JEFFREY MARTIN A/K/A JEFFERY EARL MARTIN A/K/A JEFFERY E. MARTIN A/K/A JEFFERY MARTIN APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/28/2017
FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT TRIAL JUDGE:
HON. STEVE S. RATCLIFF III
ATTORNEYS FOR APPELLANT: WILLIAM ANDY SUMRALL THOMAS P. WELCH
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: MICHAEL GUEST
IRVING, P.J., CARLTON AND GREENLEE, JJ.
Jeffery Martin 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 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
Sometime in late July 2016, M.G.-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.
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.
During a pretrial tender-years and 404(b) 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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
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
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?
Q. You're denying that today?
A. I did not ask her for anything. I do not want any of his
Q. But did you have a conversation with [Sherry]?
A. Yes, I did.
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.
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.
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?
Q. You have [a] unanimous ...