E-Filed Document Apr 25 2016 18:56:08 2013-KA-00614-COA Pages: 11 IN THE MISSISSIPPI COURT OF APPEALS NO. 2013-KA- 00614-COA CHARLIE RICARDO GRANT APPELLANT v. STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING Appellant Charlie Ricardo Grant files this Motion for Rehearing from this Court s decision of March 15, 2016, affirming Grant s conviction on two counts of sexual abuse and sentence of life 30 years with 15 suspended and 5 years of supervised probation. Grant v. State, So.3d, 2016 Miss. App. LEXIS 139 (Miss.App. March 15, 2016). In support thereof, he states as follows: 1. The Court erred in holding that N.M. s statements to the nurse practitioner identifying Grant as her alleged abuser were necessary to medical treatment. Prior to trial the defense moved to have the court rule that N.M s statements to nurse practitioner Stacey Carter be disallowed as hearsay. The trial court overruled the motion and Grrant raised the issue on appeal. This Court found no error. In denying Grant's motion in limine, the circuit court relied on Valmain v. State, 5 So. 3d 1079 (Miss. 2009). In that case, the Mississippi Supreme Court held that "the identity of [a] child's sexual abuser was pertinent to treatment, [and] therefore reasonably relied upon by the treating physician, although the perpetrator was not a member of the child's household." Id. at 1084 (P19). "[T]he paramount concern in treatment of sexual abuse is to ensure that a child is not returned to the environment that fostered, allowed, or 1
permitted the abuse." Id. at (P20). The Supreme Court noted that Paul Clark Valmain did not live in the child victim's home, but he frequently visited the family. Id. at 1084-85 (P21). "Because [Valmain] would have access to the child in the future that would allow the sexual abuse to continue," the Supreme Court found that a nurse was not prohibited from testifying regarding the victim's mother's hearsay statements. Id. at 1085 (P21). Grant, So.3d at 12. In the instant case, N.K s statements as to how she was abused would have been made for medical purposes. However, her identification of her alleged abuser as Charlie Grant were testimonial in nature and, thus, not admissible pursuant to M.R.E. 803(4). See, e.g., United States v. Bordeaux, 400 F.3d 548, 556 (8 th Cir. 2005) (child sex abuse victim's statements to forensic interviewer designated by law enforcement officers were testimonial, even if doctor observed interview and one purpose was medical treatment); In re T.T., 815 N.E.2d 789, 803 804 (Conn. 2004) (child sex abuse victim s accusatory statements to examining physician who was member of hospital child abuse protection unit and had testified as expert witness in child abuse cases were testimonial); State v. Snowden, 867 A.2d 314, 322 330 (Md. 2005) (older child abuse victim's statements during formal interview by county sexual abuse investigator in conjunction with police investigation were testimonial); State v. Blue., 717 N.W.2d 558, 561 565 (N.D. 2006) (child sex abuse victim's statements to forensic interviewer, with police involvement, were for purpose of collecting evidence, and were thus testimonial); State v. Mack, 337 Ore. 586, 593-594 (2004) (statements by three-year-old witness to department of health services social worker who was interviewing witness under direction of police in murder investigation were testimonial). 2
Mississippi Rule of Evidence 803(4) provides a hearsay exception for statements made for the purposes of medical treatment. Before admitting testimony pursuant to Rule 803(4), the statement must pass a two-part test: (1) the declarant's motive in making the statement must be consistent with the purposes of promoting treatment and (2) the content of the statement must be such as is reasonably relied on by a physician in treatment. Davis v. State, 878 So. 2d 1020, 1024 (Miss. App. 2004). While Mississippi has held that the [s]tatements made by a child sexual abuse victim concerning the acts of sexual abuse, along with the identity of the perpetrator, are reasonably pertinent to treatment and are reasonably relied upon by physicians in diagnosis and treatment, Davis, 878 So.2d at 1024-25, cases such as Davis fail to recognize the fact that the identity of the alleged perpetrator is not necessary for medical treatment. Nor does Davis address the harm to the defendant when the older alleged victim s allegations are allowed to be bolstered by having them repeated to the jury by medical professionals under the guise of statements necessary for medical treatment. The effect of admitting N.M. s out-of-court statements to Carter was to bolster N.M. s allegations in a case that was a classic he-said/she said where the only real issue was credibility. Because N.M. testified, the admission of her statements to Carter did not implicate the Confrontation Clause. Nevertheless, the introduction of this hearsay was prejudicial to Grant because the jury was allowed to hear N.M. s allegations repeated to a nurse-practitioner serving in both a medical capacity as well as a forensic capacity. Again, in a classic he said/she said situation, the fact that her allegations were repeated to the jury via a medical professional was anything but 3
