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RAYMON A. WILLIAMS v. STATE OF MISSISSIPPI

FEBRUARY 27, 1989

RAYMON A. WILLIAMS
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., SULLIVAN AND ZUCCARO, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

On December 11, 1986, Raymon Andrew Williams was convicted in the circuit court of the First Judicial District of Hinds County under MCA 97-5-23 (1972) of gratification of

lust and sentenced to ten years in the Mississippi Department of Corrections. He has appealed to this Court and, finding error, we reverse and remand for a new trial.

 Although this case involves numerous assignments of error, we need only address four factors. First, the use of anatomically correct dolls at trial; second, the purpose of rebuttal testimony; third, the necessity of accepting a trial court's ruling; and fourth, the impropriety of an attorney telling a witness what he may or may not testify to at trial.

 The other assignments of error will not occur on retrial and, accordingly, we need not address them.

 FACTS AND LAW

 Under the terms of a custody agreement, Williams had visitation with his five-year-old daughter from December 25, 1985, through December 27, 1985. On March 31, 1986, Williams' wife, from whom he was separated, signed a sworn affidavit accusing Williams of having sexually molested the child on December 26, 1985, and on April 1, 1986, Williams was arrested.

 I. DID THE TRIAL COURT ERR IN ALLOWING THE CHILD TO USE ANATOMICALLY - CORRECT DOLLS WHEN TESTIFYING BEFORE THE JURY?

 The child testified at trial before the jury and used anatomically-correct dolls when describing and demonstrating how the abuse occurred, to which Williams strenuously objected. The use of anatomically-correct dolls during a trial is a matter of discretion with the trial judge although, as stated in Murriel v. State, 515 So. 2d 952 (Miss. 1987), great care and caution should be exercised when making this determination. Having carefully studied this record, we find no error in the use of these dolls at trial.

 II. DID THE TRIAL COURT ERR IN ALLOWING THE STATE'S EXPERT, DURING REBUTTAL, TO STATE AN OPINION ON A SUBJECT MATTER WHEN THE DEFENSE EXPERT'S OPINION ON THE SAME SUBJECT MATTER HAD EARLIER BEEN PRECLUDED?

 Dr. Donald Guild, a psychiatrist who had interviewed the child testified for the defense as to, among other things, the child's propensity for truthfulness. Dr. Guild was not, however, for reasons of relevancy, allowed to testify as to the propensity for truthfulness by the child's brother, whom Dr. Guild had interviewed and who also had allegedly been

 sexually abused by Williams. *fn1 Subsequently, Dr. Maude Wright, who had likewise interviewed both children, was allowed to testify in rebuttal for the State as to her opinion of the brother's propensity for truthfulness. This, obviously, was error. The purpose of rebuttal testimony is to explain, repel, counteract or disprove evidence by the adverse party. See, United States v. Delk, 586 F.2d 513 (5th Cir. 1978); Roney v. State, 167 Miss. 827, 150 So. 774 (1933); see generally, 23 C.J.S. Criminal Law, 1050 (1961).

 In light of the preclusion of Dr. Guild's opinion, it was reversible error to allow the opinion of Dr. Wright in rebuttal on the same subject matter. In addition, while we do not address the issue in this case, opinion testimony as to a witness's truthfulness is of dubious competency.

 III. DID THE TRIAL COURT ERR IN ALLOWING THE PROSECUTORS TO REPEATEDLY REFER TO A VIDEOTAPE NOT IN EVIDENCE?

 During cross-examination of Dr. Guild, the district attorney moved to introduce a video tape made of the child in the office of Dr. Brenda Chance, a social worker who had been counseling the child for several months prior to trial. This motion was overruled and the jury was instructed to disregard any references to the video tape. Thereafter, out of the jury's presence, the State again moved to introduce the video tape of the child in order to rebut Dr. Guild's testimony regarding her ability to be truthful. The trial court, however, finding that the tape had not been listed on the discovery form in accordance with Uniform Criminal Rule 4.06, refused to allow the tape to be shown to the jury.

 Subsequently, the prosecutors on numerous occasions moved for the introduction of the video tape, in blatant disregard of the trial court's ruling of inadmissibility. Each motion was denied. Williams now argues he was prejudiced and denied a fair trial due to the prosecutors' numerous remarks about and motions to introduce the video tape, which led the jury to perceive that actions by the defense counsel kept incriminating evidence from them. We agree, and in accordance, find the following, stated in 23A C.J.S. Criminal Law, 1081, 1087 (1961):

 The prosecuting attorney must conduct the trial in accordance with the rules of law and the rulings of the trial judge during the trial, particularly where accused is defended as a poor person. He should not engage in undignified argument and conduct, and should at all times

 maintain a proper attitude toward the jury, and not say or do anything which might improperly affect ...


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