Grose v. Epps et al

Filing 30

MEMORANDUM OPINION re 29 Final Judgment. Signed by Michael P. Mills on 1/24/14. (cr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION

JOHNNY GROSE

PETITIONER

vs.

CIVIL ACTION NO.: 3:13cv47-MPM-SAA

CHRISTOPHER EPPS, et al.

RESPONDENTS

MEMORANDUM OPINION AND ORDER
Petitioner, Johnny Grose, Mississippi prisoner # 143238, has filed a pro se federal habeas
petition pursuant to 28 U.S.C. § 2254 challenging his state court convictions for sexual battery,
touching a child for lustful purposes, and felony child neglect. Having considered the
submission of the parties, the State court record, and the law applicable to Petitioner’s claims, the
Court finds that the petition should be denied, for the reasons that follow.
Background Facts and Procedural History
In 2006, Krystal Jordan, Timothy Jordan, Glenn Grose, and Johnny Grose were indicted
for the sexual battery, gratification of lust, and child neglect of Krystal and Tim’s three year-old
daughter, B.J. Krystal1 pled guilty to three counts of sexual battery and felony child abuse and
testified against the remaining defendants at their joint trial.2 The men were convicted of the

1

Because several individuals involved in this case share the same surname, the Court
refers to each member of the Jordan and Grose families by their first names. The Court also
notes that Krystal’s mother, identified only as “Gloria” herein, is named in the record as both
“Gloria Hollis” and “Gloria Becerril,” due to a change in marital status. Additionally, the Court
notes that Mrs. Jordan is identified in the transcript as “Cristal,” “Kristi,” and “Christy”, but she
will be designated throughout this Opinion and Order as “Krystal” unless the Court is quoting
from the record.
2

Tim filed a motion for severance but was denied.
1

charges. A brief recitation of the events leading up to their conviction is as follows:
In October 2005, Krystal and Tim Jordan were living in the home of Johnny Grose and
Glenn Grose. The Jordan’s children, B.J., the victim in this case, and S.J., her infant sister, lived
there as well. On October 20, 2005, Rhiannon Shaw, employed as a family protection specialist
by the Lafayette County Department of Human Services, received an anonymous telephone call
reporting the possibility that drug use, prostitution, and child neglect might be occurring in the
home. A few days later, Krystal was arrested on a domestic violence charge involving Tim.
Krystal’s mother, Gloria, subsequently picked up both B.J. and S.J. On October 31, 2005, Gloria
reported to Shaw that B.J. “was having problems with potty training; that her bottom was very
raw; and she was [making] specific comments about people touching her and had named specific
names such a[s] her father, Glenn and Johnny Grose.” Shaw told Gloria not to question B.J. and
informed Gloria that she would set up a forensic interview with B.J.3
The forensic interview was conducted on November 3, 2005, by Ejeera Joiner of Family
Crisis Services. Shaw sat concealed from B.J.’s view behind a one-way mirror. During the
interview, B.J. reported that Tim, Glenn, and Johnny had touched her “nu-nu” [vagina] with their
penises, and she demonstrated the acts using anatomically correct dolls. Tomiko Mackey, a
clinical social worker accepted by the court as an expert in forensic examination, testified that
she had observed a DVD of the forensic interview and had some concerns with Joiner’s
questioning technique, although she agreed that Joiner followed the appropriate protocol. She
observed, however, that B.J. was fairly consistent in her disclosure of the abuse and the persons

3

A DVD of the interview was introduced into evidence and played for the jury at trial.
(SCR vol. 5, p. 406).
2

responsible for it.4
Martha Hester Grose, Krystal’s maternal grandmother, testified that, following Krystal’s
October arrest, she and her husband, Larry Grose, went to the Grose home. While there, she
reported, B.J. asked to go home with Martha and Larry, and Tim agreed to let her go. She
reported that she and Larry took B.J. to a motel room in Bruce, and that B.J. cried after using the
bathroom and after sitting down in a bathtub to bathe. Martha recounted that when she asked
B.J. if someone had hurt her “down there,” B.J. answered, “Yes, Mammaw, Tim and Christy and
Johnny and Glen.” The next morning, Martha and Larry drove B.J. to Gloria’s home and told
Gloria what B.J. had said. She reported that Gloria called the Department of Human Services.
Dr. Thomas Fowlkes, a physician specializing in emergency and correctional medicine,
treated Krystal while she was incarcerated at the Lafayette County Detention Center. Dr.
Fowlkes testified that information obtained from Krystal indicated that she was abusing cocaine,
marijuana, and prescription painkillers at the time of her arrest. He reported that he placed
Krystal on an antidepressant and an antipsychotic medication. He concluded that Krystal was
mildly mentally retarded when he began treating her, and that she had “some organic brain
syndrome” or sustained some additional brain damage that rendered her less functional than she
was when he began treating her. Dr. Fowlkes stated that Krystal had abused inhalants since her
incarceration, which he opined were responsible for her mental deterioration.
Krystal testified that she routinely drank alcohol and abused drugs while married to Tim,
and she also admitted that she had a sexual relationship with both Glenn and Johnny. Krystal
4

