Davis v. State

• Decision Date: 06 December 2022
• Docket Number: 2021-KA-00759-COA
• Parties: DONTARIOUS VONTAE DAVIS A/K/A "MAN-MAN" APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

DONTARIOUS VONTAE DAVIS A/K/A "MAN-MAN" APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2021-KA-00759-COA

Court of Appeals of Mississippi

December 6, 2022

DATE OF JUDGMENT: 06/28/2021

WEBSTER COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY MOLLIE MARIE McMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

DISTRICT ATTORNEY: DOUG EVANS

BEFORE BARNES, C.J., McDONALD AND McCARTY, JJ.

McCARTY, J.

¶1. A man robbed a fitness center and kidnapped a woman. He was charged with one count of armed robbery and one count of kidnapping. A jury convicted him of both. He now appeals.

FACTS AND PROCEDURAL HISTORY

¶2. Caroline Love was working the night shift at a fitness center in Webster County, expecting a visit from a familiar elderly patron. As the door opened, she called out only to receive silence in return. Awaiting a friendly face, she saw Dontarious Davis instead, who demanded, "Give me the money." Fighting back panic, Love gave Davis the forty dollars the fitness center had stored away. He was not satisfied. Davis shifted his focus to Love's own money and ordered her to give him any cash she had. When she showed him she did not have any, he spotted her debit card and declared, "We're going to the bank."

¶3. With one hand in his pocket and the other clutching her arm, Davis led Love to her car and climbed into the passenger seat. Love, fearing Davis to be "pointing a gun" at her, did as she was told and took him to a drive-through ATM. There, Love "played stupid" with the machine, forcing Davis to lean into view of the camera while he tried to hurry her up. She reluctantly pulled out $200. But as Davis shifted, Love noticed he was, in fact, wielding a screwdriver, not a gun. When a car pulled in behind them, Love threw her debit card out of the window and tried to signal it.

¶4. With Davis grabbing her, she presented him with an ultimatum: take the $200 and leave, or stay and risk capture. Davis took the money and ran. Love sped off to the local Sheriff's office.

¶5. After analyzing multiple photo line-ups, Love clearly identified Davis as the robber. The police department also posted a photo from the ATM on Facebook in which China Bingham, Davis' longtime friend, recognized him. Police officers arrested Davis, and a grand jury subsequently indicted him on charges of armed robbery and kidnapping.

¶6. At trial, the State asked Police Chief Greg Hunter about his course of action following Bingham's tip that Davis was the robber. He answered, "Well, at that point in time, I was --I did not realize [Davis] was out of prison. We had sent him several years back for burglary."

¶7. Davis' counsel immediately objected, and the trial court sent the jury out of the courtroom. The trial court then questioned the State: "Mr. Howie, can you explain why the Court should not grant a mistrial at this time?" The trial court made it clear that it did "not like what just happened at all" and reprimanded Chief Hunter, claiming it did not "think that was by accident that you said that . . . ."

¶8. Counsel for Davis immediately asked for a mistrial. In response, the State claimed it "did discuss [with Chief Hunter] what could and could not be said in open court concerning any prior convictions this Defendant may have had," and so was not attempting to elicit the statement.

¶9. In search of a solution, the State suggested "admonish[ing] the jury to strike . . . [Chief Hunter's statement] and move on," but Davis' counsel argued he did not "think a jury instruction" could rectify the situation. Weighing its options, the trial court elected "to bring the jury out and then individually ask each one of them if they will disregard anything that was said about [Davis] . . . ." The trial court also made it clear that if a single juror could not disregard, it would "declare a mistrial."

¶10. Each juror indicated that they would be able to disregard the statement, and the trial resumed. Prior to jury deliberations, the trial court once again instructed the jury to treat the statement "as if it did not happen."

¶11. The jury found Davis guilty of armed robbery and kidnapping. The trial court then sentenced him to serve forty-five years for the armed robbery in the custody of the Mississippi Department of Corrections and twenty years for the kidnapping to run consecutively to his charge of armed robbery. Davis now appeals for relief in the form of a new trial.

