Shawn Gavin O'Neal v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00788-COA
SHAWN GAVIN O’NEAL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/18/2007
HON. R.I. PRICHARD, III
LAMAR COUNTY CIRCUIT COURT
BRENDA JACKSON PATTERSON
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CLAIBORNE MCDONALD
CRIMINAL - FELONY
CONVICTION OF AGGRAVATED ASSAULT,
DOMESTIC VIOLENCE, AND SENTENCE TO
SERVE TWENTY YEARS IN THE CUSTODY
OF MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH TWELVE YEARS
SUSPENDED, WITH FIVE YEARS ON POSTRELEASE SUPERVISION, AND FINE OF $2,000
AFFIRMED: 03/25/2008
BEFORE MYERS, P.J., GRIFFIS AND ROBERTS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Shawn Gavin O’Neal was convicted of aggravated domestic violence, pursuant to
Mississippi Code Annotated section 97-3-7(4) (Rev. 2006). He was sentenced to twenty years in
the custody of the Mississippi Department of Corrections, with eight years to serve, twelve years
suspended pursuant to five years of post-release supervision. O’Neal was also ordered to pay a fine
of $2,000. As error on appeal, O’Neal argues that: (1) the trial court allowed a key witness to testify
about a necklace and admitted it into evidence when the necklace was not furnished to the defense
until the trial and (2) the trial court allowed Dr. Rocco Barbieri to testify as to causation of the injury
even though the State did not qualify him as an expert witness. Finding no reversible error, we
affirm.
FACTS
¶2.
O’Neal and Mary Landry were involved in a romantic relationship and lived together in the
same household along with Landry’s teenage son, Nicholas. On Sunday, August 20, 2004, the three
were having a cookout at their home with Landry’s adult nephew, his wife, and their small child.
Nicholas was the last to leave the house to visit a friend, which left O’Neal and Landry alone
together.
¶3.
Landry testified that she was afraid of being alone with O’Neal, so she decided to leave. As
she was pulling her car out of the garage, O’Neal reached into the car to pull the keys out of the
ignition. He grabbed her hair and pulled her out of the car. As she resisted, he kicked her in the leg
with his steel-toed boots and stomped on her back and side before she passed out from the pain.
Landry sustained a broken femur from the alleged assault.
¶4.
As the paramedics were attending to Landry, O’Neal told an investigator from the sheriff’s
department that he was trying to keep Landry from driving while intoxicated. He said that while he
was trying to get her out of the car, their dog got in the way, and he tried to kick the dog, but he
kicked Landry instead.
¶5.
Nicholas testified that O’Neal told him two different versions of what happened. First,
O’Neal called Nicholas to tell him to come home because his mother had tripped over the dog and
injured her leg. Then, after Nicholas arrived at the house, O’Neal told him that, as Landry was
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trying to get out of the car, the dog got in her way, and O’Neal tried to kick the dog; but he missed
and kicked Landry.
¶6.
Nicholas further testified that he found a necklace that he had given to his mother for
Mother’s Day. The necklace was broken into pieces on the garage floor with a lock of hair stuck
to it. He did not turn the necklace over to the police or mention finding it. Nicholas kept it until he
delivered it to the district attorney just days before the trial began.
¶7.
Dr. Barbieri, the orthopedic surgeon who repaired Landry’s broken femur, testified at trial.
He stated that the type of break that Landry sustained was usually the result of a high-energy force
like a fall from a great height or a car accident, not the result of a simple fall.
¶8.
O’Neal testified that he was not wearing steel-toed boots and that he did not own a pair. He
stated that the dog ran in between him and Landry, as he was helping her out of the car. He lost his
balance, and they both fell over, causing Landry’s left femur to break.
ANALYSIS
1.
¶9.
Whether the trial court erred by allowing a key witness to testify about a
necklace and admitting it into evidence when the necklace was not furnished
to the defense until the trial.
O’Neal argues that the trial court erred when it allowed Nicholas to testify about the necklace
he found in the garage on the day his mother was injured. O’Neal did not know about the necklace
until the morning of trial, which was almost three years after the alleged assault. Thus, O’Neal
claims that he was severely prejudiced by the testimony. The State responds that this discovery
violation was waived when counsel for O’Neal did not request time to interview the witness or move
for a continuance.
