Jeffrey Clyde Pitts v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00740-COA

JEFFREY CLYDE PITTS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/11/2021
TRIAL JUDGE: HON. JOHN H. EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: J. EDWARD RAINER
KIMBERLY MARIE PHILLIPS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAUREN GABRIELLE CANTRELL
ALEXANDRA RODU ROSENBLATT
DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/31/2023
MOTION FOR REHEARING FILED:

EN BANC.

LAWRENCE, J., FOR THE COURT:

¶1. Jeffrey Pitts was indicted for the sexual battery of his daughter A.G.C., who was four

years old at the time of the offense. After a trial, Pitts was sentenced to thirty years in the

custody of the Mississippi Department of Corrections (MDOC) with twenty years to serve

and ten years suspended, and ordered to register as a sex offender. Pitts appeals, raising

numerous issues. For the reasons discussed below, we affirm the conviction and sentence.

FACTS

¶2. A.G.C. is the child of K.C. and Jeffrey Pitts.1 A.G.C. spent the weekend of May 1-3,

1
We use initials to protect the minor’s identity.
2020, with Pitts. After returning home, A.G.C. told her grandmother T.C. that she “saw

daddy’s gina” and “daddy’s gina is this big” while using her hands to illustrate. T.C. had

A.G.C. repeat the information to K.C. and A.G.C. told K.C. that her “daddy put his finger

in [her] vagina, in [her] ‘gina and in [her] bootie and he made it go really fast.” K.C. filed a

report online with Child Protection Services (CPS) and with the Richland Police Department.

A.G.C. was interviewed by CPS and underwent a forensic interview.

¶3. A Rankin County grand jury indicted Pitts for one count of sexual battery under

Mississippi Code Annotated section 97-3-95 occurring between May 1-3, 2020. A jury trial

was held February 1-4, 2021.

¶4. The State noticed its intent to elicit hearsay testimony under the tender years

exception. MRE 803(25). The trial court held two hearings to determine whether T.C. and

K.C. could testify as to A.G.C.’s disclosure to them. The court considered the tender years

factors under the Mississippi Rules of Evidence and ultimately found the statements

admissible. The court reasoned the child “had no apparent motive to lie,” and there was

“nothing here about the general character of the declaring that would weigh toward excluding

the testimony.” The court continued that the mother and grandmother heard the initial

statements, the allegations were “made within days after the alleged event,” and the

statements were made spontaneously to the grandmother. The trial court found “the

credibility of both the mother and the grandmother to be substantial that these statements

were made to them.” The court found that “in considering all these things, almost all of these

factors weigh in factor and provides substantial indicia of reliability and I find that these

2
statements should be admissible.”

¶5. The State noticed its intent to elicit Rule 404(b) testimony of other bad acts

committed by the Defendant. The court held a pre-trial hearing on the issue. The State

explained that A.G.C. would testify to other sexual acts Pitts committed in addition to those

in the indictment, to show Pitts’ “motive, opportunity, intent, preparation, and plan.” The

State argued the Mississippi Supreme Court “has held that evidence of sexual relations

between the Defendant and the victim is admissible to show the lustful, lascivious disposition

of the Defendant toward that particular victim.” Further, the State explained its intent to have

Pitts’ other daughter, A.P., testify that he also committed sexual acts toward her. However,

this evidence was never introduced at trial. No other instances of sexual acts outside the

indictment were mentioned, and A.P. did not testify.

¶6. Pitts sent to the State notice of his intent to call two expert witnesses: Dr. Mark Webb,

a psychiatrist, and Dr. Gerald O’Brien, a forensic psychologist. The State filed a motion in

limine to exclude both witnesses. First, the State argued for the exclusion of both witnesses

for discovery violations because the reports were received by the State “just a few days”

before trial. Second, the State argued the experts “do not meet the requirements of M.R.E.

702 and experts are not allowed to opine on the credibility of witnesses.”

¶7. During the hearing, both doctors were accepted and admitted as experts in their

respective fields of practice. Dr. O’Brien testified that he administered the “Abel and

Becker” assessment, which is a self-reporting test used to determine whether Pitts had

“unusual thoughts outside the normal range, particularly regarding sexual behavior with

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children.” Dr. O’Brien testified that Pitts denied having any unusual or inappropriate

thoughts about children. Dr. O’Brien concluded that Pitts “did not meet the criteria for any

significant mental disorder including paraphilic disorder such as sexual focus on children.”

Dr. O’Brien admitted he has been excluded in courts around the state from offering this type

of evidence. After the judge asked, “[Y]ou’re not saying that this man didn’t molest this

child, right?” Dr. O’Brien responded, “I can’t speak to that. I can say that in my opinion he’s

not a person that’s likely to do such a thing.” Dr. O’Brien testified that the Abel and Becker

test, “when used alone,” was not widely accepted in the psychological community. The trial

court noted that Dr. O’Brien’s exclusion in a previous case had been upheld by the

Mississippi Court of Appeals.2

¶8. The second expert, Dr. Mark Webb, testified that he used Dr. O’Brien’s report to

determine that Pitts “did not exhibit the characteristics of someone who was a sexual predator

or a pedophile.” Dr. Webb stated that the charges against Pitts “appear to be invalid because,

within a reasonable degree of psychiatric certainty, Pitts did not possess the qualities or

characteristics of someone who would sexually abuse a child.” Dr. Webb admitted that he

could not determine within a reasonable degree of certainty that Pitts did not commit sexual

battery against A.G.C.

¶9. The trial court excluded both experts’ testimony. The trial court stated there were clear

discovery violations in failure to disclose the reports earlier.3 Further, the judge reasoned, “I

2
Earnest v. State, 805 So. 2d 599, 606 (¶24) (Miss. Ct. App. 2002).
3
Dr. O’Brien saw Pitts in his office on October 27, 2020, but dated his assessment
January 19, 2021. Dr. Webb listed his “dates of assessment” as October 8, 12, and 19, 2020,

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do not believe that these opinions meet the 702 standard in that they are not the product of

reliable principles. The opinions were the products of self reports and an expert cannot

render an opinion of the credibility of a witness; yet, that’s exactly what these doctors

purported to do. . . . Further, the doctors testified that there is no acceptable profile of a sex

offender or a scientifically acceptable uniform diagnosis.” Moreover, the judge continued,

“those characteristics that are used to diagnose and treat an admitted offender and they’re not

geared toward determining whether a particular person committed an offense on a particular

day.” The trial court found that this testimony was not helpful to the jury and that any

probative value was substantially outweighed by the danger of unfair prejudice.

¶10. At trial, the State’s first witness was Officer Ryan Halbert who testified that on May

9, 2020, he met with K.C. and took a report of Pitts’ alleged sexual abuse of A.G.C. The

State then called Detective Amanda Brown who testified that she took over the investigation

from Officer Halbert and scheduled a forensic interview for A.G.C.

¶11. A.G.C. testified next at trial. Before her testimony, the State requested a screen be

placed in front of the victim to protect her from the trauma of having to look at her father

while she testified. The court granted the motion and allowed the screen to be erected, but

the court also required a computer monitor be arranged so Pitts could see A.G.C. For brevity,

the facts of this hearing will be discussed further in the analysis.

¶12. On direct examination, A.G.C. was asked if she remembered her “daddy” touching

her anywhere. A.G.C. responded, “[I]n my bootie and my vagina . . .with his finger.” She

and January 28, 2021. Dr. O’Brien’s report was provided to the State on January 27, 2021,
and Dr. Webb’s report was provided on January 29, 2021.

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testified this touching happened “a few times.” The State asked, “[S]o when you said your

daddy put his fingers inside of your vagina and your bootie, is that a different time than when

he put Butt Paste on you?” A.G.C. responded by nodding her head affirmatively. A.G.C.

testified that no one else had ever put a finger inside her vagina. A.G.C. further testified that

no one was telling her what to say.

¶13. The State’s next witness was A.G.C.’s grandmother, T.C., who testified that on May

8, 2020, she had the following conversation with A.G.C.:

She said, “I saw daddy’s ‘gina,” which doesn’t have a term for penis so she
used the word ‘gina, meaning vagina. “I saw daddy’s ‘gina.” I remained calm.
I didn’t ask her any questions. I just, “Oh, okay.” But then she said, “Daddy’s
‘gina this big,” using her finger to show me daddy’s ‘gina this big. Again, I
didn’t ask any questions. I remained calm. I just said, “Okay.” Then she went
on with another topic. That was all she said about Jeff at that time.

T.C. testified she had A.G.C. repeat the allegation to her mother, K.C.

¶14. K.C. was the State’s final witness. She recalled A.G.C.’s disclosure to her, “and she

then proceeded to kind of tell the same story, that she saw daddy’s vagina and it was this big.

And at this point, she -- she was demonstrating to me and she -- she put her -- her elbow in

between her legs and she swung her arm back and forth and she says it was like an elephant

trunk.” K.C. testified she then made a report with CPS and the Richland Police Department.

¶15. Pitts called his mother J.P. as a witness. J.P. testified that she was in the home with

Pitts and A.G.C. during the weekend of May 1-3, 2020. J.P. testified she saw the Butt Paste

set out in the bathroom. As to the allegation of sexual abuse, J.P. stated, “[M]y son loved his

girls and I loved my grandchildren and if someone, even . . . even if I had . . . I want to say

this. If I would think anything like that would happen, as much as my son loves his children,

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we’d be having a funeral today instead of a trial.”

¶16. Pitts called Annette Bonds as his next witness. Bonds testified she lived next door to

Pitts and his mother. Bonds testified that during the weekend in question, she saw “nothing”

out of the ordinary. Pitts then called his aunt Rebecca, who, when asked about Pitts, stated,

“I believe in all my heart he is a good father and I know he loves his children with no doubt.”

¶17. Pitts testified at trial and said that the child support he provided was an “honor system

type thing” not being enforced by any court order. Pitts testified that during the weekend in

question, he was watching television with A.G.C. and his other daughter. Pitts testified that

he then asked A.G.C., “Why are you keeping your hands in your pants?” She responded that

her “vagina itches really bad,” so Pitts obtained some Butt Paste for her. Pitts explained how

he applied it:

[I] basically just took the . . . my hand. I opened it, slathered some on and just
went on the inside of her crease. Because when she was scratching, it was not
her vagina, like anywhere near the opening. It was the side of her leg and
whatever that little part is that connects to the little mound right there. So all
I did was take the Butt Paste, smear it on and up kind of over her mound and
then down the side of her leg.

¶18. Pitts testified when he dropped A.G.C. off with K.C. he informed K.C. “[Y]ou may

want to look at her front” and alerted her to the itching and Butt Paste application. When

asked on direct examination if Pitts had ever inappropriately touched any parts of A.G.C.,

Pitts replied, “[A]bsolutely not.”

¶19. Pitts then called Dequian Johnson to the stand. Johnson testified he was employed at

the Child Advocacy Center (CAC) and conducted a forensic interview with A.G.C. on May

11, 2020. Pitts introduced into evidence the videotaped forensic interview of A.G.C. It was

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published to the jury.

¶20. Pitts then called his cousin Penny Foster as a witness. When asked if she had any

concerns about Pitts being around children, Foster stated, “I have never observed anything

that’s concerning or inappropriate. He’s a good parent when he’s around my children and

cousins at family events.” Pitts also called his friend John Yoakum, who testified that Pitts

was “one of the best guys” he had ever known and stated he had never observed Pitts

mistreating children. Pitts also called his cousin Tara Clark as a witness. She confirmed that

she had never observed Pitts mistreating children and stated that he was a “very differential

caring person.”

