IN THE SUPREME COURT OF MISSISSIPPI

NO. 92-KA-00649-SCT

MONROE AMACKER

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 5/14/92

TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE

COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JEFFREY BRADLEY

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT S. FLYNN

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 6/13/96

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 7/8/96

EN BANC.

PRATHER, PRESIDING JUSTICE, FOR THE COURT:

I. INTRODUCTION

¶1. This case concerns two issues - whether, under these circumstances, the limitations on the defendant's

presentation of evidence under M.R.E. 412, the rape shield rule, is unconstitutional as an impairment of the

defendant's Sixth Amendment right to present witnesses in defense, and also as an impairment of the

defendant's ability to demonstrate that he was not the source of the injury, under M.R.E. 412(b)(2)(A).

From the Forrest County Circuit Court, this case is appealed from a conviction of capital rape for which

conviction Monroe Amacker was sentenced as a recidivist to life imprisonment without parole. Amacker

moved for a new trial, which was denied and from which Amacker filed his appeal on the following issues:

1) DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY RESTRICTING

AMACKER'S RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE BY EXCLUDING THE

TESTIMONY OF JACKIE DAVIS AND JOHNNY MARTONE?

2) DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY REFUSING TO ALLOW

EVIDENCE OFFERED BY AMACKER TO REBUT THE CONTENTION THAT AMACKER
WAS THE SOURCE OF THE VICTIM'S INJURY?

II. STATEMENT OF THE FACTS

¶2. Monroe Amacker (Amacker) was the live-in boyfriend of Virginia Davis. He was convicted of raping

12-year-old Jane Smith,(1) who was spending the night with Mrs. Davis' daughter, Jackie, on the night of

March 23, 1991. Seven other people also spent the night at the Davis house. The State's testimony

consisted of Jane's account of the rape. She unequivocally identified Amacker as the person who came into

the bedroom and raped her.

¶3. Chris Poole, Mrs. Davis' grandson who was sleeping in the living room next to Jane's bedroom, testified

that he heard Jane during the night telling Amacker to "stop and let me talk to you for a minute." He said he

heard that at least four times and heard her use the name, Monroe. Poole said she was crying. On crossexamination, he said he did not go to her aid because he "didn't think it was any of my business." He said he

never heard her scream.

¶4. Mrs. Donna Hutto, Jane's mother, testified that she found blood on Jane's underwear when she started

the wash on Sunday after Jane had returned from Jackie's house. Jane told her she had started her period.

She also notice a bruise on Jane's right cheek. Jane did not tell her mother about the rape until the last week

of April, at which time Mrs. Hutto went to the police department and filed charges.

¶5. Dr. Kathy Sessums testified that she examined Jane on May 6. She said that Jane's hymen was not

intact and there were several lacerations in the vaginal area, consistent with vaginal penetration which had

healed.

¶6. The defense presented Virginia Davis, who testified that Amacker slept with her on the night of March

23 and that to her knowledge he didn't get up at any time during the night. She said she didn't hear anything

during the night. She also said that Jane fell off a swing and hurt her face that afternoon, but on crossexamination, admitted that she had never told the story of the swing incident before. The defendant took the

stand on his own behalf and denied entering the room that night or having any type of sexual contact with

Jane Smith.

¶7. On pre-trial motions, the State moved to exclude all testimony relating to Jane's sexual behavior or

conduct. Amacker delivered a motion of intent to attack Jane's credibility by presenting two witnesses to

testify that Jane was in bed with Chris Poole, and not Amacker. The trial court conducted a hearing, in

which all of the witnesses were examined for their testimony.

¶8. Peggy Martone, the mother of two boys staying at the house, testified that her son, Johnny Martone,

told her that Chris Poole had gone into Jackie's bedroom. Peggy Martone also told the court that her son

had only stayed at the house twice, once several years before, and once on the night of the rape incident.

She later stated he may have spent the night twice, "to be on the safe side." Virginia Davis testified that the

only time all eight people spent the night together at her house was the night of the incident. She was not

sure whether that was either a Friday night or a Saturday night. Jackie Davis testified that because she felt

the curly hair of the person in bed with Jane, she knew it was Chris Poole, and told her mother it was Chris.

