Gerald Barrett v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01565-COA
GERALD BARRETT
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
3/5/2002
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
WILLIAM JOSEPH BARNETT
DAN W. DUGGAN
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
RICHARD D. MITCHELL
CRIMINAL - FELONY
STATUTORY RAPE - COUNT IV - LIFE;
SEXUAL BATTERY - COUNT VI - 40 YEARS;
COUNT VI SHALL RUN CONSECUTIVELY TO
THE SENTENCE IMPOSED IN COUNT IV.
AFFIRMED - 05/25/2004
BEFORE KING, C.J., BRIDGES, P.J., THOMAS AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Gerald Barrett was convicted in Rankin County Circuit Court of statutory rape and one count of
sexual battery. He was sentenced to life imprisonment for the statutory rape and to forty years for the
sexual battery, the sentences to run consecutively. He appeals and raises the following issues:
Issue One: Counsel for the appellant was ineffective in not objecting to continued leading
questions by the State.
Issue Two: Trial counsel was ineffective in not objecting to continuous introduction of prior
bad acts against the appellant by the State.
Issue Three: The verdict was contrary to both the weight and the sufficiency of the
evidence.
¶2.
Finding no error, we affirm.
FACTS
¶3.
In June 2000, N.B. moved in with her father, Gerald Barrett. Barrett did not know that she existed
until she was ten and DNA evidence confirmed that she was his daughter. N.B. lived in a variety of foster
homes prior to moving in with Barrett in his trailer home in Rankin County, Mississippi. N.B. testified that
she was thirteen in 2000 and that her relationship with her father was not a normal one because they were
engaging in sexual intercourse with each other. She testified that they had sex about twenty times. Barrett
was age thirty-three at the time.
¶4.
N.B. testified about one particular incident when her friend C.C. was visiting in her home.
According to testimony from N.B. and C.C., Barrett called them into his room, shut the door, undressed
and then undressed each of the girls as well. Barrett asked the girls to have sex with him. N.B. said that
she would only if C.C. also agreed. C.C. agreed but only if N.B. would go first. N.B. proceeded to crawl
on top of Barrett and have sex with him. Afterwards, C.C. refused to have sex with Barrett because she
saw that N.B. was in pain during sex.
¶5.
N.B. also testified to having seen Barrett place his hand in C.C.'s pants sometime around the time
that C.C. saw them have sex. In her testimony, C.C. described a separate incident in which Barrett came
in and sat beside her and N.B. on the "couch bed" in the trailer and Barrett placed his finger in her vagina.
According to her, he also made her rub his "d-i-c-k." C.C. also corroborated N.B.'s testimony as to the
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events in Barrett's bedroom when all three of them were naked and when she saw Barrett and N.B. have
sex. C.C. also was questioned about a later event around the end of July or early August when Barrett
allegedly only "fingered" her and when she again refused to have intercourse with him. The jury found
Barrett guilty of one count of sexual assault.
¶6.
Also living in the trailer at the time of the alleged incidents were Barrett's mother, Margaret
Anthony, and her then live-in boyfriend, Eddie Taylor, and Barrett's brother, Irby. There were three
bedrooms in the trailer. Anthony and her boyfriend shared one bedroom, Irby was in another, and most
of the time N.B. had the other bedroom, with Barrett sleeping on the couch. There was apparently a
period of time when Barrett and N.B. shared a bedroom. Both Barrett's mother and Eddie Taylor testified
that they never saw anything improper but that they worked the late shift until after midnight and were not
at the trailer a good part of the night.
¶7.
The defense attempted to put on proof that N.B. had a propensity for lying and that she was jealous
of other women in her father's life. There was also testimony that she was involved with a boy her age and
that her father had attempted to break up the relationship and N.B. threatened to run away.
¶8.
The allegations against Barrett came to light after he reported N.B. as a runaway. Officer Aaron
Hirschfield of the Pearl Police Department testified that he received a call about N.B. being a runaway and
went to the hospital to interview her to get information about the possible sex with Barrett. Hirschfield then
went to Barrett's trailer to interview him. Hirschfield asked for and received permission to search the
trailer. Hirschfield asked Barrett if there was a reason why there would be semen on N.B.'s bed and,
according to Hirschfield, Barrett told him that he masturbated on the bed and that N.B.'s body fluids might
be on the bed as well if she masturbated on the bed as well. The sheets were taken as evidence, but no
testing was ever done.
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¶9.
Barrett testified in his own defense and denied that he had sexual relations with N.B. He did testify
that he had been convicted of prior offenses of burglary and sale of narcotics and that he was in fact guilty
of these offenses. The State also introduced statements that Barrett signed which stated that he had not
committed any felony offenses. There was also testimony presented at trial that Barrett's brother, Irby, had
just been released from prison at the time he moved into Barrett's trailer.
¶10.
Patricia Barrett, Barrett's new wife of four months, testified that she never observed any sexual
activity between Barrett and N.B. Patricia also testified that N.B. did not like her and directly contradicted
N.B.'s testimony that N.B. did not know her.
¶11.