¶10.
The standard of review for the trial court’s ruling on a discovery violation is abuse of
discretion. Montgomery v. State, 891 So. 2d 179, 181 (¶6) (Miss. 2004). The procedure for the trial
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court to follow regarding a discovery violation is governed by Rule 9.04(I) of the Uniform Rules
of Circuit and County Court Practice, which states:
If during the course of trial, the prosecution attempts to introduce evidence which has
not been timely disclosed to the defense as required by these rules, and the defense
objects to the introduction for that reason, the court shall act as follows:
1. Grant the defense a reasonable opportunity to interview the newly
discovered witness, to examine the newly produced documents,
photographs, or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or
undue prejudice and seeks a continuance or a mistrial, the court shall,
in the interest of justice and absent unusual circumstances, exclude
the evidence or grant a continuance for a period of time reasonably
necessary for the defense to meet the non-disclosed evidence or grant
a mistrial.
3. The court shall not be required to grant either a continuance or
mistrial for such a discovery violation if the prosecution withdraws
its efforts to introduce such evidence.
¶11.
At trial, the State called Nicholas to testify about the necklace. Defense counsel objected
on the grounds that they did not know about the necklace until that morning. The State claimed to
have received the necklace only days before and to have shown it to defense counsel that morning.
The judge allowed the necklace to be entered into evidence and allowed defense counsel to crossexamine Nicholas regarding the necklace. Nicholas testified that he found the broken necklace on
the day of the alleged assault, but he did not turn it over to the police. The necklace was not
mentioned in his statement, and he first furnished the necklace to the district attorney on the Friday
before trial began on the following Tuesday. After cross-examination, defense counsel again
objected to the necklace being entered into evidence. The trial court overruled the objection.
Thereafter, defense counsel did not request any extra time to examine the necklace and did not
request a continuance.
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¶12.
O’Neal claims that it was reversible error for the trial court to allow the necklace to be
introduced into evidence; however, the supreme court has “repeatedly held an accused’s remedy for
tardy disclosure of that to which he was entitled in pre-trial discovery is a continuance reasonable
under the circumstances.” Middlebrook v. State, 555 So. 2d 1009, 1011 (Miss. 1990). Further, the
court has “held equally often that the accused’s right to a continuance is not self-executing and that
he must affirmatively request it on pain of waiver.” Id. Counsel for O’Neal chose to allow the trial
to continue and did not make any such request for a continuance, thereby waiving any remedy for
the State’s discovery violation. Because O’Neal waived his right to a claim for relief, we find that
this issue has no merit.
¶13.
Notwithstanding the procedural bar, we further note that “[w]here the discovery violation
results in the admission of evidence that is merely cumulative, the error is harmless.” Prewitt v.
State, 755 So. 2d 537, 541 (¶11) (Miss. Ct. App. 1999). Here, testimony about the broken necklace
was cumulative evidence of Landry’s testimony that she was violently removed from the car by her
hair and thrown onto the garage floor by O’Neal. Thus, any error created by the admission of the
necklace was harmless in nature.
2.
¶14.
Whether the trial court erred by allowing Dr. Barbieri to testify as to the
causation of Landry’s injury even though the State did not qualify him as an
expert witness.
O’Neal also argues that the trial court committed reversible error by allowing Dr. Barbieri
to testify as to the causation of Landry’s injury despite the fact that he was called as a lay witness
and not as an expert witness. The State contends that if any error by the trial court occurred
regarding this issue, it was harmless error.
¶15.
O’Neal states that Dr. Barbieri’s testimony was based on his training and experience as an
orthopedic surgeon; thus, Dr. Barbieri should have been classified as an expert witness subject to
the requirements in Rule 702 of the Mississippi Rules of Evidence and the discovery requirements
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of Rule 9.04(A)(4) of the Uniform Rules of Circuit and County Court Practice. During direct
examination, the State first asked Dr. Barbieri whether Landry’s injury was consistent with a fall.