¶9. After hearing the witnesses offered to attack Jane's credibility, the trial court ruled that Johnny Martone

could not specify the date upon which Chris Poole's alleged conduct occurred, and was therefore not able

to testify under Miss. Code Ann. § 97-3-68. The trial court also ruled that Jackie's observations of the
person near Jane's bed were speculative, and not necessarily sexual in nature, and also ruled that Jackie

could not specify the date on which this incident occurred. When Amacker's counsel inquired as to why he

could not ask Jackie as to the curly hair she felt, the trial court responded that the whole observation was

speculative, in his mind. As a result, Jackie was not able to testify under Miss. Code Ann. § 97-3-68.

¶10. The jury rendered a verdict of guilty. At sentencing, Amacker admitted that he had been convicted

twice before, of forgery and felony burglary. The trial court then sentenced Amacker to life imprisonment as

a recidivist, without benefit of parole or early release. Amacker moved for a new trial, assigning error in the

trial court's not permitting Jackie or Johnny Martone to testify. The trial court denied the motion.

III. ANALYSIS

1) DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY RESTRICTING

AMACKER'S RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE BY EXCLUDING THE

TESTIMONY OF JACKIE DAVIS AND JOHNNY MARTONE?

2) DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY REFUSING TO ALLOW

EVIDENCE OFFERED BY AMACKER TO REBUT THE CONTENTION THAT AMACKER

WAS THE SOURCE OF THE VICTIM'S INJURY?

¶11. The State used the notice defense of M.R.E. 412 to support the exclusion of Jackie or Johnny's

testimony. Both Jackie and Johnny were excluded from testifying on the grounds that they could not testify

as to the date on which the alleged sexual act occurred; and that Jackie's testimony was also barred as

speculative, in that she had testified to several versions of this story, all under Miss. Code Ann. § 97-3-68.

¶12. As a result, this analysis is divided into different sections, dealing with (1) the applicability of M.R.E.

412 to this case; (2) the impact, if any, of the fact that the State did not assert M.R.E. 412 at trial; and (3)

beyond M.R.E. 412, a discussion of the trial court's ability to bar the testimony of these children for other

reasons.

A) The applicability of M.R.E. 412 under these circumstances.

¶13. M.R.E. 412 controls over any statutory evidence rules, rendering them unenforceable. Hall v. State,

539 So. 2d 1338, 1340 (Miss. 1989). Although neither party relied upon M.R.E. 412 at trial, instead

utilizing Miss. Code Ann. § 97-3-68 (1994 rev.), both parties agree that M.R.E. 412 is the proper

standard. M.R.E. 412 provides, in pertinent portions:

RULE 412. SEX OFFENSE CASES; RELEVANCE OF

VICTIM'S PAST BEHAVIOR

(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a

sexual offense against another person, reputation or opinion evidence of the past sexual

behavior of an alleged victim of such sexual offense is not admissible.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a
sexual offense against another person, evidence of a victim's past sexual behavior other than

reputation or opinion evidence is also not admissible, unless such evidence other than reputation or

opinion evidence is:

(1) Admitted in accordance with subdivisions (c)(1) and (c)(2) hereof and is constitutionally required

to be admitted; or

(2) Admitted in accordance with subdivision (c) hereof and is evidence of

(A) Past sexual behavior with persons other than the accused, offered by the accused upon the issue

of whether the accused was or was not, with respect to the alleged victim, the source of semen,

pregnancy, disease, or injury; or

. . . .

(c) (1) If the person accused of committing a sexual offense intends to offer under subdivision (b)

evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false

allegations made by the alleged victim, the accused shall make a written motion to offer such

evidence not later than fifteen days before the date on which the trial in which such evidence

is to be offered is scheduled to begin, except that the court may allow the motion to be made

at a later date, including during trial, if the court determines either that the evidence is

newly discovered and could not have been obtained earlier through the exercise of due

diligence or that the issue to which such evidence relates has newly arisen in the case. Any

motion made under this paragraph shall be served on all other parties and on the alleged victim.

