Byron Wendell Norris v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01254-COA
BYRON WENDELL NORRIS
APPELLANT
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:
APPELLEE
7/1/2002
HON. KEITH STARRETT
PIKE COUNTY CIRCUIT COURT
THOMAS P. WELCH
EDWIN L. BEAN
DAWN LAVERNE STOUGH
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DEE BATES
CRIMINAL - FELONY
COUNTS I AND II, SEXUAL BATTERY:
SENTENCED TO TWENTY YEARS ON EACH
COUNT TO RUN CONSECUTIVELY; COUNT
III, CONSPIRACY TO COMMIT SEXUAL
BATTERY: SENTENCED TO FIVE YEARS TO
RUN CONCURRENTLY WITH COUNTS I AND
II ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH
TWENTY YEARS TO SERVE AND TWENTY
YEARS ON POST-RELEASE SUPERVISION,
FINE OF $5,000 AND RESTITUTION OF
$3,766.25
AFFIRMED - 08/17/2004
EN BANC.
BRIDGES, P.J., FOR THE COURT:
¶1.
A jury sitting before the Pike County Circuit Court convicted Byron Norris of two counts of sexual
battery and one count of conspiracy to batter. Norris was sentenced to serve two twenty-year consecutive
sentences and to a five year concurrent sentence in the custody of the Mississippi Department of
Corrections. Norris’s request for a new trial or JNOV was denied, and he appeals on the following issues.
STATEMENT OF THE ISSUES
I. DID THE TRIAL COURT ERR IN GRANTING AIDING AND ABETTING INSTRUCTIONS?
II. DID THE TRIAL COURT ERR IN ADMITTING PHOTOGRAPHS INTO EVIDENCE?
III. DID THE COURT ERR IN ALLOWING TESTIMONY ABOUT SEXUAL ASSAULT ON THE
VICTIM?
IV. DID NORRIS RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?
V. WAS NORRIS DENIED HIS RIGHT TO A SPEEDY TRIAL?
ISSUE RAISED BY COURT ON ITS OWN MOTION
VI. THE SENTENCING OF TWENTY YEARS POST-RELEASE SUPERVISION IS PLAIN
ERROR.
FACTS
¶2.
On September 18, 2001, Officer Robert Holmes, Jr., was called to investigate the alleged rape of
B.S. She claimed Byron Norris and Michael Carroll had raped her both vaginally and orally by holding
her down and by Norris violently beating her about the face with his fists. B.S. had asked Carroll for a ride
home but had never met Norris. Norris did not drive her home but drove to under the Holmesville Bridge
where the sexual assault took place in Norris’s car. B.S. suffered a severe black eye, bloody nose and
cuts on her hands, chest and legs. She also had several broken bones in her face, the sinus bones, her nose
and the orbits (the bones around the eyes).
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¶3.
Norris and Carroll were indicted for two counts of sexual battery and one count of conspiracy to
commit sexual battery. Aiding and abetting was not mentioned in the indictment but jury instructions were
given regarding aiding and abetting. Norris’s objections to the jury instructions regarding that issue were
overruled. Photographs of the injuries to B.S. were admitted into evidence over Norris’s objection to
relevancy because the judge found they proved intent and lack of consent. The trial judge also allowed the
jury to hear evidence of Norris’s admission to Officer Holmes of hitting B.S. with his fists and almost
running her over. The judge ruled the jury needed to “hear the whole story.”
¶4.
B.S. told Edward Robertson, the man who found her on the bridge after the accident, and she also
later told Dr. Lenny Derouen, the emergency room doctor, that she had been beaten and raped. B.S.
identified Norris and testified that he was the person who initially assaulted and raped her. She claimed
Norris held her down on the hood of the car and raped her, then held her down and encouraged Carroll
to rape her as well, which Carroll did. Norris claimed that he had consensual sex with B.S. and that it was
Carroll who had non-consensual sex with B.S. Norris admits that he assisted Carroll with non-consensual
sex, that he hit her in the nose and chest and that he lifted her up onto the hood and held her down.
ANALYSIS
I. DID THE TRIAL COURT ERR IN GRANTING AIDING AND ABETTING INSTRUCTIONS?
¶5.
