James Calvin Williams v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01767-COA
JAMES CALVIN WILLIAMS
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
10/01/2008
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
HUNTER NOLAN AIKENS
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
JON MARK WEATHERS
CRIMINAL – FELONY
CONVICTED OF POSSESSION OF A
FIREARM BY A CONVICTED FELON AND
SENTENCED AS A HABITUAL OFFENDER
TO TEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PROBATION, PAROLE, OR EARLY
RELEASE
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART: 12/01/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
KING, C.J., FOR THE COURT:
¶1.
James Calvin Williams was convicted in the Circuit Court of Forrest County of
possession of a firearm by a convicted felon and sentenced as a habitual offender to ten years
in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for
parole, probation, or early release pursuant to Mississippi Code Annotated section 99-19-81
(Rev. 2007). Aggrieved, Williams appeals raising the following assignments of error: (1) the
State failed to establish that Williams was a habitual offender under Mississippi Code
Annotated section 99-19-81; (2) the trial court erred in overruling Williams’s motion to
suppress; and (3) the trial court erred in allowing the State’s expert, Mark Mitchell, to testify
as to his trace of the gun’s history of ownership. We affirm in part the judgment of the trial
court as to the conviction and reverse in part as to that portion of the judgment which found
Williams to be a habitual offender and remand for re-sentencing as a non-habitual offender.
FACTS
¶2.
On August 30, 2007, at approximately 2:20 a.m., Williams was riding his bicycle on
the sidewalk in the vicinity of Martin Luther King Street and Ashford Street in Hattiesburg,
Mississippi when two officers with the Hattiesburg Police Department, Kyle Stuart and
Brandon Jones, who were patrolling the area, attempted to stop him. Officer Stuart stated
that once Williams noticed the officers, he pulled into the parking lot, and the officers
followed. Officer Stuart claimed that once he exited his vehicle, Williams proceeded to ride
his bicycle around his patrol car. Officer Stuart and Officer Jones testified that the reason
for attempting to stop Williams was to conduct an investigative stop to determine where
Williams was going that time of the morning in a high-crime area near an elementary school
and to inform Williams that riding his bicycle without any reflectors and riding his bicycle
on the sidewalk was in violation of city ordinances. When Williams did not stop, Officer
Jones got out of his patrol car and gave Williams a verbal command to stop. Williams
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continued to cycle around the officers’ cars and then attempted to flee by riding south back
up Martin Luther King Street. At that point, Officer Jones gave chase to stop Williams.
Approximately 50 to 60 yards down the road, Williams wrecked his bicycle. Officer Jones
and Officer Stuart approached Williams and tried to detain him. While Williams was
resisting the officers’ efforts to detain him, a loaded handgun, which was identified as a black
.380 Lorcin, fell from Williams’s waistband. Thereafter, Williams was restrained, and the
officers conducted a pat-down search.
During the pat-down search the officers also
discovered a holster on Williams’s waistband. Once Williams was detained, the officers
asked his identity and ran a background check. The check indicated that Williams was a
convicted felon; Williams was arrested. Subsequently, Williams was indicted by a Forrest
County grand jury for possession of a firearm by a convicted felon. On October 1, 2008,
Williams was convicted of possession of a firearm by a convicted felon and sentenced as a
habitual offender to ten years in the custody of the MDOC without eligibility for parole,
probation, or early release. Williams filed a motion for a judgment notwithstanding the
verdict (JNOV) or, in the alternative, for a new trial. On October 16, 2008, Williams’s posttrial motion was denied. Williams appeals.
STANDARD OF REVIEW
¶3.
In this case, the Court must use a separate standard of review for the issues raised by
Williams on appeal. First, the applicable standard of review on appeal to determine whether
reasonable suspicion for an investigatory stop and probable cause for an arrest exist is a de
novo review. Floyd v. City of Crystal Springs, 749 So. 2d 110, 113 (¶11) (Miss. 1999).
“Second, . . . the standard of review regarding admission [or exclusion] of evidence is abuse
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of discretion.” Id. at (¶12) (citation and internal quotations omitted). “Where error involves
the admission or exclusion of evidence, the appellate court will not reverse unless the error
adversely affects a substantial right of a party.” Id. (Internal quotations omitted).
ANALYSIS
I. Whether the State failed to establish that Williams was a habitual
offender pursuant to Mississippi Code Annotated section 99-19-81.
¶4.
Williams argues that the State failed to prove that he was a habitual offender pursuant
to Mississippi Code Annotated section 99-19-81. Section 99-19-81 of the Mississippi Code
Annotated, one of the state’s two habitual offender statutes, provides that:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.
¶5.