During the interview, Joiner asked about B.J.’s grandmother, and B.J. stated that her
grandmother had touched her, as well. There was testimony at trial to indicate that B.J. did not
refer to either Martha or Gloria as “Grandmother.”
3

reported that when she was “big” and pregnant with S.J., Tim suggested that he have sex with
three year-old B.J. Krystal testified that she, Tim, and B.J. all got into the shower together at
their home, and that she held B.J. up while Tim had sexual intercourse with B.J., who screamed
and cried for help during the assault. She reported that in later sexual assaults, she and Tim gave
B.J. a Lortab, a prescription painkiller, to help keep her calm. After S.J. was born, the family
moved to the Grose trailer. There, Krystal maintained, Tim continued to abuse B.J. She testified
that Glenn learned of the abuse and asked to have sex with B.J., to which she consented.
Krystal testified that Johnny learned that the other two men were having sex with B.J. and
asked to have sex with her, as well. Krystal reported that she consented and gave B.J. a Lortab.
Johnny suffers from rheumatoid arthritis and is confined to a wheelchair. Krystal testified that
when the drug took effect, she took off B.J.’s clothes and Johnny’s clothes. She reported that
Johnny got into his hospital bed without assistance. She stated that she put B.J. on top of
Johnny, who was lying on his back. She reported that when Johnny began having sex with B.J.,
she went outside to smoke. Krystal testified that Johnny later called for her, and that she went
inside and “cleaned up” B.J. She also stated that she performed fellatio on Johnny to show B.J.
how to do it, and that afterwards, B.J. performed the act on Johnny.
On cross-examination, the defense presented letters Krystal wrote to the defendants while
they were incarcerated. In these letters, some of which she denied writing, Krystal maintained
the innocence of the defendants and herself. She was also questioned about her plea agreement,
and, as the State court noted, she “had difficulty answering the questions.” She acknowledged,
however, that she received a plea deal. She also stated that she did not think the deal would be
revoked if she refused to testify against the defendants.
4

Pammie Davidson, a licensed social worker employed as the victim’s assistance
coordinator for the district attorney’s office, testified that she met with Krystal between ten and
fifteen times between October 2007 and September 2008 and helped prepare her for trial. Over
the objection of defense counsel, she testified about the prior statements Krystal made to her
regarding the defendants’ abuse of B.J.
Pediatric medicine expert, Dr. Tanya King, testified that she first examined B.J. on
November 3, 2005. She found inflammation in B.J.’s genital area, as well as bruising on both
sides of her vagina. While B.J.’s hymen was not torn, Dr. King noted that a child’s vagina is
small and the hymen recessed, making total penetration difficult for the perpetrator. She also
testified that B.J.’s anus was abnormally dilated, and that the injury was caused by the repeated
penetration of an object, which had occurred over a period of months. Despite having performed
between 200 and 300 examinations on victims of child sexual abuse, Dr. King stated she had
never seen another child with an anus so damaged.
Krystal’s mother, Gloria, testified that when Martha brought B.J. to Gloria’s home and
told her that B.J. had complained of pain during urination, Gloria examined B.J.’s vaginal area
and found it “red and raw.” She reported that B.J. told her on several occasions that “Kristi and
Tim and Glen and Johnny had hurt her.”5 Gloria reported the abuse to the Department of Human
Services. Gloria testified that after the allegations of sexual abuse were made, B.J. began to
masturbate in public, attempt to grab peoples’ private areas, request that someone touch her or
request to touch someone, abuse the family dog, physically assault S.J. and attempt to fondle her,
simulate oral sex with food, and eat and smear her own feces.
5

