IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-KA-00264-COA
WILLIS DELANO MURRAY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/02/2021 TRIAL JUDGE: HON. DEWEY KEY ARTHUR COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL DISTRICT ATTORNEY: JOHN K. BRAMLETT JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/10/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., GREENLEE AND EMFINGER, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Following a jury trial, Willis Murray was convicted of statutory rape and sentenced
to serve thirty years in the custody of the Department of Corrections. On appeal, Murray
argues that the trial judge erred by overruling a hearsay objection and by denying his requests
for the victim’s counseling records. Murray also argues that his trial counsel provided
ineffective assistance. We find no reversible error and affirm.
FACTS AND PROCEDURAL HISTORY ¶2. B.L.S.1 was thirteen years old in 2013 when she met Murray online and began
communicating with him. Murray, who was then forty-six or forty-seven years old, initially
used a fake name and posed as a teenager, but he eventually revealed his true name and age
to B.L.S. Murray persuaded B.L.S. to send him nude photographs and engage in sexually
explicit video chats. B.L.S. considered their relationship to be a “dating” relationship.
¶3. B.L.S. testified that Murray, who lived in Texas, drove to Rankin County, Mississippi
to visit her for the first time in December 2015. According to B.L.S., the purpose of
Murray’s visit was “to have sex.” Murray entered B.L.S.’s room through her bedroom
window around 2 a.m., and they engaged in oral sex and sexual intercourse. Murray left
through the same window around 6 a.m. and returned to his car, which he had parked nearby.
The next day, B.L.S. went to school for a half-day because she had an exam. After school,
B.L.S. drove her family’s golf cart to the neighborhood pool house to meet Murray, who was
waiting in his car. After they had sex in Murray’s car, Murray drove back to Texas. B.L.S.
could not recall the exact dates of Murray’s visit, but she was certain that it occurred prior
to her sixteenth birthday. B.L.S. turned sixteen during the last week of December.
¶4. B.L.S. testified that Murray drove from Texas to Mississippi to visit her six or seven
times in 2016, and they continued to have sex in her house or his car. On November 17,
2016, B.L.S.’s mother, E.S., discovered Murray in B.L.S.’s bedroom. E.S. tried to detain
Murray while her son called the police, but Murray escaped before the police arrived.
1 Initials are used to protect the identity of the minor victim.
2 ¶5. Investigator A.J. DiMartino of the Rankin County Sheriff’s Department examined
B.L.S.’s cell phone and found a text message from “Murray” stating that he had been pulled
over by the Pearl Police Department around 11:30 p.m. on November 16, 2016. Using that
information, the Pearl Police Department confirmed Murray’s identity. B.L.S. told
DiMartino that she and Murray had engaged in sexual intercourse beginning in December
2015—prior to her sixteenth birthday.
¶6. A Rankin County grand jury indicted Murray for statutory rape for having sexual
intercourse with B.L.S. while she was fifteen years old.2 Murray was later taken into custody
in Texas and extradited to Mississippi. DiMartino interviewed Murray after he was
extradited. According to DiMartino, Murray admitted that in 2013, he began communicating
with B.L.S. through Kik, a messaging app. DiMartino testified that Murray also admitted
that he drove to Mississippi to see B.L.S. in 2015 and that he and B.L.S. began having sex
in 2016. However, Murray told DiMartino that he and B.L.S. did not have sex prior to her
sixteenth birthday.
¶7. At trial, DiMartino, E.S., and B.L.S. testified. In addition, a digital forensic
investigator for the Rankin County Sheriff’s Department testified regarding his examination
of B.L.S.’s phone, which recovered hundreds of text messages between B.L.S. and Murray.
2 Miss. Code Ann. § 97-3-65(1)(a) (Rev. 2015) (“The crime of statutory rape is committed when: (a) Any person seventeen (17) years of age or older has sexual intercourse with a child who: (i) Is at least fourteen (14) but under sixteen (16) years of age; (ii) Is thirty- six (36) or more months younger than the person; and (iii) Is not the person’s spouse . . . .”).