DISCUSSION

The trial court did not abuse its discretion in denying Davis' motion for a mistrial.

¶12. The trial court denied Davis' motion for a mistrial following Chief Hunter's statement concerning Davis' prior criminal history. Davis presents one issue on appeal. He argues "the trial court erred in not declaring a mistrial," citing Chief Hunter's disclosure of his past burglary conviction and his belief that this disclosure was intentional.

¶13. In outlining the conditions for a mistrial, Mississippi Rule of Criminal Procedure 23.5 states:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by a party, a party's attorney(s) or someone acting at the behest of a party or a party's attorney(s), resulting in substantial and irreparable prejudice to the movant's case.

Upon motion of a party or its own motion, the court may declare a mistrial if:

(a) The trial cannot proceed in conformity with the law; or

(b) It appears there is no reasonable probability of the jury's agreement upon a verdict.

¶14. In weighing whether a remark warrants a mistrial, "a trial judge is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial." Dorsey v. State, 310 So.3d 1238, 1249 (¶36) (Miss. Ct. App. 2021) (internal quotation marks omitted). "Unless serious and irreparable damage results from an improper comment, the judge should admonish the jury then and there to disregard the improper comment." Id. (internal quotation marks omitted).

¶15. This court "employs an abuse-of-discretion standard of review to determine whether a trial judge erred in denying a request for a mistrial." Sharkey v. State, 265 So.3d 151, 155 (¶14) (Miss. 2019). "A trial judge need declare a mistrial only when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case." Id. (internal quotation mark omitted) (emphasis added).

¶16. This Court "ha[s] repeatedly declined to reverse the denial of a motion for a mistrial in cases where prior crimes or convictions were inadvertently brought before the jury." Bankhead v. State, 299 So.3d 853, 859 (¶22) (Miss. Ct. App. 2020). To illustrate, "[i]n situations where the witness refers briefly to another crime, and the testimony was not purposely elicited by the district attorney to prove the defendant's character, no reversible error occurs." Id. at 858 (¶21) (internal quotation marks omitted). "Absent unusual circumstances, where [an] objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error." Moore v. State, 64 So.3d 542, 546 (¶16) (Miss. Ct. App. 2011).

¶17. As a threshold matter, we agree with the trial court that the police chief's statement about Davis' prior criminal history was improper. However, merely because the statement was improper does not halt our inquiry, which is centered on whether the improper statement was "purposely elicited by the district attorney to prove the defendant's character," if there was a sustained objection, and the jury was properly instructed.

¶18. In support of his argument for reversal, Davis argues the trial was irreparably prejudiced because "the witness . . . mentioned that [he] had been in prison and . . . had been convicted of burglary." The record shows Chief Hunter only mentioned Davis' past conviction once and did not further elaborate on it, as he was halted by the defense counsel's objection. After being called up to the Bench, the State declared to the trial court that it had specifically "discuss[ed] what could and could not be said in open court concerning any prior convictions this Defendant may have had" with witnesses for the prosecution. In response, the trial court asked "did y'all advise the witnesses that they were not to discuss this?" The State responded, "We did, Your Honor."

¶19. The record also shows Chief Hunter's statement was not a direct answer to the State's line of questioning. After the witness testified a tip had come in from Facebook identifying Davis as the perpetrator, he was asked "At that point in time, what did you do?" Instead of responding to this question, the police chief offered "Well, at that point in time, I was -- I did not realize [Davis] was out of prison. We had sent him several years back for burglary."

¶20. Since the State never directly asked Chief Hunter about Davis' prior criminal history, Chief Hunter's statement was a volunteered response. See Moore, 64 So.3d at 546 (¶17) (finding no evidence of prosecutorial misconduct when the witness volunteered the information and "[t]he question was not stated to elicit an objectionable answer . . ."). This answer was also non-responsive to the question. See Hodges v. State 912 So.2d 730, 779 (¶114) (Miss. 2005) (discussing "that a witness' reference to another possible crime committed by the defendants did not warrant a reversal where the witness alluded to other crimes only once and the prosecution did not deliberately ask . . . whether the defendants had been involved in other...