Friley v. State

366 So.3d 959

Raymond FRILEY a/k/a Raymond Friley, Jr., Appellant v. STATE of Mississippi, Appellee

NO. 2021-KA-00791-COA

Court of Appeals of Mississippi.

June 27, 2023

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK, RAYMOND FRILEY (PRO SE).

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: DANIELLE LOVE BURKS

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Raymond Friley Jr. was charged with one count of felony child abuse under Mississippi Code Annotated section 97-5-39(2)(a)(iii) (Rev. 2014). The indictment alleged that Friley "did intentionally strangle, choke, smother, or interfere with the breathing of [Jane], a child, less than one (1) year old." ¹ A Warren County Circuit Court jury found Friley guilty of the charge, and the trial court sentenced him to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). ² The court denied Friley's posttrial motion.

¶2. Appealing the verdict, Friley's appellate counsel raises issues involving the trial court's admission of certain testimony and other evidence. As to these issues, we find no error and affirm the judgment. This Court permitted Friley to file a pro se supplemental "brief" ³ in which he asserts various claims of ineffective assistance of counsel against his trial and appellate attorneys. We find Friley's claims are procedurally barred because his brief does not comply with the requirements of Mississippi Rule of Appellate Procedure 28. Additionally, finding the record is not sufficient to address the claim of ineffective assistance of counsel on direct appeal, we dismiss Friley's claim without prejudice to his right to seek permission from the Mississippi Supreme Court to file a motion for post-conviction collateral relief.

FACTS AND PROCEDURAL HISTORY

¶3. Friley lived at his parent's home. Friley's mother Mary would occasionally babysit her great-granddaughter Jane in her home while Jane's mother, Stephanie Sanchez, was at work. In March 2017, five-month-old Jane came home from Mary's house with an unexplained rash on her face. Two years later, Jane began exhibiting strange, inappropriate behaviors, such as "put[ting] plastic [grocery] bags on her head" and tightening them. Jane would also "hump things" like plastic blow-up toys and other inflatables. Concerned, Stephanie recalled something her father had told her about Friley's past and the child's unexplained rash from 2017; so she searched Friley's room. There she discovered "every size plastic"—from "big industrial rolls rolled up" to "sheet plastic, bubble wrap, ziplock bags in sizes [she'd] never seen before." Stephanie also found plastic "floaties" and children's toys. She tried to access Friley's laptop computer, but it was password-protected. Stephanie did not tell anyone of her suspicions at that time, but she stopped sending Jane to Mary's house.

¶4. In June 2019, Stephanie went to Mary's to visit her dying grandfather, but neither he nor Friley were home at the time. Stephanie went to use Friley's bathroom and noticed that his laptop was open and unlocked. She looked through files on his computer "because [she] thought that would probably be [her] only chance to." On Friley's laptop, Stephanie discovered pictures and videos of Jane from 2017. These photos showed Jane as a baby in Friley's bed with an oxygen or nebulizer-type mask on her face, Jane with oxygen tubing in her nose and mouth, and Jane crying while zipped up in a plastic comforter-type bag. In one video, Jane, who had no medical reason to need oxygen or breathing treatments, had tubing in her nose. Another video showed Jane with a ziplock bag tied off to her head with no air in it, and she appeared to be unconscious. Stephanie recorded these photos and videos with her cell phone.

¶5. Extremely upset, Stephanie immediately told Mary and her stepmother what she had found, and she contacted the Warren County Sheriff's Department. A search warrant was executed, and law enforcement collected numerous plastic and electronic items from Friley's room. These items included: comforter bags, ziplock bags, baby's plastic jackets, breathing machines, a USB drive, a Nikon camera, a laptop computer, and a piece of paper containing a "[s]exual fantasy" story involving forcible use of plastic. Friley's laptop and the USB drive were analyzed by the Mississippi Attorney General's Office. On the USB drive, the Attorney General's office recovered videos and images of Jane, as well as hundreds of stock photos of persons with clear tubing and breathing masks on their faces.

¶6. Friley was arrested and charged with felony child abuse. A jury trial was held June 14-16, 2021. Stephanie testified to the events leading up to Friley's arrest as stated above. She further noted that Friley had treated her daughter differently from other kids in the family, buying her "special things." The photos and video that Stephanie recorded on her phone from Friley's laptop were introduced into evidence.

