Glenn Chapman v. Trapp Williams
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CA-01057-COA
GLENN CHAPMAN
APPELLANT
v.
TRAPP WILLIAMS
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
5/17/2002
HON. ROBERT WALTER BAILEY
CLARKE COUNTY CIRCUIT COURT
JOHN E. HOWELL
GEORGE C. WILLIAMS
CIVIL - PERSONAL INJURY
ORDERED THAT DEFENDANT RECOVER
$10,000, PLUS INTEREST AT A RATE OF 8%
UNTIL PAID, TOGETHER WITH ALL COURT
COSTS
AFFIRMED-12/02/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1.
A Clarke County jury, finding that Glenn Chapman maliciously prosecuted an aggravated assault
charge against Trapp Williams, returned a $10,000 verdict against Chapman, and a judgment was entered
accordingly. Before us is Chapman's appeal which presents the following issues: (1) whether the verdict
of the jury is contrary to the overwhelming weight of the evidence, (2) whether the court erred in admitting
a videotape into evidence, and (3) whether the jury was properly instructed.
¶2.
Discerning no error, we affirm.
FACTS
¶3.
On October 18, 1999, between 6:15 and 6:30 p.m., Glenn Chapman was shot from behind while
on his property in rural Clarke County. Chapman was shot while working on a fence line that ran north
and south between his property and Trapp Williams's property.
¶4.
Chapman filed a civil complaint against Williams, alleging that Williams had shot him. Also,
Chapman swore out a criminal affidavit against Williams, charging him with aggravated assault. The case
was presented to a grand jury which declined to indict Williams.
¶5.
Williams subsequently filed a counter-claim against Chapman for slander and malicious prosecution.
The matter proceeded to trial, and, as previously mentioned, the jury returned a verdict for Williams on his
counter-claim in the amount of $10,000.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. The Weight of the Evidence
¶6.
Chapman first argues that the verdict of the jury is contrary to the overwhelming weight of the
evidence. He explains that “the jury ignored the evidence and the proof as well as the instructions of the
court.” This argument implicates the discretion of a trial judge in denying an appellant's motion for a new
trial. However, Chapman failed to offer a motion for a new trial after the rendering of the judgment and
thus is prevented from challenging on appeal the weight of the evidence. Smith v. State, 716 So. 2d 1076,
1078 (¶13) (Miss. 1998). Whether the verdict is against the overwhelming weight of the evidence is a
matter which the trial judge must decide first, before any appeal is taken, so that the trial judge may have
an opportunity to pass upon the validity of the allegation before an appellate court is called upon to review
the matter. Id. Since Chapman failed to move for a new trial, he is barred from raising this issue here. Id.
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2. Admission of the Videotape
¶7.
During the cross-examination of Printiss McCarra, one of Chapman's witnesses, Williams's counsel
sought to introduce into evidence a copy of a videotape made by McCarra on October 18, 2001, two
years after the shooting. Chapman immediately objected on the basis that the videotape was not listed on
the pretrial order as a defense exhibit. The court ruled that the videotape would be admitted and shown
to the jury. Chapman then objected again and requested that the court view the videotape and allow him
to be heard before it was shown to the jury. The court granted the request, dismissed the jury for the day
and ordered that the videotape be played in the presence of the court and counsel. Shortly after the
videotape began playing, the court ordered the playing stopped and stated that it was reversing its previous
ruling allowing the videotape into evidence.
¶8.
The court acknowledged that there was no way to determine whether the October 18, 2001
videotape reasonably depicted the scene on October 18, 1999, the evening of the shooting. The judge,
however, allowed Williams to have the tape marked for identification. The judge further explained that,
to the extent that the videotape possessed any impeachment value, the same could be accomplished through
cross-examining McCarra and eliciting testimony from another witness, J. G. Kufel, to refute McCarra's
assertions as to what could be seen.
¶9.
On the following morning, Williams reasserted to the judge that he wanted to introduce the
videotape. Williams explained that he was not offering the videotape to depict the conditions that existed
on October 18, 1999, but sought to attack McCarra’s credibility. According to Williams, the videotape
demonstrated that McCarra was mistaken as to the time he allegedly saw J. G. Kufel and another witness,
Buddy Williams, approach the area where he was filming. Moreover, Williams explained that McCarra
was inaccurate in his testimony concerning the degree of visibility at the scene that particular evening. To
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rebut Williams’s arguments, Chapman questioned the accuracy of both the videotape’s recording of the
scene and the time displayed on the videotape. After listening to both sides, the trial judge responded:
BY THE COURT: All right. Well, I am going to have the video admitted into evidence as
Exhibit 9. This video was made two years after this occurrence occurred. The reason I
am allowing it into evidence is not to depict the conditions of the scene as they existed on
October 18, 1999, but Mr. McCarra has testified to certain things that he could see. I feel
like counsel should have the opportunity to use this video that this witness made to attempt
to impeach him. As to whether the accuracy or -- not the accuracy, but how good the
video or camera was, that is -- I am going to let you -- you can argue that. But the jury
can look at the video and make its own determination. So I will have it marked as Exhibit
9. I don’t think that the -- I am allowing the video to be used for cross-examination or
impeachment purposes, and like I said, not to show the conditions. So I don’t think the
whole video should be just sat down and played for the jury. If you -- so that will be my
ruling. Okay. So have it marked. . . .
