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Bell v. State

Court of Appeals of Mississippi

July 2, 2019

KELVIN BELL A/K/A KELVIN LEVISE BELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 09/08/2017

          WARREN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. M. JAMES CHANEY JR.

          ATTORNEYS FOR APPELLANT: FRANK G. VOLLOR TRACIE DIANE HERRING

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN MATTHEW WYATT WALTON

          DISTRICT ATTORNEY: RICHARD EARL SMITH JR.

         EN BANC

          J. WILSON, P.J.

         ¶1. Following a jury trial, Kelvin Bell was convicted of two counts of aggravated domestic violence against his girlfriend, Marilyn Ragan. The circuit court sentenced Bell to two concurrent terms of twenty years in the custody of the Department of Corrections with five years suspended and fifteen years to serve, followed by five years of post-release supervision. On appeal, Bell argues that the trial judge erred by: (1) granting the State's motion to amend Count II of the indictment after the close of the evidence; (2) overruling his Batson[1] objections; (3) admitting testimony that Ragan went to a domestic violence shelter and certain testimony of the shelter's director; (4) allowing one police officer to opine on Ragan's credibility and allowing another officer to testify that Ragan exhibited "battered woman syndrome"; (5) allowing a physician assistant who treated Ragan to testify that Ragan's "orbital fracture [was] consistent with trauma, a direct blow hitting [her] in the eye"; (6)excluding the testimony of a witness whom Bell first disclosed on the fourth day of trial; (7)questioning Bell's expert witness about Bell's insanity defense; (8) and allowing the State to question Bell and his expert witness about Bell's history of cocaine and alcohol abuse. Finally, Bell argues that he is entitled to a new trial based on the cumulative error doctrine.

         ¶2. We conclude that the trial judge erred when he allowed the State to amend Count II of the indictment after the close of the evidence. Moreover, the evidence presented at trial was insufficient to prove the offense as it was charged in Count II of the indictment. Therefore, we reverse and render Bell's conviction on Count II. However, we find no error in the trial that requires reversal of Bell's conviction on Count I, and we conclude that Bell received a fair trial on Count I. Therefore, Bell's conviction and concurrent sentence on Count I are affirmed.

         FACTS AND PROCEDURAL HISTORY

         ¶3. In December 2014, Bell and Ragan had been dating and living together for several months. Two days after Christmas, Ragan's sister Minnie Montgomery asked her son-in-law, Officer Stanley Williams of the Vicksburg Police Department, to check on Ragan. Montgomery and Ragan's seventeen-year-old daughter, Kayla Neal, were concerned because they had not heard from Ragan since the previous day when she abruptly left the home that she and Bell shared. After an unsuccessful first attempt, Officer Williams was finally able to enter the home. As Officer Williams was talking to Bell, another officer saw Ragan in the bedroom. The officer saw that Ragan's face was bruised and swollen, and he asked her about her injuries. Ragan told the officer that she had fallen. However, when Officer Williams asked her about her injuries, Ragan said, "Please just get me out of here. I need to get out of here."

         ¶4. Officer Williams then took Ragan to the Vicksburg Police Department. Ragan told Lieutenant Penny Jones that Bell had punched her in the face. Lieutenant Jones took pictures of Ragan's face, which show bruising on her face, a swollen eye, and three small cuts. Jones also took a brief statement from Ragan and filled out a report. Jones noted that Ragan's face was scratched and her left eye was swollen, purple, and black. Jones then turned the case over to Lieutenant Beverly Prentiss.

         ¶5. Ragan subsequently went to Haven House, a domestic violence shelter in Vicksburg. In addition, although Ragan had initially refused treatment, she went to the emergency room on December 28, 2014. She was treated by physician assistant Daniel Silvio, who ordered a CT scan that revealed "blowout fractures of the medial left orbital wall and the left orbital floor." Bell had initially been arrested for simple assault, but Lieutenant Prentiss upgraded the charge to a felony when she learned about Ragan's orbital fractures.

