ADRIAN DONTE WILSON A/K/A ADRIAN WILSON A/K/A ADRIAN DEONTE WILSON A/K/A ADRIAN DONTE' WILSON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 07/18/2017
COUNTY CIRCUIT COURT HON. LAMAR PICKARD TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
W. DANIEL HINCHCLIFF ADRIAN DONTE WILSON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
IRVING, P.J., CARLTON AND FAIR, JJ.
A Copiah County jury found Adrian Donte Wilson guilty of two
counts of burglary of a building. Wilson was sentenced as a
nonviolent habitual offender to serve two consecutive
seven-year terms in the custody of the Mississippi Department
of Corrections. Wilson appeals. Finding Wilson's
arguments to be without merit and that there are no other
arguable issues in the record, we affirm Wilson's
convictions and sentences.
OF FACTS AND PROCEDURAL HISTORY
An individual came onto the premises of the Coleman Hill
Hunting Club on May 25, 2015, and broke into the separate
camp houses of four club members: Pat Patrick, Chad
Hutchison, Greg Lee, and Lindy Lingo. Approximately a year
later, Wilson was indicted on four counts of burglary of a
building in violation of Mississippi Code Annotated section
97-17-33 (Rev. 2014). The indictment charged that Wilson
broke into and entered the four separate camp houses with the
intent to "feloniously to take, steal, and carry away
goods and chattels of value." The indictment also
charged that Wilson qualified for enhanced sentencing as a
nonviolent habitual offender.
Wilson was tried before a jury in the Copiah County Circuit
Court on July 18, 2017. Three of the four club members
testified at trial. Patrick testified that he went to the camp
on May 28, 2015, and he found that someone had entered his
camp house and went through it "looking for stuff."
Patrick further testified that he had set up a trail camera
and pointed it at the door of his camp house. Photographs
stored on the trail camera's SIM card were admitted as
exhibits S-2 through S-7.
Patrick then testified that he saw that other camp houses had
been entered, so he called the sheriff's office and the
other club members. Patrick and members of the sheriff's
office walked around the camp houses, and the officers took
Lee, the State's second witness, testified that he went
to the camp the same day that Patrick called him. He
testified that he someone had gone through his camp house and
taken a shop vac and a window unit air conditioner.
Photographs of the inside of Lee's camp house were
admitted into evidence without objection as exhibits S-9
Next, the State called Lingo. He testified that he had locked
his camp house the last time he was there. When he checked it
after Patrick's call, he found that his door had been
pried open and two TVs, an air compressor, a skill saw, and
his air conditioner were missing. Photographs of Lingo's
damaged door were admitted into evidence without objection as
exhibits S-12 and S-13. Photographs of the interior of
Lingo's camp house, showing where the missing items had
been, were admitted without objection as the State's
exhibits S-14 through S-17. One of the missing TVs was a
Vizio. Lingo was shown a photograph of a Vizio TV labeled
with the model number, a bar code, and the following
information: "06-16-2016 Fortenberry Lindshey D . . .
." Lingo identified the TV as one of the two that had
been taken from his camp house. That photograph was admitted
into evidence without objection as exhibit S-20.
Lingo was also shown a photograph of a trash can that
contained a plastic tip from a cigar. Lingo confirmed that
the photograph accurately showed the bathroom trash can from
his camp house when he checked it after the break-in. Lingo
further testified that the cigar tip was not his. He
testified that no one smokes in his camp house and he always
takes the trash out before he leaves. Two photographs of the
trash can with the plastic tip in it were admitted into
evidence without objections as exhibits S-18 and S-19.
All three witnesses, Patrick, Lee, and Lingo, testified that
they had not given anyone permission to enter or to take
anything from their camp houses.
The State then called Lynshay Fortenberry who identified Wilson
in exhibit S-5 (a trail camera photo of Wilson exiting
Patrick's camp house) and testified that she bought the
Vizio TV depicted in S-20 from Wilson. She further testified
that she pawned the TV a week after she bought it. She was
contacted by the Copiah County Sheriff's Department and
informed that the TV had been reported stolen.
