Whigham v. State
| Decision Date | 31 December 1992 |
| Docket Number | No. 07-KA-59480,07-KA-59480 |
| Citation | 611 So.2d 988 |
| Parties | Anthony Earl WHIGHAM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Rex K. Jones, Barron McSwain, Hattiesburg, for appellant.
Michael C. Moore, Atty. Gen., Leyser Q. Morris, Jackson, for appellee.
EN BANC.
Anthony Earl Whigham appeals his conviction in the circuit court of Forrest County of violation of Miss.Code Ann. Sec. 97-5-23 (Supp.1991), the sexual molestation of a minor female, and sentence to eight years imprisonment. Because of error in closing argument, we reverse.
On May 15, 1987, the grand jury of Forrest County indicted Whigham for violation Miss.Code Ann. Sec. 97-5-23. The indictment charged that at some time between December 1 and December 31, 1986, Whigham feloniously and lasciviously touched and rubbed with his hands Norma Pratt 1, a female child under fourteen years of age, with the felonious intent to satisfy his depraved licentious and lustful desire, and rubbed Norma's breast and vaginal area. Whigham was 23.
In 1986 Norma was thirteen years of age. Her natural parents are Stanley and Fiona Pratt. She has a brother, Stewart, who is three years her senior.
Whigham and Norma are first cousins. Whigham's mother, Phyllis, is a sister of Norma's father, Stanley. Phyllis and Whigham's father, Wesley, were divorced. Phyllis subsequently married Larry Bounds.
This cause came to trial July 17-18, 1988. The State's first witness was Nancy Easterling, a detective with the Hattiesburg Police Department. She testified that, following complaints made by Stanley and Fiona Pratt, Whigham was arrested on January 29, 1987, and at that time denied that he had had any physical contact with Norma for sexual purposes, but that he had "touched her on one occasion on her breast but he did not do it for the purpose of sexual reasons."
There was no dispute in this case but that Stanley Pratt had been sentenced to the penitentiary for some undisclosed reason and was serving time in a satellite prison. During his imprisonment Whigham had some kind of affair with Fiona Pratt, Norma's mother, and Whigham's aunt by marriage.
The second witness was Stewart Pratt. On direct examination he testified as follows:
Q. During the day that I just recalled to you, December of 1986, what, if anything, occurred at your apartment there?
A. I had come home from a friend's house, when I heard my sister crying. And Anthony was in my mother's room on top of my sister, holding her down, both hands behind her head with one hand up under her shirt and trying to kiss her and she was--
Q. When you say Anthony, who are you talking about?
A. Anthony Whigham.
. . . . .
Q. And exactly where, and I want you to be precise, where was Anthony's hand?
A. Up under her shirt, with one of them, the other hand was holding both her hands above her head on the bed.
Q. When you say up under her shirt, where exactly was his hand?
A. On her breast--
. . . . .
Q. In particular and precisely, where was Anthony's hand, on what particular part of the body on [Norma] was Anthony's hand.
A. On her breast.
Q. What was [Norma] doing?
A. She was crying.
Q. You saw this yourself?
A. Yes, I did.
On cross-examination he testified as follows:
Q. Well, let me ask you this, you, of course have explained it to the prosecution about telling the truth and you know what perjury is and that sort of thing, whether there is any sort of an affair going on between this man here and your mother while your daddy was in jail?
A. Yes, it was.
Q. And as a result of that did your daddy make any statements to you with reference to what he was going to do to this fellow here?
A. No, he didn't.
Q. He did not?
A. He did not.
On direct examination [Norma] testified as follows:
Q. Back in December of 1986, did anything occur in that apartment?
A. Well, Anthony was holding me down on the bed and he had his hands in my shirt, kissing me and everything.
Q. Now when you say Anthony, who are talking about?
A. (Witness points).
. . . . .
Q. What particular part of your body was he touching?
A. Here.
Q. Now when you say "here," what are you [talking about]?
A. Breast.
Q. Your breast?
A. Uh huh.
Q. And you said he was kissing on you?
A. Yes, sir.
Q. And you said he was holding your hands, how was he holding your hands?
A. He had his hand behind my head and one hand in my shirt and he was laying on top of me.
Q. Now, if you would, please described exactly how he had your hands.
A. He had his hand behind my head like this.
. . . . .
