IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-KA-01318-SCT
ERIC TATE
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/21/2008
TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SANFORD E. KNOTT
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/29/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLSON, P.J., DICKINSON AND PIERCE, JJ.
CARLSON, PRESIDING JUSTICE, FOR THE COURT:
¶1. Eric Tate was convicted of one count of sexual battery and two counts of child
fondling, with the acts having been committed when his female victim was nine years and
ten years of age. The trial judge sentenced Tate to thirty years imprisonment on the sexual-
battery conviction and ten years imprisonment on each of the child-fondling convictions, to
run consecutively. From the Amite County Circuit Court judgment of conviction and
sentence, Tate appeals to us. Finding no reversible error, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. Eric and Curtileniea Tate were married in 2001, and from that union, two children
were born. Curtileniea brought to this marriage her child Brittany,1 who was born August
14, 1996. However, Brittany had lived with her maternal grandparents, Rosie and Curtis
Holloway, since shortly after her birth. Eric, Curtileniea, and their two sons lived
approximately one mile from the Holloways and Brittany in rural Amite County, and Brittany
visited in the Tate home on a regular basis, sometimes spending the night on weekends. Eric
Tate was employed by Sonoco Catering Company as an executive steward (galley cook),
working on offshore rigs. Throughout his marriage to Curtileniea, Tate’s work schedule
required that he work offshore for two weeks at a time, with one week off at home in Amite
County.
¶3. During May or June of 2007, Rosie Holloway became suspicious about Tate and
Brittany because Tate was constantly phoning, wanting to talk with Brittany. Normally,
these calls were made while Tate was either on the job or traveling to work. On a Tuesday
in late July 2007, during one of these many phone conversations between Tate and Brittany,
Holloway, unbeknownst to Brittany, was standing so close behind Brittany that Holloway
could hear what Tate was saying to Brittany over the phone. Holloway heard Tate tell
Brittany “what to wear, and [Brittany] told him she wouldn’t wear those kind of clothes
anymore.” Holloway grabbed the phone from Brittany and hung up the phone as Brittany
ran into the bathroom. Holloway followed Brittany into the bathroom and asked her if Tate
1
This is a pseudonym. Since Brittany is the victim in this case, we will protect her
true identity due to the nature of this case.
2
“was touching her,” and Brittany began crying. Brittany finally admitted to Holloway that
Tate had been touching her, and Brittany further stated “but I am not doing anything. I
promise. I am not doing anything but he’s touching me.” At this point, Holloway called
Tate back on the phone and asked Tate if he was touching Brittany. Tate, who called his
mother-in-law “Ma,” kept saying, “Ma, Ma . . . Ma, Ma.” Holloway in turn said to Tate
“you’re a dirty dog,” and hung up the phone.
¶4. On the same day, Holloway got in touch with Curtileniea and informed her of
Brittany’s disclosure. When Curtileniea confronted Tate about what her mother had told her,
Tate “denied doing anything to [Brittany].” On Friday after the Tuesday phone call,
Holloway, Curtileniea, and Brittany traveled to the Amite County Sheriff’s Department and
talked with Deputy Sheriff William P. Vallely, who had more than thirty years experience
in law enforcement.2 Curtileniea informed Deputy Vallely that Tate was molesting Brittany.
Initially, Brittany was kept in another room while Curtileniea, with Holloway present,
informed Deputy Vallely of Brittany’s accusations.3 Vallely eventually brought Brittany into
the room and talked with her briefly in the presence of Curtileniea and Holloway. During
this conversation, Brittany, at Deputy Vallely’s request, wrote out a statement in her own
2
Deputy Vallely had retired as Chief Deputy of the Amite County Sheriff’s
Department in 2004, but continued to work on a part-time basis after his retirement.
3
Curtileniea testified during the defendant’s case-in-chief that it was her mother, Rosie
Holloway, who did all the talking with Deputy Vallely, and that she (Curtileniea) did not say
anything because she did not believe Brittany ’s allegations, and that Brittany “had confided
in my mother about this, not me.”
3
handwriting, describing what had happened between her and Tate. The statement, which was
offered into evidence as Exhibit 3 in Tate’s trial, described, in the words of a ten-year-old
girl, acts by Tate involving vaginal penetration of Brittany with his penis and Tate’s forcing
Brittany to touch his penis. In this statement, Brittany also wrote about Tate’s phone call
which Holloway had overheard. Brittany likewise included in her statement the fact that
after her mother, Curtileniea, learned of Brittany’s accusations, Curtileniea sided with her,
as opposed to Tate, and told Tate to get out of the house. Brittany signed this statement, and
Curtileniea likewise signed the statement.
¶5. At the conclusion of this meeting, Deputy Vallely contacted the Amite County office
of the Mississippi Department of Human Services (MDHS), which sent two case workers to
interview Brittany. After this interview, Curtileniea signed a criminal affidavit charging Tate
with “Molesting: 97-5-23.” 4 MDHS referred Brittany to Dr. Leigh Gray, a physician
specializing in obstetrics and gynecology in Brookhaven. On August 9, 2007, Dr. Gray saw
Brittany, took a history from her, and conducted a pelvic examination.5 Dr. Gray’s
4
This is the child-fondling statute. The affidavit Curtileniea signed charged, inter
alia, that Tate “did willfully, unlawfully and feloniously, being a person above the age of
eighteen (18) years, for the purpose of gratifying his lust or indulging his depraved,
licentious sexual desires, handle, touch and rub with his hands [Brittany ] a child under
sixteen (16) years of age . . . .” See Miss. Code Ann. § 97-5-23 (Rev. 2006).
5
Dr. Gray actually first saw Brittany on August 3, 2007, but because Brittany was
“uncomfortable” with the pelvic examination, the office visit was rescheduled for August
9, so that Brittany could then “be put to sleep so she wouldn’t be so uncomfortable with the
exam.”
4
examination of Brittany revealed “tears in her hymen which were consistent with evidence
of trauma.”
¶6. Eric Tate was indicted by the Amite County Grand Jury for one count of sexual
battery and two counts of child fondling. On May 20 and 21, 2008, Tate was tried before a
jury on all three counts of the indictment in the Circuit Court of Amite County, Judge Forrest
A. Johnson, Jr., presiding. Testifying for the State were Brittany, Dr. Gray, Deputy Vallely,
and Rosie Holloway. Testifying on behalf of Tate were Curtileniea Tate and Megan Grant.6
¶7. During the trial, in addition to the facts thus far depicted, Brittany testified that Tate
had begun touching her when she was seven or eight years old. According to Brittany, on
numerous occasions for more than one year, Tate had touched her on her breasts and in her
vaginal area. On several occasions, Tate also had inserted “a little green wiggle thing” into
her vagina. This item, which was described as resembling a writing pen, but in essence being
a vibrator, was discovered by Holloway and Curtileniea in their search of Tate’s room after
the molestation charges surfaced. Holloway and Curtileniea also discovered a pornographic
video in Tate’s room, but the trial judge excluded the video from evidence. Brittany likewise
testified that on at least one occasion, Tate had tried to put his “private part” inside her, but
“it wouldn’t fit.” After Tate tried to penetrate Brittany’s vagina with his penis, he had called
Brittany to the bathroom, where Tate had unbuttoned his boxer shorts, exposed his penis to
Brittany and told her that the white excretion on his penis was “cum stuff.” Brittany
6
Likewise, as with Brittany , this is a pseudonym. Megan was a high-school student
at the time of trial.
5
explained her failure to tell her mother about Tate’s abuse of her by stating that she was
afraid of Tate and felt that her mother would not believe her. In the end, Brittany’s opinion
that her mother would not believe her if she told her about Tate’s physical abuse of her
turned out to be prophetic.
