Watts v. State

• Citation: 717 So.2d 314
• Decision Date: 23 July 1998
• Docket Number: No. 95-KA-00983-SCT,95-KA-00983-SCT
• Parties: Milton E. WATTS a/k/a Milton Eiff Watts a/k/a Milton Smith v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 314

717 So.2d 314

Milton E. WATTS a/k/a Milton Eiff Watts a/k/a Milton Smith v. STATE of Mississippi.

No. 95-KA-00983-SCT.

Supreme Court of Mississippi.

July 23, 1998.

Kay S. Beene, Vicksburg, for Appellant.

Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Atty. Gen., Jackson, for Appellee.

Before PRATHER, C.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

¶1 Milton Watts was indicted by the Issaquena County Grand Jury for the crime of murder in violation of Miss.Code Ann. § 97-3-19 and for the crime of armed robbery in violation of Miss.Code Ann. § 97-3-79. On April 3, 1995, Watts was tried by jury in the Issaquena County Circuit Court, and a verdict was rendered finding Watts guilty of depraved heart murder and armed robbery. The trial court imposed a sentence of life imprisonment for the crime of murder, and at a later sentencing hearing, the trial court imposed a thirty-five year sentence for armed robbery, to run consecutive to the life imprisonment sentence. Aggrieved, Watts, now appeals to this Court and raises the following issues:

I. WHETHER WATTS' CONVICTION SHOULD BE REVERSED AND REMANDED DUE TO THE ABSENCE OF A FULL, ACCURATE AND COMPLETE TRANSCRIPT OF THE TRIAL PROCEEDINGS IN THIS CAUSE.

II. WHETHER THE TRIAL COURT ERRED BY ALLOWING THE STATE TO PROCEED ON THE INDICTMENT CHARGING WATTS WITH SIMPLE MURDER AND ARMED ROBBERY BASED ON THE SAME SET OF FACTS.

III. WHETHER THE TRIAL COURT ERRED BY DENYING WATTS' MOTION FOR DIRECTED VERDICT BASED ON THE WEATHERSBY RULE.

IV. WHETHER THE TRIAL COURT ERRED BY DENYING WATTS' MOTION IN LIMINE TO EXCLUDE TESTIMONY ABOUT WATTS' PURCHASE OF CRACK COCAINE.

FACTS

¶2 During the late evening hours on July 23, 1994, W.P. "Jake" Shivers was murdered in the bathroom of his trailer at Mims Mitchell Hunting Club in Issaquena County. Milton Watts was employed by Shivers to help him with odd jobs since Shivers was partially handicapped after an accident with a hay bailer. According to Watts, on July 23, 1994, Watts accompanied Shivers to the hunting camp to do some work at Shiver's trailer. After arriving at the hunting camp, Shivers and Watts decided to go fishing and fished ¶3 The Yazoo County Sheriff's Department recovered Shivers' stolen truck two days prior to Watts' turning himself in and confessing. On July 27, 1994, Watts went to the Yazoo County Sheriff's Department and asked to speak to the sheriff. After being read his rights, Watts gave a voluntary statement concerning the shooting of Shivers in Issaquena County, but Watts claimed that it was an accident and that he did not intend to kill Shivers. Watts was then arrested by the Yazoo County Sheriff's Department for Shivers' murder.

until dark. Watts and Shivers returned to the trailer after fishing where they cleaned and cooked the fish for supper. After supper, Shivers asked Watts to go downstairs and bring him his gun so that Shivers could clean it. Watts then went downstairs, smoked a cigarette, retrieved the gun, and took it back upstairs. When Watts returned to the trailer, he called Shivers name aloud but received no response. Watts then walked down the hallway towards the bedroom calling Shivers' name, and when he reached the bathroom, a jug came up and hit the gun. Watts reaction was that he pulled the trigger of the gun he was carrying and shot Shivers a total of ten times with the .22 caliber rifle. After shooting Shivers, Watts cut the phone lines in the trailer, took Shivers' wallet and truck keys and the gun, left the trailer, and went to Yazoo City in Shivers' truck. Watts threw Shivers' wallet out about four miles from the trailer after removing the money in it and disposed of the gun alongside Highway 3 about four or five miles north of Yazoo City. Watts stayed in Yazoo City at an abandoned house until he turned himself in at the Yazoo County Sheriff's Department.

DISCUSSION OF THE LAW

I. WHETHER WATTS' CONVICTION SHOULD BE REVERSED AND REMANDED DUE TO THE ABSENCE OF A FULL, ACCURATE AND COMPLETE TRANSCRIPT OF THE TRIAL PROCEEDINGS IN THIS CAUSE.

