Wells v. State , 2010–KA–00752–COA.

Citation73 So.3d 1203
Decision Date18 October 2011
Docket NumberNo. 2010–KA–00752–COA.,2010–KA–00752–COA.
CourtMississippi Court of Appeals
PartiesDarwin WELLS Jr., Appellant v. STATE of Mississippi, Appellee.

OPINION TEXT STARTS HERE

Benjamin Allen Suber, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

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

CARLTON, J., for the Court:

¶ 1. Darwin Wells Jr. was indicted for the crime of capital murder in violation of Mississippi Code Annotated section 97–3–19(2)(e) (Rev.2006). Following the denial of Wells's change-of-venue motion, a trial was held in the Jackson County Circuit Court. Wells was convicted of deliberate-design murder and sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Wells filed a motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the trial court denied. Aggrieved, Wells appeals raising the following issues as error: (1) whether he was denied the right to a fair trial when the trial court denied a change of venue and (2) whether he was irreparably and unfairly prejudiced when character evidence of other wrongs, acts, or other unrelated crimes was discussed in front of the jury. Finding no error, we affirm.

FACTS

¶ 2. On October 23, 2008, Michael and Linda Porter began traveling from Forrest County to Jackson County to watch Linda's grandson play in a football game.1 Michael and Linda traveled down Highway 49, took Interstate 10, and ended up on Highway 63. While traveling down Highway 63, Michael and Linda decided to stop at a Conoco station and ask for directions to the football stadium. Michael pulled into the Conoco station, got out of the vehicle, and began to walk toward the service station. Linda testified that she noticed three young African American men standing in front of her vehicle. Linda testified she observed that one of the men had a white towel draped over his head. Linda further testified that as Michael was returning to the vehicle, two of the men attacked him. Linda stated that the man with the white towel on his head was not involved in the struggle at that time. Linda testified that Michael finally broke free of the men, entered his car, and shut the door. Then, Linda testified she saw the man with the white towel on his head walking toward the car. Linda stated that she saw him pull out a gun and shoot Michael. Linda testified that because Michael had the car in gear, the car shot then forward down the road after he was shot. Linda testified she attempted to manage the car, eventually running the vehicle into a ditch. She then ran to a house and sought help. Ultimately, Michael died from his injuries.

¶ 3. On February 6, 2009, Wells was indicted for the crime of capital murder in violation of section 97–3–19(2)(e). On September 17, 2009, Wells filed a motion for change of venue arguing: “The matters involved in this case have been given such extensive publicity through the newspapers, broadcast media, and other forms of communication operating within this County, and in a manner so prejudicial to his interests, that a fair trial by an impartial and unbiased jury cannot be had in this County.” 2 On October 2, 2009, after a hearing on Wells's motion for change of venue, the trial court reset the hearing for October 5, 2009, with the intentions of summoning a number of jurors from the jury impaneled for trial that morning to inquire as to their opinions and their opinions as to the feelings of the community, if any, in regard to the ability of the defendant to obtain a fair trial in Jackson County. After randomly selecting ten jurors from that day's jury panel list and questioning the jurors accordingly, the trial court denied Wells's motion for change of venue.

¶ 4. The trial commenced on October 26, 2009. On the morning of trial, Wells renewed his motion for change of venue, introducing two newspaper articles from The Mississippi Press and The Sun Herald dated October 25 and 26, 2009, to support his motion. Wells also advised the court that the WLOX television station covered the story on the same dates. Again, the trial court denied the renewed motion, subject to renewal later by counsel. The trial court conducted individual voir dire on the issue of media coverage. At the conclusion of the voir dire, Wells introduced additional newspaper articles from The Mississippi Press and The Sun Herald, both dated October 27, 2009, regarding Wells's trial. Wells then renewed his continuing motion for a change of venue, which the trial court denied. At the conclusion of the trial, the jury convicted Wells of deliberate-design murder. The trial court sentenced Wells to life in the custody of the MDOC. On November 9, 2009, in response to defense counsel's ore tenus motion for an extension of time within which to file a new trial motion, the trial court granted the motion.3 On December 9, 2009, Wells filed a motion for a JNOV or new trial. After a hearing on April 9, 2010, the trial court entered an order denying Wells's post-trial motion. Wells filed his notice of appeal on May 6, 2010.

