Richardson v. State

990 So. 2d 247, 2008 WL 1795586
CourtCourt of Appeals of Mississippi
DecidedApril 22, 2008
Docket2007-KA-00767-COA
StatusPublished

This text of 990 So. 2d 247 (Richardson 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
Richardson v. State, 990 So. 2d 247, 2008 WL 1795586 (Mich. Ct. App. 2008).

Opinion

990 So.2d 247 (2008)

Jeffrey Allen RICHARDSON, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2007-KA-00767-COA.

Court of Appeals of Mississippi.

April 22, 2008.
Rehearing Denied September 16, 2008.

*248 David L. Walker, Attorney for Appellant.

Office of the Attorney General by Stephanie Breland Wood, Attorney for Appellee.

Before MYERS, P.J., GRIFFIS and ROBERTS, JJ.

MYERS, P.J., for the Court.

¶ 1. Jeffrey Allen Richardson appeals his conviction of fondling and his sentence of five years in the custody of the Mississippi Department of Corrections and ten years post-release supervision. Richardson asks whether the trial court erred in granting the State's motion to close the courtroom to the public during the testimony of the victim, S.W.,[1] an eleven-year-old child. Richardson also asks whether the trial court erred in denying his motion for a *249 new trial or, in the alternative, his motion for judgment notwithstanding the verdict.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 18, 2006, S.W., a ten-year-old child, was awoken early in the morning to a strange popping noise in her bedroom. S.W. testified that she lay awake in her bed for the next few minutes, the popping noise stopped, and then she felt something touching her or poking her in her panties, or her "personal area." S.W. flew up, turned around, and saw someone run out of her room into the nearby bathroom. Then she heard the same person exit the bathroom, sit in the computer chair, and turn on the computer. S.W. testified that she then went in her mother's bedroom and told her what had occurred. S.W.'s mother, T.M., confirmed this in her subsequent testimony before the trial court. S.W. testified that Richardson then left for work a few minutes later, entering her mother's bedroom to say goodbye. T.M. testified that she and her daughter lived with Richardson, her boyfriend, at the time of the incident. T.M. also testified that the only persons in the home on August 18, 2006, were herself, S.W., Richardson, and Richardson's son.

¶ 3. Richardson, in his defense, testified that when he awoke on the morning of August 18, 2006, he was going to the restroom, but he heard S.W. moving around in her bed and wanted to determine if anything was wrong. Richardson testified that he walked into her room, called her name, then touched her thigh and buttocks to try and wake her up. Richardson testified that he got no response from S.W., so he went to the restroom, checked on her again, and then went to play games on the computer before going to work.

¶ 4. Both of S.W.'s parents later notified the police of the allegations against Richardson. Detective Jeff Logan of the Southaven Police Department began investigating the allegations. Detective Logan interviewed S.W. on August 22, 2006, regarding the incident. Detective Logan also interviewed Richardson and had Richardson write and sign a statement regarding the incident on August 25, 2006. A second, slightly different statement was later prepared by Detective Logan and signed by Richardson on that same date. Richardson was later indicted by a grand jury for the fondling of S.W., on August 18, 2006, in violation of Mississippi Code Annotated section 97-5-23 (Rev.2006).

¶ 5. At the beginning of trial, the State made a motion to clear the courtroom of all nonessential personnel for the State's first witness, the eleven-year-old victim, S.W. The State asked that the courtroom be cleared because of the age of the child and the sexual nature of the charges, fondling. Richardson argued that, pursuant to the Mississippi constitution of 1890, the trial court was limited to excluding the public from the courtroom in cases involving rape, which does not include fondling of a child. The State countered that while the case before the trial court was not a rape case, it was very similar in nature to a rape case. The State argued that Richardson would not be prejudiced, that he would still be present when S.W. testified, and that the motion pertained to only one witness, S.W.

¶ 6. The trial court granted the State's motion, noting on the record there were only four people who would be excluded from the room during S.W.'s testimony. Richardson alleges this was an error by the trial court.

