Palmer v. State
Docket Number: | 2005-KA-01503-COA Linked Case(s): 2005-KA-01503-COA ; 2005-CT-01503-SCT ; 2005-KA-01503-COA ; 2005-KA-01503-COA ; 2005-KA-01503-COA |
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Court of Appeals: |
Opinion Link Opinion Date: 10-30-2007 Opinion Author: ISHEE, J. Holding: Affirmed |
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Additional Case Information: |
Topic: Attempted sexual battery & Fondling - Continuance - Tender years exception - M.R.E. 803(25) - Jury instructions Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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Trial Court: |
Date of Trial Judgment: 05-23-2005 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: W. Ashley Hines Disposition: 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. District Attorney: Joyce Ivy Chiles Case Number: 2004-300 |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | MICHAEL F. PALMER |
STEPHEN NICK |
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Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND |
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. |
Topic: | Attempted sexual battery & Fondling - Continuance - Tender years exception - M.R.E. 803(25) - Jury instructions |
Summary of the Facts: | Michael Palmer was convicted of attempted sexual battery and fondling. He appeals. |
Summary of Opinion Analysis: | Issue 1: Continuance Prior to trial, Palmer filed a motion for continuance requesting more time in order for Palmer to secure the services of an independent psychologist to interview the victims. He now argues that the court erred in denying his continuance motion. The 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. Palmer failed to address the issue in a post-conviction motion for a new trial. Issue 2: Hearsay Palmer argues that the court erred in its application of M.R.E. 803(25), the tender years exception, to the youngest victim. Rule 803(25) requires a finding that the child is of tender years; a finding, in a hearing conducted outside the presence of the jury, that the child’s statements provide substantial indicia of reliability; and that the child either testify at trial, or if the child is shown to be unavailable, that there is corroborative evidence of the act. In this case, the trial court properly conducted an 803(25) hearing outside the presence of the jury. 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 victim who was of tender years was present for and testified during the trial. Thus, the trial court’s application of Rule 803(25) was proper. Issue 3: Jury instructions Palmer 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. 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. |
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