JOSHUA DAY A/K/A JOSHUA HEATH DAY A/K/A JOSHUA H. DAY APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/22/2018
NESHOBA COUNTY CIRCUIT COURT HON. MARK SHELDON DUNCAN TRIAL
ATTORNEYS FOR APPELLANT: MITCHELL DEE THOMAS JASON AVERY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LISA L. BLOUNT
DISTRICT ATTORNEY: STEVEN SIMEON KILGORE
On August 22, 2017, a Neshoba County grand jury indicted
Joshua Day for statutory rape in violation of Mississippi
Code Annotated section 97-3-65 (Rev. 2014). After a one-day
trial, the jury found Day guilty. Day was sentenced to serve
twenty-five years in the custody of the Mississippi
Department of Corrections (MDOC). In his direct appeal, Day
attacks his conviction and sentence, claiming several errors
made by the Circuit Court Judge Mark Duncan. Finding no
error, we affirm.
From January 2017 until April 2017, the victim's mother,
Betty,  lived with Day and his father in Neshoba
County, Mississippi. Betty had two biological daughters,
namely the victim, Jane, and Jill. Both Jane and Jill lived
with their biological father and stepmother in Newton County,
Mississippi. Between January and April, Jane and Jill had
visitation with Betty every other weekend. The home Betty and
Day shared had two bedrooms. During visitation, Jill slept in
the second bedroom and Jane slept with her mother and Day in
their room. In January 2017, Jane testified that Day began to
sexually abuse her while she was sleeping between her mother
According to Jane, the abuse first began in January 2017. At
that time, Jane was fourteen years old, and Day was
thirty-seven years old. Jane testified that she was lying in
bed between her mother and Day when Day reached over and
began to touch her "chest" over her clothing. Jane
testified that Day touched her in that way on seven different
occasions before they had sex. Day would have sex with Jane
while she was lying on her side in the bed. This happened
between ten and twelve times.
Jane discovered she was pregnant after going to her
pediatrician for a suspected stomach virus. Jane testified
that she was sure Day was the father because she had not had
sex with anyone else. At that time, Ralph Sciple was the
chief investigator for the Neshoba County Sheriff's
Office. Sciple testified that Jane came to the sheriff's
office with her biological father and step-mother to speak
with him about the alleged abuse. Based on this meeting and
Jane's statement, Day was charged with statutory rape. As
part of his investigation, Sciple collected buccal swabs from
Day on April 23, 2017.
Jane was referred to Dr. Virginia Nelson at the Nelson Center
for Women, who would handle the care and treatment of
Jane's pregnancy. On May 15, 2017, Jane suffered a
"fetal demise." In order to conduct chromosome
testing, Dr. Nelson performed a Dilation and Curettage
Procedure (D&C) on May 19, 2017. Sciple testified that he
went to Rush Hospital in Meridian, Mississippi to collect a
buccal swab sample from Jane and take custody of the products
of conception. Sciple then took the buccal swab he
previously collected from Day, the buccal swab from Jane, and
the products of conception to Scales Laboratory in Brandon,
Mississippi for DNA testing.
George Schiro, a lab director for Scales Laboratory,
testified that he compared the DNA profiles of both Day and
Jane from their buccal swabs with the DNA profile from the
products of conception. Schiro testified that the comparison
revealed that Day could not be excluded as the biological
father of the fetus, and in fact, the probability of
paternity was 99.99992 percent. At some point thereafter,
Scales Laboratory completed its testing and returned all
three items of DNA to Sciple. Sciple called the district
attorney's office and was told to properly dispose of the
products of conception because the Neshoba County
Sheriff's Office had no way to store biohazardous
After a one-day trial, the jury returned a verdict of guilty.
Day was sentenced to serve twenty-five years in the custody
of the MDOC. Day now appeals and presents five separate
issues: (1) that Judge Duncan abused his discretion by not
recusing himself because he was the district attorney at the
time of Day's arrest; (2) that Judge Duncan abused his
discretion by allowing the State to ask leading questions
during Sciple's testimony; (3) that the State failed to
prove the crime occurred on April 1, 2017; (4) that the
circuit court erred by allowing DNA evidence to be entered at
trial when the samples were destroyed after testing by Scales
Laboratory; and (5) that Day was not afforded a fair trial
because of testimony regarding offenses that were not set
forth in the indictment.
