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Robinson v. State

Supreme Court of Mississippi

April 19, 2018


          DATE OF JUDGMENT: 07/16/2014







         ¶1. In July 2014, a Jackson County jury found Dominic C. Robinson guilty of three counts of aggravated assault, and he was sentenced to serve a total of thirty years in the custody of the Mississippi Department of Corrections. Robinson now appeals his convictions, arguing that the trial court erred in its evidentiary rulings and instructions to the jury and that his convictions are not supported by the weight of the evidence. In addition to those issues, which were raised by the Office of Indigent Appeals, Robinson has filed a pro se supplemental brief raising eleven additional assignments of error. Finding no reversible error, we affirm Robinson's convictions and sentences.


         ¶2. On March 5, 2011, Robinson told his girlfriend, Mary Adams, that he was going to a rap concert in Moss Point that night. Adams described Robinson as having braids, a moustache, and a goatee on the night in question. After Robinson left for the concert, Adams did not see him again until three days later, at which point he had shaved off his goatee.[1]

         ¶3. Between the late evening hours of March 5, 2011, and the early morning hours of March 6, 2011, Robinson attended a concert by rapper Lil Phat at the Creme De La Creme nightclub in Moss Point. The club had hired several members of Showtime Security to serve as security guards for the event. Jonathan Woods was assigned to stand inside the front door of the club and make sure that concert-goers paid before they entered. Darius Wright, Carmen Thompson, and Jonathan's wife Jessica Woods were working just outside the front door, securing the line into the club and searching concert-goers as they entered. Charles Tyler White was assigned to the door of the club's VIP room.

         ¶4. During the concert, Robinson attempted to enter the club's VIP room, which was reserved for guests with VIP passes. White did not allow Robinson to enter the VIP room because he did not have a pass. White described Robinson as having dreadlocks and a goatee and wearing a white t-shirt and blue jeans. Robinson returned to the VIP area a second time, and White again denied him entry. At this point, Robinson became irate and tried to push his way past White. White responded by restraining Robinson and physically removing him from the nightclub.

         ¶5. In the parking lot, Robinson spoke with security guard Darius Wright, who had known Robinson for about fifteen years. Wright also described Robinson as having braided hair and a goatee and wearing a white shirt and blue jeans. Robinson told Wright that he was allowed to re-enter the club, so Wright searched him and let him back in.[2] However, Robinson was escorted back out of the club just a few minutes later. Robinson asked Wright for the name of the man who had kicked him out of the club and wanted to know when his shift ended, stating, "I'm going to get him [security guard Charles Tyler White]. I want to know what time he get off." Wright would not give Robinson this information, so Robinson and his brother Darold Payne left the parking lot.

         ¶6. Later that night, Robinson approached the nightclub and tried to enter a third time. At this point, Wright was opening the tailgate of a truck parked near the club's entrance in an effort to prevent people from cutting through the line into the club. Wright noticed that Robinson had changed his shirt since the last time he had seen him. Robinson walked over to Wright, and Wright asked him to leave the club. Wright was standing on the side of the truck nearest the entrance to the club, and Robinson was standing on the other side. At this time, Damion Kimble approached Wright and began talking to Robinson. Kimble stated at trial that he had known Robinson all his life. Robinson told Kimble not to go into the nightclub, so Kimble turned around and left.

         ¶7. Wright spoke with Robinson and tried to get him to leave, but Robinson was unwilling to do so. Wright then turned away from Robinson to go back to his station at the front door of the club. At this point, Carmen Thompson saw Robinson draw a handgun and point it at the front of the nightclub. Thompson yelled "Gun!" and tackled Wright out of Robinson's line of sight. Wright then glanced around and saw Robinson shooting at Jonathan and Jessica Woods. According to Wright, Thompson drew her pistol and fired a shot that hit the truck's tailgate, causing Robinson to turn and run. Thompson, however, denied firing her weapon. After the shooting stopped, Wright called 911 and remained at the scene until an ambulance arrived.

         ¶8. Jonathan Woods was shot once in the buttocks; the bullet passed through his pelvis and lodged itself at the base of his spine. Jessica Woods was shot a total of five times in the chest, back, hips, and legs. The gunshots to her chest injured her spine and left her paralyzed from the chest down. Three nightclub patrons, Ara Osgood, Anquaneshia Thomas, and Dawonshea Wells, were shot in their right legs.

