Madden v. State


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Docket Number: 2010-KA-01148-COA
Linked Case(s): 2010-KA-01148-COA ; 2010-CT-01148-SCT ; 2010-CT-01148-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-15-2011
Opinion Author: Myers, J.
Holding: Reversed and remanded

Additional Case Information: Topic: Sexual battery & Felony child neglect - Tender years exception - M.R.E. 803(25) - Substantial indicia of reliability - Admission of guilt of other party - Hearsay - M.R.E. 801(c) - Right of confrontation - Expert testimony - M.R.E. 702 - Circumstantial evidence instruction - Sufficiency of indictment - Sufficiency of evidence
Judge(s) Concurring: Lee, C.J., Barnes, Ishee, Roberts and Russell, JJ.
Dissenting Author : Carlton and Maxwell, JJ.
Concur in Part, Concur in Result 1: Irving and Griffis, P.JJ., concur in part and in the result without separate written opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 06-16-2010
Appealed from: Forrest County Circuit Court
Judge: Robert Helfrich
Disposition: CONVICTED OF COUNT I, SEXUAL BATTERY, AND SENTENCED TO TWENTY YEARS, WITH EIGHT YEARS TO SERVE, TWELVE YEARS SUSPENDED, AND FIVE YEARS OF POST-RELEASE SUPERVISION; COUNT II, CHILD NEGLECT, AND SENTENCED TO EIGHT YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $5,000 FINE, $100 ASSESSMENT TO THE MISSISSIPPI CRIME VICTIM COMPENSATION PROGRAM, AND $250 TO THE FORREST COUNTY PUBLIC DEFENDER FUND
Case Number: 08-509-CR

  Party Name: Attorney Name:  
Appellant: Amy Madden




LESLIE S. LEE, JUSTIN TAYLOR COOK



 

Appellee: State of Mississippi OFFICE OF ATTORNEY GENERAL: W. GLENN WATTS  

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Topic: Sexual battery & Felony child neglect - Tender years exception - M.R.E. 803(25) - Substantial indicia of reliability - Admission of guilt of other party - Hearsay - M.R.E. 801(c) - Right of confrontation - Expert testimony - M.R.E. 702 - Circumstantial evidence instruction - Sufficiency of indictment - Sufficiency of evidence

Summary of the Facts: Amy Madden was convicted of sexual battery and felony child neglect. On Count I, the trial court sentenced Madden to twenty years, with eight years to serve, twelve years suspended, and five years of post-release supervision. On Count II, the trial court sentenced Madden to eight years. Madden appeals.

