Reggie Mitchell v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00544-COA
REGGIE MITCHELL
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
02/14/2000
HON. JANNIE M. LEWIS
HOLMES COUNTY CIRCUIT COURT
MARY A. BROWN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY:
JAMES H. POWELL III
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
MURDER, SENTENCE OF LIFE IMPRISONMENT IN
THE CUSTODY OF MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
DISPOSITION:
AFFIRMED - 10/02/2001
MOTION FOR REHEARING FILED: 11/13/2001; denied 1/8/2002
CERTIORARI FILED:
MANDATE ISSUED:
1/29/2002
BEFORE SOUTHWICK, P.J., LEE, AND MYERS, JJ.
LEE, J., FOR THE COURT:
¶1. The appellant and defendant below, Reggie Mitchell, was indicted in the Circuit Court of Holmes
County for the murder of James Wash, pursuant to Miss. Code Ann. § 97-3-19(1) (Rev. 2000). His first
trial ended in a mistrial. Following a second trial, he was found guilty and sentenced to life imprisonment.
Aggrieved by the judgment rendered against him, Mitchell has perfected an appeal to this Court, asserting
that: (1) the admission of expert testimony regarding the cause of death was plain error, (2) the prosecution
insinuated wrongful conduct when questioning Mitchell without having first established a factual basis for the
conduct, and (3) the verdict was contrary to the weight of the evidence or, in the alternative, the evidence
was insufficient to support the verdict. Finding no reversible error, we affirm.
EVIDENTIARY FACTS
¶2. Reggie Mitchell admits to having shot James Wash on Sunday morning, November 1, 1998; however,
he claims that he did so in self-defense. The events leading to this unfortunate incident, which resulted in
Wash's death sixteen days later, began when Mitchell was driving his neighbor's car and was asked to go to
the store to get beer. With Mitchell was the owner of the car, Ricky Landfair, and Lonnie Grove. As
Mitchell approached his house, James Wright, who was with Wash, flagged down Mitchell and asked him
to go to the store to buy some beer. Mitchell answered that he would go to the store for two dollars.
According to Mitchell, Wash told Mitchell that since Mitchell was not driving his own car, that he had no
"say-so", and called Mitchell an "old trick ass n-----." Following this exchange, Mitchell went to the store,
purchased the beer, and returned.
¶3. In the neighborhood where the events leading to the shooting and the shooting itself took place, three
homes are situated side-by-side. The occupants of these homes are related to each other. The first is the
abode of Mitchell, which actually belongs to Mitchell's cousin, Robert Landfair. Next door to this house is
the mobile home of Marcus Landfair. Adjacent to this is the home of Lucinda Wright, with whom her
grandson, Carlos March, lived.
¶4. The argument between Mitchell and Wash resumed upon Mitchell's return from the store. Mitchell
testified that when he returned, Wright was in the yard with a baseball bat on his shoulder. Mitchell said that
when he went inside his house, Wash yelled at him for twenty minutes. Mitchell then put pepper spray in his
pocket and went outside where Wright still had the baseball bat. Lonnie Grove testified that Mitchell
sprayed Wash prior to being grabbed and thrown by Wash; however, Mitchell said he sprayed Wash after
Wash threw him down. Amidst the bedlam, Mitchell sprayed the pepper spray into his own eyes when he
sprayed Wash. Wash had Mitchell in a headlock in Marcus Landfair's yard but let Mitchell go when Carlos
March told Wash to let him loose. When Wash released Mitchell, Mitchell went into his house and Wash
went into Wright's house where both proceeded to wash off the pepper spray.
¶5. About ten minutes later Wash, Wright, Grove, March, and Ricky Landfair were congregated under a
tree in Lucinda's back yard when a shot was fired. Wash fell back and was bleeding from the top of his
head. At that time Grove, March, and Robert Landfair said they saw Mitchell leave his house from the front
and pull off in Ricky Landfair's car. Wash was taken to the hospital where he later died.
ISSUES
I. DID THE ADMISSION OF EXPERT TESTIMONY REGARDING THE CAUSE OF
DEATH CONSTITUTE PLAIN ERROR?
¶6. Dr. Steven Hayne was stipulated as an expert in the field of forensic pathology. Dr. Hayne had
performed the autopsy on Wash and testified unequivocally that Wash died from a gunshot wound to the
top of the head. Dr. Hayne stated that the wound produced significant injury to the brain and resulted in
Wash's hospitalization for sixteen days, during which he developed bronchial pneumonia and died. Mitchell
now argues that because Dr. Hayne did not examine Wash until after his death that Dr. Hayne could not
have known if Wash had contracted pneumonia prior or subsequent to his injury. In short, Wash may have
been so ill with pneumonia prior to having been shot that he would have died anyway.
