Metcalf v. State, 2016-KA-01083-COA

• Decision Date: 12 February 2019
• Docket Number: NO. 2016-KA-01083-COA,2016-KA-01083-COA
• Citation: 265 So.3d 1242
• Parties: Darryl METCALF a/k/a Peanut, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

265 So.3d 1242

Darryl METCALF a/k/a Peanut, Appellant

v.STATE of Mississippi, Appellee

NO. 2016-KA-01083-COA

Court of Appeals of Mississippi.

February 12, 2019

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. Darryl Metcalf was found guilty of two counts of sexual battery, attempted sexual battery, and fondling. The Coahoma County Circuit Court sentenced him to fifteen years for fondling and twenty years for each of the other convictions. Because all of the sentences were set to run concurrently, the circuit court effectively sentenced Metcalf to twenty years in the custody of the Mississippi Department of Corrections. Metcalf appeals. His appointed counsel argues that the circuit court erred by (1) excluding one of Metcalf's witnesses and (2) giving jury instructions that constructively amended two counts in the indictment. Counsel also argues that Metcalf's trial counsel was ineffective. Metcalf has filed a supplemental pro se brief. After thorough review of the issues before us, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. This case stems from Metcalf's contact with M.W., who was four years old during the events that led to Metcalf's conviction.¹ M.W. lived with his mother, Deborah, and two siblings. Metcalf was twenty-four, and his family called him "Peanut." He lived with M.W.'s great-grandmother, Maggie, who cared for M.W. while his mother had to work.

¶3. On May 15, 2008, Deborah was preparing to go celebrate M.W.'s birthday when someone called from Maggie's apartment and asked Deborah to stop and pick up M.W.'s gifts. When M.W. learned that they would be stopping by Maggie's apartment, M.W. shut himself in his bedroom. A short time later, Deborah found M.W. crying in the corner. M.W. then told Deborah that "Peanut was messing" with him. According to Deborah, M.W. then elaborated that Peanut "sucked his penis, bit his penis, tried to put his penis in [M.W.'s] mouth ... and was messing with his butt." After relaying M.W.'s revelation to Maggie, Deborah went to the police department and filed a report.

¶4. Authorities arranged Sarah Ward's forensic interview of M.W. Ward later reported that "M.W. did not provide any information or statements to corroborate the suspicion that he may have been sexually abused." Through her report, Ward recommended that "M.W. participate in psychotherapy for further assessment of possible sexual abuse." M.W. was referred to Shirley Long, a therapist at Region One Mental Health Center in Clarksdale, Mississippi. Long conducted twelve sessions with M.W. during the course of nearly a year. According to Long, M.W. told her that "Peanut touched his ears, nose and mouth, and put [M.W.'s] ‘ding-a-ling’ in Peanut's mouth until it hurt," "Peanut tried to make [M.W.] put Peanut's penis in his mouth, but [M.W.] wouldn't open his mouth," Metcalf inserted an object into M.W.'s anus, and Peanut "took a gun from under the TV and put it to his head and told him he would kill him if he told anybody what he had done to him."

¶5. Metcalf was indicted on December 7, 2009, and charged with two counts of sexual battery, one count of attempted sexual battery, and one count of fondling. The indictment originally alleged that the offenses occurred between January and March 2008. Metcalf's trial was delayed for a significant period after the defense successfully moved for a mental competency evaluation.

¶6. In November 2015, the prosecution moved to amend the indictment to allege that the offenses occurred between January 1, 2008, and May 15, 2008. As the prosecution noted, the "date of disclosure was May 15, 2008 ... [, and] all discovery tendered to the defense contemplates this date as the day when M.W.'s mother first became aware of the sexual abuse allegedly committed by" Metcalf. On January 14, 2016, the circuit court granted the prosecution's motion over the defense's objection. During the same hearing, the circuit court conducted a competency hearing. Based on testimony from Dr. Amanda Gugliano and Dr. Reb McMichael, the circuit court held that Metcalf was competent to stand trial.

¶7. Additionally, defense counsel noted that he was unable to find Ward, who no longer worked at the Family Crisis Center where she interviewed M.W. Defense counsel announced that he would try to introduce her report into evidence if he could not find Ward, and the prosecution noted the procedural difficulty involved with defense counsel's plan. The circuit court ultimately took the parties' positions under advisement.

¶8. Five days later, the defense requested a continuance so that it could continue looking for Ward. The prosecution objected, noting the various delays already incurred, including the setback caused by Metcalf's competency hearing. The circuit court granted the continuance and appointed an investigator to help defense counsel find Ward.