3 However, all the text messages were from 2016—after B.L.S.’s sixteenth birthday. B.L.S.
testified that she and Murray previously communicated via Kik and video chats. B.L.S. also
testified that the phone she turned over to law enforcement was not the same phone she had
throughout her relationship with Murray, although it is not clear when she changed phones
or what became of her prior phone(s). Murray did not testify or call any witnesses. Murray
rested his case after introducing timecard reports from his employer showing the dates and
times he was at work in Texas during December 2015. Those records were admitted by
stipulation.
¶8. The jury found Murray guilty of statutory rape, and the court sentenced him to serve
thirty years in the custody of the Department of Corrections. Murray filed a motion for
judgment notwithstanding the verdict or a new trial, which was denied, and a notice of
appeal. On appeal, Murray argues that the trial judge erred by overruling a hearsay objection
and by denying him access to B.L.S.’s counseling records. Murray also argues that his trial
counsel provided ineffective assistance by not requesting an alibi instruction, by not
objecting to hearsay, by not requesting a limiting instruction, and by failing to follow proper
procedures for requesting B.L.S.’s counseling records.
ANALYSIS
I. Hearsay
¶9. Murray argues that the trial judge erred by overruling his hearsay objection and
allowing E.S. to testify about a neighbor’s out-of-court statement. E.S. testified about a day
4 when she returned home from work early, and B.L.S. “quickly met [her] in the kitchen” and
seemed “anxious.” B.L.S. asked E.S. if she could take the family golf cart out, and E.S.
agreed. E.S. testified that shortly after B.L.S. left, a neighbor knocked on her front door.
When E.S. began to testify about what the neighbor said, Murray objected, and the trial judge
sustained the objection. However, the judge reversed himself after the prosecutor stated the
testimony was “not offered for the truth of the matter asserted but [to explain] what [E.S.]
did next.” The judge instructed the jurors that they could consider the neighbor’s statement
to explain why E.S. did what she did next but “not for the truth of the matter asserted.” E.S.
then testified that her neighbor told her that he had seen an “older” “African American man
dressed in somewhat of teenage clothing” (“sagging blue jeans”) “coming from the back of
[E.S.’s] house.”3 E.S. and the neighbor then drove around the neighborhood looking for the
man and for B.L.S., but they did not see either of them. When B.L.S. returned home later,
E.S. told B.L.S. what their neighbor had said and questioned her about it. B.L.S. responded
that no one had been in their house and that she did not “know what [E.S. was] talking
about.” E.S. testified that B.L.S. was either fourteen or fifteen years old at the time of the
incident.
¶10. On appeal, the State argues that the neighbor’s statement was not hearsay because it
was not offered to prove the truth of the matter asserted but only to explain why E.S. did
3 B.L.S. is also African American. The record does not identify the race of the other members of B.L.S.’s family or the neighbor.
5 what she did next—i.e., she searched the neighborhood for the man and B.L.S. In the
alternative, the State argues that the neighbor’s statement was admissible as a “present sense
impression.” MRE 803(1). “We employ an abuse-of-discretion standard when reviewing
claims that the trial judge erred by admitting hearsay.” White v. State, 48 So. 3d 454, 456
(¶9) (Miss. 2010) (footnote omitted). “Admission or suppression of evidence is based on the
discretion of the trial court, but the trial court’s discretion must be consistent with the
Mississippi Rules of Evidence.” Franklin v. State, 136 So. 3d 1021, 1028 (¶22) (Miss.
2014). “Reversal is required only where abuse of that discretion can be shown to cause
prejudice to the defendant.” Id.
¶11. “Hearsay” is “a statement that: (1) the declarant does not make while testifying at the
current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter
asserted in the statement.” MRE 801(c). “Hearsay is not admissible except as provided by
law.” MRE 802.