Williams asserts that the State failed to prove that he had two prior felony offenses
and had received a sentence of at least one year for each conviction. Williams asserts that
his general acknowledgment of a 1992 conviction does not prove beyond a reasonable doubt
that he was convicted of a felony in 1992 or sentenced to a term of one year.
¶6.
The State argues that the indictment alleged that Williams had been previously
convicted in 1988 of possession of a controlled substance and in 1992 of grand theft. The
State asserts that during the guilt phase of the trial, it introduced into evidence a sentencing
order regarding the 1988 conviction in Cause No. 13,227, which was admitted without an
objection by the defense. During the sentencing hearing, the State indicated that it had a
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certified copy of a judgment of conviction for Cause No. 15,294 which occurred in 1992,
which would be entered into evidence. The State also claims that Williams answered
affirmatively to the existence of both convictions when the trial judge asked Williams
whether he was the same James Calvin Williams who was convicted at least twice
previously.
¶7.
The State has the burden of proof as to all the essential elements of the crime charged.
Vince v. State, 844 So. 2d 510, 517 (¶22) (Miss. 2003). In this case, the record contains a
certified copy of Williams’s sentencing order for the 1988 conviction for the possession of
a controlled substance. In the 1988 case, Cause No. 13,227, Williams was sentenced to serve
three years in the custody of the MDOC. However, the record before this Court does not
contain the certified copy of the 1992 conviction, which the State had indicated was being
introduced into evidence. The designation of the record required pursuant to Mississippi
Rules of Appellate Procedure 10(b)(1) includes all papers on file with the Forrest County
Circuit Clerk in this cause, certified copies of docket entries, pretrial motion transcripts, and
exhibits, jury voir dire, jury instructions (given and refused), post-trial motion transcripts as
well as all exhibits filed, taken, or offered. However, there is not found among the exhibits
or the list of exhibits proof of a second felony conviction in which Williams was sentenced
to a term of one year or more.
¶8.
The State has acknowledged that the exhibits submitted to this Court do not include
a copy, certified or non-certified, of a 1992 felony conviction for Williams. While the
primary responsibility for the designation of the record falls upon the appellant, under
Mississippi Rules of Appellate Procedure 10(b)(5), the appellee also is tasked with reviewing
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the record to ascertain that it is both correct and complete. In the event that the record as
designated by the appellant is either incorrect or incomplete, the appellee has an obligation
to make written submissions to the clerk of the trial court identifying errors or omissions.1
The State has not suggested that it made such a submission to the clerk, nor does the record
before this Court reflect or suggest any such submission.
¶9.
Absent such proof, this Court must rely solely upon the matters properly contained
in the record on appeal. That record does not include any proof of a 1992 felony conviction.
While this Court has reviewed the question asked of by Williams during sentencing and his
response to the question, which addresses prior convictions,2 they neither acknowledge a
1
Mississippi Rules of Appellate Procedure 10(b)(5) provides that:
For fourteen (14) days after service of the clerk’s notice of completion under
Rule 11(d)(2), the appellant shall have the use of the record for examination.
On or before the expiration of that period, appellant’s counsel shall deliver or
mail the record to one firm or attorney representing the appellee, and shall
append to the record (i) a written statement of any proposed corrections to the
record, (ii) a certificate that the attorney has carefully examined the record and
that with the proposed corrections, if any, it is correct and complete, and (iii)
a certificate of service. Counsel for the appellee shall examine the record and
return it to the trial court clerk within fourteen (14) days after service, and
shall append to the record (i) a written statement of any proposed corrections
to the record, (ii) a certificate that the attorney has carefully examined the
record and that with the proposed corrections, if any, it is correct and
complete, and (iii) a certificate of service. Corrections as to which counsel for
all parties agree in writing shall be deemed made by stipulation. If the parties
propose corrections to the record but do not agree on the corrections, the trial
court clerk shall forthwith deliver the record with proposed corrections to the
trial judge. The trial judge shall promptly determine which corrections, if any,
are proper, enter an order under Rule 10(e), and return the record to the court
reporter or the trial court clerk who shall within seven (7) days make
corrections directed by the order.
2
THE COURT: You acknowledge you are one and the same James Williams -James Calvin Williams that was convicted at least twice previously; is that correct?
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1992 felony conviction nor the imposition of a sentence of at least one year of incarceration.
Under these circumstances, this Court is compelled to find that the State failed to prove that
Williams was a habitual offender within the purview of Mississippi Code Annotated section
99-19-81. Therefore, we reverse and remand for re-sentencing.
II. Whether the trial court erred in overruling Williams’s motion to
suppress.
¶10.
Williams filed a motion to preclude the entry into evidence of the gun that fell from
his waistband. Williams contends that the actions of the officers in obtaining the gun were
unlawful; therefore, it should be excluded as the result of an improper search and seizure.
