E-Filed Document May :39: KA COA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.

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1 E-Filed Document May :39: KA COA Pages: 22 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA JOSEPH JUSTICE APPELLANT V. STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS Counsel for Appellant

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA JOSEPH JUSTICE APPELLANT V. STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Joseph Justice THIS 26th day of May Respectfully submitted, JOSEPH JUSTICE By: /s/ George T. Holmes George T. Holmes, His Attorney

3 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS TABLE OF CONTENTS TABLE OF AUTHORITIES ii iii iv STATEMENT OF ISSUES 1 STATEMENT OF THE CASE 1 FACTS 2 SUMMARY OF THE ARGUMENT 10 ARGUMENT 10 ISSUE # 1 10 ISSUE # 2 13 CONCLUSION 16 CERTIFICATE OF SERVICE 17 iii

4 TABLE OF AUTHORITIES CASES: Bosarge v. State, 786 So. 2d 426 (Miss. Ct. App. 2001) 11 Bowen v. State, 607 So. 2d 1159 (Miss. 1992) 11 Brown v. State, 965 So. 2d 1023 (Miss. 2007) 11 Collier v. State, 711 So. 2d 458 (Miss. 1998) 15 Eakes v. State, 665 So. 2d 852 (Miss. 1995) 11 Edwards v. State, 736 So. 2d 475 (Miss. 1999) 15, 16 Grimes v. State, 1 So. 3d 951(Miss. Ct. App. 2009) 12 Groseclose v. State, 440 So. 2d 297 (Miss. 1983) 15 Guilbeau v. State, 502 So. 2d 639 (Miss. 1987) 16 Hall v. State, 644 So. 2d 1223 (Miss. 1994) 16 Quimby v. State, 604 So. 2d 741 (Miss. 1992) 13 Veasley v. State, 735 So. 2d 432 (Miss. 1999) 12, 13 Withers v. State, 907 So. 2d 342 (Miss. 2005) 11 STATUTES none OTHER AUTHORITIES Miss. R. Evid Miss. R. Evid. 803(25) 10, 11, 12 iv

5 Other Authorities (cont.) (as of ) 6 (as of ) 6 v

6 STATEMENT OF THE ISSUES ISSUE NO. 1: ISSUE NO. 2: WAS THE TENDER YEARS HEARSAY EXCEPTION PROPERLY APPLIED? WHETHER THE GUILTY VERDICT IN COUNT THREE IS SUPPORTED BY THE WEIGHT OF EVIDENCE? STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of DeSoto County where Joseph Justice was indicted on three counts of gratification of lust. [R. 9; RE 16]. Justice was acquitted in count one, count two was remanded and he was convicted in count three in a jury trial conducted November 3-5, 2014, and presided by the Honorable Gerald W. Chatham, Sr., Circuit Judge. [R.84-85, 91-95; RE 18-24]. Justice was represented at trial by the Honorable John Watson of Southaven and the Honorable Darin Vance of Hernando. On the single conviction, Justice was sentenced to fifteen years with ten years suspended on supervised release leaving five years to serve. Justice is presently incarcerated with the Mississippi Department of Corrections. 1

7 FACTS Joseph Justice is a printer by trade. [T. 316]. He has nine children, five from a previous marriage and four with his wife at the time of trial, Elizabeth. [T ]. Elizabeth had another son born in 2003 with a different father. [T ]. Joseph treated this boy, referred to herein as Nick, as his own. [T. 264]. A character witness, co-worker and friend described Joseph as a law abiding church going family man with a very good reputation. [T ]. Elizabeth described Joseph as an ideal husband and said that she loves him with every bit of her soul. [T ]. Nick said Joseph was like a real dad and taught to him ride bicycles and other fun stuff. [T. 152]. Nick testified that on the night of October 14, 2012, when he was nine years old, he was asleep alone in his room and was awakened by Joseph messing with my wiener while looking at a cell phone. [T , ]. Nick said Joseph put the phone down and messed with his own wiener too underneath his boxer shorts. Id. According to Nick, Joseph pulled a chair up next to the bed and sat in it facing him. Id. 1 Nick alleged that while this was happening, Elizabeth walked up and turned the light on at which time Joseph kicked the chair back and tried to pull Nick s pajama pants and covers up and tried to hide the cell phone. [T , ]. Nick also testified 1 A description of the evidence offered by the state in support of Count One under which Justice was acquitted is not included in the statement of facts here which relate only to Count Three under which a conviction did result and which is the subject of this appeal. 2

