Griffith v. State

584 So. 2d 383, 1991 WL 126618
CourtMississippi Supreme Court
DecidedJuly 3, 1991
Docket07-KA-58672
StatusPublished
Cited by36 cases

This text of 584 So. 2d 383 (Griffith 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
Griffith v. State, 584 So. 2d 383, 1991 WL 126618 (Mich. 1991).

Opinion

584 So.2d 383 (1991)

Richard Lee GRIFFITH
v.
STATE of Mississippi.

No. 07-KA-58672.

Supreme Court of Mississippi.

July 3, 1991.

*384 M. Charles May, Jackson, for appellant.

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice Jan. 3, 1989, Mike C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SULLIVAN, Justice, for the Court:

On February 11, 1987, Richard Lee Griffith was indicted for the sexual battery of Sally S., a ten-year-old mentally retarded female, in violation of Miss. Code Ann. § 97-3-95. He was charged with having committed the offense on or about November 9, 1985. On July 21, 1987, Griffith was convicted in the Circuit Court of the First Judicial District of Hinds County of the felonious sexual penetration with his finger of Sally S., and was sentenced to fifteen years, ten of which were suspended. Because of the erroneous admission of hearsay testimony by the victim's teacher, we reverse. We also furnish guidelines for the courts to use in determining whether out-of-court statements made by a victim of child sexual abuse should be admitted into evidence before a jury.

FACTS

At Griffith's trial, the first witness for the State was Sally S. The defense objected to her testimony on the basis that she was not a competent witness. Sally's mother, Betty Jean, was the next witness. She testified that her daughter was mentally retarded. She said Sally was sometimes truthful and had a very short memory span. She also testified that she did not believe the defendant had sexually abused Sally, although she did believe someone else had done so.

Judy Thompson, a psychometrist with the Jackson Public Schools, had conducted a mental evaluation of Sally in 1985. She testified that the child was mentally retarded, with an I.Q. ranging from 62 to 67, and was below average in "academics, social interaction, and intellectual activities."

Dr. Nina Bess Goss Moffatt, director of the out-patient clinic and the Department of Psychiatry at the University Medical Center, examined Sally on June 19, 1987. Dr. Moffatt is a practicing and teaching psychiatrist. Sally's mother brought Sally to Dr. Moffatt so that she could determine if Sally was telling the truth. Dr. Moffatt told her that she could not any more make that determination about Sally than she could about Sally's mother.

From her examination of Sally, Dr. Moffatt determined that Sally had congenital encephalopathy with a small head, and paralysis. Sally had suffered from seizures and a paralysis on her right side but had improved. She was friendly and cooperative, and when questioned about the alleged sexual abuse, admitted that it had occurred. "She did say that she had been molested but she did not tell us who this person was. Her speech is very simple with two or three word sentences."

Dr. Moffatt was of the opinion that Sally could not testify in court. "We really didn't think she could because she was easily intimidated and we really didn't feel that it was an appropriate thing to do with this little girl." Dr. Moffatt also indicated that she believed that Sally, with a reading level of a first grader and an I.Q. of mild retardation, was not capable of being cross-examined in court. "I think that it would be harmful to this little girl to subject her to this. I think it would scare her to death."

Dr. Moffatt did testify that she believed that Sally was capable of relating the truth about what had happened to her to someone who was used to dealing with children and who Sally trusted. Dr. Moffatt said that if she had seen Sally over a period of time, she could have developed that kind of relationship with Sally.

*385 Sue Vaughn holds a master's degree and teaches mentally retarded children. In 1985, she was employed at the Lake Elementary School in Jackson. Sally was one of her pupils. She testified about Sally's behavior on November 9, 1985:

Q. Would you tell the Court in your own words what circumstances it was that she related this information to you?
A. Sally that day seemed to be very upset. She commented about her stomach was bothering her. Sally was usually always basically a, you know, happy child. She never complained, and if she did I knew that maybe she was sick or felt bad because at times she would complain about her heart hurting. And I told her, I said, "Sally, if your stomach hurts, go to the bathroom." "I don't have to go to the bathroom." I said, "Well, lay down on the mat." And she, you know, that didn't seem to help. So I took her out in the hall and I asked her, I said, "Sally what is wrong?" And she said —
BY MR. MAY:
Your Honor, we are going to object again.
BY THE COURT:
The objection will be overruled.
BY MR. WALLACE:
Q. Continue, please.
A. I asked her what was wrong with her and she just would make the comment like, "You know what is wrong with me." I said, "I don't know unless you tell me." So she told me, she said, "[That man] has been messing with me." I said, "Doing what?" She said, "You know." I said, "I don't know unless you tell me." And she said, "He has been playing with me and doing things to me that he shouldn't do."
BY MR. MAY:
Your Honor, may we have a continuing objection to this line of questions and answers?
BY THE COURT:
You can make your objections. The objection will be overruled.
A. So, after Sally told me what had gone on it upset me and I took her to the principal's office. And I told the principal that we had something that we had to discuss with her. So I said, "Sally, we are going to play a little game and I am going to pretend to be the [man]." And I said, "Now, get in my lap." She got up in my lap and I said — she already told me that [the man] had fondled her, and I said, "Take my hand and put it where [the man] put it." She rubbed it on her chest and when we started down toward her legs she jumped out of my lap and she said, "Don't do it. It hurts." I said, "Don't do what?" She said, "Your fingernail hurts when you put it in me." And she had told me what had happened, that the mother had gone to the grocery store and the little brother had gone outside to play, [the man] had taken her into the bedroom and that is where it happened. And Sally with her mild retardation could not have told this story twice and almost word for word if she had not experienced it. That is the reason why I truly believe her.

Vaughn further testified that Sally said that when her mother returned from the grocery store and was told what had happened, her mother said, "Sally, he didn't do that." The circuit court admitted this testimony over defense objection.

Dr. Mary Gail Armstrong, a physician with a specialty in family practice, examined Sally on March 6, 1986. She testified that Sally did not have an intact hymen. The introitus, or opening to the vagina, was enlarged to a point beyond what she would have expected for a child of Sally's age. When asked about causation for this condition, she replied, "One of the strong opinions that I might have might be sexual abuse."

Dr. Armstrong further testified that Sally told her that Griffith had touched her on her private parts. She said that Griffith was the "only person that the child related

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Cite This Page — Counsel Stack

Bluebook (online)
584 So. 2d 383, 1991 WL 126618, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffith-v-state-miss-1991.