Blakeney v. State, No. 2007-KA-02300-COA (Miss. App. 12/8/2009)

Decision Date08 December 2009
Docket NumberNo. 2007-KA-02300-COA.,2007-KA-02300-COA.
PartiesWANDA LEONA BLAKENEY APPELLANT v. STATE OF MISSISSIPPI APPELLEE
CourtMississippi Court of Appeals

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

DISTRICT ATTORNEY: ANTHONY J. BUCKLEY.

BEFORE MYERS, P.J., IRVING AND BARNES, JJ.

BARNES, J., FOR THE COURT:

¶ 1. Wanda Blakeney was convicted of two counts of murder after a jury trial in the Jones County Circuit Court and sentenced to serve two consecutive life sentences in the custody of the Mississippi Department of Corrections (MDOC). She now appeals her convictions and sentences. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 10, 2006, at 4:55 a.m., Mississippi State Trooper Holt Ross was notified of a motor vehicle accident on U.S. Highway 84, west of Waynesboro, Mississippi. Trooper Ross arrived at the scene at 5:30 a.m. and spotted a vehicle approximately 300 feet down an embankment. In the vehicle were the deceased bodies of Willie and Anita Kitchens, the owners of the vehicle. Both occupants were wearing seatbelts, and the airbags had not deployed. The car's gear shift was in neutral, and there was no sign of serious damage to the vehicle. The car was filled with smoke, and burned fireworks were in the back seat. Two containers of gasoline were found in the trunk, and containers of lighter fluid were also in the car. There were multiple bruises and burn marks on the bodies, which were later determined to be from a taser gun. Dr. Steven Hayne, an expert in forensic pathology who conducted the autopsy on Willie and Anita, concluded that they had died from manual strangulation.

3. Willie and Anita lived with their natural granddaughter, Blakeney, whom they had adopted as their daughter. Blakeney's husband, John Christopher Paul Blakeney (Christopher), and the Blakeneys' two children also lived at the home. At approximately 5:20 a.m. that morning, Blakeney phoned Carolyn McCree, her natural mother, and asked her to come to the house. Upon Carolyn's arrival, Blakeney told her that Christopher had possibly killed Willie and Anita and had left with their bodies.1 It was at this point that the police were contacted about the possible kidnapping/homicide. When law enforcement arrived, they noted several pieces of pink and yellow "confetti" on the floor of the Kitchenses' bedroom, which were later determined to be from a taser gun.2 There were no linens on the bed.

¶ 4. Later that morning, Blakeney was interviewed by Officer Matt Ishee of the Jones County Sheriff's Office. The interview was videotaped and lasted approximately thirty minutes. During that interview, Blakeney claimed that she thought Christopher may have killed Willie and Anita and taken their bodies by towing their car behind her vehicle. She noted during that interview that Christopher was an abusive husband and that she wanted to get away from him. She also accused Christopher of possible pedophile tendencies. She stated that she did not know exactly what had happened that morning, but that she was asleep and awoke to Anita's screams at approximately 3:00 a.m. Christopher was not supposed to be in the house; he had been staying in Louisiana due to his job. She said that she was terrified and afraid to move but claimed that she attempted to pick up the phone; however, the line was in use. Soon thereafter, she said Christopher came into her bedroom wearing dark clothes and gloves and made her touch something small and black; she assumed it was a gun. Christopher left the house, and Blakeney went into her parents' bedroom. There were no bodies present and no bed linens on the bed. There were also small yellow and pink fragments on the floor. Blakeney claimed that she then saw, through the window, Christopher leave in her vehicle. She said that he was driving her car, and she presumed he was towing her parents' car. She further stated that she thought Christopher might come back and harm her, explaining why she called Carolyn instead of the police after he left the home.