         ¶9. Detective Johnny Jefferson with the Moss Point Police Department responded to a call of reported gunshots at the nightclub at around 2:50 a.m. on March 6, 2011. He arrived to find a chaotic scene, with people running out of the building and into the parking lot. Detective Jefferson saw Jonathan lying on his stomach in the club's entryway, and Jessica was being treated in a nearby ambulance.[3] Later, Detective Jefferson traveled to Singing River Hospital and spoke to the nightclub patrons who had sustained gunshot wounds.

         ¶10. Detective J.D. Savage with the Moss Point Police Department arrived at the nightclub as other police officers were securing the scene. The police located twelve nine-millimeter bullet casings in the parking lot, which were collected and photographed. Bullet fragments were found near the entrance to the nightclub and inside near the bar, and there were four bullet holes in the glass door at the front of the club. After leaving the nightclub, Detective Savage went to the hospital and spoke with Jonathan, Osgood, Wells, and Thomas. He did not speak with Jessica because she was in surgery at the time.

         ¶11. Robinson's brother Darold Payne initially was identified as a possible suspect in the shooting, but he was ruled out after Detective Savage spoke with Wright, who identified Robinson as the shooter. Wright also identified Robinson from a six-person photographic lineup. Robinson turned himself in to the Pascagoula Police Department on March 9, 2011. Detective Savage went to Pascagoula to speak with Robinson, but Robinson refused to talk until his attorney arrived. Robinson's attorney never showed up, and Robinson was transferred to the Moss Point Police Department several days later. Robinson never gave a statement to the police.

         ¶12. On August 21, 2012, a Jackson County grand jury indicted Robinson on five counts of aggravated assault.[4] Robinson's trial was held on July 14-16, 2014. At the conclusion of the State's case-in-chief, the trial court granted Robinson a directed verdict as to Count III (Thomas) and Count IV (Wells), finding that the State had failed to present sufficient evidence to support those charges.[5] Robinson then testified in his own defense. Robinson admitted that he had attended the concert at the Creme De La Creme nightclub on the night in question. He also admitted that he had been thrown out of the club, but he claimed that he had been mistaken for another person. Robinson testified that, after being thrown out of the club, he left and drove to Mobile, where he sold music CDs over the weekend. Robinson then went to his grandmother's house. Robinson contended that he had not owned a gun since 2008 or 2009 and did not know how to fire a gun. Robinson believed that Tommy Landrum, the owner of Showtime Security, was trying to pin the shooting on him to cover up the fact that the security guards had "jumped" him for no reason.

         ¶13. At the conclusion of the trial, the jury returned a verdict finding Robinson guilty of the remaining three counts of aggravated assault (Counts I, II, and V). The trial court sentenced Robinson to serve concurrent sentences of twenty years for Counts I and II. The trial court also sentenced Robinson to serve a sentence of twenty years for Count V, to run consecutively to the sentences in Count I and II, and with ten years in Count V suspended and five years of post-release supervision, for a total of thirty (30) years to serve.

         ¶14. Robinson, now represented by the Office of Indigent Appeals, appeals his convictions to this Court, raising the following issues:

I. Whether the trial court erred in granting Instruction S-14A.
II. Whether the trial court erred in excluding Exhibit D-1.
III. Whether the State impermissibly commented on Robinson's post-Miranda silence.
IV. Whether the verdicts were against the overwhelming weight of the evidence.

         In addition, Robinson has filed a pro se supplemental brief [6] raising eleven additional issues, which we reorganize and restate as follows:

V. Whether Robinson was denied effective assistance of counsel.
VI. Whether the State engaged in prosecutorial misconduct during Robinson's trial.
VII. Whether the State violated Robinson's due-process rights by delaying his indictment.
VIII. Whether the State failed to preserve exculpatory evidence.
IX. Whether the State knowingly introduced false, incompetent, and inflammatory evidence, resulting in an unfair trial.
X. Whether the trial court erred in limiting Robinson's cross-examination of Damion Kimble.
XI. Whether the State violated Robinson's right to a fair trial by supplying false information during closing arguments.


