Townsend v. State, No. 2005-KA-01854-SCT.

• Decision Date: 12 October 2006
• Docket Number: No. 2005-KA-01854-SCT.
• Citation: 939 So.2d 796
• Parties: Michael TOWNSEND v. STATE of Mississippi.
• Court: Mississippi Supreme Court

939 So.2d 796

Michael TOWNSEND v. STATE of Mississippi.

No. 2005-KA-01854-SCT.

Supreme Court of Mississippi.

October 12, 2006.

Pamela A. Ferrington, Natchez, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before WALLER, P.J., EASLEY and CARLSON, JJ.

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Michael Townsend was indicted by a grand jury in Claiborne County, Mississippi, on Count I aggravated assault of Antonio Hill, Count II aggravated assault of Shirley Darden, and Count III possession of a firearm by a convicted felon. Townsend waived his arraignment and entered a plea of not guilty. Townsend was tried before a jury in Claiborne County, Mississippi. The jury convicted Townsend on Count I of the indictment, aggravated assault of Hill, and Count III of the indictment, possession of a firearm by a convicted felon. Townsend was found not guilty on Count II of the indictment, aggravated assault of Darden. Sammie Good, Claiborne County Circuit Clerk, testified that Townsend had a prior conviction for sexual battery in May 9, 1996. Good identified a copy of Townsend's sentencing order which provided that Townsend pled guilty to sexual battery and was sentenced to serve five years in the custody of the Mississippi Department of Corrections.

¶ 2. The trial court sentenced Townsend to serve a term of sixteen years in the custody of the Mississippi Department of Corrections on the aggravated assault count and a term of three years on the possession of a firearm by a convicted felon count with the sentences to run concurrently.

¶ 3. Townsend filed a motion for J.N.O.V., or alternatively, a new trial which was denied by the trial court. Townsend's trial counsel filed a notice of appeal and the necessary documents to perfect the appeal. Subsequently, Townsend filed a motion to proceed in forma pauperis and proceed pro se on appeal. Townsend filed a separate notice of appeal, designation of record, and affidavit of indigency. Townsend's trial counsel was allowed by the trial court to withdraw from Townsend's representation on appeal. The trial court then appointed Townsend new counsel to represent Townsend on the appeal. Townsend now appeals his conviction and sentence to this Court.

FACTS

¶ 4. On August 9, 2004, Officer Rachel Martin, dispatcher for the Claiborne County Sheriff's Department, received a 911 call around 10:44 p.m. The 911 call originated from 1003 Johnson Lane in Port Gibson, Mississippi. No one spoke to Officer Martin during the 911 call, but she heard voices in the background. Officer Martin sent officers to respond to the 911 call. The 911 call was played for the jury.

¶ 5. As Officer Martin testified, the tape of the 911 call reveals that no one spoke to Officer Martin during the 911 call. However, an argument can be heard on the tape. Due to the poor sound quality on the recording, only fragments of an argument in the background can be heard. The following can be heard on the tape: (1) "I'm tired of this," (2) "Tell him you don't love him," (3) "Who called," and (4) "Put the gun down."

¶ 6. Antonio Hill and Shirley Darden lived together at 1003 Johnson Lane. Hill and Darden had a ten-year-old-boy together that also lived at that address, as well as, a five-year-old girl that Darden had from another relationship. Hill testified that he originally thought the girl was also his child, but he later discovered that the girl was not his daughter. Hill testified that he continued to raise the girl as his own daughter.

¶ 7. According to Hill's testimony, on August 9, 2004, Townsend came to the trailer where Darden and Hill lived together. Darden had just arrived home and was taking a bath when Townsend arrived. Hill and the two children were also at home. Townsend entered the bathroom where Darden was bathing. The two then argued, and Townsend was demanding some answers. Hill requested Townsend leave the bathroom, but Townsend refused. Townsend wanted Darden to tell Hill that she did not love him and that she was going to be with Townsend.

¶ 8. Hill testified that he dialed 911 to get Townsend out of the house when he refused to leave the bathroom. Hill testified that he did not speak to anyone on the telephone because Townsend pointed a revolver at him. Townsend pulled the trigger, but the gun misfired. Hill testified that he retrieved his gun from the top of his closet. Townsend left the bedroom and went into the living room. Hill exited the bedroom. Townsend and Hill then exchanged gun fire inside the trailer.

