The opinion of the court was delivered by: McRAE, Justice
DATE OF JUDGMENT: 06/24/1997
TRIAL JUDGE: HON. ROBERT H. WALKER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: CONO A. CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
MOTION FOR REHEARING FILED:
¶1. Michael Ray Genry was convicted of and sentenced fifty years under the supervision of the Mississippi Department of Corrections for the January 18, 1996, kidnap, simple assault, sexual assault, and rape of Erika Ladner. Genry argues several issues on appeal. As explained below, reversal is not warranted. Hence, we affirm.
¶2. Michael Ray Genry (hereinafter "Genry") brings this appeal from the Circuit Court of Harrison County, Mississippi, Robert H. Walker, Circuit Judge, presiding. On March 20, 1996, Genry was indicted in a four count indictment. Count I charged Genry under Miss. Code Ann. § 97-3-65(2) with the rape of Erika Ladner on January 18, 1996. Count II charged Genry under Miss. Code Ann. § 97-3-53 with kidnapping her on January 18, 1996. Count III charged aggravated assault under Miss. Code Ann. § 97-3-7(2)(b), and Counts IV and V charged sexual battery under Miss. Code Ann. § 97-3-95(a) against Erika Ladner on January 18, 1996.
¶3. During a five day trial by jury conducted on May 27-31, 1997, Genry, a nineteen year old white male resident of Gulfport, was convicted of forcible rape (Count I), kidnapping (Count II), simple assault (Count III), and sexual battery (Count V). At the close of all the evidence, the trial Judge directed a verdict in favor of Genry with respect to the sexual battery charged in Count IV.
¶4. After the jury could not agree upon the punishment to be imposed in Counts I and II, Genry was subsequently sentenced to consecutive terms of imprisonment as follows: twenty (20) years for the rape charged in Count I; fifteen (15) years for the kidnapping charged in Count II; fifteen (15) years for the sexual battery charged in Count V, and six (6) months for simple assault, a lesser included offense of the aggravated assault charged in Count III. The sentences imposed for rape, kidnapping, and sexual battery totaling fifty (50) years are to run consecutively. The six (6) month sentence imposed for simple assault is to run concurrently with the sentence imposed for sexual battery.
¶5. Judge Walker's sentencing order also invoked the provisions of Miss. Code Ann. §§ 47-7-3(b) and 47-5-171(c) and ordered that Genry ". . . shall not be released on parole until after he had been examined by a competent psychiatrist selected by the State [P]robation and Parole Board and found to be of normal sound mind."
¶6. Genry filed a Motion for New Trial which was denied on June 25, 1997. This timely appeal followed raising the following issues:
I. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE PRE-TRIAL STATEMENT MADE BY GENRY ON JANUARY 22, 1996, BECAUSE GENRY'S SIXTH AMENDMENT RIGHTS TO COUNSEL WERE VIOLATED?
II. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE INTRODUCTION OF THE PRC ANALYSIS OF DNA AND FURTHER, WHETHER TECHNICIAN JULIA KEMPTON WAS A QUALIFIED EXPERT IN THE FIELD OF DNA?
III. WHETHER MISS. CODE ANN. § 47-7-3(b) IS UNCONSTITUTIONALLY VAGUE AND ALLOWS ARBITRARY AND CAPRICIOUS APPLICATION OF THE STATUTE?
IV. WHETHER GENRY IS ENTITLED TO A HEARING ON THE NEWLY DISCOVERED EVIDENCE REGARDING THE MISCONDUCT OF CATHY BROCK, SEROLOGIST WITH THE MISSISSIPPI CRIME LAB?
V. WHETHER THE CUMULATIVE ERRORS CREATED BY THE TRIAL COURT DEPRIVED GENRY OF A FAIR TRIAL?
STATEMENT OF THE FACS *fn1
¶7. On January 18, 1996, at approximately 6:30 p.m., 17 year old Erika was followed home by a man who approached her in her front yard as she got out of her car. According to Erika, the man held a knife on her, cut her on her arm, placed her in his car, drove her to a secluded spot and sexually assaulted her. After the attack, he drove her home and released her. She immediately told her father. The Sheriff's Department was notified and she was taken to Garden Park hospital where she was examined. That night she was interviewed by investigators to whom she gave a description of the man, his clothing and his car. The officers arrested Genry the following morning at his place of employment. Genry gave two statements to officers, one on January 19, 1996 and one on January 22, 1996. A Motion to Suppress the statements was filed and heard prior to trial. The motion was denied.
¶8. On January 18, 1996, Investigator Robbie Cox of the Harrison County Sheriff's Department interviewed the victim, Erika, at the hospital and received a description of her assailant as a white male approximately 21 years of age with short hair. Early the next morning another officer remembered an incident which had occurred the day before Erika was attacked. In that incident officers had obtained a description of a vehicle and its tag number. Harrison County Sheriff's deputies obtained a description of that vehicle and located it at West Building Supply.