         I. Whether the trial court erred in granting Instruction S-14A.

         ¶15. At trial, three witnesses testified that the shooter was the same man who had been kicked out of the nightclub earlier in the night in question, and their descriptions of the shooter matched Robinson's physical appearance. However, Darius Wright was the only witness who had known Robinson personally prior to the shooting. Wright told Detective Savage that Robinson was the shooter, and he identified Robinson from a six-person photo lineup. Wright also identified Robinson at trial. At the conclusion of the trial, the State offered Instruction S-14A, which instructed the jury on eyewitness identification testimony:

The Court instructs the Jury that the burden is on the State to prove beyond a reasonable doubt that the offense was committed and that the defendant was the person who committed it. You have heard the evidence regarding the identification of the defendant as the person who committed the crime. In this connection, you should consider the witness's opportunity to observe the criminal act and the person committing it, including the length of time the witness had to observe the person committing the crime, the witness's state of mind, and any other circumstances surrounding the event. You should also consider the witness's certainty or lack of certainty, the accuracy of any prior description, and the witness's credibility or lack of credibility, as well as any other factor surrounding the identification.
You have heard evidence during the trial that the witness, Darius Wright, identified the defendant. The identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant.
It is for you to determine the reliability of any identification and give it the weight you believe it deserves.

         Robinson objected to the portion of the instruction that stated that the identification testimony of a single witness could be sufficient to convict a defendant. The trial court overruled Robinson's objection and granted Instruction S-14A. On appeal, Robinson argues that Instruction S-14A impermissibly commented on the weight of the evidence by emphasizing Wright's identification testimony.

         ¶16. The grant or denial of jury instructions is reviewed for an abuse of discretion. Newell v. State, 49 So.3d 66, 73 (Miss. 2010). This Court reads jury instructions as a whole, with no single instruction taken out of context. Rushing v. State, 911 So.2d 526, 537 (Miss. 2005). "[I]f the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Newell, 49 So.3d at 73. In addition, while the defendant has a right to present his theory of the case through jury instructions, he is not entitled to instructions which incorrectly state the law, have no basis in the evidence, or are covered fairly elsewhere in the instructions. Harris v. State, 861 So.2d 1003, 1012-13 (Miss. 2003).

         ¶17. "Our law of criminal procedure has long perceived dangers in comments upon the evidence[.]" Hansen v. State, 592 So.2d 114, 141 (Miss. 1991). This Court has held that "[a] jury instruction that emphasizes any particular part of the testimony given at trial in a manner as to amount to a comment on the weight of the evidence, is improper." Montgomery v. State, 891 So.2d 179, 184 (Miss. 2004) (citing Manuel v. State, 667 So.2d 590, 592 (Miss. 1995)). Applying this principle, we repeatedly have affirmed the trial court's denial of jury instructions that attempt to tell the jury what weight to assign to the evidence, rather than allowing the jury to make its own credibility determinations. See Hansen, 592 So.2d at 141 (affirming denial of defense instruction cautioning jurors against giving undue credence to the testimony of law enforcement officials); Goss v. State, 413 So.2d 1033, 1035 (Miss. 1982) (affirming denial of defense instruction stating that the uncorroborated testimony of the victim of a sex crime should be scrutinized with extreme caution); Hines v. State, 339 So.2d 56, 58 (Miss. 1976) (affirming denial of defense instruction advising jury that no class of testimony is less credible than that of identity). "The presence of evidence tending to prove facts mentioned in an instruction does not mean that the jury has to believe what the 'evidence shows' where there is also evidence to the contrary." Manuel, 667 So.2d at 592-93.

         ¶18. Robinson argues that Instruction S-14A improperly commented on the weight of Wright's testimony by pointing the jury specifically to Wright's identification of Robinson and stating that the testimony of one eyewitness can be sufficient to convict. We find no merit in this argument. First, unlike the instructions in Hansen, Goss, and Hines, Instruction S-14A did not require the jury to assign a certain weight to Wright's testimony. On the contrary, Instruction S-14A specifically told the jury, "It is for you to determine the reliability of any identification and give it the weight you believe it deserves." In addition, Instruction S-14A did not require the jury to convict Robinson even if it believed Wright's testimony. Rather, the instruction provides that "[t]he identification of the defendant by a single eyewitness, as the person who committed the crime, if believed beyond a reasonable doubt, can be enough evidence to convict the defendant, " which is a correct statement of law. See Doby v. State, 532 So.2d 584, 591 (Miss. 1988) (recognizing the rule that "persons may be found guilty on the uncorroborated testimony of a single witness"). Instruction S-14A left to the jury the task of judging the credibility of Wright's testimony and weighing it against the other evidence presented at trial. We hold that the mere mention of Wright's testimony in Instruction S-14A did not amount to an improper comment on the weight of the evidence.

         II. Whether the trial court erred in excluding Exhibit D-1.

         ¶19. After the State had rested at Robinson's trial, Robinson attempted to admit into evidence Exhibit D-1, which was an order entered on August 3, 2011 - six months after the shooting in this case - in a criminal cause in which Darius Wright was the defendant. The order shows that the prosecution moved to reduce a pending drug-possession charge against Wright from a felony to a misdemeanor. The trial court granted this motion, and Wright pleaded guilty to the misdemeanor. Wright was sentenced to a six-month suspended sentence, six months of nonreporting probation, and a monetary fine. Notably, the order does not list the date of Wright's offense or the date on which he was formally charged.

