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Day v. State

Court of Appeals of Mississippi

November 14, 2019


          DATE OF JUDGMENT: 03/22/2018





         EN BANC

          LAWRENCE, J.

         ¶1. 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.


         ¶2. From January 2017 until April 2017, the victim's mother, Betty, [1] 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 and Day.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.[2] 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.

         ¶6. 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[3] and was told to properly dispose of the products of conception because the Neshoba County Sheriff's Office had no way to store biohazardous material.[4]

         ¶7. 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.


         I. Whether Judge Duncan was obligated to recuse despite Day not filing a motion to recuse or otherwise raising the issue on the record.

         ¶8. 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.

         ¶9. 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)).

         ¶10. 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.

         ¶11. 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 1193.

         ¶12. 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.

         ¶13. 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.

         ¶14. 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.[5] 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.

         ¶15. The briefs tell us that the DNA report was completed by Scales Laboratory on May 30, 2017.[6] 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 for me.

(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.

         ¶16. 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.

         ¶17. 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.

         ¶18. 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.

         ¶19. 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.

         ¶20. 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.

         ¶21. 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.[7] There is nothing in the record to indicate the presiding judge did anything as the district attorney in Day's case.

         ¶22. 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 developed.

         II. Whether the circuit court erred by allowing the prosecutor to lead Sciple's testimony.

         ¶23. 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 examination:

Q. As part of the booking process, is Mr. Day's date of birth obtained?
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 ...

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