Bell v. State

• Decision Date: 02 July 2019
• Docket Number: NO. 2017-KA-01280-COA,2017-KA-01280-COA
• Parties: Kelvin BELL a/k/a Kelvin Levise Bell, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

287 So.3d 944

Kelvin BELL a/k/a Kelvin Levise Bell, Appellant

v.STATE of Mississippi, Appellee

NO. 2017-KA-01280-COA

Court of Appeals of Mississippi.

July 2, 2019

Rehearing Denied October 15, 2019

ATTORNEYS FOR APPELLANT: FRANK G. VOLLOR, TRACIE DIANE HERRING, Vicksburg

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN, MATTHEW WYATT WALTON

EN BANC.

J. WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial, Kelvin Bell was convicted of two counts of aggravated domestic violence against his girlfriend, Marilyn Ragan. The circuit court sentenced Bell to two concurrent terms of twenty years in the custody of the Department of Corrections with five years suspended and fifteen years to serve, followed by five years of post-release supervision. On appeal, Bell argues that the trial judge erred by: (1) granting the State's motion to amend Count II of the indictment after the close of the evidence; (2) overruling his Batson¹ objections; (3) admitting testimony that Ragan went to a domestic violence shelter and certain testimony of the shelter's director; (4) allowing one police officer to opine on Ragan's credibility and allowing another officer to testify that Ragan exhibited "battered woman syndrome"; (5) allowing a physician assistant who treated Ragan to testify that Ragan's "orbital fracture

[was] consistent with trauma, a direct blow hitting [her] in the eye"; (6) excluding the testimony of a witness whom Bell first disclosed on the fourth day of trial; (7) questioning Bell's expert witness about Bell's insanity defense; (8) and allowing the State to question Bell and his expert witness about Bell's history of cocaine and alcohol abuse. Finally, Bell argues that he is entitled to a new trial based on the cumulative error doctrine.

¶2. We conclude that the trial judge erred when he allowed the State to amend Count II of the indictment after the close of the evidence. Moreover, the evidence presented at trial was insufficient to prove the offense as it was charged in Count II of the indictment. Therefore, we reverse and render Bell's conviction on Count II. However, we find no error in the trial that requires reversal of Bell's conviction on Count I, and we conclude that Bell received a fair trial on Count I. Therefore, Bell's conviction and concurrent sentence on Count I are affirmed.

FACTS AND PROCEDURAL HISTORY

¶3. In December 2014, Bell and Ragan had been dating and living together for several months. Two days after Christmas, Ragan's sister Minnie Montgomery asked her son-in-law, Officer Stanley Williams of the Vicksburg Police Department, to check on Ragan. Montgomery and Ragan's seventeen-year-old daughter, Kayla Neal, were concerned because they had not heard from Ragan since the previous day when she abruptly left the home that she and Bell shared. After an unsuccessful first attempt, Officer Williams was finally able to enter the home. As Officer Williams was talking to Bell, another officer saw Ragan in the bedroom. The officer saw that Ragan's face was bruised and swollen, and he asked her about her injuries. Ragan told the officer that she had fallen. However, when Officer Williams asked her about her injuries, Ragan said, "Please just get me out of here. I need to get out of here."

¶4. Officer Williams then took Ragan to the Vicksburg Police Department. Ragan told Lieutenant Penny Jones that Bell had punched her in the face. Lieutenant Jones took pictures of Ragan's face, which show bruising on her face, a swollen eye, and three small cuts. Jones also took a brief statement from Ragan and filled out a report. Jones noted that Ragan's face was scratched and her left eye was swollen, purple, and black. Jones then turned the case over to Lieutenant Beverly Prentiss.

¶5. Ragan subsequently went to Haven House, a domestic violence shelter in Vicksburg. In addition, although Ragan had initially refused treatment, she went to the emergency room on December 28, 2014. She was treated by physician assistant Daniel Silvio, who ordered a CT scan

that revealed "blowout fractures of the medial left orbital wall and the left orbital floor." Bell had initially been arrested for simple assault, but Lieutenant Prentiss upgraded the charge to a felony when she learned about Ragan's orbital fractures.

