Adams v. State, 2000-KA-00242-COA.

• Decision Date: 24 April 2001
• Docket Number: No. 2000-KA-00242-COA.,2000-KA-00242-COA.
• Citation: 794 So.2d 1049
• Parties: Michael ADAMS a/k/a Michael Murry Adams, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

794 So.2d 1049

Michael ADAMS a/k/a Michael Murry Adams, Appellant v. STATE of Mississippi, Appellee.

No. 2000-KA-00242-COA.

Court of Appeals of Mississippi.

April 24, 2001.

Rehearing Denied June 26, 2001.

Certiorari Denied September 6, 2001.

David L. Walker, Southaven, for Appellant.

Office of the Attorney General by Billy L. Gore, for Appellee.

Before SOUTHWICK, P.J., CHANDLER, and MYERS, JJ.

MYERS, J., for the Court:

¶ 1. Michael Adams was convicted in the Circuit Court of Lafayette County, the Honorable Henry L. Lackey presiding, of sexual battery in violation of Miss.Code Ann. § 97-3-95. He was sentenced according to the Miss.Code Ann. § 99-19-83 habitual offender statute to serve a term of life imprisonment without the benefit of probation or parole in the custody of the Mississippi Department of Corrections. Adams' motion for a judgment notwithstanding the verdict or in the alternative a new trial was denied. Feeling aggrieved of his conviction he appeals with eleven issues.

1. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S

MOTION IN LIMINE TO EXCLUDE EVIDENCE OF THE BURGLARY OF THE HOME OF JENNIFER K. GINGERY COOK;

2. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S OBJECTION TO JOSEPH WARREN TESTIFYING AS TO THE TEST RESULTS PERFORM BY MRS. PANAID;

3. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS A SEARCH CONDUCTED PURSUANT TO A WARRANT;

4. WHETHER THE TRIAL COURT ERRED IN OVERRULING THE APPELLANT'S MOTION TO SUPPRESS SEARCH OF THE APPELLANT AND SEIZURE OF HIS BLOOD, SALIVA, HAIR, AND BODY FLUID SAMPLES BASED UPON THE ILLEGAL ARREST OF THE APPELLANT;

5. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO EXCLUDE THE TESTIMONY OF CAPT. MORGAN CONCERNING THE PARTIAL FOOTPRINT IMPRESSION FOUND ON THE GREEN DOOR AND THE BOOTS SEIZED FROM THE APPELLANT;

6. THAT THE VERDICT OF THE JURY IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE;

7. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANTS PEREMPTORY INSTRUCTION (D-1);

8. WHETHER THE TRIAL COURT ERRED IN ACCEPTING JOSEPH WARREN AS AN EXPERT WITNESS;

9. WHETHER THE CUMULATIVE ERRORS OF THE TRIAL COURT DENIED THE APPELLANT A FUNDAMENTALLY FAIR TRIAL AND DUE PROCESS OF THE LAW AS PROVIDED BY THE STATE AND FEDERAL CONSTITUTIONS;

10. WHETHER THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL; AND

11. WHETHER THE SENTENCE OF THE COURT IS CRUEL AND UNUSUAL PUNISHMENT.

Finding no merit in his claims, we affirm his conviction and sentence.

FACTS

¶ 2. On January 26, 1999, S.C. was attacked in her bedroom by an intruder who leapt out of her closet. He put a towel over her face and sexually assaulted her. She never saw his face, only part of his arm which she described as almost hairless and part of his clothing which she described as a royal, darkish blue work uniform. She noted that her assailant did not have any real accent. and she thought his height was around five feet and eleven inches. She was unable to identify him in a photo lineup. She was able to narrow her identifications down to two people based on sound of voice and skin texture. Adams was one of these men.

¶ 3. In the investigation of S.C.'s attack, a hair from a black person was found in the bed, a partial footprint was found under the knob on the back door and paint and wood chips from the door.

¶ 4. On January 25th, the day before S.C. was attacked, a strange man leapt out of Jennifer Cook's bedroom closet. She stood face to face with him and screamed loudly and repeatedly. The intruder knocked the telephone out of Cook's hand, covered her face with his hand and knocked her to the floor. He escaped, and Cook continued to scream. In her bedroom, her previously partially opened window was completely open with the screen knocked out. Cook lived four doors down from S.C. Cook was able to fully identify Michael Adams as the perpetrator. At the time of trial, Adams had been indicted but not tried for the burglary of Jennifer Cook.

