ANDERSON, JUSTICE, FOR THE COURT:
Alfred Dale Leatherwood has appealed his conviction in the Circuit Court of Forrest County of rape and sentence to death. Because of the improper admission of hearsay testimony of statements made by the victim, we reverse and remand. We also find that under our present statute the maximum penalty if convicted upon re-trial is life imprisonment.
In March, 1985, the eleven-year-old victim, a fourth grade student at the Grace Christian elementary school in Hattiesburg, lived alone with her mother Mrs. V. Older siblings of the victim's lived elsewhere.
Just down the street lived Mrs. G. B., Mrs. V's sister. Mrs. G. B. and her husband had several children, some of whom lived in their household. Also living in the same neighborhood was Mrs. C. B., the aunt of Mrs. G. B. and Mrs. V. The victim called Mrs. C. B. "Big Mama." Mrs. C. B.'s three daughters lived with her, as well as two grandchildren.
A close relationship existed between the sisters and their aunt. The victim and her mother were in Mrs. G. B's and Mrs. C. B's houses every day. Mrs. V. would take the victim to get the bus near the G. B. residence, and the victim would return there after school. She worked on her lessons at Mrs. C. B.'s home. It was customary for Mrs. V. and the victim to watch television in the G. B. home each evening after supper.
There was a special place Mrs. G. B. put her house key when she was away, and the victim knew its location. If no one was at home when the victim went to Mrs. B.'s house, she let herself in.
Because she failed the victim had to take the first year over. She was in the special education class in school, and also had a "speech pathologist" to help her with her speech.
Mrs. Patsy Smith taught the victim's fourth grade class. After lunch the children could either read or sleep
at their desks. During this period on April 30, 1985, the victim went to sleep, and woke up crying. Mrs. Smith saw her staring into space and distressed, thought she was disoriented, and tried without success to comfort and reassure her. She then took her to Mrs. Downey, the special education teacher. Mrs. Smith returned to her classroom and did not see the victim again that day.
On the next day, May 1, the victim essentially repeated her behavior. Mrs. Smith could not take her to Mrs. Downey at the time because she was not in her classroom. She decided to take the victim to the principal's office, a Mr. Blackwell. The principal had an excellent relation with the children at school. En route to his office, they met Mr. Blackwell and Mrs. Downey walking in the hall.
The victim was visibly frightened at Mr. Blackwell, cringed, and buried herself into Mrs. Smith's lap. Noticing this, he left. Mrs. Smith again reported to Mrs. Downey that the victim was upset. They took her into the library and Mrs. Smith left.
Mrs. Downey taught the victim five days a week. She recalled Mrs. Smith bringing the victim to her on April 30, the victim was sobbing and appeared disoriented. She could not speak, and Mrs. Downey suggested to the victim that she attempt to write what was on her mind. The victim's note was introduced at trial as Exhibit 2 for identification. It mentions rape.
The next day she noticed the victim was more agitated when Mrs. Smith brought her, bordering upon being hysterical.
Mrs. Downey tried to comfort the victim, but was unable to get her to talk. The victim finally asked to see one of her classmates, and when the child came the victim talked in torrents. She related that a boy had come to Mrs. G. B.'s home and raped her.
The school sent for some member of the victim's family to come for her.
Mrs. Downey told the victim's sister that the victim needed to be seen by a doctor, that she had been raped.
On the way to Mrs. G. B.'s house, the victim was shaking and sobbing. She finally told several members of her family that she had been raped.
Mrs. G. B. described the victim's condition when she got
Q. What kind of condition was the victim in?
A. Well, she was real hysterical. Shaking and we couldn't hardly control her and she would lay down like she was falling out or something, sleeping a while and she'd wake up and holler and scream and shake and holler "get away from me" and all that kind of stuff. We couldn't hardly control her.
Finally, after calming down, the victim told Mrs. G. B. that "Alfred" had raped her in Mrs. G. B.'s house. Alfred was the defendant - Alfred Dale Leatherwood. He was 22 years of age at the time, the nephew of Mrs. G. B.'s husband, and a frequent visitor in the G. B. home.
Mrs. G. B. and Mrs. V. were up most of the night with the victim. She would wake, scream and yell "get away from me." She appeared hysterical.
