Gretchen Black v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01536-COA
GRETCHEN BLACK
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
05/12/1999
HON. BARRY W. FORD
LEE COUNTY CIRCUIT COURT
JOHN DAVID WEDDLE
ANGELA NEWSOM SNYDER
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
JOHN RICHARD YOUNG
CRIMINAL - FELONY
CONVICTION OF MURDER AND SENTENCED TO
SERVE A LIFE SENTENCE.
AFFIRMED - 03/12/2002
3/22/2002; denied 6/18/2002
6/28/2002; denied 9/5/2002
BEFORE KING, P.J., THOMAS, AND MYERS, JJ.
MYERS, J., FOR THE COURT:
¶1. Gretchen Black was arrested on October 4, 1997, for the murder of James Lewis Black. Gretchen
Black was convicted in the Circuit Court of Lee County on May 12, 1999, and sentenced to serve a life
sentence in the custody of the Mississippi Department of Corrections. Black filed a motion for judgment
notwithstanding the verdict or, alternatively, new trial which was summarily denied by the trial court.
Aggrieved by this decision, Black perfected this appeal raising the following issues:
1. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE
TRANSCRIPT OF BLACK'S INTERVIEW WITH A POLICE INVESTIGATOR;
2. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO REVIEW
COPIES OF THE TRANSCRIPT IN THE JURY ROOM DURING A BREAK IN THE
TRIAL;
3. WHETHER THE TRIAL COURT ERRED IN ALLOWING A REBUTTAL WITNESS
TO TESTIFY;
4. WHETHER THE TRIAL COURT ERRED IN DENYING BLACK'S MOTION TO
SUPPRESS HER JOURNAL;
5. WHETHER THE TRIAL COURT FAILED TO PROVIDE BLACK A SPEEDY TRIAL;
AND
6. WHETHER THE VERDICT REACHED BY THE JURY WAS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
STATEMENT OF FACTS
¶2. Gretchen Black shot her estranged husband, James Lewis Black, on October 4, 1997. Black was
arrested the same day. Black was indicted for the crime of murder on February 23, 1998, and arraigned on
March 26, 1998, at which time Black was first provided a court-appointed attorney. Black pled not guilty
alleging that she had acted in self-defense. A trial was had and Black was convicted and sentenced on May
12, 1999.
¶3. During the course of the trial, the State offered and the trial court admitted into evidence Black's signed
statement taken by the police and the recorded interview also taken by the police. Additionally, the State
sought to introduce the transcript of Black's recorded interview. The trial court allowed the transcript to be
admitted into evidence and, additionally, allowed the jurors to take copies of the transcript with them into
the jury room during a recess prior to the State resting its case- in-chief. The trial court allowed the State to
call a rebuttal witness who had remained in the courtroom after the rule of sequestration had been invoked
by Black. Further, the trial court allowed Black's journal to be admitted into evidence wherein Black wrote
of her plans to murder her husband. After all the foregoing was admitted into evidence, Black was found
guilty and sentenced to serve a life term in the custody of the Mississippi Department of Corrections. Black
moved for judgment notwithstanding the verdict or, alternatively, a new trial. The trial court denied these
motions and Black filed the present appeal.
LEGAL ANALYSIS
1. WHETHER THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE
TRANSCRIPT OF BLACK'S INTERVIEW WITH A POLICE INVESTIGATOR.
¶4. Black first contends that the trial court erred when it admitted the transcript of her taped interview with
the police into evidence. The transcript consisted of notes the interviewing officer had taken while
conducting the recorded interview. Black asserts that the transcript was not properly authenticated. The
relevancy and admissibility of evidence are within the trial judge's discretion. Eskridge v. State, 765 So. 2d
508, 509 (¶7) (Miss. 2000). This Court will reverse only where the trial judge has abused his discretion. Id.
