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. W EBSTER TRIAL COURT ATTORNEYS: JAMIE MARIE BANKS ALISON LESLIE FLINT RAYMOND L. W ONG BOYD P. ATKINSON COURT FROM W HICH 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. W i llard Marquis w as convicted f or t he sexual battery of J.D., 1 a f em ale m i nor under the age o f f

ourteen. In a pretrial com petency hearing, J.D., who was seven at the t im e, was f ound to b e c om

petent t o testif

y . And a day later, J.D. testif ied at trial t hrough closed-circuit

1 B ecau se J.D

. w as a m in o r at th e tim e, i n itials w ill b e u s e d to p ro t ect h er an o n y m ity

.TV. During the trial, a recording o f a f orensic interview of J.D. was play ed bef ore the jury

. Also play ed bef

ore the jury was a recording f rom J.D.’s m other’s cell phone in which J.D. told her m other of t he a lleged sexual abuse. At the end of the trial, the jury f ound Marquis guilty

. ¶2. Marquis appeals his conviction f or three reasons. First, Marquis c laim s that J.D. was
not com petent to testif

y . Second, Marquis argues t hat the State’s use of a recorded f orensic interview of J.D. violated his constitutional right to conf ront the witnesses a g ainst h im

. And f inally , Marquis claim s that the State’s use of t he recorded conversation b etween J.D. and her m other, along with the recording of the f o r e n s ic interview, was cum ulative evidence which am ounted to im

proper bolstering. ¶3. Having reviewed the record, we disagree and af f i rm Marquis’s conviction. FACTS AND PROCEDURAL HISTORY ¶4. One evening while getting a bath f rom her m other Am y , J.D., just f ive y ears old at the tim e, inf orm ed Am y of several instances in which Marquis 2 had sexually abused her. Upon hearing this, Am y retrieved her cell phone and recorded the rest of J.D.’s claim s. Throughout the course of the bath-tim e conversation with Am y , J

. D. claim ed that Marquis had touched her—pointing to her vaginal a n d a n a l areas. Later that evening, Am y told J.D.’s f ather, Steven, of

J.D.’s claim s. ¶5. The next d ay , S teven arrived at the Cleveland Police Depa r t me n t a n d l o d g e d a

2 Marquis, while not related to J.D. by blood, was m arried to J.D.’s grandm other. 2com

plaint; Marquis was then a rrested f or sexual battery

. Marquis’s indictm ent alleged that the sexual-battery incidents occurred between August 1, 2012, and Decem ber 31, 2013. A
copy of Am y ’s cell-phone recording was given to the police a nd eventually w as play ed f or the jury at trial. ¶6. On Septem

ber 2 4, 2014, Rachel Daniels, a s ocial worker f o r the Ch i l d r e n ’ s S a f

e Center a t University of Mississippi Medical Center i n Jackson, conducted a f orensic interview of J.D. During t his interview, J.D. d isclosed the details of t he a l leged sexual abuse. As a r esult of this interview, Daniels, as an expert in s ocial w ork and f orensic interviewing, concluded that J.D.’s disclosures were consistent w ith a c hild who had been sexually abused. This f orensic interview was recorded, and it also was play ed f or the jury at t rial. D a niels also testif i ed at trial. ¶7. The day bef

ore tria l , t h e t r i a l c ourt held a hearing to determ ine whether J.D. was

com petent to testif

y . During the hearing, t he judge asked J.D., who was seven y ears old at the tim e, a series of questions about her f am iliarity with courtroom s, judges, and witnesses. In r esponse to the judge’s questions, J.D. n odded her head “y es” o r shook her he a d “ n o .” 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 w hy she was in court. Initially , there was no audible response f

rom J.D., but she then s hook her head “no.” The judge explained to J.D. that s he was there to talk about events that m a y have happened t o her when she was y ounger. And when asked if she could do that, J .D. nodded her head “y es.” This p rom pted the judge

