abuse. The first complaint for sexual abuse of this child was filed on December 6, 1996. The stepfather was the subject of that investigation. A social worker from the DHS interviewed the child and her younger sister separately at school, as well as the school counselor, regarding these allegations and found no evidence of abuse and no reason to take the investigation any further.

¶ 5. The child testified at trial that she had never told her aunts, while she was visiting one of them in Alabama, that her stepfather had been having sex with her and that she did not want to go home. The mother also testified that the child had never accused the stepfather of sexual abuse. Other evidence established that Thomas Taylor and the stepfather both tested positive for herpes on January 31, 1997.

¶ 6. After hearing the evidence, Thomas Taylor was convicted of capital rape and sentenced to life imprisonment.

ISSUES AND DISCUSSION OF THE LAW

I. THE TRIAL COURT DID NOT ERR IN NOT ALLOWING INTO EVIDENCE STATEMENTS MADE BY UNAVAILABLE WITNESSES.

¶ 7. The defense had issued subpoenas for the child's two aunts. One aunt lived in Alabama and was beyond the jurisdiction of the court, and the other could not be located. In their absence, the defense sought to introduce into evidence statements that the aunts had made to the Columbus Police Department prior to the attack on the child on January 3, 1997. The aunts claimed in these statements that the child had told them that she was being sexually abused by the stepfather. The trial court determined that these statements were irrelevant in determining whether or not Thomas Taylor had raped the child on January 3, 1997, and refused to admit the statements into evidence. Taylor assigns this denial as error.

¶ 8. Taylor cites that Mississippi Rule of Evidence 804(b) provides that former testimony is not excluded by the hearsay rule if the declarant is unavailable as a witness. His authorities, McMasters v. State, 83 Miss. 1, 35 So. 302 (1903); Smith v. State, 247 So.2d 705 (Miss.1971); Lee v. State, 124 Miss. 398, 86 So. 856 (1921), are all inapplicable to this case since they apply only to the admissibility of former testimony. The statements provided by the aunts were not sworn statements. It has been well established in this state that arguments unsupported by authority will not be considered on appeal. Harris v. State, 386 So.2d 393, 396 (Miss.1980); Kelly v. State, 553 So.2d 517, 520 (Miss.1989). In Harris v. State, 386 So.2d at 396 (quoting Ramseur v. State, 368 So.2d 842, 844 (Miss.1979)), the Court said: "Where assignments of error are unsupported by argument and authority, the Court does not, as a general rule, consider them."

¶ 9. In addition to this procedural bar, this assignment of error fails on merit. The statements of the unavailable witnesses were hearsay and did not fit into any of the exceptions of M.R.E. 804(b), which exclude from hearsay former testimony, statements made under belief of impending death, and statements against interest. The statements also do not fall under any other hearsay exception. M.R.E. 804(b)(5) provides that statements which do not fall within the other recognized exceptions may be admitted into evidence as an exception if the court determines:

(A) the statement is offered as evidence of a material fact;
(B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(C) the general purposes of these rules and the interests of justice will best be served by admission of the statements into evidence.

¶ 10. The court has held before that statements of unavailable witnesses may be admitted under this provision of the rule where they were relevant to a material issue in the trial. Butler v. State, 702 So.2d 125, 127 (Miss.1997). The aunts's statements do not fall into this catch-all exception. Whether or not the child told her aunts that her stepfather was sexually abusing her before she was raped has nothing to do with whether or not Taylor took her into his bedroom and raped her on January 3, 1997. The statements by the aunts do not satisfy any of the subsections of the rule. The general purposes of the rules and the interests of justice would not have been served by the admission of this irrelevant information, and the trial court was correct in excluding it.

II. THE REMARKS MADE DURING CLOSING ARGUMENT BY THE STATE'S ATTORNEY WERE WITHIN THE LATITUDE ALLOWED FOR CLOSING ARGUMENT.

¶ 11. The contested remark made by the district attorney during closing argument was "People who do this—this is a crime of opportunity. They do it when there's not people around and they do it to the most helpless of—the community." Taylor asserts that this comment is not based on the facts presented as evidence. He claims that arguing statements of fact that are not in evidence or necessarily inferable from evidence that are prejudicial to the defendant is error. However, these remarks were supported by the evidence and were well within the latitude allowed for closing argument. Taylor took the opportunity of raping an eight year old child during the night when no one was around. She was certainly one of the most helpless in the community.

¶ 12. Courts have consistently upheld the wide latitude that attorneys are allowed in closing arguments. Comments by prosecutors which were much more detrimental to the defense have been held not to be reversible error in prior decisions of the Mississippi Supreme Court. For example, the court in Stringer v. State, 500 So.2d 928, 939-40 (Miss.1986), upheld a comment that the defendant would be a danger to society if he did not receive the death penalty. A comment that a jury's failure to convict a defendant would open the door for other children to be abused has also been upheld. Monk v. State, 532 So.2d 592, 600-01 (Miss.1988). Reversal is not merited unless the remarks by the prosecuting attorney during closing argument create "unjust prejudice against the accused resulting in a decision influenced by prejudice." Johnson v. State, 596 So.2d 865, 869 (Miss.1992); Ormond v. State, 599 So.2d 951, 961 (Miss.1992); Dunaway v. State, 551 So.2d 162, 163 (Miss.1989). In this case the jury's verdict was not prompted by prejudice, but by solid evidence, and this error fails on the merit.

¶ 13. It should also be noted that the defense did not object to the prosecutor's closing argument, and the issue has therefore not been preserved for appeal. See Hunter v. State, 684 So.2d 625, 637 (Miss. 1996); (citing Foster v. State, 639 So.2d 1263,1288-89 (Miss.1994)) ("[I]t is incumbent on defense counsel to raise a proper objection when the offensive language is uttered or waive appellate...

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