"The discretion of the trial judge, however, must be exercised within the boundaries of the Mississippi Rules
of Evidence." Henderson v. State, 732 So. 2d 211, 213 (¶13) (Miss. 1998). Mississippi Rule of Evidence
901 governs the authentication of documents and provides that authentication of a document is a condition
precedent to it being admissible. M.R.E. 901.
¶5. The officer who produced the transcript testified that he took the notes while conducting Black's
recorded interview. The officer further testified that he was present at the time the interview was recorded
and that the transcript accurately reflected the substance of the interview. The officer also stated that he had
not reviewed the tape since making the transcript. The supreme court in its decision in West v. State,
determined that a statement that was tape-recorded and later transcribed was properly authenticated where
a police officer who was present while the tape-recording occurred testified that the transcript fairly and
accurately depicted what was on the tape. West v. State, 463 So. 2d 1048, 1055 (Miss. 1985). We find
the current situation analogous. The officer conducting Black's interview was present while the interview
was tape-recorded. The officer testified under oath that the transcript he made while interviewing Black
fairly and accurately reflected their taped conversation. The transcript was properly authenticated. The trial
judge did not abuse his discretion in allowing the transcript to be admitted into evidence. This issue is
without merit.
2. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO REVIEW
COPIES OF THE TRANSCRIPT IN THE JURY ROOM DURING A BREAK IN THE
TRIAL.
¶6. Black next contends that the trial court erred when it allowed the jury to review copies of the transcript
in the jury room during a break in the trial prior to the State resting its case-in-chief. The State requested
that the jury be allowed to review the transcript during a recess as the document was lengthy. Black
contends that this caused the jury to bolster the evidentiary value of the transcript and, as such, prejudiced
her case. We have already determined that the transcript was properly authenticated and admitted into
evidence. The supreme court has determined that it was not error for the trial court to allow the jury to
carry exhibits into the jury room prior to the jury being released to deliberate the case. Huey v. Port
Gibson Bank, 390 So. 2d 1005, 1007 (Miss. 1980). In Huey, however, the jury was allowed to carry
back exhibits from both sides of the case. Id. Black's jury was only allowed to carry the transcript to the
jury room during the one recess. We can find no prejudice in this instance flowing from the trial court's
decision to allow the jury to review the transcript during a recess as Black's signed statement and the entire
tape-recorded interview which contained the same statements made by Black were also introduced into
evidence and given to the jury to consider during its deliberations. This Court does not approve of the
process of allowing the jury to view the evidence in a piecemeal fashion and would discourage the trial
courts from allowing the jury to take evidence into the jury room prior to the commencement of
deliberations. In this instance no prejudice flowed from the jury taking copies of the statement to the jury
room for the reasons discussed above. This issue is without merit.
3. WHETHER THE TRIAL COURT ERRED IN ALLOWING A REBUTTAL WITNESS
TO TESTIFY.
¶7. Black asserts that the trial court erred when it allowed the State to call a witness who was present
during the course of most of the testimony presented in the case after Black had invoked the rule of
sequestration and had all witnesses excluded from the court room. Mississippi Rule of Evidence 615
provides that upon the request of a party the trial court shall order the witnesses excluded from the
courtroom while other witnesses are testifying so that they may not hear the other witnesses' testimony.
M.R.E. 615. Once the rule has been violated by a witness, it is within the trial court's discretion to
determine what remedy to apply. Rochell v. State, 748 So. 2d 103, 113 (¶36) (Miss. 1999). "Remedies
may include prospectively excluding the witness where prejudice will otherwise ensue; striking the witness's
testimony where connivance gave rise to the testimony; striking the witness's testimony where the testimony
gave rise to prejudice; or, most appropriately, allowing the other party to subject the witness to a 'full-bore
cross-examination' on the facts of the rule violation." Id. The trial court limited the witness's testimony on
direct and allowed Black to subject the witness to a full-bore cross-examination. The remedy provided by
the trial court was permissible and cured any prejudice created by the witness remaining in the courtroom
improperly during the course of the trial. This issue is without merit.