¶8. By the time of Tate’s trial, Curtileniea had abandoned her daughter and returned to
Tate. Curtileniea testified that when the abuse charges had first surfaced, she had to make
a choice, and she chose to believe Brittany and to press charges because Curtileniea’s
mother, Rosie Holloway, was a strong-willed woman who always wanted to “control
everything and have her way.” Curtileniea offered at least two reasons why Brittany would
attempt to “frame” Tate with false charges of sexual abuse. First, according to Curtileniea,
Tate and Curtileniea had tried to discipline Brittany, and neither Brittany nor Holloway had
approved of their efforts. Likewise, Curtileniea stated that one day she had discovered $100
missing from her purse and when she asked Brittany about the missing $100, Brittany stated,
“I don’t have it. Eric may have it.” When Curtileniea had confronted Tate about the missing
cash, he had denied having it. Eventually, according to Curtileniea, Holloway had called and
said that Brittany had the $100. Curtileniea opined that this incident would be another reason
why Brittany might attempt to frame Tate for something he did not do. Finally, Megan
Grant, a witness for Tate, testified that Brittany had falsely accused Tate of molesting her
(Megan), and Megan denied that Tate had ever molested her. Thus, according to the defense
theory, if Brittany would falsely accuse Tate of molesting Megan Grant, then Brittany was
capable also of falsely accusing Tate of molesting her (Brittany).
6
¶9. At trial, the jury found Tate guilty on all three counts in the indictment. Judge
Johnson sentenced Tate to terms of imprisonment of thirty years on the sexual-battery
conviction and ten years on each of the two child-fondling convictions, with the sentences
to run consecutively. On July 29, 2008, the trial court entered an order denying Tate’s
motion for judgment notwithstanding the verdict or, alternatively, for new trial, and Tate
timely appealed to us.
DISCUSSION
¶10. Eric Tate assigns five errors which he states were committed by the trial court during
the course of his trial, and couches them as follows: (1) Whether the trial court erred by not
granting a mistrial when the prosecution commented on Tate’s right not to testify; (2)
whether the trial court erred by permitting prejudicial evidence to show “consciousness of
guilt;” (3) whether the trial court’s failure to examine individual jurors or grant a mistrial was
error when the jury panel was exposed to prejudicial information; (4) whether the evidence
“was not legally sufficient” to support the verdict; and (5) whether the trial court erred in
denying Tate’s motion for a new trial, given that the overwhelming weight of the evidence
favored Tate. We restate and combine these assignments of error for the sake of today’s
discussion.
I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO
GRANT A MISTRIAL AFTER THE PROSECUTOR
COMMENTED ON THE DEFENDANT’S RIGHT NOT TO
TESTIFY.
7
¶11. Tate did not testify in this case. Therefore, the trial court instructed the jury in writing
via Jury Instruction D-6 (Instruction No. 5), that the defendant had a constitutional right to
not testify, that the jury could not draw any inference from the defendant’s failure to testify,
and that the fact that the defendant did not testify should not in any way be considered by the
jury during the course of its deliberations.
¶12. An assistant district attorney conducted the first part of the State’s closing argument.
After the defendant’s closing argument, the district attorney conducted the final (rebuttal)
portion of the State’s closing argument. Early in his closing argument, the district attorney
argued to the jury that, because of the private nature of child sexual abuse, quite often it will
be “her word against his.” After two defense objections and two bench conferences, the trial
judge sustained the defense objection and, sua sponte, instructed the jury to disregard the
district attorney’s comments. Tate asserts that, notwithstanding the trial court’s sustaining
his objection to the prosecutor’s comments and informing the jury to disregard the comments,
the prosecutor was guilty of impermissibly commenting on his failure to take the witness
stand in his own defense in violation of his right to remain silent as guaranteed under the
Fifth Amendment to the United States Constitution and Article 3, Section 26 of the
Mississippi Constitution of 1890. Thus, Tate asserts that the trial court’s failure to grant his
motion for a mistrial was reversible error.
¶13. This Court’s standard of review on appeal in determining whether the trial court erred
in denying a motion for mistrial is abuse of discretion. Dora v. State, 986 So. 2d 917, 921
(Miss. 2008) (citing Pulphus v. State, 782 So. 2d 1220, 1222 (Miss. 2001)).
8
¶14. In considering issues regarding alleged improper opening statements and/or closing
arguments by attorneys, we recently stated:
Attorneys are allowed a wide latitude in arguing their cases to the jury.
However, prosecutors are not permitted to use tactics which are inflammatory,
highly prejudicial, or reasonably calculated to unduly influence the jury. Hiter
v. State, 660 So. 2d 961, 966 (Miss. 1995). The standard of review that
appellate courts must apply to lawyer misconduct during opening statements
or closing arguments is whether the natural and probable effect of the
improper argument is to create unjust prejudice against the accused so as to
result in a decision influenced by the prejudice so created. Ormond v. State,
599 So. 2d 951, 961 (Miss. 1992).
Dora, 986 So. 2d at 921 (quoting Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2000))
(emphasis in original).
¶15. In Dora, the defendant was convicted of possession of more than thirty grams of
cocaine and was sentenced as a drug recidivist and a habitual offender to serve a term of sixty
years imprisonment without parole. Dora, 986 So. 2d at 918. During the State’s rebuttal
portion of closing arguments, the prosecutor stated:
You also heard the fact that it is undisputed, [l]adies and [g]entlemen, that this
defendant told Rebecca Dora, I will give you $5,000; I’m sorry I got you into
this trouble, but I will give you $5,000 to go in there and take the rap for me.
That is also undisputed. Nobody came forward said that didn’t happen. I
submit to you, [l]adies and [g]entlemen, that that is strong evidence that –
Id. at 920.7 On appeal, the Court of Appeals found that these statements constituted an
improper comment on the defendant’s failure to testify and that the trial court had abused its
7
Although the defendant’s aunt, Rebecca Dora, initially had claimed responsibility
for all the drugs found in her home, during the trial, Rebecca testified that the defendant had
offered her $5,000 to “take the rap.” Dora, 986 So. 2d at 919.
9
discretion in denying the defendant’s objection and motion for a mistrial. Id. See also Dora
v. State, 986 So. 2d 965, 969-70 (Miss. Ct. App. 2007). We granted certiorari and reversed
the judgment of the Court of Appeals and reinstated and affirmed the circuit court’s judgment
of conviction and sentence. Dora, 986 So. 2d at 918.
¶16. A prosecutor’s comments, whether proper or improper, are in response to comments
made by defense counsel in closing arguments. Such was the case in Dora, when defense
counsel, during closing arguments, stated to the jury that “our theory of the case . . . is that
[Rebecca] stood to go to prison, and that they did not want to see Rebecca go to prison. So
they put it on my innocent client, [Dora], who has the presumption of innocence before you,
the jury.” Id. at 923 n.12. These statements by defense counsel prompted the prosecutor to
respond in closing arguments that it was undisputed that the defendant had offered Rebecca
$5,000 to “take the rap.” In addressing this issue, this Court stated:
“There is a difference . . . between a comment on the defendant’s failure to
testify and a comment on the defendant’s failure to put on a successful
defense.” [Jimpson v. State, 532 So. 2d 985, 991 (Miss. 1988)] (emphasis in
original). The state is entitled to comment on the lack of any defense, and such
comment will not be construed as a reference to the defendant’s failure to
testify by innuendo and insinuation. Shook v. State, 552 So. 2d 841, 851
(Miss. 1989) (emphasis added). The question is whether the prosecutor’s
statement can be construed as commenting upon the failure of the defendant
to take the stand. Ladner v. State, 584 So. 2d 743, 754 (Miss. 1991).