Whether Judge Duncan was obligated to recuse despite Day
not filing a motion to recuse or otherwise raising
the issue on the record.
Day first argues that Judge Duncan abused his discretion by
failing to sua sponte recuse himself from the trial. Day
claims that Judge Duncan "ordered the destruction of DNA
evidence thereby depriving [Day] of his due process right to
inspect and analyze said evidence against him." Because
of this, Day claims that Judge Duncan took part in his
prosecution and should have recused, and an automatic
reversal should occur because he did not recuse.
The objective test used to determine if a judge should recuse
requires that a judge "disqualify himself if a
reasonable person, knowing all the circumstances, would
harbor doubts about his impartiality." McFarland v.
State, 707 So.2d 166, 180 (¶52) (Miss. 1997)
(quoting Green v. State, 631 So.2d 167, 177 (Miss.
1994)). On appeal, a judge's decision to not recuse is
reviewed "under the standard of abuse of
discretion." Brent v. State, 929 So.2d 952, 955
(¶3) (Miss. Ct. App. 2005) (citing Steiner v.
Steiner, 788 So.2d 771, 775 (¶9) (Miss. 2001)).
The law of this State demands an automatic reversal of a
conviction if the trial judge fails to recuse and previously
participated in an adverse role in that case. Jenkins v.
State, 570 So.2d 1191, 1191-93 (Miss. 1990); see
Overstreet v. State, 17 So.3d 621, 622 (¶1), 614
(¶10) (Miss. Ct. App. 2009). The question for this Court
is whether Judge Duncan took a previous adverse role against
Day while he was still serving as the district attorney.
In Jenkins, the Mississippi Supreme Court held that
a trial judge, who was serving as a county prosecutor at the
time of the defendant's indictment, failed to recuse
himself and thereby denied the defendant a fair trial.
Jenkins, 570 So.2d at 1193. The defendant had
objected and claimed that the judge could not be impartial
because he was a prosecuting attorney at the time of his
indictment. Id. at 1191. The judge did not recuse
because "he did not remember [seeing] Jenkins before nor
being involved in any preliminary hearings or Grand Jury
proceedings." Id. The supreme court determined
that "a reasonable person knowing that Judge Yeager
acted as prosecutor during the indictment of Jenkins would
certainly question his impartiality." Id. at
In Overstreet, there was little doubt that the
presiding judge acted in and worked on the case when he was
serving as an assistant district attorney at the
defendant's plea hearing. Overstreet, 17 So.3d
at 623 (¶2). Overstreet filed a motion for
post-conviction relief. Id. at (¶3). The judge
who denied his motion was the former assistant district
attorney who had appeared on behalf of the State at his plea
hearing. Id. at (¶¶2-3). This Court held
that the judge "abused his discretion when he failed to
recuse himself and ruled on Overstreet's post-conviction
relief motion" because the judge had taken an active
part in Overstreet's conviction and plea negotiations.
Id. at 624 (¶¶10-11). In this case, we
simply do not know all the facts to automatically reverse
pursuant to Jenkins and Overstreet. A
review of the facts proves instructive.
Day was charged with the crime of statutory rape, which was
alleged to have occurred on or about April 1, 2017. At that
time, the district attorney of Neshoba County was Mark
Duncan. As part of the sheriff's office investigation,
buccal swabs were collected from Day on April 23, 2017, and
the victim on May 19, 2017. Also, on May 19, 2017, the
sheriff's office collected what was referred to as the
"products of conception," after the victim lost the
pregnancy due to a miscarriage. All three items were taken to
a private, independent laboratory for DNA testing.
