Foley v. State
| Docket Number: | 2004-KA-00375-SCT Linked Case(s): 2004-KA-00375-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 09-15-2005 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Statutory rape, Sexual battery & Child exploitation - Statement by child victim - M.R.E. 803(4) - M.R.E. 803(25) - Suppression of evidence - Search warrant - Circumstantial evidence instructions - Prosecutorial misconduct - Photograph - Sufficiency of evidence - Evidence of other crimes - Restriction on cross-examination - Closing argument - Excessive sentence Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-06-2004 Appealed from: DeSoto County Circuit Court Judge: George B. Ready Disposition: Foley was indicted in the Circuit Court of DeSoto County for: (1) felonious sexual intercourse with a child under the age of 14 and 24 months younger than Foley (rape); (2) felonious sexual penetration with a child less than 18 (sexual battery); and (3) possession of materials depicting children under the age of 18 engaging in sexually explicit conduct (child exploitation). Foley was tried and found guilty of all counts in separate trials. District Attorney: JOHN W. CHAMPION Case Number: Cr 2003-89 R/D |
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| Consolidated: Consolidated with 2004-KA-00070-SCT Scott Anthony Foley v. State of Mississippi; DeSoto Circuit Court; LC Case #: 2003-89; Ruling Date: 12/17/2003; Ruling Judge: George Ready | ||
| Party Name: | Attorney Name: | |||
| Appellant: | Scott Anthony Foley |
BENJAMIN LOUIS TAYLOR, JACK R. JONES, III |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEAN SMITH VAUGHAN |
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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: | Statutory rape, Sexual battery & Child exploitation - Statement by child victim - M.R.E. 803(4) - M.R.E. 803(25) - Suppression of evidence - Search warrant - Circumstantial evidence instructions - Prosecutorial misconduct - Photograph - Sufficiency of evidence - Evidence of other crimes - Restriction on cross-examination - Closing argument - Excessive sentence |
| Summary of the Facts: | Scott Foley was convicted of felonious sexual intercourse with a child under the age of 14 and 24 months younger than Foley (rape); felonious sexual penetration with a child less than 18 (sexual battery); and possession of materials depicting children under the age of 18 engaging in sexually explicit conduct (child exploitation). On Counts I and II, the circuit court sentenced Foley to life imprisonment for the crime of capital rape and thirty years for the crime of sexual battery. On Count III, Foley was sentenced to twenty years for possession of child pornography. Foley appeals. |
| Summary of Opinion Analysis: | Issue 1: Statements by child victim Foley argues that the court erred by allowing statements of the victim to be brought before the jury through the testimony of medical professionals who examined or interviewed the child. The victim’s statements made in the course of therapy fall easily into M.R.E. 803(4) as a statement made for the purposes of medical treatment, and thus an exception to the hearsay rule of exclusion. In addition, the victim’s age, court-determined unavailability, and the nature of the allegations in the case put her statements squarely within the tender years exception to hearsay as provided by M.R.E. 803(25). Before a child’s testimony may admissible in evidence under the tender years exception, it must be shown that a child of tender years has described some sexual contact with or on the child by another; the court must find that a number of factors show that the statements contain substantial indicia of reliability; and either the child must testify at the proceedings or be unavailable. Here, the victim was five to six years old at the time of her allegations of sexual abuse. Her statements had the requisite substantial indicia of reliability and the circuit judge’s decision to apply the tender years exception to her testimony was not in error. Her comments, spontaneously made to a number of professionals trained to detect abuse and its effects, showed an overwhelming sense of adult knowledge of sexual topics of which children in their earliest years should have no knowledge. Additionally, the statements were made without the presence of adults who might have coached her and, based on expert testimony, were voluntarily given and not elicited by certain questions. There is no doubt that the overwhelming physical evidence of abuse to the victim’s person corroborated her statements alleging sexual abuse. Thus, her statements met all the criteria to find admission under the tender years exception and the medical statement exception to hearsay. Foley also argues that allowing such testimony violated his Sixth Amendment right to confront adverse witnesses. Foley must show that the victim’s statements were “testimonial” in order for them to violate the Confrontation Clause. Statements of a testimonial nature include prior testimony at a preliminary hearing, before a grand jury, or at a former trial and police interrogations. The victim’s statements do not fall into any of those categories. Issue 2: Suppression of evidence Foley argues that the court erred in not granting his pretrial motion to suppress evidence obtained by a search warrant, because the warrant was not supported by probable cause and the supporting affidavit and facts relied on hearsay. The task of the issuing magistrate is simply to make a practical, common-sense decision based on all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information. Looking at the totality of the circumstances, the victim specifically stated that Foley showed her pictures of nude people on his computer screen doing