Barnwell v. State

• Decision Date: 22 August 1990
• Docket Number: No. 07-KA-59207,07-KA-59207
• Citation: 567 So.2d 215
• Parties: Lonell (Lonwell) BARNWELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 215

567 So.2d 215

Lonell (Lonwell) BARNWELL v. STATE of Mississippi.

No. 07-KA-59207.

Supreme Court of Mississippi.

Aug. 22, 1990.

Lampkin H. Butts, Laurel, for appellant.

Mike C. Moore, Atty. Gen., Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

PRATHER, Justice, for the court as to part I:

Lonell Barnwell, also known as "Lonwell" Barnwell, was tried by a jury for the charge of uttering a forged document, in this case, a check. He was found guilty by the jury and was sentenced by the Circuit Court of Jones County to fifteen (15) years imprisonment as an habitual offender under § 99-19-81, Miss.Code Ann. (Supp.1990). Barnwell has now appealed his conviction to this Court, citing as error the following:

(1) THE PROOF IN THE CASE FAILED TO SHOW THAT THE APPELLANT HAD KNOWLEDGE THAT THE CHECK HE CASHED HAD BEEN FORGED.

(2) THE STATE FAILED TO PROPERLY COMPLY WITH DISCOVERY.

(3) THE APPELLANT'S SENTENCE AS A HABITUAL OFFENDER IS SO SEVERE AND DISPROPORTIONAL TO THE OFFENSE CHARGED AS TO CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.

I.

In April of 1986, Almedia H. Cooley lived in Laurel and maintained a checking account with the Bank of Laurel. Lonwell Barnwell had been living with Ms. Cooley for five or six months in her home.

Ms. Cooley sent her son to the Bank of Laurel to cash a $100.00 check on her account. Someone at the bank called Ms. Cooley to inform her that she did not have sufficient funds to cover the check, and asked her if she knew a "Lonwell" Barnwell because he had recently cashed a $500.00 check on Ms. Cooley's account.

Barnwell was at Ms. Cooley's residence when she received this phone call. She asked him if he had indeed cashed such a check; the appellant denied having done so. When Ms. Cooley attempted to call the police, Barnwell "jumped up and slammed the phone out of my hand and down on the table and ran out the door." Ms. Cooley did not see him again until the day of the trial. Ms. Cooley was able to convince the bank that the check Barnwell cashed was a forgery, and it reimbursed her that amount.

Maria Hudson, a teller at the Bank of Laurel, testified that she had cashed a $500.00 check at the drive-up window on April 9, 1986, the day the crime allegedly took place. The check, payable to "Lonwell Barnwell", was endorsed in the same manner. Before cashing the check, Ms. Hudson asked for driver's license identification, and wrote the number on the back of the check. The number on the back of the check matched Barnwell's license number. Ms. Hudson positively identified the appellant as the man who cashed the check from a series of pictures shown to her less than two weeks after the crime took place. At trial, two years after the fact, she was less certain of her identification.

Frank Hicks, a handwriting expert with the Mississippi State Crime Laboratory, compared the handwriting on the check with several known samples of Barnwell's handwriting. He testified that the endorsement on the check and the known samples of Barnwell's handwriting were a match. He also noted certain irregularities in the writing on the front side of the check which led him to the conclusion that the writing on the front of the check might not represent the true handwriting characteristics of the writer.

Following the presentation of the State's case, Barnwell, who was attempting to try the case himself, aided by his appointed counsel, presented no witnesses. The jury, after deliberating some nine (9) minutes, found Barnwell guilty of the crime charged. After a bifurcated sentencing hearing, the trial judge sentenced Barnwell to fifteen (15) years incarceration at the Mississippi Department of Corrections, without parole, based on his status as an habitual offender under § 99-19-81, Miss.Code Ann. (Supp.1990). Barnwell has now perfected his appeal to this Court.

II.

DID THE PROOF IN THIS CASE FAIL TO SHOW THAT THE APPELLANT

HAD KNOWLEDGE THAT THE CHECK HE CASHED HAD BEEN FORGED?

Under this assignment of error, Barnwell is challenging the sufficiency of the State's proof; in effect he is asserting that the State never proved the elements of the offense charged, and that his motion for a directed verdict and/or a new trial should have been granted. His argument is without merit.