¶21. The jury found Pitts guilty of sexual battery. Pitts was sentenced to a term of thirty

years in the custody of MDOC, with twenty years to serve and ten years suspended. Pitts was

also ordered to register as a sex offender. Pitts filed a motion for a judgment notwithstanding

the verdict or, in the alternative, a new trial, which was denied. He then appealed, arguing

the screen used during A.G.C.’s testimony violated his constitutional right to confront the

witness and alleging errors in evidentiary rulings. He asks this Court to reverse and remand

for a new trial.

STANDARD OF REVIEW

¶22. We will reverse the trial court’s denial of a motion for a new trial only if the trial court

abused its discretion by doing so. Turner v. State, 291 So. 3d 376, 384 (¶22) (Miss. Ct. App.

2020). Our role as an appellate court is to “view the evidence in the light most favorable to

the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of

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the evidence that to allow it to stand would sanction an unconscionable injustice.” Id. (citing

Little v. State, 233 So. 3d 288, 289 (¶1) (Miss. 2017)). “We do not reweigh evidence. We do

not assess the witnesses’ credibility. And we do not resolve conflicts between evidence.

Those decisions belong solely to the jury.” Id. “When addressing a statute’s constitutionality,

we apply a de novo standard of review, bearing in mind (1) the strong presumption of

constitutionality; (2) the challenging party’s burden to prove the statute is unconstitutional

beyond a reasonable doubt; and (3) all doubts are resolved in favor of a statute’s validity.”

Johnson v. Sysco Food Servs., 86 So. 3d 242, 243-44 (¶3) (Miss. 2012). This Court reviews

a trial court’s ruling on discovery violations for an abuse of discretion. Turner v. State, 292

So. 3d 1006, 1016 (¶23) (Miss. Ct. App. 2020) (citing Conley v. State, 790 So. 2d 773, 782

(¶20) (Miss. 2001)).

ANALYSIS

I. Did the construction of a screen to prevent the child victim from
seeing Pitts violate the United States Constitution?

¶23. Prior to the victim’s testimony, the State requested that pursuant to Mississippi Code

Annotated 99-43-101(2)(g) (Supp. 2018), the trial court would permit a screen to be placed

in an effort to obscure A.G.C.’s view of Pitts while she was testifying. The defense objected,

stating that “there’s been no proof of why it is necessary” and objected to the constitutionality

of the statute. The defense argued that the placement of a screen violated Pitts’ right to

confront the witness.4 The State argued that under section 99-43-101(2)(g) “the statute states

4
“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI; accord Miss. Const. art 3, § 26.

9
that she shall have that right and I’m not required to put on any proof that she be scared of

the defendant.” When the trial judge required the State to nevertheless explain why the screen

was necessary in this case, the State argued, “[W]e have a four year old child. At the request

of her guardian, she believes that it will be difficult for [A.G.C.] to testify while her father

is staring at her.”5

¶24. The trial court ultimately struck a balance between protecting the child from emotional

trauma and protecting Pitts’ constitutional rights. The trial court explained, “We have the

screen set up where the defendant cannot be seen from the witness stand and we have a zoom

video set up with the audio that’s off on that because you can hear through the court speakers

and it’s set up so that the defendant can view the child as she testifies.” Pitts was able to view

the victim during her testimony via the Zoom video at all times.6

¶25. On appeal, Pitts argues Mississippi Code Annotated section 99-43-101(2)(g) is

“unconstitutional and that the use of the screen prejudiced the jury against Appellant.”

Although the defendant was able to see the child testifying through the Zoom video, on

appeal, Pitts argues the placement of the screen was nevertheless unconstitutional due to a

violation of the Confrontation Clause and the Due Process Clause of the United States

5
During oral arguments, the Appellant’s counsel suggested the screen was placed to
keep the child from “running to her daddy” during her testimony. This is not supported by
the record.
6
During oral arguments, the Appellant’s counsel suggested the placement of the
screen interfered with the defendant’s access to his counsel during trial. This is not
supported by the record. Further, the Appellant’s counsel conceded during oral arguments
that Pitts could see and communicate with his counsel at all times during the child’s
testimony.

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Constitution.

¶26. Mississippi Code Annotated section 99-43-101(2)(g) states:

(2) In any proceeding in which a child testifies, a child shall have the following
rights to be enforced by the court on its own motion or upon motion or notice
of an attorney in the proceeding:

....

(g) To permit the use of a properly constructed screen that would permit
the judge and jury in the courtroom or hearing room to see the child but would
obscure the child’s view of the defendant or the public or both.

A. The Confrontation Clause

¶27. There are no Mississippi appellate cases specifically interpreting 99-43-101(2)(g).

However, since the appellant argues the constitutionality of the statute, it is important to

review the standards the Mississippi Supreme Court has set forth in reviewing this issue.

“When addressing a statute’s constitutionality, we apply a de novo standard of review,

bearing in mind (1) the strong presumption of constitutionality; (2) the challenging party’s

burden to prove the statute is unconstitutional beyond a reasonable doubt; and (3) all doubts

are resolved in favor of a statute’s validity.” Johnson v. Sysco Food Servs., 86 So. 3d 242,

243-44 (¶3) (Miss. 2012).

¶28. “The statutes must be shown to be in direct conflict with ‘the clear language of the

constitution.’” Clark v. Bryant, 253 So. 3d 297, 300 (¶8) (Miss. 2018) (quoting 5K Farms,

Inc. v. Miss. Dep’t of Rev., 94 So. 3d 221, 227 (Miss. 2012)). “The interpretation of a statute

is a question of law, and the standard of review on appeal is de novo.” Dancy v. State, 287

So. 3d 931, 935-36 (¶14) (Miss. 2020) (citing Rex Distrib. Co. Inc. v. Anheuser-Busch LLC,

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271 So. 3d 445, 449 (Miss. 2019)). “Therefore, we review the circuit court’s interpretation

and application of the law de novo, and its findings of fact will not be reversed if supported

by substantial evidence.” Id. (citing Falkner v. Stubbs, 121 So. 3d 899, 902 (Miss. 2013)).

“Statutes . . . come before us clothed with a heavy presumption of constitutional validity. The

party challenging the constitutionality of a statute is burdened with carrying his case beyond

all reasonable doubt before this Court has authority to hold the statute, in whole or in part,

of no force or effect. When a party invokes our power of judicial review, it behooves us to

recall that the challenged act has been passed by legislators and approved by a governor

sworn to uphold the [same] constitution as are we.” Trainer v. State, 930 So. 2d 373, 377 (¶7)

(Miss. 2006) (quoting Hart v. State, 87 Miss. 171, 39 So. 523, 524 (1905)). To be

successfully challenged, the legislation must be shown to be in “palpable conflict with some

plain provision of the constitution.” In re B.C.M., 744 So. 2d 299, 301 (¶7) (Miss. 1999)

(citing State v. Miss. Ass’n of Sup’rs Inc., 699 So. 2d 1221, 1223 (¶6) (Miss. 1997)).

¶29. Further, we must remember our position as the Mississippi Court of Appeals. The

Mississippi Court of Appeals is “duty bound to apply existing precedent.” Bosarge v. State,

786 So. 2d 426, 431 (¶11) (Miss. Ct. App. 2001). However, in this case, there are no cases

directly on point. The fundamental task raised to this Court in the present case is interpreting

the constitutionality of the particular statute. In doing this, we must look to the language of

the statute to interpret the purpose of the Legislature. “Only by seeking that purpose can we

avoid the substitution of judicial for legislative will. Only by reading language in its light can

we maintain the democratic link between voters, legislators, statutes, and ultimate

12
implementation, upon which the legitimacy of our constitutional system rest.” Arlington

Cent. Sch. Dist. Bd. of Educ. v. Murphy, 584 U.S. 291, 323-24 (2006) (Breyer, J., dissenting).

¶30. As there are no Mississippi cases directly on point, the Mississippi Supreme Court has

instructed us that turning to other states for guidance may prove helpful. Weatherly v. Welker,

943 So. 2d 665 (¶8) (Miss. 2006). “In a case of first impression Mississippi Courts look to

other jurisdictions in determining the matter.” Par. Transp. LLC v. Jordan Carriers Inc., 327

So. 3d 45, 54 (¶25) (Miss. 2021) (quoting Forrest Gen. Hosp. v. Upton, 240 So. 3d 410, 418

(¶32) (Miss. 2018)).

¶31. The United States Supreme Court addressed a child witness testifying behind a screen

in Coy v. Iowa, 487 U.S. 1012 (1988). The defendant was charged with sexually assaulting

two children. Id. At the jury trial, “the court granted the State’s motion, pursuant to a 1985

statute intended to protect child victims of sexual abuse, to place a screen between the

defendant and the girls during their testimony, which blocked him from their sight but

allowed him to see them dimly and to hear them.” Under the statutory scheme in Iowa at the

time, the child witness was permitted to testify either via closed-circuit television or behind

a screen. The defendant was convicted of two counts of lascivious acts with a child, and the

Iowa Supreme Court affirmed. On appeal, the United States Supreme Court held the

Confrontation Clause guaranteed the defendant a face-to-face meeting with witnesses

appearing before the trier of fact. The United States Supreme Court explained:

What was true of old is no less true in modern times. President Eisenhower
once described face-to-face confrontation as part of the code of his hometown
of Abilene, Kansas. In Abilene, he said, it was necessary to “[m]eet anyone
face to face with whom you disagree. You could not sneak up on him from

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behind, or do any damage to him, without suffering the penalty of an outraged
citizenry. In this country, if someone dislikes you, or accuses you, he must
come up in front. He cannot hide behind the shadow.” Press release of
remarks given to the B’nai B’rith Anti-Defamation League, November 23,
1953, quoted in Pollitt, supra, at 381. The phrase still persists, “Look me in the
eye and say that.” Given these human feelings of what is necessary for
fairness, the right of confrontation “contributes to the establishment of a
system of criminal justice in which the perception as well as the reality of
fairness prevails.” Lee v. Illinois, 476 U.S. 530, 540, 106 S. Ct. 2056, 2062, 90
L. Ed. 2d 514 (1986).

Id. at 1017-19 (emphasis added).

¶32. The Court reversed and remanded the conviction, holding, “[S]ince there have been

no individualized findings that these particular witnesses needed special protection, the

judgment here could not be sustained by any conceivable exception.” Id. at 1020. The Court

importantly noted, “We leave for another day, however, the question whether any exceptions

exist. Whatever they may be, they would surely be allowed only when necessary to further

an important public policy.” Id. at 1021. The Court held that rights conferred by the

Confrontation Clause are not absolute and may give way to other important interests, but a

“legislatively imposed presumption of trauma” was not sufficient to justify an exception. Id.

¶33. Justice O’Connor, in her concurrence in Coy, gave further latitude and explained that

future cases may prove not to be a violation of the Confrontation Clause:

But it is also not novel to recognize that a defendant’s “right physically to face
those who testify against him,” even if located at the “core” of the
Confrontation Clause, is not absolute, and I reject any suggestion to the
contrary in the Court’s opinion. Rather, the Court has time and again stated
that the Clause “reflects a preference for face-to-face confrontation at
trial,” and expressly recognized that this preference may be overcome in
a particular case if close examination of “competing interests” so
warrants.

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Id. at 1024 (emphasis added) (citations omitted).

