Bays v. State

344 So.3d 303

Willie BAYS a/k/a Willie Bays, Sr., Appellant

v.STATE of Mississippi, Appellee

NO. 2021-KA-00244-COA

Court of Appeals of Mississippi.

August 2, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, Jackson

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. A Coahoma County jury convicted Willie Bays of one count of sexual battery by a person in a position of trust or authority. The Coahoma County Circuit Court sentenced Bays to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) and ordered Bays to register as a sex offender. Aggrieved, Bays appeals and alleges the trial court erred when it (1) failed to make a tender-years determination before admitting testimony containing hearsay statements from the twelve-year-old victim and (2) prevented him from re-calling the victim as a witness in the presentation of his defense. Upon finding that the admission of the victim's statements through the witness's testimony was harmless error and that the court did not abuse its discretion when it declined Bays's request to re-call the victim, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2017, Sarah¹ and her brother Walker resided at the home of their great-grandmother and legal guardian, Willie Smith. Their father, Bays, lived at Smith's house off and on. Shirley Anderson, who testified that she was Smith's granddaughter and Sarah and Walker's cousin, had also frequently spent time at Smith's house to help take care of Sarah and Walker.

¶3. On August 24, 2017, Anderson and Smith contacted the authorities to report a sexual assault. Officer Neal Mitchell of the Coahoma County Sheriff's Department responded to the call at Smith's home. When Officer Mitchell arrived, he was informed that Smith's twelve-year-old great-granddaughter Sarah had stated that her father, Bays, had sexually assaulted her. Officer Mitchell requested a criminal investigator from the Sheriff's Department, and Investigator Marcus Cohen arrived at Smith's home shortly thereafter to assist. Upon learning the nature of the sexual-assault claim, Investigator Cohen scheduled a physical sexual-assault examination and a forensic interview for Sarah, as well as a forensic interview for Walker, an alleged witness to the assault. Bays was subsequently arrested and indicted on a charge of sexual battery by an authority figure for engaging in sexual penetration with Sarah while occupying a position of trust or authority as her father. Bays pleaded not guilty, and the case went to trial. The jury found Bays guilty of one count of sexual battery by a person in a position of trust or authority. Bays was sentenced to serve twenty years in MDOC's custody and ordered to register as a sex offender.

¶4. Bays now appeals and alleges that the trial court erred by (1) admitting a witness's testimony containing the twelve-year-old victim's hearsay statement without conducting a tender-years determination and (2) denying the defendant's request to re-call a witness, thereby obstructing the presentation of his defense.

STANDARD OF REVIEW

¶5. Appellate courts "review[ ] a trial court's decision to admit or exclude evidence under an abuse-of-discretion standard." Burgess v. State , 178 So. 3d 1266, 1277 (¶30) (Miss. 2015). "An error in the admission or exclusion of evidence is not grounds for reversal unless the error affected a substantial right of a party." Aguilar v. State , 955 So. 2d 386, 392 (¶19) (Miss. Ct. App. 2006).

¶6. Likewise, "[i]t is within the sound discretion of the trial court to permit a witness to be re[-]called to the stand once the witness has completed his testimony." Clark v. State , 233 So. 3d 832, 847 (¶26) (Miss. Ct. App. 2017) ; Portis v. State , 245 So. 3d 457, 468 (¶26) (Miss. 2018) (We "review[ ] a court's decision on whether to allow a witness to be re[-]called for abuse of discretion."). This Court "will not disturb a trial court's ruling in this regard unless the trial court abused its discretion." Clark , 233 So. 3d at 847 (¶26).

DISCUSSION

I. Admission of Testimony Relaying Statement of Twelve-Year-Old Child

¶7. The first issue presented to this Court is whether the trial court improperly admitted testimony that contained a statement made by a twelve-year-old child. The contested testimony from Anderson was her brief statement that on the day the police were called, she had a conversation with Sarah and learned from Sarah that Bays had molested her.

¶8. Bays claims the court erred by admitting Anderson's testimony of Sarah's statement under Mississippi Rule of Evidence 801(d)(1)(C) as a statement of identification. His claim of error is predicated on the argument that the court should have applied the tender-years exception in Mississippi Rule of Evidence 803(25) to determine the admissibility of Anderson's testimony because it contained a statement made by a twelve-year-old to a third party about a sexual encounter.² Bays alleged that the prosecution's pre-trial motion stating the intention to offer Sarah's statement under Rule 803(25) further indicated that admitting Anderson's testimony was improper without conducting a tender-years determination.

