Calvin Giles v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01222-COA

CALVIN GILES APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/29/2018
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/25/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

McDONALD, J., FOR THE COURT:

¶1. The Coahoma County Circuit Court found Calvin Giles guilty of fondling on January

25, 2018, and sentenced him to serve twelve years in the custody of the Mississippi

Department of Corrections, with eight years to serve and four years on supervised probation.

He appeals his conviction on two grounds: the erroneous admission of prior bad-acts

evidence and procedural errors in the selection of his jury. After reviewing the record and

relevant law, we affirm.

FACTS

¶2. In July 2015, fifty-six year old Calvin Giles, also known as “Rev,” lived down the
street from eight-year-old “Mia”1 and her mother, “Sandra.” Giles sold candy, chips, sodas

and cigarettes out of his home, and Mia had often purchased items from him. On July 18,

2015, Mia went to Giles’s house with a friend of hers, “Gail,” to buy some snacks. While

there, Giles kissed Mia, touched her private parts, and exposed his penis to her. She told him

not to do that and left. Later that evening when Sandra told Mia to take a bath, Mia told her

mother what Giles had done. Sandra immediately called Mia’s father “Mike” who lived

nearby. When Mike arrived, Mia told him that the man down the street who sells candy had

touched her between her legs on her private area and “pulled himself out” (exposed himself).

Mike and Sandra went to Giles’s home. Although he was there, Giles did not answer the

door when they knocked and called to him.

¶3. Sandra and Mike then called the Clarksdale Police Department. Officer Jacob

Braxton responded, and Mia’s parents reported that Mia had been touched inappropriately

by Giles. Per department protocol, Braxton notified Investigator Nicholas Turner who met

with Sandra and Mike two days later. He told them that he would schedule Mia for a

forensic interview with Meredith Rawl of the Family Crisis Services Center of Northwest

Mississippi in Oxford. This interview was conducted on August 12, 2015.

¶4. Ms. Rawl, an experienced forensic interviewer,2 testified at trial about the interview.

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To protect the identity of the minor child involved in this case, fictitious names are
used for the victim and the victim’s relatives.
2
Rawl’s credentials clearly established her as an expert witness. She has a degree in
psychology and a graduate degree in psychopharmacology. She has had over 400 hours of
training in the field of child sex abuse and forensic interviewing and over 500 hours of
continuing education. She had worked at the Family Crisis Center for eight years and
conducted over 500 forensic interviews.

2
She explained what forensic interviewing was and how she elicits information from children

in a non-leading or suggestive way. She said Mia told her the following:

She disclosed that she asked him for a quarter, and he told her to hug him and
then kissed her jaw with his mouth and touched all over her body. She
disclosed that his hand touched her buttocks and vaginal area on top of her
clothing. She reported that she told him to stop, and he said, “Shhh.”
Additional[ly], she reported that on more than one occasion he showed her his
penis . . . and stated that he was touching his penis when he showed it to her.
She stated that the first time he showed her his penis she was seven and the last
time she was eight.

Ms. Rawl had previously testified in this same way at the pre-trial Rule 803 certification

hearing. At that time, the court noted that the last portion of this testimony may not be

admissible and instructed the State to caution its witnesses and have them testify only to the

events of the day in question. At trial, however, Rawl testified exactly as she had during the

pre-trial hearing. No objection was made and her questioning continued without interruption.

¶5. Rawl also testified that she assesses a child to determine if their actions are consistent

with having been abused. Rawl said:

A. So during the interview, I’m assessing the child’s—their age and their
abilities to provide information. I’m looking for the consistency in their
statements, peripheral information, sensory information, who was
involved, if they’re able to provide that kind of information to me
during the interview, and also give me spontaneous information, clarify
and correct me if needed, then my findings are consistent with that of
a child who’s been sexually abused.

Q. How often do you find that a child, through your interviewing process,
has provided information consistent with that of a child that’s been
sexually abused?