Id. at 923 (quoting Wright v. State, 958 So. 2d 158, 161 (Miss. 2007)) (emphasis added). In
finding no abuse of discretion in the trial court’s denial of the defendant’s motion for a
mistrial, we stated “that the prosecutor’s statement was a permissible comment on the
absence of evidence to support [the defendant’s] defense,” as opposed to a veiled attempt by
10
the prosecutor to point out to the jury that the defendant had not taken the witness stand.
Dora, 986 So. 2d at 923.
¶17. Here, as in Dora, during the State’s rebuttal, the district attorney was responding to
comments made by defense counsel during closing arguments. Tate’s theory was that
Brittany could not be believed. Curtileniea testified that Brittany did not like to be disciplined
by Tate, that Brittany may have felt she had been wrongly accused by her mother of taking
$100 from her mother’s purse, and that Brittany may have been upset because Curtileniea
had believed Tate’s denial of taking the money over her denial of taking the money. Thus,
for one or both of these reasons, Curtileniea believed Brittany was falsely accusing Tate of
these sexual improprieties. Likewise, the defense offered the testimony of young Megan
Grant, who stated that Brittany had falsely accused Tate of sexually abusing her (Megan),
a claim which Megan denied.
¶18. During closing arguments, defense counsel referred to Brittany as “a problem child.”
Defense counsel talked to the jury about the problems which arise when parents are not able
to discipline a child for that child’s misconduct, and when a child “starts taking from her
natural mother.” Defense counsel argued to the jury that problems arise with a child when
that child “feels like her mother does not love her,” and that child “does not approve of the
mother’s husband, and thinks that the stepfather is treating her differently.” Defense counsel
accused Brittany of not telling the truth and stated that there were too many inconsistencies
in her stories. Defense counsel reminded the jury that Brittany had stated the sexual abuse
by Tate continued over a long period of time, but she had never told her mother about what
11
Tate was doing to her because she had felt that her mother would not believe her. According
to defense counsel, the reason that Brittany did not think her mother would believe her was
because she had lied to her mother before. Likewise, defense counsel reminded the jury that
Brittany did not tell Dr. Gray about Tate inserting the vibrator into her on several occasions,
thus, Brittany’s testimony about the vibrator was not believable. Additionally, defense
counsel argued that “[t]he charges were filed by the mother, [b]ut when she began to think
about and review this carefully in her mind, she realized this did not occur.” Finally, defense
counsel told the jury that “[w]hen you’re charged with something you did not do, that person,
whether it’s me, you or anyone, becomes the victim in this case. Eric Tate, the executive
steward of Sonoco, is the victim in this case.”
¶19. When the district attorney stood to address the jury in the rebuttal portion of the
State’s closing arguments, the jury had before it not only these comments by defense counsel,
but also the testimony of Curtileniea Tate. During the defendant’s case in chief, Curtileniea
had testified on direct examination that Tate had denied “doing anything to [Brittany].” The
district attorney began his closing arguments:
Ladies and gentlemen, let me make one thing crystal clear to you before I say
anything else. If every one of you go back in that jury room when we get
through and vote not guilty, I will go home tonight and sleep like a baby.
There’s absolutely no way on what he’s talking about this case was going to
go to trial on these facts. All this business about if they’d have known this or
if they had done that, this case was going to trial on these facts. I hate these
cases. I hate them. I’ve been doing this for twenty years, and I hate these
cases worse than anything else I do, and I’m going to tell you why, ladies and
gentlemen. Because when people do this kind of stuff to children, they don’t
do it in front of anybody. They don’t do it in front of other people. So what
I end up with when it really gets down to it is her word against his. Think
12
about it. They’re not going to do it in front of the sheriff. They’re not going
to do it in front of their preacher. They’re not even going to do it in front of
their wife. Folks, if I want to eat some chocolate in my house and my wife
don’t want me to, I can promise you, I am eating the chocolate. Okay. It can
be done –
At this point, defense counsel objected, and after a nonrecorded bench conference, the judge
announced, “Let’s go ahead and proceed.” The district attorney continued:
So when you have a case like this, ladies and gentlemen – and don’t get me
wrong. [Defense counsel] is a very, very talented lawyer. He’s done a good
job, and he’s done what he’s supposed to do here today, and that’s to try to
defend his client to the best of his ability, but what happens in this (sic) cases
is you’ve got to make the child the bad person. That’s the only way it works.
It’s her word against his, and as he says –
Again, defense counsel objected and this time the trial judge sustained the objection. After
another nonrecorded bench conference, the trial judge informed the jury that he was
sustaining the objection and that the jury was “to disregard that last argument and remark of
the prosecutor.”
¶20. While we respect and appreciate the caution exercised by the trial judge in sustaining
defense counsel’s objection and sua sponte instructing the jury to disregard the district
attorney’s statements, it is apparent from the record that the district attorney’s statements
were not impermissible comments calculated to improperly call the jurors’ attention to the
fact that Tate had failed to testify in his own behalf. Instead, the comments were offered in
an effort to counter Tate’s efforts at a defense. Dora, 986 So. 2d at 923. It is likewise
apparent from the record that the prosecutor was properly responding to defense counsel’s
closing arguments regarding the defense theory that Tate “did not do it” and that Brittany was
13
lying. We also are mindful that Curtileniea testified that Tate had “denied doing anything”
to Brittany. Thus, from the totality of the record before us, the district attorney was justified
in responding to defense counsel’s comments during closing arguments. Consistent with
Dora, we find that these comments were not improper. Dora, 986 So. 2d at 923. See also
United States v. Robinson, 485 U.S. 25, 34, 108 S. Ct. 864, 99 L. Ed. 2d 23 (1988).
¶21. However, since the trial judge sustained defense counsel’s objections to these
comments by the district attorney and instructed the jury to disregard them, any conceivable
resulting prejudice was cured by this remedial action. “Juries are presumed to follow the
instructions given to them by the court.” Walton v. State, 998 So. 2d 971, 977 (Miss. 2008)
(citing Wheeler v. State, 826 So. 2d 731, 740 (Miss. 2002)). In the end, the learned trial
judge erred on the side of caution. This Court is entitled to presume that the jury followed
the trial court’s instructions and did not, during the course of its deliberations on the verdict,
consider the “her-word-against-his” argument made by the prosecutor. But more
importantly, for the reasons we have discussed, the district attorney’s comments were not
improper, and had the trial judge overruled defense counsel’s objection, the trial judge would
not have committed error. Thus, unquestionably, the trial judge did not abuse his discretion
in denying defense counsel’s motion for a mistrial.
¶22. For the reasons stated, we find this assignment of error to be without merit.
II. W HETHER THE TR IAL CO UR T ERRED BY
PERMITTING PREJUDICIAL EVIDENCE TO SHOW
“CONSCIOUSNESS OF GUILT.”
14
¶23. Tate points to two instances during the course of the trial when he alleges the State
improperly interjected into the proceedings that Tate had contemplated suicide, thus
improperly showing “consciousness of guilt.” This assignment of error obviously calls into
question the propriety of the trial judge’s admission of certain evidence. We repeatedly have
stated that when this Court is called upon to review on appeal a trial judge’s ruling on
evidence, we will review “the trial court’s admissibility of evidence under the abuse-of-
discretion standard.” Turner v. State, 3 So. 3d 742, 744 (Miss. 2009) (citing Ellis v. State,
934 So. 2d 1000, 1004 (Miss. 2006)). Thus, as we consider whether the trial judge in today’s
case abused his discretion in allowing this evidence, “[u]nless we can safely say that the trial
court abused its judicial discretion in allowing or disallowing evidence so as to prejudice a
party in a civil case, or the accused in a criminal case, we will affirm the trial court’s ruling.”
