Fraise v. State
| Decision Date | 31 March 2009 |
| Docket Number | No. 2007-KP-01626-COA.,2007-KP-01626-COA. |
| Citation | 17 So.3d 160 |
| Parties | Jael FRAISE, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Jael Fraise, pro se.
Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
Before MYERS, P.J., GRIFFIS and ISHEE, JJ.
MYERS, P.J., for the Court.
¶ 1. Jael Fraise was convicted in the Pearl River County Circuit Court of armed robbery and possession of a weapon by a convicted felon. He was sentenced as a habitual offender to a term of life imprisonment on both counts to run consecutively in the custody of the Mississippi Department of Corrections (MDOC). He now appeals his conviction arguing that: (1) prosecutorial comments and efforts to impeach witnesses constituted prosecutorial misconduct; (2) the State violated Rule 9.04 of the Uniform Rules of Circuit and County Court in failing to provide the statements of witnesses; (3) the trial court erred in allowing the photographic lineup to be admitted into evidence; (4) the trial court erred in allowing the testimony of Jeanette Quintana with regard to the photographic lineup; (5) the trial court erred in allowing the testimony of police investigator Holly Krantz; (6) the trial court erred in admitting the photograph of Fraise seized from his apartment; (7) the trial court erred in failing to grant a circumstantial-evidence instruction; and (8) he received ineffective assistance of counsel. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Quintana, Grant Stevens, and Stephanie Childs were at the Pit Stop convenience store in Picayune, Mississippi on the night of September 25, 2006. Quintana and Stevens were employees at the Pit Stop; Childs was a patron, who had stopped in to purchase a drink. Shortly after Childs entered the Pit Stop, a male armed with a handgun entered the store demanding money. He was wearing black pants; a black, long-sleeved shirt; black gloves; and a black "do-rag" over his face. Upon entering the store, the robber grabbed Childs and pushed her against the counter. He pointed the gun at Stevens, who was working at the register, and demanded that Stevens empty the register's contents into a bag. He also pointed the gun at Quintana and told her not to move. She was sitting at a table approximately sixteen feet away from the register. Stevens complied with the robber's demands and placed all of the register's money into the bag, totaling $425. After Stevens gave the bag of money to the armed man, the robber released Childs and ran out of the store. Stevens pursued the man on foot and witnessed the robber get into a red Oldsmobile and flee the scene.
¶ 3. When Stevens returned to the Pit Stop, the police had already arrived. Stevens gave the police a description of the red Oldsmobile. A be-on-the-lookout (BOLO) was issued for the red Oldsmobile. The car was subsequently found at the Arborgate Apartments in Picayune by Sheriff's Deputy Rhonda Poche. The car's hood was warm to the touch, and gravel and mud were found on the car's underside, which were consistent with the makeup of the Pit Stop parking lot. The police brought Stevens to the Arborgate Apartments, and he positively identified the car as the one he saw flee from the Pit Stop after the robbery. Deputy Poche resided at the Arborgate Apartments, and she informed the investigators that she had seen Fraise operate the same red Oldsmobile prior to the night of the robbery. This led to the police investigation of Fraise.
¶ 4. A few days after the robbery, the lead investigator, Thomas Clark, conducted a photographic lineup for Stevens and Quintana. On the night of the robbery, Quintana told police that she could identify the robber. She testified that she could see the robber's face through the "do-rag," and recognized the robber as a regular customer at the Pit Stop. Quintana identified Fraise in the photographic lineup as the person who had robbed the Pit Stop; Stevens was not able to make a positive identification.
¶ 5. These events led to the subsequent search of Fraise's apartment at the Arborgate Apartments. Money consistent with the denominations taken from the Pit Stop, a black "do-rag," black gloves, and a picture of Fraise with a pistol were recovered from Fraise's apartment. A warrant was issued for Fraise on September 27, 2006, for the armed robbery of the Pit Stop. Fraise was arrested in California on March 22, 2007, and subsequently returned to Pearl River County, Mississippi.
¶ 6. At the end of a two-day trial, the jury found Fraise guilty of armed robbery and possession of a weapon by a convicted felon.1 Fraise was sentenced as a habitual offender to life imprisonment on each count, with the sentence on the possession of a weapon by a convicted felon charge to run consecutively to the sentence on the armed robbery charge, with both sentences to be served in the custody of the MDOC. Aggrieved, Fraise appeals his convictions and sentences.
