Gregory Elkins v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-02486-COA
GREGORY ELKINS A/K/A GREGORY GLENN
ELKINS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
11/3/2003
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
J. NILES MCNEEL
CYNTHIA A. STEWART
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
FORREST ALLGOOD
CRIMINAL - FELONY
THE DEFENDANT WAS CONVICTED OF
FONDLING AND SENTENCED TO TEN
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND FIVE YEARS POSTRELEASE SUPERVISION.
AFFIRMED - 07/26/05
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Gregory Elkins was found guilty of fondling a child. The Circuit Court of Oktibbeha County
sentenced Elkins to serve ten years in the custody of the Mississippi Department of Corrections and to five
years of post-release supervision. Elkins appeals, arguing (1) that the trial court erroneously admitted the
testimony of a social worker concerning her interview with Elkins's victim and (2) that the trial court
erroneously denied Elkins's right to confront the witnesses against him by excluding impeachment evidence
regarding the victim's motive to lie.
¶2.
We find no error and, therefore, affirm Elkins's conviction and sentence.
FACTS
¶3.
Elkins married T.B. in May 1996. T.B. had three children, the youngest of which, P.B., was seven
years of age at the time of the marriage. Elkins and T.B. separated in July or August 1999, but continued
to date until March 2001. In May 2002, P.B. told T.B. that Elkins had molested her on numerous
occasions during the marriage.
¶4.
Elkins was indicted for fondling a child and sexual battery. The trial occurred in October 2003.
At the trial, P.B. testified that, beginning in 1996, Elkins performed oral sex on her on a regular basis.
Primarily, this occurred when the two were alone in P.B.'s room at her bedtime. P.B. testified that the last
time Elkins had touched her inappropriately was in May 1999, when she was ten years old. On that
occasion, Elkins allowed P.B. to sit in his lap and steer his truck; P.B. said that Elkins placed his hand on
her vagina on top of her bathing suit. Elkins withdrew his hand when P.B. threatened to disclose what he
had been doing to her. Elkins told P.B. that no one would believe her if she told anyone what he had done.
¶5.
Elkins's main defense theory was that T.B. had convinced P.B. to lie about the abuse as revenge
for Elkins's having left T.B. for another woman. Elkins denied ever having performed oral sex on P.B. In
a statement to police, he admitted that he had touched P.B.'s crotch area inappropriately when she sat in
his lap to steer the truck. At the trial, Elkins stated that this incident occurred in 1996, not in 1999. He
explained that, while lifting P.B. into his lap to steer the truck, his hand slipped and he accidentally touched
her bottom. The jury found Elkins guilty of fondling P.B. in May 1999 and acquitted Elkins of sexual
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battery. The court sentenced Elkins to ten years in the custody of the Mississippi Department of
Corrections and five years on post-release supervision. Elkins appeals.
LAW AND ANALYSIS
I. WHETHER THE ADMISSION OF THE SOCIAL WORKER'S TESTIMONY DENIED ELKINS
A FAIR TRIAL AND THE RIGHT TO CONFRONTATION.
¶6.
On May 29, 2002, a social worker, Tomiko Mackey, conducted a "forensic interview" of P.B.
concerning P.B.'s allegations of sexual abuse. On March 19, 2003, Elkins filed a motion in limine to
prohibit Mackey from testifying about hearsay statements which P.B. made to Mackey at the interview.
These statements, for the most part, paralleled P.B.'s trial testimony. The State sought to introduce the
statements pursuant to the tender years exception to the hearsay rule. See M.R.E. 803 (25). After a
hearing, the trial court found that the tender years exception applied and denied Elkins's motion. At the
trial, Mackey was accepted as an expert in forensic interviewing and child sexual abuse. Mackey testified
extensively at the trial regarding her interview with P.B. On appeal, Elkins asserts several errors in the
admission of Mackey's testimony.
¶7.
A. Whether the trial court erroneously allowed Mackey to testify that P.B.'s demeanor,
language and behavior were consistent with those of someone who has been sexually
abused.
