Fisackerly v. State
| Docket Number: | 2003-KA-00410-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-17-2004 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Statutory rape - Audiotapes - Prior bad acts - M.R.E. 404(b) - M.R.E. 403 Judge(s) Concurring: King, C.J., Bridges, P.J., Lee, Myers, Chandler and Griffis, JJ. Non Participating Judge(s): Barnes, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-31-2003 Appealed from: Webster County Circuit Court Judge: Clarence E. Morgan, III Disposition: CONVICTION OF STATUTORY RAPE. SENTENCED TO TWENTY YEARS IN THE CUSTODY OF THE MDOC, WITH FIVE YEARS SUSPENDED AND FIVE YEARS OF POSTRELEASE SUPERVISION District Attorney: Doug Evans Case Number: 2001-0073-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | Troy Leon Fisackerly |
WILLIAM MICHAEL MALLETTE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS |
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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 - Audiotapes - Prior bad acts - M.R.E. 404(b) - M.R.E. 403 |
| Summary of the Facts: | Troy Fisackerly was convicted of statutory rape and sentenced to twenty years, with five years suspended. He appeals. |
| Summary of Opinion Analysis: | Fisackerly argues that the court erred when it allowed the State to introduce certain audiotapes containing incriminating statements and allegations of prior bad acts committed by him. He argues that because the victim’s mother was instructed by the office of the district attorney as to the type of evidence that was needed to bring charges against him and the method for acquiring such information, she and her children became agents of the State. The manner by which the family obtained the audiotapes from which the transcripts were made does not preclude their admission into evidence. The evidence does not show, nor does Fisackerly argue, that he was in the custody of the police while his girlfriend recorded their conversations. Fisackerly alternatively argues that his giving of statements was not voluntary. However, Fisackerly voluntarily talked to the family by telephone and gave incriminating statements which they recorded. Their motive, though not communicated to Fisackerly, is immaterial. In making his M.R.E. 404(b) argument regarding prior sexual acts committed by Fisackerly against the victim, Fisackerly acknowledges that similar evidence has been admitted for the purpose of showing the lustful and lascivious disposition of the accused towards the victim. He argues that the evidence of his prior sexual intercourse with the victim only succeeded in demonstrating that he acted in conformity with his prior bad acts. However, he fails to cite any authority. Fisackerly also argues that the judge utilized the wrong legal standard under M.R.E. 403 in deciding that the probative value of the prior sexual acts evidence was not substantially outweighed by the danger of unfair prejudice. However, the judge did not abuse his discretion in finding that the probative value outweighs the prejudicial effect because it tends to show the lustful, lascivious disposition of the defendant toward the victim. |
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