Isom v. State, No. 2005-KA-00434-SCT.
| Decision Date | 11 May 2006 |
| Docket Number | No. 2005-KA-00434-SCT. |
| Citation | 928 So.2d 840 |
| Parties | Jeremy Wendell ISOM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Ralph Stewart Guernsey, Oxford, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
EN BANC.
EASLEY, Justice, for the Court.
STATEMENT OF THE CASE
¶ 1. Jeremy Wendell Isom (Isom) was indicted in the Circuit Court of Lafayette County, Mississippi for burglary of a dwelling. Following a jury trial, Isom was convicted of burglary of a dwelling house and sentenced to serve a term of twenty-five years in the custody of the Mississippi Department of Corrections with five years suspended and twenty years to serve. The trial court denied Isom's post-trial motion for J.N.O.V., or in the alternative, new trial. Isom now appeals to this Court.
FACTS
¶ 2. On December 26, 2003, Pam Thompson (Pam) awoke between 11:00 p.m. to 12:00 a.m. Pam shared the apartment with her brother, Terrel Thompson, in Oxford, Mississippi. As she entered the hallway, Pam saw two men, one white and one black, walking toward her brother's room. Terrel was not at home at the time of the intrusion. When Pam screamed, the two men ran out of the apartment.
¶ 3. Pam only recognized the white man. She knew him because he had been to the apartment before to get some class notes from Terrel. The police later arrested the white man, John Patterson (Patterson). Patterson admitted that he and Jeremy Isom were involved in the burglary. He later agreed to testify against Isom. Patterson testified that he and Isom decided to break into Terrel's apartment, that Terrel was a drug dealer, that they called Terrel on his cellphone, and Terrel told them that he was out of town for the holidays. Once Patterson and Isom learned Terrel was out of town, they decided to break into Terrel's apartment at Oak View Apartments. Isom kicked in the door, and both men entered the apartment. When Patterson saw Pam, he told Isom that there was someone else in the apartment. Both men fled the apartment. Patterson ran out first with Isom following behind him. Patterson stated they were breaking into the apartment to steal his drug dealer's drugs and money. Isom and Patterson ran to Maplewood Apartments, where a friend of Patterson's lived. The police questioned Patterson later that night. He confessed to his involvement in the burglary and testified against Isom at trial.
¶ 4. Jenny Szerkins (Szerkins) was at Patterson's friend's apartment on December 26, 2003. Szerkins testified that Isom and Patterson arrived at the apartment sweaty. When Isom learned the police were on their way to the apartment, he pulled out a gun and said that he could not be caught with the gun.
¶ 5. Martha Everitt (Martha) testified that on December 26, 2003, she and her daughter, Jessica Everitt (Jessica), were inside her home located on 2118 Harris Drive in Oxford, Mississippi. Jessica saw flashing lights outside the house. Martha opened her front door and a police officer told her to stay inside the house and lock the door. Jessica told Martha that a man was in their backyard. Martha reported to the police that somebody was in the backyard. Jessica saw the man jump over the fence. Martha then went to the kitchen and she and Jessica saw a black male jump back over the fence, lose his footing, slide and run to one of the fence gates. Martha had motion-sensor lights in her yard.
¶ 6. The next morning while walking in her backyard, Martha discovered a gun. Martha put the gun in a plastic bag and called the police. At trial, Martha identified Isom as the man in her yard on December 26, 2003. On cross-examination, Martha stated that when the defendant slipped in the yard, he looked straight at her. Later, Martha stated that her spotlight shone on him and he was wearing a "toboggan" on his head.
¶ 7. Jessica also testified at trial and identified Isom as the man in her backyard. Jessica noticed that the motion-sensor spotlights came on at her home. She saw a man running through the yard. When Jessica went to the back of her house, the spotlight was shining on a black male crouched in front of the fence. She had a good look at him and saw his face. He jumped over the fence. The next day, Jessica saw Isom again by the side of her house. She notified the police that she saw Isom in the yard the next day. The police contacted Jessica and Martha about a photographic line-up. Jessica viewed the photo line-up at the police station and identified Isom from the photographs. Isom was convicted by a jury of burglary of a dwelling house.
