Wilson v. State, 1999-KA-02037-COA.

• Decision Date: 27 February 2001
• Docket Number: No. 1999-KA-02037-COA.,1999-KA-02037-COA.
• Citation: 797 So.2d 277
• Parties: Jessie WILSON, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

797 So.2d 277

Jessie WILSON, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-02037-COA.

Court of Appeals of Mississippi.

February 27, 2001.

Ray Charles Carter, Madison, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris Jr., Attorneys for Appellee.

Before KING, P.J., BRIDGES, and THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. Jessie Wilson was convicted of conspiracy to commit burglary and burglary. Wilson asserts the following errors on appeal:

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

II. DID THE PROSECUTION COMMIT REVERSIBLE ERROR BY COMMENTING ON WILSON'S RIGHT TO NOT TESTIFY?

III. DID THE TRIAL COURT ERR IN ADMITTING INFLAMMATORY AND PREJUDICIAL PHOTOGRAPHS INTO EVIDENCE?

IV. WAS WILSON DENIED A FAIR TRIAL IN BELZONI, HUMPHREYS COUNTY, MISSISSIPPI DUE TO PRETRIAL PUBLICITY?

V. DID THE TRIAL COURT ERR IN ALLOWING THE TESTIMONY OF RIVA BROWN.

FACTS

¶ 2. On May 11, 1998, Christine Smith left her eleven year old son, Steven, and her thirteen year old daughter, Lekisha, at home alone while she went to work at the Jockey International plant. Both children were home sick for the day. Christine returned for lunch at noon. After seeing that the children were fed, Christine returned to work.

¶ 3. At 12:55, Zina McFarland, who answered the telephone at the Jockey plant, received a call from "a child with a soft or choking voice." McFarland testified that the child said, "I'm dying! I'm dying! Let me talk to my mama!" followed by breathing, but no words. A call to the police to trace the call was unsuccessful; however, police officer Greg Lampkin arrived at the Jockey plant. The supervisors at the Jockey plant were told to check if anyone working had a child with asthma. Christine fit that description and immediately dialed home but got a busy signal. Officer Lampkin and Christine proceeded to her house. Upon entering the door they saw large pools of blood on the floor. Lampkin searched the house while Christine waited outside. Lampkin found the bodies of Steven and Lekisha in a bedroom. Lekisha had a fatal gunshot wound to the face. Steven suffered from multiple fatal stab wounds. Lampkin discovered that the kitchen door had been forced open.

¶ 4. The knife used in the crime was found in the Smith house. The gun used in the crime belonged to Christine and was later found in the back yard of Wilson's residence. Wilson's residence is behind and immediately adjacent to the Smith's residence. Forensic evidence collected showed Antwon McDaniel's fingerprints were found in the house on the knife used to kill Steven and on the gun used to kill Lekisha.

¶ 5. Nancy Rodgers, a neighbor of the Smiths, testified that on the day of the killings she was on her way back to work at 12:55 when she saw two "suspicious acting" males on the sidewalk in front of the Smith house. She stated that they were trying to hide something, turning away from her in order to hide an item. Rodgers was unsure of the size and shape of this item but did note that it was brown in color. Rodgers offered a description of these two males and positively identified Wilson as one of them. She further explained that as she drove by, Wilson disappeared between two houses.

¶ 6. Reva Brown, a news reporter employed by the Clarion Ledger, talked with Wilson on May 13, 1998. Wilson identified himself to Brown as "Tony Young" and told her that he had seen McDaniel shortly after one o'clock in the afternoon on the day of the murders. These statements Wilson offered to Brown were conflicting with those Wilson would later give to the police.

¶ 7. McDaniel was subsequently arrested. Without objection, Officer Lampkin, who interrogated McDaniel, testified that McDaniel claimed that both he and Wilson planned to burglarize the Smiths' house, believing there was gold in the house. Based on this information, Wilson was interviewed by Officer Bingham on May 14, 1998.

¶ 8. The May 14 interview was recorded and a transcript of the tape was entered into evidence by the prosecution during the testimony of Officer Bingham. During this interview, Bingham thoroughly and exhaustively explained the Miranda rights to Wilson. Bingham further explained that Wilson was not under arrest. Wilson claimed that while McDaniel solicited him to burglarize the Smith house four or five weeks earlier, he rejected McDaniel's offer and had no part in the burglary whatsoever.