harmless. See, e.g., State v. Murphy, 2009 Tenn. Crim. App. LEXIS 435, 23 (Tenn. Crim. App. 2009) (reversing conviction; We agree with the defendant that the inclusion of testimony in the assault trial by the police detective and the student intern served to impermissibly bolster the testimony of the victim in what would have otherwise presented the jury with, essentially, a he said/ she said credibility determination). Given that this case was all about credibility, it was reversible error to allow N.M. s allegations to be repeated to the jury via a medical professional. 2. The Court erred in finding that the prosecution s cross-examining Grant as to irrelevant but prejudicial matters was not reversible error. During the cross-examination of Grant, the prosecution queried Grant as to several irrelevant matters that were designed merely to inflame the jury. The state asked him about past girlfriends, his other children born to women to whom Grant was not married, and even his alleged propensity for dating white woman. Q. (By Mr. Arthur) You talked to about a past girlfriend named Lucrecia or Crecia? A. My baby mother. Q. Okay. You talked about a Shonda? A. Yes, sir. Q. You talked about a girl that you dated in 2010 in Pelahatchie that had a 17-year-old daughter? A. Where are you going with this? Q. Answer the question. Did you talk about did you tell detectives that you had a girlfriend in 2010 that had a 17- year-old daughter? Yes or no. A. Yes, sir, I do believe. 4
Q. You told investigators that your previous girlfriend was 5 8, 5 9 and Caucasian, correct? Q. You told the investigator that the girlfriend prior to that was a Caucasian girl? MR. RANIER: Again, your Honor, I m going to object. That that s that s just not relevant. THE COURT: Mr. Ranier, I ve overruled your objection. MR. RANIER: May I have a continuing objection? THE COURT: You may. Q. (By Mr. Arthur) You told police about the mother of one of your children and based on the information you gave you didn t give a name but it s either Jennifer Wright or Wanda Osborne, correct? A. I don t have an Osborne. Q. Okay, What about a Jennifer Wright? Q. Okay, that s the mother of your child even though you didn t name her, correct? Q. And you name the mother of your child that lives in Georgia? A. Lucrecia Jones. Q. Okay, you mentioned Linda Patrick? 5
Q. And you mentioned 10 different women over the course of 58 minutes and the name British Manning never came up? Q. She came up zero times? Q. All right. You were asked and, in fact, you named Christen Caughlin; never came up, did it? On T. 597-599; RE. 13-15. The Court of Appeals held that this questioning was not error. There was no testimony that Grant was uninvolved in his children's lives, so it is unclear how the fact that he had two children could be considered prejudicial. It is possible that some degree of prejudice could have existed in the jurors' minds regarding [11] interracial dating or having children out of wedlock. But it was in the circuit court's discretion to find that whatever prejudice resulted was outweighed by Grant's omission of Manning's name while listing his girlfriends during the September 2011 interview. Manning's alibi testimony contradicted N.M.'s testimony. N.M. testified that she had never heard of Manning. Grant's omission of Manning's name tended to make it more probable that Manning's testimony was not credible. There is no merit to this issue. Grant, So.3d at 18. It is impossible, however, to understand how information regarding Grant s other children, out-of-wedlock or not, or his interracial dating could possibly be relevant on the issue of whether Grant sexually abused N.M. The only purpose for which such testimony was elicited was to play on the prejudices of the jurors who may take a dim view on out-of-wedlock children or interracial dating. Indeed, if these had 6
been real issues in the case, an effective defense lawyer would have voir dired the prospective jurors on these very topics. The introduction of these irrelevant, inflammatory topics was anything but harmless. MackMasters v. State, 81 Miss. 374, 33 So. 2 (1902) (introducing evidence that defendant s wife had two illegitimate children was reversible error); Davis v. State, 87 Miss. 337, 39 So. 522, 522 (Miss. 1905) (same); Kelly v. State, 463 So. 2d 1070, 1075 (Miss. 1985) (trial court was correct to sustain objection to defendant s crossexamining state s witness on the fact that she had two illegitimate children). As early as 1881, [the Mississippi Supreme Court has] held that the veracity of a witness may not be impeached by showing her to be of unchaste character. Blair v. State, 445 So. 2d 1373, 1376 (Miss. 1984). In State v. Hall, 665 N.E.2d 728 (Ohio App. 1995), the defendant was being tried for felonious assault, robbery, and weapons possession. The prosecution questioned the defendant about his living arrangements, his illegitimate children and whether he received any welfare payments. The court held that the questions were irrelevant to the issue of whether the defendant had shot the victim and constituted an attempt to insinuate that the defendant s release meant that he would produce more illegitimate children for the taxpayers to support. In so doing, the prosecution ask[ed] the jurors to shed their objectivity and to assume the role of interested parties. Hall, 665 N.E.2d at 732 quoting Cleveland v. Egeland, 497 N.E.2d 1383, 1389 (Ohio 1986). The remarks were inflammatory and improper. Id. 7