DISCUSSION
¶ 7. Fraise's first four assignments of error are as follows: (1) prosecutorial comments and efforts to impeach witnesses constituted prosecutorial misconduct; (2) the State violated Rule 9.04 in failing to provide witnesses' statements; (3) the trial court erred in allowing the photographic lineup to be admitted into evidence; and (4) the trial court erred in allowing the testimony of Quintana with regard to the photographic lineup. Fraise admits in his brief that his counsel did not object to these issues at trial, and our review of the record confirms this. "[An] appellate court is not required to address issues that are not objected to at trial and preserved for appeal." Chasez v. Chasez, 957 So.2d 1031, 1038(¶ 16) (Miss.Ct.App. 2007). Thus, we will not address these issues as they were not properly preserved for review on appeal.
¶ 8. Fraise bifurcates this section into two distinct arguments: the police conducted a warrantless search of his house that violated his Fourth Amendment rights, resulting in the police locating Fraise's girlfriend, Astrid Hernandez; and Mississippi Rule of Evidence 613 was violated when Hernandez was not given the opportunity to explain or deny statements made by investigator Holly Krantz during her rebuttal testimony.
¶ 9. Fraise argues that the police conducted a warrantless search of his phone records violating his Fourth Amendment rights. He contends this illegal search yielded the name and number of Hernandez, and any testimony by Krantz regarding her conversation with Hernandez is inadmissible as fruit of the poisonous tree.
¶ 10. "[A]ll evidence obtained by virtue of illegal actions of the police is not `fruit of the poisonous tree.'" Hooker v. State, 716 So.2d 1104, 1112 (¶28) (Miss. 1998). "The test is `whether granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality instead of by means sufficiently distinguishable to be purged of the primary taint.'" Id. (quoting Yates v. State, 467 So.2d 884, 887 (Miss.1984)).
¶ 11. Fraise argues that the police violated his Fourth Amendment rights by obtaining his phone records. Although Fraise does not articulate how the police obtained his phone records, it is gleaned from the record that the Picayune police obtained Fraise's phone records from his service provider. The police then called numbers that repeatedly appeared on the phone records; one of which belonged to Hernandez. This led to the police discovering Hernandez and interviewing her.
¶ 12. Courts have determined that obtaining phone numbers from service providers is not a Fourth Amendment violation. See Figueroa v. State, 870 So.2d 897 (Fla.Dist.Ct.App. 5th Dist.2004); United States v. Gallo, 123 F.2d 229 (2d Cir.1941). In Gallo, the United States Court of Appeals for the Second Circuit stated:
When a person takes up a telephone he knows that the company will make, or may make, some kind of a record of the event, and he must be deemed to consent to whatever record the business convenience of the company requires. If by any stretch of language the making of such a record could be termed an "interception" of the communication, it is one which the sender has authorized.
Id. at 231. Applying the rules in Figueroa and Gallo that allow the police to obtain phone records from a service provider, we cannot say that Fraise's Fourth Amendment rights were violated.
¶ 13. Additionally, the State argues that the police would have inevitably discovered the identity of Hernandez and spoken with her. "[U]nder the inevitable discovery doctrine, the results from an unreasonable search will be admissible if it can be shown that this evidence would have ultimately been discovered by constitutionally permissible means." Powell v. State, 824 So.2d 661, 667(¶28) (Miss.Ct. App.2002) (citing Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984)). Given that Fraise and Hernandez were dating at the time of the robbery, the police would have inevitably discovered Hernandez and spoken to her about the robbery and Fraise's whereabouts through constitutionally permissible means. The police had already begun investigating Fraise and questioning his acquaintances. Through this permissible process, the police would have eventually discovered Fraise and Hernandez's relationship and questioned her, thus, removing the taint of the alleged illegal search.
¶ 14. Next, Fraise argues the trial court violated Mississippi Rule of Evidence 613 when it denied the defense's request to call Hernandez after Krantz testified.2 Krantz testified as a rebuttal witness about a phone conversation she had with Hernandez. This testimony occurred after Hernandez had taken the stand. Fraise argues this violated Rule 613 because Hernandez was not afforded the opportunity to explain or deny inconsistent statements made during...
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