Perry v. State
| Docket Number: | 2003-KA-00408-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-12-2004 Opinion Author: Myers, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sexual battery - Child witness - M.R.E. 803(25) - M.R.E. 103(a) - Leading questions - Ineffective assistance of counsel - Weight of evidence Judge(s) Concurring: King, C.J., Bridges and Lee, P.JJ., Irving, Chandler, Griffis and Barnes, JJ. Non Participating Judge(s): Ishee, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-20-2002 Appealed from: Lowndes County Circuit Court Judge: Lee J. Howard Disposition: CONVICTION OF SEXUAL BATTERY AND SENTENCED TO SERVE 30 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS Case Number: 2001-0698-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | State of Mississippi |
GARY STREET GOODWIN |
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| Appellee: | Timothy Edward Perry a/k/a "Timbo" | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
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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: | Sexual battery - Child witness - M.R.E. 803(25) - M.R.E. 103(a) - Leading questions - Ineffective assistance of counsel - Weight of evidence |
| Summary of the Facts: | Timothy Perry was convicted of sexual battery and sentenced to thirty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Child witness Perry argues that the court erred in failing to conduct a M.R.E. 803(25) hearing outside of the presence of the jury to determine the admissibility of statements the child victim made to witnesses for the State. Since the issue involved the admission of alleged hearsay statements or other testimony without an 803(25) hearing, M.R.E. 103(a) requires Perry to object or move to strike in the trial court in order to predicate an error on appeal. Because Perry made no such objection or motion to strike in the trial court, he may not raise that issue now. Issue 2: Leading questions Perry argues that the court erred in refusing to allow his counsel to ask the child’s mother leading questions. Because this issue was not properly raised in the trial court, it may not be raised now on appeal. In addition, the court noted that the witness was not adverse or hostile because the witness was called by Perry. Issue 3: Ineffective assistance of counsel Perry argues that his constitutional rights have been violated due to ineffective assistance of counsel. Given the evidence put on by the State, even if counsel’s performance had been deficient, there is no reasonable probability that the verdict would have been different. Issue 4: Weight of evidence Perry argues that the verdict was against the weight of the evidence. The evidence presented at trial included the sworn testimony of the victim, her mother, a sheriff’s officer with much experience in child sexual abuse matters, a nurse practitioner with much experience in pediatrics generally and child sexual abuse particularly, and a licensed professional counselor with experience in the area of child sexual abuse. This evidence was sufficient to warrant the verdict, and fair-minded jurors could have arrived at the same verdict. |
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