¶10.
Chapman argues that no foundation was laid for admission of the entire videotape, that the court
failed to make a Rule 403 balancing analysis and that, although the videotape was admitted for
impeachment purposes only, no such impeachment occurred. Williams counters that the videotape was
not intended to depict the scene as it existed on October 15, 19991. He explains that Chapman put
McCarra on the stand to testify to the conditions on October 18, 2001, two years after the alleged
shooting. According to Williams, Chapman opened the door for introduction of any evidence that would
test McCarra's credibility.
¶11.
“Under this Court's standard of review, the admissibility of evidence rests within the discretion of
the trial judge. Unless his judicial discretion is abused, this Court will not reverse his ruling. The same
standards used in determining the admissibility of photographs are applicable to the admission of
videotapes.” Davis v. State, 767 So. 2d 986, 996 (¶24) (Miss. 2000). Our supreme court, in Jesco, Inc.
1
Upon consideration of the record and arguments made by Williams in his brief, it is apparent
that this date listed in his argument was a typo and should read October 18, 1999, instead of October
15, 1999.
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v. Shannon, 451 So. 2d 694, 702 (Miss. 1984), cautioned trial judges to “preview such evidence to
determine its probative value as against its prejudicial effects upon a jury.” Relevant evidence “may be
excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” M.R.E 403.
¶12.
Rule 901(b)(1) of the Mississippi Rules of Evidence provides that authentication can be
accomplished by testimony from someone familiar with and possessing knowledge of the contents of the
document or recording. McCarra testified that he set up the video equipment, was present when the events
on the videotape transpired, and could identify the videotape through his observation of it. Also, McCarra
viewed the copy of the videotape and verified that the videotape was an accurate copy of the one which
he made on October 18, 2001. Since McCarra was familiar with the scene and testified sufficiently to the
accuracy of the recording, the authenticity of the videotape was proven. See Wells v. State, 604 So. 2d
271, 277 (Miss. 1992).
¶13.
Once the authenticity of the videotape was established, the only remaining question was the
relevance of it to the matter being tried. We have already noted that the trial judge admitted the videotape
for impeachment purposes only. Our review of the record reveals that Chapman is correct in asserting
Williams's counsel, during his cross-examination of McCarra, did not direct McCarra to any specific thing
on the videotape which contradicted McCarra's direct examination testimony. However, the jury heard
McCarra's direct examination testimony and could decide for itself whether the videotape supported or
contradicted McCarra's testimony. While directing McCarra to the specific portion of the videotape that
contradicted his direct examination testimony would have been the proper way to use the videotape to
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impeach him, we cannot say that the trial court abused its discretion by admitting the videotape into
evidence. Therefore, we find no merit in Chapman’s contention on this issue.
3. Jury Instruction
¶14.
Chapman argues that the trial court erred when it gave an instruction to the jury that it should award
money damages to the prevailing party. He explains that this jury instruction is in direct conflict with the
proper instruction and that it was possible for the jury to find that neither party had proven damages.
Therefore, he asserts that the instruction was erroneous and prejudicial. Williams, on the other hand, argues
that Chapman did not object to the instruction when it was given because, at the time, Chapman believed
that the instruction would be in his favor.
¶15.
"When determining whether reversible error lies in the granting or refusal of various instructions,
the instructions actually given must be read as a whole to determine whether a jury has been incorrectly
instructed." Haggerty v. Foster, 838 So. 2d 948, 953 (¶4) (Miss. 2002). "When so read, if the
instructions fairly announce the law of the case and create no injustice, no reversible error will be found."
Id.
¶16.
In the case sub judice, the following exchange occurred concerning the contested jury instruction:
BY THE COURT:
Let the record reflect that the jury has sent a note to the Court in writing.
And the note is, “Do we have to award a dollar amount?” My answer to
that will just be simply “yes.” If they find in favor of a party, then they are
entitled to be compensated pursuant to the instructions. There is no
minimum or maximum. So my recommended response would just be
“yes.” Does the plaintiff have any objection to that?
BY MR. HOWELL:
None.
BY THE COURT:
Mr. Williams?
By MR. WILLIAMS:
No, Sir.
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¶17.
After both parties’ approval of the instruction, it was submitted to the jury which subsequently
found for Williams in the amount of $10,000. "Failure to make a contemporaneous objection and allow
the trial court opportunity to cure the defect is a procedural bar and constitutes a waiver of the argument
on appeal." Haggerty, 838 So. 2d at 954 (¶8). Here, Chapman’s attorney not only failed to object to
the language of the instruction at trial, he affirmed that he had no objection to the instruction. We therefore
find that Chapman's objection to the language of the instruction was not properly preserved, and his
argument on appeal is not properly before this Court. ¶18.
THE JUDGMENT OF THE CIRCUIT
COURT OF CLARKE COUNTY IS AFFIRMED. STATUTORY DAMAGES AND INTEREST
ARE AWARDED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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