Matt Washington v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00204-COA
MATT WASHINGTON A/K/A MATT D. WASHINGTON A/K/A MATT
DERELLS WASHINGTON
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
12/02/1999
TRIAL JUDGE:
HON. L. BRELAND HILBURN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:
ROBERT M. RYAN
ANDRE' DE GRUY
ATTORNEYS FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY:
EDWARD J. PETERS
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
12/02/1999: STRONG ARM ROBBERY (HABITUAL
OFFENDER): SENTENCED TO SERVE (15) YEARS IN
THE CUSTODY OF THE MDOC
DISPOSITION:
AFFIRMED - 02/20/2001
MOTION FOR REHEARING FILED: 3/5/2001; denied 5/8/2001
CERTIORARI FILED:
6/5/2001; denied 8/30/2001
MANDATE ISSUED:
9/20/2001
BEFORE SOUTHWICK, P.J., THOMAS, AND LEE, JJ.
LEE, J., FOR THE COURT:
¶1. This appeal is from the Circuit Court of Hinds County where a jury found the defendant, Matt
Washington, guilty of robbery of the contents of the purse of his former live-in girlfriend, Lorraine Johnson,
pursuant to Miss. Code Ann. § 97-3-73 (Rev. 2000). He was sentenced as an habitual criminal, as defined
by Miss. Code Ann. § 99-19-81 (Rev. 2000), to serve a term of fifteen years in the custody of the
Mississippi Department of Corrections. He has appealed to this Court from that conviction and sentence.
FACTS
¶2. Lorraine Johnson testified that she and Matt Washington had lived together for four to five years when
she called off the relationship in August 1998 because of his continual infidelity. On the day of the incident
which precipitated this appeal, September 22, 1998, Johnson said that Washington called her at work and
asked if she was going to choir rehearsal at church that night. She answered that it was not his business. She
said that when she returned to her apartment after rehearsal that night about 8:30 p.m. she looked around
the apartment complex because she felt uncomfortable since she had received a call from Washington
earlier in the day. She testified that when she got out of her car she had her keys in her hand, and she went
to unlock the door to her apartment. Washington ran up from behind, pushed her against the wall, grabbed
her purse and ran as she screamed. Her purse contained her cell phone which cost $150, a camera,
approximately $40 in cash, her credit cards and checkbook.
¶3. Greg, a neighbor, heard Johnson scream and came to her rescue. Johnson went with Greg into his
apartment and called the police. Officer Gibson responded to the call and went to Johnson's apartment with
her. While Gibson and Johnson were in the apartment, Washington called Johnson several times using her
cell phone. Officer Gibson spoke to Washington during one of these calls, and Washington left several
messages at other times. The records from BellSouth Mobility entered into evidence indicate that
approximately forty-five calls were made from Johnson's cell phone to Johnson's apartment on the evening
of the incident between 8:50 p.m. and shortly after midnight. Johnson testified that approximately one month
after the incident Washington dropped the purse off in the parking lot of her apartment complex, and she
recovered it. Though the purse still contained her checkbook and credit cards, which were no longer of use
to her because she had closed the relative accounts, her cell phone, cash, and camera were not returned.
ISSUES AND DISCUSSION
I. SHOULD THE TRIAL COURT HAVE GRANTED A DIRECTED VERDICT IN
FAVOR OF THE DEFENSE BECAUSE THE PROSECUTION FAILED TO PRESENT
EVIDENCE THAT VIOLENCE CAUSED THE VICTIM TO SURRENDER HER
PURSE?
¶4. Washington was found guilty of robbery pursuant to Miss. Code Ann. § 97-3-73 (Rev. 2000). That
section states:
Every person who shall feloniously take the personal property of another, in his presence or from his
person and against his will, by violence to his person or by putting such person in fear of some
immediate injury to his person, shall be guilty of robbery.
The thrust of the argument Washington submits in this issue is that the State's evidence was insufficient to
support a conviction for robbery and that his motion for a directed verdict should have been granted. He
asserts that the evidence was not sufficient to support the requisite element of the use of force or violence.
