Wilson v. State
| Decision Date | 22 March 2016 |
| Docket Number | No. 2014–KA–01478–COA.,2014–KA–01478–COA. |
| Citation | 198 So.3d 408 |
| Parties | Timothy Allen WILSON a/k/a Timothy Wilson, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Office of state Public Defender by George T. Holmes, attorney for appellant.
Office of the Attorney General by Alicia Marie Ainsworth, attorney for appellee.
EN BANC.
WILSON
, J., for the Court:
¶ 1. After a jury convicted Timothy Wilson of receiving stolen property, the Circuit Court of Warren County sentenced him, as a habitual offender, to serve ten years in the custody of the Mississippi Department of Corrections (MDOC) and ordered him to pay a $10,000 fine. On appeal, Wilson raises three issues, restated as follows: (1) whether the circuit court properly instructed the jury, (2) whether his trial counsel was ineffective, and (3) whether his sentence is illegal because he was sentenced under the law in effect at the time of his offense, rather than the law as amended by House Bill 585, 2014 Miss. Laws ch. 457. For the reasons that follow, we find no error in Wilson's trial or sentence and affirm.
¶ 2. On April 2, 2012, Paul Powers witnessed two males, later identified as Wilson and Wilson's brother, use a truck to remove a utility trailer from Powers's neighbors' yard. After learning that the owners of the trailer had not given the men permission to remove it, Powers called law enforcement. Wilson and his brother were eventually arrested, indicted, and tried jointly for receiving stolen property.
¶ 3. During trial, Wilson presented an alibi defense, but his trial counsel failed to submit an alibi jury instruction. However, the State submitted Instruction S–3, an alibi instruction that informed the jury, among other things, that the State was not required to disprove an alibi. The circuit judge gave that instruction and Instruction S–4, a prima facie evidence instruction. Wilson's trial counsel failed to object to either of those instructions.
¶ 4. After the jury convicted Wilson, the circuit court imposed a ten-year sentence under the version of Mississippi Code Annotated section 97–17–70
(Rev.2014) that was in effect at the time of Wilson's offense. Wilson timely filed a motion for a new trial, which the circuit court denied. This appeal followed.
¶ 5. We review a trial court's rulings on jury instructions for an abuse of discretion. Thompson v. State, 119 So.3d 1007, 1009 (¶ 3) (Miss.2013)
(citing Newell v. State, 49 So.3d 66, 73 (¶ 20) (Miss.2010) ). McKlemurry v. State, 947 So.2d 987, 990 (¶ 3) (Miss.Ct.App.2006) (citing Miller v. State, 919 So.2d 1137, 1141 (¶ 12) (Miss.Ct.App.2005) ).
¶ 6. Wilson argues that Instruction S–3 was improper because it required him to prove the truth of his alibi defense. According to him, the absence of a proper alibi instruction prevented the jury from considering his defense. In response, the State argues that because Wilson failed to object to the jury instructions as given, this argument is barred on appeal. In the alternative, the State argues that Instruction S–3 did not shift the burden of proof to Wilson and that the jury instructions, taken as a whole, properly instructed the jury that the State bore the burden of proof beyond a reasonable doubt throughout the trial. The State also argues that it was Wilson's duty to request an alibi instruction.
¶ 7. While conceding that his trial counsel failed to object to Instructions S–3 and S–4,1 Wilson asks this Court to review this issue as plain error. In Starr v. State, 997 So.2d 262 (Miss.Ct.App.2008)
, we explained the concept of plain error, stating:
A party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because it is otherwise procedurally barred. The plain-error doctrine requires a party to prove that an error occurred which resulted in a manifest miscarriage of justice. This doctrine is only available when a defendant's substantive or fundamental rights have been violated.
Id. at 266 (¶ 11) (internal citations and quotation marks omitted). A “plain error” is a ruling by the trial court that “deviated from a legal rule” in a manner that “is plain, clear or obvious.” Neal v. State, 15 So.3d 388, 403 (¶ 32) (Miss.2009)
(quoting McGee v. State, 953 So.2d 211, 215 (¶ 8) (Miss.2007) ). As discussed below, this case involves no miscarriage of justice or clear or obvious error. Therefore, this issue is procedurally barred.
