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Brisco v. State

Court of Appeals of Mississippi

October 1, 2019

LATOYA BRISCO A/K/A LATOYA NICOLE BRISCO A/K/A TOYA APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/31/2017

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

          ATTORNEY FOR APPELLANT: JOHN R. REEVES

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

          BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

          McDONALD, J.

         ¶1. On November 18, 2013, Latoya Brisco stabbed and killed Carl Whitaker. She was indicted for murder, and on February 23, 2017, a Warren County jury found her guilty of culpable negligence manslaughter. She was sentenced to twenty years in prison with ten years to serve and the remaining years suspended with post-release supervision. After the denial of her post-trial motions, Brisco appealed her conviction. Finding no error by the circuit court, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Brisco and Whitaker had been platonic friends for four years prior to Whitaker's death. Brisco lived with her domestic partner, Casheka Northern. When they would have disagreements, Brisco would stay at Whitaker's-on one occasion, for over a month.

         ¶3. Over the years, Brisco and Whitaker also had arguments, especially when Whitaker was drinking. Whitaker apparently desired a closer relationship than Brisco wanted, and he became upset when she became pregnant by someone else. In April 2013, Whitaker allegedly called Brisco and left messages on her voice mail threatening to kill her and her baby. Whitaker had told Brisco that he had served time for stabbing a man in 2000. Fearing him this time, Brisco filed charges against Whitaker in justice court, but there was no hearing on the charges prior to his death. Despite this, Brisco testified that Whitaker apologized, and that they resumed their friendship.

         ¶4. Things ended differently on the night of November 18, 2013. Early in the evening, Whitaker called Brisco and offered to buy some tequila and come over to socialize with Brisco and Northern. At that time, Brisco's baby had been born and was three months old. Also living with Brisco were Northern's two minor children, K.N. and Z.N.[1] K.N. was fourteen at the time; Z.N. was twelve. That night, Northern was also keeping her baby nephew, K.Y., while his mother worked.

         ¶5. Brisco picked Whitaker up and drove him to a liquor store where he purchased the alcohol. They returned to Brisco's home where Whitaker and Northern started drinking; Brisco did not drink with them. Both Brisco and Northern testified that no drugs were used, but several times that evening Whitaker went outside to smoke. Whitaker and Northern became intoxicated-Northern so much so that she passed out in the bedroom where Brisco's baby was asleep.

         ¶6. Around 8 p.m., Brisco and Whitaker were playing checkers for money while the older children were watching television. During their conversation, Brisco asked Whitaker for the $55 he owed her for a part he had broken on her car. They began arguing, and Brisco said she would let him slide with paying $30. What happened after this is in dispute.

         ¶7. According to K.N., Whitaker and Brisco argued for some time. Whitaker asked Brisco to take him home, and she refused. Both K.N. and Z.N. testified that Brisco pulled the computer chair in front of the door and prevented Whitaker from leaving. According to K.N. and Z.N., Whitaker stood up and, being intoxicated, fell against the wall. He became angry and called 911. He told the 911 dispatcher that the people he was with would not let him leave. Both minor children testified that during the call, which lasted over ten minutes, Brisco continued to sit in the chair blocking the front door and laughing. According to K.N., Brisco said, "You're not going nowhere until you give me my $55." At one point, the 911 call dropped, and 911 called Whitaker back. Whitaker told the 911 dispatcher that he had been stabbed. But both children testified that Whitaker had not been stabbed at the time of his 911 call, although both he and Brisco had knives, [2] and Brisco made some threatening gestures toward Whitaker during the call. Z.N. testified that she left the room shortly after Whitaker's 911 calls.[3]

         ¶8. K.N. remained in the living room throughout the rest of the incident. She testified that after the 911 call, Whitaker came around the couch and asked Brisco, who was sitting in the chair in front of the door, to let him leave. Brisco refused. Whitaker became angrier and threw a bassinet towards K.N. and came at Brisco. Brisco stood to meet Whitaker, holding the knife she had picked up. Brisco and Whitaker went to the floor. At this point, K.N. ran to the kitchen and returned with a steak knife. K.N. stabbed Whitaker once in the back; he got to his feet, and, according to K.N., he was swinging his knife really fast. K.N. stabbed Whitaker a second time. When Whitaker fell to the floor, K.N. saw that he had Brisco's knife in his neck.

