                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2017-KA-00069-SCT

WILLARD RANDALL MARQUIS a/k/a RANDY
MARQUIS a/k/a WILLARD R. MARQUIS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                            12/09/2016
TRIAL JUDGE:                                 HON. CHARLES E. WEBSTER
TRIAL COURT ATTORNEYS:                       JAMIE MARIE BANKS
                                             ALISON LESLIE FLINT
                                             RAYMOND L. WONG
                                             BOYD P. ATKINSON
COURT FROM WHICH APPEALED:                   BOLIVAR COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                             BY: W. DANIEL HINCHCLIFF
                                                 GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                             BY: KATY GERBER
                                                 LISA L. BLOUNT
DISTRICT ATTORNEY:                           BRENDA FAY MITCHELL
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 05/10/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., CHAMBERLIN AND ISHEE, JJ.

       ISHEE, JUSTICE, FOR THE COURT:

¶1.    Willard Marquis was convicted for the sexual battery of J.D.,1 a female minor under

the age of fourteen. In a pretrial competency hearing, J.D., who was seven at the time, was

found to be competent to testify. And a day later, J.D. testified at trial through closed-circuit


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           Because J.D. was a minor at the time, initials will be used to protect her anonymity.
TV. During the trial, a recording of a forensic interview of J.D. was played before the jury.

Also played before the jury was a recording from J.D.’s mother’s cell phone in which J.D.

told her mother of the alleged sexual abuse. At the end of the trial, the jury found Marquis

guilty.

¶2.       Marquis appeals his conviction for three reasons. First, Marquis claims that J.D. was

not competent to testify. Second, Marquis argues that the State’s use of a recorded forensic

interview of J.D. violated his constitutional right to confront the witnesses against him. And

finally, Marquis claims that the State’s use of the recorded conversation between J.D. and

her mother, along with the recording of the forensic interview, was cumulative evidence

which amounted to improper bolstering.

¶3.       Having reviewed the record, we disagree and affirm Marquis’s conviction.

                            FACTS AND PROCEDURAL HISTORY

¶4.       One evening while getting a bath from her mother Amy, J.D., just five years old at the

time, informed Amy of several instances in which Marquis2 had sexually abused her. Upon

hearing this, Amy retrieved her cell phone and recorded the rest of J.D.’s claims. Throughout

the course of the bath-time conversation with Amy, J.D. claimed that Marquis had touched

her—pointing to her vaginal and anal areas. Later that evening, Amy told J.D.’s father,

Steven, of J.D.’s claims.

¶5.       The next day, Steven arrived at the Cleveland Police Department and lodged a


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              Marquis, while not related to J.D. by blood, was married to J.D.’s grandmother.

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complaint; Marquis was then arrested for sexual battery. Marquis’s indictment alleged that

the sexual-battery incidents occurred between August 1, 2012, and December 31, 2013. A

copy of Amy’s cell-phone recording was given to the police and eventually was played for

the jury at trial.

¶6.     On September 24, 2014, Rachel Daniels, a social worker for the Children’s Safe

Center at University of Mississippi Medical Center in Jackson, conducted a forensic

interview of J.D. During this interview, J.D. disclosed the details of the alleged sexual abuse.

As a result of this interview, Daniels, as an expert in social work and forensic interviewing,

concluded that J.D.’s disclosures were consistent with a child who had been sexually abused.

This forensic interview was recorded, and it also was played for the jury at trial. Daniels also

testified at trial.

¶7.     The day before trial, the trial court held a hearing to determine whether J.D. was

competent to testify. During the hearing, the judge asked J.D., who was seven years old at

the time, a series of questions about her familiarity with courtrooms, judges, and witnesses.

In response to the judge’s questions, J.D. nodded her head “yes” or shook her head “no.”

Then the judge asked whether telling the truth was better than telling a lie; J.D. responded,

“[t]he truth.” The judge asked J.D. if she knew why she was in court. Initially, there was no

audible response from J.D., but she then shook her head “no.” The judge explained to J.D.

that she was there to talk about events that may have happened to her when she was younger.

And when asked if she could do that, J.D. nodded her head “yes.” This prompted the judge


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to instruct J.D. to answer the question verbally—yes or no; J.D. said “yes.” When asked if

she knew that she was supposed to tell the truth, J.D. said “yes.”

¶8.    The judge then asked J.D. if she knew the definition of a promise. J.D. replied “yes,”

but struggled to define the word. The judge provided a definition of a promise: “[I]t [is]

when you say you [are going to] do something, and you do it.” J.D. responded “yes.” After

J.D. testified that she had never seen anyone take an oath, the judge explained to J.D. that an

oath is a promise to tell the truth. The judge then told J.D. that she would have to tell the

truth in court; J.D. said “okay.”

