RICKY FRANKLIN a/k/a RICKY LEVERT FRANKLIN a/k/a RICKY L. FRANKLIN
STATE OF MISSISSIPPI
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COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/01/2012. TRIAL JUDGE: HON. JEFF WEILL, SR.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES, BRICE RASHOD WHITE.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ELLIOTT GEORGE FLAGGS.
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ. WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Ricky Franklin appeals a judgment of conviction from the Circuit Court of Hinds County, Mississippi, Second Judicial District. Franklin was convicted on one count of kidnapping and on one count of aggravated assault with a deadly weapon. He was sentenced to thirty years and twenty years, respectively, to run consecutively. A mistrial was entered for one count of forcible rape, and a not-guilty verdict was entered for one count of sexual battery.
¶2. Franklin was denied his motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. He appeals, alleging the following five issues: (1) the trial court erred in refusing to instruct the jury on simple assault as a lesser-included offense of aggravated assault, (2) the trial court erred in allowing improper opinion testimony from numerous witnesses concerning whether a bottle could cause serious bodily injury, (3) the trial court erred in allowing prejudicial hearsay statements that Randolph White allegedly made to police, (4) Franklin's right to a fair trial was violated by inflammatory statements in the prosecution's closing argument, and (5) the trial court erred in denying Franklin's motion to dismiss for violation of his right to a speedy trial. The sufficiency of the evidence regarding the kidnapping and aggravated-assault convictions was not raised on appeal.
¶3. We reverse and remand the conviction of aggravated assault under issue one; therefore we will not discuss the merits of issue two. We affirm the conviction of kidnapping under issues three, four, and five.
STATEMENT OF THE FACTS
¶4. Ricky Franklin and Jessica Nolan met for the first time at a barbeque on the day of the alleged incidents. They were thereafter seen together at Dick's Pool Hall and Richie's One Stop Shop. After leaving the pool hall, Nolan and Franklin went to Franklin's home, where the assault and kidnapping occurred. It is undisputed that Nolan had numerous injuries from the altercation and that blood spatter was found on the floor and walls of the home.
¶5. At trial, Nolan was the State's key witness to the events that transpired. Nolan claimed that Franklin was acting like a " big shot" at the barbeque by handing out money to people, and that he had promised to give her at least one hundred dollars. He had also given her fifty dollars to purchase marijuana. Nolan stated that, while they were at Franklin's house, he tried to give her forty-five dollars, but she rejected the money because he had promised to give her more. She claimed that the money was not for sex, but instead, he merely promised her the money for no reason. After she refused to accept the money, Franklin began to beat her and began to claim that she had stolen his money. Among other allegations, Nolan testified that he raped her several times that night and that he beat her with his fists and a bottle.
¶6. Darrell Davis and Randolph White both testified to going to the home and seeing that Franklin and Nolan had been in a physical altercation. Davis stopped by the home first and alerted White, Franklin's uncle, that he should check on the situation. Both witnesses testified to being concerned with what exactly was taking place between Franklin and Nolan, and it appeared that they had been fighting.
Nolan claimed that she asked both men to help her when they were at the home, but Davis and White both testified that she did not ask them for help. White instructed his sister, Deborah Robinson, to call 911 after Franklin refused to let White take Nolan home. Robinson told the 911 dispatcher that a woman had been beaten and that they could hear it. At trial, Robinson claimed she did not hear anything that night nor did she see Nolan; instead, she was only relaying what her brother had told her. She testified to going to the house with White, but she saw Franklin only, who appeared to have a knot on his forehead.
¶7. The State presented testimony from several of the officers who were present at the scene and entered the home. Testimony described the blood spatter found on the walls and floor and the overall appearance that an altercation had taken place. Testimony revealed that Nolan was found unresponsive on a couch in one of the back rooms. Officers Leggette and Mahaffey were among the testifying officers who were present at the scene.
