OF JUDGMENT: 07/22/2016
COAHOMA COUNTY CIRCUIT COURT HON. LINDA F. COLEMAN JUDGE
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: HONORABLE BRENDA FAY MITCHELL
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.
AND PROCEDURAL HISTORY
This case stems from Metcalf's contact with M.W., who was
four years old during the events that led to Metcalf's
conviction. 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.
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."
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
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.
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
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.
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.
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.
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.
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
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.
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.
Following M.W.'s testimony, the prosecution rested.
Metcalf moved for a directed verdict, which the circuit court
denied. Then, trial was adjourned.
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."
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.
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.
Metcalf testified in his own defense. Metcalf categorically
denied committing the allegations of abuse against him.
During cross-examination, he admitted that his family and
M.W. referred to him as "Peanut."
After the defense rested, it renewed its motion for a
directed verdict, which the circuit court denied. Outside the
presence of the jury, the defense gave a proffer of