¶34. Just two years later, the United States Supreme Court expanded on what a permissible

exception would be under Coy. The defendant in Maryland v. Craig was charged with sexual

assault and sexual battery arising out of her operation of a preschool and abuse of the

students. Maryland v. Craig, 497 U.S. 836, 840 (1990). Under the Maryland statute in place

at the time, the child was permitted to testify via one-way closed-circuit television. Id. To

invoke the procedure, the trial judge had to first “determine that testimony by the child victim

in the courtroom will result in the child suffering serious emotional distress such that the

child cannot reasonably communicate.” Id. at 841. “Once the procedure is invoked, the child

witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and

defendant remain in the courtroom. The child witness is then examined and cross-examined

in the separate room, while a video monitor records and displays the witness’ testimony to

those in the courtroom.” Id. “During this time the witness cannot see the defendant. The

defendant remains in electronic communication with defense counsel . . . .” Id. at 841-42.

The Supreme Court approved this statutory scheme as an exception under Coy. Id. at 860.

The United States Supreme Court held a state’s “interest in protecting child witnesses from

the trauma of testifying in a child abuse case is sufficiently important to justify the use of a

special procedure,” provided that the State makes an adequate showing of necessity in an

individual case. Id. at 855.

¶35. The Supreme Court held the right to face-to-face confrontation was not absolute and

could be denied if the denial was necessary to further an important public policy and the

15
reliability of the testimony was otherwise assured. Id. The Court stated that “a State’s interest

in the physical and psychological well-being of child abuse victims” was an important public

policy that would “outweigh, at least in some cases, a defendant’s right to face his or her

accusers in court.” Id. at 853. The Court explained that the core elements of the confrontation

clause must be preserved:

The combined effect of these elements of confrontation—physical presence,
oath, cross-examination, and observation of demeanor by the trier of
fact—serves the purposes of the Confrontation Clause by ensuring that
evidence admitted against an accused is reliable and subject to the
rigorous adversarial testing that is the norm of Anglo-American criminal
proceedings.

Id. at 846 (emphasis added). The Court explained that an exception to the rights under the

Confrontation Clause “would surely be allowed only when necessary to further an important

public policy . . . only upon a showing of something more than the generalized, legislatively

imposed presumption of trauma underlying the statute at issue in that case.” Id. at 844-45

(internal quotation marks omitted).

¶36. Under Craig, the trial court must make individualized findings that each child witness

needs special protection. Id. First, the requisite finding of necessity must be case-specific.

Id. at 855. “The trial court must . . . find that the child witness would be traumatized, not by

the courtroom generally, but by the presence of the defendant.” Id. at 856. “Finally, the trial

court must find that the emotional distress suffered by the child witness in the presence of

the defendant is more than de minimis, i.e., more than mere nervousness or excitement or

some reluctance to testify.” Id. at 856 (internal quotation mark omitted).

¶37. The Supreme Court upheld the Maryland statute, holding:

16
[W]here necessary to protect a child witness from trauma that would be caused
by testifying in the physical presence of the defendant, at least where such
trauma would impair the child’s ability to communicate, the Confrontation
Clause does not prohibit use of a procedure that, despite the absence of
face-to-face confrontation, ensures the reliability of the evidence by
subjecting it to rigorous adversarial testing and thereby preserves the
essence of effective confrontation. Because there is no dispute that the child
witnesses in this case testified under oath, were subject to full
cross-examination, and were able to be observed by the judge, jury, and
defendant as they testified, we conclude that, to the extent that a proper finding
of necessity has been made, the admission of such testimony would be
consistent with the Confrontation Clause.

Id. at 846 (emphasis added).

¶38. In Griffith v. State, 584 So. 2d 383, 388 (Miss. 1991), the Mississippi Supreme Court

reversed Griffith’s conviction for felonious sexual penetration and remanded upon finding

the statements made by the child victim to her teacher were hearsay and impermissibly

admitted. In doing so, the Court furnished “guidelines for the courts to use in determining

whether out-of-court statements made by a victim of child sexual abuse should be admitted

into evidence before a jury.” Id. at 384. Importantly, the Court analyzed exceptions to the

Confrontation Clause for child victims under Craig. The Court explained in order to justify

using one of these procedures, such as a closed circuit, the State must make an adequate

showing of necessity. Id. at 387.

¶39. Looking to other states, the Georgia Court of Appeals handled a similar issue in

Harris v. State, 316, 604 S.E.2d 565 (Ga. Ct. App. 2004). In that case, the defendant was

charged with one count of molesting a child. Id. “Before trial, the State had requested that

the victim be allowed to testify by closed circuit television or in some other way such that she

would not have to look directly at Harris. The State then requested that a blackboard be

17
positioned so that the child would not be able to see Harris’s face but that the jury could see

her and Harris. After Harris objected, the court required the State to justify its request.” Id.

After a hearing in which the mother of the victim testified to the fear the child felt about

seeing the defendant again, the trial judge permitted a blackboard to be placed at an angle in

front of the testifying child to block the child’s view of the defendant. Id. The Georgia Court

of Appeals noted the defendant and jury were able to see the child as she testified. Id. The

Georgia Court of Appeals upheld the conviction stating the defendant never raised the issue

of the constitutional violation and had therefore waived the argument and the defendant’s

trial counsel was not ineffective for failing to object. Id.7

¶40. People v. Rose, 808 N.W.2d 301, 315 (Mich. Ct. App. 2010), involves a case

strikingly similar to the one at bar.8 The defendant was charged with four counts of first-

degree sexual criminal conduct. Id. The victim was permitted to testify behind a screen under

7
See also People v. Laframboise, No. 323674, 2016 WL 299778, at *2 (Mich. Ct.
App. Jan. 21, 2016), in which the Michigan Court of Appeals held that although the child
victims were permitted to testify behind a screen, “all elements of defendant’s right to
confront these children remained in place.”
8
See also United States v. Anderson, 51 M.J. 145, 150 (C.A.A.F. 1999) (the Court
of Appeals for the Armed Forces holding that a military judge did not commit error by
permitting several child victims to testify behind a screen); Washington v. Commonwealth
of Kentucky, No. 2003-SC-0703-MR, 2005 WL 924332, at *6 (Ky. Apr. 21, 2005) (the
Supreme Court of Kentucky holding that the child victim’s testimony while the defendant
was behind a screen in the courtroom did not violate the Confrontation Clause); and State
v. Vogelsberg, 724 N.W.2d 519, 530 (Wis. Ct. App. 2006) (the Court of Appeals of
Wisconsin holding that the placement of a barrier between the defendant and child witness
did not violate the Confrontation Clause). See also People v. Laframboise, No. 323674,
2016 WL 299778, at *4 (Mich. Ct. App. Jan. 21, 2016) (the Michigan Court of Appeals
holding that although the child victims were permitted to testify behind a screen, “all
elements of defendant’s right to confront these children remained in place”).

18
a Michigan statute, which provided that “if the trial court finds, on the motion of a party, that

“the special arrangements specified in subsection (16) are necessary to protect the welfare

of the witness, the court shall order those special arrangements.” Id. The special

arrangements under the statute “include excluding unnecessary persons from the courtroom

during the witness’s testimony, rearranging the courtroom to move the defendant as far from

the witness stand as is reasonable, and using a questioner’s stand or podium.” Id. at 508. On

appeal, Rose argued that the trial court erred to the extent that it relied on the Michigan

statute because it failed to make the necessary findings under that statute and because the

statute does not specifically permit the use of witness screens. Id. The appellate court

concluded the necessary findings were made:

In this case, the trial court clearly found that the use of the witness screen was
necessary to protect J.B. when it invoked MCL 600.2163a and stated that it
was “necessary to permit this to protect the welfare of this child.” In making
its findings, the trial court also clearly referred to the fact that J.B. had
expressed fear of Rose and that, given her age, the nature of the offenses, and
her therapist’s testimony, there was “a high likelihood” that testifying face to
face with Rose would cause her to “regress in her therapy, have psychological
damage” and could cause her “to possibly not testify. . . .” These findings were
sufficient to warrant limiting Rose’s ability to confront J.B. face to face. See
Craig, 497 U.S. at 856-857, 110 S. Ct. 3157. In addition, aside from J.B.’s
inability to see Rose, the use of the witness screen preserved the other
elements of the confrontation right and, therefore, adequately ensured the
reliability of the truth-seeking process.

Id. (emphasis added).9

9
On federal habeas corpus review, the United States District Court for the Western
District of Michigan held the Michigan Court’s “resolution of Petitioner’s confrontation
clause challenge was neither contrary to, nor unreasonable application of, clearly established
federal law.” Rose v. Rapelje, No. 1:12-CV-1344, 2016 WL 4394214, at *4 (W.D. Mich.
Aug. 18, 2016).

19
¶41. Mississippi Code Annotated section 99-43-101(2)(g) is titled the Child Witness

Standards of Protection. The statute states that “a child shall have the following rights” in any

proceeding when the child testifies. Pitts raises concern about the word “shall” requiring the

placement of a screen without requiring the court to specifically make a finding of fact for

the necessity of a screen. The statute also states, “The defendant shall be afforded the rights

applicable to defendants during trial, including the right to an attorney, the right to be

confronted with the witness against the defendant, and the right to cross-examine the child.”

Id. Clearly, the legislative intent of this statute was to balance the defendant’s rights and

provide a child witness with certain protective rights. The statute contemplates and

incorporates the importance of confrontation rights of the defendant to ensure compliance

with those constitutional rights. The Supreme Court has addressed those confrontation

concerns in the context of balancing a child’s protection when testifying by requiring a

finding of necessity for accommodation procedures.10

¶42. The trial court inquired of the State as to the necessity of a screen to be placed. The

State responded on the record. In essence, the State argued that the child was a tender four

years old. The State argued that the guardian of the child was concerned about the trauma to

the child from having to testify with Pitts “staring” at her and requested precautionary

measures. The court allowed the parties time for argument on the issue and Craig was

specifically discussed. Then the court made its ruling allowing the placement of the screen

10
See Craig, 497 U.S. at 855; Coy, 487 U.S. at 1021.

20
but requiring a monitor be set up so the defendant could view the child witness.11

¶43. In the present case, a four-year-old child was forced into an adult world, when

sexually abused, while still emotionally immature. Further, this child was forced back into

an adult world when required to testify about sexual abuse in the courtroom when the trial

occurred. Courtrooms are open, usually large rooms and intimidating to most adults not

familiar with its procedures. It can only be more for to a child who did not ask for any of the

emotional abuse suffered at the hands of an adult. Instead of protecting the child as was

meant throughout nature, the adult in this case, her father, was charged with and later

convicted of sexually abusing her.

¶44. The trial court struck a balance between protecting legislatively established rights of

a child witness and the constitutional rights of a person charged with a crime.12 That balance,

11
The Court never made a specific finding of trauma to the child. Nothing requires
the judge to recite the magic words to suddenly meet constitutional requirements if it is clear
the judge made a finding of necessity. By way of analogy, in Jones v. Mississippi, 141 S. Ct.
1307, 1320 (2021), the United States Supreme Court held that trial courts were not required
to make on-the-record findings of facts. The Court stated it “has never required an
on-the-record sentencing explanation or an implicit finding regarding those mitigating
circumstances. . . . A sentencing explanation is not necessary to ensure that the sentencer in
death penalty cases considers the relevant mitigating circumstances. It follows that a
sentencing explanation is likewise not necessary to ensure that the sentencer in juvenile
life-without-parole cases considers the defendant’s youth.” Id. Further, in Jenkins v. State,
75 So. 3d 49, 55 (¶18) (Miss. Ct. App. 2011), in the context of a Rule 403 balancing test,
this Court held that although the trial judge did not use the “magic words,” it was implicit
in the judge’s statements that the trial judge found the evidence more probative than
prejudicial. Further, formal language is not required in making a finding under the Daubert
standard. See generally Clark v. State, 315 So. 3d 987 (Miss. 2021), cert. denied, 142 S. Ct.
466 (2021).
12
Other courts have upheld the use of other objects and the configuration of the
courtroom to block the defendant from the view of the testifying child victim. In Wilson v.
State, 114 P.3d 285, 297 (2005), the Supreme Court of Nevada held the prosecutor’s

21
derives from the inherent power of the trial judge to control their courtroom. It is a

longstanding rule that trial judges have the power to maintain control over the proceedings

before it, one grounded in the “necessary and inherent power to regulate its proceedings.”