A. It’s actually less than 50 percent of the cases that I have.

In this case, Rawl concluded that, in her opinion, Mia exhibited signs consistent with a child

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who was sexually abused. The defense objection to this opinion testimony was overruled.

¶6. Mia also testified at the trial, saying that on that day she had asked Giles for a quarter

to buy an ice cup and Giles asked her for a hug. Giles then touched her on her “coo coo”—

her vagina—and on her booty. Mia’s mother and father testified as noted above. Other

witnesses for the prosecution included law enforcement officers.

¶7. Giles also testified, saying that Mia had come to his house begging for candy and that

when he refused, she left. He emphatically denied ever touching or kissing Mia. He also

testified that Mia has come to buy things from him since this incident.

¶8. Based on this testimony, the jury convicted Giles. After trial, he filed a motion for

judgment notwithstanding the verdict, objecting to Rawl’s testimony that in her opinion Mia

conducted herself in a manner of a person who had been sexually molested. Giles also

challenged the sufficiency of the evidence. The court denied this motion.

¶9. On appeal, Giles raises only two issues. Giles argues that Rawl’s testimony that Mia

had reported Giles exposing himself to her on prior occasions was evidence of prior bad acts

that should not have been admitted. He also challenged the method by which the judge chose

alternate jurors. Giles says that both errors were prejudicial to him and denied him a fair

trial.

STANDARD OF REVIEW

¶10. “Our well-established standard of review for the trial court’s admission or suppression

of evidence, including expert testimony, is abuse of discretion.” Bradley v. Diamondhead

Country Club & Prop. Owners Ass’n Inc., No. 2017-CA-01389-COA, 2019 WL 1915370,

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at *1 (¶6) (Miss. Ct. App. Apr. 30, 2019) (citing Tunica County v. Matthews, 926 So. 2d 209,

212-13 (¶5) (Miss. 2006)). “We give great deference to the discretion of the trial judge.”

Id. “Unless we conclude that the discretion was arbitrary and clearly erroneous, amounting

to an abuse of discretion, that decision will stand.” Id. We review the circuit court’s

decisions in empaneling a jury and substituting alternate jurors for abuse of discretion.

Shannon v. State, No. 2017-KA-01063-COA, 2019 WL 350626, at *1 (¶7) (Miss. Ct. App.

Jan. 29, 2019); McCoy v. State, 820 So. 2d 25, 29 (¶11) (Miss. Ct. App. 2002).

DISCUSSION

I. Whether the Circuit Court abused its discretion in admitting the
testimony of Giles’s prior bad acts.

¶11. Giles points to two sentences in Rawl’s testimony that he contends constitutes

evidence of prior bad acts that prejudiced the jury against him. In relating what Mia had told

her, Rawl included the following:

Additional[ly], she reported that on more than one occasion he showed her his
penis . . . and stated that he was touching his penis when he showed it to her.
She stated that the first time he showed her his penis she was seven and the last
time she was eight.

Giles points out that during the pre-trial Rule 803 certification hearing, Rawl had said the

same thing that prompted the following exchange with the court:

THE COURT: Mr. Williams, during our 803 hearing, I certainly heard
testimony or—yeah, I did I heard testimony that
indicated that there may be allegations that similar
incidents occurred at different times. Does the State
anticipate going into any incidents that occurred at a time
other than that alleged in the indictment?

MR. WILLIAMS: At this point I do not, but, of course, can I report back to

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the Court after lunch to—

THE COURT: You can, but if you do not—if that position changes, I
would like it to be known before we get into that.

MR. WILLIAMS: Yes, sir.

THE COURT: And secondly, if it does not change, I expect you to
caution your witnesses about not making any reference to
anything other than the date of the indictment.

MR. WILLIAMS: Yes, sir.

Giles claims that the prosecution failed to instruct Rawl not to testify to Mia’s disclosure of

prior instances of exposure. But Giles failed to object to this testimony at trial and he did not

raise the alleged error in his post-trial motion for JNOV. The State argues that because of

this failure to object, Giles waived this issue.