3to instruct J.D. to answer the question verbally —y es or no; J.D. said “y es.” W hen asked if she knew that she was supposed to tell the truth, J.D. said “y es.” ¶8. The judge then a sked J.D. i f she knew t he def inition of a prom i se. J.D. replied “y es,” but s truggled to def

ine the word. The judge provided a def inition of a prom ise: “[ I]t [ is] when y ou say y o u [ a re going to] do som ething, and y ou do it.” J.D. r esponded “y es.” Af ter J.D. t estif ied t hat she had n ever s een any one take an oath, the judge explained to J.D. that an oath is a prom ise t o t e l l t h e truth. The judge then told J.D. that she would h ave to tell the truth in court; J.D. said “okay

. ” ¶9. At the end of the hearing, the judge f ound that J.D. understood the q uestions and the dif f erence between telling the truth and telling a lie. The judge f urther f ound that J.D. knew that telling the truth was the right thing to do, a n d that she seem ed to u nders t and “the signif icance of t he o ath, to the extent a seven y ear old could.” And so the judge f ound J.D.

com p e t e nt to testif

y at trial. In response to the judge’s f inding that J.D. was com

petent to testif y , def ense counsel raised no objection, but stated: Your Honor, we know the [ c]ourt has m ade a determ ination of com p etency at this

. . . tim e as to [ J .D.]. W e also m ake notice to the [ c]ourt that m ost of the questions, she just nodded and, t om orrow . . . s h e w ill h ave to respond. W e would also m a ke our – m ost of our concerns are when I’m a s king questions, she doesn’t answer. That will not be ef f e ctive cross-exam ination i f she doesn’t answer the q

u esti o n . W e just m a ke that known f or t he record. T hat’s a concern we have because if she d oesn’t answer, then the [ c]ourt is [ going t o] have to do som ething else. ¶10. The next day , trial began. During the trial when asked, J.D. was able to dem onstrate where M arquis had touched her. She also was able to tell the loc a t i o n where the touching
4took place—at h er grandm othe r ’ s h o u s e, w hile her g randm other was at work. During the

direct exam ination, J.D. of ten h ad to be led by t he prosecutor. A nd in response to som e detailed questions, J .D. said she c ould not r em em ber. D u ring cross-exam ination, m any of J.D.’s responses could not be heard due to her sof t speech and noise f

rom t he operation of

a str e e t s w eeper outside the courthouse. Nonetheless, J

. D. was a b le to a n swer m any of def ense counsel’s questions. ¶11. Maquis testif

ied in h is own def

ense, deny ing the allegations of sexual battery lodged against h im

. During the trial, the recorded f o rensic interview of J.D., as well as the cellphone recording taken by Am y of her and J.D.’s bath-tim e conversation, wherein J.D. f irst told of the alleged sexual abuse, were play ed bef ore the j ury . And af

ter consideration of all the evidence presented at trial, the jury f ound Marquis guilty of s exual battery

. Marquis now appeals to this Court. DISCUSSION I. J.D.’s Com petence to Testify ¶12. On appeal, Marqui s a r g u e s t h a t t h e trial c ourt abused i ts discretion in f inding J.D.

com petent to t estif

y . As a g e neral m atter, “every person is com petent to be a witness except

as restricted by [ Mississippi Cod e S e c t i o n] 13-1-7 ( com petency of s pouses) and [ Section] 13-1-11 (persons convicted of perjury or subornation of p erjury ), or by t he Mississippi Rules of Evidence.” S udduth v. State , 562 S o. 2d 67, 70 (Miss. 1990); see M.R.E. 601. And this Court has held that the “[ c]om petency of a witness is to be d eterm ined b y the trial court, in

5its discretion.” Eakes v. State , 665 So. 2d 852, 869 (Miss. 1995).