¶5. In assessing the legal sufficiency of the evidence on a motion for a directed verdict or a motion for
JNOV, the trial judge is required to accept as true all of the evidence that is favorable to the State, including
all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the
defendant. Yates v. State, 685 So. 2d 715, 718 (Miss. 1996); Ellis v. State, 667 So. 2d 599, 612 (Miss.
1995); Noe v. State, 616 So. 2d 298, 302 (Miss. 1993); Clemons v. State, 460 So. 2d 835, 839 (Miss.
1984). If under this standard sufficient evidence to support the jury's verdict of guilty exists, the motion
should be overruled. Brown v. State, 556 So. 2d 338, 340 (Miss. 1990); Butler v. State, 544 So. 2d
816, 819 (Miss. 1989).
¶6. Adhering to the standard of review to which we are bound, in accordance with Miss. Code Ann. § 973-73 (Rev. 2000), we will first look at the evidence that is favorable to the State's case, including all
reasonable inferences, showing that Washington used force or violence or put Johnson in fear of immediate
injury in order to take her purse. Johnson testified that Washington ran up to her from behind as she
attempted to unlock the door to her apartment. He then pushed her against the wall and grabbed her purse
as she turned around and screamed. She said she did not know if he was going to kill her as she stood
pushed against the wall when he grabbed her purse. She specifically stated that she did not give the purse to
him but that he took it. We find that this evidence alone is sufficient to support the requisite element of
robbery, that Johnson surrendered her purse as a result of being genuinely afraid of being harmed or killed
by Washington during this incident, thereby supporting the trial court's denial of the defense's motion for a
directed verdict.
¶7. We also distinguish Jones v. State, 567 So. 2d 1189, 1192 (Miss. 1990), upon which the appellant
relies. In that case, the court found that there was insufficient evidence to establish that fear caused the clerk
in the convenience store to be robbed because the State put on no proof to show that the defendant put the
clerk in fear in order to take the cigarettes. Though in Jones there was evidence in the record to show that
fear existed, the State did not establish that the fear caused the clerk to be robbed. While we recognize that
fear after a robbery will not suffice to support that it was the cause of the robbery, Clayton v. State, 759
So. 2d 1169, 1172 (¶ 8) (Miss. 1999), we do not find that to be the case in the case sub judice, as the
appellant asserts. Though there was testimony from the officer who responded to the call after the incident
that Johnson was afraid after she was robbed, the record clearly shows that the State properly established,
through Johnson's testimony, that she was in fear when she was robbed. Accepting as true all of the
evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom,
Yates v. State, 685 So. 2d at 718, we find that this testimony supports the reasonable inference that
Johnson was robbed because she was in fear and that the requisite element for robbery was established.
II. DID THE TRIAL COURT FAIL TO PROPERLY INSTRUCT THE JURY THAT IT
WAS REQUIRED TO FIND BEYOND A REASONABLE DOUBT THAT THE
DEFENDANT INTENDED TO PERMANENTLY DEPRIVE JOHNSON OF HER
PERSONAL PROPERTY?
¶8. Washington claims that the failure of the trial court to instruct the jury that the taking of the property
must have been with the intent to permanently deprive the owner of the property was reversible error. He
asserts that a mere finding that the defendant wilfully took and carried away the property of the victim is
insufficient to sustain a conviction for robbery. Johnson v. State, 744 So. 2d 833, 837-38 (¶ 17) (Miss.
Ct. App. 1999). We agree; however, an examination of instruction S-1 given to the jury shows that though
it did not incorporate the words "with intent to permanently deprive," as did instruction D-2, S-1 did state
that the jury was required to find that Washington had feloniously taken the property of Johnson. The
language of S-1 actually tracts that in Miss. Code Ann. § 97-3-73 (Rev. 2000), the statute under which
Washington was indicted. Jury instruction S-1 stated:
The Court instructs the jury that if you believe from the evidence in this case, beyond a reasonable
doubt, that the defendant, Matt Washington, on or about the 22nd day of September, 1998, in the
First Judicial District of Hinds County, Mississippi,
(1) did, with intent to steal, then and there wilfully, unlawfully, and feloniously take the property of
Lorraine Johnson,
(2) in the presence of, from the person of, and against the will of Lorraine Johnson,
(3) by putting the said Lorraine Johnson in fear of immediate injury to her person or by violence to her
person,
(4) said property being a purse and its contents, including good and lawful money of the United States
of America, a cellular telephone, keys and/or any property,
then you should find the defendant guilty of robbery as charged.
