Before McMILLIN, P.j., Diaz, And King, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 02/09/1996
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CAPITAL RAPE: SENTENCED TO SERVE 25 YEARS PLUS COSTS OF COURT
DISPOSITION: REVERSED AND REMANDED
¶1. Jerry Wiggins was convicted of capital rape and sentenced to twenty-five years in prison. From this conviction, he perfects his appeal to this Court and argues (1) that the evidence was insufficient to support a guilty verdict and that the jury's verdict was against the overwhelming weight of the evidence, (2) that his attorney committed plain error by failing to have exculpatory documents admitted into evidence, and (3) that the trial court erred in allowing testimony based upon a discovery violation. Finding cause to reverse due to the discovery violation contained in Wiggins's third assignment of error, we reverse and remand for a new trial in accordance with this opinion.
¶2. Jerry Wiggins was indicted for the capital rape of his stepdaughter V.G. from the time that she was eight years old continuing until she was thirteen years of age. According to V.G., the abuse began one night when she asked Wiggins to help her with a homework assignment. V.G. testified that after Wiggins helped her with her school work, he picked her up, put her on a table, and inserted his penis into her vagina. Shortly thereafter, V.G.'s mother walked into the room. Feeling suspicious, she asked her daughter what Wiggins had done to her. V.G. admitted to her mother that Wiggins had raped her. V.G.'s mother then reported the rape to the authorities and took V.G. to the Claiborne County Hospital. The charges were later dropped at the recommendation of V.G.'s mother.
¶3. According to V.G., Wiggins continued to rape her, and in 1993, V.G.'s mother again filed charges against Wiggins. However, due to constant teasing and ridicule by her classmates at school, V.G. asked her mother to drop the charges against Wiggins. V.G.'s mother filed charges against Wiggins a third time in January of 1995, and he was subsequently indicted for raping V.G. Following a jury trial, Wiggins was convicted of capital rape of a child under the age of fourteen. It is from this conviction that Wiggins now brings forth his appeal to this Court.
DID THE TRIAL COURT ERR IN ALLOWING TESTIMONY BASED UPON ADISCOVERY VIOLATION?
¶4. The trial transcript prepared in this case reveals three different documents upon which Dr. Barnes relied while testifying. The first document was his initial statement regarding his examination of V.G. The second document was the Report of Suspected Abuse of a Neglected Child which the welfare department required Dr. Barnes to prepare. Both of these documents stated that no semen was present in V.G.'s vagina. ...