DATE OF JUDGMENT: 12/18/2012.
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COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. WILLIAM A. GOWAN
FOR APPELLANT: VICKI L. GILLIAM.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.
BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.
[¶1] Bennie Gunn was convicted of capital murder, two counts of felon in possession of a weapon, two counts of armed robbery, and two counts of aggravated assault. Gunn argues multiple issues on appeal: (1) the trial court erred when it failed sua sponte to sever a multiple-count indictment; (2) the trial court erred when it allowed the State to introduce improper evidence and the State emphasized that evidence in closing argument; (3) the firearm enhancement subjected Gunn to double jeopardy; (4) the State improperly commented on Gunn's right to remain silent; (5) the verdict was against the overwhelming weight of the evidence and the evidence was insufficient to support the verdict; (6) Gunn received ineffective assistance of counsel; and (7) cumulative error requires reversal. We find no error and affirm.
[¶2] This case involves events that occurred over three days from September 10-12, 2010. On September 10, William Morris made a delivery to the Super Save store in Jackson. While there, he was shot and killed. The store clerk, Harminder Kaur, testified that she heard a noise outside and saw Morris holding his stomach. Morris fell in the doorway of the store and later died. Kaur called the police.
[¶3] Sergeant Kim Harrison retrieved the store surveillance video and saw two black males who had something covering their heads. They approached the gas pumps and then disappeared from view. A few seconds later, Morris came into view on the video. He was staggering and holding his left side. Morris grabbed the door to the store and fell in the doorway.
[¶4] Kaur testified that she recognized one of the two men in the video, the older of the two, as a regular customer. She refused to point out the man she recognized in the courtroom because she was " scared." She explained that she had three children, she had to continue working at her family-owned store, and the man she recognized shopped in her store. The police canvassed the surrounding area of the store and found a white tank top and a black t-shirt lying in a nearby vacant field. DNA tests connected both of the shirts to Dante Evans, but not to Gunn.
[¶5] Loran McDougal lived near the Super Save. She was on her porch when she saw two men walk up the street and look back. She saw a police car drive into the area. When the police car turned on its siren, the two men ran into her neighbor's
backyard. Loran went inside her house and told her stepdaughter, Rokita McDougal, to look outside. Rokita walked outside and saw two men in the neighbor's yard. One of the men looked at her, so she ran back inside. Rokita gave the police descriptions of the men. One of the men had on black Nike tennis shoes with a green " swoosh." She was shown a photo lineup and identified Gunn as the man in the yard with the Nike tennis shoes. She identified the shoes recovered from Gunn as similar to those she saw on one of the men that day. She identified Gunn in the courtroom as one of the two men she saw in her neighbor's yard that day.
[¶6] On September 11, 2010, Sylvester Wright stopped at the Shell station on Terry Road in Jackson to buy cigarettes. While inside the gas station, Wright noticed two men get inside his vehicle. He ran outside to stop them. He testified to the following:
I seen one person jump in, and that's what made me run out of the store . . . .
[He was] on the driver's side . . . . I ran out. And it was one guy standing on the passenger side, and I shoved him away from the car . . . . I reached inside the car and asked the -- shorter guy what he was doing, and he said he was fixing to take my car. And I was like, " You wasn't fixing to take nothing," and then the tall -- and he told the taller guy to " [s]hoot that -- shoot that [mf]." . . . When I turned around, I seen the gun and I started running.
[¶7] Wright was shown two photo lineups and was able to identify the two men who took his car. He identified Gunn in the courtroom as the shorter man telling the taller, thinner man to shoot him. Wright's vehicle was found three days later burned in a field.
[¶8] On September 12, 2010, twelve-year-old Om Patel sat with Naveen Ava, the desk clerk of the E. Com Lodge in Jackson. Patel testified to the following:
Well, we were watching TV. Then we hear a bang. So we're wondering, you know, what's going on. So he goes in the hallway and checks what it is and he just falls down. And so I'm wondering what happened. And then these two guys in wolf masks come in and shoot me and then ask me for money . . . . They said, " Give me the money." And so I crawled to the cash register and I opened it.
[¶9] Patel further testified that the men had trouble with the cash register and they pulled it so hard they broke it. Patel called the police after the men left. Both Patel and Ava were taken to the hospital and treated for their gunshot wounds. Police obtained a video surveillance tape which was consistent with Patel's testimony. The identity of the two robbers could not be ascertained from the video.
[¶10] On September 14, 2010, a BOLO, which stands for " be on the look out," was issued for a white Pontiac. A Neshoba County deputy spotted the car in Philadelphia, Mississippi. The vehicle traveled at a high rate of speed when the deputy started to pursue it. Another car pulled in front of it, and the vehicle flipped in front of the Golden Moon Casino.
[¶11] Dante Evans and Chasity Davis were apprehended at the scene of the wreck. Gunn jumped from the vehicle and ran across the highway. He jumped into a white work truck owned by the Pearl River Resort and drove off. A second pursuit began. Deputies and city police chased the truck with speeds that exceeded 100
miles per hour. At one point, Gunn ditched the truck and started to run. He was found thirty minutes later in the woods. A weapon was found on a porch of a nearby house. The police recovered black Nike tennis shoes with a green " swoosh" being worn by Gunn.