         ¶20. Robinson argued that Exhibit D-1 would "go to Mr. Wright's testimony or his credibility." The trial court analyzed Exhibit D-1 under Rule 609 of the Mississippi Rules of Evidence and concluded that the exhibit was inadmissible because it was not probative of Wright's "veracity or credibility." On appeal, Robinson contends that the trial court erred in excluding Exhibit D-1.

         ¶21. "The standard of review for the admission or exclusion of evidence is abuse of discretion." Williams v. State, 54 So.3d 212, 213 (Miss. 2011) (citation omitted). "However, this discretion must be exercised within the confines of the Mississippi Rules of Evidence." Cox v. State, 849 So.2d 1257, 1268 (Miss. 2003) (citation omitted).

         ¶22. As an initial matter, we find that the trial court did not err in finding that Exhibit D-1 was inadmissible under Rule 609. Rule 609 allows admission of evidence of a criminal conviction evidence under certain circumstances for the purpose of "attacking a witness's character for truthfulness." Miss. R. Evid. 609(a). But because Wright's conviction imposed a sentence of less than one year, Exhibit D-1 would be admissible under Rule 609 only "if the court can readily determine that establishing the elements of the crime required proving - or the witness's admitting - a dishonest act or false statement." Miss. R. Evid. 609(a)(2). The elements of possession of a controlled substance do not require proof of a dishonest act or false statement, so Exhibit D-1 was not admissible to attack Wright's character for truthfulness under Rule 609.

         ¶23. Robinson now claims, however, that he was not attempting to admit Exhibit D-1 under Rule 609 to attack Wright's character for truthfulness. Instead, Robinson asserts that he intended to use Exhibit D-1 to show that Wright had made a deal with law-enforcement authorities for leniency in his drug-possession case in exchange for his testimony in Robinson's case. In other words, he argues that his purpose for offering Exhibit D-1 "was not simply to discredit [Wright] because he had been convicted of such a crime (which may very well have been inadmissible under some provision of Rule 609), but to ferret out any motive or reason [Wright] might have to be such a favorable state witness." Bevill v. State, 556 So.2d 699, 713-14 (Miss. 1990). Accordingly, Robinson argues that Exhibit D-1 was admissible under Rule 616, which provides, "Evidence of a witness's bias, prejudice, or interest - for or against any party - is admissible to attack the witness's credibility." Miss. R. Evid. 616.

         ¶24. We find that Robinson failed to inform the trial court of the substance of his argument with an offer of proof sufficient to preserve this claim of error. See Miss. R. Evid. 103(a)(2). Beyond generally stating that Exhibit D-1 would go to Wright's "credibility, " Robinson never specifically argued Rule 616 as a basis for Exhibit D-1's admissibility. In fact, while considering the admissibility of Exhibit D-1, the trial court stated, "I don't think the question is whether that relates to any kind of deal [Wright] may have had with the District Attorney. It's being offered as impeachment evidence in regard to his truthfulness under Rule 609." Robinson did not respond to this statement to correct what he now claims to be the trial court's misunderstanding of his argument. Accordingly, we find that Robinson's argument is procedurally barred, because the issue of Wright's bias, prejudice, or interest was not presented clearly to the trial court.

         ¶25. In addition, "Rule 616 must be interpreted as it relates to other rules of evidence, particularly [Rules] 104, 401 and 402." Tillis v. State, 661 So.2d 1139, 1142 (Miss. 1995). For evidence of bias or interest to be admissible under Rule 616, "[i]t must have the tendency, in the case being tried, to make the facts to which the witness testified less probable than they would be without the evidence of bias." Id. Simply stated, Exhibit D-1 has no independent relevance to the issue of Wright's bias, prejudice, or interest. Exhibit D-1 does not mention any deal between Wright and the State in this case, and Robinson failed to offer any other proof that Wright had been offered leniency in his drug-possession case in exchange for his testimony against Robinson.[7] Robinson also never asked Wright whether he had received favorable treatment in exchange for his testimony. In fact, Wright's drug-possession charge was never mentioned during the State's case-in-chief. Robinson relies solely on the proximity in time between Wright's identification of Robinson as the shooter and his guilty plea in the drug-possession case to argue that there is a connection between the two events. But this argument amounts to ...

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