Lathan v. State

• Decision Date: 07 October 2014
• Docket Number: No. 2012–KA–01502–COA.,2012–KA–01502–COA.
• Citation: 164 So.3d 484
• Court: Mississippi Court of Appeals
• Parties: Corey LATHAN a/k/a Corey Jamar Lathan, Appellant v. STATE of Mississippi, Appellee.

164 So.3d 484

Corey LATHAN a/k/a Corey Jamar Lathan, Appellant

v.STATE of Mississippi, Appellee.

No. 2012–KA–01502–COA.

Court of Appeals of Mississippi.

Oct. 7, 2014.

Rehearing Denied Feb. 17, 2015.

Certiorari Denied May 21, 2015.

Jacob Thomas Evans Stutzman, Jackson, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

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

Opinion

CARLTON, J., for the Court:

¶ 1.A Lowndes County jury found Corey Lathan guilty of armed robbery and burglary of a dwelling.Lathan now appeals and raises the following issues: (1) whether the prosecutor made improper comments to the jury during the State's closing argument; and (2) whether the circuit court erred by refusing Lathan's requested jury instruction on accomplice testimony.Finding no error, we affirm.

FACTS

¶ 2.Around 10 p.m. on September 29, 2011, Karen Winter was watching the news when she heard a knock on her apartment door.Winter testified that she looked through her blinds and saw a black male standing outside the door.When Winter asked who was at the door, she thought the man responded that he was her upstairs neighbor.When Winter unlocked the door, the black male forced his way into her apartment and pointed a gun at her.Although the intruder wore a hoodie and had a bandana over his face, Winter testified that the man had dreadlocks that were about shoulder-length or longer.

¶ 3.Although Winter was unsure of the exact number, she testified that several other black males stood behind the gunman.The intruders ordered Winter to lie on the floor, and they covered her head with a blanket and held a gun to the back of her neck.The intruders stole about eighty dollars from Winter's purse, a large jar of change, a flat-screen television, two laptop computers, a cell phone, two cordless home phones, a purse, some medication, and Winter's keys.

¶ 4.Following the robbery, Winter asked a neighbor to phone the police, who arrived several minutes later.After speaking with Winter, the officers issued an alert about the robbery and the suspects.Officer David Criddle testified that he was nearby in a patrol car when he heard the alert.A little later Officer Criddle passed a dark-colored vehicle parked at an apartment complex several blocks away from the crime scene.Because the vehicle's interior light was on, Officer Criddle could see all the vehicle's occupants watching him.As soon as Officer Criddle passed the vehicle, it sped away.Officer Criddle then followed the vehicle and pulled it over after observing a traffic violation.

¶ 5.Officer Criddle testified that six black males sat inside the vehicle.The police later identified these men as Lathan, Bobby Bluitt Jr., Demonta Gardner, Michael Satterfield, Jeremy Billups, and Tevin Oglen.Additional trial testimony revealed that, of the six men inside the vehicle, only Lathan possessed dreadlocks that were shoulder-length or longer.¹

¶ 6.While waiting for other officers to arrive and assist him, Officer Criddle asked Bluitt to exit the vehicle and provide identification.Officer Criddle also asked a passenger sitting in the vehicle's back seat to exit, and when the man did so, Officer Criddle observed a black pistol on the vehicle floorboard.Officer Criddle testified that he also asked Lathan, who was sweating and acting nervous, to remove the hoodie he was wearing.

¶ 7.After the additional police officers arrived to assist Officer Criddle, the men inside the vehicle were asked to exit one at a time.As Lathan exited the vehicle, an officer observed a second gun, a .22–caliber revolver, lying on the seat Lathan had just vacated.The officers checked the guns found inside the vehicle and discovered that both were loaded.In addition to the two guns, Officer Criddle testified that he observed a Toshiba laptop inside the vehicle, which the police confirmed was one of Winter's stolen laptops.

¶ 8.During Lathan's trial, Bluitt, Oglen, and Satterfield each testified about the armed robbery and the burglary and the extent of their involvement in the crimes.Oglen and Satterfield both testified that Lathan actively participated in the crimes and that he was one of the men who possessed a gun during the commission of the crimes.Oglen and Satterfield also confirmed that, at the time of the armed robbery and the burglary, Lathan wore his hair in long dreadlocks that reached almost to his chest.All three men further testified that Lathan was with them both prior to and during the commission of the crimes and that he did not leave their company at any point before the police arrested them.

