895 So.2d 836 (Miss. 2005), 2003-KA-01528, Bush v. State
|Citation:||895 So.2d 836|
|Party Name:||Kanynne Jamol BUSH a/k/a Jamol Kanynne Bush v. STATE of Mississippi.|
|Case Date:||February 10, 2005|
|Court:||Supreme Court of Mississippi|
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James (Jay) R. Foster, attorney for appellant.
Office of the Attorney General, by W. Daniel Hinchcliff, attorney for appellee.
Before WALLER, P.J., GRAVES and DICKINSON, JJ.
WALLER, Presiding Justice.
¶ 1. A Harrison County Circuit Court jury unanimously convicted Kanynne Jamol Bush of capital murder with the underlying felony being armed robbery. The trial court subsequently sentenced Bush to
life in prison without probation or parole. Bush now appeals the conviction which we affirm.
¶ 2. On the night of December 9, 1999, Russell Stone went to the EZ Serve in Gulfport, Mississippi to see his girlfriend, Brenda Kliensmith, a cashier. That night, Kliensmith received a phone call from a female who identified herself as Monica. Kliensmith recognized the voice of Monica, an employee at EZ Serve, and upon request, told her what time she was getting off and that she was working by herself that night.
¶ 3. Around 9 p.m., a male and female, masked and wearing black, burst into the store. The male jumped the counter and put his gun to Kliensmith's head. He then pointed the gun at Stone, approached him, and ordered him and Kleinsmith to get on the floor. When Kliensmith and Stone did not immediately lie down, the assailant asked Stone, "Do you think I'm playing, b* * * *?" and then shot him. Stone fell to the floor, moaning loudly for several minutes.
¶ 4. Kliensmith got on the floor, told the gunman she was pregnant, and begged that he not kill her. The assailant left, and Kliensmith called 911, frantically trying to explain what had happened. The police and ambulance arrived and took Stone to the hospital. He subsequently died as a result of his injury. In March of 2000, the Grand Jury in Harrison County indicted Jamol Bush, Monica Towner, Narquita Watson, and Erica Riley for the murder of Stone and armed robbery of the EZ Serve. However, before Bush could be arrested, he left Gulfport and went into hiding.
¶ 5. In October of 2000, police in Avon Park, Florida were investigating an in-state robbery and received a tip from Bush's girlfriend that "Reshard Bush," her boyfriend, had been involved in the robbery. After investigating Bush's identity at his place of work and running a search in the National Crime Information Center's database, Officers John Robinson and Michael Rowan discovered that the name "Reshard" was an alias. The computer search revealed that police in Mississippi had issued an arrest warrant for Jamol Bush in connection with Stone's murder. The officers called the Gulfport police and got a description of the circumstances surrounding the warrant. The officers then located Bush, followed the car in which he was riding, and took him into custody.
¶ 6. The officers met with Bush at the criminal investigations unit and developed a rapport with him over the course of an hour. Robinson testified that Bush eventually discussed the Florida robbery and also gave an unrecorded description of murdering Stone in Gulfport. Robinson said Bush told him about a variety of details surrounding the murder, including: (1) There was a cooperative, pregnant, female clerk in the store that night and an uncooperative white male; (2) Bush panicked and shot the male when he failed to obey Bush's orders; (3) Three black females, one of whom used to work at EZ serve, were cohorts in committing the crime; and (4) They intended to rob the store's safe of $40,000.00.
¶ 7. Robinson further testified, and the transcript of the conversation confirms, that when he and Rowan tried to record Bush's confession to the Mississippi crime, Bush became apprehensive and refused to cooperate. The closest Bush came to discussing the event was in this brief exchange between the officers and him:
DET. ROBINSON: Okay. So, everything you've told us so far about the incident in Mississippi is fairly accurate? Ah, I know we didn't get into every
detail of it, you just kinda gave us a general idea what went down.
MR. BUSH: Yeah, I was thinking 'bout the, the ah, incident here--
* * *
DET. ROBINSON: Okay. Is there anything that you think about it? Take your time. Is there anything that you would like to get on the record about that? On the taped interview?
