Veasley v. State, 95-CT-00367-SCT.

Decision Date22 April 1999
Docket NumberNo. 95-CT-00367-SCT.,95-CT-00367-SCT.
Citation735 So.2d 432
PartiesHerman VEASLEY a/k/a Herman Veasley, Jr., a/k/a "June" v. STATE of Mississippi.
CourtMississippi Supreme Court

Stephen Alan Brandon, Clarksdale, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorney for Appellee.

EN BANC.

ON PETITION FOR WRIT OF CERTIORARI

BANKS, Justice, for the Court:

¶ 1. This matter comes before the Court upon the State's petition for writ of certiorari. We granted certiorari to clarify our "tender years" exception to the hearsay rule, Miss. R. Evid. 803(25). We conclude that a child under twelve is rebuttably presumed to be of tender years and that, where a person is twelve or older, a trial court must make a factual determination as to whether that person is of tender years based on mental age. The trial court expressed doubt as to whether the exception should apply to the person here involved. Nevertheless, the trial court felt bound by the comment to Rule 803(25), to treat any person under fourteen as a child of tender years for this exception, and, therefore, failed to conduct a hearing to determine whether S.K. was in fact a child of tender years for these purposes. Because the trial court failed to conduct such a hearing the conviction must be reversed. Accordingly, we affirm the judgment of the Court of Appeals and remand this matter to the circuit court for further proceedings consistent with this opinion and the Court of Appeals' opinion.

I.

¶ 2. On May 19, 1994, Andrew Thompson, Jr., Sheriff of Coahoma County, received a phone call from S.K.'s biological father that S.K., a thirteen-year-old female, was being sexually abused by Herman Veasley, Jr., S.K.'s stepfather, who was married to S.K.'s mother. On May 20, 1994, Verlena Flagg, a social worker with the Department of Human Services, and Officer Hunter with the Jonestown Police Department removed S.K. from the Veasley's household. After removal, S.K. was transported to the Department of Human Services and interviewed by Flagg and Sheriff Thompson. During that interview, S.K. informed the social worker that Veasley had been having sexual intercourse with her since she was seven or eight years old; that the last time he had had sex with her was May 13, 1994; that Veasley had been beating on her mother; and that she was afraid of Veasley. Later S.K. also told the physician who examined her that her stepfather had been sexually abusing her since she was seven.

¶ 3. On December 13, 1994, Herman Veasley, Jr., was indicted for five counts of rape of S.K., a child of less than fourteen years of age. Prior to trial, Veasley filed a motion in limine to prevent the introduction of all aspects of out-of-court statements made by S.K. to the social worker, Flagg, and Sheriff Thompson, claiming it to be inadmissible hearsay under M.R.E. 803(25). He further alleged that the evidence of spousal abuse was inadmissible as being in violation of M.R.E. 404(b).

¶ 4. The trial court initially stated that it did not consider a child of thirteen to be of tender years, but it was eventually persuaded to admit the evidence based on the comment to Rule 803(25), stating that according to case law anyone under fourteen is considered to be of tender years. Thus, Flagg and Sheriff Thompson were permitted to testify to out-of-court statements made to them by S.K. about the sexual contact, without the trial court first conducting a hearing to determine whether S.K. was in fact a child of tender years. Flagg was also permitted to relate statements made to her by S.K. concerning incidents of physical abuse of S.K.'s mother by Veasley. S.K. was available to testify and did in fact testify to her sexual intercourse with Veasley.

¶ 5. Veasley was convicted of five counts of rape and sentenced to five consecutive life sentences to be served in the custody of the Mississippi Department of Corrections. The Court of Appeals reversed and remanded for a new trial. Veasley v. State, 697 So.2d 1194 (Miss.Ct.App.1997) (table), rehearing denied, 704 So.2d 473 (Miss.Ct.App.1997). The Court of Appeals found that the trial court erred as a matter of law in ruling on the admissibility of the out-of-court statements made by S.K. to the social worker and Sheriff, and that the trial court erred in refusing to hold a hearing relative to the status of S.K. as a child of tender years. Aggrieved, the State filed a petition for writ of certiorari.

II.

¶ 6. The primary basis for the Court of Appeals' reversal and remand in the case was the failure of the trial court to determine that the child victim was a child of tender years for the purpose of admitting hearsay testimony under the provisions of M.R.E. 803(25). The State argues that the Court of Appeals misinterpreted the comment to Rule 803(25), applying it in a manner which was not intended by the drafters of the rule or by this Court in adopting the rule.

