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Bailey v. State

January 14, 1999

THOMAS DAVID BAILEY
v.
STATE OF MISSISSIPPI



Before Pittman, P.j., Smith And Mills, JJ.

The opinion of the court was delivered by: Pittman, Presiding Justice,

DATE OF JUDGMENT: 09/22/1997 TRIAL JUDGE: HON. JOHN H. WHITFIELD COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 1/14/99

¶1. Thomas David Bailey ("Bailey") was indicted for three counts of felony child abuse by the Grand Jury of the Circuit Court of Hancock County on May 12, 1997. The State proceeded to trial on Count I only which stated that:

Thomas David Bailey in Hancock County, Mississippi, on or about October 10, 1996, did willfully, unlawfully, feloniously and intentionally, torture Korey Jarrach, a child the age of four years at the time in question, by using his fingers, hands and/or a wooden spoon to strike, pull and beat the body, more particularly the penis of said Korey Jarrach...

The jury returned a verdict of not guilty of felony child abuse, but guilty of the lesser included offense, misdemeanor child abuse. Bailey was subsequently sentenced to serve a term of one (1) year in the custody of the Sheriff of Hancock County and was fined $1000.

¶2. From the denial of his Motion for JNOV or new trial, Bailey appeals his conviction and sentence and assigns as error the following for this Court's review:

I. THE TRIAL COURT ERRED BY FAILING TO VOIR DIRE FIVE-YEAR OLD KOREY JARRACK TO DETERMINE COMPETENCY.

II. THE TRIAL COURT ERRED BY EXCLUDING THE PUBLICFROM THE COURTROOM FOR THE TESTIMONY OF KOREY JARRACK.

III. THE TRIAL COURT ERRED BY ALLOWING THE INTRODUCTION OF INADMISSIBLE HEARSAY EVIDENCE.

IV. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION TO DISMISS, MOTIONS FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

V. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHTOF THE EVIDENCE.

STATEMENT OF THE FACTS

¶3. On October 10, 1996 Renette Hill left her two children, Korey and Justin, with their regular babysitter, Emelda Miles, whom the children referred to as "Miss Sissy". Hill then went to the Hancock Medical Center for outpatient surgery. At the request of Hill, Miles dropped the children off at Bailey's home around 6:00 p.m. where they were to spend the night. According to Hill, she and Bailey were friends and her children had stayed with Bailey and his son, Matt on two or three occasions.

¶4. The next morning, Hill arrived to pick the children up around 7:00 a.m. Bailey told Hill that Korey had a bruise on his cheek from falling in the bathtub the night before. Hill then drove the children to school.

¶5. The regular babysitter, Miles, picked Korey and Justin up from school around 2:30 p.m. Korey was unhappy when he was picked up and was complaining that he did not want to go to school anymore. Korey told Miles that someone had pulled on his "weenie" and that it was hurting. Miles assured Korey that she would look at it when they got home. Upon arrival at Miles' home, Miles pulled Korey's pants down to see what was wrong with him. According to Miles, Korey was in pain and was "hollering because he couldn't stand for the pants or anything, you know, to touch him". Miles and her husband noticed that Korey's penis was bruised and swollen.

¶6. Miles then telephoned Hill at work and asked her if she should take Korey to the hospital. Hill inquired as to whether it could wait until she got home from work. Miles told Hill that she would call her back. Miles' husband did not think that they should wait to take Korey to the hospital, so Miles, her husband, Korey and Justin headed to the hospital. Once Hill arrived at the hospital, the Mileses left.

¶7. Korey, five years old at the time of trial, testified after the trial court excluded the public from the courtroom. Korey stated that he took a bath at Bailey's home on the night of October 10th. He fell getting out of the bathtub and hurt his cheek and back. Korey testified that later that night he wet his pants, and that Bailey whipped him with a wooden spoon on his "weenie" and underneath his "weenie" on his "nuts". Korey stated that he learned the word "nuts" from Bailey. Korey also testified that on that same night, Bailey hung him on a hook in the living room and put him in the clothes dryer. Korey stated that October 10th was the only time that he had stayed at Bailey's home.

¶8. Justin, Korey's seven year old brother, also testified at trial. He remembered going to Bailey's home on October 10th. Justin testified that he also received a spanking from Bailey that night with a wooden spoon. Justin did not see Korey get a spanking, but he heard Korey screaming, "Ouch" approximately five times. Justin did not remember Bailey hanging Korey on a hook or putting him in the dryer on October 10th.

