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Blackwell v. State

Court of Appeals of Mississippi

May 21, 2019

WADE HAMPTON BLACKWELL JR. A/K/A WADE H. BLACKWELL JR. A/K/A WADE HAMPTON BLACKWELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/30/2017

          HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.

          ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: JOEL SMITH

         EN BANC.

          BARNES, C.J.

         ¶1. A jury sitting before the Harrison County Circuit Court found Wade Hampton Blackwell Jr. guilty of two counts of touching a child for lustful purposes. Blackwell appeals and argues that (1) the prosecution should not have been allowed to amend the range of dates listed in the indictment; (2) a prosecution witness should have been precluded from testifying that Blackwell had molested him approximately twenty years earlier; (3) the prosecution made improper comments during its closing argument; (4) the circuit court should have granted his motion for a continuance after the victim gave unanticipated testimony; and (5) his convictions should be reversed based on cumulative error. Finding no error, we affirm the circuit court's judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On January 19, 2015, twelve-year-old John[1] revealed to his mother that Blackwell[2] had been inappropriately touching him. John's parents took him to see therapist Jamie Varnado. After talking to John, Varnado told his parents that they should file a report with the Harrison County Sheriff's Department.[3] The next morning, John's mother met with Investigator Alicia Stevison, who arranged a forensic interview.

         ¶3. On January 29, 2015, Tiffany Lizana conducted John's forensic interview. John reported that Blackwell had reached into John's pants and rubbed his penis and buttocks. John also said that Blackwell's inappropriate touching began during "the summer before last." John would have been ten years old at that time. Later that day, John's mother signed three affidavits that Investigator Stevison prepared and notarized. One affidavit stated that Blackwell had molested a ten-year-old sometime around May 30, 2013. Another stated that he molested an eleven-year-old between May 2013 and May 2014. The third one stated he molested an eleven-year-old between May 2014 and January 2015. Those affidavits resulted in a warrant for Blackwell's arrest.

         ¶4. Blackwell was later indicted and charged with two counts of touching a child for lustful purposes. See Miss. Code Ann. § 97-5-23(1) (Rev. 2014). Collectively, the indictment alleged that Blackwell lustfully touched John's penis and buttocks between January 1, 2014, and January 19, 2015. Blackwell pled not guilty and opted to go to trial.

         ¶5. On the day before Blackwell's trial began, the prosecution filed a motion to amend the indictment. More specifically, the prosecution sought to increase the range of dates alleged in the indictment so it covered inappropriate touching that occurred between January 1, 2013, and January 19, 2015. Blackwell filed a written response in opposition to the State's motion and requested a continuance. Blackwell also filed a motion in limine to preclude evidence of a number of things, including the anticipated testimony of a witness whom Blackwell had molested approximately twenty years earlier.

         ¶6. The parties convened on February 14, 2017, and the circuit court heard several pretrial motions. For purposes of this opinion, the significant events were the circuit court's decisions to grant the prosecution's motion to amend the indictment and to deny Blackwell's motion to prevent the prosecution from introducing evidence that Blackwell previously molested someone else. The remainder of the day was devoted to jury selection.

         ¶7. The next day, the prosecution called John as its first witness. According to John, Blackwell put his hands down John's pants and rubbed his "front and back privates." John explained that Blackwell had rubbed his buttocks "[s]everal" times, and Blackwell rubbed his penis the last time that Blackwell touched him inappropriately. Although John could not remember specific dates that Blackwell's inappropriate touching occurred, he did not deviate from his representation that Blackwell's inappropriate touching began during the summer of 2013. The video of the forensic interview was played during John's cross-examination testimony; so the jury heard John's January 2015 statement that the inappropriate touching began during "the summer before last."

         ¶8. After John testified, the prosecution called his mother and father, Varnado, Emmett Close, Investigator Stevison, and Lizana. All of the witnesses except Close testified regarding their roles in reporting or relaying John's allegations. Over Blackwell's objection, Close testified that Blackwell had molested him approximately twenty years earlier.

         ¶9. Blackwell chose not to testify, and he rested without calling any witnesses. Based on defense counsel's opening statement, cross-examinations, and closing arguments, Blackwell's defense theory was that John's allegations were not credible. More specifically, defense counsel suggested that John made up his allegations to get attention or he imagined them because he had been diagnosed with Tourette syndrome which, according to defense counsel, caused him to experience visual and auditory hallucinations.[4]

         ¶10. The jury found Blackwell guilty of both counts. The circuit court sentenced Blackwell to fifteen years for the first offense and a consecutive ten-year sentence for the second. Blackwell appeals.