Barrett also offered character witnesses who testified that Barrett had a good reputation in the
community. On cross-examination these witnesses were asked about Barrett's criminal record and whether
this was consistent with a good reputation.
¶12.
The jury found Barrett guilty of the statutory rape of his daughter and also guilty of one of two
counts of sexual assault of the daughter's friend. The judge sentenced Barrett to life imprisonment for the
statutory rape and a consecutive sentence of forty years for the sexual assault.
¶13.
On motion for new trial, a different defense attorney offered an undated letter supposedly written
by N.B. which stated that her father made her breakup with her boyfriend. This conflicted with her
testimony at trial. A witness in support of the motion for new trial testified that she overhead a conversation
in which C.C. stated that she gave testimony at trial only because she did not want Irby, Barrett's brother,
or herself to go to jail. The testimony was that C.C. was coerced into testifying in order to prevent Irby
from being charged with statutory rape because the district attorney had found videotapes and “other stuff.”
¶14.
Barrett's trial was in March of 2002, and the motion for rehearing was heard on August 16, 2002.
According to the State, "more than two months" before the hearing, Irby was convicted of statutory rape
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and sentenced to ten years imprisonment for his involvement with C.C. Barrett's motion for a new trial was
denied.
DISCUSSION
Issue One: Counsel for the appellant was ineffective in not objecting to continued leading
questions by the State.
¶15.
A claim of ineffective assistance of counsel is considered under the holding of Strickland v.
Washington, 466 U.S. 668 (1984). "[B]efore counsel can be deemed to have been ineffective, it must
be shown (1) that counsel's performance was deficient and (2) that the defendant was prejudiced by
counsel's mistakes." Sanders v. State, 801 So. 2d 694, 702 (¶30) (Miss. 2001). There is a presumption
that defense counsel is competent, that defense counsel's decisions are strategic, and that "counsel's
performance falls within the range of reasonable professional assistance." The presumption may be
rebutted if the defendant can demonstrate that "there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id.
¶16.
Barrett claims that his counsel was ineffective for failing to object to leading questions during the
testimony of N.B. and C.C. The supreme court has defined leading questions as follows:
A leading question is one that suggests to the witness the specific answer desired by the
examining attorney. Trial courts are given great discretion in permitting the use of such
questions, and unless there has been a manifest abuse of discretion resulting in injury to the
complaining party, we will not reverse the decision. This is because the harm caused is
usually inconsiderable and speculative, and only the trial court was able to observe the
demeanor of the witness to determine the harm.
Tanner v. State, 764 So. 2d 385 (¶ 58) (Miss. 2000) (citing Clemons v. State, 732 So. 2d 883 (¶ 25)
(Miss. 1999)). See Whitlock v. State, 419 So. 2d 200, 203 (Miss. 1982).
¶17.
Mississippi Rule of Evidence 611(c) states that "[l]eading questions should not be used on the direct
examination of a witness except as may be necessary to develop his testimony." However, within the
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comments to this rule, it is noted that in some situations the use of leading questions may become necessary.
"Children are a classic example of the kinds of witnesses for whom leading questions may be necessary."
Ivy v. State, 522 So. 2d 740, 742 (Miss. 1988). In Gandy v. State, 788 So. 2d 812, 814 (¶ 10) (Miss.
Ct. App. 2001), the Court stated:
Gandy argues that Ivy is inapplicable here because the witness did not first exhibit
problems with communication. The record does not reveal any hesitancy on the victim's
part in testifying as to the events that occurred. However, communication difficulties are
not just in situations where the victim is embarrassed or ashamed. Here the victim testified
as to the details of the event without any difficulty. She testified using terms in the
vernacular. The leading questions only clarified the terms used in order to obtain the
anatomically correct terminology. In this case the communication difficulties concern the
terminology.
Gandy contends that without the use of the leading questions the State would not
have proved its case. We find only that certain clarity was brought to the testimony by the
nature of the questions, and disagree that any substantively different evidence was thereby
admitted. Gandy was not prejudiced. The leading questions were proper. We find no error
on this point.
¶18.
In the present case, a few of the questions asked could be considered leading questions, but due
to the age of the witnesses and the limited manner in which the questions were used, it is doubtful that the
trial judge would have disallowed the questions. The witnesses testified without hesitancy to the particulars
of the events and the questions could easily have been reframed to elicit the same testimony. Barrett would
have benefitted little by an objection from counsel, and he cannot show that he was prejudiced by the failure
of counsel to object. We find no reversible error.
Issue Two: Trial counsel was ineffective in not objecting to continuous introduction of prior
bad acts against the appellant by the State.
¶19.
The same standard for ineffective assistance of counsel would apply to this second assignment of
error. In this issue, Barrett claims that his trial counsel rendered ineffective assistance for permitting prior
bad acts to be introduced without objection. Specifically, Barrett raises that the State introduced testimony
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that he and N.B. had sex at least twenty time, that he hurt her before and after the incident giving rise to
the trial, and that he had penetrated C.C. with his fingers four or five times.
¶20.