         ¶6. In May 2015, Bell was indicted for two counts of aggravated domestic violence (Count I and Count II) and one count of kidnaping (Count III). Count I alleged that Bell "attempt[ed] to cause or purposely or knowingly cause[d] serious bodily injury to . . . Ragan, with a deadly weapon or other means likely to produce death or serious bodily harm by hitting the said Marilyn Ragan in her left eye with his fists causing her to suffer an orbital fracture." Count II alleged that Bell "attempt[ed] to cause or purposely or knowingly cause[d] serious bodily injury to . . . Ragan, with a deadly weapon or other means likely to produce death or serious bodily harm by using a knife to cut her face and neck." In October 2015, Bell filed a notice of his intent to pursue an insanity defense, and the State subsequently obtained an independent psychiatric evaluation of him. Bell's case eventually proceeded to a five-day trial in August 2017.

         ¶7. The State called eight witnesses in its case-in-chief. Ragan testified that Bell began assaulting her while they were driving in Bell's truck. She testified that Bell became angry about the length of her recent phone call with her estranged husband, Karl Neal.[2] Bell then punched her in the face with a closed fist. He then stopped the truck, got out of the truck, and hit her in the face a second time. Ragan testified that she "felt the bone break or . . . heard it break" when Bell hit her the second time, and she "passed out a little." When she regained consciousness, Bell had picked her up by her hair and was shaking her. He then forced her back in the truck and resumed driving. Bell later told Ragan that he was going to kill her before the police could find her, and he pointed out where he was going to bury her body. Bell then began hitting her in the chest and stomach with his fist.

         ¶8. When Bell and Ragan returned to their house, Bell told Ragan to take off all of her clothes because he did not want her to try to leave. Then Bell pulled out a knife and started "sticking" the right side of her face with the knife. Ragan testified that she "finally got [Bell] to calm down" but that she could not escape because Bell "made [her] hold him" until he went to sleep. Ragan testified that she initially told police officers that her injuries resulted from a fall because Bell and Bell's mother had urged her to say that.

         ¶9. Montgomery and Kayla Neal testified about contacting authorities after they could not contact Ragan and became concerned. Officer Williams, Lieutenant Jones, and Lieutenant Prentiss also testified. Georgia Grotowitz, the director of Haven House, testified regarding her interaction with Ragan. Silvio testified about Ragan's condition and injuries when he treated her in the emergency room on December 28, 2014. He also testified as an expert in the field of "emergency medicine." Silvio testified that Ragan's "orbital fracture [was] consistent with trauma, a direct blow hitting [her] in the eye."

         ¶10. Bell called six witnesses and also testified in his own defense. Bell's psychiatrist, Dr. Clyde Glenn, testified that Bell had been diagnosed with bipolar disorder. Dr. Glenn could not say that Bell was experiencing a "manic episode" on December 26, 2014. But Dr. Glenn opined that if Bell had been experiencing "an extreme manic state" at that time, "he wouldn't necessarily understand the . . . quality of his actions or that they were wrong."

         ¶11. Bell also called his daughter, two of his aunts, and a family friend. They described some of their various experiences with Bell and "behavioral problems" that he had exhibited since he was young. In general, they claimed that Bell sometimes did not understand the consequences of his actions or the difference between right and wrong. Bell's daughter testified that stress tends to make Bell's problems worse and that Ragan's unemployment had been a recent source of stress.