¶12. In support of its argument that the neighbor’s statement to E.S. was not hearsay, the
State cites Dunn v. State, 111 So. 3d 114 (Miss. Ct. App. 2013). In Dunn, the trial judge
allowed a mother to testify that her twelve-year-old son told her that a man driving a van had
offered him money in exchange for oral sex. Id. at 115 (¶3). The mother immediately went
to look for the van, found it within minutes parked nearby, wrote down its license plate
number, and reported the incident to police. Id. The police discovered that the van belonged
to the defendant, and the son picked the defendant out of a photographic lineup. Id. at (¶4).
6 On appeal, this Court held that the mother’s testimony was properly admitted because the
son’s statement was excepted from the hearsay rule as either an excited utterance or a
present-sense impression. Id. at 115-16 (¶6) (citing MRE 803(1)-(2)). In the alternative, this
Court held that the testimony “could also be considered not hearsay” because it “was offered
to show the effect of [the son’s] statements on [the mother] and her actions thereafter.” Id.
at 116 (¶7).
¶13. In this case, the State argues that E.S.’s testimony about her neighbor’s statement was
not hearsay because it was offered for a similar purpose—to explain why E.S. went looking
for the man reportedly seen leaving her house and B.L.S. However, Dunn is inapposite. In
Dunn, the witness’s “actions thereafter” were relevant because she found the van, which led
to the defendant’s identification. Here, in contrast, E.S.’s “actions thereafter”—looking for
a man but not finding him—were irrelevant. See MRE 401. The only logically relevant
purpose for this testimony was to show that a man (Murray) had been seen leaving B.L.S.’s
house.4 Thus, the neighbor’s out-of-court statement was indeed offered “to prove the truth
of the matter asserted in the statement,” making it hearsay. MRE 801(c).
¶14. As noted above, the State also argues that even if it was hearsay, the neighbor’s
statement was admissible under the present-sense-impression exception to the hearsay rule.
MRE 803(1). However, the State did not make this argument at trial, and the record does not
4 As discussed below, in her subsequent testimony, B.L.S. confirmed that the man the neighbor saw was Murray.
7 establish a foundation for admitting the neighbor’s statement under this exception. Under
Rule 803(1), “[a] statement describing or explaining an event or condition, made while or
immediately after the declarant perceived it” is admissible as an exception to the hearsay rule.
Id. This exception “is based on the theory that the contemporaneous occurrence of the event
and the statement render it unlikely that the declarant made a deliberate or conscious
misrepresentation.” Id. advisory committee note. “Spontaneity is the essential factor” in
determining whether a statement is admissible under this exception. Id. But in the present
case, we do not know how much time elapsed between the event the neighbor witnessed and
his subsequent conversation with E.S. Nor is there any evidence to establish the
“spontaneity” of the neighbor’s statement. Accordingly, we cannot affirm the trial judge’s
ruling on this alternative ground, which was neither raised nor considered at trial.
¶15. Nonetheless, “[w]e will not reverse a conviction based on a harmless error.”
Chaupette v. State, 136 So. 3d 1041, 1047 (¶12) (Miss. 2014). “For a case to be reversed on
the admission or exclusion of evidence, it must result in prejudice and harm or adversely
affect a substantial right of a party.” Jackson v. State, 245 So. 3d 433, 439 (¶32) (Miss.
2018) (quoting Pham v. State, 716 So. 2d 1100, 1102 (¶12) (Miss. 1998)).
¶16. E.S. testified that the incident involving the neighbor occurred on an unspecified date
when B.L.S. was fourteen or fifteen years old. However, B.L.S. testified that the incident
occurred in 2016 when she was sixteen, the legal age of consent. Murray was indicted and
convicted for having sex with B.L.S. in December 2015, when she was still fifteen years old.