¶ 5. On January 24th, Officer Chad Redditt observed a black male running through a parking lot in the same area as the two attacks. The man said he was running up Jackson Avenue because someone was chasing him and because he did not know who it was, he was not sure if he was the target of a robbery. Officer Redditt identified Adams as that black male. He testified that Adams was dressed in a dark blue jeans and a blue jean jacket or shirt. Around the same time, another officer responded to a call from a Jackson Avenue area resident saying there was an unidentified prowler around his home and that the prowler had run away.

¶ 6. Two days after S.C.'s attack, on January 28th, Michael Adams was arrested and formally charged with the burglary of Jennifer Cook's home. He was identified by Cook both in a photographic and physical lineup. Capt. Morgan of the Oxford police was heading the investigations and noticed that Adams had on boots with a similar tread to the mark left on S.C.'s back door. He took the boots. While physical evidence had been gathered in the S.C. case, no DNA testing had been performed. On January 29th, Judge Lackey signed an order for Adams to submit hair, blood and saliva samples for testing. Then an arrest warrant for the sexual assault was secured on Feb. 1st.

¶ 7. At trial Adams was identified by Jennifer Cook as the perpetrator of the crime in her home. In addition to his motion in limine to exclude her identification, he objected to Cook's testimony. Joseph Warren was tendered and accepted as an expert. Adams objected to his testimony because Warren did not conduct the DNA testing himself. Capt. Morgan of the Oxford Police Department gave testimony on the identity of a boot print left on the victim's door. Adams objected to his testimony and the search leading up to it. The jury convicted him of the sexual battery of S.C.

¶ 8. To limit the possible endless debate on the issues presented, many have been combined for their discussion. In addition, issues 1-5 and issue 8 are evidentiary matters. In an effort to keep from being overly repetitive, the following standards will apply specifically to those issues while not excluding the remaining issues.

The relevancy and admissibility of evidence are within the discretion of the trial court and reversal may be had only where that discretion has been abused. Smith v. State, 656 So.2d 95, 98 (Miss. 1995). The discretion of the trial judge must be exercised within the boundaries of the Mississippi Rules of Evidence. Id. Unless the trial judge so abused his discretion as to prejudice the accused's case, we will not reverse his ruling. Id.

Sumrall v. State, 758 So.2d 1091, 1094 (Miss.Ct.App.2000)

(see also McGowan v. State, 706 So.2d 231, 243 (Miss.1997)).

¶ 9. In addition to case law, the Mississippi Rules of Evidence address the discretion of a trial judge. "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." M.R.E. 103(a)

1. Denial of Appellant's Motion in Limine to exclude evidence of the Burglary of Jennifer Cook.

¶ 10. Adams argues that prior bad acts are not admissible under M.R.E. 404(b) because of the highly prejudicial nature of that kind of testimony acknowledged in M.R.E. 403.

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....

M.R.E. 403

Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

M.R.E. 404(b)

¶ 11. Jennifer Cook testified to the events on the night of January 25th. She told the details of her attack and identified her assailant as Adams.

¶ 12. In each of these crimes, the burglary and the sexual attack, the perpetrator chose single women living by themselves. These women lived on the same street and only four doors away from each other. Their houses were broken into less than twenty-four hours apart. When these women entered their bedroom a man leapt out at them from the closet where he had been hiding. In the case of Jennifer Cook, Adams put his hand over her face and shoved her to the floor. She kept screaming and subsequently was just burglarized. She was able to get a good look at him.

¶ 13. Unfortunately, in the attack on S.C., which occurred one day after the attack on Cook, the intruder raped her twice. She never saw his face because as he sprang out of her closet, he covered her head with a towel.

¶ 14. In the recently decided case of Flowers v. State, 773 So.2d 309 (Miss. 2000), the Mississippi Supreme Court held that,

[w]here proof of other crimes or acts ... [are] offered into evidence pursuant to Rule 404(b), it is still subjected to the requirement that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. M.R.E 403. Rule 403 is the "ultimate filter through which all otherwise admissible evidence must pass." Bounds v. State, 688 So.2d 1362, 1371 (Miss.1997).

Id. at 318.

All testimony when questioned as prejudicial must be reviewed under the light of M.R.E. 403. Judge Lackey heard that debate during the hearing for defendant's motion in limine. He decided that the evidence was more probative than prejudicial. Defense counsel cross-examined Cook allowing for his attempt to impeach and discredit the testimony of the witness. "Rule 404(b) is not a blanket prohibition of evidence of other actions. Where the evidence might be relevant in another manner, ..., this Court has allowed it to be introduced." Flowers, 773 So.2d at 319 (citing Hums v. State, 616 So.2d 313, 321 (Miss.1993)).

¶ 15. The...