Summary of Opinion Analysis: Issue 1: Tender years exception Madden argues that the trial court failed to comply with M.R.E. 803(25), the tender-years exception, because the trial court failed to conduct an on-the-record analysis of the Wright factors set forth in the comment to the rule. There is no requirement that each factor be listed and discussed separately by the trial judge. Rather, the unifying principle underlying these factors is that they relate to whether the child declarant was particularly likely to be telling the truth when the statement was made. Before admitting hearsay testimony, the trial court must rule on the factors detailed in Rule 803(25)(a) and (b). Corroborating evidence may not be used as an indicia of reliability. Here, the trial court complied with subpart (b) of Rule 803(25). The trial court heard evidence pertaining to the State’s motion to declare the victim unavailable to testify at trial. Although Madden objected to the State’s motion, she offered no countervailing evidence in response. The trial court failed, however, to comply with subpart (a) of Rule 803(25), which requires the court to find affirmatively “that the time, content, and circumstances of the statement provided substantial indicia of reliability.” The error is not harmless, because the record shows that the victim’s father’s guilty plea was used as evidence at trial in order to help establish Madden’s guilt on the felony child-abuse charge. The general rule in Mississippi is that where two or more persons are jointly indicted for the same offense, but tried separately, a judgment of conviction or a plea of guilty against one of them is not competent evidence in the trial of the other because such guilty plea or conviction is not evidence of the guilt of the party being tried. Significantly, the victim’s father did not testify in this case. His guilty plea, as evinced by the prosecution’s closing arguments, was used as evidence in the case to show that he had committed sexual battery upon the victim and to indicate Madden’s culpability in the act. The evidence constituted impermissible hearsay under M.R.E. 801(c) because it was offered to prove the truth of the matters asserted. Accordingly, Madden is entitled to a new trial where noncompliance with subpart (a) of Rule 803(25) and improper use of the guilty plea are unlikely to recur. Issue 2: Right of confrontation Madden argues that the admission of the victim’s statements to a counselor violated her Sixth Amendment right to confront a witness against her. Under the Sixth Amendment, a defendant in any criminal prosecution has the right to confront witnesses against him or her. Only testimonial statements cause the declarant to be a witness within the meaning 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, there is no indication in the record that law enforcement was ever intimately involved in the victim’s therapy sessions. Nor does the record support Madden’s contention that DHS’s motivation for referring the victim to the Shafer Center was to look for evidence to use in a future prosecution. Rather, it fairly illustrates that DHS’s primary reason for contacting the center was due to the harmful behavior the victim reportedly had been exhibiting toward herself and to others. Accordingly, the victim’s statements were nontestimonial and did not implicate Madden’s Sixth Amendment right of confrontation. Issue 3: Expert testimony Madden argues that the counselor was offered and accepted as an expert in marriage and family therapy, not forensic examination of children alleged to have been sexually abused, and that her testimony was not remotely determinable by her expertise and her opinion was irrelevant because it had no reliable relation to the determination of a material fact. M.R.E. 702 governs the admissibility of expert testimony. Here, the expert’s qualifications included a bachelor’s degree in child and family studies from the University of Southern Mississippi; a master’s degree in marriage and family therapy from the same university; and a Mississippi license in marriage and family therapy. In obtaining her master’s degree, she completed five-hundred hours of supervised “face-to-face” contact with couples and families; the majority of those hours were spent with young children. For her licensure requirements, she completed one-thousand hours of client contact, two-hundred hours of which were under the supervision of a licensed marriage and family therapist and a clinical social worker. Thereafter, she was permitted to sit for the board examination for marriage and family therapist. She has testified in both chancery court and juvenile court. The expert did not testify that sexual abuse had in fact occurred. Nor did she opine on the credibility of the victim’s statements. Thus, the trial court did not abuse its discretion in admitting her expert testimony. Issue 4: Circumstantial evidence instruction Madden argues the trial court erred by refusing a circumstantial-evidence instruction. A circumstantial-evidence instruction need only be given where there is no direct evidence of a crime. The victim was an eyewitness to the sexual abuse allegedly committed upon her person, and her statements to others about the abuse, thus, constituted direct evidence of the crimes. Issue 5: Sufficiency of indictment Madden argues that her indictment failed to notify her adequately of the nature and cause of the accusations against her. Specific dates are not required in sexual-abuse indictments so long as the defendant is fully and fairly advised of the charges against him. Madden did not object to the “broad date-range language” contained in her indictment. Therefore, her claim is waived. In addition, Madden’s indictment fully and fairly apprised her of the charges against her and did not prohibit her from preparing any defense to the charges. Madden’s indictment set forth an approximate time frame in which the charged offenses had allegedly occurred. This is suitable practice in these types of cases. Issue 6: Child neglect Madden argues that the State presented no evidence that the alleged abuse perpetrated by the victim’s father was continuous in nature. The victim related a number of instances to others that both Madden and her father, repeatedly, sexually abused her during the time that they lived in the home owned by Madden’s mother. Evidence was presented that Madden was the victim’s primary caregiver and that the victim was practically always in her sight. Viewing this evidence in the light most favorable to the State, a rational trier of fact could have found the essential elements of felony child abuse beyond a reasonable doubt.


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