¶7. Mitchell relies upon M.R.E. 103(d) which permits the notice of plain errors affecting one's substantial
rights, though the errors were not brought to the attention of the trial court. Grubb v. State, 584 So. 2d
786, 789 (Miss. 1991). In Porter v. State, 749 So.2d 250, 261 (¶36) (Miss. Ct. App.1999), we
recognized that an error is plain if it "affects substantive rights of the defendant." When this Court analyzes a
case to determine if plain error has occurred, we must ask if there is anything that "seriously affects the
fairness, integrity or public reputation of judicial proceedings." Id. This Court must look to see if there was
some violation of a legal rule that was "plain," "clear," or "obvious" and whether a violation of such rule was
prejudicial on the result of the trial. Id.
¶8. Mitchell's argument is premised on the incorrect perception of the legal effect of preexisting, contributing
or intervening cause of death. The fact that the actual mechanism of Wash's demise was bronchial
pneumonia in no way absolves Mitchell of liability. The law is well settled that where the act of the accused
contributed to the death, he is not relieved of responsibility by the mere fact that other factors or causes also
contributed to the death of another. Holliday v. State, 418 So. 2d 69, 71 (Miss. 1982). Dr. Hayne's
testimony clearly shows that the gunshot wound directly and materially contributed to Wash's death. Other
contributing causes are of no legal consequence.
¶9. The cases cited by Mitchell in support of his appeal are inapplicable. First, in this case there was no
expert evidence in regard to the cause of death, as was presented in Watts v. State, 210 Miss. 236, 239,
49 So. 2d 240, 241 (1950). The evidence presented by the expert in Wild v. Bass, 252 Miss. 615, 62728, 173 So .2d 647, 651-52 (1965), did not involve an opinion pursuant to having performed an autopsy.
Rather, the case concerned an opinion which was based on matters which were not within the expert's own
knowledge and which were not in evidence in the case. Id. This is simply not the case sub judice. Dr.
Hayne testified that a person in Wash's condition who had received a gunshot wound would have problems
clearing secretions and fluids in the lungs and that this would influence the development of pneumonia during
hospitalization. Dr. Hayne also noted a tracheoscopy incision on Wash's anterior neck, which he stated also
influenced the development of pneumonia. Dr. Hayne certainly did not testify in regard to matters not within
his personal knowledge as the court concluded that the expert in Wild did. We find no merit to Mitchell's
claim that the admission of this testimony constitutes plain error.
II. DID THE PROSECUTION PREJUDICE MITCHELL DURING CROSSEXAMINATION BY INSINUATING WRONGFUL CONDUCT ON HIS PART
WITHOUT HAVING FIRST ESTABLISHED A FACTUAL BASIS FOR HIS CONDUCT?
¶10. The defense questioned, on cross-examination, the first two witnesses for the State regarding whether
a baseball bat was present when the incident occurred. The presence of a baseball bat had not previously
been mentioned in the trial, and we note that it was the defense which introduced the subject as the essence
of Mitchell's defense. The State then asked all of its subsequent witnesses who were at the scene of the
shooting, including Robert Landfair, if they had seen a bat. These witnesses answered that they had not.
After the State rested, Mitchell testified and the State questioned him on cross regarding the bat as follows:
Q: What about the baseball bat? I didn't hear nobody say anything about that.
A: In the last trial, Robert Landfair said he saw that guy with a baseball bat or a stick or something.
Q: No, you know better than that.
A: Oh, yes. Oh yes, he did. He changed his statement in this trial.
Q: The only one who has changed his statement is you.
A: No, my statements are exactly the same, and you've got the transcript to prove it.
Q: I do. I sure do, and we've already gone through the part about the pepper spray and it's not
exactly the same. . . .
¶11. The most notable feature of this exchange is the absence of an objection. An issue cannot be raised for
the first time on appeal. Brown v. State, 763 So. 2d 189, 192 (Miss. Ct. App. 2000). An error is waived
where no contemporaneous objection is made. Id. Furthermore, we will not call plain error to the rescue
since it was Mitchell himself who made the first reference to the inconsistent testimony nonresponsively to
the State. Mitchell cannot complain on appeal concerning evidence he himself brought to trial. Fleming v.
State, 604 So. 2d 280, 289 (Miss. 1992).