MR. BUSH: (Unintelligible) Man, I wasn't, I wasn't the one who pulled the trigger. I may have, you know what I'm saying, the reason I was (unintelligible) the situation was or what occurred or what have you (inaudible).
DET. ROBINSON: Right. But--
MR. BUSH: (Unintelligible) There's nothing I wish to say about it.
In the hearing on his Motion to Suppress the inculpating statements, Bush said he never said anything to the officers about a Gulfport incident.
¶ 8. At trial, Kliensmith testified that although she did not recognize the assailant when she first saw him in the store, she had noticed a "slit" above his left eye. She also testified that she told the police that he might have had a gold tooth and she thought he was either five foot, ten inches or six feet tall. 1 Although Bush is six feet tall, he does not have a scratch or scar above his left eye, nor does he have a gold tooth. At trial, however, Kliensmith identified Bush as the man who killed Stone, testifying that she recognized him, because she had looked at him "right in his eyes" that night.
¶ 9. Erica Riley, an admitted participant in the robbery, testified against Bush at his trial. Riley stated that she, Towner, and Watson had discussed the possibility of "hit[ting] the lick" (i.e. "robbing somebody"). After going down the street to ask Bush if he was interested, he told her "it was all good" and agreed to participate. She testified that Bush and Towner were the ones who went into the store while she and Watson, who was driving the car, waited outside. After they heard the gunshot, Watson drove off and then returned to the EZ Serve where Bush and Towner got in. At that point, Riley testified that Bush demanded Watson drive away from the convenience store, insisting that someone inside had been shot in the leg. She also testified that about three days later she heard him discussing the need to get rid of both the clothes he wore in the robbery and his gun. Although she did not see him dispose of the gun, she said she saw him take the clothes and put them in the garbage.
¶ 10. On October 17, 2002, a Harrison County Circuit Court jury convicted Bush of capital murder with the underlying felony being armed robbery, but was unable to agree on a sentence. Therefore, the trial court sentenced Bush to life in prison without probation or parole. Bush requests that we reverse and remand the case for a new trial.
¶ 11. Bush raises five grounds of reversible error: improper denial of Bush's Motion to Suppress the inculpatory statements Bush made to the Florida officers; failure by the State to present sufficient evidence to support a jury finding that Bush committed armed robbery; violation of Bush's constitutional right to confrontation; improper admission of evidence of
Bush's prior convictions; and improper comments about Bush by the prosecution.
1. Motion to Suppress
¶ 12. Bush argues, for the first time on appeal, that his confession to the crime was "not the result of [his] free and rational choice." He then cites to case law governing improperly admitted confessions. However, Bush's argument at trial wholly undermines his argument. At the hearing on the Motion to Suppress the inculpatory statements, the trial judge asked Bush's attorney why he wanted the statements suppressed. The attorney responded,
MR. RAFFERTY: Judge, based on the information and belief and the evidence that we have been provided, the defense believes that the State is going to offer into evidence, either through a recording, transcript, or the live testimony of officers, some inculpatory statements and admissions by my client. For the record, [j]udge, I don't believe it's per se a confession in Mississippi, however, there is [sic] some statements and admissions that can be used to incriminate an individual from our defense prospective [sic]. We then, Your Honor, believe those statements were improperly gathered ...
THE COURT: You think they were improperly gathered because he wasn't advised of his rights?
MR. RAFFERTY: Judge, I believe that that's going to be an issue. I believe that there's going to be evidence that he was advised of some rights. I think the question is going to be whether or not they actually conform to the Miranda decision that then follows Mississippi law. Also, Your Honor, my client was arrested without a warrant ... He was then taken into custody, allegedly given some rights, and then he made a statement allegedly to the police.
(emphasis added). When asked at the hearing on the Motion to Suppress whether he had made any of the alleged statements to the officers about the Gulfport murder, Bush unequivocally told the court that he had said nothing at all to the police about the incident.
¶ 13. We first note that an appellant is not entitled to raise new issues on appeal that he has not first presented to the trial court for determination. Dunn v. State, 693 So.2d 1333, 1339 (Miss.1997). Bush argued before the trial court that any statements made to the officers during their interview with him were inadmissible because of the failure to comply with Miranda and because a warrant for Bush's arrest had not been issued. Bush's attorney explicitly stated that...
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