4. WHETHER THE TRIAL COURT ERRED IN DENYING BLACK'S MOTION TO
SUPPRESS HER JOURNAL.
¶8. Black contends as her next point of error that the trial court erred when it denied her motion to suppress
the introduction into evidence of her journal which contains an entry made the day Black admittedly shot her
husband wherein Black stated that if her husband was at the farm that "he was dead." Black contends on
appeal that the journal was not properly authenticated when it was admitted into evidence. As previously
stated in the first issue raised by Black, the admissibility of evidence rests within the trial judge's discretion.
Eskridge, 765 So. 2d at 509 (¶7). Mississippi Rule of Evidence 901 requires that evidence be properly
authenticated prior to its admittance into evidence. M.R.E. 901. "A person's handwriting may be
authenticated by a handwriting expert or by a lay witness with a prior familiarity with that person's
handwriting." Sewell v. State, 721 So. 2d 129, 139 (¶57) (Miss. 1998). The journal was authenticated by
Black's son who stated that the handwriting contained in the journal was his mother's handwriting and that,
while he had not observed his mother writing in this particular journal, he had observed her writing in
journals. Further, the inside cover of the journal indicated that the journal was the property of Black and
was found in Black's house next to Black's chair. The trial court did not abuse its discretion in allowing the
journal to be admitted into evidence. This issue is without merit.
5. WHETHER THE TRIAL COURT FAILED TO PROVIDE BLACK A SPEEDY TRIAL
¶9. Black contends that she was denied a speedy trial. The record indicates that Black was arrested
October 4, 1997; indicted February 23, 1998; arraigned March 26, 1998; and convicted and sentenced
May 12, 1999. "The constitutional right to a speedy trial attaches at the time of a formal indictment,
information, or arrest." Birkley v. State, 750 So. 2d 1245, 1249 (¶11) (Miss. 1999). This Court utilizes the
balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972), to determine whether a defendant
has received a speedy trial. Birkley, 750 So. 2d at 1249 (¶11). "The factors to be considered are: (1)
length of delay; (2) reason for the delay; (3) whether the defendant has asserted his right to a speedy trial;
and (4) whether the defendant was prejudiced by the delay." Id. In weighing these factors, the totality of the
circumstances must be considered. Id. at (¶12).
¶10. The analysis of the Baker factors begins with the first factor, length of delay, as it operates as a
triggering mechanism. Id. at (¶13). If calculated from the date of arrest, the length of delay for Black was
nineteen months. Any delay of eight months or more is presumptively prejudicial to the defendant. Id. at
(¶14). The nineteen month delay in this case is presumptively prejudicial and triggers a further analysis of the
Baker factors. While the length of the delay itself favors Black, it should be noted that Black filed a motion
for continuance on April 3, 1998, for a psychiatric evaluation which the trial court approved. Further, the
State filed a motion requesting the trial court to order a trial date on September 18, 1998, as Black had
failed to provide her paperwork to the state hospital. Black filed a response to the State's motion on
September 23, 1998, seeking to have the mental evaluation conducted before trial was had. The trial court
allowed Black the time needed to complete the paperwork and have the evaluation. On February 19,
1999, Black again requested a continuance so that she could be evaluated by a local psychiatrist. The trial
court also allowed this continuance. Trial was eventually had on this matter and Black was convicted in
May of 1999.
¶11. As previously discussed, twelve months of the delay may be attributed to continuances sought by
Black. "[I]f the defendant caused the delay, he will not be allowed to complain." Stogner v. State, 627 So.
2d 815, 818 (Miss. 1993). As Black caused the majority of the delay, she cannot complain about the
length of time between her arrest and trial. The reason for the delay weighs heavily in favor of the State.
