                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2009-KA-01419-SCT

GREGORY L. REDMOND

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          07/16/2008
TRIAL JUDGE:                               HON. L. BRELAND HILBURN
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                           BY: HUNTER N. AIKENS
                                                LESLIE S. LEE
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LAURA H. TEDDER
DISTRICT ATTORNEY:                         ROBERT SHULER SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 06/02/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE DICKINSON, P.J., LAMAR AND KITCHENS, JJ.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    Gregory Redmond was convicted of statutory rape of a twelve-year-old girl and

sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). He

raises two issues on appeal: (1) the trial court erred in admitting hearsay statements of the

victim under the tender-years exception, and (2) the trial court erred in denying his motion
to suppress his statement. Finding no merit in these arguments, we affirm Redmond’s

conviction and sentence.

                                           FACTS

¶2.    Redmond was indicted under Mississippi Code Section 97-3-65(1)(b) for the statutory

rape of Tracy Potts.1 At trial, the State submitted evidence that at the time of the incident,

Redmond was twenty-seven and Potts was twelve. Testimony also established that Redmond

was a family friend.

¶3.    Potts, sixteen at the time of trial, testified that Redmond was supposed to take her to

a friend’s house but instead drove her to his house, where he forced her out of the car and

into his home. She stated that he had placed a pistol on the table and had instructed her to

remove her clothes; he then had proceeded to have sexual intercourse with her in his living

room and bedroom.

¶4.    Potts stated that after she had missed her menstrual cycle, her mother, Tammy Potts,2

questioned Potts about whether Redmond had inappropriately touched her. In response to

her daughter’s affirmative answer, Tammy took Potts to the hospital, where they learned that

Potts was pregnant. Potts told her mother that Redmond was the father. Additionally, a

videotaped interview of Potts at age twelve discussing the incident with a counselor at the




       1
           This Court uses a pseudonym for the victim.
       2
           We also use a pseudonym for the victim’s mother.

                                              2
Child Advocacy Center was published to the jury without objection (pretrial or during trial)

by Redmond. Potts’s testimony also was corroborated by her mother’s testimony.3

¶5.    Potts aborted the fetus. The fetus was obtained by a Jackson police officer, who

submitted it to a DNA testing facility along with a blood sample from Redmond. Roy Scales,

owner of the facility, testified that the probability of paternity for Redmond is 99.99%.

¶6.    Redmond also testified at trial. He stated that he had known Tammy Potts for years,

and had gone to their home one night for a “get-together” where he had consumed about

three drinks. Redmond claimed that he had been drugged, because he had awakened the

following day around two or three p.m. on Tammy’s couch in a state of dizziness, with his

money missing. Redmond testified that later that day that Tammy and her boyfriend had

arrived at his house with a pistol and a picture of himself asleep on Tammy’s couch with his

pants pulled down to his ankles and Potts straddling him. He stated the picture showed

“penetration” and “on the picture she [Potts] did place me inside of her so I know for a fact

that that’s how she came across my sperm.” Redmond testified that Tammy had demanded

$3,000 or she would go to the police with the picture. Redmond claimed to have paid her

some of the money in cash and that he had destroyed the picture. Redmond denied ever

having sex with Potts.

¶7.    During the State’s case-in-chief, the jury heard a taped statement 4 given by Redmond

to the police. In this statement, Redmond denied ever touching Potts. He also denied


       3
       Tammy’s testimony was the subject of a pretrial hearing held under the tender-years
exception, and this hearing will be discussed further under the first issue.
       4
       Redmond moved pretrial to suppress this statement, and the trial court’s denial of this
motion will be discussed further under the second issue.

                                              3
paternity of Potts’s baby. He made no mention of the alleged blackmail scheme to which he

testified at trial.

        I.        Whether the trial court erred in admitting hearsay statements
                  under the “tender-years exception.”

¶8.     The tender-years exception is found in Mississippi Rule of Evidence 803(25) and

provides that:

        A statement made by a child of tender years describing any act of sexual
        contact performed with or on a child by another is admissible in evidence if:
        (a) the court finds, in a hearing conducted outside the presence of the jury, that
        the time, content, and circumstances of the statement provide substantial
        indicia of reliability; and (b) the child either (1) testifies at the proceedings; or
        (2) is unavailable as a witness: provided, that when the child is unavailable as
        a witness, such statement may be admitted only if there is corroborative
        evidence of the act.5

And in Veasley v. State, this Court held that “there is a rebuttable presumption that a child

under the age of twelve is of tender years.” 6 No presumption exists if the child is twelve or

older.7 In that case, the court must:

        make a case-by-case determination as to whether the victim is of tender years.
        This determination should be on the record and based on a factual finding as
        to the victim’s mental and emotional age. If the court finds that the declarant
        is of tender years, then it must still rule on the 803(25)(a) and (b) factors
        before admitting the testimony.8




        5
            Miss. R. Evid. 803(25) (emphasis added).
        6
            Veasley v. State, 735 So. 2d 432, 436 (Miss. 1999).
        7
            Id. at 437.
        8
            Id. (emphasis added).

                                                 4
The trial court also should make an on-the-record finding of substantial indicia of reliability.9

¶9.    Redmond generally argues that the trial court erred in allowing into evidence hearsay

statements under the tender-years exception. We presume Redmond challenges Tammy’s

testimony, which was the subject of the pretrial hearing, as well as the taped forensic

interview published to the jury. He argues the trial court failed to make any of the required

on-the-record findings in accordance with Rule 803(25) and our caselaw.

