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Martin v. State

Court of Appeals of Mississippi

November 6, 2018


          DATE OF JUDGMENT: 06/28/2017






          IRVING, P.J.

         ¶1. Jeffery Martin[1] was convicted of one count of gratification of lust following a jury trial in the Circuit Court of Rankin County, Mississippi, and was sentenced to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC). Martin appeals, alleging ten issues: (1) the assistant district attorney (ADA) made a blatantly false statement during closing arguments; (2) the court erroneously excluded a video recording of a forensic interview conducted at the Child Advocacy Center (CAC); (3) the court erroneously refused to allow his witness, Sherry Martin, to testify; (4) the court erroneously refused three of his proposed jury instructions; (5) the court erroneously denied his motion for mistrial after prosecution witnesses, Investigator Anthony Joseph DiMartino IV-and, later, Deputy Charles Beemon-commented on his post-Miranda[2] behavior; (6) the State failed to disclose prior to trial that the victim was in special-education classes and potentially autistic; (7) the court erroneously denied his motion for a mistrial "after a number of the venire persons fled the courtroom in tears"; (8) the court erroneously denied his motion for a mistrial after it separated the jury foreman from the rest of the jury for a period of time after the jury announced that it had reached a verdict; (9) the court erred in denying his motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; and (10) the cumulative errors warrant a reversal. Because we find no reversible error, we affirm.


         ¶2. Sometime in late July 2016, M.G.[3]-the eleven-year-old female victim in this case-asked her mother, Amanda, how a person gets pregnant and where the "white stuff" comes from. Concerned, Amanda asked M.G. where she had received this information. M.G. replied that she had learned it from her grandfather, Martin. When Amanda questioned M.G. further, M.G. went on to describe a sexual encounter involving Martin that took place during the weekend of July 1-2, 2016, when M.G. was staying at Martin's house. Amanda immediately called her sister, Brandy, to ask if Brandy's fourteen-year-old daughter, J.M., had ever reported a similar incident. J.M. admitted to Brandy that on one occasion several years prior, Martin had molested her. Brandy conveyed this information to Amanda, and Amanda promptly reported M.G.'s story to the police. Investigator DiMartino with the Rankin County Sheriff's Department arranged for M.G. to be interviewed at the CAC for suspected child abuse.

         ¶3. On August 4, 2016, M.G. was interviewed by Charlene Barnett, a forensic interviewer with the CAC. Investigator DiMartino observed the interview and, as a result of information conveyed therein, obtained a warrant for Martin's arrest. Martin was arrested shortly after the interview and was transported to the Rankin County Jail by Deputy Chase Beemon. He was indicted on October 18, 2016, for one count of sexual battery in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014), and for two counts of gratification of lust in violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2014): one count involving M.G. and one count involving J.M. The count of gratification of lust involving J.M. was severed from this case.

         ¶4. During a pretrial tender-years and 404(b)[4] hearing on April 17, 2017, Amanda testified regarding her daughter's disclosure of Martin's alleged abuse. She stated that M.G. had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). She also stated that M.G. was enrolled in special-education classes at her school.

         ¶5. Also during the pretrial hearing, Barnett testified regarding the disclosures made by M.G. during the CAC interview. The State introduced into evidence a full and un-redacted version of the video recording of the CAC interview. On cross-examination, Martin's counsel questioned Barnett about the fact that during M.G.'s interview, M.G. had not only described sexual abuse inflicted by Martin, but also reported having had nonconsensual sexual encounters with her two minor male cousins in the months preceding the interview. The State objected to references to sexual abuse by M.G.'s cousins on the basis that her sexual history with anyone other than Martin was irrelevant. Martin's counsel argued that the information was relevant because it could provide an alternative explanation for how M.G. learned about pregnancy and the "white stuff." The court agreed that the information that was sought to be elicited by Martin's counsel was relevant but, without ruling on the admissibility of either the video-recorded interview or the evidence regarding the sexual abuse inflicted by M.G.'s cousins, instructed defense counsel to move on. At the conclusion of the hearing, the court stated that it would take the matter under advisement and inform the parties of its ruling after reviewing the video-recorded interview.