Jeremy Thornton was the State's next witness. At the time
of the break-ins, he was employed as an investigator with the
Copiah County Sheriff's Department, and was one of the
investigators on this case. He visited the camp a few days
after the break-ins and took photographs. He testified that a
deputy had visited the camp on May 28, 2015, and collected
the SIM card from Patrick's trail camera. Investigator
Thornton also testified that the SIM card was placed in an
evidence bag, taken to the sheriff's department, and that
he then downloaded some of the photographs that were on the
SIM card and stored copies on a CD. The CD was introduced
into evidence without objection as exhibit S-21. The
photographs were displayed to the jury.
Investigator Thornton also testified that on June 3, 2015,
Investigator Milton Twiner collected the plastic cigar tip
that was found in Lingo's trash can. The cigar tip was
taken to the Mississippi Crime Lab. Investigator Twiner did
not testify because he was on medical leave.
The State's next witness was Barbara Hurrod. She
identified exhibit S-22, two photographs of Wilson that
showed a tattoo on his right shoulder and another tattoo on
his left arm. She testified that she took the photographs
when "she was booking [Wilson] in." Exhibit S-22
was admitted into evidence without objection.
Janet Burchfield was the State's final witness. She was
qualified and accepted as an expert witness in forensic
biology specializing in serology and DNA. Burchfield was
shown "Mississippi Crime Laboratory submission 1"
and identified it as a sealed bag containing the plastic
cigar tip. She testified that she compared a known DNA
sample from Wilson to DNA recovered from the
plastic cigar tip. Burchfield explained that DNA is unique to
every individual with the exception of identical twins. She
opined that the DNA recovered from the cigar tip matched the
DNA from Wilson's known sample.
At the close of the State's case, the defense moved for a
directed verdict on all counts. The trial court granted a
directed verdict on Count II, burglary of Hutchison's
camp house, as Hutchison did not testify at trial. The trial
court denied the motion on the other three counts. Wilson did
not testify, and the defense called no witnesses. At the
close of evidence, defense counsel unsuccessfully renewed the
motion for a directed verdict.
The jury returned guilty verdicts on Count I, burglary of
Patrick's camp house, and Count IV, burglary of
Lingo's camp house. The trial court conducted a separate
sentencing hearing and found that Wilson qualified for
enhanced sentencing as a nonviolent habitual offender. Wilson
was sentenced to serve seven years without parole on Count I
and seven years without parole on Count IV, to be served
consecutively to the sentence in Count I. Wilson appealed.
In Lindsey v. State, 939 So.2d 743, 748 (¶18)
(Miss. 2005), the Mississippi Supreme Court established a
procedure "to govern cases where appellate counsel
represents an indigent criminal defendant and does not
believe his or her client's case presents any arguable
issues on appeal." Thomas v. State, 247 So.3d
1252, 1256 (¶9) (Miss. 2018) (internal quotation mark
omitted). In particular, Lindsey requires:
(1) Counsel must file and serve a brief in compliance with
Mississippi Rule of Appellate Procedure 28(a)(1)-(5), (8);
(2) As a part of the brief filed in compliance with Rule 28,
counsel must certify that there are no arguable issues
supporting the client's appeal, and he or she has reached
this conclusion after scouring the record thoroughly,
specifically examining: (a) the reason for the arrest and the
circumstances surrounding arrest; (b) any possible violations
of the client's right to counsel; (c) the entire trial
transcript; (d) all rulings of the trial court; (e) possible
prosecutorial misconduct; (f) all jury instructions; (g) all
exhibits, whether admitted into evidence or not; and (h)
possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to
the defendant, inform the client that counsel could find no
arguable issues in the record, and advise the client of his
or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or
should the appellate court discover any arguable issue in its
review of the record, the court must, if circumstances
warrant, require appellate counsel to submit supplemental
briefing on the issue, regardless of the probability of the
defendant's success on appeal.
(5) Once briefing is complete, the appellate court must
consider the case on its merits and render a decision.
Thomas, 246 So.3d at 927 (¶12).
Upon review, we find that Wilson's appellate counsel
fully complied with Lindsey.