[¶12] Gunn was transported back to Jackson by Investigator Maurice Kendrick and Detectives Eric Smith and Richard Stevenson. Gunn told them to tell Morris's family, his wife and children, that he was sorry and that it was not supposed to happen like that.
[¶13] Gunn's girlfriend, Chasity Davis, testified that she and Evans's girlfriend, Nankedia Lowe, waited in a car across the highway from the E. Com Lodge while Gunn and Evans robbed it. She said Gunn and Evans ran across the highway wearing Halloween masks and carrying guns, and got in the car. One of the men was carrying a cash register. The men told them that Gunn had kicked in the door and Evans had shot someone. Davis testified that at some point, Gunn told her that he was with Evans when Evans shot Morris. Gunn told her that the man had tried to take a gun from Evans and Evans shot him. Gunn told her he thought Evans had killed the man.
[¶14] Nankedia Lowe was Evans's girlfriend. When she testified before the jury, she was asked about the E. Com Lodge robbery, whether she was nervous, and whether she was scared. She was unresponsive to all three questions. Upon request, and without objection, the court declared her a hostile witness and the State was allowed to ask leading questions. She acknowledged her signature on a statement she gave police on September 16, 2010, and it was admitted into evidence without objection. Her testimony about her involvement in the E. Com Lodge robbery was materially consistent with Davis's testimony. She testified that she and Davis waited across the highway for Gunn and Evans and that Gunn and Evans ran and got in the car with money and all four then left. The only two facts in Lowe's statement to the police that she claimed not to remember on the stand were the fact that Evans and Gunn planned the robbery and the fact that Gunn had a pistol when he got in the car after the robbery. Defense counsel used her statement to the police to emphasize her role and that of Evans and Davis, and to minimize her knowledge of Gunn's role. She reiterated on cross-examination that she had no direct memory of Gunn having a pistol when he returned to the car.
[¶15] When Evans was arrested, he gave a statement detailing the Morris assault and admitting that he was the one who shot Morris. He stated that he did not want to be a snitch and denied that Gunn was with him. Evans pled guilty on April 17, 2012. In his sworn description of the crime, he stated that Gunn and he robbed Morris and that both he and Gunn pulled their firearms on Morris. Evans stated that he was the one to shoot Morris and that he and Gunn then fled. At trial, Evans gave a proffer outside the presence of the jury, in which he stated that he had lied when he said that Gunn was with him and that, in fact, Gunn was not present. During his proffer, Evans was impeached with his guilty-plea testimony that Gunn was involved in the Morris robbery. Defense counsel elected to have all three versions of Davis's statements presented to the jury. The jury heard officers' testimony
about Evans denying Gunn was present, and heard an hour-long recorded interview in which he admitted his own guilt and denied Gunn was present. They also heard his guilty-plea testimony and his proffer.
[¶16] Gunn was tried on seven counts. He was tried jointly, with no objection, for capital murder, two counts of felon in possession of a firearm, two counts of armed robbery, and two counts of aggravated assault. He was found guilty of all counts. He was sentenced to serve life in the custody of the Mississippi Department of Corrections for capital murder. He was sentenced to ten years each for both felon-in-possession-of-a-firearm counts, thirty-five years for each of the armed-robbery counts (including a ten-year gun enhancement for each count), and thirty years for each aggravated-assault count (including a ten-year gun enhancement for each count). All sentences were ordered to run consecutively. He filed a timely appeal.
I. Whether the trial court committed plain error when it failed to sua sponte sever the multiple-count indictment.
[¶17] Gunn argues that the trial court committed reversible error when it failed to sever the counts of the indictment. He asserts that the multiple-count indictment did not contain a common scheme or plan. He did not, however, move to sever any of the counts prior to or at trial.
[¶18] In Rubenstein v. State, 941 So.2d 735, 761 (¶ 90) (Miss. 2006), the court held that " issues not brought before the trial court are deemed waived and may not be raised for the first time on appeal." See also Jackson v. State, 856 So.2d 412, 415 (¶ 12) (Miss. Ct.App. 2003) (" As an appellate court, we cannot find that a trial judge committed reversible error on a matter not brought before him to consider." ).
[¶19] Gunn asks that we ignore his failure to request a severance and examine the issue under the doctrine of plain error.
A party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal because it is otherwise procedurally barred. Williams v. State, 794 So.2d 181, 187 (¶ 23) (Miss. 2001). " The plain error doctrine requires that there be an error and that the error must have resulted in a manifest miscarriage of justice." Id. at 187. " Further, [the] Court applies the plain error rule only when it affects a defendant's substantive/fundamental rights." Id. The plain error doctrine has been construed to include anything that " seriously affects the fairness, integrity or public reputation of judicial proceedings." McClain v. State, 929 So.2d 946, 951(¶ 10) (Miss. Ct.App. 2005) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).
Smith v. State, 984 So.2d 295, 301 (¶ 14) (Miss. Ct.App. 2007) (parallel citations omitted). ¶ 20. Mississippi's statute dealing with the joinder and severance of offenses is Mississippi Code Annotated section 99-7-2 (Rev. 2007), which provides:
(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.
[¶21] Gunn correctly cites Corley v. State, 584 So.2d 769, 772 (Miss. 1991), for the proposition that the relevant factors in considering proper joinder of counts are: (1) whether the time period between the offenses is short; (2) whether evidence of one count would be admissible ...