Michael F. Palmer v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-01503-COA
MICHAEL F. PALMER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
5/23/2005
HON. W. ASHLEY HINES
WASHINGTON COUNTY CIRCUIT COURT
STEPHEN NICK
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
JOYCE IVY CHILES
CRIMINAL - FELONY
CONVICTION OF COUNT II - ATTEMPTED
SEXUAL BATTERY, COUNT III - FONDLING,
AND COUNT IV - FONDLING:
COUNT II, SENTENCED TO SERVE A TERM
OF 30 YEARS
COUNT III, SENTENCED TO SERVE A TERM
OF 15 YEARS
COUNT IV, SENTENCED TO SERVE A TERM
OF 15 YEARS ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED-10/30/2007
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
In May of 2005, Michael Palmer was tried for the sexual battery, attempted sexual battery,
and criminal fondling of his two stepdaughters, Alice and Jane,1 who were twelve and fourteen at
the time of the alleged abuse. Just before trial, Palmer filed a motion for a continuance to have the
1
The names of the victims have been changed to protect their identities.
children evaluated by an independent psychologist. That motion was denied. During trial, the court
allowed hearsay testimony into evidence concerning Palmer’s abuse of Alice, the youngest
stepdaughter, under the tender years exception found in Mississippi Rule of Evidence 803(25).
Subsequently, Palmer was convicted of the attempted sexual battery of Jane, and of fondling both
Alice and Jane.
¶2.
Aggrieved, Palmer appeals, asserting that: (1) the trial court erred in denying Palmer’s
continuance motion; (2) the trial court erred in admitting hearsay testimony regarding the abuse of
Alice under Mississippi Rule of Evidence 803(25); and (3) that the trial court gave deficient
instructions to the jury regarding his indictment for sexual battery, attempted sexual battery, and
fondling. Finding no error, we affirm the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
¶3.
In March of 2004, Alice and Jane wrote a letter to their grandmother in which they accused
their stepfather, Michael Palmer, of sexually abusing them. Thinking the letter was an apology for
something else, their grandmother did not read the letter until three months later. When the
grandmother finally asked the girls about the letter, they begged her not to tell their mother.
Unfortunately, she obliged.
¶4.
In September of 2004, Alice and Jane wrote another letter, this time to their mother. After
reading the letter and confirming the allegations with Alice and Jane, the mother took the girls in
for a medical examination, where nurses found some evidence supporting their allegations of abuse.
¶5.
Later that day, Alice and Jane were taken to the local police department, so that they could
make statements and file charges against their stepfather, Michael Palmer. Afterwards, they and
their mother were taken to a nearby domestic abuse shelter. During the next two weeks, the girls
were interviewed by both a Mississippi Department of Human Services social worker and therapists
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working with the Mississippi Children’s Advocacy Center. Each interview concluded that the girls’
allegations of abuse were credible.
¶6.
Palmer was indicted for sexual battery, attempted sexual battery, and fondling in December
of 2004. Prior to trial, Palmer filed a motion for a continuance in January of 2005, which was
granted. In May, he filed another motion for a continuance, which he amended three different times.
Among other things, the amendments requested more time in order for Palmer to secure the services
of an independent psychologist to interview the girls. That second continuance motion was denied.
Palmer’s trial began on May 18, 2005. Before empaneling the jury, the trial court held a hearing to
determine the applicability of Mississippi Rule of Evidence 803(25) (the “tender years” hearsay
exception) to Alice and Jane.
After hearing testimony from the girls, their mother, their
grandmother, and the social workers and therapists who interviewed them, the court found that Rule
803(25) applied to Alice but not to Jane.
¶7.
During the course of the trial, the court allowed hearsay testimony from several witnesses
concerning Palmer’s abuse of Alice under Rule 803(25). After the close of evidence, the trial court
instructed the jury on sexual battery, attempted sexual battery, and fondling. The jury convicted
Palmer of the attempted sexual battery of Jane, and of fondling both Alice and Jane. Palmer made
no post-trial motions.
¶8.
Palmer now asserts that the trial court was in error when it denied his second motion for a
continuance, when it allowed hearsay testimony into evidence concerning Alice under M.R.E.
803(25), and when it instructed the jury on sexual battery, attempted sexual battery, and fondling.
These assignments of error give rise to his appeal.
DISCUSSION AND ANALYSIS
1. The denial of the continuance motion was not reversible error.
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¶9.
Palmer argues that it was error for the trial court to deny his second motion for a
continuance. This Court, however, has consistently held that for an assignment of error based on
a continuance motion to be properly preserved for appeal, it must be presented in a post-trial motion
for a new trial. Specifically, “[t]he denial of a continuance is not an issue that may be reviewed for
error on appeal when the matter is not assigned as a ground for a new trial in an appropriate
post-trial motion.” Riser v. State, 845 So. 2d 720, 723 (¶8) (Miss. Ct. App. 2003) (citing Crawford
v. State, 787 So. 2d 1236, 1242 (¶25) (Miss. 2001).
¶10.
Although this rule may seem harsh, we have provided good reasons for its strict enforcement,
stating that:
at the time a continuance motion is made before trial commences, there necessarily
must be some measure of conjecture or speculation as to the extent the defendant
would, in fact, be prejudiced by being forced to trial at a time when he contended
that he was not prepared. However, after the trial is concluded, issues regarding
prejudice arising from being forced to trial too early could be expected to be more
apparent and could be demonstrated with a measure of certainty that simply would
not be available before trial commenced. Requiring the matter to be raised once
again gives the trial court an opportunity to reconsider its earlier ruling after
becoming armed with actual knowledge about how the trial actually progressed and
what problems the defense encountered because of lack of time to adequately
prepare.