¶4 Watts asserts that his conviction and sentence should be reversed due to the absence of a full, accurate and complete transcript of the trial proceedings below, and therefore, he has been deprived of his right to meaningful appellate review. The State, however, contends that Watts is not prejudiced by the missing parts of the record and that a mistrial is not necessitated where this Court can fully review all of the alleged errors assigned by Watts with the record that exists not before the Court.

¶5 Ruth Bell-Green was the official court reporter responsible for preparing the record of the trial in this cause. However, because of a physical disability, Bell-Green retired and was unable to complete the record in this cause. Another reporter, LaLisa Ledlow Linemann, was assigned to complete the record for appeal but was unable to decipher Bell-Green's shorthand notes and was forced to rely on cassette tapes to complete the record. However, the cassette tapes were incomplete, and therefore, portions of the trial were unable to be transcribed. The portions that are missing from the record include voir dire, a portion of Watts' cross-examination and re-direct examination, and closing arguments of counsel. The trial judge completed a bill of exceptions summarizing the missing portions of Watts' cross-examination and re-direct examination. Watts made no objections to the bill of exceptions.

¶6 While this Court has never addressed this issue before, the Mississippi Rules of Appellate Procedure and caselaw from other jurisdictions provide guidance. Rule 11(c) of the Mississippi Rules of Appellate Procedure requires that when a defendant timely and properly perfects an appeal, it is the duty of the court reporter to prepare and file a transcript and to certify the transcript as an accurate account of the proceedings. M.R.A.P. 11(c). In addition, Rule 10(c) provides for the procedure to supplement the record when portions of the trial proceedings are missing as follows:

If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete M.R.A.P. 10(c) (emphasis added). In the instant case, Watts failed to comply with Rule 10(c) and prepare a statement of the missing portion of the proceedings to complete the record. This Court has held on numerous occasions that " 'it is the duty of the appellant to see that the record of the trial proceedings wherein error is claim[ed] is brought before this Court.' " Jackson v. State, 684 So.2d 1213, 1226 (Miss.1996) (quoting Smith v. State, 572 So.2d 847, 849 (Miss.1990)); see also Burney v. State, 515 So.2d 1154, 1160 (Miss.1987); Robinson v. State, 345 So.2d 1044, 1045 (Miss.1977). However, Watts does not claim any error from the proceedings, i.e., voir dire, closing arguments, and portions of the testimony of the defendant, which are missing from the record, and therefore, we find that Watts is not prejudiced by the unfortunate missing portions of the record and, thus, reversal is not required.

                account of what transpired with respect to those issues that are the bases of appeal.   The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal.  Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal.  If the appellee objects to the statement as filed, the appellee shall file objections with the clerk of the trial court within 14 days after service of the notice of the filing of the statement.  Any differences regarding the statement shall be settled as set forth in subdivision (e) of this Rule
                

¶7 Watts, however, contends that the mere fact that portions of the trial are missing makes a truly accurate and meaningful review impossible and that the fact that gaps exist at all entitles him to a new trial despite the lack of an ability to show specific prejudice from the missing portions. In support of his argument, Watts cites to United States v. Carrillo in which the Ninth Circuit Court of Appeals held that "[a] criminal defendant has a right to a record on appeal which includes a complete transcript of the proceedings at trial." United States v. Carrillo, 902 F.2d 1405, 1409 (9th Cir.1990) (citing Hardy v. United States, 375 U.S. 277, 279-82, 84 S.Ct. 424, 11 L.Ed.2d 331 (1964)). However, the Ninth Circuit, in Carrillo, further stated that "while court reporters are required by the Court Reporters Act, 28 U.S.C. § 753(b)(1) (1982), to record verbatim all proceedings in open court, their failure to do so does not require a per se rule of reversal.... Rather, some prejudice to the defendant must occur before reversal will be contemplated." Carrillo, 902 F.2d at 1409 (citing United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir.1986)). The Ninth Circuit declined to find reversible error as a result of the incomplete record and affirmed Carrillo's conviction absent a showing that he was prejudiced by the missing portion of the record. Id. at 1412. Watts additionally cites to Commonwealth v. Goldsmith in which the Pennsylvania Supreme Court reversed and remanded for a new trial the conviction of Goldsmith because "meaningful appellate review is impossible absent a full transcript or an equivalent picture of the trial proceedings." Commonwealth v. Goldsmith, 452 Pa. 22, 304 A.2d 478, 480 (1973). However, in the case sub judice, we find that Watts has been afforded an "equivalent picture" of the trial proceedings, for the trial court filed a bill of exceptions summarizing the only...