         ¶12. Bell then testified in his own defense. Bell denied that he assaulted Ragan in any manner, claimed that Ragan injured herself when she fell in the garage, and gave a detailed account of his own version of the events of December 26-27, 2014. He testified that he and Ragan traveled to Jackson and Ridgeland, stopped at a barber shop where he worked, ate dinner at the Mediterranean Grill on Old Canton Road, and sat on a pier at the Reservoir. Bell claimed that he and Ragan extensively discussed their relationship and his desire to end the relationship. Finally, they returned home, stopping in Clinton on the way back to Vicksburg. Bell testified to the details of alleged conversations with Ragan and others on December 26. Bell stated that he slept in his "man cave" that night. He claimed that he fell asleep watching TV and awoke to the sound of Ragan running down the hall and into a bathroom. According to Bell, Ragan said that she had fallen down stairs in the garage but would be alright. Bell testified that he did not see Ragan's face that night but that her eye was swollen and bruised when he saw her in the morning. Bell was adamant that he could recall the events of December 26-27 and that his detailed account was "the truth." Bell confirmed that his thought processes were intact throughout the relevant time period and that he did not have any type of manic episode on December 26 or 27.

         ¶13. Bell's final witness was his and Ragan's former landlord, John Tuminello. He called into question Ragan's testimony that she did not take any of Bell's belongings when she moved out of their house sometime after the alleged assault. According to Tuminello, Ragan left the house "completely empty" when she moved out.

         ¶14. After Bell rested, the prosecution called psychiatrist Phillip L. Scurria, M.D. as a rebuttal witness. Prior to trial, Dr. Scurria conducted an independent psychiatric examination of Bell. Dr. Scurria testified at trial as an expert in the field of psychiatry. Based on Bell's own account of the events and other information, Dr. Scurria concluded that Bell understood the nature of his actions and the difference between right and wrong at the time of the offense. Dr. Scurria further opined that Bell was not suffering from any psychotic symptoms, such as delusions or hallucinations, that would have prevented him from understanding the nature of his actions or the difference between right and wrong. Finally, the prosecution called Karl Neal, who testified briefly as a rebuttal/impeachment witness.

         ¶15. The jury found Bell guilty of both counts of aggravated domestic violence but acquitted him of kidnapping. The circuit court sentenced Bell to two concurrent terms of twenty years in the custody of the Department of Corrections with five years suspended and fifteen years to serve, followed by five years of post-release supervision. On Count I, the court also imposed a fine of $5, 000, court costs of $104, and a state assessment of $280.50. No fines, costs, or assessments were imposed on Count II. Bell filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and later filed a notice of appeal.

         ANALYSIS

         I. MOTION TO AMEND COUNT II OF THE INDICTMENT

         ¶16. Count II of the indictment alleged that Bell committed aggravated domestic assault in violation of Mississippi Code Annotated subsection 97-3-7(4)(a)(ii) (Rev. 2015) "by attempting to cause or purposely or knowingly caus[ing] serious bodily injury to . . . Ragan with a deadly weapon or other means likely to produce death or serious bodily harm by using a knife to cut her face and neck . . . ." However, subsection 97-3-7(4)(a)(ii) does not require proof that the defendant caused serious bodily injury. Instead, it provides that a person is guilty of aggravated domestic violence if he "[a]ttempts to cause or purposely of knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm . . . ." Id. (emphasis added).[3]

         ¶17. After both sides finally rested and the evidence was closed, the State moved to amend Count II of the indictment to delete the word "serious." The State argued that the word "serious" could be deleted because it was "surplusage." The trial judge allowed the amendment over Bell's objection. Bell claims the trial judge erred. We agree.

         ¶18. "It is fundamental that courts may amend indictments only to correct defects of form . . . ." Spears v. State, 942 So.2d 772, 774 (¶6) (Miss. 2006) (emphasis added) (quoting Evans v. State, 813 So.2d 724, 728 (¶21) (Miss. 2002)). "[D]efects of substance must be corrected by the grand jury." Id. (quoting Evans, 813 So.2d at 728 (¶21)). "Amendments to an indictment are permissible if they do not prejudice the defendant by (1) materially altering the essential facts of the offense or (2) materially altering a defense under the original indictment." Lee v. State, 944 So.2d 35, 40 (¶16) (Miss. 2006). In addition, our Supreme Court has established "the following test for analyzing an amendment to an indictment for the purpose of removing surplusage":

(1) the removal of the surplusage must not change the substance of the offense charged; (2) the defendant must be afforded a fair opportunity to present a defense and must not be unfairly surprised; (3) the removal of the surplusage must not materially alter the essential facts of the offense; and (4) the removal of the surplusage must not alter a defense under the original indictment.

