Dezjon Daniels v. State of Mississippi , 242 So. 3d 878 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-00501-COA
DEZJON DANIELS A/K/A NOOKIE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/21/2016
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY: DEE BATES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/15/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. After a two-day trial, Dezjon Daniels was convicted of sexual battery in the Circuit
Court of Pike County. Daniels was sentenced to thirty-five years in the custody of the
Mississippi Department of Corrections (MDOC), with twenty-five years to serve, ten years
suspended, and five years of postrelease supervision (PRS). Daniels was also ordered to pay
$5000 in restitution to the Crime Victims’ Compensation Fund. After the verdict, the trial
court denied Daniels’s motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. On direct appeal, Daniels raises three issues. After review of the
record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On or about July 23, 2014, Pamela Ard reported an incident of sexual battery to
Detective Todd Dillon, an investigator with the Pike County Sheriff’s Department. Ard
reported her son, H.A.,1 had been sexually molested or raped by Daniels or “Nookie.”2
Daniels and H.A. are cousins, and Ard regularly took her children, H.A. and P.A., to stay
with Daniels and his mother, Linda Stalling. At the time of this incident, H.A. was either
nine or ten years old, and Daniels was at least twenty-four months older than H.A. Daniels
was nineteen years old.
¶3. H.A. was interviewed at the Children’s Advocacy Center by forensic interviewer Jade
Douglas. H.A. informed Douglas that Daniels’s “front went inside of his back.” H.A. and
Daniels were left alone one day while Stalling, P.A., and other cousins went to the store.
H.A. asked Daniels if he could play the video game that Daniels was playing. H.A. stated
Daniels told him that in order to play the game, H.A. had to give him “some booty” or have
sex. H.A. stated he went into the bathroom, pulled down his pants, put his hands on the
toilet, then Daniels “put his thing in his thing.” It was during the interview that Douglas
learned H.A. was referring to Daniels’s penis entering H.A.’s anus.
¶4. At trial, Ard testified she frequently dropped off her children at Stalling’s house,
because Stalling babysat. Ard stated H.A. had been trying to tell her something, but she kept
1
We have used initials to protect the identity of the victim.
2
Daniels is sometimes referred to as “Nookie” by his family.
2
ignoring him. Finally, H.A. told her of the abuse that occurred at Stalling’s house. Ard
testified she called Stalling and threatened to tell police if Stalling and Daniels did not meet
her at her house to discuss the incident in person. Upon arrival, Ard confronted Daniels. Ard
further testified she asked Daniels if he had sex with H.A., and Daniels replied, “If he said
I did it, then I did it.” Ard notified police shortly after the exchange with Stalling and
Daniels.
¶5. Detective Dillon, Douglas, P.A., and H.A. testified at trial for the State. Daniels
testified at trial and vehemently denied abusing H.A. Following a two-day trial, Daniels was
found guilty of sexual battery and later sentenced to thirty-five years in the custody of the
MDOC, with ten years suspended and five years of PRS. Daniels filed a motion for a JNOV
or, in the alternative, a new trial. After a hearing, the trial court denied Daniels’s motion.
Daniels now timely appeals.
DISCUSSION
I. Whether the trial court erred in admitting certain expert testimony.
¶6. This Court has previously held that “the admission of expert testimony is governed
by Rule 702 of the Mississippi Rules of Evidence and caselaw, specifically Mississippi
Transportation Commission v. McLemore, 863 So. 2d 31 (Miss. 2003).” Carter v. State, 996
So. 2d 112, 116 (¶13) (Miss. Ct. App. 2008). Rule 702 states:
If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education,
may testify thereto in the form of an opinion or otherwise, if (1) the testimony
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is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles
and methods reliably to the facts of the case.
M.R.E. 702.3
¶7. “[T]he admission of expert testimony is within the sound discretion of the trial judge.”
Carter, 996 So. 2d at 116 (¶13) (citing McLemore, 863 So. 2d at 34 (¶4)). “Therefore, the
decision of a trial judge will stand unless we conclude that the decision was arbitrary and
clearly erroneous, amounting to an abuse of discretion.” Id. (citation and quotation marks
omitted).
¶8. Also, “the trial court must engage in a two-pronged inquiry, determining whether the
expert testimony rests on a reliable foundation and is relevant to the matter.” Worthy v.
McNair, 37 So. 3d 609, 615 (¶16) (Miss. 2010). Furthermore, “regarding the reliability
prong the testimony must be grounded in the methods and procedures of science, not merely
a subjective belief or unsupported speculation.” Id. (citing McLemore, 863 So. 2d at 36
(¶11)); see also Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579, 590 (1993). Daniels
asserts Douglas’s opinion was based on speculation, not reliable scientific principles and
methods applied to the facts of the case. However, we disagree. This is an excerpt of
Douglas’s testimony on direct examination:
Q. Can you tell us what your opinion is as to whether or not – can you tell
us what your opinion is as to his consistency with regard to children
3
The trial in this case preceded the nonsubstantive restyling of the Rules of Evidence
in July 2016, so we have used the former language.
