Timothy B. Williamson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01719-COA
TIMOTHY B. WILLIAMSON
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
6/29/2007
HON. WILLIAM E. CHAPMAN III
MADISON COUNTY CIRCUIT COURT
JERRY CAMPBELL
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DAVID CLARK
CRIMINAL - FELONY
CONVICTED OF AGGRAVATED
ASSAULT AND SENTENCED TO TWENTY
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH TWELVE YEARS
TO SERVE AND FIVE YEARS OF POSTRELEASE SUPERVISION
AFFIRMED: 1/20/2009
EN BANC.
KING, C.J., FOR THE COURT:
¶1.
Timothy B. Williamson was convicted of the aggravated assault upon a man in the
parking lot of a popular Ridgeland, Mississippi restaurant and bar and was sentenced to
twenty years in the custody of the Mississippi Department of Corrections with twelve years
to serve and five years of post-release supervision.
¶2.
From this conviction and sentence, Williamson appeals raising two issues for our
review:
I. THAT THE DEFENDANT WAS UNFAIRLY SURPRISED AND UNDULY
PREJUDICED BY THE STATE’S FAILURE TO DISCLOSE THE NAME OF A
WITNESS, JAMES BOYD MCGRAW, WHO WAS OFFERED BY THE
PROSECUTION AT TRIAL
II. THAT THE STATE’S FAILURE TO DISCLOSE THE NAME OF A
WITNESS, JAMES BOYD MCGRAW, SUBSTANTIALLY PREJUDICED THE
DEFENDANT IN HIS PLEA BARGAIN NEGOTIATIONS
¶3.
Finding no error in the proceedings below, we affirm.
FACTS
¶4.
Brian Canton was a bartender at The Dock restaurant and bar at the Ross Barnett
Reservoir in Ridgeland. On April 12, 2003, he arrived at work to begin an 8:00 p.m. shift.
After pulling into the parking lot, he walked around to the passenger side of his truck to
retrieve his backpack and a cell phone. At that point he caught sight of someone crouching
down near him just looking at him; at trial, he identified the person as the defendant,
Williamson. Canton turned back to his truck, closed his door, and hit the key lock. Then
he said he heard someone yell and after that things became “fuzzy” because he had been hit
in the face by Williamson. “I heard someone yell hey, and then when I came to, I was
getting kicked, or felt like I was getting kicked against the tire. . . and my head was being
pushed into the tire with some blows to my back and neck,” Canton said. A patron at a
nearby restaurant, James Boyd McGraw, was having dinner with his wife when he observed
the altercation. He said he first heard loud talking, then he heard someone say, “Hey
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m*****f****r what are you doing in my truck. . . . Are you breaking into my truck[?]” He
said the man who was identified as Canton replied that he was not breaking into
Williamson’s truck, but he was getting something out of his own truck. McGraw, who was
an off-duty highway patrol officer, said he never saw Canton in an offensive position;
instead, he said Canton was walking backwards with his hands up when Williamson struck
Canton. McGraw testified that Canton fell on his back and Williamson continued to strike
Canton in the face. At that point McGraw said he told someone to call the police, and he
went downstairs with some bouncers to approach the scene. Williamson fled the scene in
his truck with a friend, but he was stopped not far from The Dock by a Ridgeland policeman,
Joe McNamee, who had heard about the incident, saw blood on Williamson’s knuckles, and
brought Williamson back to the scene.
¶5.
As a result of the assault, Canton had to undergo three surgeries to repair his broken
nose, which had shifted and caved in. Canton’s facial plastic surgeon, Dr. Adair Blackledge,
testified about the care Canton needed as a result of the assault. When the doctor first saw
Canton, he said that Canton’s nose almost formed a C-shaped curve on his face. He said
Canton’s entire nose was shifted over, and he could not breathe out of one side of his nose.
The doctor estimated that he had about a fifteen percent airway. The doctor said Canton also
had bone fractures over his cheekbone. Canton’s injury required the surgeon to perform
rhinoplasty on Canton by re-breaking the nose and shifting it back over to the midline and
then reconstructing the inside of Canton’s nose. The septum of the nose had to be surgically
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moved back to the middle. Dr. Blackledge said that the assault knocked out some fragments
of bone from Canton’s nose which could not be replaced. Dr. Blackledge said that the two
surgeries he performed on Canton brought his nose back to about eighty percent of what it
was before the assault. The doctor said that Canton would be permanently disfigured and
would also continue to have nasal breathing problems.