Jones v. State, 918 So. 2d 1220, 1223 (Miss. 2005) (citing McGowen v. State, 859 So. 2d
320, 328 (Miss. 2003)).
A. Deputy Vallely’s Testimony.
¶24. In addressing this assignment of error, we first focus on the testimony of Deputy
Vallely. During the direct examination by the district attorney, Deputy Vallely testified
about meetings with Curtileniea, Holloway, and Brittany. Deputy Vallely likewise informed
the jury about contacting the MDHS in Amite County, with MDHS sending over two case
workers to interview Brittany, followed by Curtileniea signing the criminal affidavit charging
Tate with child molestation. The district attorney then questioned Deputy Vallely about his
actions to have a warrant issued and served on Tate based on the criminal affidavit signed
15
by Curtileniea. Deputy Vallely stated that at the time of the issuance of the warrant, Tate was
working offshore. From Curtileniea, Deputy Vallely learned that when Tate returned from
the offshore rig, he would come ashore at New Iberia, Louisiana; therefore, Vallely contacted
the New Iberia Police Department. The following exchange occurred at trial:
Q. What, if anything, did you do – what action did you take? I believe you
said you called New Iberia. You talked with them. What did you do after
that?
BY [DEFENSE COUNSEL]: I would object based upon
relevancy.
BY THE COURT: I will overrule at this point, but let’s cover
this and move on.
BY [DISTRICT ATTORNEY]: Yes, sir. I am trying to get
there, Judge.
BY THE WITNESS: I notified New Iberia to be on the lookout for him and for
his vehicle because of possible suicide.
BY [DEFENSE COUNSEL]: Your Honor, I object to that.
BY [DISTRICT ATTORNEY]: I am not trying to solicit that,
Your Honor.
BY THE COURT: I’ll sustain. I’ll sustain the objection to that.
Ladies and gentlemen, you’re to disregard that last statement.
Now, apparently he was arrested. Let’s move on to a different
subject.
BY [DISTRICT ATTORNEY]: Yes, sir.
The district attorney then proceeded to ask Deputy Vallely about the details of the arrest and
the initial appearance in justice court, to which defense counsel objected as to relevancy, and
the trial judge sustained the objection, reasoning that “[i]t’s been established he was
16
arrested.” In response to the district attorney’s final question, Deputy Vallely stated he had
no further involvement in the investigation of Tate’s case, and Vallely was thus tendered for
cross-examination by defense counsel.
¶25. Deputy Vallely unquestionably testified that he had informed personnel at the New
Iberia Police Department “to be on the lookout for [Tate] and for his vehicle because of
possible suicide.” Once defense counsel objected, the district attorney informed the trial court
that this was not the response he was attempting to elicit. The trial judge sustained defense
counsel’s objection and promptly admonished the jury, sua sponte, to disregard the last
response by the witness. The trial judge likewise admonished the district attorney to “move
on to a different subject,” to which the district attorney responded, “Yes, sir.” Additionally,
the trial court instructed the jury in writing on this issue by way of Jury Instruction D-7B
(Instruction No. 2), which stated in pertinent part: “Do not consider for any purpose any offer
of evidence that was rejected, or any evidence that was stricken by the Court; treat it as
though you had never heard of it.” The trial court likewise gave its general Instruction No.
1, which stated, inter alia, that the jurors were bound by their oath to follow the law as given
by the trial court, and that the jury was to disregard all evidence excluded by the trial court
and thus not consider this excluded evidence.
¶26. As we have noted, this Court on appeal generally has the right to presume that jurors
will adhere to their oaths and follow the instructions given to them by the trial court. Walton,
998 So. 2d at 977 (citing Wheeler, 826 So. 2d at 740). Thus, in today’s case, we find that any
17
possible prejudice which could have resulted from the witness’s unsolicited response to the
district attorney’s question was cured by the trial judge’s prompt remedial action.
B. Curtileniea Tate’s Testimony.
¶27. Tate also complains about the district attorney’s cross-examination of Curtileniea Tate
in Tate’s case-in-chief.
¶28. Contrary to the testimony of Deputy Vallely and Rosie Holloway that, at the initial
meeting with Deputy Vallely, Curtileniea had done most of the talking, Curtileniea testified
that her mother had done all the talking, because she (Curtileniea) did not believe what
Brittany was saying about Tate. During the State’s cross-examination of Curtileniea, the
district attorney questioned her about Exhibit 3, the statement that Brittany had written out
and that Brittany and Curtileniea had signed. Curtileniea was questioned about the portion
of the statement where Brittany wrote “I told my mom and she talked to [Tate] and he said
he won’t do it again,”and Curtileniea testified the statement was not true. Curtileniea was
questioned about her testimony that, although she had concluded by August or September
of 2007 that Brittany’s accusations against Tate were not true, Curtileniea and her mother
had taken the “little green wiggle thing” (vibrator) to Deputy Vallely around September 10,
2007. The district attorney likewise questioned Curtileniea about the affidavit (Exhibit 5) she
had signed under oath charging Tate with child molestation of Brittany, while at the same
time stating that she did not believe the charges to be true.
¶29. The district attorney then questioned Curtileniea concerning the written statement she
eventually took to Deputy Vallely. This statement, written and signed by Curtileniea, was
18
marked as Exhibit A for identification, but was never received into evidence. This statement
read:
To Whom it May Concern,
This is a statement about the conversation that I had with Erick (sic) Tate. My
son had the phone and I grabbed it from him, I said hello twice and Erick (sic)
said hey its (sic) me and how was I and the boys. I said how the F_ _ _ you
think we doing. He said he was sorry. I said what did you do to [Brittany] and
he said all the things she said I did I did not do. I told him just doing anything
was wrong. I told him charges has (sic) been filled (sic) and he said he wasn’t
going back to prison, tell his boys he loved them, told me to continue to take
care of his boys and don’t bring them to his funeral and then he hung up the
phone.
/s/ Curtileniea Tate
Since this statement generated an objection by defense counsel, the trial judge sent the jury
out and then heard lengthy arguments from counsel, outside the presence of the jury. Defense
counsel’s main objections focused on the comments about not going back to prison and not
bringing the boys to his funeral. As to the latter comment, defense counsel opined that this
was another reference to possible suicide, and defense counsel reminded the trial judge that
he already had sustained defense counsel’s objection to Deputy Vallely’s reference to
possible suicide by Tate. In the end, after finding that the comments in this statement were
relevant, and after performing the required balancing test,8 the trial judge stated that the
8
Mississippi Rule of Evidence 401 states: “‘Relevant Evidence’ means evidence’
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Mississippi Rule of Evidence 403 states in pertinent part: “Although relevant,
evidence may be excluded if its probative value is substantially outweighed by the danger
of unfair prejudice . . . .”
19
district attorney could cross-examine Curtileniea about the contents of the statement, with
the exception of Curtileniea’s comment that “he said he wasn’t going back to prison.”
¶30. The trial court clearly did not err in allowing the district attorney to cross-examine
Curtileniea as to the first part of the statement directly attributable to her. This was classic
impeachment of a witness based on inconsistencies in the witness’s in-court testimony and
out-of-court statements, especially out-of-court statements which she voluntarily put in
written form and submitted to Deputy Vallely. The statements attributable to Curtileniea as
found in Exhibit A are inconsistent with Curtileniea’s in-court testimony that she had
questioned the veracity of Brittany’s allegations from the very beginning. Curtileniea was
provided limitless opportunities either to admit or deny her various in-court and out-court
statements. Johnson v. State, 905 So. 2d 1209, 1212-13 (Miss. 2005). See also Miss. R.