¶8. Nurse Regina Morgan, who treated Nolan in the emergency room, testified that Nolan had stated she had been beaten with fists and a bottle. Nolan's medical records also reflected this statement. Morgan also testified that Nolan told her Franklin had raped her, choked her, and tried to kill her. Nurse Morgan and Dr. Andrew Anderson, Nolan's treating physician, identified Nolan's injuries: a fractured nose; bruising and swelling of the face, nose, left eye, and bottom lip; abrasions to her right knee, both elbows, and neck; small abrasions to her left cheek; and redness on her right cheek.
¶9. Kathryn Rodgers, a forensic DNA analyst, testified to the blood samples and DNA. Rodgers established that the blood spatter found on the walls and floor was a match to Nolan's blood sample. She provided that one of the liquor bottles from Franklin's home had small splatters of blood on the bottom of the bottle, which matched Nolan's blood, and the DNA on the neck of the bottle could not exclude Franklin's DNA. Rodgers explained that the blood on the bottle could be present from direct contact with Nolan or from the bottle otherwise coming into contact with the blood, such as from blood spatter. She also provided that the DNA on the neck of the bottle could be present from holding the bottle for drinking purposes, from holding it to hit someone, or otherwise.
¶10. Subsequently, a mistrial was entered for the charge of rape, and Franklin was found not guilty of sexual battery. He was found guilty of kidnapping and aggravated assault.
I. Whether the trial court erred in refusing to instruct the jury on simple assault as a lesser-included offense of aggravated assault.
¶11. The trial court's denial of a lesser-included-offense instruction is reviewed de novo. Gilmore v. State, 119 So.3d 278, 286 (Miss. 2013) (citing Downs v. State, 962 So.2d 1255, 1258 (Miss. 2007)). This Court has decided, time after time, that lesser-included-offense instructions should not be " indiscriminately granted; " instead, the jury should not be presented with a lesser-included-offense instruction unless the record provides an " evidentiary basis" for the instruction. Lee v. State, 469 So.2d 1225, 1230 (Miss. 1985) (citing Ruffin v. State, 444 So.2d 839, 840 (Miss. 1984); Colburn v. State, 431 So.2d 1111, 1114 (Miss. 1983)). Additionally, lesser-included-offense instructions should not be granted on mere speculation. Moody v. State, 841 So.2d 1067, 1097 (Miss. 2003)
(citing McGowan v. State, 541 So.2d 1027 (Miss. 1989) (citing Mease v. State, 539 So.2d 1324, 1329 (Miss. 1989))).
A lesser-included offense instruction should be granted unless the trial judge and ultimately this Court can say, taking the evidence in the light most favorable to the accused and considering all the reasonable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of a lesser-included offense (conversely, not guilty of at least one essential element of the principal charge).
Moody, 841 So.2d at 1097 (citing Harper v. State, 478 So.2d 1017, 1021 (Miss. 1985); Fairchild v. State, 459 So.2d 793, 800 (Miss. 1984); Lee, 469 So.2d at 1230-31)). " A defendant must point to some evidence in the record from which a jury reasonably could find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense." Gilmore, 119 So.3d at 286 (quoting Goodnite v. State, 799 So.2d 64, 69 (Miss. 2001)).
¶12. Franklin was indicted pursuant to the language of Mississippi Code Section 97-3-7(2)(a)(ii), which provides:
A person is guilty of aggravated assault if he . . . (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm. . . .
Miss. Code Ann. § 97-3-7 (2)(a)(ii) (Rev. 2006).
¶13. Franklin argues that the trial court, in denying the simple-assault instruction, improperly presumed that the bottle was a deadly weapon; thus the jury was not allowed to consider simple assault. At trial, Franklin asserted that it was for the jury to weigh and decide whether Nolan was hit with a fist or a bottle or both; therefore, the lesser-included-offense instruction was warranted in the event the jury found she was not hit with the bottle or that the bottle was not a deadly weapon. Under the facts of this case, we agree.
¶14. The jury was given the following instructions:
(1) If you find from the evidence in this case beyond a reasonable doubt that: . . . Ricky Levert Franklin . . . did wilfully and unlawfully, cause or attempted to cause bodily injury; to Jessica Renee Nolan . . . with a deadly weapon. Then you shall find the defendant . . . guilty of aggravated assault as charged. . . .