¶6.
Williamson admitted that he struck Canton in the face with his fist. His version of
events leading up to the assault differed markedly from that of other witnesses. Williamson,
who is from Moselle in Jones County, said he and a group of friends had been fishing at the
Reservoir since about 11:00 a.m. and went to the Dock around 7:00 p.m. to eat and drink.
He said that as he exited the restaurant around 8:00 p.m. and walked toward his truck, he saw
the tool box on the back of his truck open, and he saw a man standing at what he thought
was the back of his truck. He said he walked up to the man and said, “hey man what were
you doing in my truck[?]” Williamson denied cursing at Canton. Williamson said Canton
responded by slamming the door of his truck, which was between them, and saying that he
had not been in his “f***ing truck,” and then Canton pushed him. Williamson said he
reacted by hitting Canton once across the bridge of his nose, and then Canton fell to the
ground. Williamson denied hitting Canton while Canton was on the ground and said he even
tried to assist Canton to his feet.
¶7.
The jury returned a verdict of guilty of aggravated assault against Williamson, and
the court sentenced him to twenty years in the custody of the Mississippi Department of
4
Corrections, with twelve years to serve and five years of post-release supervision. The court
denied post-trial motions, and this appeal ensued.
I. THAT THE DEFENDANT WAS UNFAIRLY SURPRISED AND UNDULY
PREJUDICED BY THE STATE’S FAILURE TO DISCLOSE THE NAME OF A
WITNESS, JAMES BOYD MCGRAW, WHO WAS OFFERED BY THE
PROSECUTION AT TRIAL
II. THAT THE STATE’S FAILURE TO DISCLOSE THE NAME OF A
WITNESS, JAMES BOYD MCGRAW, SUBSTANTIALLY PREJUDICED THE
DEFENDANT IN HIS PLEA BARGAIN NEGOTIATIONS
¶8.
Both of Williamson’s assignments of error center around the fact that witness, James
Boyd McGraw, was not disclosed during pretrial discovery. In his brief, Williamson
combines his arguments on both points. Therefore, we will discuss them together.
¶9.
The fact that McGraw had witnessed the crime and had given a statement to the
Ridgeland police came to light during the trial. The prosecutor had received testimony from
McNamee, the Ridgeland police officer who had investigated the incident. The court then
recessed for a break. After the recess, the assistant district attorney advised the court that
Officer McNamee had asked him during the recess where was McGraw. After the assistant
district attorney told him he did not know who he was talking about, Officer McNamee
showed the prosecutor a report that said that after the incident, Canton found out that an offduty highway patrolman, who was eating at the Island Grill near the Dock, had witnessed
the episode. The police in 2003 tracked down McGraw and found that he was on military
duty in Iraq. The police contacted McGraw via e-mail and asked if he had any information
about the incident. He replied that he witnessed the assault, and he gave a statement via e5
mail of what he had observed. For some reason undisclosed by the record, the district
attorney’s office was not made aware of the statement until Officer McNamee’s inquiry
about McGraw’s presence on the day of the trial.
¶10.
Williamson’s attorney objected to the introduction of the statement and to McGraw
testifying, as the existence of McGraw had not been made known to the defendant prior to
trial. The trial was held in 2007, and by this time McGraw had returned from Iraq. The
Ridgeland police were able to locate him in Clinton on the afternoon of the trial. At the
request of the trial judge, McGraw was told to report to the Madison County Circuit Court
by 4:30 p.m. that day so that both the defense and the State could interview him. McGraw
did come to Canton, Mississippi and was interviewed by both the defense and the
prosecution. After learning of McGraw, the trial court allowed the State to call one
additional witness and then adjourned for the day to give the defense more time to
investigate the newly discovered evidence.
¶11.
Both sides interviewed McGraw. The next morning at trial the defense claimed unfair
surprise and undue prejudice because it was not allowed to investigate McGraw’s credibility.
One of the defense attorneys said that he was aware prior to trial that there was a highway
patrolman in the vicinity of the incident, but he did not investigate the information and relied
on the State’s discovery which did not show that the highway patrolman was going to be
called as a witness. The defense asked that either McGraw not be allowed to be called as a
witness or that the court grant Williamson a continuance. The court denied both requests.
¶12.