Evid. 613. Likewise, at the request of defense counsel, the trial court granted Jury
Instruction No. D-7A (Instruction No. 6) (relating to how the jury could consider any
witness’s testimony deemed by the jury to be false, in whole or in part); and Jury Instruction
No. D-12 (Instruction No. 8), which stated in part that “[t]he testimony of a witness may be
discredited by showing that the witness testified falsely concerning a material matter, or by
evidence that at some other time the witness said or did something . . . which is inconsistent
with the testimony the witness gave at this trial.” Tate no doubt wanted this jury instruction
in order to be able to attack Brittany’s credibility during closing arguments; however, the jury
also could apply this jury instruction in considering and comparing Curtileniea’s in-court
testimony and her out-of-court statements.
20
¶31. Concerning the district attorney’s use of the portions of Exhibit A attributable to Tate
in his cross-examination of Curtileniea, we likewise find no error by the trial court in
overruling defense counsel’s objection. In addition to Curtileniea writing that Tate had said
he was sorry and that he did not do what he was accused of doing, according to Curtileniea’s
statement, Tate also said, inter alia, that he was not going back to prison and that Curtileniea
should not “bring [their boys] to his funeral.” Since the trial judge refused to allow the
district attorney to question Curtileniea about Tate’s reference to not going back to prison,
we focus on the remaining statement which Tate finds objectionable. Tate asserts that the
comments in Curtileniea’s written statement about not bringing the boys to his funeral is
tantamount to an improper reference to suicide.
¶32. Both the State and Tate concede that this Court has never addressed the issue of
whether a defendant’s attempted suicide or threat of suicide is admissible in an effort to show
consciousness of guilt.9 The State asserts that, while twenty-four states have held that
evidence of a defendant’s attempted suicide is admissible to show consciousness of guilt,
only four states (Illinois, Tennessee, Pennsylvania, and Georgia) have addressed the issue
of a defendant’s threat to commit suicide and found that suicide threats were admissible to
9
On the other hand, this Court has on numerous occasions dealt with the issue of the
propriety or impropriety of allowing evidence of flight and flight instructions concerning a
defendant’s consciousness of guilt. See e.g., Shumpert v. State, 935 So. 2d 962, 969-70
(Miss. 2006); Randolph v. State, 852 So. 2d 547, 564-66 (Miss. 2002); Reynolds v. State,
658 So. 2d 852, 856 (Miss. 1995); Fuselier v. State, 468 So. 2d 45, 57 (Miss. 1985).
21
show consciousness of guilt.10 Nothing in the record indicates that Tate ever attempted
suicide, so our initial inquiry must be whether Tate’s statement to Curtileniea that she must
not bring their sons to his funeral was a “threat of suicide.”
¶33. We briefly turn to the four cases cited by the State for the purpose of determining in
each case what act by the defendant was deemed to be “a threat of suicide.” In People v.
O’Neil, 18 Ill. 2d 461, 165 N.E. 2d 319 (1960), the defendant, while being interrogated by
law enforcement on an arson charge, “threatened to commit suicide.” O’Neil, 18 Ill. 2d at
463. In State v. Seffens, 1992 WL 75831 (Tenn. Crim. App. March 16, 1992), the
defendant, who was charged with multiple counts of aggravated rape and assault of his
children and step-children, “threatened to kill his wife and himself because he could get forty
years for these offenses.” Seffens, 1992 WL 75831, *4. In Commonwealth v. Sanchez, 416
Pa. Super. 160, 610 A. 2d 1020 (1992), the defendant, who was charged with murder, rape,
robbery, and burglary, had “an ideation of suicide,” in that he revealed to the prison
psychiatric unit personnel that “he was thinking of killing himself.” Sanchez, 610 A. 2d at
1026, 1028. Finally, in Duncan v. State, 269 Ga. App. 4, 602 S.E.2d 908 (2004), the
defendant, who was charged with multiple counts of child molestation, on the date that his
case was originally set for trial, left his mother and sister a note that “I just think it would be
10
According to the State, five states have considered this issue; however, since the
State does not inform us as to the identity of the fifth state, or supply any case citation from
that state, we assume, arguendo, that this fifth state found that suicide threats were not
admissible to show consciousness of guilt.
22
better that I’m not around any more,” and then attempted suicide by shooting himself in the
head. Duncan, 602 S.E. 2d at 910.
¶34. We find the facts of today’s case to be distinguishable from the cases just discussed.11
It is critical that we look at the totality of Tate’s statements and the manner in which they
were used by the State. Tate said to Curtileniea to “tell his boys he loved them, told me to
continue to take care of his boys and don’t bring them to his funeral.” At the time the district
attorney broached this subject during his cross-examination of Curtileniea, the trial judge sent
the jury to the jury room and discussed this issue with counsel outside the jury’s presence.
The district attorney argued:
They want to put her up here and let her say she didn’t ever believe it, but they
don’t want to deal with the problems that came with when she did believe it,
and Your Honor, it’s our position that short of that information about the
prison situation, that statement is totally and fully admissible and relevant to
this case.
11
On the other hand, Tate directs our attention to Penalver v. State, 926 So. 2d 1118
(Fla. 2006). In Penalver, involving a defendant charged with three counts of first-degree
murder, when the defendant was first confronted by police with a search warrant, the
defendant became upset and resisted police efforts to forcibly remove his shoes, exclaiming
“something to the effect of ‘I might as well be dead’ or ‘I want to kill myself.’” Penalver,
926 So. 2d at 1132. The Florida Supreme Court found from the record that it was unclear
whether these statements by the defendant “[were] in fact a threat to commit suicide.” Id. at
1134. However, the Court concluded: “Moreover, even if the statement is considered a
threat, the fact that [the defendant] turned himself in tends to negate the argument that his
threat was probative of a desire to avoid prosecution. Thus, we find that the court erred in
admitting this evidence.” Id. However, Penalver is distinguishable from Tate’s case
because the record in today’s case is devoid of any effort by the State to use Tate’s statement
about not bringing his boys to his funeral as a suicide threat in an effort to avoid prosecution.
23
Although the trial judge ultimately ruled that the written statement by Curtileniea chronicling
what Tate had told her could not be offered into evidence, the trial judge ruled that, with one
exception, the district attorney could question Curtileniea about this statement, reasoning:
She has taken the stand and testified for the defendant that although she signed
the affidavit that she does not believe that he did it. The Court has read this
statement which apparently was signed by her and given to law enforcement
authorities. Again, the portion where it says about where he said he wasn’t
going back to prison, I find clearly that prejudice of that far outweighs any
relevance. The remaining portions of the statement do have some relevance
as to her conversations with the defendant which she has gotten up here and
testified totally on his behalf, and the Court finds that any prejudice from this
is outweighed by the relevancy, and I will allow the State to question her about
the remaining part of the statement.
(Emphasis added).12
¶35. After this ruling by the trial judge, the jury was returned to the courtroom and the
district attorney continued his cross-examination of Curtileniea about the statement, omitting
the “he-said-he-wasn’t-going-back-to-prison” comment. Once Curtileniea was questioned
in detail about the contents of the statement and additionally had admitted that she had the
conversation with Tate, had written out the statement, and had taken the statement to Deputy
Vallely, the district attorney tendered Curtileniea for re-direct examination by defense
counsel.
