Anderson v. State

62 So. 3d 927, 2011 Miss. LEXIS 194, 2011 WL 1314162
CourtMississippi Supreme Court
DecidedApril 7, 2011
Docket2009-KA-01614-SCT
StatusPublished
Cited by39 cases

This text of 62 So. 3d 927 (Anderson v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. State, 62 So. 3d 927, 2011 Miss. LEXIS 194, 2011 WL 1314162 (Mich. 2011).

Opinions

CARLSON, Presiding Justice,

for the Court:

¶ 1. David Paul Anderson was convicted by a jury of two counts of statutory rape and one count of sexual battery. Anderson was sentenced to life for each count of statutory rape and to thirty years for the one count of sexual battery, with all sentences to run concurrently. After the trial judge denied his Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, Anderson perfected this appeal, alleging errors at the trial-court level. Finding Anderson’s assignments of error to be without merit, we affirm the judgment of convictions and sentences of the Circuit Court for the First Judicial District of Harrison County.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On December 2, 2006, Deborah Blevin entered Anderson’s home and witnessed Anderson having sexual inter[931]*931course1 with his eleven-year-old daughter, Allison, in his bedroom.2 Blevin then announced her presence, stepped away from the room, and went to the living room. After a few moments, Anderson and Allison emerged from Anderson’s bedroom. Blevin then approached Allison and told her “I know.” Allison began crying, and Blevin then took Allison to her home next door. Rachel Abbot was at Blevin’s home when Blevin and Allison arrived. Allison then told Abbot and Blevin that this had been happening for “quite a while” and that it had occurred in their home, as well as at the family farm.

¶ 3. Abbot and Blevin reported the incident to the police a month later, on January 3, 2007. Abbot testified that she waited a month to report the incident because she was shocked and did not know what to do.

¶ 4. Anderson was indicted on October 27, 2007, for two counts of statutory rape under Mississippi Code Section 97-3-65(l)(b) (Rev.2006), and one count of sexual battery under Mississippi Code Section 97-3-95(2) (Rev.2006). Count I of the indictment charged Anderson with statutory rape “on or about November, 2006.” Count II of the indictment charged Anderson with statutory rape “on or about November 25, 2006.” Count III charged Anderson with sexual battery “on or about December 2, 2006.”

¶ 5. Anderson eventually went to trial before a jury in the Circuit Court for the First Judicial District of Harrison County, Judge Lisa P. Dodson presiding. At trial, Allison testified outside the courtroom through closed-circuit television. Allison first testified to the event that occurred on December 2, 2006, stating that “[Anderson] put his private part into my private part.” Allison stated that this was not the first time Anderson had intercourse with her and that he had been doing this since she was about seven years old. Allison also testified that Anderson had raped her more than one time in November 2006, specifically both before and after Thanksgiving. Next, Allison testified that Anderson had brought her to the family farm on November 25, 2006, and had raped her in his truck. When asked why she never had told anyone of the abuse, Allison stated that she was afraid Anderson would hurt her if she told anyone. Deborah Blevin, Rachel Abbot, and Dr. Donald Matheme all testified at trial, corroborating Allison’s testimony.

¶ 6. Anthony Clarite, a detective with the Gulfport Police Department, interviewed Allison after the abuse was reported to police. Clarite testified that Allison was very hesitant to speak with him. He [932]*932eventually was able to get Allison to discuss the events, and she told him that her father had sexual intercourse with her in his bedroom on the night of December 2, 2006. Clarite also used anatomical drawings during his interview with Allison and had her circle the areas of Anderson’s body that Anderson had used to touch her and the area of her body that Anderson had touched. Allison circled the vaginal area on the female diagram and the penis on the male diagram. Allison also told Clarite that her father had sexual intercourse with her on more than one occasion.3

¶ 7. Seth Abbot, Anderson’s brother, also testified. Abbot testified that he was with Anderson and Allison the entire time they were at the family farm on November 25, 2006, and that he did not see Anderson have sexual intercourse with Allison. Anderson did not testify in his own defense.

¶ 8. Anderson was convicted by the jury of two counts of statutory rape and one count of sexual battery. After the jury verdict, defense counsel requested a pre-sentence investigation of Anderson’s mental capacity. The trial judge reviewed the investigation results prior to the sentencing hearing. The investigation had resulted in a recommendation for further mental evaluation. After hearing testimony from Anderson’s family and friends, the trial judge sentenced Anderson to life in prison for Counts I and II and to thirty years for Count III, with all three sentences running concurrently. After a hearing on Anderson’s Motion for Judgment Notwithstanding the Verdicts, or in the Alternative, a New Trial, the trial court entered its order denying Anderson’s motion. Anderson then appealed to this Court.

DISCUSSION

¶ 9. Anderson presents eleven issues for this Court’s consideration: (1) whether the defendant’s trial counsel provided effective assistance; (2) whether the admission of hearsay testimony was proper under the tender-years exception; (3) whether the State impermissibly asked a child sexual-assault victim leading questions; (4) whether the trial court erred in denying the defendant’s motion to exclude the testimony of Dr. Donald Matherne; (5) whether the trial court erred in failing to quash Count I of the indictment; (6) whether the State violated the golden rule during closing arguments; (7) whether the State improperly commented on the defendant’s right to remain silent; (8) whether the trial court erred by failing to assure that defense exhibit 1 was properly submitted to the jury for consideration; (9) whether the evidence was sufficient to support Counts I and II of the indictment; (10) whether the verdict was against the overwhelming weight of the evidence; and (11) whether cumulative error denied Anderson a fair trial.

I. WHETHER THE DEFENDANT’S TRIAL COUNSEL PROVIDED EFFECTIVE ASSISTANCE.

¶ 10. Anderson claims that his trial counsel was ineffective for two reasons: (1) for failing to request a psychological examination to determine whether he was legally insane or incompetent to stand trial; and (2) for waiving his right to be present at pretrial hearings, his right to an [933]*933in-court identification by the victim, and his right to testify.

¶ 11. Generally, ineffective-assistance-of-counsel claims are more appropriate for post-conviction proceedings rather than direct appeal. Archer v. State, 986 So.2d 951, 955 (Miss.2008). “This is because during direct appeals the Court is limited to the trial court record in its review of the claim....” Id. (citing Witcher v. State, 863 So.2d 776, 825 (Miss. 2003)). When the record lacks sufficient evidence adequately to address the claim, this Court should deny relief and preserve the defendant’s right to argue the issue through a post-conviction-relief petition. Id. (citing Witcher, 863 So.2d at 825; Read v. State, 430 So.2d 832, 837 (Miss.1983)).

¶ 12. We find that, in today’s case, the record does not contain sufficient evidence for this Court adequately to address Anderson’s claims.

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Cite This Page — Counsel Stack

Bluebook (online)
62 So. 3d 927, 2011 Miss. LEXIS 194, 2011 WL 1314162, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-state-miss-2011.