BEFORE ROY NOBLE LEE, P.J., DAN LEE AND ANDERSON, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
Donald Cantrell, Sr. appeals his conviction of sexual battery. He was convicted in the Circuit Court of Sharkey County and sentenced to seventeen (17) years in the custody of the Mississippi Department of Corrections. He assigns seven errors in the trial court:
I. IT WAS ERROR FOR THE TRIAL JUDGE TO SIT AS SUCH IN THIS MATTER.
II. THE LOWER COURT ERRED IN ALLOWING EVIDENCE OF OTHER CRIMES AND IN OVERRULING MR. CANTRELL'S MOTION TO SUPPRESS AND EXCLUDE EVIDENCE.
III. THE LOWER COURT ERRED IN OVERRULING THE DEMURRER TO THE INDICTMENT.
IV. THE LOWER COURT ERRED IN DENYING MR. CANTRELL THE RIGHT TO ESTABLISH AND SHOW THE RELATIONSHIP BETWEEN HIMSELF AND HIS ACCUSER'S MOTHER AND OTHER RELATIONSHIPS AND IN PREVENTING MR. CANTRELL FROM SHOWING BIAS AND MOTIVE ON THE PART OF THE STATE'S WITNESSES.
V. THE LOWER COURT ERRED IN GRANTING INSTRUCTION S-3.
VI. THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND EVINCES BIAS, PASSION AND PREJUDICE ON THE PART OF THE JURY AGAINST MR. CANTRELL.
VII. SECTION 97-3-95 MISS. CODE ANN. SUPP. 1984) WAS APPLIED EX POST FACTO.
Finding no error, we affirm.
On a Saturday in August of 1983, Donald Cantrell,
Sr., his stepdaughter, J.C., and his son, D.C., were staying in a bus converted into a trailer which was parked outside of the children's grandmother's house on Mississippi Highway 14 in Anguilla, Mississippi. Linda Cantrell, the childrens' mother and Cantrell's wife, was supposedly visiting with the childrens' grandmother.
The children both testified that on this Saturday, Donald Cantrell, Sr. and J.C. engaged in fellatio. D.C. testified that this was done against J.C.'s wishes. J.C was 11 years old.
J.C. testified at trial that on that Saturday morning Cantrell was in the trailer bathroom and called out to her to bring him some cigarettes. She said she walked into the bathroom and Cantrell" asked me to suck his penis. "She testified Cantrell was sitting down on the toilet stool and had his jeans pulled down around his ankles. Cantrell had her to get down on her knees and put his penis into her mouth. Cantrell did not hold her. J.C. testified that no door or screen cordoned off the bathroom from the rest of the bus, only two cabinets and a refrigerator blocked the view.
D.C. saw this incident by looking through a crack in the cabinets. J.C. said she and Cantrell noticed D.C. peeking through the crack, and at this time Cantrell told J.C. to go back into the living room and try to explain to D.C. that he did not see what he actually saw. J.C. said she was afraid to tell anyone about the incident because she didn't want her mother and daddy to have trouble and break up. She said Cantrell told her not to tell her mom or they would break up.
D.C. testified that he was watching television that morning when Cantrell called J.C. into the bathroom. He said he spied on them through the crack and heard J.C. twice say that she didn't want to do it. He corroborated J.C.'s testimony that she was down on her knees while Cantrell sat on the toilet with his pants pulled down. D.C. did see J.C." suck his, ah, you know what, "then J.C. and Cantrell saw him, and Cantrell told J.C. to go on out and act like nothing happened.
The incident did not come to light until several months later, after Cantrell and his wife, Linda had separated. D.C. told his mother about the incident because at that time he was angry with his father.
After D.C. told his mother about the incident she went to J.C., who confirmed the story. Linda Cantrell then
took J.C. to a public welfare officer to report the incident. The report was made while Cantrell and his wife were separated and at a time when the parents were involved in a custody and visitation dispute.
Cantrell was indicted in the November, 1984 term of the Sharkey County grand jury for the crime of sexual battery. Trial was held December 5, 1984. Both children testified at trial as stated above and they both said that their mother had not put words in their mouths.
Cantrell took the stand in his own defense and testified that the children were liars, and that it would not be unusual for them to concoct the same story and tell it in unison. Cantrell said he believed Linda Cantrell put the children up to telling this story and Linda came up with this story to prevent visitation, Cantrell said. Cantrell also introduced several character witnesses who testified that they knew Cantrell's reputation for being a good, loving father.
Was it Error For the Trial Court to Sit in This Cause?
Cantrell here argues that he is entitled to a new trial based on the trial judge's prior dealings with the defendant.
After the verdict was rendered, but before sentencing, counsel for Cantrell learned through an attorney who previously represented Cantrell that Rush M. Clements, the Circuit Court Judge at trial, had signed an affidavit charging Cantrell with removing a pickup truck from the state with the intent to defraud a lien holder in April, 1981.
The trial judge held a post trial evidentiary hearing to ascertain the facts behind Cantrell's claim in support of his motion for a new trial.
The lienholder was the Bank of Anguilla, who was represented by the law firm of Clements & Clements, a firm comprised of Rush M. Clements and his father at the time Clements signed the affidavit.
Robert Evans, a Greenville attorney who represented Cantrell in the prior charge, testified that he did not think the charge was warranted and that he contemplated a civil suit for ...