¶36. Of significant import is the method in which the State used this evidence concerning
Curtileniea’s testimony about her memorializing in the written statement what Tate had told
12
Rule 403 requires the weighing of otherwise relevant evidence via a probative value
versus prejudice analysis, not relevance versus prejudice. Miss. R. Evid. 403. The trial
judge’s ruling in this regard will be discussed in more detail, infra.
24
her. During the first phase of the State’s closing argument to the jury, the assistant district
attorney stated:
You heard from his wife, Mrs. Curtileniea Tate tell you, “He wouldn’t even
talk to me about it. He told me I needed to call my mama to find out what was
going on.” Is that not the most ridiculous thing you have ever heard in your
life. He didn’t deny it. Then she comes to law enforcement, and she gives
them a statement, and she says in the statement that she wrote for Deputy
Vallely that she brought to him. “He said he was sorry. He said tell my boys
I love them. Don’t bring them to my funeral.” That’s the kind of thing that
guilty people write, ladies and gentlemen.
At this point, defense counsel objected, not on the basis of any perceived reference to suicide
or guilty knowledge, but instead, on the basis that “[the assistant district attorney] read the
statement, but she did not read the complete statement where he said he did not do this.”
¶37. The only other reference to the objectionable statement is during the final portion of
the State’s closing arguments when the district attorney again read the statement (with the
exception of the “he-said-he-wasn’t-going-back-to-prison” comment) to the jury when
discussing the fact that Curtileniea had been questioned about this statement on cross-
examination. The district attorney then argued:
Now, [defense counsel] wants you to say, well he says he didn’t do it in here
because it says Eric said hey – I said what did you do to [Brittany] and he said
all the things she said I did I did not do. I submit to you, the way that reads is
he said all the things she said I did I did not do. And I – the reason I believe is,
well, because then she says I told him just doing anything was wrong. So he’s
admitting it here, folks.
BY [DEFENSE COUNSEL]: Objection, Your Honor.
BY THE COURT: Again, let’s move on, Mr. Harper.
BY [DEFENSE COUNSEL]: It’s incredible.
25
BY [THE DISTRICT ATTORNEY]: What do you mean it’s incredible. It’s
exactly what he says.
BY THE COURT: Just a second. Mr. Harper, you have about one minute.
You’ve got about one minute. Let’s wrap it up. Time is running out. You’ve
got about one minute left.
BY [THE DISTRICT ATTORNEY]: I said what did you do to [Brittany], and
he said all the things she said I did I did not do. I told him just doing anything
was wrong. Y’all can interpret that any way you want to. Ladies and
gentlemen, I think the case is clear. It’s clear. [Defense counsel] calls his man
the victim. I tell you, the victim is sitting right out there, and he told y’all
yesterday morning, I remember this because he talked about Mrs. Holloway,
the child’s grandmother. Said she had a controlling spirit. Well, when his wife
was testifying today, she said something about that she needed to get control
of [Brittany], and then after he made these accusations and his wife had left
him and was doing everything she could to help prove that he did these things,
then she goes back to him. Y’all tell me who’s got the controlling spirit in this
picture.
This concluded the State’s closing argument.
¶38. From the record before us, it is obvious that the State was not attempting to single out
any perceived threat of suicide by Tate as being evidence of consciousness of guilt. The only
time anyone made any reference to consciousness of guilt was when the assistant district
attorney stated to the jury “That’s the kind of thing that guilty people write.” However, the
assistant district attorney, in referring to “[t]hat’s the kind of thing . . .” was referring not to
one, but three statements by Tate: “‘He said he was sorry. He said tell my boys I love them.
Don’t bring them to my funeral.’ That’s the kind of thing that guilty people write, ladies and
gentlemen.”
¶39. We find from the totality of the evidence that there was no effort to prove via alleged
suicide threats that Tate possessed a “consciousness of guilt.” Additionally, no jury
26
instruction was submitted to, or considered by, the trial judge informing the jury that it could
consider whether Tate’s purported “suicide threats” showed consciousness of guilt. We thus
decline to address on a case of first impression whether evidence of threats of suicide by the
defendant in a criminal case is admissible in an effort by the State to prove the defendant’s
consciousness of guilt.
¶40. Finally, while we concede that the learned trial judge in this case did not utter
verbatim the words found in Mississippi Rule of Evidence 403, the trial judge properly
conducted the required Rule 403 analysis with regard to Exhibit A prior to ruling on this
evidence. This Court previously has stated:
[The defendant] argues that such evidence should be subjected to a balancing
test pursuant to the provisions of Miss. R. Evid. 403 and our case law. Indeed,
the record does not reveal that the trial court performed a Rule 403 balancing
test. Even though a trial judge's determination on the issue of admissibility of
evidence must ultimately be filtered through Rule 403, a trial judge's failure
to place Rule 403's magic words into the record does not necessarily create the
presumption that the trial judge failed to consider Rule 403's requirements, nor
does it automatically render the trial judge's decision on admissibility to be
error, much less reversible error.
Havard v. State, 928 So. 2d 771, 797 (Miss. 2006) (footnote omitted). In Havard, a death
penalty case, we ultimately determined that the trial judge’s admission of certain
photographic evidence was not an abuse of discretion and concluded that “the probative
value of this relevant evidence was not substantially outweighed by the danger of unfair
prejudice.” Id. at 797-98.
¶41. In today’s case, the record clearly reveals that the trial judge performed an on-the-
record Rule 403 analysis, albeit in less-than-perfect language, by stating “[t]he remaining
27
portions of the statement do have some relevance as to her conversations with the defendant
which she has gotten up here and testified totally on his behalf, and the Court finds that any
prejudice from this is outweighed by the relevancy, and I will allow the State to question her
about the remaining part of the statement.” (Emphasis added). We find that, although the
“magic words” referenced in Havard were not uttered by the trial judge in today’s case, the
Rule 403 analysis was performed on this evidence, and the trial judge did not abuse his
discretion in allowing the district attorney to cross-examine Curtileniea Tate on the statement
she wrote out and presented to Deputy Valley. See Turner, 3 So. 3d at 744.
¶42. Alternatively, even if we were to find error in the trial court's allowing the district
attorney to cross-examine Curtileniea about the handwritten statement she gave to Deputy
Vallely, such error, if any, was harmless beyond a reasonable doubt. McKee v. State, 791 So.
2d 804, 810 (Miss. 2001) (error is harmless when apparent from record that fair-minded jury
could arrive at no verdict other than guilty) (citations omitted). “Where the prejudice from
erroneous admission of evidence dims in comparison to other overwhelming evidence, this
Court has refused to reverse.” Carter v. State, 722 So. 2d 1258, 1262 (Miss. 1998) (citing
Holland v. State, 587 So. 2d 848, 864 (Miss. 1991)). As will be discussed in more detail
under a separate assignment of error, the evidence of Tate’s guilt was overwhelming, absent
any reference to Tate’s statement about not bringing his boys to his funeral. Such conclusion
is based on the testimony of Brittany, Dr. Leigh Gray, Deputy Sheriff BillVallely and Rosie
Holloway.
¶43. For all the reasons stated, we find this assignment of error to have no merit.
28
III. WHETHER THE TRIAL COURT ERRED BY FAILING TO
EXAMINE INDIVIDUAL JURORS OR TO GRANT A
MISTRIAL ONCE THE JURY PANEL WAS EXPOSED TO
PREJUDICIAL INFORMATION.
