Jason Carter v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-01623-COA
JASON CARTER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLEE
4/14/2005
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
WALTER E. WOOD
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DAVID BYRD CLARK
CRIMINAL - FELONY
CONVICTED OF THREE COUNTS OF ARMED
ROBBERY AND SENTENCED TO TEN YEARS
ON COUNT I, TWENTY YEARS ON COUNT II,
AND TWENTY YEARS ON COUNT III, WITH
COUNTS II AND III TO RUN
CONCURRENTLY, AND COUNT I TO RUN
CONSECUTIVELY TO COUNTS II AND III,
FOR A TOTAL OF THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS.
AFFIRMED IN PART AND REVERSED AND
RENDERED IN PART – 05/01/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, C.J., IRVING AND GRIFFIS, JJ.
IRVING, J., FOR THE COURT:
¶1.
Jason Carter was convicted by a Madison County jury of three counts of armed robbery, and
was sentenced by the Madison County Circuit Court to a total of thirty years in the custody of the
Mississippi Department of Corrections.1 Aggrieved, Carter appeals and asserts the following four
errors: that his initial stop by police was unlawful and that the evidence discovered as a result of the
stop should not have been admitted at trial, that his inculpatory statement to police should not have
been admitted, that the evidence against him is insufficient to support his conviction, and that the
court erred in allowing hearsay testimony by one of the police officers involved in the case.
¶2.
Finding error, we affirm in part and reverse and render in part.
FACTS
¶3.
On April 28, 2003, Officer Christopher Corley of the Canton Police Department was
dispatched to the Westside Trailer Park in Canton. Once there, Officer Corley encountered three
visibly distressed individuals of Hispanic descent, two women and one man. Police officers
determined the identity of the three individuals, but never testified regarding the identity of the
victims at trial. Officer Corley testified that the individuals did not speak much English, but that
they were able to relate that they had been robbed at gunpoint by three individuals.2 The perpetrators
were described by the victims as three black males, one large, one skinny, one wearing a black Tshirt, and one wearing a white T-shirt. This description was sent out over the police radio.
¶4.
Shortly after the description went out, Deputy Alex Slaughter observed three black males,
including Jason Carter, who fit the description given by the victims. Evidence indicated that the
location where Carter and the other individuals were observed was within a mile of the Westside
1
Specifically, Carter was sentenced to twenty years each for counts II and III, and ten years
for count I. Count I is to run consecutively to counts II and III, which are to run concurrently to each
other, for a total of thirty years in the custody of the Mississippi Department of Corrections.
2
It is not clear from the record whether the victims advised that they each had been robbed.
However, the indictment contains three counts, one for each of the alleged victims, and alleges that
money and personal property were taken from each of the victims. Neither the amount of money nor
the identity of the personal property is identified in the indictment.
2
Trailer Park. At that time, Deputy Slaughter called for backup. After other officers arrived, Carter
and the others were patted down, and a pistol was located on Carter’s person. The pistol was taken
from Carter, and he was placed on the ground and secured with handcuffs. A further search of Carter
revealed a receipt with a Hispanic name on it, a twenty-dollar bill, a wrist watch, and a small amount
of money. A “piece of gray material” was also discovered.
¶5.
The next morning, Carter was interviewed at the Madison County Police Department after
executing a written waiver of his Miranda rights. Carter confessed that he, Joshua Carter, and Brien
Hill had robbed three individuals at the Westside Trailer Park. Carter gave additional details
regarding the robbery. Investigator Don Hicks transcribed Carter’s confession and then allowed
Carter to read the confession. At that time, Carter noted a needed correction, which Investigator
Hicks made. Carter initialed the correction.
¶6.
Thereafter, Carter was tried and convicted by a Madison County jury. Additional facts, as
necessary, will be related during our analysis and discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Suppression of Evidence
¶7.
In his first and third contentions of error, Carter claims that the trial court erred in refusing
to suppress evidence obtained after Carter was stopped by police. Specifically, Carter claims that
the stop was made without reasonable suspicion and that the evidence resulting therefrom should
therefore have been suppressed.
¶8.
Carter was initially detained for an investigative stop, and was arrested only after a pistol was
discovered on his person. The Mississippi Supreme Court has stated that “[t]he constitutional
requirements for an investigative stop and detention are less stringent than those for an arrest. This
Court has recognized that ‘given reasonable circumstances an officer may stop and detain a person
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to resolve an ambiguous situation without having sufficient knowledge to justify an arrest. . . .’”