B.J. also named Larry Grose as a perpetrator sometime later.
5

Clinical social worker, Robin Smith, testified as B.J.’s treating therapist. She began
treating B.J. shortly after the child turned four years-old, while she was still in Gloria’s custody.
She testified that B.J.’s behavior, as reported by Gloria, showed a desperate attempt for attention.
She reported that B.J. indicated that the defendants touched her in her vaginal and anal areas.
Smith also testified that B.J. was very provocative in her behavior, even with Smith. She
reported that B.J. would stare at people inappropriately and attempt to touch other children
inappropriately, and that she would eat and/or smear her feces. Smith testified that she had never
seen a child eat and/or smear her feces that was not sexually abused. She maintained that B.J.
would revert to these behaviors when questioned about the abuse. Smith diagnosed B.J. with
post-traumatic stress syndrome, both the inattentive and hyperactive types of Attention Deficit
Hyperactive Disorder, and reactive attachment disorder. She also determined that B.J. suffered
trichotillomania, a disorder manifested by the obsessive pulling out of her own hair. Smith
testified that B.J. consistently testified that her parents, Glenn, Johnny, and Larry touched her
vagina.
Both Tim Jordan and Glenn Grose denied having had any sort of sexual contact with B.J.,
as did Johnny Grose. In his case-in-chief, Johnny presented several witnesses who testified as to
his physical condition and his interactions with B.J. Sherry Powell, Johnny’s nurse, testified that
Johnny’s condition made it difficult for him to use his hands. Margie Tidwell, Johnny’s sister,
also relayed information about Johnny’s physical condition, and she disclosed that she made the
initial report to DHS because of Krystal’s neglect of her children and sexual relationship with the
Grose brothers. Mary Sue Williams, an ex-girlfriend of Johnny’s, testified that during their
sexual intimacies, she had to “do all of the work.” Johnny testified that he routinely gave Krystal
6

money in order to buy milk and diapers for the children. He denied having any sexual contact
with B.J.
Following a jury trial in the Circuit Court of Lafayette County, Mississippi, Petitioner
was convicted of two counts of sexual battery, one count of touching a child for lustful purposes,
and one count of felony child neglect. On October 14, 2008, he was sentenced to serve life
imprisonment for each of the sexual battery convictions, ten years for touching a child for lustful
purposes, and ten years for felony child neglect, all in the custody of the Mississippi Department
of Corrections.6
Petitioner appealed his convictions and sentences. On September 14, 2010, the
Mississippi Court of Appeals affirmed the judgment of the trial court. See Jordan, Grose, and
Grose v. Sate, 80 So. 3d 817 (Miss.Ct.App. 2010), reh’g denied, June 7, 2011, cert. granted,
Sept. 8, 2011, cert. dismissed, Feb. 16, 2012 (Cause No. 2008-KA-01761-COA). Petitioner did
not seek post-conviction collateral review in State court. He filed the instant petition on or about
February 19, 2013, raising the following six issues, as paraphrased by the Court7:
Ground I: The trial court erred in admitting minor victim’s statements in violation
of the Confrontation Clause.

6

At trial and on direct appeal, Petitioner had two co-defendants: Glenn Grose and
Timothy Jordan. The Court notes that both co-defendants have federal habeas petitions currently
pending before the Court. See, e.g., Glenn Grose v, Streeter, et al., Cause No. 3:12cv46-MPMDAS; Timothy Jordan v. State of Mississippi, et al., Case No. 3:12cv105-GHD-JMV.
7

Petitioner filed his petition raising a seventh issue - the performance of trial and
appellate counsel - which has not been exhausted. After the Court found Petitioner failed to
show good cause for failing to exhaust this claim prior to filing for federal habeas relief,
Petitioner was ordered to amend his petition to present only exhausted claims. (See doc. entry
no. 9). Petitioner filed a motion to amend and was allowed to withdraw his unexhausted claim,
and Respondents were ordered to answer the remaining exhausted grounds.
7