¶44. Both the trial judge and the district attorney conducted their respective voir dire
examinations without incident. Defense counsel had almost concluded his voir dire on behalf
of Tate, likewise without incident, when defense counsel asked a catch-all question of the
jury venire:
BY [DEFENSE COUNSEL]: Thank you so much. Anyone else? There’s
something that you should have asked me, the attorneys. If you had asked me
this question, I would have told you this. I would have told you that, or – you
know – I simply can’t sit on this jury. Know the type of crime. I can’t do it
because I can’t be fair. I cannot be fair. Anyone that thinks that? Somebody
else want to share with us? You’re sure? Juror number ten.
BY JUROR HOLMES: I know Mr. Tate. Mr. Tate’s cousin and my son are
very good friends, and they have been friends for a while, and Mr. Tate along
with his cousin and my son have had outings together, and I have heard of this
before now.
BY [DEFENSE COUNSEL]: I am sorry. You did what?
BY JUROR HOLMES: I have heard of this – what’s going on in this case.
BY [DEFENSE COUNSEL]: You’ve heard of it?
BY JUROR HOLMES: I’ve heard of it before now, and I heard of another
case that involved Mr. Tate also.
BY [DEFENSE COUNSEL]: Thank you so much for your response. Now is
there anybody else? If that lawyer had asked me this question, I would have
told you this. You’re juror number ten, correct?
BY JUROR HOLMES: Right.
BY [DEFENSE COUNSEL]: Your Honor, that’s all I have. Can we approach?
29
BY THE COURT: Yes, sir.
After a nonrecorded bench conference, the trial judge announced to the jury venire that he
was declaring a thirty-minute recess to complete the jury selection process, and the trial judge
admonished the members of the venire, inter alia, that they were to have no contact or
conversation with anyone about this case during the recess.
¶45. In chambers, defense counsel moved for a mistrial based on Juror Holmes’s response
that she knew about another case involving Tate. Defense counsel also informed the trial
judge that at the time Juror Holmes made the comment about another case involving Tate,
he (defense counsel) noticed another female member of the jury panel smiling. After
arguments of counsel, the trial judge denied the motion for a mistrial, but announced that he
would remove Juror Holmes for cause, and that he would also remove for cause the smiling
juror once the identity of that particular juror was known, although the trial judge expressed
confidence that the smiling juror was so far down the list, based on defense counsel’s
description of where she was seated in the courtroom, that she would never be considered as
a member of the trial jury for this particular case. Likewise, the trial judge stated that the
jury would be properly instructed on the law and how the jury must consider its verdict.
After considering challenges for cause, the trial judge declared a recess so counsel could
consider how they wanted to exercise their peremptory challenges.
¶46. Upon reconvening in chambers for the jury selection process, the trial judge was
informed by defense counsel that during the recess, it was brought to his (defense counsel’s)
attention by Curtileniea that she had overheard “four or five” prospective jurors sitting on a
30
bench outside the courtroom discussing “what other case [Tate] had against him.” The trial
judge placed Curtileniea under oath, and she testified as to what she had heard and observed
regarding this juror conduct. In response to questioning, Curtileniea testified that one lady
mentioned to the other (three or four) venire members “[w]hat other case he had,” and
Curtileniea testified that no one responded to this comment by the prospective female juror.
The trial judge again denied defense counsel’s motion for a mistrial, but offered to take
“curative action” such as strongly instructing the venire members to disregard the comments
made by Juror Holmes. The trial judge likewise offered to afford defense counsel “additional
challenges as to these jurors” if the identity of the four or five jurors described by Curtileniea
as discussing this “other case” could be ascertained. The trial judge, however, refused
defense counsel’s request to reopen voir dire. On the other hand, the trial judge again offered
to admonish the jury venire to disregard Juror Holmes’s comments, but that “I have to be
requested at some point to do that.” At this stage of the proceedings, the trial judge was
unable to ascertain if the “four or five” members of the venire mentioned by Curtileniea were
close enough to the top of the venire list to be considered for jury service on Tate’s case.
¶47. Once the trial jury was selected, the trial judge again offered to defense counsel that
once the jury was seated in open court, if Curtileniea informed defense counsel that she
recognized one or more members of the trial jury as having been among the venire members
discussing “the other case,” defense counsel should inform the trial judge so that curative
action could be taken. Likewise, the trial judge again inquired of defense counsel if he
wished for the jury to receive any additional instruction regarding the comments made by
31
Juror Holmes. After considerable discussion by the trial judge with all counsel, the trial jury
was seated in open court, and the trial judge gave the customary instructions to the jurors
regarding their conduct. The following then occurred:
BY THE COURT: Now, also I am going to instruct you at this time that you
are to completely and totally disregard any comment that may have been made
on voir dire about any other case against this defendant because there is no
other case.13 Does everybody understand that?
BY THE JURORS: Yes, sir.
BY THE COURT: Can you each follow the Court’s instructions in that regard?
BY THE JURORS: Yes, sir.
BY THE COURT: Let the record show that each juror has nodded
affirmatively.
The jury was then put in recess for lunch. The members of the jury likewise were reminded
that throughout the trial, during any recess, they were to have no contact or discussions with
anyone about the case.
¶48. As noted in our discussion of Issue I, supra, our standard of review on a claim that the
trial court committed error in refusing to grant a mistrial is one of abuse of discretion. Dora,
986 So. 2d at 921. As we recently stated in applying this abuse-of-discretion standard:
“[T]he trial court is in the best position to determine if an alleged improper comment had a
prejudicial effect; therefore, absent an abuse of that discretion, the trial court’s ruling will
13
There was in fact another case pending against Tate, and this was a matter of
contention between the district attorney and the trial judge during the in-chambers discussion
with counsel as to how to admonish the trial jury to disregard the comments made by Juror
Holmes during voir dire.
32
stand.” Jones v. State, 962 So. 2d 1263, 1275 (Miss. 2007) (citing Stevens v. State, 806 So.
2d 1031, 1057 (Miss. 2001)) (addressing alleged improper comment by prosecutor during
closing arguments). See also Slaughter v. State, 815 So. 2d 1122, 1131 (Miss. 2002).
¶49. More to the point, this Court in recent times has addressed this precise issue of alleged
prejudicial comments by venire members during voir dire. In Shelton v. State, 853 So. 2d
1171, 1182-84 (Miss. 2003), the defendant was on trial for capital murder, and during voir
dire, a venire member volunteered information that she had heard the defendant had been
tried before on the same charges, resulting in “a hung jury.” Id. at 1183. In denying a motion
for a mistrial, the trial judge “acknowledged that a few prospective jurors heard that this was
a second trial for [the defendant], but that the information would not affect their ability to
make a decision.” Id. at 1184. This Court found that the trial judge did not abuse her
discretion in denying the motion for a mistrial inasmuch as “[t]here was no showing of
misconduct that resulted in substantial or irreparable harm to [the defendant’s] case pursuant
to URCCC 3.12.” 14 Id.
¶50. In applying this law to the facts of today’s case, it is clear from the record that the trial
judge zealously protected Tate’s rights to a fair trial, to the point of admonishing the jury
that it was “to completely and totally disregard any comment that may have been made on
voir dire about any other case against this defendant because there is no other case,” when
14
Uniform Circuit and County Court Rule 3.12 states in pertinent part that the trial
court may declare a mistrial if, during the trial, there is misconduct “resulting in substantial
and irreparable prejudice” to a party’s case.
33
in fact, the record reveals that there was another case pending against the defendant. The
members of the trial jury responded affirmatively that they would disregard any comments
about another case and that they would “follow the Court’s instructions in that regard.”
