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EZELL MURRIEL v. STATE OF MISSISSIPPI

NOVEMBER 18, 1987

EZELL MURRIEL
v.
STATE OF MISSISSIPPI



BEFORE DAN LEE, P.J., SULLIVAN AND ANDERSON, JJ.

DAN LEE FOR THE COURT:

This is an appeal from the Circuit Court of the First Judicial District of Hinds County wherein Ezell Murriel was convicted of raping his 11-year-old daughter and sentenced to life in prison. The case was advanced on this Court's docket on motion by the child's guardian ad litem. Murriel assigns ten errors, but we reverse and address only two issues which require discussion.

September 26, 1985, then 10-year-old J. M. was preparing to go to school. Her mother left earlier to take a relative somewhere, leaving J. M. and her father alone. Her father, Ezell Murriel, was sewing up a pair of pants for her to wear to school that day. He stopped, however, grabbed J. M. and laid her down on the couch. She stated Murriel pulled her panties to one side and then laid on top of her. He then put his penis inside her vagina and began moving back and forth. Afterward, she got up and went to the bathroom. Her mother returned and took her to school, though by this time she was late.

 J. M. reported the alleged assault to her teacher and principal when she arrived at school that morning. The principal then called authorities. Shortly thereafter two welfare workers and a police detective arrived. After a short interview with J. M., they obtained a verbal court order to remove the child from school. After a medical examination, the child was taken to a shelter and eventually put in a foster home, where she remained at the time of trial.

 Detective Vince Graef of the Jackson Police Department Juvenile Division accompanied the child to University of Mississippi Medical Center where a doctor examined J. M. and prepared a rape packet. Tests revealed semen in J. M.'s vagina, and the source was a person who was a secretor with type B blood. A secretor is someone whose blood type can be recognized in other bodily fluids. Murriel is a type B secretor. J. M. has type O blood and is a non-secretor.

 J. M. testified that she had sex with another boy, her 13-year-old uncle, the night before her father had sex with her. A blood test of the uncle, however, showed he had type O blood. Debra Butler, a police forensic serologist expert,

 testified that the uncle could not have been the source of the semen.

 Murriel was arrested the following morning. At that time he gave a statement denying that he had sex with J. M. Murriel stated he did attempt to have sex with J. M. about a year before this, but his penis would not go in. He said he had been seeing a counselor off and on since then. When told there was semen found in J. M.'s vagina, Murriel said he was not the source and he did not know if she had been fooling around with anyone else. Murriel also stated that" anytime me and my wife make my daughter do something she doesn't want to, she accuses me of raping her. "

 Murriel testified in his defense and stated that he had been up all night looking for his daughter because neither he nor his wife were told authorities removed J. M. to a shelter. He stated that he had not been seeing the counselor for himself, but for his wife who had been having problems with stress; however, he did talk with psychologist William Osborn about J. M. making false accusations of sex abuse. These accusations began after one incident when he whipped J. M. for taking groceries from a neighbor. He denied ever touching her sexually, however, and denied he ever attempted any penetration.

 William Osborn testified that he spoke with J. M. about previous suggestions of sex abuse but she never claimed Murriel did anything to her.

 J. M. at one time recanted her story in an unsworn statement made during an interview conducted at the Welfare Department February 7, 1986. Her mother, defense counsel, and welfare workers were present. She testified at trial, however, that she made that statement because she wanted to go home, and her mother wanted her to say that daddy did not do it. She realized when she talked again with her counselor, Jennifer Skinner, three days after the interview that she had to tell the truth.

 I.

 Did the Trial Court Err in Failing to Grant a Mistrial Because of References to the Prosecutrix's Abortion?

 Murriel points to several instances where the prosecution or the prosecution's witnesses referred to J. M. undergoing an abortion. We note at this juncture there was no evidence the pregnancy and resulting abortion resulted from sexual contact between Murriel and J. M. To the contrary, the child's own statements named a third person with whom she previously had sex as the putative father of the aborted fetus; thus, the jury

 heard several references to a totally unrelated and irrelevant pregnancy which, therefore, had no bearing on whether the defendant raped, or indeed had sex, with J. M. on September 26, 1985. The first instance was during voir dire when the prosecutor commented," You'll also hear the testimony of another doctor who performed an abortion on that child. "

 During direct examination the prosecution elicited testimony from J. M. that she was diagnosed as being pregnant in October 1985. The prosecution then impliedly linked defendant with this pregnancy and then asked:

 Q. Do you recall them doing anything to your body so they would get rid of the ...


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