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Morrow v. State

Supreme Court of Mississippi, En Banc

June 13, 2019

RICHARD W. MORROW a/k/a RICHARD MORROW a/k/a RICHARD WARRINER MORROW
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 03/02/2016

          ALCORN COUNTY CIRCUIT COURT HON. JAMES LAMAR ROBERTS, JR., JUDGE

          TRIAL COURT ATTORNEYS: KIMI D. KITCHENS JOSHUA S. WISE ROBERT S. LAHER JOHN O. WINDSOR

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON

          DISTRICT ATTORNEY: JOHN WEDDLE

          COLEMAN, JUSTICE

         ¶1. Richard Morrow was convicted of fondling and sentenced as a habitual offender to life in prison without parole. Morrow's trial counsel did not file a direct appeal. Nevertheless, the trial court allowed Morrow to proceed with an out of time appeal. Morrow raises four assignments of error: (1) whether the trial court erred in allowing testimony and comments about DNA evidence; (2) whether the victim's nonverbal responses were ambiguous and therefore insufficient to support the verdict; (3) whether he received ineffective assistance of counsel; and (4) whether cumulative error requires reversal. Discerning no reversible error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In July 2012, Morrow lived with his sister Carlie[1] in Corinth, Mississippi. Carlie's daughter Laura and her grandson Ben had lived with Carlie before Morrow moved in. Laura and Ben moved out and lived with various friends and Laura's aunt, who lived a few houses down the street from Carlie. Laura kept some of her clothes at Carlie's home. Laura and Ben visited often.

         ¶3. On July 26, 2012, when Ben was three years old, Laura and Ben went to Carlie's house so that Laura could gather some clothes, and Morrow was there. Carlie was not present when they arrived, but Laura and Ben waited for her to return because she had agreed to babysit Ben while Laura went to work.

         ¶4. While Ben was in the living room watching television, Laura was in her old room watching television and gathering clothes. Ben was wearing only his underwear. Laura exited her old room to get something to drink. She passed through the living room, and she noticed that Ben was not there. She went into the kitchen. When Laura walked into the kitchen, she saw Ben standing on the table facing Morrow. Laura saw Morrow pulling up Ben's underwear quickly, and she heard Ben's underwear pop against his waist. Laura pretended as if nothing was wrong, and Morrow began yelling at Ben to get off the table.

         ¶5. Ben told Laura that he needed to use the bathroom, so she took him into the bathroom. In the bathroom, Laura asked Ben what he was doing on the table, and he responded that he did not want to tell her because he was scared. Laura reassured Ben that he was not in trouble, and he told her that "Uncle Ricky[2] had sucked his peepee."[3] Laura then examined Ben's penis and saw that it was wet with saliva. Ben did not urinate while they were in the bathroom, and Laura was sure that the moisture was not urine.

         ¶6. Laura gathered their personal items; she dressed Ben, and they left to go to Laura's aunt's house. Laura called Carlie crying. Laura told Carlie something bad had happened and asked her to come get them. Carlie was near the house and picked up Laura and Ben. Carlie asked Ben what had happened, but he told her that he was scared and did not want to tell her. Carlie reassured him, and Ben told her the same thing that he had told Laura. Laura and Carlie went to Laura's aunt's house and called law enforcement to report the incident. They went to the Alcorn County Sheriff's Department where Laura provided a statement. Ben was taken to the hospital, and medical personnel swabbed his penis.

         ¶7. Ben, who was seven years old at the time of the trial, testified after Laura. Ben testified that Morrow put his mouth on his "middle spot," which he explained was what he uses to go to the bathroom. Ben's account of the incident corroborated Laura's testimony.

         ¶8. Reggie Anderson, a former criminal investigator with the Alcorn County Sheriff's Department, testified that he took Laura's statement regarding an alleged fondling. Anderson sent Ben to the hospital for a sexual assault examination kit to be performed. Anderson sent the sexual assault kit to the Mississippi Crime Laboratory. Anderson obtained permission from Morrow to take a DNA swab from him. Anderson provided a DNA sample from Morrow to the crime lab, but the crime lab misplaced the sample. Anderson obtained permission again from Morrow to take another DNA sample from him. Anderson submitted the second sample to the crime lab.

         ¶9. Anderson testified about the DNA results he had received from the crime lab:

Q: What were the results?
A: It came back as a male contributor on the penile swab of [Ben].
Q: Was that a male contributor to the evidence found on the penis of [Ben]?
A: Correct.

         ¶10. On cross-examination, Anderson testified that the report he received did not identify Morrow as the male contributor. On redirect, the prosecution again questioned Anderson about the crime lab results:

Q: Did you state to the jury the results from the crime lab was a male contributor?
A: Yes, sir.
Q: Were there any other males accused in your investigation of the ...

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