Norris appeals claiming the trial judge erred in allowing a jury instruction referring to aiding and
abetting when he was not charged with aiding and abetting in the indictment. Our well-settled rule is that
on appeal we consider complaints of error in jury instructions by reading the instructions as a whole. All
instructions "are to be read together and if the jury is fully and fairly instructed by other instructions the
refusal of any similar instruction does not constitute reversal error." Laney v. State, 486 So.2d 1242, 1246
(Miss. 1986).
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¶6.
In Hollins v. State, 799 So.2d 118, 123 (¶ 14) (Miss. Ct. App. 2001), this Court held that an
aiding and abetting instruction was proper where the evidence showed the defendant, Hollins, was present
and assisted others in the commission of the drug sale. Hollins was indicted for the sale of cocaine as a
principal, not as a accomplice. However, the evidence showed a constructive sale. Hollins, 799 So.2d at
122 (¶ 8). The Court stated:
In this case Hollins was present at the time the crime was committed, he gave the drugs to
Jackson to sell to the agent and he shared in the profits from the sale. He obviously aided
and abetted the crime committed. The instruction clearly informs the jury that if it finds that
Hollins aided and abetted Jackson in the commission of the crime, he can be held guilty as
a principal and punished as such. Although aiding and abetting was not officially part of
Hollins's indictment, the evidence presented clearly supports the instruction.
Hollins, 799 So.2d at 123(¶ 14).
¶7.
"Any person who is present at the commission of a criminal offense and aids, counsels, or
encourages another in the commission of that offense is an 'aider and abettor' and is equally guilty with the
principal offender." Hoops v. State, 681 So.2d 521, 533 (Miss. 1996). When "two or more persons act
in concert to accomplish the commission of a crime, the act of one is the act of all; that is to say, one aiding
and abetting in the commission of a crime is chargeable as a principal, and the acts of other principals are
considered to be his acts. . . ." Gilmer v. State, 271 So.2d 738, 740 (Miss. 1973).
¶8.
The two jury instructions in question state that one who aids and abets another in the commission
of a crime is guilty of the crime itself, and that if the jury believes beyond a reasonable doubt that Norris
was present and assisted Carroll with the rape of B.S., then he should also be found guilty of the crime
itself. The instructions do not request the jury to find Norris guilty of the crime of aiding and abetting but
explains that if the jury believes Norris did aid and abet then he should be guilty of the crimes charged.
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¶9.
In this case it is clear both Norris and Carroll worked in concert. Norris admitted that he helped
Carroll lift B.S. onto the hood of the car and held her down. He also admitted that B.S. did not want to
have sex with either Norris or Carroll. The jury instruction referring to aiding and abetting was not intended
to convict on that issue but, rather, to convict Norris of the overall crime he helped Carroll to commit. The
trial judge’s ruling on the admission of this jury instruction is affirmed.
II. DID THE TRIAL COURT ERR IN ADMITTING PHOTOGRAPHS INTO EVIDENCE?
¶10.
The decision regarding the admission of photographs is left to the sound discretion of the trial judge
and will not be disturbed by us absent a showing that the trial court abused its discretion in reaching its
decision. Sudduth v. State, 562 So.2d 67, 69 (Miss. 1990) and cases cited therein; McNeal v. State, 551
So.2d 151, 159 (Miss.1989); Stringer v. State, 548 So.2d 125, 134 (Miss. 1989) and cases cited
therein. “The mere fact that a photograph may be cumulative of other evidence does not extinguish its
probative value.” Tubbs v. State, 402 So.2d 830, 836 (Miss. 1981).
¶11.
Norris in his appeal asserts that allowing the photographs of B.S. and her injuries to be introduced
into evidence were irrelevant to the charge he was on trial for because they imply an assault that he was
not charged with. In overruling the objection, the trial judge found the photographs were necessary to
allow the jury to understand the whole picture. The photographs supported B.S.’s claim the sexual
encounter was non-consensual and was the result of force on the part of Norris and Carroll. The trial
judge did not abuse his discretion in admitting these photographs into evidence.