¶9. As the trial court noted, the prosecution did in fact file a pre-trial motion indicating the State planned to offer Anderson's testimony of Sarah's statement under the tender-years exception found in Rule 803(25), but the prosecution did not pursue that motion at trial. Instead, during trial, the prosecution chose to proffer Anderson's testimony under Rule 801(d)(1)(C) as a non-hearsay statement of identification. Ultimately, the trial court found the testimony admissible under the Rule 801(d)(1)(C) exclusion advanced at trial and allowed Anderson's testimony. Of note, the trial court limited the expansion of Anderson's testimony during the prosecution's direct examination. Upon objection by Bays's counsel on two occasions, the trial court prevented the prosecution from broadening its line of questioning regarding Sarah's statement identifying the perpetrator. Because the prosecution chose not to pursue the admission of Anderson's testimony on Rule 803(25) grounds, and because the court found the proffer under Rule 801(d)(1)(C) was sufficient, the court was not presented with circumstances warranting its consideration of the tender-years exception. Thus, the question before this Court becomes whether the trial court improperly admitted Anderson's testimony of Sarah's statement under Rule 801(d)(1)(C).

¶10. Rule 801(d)(1)(C) allows a statement to be admitted into evidence as non-hearsay if it was a statement that "identifies a person as someone the declarant perceived earlier" and if the declarant testifies at trial and is subject to cross-examination. ³

In James v. State , 124 So. 3d 693, 700 (¶20) (Miss. Ct. App. 2013), we found that a statement made by a witness to his brother-in-law, stating that it was the defendant he had seen and shot at outside a house, was not a statement of identification under Rule 801(d)(1)(C). This Court held that Rule 801(d)(1)(C) "was not intended to allow the introduction as substantive evidence of hearsay statements that ‘the defendant did it.’ " Id . (quoting United States v. Kaquatosh , 242 F. Supp. 2d 562, 565 (E.D. Wis. 2003) ). The phrase " ‘statement of identification’ as contemplated by Rule 801(d)(1)(C) ... uses identification in a technical sense, referring to a witness identifying the defendant in a line-up, show-up, photo array, preliminary hearing, or the like." Id . Moreover, "perceived earlier" as used in the rule "should be interpreted to refer to perceiving the individual or a representation of him once again after the event in question." Id . Rule 801(d)(1)(C) "does not include statements unaccompanied by recognition of the defendant or his likeness." Id .⁴ Further, in a case where our supreme court emphasized that "the only contested issue in this case was the identity of the shooter[,]" the court found that a witness's statements made to law enforcement investigators the day after the witness perceived the man who had shot him and given during the formal investigation were statements of identification of the shooter for Rule 801(d)(1)(C) purposes. Smith v. State , 25 So. 3d 264, 273 (¶27) (Miss. 2009).

¶11. Here, Sarah's statement to Anderson is more analogous to the erroneously admitted statement in James , where it was made to a family member outside the formal investigation process and was not a "statement of identification" as contemplated by Rule 801(d)(1)(C). Sarah's statement occurred one month after the alleged assault during a conversation with Anderson, who was not an investigator, after Anderson had approached Sarah solely out of concern for her well-being because she had started to act out more often than usual. Further, Sarah's brief statement that her father molested her was not made in response to perceiving him once again after the assault at issue. James , 124 So. 3d at 700 (¶20). Rather, it was a statement "that a certain person, known to [Sarah], committed a crime[,]" and it was not a statement of identification in a technical sense. Id . Therefore, it was not admissible as a non-hearsay statement of identification, and the trial court erred by allowing Anderson's testimony of Sarah's statements under Rule 801(d)(1)(C). But this conclusion does not require reversal here.

¶12. "[A]lthough this Court has determined that the out[-]of[-]court statement that was testified to ... was introduced for the truth of the matter asserted and it should not have been admitted into evidence, we believe this error was harmless given the other evidence presented[.]" Clemons v. State , 732 So. 2d 883, 889 (¶23) (Miss. 1999). An error is considered harmless when "the weight of the evidence against [the defendant was] sufficient to outweigh the harm done by allowing...