8 Thus, the critical dispute at trial was whether Murray first had sex with B.L.S. in December
2015 (as B.L.S. testified) or only in 2016 (as Murray maintained). B.L.S.’s detailed
testimony about Murray’s visit to Mississippi in December 2015 (his first such visit) makes
clear that the incident involving the neighbor did not occur during that visit. Murray
admitted that he had sex with B.L.S. after her sixteenth birthday, so the fact that a neighbor
may have seen him leaving her house after her sixteenth birthday was essentially cumulative
evidence of non-criminal activity that Murray admitted. Under these circumstances, we
conclude that the admission of this hearsay was harmless and does not require reversal.
¶17. On appeal, Murray also argues that this hearsay testimony violated the Confrontation
Clause. U.S. Const. amend. VI. However, Murray did not raise this objection at trial, and
“[a] general hearsay objection is insufficient to preserve an alleged Confrontation Clause
violation for appellate review.” Morment v. State, 315 So. 3d 475, 482-83 (¶31) (Miss. Ct.
App. 2020) (quoting Smith v. State, 235 So. 3d 1441, 1445 (¶12) (Miss. Ct. App. 2018)), cert.
denied, 314 So. 3d 1162 (Miss. 2021). Murray’s “confrontation claim is therefore
procedurally barred.” Id. at 483 (¶31).
¶18. Moreover, Murray’s Confrontation Clause claim is without merit. The Confrontation
Clause “only applies to statements that are ‘testimonial.’” Corbin v. State, 74 So. 3d 333,
338 (¶13) (Miss. 2011) (quoting Crawford v. Washington, 541 U.S. 36, 68 (2004)).
“Testimonial statements are those reasonably expected to be used ‘prosecutorally,’ such as
confessions, affidavits, custodial police examinations, and depositions.” Rubenstein v. State,
9 941 So. 2d 735, 754 (¶46) (Miss. 2006) (quoting Crawford, 541 U.S. at 51-52). Here, the
declarant was not making a testimonial statement when he simply told a neighbor that he had
seen a man leaving her house. Cf. Giles v. California, 554 U.S. 353, 376 (2008) (stating that
the Confrontation Clause would not apply to “[s]tatements to friends and neighbors about
[domestic] abuse and intimidation” because such statements are not testimonial); see also
State v. Mizenko, 127 P.3d 458, 462 (Mont. 2006) (“[W]hen a declarant speaks with her
neighbor across the backyard fence, she has much less of an expectation that the government
will make prosecutorial use of those statements.”). Accordingly, E.S.’s testimony about the
conversation does not implicate the Confrontation Clause.
II. Counseling Records
¶19. At a motion hearing fourteen days prior to trial, Murray’s trial counsel made an ore
tenus request to compel the State to disclose the name of “a counselor that [B.L.S.] was
having counselor appointments with.” Murray intended to use this information to attempt
to subpoena B.L.S.’s counseling records. Murray alleged that B.L.S. was “sexual[ly]
promiscu[ous]” and had been in “multiple relationships with different people.” He further
argued that B.L.S.’s counseling records might provide evidence of such relationships.
Murray seemed to argue that B.L.S.’s other alleged sexual relationships were relevant
because B.L.S. might have been confused about which person she had sex with in December
2015. In response, the State argued that B.L.S. was “not waiving her medical privilege”; that
the State did “not intend to call the counselor”; that the State did not have B.L.S.’s
10 counseling records; and that the records were not relevant. The trial judge denied Murray’s
request. The judge stated that because B.L.S. had “not waiv[ed] her privilege,” the records
were “not open to [Murray].” The judge stated that “[d]efendants can’t just . . . go take a
search through the counseling records of alleged victims of sexual assault.”
¶20. Prior to trial, the State also made an ore tenus motion in limine to exclude any
evidence of any prior sexual conduct of B.L.S. because Murray had not filed a motion
pursuant to Mississippi Rule of Evidence 412(c). The trial judge granted the State’s motion.
During trial, the judge sustained multiple objections by the State based on his limine ruling
and Rule 412.
