Christopher Thomas v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01081-COA
CHRISTOPHER THOMAS
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
04/21/2008
HON. JANNIE M. LEWIS
YAZOO COUNTY CIRCUIT COURT
LEIGH ANNE CADE
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
JAMES H. POWELL III
CRIMINAL - FELONY
CONVICTED OF THREE COUNTS OF
ARMED ROBBERY AND SENTENCED TO
FIFTEEN YEARS FOR EACH COUNT,
WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 08/04/2009
BEFORE LEE, P.J., ISHEE AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
A jury in the Yazoo County Circuit Court found Christopher Thomas guilty of three
counts of armed robbery. Thomas was sentenced to fifteen years on each count with each
sentence to be served concurrently in the Mississippi Department of Corrections. Thomas
subsequently filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. After a hearing, the trial court denied Thomas’s motion.
¶2.
Thomas now appeals, asserting the following issues: (1) the indictment was defective;
(2) the trial court erred by allowing the indictment to be amended on the day of trial; (3) the
trial court erred by allowing the jury to observe him in restraints; (4) the trial court did not
make on-the-record findings concerning the State’s reasons for peremptory challenges; (5)
prosecutorial misconduct denied him a fair trial; (6) the trial court erred in amending jury
instruction D-5; (7) the trial court erred in overruling certain objections; (8) the trial court
erred in denying his motion for a directed verdict, his motion for a JNOV, and his motion for
a new trial; and (9) the cumulative errors denied him a fair trial. Finding no error, we affirm.
FACTS
¶3.
On January 21, 2006, Thomas and his cousin were at the Game Room in Yazoo City.
Several people were at the establishment playing pool and cards. Terry Collins testified that
Thomas stood near his table for approximately thirty minutes. Thomas and his cousin left
the Game Room. Approximately twenty minutes later, a man entered the establishment with
some type of fabric around his face. The man displayed a firearm and demanded money
from several patrons. Collins stated that the man entered the establishment and shot a gun
in the air. Collins testified that he recognized the man as Thomas from the shoes he was
wearing.
¶4.
The man demanded money from the patrons, ultimately taking $800 from Collins,
$500 from Jody Clark, and approximately $100 from Arthur Jones. Clark knew Thomas and
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recognized him from his voice, his clothes, and his shoes. Jones had also seen Thomas leave
the Game Room and testified that he recognized Thomas when he returned by his clothing,
shoes, and height. Thomas fled the scene.
¶5.
Officer Jason Bright of the Yazoo City Police Department responded to the scene.
Officer Bright spoke with several patrons, including Jones, Collins, and Clark. Officer
Bright observed a bullet casing on the floor and a bullet hole in the ceiling above the pool
table. Thomas ultimately turned himself in to the police department.
DISCUSSION
I. DEFECTIVE INDICTMENT
¶6.
In his first issue on appeal, Thomas contends that the multi-count indictment was
fatally defective for failing to recite the justification for a multi-count indictment. We note
that Thomas failed to raise this issue at trial and is, therefore, procedurally barred from
asserting this issue for the first time on appeal. Patrick v. State, 754 So. 2d 1194, 1195-96
(¶7) (Miss. 2000). However, since the issue affects the substantial rights of Thomas, we will
review this issue under the plain-error doctrine. Id.
¶7.
Mississippi Code Annotated section 99-7-2(1) (Rev. 2007) governs multi-count
indictments. When two or more offenses may be tried in the same court, they may also be
charged in the same indictment if they are based on the same act or transaction or if they are
based on separate acts or transactions connected as part of a common scheme or plan. Id.
Thomas’s indictment tracks the language of the armed robbery statute. See Miss. Code Ann.
§ 97-3-79 (Rev. 2006). Inclusion of the language found in the multi-count-indictment statute
was not necessary for the indictment to be valid. This Court has held that “where an
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indictment tracks the language of a criminal statute it is sufficient to inform the accused of
the charge against him.” Holifield v. State, 852 So. 2d 653, 657 (¶9) (Miss. Ct. App. 2003)
(citing Ward v. State, 479 So. 2d 713, 715 (Miss. 1985)). Thomas’s indictment included the
relevant language from the statute as well as the applicable statute number. Furthermore, the
evidence clearly showed that these crimes were based on the same act or transaction. We do
not find any defect in his indictment. This issue is without merit.
II. AMENDED INDICTMENT
¶8.
Thomas next argues that the amendment to the indictment was a substantive change
and rendered the indictment defective. Count III of the indictment read “Arthur James” and
handwritten above James was “A/K/A Jones.” On the day of trial, the State made an oral
motion to amend Count III of the indictment to change the name of the victim from Arthur
James to Arthur Jones. The prosecutor then asked permission to leave the courtroom and ask
the alleged victim whether his last name was James or Jones. The victim responded that his
last name was Jones. Thomas objected, arguing that the amendment was untimely and that
it would violate his due process rights. The trial court asked Thomas, “Do you have any
evidence that there is an Arthur James as opposed to a Jones?” Thomas responded in the
negative. The trial court overruled Thomas’s objection and granted the State’s motion to
amend the indictment.
¶9.
Amendments to indictments are allowed if they contain defects of form and not of
substance. Ivy v. State, 792 So. 2d 319, 321 (¶4) (Miss. Ct. App. 2001). We have held that
“a change of the name of the victim in an indictment goes to form not substance.” Id.; see
also Burson v. State, 756 So. 2d 830, 834 (¶14) (Miss. Ct. App. 2000). We cannot find that
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Thomas’s due process rights were violated by amending the indictment to correct the spelling
of Jones’s last name. Thomas claims unfair surprise; however, the witness was outside the
courtroom waiting to testify and Thomas was aware that Jones was going to testify.