         ¶9. Contradicting K.N. and Z.N., Brisco testified that she never prevented Whitaker from leaving. According to her, Whitaker, not she, was at the front door when he made the 911 call, and he could have left at any time. He was angry and threw the bassinet at K.N. Brisco said Whitaker then came toward her and wrestled her to the floor while trying to cut her with his knife. When K.N. stabbed Whitaker in the back, he turned, and Brisco was able to get up. Whitaker was swinging his knife and acting in a crazy manner that Brisco said she had not seen before. Brisco struck out with her knife and said she did not know that she had stabbed him in the neck. Brisco testified she did this to protect herself and her household. She also testified that she had no intention of killing Whitaker. Brisco herself suffered cuts and a scratch on her back, but she needed no medical attention.

         ¶10. Brisco called 911, but because Whitaker had called earlier, Deputy Sheriff Chris Satcher had already arrived and was outside the home waiting on back up when the lights in the house came on and he heard a commotion. As he entered, he saw Whitaker falling to the floor and bleeding profusely. Other law enforcement entered, and Satcher attended to the dying Whitaker. Satcher was unable to help him given the severity and location of the wound, and within a minute, Whitaker died. Satcher took photos of the area, as well as of a scratch on K.N.'s leg, a cut on Brisco's pinky finger, and a deep scratch on Brisco's back.

         ¶11. Brisco and the children were taken to the police station to give their statements. Whitaker's body was taken by the medical examiner for an autopsy and toxicology testing. The test results revealed that Whitaker's blood alcohol level was .207 (.08 being the legal limit for driving a car). In addition, he had marijuana and cocaine in his blood, which suggested recent use. At trial, the medical examiner testified that the combination of cocaine and alcohol increases aggression.

         ¶12. Initially, no arrests were made. Law enforcement thought the case was one of self-defense because they had been told that someone was in the home with a knife threatening to kill everyone. However, Satcher requested the 911 calls. After reviewing them, Satcher concluded that further investigation was needed, which resulted in Brisco's indictment for murder on July 31, 2014.

         ¶13. Pre-trial, Brisco filed three motions in limine: (1) to limit Satcher's testimony concerning the 911 calls; (2) to admit the threatening voice messages that Whitaker left Brisco in April 2013; and (3) to enter Whitaker's 2000 indictment and conviction. Concerning Satcher's testimony, Brisco objected to his interpretation of the intelligible parts of the 911 calls. The court agreed and limited Satcher to testifying only that he launched a murder investigation based on the 911 calls. With respect to Whitaker's voice messages, the court denied Brisco's motion because the dates of the messages were undocumented and she testified they even preceded April 2013-thus, being too remote in time to prove Brisco's state of mind during the November incident. The court reserved ruling on the admission of Whitaker's conviction, but during trial, the court did admit it.

         ¶14. At trial, the State called K.N. and Z.N. to testify about the incident. Chuck Tate, the director of the 911 call center, testified about the 911 calls. Satcher testified about law enforcement's investigations, and the coroner and a forensic pathologist from the medical examiner's office testified about their examination of Whitaker's body and their opinions concerning his cause of death. Evidence from the crime scene included photographs of the living room. The State pointed out that the blood stains contradicted Brisco's story that Whitaker was at the front door during the 911 call and then charged at her, because blood splatters were found on the front door along with a pool of blood; blood then trailed across the room to where Whitaker ultimately fell. This, the State argued, showed that Brisco was blocking the front door when Whitaker approached her and that is where he was stabbed. He then staggered away and fell further into the room.

         ¶15. The jury also listened to the 911 calls-two from Whitaker and one from K.N. and Brisco after the stabbing. According to the records, the first 911 call from Whitaker came in at 8:18 p.m. and lasted fifteen minutes. Brisco's call after the stabbing was documented at 8:36 p.m.