¶12. Mississippi Rule of Evidence 404(b) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith.
It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.

Thus, evidence of other acts or crimes cannot be admitted to show that a defendant acted in

conformity with his or her character. Even if admissible for some other purpose, before

admitting evidence of prior bad acts, a circuit court must filter the evidence through

Mississippi Rule of Evidence 403 and determine whether the evidence’s probative value

outweighs its prejudicial effect to the defendant. Derouen v. State, 994 So. 2d 748, 756

(¶20) (Miss. 2008). If a circuit court finds the probative value outweighs the prejudicial

effect, the evidence may be admitted, provided the jury is given a limiting instruction

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regarding the evidence in question. Id. Our review of this issues is limited. In Baldwin v.

State, 784 So.2d 148, 156 (¶27) (Miss. 2001), the supreme court stated that the task of an

appellate court reviewing a Rule 403 determination is not to engage anew in the Rule 403

balancing process. Rather, it must simply determine whether the trial court abused its

discretion in weighing the factors and admitting or excluding the evidence.

¶13. The circuit court here anticipated a prior bad acts issue when Rawl testified at the pre-

trial certification hearing. The court alerted the State to tell Rawl and other witnesses not to

testify to anything except the events of the day cited in the indictment. Whether the State

failed to do this, or whether Rawl ignored such an instruction, the testimony came in.3 Giles

did not object, and the circuit court itself did not interrupt the proceedings to deal with this

potentially inadmissible testimony.4 In addition Giles did not request a limiting instruction

or raise this issue in his Motion for JNOV. Giles raises this issue for the first time on appeal.

¶14. The failure to object to testimony at trial waives any assignment of error on appeal.

Manning v. State, No. 2016-KA-01301-COA, 2018 WL 1165746, at *3 (¶15) (Miss. Ct. App.

Mar. 6, 2018), reh’g denied (Oct. 2, 2018) (citing Ross v. State, 16 So. 3d 47, 57 (¶21) (Miss.

Ct. App. 2009)). “The rationale behind the contemporaneous objection rule is so that the trial

court may, when possible, correct the error with proper instructions to the jury.” Jenkins v.

3
There is nothing in the record to show that the State failed to follow the court’s
instruction.
4
This is not the testimony of another victim that would show modus operandi or
some alternative purpose for the evidence as an exception to Rule 404. Strickland v. State,
220 So. 3d 1027, 1032-33 (¶¶16-20) (Miss. Ct. App. 2016). This is also not testimony
needed to complete the story for the jury. Brown v. State, 890 So. 2d 901, 912 (¶56) (Miss.
2004).

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State, 75 So. 3d 49, 57 (¶21) (Miss. Ct. App. 2011). Therefore, a trial judge will not be found

in error on a matter not presented to him or her for decision. Smith v. State, 724 So. 2d 280,

319 (¶155) (Miss.1998). Here Giles’s failure to object to Rawl’s testimony precludes him

from challenging it on appeal.

¶15. A party that fails to make a contemporaneous objection at trial must rely on plain error

to raise the issue on appeal. Starr v. State, 997 So. 2d 262, 266 (¶11) (Miss. Ct. App. 2008).

The plain-error doctrine must be applied only when certain conditions are met, such as when

a violation “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at (¶12). Additionally, “[p]lain-error review is properly utilized for

‘correcting obvious instances of injustice or misapplied law.’” Bowdry v. State, 158 So. 3d

354, 356 (¶6) (Miss. Ct. App. 2014) (quoting Smith v. State, 986 So. 2d 290, 294 (¶10) (Miss.

2008)).

¶16. “To determine if plain error has occurred, we must determine if the trial court has

deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error

has prejudiced the outcome of the trial.” Bowdry, 158 So. 3d at 356 (¶7) (citing Hurt v.