¶7. Wendy Staggs, Friley's sister and Stephanie's stepmother, testified that Friley "didn't want anyone in his room at all." She said that Stephanie called her in June 2019, "hysterical, crying." Stephanie told Wendy that "[s]he found pictures of [Jane] in plastic bags" on Friley's computer. Wendy identified the photos of Jane from Stephanie's phone that Stephanie had shown her.

¶8. Detective Sam Winchester testified that he received a phone call on June 7, 2019, "concerning possible abuse ... [o]f a child." He executed the search warrant on Friley's room, and law enforcement seized Friley's computer, cell phone, a "jump drive," and camera, as well as plastic toys and "children's underwear." Law enforcement also recovered an oxygen mask and tubing similar to those depicted in the photos of Jane.

¶9. Investigator Todd Dykes assisted in collecting the evidence from Friley's room. The investigator worked with the Attorney General's (AG) task force on crimes against children, and he sent Friley's laptop to the AG's "Cyber Crime" unit for forensics. Investigator Dykes also testified that Friley had "a previous conviction for molestation," which was "kind of similar" to the present case because the young female who had been attacked "said that a pool toy and a plastic bag were placed over her face while he assaulted her."

¶10. Friley's mother, Mary, testified that Friley did not want people in his room and had tried to put a lock on his door, but she did not allow him to use it. She recalled discussing Jane's previous facial rash with Stephanie and Wendy in 2017. When Mary saw the photos Stephanie recorded, she told Stephanie to "go straight to the detective at the Sheriff Office and press charges." On cross-examination, Mary said that her husband had a C-pap machine with a portable oxygen tank, but she clarified that Friley had no need for oxygen and that she had never seen him wearing any oxygen mask or tubing.

¶11. Ashley Boldig, an investigator for the AG's office, was admitted as an expert in computer forensics. She testified that there were images of Jane on Friley's computer. Investigator Boldig also discovered hundreds of stock images of children wearing "breathing masks or the clear tubing on their faces." Some of the photos were "unallocated" (deleted). She noted that Friley's internet browser history showed that he had searched the "Mississippi Criminal Code" on Justia Law for child pornography and child abuse statutes and penalties. Friley's search engine activity included searches for "Plastic Smother Girl, Plastic Bubble Girl, Plastic Suffercation [sic] Warning, and Plastic Bag Child." Further, his YouTube searches included "Trash Bag Girl, Garbage Bag Girl, Sex in a Garbage Bag, Girl in Trash Bag, Getting Tired in a Garbage Bag, and the Trash Bag Challenge." Investigator Boldig testified that there was access to a Yahoo email address entitled "Clear Plastic Oxygen Mask at Yahoo Dot Com" and "access to Outlook Mail for Raymond Friley."

¶12. Lastly, the State offered testimony from "Christy," ⁴ who said Friley sexually assaulted her in 1999 when she was around eight or nine years old. Christy stated that Friley was working on her grandmother's pool and came into the pool house while Christy was in the shower. Friley put a pool float and a blown-up ziplock bag against her face and then sexually assaulted her, digitally. ⁵

¶13. The State rested, and the trial court denied the defense's motion for a directed verdict. The court also denied with prejudice a separate pro se motion to dismiss that Friley had insisted his attorney file on his behalf on the second day of trial. Friley was convicted and sentenced to a term of life imprisonment in the custody of the MDOC.

DISCUSSION

I. Whether the trial court erred in allowing testimony about prior bad acts.

¶14. Before trial, the defense filed a motion to exclude evidence of Friley's prior conviction from 2000. The trial court denied the motion, finding that the evidence was admissible to show pattern and motive. Friley's former victim Christy testified that Friley had cornered her in the shower with a pool float and then placed a ziplock bag over her face while sexually assaulting her.

¶15. Friley contends that it was reversible error for the State "to impermissibly insert sexual violence into the case" because "there was no allegation that Friley sexually assaulted Jane—the sole allegation was physical abuse." Alternatively, Friley asserts that Christy's testimony should have been limited only to Friley's putting a pool float over her face, not the sexual assault.

¶16. We review a trial judge's decision to admit or exclude evidence under an abuse-of-discretion standard. Pustay v. State , 221 So. 3d 320, 345 (¶68) (Miss. Ct. App. 2016) (citing Hargett v. State , 62 So. 3d 950, 952 (¶7) (Miss. 2011) ). That being said, "[a] trial judge enjoys a great deal of discretion as to the relevancy and admissibility...