Gregory Elkins v. State of Mississippi
| Docket Number: | 2003-KA-02486-COA Linked Case(s): 2003-CT-02486-SCT2003-KA-02486-COA2003-KA-02486-COA |
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| Oral Argument: | 03-15-2005 | |
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| Additional Case Information: |
Topic: Fondling a child - Expert testimony - M.R.E. 702 - Hearsay - Tender years exception - M.R.E. 803(25) - Impeachment - M.R.E. 607 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Gregory Elkins |
J. Niles McNeel; Cynthia Ann Stewart |
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| Appellee: | State of Mississippi | Jean Smith Vaughan; Charles W. Maris, Jr.; Jim Hood |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Fondling a child - Expert testimony - M.R.E. 702 - Hearsay - Tender years exception - M.R.E. 803(25) - Impeachment - M.R.E. 607 |
| Summary of the Facts: | Gregory Elkins was found guilty of fondling a child. He was sentenced to ten years and to five years of post-release supervision. Elkins appeals. |
| Summary of Opinion Analysis: | Issue 1: Expert testimony Elkins argues that the court erroneously admitted the testimony of a social worker concerning her interview with Elkins' victim. The social worker was accepted as an expert in forensic interviewing and child sexual abuse and testified extensively at the trial regarding her interview with the victim. The expert testified that the victim 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 the victim was telling the truth about the abuse. Since Elkins failed to raise this issue in the trial court, it is barred from consideration on appeal. In addition, while an expert may not opine that an alleged child sex abuse victim has been truthful, the scope of permissible expert testimony under M.R.E. 702 includes an expert's opinion that the alleged victim's characteristics are consistent with those of children who have been sexually abused. Elkins also argues that the court's admission of the expert's hearsay testimony pursuant to the tender years exception violated his right to confront the witnesses against him. 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. Here, the victim testified at trial and Elkins cross-examined her. Therefore, his right to confront the victim was preserved. Elkins also argues that the court erred in finding that the victim’s statements to the expert were admissible under M.R.E. 803(25), the tender years exception to the hearsay rule. In assessing whether the tender years exception applies, the 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. The victim was thirteen years old at the time of her interview. When an alleged sex abuse victim is age twelve or older, the 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. The court here found that the victim’s statements at the interview bore substantial indicia of reliability. Any error in the court's failure to specifically find the victim's mental and emotional age was harmless and did not prejudice Elkins. The court viewed the videotape of the interview and had the opportunity to assess the victim's maturity through her demeanor and language. In addition, copious evidence supported the court's finding that the victim's statements bore indicia of reliability. Issue 2: Impeachment Elkins argues that the court erroneously denied Elkins' right to confront the witnesses against him by excluding impeachment evidence regarding the victim's motive to lie. Elkins argues that he was not permitted to ask the victim’s mother whether she had coached the victim to lie about the abuse. A review of the trial transcript reveals that, in fact, Elkins asked this question. Elkins also argues that the court improperly excluded the testimony of the ex-boyfriend of the victim’s mother that the victim’s mother, in order to exact revenge against Elkins, had coached the victim to fabricate the abuse. M.R.E. 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. But, before a party may introduce an unsworn, prior inconsistent statement of his own witness, the party must show surprise or unexpected hostility and that such statement can never be used as substantive evidence. The testimony in this case was inadmissible, because Elkins did not show that the witness’s assertion that he had lied was a surprise or evinced unexpected hostility and because Elkins intended to introduce the prior statements for their substantive value. |
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