Knott v. State, 731 So. 2d 573, 576 (¶11) (Miss. 1999) (discussing the contempt power of

courts). Furthermore, “[t]he manner of trial decorum . . . are matters largely left to the

discretion of the trial judge, as he is present, has the opportunity, as well as the duty, to see

that the course of the trial is conducted in conformity with traditional notions of fairness and

impartiality to the litigants.” New Orleans & N.E.R. Co. v. Weary, 217 So. 2d 274, 279 (Miss.

1968). The Mississippi Supreme Court explained in Summerville v. State, 207 Miss. 54, 41

So. 2d 377, 380 (1949), where a trial judge permitted the district attorney to ask a victim

leading questions about the sexual act:

It is of the greatest importance, in legal proceedings, that the truth be
ascertained, yet, at the same time, that the fundamental rights of litigants be
protected. Can we say the court abused its discretion under the circumstances
of this case? We do not think so. In the first place, the trial court was in
much better position to judge the necessity and propriety of his action
than is this Court. He saw the witness and observed the delicacy of the
situation. He noted her sensibility to going forward and explaining in
detail the intimate acts necessary for the State to prove to make out its
case. One girl of sixteen years might be much more humiliated to give the

placement of a podium which allowed the child to have her back to the defendant while
testifying was not a violation of the Confrontation Clause. In Smith v. State, No.
07-09-0009-CR, 2010 WL 2010914, at *6 (Tex. App. May 20, 2010), the Court of Appeals
of Texas held the prosecutor standing between the child witness and the defendant during
the victim’s testimony did not constitute a violation of the Confrontation Clause. In State v.
Owens, No. M201801830CCAR3CD, 2020 WL 1130667, at *7 (Tenn. Crim. App. Mar. 9,
2020), the Court of Criminal Appeals of Tennessee held the configuration of the courtroom
which prevented the defendant from seeing the testifying child victim did not violate
Confrontation Clause. See also Fern L. Kletter, Conditions Interfering with Accused’s View
of Witness as Violation of Right of Confrontation, 61 A.L.R.7th Art. 2 (2021).

22
necessary intimate details essential to the crime here charged than another of
the same age. Each case must depend upon its own circumstances, and the
trial judge is the person best situated to decide upon the course of conduct
necessary to elicit the truth and yet safeguard the rights of the accused,
and unless this Court can say, from the whole record, he abused his
discretion and the accused was deprived of a fair and impartial trial, we
should not reverse a case because of such action.

(Emphasis added).

¶45. The dissent argues Mississippi Code Annotated section 99-43-101(2)(g) could be

applied in a manner consistent with the Confrontation Clause if the trial judge had

supplemented the statute by making the findings that Coy and Craig require and if the record

contained substantial evidence to support those findings. There was an on-the-record

discussion where the court with the attorneys for the State and the defense discussed the

statute and Maryland v. Craig, 497 U.S. 836 (1990), and Coy v. Iowa, 487 U.S. 1012 (1988).

It can be deduced from that on-the-record discussion that the court was aware of the statute

and the requirements of Craig and Coy. The court inquired of the State as to the necessity of

the screen. Only then did the court authorize the use of the screen.

¶46. At all times, Pitts was permitted to hear the child’s testimony live and view her by

looking at the monitor, which relayed the testimony in real-time. From a review of the record,

it is obvious the child was subject to a full and thorough cross-examination. The jury, judge,

and defense attorney all were able to view the witness and her demeanor at every moment

during every word of her testimony. Pitts viewed the child’s emotions and demeanor in real

time and had unfettered access to his attorney at all times while in the same courtroom.

Further, the concerns expressed as to the “adversarial” testing were met with the procedure

23
utilized by the trial court in this case. Section 99-43-101(2)(g) functioned as legislators

intended when considered in conjunction with Craig and Coy. Our rules of statutory

construction and the supremacy of federal law require reading the statute in accordance with

Supreme Court precedent. The child was protected while the defendant’s right to

confrontation also was ensured. As explained by the United States Supreme Court in Craig,

certain “elements of confrontation-physical presence, oath, cross-examination, and

observation of demeanor by the trier of fact-serves the purposes of the Confrontation

Clause.” Craig, 497 U.S. at 861. Each of those essential elements were protected and ensured

in the present case. The defendant’s confrontation rights were not violated by the procedure

used in this case.

B. Harmless Error

¶47. Notwithstanding the findings above, any Confrontation Clause violation is analyzed

under a harmless error standard. See Smith v. State, 986 So. 2d 290, 300 (¶31) (Miss. 2008).

In Haynes v. State, 934 So. 2d 983, 991 (¶40) (Miss. 2006), the Mississippi Supreme Court

held, “[E]rrors involving a violation of an accused’s constitutional rights may be deemed

harmless beyond a reasonable doubt where the weight of the evidence against the accused

is overwhelming.” For a violation of a constitutional right to be held harmless, this Court

must determine that the violation was harmless beyond a reasonable doubt. Id. at (¶31) (citing

Chapman v. California, 386 U.S. 18, 23 (1967)), similarly, “errors involving a violation of

an accused’s constitutional rights may be deemed harmless beyond a reasonable doubt where

the weight of the evidence against the accused is overwhelming.” Id. at (¶38) (citing Clark

24
v. State, 891 So. 2d 136, 142 (Miss. 2004)).

¶48. The Court of Appeals of Arkansas examined this issue in an analogous case. In

Bertrand v. State, 550 S.W.3d 416, 417 (Ark. Ct. App. 2018), an eight-year-old child was

permitted to testify behind a screen without making the findings required by Craig. The

screen in Bertrand was described as “a translucent screen through which shadows could be

seen, but a direct view between the victim and the defendant was prohibited. The form of the

individual sitting in the witness chair could be seen, but details or a clear line of sight were

obstructed.” Id. The trial judge in Bertrand made no finding that the denial of the right of

confrontation was necessary to further an important public policy. Id. The court held,

“[W]hile we agree with Bertrand that this was error, we hold under the facts of this case that

the error was harmless and therefore affirm.” Id. The Court held that “the evidence

overwhelmingly established Bertrand’s guilt, and thus, any error was harmless.” Id. at 418.

¶49. The screen did not prejudice the jury against Pitts; the evidence did. We find that if

the placement of the screen were error, it was harmless. Under the standard in Haynes, there

was overwhelming evidence of Pitts’ guilt presented at trial. Both the child’s mother and

grandmother testified as to the child’s consistent disclosure of the abuse. The child victim

took the stand, and on cross-examination testified that while she still loved her father and

wanted to see him, she “will just sleep somewhere else” so another incident with her father

would not happen.

¶50. The most incriminating evidence was presented by Pitts himself. Pitts introduced the

written statements of the mother and the grandmother at trial despite both having testified

25
live. Pitts also introduced the child’s forensic CAC interview and played it for the jury.

During the video, the child was very talkative at first but appeared withdrawn when the

touching was discussed. She told the interviewer, in a description consistent with her trial

testimony, that her father put his finger in her vagina. Her exact words in the forensic

interview were, “[W]hen I was trying to sleep he dug his finger in my vagina, [and] . . .

when he was done he said touch mine, touch mine.” Substantial evidence of Pitts’ guilt was

presented to the jury, and we find any error in placing the screen was harmless.

¶51. The dissent argues the placement of the screen was not harmless error. Under Coy,

“[a]n assessment of harmlessness cannot include consideration of whether the witness’

testimony would have been unchanged . . . had there been confrontation; such an inquiry

would obviously involve pure speculation, and harmlessness must therefore be determined

on the basis of the remaining evidence.” Coy, 487 U.S. at 1021-22 (emphasis added).

¶52. The dissent argues that under this analysis, this Court should not consider the

testimonies of the mother and grandmother because they were admitted under the tender-

years exception. Under the Rules of Evidence, hearsay is admissible if the child (i) testifies

or (ii) is unavailable as a witness, and other evidence corroborates the act. MRE 803(25).

Unavailability is defined in Mississippi Rule of Evidence 804(6) as “a child for whom

testifying in the physical presence of the accused is substantially likely to impair the child’s

emotional or psychological health substantially.” A.G.C. was a four-year-old child and

clearly met the definition of tender years. The testimonies of the mother and the grandmother

were corroborated by each other’s testimony and the forensic interview. The testimony of the

26
mother and the grandmother should be considered as “remaining evidence” in a harmless

error analysis.

¶53. The dissent further argues A.G.C.’s testimony should not be considered in a harmless

error analysis. The dissent then speculates that Pitts would “have had no need” to introduce

the video of A.G.C.’s forensic interview, and, therefore, this Court also should not consider

that evidence. Making such a tenuous connection appears to be the type of “pure speculation”

that Coy seeks to avoid. Pitts never raises this argument or offered any reason why he wanted

to introduce the forensic interview. The dissent admits that during closing arguments Pitts’

attorney argued A.G.C. gave inconsistent statements in the forensic interview. If we are to

speculate, Pitts likely would have argued this point whether A.G.C. testified at trial with or

without a screen. Further, the forensic interview of a child has been held admissible evidence

under the tender-years exception by this Court and the Mississippi Supreme Court and was,

in fact, admitted by Pitts himself. Little, 72 So. 3d at 561 (¶15); Lambert v. State, 101 So. 3d

1172, 1175 (¶10) (Miss. Ct. App. 2012); Cook v. State, 161 So. 3d 1057, 1069 (¶33) (Miss.

2015). Yet the dissent wants this Court to speculate as to Pitts’ trial strategy and ignore the

clearly admissible evidence that Pitts introduced in its harmless error analysis. We decline

to do so.

C. Due Process Clause

¶54. Pitts further argues the placement of the screen “only served the purpose to prejudice

him in the eyes of the jury” and likens the practice to the defendant being shackled in front

of the jury. The appellant argues the screen “tainted the presumption of innocence in the

27
minds of the jury” and violated his constitutional right to due process.

¶55. Pitts failed to present this argument to the trial court. “This Court’s general policy is

that errors raised for the first time on appeal will not be considered, especially where

constitutional questions are concerned.” Almasri v. Miss. Dep’t of Rev., 282 So. 3d 698, 702

(¶10) (Miss. Ct. App. 2019) (quoting Powers v. Tiebauer, 939 So. 2d 749, 752 (¶8) (Miss.

2005)) (citing In re Miss. Medicaid Pharm. Average Wholesale Price Litig., 190 So. 3d 829,

845 (¶35) (Miss. 2015)). Pitts did object to the placement of the screen as a Confrontation

Clause violation but never argued to the trial court it was a Due Process Clause violation.

Pitts, therefore, waived this issue by failing to raise it at the trial level.