¶21. On appeal, Murray argues that the trial judge erred by ruling that B.L.S.’s counseling
records were privileged because there was no showing that B.L.S.’s “counselor” was a
licensed physician or psychologist, and the privilege under Mississippi Rule of Evidence 503
does not extend to a licensed social worker or the like. See Touchstone v. Touchstone, 682
So. 2d 374, 379-80 (Miss. 1996); see also Miss. Code Ann. § 13-1-21 (Rev. 2019) (providing
a privilege for certain “communications to a physician” and to certain other medical
professionals); Miss. Code Ann. § 73-31-29 (Supp. 2020) (providing a privilege for certain
communications to a “psychologist”). Murray points out that a licensed social worker has
a general obligation to maintain clients’ confidentiality but may be required to testify in a
trial or other proceeding concerning an alleged crime against a minor. Miss. Code Ann. § 73-
53-29(c) (Rev. 2017). Murray also notes that even evidence that is otherwise privileged
11 under Rule 503 “may be [discoverable] and admissible in limited situations where [it] is
relevant, material and exculpatory.” Cox v. State, 849 So. 2d 1257, 1272 (¶52) (Miss. 2003).
Thus, Murray argues that the trial judge erred by denying his ore tenus motion without first
inquiring into the identity of B.L.S.’s counselor or the content of the counselor’s records.
See id. at (¶53) (suggesting that the trial court conduct an in camera review of privileged
records to determine whether they contain information that is material, relevant, and
exculpatory).
¶22. We agree with Murray that we cannot know whether B.L.S.’s counseling records were
privileged without knowing whether her counselor was a licensed physician, a psychologist,
a social worker, or something else. Therefore, on the record before us, we cannot determine
whether the Rule 503 privilege applies.
¶23. Nonetheless, we conclude that the trial judge properly denied Murray’s ore tenus
request to compel the State to disclose the counselor’s identity. To begin with, the State is
under no general duty to disclose the name of a victim’s counselor. See MRCrP 17.2
(mandating certain disclosures by the State upon written request by the defendant). More
important, it is clear that the evidence Murray sought to discover—evidence of B.L.S.’s
alleged “sexual promiscuity” and other sexual relationships—was inadmissible under
Mississippi Rule of Evidence 412. Under Rule 412, “evidence of a victim’s past sexual
behavior” “is not admissible in a criminal case involving an alleged sexual offense.” MRE
412(a). This general rule is subject to limited exceptions, but a defendant who intends to
12 offer evidence in reliance on one or more of those exceptions must
(A) make a motion accompanied by an offer of proof describing the evidence;
(B) file the written motion and offer of proof at least 15 days before trial, unless the court sets a later time—including during trial—after determining:
(i) the evidence is newly discovered and with reasonable diligence could not have been discovered earlier; or
(ii) the issue is newly arisen; and
(C) serve all parties and the victim.
MRE 412(c)(1). Here, Murray never filed a “written motion” under Rule 412, and his oral
request was made only fourteen days prior to trial. Id. In addition, Murray failed to show
that the evidence he sought was “newly discovered” or involved any “newly arisen” issue.
Id. Indeed, the alleged relationships between B.L.S. and other men were discussed in text
messages between Murray and B.L.S. more than four years prior to trial. Yet, Murray failed
to file a timely pretrial motion under Rule 412.
¶24. This Court addressed a similar issue in Roberson v. State, 61 So. 3d 204, 222-25
(¶¶25-30) (Miss. Ct. App. 2010), cert. denied, 62 So. 3d 974 (Miss. 2011), cert. denied, 565
U.S. 983 (2011). In Roberson, the defendant, who was charged with sexual battery of a
child, filed a pretrial motion asking the trial judge to compel the youth court to release
records related to the victim. Id. at 222 (¶25). The information the defendant sought to
discover was subject to Rule 412, but the defendant failed to file a timely motion under Rule
13 412. Id. at 210-11, 221-22 (¶¶19, 23). The trial judge denied the defendant’s motion to
compel, and this Court affirmed. Id. at 222-25 (¶¶25-30). We held that the trial judge
properly denied the defendant’s motion because “even if the youth court had produced . . .
