Murray v. State
| Decision Date | 10 May 2022 |
| Docket Number | 2021-KA-00264-COA |
| Parties | Willis Delano MURRAY, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL
BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Following a jury trial, Willis Murray was convicted of statutory rape and sentenced to serve thirty years in the custody of the Department of Corrections. On appeal, Murray argues that the trial judge erred by overruling a hearsay objection and by denying his requests for the victim's counseling records. Murray also argues that his trial counsel provided ineffective assistance. We find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2. B.L.S.1 was thirteen years old in 2013 when she met Murray online and began communicating with him. Murray, who was then forty-six or forty-seven years old, initially used a fake name and posed as a teenager, but he eventually revealed his true name and age to B.L.S. Murray persuaded B.L.S. to send him nude photographs and engage in sexually explicit video chats. B.L.S. considered their relationship to be a "dating" relationship.
¶3. B.L.S. testified that Murray, who lived in Texas, drove to Rankin County, Mississippi to visit her for the first time in December 2015. According to B.L.S., the purpose of Murray's visit was "to have sex." Murray entered B.L.S.’s room through her bedroom window around 2 a.m., and they engaged in oral sex and sexual intercourse. Murray left through the same window around 6 a.m. and returned to his car, which he had parked nearby. The next day, B.L.S. went to school for a half-day because she had an exam. After school, B.L.S. drove her family's golf cart to the neighborhood pool house to meet Murray, who was waiting in his car. After they had sex in Murray's car, Murray drove back to Texas. B.L.S. could not recall the exact dates of Murray's visit, but she was certain that it occurred prior to her sixteenth birthday. B.L.S. turned sixteen during the last week of December.
¶4. B.L.S. testified that Murray drove from Texas to Mississippi to visit her six or seven times in 2016, and they continued to have sex in her house or his car. On November 17, 2016, B.L.S.’s mother, E.S., discovered Murray in B.L.S.’s bedroom. E.S. tried to detain Murray while her son called the police, but Murray escaped before the police arrived.
¶5. Investigator A.J. DiMartino of the Rankin County Sheriff's Department examined B.L.S.’s cell phone and found a text message from "Murray" stating that he had been pulled over by the Pearl Police Department around 11:30 p.m. on November 16, 2016. Using that information, the Pearl Police Department confirmed Murray's identity. B.L.S. told DiMartino that she and Murray had engaged in sexual intercourse beginning in December 2015—prior to her sixteenth birthday.
¶6. A Rankin County grand jury indicted Murray for statutory rape for having sexual intercourse with B.L.S. while she was fifteen years old.2 Murray was later taken into custody in Texas and extradited to Mississippi. DiMartino interviewed Murray after he was extradited. According to DiMartino, Murray admitted that in 2013, he began communicating with B.L.S. through Kik, a messaging app. DiMartino testified that Murray also admitted that he drove to Mississippi to see B.L.S. in 2015 and that he and B.L.S. began having sex in 2016. However, Murray told DiMartino that he and B.L.S. did not have sex prior to her sixteenth birthday.
¶7. At trial, DiMartino, E.S., and B.L.S. testified. In addition, a digital forensic investigator for the Rankin County Sheriff's Department testified regarding his examination of B.L.S.’s phone, which recovered hundreds of text messages between B.L.S. and Murray. However, all the text messages were from 2016—after B.L.S.’s sixteenth birthday. B.L.S. testified that she and Murray previously communicated via Kik and video chats. B.L.S. also testified that the phone she turned over to law enforcement was not the same phone she had throughout her relationship with Murray, although it is not clear when she changed phones or what became of her prior phone(s). Murray did not testify or call any witnesses. Murray rested his case after introducing timecard reports from his employer showing the dates and times he was at work in Texas during December 2015. Those records were admitted by stipulation.
¶8. The jury found Murray guilty of statutory rape, and the court sentenced him to serve thirty years in the custody of the Department of Corrections. Murray filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a notice of appeal. On appeal, Murray argues that the trial judge erred by overruling a hearsay objection and by denying him access to B.L.S.’s counseling records. Murray also argues that his trial counsel provided ineffective assistance by not requesting an alibi instruction, by not objecting to hearsay, by not requesting a limiting instruction, and by failing to follow proper procedures for requesting B.L.S.’s counseling records.
