Brisco v. State, 2018-KA-01237-COA

• Decision Date: 01 October 2019
• Docket Number: NO. 2018-KA-01237-COA,2018-KA-01237-COA
• Citation: 295 So.3d 498
• Parties: Latoya BRISCO a/k/a Latoya Nicole Brisco a/k/a Toya, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

295 So.3d 498

Latoya BRISCO a/k/a Latoya Nicole Brisco a/k/a Toya, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-KA-01237-COA

Court of Appeals of Mississippi.

October 1, 2019

Rehearing Denied January 28, 2020

ATTORNEY FOR APPELLANT: JOHN R. REEVES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH, JACKSON

BEFORE J. WILSON, P.J., McDONALD AND McCARTY, JJ.

McDONALD, J., FOR THE COURT:

¶1. On November 18, 2013, Latoya Brisco stabbed and killed Carl Whitaker. She was indicted for murder, and on February 23, 2017, a Warren County jury found her guilty of culpable negligence manslaughter. She was sentenced to twenty years in prison with ten years to serve and the remaining years suspended with post-release supervision. After the denial of her post-trial motions, Brisco appealed her conviction. Finding no error by the circuit court, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Brisco and Whitaker had been platonic friends for four years prior to Whitaker's death. Brisco lived with her domestic partner, Casheka Northern. When they would have disagreements, Brisco would stay at Whitaker's—on one occasion, for over a month.

¶3. Over the years, Brisco and Whitaker also had arguments, especially when Whitaker was drinking. Whitaker apparently desired a closer relationship than Brisco wanted, and he became upset when she became pregnant by someone else. In April 2013, Whitaker allegedly called Brisco and left messages on her voice mail threatening to kill her and her baby. Whitaker had told Brisco that he had served time for stabbing a man in 2000. Fearing him this time, Brisco filed charges against Whitaker in justice court, but there was no hearing on the charges prior to his death. Despite this, Brisco testified that Whitaker apologized, and that they resumed their friendship.

¶4. Things ended differently on the night of November 18, 2013. Early in the evening, Whitaker called Brisco and offered to buy some tequila and come over to socialize with Brisco and Northern. At that time, Brisco's baby had been born and was three months old. Also living with Brisco were Northern's two minor children, K.N. and Z.N.¹ K.N. was fourteen at the time; Z.N. was twelve. That night, Northern was also keeping her baby nephew, K.Y., while his mother worked.

¶5. Brisco picked Whitaker up and drove him to a liquor store where he purchased the alcohol. They returned to Brisco's home where Whitaker and Northern started drinking; Brisco did not drink with them. Both Brisco and Northern testified that no drugs were used, but several times that evening Whitaker went outside to smoke. Whitaker and Northern became intoxicated—Northern so much so that she passed out in the bedroom where Brisco's baby was asleep.

¶6. Around 8 p.m., Brisco and Whitaker were playing checkers for money while the older children were watching television. During their conversation, Brisco asked Whitaker for the $55 he owed her for a part he had broken on her car. They began arguing, and Brisco said she would let him slide with paying $30. What happened after this is in dispute.

¶7. According to K.N., Whitaker and Brisco argued for some time. Whitaker asked Brisco to take him home, and she refused. Both K.N. and Z.N. testified that Brisco pulled the computer chair in front of the door and prevented Whitaker from leaving. According to K.N. and Z.N., Whitaker stood up and, being intoxicated, fell against the wall. He became angry and called 911. He told the 911 dispatcher that the people he was with would not let him leave. Both minor children testified that during the call, which lasted over ten minutes, Brisco continued to sit in the chair blocking the front door and laughing. According to K.N., Brisco said, "You're not going nowhere until you give me my $55." At one point, the 911 call dropped, and 911 called Whitaker back. Whitaker told the 911 dispatcher that he had been stabbed. But both children testified that Whitaker had not been stabbed at the time of his 911 call, although both he and Brisco had knives,² and Brisco made some threatening gestures toward Whitaker during the call. Z.N. testified that she left the room shortly after Whitaker's 911 calls.³

¶8. K.N. remained in the living room throughout the rest of the incident. She testified that after the 911 call, Whitaker came around the couch and asked Brisco, who was sitting in the chair in front of the door, to let him leave. Brisco refused. Whitaker became angrier and threw a bassinet towards K.N. and came at Brisco. Brisco stood to meet Whitaker, holding the knife she had picked up. Brisco and Whitaker went to the floor. At this point, K.N. ran to the kitchen and returned with a steak knife. K.N. stabbed Whitaker once in the back; he got to his feet, and, according to K.N., he was swinging his knife really fast. K.N. stabbed Whitaker a second time. When Whitaker fell to the floor, K.N. saw that he had Brisco's knife in his neck.