. . . .

(d) For purposes of this rule, the term "past sexual behavior" means sexual behavior other than the

sexual behavior with respect to which the sexual offense is alleged.

[emphasis added].

¶14. The first question is whether M.R.E. 412(b) applies. M.R.E. 412(b)(2)(A) requires that a defendant

who wishes to introduce evidence of "past sexual behavior with persons other than the accused, offered by

the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the

source of semen, pregnancy, disease, or injury." M.R.E. 412(b)(2)(A). The issue is whether M.R.E. 412(b)

(2)(A) applies to exclude the testimony of Jackie Davis and Johnny Martone.

¶15. M.R.E. 412(d) answers the question in this case. M.R.E. 412(d) exempts from the bar against

evidence of past sexual behavior "sexual behavior with respect to which the sexual offense is alleged."

M.R.E. 412(d); see also Goodson v. State, 566 So. 2d 1142, 1150 (Miss. 1990)(plurality). Other

courts have interpreted this provision in their own rules to mean that evidence pertaining to the sexual act in

question, such as identity, is outside the scope of the rape shield rule. United States v. Torres, 937 F.2d

1469, 1472 (9th Cir. 1991), cert. denied, 502 U.S. 1037, 112 S. Ct. 886 (1992); State v. Gettier, 438

N.W.2d 1, 2-3 (Iowa 1989) (asserting despite Rule 412's inapplicability, trial court could still exclude

evidence as more prejudicial than probative).

¶16. Furthermore, courts have stated that the rape shield rule's protections are inapplicable, where "[t]he
act offered in explanation was not a prior "separate incident" but an alternative account of the events of that

evening offered to counter the prosecution's medical testimony." Commonwealth v. Majorana, 470 A.2d

80, 85 (Pa. 1983). The Majorana Court explained that the defendant must have the opportunity to explain

the "presence of semen and sperm in the victim's body." 470 A.2d at 85. That court defended its holding on

the ground that to do otherwise "would deny appellant the chance to defend by presenting a denial of the

prosecution's case." Id.; see Rock v. Arkansas, 483 U.S. 44, 56 (1987); see generally State v. Reinart,

440 N.W.2d 503, 506 (N.D. 1989). The Majorana Court directly limited the introduction of such

evidence to a time frame "close enough in time to the act with which he is charged that it is relevant to

explain the presence of objective signs of intercourse." 470 A.2d at 84. For this reason, two cases, which

hold that general evidence of chastity is admissible, while specific evidence relating to an alternative source

of injury is not, are overruled by adoption of the Mississippi Rules of Evidence. See Shay v. State, 229

Miss. 186, 192-93, 90 So. 2d 209, 211 (1956); Barnes v. State, 164 Miss. 126, 136, 143 So. 475, 477

(1932).

B) On the merits outside M.R.E. 412, is there justification for striking Jackie Davis and

Johnny Martone's testimony?

¶17. As stated above, the trial court struck the testimony of Jackie Davis and Johnny Martone because

neither could testify precisely as to what day this incident occurred, and Jackie Davis' inconsistencies in her

story made her testimony speculative.

¶18. Neither M.R.E. 412 nor Miss. Code Ann. § 97-3-68 discuss the exclusion of evidence merely

because it is speculative, or the witness has an inability to give the calendar date of the incident. However,

since both Johnny Martone and Jackie Martone are children, the trial court does have the ability to exclude

their testimony as incompetent, under an abuse of discretion standard. Mohr v. State, 584 So. 2d 426,

431 (Miss. 1991); King v. State, 374 So. 2d 808, 812 (Miss. 1979), cert. denied, 445 U.S. 917, 100

S. Ct. 1279, 63 L. Ed. 2d 602 (1980). In King, this Court affirmed the trial court's rejection of a child

witness, based upon the fact that the child could not tell the court when his birthday was. King, 374 So. 2d

at 812. However, other states which have reviewed cases in which the child could not remember the date

of the incident, which is the question here, have stated that this problem goes to the credibility, and not the

absolute competence, of the witness. People v. Gillispie, 767 P.2d 778, 781 (Colo. Ct. App. 1988);

State v. Rogers, 692 P.2d 2, 5 (Mont. 1984). Applying the principle of these cases to Johnny Martone's

inability to give the date of the incident, the trial court judge abused his discretion by refusing to admit

Johnny's testimony.