Ground II: The trial court erred in allowing the prosecution to lead a witness’
testimony.
Ground III: The trial court erred in allowing the prosecution to call certain
witnesses to testify for the State.
Ground IV: The trial court erred in allowing the state to amend the indictment to
expand the time in which the alleged offenses occurred.
Ground V: The evidence of sexual battery was insufficient and against the weight
of the evidence.
Ground VI: Incorporation by reference of any relevant arguments made
in the briefs submitted by Glen Grose and/or Timothy Jordan.
Legal Standard
The Court’s review of Petitioner’s claim is governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), because his federal habeas petition was filed after the
statute’s effective date. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA prevents the
grant of federal habeas relief on any claim adjudicated on the merits in state court unless that
adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established United States Supreme Court precedent; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of the presented
evidence. See 28 U.S.C. § 2254(d)(1) & (2); Schriro v. Landrigan, 550 U.S. 465, 473 (2007).
Where a state court has refused to hear a prisoner’s claim due to his failure to fulfill a
state procedural requirement, federal habeas is precluded if the state’s procedural rule is
“independent and adequate to support the judgment.” Sayre v. Anderson, 238 F.3d 631, 634 (5th
Cir. 2001) (citing Coleman v. Thompson, 501 U.S. 722 (1991)). Petitioner bears the burden of
demonstrating that the rule is not “strictly or regularly” followed in order to evade application of

8

the bar. Id. He may otherwise obtain review of a claim barred by a state procedural rule if he
can demonstrate cause and actual prejudice for the default, or that a “fundamental miscarriage of
justice” would result from refusal to consider his claims. Coleman v. Thompson, 501 U.S. at
750. In order to avail himself of the “fundamental miscarriage of justice” exception, he must
show actual innocence - that, “as a factual matter, [] he did not commit the crime of conviction.”
Ward v. Cain, 53 F.3d 106, 108 (5th Cir. 1995) (citation omitted); Fairman v. Anderson, 188 F.3d
635, 644 (5th Cir. 1999).
Discussion
1. Confrontation Clause
Petitioner claims that the trial court’s admission of the victim’s statements violated his
rights under the Confrontation Clause to the United States Constitution. B.J.’s statements were
allowed into evidence under Mississippi’s tender-years exception to the hearsay rule. He alleges
that Mississippi’s tender-years exception was inappropriately applied in his case by the trial
court, because B.J., who was not unavailable to testify, made unreliable and testimonial
statements during the interview.
The Court first addresses Petitioner’s claim that the trial court erred in finding that B.J.
was an “unavailable” witness and that her statements were admissible under the tender-years
exception. The tender-years exception provides:
A statement made by a child of tender years describing any act of sexual contact
performed with or on the child by another is admissible in evidence if: (a) the
court finds, in a hearing conducted outside the presence of the jury, that the time,
content, and circumstances of the statement provide substantial indicia of
reliability; and (b) the child either (1) testified at the proceedings; or (2) is
unavailable as a witness: provided, that when the child is unavailable as a witness,
such statement may be admitted only if there is corroborative evidence of the act.
9

Miss. R. Evid. 803(25).
A child is an “unavailable” witness under Mississippi Rule of Evidence 804(a)(6) if there
is a “substantial likelihood that the emotional or psychological health of the witness would be
substantially impaired if the child had to testify in the physical presence of the accused.” Miss.
R. Evid. 804 (a)(6).
On direct appeal, the Mississippi Court of Appeals found that the trial court did not abuse
its discretion in determining that B.J. was unavailable as a witness, as the victim’s therapist
opined that “further questioning about the events would negatively affect [the child’s] mental
health.” Grose, 80 So. 3d. at 827-28. It also noted that the trial court conducted an examination
to determine whether B.J.’s “statements possessed substantial indicia of reliability” under the
twelve factors listed in the comment to Rule 803(25). Id. at 828. Overall, the trial court
determined that B.J.’s statements possessed substantial indicia of reliability, such that there was
substantial evidence to support the trial court’s ruling. Id. The court also found that Petitioner’s
Sixth Amendment rights were not violated, as the victim’s statements to Smith were made during
the course of treatment were not testimonial in nature. Id.
First, the Court notes that the trial court’s admission of B.J.’s statements under the tenderyears exception is an evidentiary ruling, which is not generally cognizable on federal habeas
review. The evidentiary rulings of a state court present issues of state law and “present
cognizable habeas claims only if they run afoul of specific constitutional right or render the
petitioner’s trial fundamentally unfair.” Johnson v. Puckett, 176 F.3d 809, 820 (5th Cir. 1999)
(citing Cupit v. Whitley, 28 F.3d 532, 536 (5th Cir. 1994)). Erroneously admitted testimony forms
the basis for federal habeas relief only when the prejudicial testimony “played ‘a crucial, critical,
10

