Penny v. State
| Docket Number: | 2005-KA-01543-COA Linked Case(s): 2005-KA-01543-COA ; 2005-CT-01543-SCT ; 2005-CT-01543-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-12-2006 Opinion Author: Griffis, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Child fondling - Videotaped interview - Tender years - M.R.E. 803(25) - Under oath - M.R.E. 603 - Competency to testify - Expert testimony Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Southwick, Chandler, Barnes, Ishee and Roberts, JJ. Concurs in Result Only: Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 07-25-2005 Appealed from: Tate County Circuit Court Judge: Andrew C. Baker Disposition: CONVICTION OF FONDLING AND SENTENCE TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE LAST NINE YEARS SUSPENDED PENDING THE DEFENDANT’S FUTURE GOOD BEHAVIOR. District Attorney: JOHN W. CHAMPION Case Number: 2004-181-B-T |
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| Party Name: | Attorney Name: | |||
| Appellant: | Muriel Penny |
DAVID L. WALKER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Child fondling - Videotaped interview - Tender years - M.R.E. 803(25) - Under oath - M.R.E. 603 - Competency to testify - Expert testimony |
| Summary of the Facts: | Muriel Penny was convicted of child fondling. He was sentenced to serve fifteen years, with nine years suspended. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Videotaped interview Penny argues that the trial court denied him his right to confrontation when it allowed the victim’s videotaped statement into evidence. There is no error. The victim testified, and Penny’s counsel was allowed both cross-examination and recross-examination. To the extent that the video statement duplicated the victim’s in court testimony, there was clearly no denial of the right to confrontation. To the extent that the video statement added new information, there was still no denial of the right to confrontation, because Penny had the opportunity for re-cross-examination after the statement was entered. Issue 2: Tender years Penny argues that statements made from the victim to a counselor from Mississippi Department of Human Resources were hearsay, because it was a preplanned interview taken months after the alleged crime. The indicia of reliability for admissions of statements under M.R.E. 803(25) must be shown from the totality of the circumstances that surround the making of the statement. Here, the trial court did not abuse its discretion. The taped statement is of an interview between the victim and her counselor. The statements were responses to the counselor’s open-ended questions. There is no evidence that the counselor or anyone else suggested what the victim’s responses should be. Issue 3: Under oath Penny argues that the video statement violates the requirement that testimony be given under oath. M.R.E. 603 requires that testimony be given under oath. The video statement was duplicative of the victim’s in-court testimony, which was given under oath. Additionally, the victim swore under oath, in court, that she had viewed the video and that she told the truth in the video. Thus there is merit to Penny’s contention that the testimony was not under oath. Issue 4: Competency to testify Penny argues that the trial court erred in declaring the victim competent to testify. A child is competent to testify if the court ascertains that the child possesses the ability to perceive and remember events, to understand and answer questions intelligently and to comprehend and accept the importance of truthfulness. Given the evidence in the record, the trial court did not abuse its discretion in finding the victim had the ability to perceive and remember events. She also exhibited the ability to comprehend and accept the importance of truthfulness during the interview. Issue 5: Expert testimony Penny argues that a nurse was not competent to testify as an expert witness. Because her testimony did not adversely affect a substantial right, the Court need not decide whether she was qualified. |
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