things she described as “gross.” She used language to describe acts performed on her and by her in relation to Foley in such sexually explicit terms that veracity could easily be inferred. Additionally, police were alerted to the fact that the victim’s body showed evidence of recent sexual assault, and that she had been in the presence of Foley within the last seventy-two hours. When considering all of the circumstances present at the time of the warrant’s issue, the judge did not err. Issue 3: Circumstantial evidence instructions Foley argues that the court erred in refusing two of his proposed instructions, both of which dealt with circumstantial evidence. Where there is direct evidence of a crime, the circumstantial evidence instruction need not be given. Here, the victim was an eyewitness to the pornography, and this instance of direct evidence alone allowed the jury to be given direct evidence instructions only. Issue 4: Prosecutorial misconduct Foley argues that statements by the prosecutor during cross-examination of a witness and during his closing statements warranted a mistrial. Foley argues that a comment by the prosecutor created negative inferences based upon Foley’s choice to exercise his right not to testify. Trial judges are best positioned to determine if an attorney’s closing arguments created unjust prejudice against a party. It is clear from the context of the sentences that the prosecutor was referring to the attorneys and not Foley. Foley’s constitutional rights were not violated, and there is no evidence that the prosecutor’s comments in closing had any sort of a prejudicial effect on the jury warranting reversal. Foley also asserts an identical assignment of error concerning statements made by the prosecution in its questioning of his father. Considering the facts surrounding the disputed comments, no serious and irreparable harm resulted. The circuit court correctly told the jury to disregard the line of questioning and denied Foley’s motion for mistrial. Doing so did not constitute an abuse of discretion. Foley also argues that a motion for mistrial should have been granted because of comments made by the prosecutor concerning the failure of the defense to call a witness. The general principle is that the failure of either party to examine a witness equally accessible to both is not a proper subject of comment before the jury by either of the parties. However, where there is substantial evidence supporting the defendant's guilt, a prosecutor's comment about a potential witness's absence is not reversible error in and of itself. There is no evidence that this single comment had a prejudicial effect warranting reversal, and considering the overwhelming evidence, including testimony by a number of witnesses and the actual presence of pornographic images on Foley’s computer, the inappropriate comments by the prosecutor concerning the absence of defense witnesses did not warrant a mistrial. Issue 5: Photograph Foley argues that the court’s admission of a photograph of the victim into evidence was in error. However, Foley did not contemporaneously object to the introduction of such evidence and cannot now complain about something which he did not object to in his trial. Issue 6: Sufficiency of evidence Foley argues that the evidence was insufficient. There was sufficient evidence to convict Foley of capital rape and sexual assault. The State offered the testimony of a number of medical and counseling professionals indicating that the victim’s statements were consistent with those of a sexual abuse victim. The victim named Foley as the perpetrator, and the State offered physical evidence in the form of medical diagnoses and test results as well as many of the objects the victim stated Foley utilized in his abuse of her. Issue 7: Evidence of other crimes Foley argues that the court erred in allowing evidence of other crimes of Foley to be presented to the jury. Foley’s contentions of a wrongful introduction of other crimes or bad acts fails because, once a defendant opens the door and invites questioning on a matter, then that defendant may not complain of such alleged errors invited or induced by himself. Foley invited this line of questioning when counsel for Foley first questioned Foley’s ex-wife about a restraining order against Foley which she had requested. Issue 8: Restriction on cross-examination Foley argues that the court erred in restricting his cross-examination of his ex-wife. The scope of cross-examination though ordinarily broad, is within the sound discretion of the trial court and the trial court possesses inherent power to limit cross-examination to relevant matters. Here, the circuit court judge did not abuse his discretion in finding that the questions being asked failed to meet basic relevance requirements. Issue 9: Closing argument Foley argues that the court erred by restricting his counsel’s closing arguments about the unavailability of a witness. 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 so as to result in a decision influenced by the prejudice so created. Foley fails to show why the witness was unavailable. Simply failing to have a witness under subpoena does not render them unavailable. The circuit judge obviously found evidence that Foley could have obtained the witness’s presence in court with some amount of reasonable effort but failed to do so. Since Foley has shown no prejudice or why the circuit court’s judgment was incorrect, there is no error. Issue 10: Excessive sentence Foley challenges the authority of the circuit court to impose a life sentence. The Legislature used words indicating judicial discretion would be the determination for crimes of statutory rape in section 97-3-65 (2)(c). |
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