Q. He was holding your right arm behind your head?
A. Yes, sir.
Q. What were you doing?
A. Trying to get up but he wouldn't let me up.
Q. Did anyone see Anthony on top of you?
A. My brother.
Q. What's your brother's name?
A. [Stewart].
Q. [Stewart Pratt]?
A. Yes, sir.
On cross-examination she testified as follows:
Q. Are you afraid of your father.
A. No, sir.
. . . . .
A. Well, he asked me what all Anthony did and I told him and he asked me to come up here and tell the truth and that was it.
Q. Did he ask you anything about whether or not this boy was having any sort of an affair with your mother?
A. What?
Q. Did he ask you whether or not this defendant here was having any sort of an affair with your mother?
A. No, he didn't ask me.
Q. Huh?
A. No, he didn't ask me.
Q. Was he?
A. Yes.
Q. He was? Do you know that for a fact?
A. Yes.
Q. And how, would you tell us how you know that for a fact?
A. Cause he would hug on my mother and stuff like that.
Q. Huh?
A. He would hug on my mother and try to kiss her and stuff and I was there when it happened.
Q. Did she hug and kiss him back?
A. Well, he grabbed her and started hugging on her and stuff.
. . . . .
Q. Young lady, isn't it a fact that when your daddy came home from down there in that jail house that your mama and your daddy--he found out what was going on--
A. Yes, he did.
Q. And he told your mama and right to your face, he said, "We want you to go up there and make charges on this man and we want to do it today," and you came on up there with them and you gave statements and so forth, and statements that they talked to you about making before you went up there, didn't you?
A. Yea.
On re-direct examination [Norma] testified:
Q. I'll ask it again, [Norma], if your mother was having an affair with Anthony, does that give Anthony the right to put his hands on your breast?
A. No, it doesn't.
Q. Did you give him permission?
A. No, I didn't.
Q. Did you want him to put his hands on your breast?
A. No, I didn't.
Q. Your mother didn't tell you to let Anthony put his hands on your breast?
A. No, she didn't.
Q. Your answer is no.
A. My answer is no.
Q. He just did it, didn't he?
A. Yes, he did.
Q. And you didn't want him to, did you?
A. No, I didn't.
Q. And you were 13 years old, is that right?
A. Yes, I was.
The State rested, and the court then advised Whigham that he had a right to testify but could not be compelled to testify, it was a matter for him to decide. A brief recess was requested, following which defense counsel announced to the court that "the defendant doesn't think he should testify."
Wesley Whigham was the first defense witness. He testified that one day he was over at the Bounds house to "see the kids," and while he was standing outside he looked in a window of a room where Anthony was sleeping. He saw Norma run through the door and jump on top of him. Then, he and Phyllis "hollered at her to get out of there and leave him alone."
Larry Bounds, Whigham's stepfather, testified that Anthony and Norma "horsed" and "played" around in the Bounds house. He said that she would jump on Anthony when was in bed trying to sleep. He took it that they were just "horsing" around, that Anthony had "played with all the kids from the smallest one all the way up to [Stewart], they've always horsed around, you know."
Phyllis was the final defense witness. She testified that Norma did not live at home while her father was in prison until about two weeks before he returned. She lived at the home of Sandora Thompson, "an old man that they just know."
The jury found Whigham guilty and he was sentenced to eight years imprisonment.
As to the sufficiency of the evidence, it is undisputed that Whigham, a 23-year-old man, was on top of this child with one hand holding her hands behind her head and the other under her blouse rubbing her breast, and that she was crying. We can only conjecture what would have next happened if Stanley had not come into the room. Whigham offered no explanation.
There was ample evidence for the jury to conclude that in engaging in these acts, Whigham was fulfilling some sexual drive.
Stanley Pratt, the father of the child victim, never testified.
During his cross-examination of Stewart Pratt, defense counsel never asked Stewart if he was afraid of his father, never asked him about any conversation he had had with Phyllis Bounds, never asked him about any threats he had ever heard his father make.
During his examination of Phyllis, a defense witness, defense counsel sought to bring out a conversation between Phyllis and Stewart after Stanley had got out of prison.
Q. Did he come--over at John's Car Care, did you have a conversation with [Stewart]?
A. I did.
Q. And what was the extent of that conversation?
BY HON. TRACY KLEIN (for the State):
Objection.
With who now, with [Stewart]?
A. With [Stewart] the day the charges was [sic] filed.
If it was with [Stewart], I will sustain.
Q. I'll ask this, did [Stewart] say anything about what his father wanted him to do?
Objection, hearsay.
I sustain as to hearsay. You are still talking about what [Stewart] told you, is that right?
A. [Stewart], yes sir.
Q. I'll ask you whether or not [...
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