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Wilson v. State

Court of Appeals of Mississippi

December 11, 2018


          DATE OF JUDGMENT: 07/18/2017





          CARLTON, J.

         ¶1. 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.[1]


         ¶2. 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.

         ¶3. Wilson was tried before a jury in the Copiah County Circuit Court on July 18, 2017.[2] Three of the four club members testified at trial.[3] 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.[4]

         ¶4. 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 photographs.

         ¶5. 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 through S-11.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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.

         ¶9. The State then called Lynshay[5] 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.

         ¶10. 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.

         ¶11. 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.

         ¶12. 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.

         ¶13. 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[6] 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.

         ¶14. 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.

         ¶15. The jury returned guilty verdicts on Count I, burglary of Patrick's camp house, and Count IV, burglary of Lingo's camp house.[7] 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.


         ¶16. 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).

         ¶17. Upon review, we find that Wilson's appellate counsel fully complied with Lindsey.

         ¶18. 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.[8]


         ¶19. 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.

         Thus, 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).

         I. The Motion to Dismiss Count I

         ¶20. 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.[9] 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."[10]

         ¶21. 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).

         ¶22. 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.

         II. Admission of (1) Photographs of the Crime Scene Taken in 2017; and (2) Inmate Intake Photographs of Wilson

         ¶23. In his pro se supplemental brief, Wilson raised two separate assignments of error relating to the admissibility of certain photographs. To streamline our discussion ...

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