Id.

         ¶19. In granting the State's motion to amend, the trial judge relied on Yarbrough v. State, 996 So.2d 804 (Miss. Ct. App. 2008). In that case, the trial judge granted the State's motion to amend the indictment "[o]n the day of trial." Id. at 808 (¶14). The amendment struck the word "serious" from the charge that the defendant (Yarborough) committed aggravated assault upon a law enforcement officer. Id. at (¶15). As a result, the State only had to prove that the defendant caused bodily injury to the officer. Id. This Court stated that the amendment did not "change the essence of the charge" but "simply changed the extent of the injuries suffered by [the officer]." Id. at (¶16). In addition, this Court found that the amendment did not impair the defense because "Yarbrough's defense [was] that he was only trying to get away and did not mean to hurt [the officer]." We found that "Yarbrough's defense . . . would have been the same whether the indictment contained the word serious or not." Id.

         ¶20. Yarbrough is materially distinguishable from this case for two reasons. First, in Yarborough, the State at least moved to amend the indictment prior to the start of trial. Id. at 808 (¶14). Therefore, Yarbrough was able to present his defense at trial with an accurate understanding of the allegations against him. Id. at (¶16). In this case, in contrast, the State did not move to amend the indictment until after both sides had finally rested and the evidence was closed. Thus, Bell had no opportunity to adapt his defense to the amended indictment.

         ¶21. Second, this Court found in Yarbrough that Yarbrough's defense was not impaired because it "would have been the same whether the indictment contained the word serious or not." Id. In contrast, part of Bell's defense to Count II was the absence of proof that he caused any serious bodily injury with a knife. Bell denied that he assaulted Ragan and denied that he used a knife, but he also questioned the prosecution's witnesses about the seriousness of any alleged knife wounds. Lieutenant Prentiss characterized the alleged knife wounds as "little nicks and scratches." Other witnesses testified similarly, and neither Ragan nor anyone else described the alleged knife wounds as deep or "serious." Indeed, Silvio did not even discuss the knife wounds in his testimony. And although Ragan's hospital records extensively document her orbital fracture, there is no mention of a serious knife wound. Finally, the contemporaneous photos of Ragan in evidence show only three slight, superficial cuts-one at her left eyebrow and two below her right cheek. Without minimizing the seriousness or severity of Ragan's other injuries, there is no evidence that Bell intended to cause or did cause a "serious bodily injury" with a knife. Thus, until the indictment was amended after the close of the evidence, the lack of proof of any "serious bodily injury" was a viable defense to Count II. Unlike in Yarbrough, we cannot say that Bell's defense was not impaired or that it "would have been the same whether the indictment contained the word serious or not." Id.

         ¶22. In this case, the belated amendment to the indictment failed at least two requirements of the "test" laid out by the Supreme Court in Lee, 944 So.2d at 40 (¶16). First, Bell was "unfairly surprised" by the amendment because it materially changed the allegations after the evidence was closed. Id. Second, the amendment "alter[ed] a defense under the original indictment." Id. Indeed, it completely eliminated a meritorious defense to Count II as it had been charged by the grand jury in the original indictment. Accordingly, we conclude that the trial judge erred by allowing the amendment to the indictment. Id.

         ¶23. We also conclude that the Supreme Court's decision in Richmond v. State, 751 So.2d 1042 (Miss. 1999), is relevant to our analysis of this issue. In Richmond, an indictment for motor vehicle theft specifically alleged that the stolen car had a value of more than $250-even though the value of the car was not an element of the crime under the motor vehicle theft statute. Id. at 1042 (¶¶8-10). Prior to trial, the State moved to amend the indictment to delete the value of the car as "surplusage," but Richmond objected, and the trial judge sustained his objection. Id. at 1046 (¶19). On appeal, the Supreme Court stated:

[T]he State handicapped itself through this indictment by adding an unnecessary element of proof. [The trial judge] recognized that to allow an amendment such as striking the value of the car would be a substantive change in the indictment. [The trial judge] therefore correctly required the State to prove the element of value pursuant to Richmond's objection.