State, 34 So.3d 1191, 1197 (¶17) (Miss. Ct. App.2009)). Here, Giles argues that this

testimony was prejudicial to Giles’s defense and that the court violated Mississippi Rule of

Evidence 105, which was recently amended. Mississippi Rule of Evidence 105 reads:

If the court admits evidence that is admissible against a party or for a
purpose—but not against another party or for another purpose—the court,
unless expressly waived or rebutted, shall restrict the evidence to its proper
scope, contemporaneously instruct the jury accordingly, and give a written
instruction if requested.

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M.R.E. 105 (effective July 1, 2015).

¶17. Giles argues that he did not expressly waive the admission of this evidence and thus

the circuit court was required sua sponte to immediately instruct the jury to disregard the

testimony of other alleged instances of sexual exposure by Giles. Because the court did not

do so, Giles claims it deviated from a legal rule. Moreover, Giles argued that the circuit

court knew that the error would be obvious because it anticipated the issue beforehand.

¶18. Considering the law and the facts, the admission of Rawl’s testimony without

objection at trial does not warrant a “plain error” review. We have dealt with the amended

Rule 105 in a case similar to this where a defendant raised the admission of prior bad acts in

his criminal trial, Curry v. State, 202 So. 3d 294 (Miss. Ct. App. 2016). There we said:

Finally, Curry makes a related argument that the trial judge failed to comply
with Mississippi Rule of Evidence 105 because he did not give a limiting
instruction concerning the disciplinary violations. As amended effective July
1, 2015, Rule 105 provides that “[i]f the court admits evidence that is
admissible . . . for a purpose—but not . . . for another purpose—the court,
unless expressly waived or rebutted, shall restrict the evidence to its proper
scope, contemporaneously instruct the jury accordingly, and give a written
instruction if requested.” However, even assuming that the trial judge erred
by not offering a limiting instruction, the error was harmless.

To begin with, even as amended, Rule 105 only requires the judge to offer a
limiting instruction, which the defendant is free to “waive.” M.R.E. 105. The
Supreme Court has recognized on a number of occasions that the defendant
may not want such an instruction because it may actually “focus the jury’s
attention” on the potentially prejudicial testimony. Tate, 912 So. 2d at 928
(¶28) (quoting Brown v. State, 890 So. 2d 901, 913 (¶35) (Miss. 2004)). Thus,
Curry’s claim on appeal that he was prejudiced because such an instruction
was not given is highly speculative. Curry’s attorney presumably knew that
such an instruction was available upon request, but he did not ask for it. Under
the circumstances, we cannot say that the absence of a limiting instruction
deprived Curry of a fair trial. See Robinson v. State, 940 So. 2d 235, 239 (¶11)
(Miss. 2006) (holding that the erroneous denial of a limiting instruction is

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harmless error unless it deprives the defendant of a fair trial).

Curry, 202 So. 3d at 299 (¶¶15-16).

¶19. Similarly, here Giles’s attorney presumably knew that he could have objected or asked

the court for a limiting instruction but he chose not to. Although there is language in Rule

105 that appears to put the burden of immediate correction on the trial court, we do not fault

a trial court for not sua sponte interrupting testimony when no party has objected. To do so

the court may have been accused of erroneously commenting on the evidence that would

violate Mississippi Code Annotated section 99-17-35 (Rev. 2015) (“[T]he judge in any

criminal cause, shall not sum up or comment on the testimony . . .); see also Lofton v. State,

818 So. 2d 1229, 1232 (¶10) (Miss. Ct. App. 2002). Accordingly, under these facts, we

cannot say that the failure of the court to interrupt the testimony and instruct the jury about

Rawl’s comments deprived Giles of a fair trial.