         ¶16. After the State rested, Brisco moved for a directed verdict, which the court denied. The only witness for the defense was Brisco.

         ¶17. After being instructed by the court, the jury deliberated. Three hours into its deliberations, the jury sent out a question:

Do either of these meet the criteria for culpable negligence- 1. the fact that she brought a man who she knew to be aggressive under the influence of alcohol, and against whom she had previously filed charges for assault, setting up conditions leading to his death, constitute culpable negligence? 2. By not permitting Carl to leave when he wanted to, thus setting up conditions leading to his death, constitute culpable negligence?

         After conferring with counsel and without objection, the court responded: "The jury must decide the case based on the instructions already given to you." An hour later, the jury sent another question: "What is feloniously? What does not in necessary self[-]defense [mean]?" The court and counsel reviewed the definition of "feloniously" in Black's Law Dictionary and compared the jury instruction given with the Plain Language Model Jury Instructions. Defense counsel suggested an answer, saying that feloniously meant "deliberate intent to commit a crime" and that self-defense is defined in the instructions already given by the court. The court responded to the jury, saying: "The jury must decide the case based on the instructions already given." A third time the jury sent out a question: "What does felonious mean??? definition please." The court and counsel conferred and with no objection from Brisco, the court responded: "With the intent to commit a crime."

         ¶18. The jury ultimately found Brisco guilty of culpable negligence manslaughter. Brisco's attorney filed a motion for a judgment notwithstanding the verdict or a new trial on March 23, 2017. Brisco then secured new counsel who filed an amended motion on August 1, 2018. The State moved to dismiss the amended motion. The court denied both the State's motion to dismiss and Brisco's amended motion on August 15, 2018. Brisco filed a notice of appeal on August 28, 2018. In her brief, she stated the issues as:

I. Whether the court erred in failing to admit Whitaker's voice messages.
II. Whether the court erred in its responses to the jury's questions.
III. Whether the court erred in failing to grant Brisco's motion for a directed verdict.
IV. Whether the court erroneously overruled Brisco's objections to certain testimony and evidence at trial.
V. Whether the verdict was against the overwhelming weight of the evidence.
VI. Whether the court erred in allowing the State to argue to the jury what was said on Whitaker's 911 calls.
VII. Whether the court erred in granting instruction S-5A.
VIII. Whether Brisco was provided ineffective counsel.

         DISCUSSION

         I. Whether the court erred in excluding Whitaker's voice messages.

         ¶19. Brisco argues that the court erroneously excluded Whitaker's voice messages. We do not agree. We review the admission or exclusion of evidence for an abuse of discretion. Young v. Guild, 7 So.3d 251, 262 (¶34) (Miss. 2009). Evidence is admissible if it is "relevant," meaning evidence having a tendency to make the existence of a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. M.R.E. 401; Newell v. State, 175 So.3d 1260, 1275 (¶32) (Miss. 2015). However, evidence that is remote in time or is otherwise far removed from an issue at trial is not relevant under Rule 401 and may be excluded by the trial court in the exercise of discretion. Tillis v. State, 661 So.2d 1139, 1142-43 (Miss. 1995).

         ¶20. In this case, a large portion of the voice mail recording is unintelligible, and it is obvious that Whitaker had been drinking. Often he would curse Brisco and then call back to apologize. There is nothing in the content of the messages that would identify the date they were made. Brisco had her father download the messages to his computer, but again, there was no identifying dates. Brisco no longer had the original phone on which she had recorded them. Brisco could authenticate Whitaker's voice and testified that she had saved the messages pursuant to the sheriff's instruction when she filed justice court charges against Whitaker in April 2013 and thereafter. However, the circuit court excluded them primarily because it felt that they were too remote in time to prove Brisco's state of mind during the November 2013 stabbing.