ANALYSIS
¶9. Murray argues that the trial judge erred by overruling his hearsay objection and allowing E.S. to testify about a neighbor's out-of-court statement. E.S. testified about a day when she returned home from work early, and B.L.S. "quickly met [her] in the kitchen" and seemed "anxious." B.L.S. asked E.S. if she could take the family golf cart out, and E.S. agreed. E.S. testified that shortly after B.L.S. left, a neighbor knocked on her front door. When E.S. began to testify about what the neighbor said, Murray objected, and the trial judge sustained the objection. However, the judge reversed himself after the prosecutor stated the testimony was "not offered for the truth of the matter asserted but [to explain] what [E.S.] did next." The judge instructed the jurors that they could consider the neighbor's statement to explain why E.S. did what she did next but "not for the truth of the matter asserted." E.S. then testified that her neighbor told her that he had seen an "older" "African American man dressed in somewhat of teenage clothing" ("sagging blue jeans") "coming from the back of [E.S.’s] house."3 E.S. and the neighbor then drove around the neighborhood looking for the man and for B.L.S., but they did not see either of them. When B.L.S. returned home later, E.S. told B.L.S. what their neighbor had said and questioned her about it. B.L.S. responded that no one had been in their house and that she did not "know what [E.S. was] talking about." E.S. testified that B.L.S. was either fourteen or fifteen years old at the time of the incident.
¶10. On appeal, the State argues that the neighbor's statement was not hearsay because it was not offered to prove the truth of the matter asserted but only to explain why E.S. did what she did next—i.e., she searched the neighborhood for the man and B.L.S. In the alternative, the State argues that the neighbor's statement was admissible as a "present sense impression." MRE 803(1). "We employ an abuse-of-discretion standard when reviewing claims that the trial judge erred by admitting hearsay." White v. State , 48 So. 3d 454, 456 (¶9) (Miss. 2010) (footnote omitted). "Admission or suppression of evidence is based on the discretion of the trial court, but the trial court's discretion must be consistent with the Mississippi Rules of Evidence." Franklin v. State , 136 So. 3d 1021, 1028 (¶22) (Miss. 2014). "Reversal is required only where abuse of that discretion can be shown to cause prejudice to the defendant." Id .
¶11. "Hearsay" is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." MRE 801(c). "Hearsay is not admissible except as provided by law." MRE 802.
¶12. In support of its argument that the neighbor's statement to E.S. was not hearsay, the State cites Dunn v. State , 111 So. 3d 114 (Miss. Ct. App. 2013). In Dunn , the trial judge allowed a mother to testify that her twelve-year-old son told her that a man driving a van had offered him money in exchange for oral sex. Id. at 115 (¶3). The mother immediately went to look for the van, found it within minutes parked nearby, wrote down its license plate number, and reported the incident to police. Id. The police discovered that the van belonged to the defendant, and the son picked the defendant out of a photographic lineup. Id. at (¶4). On appeal, this Court held that the mother's testimony was properly admitted because the son's statement was excepted from the hearsay rule as either an excited utterance or a present-sense impression. Id. at 115-16 (¶6) (citing MRE 803(1)-(2) ). In the alternative, this Court held that the testimony "could also be considered not hearsay" because it "was offered to show the effect of [the son's] statements on [the mother] and her actions thereafter." Id. at 116 (¶7).
¶13. In this case, the State argues that E.S.’s testimony about her neighbor's statement was not hearsay because it was offered for a similar purpose—to explain why E.S. went looking for the man reportedly seen leaving her house and B.L.S. However, Dunn is inapposite. In Dunn , the witness's "actions thereafter" were relevant because she found the van, which led to the defendant's identification. Here, in contrast, E.S.’s "actions thereafter"—looking for a man but not finding him—were irrelevant. See MRE 401. The only logically relevant purpose for this testimony was to show that a man (Murray) had been seen leaving B.L.S.’s house.4 Thus, the neighbor's out-of-court statement was indeed offered "to prove the truth of the matter asserted in the statement," making it hearsay. MRE 801(c).
¶14. As noted above, the State also argues...
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