¶19. As for Jackie Davis, her inability to testify as to the exact date of the incident similarly goes to

credibility.(2) Gillispie, 767 P.2d at 781. However, the trial judge would not allow her to testify as to a

person with curly hair being in the room with Jane Smith and herself, because it was speculative. It would

be speculative for Jackie to testify as to whom was in the room, based upon her only identification being a

boy with curly hair.(3) However, Jackie could testify that a boy with curly hair was in the room, as she

obtained that information directly from her sense of touch. That testimony was not speculative. Perkins v.

State, 290 So. 2d 597, 599 (Miss. 1969).

¶20. In conclusion, the trial court erred by not admitting Johnny Martone's testimony, and by not admitting

Jackie Davis' testimony about a person with curly hair near Jane Smith in Jackie's bedroom during the time

of the incident. However, the trial court was correct in not allowing Jackie to testify that the person was
Chris Poole.

IV. CONCLUSION

¶21. M.R.E. 412 did not apply in this case, as conflicting evidence of who actually caused the injury during

the incident in question is outside the scope of the rape shield rule, under M.R.E. 412(d). On the merits

outside the rape shield rule, the trial court was incorrect in excluding Johnny Martone's testimony and Jackie

Davis' testimony on the grounds that they could not specify the date in question. Gillespie, 767 P.2d at

781. Furthermore, the trial court was incorrect in refusing to allow Jackie Davis to at least state that Jane

Smith was with a boy with curly hair during the time of the incident. Perkins, 290 So. 2d at 599. However,

the trial court was correct in not allowing Jackie Davis to identify a specific person from her testimony, since

it was too vague to be accurate, and there was evidence of a corrupting influence to her identification.

Hansen, 592 So. 2d at 138; Manotas-Mejia, 824 F.2d at 369.

¶22. REVERSED AND REMANDED FOR A NEW TRIAL.

LEE, C.J., SULLIVAN, P.J., BANKS, ROBERTS AND SMITH, JJ., CONCUR. McRAE, J.,

CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

PITTMAN AND MILLS, JJ., NOT PARTICIPATING.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶23. Although I agree the trial court erroneously refused to admit the testimonies of Johnny Martone and

Jackie Davis, the question regarding Davis' "vague" identification of a specific person is a credibility issue

which should not be resolved by this Court. Whether the identification by Davis was corrupted or too vague

to be accurate is an issue of credibilty which should be resolved by the jury after Davis is permitted to

testify regarding the incident in question. The accuracy of her testimony would be more effectively explored

and ascertained on cross-examination than at the appellate level.

1. The names of the minor children have been changed to protect their anonymity.

2. This point is particularly valid when testimony established that the only time all the witnesses (Johnny

Martone, Amacker, Jackie Davis, and Jane Smith) were in the Virginia Davis home was when the incident

occurred.

3. Courts have stated that certain factors are important in determining whether an identification is reliable

and admissible. Hansen v. State, 592 So. 2d 114, 138 (Miss. 1991), cert. denied, 504 U.S. 921 (1992)

. These factors include the opportunity for the witness to see the offender during the time of the criminal act;

the "witness's degree of attention;" the "accuracy of the witness's prior description of the criminal;" the "level

of certainty demonstrated by the witnesses at the confrontation," and "the length of time between the crime

and the confrontation." Hansen, 592 So. 2d at 138. The Fifth Circuit added a factor of the presence of a

"corrupting influence of suggestive identification." United States v. Manotas-Mejia, 824 F.2d 360, 369

(5th Cir.), cert. denied sub nom, Ramirez-Rios v. United States, 484 U.S. 957 (1987). Under these

circumstances, where Jackie knew only the identity of the person from his "curly" hair, and where there was
evidence that Jackie's mother coached her testimony, her identification of Chris Poole was unreliable and

inadmissible.