Young v. State
| Decision Date | 01 August 1996 |
| Docket Number | No. 93-KA-00489-SCT,93-KA-00489-SCT |
| Citation | 679 So.2d 198 |
| Parties | Freddie YOUNG, v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Guy N. Rogers, Jr., Pearl, for appellant.
Michael C. Moore, Attorney General, W. Glenn Watts, Special Assistant Attorney General, Jackson, for appellee.
Before PRATHER, P.J., and JAMES L. ROBERTS, Jr., and MILLS, JJ.
MILLS, Justice, for the Court.
Freddie Young was convicted of capital rape before a jury empaneled in the Circuit Court of Yazoo County. From a sentence of life in prison, Young appeals his conviction to this Court.
In April of 1992, a six-year-old female child went to school. During that week she complained to school officials of her vaginal area burning when she went to the bathroom. On or about April 8, 1992, the school reported suspected child abuse to the Yazoo County Department of Human Services. On April 9, 1992, June Harris Smith (Smith), a social worker, responded. During their first meeting, the child told Smith that she had fallen on a stick. On April 10, 1992, Smith went to the child's home and spoke to her caretaker, Contra Pleasant, an aunt. Contra Pleasant told Smith that the incident with the stick had occurred several months earlier. Pleasant related that she had bathed Young and her little brother with laundry powder, which had chapped both of them. Smith asked the aunt to take the child to see Dr. Gambrell at the King's Daughters Hospital.
Friday night, Smith received a call from the staff at the hospital informing her that they suspected child abuse. A registered nurse on duty in the emergency room related that the child had an abnormally large vaginal opening, twice the size of that of a normal six-year-old child. The child stated her name, that she had an uncle named Maine and, that she lived with her aunt. The nurse's notes from this visit state, in pertinent part, "Pt. will only tell me her name and that she has an uncle named 'Mane,' but refused to name any other male family that visits home." Dr. Larry Cooper testified that in his expert opinion a smooth object had penetrated the child's vagina. He testified that the six-year-old child did not speak to him at all, but the child mentioned Uncle Maine's name. (Uncle Maine is another male relative living in the child's household, other than the defendant.) Dr. Cooper listed this fact in his notes.
In response to the call from the hospital staff, Smith met the child in the emergency room. She sat and talked to the child for about an hour. The child related that on a school night the previous week she had been in her bed. The child shared a room with another young person. The child stated that four relatives, including Uncle Maine, were in another room watching television. According to direct testimony of Smith, her question of the child related the following:
By using a drawing, Smith related that the child, when asked "what part of his body?", pointed to a space between the legs of a gender neutral figure. Smith then drew in the figure of a penis and asked the child to describe how it felt. The child said, "It was hard, and it pushed, and it hurt." Smith testified that the document was the most important document she possessed in her file regarding this case.
When Contra Pleasant returned home, she accused Freddie Young, the appellant, of raping the child. Young replied, "I never touched her."
The next morning Smith went to the home of the child with John Abel, an officer with the Yazoo City Police Department. Smith asked the child, "Now ... are you sure this is what happened to you, and are you sure this is who did it?" The child replied affirmatively. Officer Abel corroborated that the child said her Uncle Fred did this act. Young was arrested later that day.
Elizabeth Milner (Milner), a child sexual abuse counselor, also interviewed the child. The State qualified Milner as an expert in child abuse. Milner testified that in an hour-long interview, the child played with four anatomically correct dolls, representing a man, a woman, a boy and a girl. The little girl was frightened and did not tell a story of what happened. However, she demonstrated the experience with the dolls. Without being asked which dolls to use, the young girl demonstrated vaginal penetration using the man doll on top of the girl doll. Milner did not ask the girl who the perpetrator was, nor did the child volunteer that information.
At trial the little girl testified. Apparently she was quite scared, and refused to answer who the perpetrator was during repeated questions lasting for ten pages in the transcript. In response to the question "Who did you tell [Smith] at the hospital that hurt you?" the young girl finally answered, "Fred." On cross-examination the child stated that she had never seen the anatomical figure drawing.
During the State's case-in-chief, Smith testified regarding her investigation of sexual abuse concerning this child. During her testimony, the defense objected that Smith was reading from a document. The defense requested to know the nature of the document. Smith testified that she was using an anatomical drawing she kept in her notes. Smith had made these notes during her emergency room visit with the child.
The defense objected that the anatomical drawing had been withheld from a discovery request. The State replied that Smith had provided the drawing only immediately prior to the witness taking the stand. The trial court excused the jury. The trial court then conducted a hearing on the discovery violation. The trial court determined that as the State was planning to solicit testimony from Smith regarding this diagram, a discovery violation had occurred. Further, the trial court found the diagram surprised the defendant. The trial court found no intentional violation by the State. The trial court granted the defense a two-day continuance pursuant to Rule 4.06 of the Uniform Criminal Rules of Circuit and County Court Practice.
When trial reconvened two days later, defense counsel renewed its request for a mistrial, or in the alternative, a longer continuance, stating it had not had an opportunity to prepare. Defense counsel stated on the record that three experts, physicians, had been contacted, each of whom would testify that the anatomical drawing was highly suggestive to the child. Defense counsel stated that he had personally contacted each of these physicians. Defense counsel gave the trial court the telephone numbers of each physician contacted. Defense counsel stated that one physician could testify the next day and requested the continuance extend to that time. The trial court denied both motions.
On appeal, Young contends that the lower court did not grant him an adequate continuance reasonably necessary to investigate the credibility of the evidence and prepare an adequate response to it, citing Box v. State, 437 So.2d 19, 23 (Miss.1983) (Robertson, J. specially concurring).
Rule 4.06 provides, in part, that:
[I]f, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court should, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
Unif.Crim.R.Cir.Ct.Prac. 4.06(i)(2).
The State urges this Court to find that there was nothing suggestive in the method of using the drawing and therefore, the use of the drawing did not prejudice the defendant. The central question on appeal is whether the trial court's denial of one additional day of continuance was an abuse of discretion where the defendant sought expert testimony to attack the investigative procedures of a social worker.
In West v. State, this Court reviewed a discovery violation where the lower court failed to grant a sufficient delay for defense counsel to prepare for surprise expert testimony. In that case, the prosecution informed the defendant that Dr. Rodrigo Galvez, a board certified pathologist and psychiatrist, would be testifying as an expert in the field of pathology. When Dr. Galvez was examined at trial, however, the district attorney elicited testimony regarding Galvez's expertise in psychiatry. As fate would have it, this testimony, addressing the psychosexual disorder of necrophilia, became a crucial element in the State's theory of the case. When faced with defense objection, the lower court allowed Dr. Galvez to testify, but granted defense counsel, in essence, a one day continuance to prepare for the cross-examination. This Court found that this delay was insufficient. We stated:
Precisely because the prosecution's necrophilia theory was so central to the question whether West could be exposed to the death penalty, a day's break in the action was an inadequate antidote for the...
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