Mackey testified that a forensic interview is an investigative interview to determine if something has
happened to a child and, if so, to elicit details from the child.1 Mackey stated that, during her forensic
interview with P.B., P.B.'s behavior and demeanor were consistent with those of children who have been
sexually abused. Mackey also stated that, generally, children who have been coached to lie about abuse
1
In his reply brief, Elkins argues for the first time that Mackey was unqualified to render expert
testimony. Elkins did not object to Mackey's qualifications as an expert and, indeed, declined to voir dire
her qualifications. Therefore, this issue was not preserved for appellate review. McBeath v. State, 739
So. 2d 451, 454 (¶11) (Miss. Ct. App. 1999).
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are unable to "keep a story straight." She said that P.B. related the same facts consistently and that she was
able to clarify details. Elkins argues that this testimony was inadmissible because it amounted to an expert
opinion that P.B. was telling the truth about the abuse.
¶8.
Elkins did not object to this testimony. Elkins's motion in limine to exclude Mackey's testimony
pertained only to P.B.'s hearsay statements, not to Mackey's expert opinions. Since Elkins failed to raise
this issue in the trial court, it is barred from consideration on appeal. M.R.E. 103 (a).
¶9.
Notwithstanding the procedural bar, Elkins's argument is without merit. Mississippi Rule of
Evidence 702 governs the admissibility of expert testimony. It is true that, in a child abuse case, a witness's
opinion that the alleged victim was telling the truth is of dubious competency and, therefore, is inadmissible.
Jones v. State, 606 So. 2d 1051, 1057-58 (Miss. 1992); Griffith v. State; 584 So. 2d 383 (Miss.
1991). However, Mackey never opined that P.B. was truthful during the interview. Rather, she opined
that P.B.'s behavior and demeanor were consistent with those of children who had been sexually abused,
that children who have been coached to lie generally are unable to keep their stories straight, and that P.B.
related the same facts consistently throughout the interview. While an expert may not opine that an alleged
child sex abuse victim has been truthful, the scope of permissible expert testimony under Rule 702 includes
an expert's opinion that the alleged victim's characteristics are consistent with those of children who have
been sexually abused. U.S. v. Whitted, 11 F. 3d 782, 785-86 (8th Cir. 1993). Mackey's testimony was
that P.B.'s behavior and story were consistent with those of child sex abuse victims. Therefore, the
testimony of which Elkins complains was admissible. Id.
B. Whether there was error in allowing Mackey to testify as to what P.B. told her.
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¶10.
Elkins argues that the trial court erroneously denied his motion in limine to exclude Mackey's
hearsay testimony about P.B.'s statements at the interview. Elkins claims that the ruling violated his right
of confrontation and that the tender years exception did not apply to P.B.'s statements.
1. Confrontation clause violation.
¶11.
Elkins argues that the trial court's admission of Mackey's hearsay testimony pursuant to the tender
years exception violated his right to confront the witnesses against him under Crawford v. Washington,
541 U.S. 36 (2004). Crawford held that testimonial hearsay is admissible only if the declarant is
unavailable to testify at the trial and the accused had a prior opportunity to cross-examine the declarant.
Id. at 53-54, 68.
¶12.
The Crawford decision was handed down on March 8, 2004, some four months after Elkins's
conviction. The Mississippi Supreme Court has not determined whether to apply Crawford retroactively.
However, since Crawford is not on point with the facts of this case, this Court need not decide whether
to apply Crawford retroactively in this appeal. Under Crawford, the confrontation clause is violated when
a hearsay declarant is available to testify at the trial, but does not do so, and the defendant lacked an
opportunity to cross-examine the declarant on a prior occasion. Id. Unlike the scenario condemned in
Crawford, in the present case, P.B. testified at the trialand Elkins cross-examined her. Therefore, his right
to confront P.B. was preserved despite the admission of P.B.'s statements during the testimony of Mackey.
This issue is without merit.
2. Tender years exception.
¶13.
Elkins also argues that the trial court erred in finding that P.B.'s statements to Mackey were
admissible under the tender years exception to the hearsay rule provided by Mississippi Rule of Evidence
803 (25). The admission of testimonial evidence is within the sound discretion of the trial court, which will
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be found in error only if the ruling was an abuse of discretion. Lynch v. State, 877 So. 2d 1254, 1281
(¶86) (Miss. 2004). The trial court must exercise its discretion within the confines of the rules of evidence.