8 that when his mom turned the light on Joseph was still sitting by the bed with his hands down Nick s pajama pants, then tried to kick the chair back and hide the phone. Id. Before Elizabeth turned the light on, Nick said he could see what was happening from light provided by Joseph s cell phone screen. Id. Elizabeth asked what was going on to which Joseph did not respond, so Nick said she went and called the cops. Id. Meredith Rawl, a forensic interviewer with the Family Crisis Services of Northwest Mississippi in Oxford, interviewed Nick on October 18, four days later. [T , 166, 174]. After Ms. Rawl asked Nick during the interview to tell her everything his mother saw that night, Nick told Ms. Rawl that during the alleged incident, Joseph was on his knees in a chair by his bed leaning over touching Nick s penis while Joseph was looking at his phone. [T. 169]. Nick reported that he heard the doorknob then Joseph tried to pull Nick s pants up while hiding the phone under the bed. Id. An audio/visual recording of Nick s interview was admitted as Ex. 3 and played for the jury. [T ]. Southaven Police Department detectives responded and took photos of Nick s bedroom. [T. 184, ; Exs 1, 4-7]. They also collected the top and bottom sheets from Nick s bed, his underwear and pajama bottoms. [T. 189; Ex. 2]. Joseph was taken into custody, Mirandized and interviewed. [T. 191; Exs. 8, 9]. He freely admitted that he went into Nick s room to masturbate and hide from his wife in the process. [T , , ; Ex. 9]. He said he had his cell phone to look at pornography, i.e., nude-women, while masturbating. Id. Joseph likewise admitted it was 3

9 a stupid thing to do. Id. This interrogation was recorded and played for the jury. [Ex. 9; T. 198]. Joseph described needing relief because he had just worked eighty hours without a break. Id. Joseph and Elizabeth were not having sex, and there were other problems. Id. Elizabeth had tried to commit suicide twice, was pregnant and having affair to boot. Id. Joseph unequivocally denied molesting Nick. Id. That night, Joseph said, Elizabeth was in bed asleep and Joseph went into Nick s room to masturbate and naturally did not want to be caught by his wife. Id. The chair in their living room squeaked, a dead give away, and he did not go into the bathroom because the door would not shut ever since Elizabeth busted the frame in an angry outburst when she caught Joseph masturbating once before. Id. Besides, Joseph said, the bathroom is the first place Elizabeth would look. Id. Joseph said he was on the opposite side of the room from Nick with the door open kneeling on the floor with his back to Nick when he heard Elizabeth coming. Id. Joseph said he was not next to Nick or the bed and did not move the chair. Id. According to Joseph, Nick remained asleep the whole time. Id. Nick s pajama pants were down to mid-thigh because Nick pulls them down when he gets hot, but Nick s underwear was up. Id. According to Joseph said he was just getting started when he heard Elizabeth coming. Id. He cleared the porn off of the phone, turned and crawled across the room, 4