On or about June 1, 2017, then District Attorney Duncan was
apparently appointed by Governor Phil Bryant to serve as the
new circuit court judge for Neshoba County. Judge Duncan
apparently took office on June 2, 2017. His replacement,
Steven Kilgore, was apparently appointed on June 13,
2017. Mark Duncan was the district attorney, for
purposes of this case, from the date of the crime, on or
about April 1, 2017, to the date he became a judge, on or
about June 2, 2017. The record is completely devoid of what
part, if any, that Mark Duncan played in this case during
that time frame. By virtue of reading the indictment, the
case was undeniably presented to the grand jury on August 21,
2017. Day's indictment was returned as a true bill by the
grand jury on August 22, 2017, and was signed by District
Attorney Kilgore. The case came before Judge Duncan for trial
on March 20, 2018.
The briefs tell us that the DNA report was completed by
Scales Laboratory on May 30, 2017. Sciple testified that after
the DNA analysis was completed, he called the district
attorney's office. While District Attorney Steven Kilgore
was questioning Sciple on direct examination at trial, he
testified as follows:
Q. We've got the two samples from [the victim] and Mr.
Day. Where's the [products of conception]?
A. It was destroyed because it was human tissue and I did not
have anywhere to store human tissue for a period of time and
I did contact your office and was advised to
go ahead and dispose of it which I took it to the Jackson
Crime Lab where they do autopsies, and they disposed of it
(Emphasis added). This testimony is what Day relies on to
argue that Judge Duncan had taken an adversary role while he
was district attorney and was actively involved in his
prosecution. We disagree. This testimony is the only thing in
the record on appeal that Day relies on to argue that Judge
Duncan was involved in the prosecution of the case. However,
it is clear from reading the transcript that Sciple responded
to District Attorney Kilgore's question with "I
contacted your office." That would indicate that Sciple
was referring to District Attorney Kilgore and not Judge
Duncan. While on cross-examination, the defense never
questioned Sciple about whom he spoke with, when the call
occurred, or when the investigative file was actually
delivered to the district attorney's office.
It is important to note that "who" the district
attorney was at the time of that call, exactly when that call
was made, when the lab report was received, when the
detective went to Jackson, or when the file was delivered to
the district attorney's office was never developed by the
trial court or the parties. This could be, in part, because
the defense failed to file a motion for recusal at trial and
the argument was likely not in anyone's minds at the
time. There is nothing further in the record to indicate the
answers to any of those unresolved but very important and
potentially outcome-determinative questions.
Day relies upon this Court's opinions in Brent v.
State, 929 So.2d 952 (Miss. Ct. App. 2005), and
Jenkins v. State, 570 So.2d 1191 (Miss. 1990), to
argue that Judge Duncan should have recused even if he had no
knowledge of Day's case when it came to trial. In
Brent, a county court judge in Hinds County issued a
search warrant that lead to the defendant's arrest and
indictment. Brent, 929 So.2d at 955 (¶4).
Later, when the judge was appointed to the circuit court, he
was set to preside over the defendant's trial for the
same crime. Id. The judge "stated in the record
that [he] had no personal bias or prejudice, remembered no
facts concerning the proceedings, and could not even remember
Brent from prior encounters." Id. Regardless of
that pronouncement, this Court found that the judge
"committed manifest error in failing to recuse
himself." Id. at (¶6). The present case is
distinguishable. There is no evidence in the record that
Judge Duncan did anything from the time of Day's arrest
until he took the bench.
Furthermore, Jenkins is not factually similar to the
one before this Court. In this case, the record is clear that
Judge Duncan was not the district attorney at the time of the
indictment, and there is no evidence that Judge Duncan ever
participated in prosecuting Day for the limited time he was
district attorney when Day was being investigated by the
sheriff's department. Cf. Jenkins, 570 So.2d at
1193 (holding that a judge who was actively involved in the
defendant's indictment erred by not recusing himself when
the case came before him for trial.) The indictment was
returned in August 2017 when Judge Duncan was two months
removed from his position as district attorney. There are
simply not enough facts to determine if Judge Duncan should
have automatically recused himself or not. Without proof that
Judge Duncan was in a previous adversarial role in this case,
the supreme court has indicated that a defendant can waive
the issue of judicial recusal, as discussed below.