¶ 7. The State asserts that the Court of Appeals, in holding that as a matter of law a case—by-case determination must be made that a child is of "tender years" before M.R.E. 803(25) can be applied, overlooked the fact that an adolescent is a child of tender years. The State explains that a case-by-case determination should not be necessary because (1) the trial judge, in considering the reliability factors outlined in the comment to the rule, has to consider the age and maturity of the child; and (2) although there has been no specific interpretation of the comment, this Court has described children of ages eleven, twelve, and thirteen to be of tender years. The State relies on pre-rule cases to support its position. See Leatherwood v. State, 548 So.2d 389, 399 (Miss.1989)

; Houston v. State, 531 So.2d 598, 608-09 (Miss.1988); Woodruff v. State, 518 So.2d 669 (Miss.1988); Williams v. State, 427 So.2d 100 (Miss.1983).

¶ 8. Although the trial court observed that it did not consider a thirteen-year-old to be a child of tender years, it was eventually persuaded to admit the evidence based, apparently, on the comment to Rule 803(25), which mentions age fourteen as the outer limit accepted in many jurisdictions. The statements made by the thirteen-year-old victim in this case to the social worker and the Sheriff were admitted under the tender years doctrine, without the trial court first conducting a hearing to determine S.K.'s status as a child of tender years.

¶ 9. The Court of Appeals, in concluding that the trial court erred as a matter of law in ruling on the admissibility of the victim's out-of-court statements, explained that "there is a two-step process for evaluating the admissibility of a young victim's out-of-court statements. The trial court must first determine that the declarant is, in fact, a child of tender years before it may move to the second step of determining whether `the time, content, and circumstances of the statement provide substantial indicia of reliability ...'" Miss. R. Evid. 803(25). The Court of Appeals further explained that:

While this Court will concede that in situations involving a very young child, there may exist no legitimate issue of fact as to whether the child is `of tender years' for purposes of this rule, we do not think in this case that the matter is so forgone a conclusion that the trial court may simply assume the fact. The victim was thirteen years old when she made the statements implicating her stepfather. Evidence was developed at trial that, in fact, she had been sexually active with other adults besides her stepfather in the period prior to the incidents charged in the indictment and, thus, prior to the time the statements were made. This sexual activity was, by her own testimony purely consensual, though she claimed that she had consented because of the encouragement or insistence of her stepfather.
The trial court, in ruling on the 803(25) issue, seemed to have misapprehended the import of the comment to the rule regarding chronological age since he stated, "I don't consider age thirteen to be a child of tender years," and then immediately thereafter said, "Except to the extent that it is permitted in 803.25 in which case, according to the cases and so forth, anyone under fourteen is considered to be, for purposes, to fit within that exception."

¶ 10. The Court of Appeals held that the trial court improperly assumed, without any evidence, the answer to an important question of fact affecting the admissibility of the victim's out-of-court statements—a question that, on the record, seems one upon which reasonable fact-finders might differ. The Court of Appeals concluded that, because the hearsay evidence offered by the social worker and the Sheriff was central to the issue of guilt in this case, the improper admission of the evidence required reversal because it affected Veasley's substantial rights. Miss. R. Evid. 103(a); Gullett v. State, 523 So.2d 296, 300 (Miss.1988); Murphy v. State, 453 So.2d 1290, 1293-94 (Miss.1984).

¶ 11. Prior to the adoption of the Rules of Evidence, as noted in Gill v. State, 485 So.2d 1047 (Miss.1986), this Court had broadened the hearsay exception in child sex abuse cases beyond that previously allowed in rape cases involving females over the age of puberty. Compare Anderson v. State, 82 Miss. 784, 788, 35 So. 202, 203 (1903). In Gill we found no error in admitting testimony that a twelve-year-old child ran out of the house and told the next-door neighbor that her stepfather had just raped her. Id. Also, in Williams v. State, 427 So.2d 100 (Miss.1983), where an eleven-year-old child was raped by her stepfather, the Court found no error in the admission of statements made to her older sister the next morning that she had been raped, as well as to a local minister who took the child to the hospital for examination; even though the child's statements as to who committed the crime were not admissible. With regard to the length of time that passed between the time of the rape and the time at...

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