and highly significant’ role in the jury’s determination.” Jackson v. Johnson, 194 F.3d 641, 656
(5th Cir. 1999). Here, the trial court analyzed the evidence in light of the factors indicated by
Rule 803(25), and it found that the defendants were reliably implicated. (See SCR vol. 4, 201).
Petitioner does not show an error by the trial judge, much less one that constitutes a denial of
fundamental fairness.
Next, the Court considers Petitioner’s argument that the testimony violated his
confrontation rights. The Confrontation Clause to the United States Constitution provides a
criminal defendant the right to confront witnesses against him. U.S. Const. amend. VI. In
Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that testimonial out-ofcourt statements are inadmissible unless the witness is unavailable and the defendant has had an
opportunity to cross-examine the witness about the statements. Id. at 68. Although no precise
definition of “testimonial” was offered by the Court, it did note that the term would apply to
sworn testimony, police interrogations, or formal statements to government officials. Id. at 51
The Court further delineated the difference between nontestimonial and testimonial hearsay in
Davis v. Washington, 547 U.S. 813 (2006), holding:
Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal prosecution.
Id. at 22. In Michigan v. Bryant, 131 S. Ct. 1143 (2011), the Supreme Court held that “[w]hen a
court must determine whether the Confrontation Clause bars the admission of a statement at trial,
it should determine the ‘primary purpose of the interrogation’ by objectively evaluating the
statements and actions of the parties to the encounter, in light of the circumstances in which the
11

interrogation occurs.” Id. at 1162. The “objective evaluation” mandated by Bryant has several
factors, including the parties’ perception that an emergency is ongoing; the formality of the
encounter between the victim and interrogator; the purpose that reasonable participants would
have had given the circumstance; and actions as to the primary purpose of the interrogation. See
id. at 1160. If the primary goal is to establish events relevant for possible future criminal
prosecution, then the statements are testimonial. Id. at 1157.
On direct appeal, the Mississippi Court of Appeals found that the statements made by B.J.
during the forensic interview, which was instigated by the Department of Human Services, did
not arise due to a police investigation and were non-testimonial in nature. Grose, 80 So. 3d at
828. It also determined that B.J.’s statements to Smith were made during the course of therapy
and were likewise non-testimonial. Id. It further found that even if the forensic interview were
testimonial in nature, however, its admission would be harmless, as Krystal, “a participant and a
direct eyewitness to the sexual abuse,” identified the defendants as perpetrators. Id.
Clearly, B.J.’s statements were hearsay, and it is not disputed that the defendants did not
have an opportunity to cross-examine her at any time prior to trial. In this case, the forensic
interview statements were not taken to meet an “ongoing emergency” — B.J. was in the care of
her grandparents, not her alleged abusers, when the statements were made. See Davis v.
Washington, 547 U.S. 813, 822 (2006) (noting that “[s]tatements are nontestimonial when made
in the course of police interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency”). The
forensic interview took place after Gloria contacted the Department of Human Services, which
contacted Family Crisis Services. The forensic interviewer was a trained professional, and she

12

followed a formal interviewing technique in order to assess whether B.J. had been abused. The
majority of her questions focused on whether B.J. could identify her abusers and what acts they
committed. This interview was memorialized on a DVD and turned over to law enforcement. At
trial, Mrs. Shaw testified that the point of a forensic interview is to obviate later questioning of
the child by the police or the district attorney. (SCR vol. 5, 429). Therefore, it appears to the
Court that the primary purpose of the forensic interview was to identify B.J.’s abusers and
identify the acts for which they could be held responsible in a future criminal prosecution.
Evaluating the circumstances surrounding the forensic interview, the Court concludes that the
recording of the interview was “procured with a primary purpose of creating an out-of-court
substitute for trial testimony.” Bryant, 131 S. Ct. at 1155. The Court finds that the conclusion to
the contrary, that B.J.’s statements during the forensic interview were not testimonial merely
because they were conducted by a nonprofit entity, is an unreasonable application of clearly
established federal law.
However, Confrontation Clause violations are subject to a harmless error analysis. Fratta
v. Quarterman, 536 F.3d 485, 508 (5th Cir. 2008) (citation omitted). Under a harmless error
analysis, a habeas petitioner is not entitled to federal habeas relief unless he can establish that
“the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’”
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted). In this instance, Petitioner
was identified as a perpetrator through Krystal’s testimony, Martha’s testimony, Gloria’s
testimony, and Smith’s testimony. B.J.’s statements to her family members and her therapist
were nontestimonial. See, g.g, Hobgood v. Epps, No. 3:08CV24, 2011 WL 1297063 at *4 (S.D.
Miss. March 31, 2011) (collecting cases). Therefore, B.J.’s statements in the forensic interview

