Pickett v. State

143 So. 3d 596, 2013 WL 5976622, 2013 Miss. App. LEXIS 761
CourtCourt of Appeals of Mississippi
DecidedNovember 12, 2013
DocketNo. 2012-KA-00939-COA
StatusPublished
Cited by5 cases

This text of 143 So. 3d 596 (Pickett 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
Pickett v. State, 143 So. 3d 596, 2013 WL 5976622, 2013 Miss. App. LEXIS 761 (Mich. Ct. App. 2013).

Opinion

GRIFFIS, P. J., for the Court:

¶ 1. Thomas Nathan Pickett appeals his sexual-battery conviction. He argues that: the trial court erred in allowing the testimony of James, a minor, under Mississippi Rule of Evidence 803(24); the trial court erred in allowing the testimony of Brandy, a minor, under Mississippi Rule of Evidence 803(25); the trial court erred in accepting Gwen Stephens as an expert witness; and the cumulative effect of the numerous errors in the trial denied Pickett his fundamental right to a fair trial. We find no error and affirm.

FACTS

¶ 2. In 2011, Pickett resided with Dawn (his wife),1 Brandy (his stepdaughter), James (his son), and Amanda (his daughter).2 At the time of the trial, Brandy was thirteen, James was nine, and Amanda was seven.

¶ 3. On February 26, 2011, the family had spent the afternoon fishing. After returning home, Pickett cooked for the family. After dinner, Amanda, who has a physical handicap, went to sleep in her parents’ bedroom while the rest of the family watched television in the living room.3 Pickett told Dawn that he was going to the store to buy cigarettes. Dawn complained that Pickett never spent any time with the kids, because his job required him to be gone for days at a time, so she offered to go buy the cigarettes for him. At this point, the testimony begins to vary.

¶ 4. Pickett testified that he was watching television on the couch with his son when Dawn returned. Dawn asked him where Brandy was, and he told her that Brandy was in her bedroom. Pickett said that he then walked to the bathroom, and when he started out, Dawn was standing at the door with a gun alleging that her mother told her that he had done bad things to Brandy. Pickett denied all wrongdoing and left the house.

¶ 5. Dawn testified that when she returned home from the store after purchasing cigarettes and gas, she saw James in the recliner watching television, but Brandy and Pickett were not in the room. She testified that James asked her, “How come Daddy is always in the back with [Brandy] when you leave?” Dawn then testified that she found Brandy’s bedroom door shut, and when she attempted to open the door, she was only able to get it partially open. She testified that the door was immediately slammed back in her face, so she tried to open it again and was able to open it.

¶ 6. Dawn then testified that she found Brandy kneeling on the floor facing Pickett, and his pants and underwear were pulled down around his knees. Dawn asked him what was going on, and he said, “Nothing.” Dawn testified that Brandy said that Pickett made her do nasty things. Dawn then testified that she attempted to get Pickett out of the house, and he continued to deny everything and tried to grab her phone. Brandy then called Dawn’s mother, and Dawn grabbed a gun to try and scare Pickett out of the house. Dawn testified that Pickett grabbed the gun and held it towards her. Pickett finally left the [599]*599house. Dawn then took the kids to her mother’s house, and they contacted the authorities.

¶ 7. Cora Robinson, an employee of the Mississippi Department of Human Services, interviewed Brandy. Brandy told Robinson that Pickett, her stepfather, began sexually abusing her when she was seven or eight years old, and she never told anyone because Pickett had threatened to kill her and her family if she did. Brandy also told Robinson that, on the night in question, she was sitting on the couch when her mom left to buy cigarettes. Pickett walked toward the kitchen and began motioning for her to go to her room. She tried to ignore him, and he whispered for her to go to her room, and she finally went.

¶ 8. Robinson referred Dawn to Stephens, a licensed clinical social worker, for Brandy’s therapy. Stephens diagnosed Brandy with post-traumatic stress disorder and noted that Brandy suffered from migraines, nightmares, and gastric problems.

¶ 9. Pickett was indicted for the crime of sexual battery in violation of section 97-3-95 of the Mississippi Code Annotated (Rev. 2006). A jury returned a verdict of guilty, and Pickett was convicted of sexual battery. Pickett was sentenced to serve forty years, with ten years suspended, in the custody of the Mississippi Department of Corrections and five years of post-release supervision. Pickett’s post-trial motions were denied.

ANALYSIS

I. James’s Testimony

¶ 10. Pickett argues that it was error to allow James to testify at trial. However, James did not actually testify as a witness at trial. Instead, the following occurred during Dawn’s direct examination:

State: What, if anything, did you do after you came into the room?
Dawn: When I come through the house, my son stopped me and asked me ...
Defense counsel: Judge, I’m going to object what her son asked.
Court: Well, Counsel, it’s hard to know whether it’s hearsay without hearing it.
State: Let me ask another question. You went back to [Brandy’s] room, correct?
Dawn: Yes, that’s correct.
State: Was that based on a statement that you heard?
Dawn: Yes.
State: May I approach, Your Honor[?] Counselor?

At that point, a sidebar took place where the following exchange occurred:

State: Your Honor, the statement is a hearsay statement but that is the very reason she went back there. I think she has testified that is the reason. The statement was, “Why do[ ] [Brandy] and Daddy go to the back every time you leave?” And that’s why she immediately went back to the back. The State’s going to offer it not for the truth of the matter asserted but the reason why she went back to the back.
Court: The little boy said that?
State: Yes, sir.
Court: ... How old was the child?
State: Eight at the time.
Court: [Under] Rule 803 exception 24[,] ... I’m going to allow it. Ask it under that exception.

The State then resumed its direct examination of Pickett, as follows:

State: Ms. Pickett, when you came in, the first person you came in contact with was [James], correct?
[600]*600Dawn: That’s correct.
State: What, if anything, did he say when you came in?
Dawn: He told me, well, asked me, “how come Daddy is always in the back with [Brandy] when you leave?”

¶ 11. Pickett argues that it was an abuse of the trial court’s discretion to allow Dawn to testify about what James said to her because it was hearsay. Further, Pickett argues that the State did not did not offer a scintilla of evidence that such hearsay testimony was reliable or trustworthy, and the trial court did not make a factual finding of the same. As a result, Pickett asks this Court to find that it was reversible error for the trial court to admit the statement under Rule 803(24).

¶ 12.

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Cite This Page — Counsel Stack

Bluebook (online)
143 So. 3d 596, 2013 WL 5976622, 2013 Miss. App. LEXIS 761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pickett-v-state-missctapp-2013.