Wilson v. State, 935 So. 2d 945, 950 (¶18) (Miss. 2006) (quoting Floyd v. City of Crystal Springs,
749 So. 2d 110, 114 (¶16) (Miss. 1999)). The Court discussed what constitutes reasonable
suspicion: “whether, taking into account the totality of the circumstances, the detaining officers had
a ‘particularized and objective basis for suspecting the particular person . . . of criminal activity.’”
Id. (quoting Floyd, 749 So. 2d at 115 (¶17)).
¶9.
Taking into account the totality of the circumstances, the officers had reasonable suspicion
to stop Carter. Carter was observed within fifteen to twenty minutes of the robbery, in close
proximity to the location of the robbery, and he and the individuals with him fit the general
description of the perpetrators given to the police. Therefore, the officers had a “particularized and
objective basis for suspecting” Carter of having been involved in criminal activity. This issue is
without merit.
2. Suppression of Statement
¶10.
In his second claim of error, Carter argues that the court erred in refusing to suppress his
statement, which Carter alleges was involuntary.
¶11.
Carter appears to argue that his statement was involuntary, not because he was coerced by
officers, but because he did not actually make the statement that was introduced into evidence.
However, to date Carter has produced no evidence that the statement was falsified or was not
accurate, other than his own assertions that he did not make any statement to the police. No evidence
has been offered to show that Carter’s signature on the statement was falsified. Therefore, the court
did not abuse its discretion in refusing to suppress Carter’s inculpatory statement, as no credible
evidence was presented to indicate that the statement was anything other than a voluntary statement.
3. Sufficiency of the Evidence
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¶12.
In this assertion of error, Carter claims that the evidence introduced at trial was insufficient
to sustain a conviction for armed robbery against the individuals named in the indictment.
Specifically, Carter contends that the receipt found in his pocket is the only evidence identifying any
of the individuals who were held at gunpoint while the trailer was being searched. That receipt
identified only Eva Rivera. As Carter notes, the record is entirely devoid of any evidence identifying
Margarita Garcia or Lino DeJesus Garcia, the other individuals identified in the indictment.
Although Carter admits in his statement that one of his codefendants held a gun on the victims
outside of the trailer, nothing in the statement identifies Margarita or Lino. Further, although Officer
Corley talked to three people outside of the trailer and obtained their identity, neither he nor any
other officer testified as to their identity during the trial.3
¶13.
Evidence supporting a conviction is insufficient when “evidence of one or more of the
elements of the charged offense is such that reasonable and fair-minded jurors could only find the
accused not guilty.” Wilson v. State, 936 So. 2d 357, 363 (¶16) (Miss. 2006) (citing Hawthorne v.
State, 835 So. 2d 14, 21 (¶31) (Miss. 2003)). We view all the evidence in “the light most favorable
to the State and consistent with the verdict.” Id. (citing Hawthorne, 835 So. 2d at 22 (¶32)).
¶14.
We agree with Carter that the evidence produced at trial was insufficient to sustain his
conviction in counts II and III of the indictment, which were related to the armed robbery of two
individuals identified in the indictment as “Margarita Garcia and Lino Dejesus Garcia.” None of the
victims testified at trial because they could not be located after the robbery. Furthermore, as we have
3
We note that Carroll Phelps, case manager for the Madison County District Attorney’s
Office, testified that he had been unable to locate Eva Rivera, Margarita Garcia and Leno DeJesus
Garcia in preparation for the trial. However, he did not testify to their connection with the trial, and
certainly not that they were the victims of the robbery. We further note that these individuals were
identified as the victims during the court’s voir dire, and during closing arguments, but neither voir
dire nor arguments by counsel are evidence.
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already noted, no officers testified regarding the identity of the individuals who were questioned at
the trailer park the night of the robbery. Without any evidence regarding the identity of the
individuals who were robbed at the trailer park, it should have been impossible for the jury to find
that the evidence supported a conviction against Carter for the robberies of Margarita and Lino.
Simply put, not only was the evidence insufficient to show that Carter robbed these individuals, such
evidence was completely nonexistent.
¶15.