The next day Mrs. G. B. attempted to check the victim physically, but the victim would not allow it. This continued on into the afternoon, and the victim was eventually taken to Mrs. C. B.'s house. Mrs. C. B. was able to persuade the victim to let her examine her, and she described her vagina as opening to the "size of a quarter," was raw and irritated. The victim was frightened and hysterical. She also showed her aunts and mother the Playboy magazine Alfred had produced and displayed in the G. B. home the day he raped her.
On May 2 she was taken to the Forrest General Hospital and seen by William E. Walker, M. D., the emergency room physician, the victim would not permit him to make a pelvic examination. She did tell Dr. Walker that she had been at home, that a friend of her aunt's had come into the house and asked to borrow some salt, and then grabbed her and put a gag around her mouth and raped her.
The victim was taken the next day to Hilda Jane Edwards Magee, M. D., a gynecologist and obstetrician. She was frightened and upset, and would not allow a thorough pelvic examination. Dr. Magee was able to observe, however, that her vaginal opening was stretched more than what would be expected in an eleven-year-old female who was not active sexually. Ordinarily the hymen is closed. She was of the opinion the victim had been sexually active. The victim did not permit Dr. Magee to
insert a cotton swab for a smear.
H. Lamar Gillespie, M. D., also a gynecologist and obstetrician, saw the victim on May 16. She came to him having abdominal pain. He, too, was unable to complete an examination of the victim because she was upset and crying. Dr. Gillespie said the vaginal opening in an eleven-year-old child was variable. An enlarged opening could be the way she was born, caused by sexual intercourse, or an object inserted in the vagina.
Mrs. Valmena Smith Blackmon, a speech pathologist in the victim's school, had the victim in her class. On May 20 she noticed that the victim appeared dazed, and began to cry. Mrs. Smith asked her if she wanted her to get Mrs. Downey, but the victim did not. Instead, the victim began writing, and Mrs. Smith did not disturb her. When she had finished she handed it to Mrs. Smith. The note implicated Leatherwood having threatened her, that she was ashamed that no one believed her, and that she was leaving.
Linda Moore, a children's service specialist with the Pine Belt Mental Health and Retardation Services in Hattiesburg, saw the victim at the end of May, and had nineteen sessions with her, running through June. When she first saw the victim, she was running through the halls, crying. The victim asked Moore why she was laughing at her. She told Moore that she was a man dressed like a woman. The victim would stare into space, and Moore thought she had a reactive psychosis precipitated by stress. At the end of the sessions she had improved.
At 8:00 a.m. on May 3 Robert Neal (Bob) Hopkins, a detective with the Hattiesburg police department, questioned Leatherwood in his office. Only the two were present. Hopkins read the Miranda warning to Leatherwood, who admitted that he had pinched the victim "on the butt and said dirty words to her," but no more. Asked if he would take a polygraph, Leatherwood refused, saying he knew he could not pass it.
Hopkins then asked Leatherwood if he would give him a statement "as to what he had told me" and Leatherwood said, "he thought he might ought to talk to a lawyer first." He questioned him no further.
Leatherwood was taken before a magistrate that day who entered two orders, both dated May 3, one appointing Jefferson Blakeley Stewart, the county public defender, to represent him, and the other finding that Stewart had been appointed to defend him, that he was charged with capital rape, and that he had been
advised in open court that he was not required to make any statements, that he had a right to counsel, and had the right to communicate with counsel, family or friends, and a right to a preliminary hearing.
At 10:00 p.m. on May 3 Leatherwood was questioned by Jimmy Dale Williams, a detective lieutenant with the Hattiesburg police department. Williams again gave Leatherwood the Miranda warning, and Leatherwood signed the form acknowledgement. Following this Leatherwood gave a confession to having sex with a the victim about a year previously, which was incorporated in a written statement he signed. Aside from the confession reduced to writing, he admitted verbally to having sex with the victim three or four times. This statement was notarized by Hedy Lamar Keyes, deputy clerk with the police department.
The grand jury of Forrest County indicted Leatherwood for forcible rape of the victim, in violation of Miss. Code Ann. 97-3-65 (1). Trial began January 27, 1985. At trial he was represented by John Anderson, a successor county public defender to Stewart.
