                           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 cross-
examination, 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 cross-
examination, 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.