¶9. Dr. Carolyn Gerald was the emergency room physician who examined Korey on October 11th. She testified that when Korey came in to the hospital he was crying and very upset. She discovered bruising on his face, buttocks, inner thighs, penis and other genitalia. Dr. Gerald testified that the injuries would have been painful, and that they had probably occurred within the last 12 to 24 hours. At first Korey explained that he had fallen in the bathtub, but Dr. Gerald did not think the bruises were consistent with that type of fall. Korey then told Dr. Gerald that Bailey had hit him with a wooden spoon. Dr. Gerald stated that Korey's injuries were consistent with being struck by a wooden spoon. Dr. Gerald was worried that Korey might get an infection and prescribed an antibiotic to prevent one.

¶10. Bailey testified in his own defense. He confirmed that on October 10th, Miles dropped Korey and Justin off at his home around 6:00 p.m. Korey, Justin, and Bailey's son, Matt, had a snack between 7:00 and 7:30, and then Bailey told them to take their baths. Korey took his bath first. As Bailey made his way back to his son's bedroom to check on Justin and Matt, he saw that Korey was starting to get out of the bathtub. He saw Korey put his foot on the ledge, and advised Korey to be careful not to slip. At about that same time, Korey slipped, fell and screamed. Bailey got Korey out of the bathtub, dried him off, took him to the kitchen and put some ice on his eyes. Bailey noticed a bruise on Korey's cheek, but did not notice any other bruising. Bailey testified that he did not specifically look at Korey's pubic area or buttocks to determine if there was any other bruising.

¶11. Later that night, Korey and Matt were lying on a blanket in the living room watching television when they fell asleep. On cross-examination, Bailey testified that Korey wet his pants twice that night. Bailey denied spanking Korey with the wooden spoon on October 10th, although he admitted that he had done so once before. Bailey testified that he uses the wooden spoon "as a form of discipline as a school would use a paddle or a parent would use a belt or any other thing..." Bailey also denied that he hung Korey on a hook or placed him in the clothes dryer.

¶12. The defense presented two character witnesses on Bailey's behalf and then rested. The State then finally rested.

¶13. The jury returned a verdict of not guilty of felony child abuse, but guilty of the lesser included offense of misdemeanor child abuse. Thereafter, Bailey was sentenced to serve a term of one (1) year in the custody of the Sheriff of Hancock County and fined $1000.

DISCUSSION OF LAW

I. THE TRIAL COURT ERRED BY FAILING TO VOIR DIRE FIVE-YEAR OLD KOREY JARRACK TO DETERMINE COMPETENCY.

¶14. Bailey contends that the trial court erred by refusing to voir dire Korey on his competency before allowing him to testify. The defense objected before Korey testified and asked the court to "qualify this witness to whether he knows what the truth is". The trial court overruled the objection citing Rule 601 of the Mississippi Rules of Evidence, which provides that every person is competent to be a witness unless the person falls within one of the exceptions to the rule, which in this case do not apply. Miss. R. Evid. 601.

¶15. Bailey's primary contention is that Korey's testimony was at times inconsistent with Hill's and Justin's. He also asserts that Korey had trouble remembering events as well as difficulty understanding and answering questions intelligently.

¶16. Bailey, citing Bandy v. State, 495 So. 2d 486, 492 (Miss. 1986), argues that where the testimony of a child of tender years is offered as evidence in a trial, the child must first be examined by the trial Judge to show that the child has a comprehension of past events and a moral appreciation of the truth.

¶17. The State asserts that the rule in Bandy was the rule prior to the adoption of the Mississippi Rules of Evidence in January, 1986 and that under Rule 601 no such showing was required. It cites Ryan v. State, 525 So. 2d 799 ( Miss. 1988) to support its position. In Ryan, the appellant argued that the trial court had erred in allowing a six year old to testify. This Court held that:

"Under the new Mississippi Rules of Evidence, Rule 601, involving the competency of witnesses, reads as follows, "Every person is competent to be a witness except as restricted by Miss. Code § 13-1-5 (competency of spouses) and § 13-1-11 (persons convicted of perjury or [subornation] of perjury), or by these rules." With this rule and code section in mind, the trial court conducted a pre-trial competency hearing for Alicia.

Noting the trial court's pre-rule procedure in examining the child, the trial court made a finding supported by the record that the child had the capacity to understand the questions, frame intelligent answers, and had a ...


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