¶9. Investigators Cox and Stroud, and Captain Resh participated in Genry's arrest for kidnapping and rape. There were no warrants outstanding at that time. Investigator Stroud recognized Genry, a one time neighbor. Stroud approached Genry and asked where he had been the prior evening. Stroud noticed blood on Genry's pant leg. Stroud placed him under arrest and testified that he had no further conversation with Genry. Stroud heard no one make an offer of cooperation. Captain Resh denied asking Genry any questions at the time of his arrest and denied hearing any offers of cooperation. After the arrest Captain Resh had no further contact with Genry.
January 19, 1996 Statement
¶10. Investigators Cox and Haden interviewed Genry on January 19, 1996, at approximately 13:53 (1:53 p.m.). According to Cox and Haden, Genry was advised of his rights, signified that he understood them, and signed the waiver of rights form. At the time Genry did not appear to Cox to be under the influence of alcohol or drugs and he did not ask for an attorney. He never refused to answer any of the questions, requested an attorney, or invoked his right to remain silent. Cox testified that no promises were made to Genry and he was not threatened or coerced in any manner. Both audio tape was introduced into evidence.
¶11. At the suppression hearing, Genry testified that at the time of his arrest he was 19 years old. The day he was arrested Officer Stroud told him that they needed to take him downtown and ask him a few questions. Officer Cox told him that he was under arrest for kidnapping and rape and "if you cooperate with us, we will see if we can help you out." From that he understood that they would help him get a lesser sentence at trial. He was taken, "in a daze", to the Sheriff's office where he gave a taped statement to the officers. Genry testified that the only hope he could cling onto was what he heard from Officer Cox. Genry has a GED, could read and write, and understood his rights. Genry gave a statement because, "I thought I was going to get help if I did, you know. He told me to cooperate. That is why I did." In his statement Genry admitted to picking up a girl on January 18. He believed her name was Samantha and he admitted to having had sex with her, but claimed that it was consensual.
January 22, 1996 Statement
¶12. On January 22, 1996, a second statement was taken from Genry. According to Officer Cox, he was contacted by a Justice court Judge who advised him that, during his initial appearance, Genry had asked to speak with Cox, "because he wanted to tell us the truth about what had occurred." By this time Genry had filled out a petition for appointment of an attorney and one had been appointed. Cox did not contact the attorney and was not aware of anyone contacting Genry's attorney.
¶13. That same afternoon, Officer Cox talked to Genry and reminded him that he had an attorney. Genry was taken to the office and interviewed. Again the interview was recorded by audio and video. Genry was advised of his rights and again he waived those rights. According to the officers present, Genry did not appear to be under the influence of any drugs or alcohol, he did not invoke his right to remain silent, or request his attorney. The statement was in Cox's opinion, freely and voluntarily given. A transcript of this interview was admitted into evidence. Genry admitted that he had forced Erika into the car and eventually raped her.
¶14. At the suppression hearing, Genry testified that on the night of January 21, 1996, he was locked down but visited with his pastor, his mom and dad, and his ex-girlfriend. His pastor told him to tell the truth, it would help. The following day, at his initial appearance Genry was confused. "Well, I feel like I was being jerked around one way, to this way and that, you know. I had no lawyer to talk to. I ain't -- I don't -- I was confused to the max, you know. That is the best way I can explain it." He was told at the initial appearance that Lisa Collums was his lawyer, but there was no way to contact her. "When you call them from the jail, they either don't accept or you can't get through, and I couldn't write her because I had nothing to write her to."
¶15. Genry testified that he was not told why he was being taken to the contact room. "They don't tell you you got an investigator who wants to talk to you, because they want to get you out there, and then when you out there, you can't get back in because the door is locked." Genry testified that he couldn't think straight when they came to get him and could not recall anything they said. Genry had been on medication in high school and had some in-patient treatment. Genry did not recall telling the Judge that he wanted to talk to Officer Cox. On cross-examination, Genry testified that, to the best of his recollection, Cox said that if he cooperated with them, they would help him. Genry admitted telling the jailer he needed to talk to Cox, he wanted to give him a statement, to tell the truth. He told Cox that he was there because his preacher and girlfriend told him to tell the truth. But in Genry's mind, the main reason for giving the statement was to get the help he felt Cox had promised him. Genry gave the statements because he thought he was going to get the help he needed, maybe mental help and some how a lesser sentence.
¶16. Officer Cox denied saying or hearing anyone else say that if Genry cooperated with them he would receive lenient treatment. Stroud heard no offer of cooperation and was not present during the taking of Genry's statement. The other officers that were present at both interviews also testified. At the first interview, Investigator Haden read Genry his rights and testified that Genry did not appear to be under the influence of alcohol or drugs. According to Haden, Genry did not request a lawyer at his arrest or at the interview. Investigator Calvanese, present at the second interview, also testified that Genry signed the waiver of rights form, did not appear to be under the influence of drugs or alcohol, and did not request an attorney. Calvanese heard no offers in exchange for Genry's statement. Nor was Genry threatened or coerced. Investigator ...