Hobgood v. State
| Docket Number: | 2004-KA-01917-SCT Linked Case(s): 2004-KA-01917-SCT ; 2004-KA-01917-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-23-2006 Opinion Author: Cobb, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Unavailability of witness - M.R.E. 804(a)(6) - M.R.E. 702 - Testimonial statements - Hearsay within hearsay - Victim’s credibility - Expert testimony - Exclusion of testimony - Improper sentence Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-28-2004 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Hobgood was convicted of sexual battery of a child under the age of 14, and was sentenced to life. District Attorney: Eleanor Faye Peterson Case Number: 02-0-064WSY |
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| Party Name: | Attorney Name: | |||
| Appellant: | Richard Hobgood a/k/a Ricky Buchanan Hobgood |
GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: DEIRDRE McCRORY |
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| Topic: | Sexual battery - Unavailability of witness - M.R.E. 804(a)(6) - M.R.E. 702 - Testimonial statements - Hearsay within hearsay - Victim’s credibility - Expert testimony - Exclusion of testimony - Improper sentence |
| Summary of the Facts: | Richard Hobgood was convicted of sexual battery of a child under the age of 14 and was sentenced to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Unavailability of witness The trial court found, pursuant to M.R.E. 804(a)(6), there was substantial likelihood the victim’s emotional or psychological health would be substantially impaired if he were required to testify in the physical presence of the accused, and therefore declared him to be unavailable. Hobgood argues the trial court erred in this determination, because its decision was based on an expert opinion that was not properly elicited pursuant to M.R.E. 702. However, Hobgood failed to object to the expert’s testimony in the hearing, and thus is procedurally barred from raising this issue on appeal. The State and the trial court complied with Rule 702, in eliciting the expert’s qualifications in open court. Hobgood was put on notice of her qualifications, credentials and the nature of her testimony. Hobgood had ample opportunity to challenge these qualifications but chose not to do so. Issue 2: Testimonial statements The trial court admitted the victim’s statements regarding Hobgood’s behavior under M.R.E. 803(25), the tender years exception. Hobgood argues the testimony from persons other than the victim violated his right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the U.S. and Mississippi Constitutions. 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. That is clearly not the circumstance in the present case. These individuals were not working in connection with the police. Further, their statements were not made for the purpose of aiding in the prosecution. The victim’s unsolicited statements were made to them for the sake of his well-being and not for the purpose of furthering the prosecution. Although statements testified to by police officers were testimonial and should have been excluded, the testimony was duplicative and therefore, the error is harmless. Issue 3: Hearsay within hearsay A police officer who had met with DHS personnel testified at trial to the details of the abuse as related to him by these personnel. Hobgood argues that the trial court erred by allowing this “double hearsay” to improperly bolster other witnesses’ testimony. To be deemed hearsay, the purpose of the testimony must be for the truth of the matter asserted. In this case the trial court did not abuse its discretion in finding the statements were not admitted for their substantive truth, but to show why the officer’s report indicated Hobgood as a suspect. Further, the officer’s testimony did not improperly bolster the testimony of other witnesses. Issue 4: Victim’s credibility Hobgood argues it was error to allow a witness to make a direct comment on a child sex abuse victim’s credibility. Under M.R.E. 702, experts called to testify about behavioral characteristics that may affect an alleged victim's credibility may not give an opinion of the credibility of a particular witness. In the present case, the expert never stated that the victim was telling the truth. Rather she explained the consistency of the accounts the victim made to individuals, at different times, not in the presence of the others, and found them to be credible. Issue 5: Expert testimony Hobgood argues that the court erred in admitting expert testimony from a witness in a field about which they are not qualified to testify and that no witness may be qualified as an expert in the field of child sexual abuse. Hobgood failed to object at trial and therefore is procedurally barred from raising this issue here. In addition, expert testimony about common characteristics is admissible unless its probative value is substantially outweighed by the potential for unfair prejudice or confusion of the jury. Here, the expert was within her area of expertise when she described the common characteristics of sexually abused children. The testimony was admitted as substantive evidence of Hobgood’s guilt and it was not unfairly prejudicial or confusing to the jury. Issue 6: Exclusion of testimony After the close of the State’s case, Hobgood made a proffer to introduce evidence from his mother and two uncles that the conditions of the victim’s house were “dirty, stinky, smelly type and that with the inference to be drawn from that that [the victim] would not want to live there; therefore, would have made up stories to leave.” Hobgood argues that the court erred in denying him the opportunity to introduce this evidence because it was crucial to his theory that the victim fabricated his story in order to continue living with his grandmother. Hobgood presented the same evidence or variations on it, at least three times. Therefore, the additional testimony would have been cumulative, and the trial court was within its discretion when it denied Hobgood’s proffer. Also, the unkempt nature of the home has no relevance to whether the sexual assault occurred. Issue 7: Improper sentence Hobgood argues that the procedure used by the trial court in sentencing him violated his due process rights because it failed to take into consideration certain factors in determining a proper sentence. Because no objection was made at the time of sentencing, Hobgood is procedurally barred from raising this issue here. In addition, the sexual battery statute authorizes the maximum sentence to be life in prison, but does not require the jury to arrive at that verdict. |
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