Williamson cites Rule 9.04(A) of the Uniform Rules of Circuit and County Court,
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which provides that the prosecution must disclose to the defendant the names and addresses
of all witnesses in chief that the prosecution intends to call at trial, together with a copy of
the contents of any statement, written, recorded or otherwise preserved of each such witness,
and the substance of any oral statement made by such witness. Further Williamson argues
that the trial court erred by not granting a continuance once the existence of McGraw was
made known. He cites Rule 9.04(I) of the Uniform Rules of Circuit and County Court,
governing discovery violations, and argues that he should have been granted a continuance
once the existence of McGraw was discovered. Williamson cites language from Justice
Robertson’s specially concurring opinion in Box v. State, 437 So. 2d 19, 25 (Miss. 1983),
which admonishes the State to take its obligation to conform to discovery seriously. “The
[S]tate ought not be heard to say ‘we only discovered this evidence last night,’ or ‘the
defendant should have known about this witness all along anyway’ or, ‘this evidence is
merely cumulative or corroborative,’ or the like.” Id.
¶13.
The State admits there was a discovery violation by it not divulging McGraw’s name
and proposed testimony prior to trial, but it argues that the trial judge acted within his
discretion in handling the evidence that was disclosed.
¶14.
After the assistant district attorney advised the court of the existence of McGraw and
of McGraw’s probable testimony, the trial court was faced with how to handle the admitted
discovery violation. Rule 9.04(I) sets out the procedures a trial judge should follow when
it is brought to the court’s attention during the trial that the prosecution is attempting to
introduce evidence which was not disclosed to the defense. Under the rule, the court shall
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grant the defense a reasonable opportunity to interview the newly discovered witness and
to examine the newly produced documents. URCCC 9.04(I)(1). If after such opportunity
the defense claims unfair surprise and undue prejudice and seeks a continuance or 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.” URCCC 9.04(I)(2).
¶15.
Our supreme court has held that trial judges have wide latitude in deciding whether
to grant continuances, and that the decision whether to do so is left to the sound discretion
of the trial judge. Morgan v. State, 741 So. 2d 246, 255 (¶26) (Miss. 1999). “ Denial of a
continuance is not reversible unless manifest injustice appears to have resulted from the
denial.” Adams v. State, 772 So. 2d 1010, 1014 (¶16) (Miss. 2000). Further, the supreme
court “has ruled that a violation of Rule 9.04 is considered harmless error unless it
affirmatively appears from the entire record that the violation caused a miscarriage of
justice.” Wyatt v. City of Pearl, 876 So. 2d 281, 284 (¶10) (Miss. 2004).
¶16.
Turning to our case, we find that once the State learned of the undisclosed witness,
it apprised the trial court and the defense. After discussing the issue with both parties and
hearing the objection of the defense, the trial judge gained assurance from the prosecution
that the witness, McGraw, would appear at the courthouse that same afternoon so he could
be interviewed by both parties. The court then took brief testimony from a prosecution
witness and then adjourned for the day. This decision resulted in giving the defense an
overnight recess in which to interview the witness and prepare its questioning of the newly
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discovered witness and to scrutinize McGraw’s e-mail statement. Such a procedure was
approved by our Court in Williams v. State, 784 So. 2d 230, 234 (¶7) (Miss. Ct. App. 2000).
There the victim of a shooting volunteered without being asked during her questioning by
the State that she was pregnant at the time of the shooting. Id. at 233 (¶5). The defense
objected and asked for a mistrial claiming that the State had failed to disclose the fact that
the victim was pregnant at the time of the shooting. After the testimony was elicited, the
trial judge ordered an overnight recess in order to give the defendant additional time to
prepare his cross-examination of the witness. Id. at 234 (¶7). The next morning the victim
was cross-examined. Id. We upheld the trial court’s handling of the discovery issue. Id.
In Foster v. State, 484 So. 2d 1009, 1011 (Miss. 1986), the court held that while a defendant
may be entitled to a continuance of the proceedings to review undiscovered evidence, “[b]y
no means does this mean invariably that the defendant will be entitled to a continuance until
the next term of court. There will no doubt be cases where postponement of a day or two,
or in some cases even an hour or two, will suffice.”
¶17.