10 threw the lotion under Nick s bed and shoved the cell phone underneath the chair. Id. Then Elizabeth came in, turned the light on, pulled Nick s blanket off and saw that Nick had pulled his pajama pants down and asked what was happening. Id. Elizabeth gave police a written statement and testified at trial. [T , 210, ]. In neither instance did she indicate seeing Joseph touching Nick improperly. Id. According to investigators, Elizabeth never accused Joseph of anything. [T. 210]. Nothing improper was found on Joseph s cell phone which he voluntarily surrendered. [T , ]. Elizabeth described the scene as follows: the light was off when she got to Nick s room and the door was closed. [T ]. She opened the door and turned the light on, she did not see Joseph s phone. Id. Joseph was on his knees beside Nick s bed pulling up Nick s underwear. Id. She did not see Joseph s cell phone nor any lotion. Id. She walked in and asked what was going on, Joseph did not say anything at that point. Id. They went outside and Joseph told her he was jerking off to porn and was trying to hide his cell phone and lotion when she walked in. Id. Elizabeth called the police. Id. She did not speak with Nick that night until after the scene had cleared and the ambulance and the police were gone - she asked Nick and he said nothing was going on. [T ]. On prior occasions Elizabeth had discovered Joseph masturbating in the house. Id. She acknowledged once that she became particularly angry and kicked the bathroom door 5

11 damaging the frame. Id. Elizabeth denied being involved in an affair with Ben Pemberton, Nick s biological father, before the incident. [T ]. But she freely admitted have sexual relations with Pemberton a month after the incident. [T , , 284]. Elizabeth tried twice to commit suicide. [T. 271]. First on April 27, 2012, when she was pregnant by taking 10 Tylenol, she said, but which her medical records showed were actually twenty-five Kionopin tablets. [T ]. There was also testimony that medical records indicated that the drug taken was twenty-five Xanax tablets. [T ]. 2 A forensic DNA expert, Kathryn Rodgers, testified she received and analyzed several items seized from Nick s room, namely, the top and bottom bed sheets, a pair of white boys underwear, a pair of black pajama pants, plus a buccal swab collection kit from Joseph. [T , 219]. Ms. Rodgers issued a report of her conclusions. [T. 220; Ex. 10]. She testified that on the top sheet she located five spots containing seminal fluid. [T. 221, 223]. Four of the five spots had sperm cells present and she tested the two spots with the most material. [T ]. One spot Ms. Rogers said was a mixture of at least two persons DNA from skin and sperm cells from which Joseph Justice could not be 2 Klonopin is a trade name for Clonazepam a benzodiazepine sedative muscle relaxant; Xanex is the trade name of Alprazolam also a benzodiazepine. (Both as of ). 6

12 statistically eliminated. Id. The other spot was seminal fluid with sperm present that had only one person s DNA which Ms. Rodgers said matched the sample from Joseph Justice. [T , , ]. Ms. Rodgers could not give any opinion on how, when or under what circumstances the spots she tested arrived on the top sheet. [T. 235, ]. She did surmise that the semen spots were stains formed from wet semen which had dried on the material. Id. Ms. Rodgers said a transfer of DNA from one person or item to another is definitely possible, but in the case of sperm and seminal fluid here it has to be a wet transfer. [T. 243]. The boy s underwear spots were negative for semen or sperm and the pajama bottoms had no stains at all. [T. 239]. On the bottom sheet there was a stain that was also positive for sperm. [T. 240]. It showed a clean single source male DNA profile which did not match Joseph Justice. [T. 240.]. Skin cells were also present in the bottom sheet stain from which Ms. Rodgers eliminated Joseph Justice. [T ]. Ms. Rodgers pointed out that whoever left the stain on the bottom sheet was a first order [male] relative of Joseph Justice that is, his son or his father. Id. Joseph had visitation with his children from the first marriage and the older boys would share Nick s room for sleeping; otherwise, Nick testified he slept alone in his room. [T ]. A defense DNA expert, Gina Pineda, also testified. Ms. Pineda did not disagree with any of Ms. Rodgers findings. [T , ]. Ms. Pineda elaborated on the 7

