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Whittaker v. State

Supreme Court of Mississippi

January 24, 2019

WILLIAM LEE WHITTAKER, II a/k/a WILLIAM L. WHITTAKER, II a/k/a WILLIAM LEE WHITTAKER a/k/a WILLIAM WHITTAKER
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 10/18/2017

          GEORGE COUNTY CIRCUIT COURT HON. DALE HARKEY TRIAL JUDGE

          TRIAL COURT ATTORNEYS: DAVID CARSON FUTCH WILLIAM CARL BARRETT JUSTIN MICHAEL LOVORN CAROLYN ANN LEWIS

          ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: ANTHONY N. LAWRENCE, III

          BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.

          ISHEE, JUSTICE.

         ¶1. William Whittaker was convicted of four counts relating to the sexual abuse of his six- year-old daughter, Betty.[1] On appeal, Whittaker claims he received constitutionally ineffective assistance of counsel because his defense attorney did not insist on certain redactions from the recording and transcript of his partial confession, in which Whittaker refused to take a polygraph test and discussed a prior sex-offense conviction. But the exhibits used at trial were redacted; it appears Whittaker's appellate counsel has confused them with the unredacted exhibits admitted at the suppression hearing. Whittaker also contends his partial confession should have been suppressed as involuntary, but his theory on appeal is entirely different from the one he advanced at trial and is therefore procedurally barred. We affirm Whittaker's convictions and sentences.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Betty's mother and Whittaker never married, and they separated in 2011 when Betty was about three years old. At first, Betty lived with Whittaker and his parents; she and Whittaker shared a bedroom. Betty went to live with her mother shortly before she started kindergarten in 2012. From that point, Betty stayed with Whittaker two or three weekends a month. She continued to sleep in Whittaker's bedroom when she stayed with him.

         ¶3. In September 2014, when Betty was six years old, she mentioned to her mother that she had been bleeding from her vagina. When Betty's mother tried to investigate, Betty screamed and resisted. Her mother saw this as very unusual behavior, which led her to ask Betty whether anyone had been touching her. Betty initially denied any sexual contact, but eventually she agreed to tell "Daddy's secret." Betty subsequently described various acts of sexual abuse to her mother and, later, to a forensic interviewer. She ultimately testified at trial to substantially the same acts.

         ¶4. After Whittaker was arrested, he was interviewed by police investigators. The interview lasted about an hour and a half. The circumstances surrounding Whittaker's statement will be discussed more thoroughly below, but ultimately Whittaker admitted he had, on two occasions, touched his daughter's genitals with his hands in a sexual manner. He also accused the child of having tried to initiate a sexual encounter by sitting on his face while he was sleeping and telling him to kiss her genitals.

         ¶5. Whittaker was charged with one count of gratification of lust and three counts of sexual battery, which alleged separately that Whittaker had penetrated his daughter's vagina with his fingers, tongue, and penis. He was convicted on all counts at trial and was sentenced to thirty years on each of the sexual battery counts, to be served day for day, and to ...


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