¶ 7. At the close of the State's case-in-chief, Richardson moved for a directed verdict of acquittal, stating that the State had failed to prove beyond a reasonable doubt that Richardson touched the minor *250 child for the purpose of gratifying his lust or indulging his depraved heart in accordance with the statute. Richardson subsequently filed a motion for a new trial or, in the alternative, a motion for judgment notwithstanding the verdict. The trial court denied both motions. Richardson was convicted of fondling and sentenced to serve five years in the custody of the Mississippi Department of Corrections and ten years post-release supervision. It is from this conviction he now appeals.

STANDARD OF REVIEW

¶ 8. An appellate court will only overturn a trial court's denial of a post-trial motion if there is an abuse of discretion. Dilworth v. State, 909 So.2d 731, 736(¶ 17) (Miss.2005) (citing Howell v. State, 860 So.2d 704, 764 (¶ 212) (Miss.2003)). A motion for a judgment notwithstanding the verdict challenges the sufficiency of the evidence while a motion for a new trial challenges the weight of the evidence. Dilworth, 909 So.2d at 736-37 (¶¶ 17-20).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN CLOSING THE COURTROOM DURING THE TESTIMONY OF THE CHILD VICTIM.

¶ 9. Richardson contends that the trial court erred in allowing the courtroom to be closed to the public during the testimony of S.W., the eleven-year-old victim. The State, however, argues that the trial court did not abuse its discretion in closing the courtroom during the testimony of the victim.

¶ 10. This Court does recognize that generally a defendant has a right to a public trial under Article 3, Section 26 of the Mississippi Constitution of 1890, but it is also cognizant that the same article grants a trial judge discretion to close the courtroom in certain cases where appropriate. Tillman v. State, 947 So.2d 993, 996(¶ 10) (Miss.Ct.App.2006). In fact, in certain cases, "public exclusion may be appropriate `to the extent necessary to avoid [embarrassment] or emotional disturbance to a witness which might result from that witness giving testimony in a particular case.'" Bailey v. State, 729 So.2d 1255, 1261(¶ 32) (Miss.1999) (quoting Lee v. State, 529 So.2d 181, 183 (Miss. 1988)) (holding that while the case did not involve sexual abuse, it did require a five-year-old child to relate potentially embarrassing facts on the witness stand regarding physical abuse, such that it necessitated closing the trial to the public).

¶ 11. The United States Supreme Court, in Waller v. Georgia, 467 U.S. 39, 48, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984), has developed a test to help ascertain whether other considerations outweigh a defendant's right to have a public trial, stating:

the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.

Id. The Waller

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Waller v. Georgia
467 U.S. 39 (Supreme Court, 1984)
Lambert v. State
462 So. 2d 308 (Mississippi Supreme Court, 1984)
Howell v. State
860 So. 2d 704 (Mississippi Supreme Court, 2003)
Lee v. State
529 So. 2d 181 (Mississippi Supreme Court, 1988)
Bailey v. State
729 So. 2d 1255 (Mississippi Supreme Court, 1999)
Gannett River States Pub. Co. v. Hand
571 So. 2d 941 (Mississippi Supreme Court, 1990)
Langston v. State
791 So. 2d 273 (Court of Appeals of Mississippi, 2001)
Dilworth v. State
909 So. 2d 731 (Mississippi Supreme Court, 2005)
Bush v. State
895 So. 2d 836 (Mississippi Supreme Court, 2005)
Edwards v. State
469 So. 2d 68 (Mississippi Supreme Court, 1985)
Tillman v. State
947 So. 2d 993 (Court of Appeals of Mississippi, 2006)
Smith v. State
867 So. 2d 276 (Court of Appeals of Mississippi, 2004)
Carr v. State
208 So. 2d 886 (Mississippi Supreme Court, 1968)
Parks v. State
950 So. 2d 184 (Court of Appeals of Mississippi, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
990 So. 2d 247, 2008 WL 1795586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-state-missctapp-2008.