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Brown v. State

Court of Appeals of Mississippi

June 11, 2019

JAMES DEVON BROWN A/K/A JAMES D. BROWN A/K/A JAMES BROWN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

         DATE OF JUDGMENT: 09/01/2017

          JACKSON COUNTY CIRCUIT COURT HON. KATHY KING JACKSON TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: ANGEL DANIELLE PATANO-MYERS

          BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

          McCARTY, J.

         ¶1. On August 30, 2017, James Devon Brown was convicted of aggravated domestic violence with habitual offender status. He was sentenced to life in prison without eligibility for parole. Brown now appeals the trial court's judgment, asserting the following assignments of error: (1) the trial court erred by refusing his lesser-included offense jury instruction; (2) the indictment was insufficient; (3) he was denied his right to a speedy trial; and (4) the sentence imposed by the trial court was improper.

         ¶2. For the following reasons, the judgment is affirmed.

         FACTS

         ¶3. James Devon Brown lived with his girlfriend, Lamonica Bodie, at her home in Gautier, Mississippi. He was unemployed. On the morning of February 3, 2016, Lamonica left the home to give a friend a ride to the bus station. Lamonica did not tell Brown what she was going to do. That same morning Brown left the home in search of a job. While driving, Brown saw Lamonica in her car with another man. Brown began to make repeated phone calls to Lamonica. Through a serious of short phone calls-initiated by Brown and ending with Lamonica hanging up-they arranged to meet back at Lamonica's house.

         ¶4. Once there Lamonica and Brown discussed their relationship. While folding laundry in the bedroom, Lamonica told Brown she wanted to end the relationship. She then asked him to move out. Brown asked Lamonica if he could sleep on the couch until he got his tax return money. Lamonica said no.

         ¶5. Brown suddenly took off his shirt and said, "I don't have anything to lose." Lamonica, feeling uncomfortable, tried to reach for her keys and cellphone. Brown grabbed her from behind and slid his forearm around her neck. As Lamonica tried to pull away, his grip tightened. Brown's arm constricted, and he "was choking [Lamonica] more." Lamonica said at first she could breathe "a little bit." However, "all of a sudden it got tighter and tighter and [she] couldn't breathe." Lamonica testified that as Brown's grip got tighter she "just knew [she] was going to die." The pair then collapsed in a heap on the floor.

         ¶6. During the struggle Lamonica's phone rang, but she could not answer it. Lamonica convinced Brown to let her text the caller to see what the person wanted. Instead, Lamonica texted her mother and told her to call 911. Unfortunately, Lamonica's mother never received the message. Lamonica was unsure whether or not she lost consciousness during the attack. Eventually, Lamonica was able to comfort Brown by rubbing his head, ending the struggle. Brown then told her to "tell them somebody else did this" to her. He then left he house, and Lamonica went inside the bathroom and called 911. The dispatcher testified that during the call Lamonica's voice was "really strained."

         ¶7. Officer Daniel Mathis responded to the call. When he arrived Lamonica was crying and upset. She complained that her head hurt and her throat was sore. Officer Mathis called for an ambulance. Lamonica told the officer that Brown had choked her in the bedroom during a physical altercation. Officer Mathis noticed and photographed extensive bruising on both sides of Lamonica's neck and burst blood vessels in both eyes. The bruising and burst vessels worsened over the following days.

         ¶8. Lamonica provided Officer Mathis with a description of Brown's car. Several minutes later, officers pulled Brown over and arrested him. Lamonica was transported via ambulance to Singing River Hospital, where she was examined by Dr. Steven Boskovick. Dr. Boskovick testified that Lamonica's injuries were consistent with someone who had been strangled.

         ¶9. Lamonica later signed an affidavit stating that the incident was a misunderstanding, and that she no longer wished to go along with or be a part of any prosecution. She said that this affidavit was "before [she] understood what the consequences [were] going to be."

         ¶10. During trial, Brown testified in his own defense. He swore he never put a hand on Lamonica. He stated that he did not strangle her and that they had never been in a physical altercation. His theory was that perhaps a man named Marcus did it. Brown requested that the jury be given a lesser-included offense instruction on simple domestic violence. The trial court denied Brown's request.

         DISCUSSION

         I. The lesser-included offense instruction was not warranted.

         ¶11. During trial, Brown requested a lesser-included offense instruction on simple domestic violence. Whether a defendant is entitled to a lesser-included offense instruction is a question of law. Downs v. State, 962 So.2d 1255, 1258 (¶10) (Miss. 2007). This Court reviews questions of law de novo. Id.