13 concept that the length of time a stain has been on an item cannot be determined. Id. DNA doesn t tell time, she said, it only speaks to the identity of whose DNA is found on that stain. Id. She explained that DNA found in dry stains on fabric cannot be dated where DNA found in a body cavity can, because the DNA only remains for a short period of time. Id. There is no scientific way to determine when the stains on Nick s bed sheets were deposited. Id. DNA does not reveal the circumstances either of how it came to rest where it is found. Id. Ms. Pineda said the sperm on the sheets could have resulted from a transfer from another item such as a towel. Id. She gave an example where a towel with sperm on it can come into contact with another item in a laundry hamper and the sperm from the towel can be transferred from the towel onto the item in the hamper. Id. She pointed out that in Justice s case there is no indication of how the sperm arrived on the bed sheet and said it could have resulted from a transfer rather than a direct deposit from the donor. Id. Ms. Pineda said there are published studies showing that DNA can also survive laundry washing and can be transferred to other items by the washing process itself. Id. So, according to Pineda, there are many scenarios... to explain how Mr. Justice s semen was placed on that bed sheet and there is no way to know how it actually occurred. Id. The state also offered the testimony of Dr. Wayne Lancaster a private practice psychologist in Olive Branch. [T ]. Dr. Lancaster testified that he counseled with 8

14 Nick for six months from January 2013 through July 2013 after he said Elizabeth brought Nick in with concerns about him having some depression and sadness and confusion in regard to a situation in which he had alleged that he had been sexually abused by his stepfather. [T ]. Dr. Lancaster said Nick was very sad and confused. Id. The jury was shown a recorded interview with Nick about mid-way through his stint with Dr. Lancaster. [T , 257; Ex. 11]. Dr. Lancaster never said that the alleged fondling was a cause or contributing factor in Nick s depression but did say that there could be other causes. [T. 257]. For instance, Dr. Lancaster was not aware that Elizabeth had attempted suicide twice and that she cut her wrists in front of Nick in one of those attempts, which Dr. Lancaster said could cause sadness. Id. Apparently Joseph and Elizabeth separated after the incident here and Elizabeth went to Joseph s apartment several times with Nick thereafter. [T. 275]. She said Nick would sit outside in her the van while she went inside. Id. She talked bout getting back together with Joseph. [T. 276]. The defense put on two witnesses, Melissa DeShouten and Bobby Soyland, to show that Joseph and Elizabeth maintained contact, including sexual intercourse, and that Elizabeth brought Nick with her but there was no contact between Joseph and Nick. [T , ]. These witnesses also confirmed that Elizabeth wanted to reconcile with Joseph and get the family back together. Id. 9

15 Soyland testified that Elizabeth told him she had been unfaithful to Joseph with Ben Pemberton before and after the October 2012 incident. [T ]. When Soyland asked Elizabeth about the incident and specifically why she would want to go back to Joseph, she only described Joseph masturbating in Nick s bedroom room with no mention of molestation. Id. SUMMARY OF THE ARGUMENT Justice was irreparably prejudiced by an improper application of the tender years exception to the hearsay rule and the weight of evidence was contrary to the verdict which resulted in a miscarriage of justice. ARGUMENT ISSUE NO. 1: WAS THE TENDER YEARS HEARSAY EXCEPTION PROPERLY APPLIED? A hearing was conducted upon the state giving notice of intent to use the tender years hearsay exception of Miss. R. Evid 803 (25). [T. 27, 29]. 3 But, the hearing was not 3 The tender-years exception of Miss. R. Evid. 803(25) and provides that: A statement made by a child of tender years describing any act of sexual contact performed with or on a child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act. 10