¶12. Black did not assert her right to a speedy trial until presenting the issue for the first time in her motion
to dismiss filed on April 20, 1999. This factor favors the State as Black did not assert her right to a speedy
trial until three weeks before the trial was conducted. The accused does not have the duty to bring herself to
trial, but gains more points under this factor where she has asserted her right to a speedy trial in a timelier
fashion. Stogner, 627 So. 2d at 819.
¶13. The final factor for consideration is the prejudice to Black as a result of the delay. The right to a
speedy trial is designed to protect three important "interests of the defendant: a) protect against oppressive
pretrial incarceration; b) minimize anxiety and concern of the defendant; and c) limit the possibility that the
defense will be impaired." Birkley, 750 So. 2d at 1252 (¶24). Black contends that she was prejudiced by
the length of her incarceration before trial. While Black caused the majority of the delays in this trial, the trial
was nevertheless delayed resulting in prejudice to Black. This factor favors Black.
¶14. Upon weighing the Baker factors, the length of the delay and the prejudice caused by that delay weigh
slightly in favor Black. The reason for the delay weighs heavily in favor of the State as the majority of the
delay was caused by continuances granted to Black. Further, Black did not assert her right to a speedy trial
until three weeks prior to the actual trial. This factor also favors the State. Upon evaluating each factor and
examining the totality of the circumstances, Black was not denied her right to a speedy trial. This issue is
without merit.
6. WHETHER THE VERDICT REACHED BY THE JURY WAS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
¶15. Black's final contention is that the verdict returned against her was against the overwhelming weight of
the evidence. Black first challenged the weight of the evidence at the conclusion of the prosecution's case
with a motion to dismiss. Black again challenged the weight of the evidence with a motion for judgment
notwithstanding the verdict or, alternatively, new trial. On appeal this Court reviews the lower court's ruling
on the last occasion the weight of the evidence was challenged before the lower court, i.e., on Black's
motion for JNOV/new trial. Wetz v. State, 503 So. 2d 803, 807 (Miss. 1987). In reviewing the trial
court's denial of Black's motion for new trial, all evidence is viewed "in the light most favorable to the
verdict." Id. at 808. "The prosecution must be given the benefit of all favorable inferences that may be
reasonably drawn from the evidence." Id. This Court will reverse only where the evidence is "such that
reasonable and fair-minded jurors could only find the accused not guilty." Id. The jury acts as the judge of
the credibility of witnesses where conflicting testimony is presented. Id. at 813.
¶16. At trial, the State presented the next door neighbor of James Black who heard the shots fired by
Gretchen Black. The neighbor also saw Gretchen Black's car leaving the scene after the shots were fired.
The State also offered the testimony of Black's son who testified that Black called him and told him that she
had shot James Black. Further, the State presented police officers present during Black's arrest and
subsequent interview who stated that Black admitted to shooting her husband. Finally, Black admitted in
open court that she shot her husband. Black does contend that she only shot her husband because she was
afraid of him, essentially raising the defense of self-defense. However, no weapons were found on the
victim's body or near his person. The State presented sufficient evidence for the jury to find that Black
murdered her husband. The verdict is not against the overwhelming weight of the evidence. This issue is
without merit.
CONCLUSION
¶17. The transcript of Black's interview was properly authenticated and admitted into evidence. It was
permissible for the trial court to allow the jury to review the transcript in the jury room during a trial recess.
The trial court did not err in allowing the State to call a rebuttal witness who had remained in the courtroom
after Black had invoked the rule of sequestration as the trial court allowed a full-bore cross-examination of
the witness. Black's journal was properly authenticated and admitted into evidence. Black was not deprived
of her right to a speedy trial as the majority of the delay created in this case was of Black's own volition.
Finally, the jury's verdict was not against the overwhelming weight of the evidence as reasonable jurors
could have found Black guilty of murder.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF LEE 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 LEE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
CHANDLER AND BRANTLEY, JJ., CONCUR. IRVING, J., CONCURS IN RESULT
ONLY.
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