¶56. Notwithstanding the procedural bar, the Due Process Clause of the Fourteenth

Amendment to the United States Constitution mandates that “criminal prosecutions must

comport with prevailing notions of fundamental fairness.” Blakeney v. State, 236 So. 3d 11,

27 (¶60) (Miss. 2017) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)) (citing

Freeman v. State, 121 So.3d 888, 895 (Miss. 2013)). Trials are chaotic and adversarial. We

strive not for a perfect trial, but for a fundamentally fair trial. The Supreme Court of

Mississippi explained in Clark v. State, 891 So. 2d 136, 141 (¶19) (Miss. 2004):

“‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no
perfect trials.” Brown v. United States, 411 U.S. 223, 231-32, 93 S. Ct. 1565,
1570, 36 L. Ed. 2d 208 (1973). . . . That is, the Constitution does not guarantee
a perfect trial, but it does entitle a defendant in a criminal case to a fair trial.
Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S. Ct. 1431, 1436, 89 L. Ed.
2d 674 (1986).

¶57. In State v. Parker, 757 N.W.2d 7 (Neb. 2008), the defendant was charged with the

first-degree assault of a child. The state requested the child testify in chambers, and after a

28
hearing on the request, the Court permitted the child to testify behind a screen. Id. at 672. The

Supreme Court of Nebraska held the use of a screen in front of a testifying child was

inherently prejudicial and a violation of the Due Process Clause. Id. at 673.13 The court held,

“We conclude that the screen unduly compromised the presumption of innocence

fundamental to the right to a fair trial. The presence of the screen in the courtroom, in an

obvious and peculiar departure from common practice, could have suggested to the jury that

the court believed S.M. and endorsed her credibility, in violation of Parker’s right to a fair

trial.” Id. at 663 The Nebraska Court explained jurors could conclude that trial court placed

the screen “because the court believed her accusations were true.” Id. at 672. We disagree.

¶58. In People v. Rose, 808 N.W.2d 301, 315 (Mich. Ct. App. 2010), which we discussed

above, the Michigan Court of Appeals upheld the conviction holding there was no due

process violation where a screen was placed in front of the defendant. The court explained

that not every practice that tends to single out the accused must be struck down. Id. This is

because the jurors are understood to be “quite aware that the defendant appearing before

them did not arrive there by choice or happenstance. . . .” Holbrook v. Flynn, 475 U.S. 560,

567 (1986). The United States Supreme Court explained in Holbrook, 475 U.S. at 569,

“While shackling and prison clothes are unmistakable indications of the need to separate a

defendant from the community at large, the presence of guards at a defendant’s trial need not

be interpreted as a sign that he is particularly dangerous or culpable.” The court in Rose, 808

N.W. 2d at 520, explained:

13
The court found this issue dispositive and did not discuss the Confrontation Clause.

29
Although a juror might conclude that the witness fears the defendant because
the defendant actually harmed the witness, a reasonable juror might also
conclude that the witness fears to look upon the defendant because the witness
is not testifying truthfully. A reasonable juror could also conclude that the
screen is being used to calm the witness’s general anxiety about testifying
rather than out of fear of the defendant in particular.

¶59. A screen is not the sort of trapping that generally is associated with those who have

been convicted of a crime as prison garb or shackles are. Coy, 487 U.S. at 1034-35

(Blackmun, J., dissenting). It is therefore unlikely that the use of the screen had a

subconscious effect on the jury’s attitude toward the defendant. The placement of a screen

in front of a child victim is clearly about the protection of the child, not about placing undue

fault or burden on the defendant.

¶60. In the present case, the jury was instructed, “You should not be influenced by bias,

sympathy or prejudice. Your verdict should be based on the evidence and not be open to

speculation, guesswork or conjecture.” We hold that the use of a screen was not inherently

prejudicial to Pitts, nor was Pitts prejudiced by the use of a screen in this case.

II. Did the trial court err by excluding the testimony of the
Appellant’s expert witnesses, Dr. Mark Webb and Dr. Gerald
O’Brien?

¶61. The trial court held that both proposed defense experts were excluded because the late

disclosure of their reports was “a clear discovery violation.” The experts examined Pitts in

October 2020. The reports were not turned over to the State until January 2021, days before

trial. There was no explanation given as to why this information could not have been turned

over earlier.

¶62. Under Mississippi Rule of Criminal Procedure 17.3, a defendant must “promptly”

30
disclose any reports, statements, or opinions of experts that the defendant may offer into

evidence. This Court reviews a trial court’s ruling on discovery violations for an abuse of

discretion. Turner v. State, 292 So. 3d 1006, 1016 (¶23) (Miss. Ct. App. 2020) (citing Conley

v. State, 790 So. 2d 773, 782 (¶20) (Miss. 2001)). “This Court must determine (1) whether

such a violation occurred[,] and, if so, (2) whether the exclusion of this evidence was an

appropriate remedy.” Myers v. State, 145 So. 3d 1143, 1147-48 (¶10) (Miss. 2014) (citing

Williams v. State, 54 So. 3d 212, 213-14 (¶5) (Miss. 2011)). Trial courts are vested with

substantial discretion over the admission of evidence outside of discovery deadlines, and

appellate courts will not reverse a trial court’s decision regarding discovery violations

without finding an abuse of discretion. Chase v. State, No. 2018-KA-01501-COA, 2020 WL

772661, at *2 (¶11) (Miss. Ct. App. Feb. 18, 2020) (quoting Gray v. State, 799 So. 2d 53, 60

(¶26) (Miss. 2001) (citing Hunter v. State, 187 So. 3d 674, 678 (¶15) (Miss. Ct. App. 2016)).

¶63. In this case, this disclosure was clearly not “prompt” as required by the Rules of

Criminal Procedure. Exclusion of the evidence was a proper remedy because the prosecution

was not given a reasonable time to review the evidence prior to trial. The trial judge did not

abuse his discretion in excluding the experts’ testimonies because of a discovery violation.

¶64. The judge stated the “second basis” for the exclusion of the expert testimony was that

the judge did not believe the opinions met the standard in Mississippi Rule of Evidence 702,

which states:

A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help
the trier of fact to understand the evidence or to determine a fact in issue;

31
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.

¶65. Citing Middleton v. State, 980 So. 2d 351, 359 (¶31) (Miss. Ct. App. 2008), Pitts

argues that the Mississippi Supreme Court has held that an expert in child-sexual-abuse cases

may testify about common characteristics associated with child-sexual-abuse, and this Court

should extend that ruling to expert testimony concerning a defendant’s characteristic of a

sexual disorder. The Court of Appeals of Mississippi in Middleton upheld the introduction of

expert testimony concerning the physical characteristics of a sexually abused child. Id. at

(¶32). This decision was based on examining the medical report of the child and conclusion

based on scientifically reliable methods that the injuries were a result of abuse or human

intervention. Id. at (¶29). The proposed expert testimony in this case is different from that

approved in Middleton because no physical characteristics exist to tell an expert whether a

person is a pedophile. Importantly, the trial judge noted, “I do not believe that these opinions

meet the 702 standard in that they are not the product of reliable principles.”

¶66. A trial judge’s decision to exclude expert testimony is reviewed for an abuse of

discretion and the trial court’s decision will stand unless it was arbitrary and clearly erroneous.

Clark, 315 So. 3d at 994-95 (¶6). Pursuant to Mississippi Rule of Evidence 702, the trial judge

must act “as gatekeeper on questions of admissibility of expert testimony.” Miss. Transp.

Comm’n v. McLemore, 863 So. 2d 31, 40 (¶25) (Miss. 2003). “The proponent of expert

testimony must show by a preponderance of the evidence that the expert is qualified, that he

possesses scientific knowledge that will assist the jury, and that his testimony is based on

32
sufficient facts and data and reliable principles and methods, reliably applied to the facts of

the case.” Brown v. Prof’l Bldg. Servs. Inc., 284 So. 3d 754, 761-62 (¶30) (Miss. Ct. App.

2017), aff’d, 252 So. 3d 23 (Miss. 2018). The trial judge “must consider whether the expert

opinion is based on scientific knowledge (reliability) and whether the expert opinion will

assist the trier of fact to understand or determine a fact in issue (relevance).” Edmonds v.

State, 955 So. 2d 787, 791 (¶5) (Miss. 2007). “To be relevant, the evidence must ‘fit’ the case

by being ‘sufficiently tied to the facts of the case that it will aid the jury in resolving a factual

dispute.’” Corrothers v. State, 148 So. 3d 278, 294 (¶24) (Miss. 2014) (quoting Daubert v.

Merrell Dow Pharms. Inc., 509 U.S. 579, 591 (1993)).

¶67. Mississippi applies the Daubert standard for admissibility of expert testimony.

McLemore, 863 So. 2d at 35 (¶5) (adopting the federal standard for admissibility of expert

witness testimony articulated in Daubert, 509 U.S. at 592-94, for Mississippi courts). It is the

task of the trial court to make a “preliminary assessment of whether the reasoning or

methodology underlying the testimony is scientifically valid and of whether that reasoning or

methodology properly can be applied to the facts in issue.” Daubert, 509 U.S. at 592-93.

¶68. Both experts were admitted without objection as experts in their respective fields. The

trial court excluded both doctors’ testimonies stating their reports were not based on reliable

scientific knowledge. This Court repeatedly has upheld the exclusion of nearly identical expert

testimony. See McCammon v. State, 299 So. 3d 873 (Miss. Ct. App. 2020), cert. denied, 299

So. 3d 880, 884 (¶34) (Miss. 2020). In Earnest v. State, 805 So. 2d 599, 606 (¶22) (Miss. Ct.

App. 2002), this Court upheld the exclusion of Dr. O’Brien’s testimony in a similar case,

33
holding that his testimony that the defendant did not fit the profile of a sexual offender was

not derived from scientific principles generally accepted in the field because no scientifically

acceptable profile of a sex offender exists.

¶69. The trial judge did not abuse his discretion in excluding both Dr. Webb and Dr.

O’Brien’s expert testimony. The defense committed a clear discovery violation in the late

disclosure of the expert reports. Further, the expert opinions failed to meet the second prong

of the Daubert test, as they were not based on reliable scientific means.

III. Did the trial court err by admitting prior bad acts under Mississippi
Rule of Evidence 404(b)?

¶70. Pitts argues the court erred in admitting A.G.C.’s “past allegations,” but after a close

reading of the transcript, the jury never heard evidence of any other allegations against Pitts.

The trial court held a pre-trial conference concerning the State’s intent to introduce evidence

of Pitts’ prior bad acts against the victim. This evidence was never introduced at trial. Pitts

makes no mention of any specific testimony to explain what “past allegations” he is referring

to. The trial court did not have to conduct a Rule 403 balancing inquiry or grant a limiting

instruction because this testimony was never introduced at trial. This issue is moot.

IV. Did the trial court err by allowing witnesses to testify pursuant to
the tender-years exception?

¶71. The trial court conducted a pre-trial hearing on the admissibility under the tender-years

exception of the testimony of K.C. and T.C. concerning statements made by A.G.C. The trial

court ruled both statements were admissible. Pitts argues the testimony had no probative

value, was used to bolster the victim’s testimony, and was a ruse to place his prior bad acts

34
in front of the jury.

¶72. The State failed to address this argument in its brief. Appellate courts have two options

in addressing an appellee’s failure to file a brief:

The first alternative is to take the appellee’s failure to file a brief as a
confession of error and reverse, [and] this should be done when the record is
complicated or of large volume and the case has been thoroughly briefed by the
appellant with apt and applicable citation of authority so that the brief makes
out an apparent case of error[;] the second alternative is to disregard the
appellee’s error and affirm[, and] this alternative should be used when the
record can be conveniently examined and such examination reveals a sound and
unmistakable basis or ground upon which the judgment may be safely affirmed.