Recognizing that (1) the trial judge is in the best position to gauge the effect of any
objectionable comment by the venire member; (2) the trial judge admonished the trial jury
to disregard the objectionable comment; and (3) the law presumes that jurors follow the trial
judge’s instructions, we find that there was no abuse of discretion by the trial judge when he
denied Tate’s motion for a mistrial concerning Juror Holmes’s comments that she had “heard
of another case that involved Mr. Tate also.” Consistent with his curative action concerning
the comments made by Juror Holmes, the trial judge likewise offered to consider striking
“the smiling juror” if her identity could be ascertained. Also, the trial judge offered defense
counsel additional challenges if the identity of the “four or five” venire members Curtileniea
testified had discussed “the other case” against Tate during a recess became known, and/or
if Curtileniea recognized any of these venire members once the trial jury was seated. The
record is silent as to whether Curtileniea later came forward with any such information
regarding any of the venire members who ultimately were seated in the trial jury. Stated
differently, nothing in the record reveals that defense counsel thereafter requested the trial
judge to remove any of the jurors who ultimately were seated.
¶51. For all these reasons, we find this issue to be without merit.
IV. WHETHER THE TRIAL COURT ERRED BY DENYING THE
MOTION FOR JUDGMENT NOTWITHSTANDING THE
VERDICT, ON IN THE ALTERNATIVE, FOR A NEW TRIAL.
34
¶52. A motion for judgment notwithstanding the verdict attacks the legal sufficiency of the
evidence, while a motion for a new trial attacks the weight of the evidence. Bush v. State,
895 So. 2d 836, 843-44 (Miss. 2005). In Bush, we took the opportunity to reiterate the
critical distinctions between an attack on the legal sufficiency of the evidence as opposed to
an attack on the weight of the evidence. Id.
¶53. Looking first to the issue of whether the evidence was legally sufficient to undergird
the guilty verdicts against Tate, we must determine whether, when we consider the evidence
in this case, as well as all reasonable inferences which may reasonably be drawn from the
evidence, in the light most favorable to the prosecution, reasonable and fair minded jurors
exercising impartial judgment might reach different conclusions as to each element of the
charged offense. Id. at 843. If such inquiry is answered in the affirmative, the evidence is
deemed to be legally sufficient to sustain the conviction. Id. See also Christmas v. State,
10 So. 3d 413, 422 (Miss. 2009) (“relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt”) (citing Bush, 895 So. 2d at 843).
¶54. With this in mind, the indictment asserts, inter alia, that Tate, while in a position of
authority over Brittany by virtue of being her step-parent, committed sexual battery upon
Brittany by engaging in sexual penetration with Brittany, a female child under eighteen years
of age (Count I); that Tate, being over eighteen years of age (and Brittany being under
sixteen years of age), fondled Brittany’s genitals (Count II); and that Tate, being over
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eighteen years of age (and Brittany being under sixteen years of age) fondled Brittany’s
breasts (Count III).
¶55. As to Count I, Mississippi Code Section 97-3-95(2) states in pertinent part that “[a]
person is guilt of sexual battery if he or she engages in sexual penetration with a child under
the age of eighteen (18) years if the person is in a position of trust or authority over the child
including without limitation the child’s . . . legal guardian, parent, stepparent . . . .”
Additionally, Section 97-3-97 provides in pertinent part that:
For purposes of Sections 97-3-95 through 97-3-103 the following words shall
have the meaning ascribed herein unless the context otherwise requires:
(a) “Sexual penetration” includes cunnilingus, fellatio, buggery
or pederasty, any penetration of the genital or anal openings of
another person’s body by any part of a person’s body, and
insertion of any object into the genital or anal openings of
another person’s body.
Miss. Code Ann. § 97-3-97 (Rev. 2006).
As to Counts II and III, Mississippi Code Section 97-5-23(1) provides that: “(1) Any person
above the age of eighteen (18) years, who, for the purpose of gratifying his or her lust, or
indulging his or her depraved licentious sexual desires, shall handle, touch or rub with hands
or any part of his or her body or any member thereof, any child under the age of sixteen (16)
years, with out without the child’s consent . . . shall be guilty of a felony. . . .” Miss. Code
Ann. § 97-5-23 (Rev. 2006).
¶56. Here, Brittany testified about Tate, her stepfather, fondling her breasts and touching
her in her vaginal area, as well as inserting a vibrator into her vagina and attempting vaginal
36
penetration with his penis. During this period of time, Brittany was between nine and ten
years of age. Brittany’s grandmother, Rosie Holloway, testified about overhearing a
telephone conversation between Brittany and Tate, and standing so close to Brittany that she
could overhear Tate on the phone telling Brittany what clothes to wear and Brittany
responding that she no longer wore “those kind of clothes anymore.” Holloway said she
immediately confronted Brittany, who admitted that Tate was “touching her.” Dr. Leigh
Gray, a physician specializing in obstetrics and gynecology, testified that her examination
of Brittany revealed “tears in her hymen which were consistent with evidence of trauma.”
On several occasions, Tate also inserted “a little green wiggle thing” into her vagina. This
item, which was described as resembling a writing pen, but in essence being a vibrator, was
discovered by Holloway and Curtileniea in their search of Tate’s room after the molestation
charges surfaced. Brittany likewise testified that on at least one occasion, Tate tried to put
his “private part” inside her, but “it wouldn’t fit.” After Tate tried to penetrate Brittany’s
vagina with his penis, he called Brittany to the bathroom, where Tate unbuttoned his boxer
shorts, exposed his penis to Brittany and told her that the white excretion on his penis was
“cum stuff.” Even this brief account of the evidence is more than legally sufficient to sustain
the convictions for sexual battery and child-fondling. In addition to the evidence depicted
immediately above, upon consideration of the entire record in this case, we reach the
inescapable conclusion that the evidence against Tate is legally sufficient to undergird the
jury’s finding of guilt as to the sexual battery and child-fondling charges.
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¶57. On the other hand, when this Court is requested to find that a new trial is warranted
based on the weight of the evidence, we cannot disturb a jury verdict of guilty unless we find
that the verdict “is so contrary to the overwhelming weight of the evidence that to allow it
to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (citing
Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). See also Miss. Unif. Cir. & Cty. R.
10.05 (1)(2). In order to provide relief via a reversal of a conviction on a weight-of-the-
evidence issue, this Court must find that the trial court abused its discretion when it denied
a motion for a new trial challenging the weight of the evidence. Parramore v. State, 5 So.
3d 1074, 1078 (Miss. 2009) (citing Wilkins v. State, 1 So. 3d 850, 854 (Miss. 2008)). Again,
when we consider the record before us, including all the evidence discussed throughout this
opinion, we can safely conclude that the trial court did not sanction an unconscionable
injustice by allowing the guilty verdicts to stand; thus, the trial court did not abuse its
discretion in denying Tate’s motion for a new trial.
¶58. For the reasons stated, we find that this issue has no merit.
CONCLUSION
¶59. Having fully addressed the issues presented to us and finding them all to be without
merit, we affirm the Amite County Circuit Court’s judgment of conviction entered against
Eric Tate for one count of sexual battery and two counts of child-fondling, and the resulting
imposition of sentences of thirty years imprisonment on the sexual battery conviction and ten
years imprisonment on each of the child-fondling convictions, to run consecutively.
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¶60. COUNT I: CONVICTION OF SEXUAL BATTERY AND SENTENCE OF
THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF CHILD
FONDLING AND SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III;
CONVICTION OF CHILD-FONDLING AND SENTENCE OF TEN (10) YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY.
WALLER, C.J., DICKINSON, RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. GRAVES, P.J., NOT PARTICIPATING.
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Eric Tate v. State of Mississippi
Combined Opinion