Austin v. State, 784 So. 2d 186, 193 (¶23) (Miss. 2001). Any error in the admission or exclusion of
evidence is not grounds for reversal unless the error adversely affected a substantial right of a party.
Lynch, 877 So. 2d at 1281 (¶86).
¶14.
Rule 803 (25) states:
A statement made by a child of tender years describing any act of sexual contact
performed with or on the child by another is admissible in evidence if: (a) the court finds,
in a hearing conducted outside the presence of the jury, that the time, content, and
circumstances of the statement provide substantial indicia of reliability; and (b) the child
either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when
the child is unavailable as a witness, such statement may be admitted only if there is
corroborative evidence of the act.
The comment accompanying Rule 803 (25) lists twelve factors which the trial court should examine to
determine whether substantial indicia of reliability exist. These include, in summary: (1) whether there is
an apparent motive of declarant to lie; (2) the declarant's general character; (3) whether more than one
person heard the statements; (4) whether the statements were spontaneous; (5) the timing of statements;
(6) the relationship between the declarant and the witness; (7) the possibility of faulty recollection by the
declarant is remote; (8) certainty that the statements were made; (9) the credibility of the witness testifying
about the statements; (10) the declarant's age or maturity; (11) whether suggestive techniques were used
in eliciting the statement; and (12) whether the declarant's age, knowledge and experience made it unlikely
that the declarant fabricated.
¶15.
P.B. testified at Elkins's trial. Therefore, her statements to Mackey were admissible if, after a
preliminary hearing, the court determined that P.B. was of tender years and that her statements bore
substantial indicia of reliability. M.R.E. 803 (25). In assessing whether the tender years exception applies,
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the trial court should consider the age of the child at the time the statement was made, not the age of the
child at the time of the trial. McGowan v. State, 742 So. 2d 1183, 1187 (¶18) (Miss. Ct. App. 1999).
P.B. was thirteen years old at the time of her interview with Mackey. "There is a rebuttable presumption
that a child under the age of twelve is of tender years." Veasley v. State, 735 So. 2d 432, 436 (Miss.
1999). When an alleged sex abuse victim is age twelve or older, the trial court must make a case-by-case
determination of whether the alleged victim was of tender years "based on a factual finding as to the victim's
mental and emotional age." Id. at 437. After a thorough preliminary hearing, the trial court found that,
pursuant to Veasley, P.B. should be considered a child of tender years. The court further found that,
considering Mackey's testimony at the preliminary hearing and the court's review of the videotape of the
interview, P.B.'s statements at the interview bore substantial indicia of reliability.
¶16.
Elkins argues that the trial court erred by failing to render factual findings regarding P.B.'s mental
and emotional age, as required by Veasley, and that the court's conclusion that P.B. was of tender years
was error. Our review of the court's ruling reveals that the trial court did not make a specific finding as to
P.B.'s mental and emotional age. Instead, the court stated, "pursuant to Veasley . . . , the [c]ourt finds that
the alleged victim in this cause was thirteen years old at the time the hearsay statements in question were
made, and the victim should and shall be considered a child of tender years."
¶17.
We find that any error in the court's failure to specifically find P.B.'s mental and emotional age was
harmless and did not prejudice Elkins. At the hearing, the court heard extensive arguments from both
parties enunciating the standard for a finding that P.B. was of tender years. The court expressly rendered
its finding pursuant to Veasley, the controlling precedent. The court viewed the videotape of the interview
and had the opportunity to assess P.B.'s maturity through her demeanor and language. Further, the court's
finding that P.B. was of tender years was supported by the evidence. Mackey testified that, in her
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observation during the interview, P.B. was not very mature for her age and appeared to regress in some
ways as she spoke about the abuse. Though the lower court failed to render specific findings as to P.B.'s
mental and emotional age, we find no error in the court's ruling that P.B. was of tender years at the time
of the interview.
¶18.