16 conducted under the requisite guidelines of Rule 803 (25) and there was no finding that substantial indicia of reliability existed to allow the admission of the hearsay consisting of repetition by state witnesses, Rawl and Lancaster, of what Nick allegedly told them. The learned trial judge here confused competency of the child witness Nick under Miss. R. Evid. 601 and the Rule 803(25) tender years exception to hearsay. After announcing that, [w]e re here on a competency hearing the trial judge heard testimony from Nick, Ms. Rawl and Dr. Lancaster outside the presence of the jury and, thereafter ruled, the court is satisfied that the child has met the test of competency. [T. 30, 52]. The trial judge also said he was guided by Rule 601, Bosarge v. State, 786 So. 2d 426 (Miss. Ct. App. 2001) and Bowen v. State, 607 So. 2d 1159 (Miss. 1992). [T. 52]. The trial court, therefore, never conducted a hearing with a determination of reliability under Miss. R. Evid. Rule 803(25). Id. It is suggested that this was an abuse of discretion under the standard of review for admission of evidence. Brown v. State, 965 So. 2d 1023, 1026 (Miss. 2007); Withers v. State, 907 So. 2d 342, 345 ( 7) (Miss. 2005). In Eakes v. State, 665 So. 2d 852, 865 (Miss. 1995), the court explained: The substantial indicia of reliability required by M.R.E. 803(25) are necessary to prevent confrontation clause problems. The reliability of the statement must be judged independently of any corroborating evidence; otherwise, the confrontation clause may be violated. While no mechanical test is available, factors which should be considered in judging reliability are: spontaneity and consistent repetition; mental state of declarant; use of terminology unexpected of a child of similar age; and lack of motive to fabricate. This list of factors is not exclusive. [Internal citations omitted.]. There is no contention here that Nick was not a child of tender years. But, the 11

17 inquiry, as explained by the court in Veasley v. State, 735 So. 2d 432, 437 ( 16) (Miss. 1999), does not end there, [i]f the [trial] court finds that the declarant is of tender years, then it must still rule on the Rule 803(25)(a) and (b) factors before admitting the testimony. In Veasley, the trial judge admitted hearsay under the tender years exception in a child rape case on the mere basis that the victim was thirteen years old without any reliability analysis. 735 So. 2d 435 ( 8). The Veasley court ordered a new trial due to this fatal error. Similarly in the present case, the trial judge admitted the hearsay evidence based on its finding that Nick was a competent witness without any reliability analysis. Therefore, it is suggested that the Court of Appeals here is required to apply Veasley and grant Justice a new trial. See also Grimes v. State, 1 So. 3d 951, (Miss. Ct. App. 2009). If the trial had conducted a Rule 803(25) hearing, several factors would have weighed heavily against tje reliability of Nick s accusations. Nick had a motive to fabricate to please or placate his psychologically unstable mother. Nick s accusations were not spontaneous, he even told his mother after the incident that nothing happened. Although Ms. Rawl s interview was not overly suggestive, she did not ask what Nick remembered, she clearly asks Nick to tell me everything your mother saw. Nick s character, according to Dr. Lancaster, was that he was depressed and confused due to an undetermined origin. 12

18 Hearsay is not admissible except as provided by law. The prohibition is loud and clear. Hearsay is incompetent evidence. Quimby v. State, 604 So. 2d 741, (Miss. 1992). Naturally the Court here will consider whether the error is harmless. Again, Veasley, supra controls. In Veasley, the court found that the erroneous admission of the hearsay was not harmless because, as in the present case, there was no corroborating evidence or testimony which unequivocally supported the verdict. 735 So. 2d 437 ( 17). The case boiled down to Veasley s word against his accuser s. The DNA evidence here in Justice s case is too tenuous to be supportive of the verdict. There was no contemporaneous finding of wet semen. The police investigators did not describe any wet spots on Nick s sheets. All that is left is that the possibility of a direct deposit of semen during the alleged incident with an equal probability according to the experts of transferred DNA. So, the error in admitted hearsay against Justice was not harmless. So, Joseph Justice respectfully requests a new trial. ISSUE NO. 2: WHETHER THE GUILTY VERDICT IN COUNT THREE IS SUPPORTED BY THE WEIGHT OF EVIDENCE? Nick gave conflicting descriptions. He told the jury that Joseph was sitting in the chair. He told the forensic interviewer that Joseph was kneeling in the chair. He said that Joseph moved the chair and hid the phone both before and after Elizabeth turned on the light. He also said that when Elizabeth turned the light on Joseph was still touching him 13