¶6. In May 2015, Bell was indicted for two counts of aggravated domestic violence (Count I and Count II) and one count of kidnaping (Count III). Count I alleged that Bell "attempt[ed] to cause or purposely or knowingly cause[d] serious bodily injury to ... Ragan, with a deadly weapon or other means likely to produce death or serious bodily harm by hitting the said Marilyn Ragan in her left eye with his fists causing her to suffer an orbital fracture

." Count II alleged that Bell "attempt[ed] to cause or purposely or knowingly cause[d] serious bodily injury to ... Ragan, with a deadly weapon or other means likely to produce death or serious bodily harm by using a knife to cut her face and neck." In October 2015, Bell filed a notice of his intent to pursue an insanity defense, and the State subsequently obtained an independent psychiatric evaluation of him. Bell's case eventually proceeded to a five-day trial in August 2017.

¶7. The State called eight witnesses in its case-in-chief. Ragan testified that Bell began assaulting her while they were driving in Bell's truck. She testified that Bell became angry about the length of her recent phone call with her estranged husband, Karl Neal.² Bell then punched her in the face with a closed fist. He then stopped the truck, got out of the truck, and hit her in the face a second time. Ragan testified that she "felt the bone break or ... heard it break" when Bell hit her the second time, and she "passed out a little." When she regained consciousness, Bell had picked her up by her hair and was shaking her. He then forced her back in the truck and resumed driving. Bell later told Ragan that he was going to kill her before the police could find her, and he pointed out where he was going to bury her body. Bell then began hitting her in the chest and stomach with his fist.

¶8. When Bell and Ragan returned to their house, Bell told Ragan to take off all of her clothes because he did not want her to try to leave. Then Bell pulled out a knife and started "sticking" the right side of her face with the knife. Ragan testified that she "finally got [Bell] to calm down" but that she could not escape because Bell "made [her] hold him" until he went to sleep. Ragan testified that she initially told police officers that her injuries resulted from a fall because Bell and Bell's mother had urged her to say that.

¶9. Montgomery and Kayla Neal testified about contacting authorities after they could not contact Ragan and became concerned. Officer Williams, Lieutenant Jones, and Lieutenant Prentiss also testified. Georgia Grotowitz, the director of Haven House, testified regarding her interaction with Ragan. Silvio testified about Ragan's condition and injuries when he treated her in the emergency room on December 28, 2014. He also testified as an expert in the field of "emergency medicine." Silvio testified that Ragan's "orbital fracture

[was] consistent with trauma, a direct blow hitting [her] in the eye."

¶10. Bell called six witnesses and also testified in his own defense. Bell's psychiatrist, Dr. Clyde Glenn, testified that Bell had been diagnosed with bipolar disorder

. Dr. Glenn could not say that Bell was experiencing a "manic episode" on December 26, 2014. But Dr. Glenn opined that if Bell had been experiencing "an extreme manic state" at that time, "he wouldn't necessarily understand the ... quality of his actions or that they were wrong."

¶11. Bell also called his daughter, two of his aunts, and a family friend. They described some of their various experiences with Bell and "behavioral problems" that he had exhibited since he was young. In general, they claimed that Bell sometimes did not understand the consequences of his actions or the difference between right and wrong. Bell's daughter testified that stress tends to make Bell's problems worse and that Ragan's unemployment had been a recent source of stress.

¶12. Bell then testified in his own defense. Bell denied that he assaulted Ragan in any manner, claimed that Ragan injured herself when she fell in the garage, and gave a detailed account of his own version of the events of December 26-27, 2014. He testified that he and Ragan traveled to Jackson and Ridgeland, stopped at a barber shop where he worked, ate dinner at the Mediterranean Grill on Old Canton Road, and sat on a pier at the Reservoir. Bell claimed that he and Ragan extensively discussed their relationship and his desire to end the relationship. Finally, they returned home, stopping in Clinton on the way back to Vicksburg. Bell testified to the details of alleged conversations with Ragan and others on December 26. Bell stated that he slept in his "man cave" that night. He claimed that he fell asleep watching TV and awoke to the sound of Ragan running down the hall and into a bathroom. According to Bell, Ragan said that she had fallen down stairs in the garage but would be alright. Bell testified that he did not see Ragan's face that night but that her eye was swollen and bruised when he saw her in the morning. Bell was adamant that he could recall the events of December 26-27 and that his detailed account was "the truth." Bell confirmed that his thought processes were intact throughout the relevant time period and that he did not have any type of manic episode on December 26 or 27.

¶13. Bell's final witness was his and Ragan's former landlord, John Tuminello. He called into question Ragan's testimony that she did not take any of Bell's belongings when she moved out of their house sometime after the alleged assault. According to Tuminello, Ragan left the house "completely empty" when she moved out.

¶14. After Bell rested, the prosecution called psychiatrist Phillip...