We find that the trial court did not abuse its discretion in handling the discovery
violation. It was undisputed that the district attorney’s office did not know of the witness,
McGraw, until trial. McGraw was then immediately located and brought to court in advance
of his testimony and interviewed by the defense while the trial was recessed for the day. The
defense then had overnight to prepare for its cross-examination of McGraw. Prior to
McGraw’s testimony the trial judge asked the jury if anyone knew McGraw, and no one did.
The defense had argued that it was prejudiced because it was not allowed to check on
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McGraw’s credibility. After the jurors were questioned about knowing McGraw, the trial
judge excused them so that the defense could question McGraw relative to his credibility.
The defense refused to do so. The court then questioned McGraw about his credibility
asking about his age, experience, education, and background. The questions elicited that
McGraw was a former United States Marine Corps sergeant who had at one time been
stationed at the United States Embassy in London where he had national security clearance,
and who then became a Mississippi Highway Patrol trooper for five years, and was deployed
to Iraq in 2003 as a member of the Mississippi National Guard until 2005. Following his
return from Iraq, he became employed full time as a captain in the Army National Guard.
The defense then requested that the jury be questioned regarding whether it would give more
or less weight to McGraw’s testimony because he was in the military. The jury was brought
back in, and when questioned by the court, the jurors responded that McGraw’s military
status would not affect their opinion.
¶18.
The defense admitted that it knew of the existence of a highway patrolman in the
vicinity of the assault but elected not to pursue interviewing him. The defense also admitted
that the prosecutor had not deliberately withheld the name of the witness, McGraw, from the
defense. When knowledge of the witness came to the trial judge’s attention, he arranged for
the witness to be made available within a few hours of learning of him and then adjourned
the trial early to allow the defense to interview the witness, which the defense did. The
shortened trial day and overnight period were certainly longer that the one to two hours the
court in Foster suggested would be adequate to review undiscovered evidence. The next
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morning the defense objected to McGraw’s testimony arguing that while it had had an
opportunity to interview McGraw, it had not had an opportunity to check McGraw’s
credibility. The trial judge excused the jury, put McGraw on the stand and asked the defense
if it wished to question McGraw regarding his credibility. The defense declined. However,
the trial judge himself questioned McGraw extensively about his background and
credentials. When the trial judge’s actions are considered as a whole, we find that the judge
handled an unexpected trial issue in a manner consistent with the interests of justice and in
accordance with Rule 9.04.
¶19.
Williamson’s second assignment of error is that he was substantially prejudiced in his
plea negotiations by not knowing about McGraw and his testimony. His allegation appears
to be that he would have accepted the plea offer had he known of McGraw’s testimony. The
record shows that in letters to two of Williamson’s prior attorneys, the assistant district
attorney offered Williamson a plea agreement of a five-year sentence with two years to
serve, to pay restitution to the victim Canton, and to pay a fine of $1,000 in exchange for a
guilty plea. Williamson cites Morris v. State, 436 So. 2d 1381, 1386 (Miss. 1983) for the
proposition that a defendant “is entitled to enter plea negotiations with all the cards on the
table.”
¶20.
By the time of trial there was no outstanding plea offer for Williamson to accept. At
one time there was an offer for a sentence of five years with two years to serve that had been
offered to two of Williamson’s prior attorneys. However, the assistant district attorney
testified that the offer had expired without Williamson accepting it. The assistant district
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attorney said that when he approached the district attorney before the trial, the district
attorney, in accordance with the wishes of the victim, Canton, told him to offer no plea deal.
¶21.
We find that while McGraw’s testimony gave more details of the assault, his
testimony was not sufficiently incriminating that had it been known earlier by the defendant
that it would have affected his decision not to accept the plea offer. Williamson himself
testified that he punched Canton in the nose with enough force to knock Canton to the
ground. His testimony regarding provocation was not believable. Officer McNamee
testified that he stopped Williamson as he fled from the scene in his truck and noticed blood
on Williamson’s knuckles. Canton testified that he was punched repeatedly by Williamson
for no reason. Canton’s plastic surgeon testified about the serious and disfiguring nature of
the injury inflicted upon Canton by Williamson. Thus, we find that even if McGraw’s
testimony were excluded, there was enough evidence to find Williamson guilty of the
aggravated assault of Canton. We find no merit to this assignment of error.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH TWELVE YEARS TO SERVE AND FIVE YEARS OF
POST-RELEASE SUPERVISION IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE AND CARLTON, JJ.,
CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY. GRIFFIS, J., NOT
PARTICIPATING.
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