Smith v. State


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Docket Number: 2006-KA-01728-COA
Linked Case(s): 2006-KA-01728-SCT ; 2006-KA-01728-COA

Court of Appeals: Opinion Link
Opinion Date: 04-22-2008
Opinion Author: ISHEE, J.
Holding: Affirmed

Additional Case Information: Topic: Leslie Smith was convicted of three counts of sexual battery. He was sentenced to thirty years for each count, with ten years suspended on each count. He appeals.
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

Trial Court: Date of Trial Judgment: 12-16-2005
Appealed from: PONTOTOC COUNTY CIRCUIT COURT
Judge: Thomas J. Gardner
Disposition: CONVICTION OF THREE COUNTS OF SEXUAL BATTERY AND SENTENCE OF THIRTY YEARS FOR EACH COUNT, WITH TEN YEARS SUSPENDED ON EACH COUNT, TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: John Richard Young
Case Number: CR02-114

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: LESLIE W. SMITH




DAVID G. HILL, BRIAN H. NEELY



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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Topic: Leslie Smith was convicted of three counts of sexual battery. He was sentenced to thirty years for each count, with ten years suspended on each count. He appeals.

Summary of the Facts: Leslie Smith was convicted of three counts of sexual battery. He was sentenced to thirty years for each count, with ten years suspended on each count. He appeals.

Summary of Opinion Analysis: Issue 1: Defective indictment Smith argues that the indictment was fatally defective because it was insufficiently clear to give notice of which sexual battery offense he was being charged. Specifically, Smith argues that the indictment’s inclusion of the language “under the age of 16 years” and the victim’s date of birth tracks the language of two separate subsections of the sexual battery statute. The primary purpose of an indictment is to notify a defendant of the charges against him so as to allow him to prepare an adequate defense. All that is required is that the indictment provide a concise and clear statement of the elements of the crimes charged. Here, the indictment is not fatally flawed because it tracked the language of both subsections (c) and (d) of section 97-3-95(1). The indictment included the birth date of both Smith and the victim, as well as the time of the alleged offense. The fact that it mistakenly referred to the victim as being under the age of sixteen instead of fourteen is irrelevant. Simple math makes it easy to determine that at the time of the alleged offense, the victim was nine years old and Smith was twenty-five years old. Therefore, Smith should have reasonably anticipated being prosecuted under subsection (d). Issue 2: Ineffective assistance of counsel Smith argues that his attorney was deficient in that he failed to call an expert witness whom the court had given financial assistance to engage, and who had given a favorable opinion. He also argues that his attorney failed to interview or contact witnesses prior to trial, investigate the case, and use a peremptory strike on a juror who knew several of the witnesses. Smith fails to show how an investigation would have significantly aided his case during trial. An attorney's choice of whether or not to file certain motions, call certain witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. It is also clear from the record that Smith’s attorney was not ineffective by failing to call an expert witness to testify at trial. Smith was not required to call an expert of his own to refute the opinions of the State’s expert. Further, Smith’s attorney attempted to cast doubt himself on the opinions of the State’s experts during cross-examination. Smith's challenge of his counsel's decision not to strike a juror includes no specific showing that this juror was not fair and impartial. Based on the record, the juror appeared to take her job seriously, stated with certainty that she could be fair and impartial, and resolved any questions concerning her connection with the witnesses. Issue 3: Tender years exception Smith argues that the court committed error by admitting the hearsay testimony of the alleged victim under the tender years exception to the hearsay rule provided in M.R.E. 803(25). He argues that the victim’s statements could not be held to be substantially reliable under Rule 803(25) because she had an apparent motive to lie. As required by Rule 803(25), the trial judge conducted a hearing outside the jury’s presence. After considering the evidence presented by the State, as well as the factors required of him under Rule 803(25), the trial judge determined that the time, content, and circumstances of the victim’s statements provided substantial indicia of reliability. The record supports the trial judge’s ruling. Issue 4: Challenges for cause Smith argues that the trial court committed plain error in denying his challenges to three jurors during voir dire. Smith is procedurally barred from challenging two of the jurors on appeal because he failed to object to their presence on the jury at trial. The record lacks any showing that the trial judge abused his discretion by failing to dismiss the third juror for cause. Issue 5: Sufficiency of evidence Smith argues that the evidence was insufficient to sustain a conviction, because the overwhelming evidence consisted of the testimony of an incompetent minor, whose testimony was allegedly coached. Among the evidence presented at trial were the testimonies of at least six witnesses, which showed a consistency in the victim’s allegations. Further, expert testimony showed that the victim exhibited both the physical and psychological characteristics of a child who had been subjected to sexual abuse. The evidence in this case, viewed in the light most favorable to the State, establishes that a rational jury could have found that Smith committed sexual battery beyond a reasonable doubt. Issue 6: Mistrial Smith argues that the court should have granted a mistrial sua sponte because he was denied a fair sentencing due to a strained relationship between him and his attorney. The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case. The trial court did not abuse its discretion in this case. In fact several witnesses were called by Smith’s attorney during sentencing to testify as to Smith’s character. Issue 7: Jury instructions Because Smith failed to object to certain instructions at trial, he is procedurally barred from raising the issue for the first time on appeal.


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