                            IN THE SUPREME COURT OF MISSISSIPPI
                                     NO. 97-KA-01448-SCT
CLEOTHA KEYES
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                  06/25/1997
TRIAL JUDGE:                                       HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED:                         HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            TOM SUMRALL
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                   BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:                                 CONO A. CARANNA, II
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 3/4/99
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    4/12/99




     BEFORE PITTMAN, P.J., BANKS AND MILLS, JJ.


     MILLS, JUSTICE, FOR THE COURT:


                                     STATEMENT OF THE CASE

¶1. On July 10, 1996, Appellant Cleotha Keyes was indicted for the crime of sexual battery of a child
under the age of fourteen (14) years in violation of Miss. Code Ann. § 97-3-95 (1994). The case was tried
in the Circuit Court for the First Judicial District of Harrison County. The jury returned a verdict of guilty
and Keyes was subsequently sentenced to a term of fourteen (14) years in the custody of the Mississippi
Department of Corrections. Aggrieved, Keyes raises the following issues on appeal:

     I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
     REFUSING TO DISMISS THE CASE AFTER THE STATE COAXED THE VICTIM
     FOR ONE HOUR AND TWENTY MINUTES IN ORDER TO PERSUADE THE HER TO
     TESTIFY.

     II. WHETHER THE STATE ENGAGED IN EXCESSIVE LEADING DURING DIRECT
     EXAMINATION OF A.B.
                                                    FACTS

¶2. At the time the alleged battery occurred, A.B.(1), age nine, was living with her mother, her five year old
sister, C.D., and her mother's boyfriend, Cleotha Keyes. On December 29, 1995, Cleotha Keyes and A.B.
were alone at the house. Keyes called A.B. into the bedroom, told her to lie on the floor, pulled down his
pants, and put his penis into A.B.'s mouth. A.B. responded by biting his penis. Keyes then "tongue kissed"
A.B., took her into her bedroom, and tied her hands and feet to the bed posts using four jump ropes. While
A.B. was tied to the bed Keyes told her that he would kill her. Keyes then left A.B.'s bedroom, at which
time C.D. returned home, found her sister tied to the bed, and promptly untied her. Two days later, A.B.
told her aunt of the events.

      I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR IN REFUSING TO
      DISMISS THE CASE AFTER THE STATE COAXED THE VICTIM FOR ONE HOUR
      AND TWENTY MINUTES TO PERSUADE HER TO TESTIFY.

¶3. The State called A.B., age ten at the time of trial, as its first witness. After the judge excused the jury
from the courtroom, counsel for the State informed the judge that A.B. was reluctant to enter the
courtroom. After one hour and twenty minutes, defense counsel made a motion to dismiss the case pursuant
to Rule 803(25) of the Mississippi Rules of Evidence. In response, the prosecution requested a continuance
until the next morning. Noting the child's tender years and fearful state, the trial judge ruled as follows:

      All right. This is what I am going to do. We'll recess for today. We will reconvene tomorrow at 8:30.
      If she's not ready to testify at 8:30, I'll entertain a defendant's motion to dismiss unless you have some
      corroborating evidence of the act in question.

Shortly thereafter, A.B. decided to testify. She then entered the courtroom, took the stand, and responded
to questions raised on direct and cross examination.

¶4. Rule 803(25) of the Mississippi Rules of Evidence, the "Tender Years Exception" to the rule against
hearsay, specifically provides:

      (25) Tender Years Exception. A statement made by a child of tender years describing any act of
      sexual contact performed with or on the 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.

Miss. R. Evid. 803(25).

¶5. Keyes argues A.B.'s reluctance to testify indicated she was "unavailable", and as such, the trial judge
should have dismissed the case under Rule 803(25) due to the prosecution's failure to produce evidence
which would corroborate the child's testimony(2). However, "[t]he trial judge's determination on the
availability of a witness will not be disturbed on appeal unless this Court finds the trial judge abused his
discretion." Hennington v. State, 702 So.2d 403, 411 (Miss. 1997)(citing Russell v. State, 670 So. 2d
816, 827 (Miss. 1995)). The trial judge in the present case was unwilling to prematurely declare the child
"unavailable" as a witness; thus, he allowed A.B. a limited amount of additional time to decide whether to
take the stand. The judge observed that the child was "terrified" prior to taking the stand and was also
informed of an alleged history of physical abuse involving Keyes and A.B. Considering the nature of the
case and the age of the child involved, the trial judge did not abuse his discretion in denying Keyes's motion
to dismiss.

¶6. When A.B. took the stand following the bench conference and responded to defense counsel's
questions on cross examination, the availability of the witness became a moot point. Keyes's arguments on
this issue are without merit.

      II. THE STATE DID NOT ENGAGE IN EXCESSIVE LEADING DURING DIRECT
      EXAMINATION OF A.B.

¶7. Keyes argues that the trial judge erroneously allowed the State to ask leading questions during the direct
examination of A.B. In support, he cites Miss. R. Evid. 611(c) which states that leading questions "should
not be used on the direct examination of a witness except as may be necessary to develop his testimony. . .
."

¶8. On the contrary, this Court has previously found that the "'classic example' of a situation ripe for leading
questions on direct is where the witness is a child." Eakes v. State, 665 So. 2d 852, 869 (Miss. 1995)
(quoting Jones v. State, 606 So. 2d 1051, 1059 (Miss. 1992)). Upon a close review of the record, it is
evident that the prosecution asked A.B. leading questions on direct examination, but after A.B. began to
speak about the events in question, the use of leading questions diminished. Therefore, we find that the use
of this technique was necessary to develop the testimony of the child and its allowance was within the
discretion of the trial judge.

                                               CONCLUSION

¶9. Due to the age of the child and the circumstances surrounding the case, we find no error in the trial
judge's decision to deny defense counsel's motion to dismiss or the trial judge's decision to allow the use of
leading questions on direct examination. Consequently, the judgment of the Harrison County Circuit Court is
affirmed.

¶10. CONVICTION OF SEXUAL BATTERY AND SENTENCE OF FOURTEEN (14) YEARS
DAY FOR DAY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, SMITH AND
WALLER, JJ., CONCUR.




1. The names of all parties, other than Keyes, have been changed to protect privacy interests.

2. Miss. R. Evid. 804(a) states: "'Unavailability of a witness' includes situations in which the declarant: . . .
(2) Persists in refusing to testify concerning the subject matter of his statement despite an order of the court
to do so . . . . "
