OF JUDGMENT: 05/11/2016
COUNTY CIRCUIT COURT TRIAL JUDGE: HON. ISADORE W. PATRICK JR.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
DISTRICT ATTORNEY: RICHARD EARL SMITH JR.
Following a jury trial in the Warren County Circuit Court,
Bryan Morton was found guilty of attempted murder, armed
robbery, and burglary of a dwelling. Morton was sentenced to
thirty years for the attempted-murder conviction and thirty
years for the armed-robbery conviction, with the sentences
ordered to run consecutively. He was sentenced to twenty
years for the burglary conviction, which was ordered to run
concurrently with the attempted-murder and armed-robbery
convictions, with all sentences to be served in the custody
of the Mississippi Department of Corrections. Morton now
appeals. Finding no error, we affirm.
AND PROCEDURAL HISTORY
On May 4, 2014, Charlie Arnold's house in Warren County,
Mississippi, was broken into while she was asleep in her bed.
Arnold testified that she awoke to Kimberly Chapman hitting
her over the head with a walking stick. Arnold recognized
Chapman because Chapman had dated Arnold's son while he
was in high school. Arnold testified that she heard a baby
crying and that Chapman continued to hit her. She also
testified that she noticed a man in her house during the
attack, and that he hit her on top of the head with a
shotgun. She could not recall all of the attack because she
kept passing out.
Around 11:30 a.m., Investigator Jason Bailess with the Warren
County Sheriff's Department responded to a dispatch call
where someone had reported seeing a woman stranded on Highway
80 in Vicksburg, holding an infant and covered in blood.
Investigator Bailess arrived on the scene and noticed a woman
- later identified as Chapman - covered in what appeared to
be wet blood and holding a baby while standing next to a
maroon Cadillac sedan. Investigator Bailess questioned
Chapman about the blood on her clothes and body, and Chapman
stated she had been in a fight the night before. Investigator
Bailess, however, noticed that Chapman did not have any
injuries and also had dried blood on her hands around her
fingernails. He called for another officer to come to the
scene and had Chapman and her baby sit in the officer's
car while he looked in the window of Chapman's Cadillac.
Investigator Bailess noticed from outside the car that a
sportsman's license was on the front seat of the car and
had the last name "Arnold" on it with an address.
Once the other officer arrived, Investigator Bailess went to
the address, which he stated he was familiar with from
previous calls, to check on the woman who lived there. He
called for assistance to meet him at the house.
Investigator Bailess testified that when he knocked on the
door of the house, it opened because it was not properly
shut. He called out for Arnold, and noticed blood spots on
the living-room floor. When the officers got to Arnold's
bedroom, Investigator Bailess noticed that the mattresses
were flipped over off the bed, and that there was blood all
over the bedroom. They found a broken shotgun with blood on
the butt of the gun. Arnold was on the side of the bed
opposite the bedroom entrance. She was covered in blood and
had severe head wounds. At the scene, she told officers that
a woman named Kim Chapman had broken into her house and
started beating her and that there was a man with Chapman,
but she did not see him. She stated that she heard a
man's voice behind her and then was hit from behind. And
that Chapman stabbed her. Arnold was taken to the University
of Mississippi Medical Center in Jackson, Mississippi. Upon
her release, she spent 120 days in the Vicksburg Convalescent
Home for further recovery.
At the police station, Chapman gave a statement, telling
police that she and Morton had gone to Arnold's house to
borrow money from her. She stated that Morton went through
the window and assaulted Arnold. In her statement, Chapman
admitted to hitting Arnold only once, although months later
at a bond hearing she admitted to hitting Arnold multiple
times. She denied having a gun or knife, and stated she never
saw Morton with the shotgun.
In Chapman's Cadillac, investigators found Arnold's
driver's license, Visa card, Social Security card,
prescription medications, and a check from Arnold's
account. They also recovered a jacket from the
front-passenger floorboard, which was sent to the crime lab
for testing. A data extraction performed on Chapman's
phone showed contacts, including one titled "Brian,
" with a text sent from Chapman to Morton on the day of
the burglary and attack, asking "wanna come
help[?]" From the night of May 3 to morning of May 4,
Morton and Chapman exchanged twenty-nine calls altogether,
including missed and answered calls. An arrest warrant was
issued for Morton. Sheriff's deputies collected a knife
and shotgun barrel from a Jeep that Morton had been known to
drive, which was parked at Colby Ashley's house on Massey
Road. Ashley is Chapman's cousin.