4
that have suffered sexual abuse?
A. The consistency comes with being able to provide the details, the
sensory details of how it felt, the position in which his body was at the
time of the alleged incident, knowing that it was inside or outside of
his, what he calls, back. And being able to know that your pants were
up or down and how they got down. All of those play into consistent
statements of a child who has been sexually abused.
¶9. Daniels’s trial counsel objected to Douglas being proffered as an expert witness.
Douglas has a master’s degree in social work. She trained for the ChildFirst forensic
interviewing protocol through the National Child Protection Training Center. She has
interviewed over 900 children regarding alleged sexual abuse, alleged physical abuse, and
witnesses to violent crime. Douglas relied on her training in gathering as much information
as possible from H.A. Therefore, we find no abuse of discretion in the trial court’s decision
accepting Douglas as an expert witness in forensic interviewing.
¶10. Further, Daniels argues Douglas’s testimony impermissibly passed judgment on
whether he was the specific perpetrator of the alleged abuse. The following is an excerpt
from Douglas’s testimony at trial during direct examination:
Q. Did you form an opinion about [H.A.’s] statements to you with regard
to its consistency in your interview?
A. Yes.
Q. Can you tell us what your opinion is as to whether or not – can you tell
us what your opinion is as to his consistency with regard to children
that have suffered sexual abuse?
A. The consistency comes with being able to provide the details, the
sensory details of how if felt, the position in which his body was at the
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time of the alleged incident, knowing that it was inside or outside of
his, what he calls, his back. And being able to know that your pants
were up or down and how they got down. All of those play into
consistent statements of a child who has been sexually abused.
Q. And did you form an opinion in this case?
A. Yes.
Q. And what was that opinion?
A. It was consistent with the allegations of sexual abuse by Dezjon
Daniels.
¶11. The Mississippi Supreme Court has held that “the expert should not be permitted to
pass judgment on whether the defendant was the specific perpetrator.” Smith v. State, 925
So. 2d 825, 838 (¶31) (Miss. 2006). However, we find that Douglas’s testimony did not
conclude that Daniels was the perpetrator. Douglas’s testimony pertains to H.A.’s credibility
rather than H.A.’s veracity. The Supreme Court has previously held that “any opinions as
to a witness’s veracity should generally be excluded, unless otherwise admissible.” Id. at 839
(¶33). However, “[e]vidence that [an] interview[] w[as] credible, i.e.[,] capable of being
believed, [i]s properly admitted.” Id. at 838 (¶32).
¶12. Furthermore, Douglas found that H.A.’s characteristics were consistent with children
who had been abused. “While an expert may not opine that an alleged child-sexual-abuse
victim has been truthful, the scope of permissible expert testimony under Rule 702 includes
an expert’s opinion that the alleged victim’s characteristics are consistent with those of
children who have been sexually abused.” Lattimer v. State, 952 So. 2d 206, 221 (¶38)
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(Miss. Ct. App. 2006) (citation omitted).
¶13. Additionally, the jury examined the videotaped interview between Douglas and H.A.
The jury also heard the testimony of Daniels and were able to draw their own conclusions
regarding other witness testimony. “As always, the jury has the prerogative to accept or
reject, in whole or part, the testimony of any witness, expert or lay.” Smith, 925 So. 2d at 839
(¶33). Accordingly, we find no abuse of discretion in the trial court’s decision to overrule
the objection allowing Douglas’s expert testimony.
II. Whether admission of H.A.’s forensic medical records violated
Daniels’s Sixth Amendment right to confrontation, and whether
trial counsel’s stipulation of the records constituted ineffective
assistance of counsel.
A. H.A.’s Forensic Medical Records
¶14. Daniels asserts H.A.’s forensic medical records are testimonial in nature and violate
his Sixth Amendment right to confrontation. “A document is testimonial when it is created
for the sole purpose of the State’s use as evidence against the defendant.” Vanwey v. State,
147 So. 3d 367, 370 (¶10) (Miss. Ct. App. 2014) (citation omitted). Daniels asserts H.A.’s
medical records are testimonial, because the police referred H.A. for forensic evaluations and
numerous officers were present for the interview. As a result, Daniels asserts the forensic
records are inadmissible hearsay. “However, a general hearsay objection is insufficient to
preserve an alleged Confrontation Clause violation for appellate review.” Anthony v. State,
23 So. 3d 611, 620 (¶41) (Miss. Ct. App. 2009) (quoting Briggs v. State, 16 So. 3d 696, 698-
99 (¶11) (Miss. Ct. App. 2008)). In Anthony, “[the defendant] made no Sixth-Amendment
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objection to the admission of the abuse record at trial or in [the] posttrial motion, [and] her
arguments on this issue [were] procedurally barred.” Id.
