Courtney Hill v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01966-COA
COURTNEY HILL
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
10/02/2006
HON. JOSEPH H. LOPER, JR.
MONTGOMERY COUNTY CIRCUIT
COURT
ANTWAYN LAVELL PATRICK
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DOUG EVANS
CRIMINAL - FELONY
CONVICTED OF SALE OF COCAINE AND
SENTENCED TO SERVE TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED: 1/13/2009
EN BANC.
KING, C.J., FOR THE COURT:
¶1.
Courtney Hill was convicted of the sale of cocaine and sentenced to twenty years in
the custody of the Mississippi Department of Corrections. He appeals his conviction and
sentence.
¶2.
On appeal Hill states these assignments of error:
I. THERE WAS JURY MISCONDUCT SO AS TO DEPRIVE THE
APPELLANT OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY.
II. THE MENTIONING OF THE PRIOR BAD ACTS OF THE APPELLANT
BY THE STATE WAS SO PREJUDICIAL TO THE APPELLANT AS TO
REQUIRE REVERSAL.
III. THE TRIAL COURT SHOULD HAVE SUSTAINED THE DEFENSE
ATTORNEY’S MOTION FOR A CONTINUANCE WHEN HE WAS
GIVEN NEW EVIDENCE ON THE DAY OF TRIAL.
IV. THE CUMULATIVE ERRORS IN THIS CASE DENIED APPELLANT
HILL A RIGHT TO A FAIR TRIAL.
¶3.
This Court finds no error and affirms the conviction and sentence.
FACTS
¶4.
Hill was convicted of selling a single rock of crack cocaine to Kendrick Shelton, a
paid informant for the Montgomery County Sheriff’s Office.
¶5.
On March 8, 2006, Chief Deputy David Johnson went to the home of Shelton and
gave him twenty dollars and instructed him to call Hill and buy a rock of crack cocaine from
him. The subsequent transaction was recorded on videotape and also witnessed by Chief
Johnson, who was watching through a window. The videotape of the transaction was shown
to the jury, and Chief Johnson testified at Hill’s trial, as did Shelton.
¶6.
Hill did not testify at trial and offered no witnesses.
¶7.
Hill was convicted of the sale of cocaine and sentenced to twenty years in the custody
of the Mississippi Department of Corrections.
DISCUSSION
I. Jury Misconduct
¶8.
Hill contends that Lou Ann Ervin, one of the jurors, was “believed” to be related to
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the State’s witness Shelton. Hill contends that Ervin is “the fiancée [of] and had children by
the brother of Kenny Shelton, Kendrick Shelton . . . .”
¶9.
The voir dire of the jury has not been included in the record, so it is impossible to
determine if Ervin failed to disclose any of this information prior to being selected to be on
the jury. In fact, there is no information in the record on Ervin other than her being selected
to be on the jury in the record and a notation on the jury list that she “knows Shelton.” The
information on Ervin’s connection to a witness in this case all comes from Hill’s brief. Even
the information in Hill’s brief does not show that Ervin was related to the witness Shelton
or his brother. Included in the record are the challenges for cause and the peremptory
challenges. Ervin was not challenged for cause, and the defense did not use a peremptory
challenge against her.
¶10.
“The burden is on the defendant to make a proper record of the proceedings.” Genry
v. State, 735 So. 2d 186, 200 (¶72) (Miss. 1999). Hill had the duty of making sure that the
record contains sufficient evidence to support this assignment of error. Burney v. State, 515
So. 2d 1154, 1160 (Miss. 1987) (superceded on other grounds). In this case, none of the
facts asserted by Hill can be found in or supported by the record. As such, this Court cannot
decide this issue based on the assertions found only in the appellant’s brief.
¶11.
There is no merit to this assignment of error.
II. Hill’s Prior Acts
¶12.
Hill argues that the trial judge should have granted his motion for a mistrial when
Shelton testified during his direct examination that he had purchased crack cocaine from Hill
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before.
¶13.
The following exchange occurred at trial:
Q. [By the Prosecutor] How do you know Courtney Hill?
A. Because he lives in Kilmichael. I mean, I know him through there.
Q. How long have you been knowing Courtney Hill?
A. About 10 years, 10 or 12 years.
Q. All right.
A. Or since I’ve lived in Kilmichael.
Q. How did you know what his telephone number was?
A. Because I purchased crack cocaine from him before.
Based on Shelton’s comments, defense counsel then moved for a mistrial.
¶14.
The trial judge then instructed the jurors to disregard the question and answer. The
judge polled each juror to determine whether he or she could disregard the testimony and
whether the testimony would be a factor in the determination of a verdict in the case. Each
juror was questioned on the record and stated that the testimony would be disregarded. The
judge had stated that if any juror indicated that “this was going to affect [him or her] in any
way” that he would declare a mistrial.
¶15.
In addition, the judge, at the close of evidence, also instructed the jury with instruction
C-1, which stated:
You should not speculate as to possible answers to questions which the Court
did not require to be answered. Further, you should not draw any inference
from the content of those questions. You are to disregard all evidence which
was excluded by the Court from consideration during the trial.
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¶16.