         ¶12. A defendant has an "absolute right" to a jury instruction for a lesser-included offense if the evidence supports such an instruction. Id. at 1260 (¶22). Failure to give such an instruction when warranted is reversible error. Id. Evidence supports an instruction of a lesser-included offense if, when viewed in the light most favorable to the party requesting the instruction, a reasonable juror could not exclude the lesser-included offense beyond a reasonable doubt. Taylor v. State, 577 So.2d 381, 383 (¶6) (Miss. 1991). Alternatively, if the evidence can only support the principal charge, then the lesser-included offense should be refused. Id. at (¶11).

         ¶13. The question is then whether Brown was entitled to the lesser-included instruction. Under the plain language of the law, he is not. A person is guilty of aggravated domestic violence when they strangle, or attempt to strangle, a person they are in a current or former dating relationship with. Miss. Code Ann. § 97-3-7(4)(a)(iii) (Rev. 2014). "Strangle" is defined in the Code as "restrict[ing] the flow of oxygen or blood by intentionally applying pressure on the neck, throat or chest of another person by any means or to intentionally block the nose or mouth of another person by any means." Miss. Code Ann. § 97-3-7(9)(a) (Rev. 2014).

         ¶14. Brown's proposed jury instruction provided that if the jury found Brown "attempted to cause or purposely, knowingly or recklessly caused bodily injury to Lamonica Bodie, or . . . attempted physical menace to put Lamonica Bodie in fear of imminent serious bodily harm" then it should find him guilty of Simple Domestic Violence.[1]

         ¶15. Our Supreme Court has held that "where an altercation begins with a simple assault but, as a matter of law, escalates in a continuous sequence of events to an aggravated assault, the simple assault is subsumed into the aggravated assault." Downs, 962 So.2d at 1262 (¶29). Further, our Supreme Court has also "upheld the refusal of a trial court to give a lesser-included offense instruction on simple assault when the evidence clearly supported the crime of aggravated assault." Id. at (¶30).

         ¶16. If a reasonable juror could, viewing all of the evidence in a light most favorable to Brown, find him guilty of simple domestic violence beyond a reasonable doubt, the instruction should have been included. In weighing whether to grant the lesser-included instruction, the trial court stated:

I have tried to look at the evidence in the light most favorable to the defendant, how a jury could possibly find him guilty of the lesser-included offense. The testimony is clearly that, from the victim, that he choked her, if not to unconsciousness, almost to unconsciousness. The defendant's testimony is that he never touched her.

         ¶17. Strangulation automatically falls under aggravated domestic violence. In this case there was evidence Lamonica was strangled, meaning section 97-3-7-(4)(a)(iii) was appropriate. There was no evidence of simple domestic violence. Brown only offered evidence that he did not do anything.

         ¶18. Brown initiated the altercation by grabbing Lamonica from behind and putting his arm around her neck. Lamonica testified that this limited her breathing. Brown continued to tighten his grip to the point where Lamonica could not breathe. Brown's actions fall within the statute's definition of "strangle."

         ¶19. Because a reasonable jury could not have found Brown guilty of simple domestic violence, the trial court's rejection of a lesser-included instruction was proper.

         II. The indictment was properly amended.

         ¶20. On the day trial was set, Brown rejected the State's plea offer. The State then requested another continuance and moved to amend the indictment against Brown to change his status to a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2015). Brown filed a pro se motion objecting to the habitual offender amendment. The motion to amend was granted.

         A. Sufficiency of Indictment

         ¶21. Brown argues that the State's amended indictment charging him as a habitual offender was "fatally defective" under Rule 14.1 of the Mississippi Rules of Criminal Procedure. Whether an indictment is so flawed as to require reversal is a question of law. Brown v. State, 934 So.2d 1039, 1043 (¶16) (Miss. Ct. App. 2006). Rule 14.1 states that prior convictions used for enhanced punishment must be identified in the indictment including:

the name of the crime, the name of the court in which each such conviction occurred, and the cause number(s), the date(s) of conviction, and, if relevant, the length of time the accused was incarcerated for each such conviction.

         MRCrP 14.1(b) (emphasis added). Brown argues that the State's failure to specify the length of time he was actually incarcerated for his previous offenses invalidates the indictment.

         ¶22. Yet, the new criminal rules were not in effect at the time of Brown's amended indictment. The indictment was amended in February 2017, four months before the Rules went into effect. Instead, the applicable rule is Rule 11.03 ...


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