         ¶6. Trial was scheduled to begin on May 2, 2017. On that day, immediately prior to the commencement of trial proceedings, the State again requested that the court prohibit Martin's counsel from referencing M.G.'s sexual history with her cousins. Martin's counsel argued that the State should have filed a motion in limine if it wanted to keep that information out, and that the time had passed to file such a motion. The court, in response, ruled:

If [the CAC video-recorded interview is] played, and there's some statement made, obviously they're going to be able to cross-examine her on those statements. Those statements will be in, but if you don't play the tape, no notice that I've seen has been filed under [Rule] 412 [of the Mississippi Rules of Evidence], and because no notice is filed, I won't allow any of that testimony to come in.

         At this point, the State offered a new, edited version of the CAC video-recorded interview, wherein the portions of the interview in which M.G. refers to sexual acts involving her cousins had been redacted. Martin's counsel objected to the introduction of this edited video recording and argued that he had not filed notice under Rule 412 because he had relied on the State's representations during the pretrial-motion hearing that it was going to play the full, unedited version of the video recording at trial. Thus, Martin's counsel argued that he had deemed it unnecessary to file notice under Rule 412, because the information regarding sexual abuse inflicted by M.G.'s cousins was going to come in anyway through the State's introduction of the full, unedited video recording. The court denied the State's redacted version of the video recording on the basis that it was not a complete representation of M.G.'s interview. It also rejected Martin's argument and offered the following explanation: "The State saying it [would offer the entire video] and the State doing it, that's just a possibility that the State would play it. . . . Notice would still have to be filed . . . on this." However, the court again declined to make a final decision regarding admission of the original, unedited video recording until it was offered during the trial.

         ¶7. Following this discussion, the court began the venire process. The court informed the prospective jury members that the case involved sexual battery and gratification of lust, and one of the prospective jurors announced that she would not be able to sit as a juror because she had two granddaughters who had been sexually assaulted. The court excused her. Martin moved for a mistrial, and the court called for a bench conference. While the attorneys were at the bench, another venire member apparently stood up and left the courtroom "in tears," without being formally excused. Again, Martin moved for a mistrial, which the court denied. The court stated that it would not require that venire member to serve on the jury in the event that he or she returned. Martin maintains in his brief on appeal that a total of four members of the venire cried and were ultimately excused from serving on the jury.

         ¶8. After jury selection and the commencement of trial, M.G. was the first to testify. She stated that, during the weekend in question, she had slept in Martin's bedroom with him. According to M.G., before going to sleep, Martin put her hand on his penis and instructed her to "[g]o up and down with [her] hand." Martin then instructed her to remove her clothes, at which point he also undressed and "got on top of [her]" so that his penis was touching her vagina. M.G. testified that Martin also touched her vagina with both his hand and his tongue. During this sexual encounter, Martin told M.G., "don't tell nobody," and remarked, "we're not supposed to be doing this." Martin also told M.G. that "the white stuff that comes out of him makes you pregnant." At some point, Martin got out of bed and went into the bathroom, and from where she was lying in bed, M.G. witnessed Martin masturbate and ejaculate. M.G. testified that a similar incident also occurred the next morning: Martin again got on top of her and positioned himself so that his penis was touching her vagina.

         ¶9. Barnett testified as to the CAC forensic interview that she conducted with M.G. During cross-examination, Martin's counsel sought to play for the jury the full, unedited video recording. The State objected, reasserting its argument that Martin had not filed notice as required by Rule 412, and again offered its redacted version of the video recording. Martin's counsel again argued that he had not filed notice under Rule 412 because he had only recently learned that the State sought to offer a redacted version of the video recording and that he had relied on the State's representations at the pretrial hearing that it would be offering the full, unedited version. Martin's counsel further contended that he would have filed notice under Rule 412 if the State had supplied its redacted version of the video recording during the pretrial hearing when the issue was initially discussed. The court finally made the decision to exclude the video recording in its entirety and held:

[T]here was no notice filed, so there was no intent or at least proposal from the Defense to bring up anything about the victim's past behavior that was on that - - on the video. I do not think the redacted video is admissible for that reason, but I also think that we've got the CAC counselor . . . . Any statements that would be admissible can be made by her. Under the tender years [doctrine, ] any statements made by the victim about any prior sexual conduct is not admissible since no notice was filed. So the full video cannot be shown, and the redacted one is not going to be shown either.

         ¶10. Next, Investigator DiMartino testified that he observed the interview conducted by Barnett at the CAC and immediately obtained a warrant for Martin's arrest upon its conclusion. The following conversation took place:

[STATE]: Following [Martin's] arrest, was he booked in at the sheriff's department?
[DIMARTINO]: Yes. He was transported to the . . . sheriff's office. I requested that the patrolman who stopped him bring him to the criminal investigations division for me to speak with him. Which once they went over his Miranda rights, I asked him if he would like to speak to me, which he advised he did not wish to.