JURISDICTION

¶ 5. Before we consider Wells's claims, we must first address the issue of whether this Court possesses the authority to consider today's appeal due to the trial court's order granting an extension of time for defense counsel to file a motion for a new trial. Although the State does not raise the issue of appellate jurisdiction, we must analyze this issue to assure that this Court has jurisdiction. See Ross v. State, 16 So.3d 47, 52 (¶ 6) (Miss.Ct.App.2009). As to the issue of jurisdiction, this Court has stated:

Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs that a criminal defendant who makes a “timely motion” for a judgment of acquittal notwithstanding the verdict or a motion for new trial, under the Uniform Rules of Circuit and County Court Practice, has thirty days from the entry of the order denying such motion to file his notice of appeal. M.R.A.P. 4(e). In order for the time for notice of appeal to be tolled, the post-trial motion for a new trial must be filed within ten days of the entry of the judgment or order from which appeal is taken. Williams v. State, 4 So.3d 388, 391 (¶ 8) (Miss.Ct.App.2009); see also Rogers v. State, 829 So.2d 1287, 1288 (¶ 4) (Miss.Ct.App.2002) (under Rule 10.05 of the Uniform Rules of Circuit and County Court, a motion for a new trial must be filed within ten days of the entry of judgment). While there is no express provision in the Uniform Rules of Circuit and County Court regarding the filing of a motion for a JNOV, the Mississippi Supreme Court has found that a motion for a JNOV, as it relates to a criminal case, is untimely where filed beyond the ten-day limit for a motion for new trial and beyond the term of the court. McGraw v. State, 688 So.2d 764, 770 (Miss.1997).

Id.

¶ 6. In the present case, a review of the record shows that Wells was convicted of deliberate-design murder on October 29, 2009. The trial court filed its sentencing order on October 30, 2009. On November 9, 2009, in response to defense counsel's timely ore tenus motion for an extension of time, the trial court entered an order extending the time in which Wells must file his motion for a new trial to thirty days from November 9, 2009. On December 9, 2009, defense counsel filed a JNOV/new trial motion. After a hearing, the trial court denied the motion on April 9, 2010. Wells's notice of appeal was filed on May 6, 2010.

¶ 7. [W]e find no authority that the circuit court has any discretion to extend time limits for filing a motion for a JNOV or for a new trial. As previously stated, Rule 10.05 requires that a motion for a new trial must be made within ten days of the judgment, and in the case of a motion for JNOV, the motion must be made either within the ten days or by the end of the term of court.” Ross, 16 So.3d at 53 (¶ 7). Defense counsel filed Wells's JNOV/new trial motion on December 9, 2009, which was past the required time period but within the extended period granted by the trial court.4 Because defense counsel untimely filed a post-trial motion, the thirty-day requirement for filing his notice of appeal began on the date of imposition of sentence, October 30, 2009. See M.R.A.P. 4(e).5 Wells's notice of appeal was filed on May 6, 2010. The notice of appeal was not timely filed in accordance with Rule 4(e); however, we acknowledge that defense counsel filed his post-trial motion within the extended time granted by the trial court and filed his notice of appeal within thirty days of the trial court's denial of his post-trial motion.

¶ 8. This Court previously has provided:

[U]nder Rule 2(c) of the Mississippi Rules of Appellate Procedure, this Court may suspend the rules in the interest of expediting decision, or for other good cause shown, in cases where the defendant who is convicted, ‘through no fault of his own, is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court.’ Dorsey v. State, 986 So.2d 1080, 1084 (¶ 12) (Miss.Ct.App.2008) (citation omitted). The Mississippi Supreme Court has stated that: We may suspend Rules 2 and 4 ‘when justice demands' to allow an out-of-time appeal in criminal cases.” McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003) (citing Fair v. State, 571 So.2d 965, 966 (Miss.1990)).6

Ross, 16 So.3d at 53 (¶ 8). In light of the foregoing, jurisprudence, and defense counsel's reliance upon the trial court's order of extension, we will address Wells's assignments of error raised on appeal in the interests of justice.

DISCUSSION

I. CHANGE OF VENUE

¶ 9. Wells argues the trial court abused its discretion by not granting his requests for a change of venue. Wells contends that due to the large circulation of newspapers and television station broadcasts, a large percentage of the citizens in Jackson County were directly exposed to the prejudicial ...

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    ...running the vehicle into a ditch. She then ran to a house and sought help. Ultimately, Michael died from his injuries. Wells v. State , 73 So. 3d 1203, 1204-05 (¶2) (Miss. Ct. App. 2011) (footnote omitted). Wells was indicted for capital murder. Id. at 1205 (¶3). Following a jury trial, he ......
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