Williams argues that even if his detention was considered an investigatory stop, the conduct
of the officers was unreasonable in that they possessed no specific facts upon which they
could have reasonably believed that Williams was armed. Williams’s arguments are not
persuasive.
¶11.
At approximately 2:20 a.m., the officers observed an individual riding a bicycle on
the sidewalk, without a headlight and reflectors, in what was described as a high-crime area.
Riding a bicycle under these circumstances is atypical behavior. Under Terry v. Ohio, 392
U.S. 1, 22-27 (1968), an officer is allowed to conduct a brief stop to seek clarity from what
is an ambiguous set of circumstances. The officers testified that they attempted to stop
Williams to clarify what was beyond question an ambiguous set of circumstances. When
without provocation, Williams attempted to elude the officers that further heightened the
ambiguity and the justification for the attempted stop. That justification also embraced the
THE DEFENDANT: Yes, sir.
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right to pursue and detain Williams to resolve that ambiguity. Id. at 29.
¶12.
When the officers reached Williams, they attempted to gain control of the situation
and to protect themselves by placing him in handcuffs. As they did so, Williams struggled,
and the gun fell out of the waistband of his pants. There is no indication that the gun was
obtained as a result of any search of Williams’s person. The officers retrieved the gun after
it fell to the ground.
¶13.
When the gun was retrieved from the ground, it was not the product of an illegal
search and seizure. Upon running a background check, the officers were informed that
Williams was a convicted felon, and as such, he was prohibited from possessing a gun.
Having made that determination, Williams was arrested and subsequently indicted.
¶14.
In a factually similar case, police officers observed an individual at approximately
2:30 a.m., in an area where a recent crime had been committed. This Court ruled that these
circumstances would warrant an investigatory stop. Carr v. State, 770 So. 2d 1025, 1028
(¶8) (Miss. Ct. App. 2000). In Carr, we stated that:
Reviewing the evidence in that light, we note that it is largely beyond dispute
that the officers had no probable cause to arrest [Gregory Paul] Carr at the time
he was observed riding a bicycle on a public street. Nevertheless, it is
apparent to this Court that police officers observing an individual at large at
approximately 2:30 in the morning in an area where a recent crime had been
committed would be entitled to undertake a brief investigatory stop to
determine the circumstances of that individual's presence in that area. The
right to compel Carr to undergo such a brief investigatory stop was not
diminished by the fact that Carr suddenly fled when commanded to stop, so
that the officers were justified in pursuing and detaining him against his will,
at least until the legitimacy of his presence under the circumstances could be
resolved.
Id. (internal citations omitted). In arguing against Williams’s motion to suppress, the State
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gave as its primary reason for the stop of Williams – the resolution of an ambiguity pursuant
to Terry v. Ohio. But it also articulated a second reason during that argument. That second
reason was that the riding of a bicycle on the sidewalk was in violation of Hattiesburg’s
municipal ordinances. The State argued that the officers were entitled to stop Williams due
to this alleged violation of municipal law. The ordinance which Williams is alleged to have
violated was not made a part of the record on appeal. However, Williams’s appellate brief
acknowledged that he “apparently violated this ordinance on the night in question . . . .” This
Court holds that this acknowledged violation of Hattiesburg’s municipal ordinances by
Williams provided a proper basis upon which officers were entitled to stop and question
Williams. This Court finds that this issue is without merit.
III. Whether the trial court erred in allowing Sergeant Mark Mitchell to
testify to the gun’s history of ownership.
¶15.
Williams claims that the trial court erred by allowing Officer Mitchell to testify to a
trace of the gun’s history of ownership. Williams objected to the receipt of this testimony
as being irrelevant. The trial court withheld ruling on the objection pending the development
of the evidence. At the conclusion of Officer Mitchell’s testimony, the trial court ruled that
the testimony was irrelevant and sustained Williams’s objection.
¶16.
When instructing the jury prior to its deliberations, the trial judge included instruction
C-1, the relevant portion of which informed the jury that it was to disregard and could not
take into consideration any evidence which was excluded during the trial. That excluded
evidence included the testimony of Officer Mitchell. In the absence of contrary indications,
jurors are presumed to follow the instructions of the court. Shelton v. State, 728 So. 2d 105,
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112 (¶30) (Miss. Ct. App. 1998). There is nothing in the record before this Court to suggest
that the jury deviated from the instructions given to it. Accordingly, this issue is without
merit.
¶17. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON IS
AFFIRMED. THAT PORTION OF THE JUDGMENT FINDING WILLIAMS TO BE
A HABITUAL OFFENDER IS REVERSED, AND THIS CASE IS REMANDED FOR
RE-SENTENCING AS A NON-HABITUAL OFFENDER. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO FORREST COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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