III. DID THE COURT ERR IN ALLOWING TESTIMONY ABOUT SEXUAL ASSAULT ON THE
VICTIM?
¶12.
Norris objected to the testimony of Officer Holmes regarding his interview with B.S. following the
assault; that objection was overruled. Norris in his appeal claims this testimony was evidence relating to
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the crime of assault which he was neither charged with nor on trial for. The case of Brown v. State, 483
So.2d 328, 330 (Miss.1986) holds that the State has a legitimate interest in telling a rational and coherent
story of what happened and, where substantially necessary, to present to the jury the complete story of the
crime, evidence or testimony may be given even though it may reveal or suggest other crimes.
¶13.
The testimony regarding the assault was corroborated by three other witnesses and supported the
claims of her bloody condition and broken bones described by the examining physician. The trial court
found that the testimony was necessary for the jury to understand the significance of what occurred to make
the rape possible. The trial judge did not err in his discretion to admit this testimony.
IV. DID NORRIS RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?
¶14.
In his appeal Norris claims numerous instances of ineffective assistance of counsel. Namely, his
attorney should have impeached a witness in a particular situation; his attorney did not have prior trial
experience; his attorney did not conduct an independent investigation; his attorney was not familiar with the
crime scene; his attorney failed to subpoena people to provide favorable testimony; his attorney did not
raise at trial that Norris was denied his right to a speedy trial; his attorney was appointed twenty-five days
prior to trial; and his attorney failed to object to hearsay testimony given by Officer Holmes.
¶15.
In order to win his appeal on the issue of ineffective assistance of counsel Norris must establish that
his attorney's performance was defective, that this prejudiced him, and that the outcome of the proceedings
would have been different if not for this deficiency. Strickland v. Washington, 466 U.S. 668, 682 (1984);
Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985). Norris must argue with specificity the behavior
of his attorney amounted to "unreasonable legal assistance." Leatherwood, 473 So.2d at 968. Norris has
the burden of proving ineffective assistance of counsel. McQuarter v. State, 574 So.2d 685, 687 (Miss.
1990).
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¶16.
In reading Norris’s appeal, the instances he raises against his attorney appear to be either irrelevant
to the substance of the case or would have no impact on the verdict itself. The impeachment issue Norris
raises is whether B.S. had approximately three beers the night in question. Norris does not indicate how
an independent investigation or more familiarity with the scene would have benefitted his case other than
the specifics of how the three parties initially met up. Norris was convicted of sexual battery and
conspiracy to batter. These and Norris’s other issues regarding ineffective assistance of counsel are
without merit.
V. WAS NORRIS DENIED HIS RIGHT TO A SPEEDY TRIAL?
¶17.
Norris raised this issue for the first time on appeal. The Mississippi Supreme Court has repeatedly
held that "[we] will not consider matters which are outside the record and must confine [ourselves] to what
actually does appear in the record." Medina v. State, 688 So.2d 727, 732 (Miss.1996) (citing Robinson
v. State, 662 So.2d 1100, 1104 (Miss.1995)). "We can not decide an issue based on assertions in the
briefs alone; rather, issues must be proven by the record." Medina v. State, 688 So.2d at 732.
Furthermore, Norris failed to show any prejudice which might have resulted from the delay. See Walton
v. State, 678 So.2d 645, 650 (Miss.1996). Without such information, we are unable to find a constitutional
or statutory violation of the right to a speedy trial. Therefore, we decline to address this issue.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY OF CONVICTION
OF COUNTS I AND II SEXUAL BATTERY AND SENTENCE OF TWENTY YEARS FOR
EACH COUNT TO RUN CONSECUTIVELY AND COUNT III CONSPIRACY TO COMMIT
SEXUAL BATTERY AND SENTENCE OF FIVE YEARS TO RUN CONCURRENTLY TO
SENTENCES IN COUNTS I AND II ALL IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH TWENTY YEARS TO SERVE AND TWENTY
YEARS OF POST-RELEASE SUPERVISION, FINE OF $5,000 AND $3,766.25 IN
RESTITUTION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
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KING, C.J., LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
BARNES, J., NOT PARTICIPATING.
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