13

were cumulative and did not have a substantial or injurious effect on the jury’s verdict. Habeas
relief is not warranted on this claim.
2. Improper Leading
In his second ground for habeas relief, Petitioner argues that the trial court erred in
allowing the prosecution “to improperly lead Krystal Jordan through an excessive part of her
testimony.” On direct appeal, the Mississippi Court of Appeals found that a review of the record
showed that the State asked Krystal leading questions in an attempt to get her to describe details
of events, and the trial court was in the best position to determine whether leading questions were
necessary to develop Krystal’s testimony. Grose, 80 So. 3d at 828-29. It held that “[b]ecause of
Krystal’s diminished mental capacity, the trial court allowed the State to ask her leading
questions. Based upon our review of the record, we cannot find that the trial court abused its
discretion.” Id.
The admissibility of evidence is a matter of state law, and federal habeas courts do not
intervene in such matters unless “the state court error is sufficiently egregious to render the entire
trial fundamentally unfair.” Edwards v. Butler, 882 F.2d 160, 164 (5th Cir. 1989); see also
Estelle v. McGuire, 502 U.S. 62, 67 (1991) (holding that federal habeas corpus relief will not be
granted for mere errors of state law). Rather, federal habeas corpus relief lies for erroneous state
evidentiary rulings only where “the challenged evidence is a crucial, critical, or highly significant
factor in the context of the entire trial.” Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987).
Petitioner fails to identify any particular statements by Krystal that he contends were
improperly suggested by the prosecution. A Mississippi evidentiary rule provides that “[l]eading
questions should not be used on the direct examination of a witness except as may be necessary

14

to develop his testimony.” Miss. R. Evid. 611(c). The Court notes that the trial court allowed
the prosecution to ask Krystal leading questions during its direct examination in light of proof of
Krystal’s diminished mental capacity. (See SCR vol. 6, 563). The Court finds that the trial
court’s ruling does not violate Petitioner’s constitutional rights, nor has Petitioner demonstrated
that the ruling rendered his trial fundamentally unfair. The decision rejecting this claim is not
contrary to, nor does it involve an unreasonable application of, clearly established federal law.
Habeas relief is not warranted on this claim.
3. Improper Witnesses
Petitioner alleges that the trial court erred in allowing the State to call Carnelia Fondren
and Pammie Davidson as witnesses. At trial, Krystal was cross-examined by the defense in an
attempt to show that she received significant leniency in exchange for her guilty plea.8 The
prosecution argued that it was entitled to present evidence concerning the circumstances of the
plea agreement in order to rebut the allegation that Krystal changed her story in order to get a
plea deal. (See SCR vol. 7, 659-61). In order to rebut the allegation, the State called Krystal’s
counsel, Carnelia Fondren, to testify about the circumstances of the plea agreement. (Id.).
On direct appeal, Petitioner argued that Fondren’s testimony should have been excluded
due to the State’s failure to properly identify her as a witness prior to trial, that her testimony was
improper as a prior consistent statement, and that Fondren gave improper opinion testimony.
Grose, 80 So. 3d at 829. The court found that the discovery-violation issue was waived. Id. at
830. It further found that the State was allowed to present rebuttal evidence to the defense’s

8

Krystal pleaded guilty and was sentenced to serve twenty years imprisonment, with ten
years to serve and ten years suspended. (See SCR vol. 7, 668).
15

assertion that Krystal had motivation to fabricate a story against the defendants. Id. The court
noted that Fondren testified that Krystal initially denied any involvement in abusing B.J., but that
she later admitted her guilt after Fondren and Krystal established a relationship. Id. It noted that
the State later offered a recommended sentence in exchange for Krystal’s cooperation against the
defendants, and that Fondren believed Krystal was justified in entering a guilty plea to the
charges based on her admission of involvement. Id. The court found Fondren’s testimony
“proper rebuttal to the defense’s charge of recent fabrication, and it was not a bolstering of
witness credibility.” Id.
Pammie Davidson, the victim’s assistance coordinator for the district attorney’s office,
helped prepare Krystal for trial. The State questioned Davidson about prior statements Krystal
made regarding the defendants, and the defense objected on the ground of hearsay. The trial
court allowed Davidson’s testimony, however, as a prior consistent statement under Mississippi
Rule of Evidence 801(d)(1)(B). On direct appeal, the Mississippi Court of Appeals noted that
Johnny did not object to Davidson’s testimony at trial, but it addressed the merits of the claim
since Tim had objected. Grose, 80 So. 3d at 829. The court noted that it had previously held that
“a prior consistent statement introduced to rebut a charge of recent fabrication or improper
influence or motive was admissible if the statement had been made before the alleged fabrication,
influence, or motive came into being, but it was inadmissible if made afterwards.” Id., citing
Owens v. State, 666 So.2d 814, 816 (Miss. 1995). Based on its review of the record, the court
found that “Davidson was allowed to testify about the disclosures Krystal made to her while she
was preparing Krystal for trial.” Id. Noting that Krystal’s statements to Davidson occurred after
Krystal entered her guilty plea, the court found that Davidson’s testimony did not qualify as prior