¶10.   During a hearing on pretrial motions, the State moved to show its “intent” to apply the

tender-years exception to admit statements Potts had made to her mother. The State

erroneously informed the judge that Potts was presumed under the law to be a child of tender

years. It then examined Tammy Potts regarding the events leading to Potts’s pregnancy and

statements that Potts had made to her mother about Redmond.

¶11.   At the close of Tammy’s testimony during the pretrial hearing, Redmond provided the

following objection: “we would object to allowing any hearsay statements coming in as the

child is available as a witness to everything that she said to people and everything that

occurred to her. We would object to these out-of-court statements.” Notably, Redmond did

not object based on the court’s failure to state on the record that Potts was a child of tender

years or that the testimony failed to show substantial indicia of reliability, arguments that he

now asserts for the first time on appeal. We have held that a criminal defendant “cannot

expand his objection at trial to encompass other claims for the first time on appeal.” 10

Furthermore, Redmond failed to object (pretrial or at trial) to the taped forensic interview


       9
           Miss. R. Evid. 803(25) cmt.
       10
            Gray v. State, 728 So. 2d 36, 60 (Miss. 1998).

                                               5
published to the jury. In fact, he agreed that the jury could see an edited version of the taped

interview. “This Court has consistently held that failure to make a contemporaneous

objection constitutes waiver of an issue on appeal.” 11 Therefore, we find that Redmond’s

arguments are procedurally barred.

       II.        Whether the trial court erred in denying Redmond’s motion to
                  suppress his statement.

¶12.   This Court will reverse a trial court’s ruling on a motion to suppress “if the incorrect

legal principle was applied; if there was no substantial evidence to support a voluntary,

knowing, and intelligent waiver of Miranda rights; and if the denial was a result of manifest

error.”12 Furthermore, “[t]he trial judge must determine beyond a reasonable doubt that a

confession was voluntary and knowing and that the defendant was given his Miranda rights

prior to any custodial interrogation.” 13 This is a factual determination made by the trial court

based on the totality of the circumstances.14 The State has the burden to prove that a

confession is voluntary.15 The State makes out a prima facie case by presenting the testimony

of an officer or any person with knowledge of facts concerning the statement.16 If the




       11
            Derouen v. State, 994 So. 2d 748, 751 (Miss. 2008).
       12
            Scott v. State, 8 So. 3d 855, 861 (Miss. 2008).
       13
            Id. (emphasis added).
       14
            Martin v. State, 854 So. 2d 1004, 1007 (Miss. 2003).
       15
            Scott, 8 So. 3d at 861.
       16
            Id.

                                                6
accused offers testimony or evidence to the contrary, the State must offer the testimony of

all the officers who witnessed the confession.17

¶13.   Redmond argues that the trial court abused its discretion in denying his motion to

suppress, thereby allowing the State to admit his taped statement. He argues that his taped

statement was inadmissable under Miranda v. Arizona,18 as he was not provided his Miranda

rights until after he had provided the statement. In support of this argument, he points to the

date and time on the Miranda form, which shows January 25, 2005, at 12:25, while the

evidence envelope for the audio tape shows January 25, 2005, at 12:00.

¶14.   The trial court held a hearing on Redmond’s motion to suppress and heard testimony

from the two officers who were present during Redmond’s statement. Detective Harvey

Davis testified that Redmond was arrested and taken to his office. Davis stated that he read

Redmond his Miranda rights and had Redmond initial each right printed on a waiver form.

He also read to Redmond the waiver included on the second half of the form. Davis stated

that Redmond signed the form under the portion listing the Miranda rights and again under

the waiver. After Redmond signed the form, Davis asked Redmond if he would like to

provide a statement, to which Redmond responded “yes.” Davis testified that, at that point,

he began recording Redmond’s statement. Davis stated that he erroneously wrote January

25, 2005, on the evidence envelope when he actually logged the tape into evidence on

January 26, 2005.




       17
            Id.
       18
            Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              7
¶15.   During Davis’s testimony, the trial court listened to the taped statement. At the end

of the tape, Davis asked Redmond if he had any questions. At that point, Redmond

responded he might need a lawyer, and Davis responded that Redmond had a right to a

lawyer, just as Davis previously had explained to him.

¶16.   Officer Lee Partee witnessed Redmond’s statement and also signed the waiver form.

He testified that Davis had read Redmond his Miranda rights prior to obtaining a statement.

Partee also stated that Redmond had signed the form before providing a statement.

¶17.   After reviewing the suppression-hearing transcript and Redmond’s taped statement,

we find the trial court’s ruling is supported by substantial evidence. The two officers

testified that Redmond was provided and waived his Miranda rights prior to any custodial

interrogation. Further, Redmond’s question at the end of the taped statement and Davis’s

response corroborate the officers’ testimony. Redmond failed to provide any evidence or

testimony in rebuttal to the officers’ testimony. Therefore, we affirm the trial court’s

admission of Redmond’s statement, as the record supports a finding that Redmond

knowingly, voluntarily, and intelligently waived his Miranda rights prior to providing a

statement.

                                     CONCLUSION

¶18.   We find that Redmond is procedurally barred from arguing the trial court abused its

discretion in allowing the State to introduce hearsay statements under the tender-years

exception. Additionally, substantial evidence supported the admission of Redmond’s taped

statement. So the trial court did not manifestly err in denying Redmond’s motion to

suppress. Therefore, we affirm Redmond’s conviction and sentence.

                                             8
¶19. CONVICTION OF STATUTORY RAPE AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR.




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