Whittington v. State, 1998-KA-01023-SCT.
| Decision Date | 07 October 1999 |
| Docket Number | No. 1998-KA-01023-SCT.,1998-KA-01023-SCT. |
| Citation | 748 So.2d 716 |
| Parties | Abdulla WHITTINGTON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Nancy Guy Armstrong, McComb, Attorney for Appellant.
Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.
BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.
STATEMENT OF THE CASE
¶ 1. This is a criminal appeal from the Circuit Court of Pike County, Mississippi. In January, 1998, Abdullah Whittington was indicted for the murder of Timothy Hodges. Whittington rejected a plea bargain for the crime of manslaughter and was subsequently tried and found guilty of murder. Whittington was sentenced to serve a life sentence in the Mississippi Department of Corrections.
¶ 2. Whittington filed a motion for a j.n.o.v., or in the alternative, a new trial, which was denied by the trial court. From this denial, Whittington timely perfected an appeal to this Court. He seeks as relief a reversal of his conviction and sentence and a remand to the circuit court for a new trial.
¶ 3. On the morning of December 2, 1997, at approximately 1:40 a.m., the police were called to the Community Park Apartments in McComb, Mississippi, to respond to a shooting. When Detective Perry Ashley ("Ashley"), the investigating officer, arrived on the scene, he saw a green Honda Accord in the parking lot. The passenger side door was open, and the victim, Timothy Hodges ("Hodges"), was lying in the street. Emergency personnel had covered Hodges with a sheet.
¶ 4. Upon examining the scene, Ashley discovered that the keys were still in the ignition of Hodges' car. Ashley located a car across the street that appeared to have a bullet hole in the windshield. This car, however, was not involved in the crime. No gun or other weapon was found at the scene or in Hodges' car.
¶ 5. Ashley photographed the crime scene and began looking for witnesses. He talked with members of Hodges' family who were on the scene but who were not present at the time of the murder. Ashley then talked to Emily Lacking ("Lacking") and, based upon that conversation, instructed the uniformed officers to go to Whittington's home and arrest him for Hodges' murder. ¶ 6. Whittington's home was only two blocks from the murder scene. When the officers arrived at the home at approximately 2:40 a.m., Whittington's mother, Mrs. Jean Whittington ("Mrs. Whittington"), answered the door. Mrs. Whittington told the officers that Whittington was washing dishes. Whittington was called to the door and arrested.
¶ 7. A cursory search was done of the home with Mrs. Whittington's permission. A thorough search was done later that morning at approximately 10:00 a.m. No gun was ever found in the home.
¶ 8. Ashley testified that no test was done on Whittington's hands to detect the presence of gunshot residue. He explained that because Whittington was washing dishes when arrested, there would be no residue left on his hands. He also explained that Whittington's clothes had not been tested for gunshot residue because the crime lab had little, if no, success finding residue on clothes.
¶ 9. Lacking testified that she heard gunshots and saw Whittington sometime around 1:30 a.m. on December 2, 1997. She testified that she saw Whittington, who was dressed in black, coming from the vicinity of the Community Park Apartments waiving a gun in the air. Lacking stated that Whittington was yelling obscenities and asking who would testify against him. Whittington then went toward his house, and his mother came to the sidewalk to meet him.
¶ 10. Stephen Brown ("Brown") testified that on the night of the murder he was waiting in his apartment for his girlfriend to arrive home so that he could leave for work. The building that Brown lived in was the building in front of which Hodges' car was parked. Brown testified that he heard a car and looked out the window. Brown saw Hodges get out of the car and walk into the building.
¶ 11. Brown stated that a few minutes later he saw Whittington walk up behind Hodges. Hodges apparently tried to shake off Whittington. He then saw Whittington pull a gun, shoot Hodges, and kick him in the face. Whittington then walked up the hill, waiving his gun and yelling obscenities about who would testify against him. Brown testified that he had no doubt in his mind that Whittington was the man who killed Hodges.
¶ 12. Jacque White ("White") was in the car with Hodges when he arrived at the Community Park Apartments. White saw Whittington approach Hodges and then shoot him. White testified that he was approximately six feet from Hodges when he was shot. Later the same morning, White was asked to view a photo lineup and see if he could identify one of the subjects as the one who killed Hodges. After viewing the photographs, White was unable to positively identify Whittington. However, later that day, White was able to identify Whittington from a physical line-up.
¶ 13. Dr. Stephen Hayne testified that Hodges had two gunshot wounds. The first wound was a nonlethal wound in his arm. He testified that there was gunshot residue in the wound indicating that the muzzle of the gun was touching Hodges' skin when the shot was fired. The lethal gunshot was one that entered Hodges' mouth and injured his brain.
¶ 14. Whittington offered only two witnesses on his behalf: his mother, Jean Whittington, and his best friend, Roger Johnson. Johnson testified that he was with Whittington the night of the murder until 12:30 or 1:00 a.m. On cross-examination, it was brought out that Johnson had earlier told the prosecution that he dropped Whittington off at his home at 12:30 a.m.
¶ 15. Mrs. Whittington testified that her son arrived home between 1:00 and 1:30 a.m. On cross-examination by the State, Mrs. Whittington denied telling the officer who arrested Whittington that her son had been home less than one hour when the police arrived at her home at 2:40. Mrs. Whittington further testified that her son had finished washing the dishes when the police arrived.
¶ 16. The state called one rebuttal witness, Officer David Elson ("Elson"). Elson testified that when he arrived at the Whittington home at 2:40 a.m., Mrs. Whittington told him that her son had been home less than one hour. Elson also testified, in direct contravention to Mrs. Whittington's testimony, that Whittington was still washing dishes when they arrived.
¶ 17. The jury found Whittington guilty of murder. The judge then sentenced him to life in prison.
¶ 18. Whittington maintains that he was prejudiced by the trial court when it allowed Ashley to remain in the courtroom throughout the trial and also testify in the cause. He maintains that this was a violation of M.R.E. 615.
¶ 19. It is well settled in Mississippi jurisprudence that when a violation of Rule 615 is alleged on appeal, this Court is limited to an abuse of discretion standard of review. Douglas v. State, 525 So.2d 1312, 1318 (Miss.1988). Reversal is not justified unless there is a showing of prejudice sufficient to constitute abuse of discretion on the part of the trial judge in not ordering a mistrial or not excluding testimony. Id.
¶ 20. Rule 615 of the Mississippi Rules of Evidence states:
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.
¶ 21. At the beginning of the trial, the State asked that Ashley be allowed to remain in the courtroom during the testimony of the other witnesses. The State maintained that because Ashley was the case agent, he should be allowed to sit in the courtroom and assist the State in its presentation of the case. The trial judge ruled that Ashley qualified as a representative of the State under the Rule. Given the language of subpart (2) of Rule 615, the trial court did not abuse its discretion in allowing Ashley to remain in the courtroom.
¶ 22. Whittington has raised no specific ways in which he was prejudiced by Ashley being allowed to remain in the courtroom. He has made the blanket assertion that "... Ashley's presence in the courtroom while others testified was not essential to the presentation of the state's case and the court erred in allowing [him] to be [present] while others testified and then to testify himself." Whittington is in error when he asserts that Ashley was present while others testified and then later testified himself. Ashley was the first witness called in the case. He testified before any other witness was called. Because Rule 615 had been invoked regarding all other witnesses, no other witness was in the courtroom at the time Ashley testified.
¶ 23. There was no prejudice to Whittington in allowing Ashley to remain in the courtroom. The comment to Rule 615 states that "[t]he excluding...
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