         At this point, Martin's counsel objected on the basis that Investigator DiMartino had made an impermissible comment regarding Martin's behavior after being read his Miranda rights and moved for a mistrial, which the court denied.

         ¶11. Deputy Beemon with the Rankin County Sheriff's Department, who transported Martin to the sheriff's office on the day that he was arrested, testified next. The following conversation took place during the prosecutor's direct examination of Deputy Beemon:

Q. And were his Miranda rights provided to him by you?
A. Yes, sir.
Q. And where was he at when you gave him his Miranda rights?
A. In the rear of my marked patrol unit.
Q. And after his Miranda rights were read to him by you, what, if any, statements did he make to you or in your presence? After you read him his Miranda rights?
A. During the transit to the Rankin County Jail, you could hear Mr. Martin from the rear of my patrol car more or less praying, you know, stating, you know, "Lord, please be with me." You could hear him asking for forgiveness. Just pretty much praying.

         ¶12. The State also offered testimony from Amanda. She reiterated that M.G. had ADHD, that she was in special-education classes in school, and that "her school [had] recommended that [M.G.] get tested for autism." Amanda went on to relate for the court how M.G. had begun asking her questions of a sexual nature, which is how she learned about Martin's alleged molestation of her daughter. Amanda testified that she cut off contact with her father; when she went to pick up some things of hers that had been at his house, her father had attached a note to her belongings reading, "Thank God for he forgives us for our sins. Glory be to Jesus. Love you." During Amanda's cross-examination, the following conversation took place:

Q. [Amanda], are you worried about what's going to happen with all of Mr. Martin's things? Your father's things?
A. No, I'm not.
Q. Isn't it true that you made an attempt to get some of his stuff or to have some of it protected?
A. Protected? I don't understand what you're asking me.
Q. Have you had a conversation with Sherry Martin, [Martin's] estranged wife?
A. Yes, I did.
Q. And didn't you ask her not to divorce him so that she [sic] could be protected and get something out of his estate?
A. I didn't ask her anything.
Q. You didn't ask her that?
A. No.
Q. You're denying that today?
A. I did not ask her for anything. I do not want any of his stuff.
Q. But did you have a conversation with [Sherry]?
A. Yes, I did.

         ¶13. At the conclusion of the State's case-in-chief, Martin's counsel informed the court that he intended to call Sherry, Martin's estranged wife, to testify. The State objected, arguing that Sherry's testimony was irrelevant because it involved phone calls with Amanda that had nothing to do with the sexual abuse allegations. Martin's counsel replied that Sherry's testimony was relevant because it went to the defense's theory that Amanda and her sister, Brandy, had constructed a scheme to obtain their father's property. The State then cited Rule 608 of the Mississippi Rules of Evidence to argue that extrinsic evidence is not admissible to prove specific instances of conduct for impeachment purposes. The court held in favor of the State, holding that Sherry's testimony could not survive Rule 608 and was irrelevant; as such, it was inadmissible. However, the court did allow Martin to proffer Sherry's testimony at the conclusion of trial, during which she testified that she had previously spoken to Amanda on the phone and that Amanda had expressed concerns about what portion of her father's property she would receive if he was sent to jail.

         ¶14. Once the defense rested its case, the court considered the jury instructions. It refused instructions D-1, D-2, and D-3 on the basis that the information contained therein had already been sufficiently covered in other instructions. Both parties then made their respective closing arguments. During the State's closing argument, the ADA made the following statement: "[M.G.] got up here in front of you and discussed her first sexual encounter, and it was with her grandfather." Martin's counsel objected. The court sustained the objection and, at a bench conference, told the ADA, "That's not true. You stated that this was her first sexual-that was never in evidence. There's no way of knowing that. You can't state that." Martin's counsel moved for a mistrial, which the trial court denied.

         ¶15. At the conclusion of closing arguments, the jury retired for deliberations. After some period of time, the jury announced that it had reached a unanimous verdict; however, when the jury returned to the courtroom, the following conversation took place between the court, the foreman and another juror:

Q. Do you have a unanimous verdict? Sir, are you the foreman?
A. Yes.
Q. You have [a] unanimous ...

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