Allowing Carter’s conviction to stand would allow the jury to convict Carter without any
proof that the individuals named in the indictment were actually the individuals that Carter robbed.
The indictment clearly alleged that Carter had robbed specific individuals. By contrast, the evidence
produced at trial indicated only that Carter had robbed Rivera and maybe two other unidentified
individuals. In the face of such lack of proof, there was simply no evidence from which the jury
could find that Carter robbed individuals “named in the indictment” as Margarita Garcia and Lino
Garcia.
¶16.
The State never sought an amendment of the indictment in this case to take out the identity
of the victims of the robbery. Furthermore, the identity of the victim is an essential element of the
crime of robbery. In Coffield v. State, 749 So. 2d 215, 217 (¶7) (Miss. Ct. App. 1999) (quoting Miss.
Code Ann. § 97-3-73) (Rev. 1994)), this Court noted: “Robbery is defined as the taking of ‘the
personal property of another. . . .’ We are satisfied that the State is not required, as a critical element
of these crimes, to either charge or to put on affirmative proof, beyond the specific identity of the
victim, that the victim was a human being.” The defendant in Coffield had argued that the indictment
was “fatally defective for its failure to charge that the victim Lana Coffield [his estranged wife], was
a human being. Coffield, 749 So. 2d at 216-17 (¶1).
¶17.
In Burks v. State, 770 So. 2d 960, 963 (¶12) (Miss. 2000) (quoting Hughes v. State, 207
6
18. Miss. 594, 603, 42 So. 2d 805, 807 (1949), citing Upshaw v. State, 350 So. 2d 1358, 1362 (Miss.
1977)), the Mississippi Supreme Court stated that “‘an indictment must state the name of the victim
of an offense where that is an element of the offense, and a failure to state it, or a material variance
between statement and proof is fatal. . . .’ A variance is material if it affects the substantive rights
of the defendant.” We have found nothing to indicate that the identity of a victim of a robbery is not
an essential element of the crime of armed robbery. Thus, it appears to this Court that the State
could not have amended the indictment to omit reference to the identities of the victims, even had
it attempted to do so. In either case, there was a material variance between the indictment and the
proof offered, since no evidence indicated the identity of any victim other than Rivera.
¶18.
We note that this same issue was raised and discussed below. During the discussion of what
instructions to submit to the jury, the State sought to have an instruction given to the jury that read
for count I: “a human being, a different human being from Counts II and III. And then in Count II,
put a different human being from Count[s] I and III.” At this point in the discussion, the court
questioned the State: “Well, why can’t we just put their names?” In explaining his problem, the
prosecutor stated: “The reason being is, I suppose there could be some argument made if we put their
names in there that, ladies and gentlemen, you have to find him not guilty because they never proved
that DeJesus was the man; because he never stepped forward.” Shortly thereafter, the prosecutor
admitted, “What I’m saying is, Judge, I think we may not have met the proof of who the individual
names are. . . . I think it’s best if we just leave their names out and say ‘a human being, different
from Count[s] II and III.’” At this point in the discussion, the defense objected, noting that the
indictment named three specific individuals that Carter was alleged to have robbed. As a
compromise, the court introduced the language that eventually went into the jury instructions, which
stated that Carter had robbed “a person named in the indictment as Eva Rivera. . . .” The language
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was then changed in subsequent instructions to reflect the name of each of the other two victims.
We note that this compromise did not make the evidence against Carter sufficient to sustain a
conviction. The indictment clearly identified three separate individuals that Carter was alleged to
have robbed. The instructions as given still clearly identified three separate people that Carter
allegedly robbed, when the evidence was wholly insufficient to show that Carter robbed two of the
three individuals.
¶19.
We affirm Carter’s conviction in count I, because evidence was produced supporting a
conviction for the robbery of Rivera. Specifically, a receipt was introduced into evidence bearing
Rivera’s name. Testimony indicated that the receipt was recovered from Carter’s pocket, along with
some cash that was allegedly taken during the course of the robbery. Furthermore, one of Carter’s
co-defendants, Brien Hill, testified against Carter at trial. Hill was questioned extensively regarding
his plea of guilty regarding the robbery of Rivera. Neither of the other two victims was named
during Hill’s testimony, and he apparently pled guilty only to the robbery of Rivera. The presence
of the receipt, Hill’s testimony, and the testimony of the officers and Carter’s own admission that
he and two other individuals had robbed three people at the trailer park is sufficient to sustain
Carter’s conviction. While scant, this evidence was such that reasonable and fair-minded jurors
could find Carter guilty of the armed robbery of Rivera.