¶13. I n i t s b r i e f

, t h e S t a t e a r g u e s that M arquis f a i led t o object to the com petenc y determ ination and theref

ore waived this i ssue. Indeed, t his Court h a s held that “[ i]n order

to p reserve a n issue f

or appeal, counsel m

ust object. The f

ailure to object a cts as a waiver.” Carr v. State , 873 So. 2d 991, 1004 (Miss. 2004). ¶14. Having reviewed the record, we f ind that Marquis f

ailed to object to the trial court’s determ ination that J.D. was com petent to testif

y , and as a consequence, Marquis f ailed to
preserve the issue f

o r appeal. For one, the issue was not raised at any point during trial. In f act, the c l osest thing to a n objection was d ef ense counsel’s statem ent af t er the trial court’s

com petence determ ination, when def ense counsel stated: Your Honor, we know the [ c]ourt has m a de a determ ination of com petency at this

. . . tim e as to [ J .D.]. W e also m ake notice to the [ c]ourt that m ost of the questions, s h e just nodded and, tom o rrow . . . she w ill h ave to respond. W e would also m ake our – m ost of our concerns are when I’m a s king questions, she doesn’t answer. That will not be ef f ective cross-exam ination if she doesn’t answer the q

u estion. W e just m ake that k no w n f or t he record. T hat’s a concern we have because if she d oesn’t answer, then the [ c]ourt is [ going t o] have to do som ething else. The State argues that this s tatem e nt was not an o bjection, that it was instead a r equest f rom def ense counsel that t he trial court instruct J.D. to answer the questions at t rial and to ensure that she did so verbally

. W e agree and f ind that Marquis is procedurally barred f rom raising the issue of J .D.’s com

petence bef

ore this C ourt. And s o we will not reach the m erits of the trial court’s com

petence determ ination itself

. II. Confrontation Clause
6¶15. Next, M arquis claim s that the adm ission o f t h e f o r e n s i c i n t e rview into evidence violated his right to conf

rontation. The Suprem e Court of t he United States has held that, under the Conf

rontation Clause of the Sixth Am endm ent, testim onial h earsay is not adm issible unless the d e f e n d a nt had an o pportunity to cross-exam ine the declarant. Crawford v. Washington , 541 U.S. 36, 59, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). ¶16. Marquis cl a i ms that t he f orensic interview of J.D. was a testim onial statem ent, and building on his argum en t i n t h e p revious section, Marquis contends that because J.D. was incom petent to testif

y , there w as no adequate o pportunity to cross-exam ine her, a nd thus, the introduction of the f

o r e n s i c interview violated his right to c onf rontation under the Sixth Am endm ent. W e disagree. ¶17. A s a n i n i t ial m a tter, we agree with Marquis t hat t he f orensic interview itself was a testim o nial s tatem ent. W e have had held that “ a statem ent is testim o nial w hen it is given to the police or individuals w orking in connection with the police f or t he purpose o f prosecuting the accused.” Hobgood v. State , 9 26 So. 2d 847, 852 (Miss. 2006). Here, the record shows that, af ter the report o f a possible sexual battery w a s ma d e to t he proper authorities, those authorities t hen “set u

p a f orensic interview to b e done.” Indeed, Charles Bingham , Chief of Police of Cleveland, testif ied t hat setting up the f

orensic i n t e rview was a “step” in the investigation. Bingham f urther explained the purpose of the f orensic interview: [ Y]o u send [ the child] to a person that [ is] t rained [ in] talking with children about dif f erent ty p es of events that won’t ask them leading questions[ .] I t [ is] just a person who [ is] trained to jus[ t] elicit f acts out of the child, and we set up a f orensic interview f

o r that to be done.

7Eventually , copies of the report a nd f orensic interview w e re sent to the Cleveland Police Departm ent. ¶18. W e f

ind that Bingham ’s testim ony m akes clear that the f orensic interview, though not conducted by l aw-enf

orcem e nt o f

f icers them selves, was a n i nvestigatory s tep, done f or the
purpose of gathering a s tatem e nt that was testim onial in n ature. Indeed, the word “ f orensic” is def ined as “[ u]sed in or suitable to courts o f law[ .]” Foren sic , B l ack’s L aw Dictionary (10th ed. 2014). And s o w e a g r e e with Marquis’s position t hat the f orensic interview is testim o nial. ¶19. Having said that, e ven though w e f i nd t h e r e c o r d i n g o f t h e f o rensic interview testim o nial, the adm ission of the recording did not violate the C onf rontation Clause of the Sixth Am endm ent, because Marquis had the opportunity to, and did, cross-exam ine J.D. at trial. As to this issue, Marq u i s s e e m s t o take the position that, because J.D. was not

com petent as a witness, he was d enied an opportunity to cross-exam ine her ef f ectively

