Bishop v. State
| Docket Number: | 2006-KA-01957-SCT Linked Case(s): 2006-KA-01957-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-13-2008 Opinion Author: Graves, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Right of confrontation - Child’s out-of-court statements - M.R.E. 803(25) - M.R.E. 804(a)(6) - Expert testimony - M.R.E. 702 Judge(s) Concurring: Smith, C.J., Waller and Diaz, P.JJ., Easley, Carlson, Dickinson, Randolph and Lamar, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-11-2006 Appealed from: Attala County Circuit Court Judge: Clarence E. Morgan, III Disposition: Conviction of sexual battery and sentence to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections. Count II: Conviction of touching a child for lustful purposes and sentence to serve a term of fifteen (15) years in the custody of the Mississippi Department of Corrections, with conditions. The sentence imposed in Count II is to run consecutively to the sentence imposed in Count I. District Attorney: Doug Evans Case Number: 2006-046-CR |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Aaron Bishop |
Ray T. Price |
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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. |
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| Topic: | Sexual battery - Right of confrontation - Child’s out-of-court statements - M.R.E. 803(25) - M.R.E. 804(a)(6) - Expert testimony - M.R.E. 702 |
| Summary of the Facts: | Aaron Bishop was convicted of sexual battery and touching of a child for lustful purposes. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right of confrontation Bishop argues that his right of confrontation was violated when the court admitted the out-of-court statements of the child through the testimony of her mother and a therapist. The inquiry turns on whether the statements offered against Bishop were testimonial statements within the context of the confrontation clause. A statement is testimonial when it is given to the police or individuals working in connection with the police for the purpose of prosecuting the accused. Here, the trial court held a lengthy, pre-trial hearing on the admissibility of these statements. The trial court determined that the child’s spontaneous statement to her mother was non-testimonial. Her mother is not a police officer, and was not working in conjunction with law enforcement for the purposes of prosecuting Bishop when her daughter disclosed to her that Bishop had been sexually abusing her. Moreover, the record reflects that statements made by the child to her mother were completely spontaneous. In addition, the trial court determined that the therapist’s interactions with the child were strictly for the purposes of treatment and not for any prosecutorial purpose. The evidence shows that the child was brought to the therapist by her family members solely for treatment purposes. Thus, the trial court was correct in its determination that the statements were nontestimonial in nature. Since the statements were non-testimonial, they do not trigger the protections of the confrontation clause. Issue 2: Out-of-court statements Bishop argues that the court erred in admitting the child’s out-of-court statements under M.R.E. 803(25). The trial court made extensive written findings addressing each of the list of factors provided in the comment to Rule 803(25) in making its determination. Bishop argues that the child had an apparent motive to lie, because she and her mother had moved out of the home in which they had resided with Bishop. However, the two moved out only after the child disclosed the sexual abuse to her mother. The child made statements concerning the sexual abuse by her father to three people and all of her statements were consistent. The child’s initial statement to her mother was completely spontaneous. Based on the consistency of the child’s statements, the possibility that her recollection of events is faulty is remote, and there is no factual basis in the record to support an argument that the statements were not made. Furthermore, the persons to whom the child made statements were credible. Bishop argues that the child’s statements were the result of leading and suggestive questioning techniques, as well as the product of repeated interviewing of the child. The child’s statements indicate that she possessed extensive sexual knowledge well beyond her age, four years old. Thus, the trial court followed the proper procedure in its determination, and did not abuse its discretion in finding that the child’s statements bore indicia of reliability and in admitting her statements pursuant to the tender years exception. M.R.E. 804(a)(6) states that a child is unavailable as a witness if there is a substantial likelihood that the emotional or psychological health of the witness would be substantially impaired if the child had to testify in the physical presence of the accused. The trial court found the child to be unavailable to testify. Because the evidence presented regarding the likelihood of trauma if the child were to testify in open court was completely uncontradicted, the court did not abuse its discretion. In addition, the trial judge did not err in his determination that the mother’s statement regarding Bishop’s response when confronted is sufficient to corroborate the act under Rule 803(25). Issue 3: Expert testimony Bishop argues that the court erred in admitting the therapist’s expert testimony. Under M.R.E. 702, the court must determine that the expert testimony is relevant – that is, the requirement that the testimony must assist the trier of fact means the evidence must be relevant. The trial court must then determine whether the proffered testimony is reliable. While it is true that an expert may not offer an opinion as to the veracity of the alleged victim, that is, whether the alleged child sexual abuse victim has been truthful, it is within the scope of permissible testimony for an expert to testify regarding his or her opinion that the alleged victim’s characteristics are consistent with a child who has been sexually abused. The trial court found that the therapist’s testimony was reliable, based on her experience as a child therapist since 1980, her treatment of hundreds of children who had been sexually abused, and her qualification as an expert on prior occasions. Thus, the trial court did not abuse its discretion in admitting this testimony. |
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