5. Immediately following the first interview, Blakeney was interviewed by Roy Clingon, an investigator with the Mississippi Bureau of Investigation.3 According to Clingon's trial testimony, Blakeney told him the same set of facts that she had given in the first interview. However, when questioned further about the time frame between the murders and the 9-1-1 call, it became apparent to the investigator that Blakeney was a suspect. Blakeney was administered her Miranda rights, which she waived. She proceeded to change her story and confessed that she did, in fact, assist Christopher in disposing of Willie's and Anita's bodies by driving her vehicle to pick up Christopher after he ran the Kitchenses' car off the road. Blakeney was interviewed a third time, three days later, by Officer Ishee.4 At this interview, Blakeney was again given a Miranda warning, and she signed a waiver of her rights. It had been discovered that Blakeney had taken approximately $23,000 from a joint checking account that she held with Willie and Anita, during the period of February 2006 to June 2006. The bank had alerted Willie to the recent withdrawals, and Blakeney claims that she told him she would pay the money back. She said that she had stolen the money because she was trying to divorce Christopher but claimed that she lost the money in an Internet scam.

6. Blakeney admitted in the third interview that she and Christopher had discussed murdering Willie and Anita prior to the incident. However, she continually maintained that she merely went along with Christopher's discussions of murder to keep him from getting angry, and that she assumed he would just forget about the idea if she did so. She also claimed that he showed up at the house a night or two prior to the murders, and she told him to leave when it appeared that he was serious about going through with the murders. She told law enforcement that, after she heard Anita scream, Christopher made her go into the Kitchenses' bedroom. Willie's body was not present, but Anita's body was. She then claimed that Christopher asked her to help carry Anita's body to the car, but she refused. Instead, she cleaned up the linens.5 She explained that she helped Christopher after the murders because she was afraid for her life and her children's lives. However, her statements regarding her children were inconsistent. She stated at one point that they were both in the car with her on the way to pick up Christopher, yet she also stated that Christopher had their son with him. She later admitted in a letter to Carolyn that she had lied to police about that because she knew they would not understand why she did not immediately contact the police.

7. On November 30, 2006, Blakeney and Christopher were indicted on two counts of murder. A motion to sever the trials was granted on August 21, 2007.6 In a jury trial in the Circuit Court of Jones County conducted on November 19-20, 2007, Blakeney was convicted of two counts of murder. Blakeney filed a motion for a new trial on November 26, 2007, which was denied by the trial court.7 Blakeney was sentenced on December 14, 2007, to two consecutive life sentences in the custody of the MDOC, and the sentencing orders were entered by December 20, 2007. Blakeney subsequently filed this appeal of her convictions and sentences on January 23, 2008.

JURISDICTION

¶ 8. Although the State has not challenged appellate jurisdiction, we must determine whether jurisdiction exists. Mississippi Rule of Appellate Procedure 2(a)(1) states that the dismissal of an appeal is mandatory "if the notice of appeal was not timely filed pursuant to Rules 4 or 5." Under Mississippi Rule of Appellate Procedure 4(a), Blakeney is required to file her notice of appeal within thirty days of the entry of her sentencing order. The thirty-day period ended on January 19, 2008, which was a Saturday. The following Monday, January 21, 2008, was a legal holiday. Consequently, Blakeney's appeal should have been filed by Tuesday, January 22, 2008. As she failed to file her notice of appeal until the following day, January 23, 2008, her notice of appeal was untimely.

¶ 9. However, Rules 2 and 4 may be suspended "`when justice demands' to allow an out-of-time appeal in criminal cases." Edmond v. State, 991 So. 2d 588, 591 (¶10) (Miss. 2008) (citingFair v. State, 571 So. 2d 965, 966 (Miss. 1990)). Mississippi Rule of Appellate Procedure 2(c) states that:

In the interest of expediting decision, or for other good cause shown, the Supreme Court or the Court of Appeals may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction; provided, however, in civil cases the time for taking an appeal as provided in Rules 4 or 5 may not be extended.

As Blakeney's notice of appeal was filed one day late, and no mention of this jurisdictional issue was made by either Blakeney or the State, we assume that neither party recognized that this was an untimely appeal. As the dismissal of this appeal for lack of jurisdiction would likely result in Blakeney's filing a motion for post-conviction relief citing ineffective assistance of appellate counsel based on the failure to file a timely notice of appeal, we will suspend the rules pursuant to Rule 2(c) and address this appeal on its merits.

I. Whether the trial court erred in denying Blakeney's motion for directed verdict and/or a new trial.

¶ 10. After the State's case-in-chief, Blakeney submitted a motion for a directed verdict based upon the fact that the indictments stated that the murders were a result of suffocation. Blakeney claimed...

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