19 but said he was trying to hide the phone at the same time. Of course Joseph could not have been doing all the things simultaneously as described by Nick. Recall that Elizabeth did not see any fondling and did not described seeing Joseph moving a chair and did not see the phone. Nick has, as any child could, arguably taken his mother s fears and made them real. Nick s testimony and the version of events he told others were all unreasonable, unreliable and contradicted. Nevertheless, Nick s testimony was not corroborated by his mother, a very disturbed, unstable and suicidal woman. The DNA evidence does not corroborate nor lend any support to Nick s testimony either. There was no testimony about Joseph ejaculating. There is no testimony about the bed sheets being wet from ejaculate. What we do know is that there were adolescent boys who stayed in the same room who were Joseph s sons who could have deposited sperm on the sheets, and of course the older boys sperm could have been transferred on the sheets as well as could Joseph s. [T. 139]. The forensic interviewer and the interview itself are of no help. Ms. Rawl did not ask Nick to state what he recalled, she asked him to tell her what his mother saw. The mother saw absolutely no fondling, but Nick arguably transposed her hysterical concerns into a story. Dr. Lancaster was more focused on what he called Nick s depression. However, the doctor s diagnosis was rendered utterly unreliable when it was revealed that he was 14

20 unaware of Elizabeth s two suicide attempts, one which was said to have been in front of Nick. In Collier v. State, 711 So. 2d 458, 462 (Miss. 1998), Collier was convicted after a child told her mother that he had fondled her. In response to Collier s argument on appeal that the child s testimony was uncorroborated and unsubstantiated, the Court said, the unsupported word of the victim of a sex crime is sufficient to support a guilty verdict where that testimony is not discredited or contradicted by other credible evidence, especially if the conduct of the victim is consistent with the conduct of one who has been victimized. A victim s physical and mental condition after an incident and immediate reporting are recognized as corroborating evidence. Id. In Collier, the child s mental state following the touching was consistent with one who had been fondled, there was testimony that she returned from Collier s house, with a wild look and immediately reported the incident to her mother. Id. Here, when asked by his mother just after the incident, he told her nothing had happened and there was no testimony that Nick s mental state was consistent with that of a molested child. An unconscionable injustice has occurred here in Joseph Justice s conviction and should not be allowed to stand. Groseclose v. State, 440 So. 2d 297, 300 (Miss. 1983). In this case the testimony of Nick is uncorroborated and unreliable; no reasonable jury should have believed him; the verdict was against the overwhelming weight of the evidence. A new trial is respectfully requested. Edwards v. State, 736 So. 2d 475 (Miss. 15

21 1999); Hall v. State, 644 So. 2d 1223, 1228 (Miss. 1994); and Guilbeau v. State, 502 So. 2d 639, 641 (Miss. 1987). CONCLUSION For the forgoing reasons, Joseph Justice respectfully requests to have his conviction herein reversed with remand for a new trial. Respectfully submitted, JOSEPH JUSTICE By: /s/ George T. Holmes George T. Holmes, His Attorney 16

22 CERTIFICATE I, George T. Holmes, do hereby certify that I have this the 26th day of May, 2015, electronically filed the foregoing Brief with the Clerk of the Court using the MEC system which issued electronic notification of such filing to Hon. John R. Henry, Jr., Assistant Mississippi Attorney General; and, counsel also this day mailed a hard copy to the following persons not notified by the MEC system by U. S. Mail, first class postage prepaid: Hon. Gerald W. Chatham, Sr., Circuit Judge, P. O. Box 527, Hernando MS and to Hon. Angela Huck, Asst. Dist. Atty., 365 Losher St., Ste. 210, Hernando MS /s/ George T. Holmes George T. Holmes George T. Holmes, MSB No Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson MS gholm@ospd.ms.gov 17