DNA testing on the jacket recovered in Chapman's car
yielded results consistent with the sample taken from Arnold.
Male DNA was also found on the jacket, and the forensic
examiner could not exclude Morton or any of his patrilineal
male relatives. A sample from the broken gun stock was
consistent with Arnold's DNA. The sample from the walking
cane yielded a partial profile that could have come from
At trial, Arnold testified that Chapman or the man entered
the home through a side window of the house and that she
suspected that the one who entered through the window let the
other through the front door. She testified that Chapman and
the man took cash from her purse, the purse itself, her
prescription pills, and her wedding ring.
Chapman testified against Morton at trial and stated that she
had only met Morton a couple of times before the night of May
3-once at Ashley's house, and another time when she
bought crystal meth from Morton. She testified that she
initiated contact with Morton on the night of May 3 because
she needed money and thought Morton could help her get it.
She mentioned Arnold's house to Morton, and Morton agreed
to help Chapman steal from Arnold. Chapman stated that when
she and Morton got to Arnold's house, the window she had
planned to enter through was blocked, and Morton entered
through another window. When Chapman went inside, she saw
Morton tying up Arnold with a rope, and that Arnold was
already covered in blood at this point and had a gash in her
forehead. While they were looking for valuables to take,
Arnold got loose, so Morton handed her a weapon, and Chapman
hit Arnold with it. She stated that while she was trying to
put Arnold back on the bed, Morton left in Chapman's car.
Chapman called Morton, but he did not answer. Morton
eventually returned to Arnold's house to pick Chapman up,
and they went back to Ashley's house on Massey Road.
Morton testified in his own defense that he never left
Ashley's house on Massey Road that night. Waylon Jones,
who was also living at Ashley's house at the time,
testified as an alibi witness for Morton. Jones told
investigators that Morton never left Ashley's house that
night. Ashley's girlfriend, Lee Ann Elliot, also lived at
the house on Massey Road. Elliot told investigators that she
had gone to sleep early that night, but the next day Morton
told her that he and Chapman had gone to Arnold's home
with the intention of stealing her prescription medicine and
money. She further testified that Morton told her that when
Arnold recognized Chapman, Chapman told Morton that she would
now have to kill Arnold. Morton said that he did not want to
hit Arnold, but he had to because she saw Chapman's face.
Following a trial on the merits, a jury found Morton guilty
of attempted murder, armed robbery, and burglary of a
dwelling. Morton now appeals, and we address his issues in
Sufficiency of the Indictment
In his first issue on appeal, Morton claims that the
indictment was fatally defective for failure to charge an
essential element of the crime. Specifically, Morton argues
that the indictment failed to state whether he
"failed" to complete or was "prevented"
from completing the act of murder; thus, he argues that
indictment was legally insufficient to charge him with
"[W]hether an indictment is defective is an issue of law
and therefore deserves a relatively broad standard of review,
or de novo review." Colburn v. State, 201 So.3d
462, 469 (¶20) (Miss. 2016) (quoting State v.
Hawkins, 145 So.3d 636, 638 (¶3) (Miss. 2014)).
"[A]n indictment must contain (1) the essential elements
of the offense charged, (2) sufficient facts to fairly inform
the defendant of the charge against 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." Townsend v. State, 188 So.3d 616, 620
(¶13) (Miss. Ct. App. 2016) (quoting Gilmer v.
State, 955 So.2d 829, 836-37 (¶24) (Miss. 2007)).
"The primary purpose of an indictment is to give a
defendant fair notice of the crime charged."
Williams v. State, 169 So.3d 932, 935 (¶9)
(Miss. Ct. App. 2014). "The Mississippi Supreme Court
has stated, 'so long as a fair reading of the indictment,
taken as a whole, clearly describes the nature and cause of
the charge against the accused, the indictment is legally
sufficient.'" Martin v. State, 65 So.3d
882, 884 (¶7) (Miss. Ct. App. 2011) (quoting
Sanderson v. State, 883 So.2d 558, 561 (¶9)
Attempted murder is defined in Mississippi Code Annotated
section 97-1-7(2) (Rev. 2014) as follows:
Every person who shall design and endeavor to commit an act
which, if accomplished, would constitute an offense of murder
under [Mississippi Code Annotated section 97-3-19 (Supp.
2016)], but shall fail therein, or shall be prevented from