In re L.T. v. Youth Ct. of Warren Cnty., 335 So. 3d 599, 602 (¶6) (Miss. Ct. App. 2022). In

Jordan v. State, 211 So. 3d 713, 716 (¶11) (Miss. Ct. App. 2016), this Court held, “[A]n

appellee’s failure to file a brief on appeal is tantamount to confession of the errors alleged by

the appellant. The same rule applies where the appellee files a brief, but fails to address an

issue.” But “automatic reversal is not required if this Court can say with confidence that the

case should be affirmed.” Id. at (¶12); Dille v. State, 334 So. 3d 1162, 1188 (¶71) (Miss. Ct.

App. 2021).

¶73. This court reviews the admission of hearsay evidence for abuse of discretion. Blocton

v. State, 340 So. 3d 384 (¶14) (Miss. Ct. App. 2022) (citing Garcia-Lebron v. State, 323 So.

3d 1159, 1165 (¶21) (Miss. Ct. App. 2021)). To satisfy the element of the tender-years

exception that statements have “substantial indicia of reliability” the trial judge has to make

an overall determination that a child declarant was particularly likely to be telling the truth.

See MRE 803(25); accord Webb v. State, 113 So. 3d 592, 596 (¶18) (Miss. Ct. App. 2012).

¶74. Here, the trial court, on the record, thoroughly considered and weighed the tender years

35
factors. The court found that the child “had no apparent motive to lie” and that there was

“nothing here about the general character of the declaring that would weigh toward excluding

the testimony,” there was more than one person who heard the statement, the statements were

made spontaneously to the mother and to the CAC worker using techniques not suggestive in

nature, the allegations were made within days after the event, “I don’t believe that there’s any

possibility it’s a faulty recollection,” and the statements to CAC were on video. The child was

“very verbal,” and nothing about her age and maturity would weigh against the admissibility.

“She is young enough that she would not have any knowledge or experience about digital

penetration of her vagina.” “Almost all these factors weigh in favor and provide[] substantial

indicia of reliability.” The court found that “the probative value of these statements [is] not

substantially outweighed by the danger of unfair prejudice.”

¶75. The judge conducted a thorough tender-years analysis on the record and found the child

was likely telling the truth. This testimony was not “a ruse to place prior bad acts in front of

the jury”; no prior bad acts were ever placed in front of the jury. There was no concern of

confusing the jury. The testimony was used to describe A.G.C.’s initial disclosures that led

to the charges against Pitts. The court did not abuse its discretion in admitting the testimony.

V. Was there cumulative error?

¶76. Pitts argues that “as a result of the cumulative errors in the trial, Appellant was denied

a fair trial.” The State responds that “there can be no cumulative error where, as here, there

is no individual error,” citing Whittaker v. State, 269 So. 3d 1226, 1230 (¶9) (Miss. Ct. App.

2018). Thus, the State contends, no cumulative error exists.

36
¶77. The cumulative-error doctrine provides that “where one error, standing alone, may not

warrant reversal, reversal may be required if the errors, taken together, ‘create such an

atmosphere of bias, passion, and prejudice that they effectively deny the defendant a

fundamentally fair trial.’” Jones v. State, 203 So. 3d 600, 617 (¶58) (Miss. 2016) (quoting

Dickerson v. State, 175 So. 3d 8, 35 (¶58) (Miss. 2015)).

¶78. As stated above, Pitts was not prejudiced by the use of the screen in the courtroom.

Further, the trial court did not err when it excluded the expert testimony. There was no prior

bad-acts testimony introduced in this case. The trial court did not err when it admitted the

hearsay testimony under the tender-years doctrine. Thus, no cumulative error exists.

¶79. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, McCARTY AND SMITH, JJ.,
CONCUR. McDONALD, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY WESTBROOKS, J.; McDONALD, J., JOINS IN
PART. EMFINGER, J., NOT PARTICIPATING.

WILSON, P.J., DISSENTING:

¶80. The use of a screen to block the alleged victim’s view of Pitts during her testimony at

trial clearly violated Pitts’s constitutional right “to be confronted with the witnesses against

him,” U.S. Const. amend. VI, as interpreted by the United States Supreme Court. That Court

has held that in a case such as this, a child witness must testify in the defendant’s presence

unless the evidence shows, and the trial court specifically finds, that testifying in the

defendant’s presence would cause the child significant trauma or emotional distress. In the

present case, there was no such evidence, and the trial court made no such findings. This

37
Court is, of course, “under authority of the United States Supreme Court,” and we must follow

its decisions in all “comparable cases.” Bolton v. City of Greenville, 253 Miss. 656, 666, 178

So. 2d 667, 672 (1965). Therefore, we are bound to recognize that the use of a screen in this

case violated Pitts’s rights under the Confrontation Clause. In addition, the State cannot show

that this constitutional error was harmless beyond a reasonable doubt. Accordingly, we must

reverse the conviction and remand the case for a new trial. Since the majority instead affirms,

I respectfully dissent. I also note that trial courts should avoid using the statute at issue in this

case because it likely violates the separation-of-power provisions of the Mississippi

Constitution, as interpreted by the Mississippi Supreme Court.

I. Under binding United States Supreme Court precedent, a trial court
must make a case-specific and individualized finding that testifying
in the defendant’s presence would traumatize a child witness before
the child can testify at trial in the absence of face-to-face
confrontation with the defendant.

¶81. Two United States Supreme Court cases clearly resolve the Confrontation Clause issue

in this case. First, in Coy v. Iowa, 487 U.S. 1012 (1988), Coy was charged with sexually

assaulting two thirteen-year-old girls. Id. at 1014. Over Coy’s objection, “[t]he trial court

approved the use of a large screen to be placed between [Coy] and the witness stand during

the girls’ testimony. After certain lighting adjustments in the courtroom, the screen would

enable appellant dimly to perceive the witnesses, but the witnesses to see him not at all.” Id.

at 1014-15. The trial court’s ruling was based on an Iowa statute that permitted a screen to

be placed between a child witness and the defendant if the court (a) took steps to ensure that

the defendant and his attorney could confer during the testimony and (b) informed the child

38
witness that the defendant could see and hear the child during the testimony. Id. at 1015 n.1

(quoting Iowa Code § 910A.14 (1987)).

¶82. However, the United States Supreme Court held that the screen violated Coy’s

constitutional right to confront his accusers. Id. at 1020. The Court reviewed the historical

roots of the defendant’s right “to be confronted with the witnesses against him” and held that

the Confrontation Clause clearly guarantees a “face-to-face encounter” or “confrontation”

between the defendant and the witnesses who testify against him at trial. Id. at 1015-20. The

Court noted that most of its prior Confrontation Clause decisions had addressed the

admissibility of out-of-court statements or limitations on cross-examination because “there

is at least some room for doubt (and hence litigation)” regarding the Clause’s application to

such issues. Id. at 1016. In contrast, “‘simply as a matter of English’ [the Confrontation

Clause] confers at least ‘a right to meet face to face all those who appear and give evidence

at trial.’” Id. (quoting California v. Green, 399 U.S. 149, 175 (1970) (Harlan, J., concurring)).

The Court held that the screen used in Coy violated the Confrontation Clause because it “was

specifically designed to enable the complaining witnesses to avoid viewing [Coy] as they gave

their testimony, and . . . it was successful in this objective.” Id. at 1020. Indeed, the Court

concluded that it was “difficult to imagine a more obvious or damaging violation of the

defendant’s right to a face-to-face encounter.” Id.

¶83. In Coy, the State argued that the defendant’s right to confront the witnesses at trial

“was outweighed by the necessity of protecting victims of sexual abuse.” Id. at 1020. But the

Supreme Court stated that it would “leave for another day . . . the question whether any

39
exceptions exist” to the defendant’s right to confront witnesses at trial “face to face.” Id. at

1021. The Court stated that any such exception would require “something more than the type

of generalized legislative finding underlying [the Iowa] statute.” Id. The Court further stated

that “any conceivable exception” would require “individualized findings that the[] particular

witness[] needed special protection.” Id.

¶84. In a concurring opinion, Justice O’Connor stated that she “would permit use of a

particular trial procedure that called for something other than face-to-face confrontation if that

procedure was necessary to further an important public policy.” Id. at 1025 (O’Connor, J.,

concurring). But Justice O’Connor agreed that an exception would require “more than [a]

generalized legislative finding of necessity.” Id. She stated “that the strictures of the

Confrontation Clause [might] give way to the compelling state interest of protecting child

witnesses” only if the court first made “a case-specific finding of necessity.” Id.

¶85. In Maryland v. Craig, 497 U.S. 836 (1990), the Court revisited the issue Coy left open.

In Craig, child witnesses in a sex abuse prosecution were allowed to testify outside the

defendant’s presence by one-way closed-circuit television. Id. at 840-43. Under Maryland

law, the trial judge could allow such testimony only if the judge first found that testifying in

court in the defendant’s presence would cause the child witness to “suffer[] serious emotional

distress such that the child [could not] reasonably communicate.” Id. at 841 (quoting Md.

Code Ann., Cts. & Jud. Proc. § 9-102(a)(1)(ii) (1989)). If the judge made that finding, the

child would be examined and cross-examined in a separate room in the presence of the

prosecutor and defense counsel, while the judge, the jury, and the defendant would remain in

40
the courtroom and observe by one-way closed-circuit television. Id. In addition, the

defendant would remain in electronic communication with his attorney throughout the child’s

testimony. Id. at 842.

¶86. In Craig, the Supreme Court held “that, if the State makes an adequate showing of

necessity, the state interest in protecting child witnesses from the trauma of testifying in a

child abuse case is sufficiently important to justify the use of a special procedure that permits

a child witness in such cases to testify at trial against a defendant in the absence of face-to-

face confrontation with the defendant.” Id. at 855. The Court also held that “[t]he requisite

finding of necessity must of course be a case-specific one: The trial court must hear evidence

and determine whether use of the one-way closed circuit television procedure is necessary to

protect the welfare of the particular child witness who seeks to testify.” Id. (emphasis added).

More specifically, the Court held that “[t]he trial court must . . . find that the child witness

would be traumatized, not by the courtroom generally, but by the presence of the defendant.”

Id. at 855-56. That is, “[d]enial of face-to-face confrontation” is constitutionally permissible

only if “it is the presence of the defendant that causes the trauma.” Id. “Finally, the trial

court must find that the emotional distress suffered by the child witness in the presence of the

defendant is more than de minimis, i.e., more than mere nervousness or excitement or some

reluctance to testify.” Id. (emphasis added) (quotation marks and citations omitted). The

Court held that the Maryland statute satisfied these constitutional requirements because it

required a preliminary judicial “determination that the child witness would suffer ‘serious

emotional distress such that the child cannot reasonably communicate.’” Id.

41
¶87. Less than a year after Craig was decided, the Mississippi Supreme Court adopted a rule

of evidence that incorporates and complies with Craig’s constitutional requirements. MRE

617. Under Mississippi Rule of Evidence 617,

the court may order that a child’s testimony be taken outside the courtroom and
shown in the courtroom by means of closed-circuit television if the court
determines that:

(1) the child is under the age of 16 years;

(2) the testimony is that an unlawful sexual act, contact, intrusion,
penetration, or other sexual offense was committed on the child; and

(3) there is a substantial likelihood that the child will suffer traumatic
emotional or mental distress if compelled to testify:

(A) in open court; and

(B) in a criminal case, in the presence of the accused.

MRE 617(a). In addition, “the court must: (A) conduct a hearing in camera; and (B) make

specific findings of fact, on the record, as to the basis of the ruling.” MRE 617(b)(2)

(emphasis added).