¶9. Contradicting K.N. and Z.N., Brisco testified that she never prevented Whitaker from leaving. According to her, Whitaker, not she, was at the front door when he made the 911 call, and he could have left at any time. He was angry and threw the bassinet at K.N. Brisco said Whitaker then came toward her and wrestled her to the floor while trying to cut her with his knife. When K.N. stabbed Whitaker in the back, he turned, and Brisco was able to get up. Whitaker was swinging his knife and acting in a crazy manner that Brisco said she had not seen before. Brisco struck out with her knife and said she did not know that she had stabbed him in the neck. Brisco testified she did this to protect herself and her household. She also testified that she had no intention of killing Whitaker. Brisco herself suffered cuts and a scratch on her back, but she needed no medical attention.

¶10. Brisco called 911, but because Whitaker had called earlier, Deputy Sheriff Chris Satcher had already arrived and was outside the home waiting on back up when the lights in the house came on and he heard a commotion. As he entered, he saw Whitaker falling to the floor and bleeding profusely. Other law enforcement entered, and Satcher attended to the dying Whitaker. Satcher was unable to help him given the severity and location of the wound

, and within a minute, Whitaker died. Satcher took photos of the area, as well as of a scratch on K.N.'s leg, a cut on Brisco's pinky finger, and a deep scratch on Brisco's back.

¶11. Brisco and the children were taken to the police station to give their statements. Whitaker's body was taken by the medical examiner for an autopsy and toxicology testing. The test results revealed that Whitaker's blood alcohol level was .207 (.08 being the legal limit for driving a car). In addition, he had marijuana and cocaine in his blood, which suggested recent use. At trial, the medical examiner testified that the combination of cocaine and alcohol increases aggression.

¶12. Initially, no arrests were made. Law enforcement thought the case was one of self-defense because they had been told that someone was in the home with a knife threatening to kill everyone. However, Satcher requested the 911 calls. After reviewing them, Satcher concluded that further investigation was needed, which resulted in Brisco's indictment for murder on July 31, 2014.

¶13. Pre-trial, Brisco filed three motions in limine: (1) to limit Satcher's testimony concerning the 911 calls; (2) to admit the threatening voice messages that Whitaker left Brisco in April 2013; and (3) to enter Whitaker's 2000 indictment and conviction. Concerning Satcher's testimony, Brisco objected to his interpretation of the intelligible parts of the 911 calls. The court agreed and limited Satcher to testifying only that he launched a murder investigation based on the 911 calls. With respect to Whitaker's voice messages, the court denied Brisco's motion because the dates of the messages were undocumented and she testified they even preceded April 2013—thus, being too remote in time to prove Brisco's state of mind during the November incident. The court reserved ruling on the admission of Whitaker's conviction, but during trial, the court did admit it.

¶14. At trial, the State called K.N. and Z.N. to testify about the incident. Chuck Tate, the director of the 911 call center, testified about the 911 calls. Satcher testified about law enforcement's investigations, and the coroner and a forensic pathologist from the medical examiner's office testified about their examination of Whitaker's body and their opinions concerning his cause of death. Evidence from the crime scene included photographs of the living room. The State pointed out that the blood stains contradicted Brisco's story that Whitaker was at the front door during the 911 call and then charged at her, because blood splatters were found on the front door along with a pool of blood; blood then trailed across the room to where Whitaker ultimately fell. This, the State argued, showed that Brisco was blocking the front door when Whitaker approached her and that is where he was stabbed. He then staggered away and fell further into the room.

¶15. The jury also listened to the 911 calls—two from Whitaker and one from K.N. and Brisco after the stabbing. According to the records, the first 911 call from Whitaker came in at 8:18 p.m. and lasted fifteen minutes. Brisco's call after the stabbing was documented at 8:36 p.m.

¶16. After the State rested, Brisco moved for a directed verdict, which the court denied. The only witness for the defense was Brisco.

¶17. After being instructed by the court, the jury deliberated. Three hours into its deliberations, the jury sent out a question:

Do either of these meet the criteria for culpable negligence—1. the fact that she brought a man who she knew to be aggressive under the influence of alcohol, and against whom she had previously filed charges for assault, setting up conditions leading to his death, constitute culpable negligence? 2. By

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