(2) It is a question of fact for you to determine whether the bottle claimed to have been used by the defendant . . . was a deadly weapon in the manner in which it was claimed to have been used to strike the victim in this case.
(3) A deadly weapon is defined as any object, article or means which, when used as a weapon under the existing circumstances is reasonably capable of producing or likely to produce death or serious bodily harm upon whom the object, article or means is used.
¶15. Franklin was denied the following simple-assault instruction:
If you find from the evidence in this case beyond a reasonable doubt that: Ricky L. Franklin . . . did purposefully, knowingly or recklessly; cause bodily harm to Jessica Nolan; then you shall find Ricky L. Franklin guilty of Simple Assault.
¶16. In proving aggravated assault, the State chose to center its case solely on the bottle being a deadly weapon. The jury was not instructed that Franklin could be guilty of aggravated assault by other means, as is provided in the language of the statute.
¶17. Thus, because of the substantial credible evidence that some type of assault had occurred and because defense counsel took the position that Franklin hit Nolan with his fists alone, the jury should have been given the lesser-included-offense instruction in the event of a finding that the bottle was not a deadly weapon or that the bottle was not used. Lee v. State, 469 So.2d 1225, 1231 (Miss. 1985) (The jury's findings may be altered without a lesser-included-offense instruction where the only other option would be to find the defendant not guilty).
¶18. This Court stands firm on the long-standing principle that it is the jury's responsibility to decide if an instrument constitutes a deadly weapon. Duckworth v. State, 477 So.2d 935, 938 (Miss. 1985) (citing Jackson v. State, 404 So.2d 543 (Miss. 1981); Shanklin v. State, 290 So.2d 625 (Miss. 1974); Johnson v. State, 230 So.2d 810 (Miss. 1970); Cobb v. State, 233 Miss. 54, 101 So.2d 110 (1958); Golden v. State, 223 Miss. 649, 78 So.2d 788 (1955)) (citations omitted).
¶19. When determining whether to allow the lesser-included-offense instruction, the trial court improperly stated that there was evidentiary support that Nolan's head injury was caused by the bottle alone. Whether her injuries were caused by the bottle was an issue of fact to be determined by the jury. The trial court expressly stated it believed there was no evidentiary support for the lesser-included-offense instruction by referencing Nolan's isolated testimony during the State's direct examination, when she described being hit in the head by only the bottle. However, an examination of the record reveals that, during the State's redirect, Nolan expressly stated that she was hit with both a fist and a bottle. Also, Nurse Morgan testified that Nolan told her at the hospital that she had been hit with both fists and a bottle. Accordingly, it was for the jury alone to determine whether the bottle actually was used.
¶20. We find that the trial court erred by not allowing the jury to consider the lesser-included-offense instruction of simple assault, because we cannot say that it would be impossible for a reasonable juror to find that Franklin did not use the bottle or that the bottle was not a deadly weapon. Moody, 841 So.2d at 1097 (citing Harper, 478 So.2d at 1021; Fairchild, 459 So.2d at 800; Lee, 469 So.2d at 1230-31). Therefore, we reverse in part and remand this case for a new trial.
II. Whether the trial court erred in allowing statements that Randolph White allegedly made to police.
¶21. Franklin argues that the trial court erred by allowing inadmissable hearsay statements from Officer Ladnier. Over the objection of defense counsel, Officer Ladnier stated that once he arrived on the scene, he spoke with Randolph White, Franklin's uncle, who instructed them to " . . . get down there before he killed her." Officer Ladnier also provided that White stated he saw Franklin holding Nolan by the hair and that Nolan had asked him for help. Randolph White testified at trial, stating that he did not communicate those statements to Officer Ladnier.
¶22. 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. Clemons v. State, 732 So.2d 883, 887 (¶ 18) (Miss. 1999) (citations omitted). Reversal is required only where abuse ...