II. In the absence of a finding—or any evidence—that A.G.C. would be
traumatized by testifying in Pitts’s presence, the use of a screen to
block A.G.C.’s view of Pitts violated Pitts’s rights under the
Confrontation Clause.

¶88. In the present case, the State opted not to proceed under Rule 617. Instead, at the end

of proceedings on the afternoon before trial, the State for the first time requested permission

to use a “screen” during A.G.C.’s testimony pursuant to a statute enacted in 2015, Miss. Code

Ann. § 99-43-101(2)(g) (Rev. 2020). After the jury had been selected and the trial judge had

finished hearing pretrial motions, the judge asked if there was “[a]nything else” he needed to

42
address before trial began the following morning. At that point, the State cited the statute and

“ask[ed] for permission to permit the use of a properly constructed screen that would prevent

[A.G.C.] from having to view [Pitts] in the courtroom during her testimony.” The State

argued that A.G.C. had a “right” to such a screen because the statute provides that “a child

shall have” that and certain other “rights.” Defense counsel objected to the lateness of the

State’s request, and the judge stated that he would have to research the issue overnight

because, like defense counsel, he had “never heard of that statute.”

¶89. The following day, before A.G.C. testified, Pitts objected that the proposed screen

would violate his rights under the Confrontation Clause and that there was no evidence that

A.G.C. was afraid of him. Pitts argued that testimony from the pretrial tender-years hearing

indicated that A.G.C. was “not afraid of him” and indeed still “ha[d] a great deal of love for

him.” In response, the State asserted that A.G.C.’s mother “believe[d] that it [would] be

difficult for [A.G.C.] to testify [with Pitts] staring at her.”

¶90. But the State also argued,

We don’t have to put on that proof . . . . [T]he statute states that [A.G.C.] shall
have that right[,] and I’m not required to put on any proof that she’s scared of
[Pitts]. . . . [T]he Mississippi Crime Victim’s Bill of Rights [provides] that she
shall be given that right if it’s requested.

Moreover, the State specifically pointed out that “a different subsection” of the same statute

provided that a child could testify by video deposition outside the defendant’s presence, and

this different subsection did “outline[] . . . certain requirements or certain proof that the State

must put on about the child and any reason that [procedure] may be necessary.” See Miss.

Code Ann. § 99-43-101(5). But the State argued that under subsection (2)(g), the child

43
witness has a “right” to a screen while testifying in court, and “there are no requirements that

the State put on proof on how the child might be affected by viewing [the] defendant [during

her] testimony.” The trial judge then directed defense counsel to address the fact that

subsection (2)(g) “appears to be mandatory” and “appears not to require any proof.”

¶91. When the trial judge ultimately announced his ruling, he again stated that the “statute

. . . appear[ed] to be mandatory,” and he expressed “some concerns about [his] ability to

declare the statute unconstitutional and fail to follow it.” The judge also stated that he was

“concerned about the constitutionality of the statute.” Nonetheless, the judge ruled that

A.G.C. could testify behind a screen that blocked her view of Pitts.

¶92. The use of a screen in this case was clearly inconsistent with the United States

Supreme Court’s holdings in Coy and Craig. In Coy, the Court held that any possible

exception to the defendant’s right to confront witnesses “face to face” would require

“something more than [a] generalized legislative finding.” Coy, 487 U.S. at 1021. The Court

held that “any conceivable exception” would require “individualized findings that the[]

particular witness[] needed special protection.” Id. Then in Craig, the Court held that a child

witness may “testify at trial . . . in the absence of face-to-face confrontation with the

defendant” only if the trial court first makes a case-specific finding of “necessity.” Craig, 497

U.S. at 855. The Court also held that “[t]he requisite finding of necessity must of course be

a case-specific one: The trial court must hear evidence and determine whether use of the one-

way closed-circuit television procedure is necessary to protect the welfare of the particular

child witness who seeks to testify.” Id. (emphasis added). In addition, “[t]he trial court must

44
. . . find that the child witness would be traumatized, not by the courtroom generally, but by

the presence of the defendant.” Id. at 856. “Finally, the trial court must find that the

emotional distress suffered by the child witness in the presence of the defendant is more than

de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify.”

Id. (emphasis added) (quotation marks and citations omitted).

¶93. In this case, the trial judge made no such individualized findings. The problem is not

just that the judge did not “recite the magic words,” as the majority suggests. Ante at n.11.14

The problem is that the judge did not—in form or substance—make any of the individualized,

case-specific findings that the United States Supreme Court has held are absolutely necessary

in a case such as this. Coy, 487 U.S. at 1021; Craig, 497 U.S. at 855-56. In support of its

eve-of-trial request for a screen, the State argued that it “was not required to put on any proof”

that testifying in Pitts’s presence would traumatize A.G.C., and the trial judge ultimately

agreed that the statute was “mandatory.” Accordingly, the judge made none of the

individualized findings required by Coy and Craig.

¶94. Moreover, the record evidence in the case would not have supported a finding that

testifying in Pitts’s presence would have traumatized A.G.C. During a pretrial hearing,

14
The majority’s “analogy” to Jones v. Mississippi, 141 S. Ct. 1307 (2021), see ante
at n.11, is misplaced. In Jones, the United States Supreme Court “unequivocally stated that
a separate factual finding of permanent incorrigibility is not required before a sentencer
imposes a life-without-parole sentence on a murderer under 18.” Id. at 1318-19 (emphasis
added). In Jones, the Court also held that not even “an ‘implicit finding’ of permanent
incorrigibility” is required when a sentencing court addresses that issue. Id. at 1319. In
stark contrast, addressing the defendant’s right to face-to-face confrontation, the United
States Supreme Court has twice held that the Constitution does require the trial judge to
make individualized and case-specific findings that testifying in the defendant’s presence
will traumatize the child witness. Coy, 487 U.S. at 1021; Craig, 497 U.S. at 855-56.

45
A.G.C.’s mother testified that A.G.C. was still “very adamant that she love[d] her dad, that

she misse[d] her dad, and that she want[ed] to see her dad.” (Emphasis added). The only

evidence regarding the effect that testifying in Pitts’s presence would have on A.G.C. was her

mother’s statement that A.G.C. “was very distraught over the fact that she would have to

come to court and testify with her daddy in the courtroom and not be able to talk to him.”

(Emphasis added). But A.G.C.’s distress that she would not be able to talk to Pitts if she saw

him in the courtroom does not establish that Pitts’s presence would have traumatized A.G.C.

or caused her significant emotional distress. Indeed, at trial, A.G.C. testified that she loved

and missed Pitts and that she would want to hold him and hug him if she could see him. Thus,

in addition to the lack of any actual findings regarding the potential for trauma to A.G.C.,

there is simply no evidence in the record that could satisfy the requirements of Coy and

Craig.15 In the absence of such findings and evidence, the use of a screen in this case clearly

violated the Confrontation Clause, as interpreted in Coy and Craig.16

15
Despite the absence of such evidence, the majority says that “[t]he State argued
that the guardian of the child was concerned about the trauma to the child from having to
testify with Pitts ‘staring’ at her . . . .” Ante at ¶42 (emphasis added). Of course, mere
“arguments of counsel are not evidence.” One 1970 Mercury Cougar v. Tunica County, 115
So. 3d 792, 796 (¶20) (Miss. 2013) (“No citation of authority is necessary for the
fundamental proposition[] . . . that the arguments of counsel are not evidence.”). In addition,
what the State actually argued was that A.G.C.’s “guardian . . . believe[d] that it [would] be
difficult for [A.G.C.] to testify while her father [was] staring at her.” But as the trial judge
noted, the defendant and “everybody in the room” should be “staring at the witness while
they’re testifying.” Moreover, the fact that testifying in the defendant’s presence may be
“difficult” for a witness is not sufficient to override the defendant’s right to face-to-face
confrontation under Coy and Craig.
16
Mississippi Code Annotated section 99-43-101(2)(g) could be applied in a manner
consistent with the Confrontation Clause if the trial judge supplemented the statute by
making the findings that Coy and Craig require and the record contained substantial

46
III. The constitutional error in this case cannot be dismissed as
“harmless error.”

¶95. A violation of the Confrontation Clause may be deemed harmless error only “if the

reviewing court may confidently say, on the whole record, that the constitutional error was

harmless beyond a reasonable doubt.” Smith v. State, 986 So. 2d 290, 300 (¶31) (Miss. 2008)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). Moreover, “[o]nce the

constitutional error has been established, the burden is on the State to demonstrate the error

is harmless beyond a reasonable doubt.” Id.

¶96. Applying this exacting harmless-error standard, the error in this case cannot be

dismissed as harmless. To begin with, the majority’s harmless-error argument improperly

relies on A.G.C.’s testimony. Ante at ¶49. In this precise context, the United States Supreme

Court has held that a determination of harmless error cannot rest on the very testimony that

violated the Confrontation Clause. In Coy, the Court stated, “An assessment of harmlessness

cannot include consideration of whether the witness’ testimony would have been unchanged,

or the jury’s assessment unaltered, had there been confrontation; such an inquiry would

obviously involve pure speculation, and harmlessness must therefore be determined on the

basis of the remaining evidence.” Coy, 487 U.S. at 1021-22 (emphasis added).

¶97. The majority’s harmless-error analysis also problematically relies on hearsay testimony

from A.G.C.’s mother and grandmother that was admissible only because A.G.C. also testified

at trial. The mother’s and grandmother’s testimony was admitted under the tender-years

evidence to support those findings. But such findings and evidence are absent in this case.
In addition, as discussed in Part IV, infra, the statute likely violates the separation-of-powers
provisions of the Mississippi Constitution, as interpreted by the Mississippi Supreme Court.

47
exception to the hearsay rule. See MRE 803(25). Hearsay is admissible under that exception

only if, among other things, “the child either: (i) testifies; or (ii) is unavailable as a witness,

and other evidence corroborates the act.” MRE 803(25)(B) (emphasis added). In this case,

A.G.C. was not “unavailable as a witness,”17 nor is there any “other evidence” that

“corroborates” the alleged sexual battery.18 Thus, the admissibility of the mother’s and

grandmother’s hearsay testimony depended on A.G.C.’s testifying at trial.19 I do not see how

17
A child witness is considered unavailable if “testifying in the physical presence of
the accused is substantially likely to impair the child’s emotional or psychological health
substantially.” MRE 804(a)(6). The proponent of hearsay bears the burden of proving that
the declarant is unavailable. See, e.g., Ellis v. State, 196 So. 3d 1029, 1034 (¶15) (Miss. Ct.
App. 2015). As discussed above, there was no evidence that testifying in Pitts’s presence
was substantially likely to impair A.G.C.’s emotional or psychological health substantially.
18
The majority asserts that there is “other evidence” that “corroborates the act”
because A.G.C.’s out-of-court statements to her mother, her grandmother, and the CAC
interviewer all corroborate each other. Ante at ¶52. Although the issue does not appear to
have been addressed in Mississippi, the Colorado Supreme Court and two Florida District
Courts of Appeal have held that other hearsay statements by the same child cannot satisfy
the other-corroborative-evidence requirement. People v. Bowers, 801 P.2d 511, 527 (Colo.
1990) (holding that Colorado’s tender-years exception “was not intended to sanction the use
of one of the child’s hearsay statements as corroborative evidence of the act described in
another hearsay statement made by the same child”); Delacruz v. State, 734 So. 2d 1116,
1122 (Fla. 1st Dist. Ct. App. 1999) (“[W]e hold that out-of-court statements of the alleged
child victim may not be used to satisfy the ‘other corroborative evidence’ requirement of
[Florida’s tender-years exception].”); R.U. v. Dep’t of Children & Families, 777 So. 2d
1153, 1160 (Fla. 4th Dist. Ct. App. 2001) (“The child declarant’s hearsay statements cannot
be ‘other’ corroborating evidence within the meaning of [Florida’s tender-years exception].
We read the word ‘other’ in the rule as denoting evidence derived from a source other than
the child victim’s own statements.”). As one of the Florida courts noted, the majority’s
interpretation of the rule “would permit those charged with crimes against children to be
convicted based solely upon hearsay evidence.” Delacruz, 734 So. 2d at 1121-22. I find
these decisions persuasive and would likewise hold that other hearsay statements by the
same child cannot satisfy Rule 803(25)(B)(ii)’s other-corroborative-evidence requirement.
19
Prior to trial, in response to questions by the trial court, the State made clear that
A.G.C. would testify at trial and that it was seeking admission of her out-of-court statements

48
we can deem a Confrontation Clause violation harmless based on hearsay that was admitted

at trial only because of the very testimony that violated the Confrontation Clause. In any

event, we cannot “confidently say . . . beyond a reasonable doubt” that the jury would have

convicted Pitts based solely on pure hearsay. Smith, 986 So. 2d at 300 (¶31) (emphasis added)

(quoting Van Arsdall, 475 U.S. at 681).