         ANALYSIS

         I. AMENDED INDICTMENT

         ¶11. Blackwell claims the circuit court erred when it allowed the prosecution to amend the dates alleged in the indictment shortly before trial. "Trial courts may amend indictments only to correct defects of form." Leonard v. State, 972 So.2d 24, 28 (¶12) (Miss. Ct. App. 2008) (citing Spears v. State, 942 So.2d 772, 774 (¶6) (Miss. 2006)). Substantial defects "must be corrected by the grand jury." Id. "A change in the indictment is permissible if it does not materially alter facts [that] are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case." Id.

         ¶12. At the time of the offenses and Blackwell's trial, the Uniform Rules of Circuit and County Court still applied to criminal proceedings.[5] Rule 7.06(5) required that an "indictment . . . include . . . [t]he date, and if applicable, the time at which the offense was alleged to have been committed." But "a specific date in a child sexual abuse case is not required so long as the defendant is fully and fairly advised of the charge against him." Jenkins v. State, 131 So.3d 544, 549 (¶14) (Miss. 2013) (internal quotation marks omitted).

         ¶13. Blackwell reiterates his position that the amendment prejudiced his defense that he never touched John inappropriately, especially not during the dates alleged in the indictment. Blackwell's attorney conceded that he was given a copy of John's forensic interview during discovery, and John had said that Blackwell began inappropriately touching John during "the summer before last," meaning the summer of 2013. Even so, defense counsel argued that because the beginning date in the indictment was January 1, 2014, he essentially had an affirmative defense before the amendment, and he lost that defense after the amendment.

         ¶14. Blackwell's position overlooks the fact that although John could not remember exactly when Blackwell touched him inappropriately, he said that it began during the summer of 2013 and continued afterward. The jury could have reasonably found Blackwell guilty for touching that occurred during the dates originally listed in the indictment. Plus, Blackwell's defense that he never touched John was equally available before and after the amendment. See Leonard, 972 So.2d at 28 (¶13). Further, Blackwell was not unfairly surprised by the amendment. The prosecution gave defense counsel a copy of John's forensic interview more than a year before Blackwell's trial; so defense counsel had ample notice of John's statement that Blackwell began touching him during "the summer before last," meaning the summer of 2013.

         ¶15. On a different note, Blackwell also argues that the amendment was improper because the grand jury had refused to charge Blackwell with inappropriately touching John before January 1, 2014. Blackwell's argument is based on the affidavits that John's mother signed on January 29, 2015. Blackwell assumes that the prosecution presented the affidavits to the grand jury and that the grand jury returned the two counts in the indictment based on the affidavits.

         ¶16. Defense counsel did not make this argument during the pretrial hearing on the prosecution's motion to amend the indictment. In fact, defense counsel did not make a similar argument to the circuit court until the next morning. Assuming for the sake of discussion that defense counsel's day-late argument was sufficient to preserve this claim, we would still find it meritless. There is no indication that Blackwell was given any information about what occurred during the grand jury proceedings. Aside from defense counsel's speculation and conjecture, nothing suggests that the prosecution presented the affidavits to the grand jury. Grand jury proceedings are generally secret. Miss. Code Ann. § 13-5-61 (Rev. 2012); URCCC 7.04. We do not know what the prosecution presented to the grand jury, and neither does Blackwell's attorney. Because the record simply does not support defense counsel's claim that the grand jury "refused" to charge Blackwell with conduct that occurred before January 1, 2014, we would find that this issue must fail even if it had been properly preserved.

         II. PRIOR BAD ACTS

         ¶17. Next, Blackwell claims that the circuit court erred when it allowed Close to testify that Blackwell had touched him inappropriately approximately twenty years earlier. According to Blackwell, Close's testimony should have been precluded because he and John did not describe similar allegations, and Close's testimony was impermissible under Rules 404(b) and 403 of the Mississippi Rules of Evidence. Finally, Blackwell argues that the circuit judge did not adequately articulate his reasoning that Close's testimony was admissible. "We review the circuit ...


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