Tate v. State
| Docket Number: | 2008-KA-01318-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-29-2009 Opinion Author: Carlson, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery & Child fondling - Comment on right not to testify - Closing argument - Admission of evidence - M.R.E. 613 - Consciousness of guilt - Mistrial - Sufficiency of evidence Judge(s) Concurring: Waller, C.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Non Participating Judge(s): Graves, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-21-2008 Appealed from: Amite County Circuit Court Judge: Forrest Johnson Disposition: Count I: Conviction of Sexual Battery and Sentence of Thirty (30) Years in the Custody of the Mississippi Department of Corrections. Count II: Conviction of Child Fondling and Sentence of Ten (10) Years in the Custody of the Mississippi Department of Corrections. Count III: Conviction of Child Fondling and Sentence of Ten (10) Years in the Custody of the Mississippi Department of Corrections. Sentences Shall Run Consecutively. District Attorney: Ronnie Lee Harper Case Number: 07-KR-073 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | ERIC TATE |
SANFORD E. KNOTT |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: 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. |
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| Topic: | Sexual battery & Child fondling - Comment on right not to testify - Closing argument - Admission of evidence - M.R.E. 613 - Consciousness of guilt - Mistrial - Sufficiency of evidence |
| Summary of the Facts: | Eric Tate was convicted of one count of sexual battery and two counts of child fondling. He was sentenced to thirty years imprisonment on the sexual battery conviction and ten years imprisonment on each of the child-fondling convictions, to run consecutively. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right not to testify Tate argues that the prosecutor was guilty in closing argument of impermissibly commenting on his failure to take the witness stand in his own defense in violation of his right to remain silent. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. There is a difference between a comment on the defendant’s failure to testify and a comment on the defendant’s failure to put on a successful defense. The state is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation. The question is whether the prosecutor’s statement can be construed as commenting upon the failure of the defendant to take the stand. Here, the district attorney was responding to comments made by defense counsel during closing arguments. Tate’s theory was that the victim could not be believed. During closing arguments, defense counsel referred to the victim as “a problem child” and stated that there were too many inconsistencies in her stories. It is apparent from the record that the district attorney’s statements were not impermissible comments calculated to improperly call the jurors’ attention to the fact that Tate had failed to testify in his own behalf. Instead, the comments were offered in an effort to counter Tate’s efforts at a defense. It is likewise apparent from the record that the prosecutor was properly responding to defense counsel’s closing arguments regarding the defense theory. Also, the trial judge sustained defense counsel’s objections to these comments and any conceivable resulting prejudice was cured by this remedial action. Issue 2: Admission of evidence Tate argues that the State improperly interjected into the proceedings that Tate had contemplated suicide, thus improperly showing consciousness of guilt. He first complains about testimony by a deputy that he had notified another police department to be on the lookout for Tate because of possible suicide. However, any possible prejudice which could have resulted from the witness’s unsolicited response to the district attorney’s question was cured by the trial judge’s prompt remedial action in sustaining defense counsel’s objection and admonishing the jury, sua sponte, to disregard the response by the witness. Tate also complains about the district attorney’s cross-examination of Tate's wife regarding a written statement from her in which she said that Tate told her that she should not bring their sons to his funeral. The trial court clearly did not err in allowing the district attorney to cross-examine Tate's wife as to the first part of the statement directly attributable to her. This was classic impeachment of a witness based on inconsistencies in the witness’s in-court testimony and out-of-court statements, especially out-of-court statements which she voluntarily put in written form and submitted to the deputy. Under M.R.E. 613, she was provided limitless opportunities either to admit or deny her various in-court and out-court statements. Both the State and Tate concede that the Court has never addressed the issue of whether a defendant’s attempted suicide or threat of suicide is admissible in an effort to show consciousness of guilt. Nothing in the record indicates that Tate ever attempted suicide, so the Court's initial inquiry must be whether Tate’s statement that his wife must not bring their sons to his funeral was a “threat of suicide.” Of significant import is the method in which the State used this evidence in closing argument concerning the wife’s testimony about her memorializing in the written statement what Tate had told her. It is obvious that the State was not attempting to single out any perceived threat of suicide by Tate as being evidence of consciousness of guilt. The totality of the evidence shows that there was no effort to prove via alleged suicide threats that Tate possessed a “consciousness of guilt.” Additionally, no jury instruction was submitted to, or considered by, the trial judge informing the jury that it could consider whether Tate’s purported “suicide threats” showed consciousness of guilt. Additionally, the trial judge properly conducted the required M.R.E. 403 analysis with regard to the statement prior to ruling on this evidence. Issue 3: Mistrial Tate argues that the court erred in failing to grant a mistrial based on a juror’s response that she knew about another case involving Tate and another member of the jury panel smiling when the juror made that response. The trial court is in the best position to determine if an alleged improper comment had a prejudicial effect; therefore, absent an abuse of that discretion, the trial court’s ruling will stand. It is clear from the record that the trial judge zealously protected Tate’s rights to a fair trial, to the point of admonishing the jury that it was “to completely and totally disregard any comment that may have been made on voir dire about any other case against this defendant because there is no other case,” when in fact, the record reveals that there was another case pending against the defendant. Consistent with his curative action concerning the comments made by the juror, the trial judge likewise offered to consider striking “the smiling juror” if her identity could be ascertained. Issue 4: Sufficiency of evidence Tate challenges the sufficiency of the evidence. The victim testified about Tate, her stepfather, fondling her breasts and touching her in her vaginal area, as well as inserting a vibrator into her vagina and attempting vaginal penetration with his penis. During this period of time, the victim was between nine and ten years of age. A physician specializing in obstetrics and gynecology, testified that her examination of the victim revealed tears in her hymen which were consistent with evidence of trauma. Even this brief account of the evidence is more than legally sufficient to sustain the convictions for sexual battery and child-fondling. |
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