Wilson has filed a pro se supplemental brief. He claims: (1)
the trial court erred in denying his motion to dismiss Count
I; (2) the trial court erred when it admitted photographs of
the crime scene that were taken in 2017; (3) the trial court
violated his rights to a speedy trial; (4) the trial court
erred when it denied his motion in limine to exclude inmate
intake photographs of him; (5) the trial court erred when it
denied his motion for a new trial; (6) the trial court erred
when it denied his motion for a judgment notwithstanding the
verdict (JNOV); (7) Wilson's trial counsel, the
prosecutor, and the trial court judge conspired to deprive
him of his due process rights; and (8) the State struck
potential jurors based upon their race. We address each of
these arguments below.
The burglary statute at issue in this case is section
97-17-33. This statute provides, in relevant part:
(1) Every person who shall be convicted of breaking and
entering, in the day or night, any shop, store, booth, tent,
warehouse, or other building or private room or office
therein, . . . or trailer in which any goods, merchandise,
equipment or valuable thing shall be kept for use . . . with
intent to steal therein, or to commit any felony, . . . shall
be guilty of burglary, and imprisoned in the penitentiary not
more than seven (7) years.
the two elements the State was required to prove to support
the Patrick and Lingo burglary convictions are that Wilson
"broke and entered [their camp houses] . . . with intent
to steal or commit a felony." Genry v. State,
767 So.2d 302, 309 (¶21) (Miss. Ct. App. 2000).
The Motion to Dismiss Count I
Wilson asserts that the trial court erred in denying his
motion to dismiss Count I, which charged Wilson with burglary
of Patrick's camp house. Wilson's sole basis for this
assertion is that there was insufficient evidence to support
a burglary charge against him relating to Patrick's camp
house because the State offered no physical evidence to
support Patrick's statement that "someone [had] been
going through his stuff."
We reject Wilson's first assignment of error on
procedural grounds because he waived this issue for appeal.
We find nothing in the record that indicates that the trial
court entered an order on Wilson's motion to dismiss
Count I. A party must seek a ruling on an objection or
motion. The failure to bring a motion to the attention of the
trial court and request a hearing waives the issue for
appeal. Craft v. State, 832 So.2d 467, 471
(¶10) (Miss. 2002); Reed v. State, 31 So.3d 48,
57 (¶36) (Miss. Ct. App. 2009).
We also find that Wilson's claim lacks merit because a
pretrial motion to dismiss an indictment, or any count of an
indictment, is not a permissible means to challenge the
sufficiency of the evidence, as Wilson does here. State
v. Parkman, 106 So.3d 378, 380-81 (¶¶6-8)
(Miss. Ct. App. 2012). As we explained in that case:
Based on the historical role of the grand jury as an
independent accusatory body, courts have shown great
reluctance to allow pretrial challenges to evidentiary
support for an indictment. "An indictment returned by a
legally constituted and unbiased grand jury, if valid on its
face, is enough to call for trial of the charge on the
merits. The Fifth Amendment requires nothing more."
Costello v. United States, 350 U.S. 359, 363 (1956).
Parkman, 106 So.3d at 380 (¶6). The defendant
in Parkman "did not contend count three of his
indictment failed to charge a cognizable [crime]. Instead, he
challenged the sufficiency of the State's evidence
supporting [that] count." Id. at (¶7).
Similarly, Wilson does not assert that the elements of
burglary were not charged in Count I; rather, he asserts that
insufficient evidence to support Count I was presented to the
grand jury. As we explained in Parkman under the
same circumstances, pretrial dismissal is not the proper
remedy. Id. at 380-81 (¶¶6-8). Instead,
"the appropriate time to test the sufficiency of
evidence for an indictment, or any count in an indictment, is
during trial on the merits after the State has presented its
case-not before trial." Id. Continuing, we
held: "[O]ur precedent is clear that a trial judge has
no discretion to dismiss an indictment, nor any of its
counts, prior to trial, where a defendant's sole claim is
a lack of evidentiary support." Id. at 381
(¶8). Based on this precedent, we find that Wilson's
first assignment of error is without merit.
Admission of (1) Photographs of the Crime Scene Taken
in 2017; and (2) Inmate Intake Photographs
In his pro se supplemental brief, Wilson raised two separate
assignments of error relating to the admissibility of certain
photographs. To streamline our discussion ...