         ¶21. Whether a threat is too remote is a question addressed to the sound discretion of the trial judge. Steed v. State, 396 So.2d 625, 627 (Miss. 1981). There must be evidence of a causal relationship between the threat and the purpose for which it is offered. Tillis, 661 So.2d at 1143. In Myers v. State, 147 So. 308, 309-10 (Miss. 1933), the supreme court held that the trial court did not abuse its discretion in excluding testimony of the threat given eight to nine months before a murder because there was no evidence that the threat by the deceased and the ultimate homicide were connected. But in Parr v. State, 362 So.2d 634, 636 (Miss. 1978), the Court affirmed the admission of threats made thirteen months before the killing because the record indicated that before and after the threats, there was continuing hostility, bitterness, and ill will between the parties.

         ¶22. We find no error by the court in excluding Whitaker's voice messages in this case. The court was correct in finding them too remote in time to the killing to show that Brisco still feared Whitaker, especially because Brisco and Whitaker had frequent amicable contacts with each other after the voice messages. Brisco had even invited Whitaker to her home that night to drink when she knew he could become belligerent if he became drunk. Therefore, the court was correct in ruling that Whitaker's voice messages in April were not probative of Brisco's state of mind when she stabbed him in November and not admissible.

         II. Whether the court erred in its responses to the jury's questions.

         ¶23. Brisco argues that the court erred in its responses to the questions sent out by the jury during its deliberations. But the record is clear that the court conferred with both the State and defense counsel before responding to the jury's questions, and at no point did Brisco's counsel object to the responses given. The failure to object at trial waives any assignment of error on appeal absent plain error. Ross v. State, 16 So.3d 47, 57 (¶21) (Miss. Ct. App. 2009). Therefore, we find that this issue is procedurally barred on appeal. Nor do we find any plain error in the court's responses to the jury's questions. The plain-error rule is only applied when a defendant's substantive or fundamental rights are affected. Foster v. State, 148 So.3d 1012, 1018 (¶20) (Miss. 2014). In such an analysis, we must determine whether "the trial court has deviated from a legal rule[;] whether that error is plain, clear, or obvious[;] and whether the error has prejudiced the outcome of the trial." Id. Although Brisco has not argued plain error, we find no deviation by the court from any legal rule that would serve as the foundation for such an argument. Therefore, because there was no plain error, by failing to object to the court's responses to the jury's questions, Brisco has waived this issue on appeal.

         ¶24. Notwithstanding the procedural bar, we find no error in the court's responses. Rule 3.10 of the Uniform Rules of Circuit and County Court Practice, in effect at the time of trial, provided:

If the jury, after they retire for deliberation, desires to be informed of any point of law, the court shall instruct the jury to reduce its question to writing and the court in its discretion, after affording the parties an opportunity to state their objections or assent, may grant additional written instructions in response to the jury's request.

         We review a court's additional written instructions in response to a question from the jury for an abuse of discretion. Willie v. State, 204 So.3d 1268, 1276 (¶23) (Miss. 2016). "Unless the trial judge based his response to the note on an incorrect interpretation of the law, we may not reverse for an abuse of discretion unless the trial court's handling of the matter was arbitrary and clearly erroneous." Id. Here, the court was cautious and sought the input of both the State and Brisco before responding to the jury's questions. It also consulted secondary authorities for guidance. We find no abuse of the court's discretion in how it handled this matter.

         III. Whether the court erred in failing to grant Brisco's motion for a directed verdict.

         ¶25. We find Brisco's contention that the court erroneously denied her motion for a directed verdict meritless. Motions for a directed verdict challenge the legal sufficiency of the evidence. Moss v. State, 190 So.3d 9, 13 (¶12) (Miss. Ct. App. 2015). All evidence introduced by the State, together with any reasonable inferences that may be drawn therefrom, is accepted as true. Davis v. State, 530 So.2d 694, 703 (Miss. 1988). "Reversal of the trial court's ruling can occur only when, after viewing all the evidence in the light most favorable to the verdict, one or more of the elements of the charged offense is such that reasonable and fair-minded jurors could only find the accused not guilty." Moss, 190 So.2d at 13-14 (¶12) (internal quotation marks omitted). The State bears the burden to prove beyond a reasonable doubt that the defendant committed the offense and did not act in self-defense. Franklin v. State, 72 So.3d 1129, 1136 (ΒΆ29) (Miss. Ct. ...


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