¶ 8. At trial, Powers testified that on April 2, 2012, between 1 p.m. and 2 p.m., as he was standing in his yard, he witnessed Wilson and his brother break the lock on the utility trailer in Powers's neighbors' yard. Suspicious, Powers called his neighbors and learned that neither Wilson nor his brother had been authorized to remove the trailer. As Wilson and his brother drove away with the trailer, Powers followed in his vehicle, while contacting law enforcement. Powers provided law enforcement with the tag number on the truck that Wilson was driving.
¶ 9. Lieutenant Randy Lewis, the officer who responded to Powers's call, testified that, during his investigation, he learned that the truck used to remove the trailer was registered to Wilson. After Lieutenant Lewis located the truck and apprehended Wilson and his brother, he located the trailer in a nearby yard.
¶ 10. Wilson called two alibi witnesses: Willie Dotson and Henry Ray Hunter. Dotson testified that on the morning of April 2, 2012, he and Wilson worked together cutting trees and bushes. Dotson testified that Wilson “left around [noon] or a little before [noon] for lunch and he never did come back.” Wilson's trial counsel showed Dotson a photograph that depicted Wilson trimming trees in an attempt to establish that Wilson was working with Dotson when the trailer was stolen. However, Dotson's testimony, which was inconsistent, revealed that he did not know what day or time the photograph was taken.
¶ 11. Hunter testified that on the morning of April 2, 2012, Wilson was also helping him repair a house. “[H]e was going back and forth” between the house and his work cutting trees. According to Hunter, Wilson left for lunch at noon and did not return. Hunter made it clear that on April 2, 2012, Wilson did not work with him after lunch.
¶ 12. As stated, Wilson failed to submit a proposed alibi instruction, but the circuit judge gave Instruction S–3, which stated:
[T]he State is not required to disprove an alibi. In other words, the State is not required to prove that any alibi defense is not true; the State is only required to prove, beyond a reasonable doubt, that the defendants, Randy Charles Wilson and Timothy Allen Wilson, are guilty, beyond a reasonable doubt, of Receiving Stolen Property as charged.
¶ 13. Wilson cites Holmes v. State, 481 So.2d 319 (Miss.1985)
, as support for his argument that the alibi instruction submitted by the defendant in that case is the instruction that should have been given to the jury in this case. However, in Holmes the issue was not whether the alibi instruction given to the jury was improper or inadequate. Instead, the issue was whether, after the State and the defendant submitted proposed alibi instructions, the trial judge erred by completely failing to give one. Id. at 323. There, the trial judge refused the instructions “based on the weakness of the evidence which supported the alibis.” Id. at 321. On appeal, our Supreme Court reversed and remanded for a new trial “[d]ue to the failure of the trial [judge] to properly instruct the jury with reference to the defendant's theory of alibi and the failure to caution the jury regarding accomplice testimony.” Id. at 320. Here, in contrast, Wilson failed to proffer an alibi instruction, and the circuit judge had no duty to sua sponte instruct the jury on Wilson's alibi defense. See
Westbrook v. State, 29 So.3d 828, 832–33 (¶ 12) (Miss.Ct.App.2009).
¶ 14. We further note that Instruction S–3 is consistent with—and Wilson's argument is in direct conflict with—footnote one of the Holmes opinion, which stated:
Harvey Holmes's alibi instruction improperly stated that it was the government's burden to convince the jury that his alibi was not true. The state is not required to disprove a defendant's alibi; its burden is simply to prove the defendant's guilt beyond a reasonable doubt.
. Even if there were some defect in the State's instruction, we would be hard-pressed to find that a trial judge committed clear or obvious error by giving an instruction that substantially tracks reasoning from a Supreme Court opinion. See
Green v. State, 183 So.3d 28, 30–32 (¶¶ 6–10) (Miss.2016).
¶ 15. As to Wilson's argument that Instruction S–3 shifted the burden of proof to him, several other instructions informed the jury that the State bore the burden of proof beyond a reasonable doubt. Instruction S–7 stated, in relevant part: “If, however, you find that the State has failed to prove any one, or more, of the elements [of receiving stolen property] beyond a reasonable doubt, then you shall find Timothy Allen Wilson not guilty.” Instruction D–2 stated: “If you find from the evidence that the State has failed to prove beyond a reasonable doubt any one of the essential elements of the crime of receiving stolen property, you must find Timothy Allen Wilson not guilty.” Instruction D–4 provided, in part: D–4 also provided: “The presumption of...
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