[the victim’s] records, [the defendant] still would have not been able to use them because he
failed to comply with the requirements of Rule 412.” Id. at 224 (¶30). In this case, the trial
judge properly denied Murray’s ore tenus request to identify B.L.S.’s counselor for the same
reason—even if Murray could have obtained B.L.S.’s counseling records, he could not have
used them because he failed to comply with the requirements of Rule 412. Id.
III. Ineffective Assistance of Counsel
¶25. Murray argues that his trial counsel provided ineffective assistance by failing to
request an alibi instruction, failing to object to hearsay, failing to request a limiting
instruction, and failing to seek access to B.L.S.’s counseling records in a timely manner. We
address these arguments in turn below.
¶26. A claim of ineffective assistance of counsel may be asserted on direct appeal when
the defendant is represented by appellate counsel who did not represent him at trial. Ellis v.
State, 281 So. 3d 1092, 1099 (¶20) (Miss. Ct. App. 2019). “Generally,” however,
“ineffective-assistance-of-counsel claims are more appropriately brought during
post-conviction proceedings.” Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss. 2020)
(brackets omitted). “This Court will address such claims on direct appeal when [1] the
record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties
14 stipulate that the record is adequate and the Court determines that the findings of fact by a
trial judge able to consider the demeanor of witnesses, etc., are not needed.” Id. (quotation
marks and other brackets omitted). In addition, we may address such “claims on direct
appeal when the record affirmatively shows that the claims are without merit.” Id.
¶27. In the present case, the State does not stipulate that the record is sufficient to review
Murray’s claims. Accordingly, we may address Murray’s claims only if the record
“affirmatively demonstrates ineffectiveness of constitutional dimensions” or, in the
alternative, shows that his “claims are without merit.” Id. “If the record is not sufficient to
address the claims on direct appeal,” then we will “dismiss the claims without prejudice,
preserving the defendant’s right to raise the claims later in a properly filed motion for
post-conviction relief.” Sandlin v. State, 156 So. 3d 813, 819 (¶20) (Miss. 2013).
¶28. To prevail on a claim of ineffective assistance, the defendant must show both (1) “that
counsel’s performance was deficient”—i.e., “that counsel made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”—and (2) that he was prejudiced as a result—i.e., “that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). Stated differently, “[t]he defendant
must show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. at 694. The defendant
15 “bears the burden of proving both prongs of Strickland.” Ravencraft v. State, 989 So. 2d
437, 443 (¶31) (Miss. Ct. App. 2008). “If either prong is not met, the claim fails.” Havard
v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006).
¶29. “[A] court must indulge a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Therefore,
“the defendant must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. (quotation marks omitted). “Our
Supreme Court has stated that, ‘with respect to the overall performance of the attorney,
counsel’s choice of whether or not to file certain motions, call witnesses, ask certain
questions, or make certain objections falls within the ambit of trial strategy and cannot give
rise to an ineffective assistance of counsel claim.’” Pinter v. State, 221 So. 3d 378, 386 (¶19)
(Miss. Ct. App. 2017) (brackets omitted) (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27)
(Miss. 2004)).
A. Failure to Request an Alibi Instruction
¶30. Murray’s indictment alleged that he committed the offense of statutory rape between
December 1, 2015, and a day in the last week of December 2015. At trial, B.L.S. testified
that she first had sex with Murray after he entered her room through her bedroom window
around 2 a.m. She testified that the following day, she went to school for a half-day for an
exam and then returned home and had sex with Murray again around noon. She stated that
Murray drove back to Texas after they had sex. B.L.S. believed these events occurred
16 sometime after December 8, 2015, although she was uncertain of the exact date. In an effort
to establish an alibi, Murray offered time records from his employer showing that he had
been at work in Texas until 3:13 p.m. on Wednesday, December 9, 2015, but he did not work
on Thursday or Friday (December 10-11, 2015). The records also showed that Murray did
not work on certain days during the following week. Murray did not testify at trial. Thus,
his time records, which were admitted by stipulation, and B.L.S.’s testimony were the only
evidence of his whereabouts in December 2015. On appeal, Murray argues that his trial
counsel was ineffective because they5 failed to request an alibi instruction.
