Carter v. State, 2013–KA–01927–COA.

• Court: Court of Appeals of Mississippi
• Citation: 195 So.3d 238
• Docket Number: No. 2013–KA–01927–COA.,2013–KA–01927–COA.
• Parties: Dwaliues Deon CARTER a/k/a Dwaliues D. Carter a/k/a Dwaliues Carter a/k/a Dwaliue Deon Carter a/k/a Dwalieu Deon Carter a/k/a Deon Carter a/k/a Dwalie Carter, Appellant v. STATE of Mississippi, Appellee.
• Decision Date: 28 June 2016

195 So.3d 238

Dwaliues Deon CARTER a/k/a Dwaliues D. Carter a/k/a Dwaliues Carter a/k/a Dwaliue Deon Carter a/k/a Dwalieu Deon Carter a/k/a Deon Carter a/k/a Dwalie Carter, Appellant

v.STATE of Mississippi, Appellee.

No. 2013–KA–01927–COA.

Court of Appeals of Mississippi.

June 28, 2016.

Office of State Public Defender by George T. Holmes, Andre De Gruy, attorneys for appellant.

Office of the Attorney General by Barbara Wakeland Byrd, John R. Henry Jr., attorneys for appellee.

Before IRVING, P.J., BARNES and GREENLEE, JJ.

GREENLEE

, J., for the court:

¶ 1. Dwaliues Carter was convicted on two counts of capital murder with the underlying felony of robbery, one count of house burglary, one count of conspiracy to commit house burglary, and one count of felony child neglect. He received two life sentences without parole for the murders, twenty-five years for the burglary, five years for conspiracy, and five years for felony child neglect. On direct appeal, Carter argues that the trial court erred in allowing the State to introduce bad-act evidence via hearsay, that the State failed to prove “substantial harm” relating to felony child neglect, that the State's conspiracy jury instruction was constructively amended from the indictment, and that the trial court erred in denying his motion to suppress statements given to the police. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. On Wednesday, January 26, 2011, a Hinds County sheriff's deputy discovered the bodies of Robert Lewis Carter Sr. (Robert) and his fianceé, Renita Lee Mark (Renita), at Robert's home following an inquiry into an abandoned truck registered in Robert's name. The victims had died from multiple gunshot wounds

. The couple's seven-month-old infant, Robert Carter Jr., was found on the floor of the house, hungry, crying, and in need of a diaper change.

¶ 3. Investigators considered Robert's brother, Carter, as a suspect after learning from a neighbor that the brothers had a recent altercation over an automobile. When interviewed by law enforcement, Carter initially requested an attorney when read his Miranda¹ rights. However, when the police stopped the interrogation pursuant to his request for an attorney, Carter continued to ask the police questions and stated that he would talk with them. He signed an acknowledgment and waiver of his Miranda rights. After a break, Carter was re-Mirandized, and law enforcement conducted a second interview in which Carter confessed to his role in the crimes. The interviews were audio and video recorded and shown to the jury at trial.

¶ 4. In the interview, Carter confessed to burglarizing his brother's home with his acquaintance Travaris Christian (Travaris). Carter was angry at his brother Robert for not allowing their mother and him to stay at Robert's house anymore. He stated that his role in the burglary was to get his brother to open the door and so that Travaris could come in with the gun. He claims that it was Travaris who actually pulled the trigger in the shootings. He acknowledged that he had heard the child crying in the house.

¶ 5. Codefendant Alonzo Christian (Alonzo) testified that on the night of the murders he drove Carter and Travaris to Robert's house knowing that their intent was to burglarize Robert's house. Carter had been staying intermittently at the house of Alonzo and Alonzo's girlfriend, Rhonda Fay Shannon (Rhonda Fay).

¶ 6. Rhonda Faye testified that around 1 a.m. on Tuesday morning, January 25, 2011, Carter came to her and Alonzo's house carrying a television Carter claimed his brother had given him. While cleaning a day or two later, she discovered a gun hidden in a shoe box in her house. Rhonda Faye called the police, who came and took the gun. She testified that both Travaris and Carter had access to her house. The State's expert testified that the gun was a match for the bullets that killed Robert Sr. and Renita.

¶ 7. Renita's twin sister, Renata, testified that she often stayed with Robert and Renita, and that Renita would stay with their mother in McComb whenever Robert was offshore working because Renita did not feel safe around Carter by herself. Renata testified that Carter had lived intermittently at Robert's house; however, Robert had recently told Carter that he could no longer stay with him. The defense objected at various points to parts of Renata's testimony as hearsay, including testimony that Renita told Renata that Carter attempted to “run over” Robert and that Carter, with his mother, “jumped on” Renita. The trial court sustained several of the defense's objections to Renata's testimony as speculation and hearsay. The defense did not request that the jury be instructed to disregard Renata's comments.