¶9.    At the end of the hearing, the judge found that J.D. understood the questions and the

difference between telling the truth and telling a lie. The judge further found that J.D. knew

that telling the truth was the right thing to do, and that she seemed to understand “the

significance of the oath, to the extent a seven year old could.” And so the judge found J.D.

competent to testify at trial. In response to the judge’s finding that J.D. was competent to

testify, defense counsel raised no objection, but stated:

       Your Honor, we know the [c]ourt has made a determination of competency at
       this . . . time as to [J.D.]. We also make notice to the [c]ourt that most of the
       questions, she just nodded and, tomorrow . . . she will have to respond. We
       would also make our – most of our concerns are when I’m asking questions,
       she doesn’t answer. That will not be effective cross-examination if she doesn’t
       answer the question. We just make that known for the record. That’s a
       concern we have because if she doesn’t answer, then the [c]ourt is [going to]
       have to do something else.

¶10.   The next day, trial began. During the trial when asked, J.D. was able to demonstrate

where Marquis had touched her. She also was able to tell the location where the touching

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took place—at her grandmother’s house, while her grandmother was at work. During the

direct examination, J.D. often had to be led by the prosecutor. And in response to some

detailed questions, J.D. said she could not remember. During cross-examination, many of

J.D.’s responses could not be heard due to her soft speech and noise from the operation of

a street sweeper outside the courthouse. Nonetheless, J.D. was able to answer many of

defense counsel’s questions.

¶11.   Maquis testified in his own defense, denying the allegations of sexual battery lodged

against him. During the trial, the recorded forensic interview of J.D., as well as the cell-

phone recording taken by Amy of her and J.D.’s bath-time conversation, wherein J.D. first

told of the alleged sexual abuse, were played before the jury. And after consideration of all

the evidence presented at trial, the jury found Marquis guilty of sexual battery. Marquis now

appeals to this Court.

                                      DISCUSSION

       I.     J.D.’s Competence to Testify

¶12.   On appeal, Marquis argues that the trial court abused its discretion in finding J.D.

competent to testify. As a general matter, “every person is competent to be a witness except

as restricted by [Mississippi Code Section] 13-1-7 (competency of spouses) and [Section]

13-1-11 (persons convicted of perjury or subornation of perjury), or by the Mississippi Rules

of Evidence.” Sudduth v. State, 562 So. 2d 67, 70 (Miss. 1990); see M.R.E. 601. And this

Court has held that the “[c]ompetency of a witness is to be determined by the trial court, in


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its discretion.” Eakes v. State, 665 So. 2d 852, 869 (Miss. 1995).

¶13.   In its brief, the State argues that Marquis failed to object to the competency

determination and therefore waived this issue. Indeed, this Court has held that “[i]n order

to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver.”

Carr v. State, 873 So. 2d 991, 1004 (Miss. 2004).

¶14.   Having reviewed the record, we find that Marquis failed to object to the trial court’s

determination that J.D. was competent to testify, and as a consequence, Marquis failed to

preserve the issue for appeal. For one, the issue was not raised at any point during trial. In

fact, the closest thing to an objection was defense counsel’s statement after the trial court’s

competence determination, when defense counsel stated:

       Your Honor, we know the [c]ourt has made a determination of competency at
       this . . . time as to [J.D.]. We also make notice to the [c]ourt that most of the
       questions, she just nodded and, tomorrow . . . she will have to respond. We
       would also make our – most of our concerns are when I’m asking questions,
       she doesn’t answer. That will not be effective cross-examination if she doesn’t
       answer the question. We just make that known for the record. That’s a
       concern we have because if she doesn’t answer, then the [c]ourt is [going to]
       have to do something else.

The State argues that this statement was not an objection, that it was instead a request from

defense counsel that the trial court instruct J.D. to answer the questions at trial and to ensure

that she did so verbally. We agree and find that Marquis is procedurally barred from raising

the issue of J.D.’s competence before this Court. And so we will not reach the merits of the

trial court’s competence determination itself.

       II.    Confrontation Clause

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¶15.   Next, Marquis claims that the admission of the forensic interview into evidence

violated his right to confrontation. The Supreme Court of the United States has held that,

under the Confrontation Clause of the Sixth Amendment, testimonial hearsay is not

admissible unless the defendant had an opportunity to cross-examine the declarant.

Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).

¶16.   Marquis claims that the forensic interview of J.D. was a testimonial statement, and

building on his argument in the previous section, Marquis contends that because J.D. was

incompetent to testify, there was no adequate opportunity to cross-examine her, and thus, the

introduction of the forensic interview violated his right to confrontation under the Sixth

Amendment. We disagree.