¶20. Giles has made no showing that the admission of Rawl’s testimony prejudiced the jury

against him. If anything, the jury seemed more interested in testimony that Giles himself

volunteered on cross examination:

Q. Mr. Giles, you indicated that you live at 227 Lynn Street; is that
correct?

A. That’s correct.

Q. And you indicated you lived there since what time frame?

A. Well, I’ve been locked up a couple of years. So it’s been about four
or five years.

During its deliberations, the jury sent out one question:

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THE COURT: All right. This is 2016-0034. The record shows we’re
in chambers, that I have received—along with
defendant and Defense counsel, along with counsel for
the State. I received a note from the jury. It says: (As
read)
“On what date was the defendant locked up?
After July 18th, 2015?”

¶21. Giles’s own testimony that he had previously been “locked up” seemed to have had

more influence on the jury than Rawl’s testimony of prior exposures. In addition, the State

did not argue this statement by Ms. Rawl to the jury. Thus, Giles’s plain-error claim is

meritless and we hold that the circuit court committed no reversible error with respect to its

handling of the Rawl’s testimony.

II. Whether the Circuit Court’s manner of selecting alternate jurors
constitutes reversible error.

¶22. This Court is familiar with the circuit court’s unique method for selecting alternate

jurors. As in other cases, the court here required the parties to use all of their preemptory

strikes, including those that would be used for alternates, to impanel the full complement of

jurors. At the end of closing arguments, the names of two jurors were pulled from a hat; they

were deemed to be the alternates and excused. The remaining jurors retired to deliberate and

render their verdict. At no point, before or after the jury was empaneled or the alternates

chosen, did Giles object even though this procedure deviates from the procedure outlined in

the new Mississippi Rules of Criminal Procedure 18.3 and 18.4 that went into effect on July

1, 2017. Giles argues that before the adoption of these rules, appellate courts had excused

this court’s deviation under Mississippi Code Annotated section 13-5-87 that says that all

provisions of law relating to jury selection are “directory merely.” Now Giles contends we

11
must recognize and strictly enforce Mississippi Rules of Criminal Procedure concerning jury

selection and reverse his conviction for the court’s failure to do so.

¶23. Again, Giles failed to object to the procedure, which would preclude him from

arguing it now on appeal. See infra at ¶15. Accordingly, we can consider this issue only

under the plain error doctrine as well.

¶24. As we have said before, this is not the first time we have been presented with this

circuit court judge’s irregular method of jury selection. In Stone v. State, 188 So. 3d 593

(Miss. Ct. App. 2015), Stone challenged his drug conviction in part on this issue. We found

no merit to the claim for several reasons. First, Stone had failed to make a contemporaneous

objection. Id. at 595 (¶8). Second, we noted that this Court gives a substantial degree of

deference to the judiciary in determining its procedures for empaneling a jury. Id. Third,

we said that Mississippi Code Annotated section 13-5-87 (Rev. 2012) provides that all

provisions of the law concerning the impaneling of juries are directory merely, and that a jury

so empaneled shall be deemed a legal jury. Id.

¶25. The next challenge to this method of jury selection was raised in Burrell v. State, 183

So. 3d 19 (Miss. 2015). There Burrell was convicted of kidnaping, and on appeal he raised

this same “abuse of discretion” argument for the court’s ignoring the rules for selecting

alternate jurors. Id. at 22 (¶8). But when the trial began and the court announced its method

of jury selection, Burrell made no objection. Only when it came time to draw the names to

select the alternates did Burrell object citing Uniform Rules of Circuit and County Court

Rule 4.05. The supreme court held that Burrell waived the claim by not objecting at the

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beginning of voir dire when the court could have changed his proposed method. Id. at

(¶11)(citing Vaughn v. State, 712 So. 2d 721,725 (¶15) (Miss. 1998)).