Instruction D-2 was in essence identical to instruction S-1 as stated above with the exception that the
words "intent to permanently deprive" were substituted for "with intent to steal."
¶9. It is well-established in the law that a charge of "felonious taking" carries with it an implied assertion of
the requisite intent to permanently deprive the rightful owner of the taken property. Johnson v. State, 744
So. 2d at 837 (¶ 13); State v. Snowden, 164 Miss. 613, 619, 145 So. 622, 622-623 (1933); Black's
Law Dictionary 617 (6th ed.1990). The jury was properly instructed regarding an intent to permanently
deprive the victim of her property, and we find no merit to this argument.
III. DID THE TRIAL COURT ERR IN FAILING TO GRANT AN INSTRUCTION FOR
LESSER OFFENSES OF LARCENY AND ASSAULT?
¶10. Washington argues that the trial court did not properly instruct the jury regarding the lesser- includedoffense of larceny and the lesser offense of assault because it denied jury instructions D-3 and D-4, which
instructed the jury regarding those crimes.
¶11. Johnson was unwavering in her testimony that she did not give her purse to Washington freely and that
she surrendered it as a result of the genuine fear of being harmed or killed by Washington. Though she
testified that the purse itself was later returned, none of the items of value inside the purse were ever
returned. Since Washington did not testify on his own behalf and the defense presented no witnesses, there
was no evidence presented regarding the taking of Johnson's purse and the use of force other than
Johnson's own testimony, which was corroborated to the extent reasonably possible by the testimony of
Officer Gibson. Because there is no alternative account to consider, there is no evidentiary basis for an
instruction, as Washington asserts, that the purse was taken other than by the use of force or that
Washington was guilty of assault. In order to be entitled to a lesser-included-offense instruction there must
be some evidence in the record from which a jury could, other than by mere surmise, find a defendant not
guilty of the crime charged and at the same time find him guilty of a lesser-included- offense. Toliver v.
State, 600 So. 2d 186, 192 (Miss. 1992). Instructions regarding lesser offenses likewise require an
evidentiary basis. Such instructions should be granted only where there is an evidentiary basis in the record.
Mangum v. State, 762 So. 2d 337, 343 (¶ 18) (Miss. 2000). Because there is no evidentiary basis in the
record for assault or larceny, those relevant instructions were properly denied by the trial court.
IV. DID THE TRIAL COURT ERR IN DENYING THE DEFENSE A MISTRIAL FOR
IMPROPER INTRODUCTION OF EVIDENCE OF OTHER WRONGS?
¶12. Washington argues that the trial court erred in failing to grant him a mistrial because the State
introduced evidence of other crimes which prejudiced him to the jury. The record shows that the defense's
motion for a mistrial was based on a response given by Officer Gibson, a State witness, on redirectexamination. However, in order to understand the flow of the questioning, we will begin with Gibson's
testimony on cross-examination in response to questioning by defense counsel. That colloquy follows:
Q. Have you ever personally spoken with Matt Washington?
A. Yes. After this incident I met him several times.
Q. You met with Matt several times after this incident?
A. Yes.
Q. And in what context did you meet with him?
A. The area that I patrolled. He frequented that area that I patrolled.
Immediately following this colloquy on cross-examination, Gibson was questioned on redirect- examination
regarding Gibson's recognition of Washington's voice, since Gibson testified that he had spoken with
Washington on the telephone when he called to Johnson's apartment following the incident. The colloquy on
redirect-examination follows:
Q. And the times that you spoke with this defendant, visited with him or ran into him while you were
on patrol was there any kind of conversation going on? Did you hear him speak?
A. Yes. . . .
Q. And having actually spoken with this defendant . . . would you tell us whether or not that in any
way - - did it confirm or contradict the identity of the person that had stolen Mrs. Johnson's purse?
