The trial of a man accused of sexual abuse involving a three year old girl was suspended Tuesday, pending a ruling from the Alabama Court of Criminal Appeals.
Benson Davis Picklesimer, 40, of Dothan is accused of molesting the girl, who is family member, in 2011. He went on trial this week but the proceedings were abruptly stopped after questions arose regarding testimony of the victim, who is now four years old.
Upon being put on the stand, the child was unable to adequately testify and Circuit Judge Mike Conaway ruled her "unavailable for testimony." Defense Attorney Matt Lamere made a motion that other evidence cannot, under law, be admitted if that evidence is hearsay and the victim is unable to testify. Lamere considers the evidence hearsay.
In his argument, Lamere cited a
Supreme Court ruling in a case brought against the state of Washington. The
legal action concerned "the determinative question of whether the evidence that
the government seeks to introduce is testimonial. If a court decides that
evidence is testimonial, the defendant must be given an opportunity to
cross-examine the person who created the evidence (or made the statement), or
the evidence may not be admitted."
Lamere argued successfully, for now, that Conaway's ruling regarding the victim being unable to testify fails to allow cross-examination by the defense. Assistant District Attorney Patrick Amason disagreed and was expected to file a Writ of Mandamus, putting the question before the Alabama Court of Criminal Appeals. Until that ruling issued, Picklesimer's trial is halted.
Lamere, when reached by telephone, said he is unable to comment because the proceedings are ongoing. Amason did not return a telephone message seeking comment.
The jury empaneled to hear the
evidence will return after the higher court issues its ruling. It's not immediately clear how long that will take.