As stated by Barrett, the general rule is that prior bad acts are generally not allowed. However,
M.R.E. 404(b) provides for an exception to the general rule that in criminal prosecutions, evidence of other
crimes is not admissible. See White v. State, 520 So. 2d 497, 500 (Miss. 1988) (not error to permit
testimony of previous sexual offenses between appellant and his victim, especially where victim is under the
age of consent); Coates v. State, 495 So. 2d 464, 468 (Miss. 1986) (relaxation of general rule and
allowed evidence of similar sexual acts that had occurred on numerous occasions prior to the offense
charged).
¶21.
Unfortunately for Barrett, there is a clear line of cases authorizing a circuit court in the prosecution
of a sexual offense to permit evidence of past sexual crimes of the accused. Beginning with Brooks v.
State, 242 So. 2d 865 (Miss. 1971), the Mississippi Supreme Court in a rape case held that proof of a
prior sexual offenses between the defendant and prosecuting witness was admissible in this type of case.
The court therein adopted the general rule of other states permitting evidence of past sex crimes and sexual
offenses. See 77 A.L.R.2nd 841 (1961). That authority cites cases from other jurisdictions permitting
previous sodomization of the victim by the accused to be offered into evidence by the trial court., 77
A.L.R.2nd at 883.
¶22.
In Davis v. State, 367 So. 2d 445, 446 (Miss. 1979), the supreme court held that it was not error,
where the accused was charged with sodomy upon an eleven-year-old female, to permit the victim to testify
that the accused had subjected her to the same thing on previous occasions. In Speagle v. State, 390 So.
2d 990, 993 (Miss. 1980), an incest case, the court held that evidence of prior incestuous conduct with
the victim was admissible, and in Hicks v. State, 441 So. 2d 1359, 1361 (Miss. 1983), the court held that
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proof of prior sexual acts were admissible in a criminal charge of sexual battery of a father upon his
twelve-year-old daughter. The court again held that it was not error to permit testimony of previous sexual
offenses between appellant and his victim in Woodruff v. State, 518 So. 2d 669, 671 (Miss. 1988).
¶23.
In doing so, the court has held that such evidence is admissible in this limited situation to show the
appellant's lustful, lascivious disposition toward his particular victim, especially where, as here, the victim
was under the age of consent. Crawford v. State, 754 So. 2d 1211, 1220 (Miss. 2000). See also State
v. Carver, 37 Wash. App. 122, 678 P.2d 842 (1984).
¶24.
Since the cases clearly hold that it is not error to admit this evidence, there can be no claim of
ineffective assistance of counsel premised on the failure of trial counsel to object. There is no merit to this
assignment of error.
Issue Three: The verdict was contrary to both the weight and the sufficiency of the
evidence.
¶25.
The standard of review is a familiar one. “In determining whether a jury verdict is against the
overwhelming weight of the evidence, [appellate courts] must accept as true the evidence which supports
the verdict and will reverse only when convinced that the [trial] court has abused its discretion in failing to
grant a new trial.” Herring v. State, 691 So. 2d 948, 957 (Miss. 1997) (citing Thornhill v. State, 561
So. 2d 1025, 1030 (Miss. 1989)). “Only when the verdict is so contrary to the overwhelming weight of
the evidence that to allow it to stand would sanction an unconscionable injustice will [an appellate court]
disturb it on appeal.” Id. (citing Benson v. State, 551 So. 2d 188, 193 (Miss. 1989)). “Thus, the scope
of review on this issue is limited in that all evidence must be construed in the light most favorable to the
verdict.” Id. (citing Mitchell v. State, 572 So. 2d 865, 867 (Miss. 1990)).
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¶26.
Our standard of review in a challenge to the sufficiency of the evidence is different, yet well
established. We may reverse only where all credible evidence, along with all reasonable inferences,
consistent with guilt and viewed in the light most favorable to the prosecution is such that a fair and
reasonable jury could not find the defendant guilty. Gibby v. State, 744 So. 2d 244, 245 (¶6) (Miss.
1999).
¶27.
Under this assignment of error, Barrett attacks the credibility of the testimony of C.C. and N.B.
He characterizes C.C.'s testimony as inconsistent and argues that she "was certainly no child of tender years
as evidence by her graphic testimony." Concerning N.B., Barrett argues that she was jealous of Barrett's
relationships with a number of girlfriends and resentful of the fact that Barrett disliked N.B.'s boyfriend.
Barrett also points to the witnesses who testified they never saw any improprieties between Barrett and
N.B.
¶28.
Both N.B. and C.C. testified as both victims and eyewitnesses to the crimes for which Barrett was
convicted. Any issues of credibility or motive was for the jury to decide. McClain v. State, 625 So. 2d
774, 778 (Miss. 1993). This Court cannot step into the jury box and usurp the role of the jurors. There
is no merit to the argument in this assignment of error.
¶29. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF
CONVICTION OF COUNT IV STATUTORY RAPE AND SENTENCE OF LIFE AND
CONVICTION OF COUNT VI SEXUAL BATTERY AND SENTENCE OF FORTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, THE
SENTENCES TO RUN CONSECUTIVELY, IS AFFIRMED. ALL COSTS OF APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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