A. Well, one incident where I pulled him over one night - Q. Excuse me. Did it confirm or contradict what you were told by Mrs. Johnson?
A. It was confirmed.
The defense stated in its motion for a mistrial, "Your Honor, our first motion is a motion for a mistrial based
on the officer's response that he pulled Matt over, going into other crimes and evidence." Defense counsel
went on to say that the statement was prejudicial to Washington.
¶13. The record shows that Officer Gibson did not testify on redirect-examination regarding any other
wrongs committed by Washington, as the above colloquy shows. In fact, the record shows that Gibson
merely stated that he had heard Washington speak and had pulled him over on one occasion. Gibson did
not mention for what reason he pulled him over. Based on the record evidence there was no explicit
mentioning of other wrongs when Officer Gibson said that he pulled Washington over. Furthermore, a
predicate had been established indicating the context in which Gibson had spoken with Washington. That
was not in regard to other crimes but in regard to Gibson's being familiar with Washington because he either
worked or lived in the area patrolled by Gibson. The record does not show that there is a basis for an
objection to the statement as evidence of other crimes or wrongs under M.R.E. 404 (b) since Gibson's
statement did not mention evidence of other crimes. In addition, the defense specifically requested that the
court not instruct the jury to ignore any reference to any wrongs inferred by Gibson's statement when the
trial court overruled its motion for a mistrial because that would have highlighted the statement. When
M.R.E. 404 (b) evidence is offered and an objection to that evidence is overruled, that objection invokes
the right to an M.R.E. 403 balancing analysis and a limiting instruction. Smith v. State, 656 So. 2d 95, 100
(Miss. 1995). Because the defense objected to the limiting instruction in this case, an analysis grounded on
M.R.E. 403 would not have been invoked even if Gibson's statement had mentioned other crimes or
wrongs.
¶14. Any other basis for Washington's objection to Gibson's statement was waived since an objection on
one or more specific grounds constitutes a waiver of all other grounds. Stringer v. State, 279 So. 2d 156,
158 (Miss. 1973). In addition, the record shows that the only evidence of other wrongs was introduced
during cross-examination of Johnson by the defense where she stated that she had previously taken
Washington to court for stalking charges. Because there was no contemporaneous objection made in
regard to this statement, the issue has been waived. Dunaway v. State, 551 So. 2d 162, 164 (Miss. 1989)
. The record further shows that there was no request by the defense for the trial court to instruct or
admonish the jury to disregard any references to any other crimes or wrongs inferred by this or any other
statement.
¶15. During direct examination Johnson stated that Washington had made rude and threatening telephone
calls to her. The defense objected to that statement on the basis of relevancy but appeals the statement as
evidence of other wrongs or acts. An objection on one or more specific grounds constitutes a waiver of all
other grounds. Conner, 632 So. 2d at 1255. Again, there was no request by the defense for the trial court
to instruct or admonish the jury to disregard any references to other wrongs to which that statement may
have inferred.
¶16. We do not find the trial court erred in overruling the defense's motion for a mistrial. The trial judge is in
the best position for determining the prejudicial effect of an objectionable comment. Alexander v. State,
602 So. 2d 1180, 1182 (Miss. 1992). The judge is thus vested with discretion to determine whether the
comment is so prejudicial that a mistrial should be declared. Edmond v. State, 312 So. 2d 702, 708
(Miss. 1975). His decision will not be overturned on appeal unless it was an abuse of discretion. Davis,
684 So. 2d at 661; Johnston, 567 So. 2d at 238. The appellant must show that he was effectively denied a
substantial right by the ruling before a reversal can be possible. Peterson v. State, 671 So. 2d 647, 656
(Miss. 1996); Newsom, 629 So. 2d at 614. If a constitutional right has been violated, the case must be
reversed unless the Court finds that the "error was harmless beyond a reasonable doubt" upon
consideration of the entire record. Newsom, 629 So. 2d at 614.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION
OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., PAYNE, BRIDGES, THOMAS,
MYERS AND CHANDLER, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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