¶ 9.Testifying on his own behalf, Lathan stated that he was at home with his mother and half-sister when the armed robbery and burglary took place.According to Lathan's testimony, he awoke from a nap a little after 10 p.m. and fixed some food.After eating his meal, he walked outside to smoke a cigarette.Lathan testified that Bluitt and the others drove up while he was outside smoking and that he climbed into the vehicle because he wanted to visit a girl.Lathan further testified that he had possessed no knowledge of the crimes committed earlier that night by the other men when he joined them in the vehicle.He also claimed that he saw no gun in his seat when he entered the vehicle.

¶ 10.In addition to Lathan's testimony, his mother, Cheryl, testified that her son was at home with her and her daughter when the crimes occurred.Although she could not remember an exact time, Cheryl stated that Lathan went outside to smoke his cigarette after the news ended at 10:30 p.m. Cheryl also testified that Lathan had been gone only a few minutes when she learned that the police arrested him and the other men.

¶ 11.After considering all the evidence and testimony, a jury found Lathan guilty of both counts charged in his indictment.For Count I, armed robbery, the circuit court judge sentenced Lathan to thirty years in the custody of the Mississippi Department of Corrections(MDOC).For Count II, burglary of a dwelling, the circuit court judge sentenced Lathan to fifteen years in the custody of MDOC, with five years suspended and ten years to serve.The circuit court judge also ordered the sentence in Count II to run consecutively to the sentence in Count I.¶ 12.Following his conviction, Lathan filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied.Aggrieved by his conviction and the circuit court's ruling, Lathan now appeals to this Court.

DISCUSSION

I.Whether the prosecutor made improper comments to the jury during the State's closing argument.

¶ 13.In his first assignment of error, Lathan argues that improper comments made by the State during its closing argument require reversal of his conviction.In addressing this argument, we acknowledge that “the test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the ... improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.”Dunaway v. State,551 So.2d 162, 163(Miss.1989)(citingCraft v. State,226 Miss. 426, 84 So.2d 531(1956) ).

¶ 14.Lathan claims that reversible error occurred when the State improperly commented on his failure to call his sister as a witness and when the State invited the jury to hold him accountable for a crime not charged in his indictment.Alternatively, Lathan argues that his attorney provided ineffective assistance of counsel by failing to object to these comments at trial.We address each of Lathan's claims regarding improper comments, as well as his alternative argument regarding ineffective assistance of counsel, separately.

a. Lathan's failure to call his sister as a witness.

¶ 15.Lathan first asserts that the State made an improper comment during its closing argument about his failure to call his sister, Vanity, as a witness.As reflected in the record, the defense failed to object when the State made this comment during closing arguments.Therefore, Lathan is procedurally barred from raising this issue on appeal.SeeRuffin v. State,724 So.2d 942, 947 (¶ 21)(Miss.Ct.App.1998).Notwithstanding the procedural bar, however, we find that the comment at issue fails to amount to error.Our review of the record shows that the State merely commented on the credibility of the trial testimony provided by Lathan's mother, Cheryl, who corroborated Lathan's alibi and testified that Lathan's family communicated his alibi to police officers.

¶ 16.Mississippi caselaw recognizes that, “[g]enerally, it is improper to comment on the failure of either party to call a witness equally accessible to both parties.”Id. at (¶ 22)(citingRoss v. State,603 So.2d 857, 864(Miss.1992) ).“However, when a defendant fails to call a witness more available to him and in a closer relationship to him, the prosecution is allowed to comment on the defendant's failure to call the witness.”Id.Moreover, attorneys are allowed to comment on the evidence and testimony presented at trial.SeeSheppard v. State,777 So.2d 659, 661 (¶ 7)(Miss.2000).

¶ 17.Lathan testified that he was at home with his mother and sister when the armed robbery and burglary occurred.Lathan's mother, Cheryl, also testified that Lathan was at home with her and her daughter, Vanity, until at least 10:30 p.m. Cheryl initially testified that she called the police and told them Lathan was at home on the night in question.However, Cheryl later admitted during cross-examination that she never actually made such a phone call.She instead testified that her daughter, Vanity, made the phone call to the police to report Lathan's alibi.When asked during cross-examination whether Vanity was present at Lathan's trial to testify and to corroborate these facts, Cheryl replied that Vanity had moved to Tennessee because of her job.

¶ 18.During closing arguments, the State...