Id. (emphasis added).

         ¶24. We acknowledge that subsequent decisions have limited Richmond's holding. In Lee, the Court stated that "[t]he trial court in Richmond would have committed no abuse of discretion" if it had permitted the amendment to the indictment. Lee, 944 So.2d at 39 (¶11). The Court further stated that "Richmond does not serve as precedent for the issue of whether a motion to amend an indictment should be granted or denied." Id. at (¶12). "Rather, Richmond remains authority in cases where the indictment includes surplusage which was not removed prior to trial." Id.

         ¶25. This case involves the scenario in which Richmond is still binding and good law. Count II of Bell's "indictment include[d] surplusage which was not removed prior to trial." Id. (emphasis added).[4] Indeed, it was not removed prior to the close of the evidence. Because "Richmond remains authority" in that scenario, id., the trial judge should have followed Richmond and "required the State to prove the element of [serious bodily injury]." Richmond, 751 So.2d at 1046 (¶19).

         ¶26. The remaining question is whether Bell may be tried again on Count II. We conclude that Bell's conviction on Count II must be reversed and rendered because the State failed to prove the offense as it was charged in the indictment. A serious bodily injury is an injury that "creates a substantial risk of death or . . . causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Johnson v. State, 252 So.3d 597, 600 (¶13) (Miss. Ct. App. 2017) (quoting Fleming v. State, 604 So.2d 280, 292 (Miss. 1992)). For the reasons mentioned above, the State failed to prove an injury of such seriousness. The State's witnesses described Ragan's cuts as "minor cuts," "small nicks," or "little nicks and scratches," and photos show only three slight, superficial cuts. Silvio did not mention any cuts in his testimony, and Ragan's medical records do not contain any reference to any serious knife wound. No reasonable jury could have found that Ragan's minor nicks or scratches constituted "serious bodily injury."

         ¶27. In this case, the trial judge erred by allowing the amendment to the indictment. The trial judge should have required the State to prove the additional element of "serious bodily injury." Had the trial judge done so, Bell would have been entitled to a directed verdict because no reasonable jury could have found beyond a reasonable doubt that Bell committed the offense as charged in Count II of the indictment. "[T]he State is not permitted a second bite at the apple" when it fails to establish an "element of proof." White v. State, 532 So.2d 1207, 1222 (Miss. 1988). Accordingly, Bell's conviction on Count II of the indictment is reversed and rendered. Our remaining discussion pertains only to Count I.

         II. BATSON

         ¶28. During jury selection, the State exercised ten peremptory strikes, while Bell used all twelve of his peremptory strikes. Thus, the jury was selected from the first thirty-four members of the venire who were not excused or struck for cause. Nineteen of those thirty-four venire members were black. The State used nine of its ten peremptory strikes against black venire members. The jury initially selected for Bell's trial consisted of five or six black jurors and six or seven white jurors.[5]

         ¶29. At the conclusion of jury selection, Bell raised a Batson challenge. Before the trial judge determined whether Bell had made a prima facie showing that the State exercised one or more strikes based on race, one of the prosecutors stated that, "to save time," he could "give [the court] race-neutral reasons" for the State's strikes. The State then proceeded to offer race-neutral reasons for each challenged strike. The trial judge sustained Bell's challenge to one strike and placed that venire member on the jury.[6] However, the judge overruled the remainder of Bell's Batson challenges. On appeal, Bell argues that the trial judge erred by overruling his challenges with respect to jurors 59, 133, and 138.