¶20.
Because the evidence is insufficient to sustain a conviction against Carter for the armed
robbery of Margarita Garcia and Lino Dejesus Garcia, we reverse and render those counts, leaving
only Carter’s conviction for armed robbery against Rivera intact.
4. Exclusion of Hearsay Testimony
¶21.
Finally, Carter claims that the court erred in allowing hearsay testimony by Officer Corley
regarding what one of the victims had told him. Carter’s attorney objected at trial, and the trial judge
8
ruled that the testimony would be admissible, although “not . . . necessarily for the truth of the
matter, that being a factual determination to be made by the jury.” The judge made a specific finding
as to why the testimony was reliable. Although the judge stated that the testimony would not
“necessarily” be admitted for the truth of the matter asserted, no limiting instruction was ever given
to the jury.
¶22.
Carter contends that the lower court erred in finding that the statement was reliable.
Specifically, Carter argues that “[a]ny reliability the statements embodied due to the nature of the
event they observed was diminished by the declarant’s inability to adequately articulate a description
of the perpetrators. Also, the statement loses trustworthiness after considering that the assault
occurred in the dark of night.”
¶23.
The testimony in question was admissible as the statement of an unavailable witness. The
court clearly did not err in ruling that the victims in this case were unavailable for purposes of the
hearsay rule, as evidence offered strongly indicated that the State had been “unable to procure [their]
attendance . . . by process or other reasonable means.” M.R.E. 804(a)(5). In fact, Carter’s attorney
stipulated to the unavailability of the victims at trial: “I’ll stipulate that . . . if anybody could find the
witnesses, Carroll Phelps could or could get somebody to find them. And that he has used every
reasonable means to locate the witnesses that he was asked to locate.”
¶24.
Once a witness is ruled unavailable, there are several types of hearsay testimony that may be
presented. See M.R.E. 804(b)(1-4). However, none of these exceptions fit the victim’s statements
testified to at trial. Instead, the statements are allowable under Rule 804(b)(5), which states:
A statement not specifically covered by any of the foregoing exceptions but having
equivalent circumstantial guarantees of trustworthiness, if the court determines that
(A) the statement is offered as evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any other evidence which the
proponent can procure through reasonable efforts; and (C) the general purposes of
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these rules and the interests of justice will best be served by admission of the
statement into evidence.
Here, the statement was offered as evidence of a material fact (Carter’s identity and involvement in
the crime), the statement was more probative than other evidence that could be produced, and
admission of the statement served the “interests of justice.” The court also made a finding that there
were “circumstantial guarantees of trustworthiness.” Nothing in the rules prohibited the statement
from being introduced as proof of the truth of the matter asserted, and no limiting instruction was
required to be given to the jury.
¶25.
As to Carter’s claim that the statement lacked trustworthiness, we note that the statement was
given to a police officer immediately after the commission of a crime, by individuals who had no
apparent reason to lie to law enforcement. To date, no evidence has been produced by Carter to
indicate that the victims were lying or had any reason to lie to Officer Corley. Carter claims that the
statement lacks reliability because the victims were unable to give an adequate description of the
men who had robbed them. We note that the description of the perpetrators given by the victims was
quite clear: three black males, one large, one skinny, one wearing a black T-shirt, and one wearing
a white T-shirt. In fact, it was this specific description that led to Carter’s arrest. Furthermore, as
to Carter’s contention that the statements lacked reliability because the robbery occurred at night,
we note that no evidence was presented to indicate that the lighting was so poor that an individual
could not have made an adequate identification. No evidence whatsoever was presented to indicate
the lighting, or lack thereof, at the trailer park where the robbery took place. This issue is without
merit.
¶26. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF ARMED ROBBERY IN COUNT I AND SENTENCE OF TEN YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF ARMED ROBBERY IN COUNTS II AND III AND SENTENCE OF
10
TWENTY YEARS ON EACH COUNT TO RUN CONCURRENTLY TO EACH OTHER
AND CONSECUTIVELY TO THE SENTENCE IN COUNT I, IS REVERSED AND
RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
11
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