OF JUDGMENT: 03/31/2017
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
J. WILSON, P.J., McDONALD AND McCARTY, JJ.
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.
AND PROCEDURAL HISTORY
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.
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.
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
K.N. was fourteen at the time; Z.N. was twelve. That night,
Northern was also keeping her baby nephew, K.Y., while his
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.
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.
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,  and Brisco made some threatening gestures
toward Whitaker during the call. Z.N. testified that she left
the room shortly after Whitaker's 911
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.
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.
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.
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
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.
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.
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.
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.
After the State rested, Brisco moved for a directed verdict,
which the court denied. The only witness for the defense was
After being instructed by the court, the jury deliberated.
Three hours into its deliberations, the jury sent out a
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?
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."
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
II. Whether the court erred in its responses to the
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
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.
Whether the court erred in excluding Whitaker's
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
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.
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
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.
Whether the court erred in its responses to the
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.
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
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.
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
Whether the court erred in failing to grant
Brisco's motion for a directed
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
(¶29) (Miss. Ct. ...