¶31. “Traditionally, trial counsel’s decision regarding whether to request certain jury
instructions is considered trial strategy.” Wallace v. State, 166 So. 3d 520, 525 (¶17) (Miss.
Ct. App. 2014) (quoting Taylor v. State, 109 So. 3d 589, 596 (¶27) (Miss. Ct. App. 2013)).
“Decisions that fall within the realm of trial strategy do not amount to ineffective assistance
of counsel.” Pittman v. State, 121 So. 3d 253, 258 (¶14) (Miss. Ct. App. 2013).
¶32. Moreover, “[t]he law relating to an alibi defense involves something more than a
simple denial by the defendant that he was present at the precise time the crime was
committed.” Sims v. State, 213 So. 3d 90, 101 (¶43) (Miss. Ct. App. 2016) (quoting Owens
v. State, 809 So. 2d 744, 746 (¶7) (Miss. Ct. App. 2002)). Rather, “the defense requires
evidence that the defendant’s location at the relevant time was so removed therefrom as to
render it impossible for him to be the guilty party.” Id. (emphasis added) (quotation marks
5 Murray was represented at trial by two attorneys.
17 omitted). Thus, the trial court is not required to give an alibi instruction if, “based on the
version of events contended for by the defense, it would remain within the realm of physical
possibility for the defendant to have committed the crime.” Id.
¶33. Here, we cannot say that trial counsel provided ineffective assistance by not
requesting an alibi instruction. To begin with, Murray was not entitled to an alibi instruction
because he failed to present any evidence that, if believed, would have made it impossible
for him to have committed the crime. To the contrary, the only evidence Murray
presented—his time records—showed that it was possible for him to have committed the
crime as B.L.S. described. In addition, given the relative weakness of Murray’s alibi
evidence, trial counsel’s decision not to request an alibi instruction was within the realm of
reasonable trial strategy.6 Accordingly, this decision does not amount to constitutionally
ineffective assistance of counsel. See Hamlin v. State, 306 So. 3d 843, 844-45 (¶¶1-9) (Miss.
Ct. App. 2020) (holding that trial counsel’s failure to request an alibi instruction was not
ineffective assistance because the defendant’s own evidence showed that he was present in
the county on three separate occasions during the time period alleged in his indictment for
statutory rape and sexual battery).
B. Failure to Object to Hearsay
¶34. Murray next argues that his trial counsel provided ineffective assistance by failing to
6 Trial counsel served the State with a notice of alibi, which was based on Murray’s work records, but evidently decided not to request an alibi instruction at trial.
18 object to Investigator DiMartino’s hearsay testimony regarding B.L.S.’s statements about her
relationship with Murray and Murray’s December 2015 visit to Mississippi. Murray asserts
that DiMartino’s testimony was “very damaging” and that there was no “strategic” reason
not to object to it.
¶35. Trial counsel’s decision not to object to DiMartino’s testimony does not rise to the
level of constitutionally ineffective assistance. DiMartino testified that B.L.S. told him she
could not recall the exact date of the incident but that she knew it occurred in December 2015
and before her sixteenth birthday. In this respect, DiMartino’s hearsay testimony was
consistent with Murray’s defense. Murray challenged B.L.S.’s credibility based on her
inability to recollect the date of the alleged offense and the lack of evidence to corroborate
a sexual encounter between B.L.S. and Murray in December 2015. In addition, trial counsel
later cross-examined B.L.S. about her prior statements to DiMartino. “We presume that
decisions not to object to testimony were strategic if they fairly can be characterized as such.”
Shinn v. State, 174 So. 3d 961, 967 (¶15) (Miss. Ct. App. 2015). In this case, trial counsel’s
decision not to object to DiMartino’s testimony can fairly be characterized as strategic.
