Harrison v. State

49 So. 3d 80, 2010 Miss. LEXIS 635, 2010 WL 4982906
CourtMississippi Supreme Court
DecidedDecember 9, 2010
DocketNo. 2009-KA-01732-SCT
StatusPublished
Cited by4 cases

This text of 49 So. 3d 80 (Harrison 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
Harrison v. State, 49 So. 3d 80, 2010 Miss. LEXIS 635, 2010 WL 4982906 (Mich. 2010).

Opinion

RANDOLPH, Justice,

for the Court.

¶ 1. Elzie Junior Harrison appeals from his conviction on five counts of statutory rape and sexual battery. Harrison raises two assignments of error based on comments made by the trial court, but did not raise an objection at the time the comments were made. Both assignments are without substantive merit. We affirm the judgment of the Neshoba County Circuit Court.

FACTS

¶ 2. S.W. (born January 17, 1991) lived in the Linwood community of Neshoba County with her mother, two brothers, and stepfather, Harrison (born December 17, 1981). S.W. testified that, on Mother’s Day, 2004, Harrison was present while she and her brothers were preparing a Mother’s Day card. She said she was looking down at the card, but Harrison seemed to think that she was looking at his crotch. S.W. testified that he looked down at himself and then smiled at her. She stated that, shortly thereafter, he sent her mother out of the house on an errand, told the boys to go to their room, and told her to go to another room. She said he came in and had sex with her, penetrating her mouth and anus. S.W. testified that, in the next few weeks, while she was still thirteen, he started having vaginal sex with her, and that this continued numerous times at various locations, until after her sixteenth birthday. After she began to go to church, her pastor noticed that she was depressed and began to counsel her. Eventually, she confided in him. He advised S.W. and her mother to report Harrison to the sheriffs office. They did so. Harrison was arrested and gave a statement to an investigator after waiving his right to counsel. The investigator wrote a [82]*82statement, read it back to Harrison, and gave him an opportunity to make changes. Harrison signed the statement, which reads as follows:

I am not sure of the date but when we were living in Linwood [S.W.] my stepdaughter would come onto me and I did not have sex with her but I did touch her privates with my hands. In 2006 we were living [near Philadelphia] and [S.W.] came onto me again and I did have sex then. I had sex with [S.W.] 3 or so different times in 2006. [S.W.] was 16 years old in 2006. I haven’t had sex with [S.W.] since 2006.

Harrison was indicted on five counts: (1) Statutory rape for intercourse with a child under age fourteen; (2) Sexual battery for oral sex with a child under age fourteen; (3) Sexual battery for anal sex with a child under age fourteen; (4) Statutory rape for intercourse with a child between the ages of fourteen and sixteen; (5) Sexual battery for intercourse with a sixteen-year-old child by a person of trust or authority over the child. See Miss.Code Ann. §§ 97-3-65(l)(b), 97 — 3—95(l)(d), 97-3-95(2) (Rev. 2006).

PROCEDURAL HISTORY

¶ 3. Trial was held July 14-15, 2009. Prior to voir dire, the judge made introductory remarks, including instructing the jury that an indictment means only that twelve members of a grand jury, hearing only the State’s side of the case, have found that probable cause exists that a crime has been committed. The judge explained, inter alia, the presumption of innocence, the burden of proof, and the requirement of unanimity. Immediately after the jury panel was selected, the judge continued his introductory and explanatory remarks before excusing those veniremen who had not been selected. As this was the last jury trial of the week, those not chosen had completed their jury duty. The judge extolled the value of jury service and thanked the venire members for having served. The judge described jury service as a “good and noble thing,” an “indispensable link,” and “part and parcel of the rule of law.” He recalled a speech he had given on Independence Day and compared our system to that of Iran, where “there’s no such thing as a jury trial or an indictment....” Following these remarks, the judge excused those venire members who had not been chosen and continued his explanatory remarks, including informing the witnesses and the jury that they would be excused for lunch. He instructed the witnesses not to have any contact with the jurors, and told the jurors not to discuss the case among themselves or with others. Harrison did not object at any time to any remark by the trial judge.

¶ 4. On two occasions — just before the first lunch break and just before excusing the jury for the night — the court described the case as a “capital case.” In both instances, the comment was made to impress upon the jurors and witness the seriousness of the case and the importance of their following the court’s instructions. The court never said it was a capital-murder case or a death-penalty case. Harrison did not object on either occasion.

¶ 5. During S.W.’s testimony, when she was first asked about the events of Mother’s Day, 2004, she struggled with completing her answers. The judge asked her if she needed to take a break. He told her to try to answer if she could, but assured her that if she could not go on, he would allow her to take a break. Following this, the prosecutor asked some preliminary questions, but when he returned to questions about Mother’s Day, S.W. spoke softly and was told to speak up. She was again unable to answer, and the judge ordered the court in recess. While the jury was out, the judge spoke to S.W., [83]*83introducing himself, explaining the circumstances, and attempting to calm her down enough to continue. S.W. accepted the judge’s offer take a break to compose herself. She left the courtroom accompanied by a female bailiff. When S.W. returned, the judge again instructed her to speak loudly enough to be heard and to answer the questions to the best of her ability. She assured the judge that she could do so. After questioning resumed, the following colloquy occurred:

State: Now, at any time that day, did you get any idea about what it was that he thought you were looking at?....
Defense: Objection to speculation. As to what the defendant thought.
Court: I’m going to overrule the objection. I think that’s a valid question. Go ahead and answer the question if you can.
S.W.: Yes.
State: And what was that?
S.W.: His private area.
State: So he was standing in a position such, with respect to the card you were gazing at—
Defense: Objection to leading.
Court: I’ll sustain that. Try not to lead.
State: Judge, I’m just trying to re-cap and give some context to what she’s testified about.
Court: Okay.
State: No[w], once you looked at the card, was he standing in an area near where he would have been able to think you were looking at him?
Defense: Objection to speculation on what the defendant would have been thinking.
Court: I’m going to overule the objection. The — what we’re seeking is the truth.... The court is seeking to allow that to come in within the parameters of the rules.

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Cite This Page — Counsel Stack

Bluebook (online)
49 So. 3d 80, 2010 Miss. LEXIS 635, 2010 WL 4982906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrison-v-state-miss-2010.