16

consistent statement based on the law. Id. The admission of her testimony was found to be
harmless error however, as “outside of Davidson’s testimony, there was other substantial proof”
of B.J.’s allegations against the defendants. Id.
As the Court has previously discussed, the admissibility of evidence is a matter of state
law, which will not form the basis for federal habeas relief unless the erroneous admission of
prejudicial evidence rendered the entire trial fundamentally unfair. See Edwards v. Butler, 882
F.2d 160, 164 (5th Cir. 1989). In order to obtain habeas relief, Petitioner must show that the
erroneous ruling was a “crucial, critical, or highly significant factor” in the context of the entire
trial. See, e.g., Thomas v. Lynaugh, 812 F.2d 225, 230 (5th Cir. 1987). Here, the State court
found no error with regard to the admission of Fondren’s testimony, and it found that the
admission of Davidson’s testimony was harmless error. In light of the record as a whole, the
Court finds that the testimony offered by Davidson and Fondren did not render Petitioner’s trial
fundamentally unfair. The Court otherwise finds that the decision rejecting Petitioner’s claim is
not contrary to, nor does it involve an unreasonable application of, clearly established federal
law. The Court further finds that the decision is not based on an unreasonable determination of
facts in light of the evidence presented at trial. Habeas relief is not warranted on this claim.
4. Improper Amendment of the Indictment
Petitioner argues that his amended indictment improperly expanded the time in which the
offenses occurred. The indictment originally charged that Petitioner committed sexual battery
and touching of a child for lustful purposes in particular months, but the trial court later allowed
the state to amend the indictment to charge that the offenses occurred “from May to October
2005.” (See SCR vol. 1, 41-43; SCR vol. 9, 922-26).

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At trial, the defendants objected to the proposed amendment. The prosecutor argued that
the proof was in conformance with the requested amendments, and that the proof was admitted
without objection from the defendants. (SCR vol. 9, 925-26). The trial court ultimately allowed
the amendment, stating:
There’s been no demonstrated compromise in the defendant’s ability to defend the
case based upon the fact that the indictment originally alleged a general time
frame for these offenses; and further, the Court believes that it’s not a matter of
substance and that it is a matter of form and it does conform with the proof in this
case[.]
(Id. at 926).
On direct appeal, the Mississippi Supreme Court found that the amendment was one of
form, as “[t]ime is not an essential element of the crimes of sexual battery, gratification of lust,
and child abuse.” Grose, 80 So. 3d at 827. Finding that the defendants were not prejudiced by
the amendment to the indictment, the court found the issue without merit. Id.
The sufficiency of a state indictment does not form a basis for federal habeas relief unless
it can be shown that the indictment was so defective that the convicting court had no jurisdiction.
Riley v. Cockrell, 339 F.3d 308, 313-14 (5th Cir. 2003). Because the State court has found the
Petitioner’s indictment sufficient under State law, this Court “need not address” the issue.
McKay v. Collins, 12 F.3d 66, 68 (5th Cir. 1994) (citations omitted). Nonetheless, the Court
notes that Mississippi law provides that “[a]n indictment for any offense shall not be insufficient
for omitting to state the time at which the offense was committed in any case where time is not of
the essence of the offense, nor for stating the time imperfectly[.]” Miss. Code Ann. § 99-7-5.
The Mississippi Supreme Court has held that “[t]he relevant question is whether amending the
indictment to correct the date of the offense amounts to a defect of form or substance.