Riser, 845 So. 2d at 723 (¶9). Consequently, we need not reach the question of whether or not the
trial court erred in failing to grant Palmer’s second continuance motion. Palmer failed to address
the issue in a post-conviction motion for a new trial, and therefore this assignment of error is moot.
2. The admission of hearsay evidence under M.R.E. 803(25) was proper.
¶11.
Palmer asserts that the trial court erred in its application of Rule 803(25) (the “tender years”
exception) to the youngest victim, Alice. Rule 803(25) has three substantive elements. These are:
(1) a finding that the child is of tender years; (2) a finding, in a hearing conducted outside the
presence of the jury, that the child’s statements provide substantial indicia of reliability; and (3) that
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the child either testify at trial, or if the child is shown to be unavailable, that there is corroborative
evidence of the act. M.R.E. 803(25). The comments to the Rule suggest twelve factors for trial
courts to use in making a determination that a child is of tender years. M.R.E. 803(25) cmts.
Furthermore, the supreme court has established a rebuttable presumption that children under the age
of twelve are of tender years. Veasley v. State, 735 So. 2d 432, 436-37 (¶16) (Miss. 1999).
¶12.
We review decisions regarding the admission or exclusion of evidence under an abuse of
discretion standard. Yoste v. Wal-Mart Stores, Inc., 822 So. 2d 935, 936 (¶7) (Miss. 2002). In this
case, the trial court properly conducted an 803(25) hearing outside the presence of the jury. The
court heard testimony from both Alice and Jane, as well as other witnesses who would be offering
statements based on hearsay. In its ruling on the applicability of Rule 803(25), the trial court
reviewed its findings of fact with regard to all twelve suggested factors listed in the comments to
Rule 803(25), finding that both girls’ statements possessed substantial indicia of reliability. The
court then explicitly found that, for the purposes of Rule 803(25), Alice was of tender years but Jane
was not, relying in part of the supreme court’s ruling in Veasley and in part on its own findings with
respect to their mental and emotional maturity. Alice was present for and testified during the trial.
¶13.
Palmer argues that we should overturn the trial court’s application of the Veasley
presumption because his second continuance motion was denied, which he claims prevented him
from gathering evidence which he could have used to rebut the presumption. Although we have
already addressed the continuance issue above and found it to be moot, we also note that the trial
court only partially relied on the Veasley presumption in finding that Alice was of tender years for
the purposes of Rule 803(25). The trial court also made substantial independent inquiries into both
girls’ mental and emotional ages, and the record indicates that those findings played an equal role
in the court’s application of Rule 803(25) to Alice and its refusal to allow testimony under Rule
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803(25) about Jane. Accordingly, Palmer’s assignment of error on this issue is also without merit,
and we find that the trial court’s application of Rule 803(25) was proper.
3. The instructions to the jury were not deficient.
¶14.
Finally, Palmer argues that the jury instructions given at trial were improper, and that we
should overturn his conviction and remand this case for a new trial based on those improper
instructions. Specifically, he argues that the jury was improperly instructed on rape, and not
attempted sexual battery, and that in the alternative the instruction on attempted sexual battery was
flawed as it failed to include language indicating that Palmer could only be found guilty if he did not
actually complete the crime. Finally, he argues that the jury instructions on fondling were deficient.
¶15.
First, we note that although the original jury instruction on counts I and II of the indictment,
which were sexual battery and attempted sexual battery, was given as an instruction on the crimes
of rape and attempted rape, this instruction was subsequently amended to include appropriate
language for the crimes of sexual battery and attempted sexual battery. Furthermore, Palmer objected
to language included in the amended instruction on attempted sexual battery, and that language was
stricken from the instruction. He failed to object to any other language. Under our previous rulings,
“ failure to make a contemporaneous objection and allow the trial court opportunity to cure the defect
is a procedural bar and constitutes a waiver of the argument on appeal.” Baker v. State, 930 So. 2d
399, 412-13 (¶30) (Miss. Ct. App. 2005) (quoting Mitchell v. Glimm, 819 So. 2d 548, 552 (¶11)
(Miss. Ct. App. 2002)). Furthermore, “an objection on one or more specific grounds constitutes a
waiver of all other grounds.” Burns v. State, 729 So. 2d 203, 219 (¶67) (Miss. 1998). By objecting
to some of the language in the instruction on attempted sexual battery, Palmer waived any further
objections to the language of that instruction. Accordingly, we find his assignment of error on this
issue to be without merit.
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¶16.
Palmer argues that the jury instructions on the crime of fondling were insufficient in that they
did not define the words “lust”, “depraved”, and “licentious” for the jury. He also asserts that the
instruction was deficient in that it did not state that he could be convicted regardless of whether he
had the child’s consent. Again, however, Palmer failed to object to the language of these instructions
or the form in which they were given, and so we are barred from considering them under Baker.
Therefore, we also find his assignment of error on this issue to be without merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF
CONVICTION OF COUNT II ATTEMPTED SEXUAL BATTERY WITH A SENTENCE OF
THIRTY YEARS AND COUNTS III AND IV FONDLING WITH SENTENCES OF FIFTEEN
YEARS EACH, WITH ALL SENTENCES TO RUN CONSECUTIVELY, ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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