¶98. Finally, the majority states that any error was harmless because “[t]he most

incriminating evidence was presented by Pitts himself,” citing the video of A.G.C.’s CAC

interview and the written statements of A.G.C.’s mother and grandmother. Ante at ¶50.

Reliance on this evidence is also problematic because Pitts introduced it in response to

A.G.C.’s trial testimony, which violated the Confrontation Clause, and the mother’s and

grandmother’s hearsay testimony, which was allowed only because A.G.C. first testified in

violation of the Confrontation Clause. Had A.G.C. not first been allowed to testify in

violation of the Confrontation Clause, Pitts would have had no need to introduce this allegedly

“most incriminating evidence.”

¶99. But even setting that problem to the side, I respectfully disagree that this Court can

“confidently say . . . beyond a reasonable doubt” that the jury would have convicted Pitts

based on the video of the CAC interview or written statements relaying hearsay. Smith, 986

So. 2d at 300 (¶31) (emphasis added) (quoting Van Arsdall, 475 U.S. at 681). The interview

is approximately one-hour long, statements that A.G.C. makes during the course of the

interview are incriminating, and a jury certainly could find A.G.C.’s account to be truthful and

under Mississippi Rule of Evidence 803(25)(B)(i).

49
credible. But Pitts introduced the video because he believed that, on balance, the interview

raised doubts about A.G.C.’s allegations. During the interview, A.G.C. initially stated that

no one had ever touched her vagina. Later in the interview, A.G.C. talked about the incident

when Pitts applied Butt Paste or “medicine” to or around her vagina because her vagina was

itching and red and she had been scratching it. A.G.C. said “it felt much better when he put

the medicine on it,” and Pitts told her “not to scratch it” anymore. A.G.C. said that her half-

sister was present during that incident. Finally, approximately thirty-five minutes into the

interview, in response to further questions from the interviewer, A.G.C. stated that Pitts had

inserted his finger into her vagina on other occasions. In his closing argument, Pitts’s counsel

argued that the A.G.C. gave inconsistent statements during the interview and incriminated

Pitts only in response to excessive prodding and questioning by the interviewer.

¶100. To be clear, I am not suggesting that A.G.C.’s testimony or her statements to the

interviewer are not credible. Nor am I suggesting that A.G.C.’s testimony would not be

sufficient to support a conviction if she were to give similar testimony in compliance with the

requirements of the Confrontation Clause. But under Coy, this Court’s harmless-error

analysis may not consider A.G.C.’s testimony. Coy, 487 U.S. at 1021-22. Moreover, the issue

for this Court is not whether “the remaining evidence” was merely sufficient to support the

conviction; rather, the issue is whether we can confidently say “beyond a reasonable doubt”

that the jury would have convicted Pitts without A.G.C.’s testimony. Id. Further, as discussed

above, there is the additional problem that “the remaining evidence” against Pitts was

admissible at trial or introduced by Pitts only because A.G.C. first testified in violation of the

50
Confrontation Clause. But even setting that issue aside, the State cannot show,20 and this

Court cannot find “beyond a reasonable doubt,” that the jury would have convicted Pitts of

this serious crime without the alleged victim’s testimony and based solely on hearsay.

Accordingly, the constitutional error in Pitts’s trial cannot be deemed harmless.

IV. Mississippi Code Annotated section 99-43-101 likely violates the
separation-of-powers provisions of the Mississippi Constitution.

¶101. Although the parties did not raise the issue, section 99-43-101(2)(g) also raises a

significant constitutional question under the separation-of-powers provisions of Mississippi

Constitution, as interpreted by the Mississippi Supreme Court. In Hall v. State, 539 So. 2d

1338 (Miss. 1989), the Court addressed the constitutionality of a prior statute on this subject,

the Evidence of Child Sexual Abuse Act, 1986 Miss. Laws ch. 435, codified at Miss. Code

Ann. §§ 13-1-401 to -415 (Rev. 2019). Specifically, the Court addressed the Act’s

legislatively created exception to the hearsay rule for certain out-of-court statements by

children in child sex abuse prosecutions. Hall, 539 So. 2d at 1340-41, 1343-44 (discussing

section 13-1-403). The defendant in Hall had been convicted based on hearsay testimony

from social workers regarding out-of-court statements by the alleged victim. Id. at 1340-41.

Their testimony was inadmissible under the Mississippi Rules of Evidence but admissible

under the Evidence of Child Sexual Abuse Act. Id. at 1341-44. On appeal, the Supreme

Court reversed the conviction, holding that the Act violated the separation-of-powers

provisions of the Mississippi Constitution. Id. at 1346. The Court stated,

20
Smith, 986 So. 2d at 300 (¶31) (“[T]he burden is on the State to demonstrate [that
a constitutional] error is harmless beyond a reasonable doubt.”).

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As trials are the core activity of the judiciary, so the promulgation of rules for
the regulation of trials lie at the core of the judicial power. That being so, it
only follows that the officers of neither the legislative nor executive
departments of government, acting jointly or severally, had authority to confer
legal validity upon the Evidence of Child Sexual Abuse Act.

Id.

¶102. Although Hall specifically involved provisions of the Evidence of Child Sexual Abuse

Act regarding hearsay, the Supreme Court’s opinion indicated that the entire Act was

unconstitutional. Id.21 That Act also included provisions that permitted a child to testify by

closed-circuit television or videotaped testimony if the trial court first made certain on-the-

record-findings. See generally Miss. Code Ann. §§ 13-1-405 & -407. While declaring the

Act unconstitutional, the Court also referred “the entire subject of evidence of child sexual

abuse” to the Supreme Court Advisory Committee on Rules and directed the Committee to

“study and investigate the matter and, in the end, recommend whether and to what extent [the

Court] ought amend the Mississippi Rules of Evidence” to address that subject. Hall, 539 So.

2d at 1347-48. After studying the subject, the Committee recommended certain amendments

to Rules 803 and 804, and the Court ultimately adopted those amendments along with a new

Rule 617 governing testimony by a child witness by closed-circuit television, which is

discussed above (see supra ¶87). See In re: Mississippi Rules of Evidence Nos. 617, 803 and

804 and Comments to Rules 617, 803 and 804, No. 89-R-99002 (Miss. Mar. 27, 1991),

21
See also id. at 1349 (Hawkins, P.J., dissenting) (recognizing that “[u]nder the
majority’s holding the Legislature had no constitutional authority to enact [the entire
Evidence of Child Sexual Abuse Act], a comprehensive series of statutes dealing with
evidence in child sexual abuse cases”); Bowen v. State, 607 So. 2d 1159, 1161 (Miss. 1992)
(stating that Hall’s holding extended to other provisions of the Act).

52
reported at 574-576 So. 2d XXVIII (West’s Miss. Cases 1991). As discussed above, Rule 617

incorporates Craig’s constitutional requirements and provides for the child witness to testify

by closed-circuit television if those requirements are satisfied. See MRE 617.

¶103. Despite Hall’s holding and the Mississippi Supreme Court’s subsequent adoption of

Rule 617, in 2015 the Legislature once again attempted to establish rules governing evidence

in child sexual abuse cases when it enacted Mississippi Code Annotated section 99-43-101,

which, among other things, purports to grant a child witness a right to testify behind a screen

that will “obscure the child’s view of the defendant” in a criminal case. Miss. Code Ann. §

99-43-101(2)(g); see 2015 Miss. Laws ch. 493, § 2 (H.B. 959). With respect to separation-of-

powers concerns, there is no meaningful difference between the 1986 Evidence of Child

Sexual Abuse Act and the 2015 statute at issue in this case. Therefore, under Hall, the 2015

statute likely violates the separation-of-powers provisions of the Mississippi Constitution.22

Indeed, if anything, the 2015 statute is more problematic from a separation-of-powers

standpoint because it mandates a procedure and rule that differ materially from what the

Supreme Court adopted in Rule 617.

¶104. Although Pitts has not raised the separation-of-powers issue in this case, the trial judge

alluded to the problem indirectly when he observed that he was “looking at a statute that

appear[ed] to be mandatory” and that he “ha[d] some concerns about [his] ability to declare

22
For a recent criticism of Hall, see Channing J. Curtis & Christopher R. Green,
Forty Years Across the Rubicon, 92 Miss. L.J. (forthcoming 2023), available at
https://ssrn.com/abstract=4080396 (revised Dec. 30, 2022). This Court is, of course, bound
by Hall. See, e.g., Hudson v. WLOX Inc., 108 So. 3d 429, 432 (¶10) (Miss. Ct. App. 2012)
(“[T]his court lacks authority to overrule Mississippi Supreme Court precedent.”).

53
the statute unconstitutional and fail to follow it.” When the trial judge granted the State’s

request for a screen, the judge was not, as the majority suggests, exercising his “inherent

power” or “discretion” “to control [his] courtroom.” Ante at ¶44. Rather, he was acceding

to a legislative mandate regarding the manner in which a witness should testify at trial. Under

Hall, such mandates violate the Mississippi Constitution.

¶105. In the present case, I would not declare the statute unconstitutional under Hall because

Pitts has not raised the issue.23 But in future cases, prosecutors and trial courts should avoid

this significant constitutional problem by proceeding under Rule 617, if necessary, rather than

under this statute.

* * * * *

¶106. The manner in which the alleged victim testified at trial violated the Confrontation

Clause under clear holdings of the United States Supreme Court. Furthermore, this Court

cannot determine “beyond a reasonable doubt” that the jury would have convicted Pitts

without the alleged victim’s testimony and based solely on hearsay. Therefore, we are bound

to reverse the conviction and remand the case for a new trial. Accordingly, I respectfully

dissent from the majority’s decision to affirm.

WESTBROOKS, J., JOINS THIS OPINION. McDONALD, J., JOINS THIS
OPINION IN PART.

23
See, e.g., Rosenfelt v. Miss. Dev. Auth., 262 So. 3d 511, 519 (¶27) (Miss. 2018)
(“[W]e decline to address an issue that has not been briefed on appeal. . . . Simply put, we
will not act as an advocate for one party to an appeal.” (quotation marks omitted)). But see
Leatherwood v. State, 548 So. 2d 389, 407 (Miss. 1989) (Hawkins, P.J., dissenting)
(criticizing the Supreme Court for raising the separation-of-powers issue sua sponte in Hall).

54