Barrett v. State

886 So. 2d 22, 2004 WL 1153744
CourtCourt of Appeals of Mississippi
DecidedMay 25, 2004
Docket2002-KA-01565-COA
StatusPublished
Cited by1 cases

This text of 886 So. 2d 22 (Barrett v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barrett v. State, 886 So. 2d 22, 2004 WL 1153744 (Mich. Ct. App. 2004).

Opinion

886 So.2d 22 (2004)

Gerald BARRETT, Appellant
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01565-COA.

Court of Appeals of Mississippi.

May 25, 2004.
Rehearing Denied August 3, 2004.
Certiorari Denied November 10, 2004.

William Joseph Barnett, Jackson, Dan W. Duggan, Brandon, attorneys for appellant.

Office of the Attorney General by Charles W. Maris, attorney for appellee.

Before KING, C.J., BRIDGES, P.J., THOMAS and CHANDLER, JJ.

THOMAS, J., for the Court.

¶ 1. Gerald Barrett was convicted in Rankin County Circuit Court of statutory rape and one count of sexual battery. He was sentenced to life imprisonment for the statutory rape and to forty years for the *23 sexual battery, the sentences to run consecutively. He appeals and raises the following issues:

Issue One: Counsel for the appellant was ineffective in not objecting to continued leading questions by the State.
Issue Two: Trial counsel was ineffective in not objecting to continuous introduction of prior bad acts against the appellant by the State.
Issue Three: The verdict was contrary to both the weight and the sufficiency of the evidence.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. In June 2000, N.B. moved in with her father, Gerald Barrett. Barrett did not know that she existed until she was ten and DNA evidence confirmed that she was his daughter. N.B. lived in a variety of foster homes prior to moving in with Barrett in his trailer home in Rankin County, Mississippi. N.B. testified that she was thirteen in 2000 and that her relationship with her father was not a normal one because they were engaging in sexual intercourse with each other. She testified that they had sex about twenty times. Barrett was age thirty-three at the time.

¶ 4. N.B. testified about one particular incident when her friend C.C. was visiting in her home. According to testimony from N.B. and C.C., Barrett called them into his room, shut the door, undressed and then undressed each of the girls as well. Barrett asked the girls to have sex with him. N.B. said that she would only if C.C. also agreed. C.C. agreed but only if N.B. would go first. N.B. proceeded to crawl on top of Barrett and have sex with him. Afterwards, C.C. refused to have sex with Barrett because she saw that N.B. was in pain during sex.

¶ 5. N.B. also testified to having seen Barrett place his hand in C.C.'s pants sometime around the time that C.C. saw them have sex. In her testimony, C.C. described a separate incident in which Barrett came in and sat beside her and N.B. on the "couch bed" in the trailer and Barrett placed his finger in her vagina. According to her, he also made her rub his "d-i-c-k." C.C. also corroborated N.B.'s testimony as to the events in Barrett's bedroom when all three of them were naked and when she saw Barrett and N.B. have sex. C.C. also was questioned about a later event around the end of July or early August when Barrett allegedly only "fingered" her and when she again refused to have intercourse with him. The jury found Barrett guilty of one count of sexual assault.

¶ 6. Also living in the trailer at the time of the alleged incidents were Barrett's mother, Margaret Anthony, and her then live-in boyfriend, Eddie Taylor, and Barrett's brother, Irby. There were three bedrooms in the trailer. Anthony and her boyfriend shared one bedroom, Irby was in another, and most of the time N.B. had the other bedroom, with Barrett sleeping on the couch. There was apparently a period of time when Barrett and N.B. shared a bedroom. Both Barrett's mother and Eddie Taylor testified that they never saw anything improper but that they worked the late shift until after midnight and were not at the trailer a good part of the night.

¶ 7. The defense attempted to put on proof that N.B. had a propensity for lying and that she was jealous of other women in her father's life. There was also testimony that she was involved with a boy her age and that her father had attempted to break up the relationship and N.B. threatened to run away.

¶ 8. The allegations against Barrett came to light after he reported N.B. as a *24 runaway. Officer Aaron Hirschfield of the Pearl Police Department testified that he received a call about N.B. being a runaway and went to the hospital to interview her to get information about the possible sex with Barrett. Hirschfield then went to Barrett's trailer to interview him. Hirschfield asked for and received permission to search the trailer. Hirschfield asked Barrett if there was a reason why there would be semen on N.B.'s bed and, according to Hirschfield, Barrett told him that he masturbated on the bed and that N.B.'s body fluids might be on the bed as well if she masturbated on the bed as well. The sheets were taken as evidence, but no testing was ever done.

¶ 9. Barrett testified in his own defense and denied that he had sexual relations with N.B. He did testify that he had been convicted of prior offenses of burglary and sale of narcotics and that he was in fact guilty of these offenses. The State also introduced statements that Barrett signed which stated that he had not committed any felony offenses. There was also testimony presented at trial that Barrett's brother, Irby, had just been released from prison at the time he moved into Barrett's trailer.

¶ 10. Patricia Barrett, Barrett's new wife of four months, testified that she never observed any sexual activity between Barrett and N.B. Patricia also testified that N.B. did not like her and directly contradicted N.B.'s testimony that N.B. did not know her.

¶ 11. Barrett also offered character witnesses who testified that Barrett had a good reputation in the community. On cross-examination these witnesses were asked about Barrett's criminal record and whether this was consistent with a good reputation.

¶ 12. The jury found Barrett guilty of the statutory rape of his daughter and also guilty of one of two counts of sexual assault of the daughter's friend. The judge sentenced Barrett to life imprisonment for the statutory rape and a consecutive sentence of forty years for the sexual assault.

¶ 13. On motion for new trial, a different defense attorney offered an undated letter supposedly written by N.B. which stated that her father made her breakup with her boyfriend. This conflicted with her testimony at trial. A witness in support of the motion for new trial testified that she overhead a conversation in which C.C. stated that she gave testimony at trial only because she did not want Irby, Barrett's brother, or herself to go to jail. The testimony was that C.C. was coerced into testifying in order to prevent Irby from being charged with statutory rape because the district attorney had found videotapes and "other stuff."

¶ 14. Barrett's trial was in March of 2002, and the motion for rehearing was heard on August 16, 2002. According to the State, "more than two months" before the hearing, Irby was convicted of statutory rape and sentenced to ten years imprisonment for his involvement with C.C. Barrett's motion for a new trial was denied.

DISCUSSION

Issue One: Counsel for the appellant was ineffective in not objecting to continued leading questions by the State.

¶ 15. A claim of ineffective assistance of counsel is considered under the holding of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Related

Osborne v. State
942 So. 2d 193 (Court of Appeals of Mississippi, 2006)

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Bluebook (online)
886 So. 2d 22, 2004 WL 1153744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barrett-v-state-missctapp-2004.