3. The Court of Appeals erred in not reversing on either insufficiency of the evidence or weight of the evidence. This case rested solely on N.M s allegations. N.M alleged three instances of sexual contact with Grant; apparently, the jury only half believed her inasmuch as they acquitted Grant of one of the three counts. In rejecting this claim, the Court wrote: We do not find that allowing the verdicts to stand would sanction an unconscionable injustice. As mentioned above, the jury is responsible for resolving conflicts in the evidence and the credibility of witnesses. Brown, 796 So. 2d at 227 (P12). Furthermore, "[f]actual disputes are properly resolved by a jury and do not mandate a new trial." Ealey v. State, 158 So. 3d 283, 293 (P31) (Miss. 2015). This issue has no merit. Grant, So.3d at 26. Here, by N.M. s own admission, she fantasized about Grant and wanted to have sex with him. T. 386. She even told her friend Rakeeta about her crush on Grant. After Grant s trial, she recanted her testimony and then recanted her recantation. Grant s conviction, then, rests on the testimony of a young girl who admitted to having a crush on Grant, testified against him at trial, signed a statement recanting her testimony, and then testified that the recantation was false. The evidence at trial is as consistent with a fourteen-year-old girl having invented a story for her best friend concerning a man on whom she had a crush as it is with Grant s guilt. As a general rule, recanted testimony is exceedingly unreliable, and is regarded with suspicion; and it is the right and duty of the court to deny a new trial where it is 8
not satisfied that such testimony is true. Bradley v. State, 214 So. 2d 815, 817 (Miss. 1968). Further, [e]xperience teaches all courts a healthy skepticism toward recanted testimony.... Yarborough v State, 514 So. 2d 1215, 1220 (Miss. 1987). The fact that a witness changes his testimony after the trial does not necessarily entitle the petitioner to a new trial. Russell v. State, 849 So. 2d 95, 107 (Miss. 2003). But where an important witness recants and the court cannot dismiss such a recantation out of hand, the defendant is entitled to a new trial so that a jury can assess the victim s credibility. United States v. Carmichael, 269 F. Supp. 2d 588, 595-600 (D.N.J. 2003); Walker v. Lockhart, 763 F.2d 942 (8th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). In this case, N.M. told her friend Rakeeta that she had had oral sex with Grant. She denied the same to her mother until Rakeeta told N.M. s mother that N.M. had told her that she had had oral sex with Grant. N.M. testified at trial about the sexual contact but the jury only believed two out of three of the alleged contacts. N.M. then signed an affidavit recanting her testimony. When testifying about the affidavit, she admitted to signing the affidavit but denied having lied at Grant s trial. Given that the entire case rested on N.M. s credibility, a new jury is entitled to hear that N.M. recanted her testimony and then recanted her recantation in deciding whether to believe her over Grant. And at a new trial, the prosecution should not be allowed to bolster N.M. s testimony via statements she gave to an employee of the Children s Justice Center. 9
CONCLUSION The entirety of the evidence against Grant consisted of allegations made by a fourteen-year-old who admitted to having had sexual fantasies about him. There was absolutely nothing to corroborate her allegations. Given the weakness of the case against Grant, it was error to admit hearsay evidence bolstering N.M s allegations through the testimony of a medical professional. It was also error for the prosecution to try and smear Grant by cross-examining him on such irrelevant matters as the fact that he had Caucasian girlfriends, children with two different women, and dated a woman who had a seventeen-year-old daughter. Finally, given that N.M. later recanted her testimony and then recanted her recantation, Grant is entitled, at the very least, to a new trial. Respectfully submitted, Charlie Ricardo Grant /s/ S. Malcolm Harrison S. Malcolm Harrison MSB No. 9965 S. Malcolm Harrison, MSB No. 9965 P.O. Box 483 Jackson, MS 39205-0483 (601) 948-5030 (601) 948-5044 malcolm.harrison@comcast.net 10
CERTIFICATE OF SERVICE I, S. Malcolm Harrison, attorney for Appellant, do hereby certify that I have filed the foregoing via the Court s electronic filing system which automatically sent notice to the following: Jim Hood Attorney General of the State of Mississippi P. O. Box 220 Jackson, Mississippi 39205 This, the 25 th day of April, 2016. /s/ S. Malcolm Harrison S. Malcolm Harrison 1