“Absent unusual circumstances, where objection is sustained to improper questioning
or testimony, and the jury is admonished to disregard the question or testimony, we will not
find error.” Wright v. State, 540 So. 2d 1, 4 (Miss. 1989). In Hampton v. State, 910 So. 2d
651, 655 (¶9) (Miss. Ct. App. 2005), this Court summarized the law on this point as follows:
The authority to declare a mistrial is left largely to the sound discretion of the
trial court. Pulphus v. State, 782 So. 2d 1220 (¶10) (Miss. 2001). Within this
authority is the discretion to determine whether the objectionable comment is
so prejudicial that a mistrial should be declared. Edmond v. State, 312 So. 2d
702, 706 (Miss. 1975). Furthermore, when the trial court instructs the jury,
we must assume that the panel followed the instruction. Puckett v. State, 737
So. 2d 322 (¶72) (Miss. 1999). In this case, the trial court decided to
eliminate all of White’s testimony since White had only testified as to his
pursuit and arrest of Hampton. The trial court admonished the jury to
disregard White’s testimony, and we find no abuse of discretion in doing so.
¶17.
We also find no abuse of discretion by the trial judge and no merit to this assignment
of error.
III. Denial of a Continuance
¶18.
Hill contends that the State was tardy with discovery and under Box v. State, 437 So.
2d 19, 21 (Miss. 1983), he should have been granted a continuance to investigate why there
was a mix up in the laboratory reports on the crack cocaine.
¶19.
Apparently, the defense counsel was given the wrong laboratory report about the crack
cocaine. The report initially given to counsel was for crack cocaine from a prior sale by Hill
of .10 gram of crack cocaine, rather than the .19 gram of crack cocaine that was sold by Hill
to Shelton. Hill was not indicted for the prior sale of crack cocaine. There is no difference
in the penalty regardless of the amount of cocaine sold. The court required that both lab
reports be put in the record.
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¶20.
The court allowed the indictment to be amended to reflect the correct weight of .19
gram of crack cocaine. Hill objected to the amendment and requested a continuance to
“further look into this matter . . . .”
¶21.
Hill’s argument on appeal concerns the denial of a continuance, not the validity of the
amendment or the chain of custody or a discovery violation.
Hill contends that the
continuance should have been granted because he was given “new evidence” five minutes
before trial. The court found that the defense would be the same and that a continuance
would not change the defense.
¶22.
The Box decision is not applicable in this case. Box applies when a new and
previously undisclosed witness, or new and previously undisclosed evidence, is proposed
to be introduced. See, e.g., McGowen v. State, 859 So. 2d 320, 336-37 (¶58) (Miss. 2003)
(citing Box, 437 So. 2d at 22-26). It requires that under such circumstances, the defendant
be given the opportunity to question the new witness prior to testimony, or examine the new
evidence prior to introduction. Id. After such, the defendant must request a continuance if
he believes that he may be prejudiced by the lack of opportunity to prepare for the previously
undisclosed evidence. Id. In this case, there was no new witness or new testimony proposed,
nor was there any new evidence proposed for introduction. Accordingly, no continuance to
question the proposed witness or to examine the proposed evidence was necessary.
¶23.
No mention was made at trial of the weight of the cocaine. The defense stipulated to
the qualifications of the forensic scientist from the Mississippi State Crime Laboratory and
that the submitted evidence contained cocaine.
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¶24.
The State argues that the issue of denying a continuance was not raised in the motion
for new trial and, therefore, is procedurally barred as an issue on appeal. Specifically, the
State cites this language from Crawford v. State, 787 So. 2d 1236, 1242-43 (¶25) (Miss.
2001):
The denial of a continuance is not an issue reviewable on appeal where the
denial of the continuance is not assigned as a ground for a new trial in the
defendant’s post-trial motion for a new trial. On motion for a new trial,
“certain errors must be brought to the attention of the trial judge so that he may
have an opportunity to pass upon their validity before this court is called upon
to review them.” Metcalf v. State, 629 So. 2d 558, 561-562 (Miss. 1993)
(citing Weyen v. Weyen, 165 Miss. 257, 139 So. 608 (1932)). “For example,
the denial of a continuance in the trial court is not reviewable unless the party
whose motion for continuance was denied makes a motion for new trial on this
ground.” Metcalf, 629 So. 2d at 562 (citation omitted). See also Morgan v.
State, 741 So. 2d 246, 255 (Miss. 1999); Jackson v. State, 423 So. 2d 129
(Miss. 1982); Colson v. Sims, 220 So. 2d 345, 347 n.1 (Miss. 1969).
¶25.
In this case, no mention is made of the denial of the motion for continuance in the
motion for a new trial. In fact, there is no motion for a new trial in the record.
¶26.
Regardless, the decision to grant or deny a motion for continuance will not be grounds
for reversal unless it is shown to have resulted in an injustice. Miss. Code Ann. § 99-15-29
(Rev. 2007); Coleman v. State, 697 So. 2d 777, 780 (Miss. 1997). Hill has not shown that
an injustice resulted from the denial of the continuance.
¶27.
There is no merit to this issue, regardless of whether it is procedurally barred.
IV. Cumulative Error
¶28.
If “there [is] no reversible error in any part, there is no reversible error to the whole.”
Genry, 735 So. 2d at 201 (¶ 73) (quoting McFee v. State, 511 So. 2d 130, 136 (Miss. 1987)).
This is another way of saying that the Court has not found any error in Hill’s trial.
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¶29.
This Court has not found merit to any of the assignments of error; therefore, this is not
a proper case for the application of the doctrine of cumulative error. The Court finds no
reason for reversal.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF MONTGOMERY COUNTY
OF CONVICTION OF SALE OF COCAINE AND SENTENCE OF TWENTY YEARS
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE AND MYERS, P.JJ., IRVING, ISHEE, ROBERTS AND CARLTON, JJ.,
CONCUR. GRIFFIS AND BARNES, JJ., CONCUR IN RESULT.
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