¶15. Daniels’s trial counsel did not object to the introduction of the records into evidence.
In fact, Daniels’s trial counsel stipulated to the forensic records being submitted into
evidence. Notwithstanding the procedural bar, this Court finds no abuse of discretion by the
trial judge allowing H.A.’s forensic report and medical records into evidence. The record
reflects that Daniels’s trial counsel relied on the results of the forensic records to develop a
defense.
B. Assistance of Counsel
¶16. “To prove ineffective assistance of counsel, [one] must show that: (1) his counsel’s
performance was deficient, and (2) this deficiency prejudiced his defense.” Jackson v. State,
73 So. 3d 1176, 1181 (¶19) (Miss. Ct. App. 2011) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). Furthermore, the merits of a claim of ineffective assistance of counsel
brought on direct appeal should be addressed only when “(1) the record affirmatively show[s]
ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is
adequate to allow the appellate court to make the finding without consideration of the
findings of fact of the trial judge.” Id. at 1181 (¶20); see also Colenburg v. State, 735 So.
2d 1099, 1101 (¶5) (Miss. Ct. App. 1999).
¶17. The State does not stipulate the record affirmatively shows ineffectiveness. However,
Daniels contends his counsel provided deficient representation because of counsel’s decision
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to stipulate to the admission of the forensic report. However, we disagree with Daniels’s
assertion. The stipulation of the medical records into evidence is a part of trial counsel’s
defense strategy. Daniels submits there is no reasonable trial strategy in stipulating the
records that violated his Sixth Amendment right to confrontation. However, the forensic
records did not document any signs of physical trauma. Furthermore, a strong presumption
exists “that the attorney’s conduct fell within the wide range of reasonable professional
assistance.” Hancock v. State, 964 So. 2d 1167, 1175 (¶18) (Miss. Ct. App. 2007).
“[C]ounsel’s choice[s] of whether or not to file certain motions, call witnesses, ask certain
questions, or make certain objections fall within the ambit of trial strategy and will not stand
as support for an ineffective assistance of counsel claim.” Id. (citation and quotation marks
omitted).
¶18. Accordingly, we find no merit in Daniels’s claim that he received ineffective
assistance of counsel. Moreover, this Court has held that “when a party raises an ineffective
assistance of counsel claim on direct appeal, the proper resolution is to deny relief without
prejudice to the defendant’s right to assert the same claim in a postconviction relief
proceeding.” Lattimer, 952 So. 2d at 222 (¶42) (citation omitted).
III. Whether the evidence was sufficient to establish venue.
¶19. Daniels contends the State failed to present sufficient evidence to establish beyond a
reasonable doubt that the incident occurred in Pike County. “Proof of venue is indispensable
to a criminal trial[,] and it may be proved by direct or circumstantial evidence.” Smith v.
9
State, 646 So. 2d 538, 541 (Miss. 1994) (citations omitted). In Smith, “none of the witnesses
testified during the State’s case-in-chief that the crimes took place in [the venue in which the
incident was alleged to have occurred].” Id.
¶20. Ard testified the incident took place at Stalling’s house, located “maybe five or six
miles away from her home.” She testified Stalling’s house is located in Pike County.
Daniels asserts no witness testified as to the address of Daniels’s house. Further, Daniels
argues Ard guessed the location of the house while giving her testimony. The following is
an excerpt of Ard’s testimony during direct examination:
Q. Okay. What state4 is it in?
A. It’s in Magnolia. It’s in Osyka, where she lives.
Q. Okay. What State?
A. Mississippi.
Q. Okay. And what County?
A. Walthall – I mean, Pike County.
¶21. “Direct or circumstantial evidence may be used to prove venue.” Lee v. State, 910
So. 2d 1123, 1126 (¶10) (Miss. Ct. App. 2005) (citation omitted). Although Ard mistakenly
named the wrong city in which Stalling lives, she quickly corrected herself. Moreover, both
cities Ard named are located in Pike County.
¶22. Although the State could have presented additional evidence to establish venue, Ard’s
4
In the record, the word “state” is written. However, the word should be “city.”
10
testimony sufficiently established venue.5 Accordingly, we affirm the judgment of the circuit
court.
¶23. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND GREENLEE, JJ., CONCUR. WILSON J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
5
In Turner v. State, 220 So. 2d 295, 297 (Miss. 1969), the Court held, “although
additional proof could have been offered by the State to prove venue even more conclusively,
. . . under all the facts . . . the proof was sufficient to meet the burden placed on the State.”
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