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Chilton v. State

Court of Appeals of Mississippi

October 31, 2017

ARTEA CHILTON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/03/2014

         FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

          BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. Artea Chilton was indicted on one count of armed robbery using a deadly weapon. After a jury trial, Chilton was found guilty of armed robbery, and the Forrest County Circuit Court sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve, and five years of postrelease supervision (PRS), and to pay a $5, 000 fine. After sentencing, Chilton filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the court denied after a hearing. After our review of the record, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On October 19, 2012, Chilton, driving a red Mustang, picked up Darisha Johnson from her apartment complex to take her to get something to eat. Johnson testified that Chilton instead drove to McMullan Motors and spoke with one of the salesmen. The salesman was later identified as Dewayne Morris.

         ¶3. Morris testified that Chilton wanted to look at the fastest and most expensive car at the dealership. Morris directed Chilton to a Dodge Charger that was on display inside of the dealership. Morris discussed a listing price of $55, 000, but explained to Chilton that he could possibly sell the car for $50, 000 if Chilton paid cash. Both Chilton and Morris testified that Chilton responded that he was going to the bank to retrieve the cash for the car, and that he would be right back.

         ¶4. Johnson testified that she and Chilton left McMullan Motors and drove to a BancorpSouth. Chilton, dressed in all black and wearing a mask[1] on the back of his head, walked into the BancorpSouth and cut in front of one of the customers, who was later identified as Cleveland Collins. From there, witnesses testified that Chilton loudly asked a teller who the owner of the bank was. The teller, identified at trial as "Clayton" or "Clay, " directed Chilton to Tina Gibbs, the branch manager.

         ¶5. Gibbs testified that Chilton walked into her office and stated that he wanted money because he was going to buy a Dodge. Gibbs testified that she felt a bit uneasy because of Chilton's demeanor and appearance, and she initially thought Chilton was robbing the bank until he mentioned the car. Therefore, she asked Chilton whether he wanted a loan. Gibbs testified that Chilton responded that he did not need a loan. Gibbs stated that he wanted all of the money, and that he was robbing the bank. By this time, Gibbs had pressed the silent alarm located on the side of her desk.

         ¶6. Gibbs later testified that Chilton said he had a gun, and gestured as though it was in his pocket. However, Gibbs stated she never actually saw Chilton's gun.[2] After this brief exchange in her office, Gibbs stepped out and informed the tellers that Chilton was robbing the bank.

         ¶7. Candisha Campbell, a teller at the bank, testified that Gibbs instructed the tellers to hand Gibbs "bait money." Michelle Long, another teller at BancorpSouth, testified that she gave Gibbs bait money - the money typically given during a robbery.

         ¶8. After Gibbs retrieved the bag of bait money, she handed it to Chilton. Witnesses testified that Chilton told everyone to "have a good weekend" before exiting the bank. ¶9. Johnson testified that Chilton appeared calm as he entered the car, and that he had a bag of money with him. Johnson stated that she did not feel that anything was wrong until the police started following behind the car trying to cut them off. Johnson said that Chilton started going through the bag and money and throwing some of the money out of the window. Chilton later testified that the money had trackers in it. As soon as she got the chance, Johnson jumped out of the car and ran to an auto parts store. Johnson also tried to flag down Chief Charles Bolton of the Hattiesburg Police Department; however, he was in pursuit of Chilton. A few moments later, Chilton was apprehended.

         ¶10. Sergeant Laron Smith later testified that he received a call regarding a possible robbery. He stated that he and other officers were following behind a red Mustang until another officer cut off the Mustang's route. Sergeant Smith further stated that Chilton was noncompliant with commands to get out of the car. Sergeant Smith said that several officers had to remove Chilton from the vehicle.

         ¶11. Chilton and Johnson were arrested and charged with armed robbery. However, the grand jury did not return an indictment against Johnson. At trial, Chilton denied that he intended to rob the bank. He said he never told Gibbs that he had a gun, and he only wanted to discuss financing options regarding the Dodge. According to Chilton, he threw out the trackers because he was scared. Chilton further stated that he knew taking the money was wrong, but he did not understand how loans worked at a bank.

         ¶12. Following a two-day trial, Chilton was convicted of armed robbery. He was sentenced to twenty-five years in the custody of the MDOC, with twenty years to serve, followed by five years of PRS and to pay a $5, 000 fine. Following his unsuccessful posttrial motions, he appeals and claims: (1) the indictment was fatally defective; (2) the circuit court erred when it gave jury instruction S-4; (3) the circuit court erred when it gave jury instruction S-1A; (4) there was insufficient evidence to convict him, and the verdict is against the overwhelming weight of the evidence; and (5) the circuit court erred in prohibiting him from introducing a video into evidence.

         DISCUSSION

         I. Whether the indictment was fatally defective.

         ¶13. Chilton argues that the indictment was fatally defective because it failed to charge him with "the exhibition of a deadly weapon." "The [reviewing] Court affords [a] de novo review to a claim that an indictment was fatally defective for failure to include an essential element." Warren v. State, 187 So.3d 616, 621 (¶10) (Miss. 2016) (citation omitted). "The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Id. at 621-22 (¶10).

         ¶14. "All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment . . . before the jury shall be impaneled . . . and not afterward . . . ." Brown v. State, 37 So.3d 1205, 1209 (¶9) (Miss. Ct. App. 2009) (quoting Miss. Code Ann. §99-7-21 (Rev. 2007)). "Further, the Mississippi Supreme Court has held that where a deficiency appearing in an indictment is non-jurisdictional, it may not be raised for the first time on direct appeal absent a showing of cause and actual prejudice." Id. (citations and quotation marks omitted). Deficiencies are jurisdictional "where the indictment fails to charge a necessary element, and where there exists no subject matter jurisdiction." Id. at 1210 (¶9).

         ¶15. The indictment against Chilton charged:

[O]n . . . October 19, 2012, [he] did willfully, unlawfully, and feloniously take, steal, and carry away from the person and/or the presence of, and against the will of Tina Gibbs, approximately $1, 510.00 in U.S. Currency, the personal property of the said Tina Gibbs by virtue of her employment at BancorpSouth, 713 Broadway Drive, Hattiesburg, Mississippi, by putting [her] in fear of immediate injury, by stating that he was armed with a gun, contrary to the form of the statue in such cases made and provided, and against the peace and dignity of the State of Mississippi.

(Emphasis added).

         ¶16. "An indictment must contain (1) the essential elements of the crime charged, (2) sufficient facts to fairly inform the defendant of the charge which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Warren, 187 So.3d at 621 (¶10) (citation omitted). "Rule 7.06 of the Uniform Rules of Circuit and County Court Practice[3] states, in pertinent part, that 'the indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.'" Id.

         ¶17. In Dambrell v. State, 903 So.2d 681, 689 (ΒΆ32) (Miss. ...


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