         ¶30. The use of a peremptory strike to remove a prospective juror based on race violates the United States Constitution. See, e.g., Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016). A "Batson challenge" requires a three-step analysis:

First, the party objecting to the peremptory strike of a potential juror must make a prima facie showing that race was the criterion for the strike. Second, upon such a showing, the burden shifts to the State to articulate a race-neutral reason for excluding that particular juror. Finally, after a race-neutral explanation has been offered by the prosecution, the trial court must determine whether the objecting party has met its burden to prove that there has been purposeful discrimination in the exercise of the peremptory strike, i.e., that the reason given was a pretext for discrimination.

Corrothers v. State, 148 So.3d 278, 304-05 (¶61) (Miss. 2015) (quoting Pitchford v. State, 45 So.3d 216, 224 (¶14) (Miss. 2010)).

         ¶31. When-as in this case-the proponent of the strike offers race-neutral reasons before the court finds a prima face case of discrimination, step one of the Batson analysis "is moot." H.A.S. Elec. Contractors Inc. v. Hemphill Constr. Co., 232 So.3d 117, 123 (¶16) (Miss. 2016) (quoting Hughes v. State, 735 So.2d 238, 250 (¶27) (Miss. 1999)). Therefore, our analysis of Bell's challenges focuses on steps two and three of the Batson analysis.

         ¶32. The State meets its burden at step two "by offering a race-neutral reason for the strike." Corrothers, 148 So.3d at 305 (¶62). The "reason need not be persuasive or even plausible; so long as the reasons are not inherently discriminatory, they will be deemed race-neutral." Id. (quoting Batiste v. State, 121 So.3d 808, 848 (¶82) (Miss. 2013)). Even "fantastic," "silly," or "superstitious" reasons are sufficient to satisfy step two unless "discriminatory intent is inherent in the . . . explanation." Purkett v. Elem, 514 U.S. 765, 768 (1995).

         ¶33. At step three, "the trial court must determine whether the reason [given by the State] was a pretext for discrimination." Corrothers, 148 So.3d at 305 (¶62). Our Supreme Court has stated that "certain indicia of pretext are relevant when determining whether a proffered race-neutral reason was, in fact, pretextual":

(1)disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2)the failure to voir dire as to the characteristic cited; (3) the characteristic cited is unrelated to the facts of the case; (4) lack of record support for the stated reason; and (5) group-based traits.

Id. (ellipsis omitted).

         ¶34. In ruling on a Batson challenge, "the trial court must consider all relevant circumstances." Id. at (¶63). "On review of the trial court's ruling on a claimed Batson violation, we give great deference to the trial court's findings of whether or not a peremptory challenge was race neutral." Id. (brackets and quotation marks omitted). "Indeed, we will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence." Id. In addition, while on-the-record findings are preferred and helpful, "the trial court's failure to articulate specific findings in its ruling on the State's race-neutral reasons is not reversible error." Id. at 306 (¶68) (citing Pruitt v. State, 986 So.2d 940, 946 (¶¶20-21) (Miss. 2008)).

         A. Juror 59

         ¶35. The State struck Juror 59 because he did not complete the portion of his juror information card that asked whether he had any children. The State also noted that Juror 59 indicated that he was single, and this case involved a "victim with children . . . who is married." "A juror's indefinite answers on a juror questionnaire are a sufficient race-neutral reason for a strike." Corrothers, 148 So. at 308 (¶72) (Miss. 2014). Therefore, the State's explanation satisfied step two of Batson.

         ¶36. Bell argued that the State's reason was pretextual because it had accepted Juror 124, a white woman, whose juror information card did not specify whether she had any children. The State responded that it accepted Juror 124 because she had previously served on a criminal jury that "reached a guilty verdict in an arson case, which is usually a very difficult case" to prove. The State also used peremptory strikes on other prospective jurors who failed to provide the same information on their juror information cards. The trial judge overruled Bell's Batson challenge with respect to Juror 59, implicitly finding that the State's race-neutral reason was not pretextual. Applying our deferential standard of review, we cannot say that the trial judge's finding was clearly erroneous or against the overwhelming weight of the evidence. Corrothers, 148 So.3d at 306 (¶63).

         B. ...


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