III. WAS THE VERDICT CONTRARY TO THE WEIGHT OF THE EVIDENCE OR, IN
THE ALTERNATIVE, WAS THE EVIDENCE INSUFFICIENT TO SUSTAIN THE
VERDICT?
¶12. 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). 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). A finding that the evidence is insufficient results in a discharge of the defendant. May v.
State, 460 So. 2d 778, 781 (Miss. 1984).
¶13. Where the weight of the evidence, as opposed to the sufficiency, is challenged, the jury's verdict is
vacated on grounds relative to the weight of the evidence so that a new trial is granted rather than a final
discharge. Id. In determining whether a jury verdict is against the overwhelming weight of the evidence, the
court must accept as true the evidence which supports the verdict and will reverse only when convinced that
the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So. 2d 948,
957 (Miss. 1997) (citing Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989)). Only when the verdict
is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will it be disturbed on appeal. Benson v. State, 551 So. 2d 188, 193 (Miss.
1989) (citing McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987)). The motion, however, is addressed
to the discretion of the court, which should be exercised with caution, and the power to grant a new trial
should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th Cir.1971). Thus, our scope of review on this issue is
limited in that all evidence must be construed in the light most favorable to the verdict. Mitchell v. State,
572 So. 2d 865, 867 (Miss. 1990).
¶14. In this appeal, Mitchell seeks relief in the form of a reversal and discharge or, in the alternative, remand
to the trial court for a new trial. The former is a consequence of legal insufficiency of the evidence while the
latter is the product of an examination of evidentiary weight. May, 460 So. 2d at 781. The evidence to be
evaluated regarding sufficiency for sustaining a conviction for murder, and the evidence relevant to
ascertaining whether the jury's verdict was against the overwhelming weight will be the same in this case;
evidence regarding sufficiency requires the court to accept as true all evidence favorable to the State, Yates,
685 So. 2d at 718, and evidence regarding weight limits our review to that construed in the light most
favorable to the verdict. Mitchell, 572 So. 2d at 867.
¶15. Mitchell admits that he shot Wash, but he claims he did so in self-defense. The question is whether the
evidence supports deliberate design. Malice or deliberate design may be inferred from the use of a deadly
weapon. Carter v. State, 722 So. 2d 1258, 1263 (Miss. 1998). Evidence supporting deliberate design
includes the testimony of Lonnie Grove, who testified that Wash was kneeling next to him under a tree with
his head down and using a towel, trying to get the pepper spray out of his eyes when he was shot. This is
contrary to Mitchell's testimony that Wash was coming toward him in aggression. Grove's testimony was
corroborated by that of Ricky Landfair and Carlos March, who were also there. The expert testimony that
Wash was shot in the top of his head also corroborates Lonnie Grove's testimony that Wash was kneeling
under a tree with his head down when he was shot. Furthermore, inferences could be drawn from the
testimony of Officer Harrison, who was called to the scene after the shooting. He testified that the bullet
hole in the window screen from which Mitchell shot was at the bottom of the screen and that the bottom of
the window was approximately two feet from the floor, inferring that Mitchell knelt when he fired, taking
careful aim, as opposed to shooting to simply frighten Wash and Wright, as Mitchell asserted that he did. In
addition, there is the voluntary statement made by Mitchell regarding the shooting, which was overheard by
Officer Harrison in the jailhouse, where Mitchell stated that he tried to shoot Wash between the eyes.
¶16. Nevertheless, Mitchell asserts that he shot from inside his house because Wash was coming toward
him in the yard with Wright, who had a baseball bat, and he feared for his safety. The record shows that the
only evidence supporting self-defense is Mitchell's testimony. Mitchell and Marcus Landfair were the only
defense witnesses and the record does not indicate that Marcus's testimony served to boost Mitchell's
defense. Marcus testified he had been asleep and that he got out of bed when he heard a shot and saw
Wash on the ground with a baseball bat in front of him. Marcus's testimony was discredited when he
inferred that he was familiar with the bat because it was the same bat he used when he played baseball but
could not describe it and did not know if it was an aluminum bat.
¶17. When taken in light most favorable to the verdict, the evidence is overwhelming that Mitchell aimed
and fired at an unarmed victim. Consequently, there exists no basis for disturbing the jury's resolution of the
factual issues before it. Hart v. State, 637 So. 2d 1329, 1341 (Miss. 1994). We find the evidence
sufficient to support the verdict and that the verdict is not contrary to the weight of the evidence.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF HOLMES COUNTY OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO HOLMES COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT
ONLY.
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