¶ 9. Officer Bingham interviewed Wilson again on May 20, 1998. This interview was also recorded and a transcript of the tape was entered into evidence by the prosecution during the testimony of officer Bingham. Wilson's mother, Louella Wilson, was present for this interview. Wilson was again extensively explained of his Miranda rights. Wilson explained that McDaniel asked if he would participate in the burglary of the Smith house on the morning of May 11. Wilson admitted that he walked over to the house with McDaniel and immediately before McDaniel broke in, he told McDaniel that he would not have anything to do with the burglary. At this time Wilson claimed that he walked to the park and returned to his residence. Wilson stated that thirty to forty-five minutes later, McDaniel returned. Wilson described McDaniel as sweating and saying that he was ready to die, calling himself a coward. Wilson then explained that Ms. Smith and police arrived about fifteen minutes later. McDaniel explained to Wilson that the two children were in the house when he entered it, and later told him that he had murdered the children. When asked about the gun, Wilson explained that after the burglary the gun had three bullets left in it, and that it was jammed. Wilson claimed that he saw the condition of this gun from his porch. When told that he was seen in front of the Smith house with McDaniel at 12:55, Wilson explained that McDaniel was attempting to talk him into participating in the burglary at that time. Wilson admitted that while he had nothing in his hands at that time, McDaniel was holding a brick. Wilson denied that McDaniel came to his apartment after the burglary had taken place.

¶ 10. Wilson was indicted on July 31, 1998 for two counts of capital murder for the deaths of Steven Smith and Lakisha A. Smith, while committing a burglary on May 11, 1998. Those charges were dismissed, and Wilson was re-indicted on April 22, 1999 for one count of conspiracy to commit burglary, one count of burglary and one count of accessory after the fact to capital murder. Trial commenced on November 18, 1999, and ended the following day. Wilson was found guilty on all counts. Wilson was sentenced to serve concurrent terms of five, fifteen and five years, respectively, in the custody of the Mississippi Department of Corrections. Wilson's Motion for New Trial was denied; however, the trial court held that the prosecution failed to produce evidence in which a jury could find Wilson guilty of accessory after the fact to murder without committing an unconscionable injustice, and the accessory after the fact to murder count was dismissed. From these convictions, Wilson appeals.

ANALYSIS

I. WAS THE VERDICT OF THE LOWER COURT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 11. The decision to grant or deny a motion for new trial is discretionary with the trial court. McClain v. State, 625 So.2d 774, 781 (Miss.1993). In order to preserve the issue for consideration on appeal, the defendant must raise the issue that the verdict was against the overwhelming weight of the evidence as a ground for his motion for new trial. Howard v. State, 507 So.2d 58, 63 (Miss.1987). In Ford v. State, 753 So.2d 489, 490 (Miss. Ct.App.1999), we held that:

[i]n determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice.

(citing Danner v. State, 748 So.2d 844, 846 (Miss.Ct.App.1999)). See also Turner v. State, 726 So.2d 117, 125 (Miss.1998)

; Herring v. State, 691 So.2d 948, 957 (Miss. 1997); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). "Any less stringent rule would denigrate the constitutional power and responsibility of the jury in our criminal justice system." Hughes v. State, 724 So.2d 893, 896 (Miss.1998). "In determining whether a jury verdict is against the overwhelming weight of the evidence, the court accepts as true the evidence favorable to the State." Wetz v. State, 503 So.2d 803, 812 (Miss.1987). See also McClain, 625 So.2d at 781; Van Buren v. State, 498 So.2d 1224, 1229 (Miss.1986). It has also been established that "the jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness." Meshell v. State, 506 So.2d 989, 991 (Miss.1987). See also Hilliard v. State, 749 So.2d 1015, 1017 (Miss.1999); Lewis v. State, 580 So.2d 1279, 1288 (Miss. 1991); Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶ 12. While Wilson continuously denied any involvement in the burglary, he mysteriously seemed to have a thorough memory as to the details of the burglary, as well as McDaniel's involvement and reaction to the crimes committed. The fact that Wilson made numerous contradictory statements to the police and the press also infers his consciousness of guilt. Further, the call from the dying child at 12:55 established the exact time the crime had been committed. The fact that Wilson and McDaniel were seen at the scene of the crime at 12:55 by a witness places Wilson at the scene of the crime as it had immediately occurred. Wilson was also seen holding an item at that time. The only item taken from the Smith residence was the gun used in the murder. The witness observed Wilson run away from her between two...