At trial the victim testified that on the afternoon of March 13, 1985, she had gone to Mrs. G. B.'s home, and was there alone, playing with a kick ball. Leatherwood came to the house and asked to borrow some salt. While she was in the kitchen filling a cup with salt, Leatherwood went into the bathroom and the boys' room. When Leatherwood emerged from the room, the victim had kicked the ball under the kitchen table and gone under it to retrieve it. Leatherwood kicked the victim in the back, then tied a blue bandanna around the victim's mouth and then tied her hands to the kitchen table leg. Leatherwood then showed the victim a picture in the "Playboy book" of a naked woman holding her "private parts." Leatherwood then pulled the victim's pants and underpants to her ankles and his pants to his knees. He then put his private parts in her private parts and started going up and down on her. Mrs. G. B. drove up, and Leatherwood said, "Oh, s---" and "I'll finish later." He cut the string from the victim's hands with scissors, and pulled up her pants and his pants. He told the victim he would cut her private parts and her mama's throat if she told. He then left through the back door.
The victim went into the bathroom to wipe the tears from her eyes. She did not tell Mrs. G. B. or any of her family about the assault.
The facts concerning the victim were then related by her
family and kin, and by her teachers as above set forth.
Leatherwood's counsel objected to the admission of the victim's statements to third parties. He also objected to the admission of Leatherwood's statements to the police officers, and the circuit judge conducted a hearing in chambers to determine their competency.
Hopkins, Williams and Keyes all testified that the statements Leatherwood had given were free and voluntary, Hopkins and Williams testified he was fully warned as to all Miranda rights. The forms Leatherwood signed contain the entire Miranda litany. Williams testified that he was unaware Hopkins had questioned Leatherwood early that day, and did not know Leatherwood had requested a lawyer.
Leatherwood's counsel called Stewart as a defense witness in the competency hearing. Stewart had a vague recollection of having conferred with Leatherwood in jail at one time. He recognized the May 3, 1985, court order appointing him as attorney for Leatherwood. As best he could recall, he had been informed that Leatherwood had given a statement to the police, and he did "believe" Leatherwood told him that he had given a statement.
Stewart said it was his practice to warn clients not to say anything. He also said that after giving that advice clients would frequently give a statement to the police, anyway.
Leatherwood did not testify before the court in chambers.
The defense objected to the statements, arguing they were given in violation of Leatherwood's Sixth Amendment right to counsel. The circuit judge ruled that the confessions were competent evidence to be considered by the jury.
The State rested, however, without offering them into evidence as part of their case-in-chief.
During trial the defense went to the G. B. home and took pictures of the kitchen table. Mrs. G. B. was called as a defense witness to establish the difficulty in Leatherwood having committed the rape as the victim described. As might be surmised from such a tactic, Mrs. G. B. made a good witness for the State on cross-examination.
Dr. Gillespie was then called as a witness, testifying as above related.
Leatherwood then took the stand in his own defense, and on
direct examination denied having had sex with the victim on March 13, 1985. It was apparently the view of Leatherwood's defense counsel that the state's case depended upon whether or not the rape in fact occurred on March 13, 1985.
On cross-examination Leatherwood denied that he had ever had any sexual intercourse with the victim. He was cross-examined at length about his statements to the officers. He admitted the statement he had made to Hopkins. He admitted he was taken before a judge, that the judge read him his rights, and that a lawyer had been appointed for him, who was there in county court with him. The form Miranda acknowledgement Leatherwood had signed before Hopkins was admitted into evidence.
As to Williams' statement, Leatherwood testified that Williams had given him the Miranda warning and that he had waived his rights. He then testified that when Williams questioned him he denied having had sex with the victim until Williams told him:
A. Well, he come [sic] - when he come and introduced hisself [sic] to me and I introduced myself to him, and he said that he'll be working, you know, on this case and he told me that I can get thirty years in prison if I didn't tell him, you know, that I raped her. See I was telling him at the time that I didn't rape her and he said I can get thirty years for saying that, that I didn't rape her.
Q. You could get thirty years for saying you didn't rape somebody?
A. Yes. That's what he told me.
Q. You mean to tell me he was telling you if you don't rape somebody you just get thirty years?
A. He told me that I could get thirty years or he'll make a deal with me. He'll give me thirty years or two weeks in jail.
Q. Or two weeks in jail? So you get thirty years if you don't rape somebody, right?
Q. And you get two weeks if you rape somebody, is that ...