Elkins also argues that the court's finding that P.B.'s statements bore substantial indicia of reliability
was error, and that the court erred by failing to make point-by-point findings on the twelve reliability
factors. This Court has previously held that, because sufficient evidence supported the finding that the
victim's statements bore indicia of reliability, the trial court's failure to make specific findings on reliability
was not error. Sharp v. State, 862 So. 2d 576, 580 (¶15) (Miss. Ct. App. 2004). In the instant case,
copious evidence supported the trial court's finding that P.B.'s statements bore indicia of reliability. Elkins
contends that P.B.'s statements were not spontaneous because they were made approximately three years
after the alleged abuse ended. But, in Veasley, the court stated that a child's delay in reporting the abuse
is excusable if the delay was caused by fear "or other equally effective circumstances." Veasley, 735 So.
2d at 436. In the interview, P.B. said that she had not wanted to come forward because she was afraid
of Elkins and she did not think her mother would believe her. She was also afraid of upsetting her mother,
who was depressed about her divorce from Elkins. This evidence supported a conclusion that P.B.'s failure
to come forward contemporaneously with the abuse did not undermine the reliability of her statement.
¶19.
Further, Mackey testified that P.B.'s story was consistent and detailed throughout the interview,
which was consistent with P.B.'s lacking a motive to lie and P.B.'s not having been coached. She testified
that P.B. was engaged during the interview. Mackey stated that her role as an interviewer was neutral and
that she had been trained in a specific interviewing protocol employing non-suggestive techniques. She
stated that she had never met P.B. before the interview and had not seen her or spoken with her since.
8
While P.B. admitted that she had habitually lied to her mother about her failure to perform household
chores, it was within the trial court's discretion to weigh this evidence against the evidence relevant to the
other reliability factors. We hold that the trial court did not abuse its discretion in finding that P.B.'s
statements bore indicia of reliability and in admitting her statements pursuant to the tender years exception.
This issue is without merit.
II. THE TRIAL COURT ERRONEOUSLY DENIED ELKINS'S RIGHT TO CONFRONTATION BY
REFUSING TO ALLOW IMPEACHMENT EVIDENCE CONCERNING P.B.'S MOTIVE TO LIE.
¶20.
Elkins argues that the trial court erroneously limited his cross-examination of P.B.'s mother, T.B.,
and erroneously excluded the testimony of T.B.'s ex-boyfriend, Rhett Burlage. He argues that these errors
denied him his Sixth Amendment right to confront the witnesses against him. Elkins first complains that he
was not permitted to ask T.B. whether or not she had coached P.B. to lie about the abuse. A review of
the trial transcript reveals that, in fact, Elkins asked this question and T.B. answered that she had told P.B.
to tell the truth. Since the trial court actually did not make the adverse ruling of which Elkins complains,
this issue is without merit.2
¶21.
Next, Elkins argues that the trial court improperly excluded the testimony of T.B.'s ex-boyfriend,
Burlage, concerning a telephone call that Burlage placed to Elkins. In the telephone call, Burlage informed
Elkins that T.B., in order to exact revenge against Elkins, had coached P.B. to fabricate the abuse. Elkins
explained that, if Burlage testified, Burlage would admit to having phoned Elkins and having told Elkins that
T.B. had coached P.B. to fabricate. However, Elkins stated that Burlage would testify that he had lied to
Elkins and had concocted the coaching story because he was angry at T.B. and desired to hurt her by
2
The transcript also reveals that the trial court prevented Elkins fromquestioning T.B. about several
of her prior statements to Burlage. Elkins proffered T.B.'s testimony concerning the statements. On
appeal, Elkins does not specifically raise the exclusion of the proffered testimony as error and, therefore,
we do not address it.
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helping Elkins evade conviction. Elkins proffered Burlage's testimony. A tape recording of the telephone
conversation was made an exhibit to the proffer.
¶22.
In the proffer, Burlage testified about his relationship with T.B. and the circumstances surrounding
his call to Elkins. Then, the following exchange ensued:
Q. And what was the reason that you were calling for?
...
A. At the time, I was mad at [T.B.], and I had called. And I figured the best way to hurt
her was to make up, you know, what would affect her with the hearing. So, I basically
told Mr. Elkins what I thought would help him.