¶ 9. In her statement given at the hospital to the investigators, Darden stated that Townsend had come into the bathroom where she was bathing. Hill was present, and Townsend refused to leave. She stated that Townsend started the gun fire, and she was shot during the gun fire exchange between Townsend and Hill. However at trial, Darden changed her account of the events. At trial, Darden testified that she and Townsend were "friends," but she did not want Hill to know that they were "friends friends." She testified that when she arrived home that night Townsend was waiting for her. Townsend then came inside. Darden testified that she was sitting on the bed when Townsend and Hill came into the room. Darden testified that she started laughing when Hill asked what was going on. She testified that she did not want to discuss her friendship with Townsend in front of Hill.

¶ 10. Deputy Sheriff Erika Nash, along with two other deputies, responded to the 911 disturbance call. When Deputy Nash arrived at the address, she heard gunshots. Deputy Nash observed Darden run out of the trailer. Darden told Deputy Nash that she had been shot. Then, Deputy Nash observed Hill come out of the trailer. Hill was holding a .380 automatic pistol. He placed the gun on the ground. Finally, Townsend also came out of the trailer. Townsend had been shot and was bleeding. Townsend did not exit the trailer with a gun, but a .38 Smith and Wesson pistol was recovered just inside the trailer door. Deputy Nash did not know who owned the .38 Smith and Wesson pistol or who placed it in the doorway. Deputy Nash testified that she did not realize that Hill had also been shot until he was placed in the patrol car.

¶ 11. Sheila McAlpin, Darden's sister, gave a statement to the officers that Townsend had been to her house that night looking for Darden. Townsend was angry and had a pistol in his front left pocket of his pants. According to McAlpin, Townsend asked her, "had I seen my bitch ass sister, which he was referring to Shirley Darden." In her statement, McAlpin told the investigators that Townsend told her that he "was going to set [sic] out in town and wait on Shirley Darden and follow her home." He then said, "he was tired of people cheating on him, and one of these bitches is going to die tonight." Townsend told McAlpin that he meant either Hill or Darden was going to die.

¶ 12. At trial, McAlpin recanted her statement and testified that she did not see Townsend that day. McAlpin testified that she made up the story because she was afraid of Hill. However, she testified that she never reported any alleged threats by Hill to law enforcement.

¶ 13. Connie Scott, McAlpin's next door neighbor, testified that on August 9, 2004, he saw Townsend at McAlpin's trailer. Scott identified Townsend for the record as the person he saw that night. Scott testified that he saw Townsend and McAlpin talking. Scott testified that he remembered the day he saw Townsend talking to McAlpin because it was the same day as the shooting. Scott stated that it was the same night that he went to the trailer to watch the children when Darden was carried to the hospital.

¶ 14. In her statement given to the investigators, Darden stated that Townsend fired a handgun first. After Townsend fired his gun in the trailer, Hill retrieved his gun to defend himself. At trial, Darden recanted her statement claiming that she was afraid of Hill when she made the statement. Darden's testimony at trial contradicted her prior statement to the investigators. She testified that Hill shot Townsend. Despite the fact that Hill was also shot, Darden testified at trial that Townsend did not shoot Hill.

¶ 15. Townsend testified that on the night of the shooting it was Hill that wanted the three of them, Townsend, Darden, and Hill, to sit down and discuss Darden's relationship with Townsend. Townsend testified that the three of them sat in the living room to talk. Townsend testified that Hill left the room and then came back into the room and began shooting. Townsend testified that he neither shot nor fired any weapon at Hill, and he never had a gun that night.

¶ 16. Hill testified that he was no longer involved in a relationship with Darden. Hill testified at trial that to his knowledge, Darden was still involved in a relationship with Townsend, and Darden currently lived with Townsend. Townsend testified that Darden never moved in with him. Townsend testified that he and Darden are friends and talk on the telephone. Townsend testified that he knew Darden approximately six months to a year before he ever met Hill. Townsend testified that at the time he and Darden became friends and started calling each other, he was married.

DISCUSSION

I. Motion to Dismiss the Indictment

¶ 17. Both Hill and Townsend were arrested and charged with aggravated assault. On appeal, Townsend alleges that Hill was no-billed by the grand jury. Townsend further alleges on appeal that Hill's brother-in-law, Larry Clark, was a member of the grand jury panel.

¶ 18. There is no document in the record that shows that Hill was ever no-billed by the grand jury. Likewise, when questioned on cross-examination by the defense, Hill was not asked if the grand jury issued a no-bill as to him. Further, the record does not contain a list of the grand jury members that indicted Townsend. The record only contains Townsend's indictment, "A...