¶ 8. Isom asserts that the trial court erred by allowing the admission of Jessica and Martha Everitts's testimony and that the trial court failed to apply the procedures for a discovery violation by failing to either grant a continuance or exclude the testimony as outlined in the Uniform Circuit and County Court Rule 9.04(A) and (I) and in Box v. State, 437 So.2d 19 (Miss. 1983). He also argues that the prosecution's violation of the discovery rule and the trial court's denial of a continuance resulted in substantial prejudice and a miscarriage of justice. The State contends that the trial court did not abuse its discretion by admitting testimony and exhibits into evidence and by denying Isom's request for a continuance. The State also asserts that Isom failed to pass the two factor test in Brawner v. State, 872 So.2d 1, 13 (Miss.2004), and failed to demonstrate that manifest injustice resulted from the denial of the continuance.
¶ 9. Originally, trial was set for December 6, 2004. A jury was empaneled on that day. However, the trial court granted a continuance and reset the trial for January 20, 2005. During the time of the continuance, the State sought to introduce two new witnesses, Jessica and Martha Everitt. Jessica and Martha viewed an out-of-court photographic line-up on January 4, 2005, and were to provide eyewitness testimony concerning Isom's whereabouts on the night of the burglary. Isom filed a motion in limine on the date of trial, to exclude new evidence. In the alternative, he requested that the trial be continued in order to give defense counsel the opportunity to ask the witnesses questions and prepare a proper defense.
¶ 10. Defense counsel asserted in the written motion in limine and at the hearing on the motion that the district attorney's office contacted Isom's defense counsel by telephone on January 14, 2005. The assistant district attorney informed defense counsel that there were two new witnesses, Jessica and Martha, and relayed the substance of their potential testimony. The prosecution delivered the names, address, and telephone number of Jessica and Martha, synopsis statements of Jessica and Martha, an amended witness list, and a supplement to witness statements to the office of Isom's counsel on January 17, 2005. Defense counsel was not aware that this information was dropped by his office until January 18. Also on January 18, the assistant district attorney produced 17 digital photographs, 12 color photographs, and two aerial maps. On "Wednesday, January 18"1, the assistant district attorney gave defense counsel other documents and a copy of the photographic line-up viewed by Jessica on January 4, 2005, from which she identified Isom. The telephone number provided by the prosecution for Jessica and Martha was disconnected; therefore, Isom's counsel received a new contact number for the witnesses the day before trial. Isom had a two day trial in which Martha testified on January 20 and Jessica testified on January 21, 2005.
¶ 11. The State believed that Jessica and Martha's testimony would link a gun to Isom. The witnesses saw Isom in their yard on the night of the burglary, and Martha found a gun in their yard the next day. The trial court took the motion under advisement. Prior to Martha's testimony, Isom renewed his motion in limine to exclude the testimony or continue the case. The trial court denied the motion and gave defense counsel fifteen minutes to speak to the witnesses.
¶ 12. Uniform Circuit and County Court Rule 9.04(A) provides that the prosecution must disclose the names and addresses of all witnesses in chief to the defendant or his/her attorney. This Court in Payton v. State, 897 So.2d 921, 941 (Miss.2003) set out the procedures for alleged discovery violations as follows:
In Box, and its progeny, this Court set out the procedure for trial courts to follow when a discovery violation has occurred. This precedent has been codified in URCCC 9.04(I), which reads, in pertinent part, as follows:
If during the course of trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense as required by these rules, and the defense objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for such a discovery violation if the prosecution withdraws its efforts to introduce such evidence. The court shall follow the same procedure for violation of discovery by the defense.
URCCC 9.04 (emphasis added).
¶ 13. In this case, defense counsel claimed that he needed time to interview the witnesses and prepare a defense. The trial court overruled the Box objection by defense counsel. However, the trial court did allow defense counsel fifteen minutes to interview...
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