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ROBERT W. YARBOROUGH v. STATE OF MISSISSIPPI

NOVEMBER 04, 1987

ROBERT W. YARBOROUGH
v.
STATE OF MISSISSIPPI



BEFORE DAN M. LEE, P.J.; ROBERTSON AND GRIFFIN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

This appeal from a trial court's denial of post-conviction relief arises out of a young rape victim's attempt to recant her trial testimony against her father. The underlying facts alternately tug at the heart strings and outrage the senses as the father's conviction of rape of his minor daughter appears to have destroyed an already fragile family relationship.

In addition to the credibility of the daughter/victim's recanting testimony, the appeal presents a question concerning the confidentiality of proceedings before a Youth Court. The trial court denied the application for post-conviction relief. For the reasons set forth below, we affirm.

 II.

 On August 8, 1983, Robert W. Yarborough, Petitioner below and Appellant here, was convicted in the Circuit Court of Jackson County, Mississippi, of the March 31, 1982, rape of his then fourteen-year-old daughter, K.Y. At trial, K.Y. had appeared and testified unequivocally to the facts of the rape. Upon conviction, the Circuit Court sentenced Yarborough to the custody of the Mississippi Department of Corrections for a term of twenty years. Yarborough took no appeal from this conviction and sentence.

 On April 11, 1985, Yarborough filed in the Circuit Court his pro se motion to vacate his conviction and sentence. The motion was predicated in substantial part upon Yarborough's claim that the victim, K.Y., had recanted her earlier testimony.

 The rape is said to have occurred sometime after 3:30 p.m. on March 31, 1982. At the trial on August 8, 1983, K.Y., by then fifteen, testified that her dad and his friend, Melvin St.Amant were drinking at St.Amant's house one afternoon. K.Y. was also there playing with St.Amant's children. K.Y.'s

 father, telling her that he needed to talk to her, took her into a bedroom and raped her. Melvin St.Amant testified that he had heard K.Y. yelling to her father," Daddy, don't do it, "and walked to the bedroom to investigate whereupon he saw Robert Yarborough having intercourse with K.Y. who was crying.

 St.Amant's fifteen-year-old son, Justin, stated that he was in the backyard playing baseball when he heard K.Y. yelling. He went to the bedroom window and saw Yarborough having sex with his daughter. (He knew what sex was because he had seen it" a lot of times "on HBO.)

 Yarborough denied raping his daughter. His wife, K.Y.'s mother, testified that at 4:45 p.m. Yarborough was asleep on the couch at their home about a block and a half from St.Amant's. She also testified that her husband was impotent due to a heart condition. The jury found Yarborough guilty and the court imposed a twenty year sentence. Yarborough's motion for a new trial was denied, and no appeal was perfected.

 About a year after the conviction, K.Y. wrote two letters retracting her previous testimony. One of these was addressed to Yarborough's trial lawyer. The second was addressed" To Whom It May Concern "and was notarized on September 20, 1984. A typed version of the second letter was notarized on September 27, 1984. Apparently, a proceeding in which these letters were discussed was held in Youth Court at which time K.Y. reaffirmed that her father had raped her.

 On April 11, 1985, Yarborough filed a pro se motion in the Circuit Court of Jackson County seeking relief from his conviction and sentence and relying upon, among other things, K.Y.'s recantation.

 At the hearing, K.Y. testified that she had lied when she testified against her father in the August, 1983, trial because she was scared of Melvin St.Amant from the fact that her mother had told her St.Amant was dangerous. At the time of the hearing K.Y. had been in the custody of the Welfare Department for about three years. During that time she had not been permitted to live with her mother although recently she had been allowed more visits with her mother.

 K.Y. admitted that in the Youth Court hearing she testified that her father raped her. She also admitted to having told the counselor at the Youth Court that her father had raped her because" I thought that's what the Welfare wanted to hear, "and in doing so, she hoped to get her family back together.

 Kathy King-Jackson, an Assistant D.A. who with another Assistant D.A. had prosecuted the original charge against Yarborough, testified that immediately after the trial ended with the conviction of Yarborough she had been alerted by noise outside her office. She had looked out the window and seen K.Y.'s family, particularly her mother, surrounding the girl and screaming abusive things at her and telling her she would pay for lying. She testified that she had talked to K.Y. many times before the trial and not once did she change her story but during the entire ordeal K.Y. had been very upset about the alienation from her family she was experiencing.

 The Circuit Court denied the petition for post-conviction relief stating that K.Y. had told numerous people many times that her father raped her and it was only when she was among her family, with whom she ...


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