¶17.   As an initial matter, we agree with Marquis that the forensic interview itself was a

testimonial statement. We have had held that “a statement is testimonial when it is given to

the police or individuals working in connection with the police for the purpose of prosecuting

the accused.” Hobgood v. State, 926 So. 2d 847, 852 (Miss. 2006). Here, the record shows

that, after the report of a possible sexual battery was made to the proper authorities, those

authorities then “set up a forensic interview to be done.” Indeed, Charles Bingham, Chief

of Police of Cleveland, testified that setting up the forensic interview was a “step” in the

investigation. Bingham further explained the purpose of the forensic interview:

       [Y]ou send [the child] to a person that [is] trained [in] talking with children
       about different types of events that won’t ask them leading questions[.] It [is]
       just a person who [is] trained to jus[t] elicit facts out of the child, and we set
       up a forensic interview for that to be done.

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Eventually, copies of the report and forensic interview were sent to the Cleveland Police

Department.

¶18.   We find that Bingham’s testimony makes clear that the forensic interview, though not

conducted by law-enforcement officers themselves, was an investigatory step, done for the

purpose of gathering a statement that was testimonial in nature. Indeed, the word “forensic”

is defined as “[u]sed in or suitable to courts of law[.]” Forensic, Black’s Law Dictionary

(10th ed. 2014). And so we agree with Marquis’s position that the forensic interview is

testimonial.

¶19.   Having said that, even though we find the recording of the forensic interview

testimonial, the admission of the recording did not violate the Confrontation Clause of the

Sixth Amendment, because Marquis had the opportunity to, and did, cross-examine J.D. at

trial. As to this issue, Marquis seems to take the position that, because J.D. was not

competent as a witness, he was denied an opportunity to cross-examine her effectively. But

as this opinion already has stated, Marquis waived any issues as to the trial court’s finding

of competence, and nothing in the record leads us to conclude that the trial judge erred in

making this determination. And so we find that Marquis had adequate opportunity for

effective cross-examination of J.D.

¶20.   As to Marquis’s issues with various aspects of the cross-examination of J.D.—such

as various inaudible answers from J.D.—we note that “the Confrontation Clause guarantees

only ‘an opportunity for effective cross-examination, not cross-examination that is effective


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in whatever way, and to whatever extent, the defense might wish.’” Kentucky v. Stincer, 482

U.S. 730, 739, 107 S. Ct. 2658, 96 L. Ed. 2d 631 (1987) (quoting Delaware v. Fensterer, 474

U.S. 15, 20, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985)).

¶21.   In sum, we find that the statements made during the forensic interview were

testimonial. And because Marquis was not denied an opportunity to cross-examine J.D.

effectively, we also find that Marquis’s right to confrontation under the Sixth Amendment

was not violated.

       III.   Improper Bolstering

¶22.   Finally, Marquis argues that the trial judge abused his discretion in admitting the audio

recordings of J.D.’s statement to her mother and J.D.’s forensic interview into evidence.

Specifically, Marquis claims that these recordings amounted to cumulative testimony

resulting in improper bolstering.

¶23.   At the outset, we note that Marquis’s objection to the forensic interview being

admitted into evidence was based on his right to confrontation, not that it was cumulative.

And so the State argues, and we agree, that, as to that particular recording, Marquis failed

to preserve this issue for appeal. See Carr, 873 So. 2d at 1004.

¶24.   As for the admission of the cell-phone recording, we find that the trial judge did not

err. This Court has held that “[a] trial judge enjoys a great deal of discretion as to the

relevancy and admissibility of evidence. Unless the judge abuses this discretion so as to be

prejudicial to the accused, the Court will not reverse this ruling.” Shaw v. State, 915 So. 2d


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442, 445 (Miss. 2005) (quoting Jefferson v. State, 818 So. 2d 1099, 1104 (Miss. 2002)).

¶25.   Marquis seems to argue that the admission of the cell-phone recording was a repetition

of J.D.’s mother’s in-court testimony. This reiteration, Marquis contends, amounted to

“piling on.” We disagree. First, the recording and the witnesses’ testimony were necessary

to tell the whole story, as the recording often expanded upon and provided context to the

witnesses’ testimony. For instance, J.D.’s mother testified that J.D. had told her that Marquis

had touched her. And yet on the cell-phone recording, J.D. also said that she had touched

Marquis.

¶26.   In the end, in accordance with the great deference afforded to trial judges on the

admission of evidence, we find that the admission of the cell-phone recording helped provide

context, was necessary to tell a rational and coherent story of the alleged sexual battery, and

did not amount to improper bolstering.

                                      CONCLUSION

¶27.   In conclusion, we affirm Marquis’s conviction for the sexual battery of J.D. First,

Marquis failed to object to the trial judge’s finding that J.D. was competent to testify, and

thus, Marquis waived the issue. Second, the admission of the forensic interview of J.D. did

not violate the Confrontation Clause of the Sixth Amendment because Marquis had an

adequate opportunity to, and did, cross-examine J.D. And finally, the trial court did not err

in allowing the admission of the cell-phone recording into evidence.

¶28.   AFFIRMED.


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   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.




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