¶26. The third challenge to this circuit court’s method of jury selection was raised in Carr

v. State, 190 So. 3d 1 (Miss. Ct. App. 2015). There Carr was tried for killing a store manager

in the commission of a robbery. Id. at 2 (¶11). The court notified the parties of its ususal

procedure for selecting juror and alternates and neither objected. Id. at (¶12). We held that

by not objecting Carr had waived his right to complain on appeal. Id. at 7 (¶26) (citing

Burrell v. State, 183 So. 3d 19, 21-22 (¶¶10-11) (Miss. 2015)). We then considered this jury

selection process under the plain-error doctrine. Id. at (¶27). But to succeed under the plain

error standard, Carr would have to show (1) an error at the trial level, and (2) that resulted

in a manifest miscarriage of justice. Id. at (¶27). On the first element, we held that there was

no error because of Mississippi Code Annotated section 13-5-67. Id. at (¶28). We went on

to find that Carr had not shown how this manner of jury selection had affected his

fundamental, substantive rights. Id. at (¶29). Carr had not shown that the jurors were

incompetent or impartial. Although Carr also claimed that his defense counsel was

prejudiced by not being allowed to allocate his preemptory challenges between the panel and

the alternates, we noted that preemptory challenges are “not of constitutional dimension.”

Simmons v. State, 805 So. 2d 452, 501 (¶137) (Miss. 2001). Without a showing of partiality

by the jury, we held that Carr’s challenges were meritless.

¶27. Here Giles’s objections echo those raised in Stone, Burrell, and Carr. Under the

precedent set in those cases, we would normally reject Giles’s objections as well. But Giles

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does argue that these prior rulings concerning the circuit court’s jury selection procedure pre-

date the adoption of the new rules of criminal procedure which causes us to pause.

¶28. The comment to Mississippi Rules of Criminal Procedure Rule 1.1 says that the rules

are designed to provide comprehensive and uniform practice and procedure for criminal

proceedings in all Mississippi trial courts. Further, the comment states:

It is now well established that “the constitutional concepts of separation of
powers dictates that it is within the inherent power of this Court to promulgate
procedural rules to govern judicial matters.” Thus when a statute conflicts with
the judicial procedure, our rules control.

M.R.Cr.P. 1.1, comment (citing State v. Delaney, 52 So. 3d 348, 351 (Miss. 2011)).

Concerning challenges to jurors, Mississippi Rules of Criminal Procedure Rule 18.3

(c)(1)(B) specifically states: “These challenges for alternate jurors may not be used in the

selection of regular jurors.”

¶29. Mississippi Code Annotated section 13-5-67 (Rev. 2012) points out that alternates

only replace regular jurors who become unable or disqualified to perform their duties. We

now have new Rules of Criminal Procedure that the supreme court has said control even

when they conflict with a statute. Therefore, jury selection methods must conform with the

Rules of Criminal Procedure when applicable.

¶30. We find that the court did deviate from a legal rule in the manner in which it selected

alternate jurors. But we find that there was no proof that the error was prejudicial to Giles.

Giles claims that because of the court’s procedure, an acquaintance of the victim’s mother

(Juror 26) was empaneled as a deciding juror as was Juror 34, who had previously served on

a criminal jury and found the defendant guilty. Giles claims that both jurors would have been

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alternates under the procedure set forth in the rules. A review of the transcript of the

proceedings does confirm that Juror 26 was the thirteenth juror impaneled and Juror 34 was

the fourteenth. But Giles used only three of the six preemptory challenges afforded him. He

could have excused Jurors 26 and 34 altogether, but he did not. Thus, any alleged prejudice

was of Giles’s own making. Moreover, Giles provided no proof that the jury was not

impartial or was biased against him. Consequently, we find no plain error in the manner in

which the jury was selected that would require reversal. But we do caution courts to follow

the Mississippi Rules of Criminal Procedure, when applicable, in the future when

empaneling a jury.

CONCLUSION

¶31. Because there was no error in the inadvertent admission of a single reference to

Giles’s alleged prior bad acts and because there was no plain error shown in the manner of

the jury selection, we affirm Giles’s conviction and sentence with the caveat to the court that

in the future the Rules of Criminal Procedure dealing with jury selection must be followed

when applicable.

¶32. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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