¶ 8. Testimony from the prosecution established that the murders took place late Monday night, January 24, or early Tuesday morning, January 25. Robert and Renita's bodies and the infant were discovered Wednesday. The sheriff's deputy who found the bodies testified that he found the infant screaming on the floor in the fetal position with a lot of feces in his diaper. Additional responding officers testified similarly to the child's abandoned state and to his dehydration. Responding officers changed the child's diaper and fed him milk found in the refrigerator prior to the victim's assistance officer arriving to take the child.

¶ 9. At trial the State asked the medical examiner—who did not examine or treat the infant—to answer hypothetically, “What are the outlooks for that child at seven months old under those conditions?” The witness replied, “It would certainly be a very traumatic situation for that child.... Certainly any infant or toddler requires quite a bit of care. I'm sure a lot of people know they need a lot of attending to and to be fed and diapered several times a day.”

¶ 10. At trial the defense objected to the conspiracy jury instruction, arguing that it varied impermissibly from the indictment. The indictment charged all three men, stating:

Travaris Richard Christian, Alonzo Christian[,] and Dwaliue Deon Carter did wilfully, unlawfully, and feloniously conspire and agree each with the other to commit a crime against the State of Mississippi, to-wit: to burglarize the dwelling house of Robert Lewis Carter, located at 1323 Timberidge Rd., Terry, Mississippi, said object of said conspiracy being a felony, in violation of Mississippi Code Annotated [section] 97–1–1 (1972)

, as amended.

The jury instruction charged the jury to find Carter guilty if it found beyond a reasonable doubt that he:

Did willfully, unlawfully, and feloniously conspire and agree with Alonzo Christian and Travaris Richard Christian, or either of said persons, to commit a crime against the State of Mississippi, to-wit: to burglarize the dwelling house of Robert Lewis Carter....

Carter argued that the “or either of said persons” language impermissibly altered the allegation of the indictment that all three men participated in the conspiracy.

¶ 11. The court denied Carter's motion to suppress his confession, finding that Carter voluntarily waived his Miranda rights and that his confession was admissible.

¶ 12. Carter now appeals. In addition to the brief submitted by Carter's counsel, Carter submitted a supplemental pro se brief arguing that the trial court erred in denying his motion to suppress his confession.

DISCUSSION

I. Whether the trial court erred in allowing the State to introduce bad-act evidence via hearsay.

¶ 13. This Court reviews the trial court's admission or exclusion of evidence for abuse of discretion. O'Connor v. State, 120 So.3d 390, 396 (¶ 16) (Miss.2013)

.

¶ 14. Carter argues that Renata's testimony concerning alleged altercations between Robert and Carter prior to the homicides, including testimony that Renita told Renata that Carter attempted to “run over” Robert and that Carter and his mother “jumped on” Renita, was hearsay evidence of prior bad acts constituting reversible error. The State argues that Renata's testimony was relevant to show Carter's possible motive and intent to commit the crimes. The State further argues that even if certain testimony, was inadmissible hearsay, it was harmless in light of the other overwhelming testimony including Carter's confession.

¶ 15. While evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith, it may “be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b)

. Here, Renata's testimony regarding the “bad blood” between the brothers was relevant to telling the complete story and to demonstrating Carter's motive and intent following Robert throwing Carter out of Robert's house. See

Moore v. State, 921 So.2d 381, 384 (¶ 10) (Miss.Ct.App.2005) (permitting admission of evidence of prior bad acts to show intent and motive).

¶ 16. We also note that the trial court sustained several of the defense's objections to Renata's testimony as speculative and as hearsay, and that the defense did not request that the jury be instructed to ignore her statements. “It is the rule in this State that where an objection is sustained, and no request is made that the jury be told to disregard the objectionable matter, there is no error.” Marks v. State, 532 So.2d 976, 981 (Miss.1988)

.

¶ 17. Moreover, even if we were to construe any of Renata's testimony as inappropriately admitted, “[a]n error is harmless when it is apparent on the face of the record that a fair-minded jury could have arrived at no verdict other than that of guilty.” Havard v. State, 928 So.2d 771, 797 (¶ 54) (Miss.2006)

(citing McKee v. State, 791 So.2d 804, 810 (¶ 24) (Miss.2001) ). The jury did not consider only Renata's testimony, but also the testimony of other witnesses and Carter's confession, including his statements that he was angry at his brother for refusing to let him continue to...