. But as this opinion already

has stated, Marquis waived any issues as to the trial court’s f inding of com petence, and nothing in t he record leads us to c onclude th a t the trial judge erred in

m aking this d eterm i n ation. And so we f ind that Marquis had adequate opportunity f or ef f ective cross-exam ination of J.D. ¶20. As to Marquis’s issues with various aspects of the cross-exam ination of J.D.—such

as various inaudible answers f rom J.D.—we n ote that “the Conf rontation Clause g uarantees only ‘an o pportunity f

or ef f ective cross-exam ination, not cross-exam ination that i s ef f ective

8in whatever way , and to whatever e xtent, the def ense m ight 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. I n sum , we f

ind that the statem ents m ade durin g t h e f o r e n s i c i n t e r v i e w w e r e testim o nial. And because Marqui s w a s n ot denied an opportunity to cross-exam ine J.D. ef f ectively , we also f

ind that Marquis’s right to conf rontation under the Sixth Am endm ent was not violated. III. Im proper Bolstering ¶22. Finally , Marquis argues that the trial judge a bused his d i s c r e t i o n in adm i tting the audio recordings o f J

. D.’s s tatem e nt to her m other a n d J

. D

. ’ s f orensic interview into e vidence. Specif ically , Marquis claim s that these recordings am ounted to cum ulative testim ony resulting in im

proper bolstering. ¶23. At the outset, we note that M a r q u i s ’ s o b j e c t i o n t o t h e f

orensic interview being adm itted into e vidence was based on his right to conf rontation, not that it was cum ulative. And so t he S t a t e a r g ues, a nd we a gree, that, as to that p articular recording, Marquis f ailed to preserve this issue f

or appeal. See Carr , 873 So. 2d at 1004. ¶24. As f

or the adm ission of t he cell-phone recording, we f ind that the trial judge did not

err. T his C o u r t h a s held that “ [ a] trial judge enjoy s a g reat deal of discretion as to the relevancy and adm i ssibility of evidence. Unless t he judge abuses this discretion so as to be prejudicial to the accused, the Court will n ot reverse this r uling.” Shaw v. State , 915 So. 2d

9442, 445 (Miss. 2005) (quoting Jefferson v. State , 818 So. 2d 1099, 1104 (Miss. 2002)).

¶25. Marquis s ee m s t o a r g u e that the adm ission of the cell-phone recording was a repetition of J.D.’s m other’s in-court testim ony . This reiteration, Marquis contends, am ounted to “piling on.” W e disagree. First, the recording and the w itnesses’ t estim ony were necessary
to tell the w h o l e s t o r y , a s the recording o f ten expanded upon a nd p rovided context to the witnesses’ testim ony . For i nstance, J.D.’s m other testif ied that J.D. had told her that Marquis had touched her. And y et on the cell-phone recor d i n g , J

. D

. also said that she had touched Marquis. ¶26. I n t h e e n d , in accordance with t he great def e rence af f o rded to trial ju d g e s o n t h e adm ission of evidence, w e f ind that the adm ission of the cell-phone recording helped provide context, was n ecessary to tell a rational and coherent story of the alleged sexual battery , and did not am ount to im

proper bolstering.

CONCLUSION ¶27. In c onclu s i o n , w e a f f i r m Marquis’s conviction f or t he sexual battery of J.D. First, Marquis f ailed to object to t he trial judge’s f in d ing t hat J .D. was com

petent to testif

y , and thus, Marquis waived the issue. Second, the a dm ission of the f orensic interview of J.D. did

not violate the Conf

rontation Clause of t he Sixth Am e n dm ent because Marquis had an adequate opportunity to, and did, cross-exam ine J.D. And f inally , the trial court d id not err in allowing the adm ission of the cell-phone recording into evidence. ¶28. AFFIRMED.

1 0WALLER, C.J., RANDOLPH AND KI T C H E NS, P.JJ., KING, COLEMAN,

MAX W ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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