Barnwell relies on the authority of Keyes v. State, 166 Miss. 316, 148 So. 361 (1933), for the proposition that the prosecution must prove scienter, or knowledge, on the part of the appellant as to the fact of the check's falsity. Although his citation of Keyes is correct, the crucial issue before this Court is whether the State's proof created a sufficient question of fact so as to survive a motion for a directed verdict. Of utmost importance in considering this issue is the fact that Barnwell presented no evidence of his own to rebut the State's case.

In considering a motion for a directed verdict, a reviewing court must consider the evidence introduced in a light most favorable to the State, accepting all evidence introduced by the State as true, together with all reasonable inferences therefrom. If there is sufficient evidence to support the verdict, the motion for a directed verdict must be overruled. Davis v. State, 530 So.2d 694, 703 (Miss.1988); Thompson v. State, 457 So.2d 953, 955 (Miss.1984).

A motion for a new trial is left to the sound discretion of the trial judge. Gavin v. State, 473 So.2d 952, 956 (Miss.1985); May v. State, 460 So.2d 778, 781 (Miss.1984). A trial judge should grant such a motion only where he is convinced that the verdict is contrary to the substantial weight of the evidence. May, supra; Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). In this case, the trial judge properly denied both the motion for a directed verdict and the motion for a new trial.

The proof in this case showed that the check which formed the basis for the charges was taken without Ms. Cooley's knowledge. She did not learn that the check was missing until the bank called to tell her that she had insufficient funds in her account to cash a $100.00 check. She was informed by the bank that one Lonell Barnwell had cashed a $500.00 check purportedly written by her, which, according to her testimony at trial, was done without her knowledge. She also testified that the handwriting on the check was not hers and that she had never given Barnwell permission to cash such a check. When she attempted to call the police, Barnwell slammed the phone down and ran from the house.

The bank teller who took the check positively identified the appellant as the man who cashed the check, and Frank Hicks, a forensic scientist from the Mississippi Crime Lab, also testified that the endorsement on the back of the check was definitely written by Barnwell.

Based on the overwhelming amount of proof offered by the State, and the total lack of proof offered by the appellant, the trial judge properly denied the motion for a directed verdict and the motion for a new trial. There is no merit to this assignment of error.

III.

DID THE STATE FAIL TO COMPLY WITH DISCOVERY?

Under this assignment of error, Barnwell asserts that the State failed to comply with Rule 4.06 of the Uniform Criminal Rules of Circuit Court Practice, which addresses the requirements for proper discovery. The purpose behind Rule 4.06 is to prevent what this Court has termed, "[t]he practice of trial by ambush ..." Coates v. State, 495 So.2d 464, 467 (Miss.1986). This Court went on to say in Coates that "this Court has been required time after time in recent years to reverse criminal convictions because at trial the prosecution was allowed to use evidence which in discovery it was obligated to disclose to the defense but for whatever reason withheld." [Citations omitted]. Id.

It should be noted initially that the appellant in this case, Lonell Barnwell, had two attorneys appointed to represent him. Nonetheless, the State made every effort to reasonably comply with the discovery.

The district attorney noted that, if called to testify, he would state under oath that he was served by the appellant with a demand for discovery. He would also have testified that, although defense counsel at the time was the public defender, discovery was served on the appellant. Furthermore, an investigator for the district attorney's office testified that he prepared and delivered the discovery to the appellant in jail; on cross-examination, the appellant stated to the court that he had never seen the investigator before, and that he had never received a witness list.

Ronald Parrish, the public defender originally appointed to represent the appellant, testified that he received discovery from the State, which was accompanied by a list of the State's witnesses in chief. He additionally testified that, to his knowledge, nothing was withheld from him. On cross-examination, he testified that he received a witness list for the charge upon which the appellant was being tried, No. 6400. He also testified that while he did not give a list of witnesses to Barnwell, he did go over the list with him while Barnwell was in jail.

Lampkin Butts, the second attorney appointed to represent Barnwell, testified that he had made a copy of the prosecutor's file, and that the prosecutor's secretary had copied for him every item in the file. He further testified that he took the copies to the appellant in jail, and although not supplied with a list of witnesses, he had discussed with the appellant each of the witnesses' names from the file. The attorney was not surprised at trial with any witnesses called by the State. The State complied with Rule 4.06 in this case, and this Court has noted no discovery violations. Therefore, there is no merit to this assignment of error. The conviction of Lonell Barnwell on the charge of uttering a forged document is affirmed.

ROY NOBLE LEE, Chief Justice, for the court as to part IV.

Under his final assignment of error, Barnwell asserts that the fifteen...