This Court and the supreme court have indicated many times
that a defendant can waive an objection to the trial judge if
there is no motion to recuse or motion to continue filed or
if the defendant never raises the issue at any other point
during the trial. Banana v. State, 635 So.2d 851,
854 (Miss. 1994); see also Rice v. State, 134 So.3d
292, 300 (¶23) (Miss. 2014); Kelly v. State,
553 So.2d 517, 521 (Miss. 1989); and Holton v.
State, 189 So.3d 697, 700 (¶¶9-12) (Miss. Ct.
App. 2016). "Once a party knows of, 'or with the
exercise of reasonable diligence may have discovered,'
possible grounds, that party should move for a recusal."
Overstreet, 17 So.3d at 623 (¶5) (quoting
Tubwell v. Grant, 760 So.2d 687, 689 (¶8)
(Miss. 2000)). If the defendant fails to raise these issues,
it is "considered implied consent to have the judge go
forward presiding over the case." Id.
In Banana, it was clear the judge was the former
district attorney who handled the case pre-resolution.
Banana, 635 So.2d at 851. The Mississippi Supreme
Court held that Banana had waived any issue with his trial
judge because he "consented to the trial judge hearing
his case." Id. at 854. Further, in
Tubwell, 760 So.2d at 659 (¶5), a defendant
appealed a judge's ruling because the judge had once
"filed and prosecuted a civil action against
[him]." In that case, Tubwell never asked the judge to
recuse himself. Id. at (¶8). The supreme court
stated that "[o]ver the years, this [c]ourt has been
quick to point out that it will not allow a party to take his
chances with a judge about whom he knows the grounds for
recusal and then, after he loses, file his motion."
Id. (citing Buchanan v. Buchanan, 587 So.2d
892, 897 (Miss. 1991)). The Mississippi Supreme Court
"has consistently held that failing to object to a trial
judge's appearance in a case can result in a
waiver." Id. (citing Foster v. State,
716 So.2d 538, 540 (¶7) (Miss. 1998)). An exception does
exist, however, if the judge was once a prosecutor and
actively involved in the prosecution of the defendant.
Smith v. State, 212 Miss. 497, 501, 54 So.2d 739,
740 (1951). There are not sufficient facts in the record
before this Court to trigger the automatic reversal
requirement of Jenkins and Overstreet.
The scenario in Tubwell is remarkably similar to
what happened in this case. Day never raised an objection or
filed a motion to recuse on the record. The defense never
cross-examined Sciple about when the DNA analysis report was
received, when the call to the district attorney's office
was made or to whom it was made. Neither Judge Duncan nor
District Attorney Kilgore ever had an opportunity to respond
to the issue of recusal. The exact dates that the file was
delivered to the district attorney's office (whether it
was the current or former district attorney's office)
were never developed in the record. There is nothing in the
record to indicate the presiding judge did anything as the
district attorney in Day's case.
Day argues facts in his brief that are assumptions not
proven. Day asserts that Sciple spoke to Judge Duncan, yet
that assertion of fact is contrary to the testimony that was
elicited. There is nothing in the record to show that Judge
Duncan was the district attorney on the phone call instead of
Kilgore. Day never filed a motion for recusal and never
sought a ruling from the trial court on recusal. The criminal
justice system should not hinge on facts unproven or motions
never filed. To find otherwise would allow defendants to take
their chances at trial and, if convicted, then raise a
recusal issue for the first time on appeal without a
sufficient record and without ever allowing the trial judge
or the district attorney an opportunity to develop the facts
in response. Because the record does not show that Judge
Duncan was involved in Day's prosecution while he was
still the district attorney, there is no basis for this Court
to hold that Judge Duncan was required to recuse sua sponte.
Therefore, this issue is without merit. This ruling does not
foreclose Day's rights to address this issue in a motion
for post-conviction relief that would allow the facts to be
Whether the circuit court erred by allowing the
prosecutor to lead Sciple's testimony.
Day next claims that it was error for the circuit court to
overrule his objection to a leading question asked by the
State. The objection came during Sciple's direct
Q. As part of the booking process, is Mr. Day's date of
A. It is, yes.
Q. And what's his date of birth?
A. I think I have it - it's on my Waiver of Rights form
that I ...