Counsel for O’Neal objected because the question pertained to causation, and the trial court
sustained the objection. However, the trial court allowed Dr. Barbieri to testify as to what type of
force was necessary to cause this type of fracture. The trial court overruled O’Neal’s objection
based on the fact that Dr. Barbieri examined the fracture himself. Dr. Barbieri testified as follows:
Q:
A:
Usually a high-energy force.
Q:
High-energy force?
A:
¶16.
Okay. What type of force would be necessary to cause this type of fracture?
High-energy force. A fall from a height or usually a car wreck. It’s not
something you usually see every day from a simple fall.
We review the trial court’s decision on the admissibility of evidence under an abuse of
discretion standard. Wade v. State, 583 So. 2d 965, 967 (Miss. 1991). Rule 701 of the Mississippi
Rules of Evidence governs opinion testimony by a lay witness, and it provides that such testimony
is:
limited to those opinions or inferences which are (a) rationally based on the
perception of the witness, (b) helpful to the clear understanding of his testimony or
the determination of a fact in issue, and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
M.R.E. 701.
¶17.
The supreme court has held that it is possible for an expert in an area of knowledge to give
a lay opinion, but not if the witness is operating in his professional capacity. Miss. State Hwy.
Comm’n v. Gilich, 609 So. 2d 367, 377 (Miss. 1992). “[W]here a witness is to give testimony
derived from specialized knowledge gained by education or experience, the testimony is not lay
opinion testimony.” Id. In Sample v. State, 643 So. 2d 524, 530 (Miss. 1994), the supreme court
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stressed the importance that we not blur the line between Rules 701 and 702 so that the responding
party has sufficient notice and an opportunity to prepare a rebuttal.
¶18.
Here, it is clear that Dr. Barbieri, as the orthopedic surgeon who performed Landry’s surgery,
was qualified to testify as an expert. Dr. Barbieri was acting in his professional capacity when he
testified that the type of fracture Landry experienced was caused by a high-energy force as opposed
to a simple fall. Clearly, Dr. Barbieri should have been qualified as an expert witness under Rule
702; therefore, O’Neal would have been allowed discovery in order to test Dr. Barbieri’s
qualifications before his testimony was presented to the jury. See Sample, 643 So. 2d at 530.
¶19.
The State contends that this error committed by the trial court was harmless error as it did
not affect a substantial right of O’Neal. Rule 103(a) of the Mississippi Rules of Evidence states that
error based upon rulings of evidence “may not be predicated upon a ruling which admits or excludes
evidence unless a substantial right of the party is affected . . . .” To warrant reversal, the error by
the trial court must have “the effect of denying the defendant a fundamentally fair trial.” Martin v.
State, 726 So. 2d 1210, 1214 (¶13) (Miss. Ct. App. 1998).
¶20.
Dr. Barbieri’s testimony regarding the causes of this type of fracture did not deny O’Neal
his right to a fundamentally fair trial. Even without Dr. Barbieri’s testimony as to causation, there
was sufficient evidence submitted to the jury to establish the crime of aggravated domestic violence.
Landry testified that O’Neal forced her out of her car, threw her down on the garage floor, and
kicked and stomped on her leg and back. Photographs that show the bruises on her body, which
were consistent with her testimony, were admitted into evidence. The officer who arrived on the
scene testified that Landry was in a great deal of pain from the injury, and Dr. Barbieri testified
without objection, that Landry’s broken femur was a serious injury. The trial court erred in allowing
Dr. Barbieri’s testimony as to the cause of Landry’s injury because Dr. Barbieri was not offered as
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an expert witness. However, such error did not have the affect of denying O’Neal a substantial right
or rendering his trial fundamentally unfair. Consequently, this error does not warrant reversal.
¶21. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT OF
CONVICTION OF AGGRAVATED ASSAULT, DOMESTIC VIOLENCE, AND SENTENCE
TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITH TWELVE YEARS SUSPENDED, WITH FIVE YEARS ON
POST-RELEASE SUPERVISION, AND FINE OF $2,000, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ.
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