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Resolution of that question depends on the facts of the case and the context of a defendant’s
theory of the case.” Leonard v. State, 972 So. 2d 24, 28 (Miss. 2008). At trial, Petitioner argued
that he never touched B.J. inappropriately at all, so the amendment did not have any material
effect on the viability of his defense. The Court finds that the decision rejecting this claim is not
contrary to, nor does it involve an unreasonable application of, clearly established federal law. It
further finds that the decision rejecting this claim is not based on an unreasonable determination
of facts in light of the evidence presented. Federal habeas relief is not warranted.
5. Weight and Sufficiency of Evidence - Sexual Battery Conviction
Petitioner challenges the weight and sufficiency of the evidence for his sexual battery
convictions. On appeal, the Mississippi Court of Appeals examined the evidence in the light
most favorable to the prosecution and upheld Petitioner’s convictions as “not contrary to the
overwhelming weight of the evidence.” Grose, 80 So. 3d at 832.
A challenge to the sufficiency of the evidence forms a basis for federal habeas relief only
when the evidence, viewed in the light most favorable to the State, is such that no reasonable
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979) (quotations omitted). Under this standard, the
fact-finder may find the evidence sufficient to support a conviction even if “the facts also support
one or more reasonable hypotheses consistent with the defendant’s claim of innocence.” Gilley
v. Collins, 968 F.2d 465, 468 (5th Cir. 1992); see also United States v. Surtain, 519 F. App’x 266,
274, 2013 WL 1846625 at *6 (5th Cir. May 2, 2013) (“The evidence need not exclude every
reasonable hypothesis of innocence or be completely inconsistent with every conclusion except
guilty, so long as a reasonable trier of fact could find that the evidence established guilty beyond

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a reasonable doubt.”) (citation omitted)).
A person is guilty of sexual battery under Mississippi Code Ann. § 97-3-95(1) “if he or
she engages in sexual penetration with: . . . (d) [a] child under the age of fourteen (14) years of
age, if the person is twenty-four (24) or more months older than the child.” Krystal testified at
trial that she helped Petitioner sexually penetrate B.J. Petitioner’s argument is essentially an
attack on Krystal’s credibility, which was a matter for the jury’s determination. Schlup v. Delo,
513 U.S. 298, 300 (1995) (“Under Jackson, assessment of credibility of witnesses is generally
beyond scope of review). Moreover, Krystal’s testimony is corroborated by B.J.’s statements to
her grandmother and therapist. Under the statute, even slight penetration of the vagina, vulva, or
labia is sufficient to constitute sexual battery. See Pierce v. State, 2 So. 3d 641, 647
(Miss.Ct.App. 2008). The proof in the record shows that a reasonable trier of fact could have
found the essential elements of sexual battery were proved beyond a reasonable doubt. The
rejection of Petitioner’s claim was not “objectively unreasonable,” and habeas relief is not
warranted. Coleman v. Johnson, 132 S. Ct. 2060, 2062 (2012) (holding that Jackson claims “are
subject to two layers of judicial deference,” and that habeas relief may be granted only upon a
finding that the rejection of the claim was “objectively unreasonable”).
6. Arguments in Co-Defendants’ Briefs
In his sixth ground, Petitioner states that he “incorporates by reference any relevant
arguments made in the briefs submitted by Glen Grose and/or Timothy Jordan.” (ECF no. 1, 6).
This conclusory argument is insufficient to warrant federal habeas relief. See Schlang v. Heard,
691 F.2d 796, 798 (5th Cir. 1982) (collecting cases).

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Certificate of Appealability
Petitioner must obtain a certificate of appealability (“COA”) before appealing this Court’s
decision denying federal habeas relief. 28 U.S.C. § 2253(c)(1). A COA will not issue unless
Petitioner makes “a substantial showing of the denial of a constitutional right” of any claim
rejected on its merits, which Petitioner may do by demonstrating that “reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or wrong.” 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000). To obtain a COA on a claim that has
been rejected on procedural grounds, Petitioner must demonstrate “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling.” Slack, 529 U.S. at 484. Applying this standard, the Court concludes that a
COA should be granted as to Petitioner’s claim that his Sixth Amendment Confrontation Clause
rights were violated. A COA is denied as to all other claims.
Conclusion
It is hereby ordered that Petitioner’s petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE. A certificate of appealability is GRANTED as to
Petitioner’s Confrontation Clause claim (Ground One). A COA is DENIED as to all remaining
claims. All pending motions are DISMISSED AS MOOT. A judgment in accordance with this
opinion and order will issue today.
SO ORDERED, THIS the 24th day of January, 2014.

/s/ Michael P. Mills
CHIEF JUDGE
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF MISSISSIPPI
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