Therefore, it cannot support an ineffective-assistance claim.
¶36. We also conclude that Murray fails to show that he was prejudiced by the lack of an
objection to DiMartino’s testimony. B.L.S. testified at trial and was subject to full cross-
examination, and there is no “reasonable probability” that the verdict would have been
different if counsel had objected to DiMartino’s testimony. Strickland, 466 U.S. at 694.
19 C. Failure to Request Limiting Instruction
¶37. Next, Murray argues that his trial counsel was ineffective because they failed to
request a “correct limiting instruction” regarding E.S.’s hearsay testimony about her
neighbor’s out-of-court statement. As discussed above, the trial judge did give the jury a
limiting instruction, but on appeal Murray argues that the instruction was “incomplete.” The
judge instructed the jurors as follows:
All right. Ladies and Gentlemen, sometimes evidence is allowed not for the truth of the matter asserted. So, for example, if Juror No. 1 told Juror No. 2 something, and Juror No. 2 told Juror No. 3 something, it’s not for the truth of what Juror No. 1 said. It’s to explain why Juror No. 2 got up and said something to Juror No. 3. Does everybody understand that? I know that’s a long way around, but it will be admitted not for the truth of the matter asserted. You may proceed.
¶38. In general, “the decision of whether or not to request a limiting instruction falls under
the umbrella of trial strategy.” Herrington v. State, 102 So. 3d 1241, 1246 (¶18) (Miss. Ct.
App. 2012). Indeed, “[t]he [Mississippi] Supreme Court has recognized on a number of
occasions that the defendant may not want such an instruction because it may actually ‘focus
the jury’s attention’ on the potentially prejudicial testimony.” Curry v. State, 202 So. 3d 294,
299 (¶16) (Miss. Ct. App. 2016) (quoting Tate v. State, 912 So.2d 919, 928 (¶28) (Miss.
2005)). Here, it was reasonable trial strategy for counsel not to request a further limiting
instruction. Moreover, for essentially the same reasons that the admission of the testimony
was harmless error (see supra Part I), Murray cannot show that he was prejudiced by the lack
of an additional limiting instruction.
20 D. Failure to Make a Timely Request for B.L.S.’s Counseling Records
¶39. Finally, Murray argues that his trial counsel provided ineffective assistance by failing
to make a timely and proper request for B.L.S.’s counseling records. See supra Part II. By
its nature, this particular claim depends on Murray’s speculation about evidence that might
have been discovered in B.L.S.’s counseling records—evidence that is not part of the record
in this appeal. Accordingly, the record on appeal is not sufficient to address this claim.
Therefore, we dismiss this claim without prejudice to Murray’s right to raise the claim in a
properly filed motion for post-conviction relief.7 See, e.g., McBeath v. State, 271 So. 3d 579,
586-87 (¶24) (Miss. Ct. App. 2018) (holding that an ineffective-assistance claim “alleg[ing]
that counsel failed to discover evidence that is not in the record” could not be decided on
direct appeal); Johnson v. State, 191 So. 3d 732, 736 (¶14) (Miss. Ct. App. 2015) (holding
that an ineffective-assistance claim that “trial counsel failed to investigate and present
available evidence” could not be decided on direct appeal).
CONCLUSION
¶40. In summary, we conclude that the admission of E.S.’s hearsay testimony regarding her
neighbor’s out-of-court statement was harmless error and that the trial judge did not err by
denying Murray’s ore tenus request to compel the State to disclose the identity of B.L.S.’s
counselor. We also conclude that Murray’s ineffective-assistance-of-counsel claims are
7 Murray may not file such a motion in the circuit court without permission from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Rev. 2020).
21 without merit, with the exception of his claim based on counsel’s failure to make a timely or
proper request for B.L.S.’s counseling records. That particular ineffective-assistance claim
is dismissed without prejudice because the record on appeal is insufficient to address it.
Accordingly, Murray’s conviction and sentence are AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.