¶9. On May 18, 2016, the parties finally convened for Metcalf's trial. Before the prosecution began its case-in-chief, the circuit court heard the prosecution's motion to introduce M.W.'s testimony through Deborah and Long. After hearing their proffered testimonies, the circuit court granted the prosecution's motion.

¶10. The prosecution first called Assistant Police Chief Robbie Linley, of the Clarksdale Police Department, who, in 2008, was a captain supervisor of the department's Investigative Services Division. Chief Linley testified that he took over the investigation of Metcalf's case from another investigator who resigned. He further testified that during the investigation, it was established that Metcalf went by the nickname "Peanut," and that at the time of the crime, Metcalf was twenty-four years old. Chief Linley stated that in 2008, M.W. was four years old. Chief Linley also provided an in-court identification of Metcalf.

¶11. Next, Investigator Myette Dawson testified that he had been employed with the Clarksdale Police Department in 2008 and was the original investigator of Metcalf's case. Investigator Dawson testified that he spoke with Deborah and made an initial report concerning the abuse allegations on May 16, 2008. He said that after speaking with Deborah, he referred M.W. for a forensic interview at the Family Crisis Center. Investigator Dawson confirmed M.W.'s and Metcalf's ages at the time of the incident.

¶12. The State next called Deborah to testify. She testified about M.W.'s disclosure of sexual abuse, including that M.W. told her that "Peanut" "sucked his penis, bit his penis, tried to put his penis in [M.W.'s] mouth ... and was messing with his butt." Deborah also testified that M.W. had been negatively affected by the event, and often wet his bed and bit his arm. She identified Metcalf as the defendant.

¶13. Long testified about her treatment of M.W. and the disclosures M.W. made during therapy sessions, including that "Peanut" touched M.W.'s ears, nose, and mouth; put M.W.'s penis in his mouth; inserted an object into M.W.'s anus; and held a gun to M.W.'s head and threatened to kill M.W. if he told anyone about these actions. Long further testified that M.W.'s version of events remained consistent over his twelve-session treatment.

¶14. M.W. was the last witness to testify for the State. He testified that he was twelve years old and was born in May 2004. M.W. identified Metcalf as the person who molested him and whom he knew as "Peanut." M.W. testified that Metcalf molested him when he was four years old at his grandmother's house in Willow Park. According to M.W., he was exiting the restroom when Metcalf grabbed him and took him to a back room. Metcalf put his fingers to M.W.'s lips, and tried to make him suck his penis. M.W. said that when he refused, Metcalf pulled down his pants and bit his penis. M.W. also testified that Metcalf put a gun to his head and said that if he told anyone what had happened, Metcalf would shoot him. M.W. could not say exactly what Metcalf inserted into his anus because he was turned the other way.

¶15. Following M.W.'s testimony, the prosecution rested. Metcalf moved for a directed verdict, which the circuit court denied. Then, trial was adjourned.

¶16. On the second morning of trial, May 19, 2016, the parties met in chambers to discuss a matter brought by the defense. During the meeting in chambers, the defense informed the circuit court that Ward had contacted him on the previous evening and said she would be available to testify the next day, on May 20. Defense asked the circuit court to delay trial until then. After hearing arguments from both parties, the trial court ultimately excluded Ward from testifying because Ward was not properly subpoenaed and was therefore not subject to the circuit court's authority, and because Ward's name was neither included on the witness list nor disclosed during voir dire. Further, the circuit court noted that it had appointed the defense an investigator at the State's expense on January 27, 2017, to assist the defense's location of Ward, and that after hearing from the defense, the circuit court did not "believe a diligent effort was made to locate Ms. Ward."

¶17. Next, the defense moved to admit statements Deborah made to Long during M.W.'s initial intake; namely, that M.W. did not disclose sexual abuse during his forensic interview. After hearing arguments from counsel, the circuit court ruled that the statements could be admitted pursuant to Mississippi Rule of Evidence 803(4) as statements made for the purpose of medical diagnosis or treatment.

¶18. The defense then proceeded with its case-in-chief, recalling Long to testify. When asked what information she received from Deborah regarding M.W.'s forensic interview, Long testified that Deborah told her that M.W. did not disclose any abuse to Ward because Ward referred to Metcalf by his given name, rather than "Peanut," the name M.W. knew him by.

¶19. Metcalf testified in his own defense....