Q. What did you tell him?
A. I told him that [T.B.] was mad and she had been coaching [P.B] and telling her what
to say and all that.
Q. Did you specifically say that you heard her tell [P.B.] you say that he touched you
here? Do you recall that?
A. No, I don't.
Q. But you say you did tell him that she was coaching [P.B.] and telling her what to say?
A. Uh-huh.
Q. Did you tell him that she was out to get him?
A. I think I may have.
Q. Did you mention anything about how upset she was that the case was continued this
past July?
A. Yes.
Q. Did you mention anything about the fact that she was concerned he was going to get off?
A. I may have. I'm trying to remember. I think—yeah, I think I did.
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Q. Did you volunteer in that conversation to come and testify as a witness?
A. Yes.
Q. Did you tell him that you had had enough of her telling [P.B.] what to say and that's
why you were calling him?
A. I think that's what I had told him.
The prosecution examined Burlage and elicited the following testimony:
Q. Did [Elkins's attorney] personally contact you?
A. Yes.
Q. Did you advise [Elkins's attorney] that you made up this entire story and that you were
lying?
A. Yes.
¶23.
The trial court excluded Burlage's testimony, finding that it was an improper attempt by Elkins to
call a witness for the sole purpose of impeaching him with otherwise inadmissible hearsay and that it was
more prejudicial than probative. On appeal, Elkins argues that Burlage's testimony was relevant to show
that P.B. had been coached to fabricate the abuse. He argues that he was entitled to call Burlage, to ask
him if he had ever stated that P.B. had been coached, and then to impeach him with his prior inconsistent
statements from the phone call to Elkins. Then, he argues, the jury would have been able to determine on
which occasion Burlage was telling the truth about P.B.'s having been coached.
¶24.
This issue deals with Elkins's attempt to impeach his own witness with a prior inconsistent
statement. Mississippi Rule of Evidence 607 provides that any party may impeach the credibility of a
witness, including his own. A witness may be impeached with a prior inconsistent statement if a proper
predicate is laid and as long as the statement made in court is relevant and not collateral. Carlisle v. State,
348 So. 2d 765, 766 (Miss. 1977). But, before a party may introduce an unsworn, prior inconsistent
11
statement of his own witness, the party must show surprise or unexpected hostility and that such statement
can never be used as substantive evidence. Parker v. State, 691 So. 2d 409, 413 (Miss. 1997) (citing
Wilkins v. State, 603 So. 2d 309, 318 (Miss. 1992)). A party may never use his witness's prior statement
in the "guise of impeachment for the primary purpose of placing before the jury substantive evidence which
is not otherwise admissible" in order to avoid the hearsay rule. Flowers v. State, 773 So. 2d 309, 326
(¶58) (Miss. 2000).
¶25.
The aforementioned precedent indicates that the Burlage proffer was inadmissible for two reasons.
Firstly, Elkins expected that Burlage would testify that he lied during his prior telephone conversation with
Elkins. Therefore, Elkins did not show that Burlage's assertion that he had lied was a surprise or evinced
unexpected hostility. Secondly, as Elkins's arguments amply illustrate, Elkins's primary purpose in offering
Burlage was to introduce Burlage's prior statements to Elkins for their tendency to show that P.B. had been
coached to lie by her mother. Thus, Elkins intended to introduce Burlage's prior statements for their
substantive value. As recognized by the trial court, Burlage's prior statements constituted hearsay. M.R.E.
801 (c). The statements could not be used as substantive evidence. Parker, 691 So. 2d at 413.
Therefore, the trial court acted within its discretion in preventing Elkins from introducing Burlage's prior
inconsistent statements. This issue is without merit.
¶26. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF
CONVICTION OF FONDLING AND SENTENCE OF TEN YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FIVE YEARS OF POSTRELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING,C.J., BRIDGES AND LEE, P.JJ., MYERS, GRIFFIS, ISHEE, JJ., CONCUR.
BARNES,J.,CONCURS IN PART AND IN RESULT. IRVING,J., CONCURS IN RESULT
ONLY.
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