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Morton v. State

Court of Appeals of Mississippi, En Banc

November 21, 2017


          DATE OF JUDGMENT: 05/11/2016





          LEE, C.J.

         ¶1. 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.


         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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 Arnold.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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.

         ¶11. 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 turn.


         I. Sufficiency of the Indictment

         ¶12. 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 attempted murder.

         ¶13. "[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) (Miss. 2004)).

         ¶14. 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 ...

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