Furthermore, Thomas was unable to show that his defense would be compromised by this
amendment.
¶10.
Thomas also cites to Carter v. State, 965 So. 2d 705, 709 (¶17) (Miss. Ct. App. 2007)
for the proposition that the State is required to prove the identity of the victim of an armed
robbery. However, the issue in Carter was that the State failed to produce two of the victims
listed in the indictment and tried to amend the indictment to omit the reference to the names
of these two victims. Id. We find Carter inapplicable to the present case. This issue is
without merit.
III. ALLOWING THE JURY TO SEE THOMAS IN RESTRAINTS
¶11.
In his third issue on appeal, Thomas argues that the trial court erred when it allowed
the jury to see him wearing leg restraints. After the trial court granted a recess during voir
dire, Thomas’s leg restraints were not removed prior to the entrance of the jury. A bench
hearing was conducted, and the following exchange occurred between the trial court, Joseph
Hollomon (Thomas’s attorney), and Steven Waldrup (attorney for the State):
THE COURT: I just told them to remove those.
MR. HOLLOMON: You did, Your Honor. I will state this, though. He was
seated during the entire time the jury came back into this courtroom, and I
would be surprised if any of them have seen his feet because he’s been seated
ever since he came in here.
THE COURT: Okay. They took [the restraints] off his hands?
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MR. HOLLOMON: They did Your Honor.
MR. WALDRUP: He doesn’t have any on his hands. I just noticed he’s got
[them] on his ankles.
THE COURT: Make sure you keep him seated, and once the jury’s out, I’ll
make sure they take them off.
¶12.
Thomas contends that the trial court should have immediately taken a recess to
remove the leg restraints and questioned the jury as to whether they had seen him in the leg
restraints. From the record, it is apparent that Thomas’s attorney did not think the jury had
seen the leg restraints. Furthermore, Thomas failed to request a mistrial or any further action.
Although it is unclear when the leg restraints were removed, Thomas has failed to show how
he was prejudiced in this instance. See Williams v. State, 962 So. 2d 129, 131 (¶8) (Miss. Ct.
App. 2007) (defendant has a right to be free of restraints in front of jury but must show
prejudice before reversal is warranted). This issue is without merit.
IV. BATSON ISSUE
¶13.
In his fourth issue on appeal, Thomas argues that the trial court erred in not making
an on-the-record factual determination on the merits of the State’s race-neutral reasons for
its peremptory challenges. Batson v. Kentucky, 476 U.S. 79, 96 (1986) provides the
procedure for trial courts to follow when peremptory challenges are used to remove members
of an identified racial group from jury service based upon nothing more than their race. To
successfully assert a Batson challenge, the following must occur:
First, the defendant must establish a prima facie case of discrimination in the
selection of jury members. The prosecution then has the burden of stating a
racially neutral reason for the challenged strike. If the State gives a racially
neutral explanation, the defendant can rebut the explanation. Finally, the trial
court must make a factual finding to determine if the prosecution engaged in
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purposeful discrimination. If the defendant fails to rebut, the trial judge must
base his decision on the reasons given by the State.
Thorson v. State, 721 So. 2d 590, 593 (¶2) (Miss. 1998) (internal citations omitted).
¶14.
This Court gives great deference to the trial court’s finding of whether or not a
peremptory challenge was race neutral. Id. at 593 (¶4). “[W]e will not overrule a trial court
on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against
the overwhelming weight of the evidence.” Id.
¶15.
After the State exercised its peremptory challenges, Thomas raised a Batson
challenge. The trial court found a prima facie case of discrimination and asked the State to
provide race-neutral reasons for striking five potential jurors (referred to according to the
strike used by the State: S1 through S5). The State addressed the Batson challenge as
follows:
MR. WALDRUP: The race-neutral reason for S1, Your Honor, is that Ms.
Florshene Thomas stated that she was close personal friends with the whole
family. I went back and asked her about her last name being Thomas. We got
into a conversation about that. Because of her statement about being close
friends with the family or knowing the family, that’s our reason for striking
her.
THE COURT: Court finds a race-neutral reason and will accept Thomas as
S1. S2?
MR. WALDRUP: Dedrick Deonne Woodberry. We have two or three cases
in our office right now on a Woodberry . . . for selling cocaine to MBN agents,
and that’s our basis for the challenge on Woodberry.
THE COURT: Court finds a race-neutral reason for Woodberry and will
accept S2. Harris?
MR. WALDRUP: Linda Harris is the one I tried to strike for cause. She knew
three of the victims and she knew the defendant as well.
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THE COURT: Court finds race-neutral reason for Harris and will accept her
as S3. Rodney Jefferson?
MR. WALDRUP: Rodney Jefferson stated in questioning that he had seen
[Thomas] around in the community, and during the process of picking the jury,
I was informed by the law enforcement officers that he was good friends with
the defendant.
THE COURT: Court finds a race-neutral reason for Jefferson and will accept
him as S4. S5, Austin.
MR. WALDRUP: Mr. Austin, Your Honor, his wife was first cousin[s] with
one of the [victims] involved. He was related - - he was related by marriage
to the defendant also and said - - but he said he could do it . . . . But it’s
because of that relationship that we chose S5.
THE COURT: Court finds a race-neutral reason for Austin and will accept
him as S5.
¶16.
Thomas contends that the trial court did not make an on-the-record determination as
to the merits of the State’s race-neutral reasons, and the trial court did not give him an
opportunity to rebut the State’s proffered reasons. In regard to whether the trial court
allowed Thomas to rebut the State’s reasons, we note that Thomas failed to object during the
Batson hearing. Furthermore, although the trial court did not specifically ask Thomas for
rebuttal, Thomas had the opportunity to offer rebuttal at any time during the hearing.
¶17.
Thomas cites to Hatten v. State, 628 So. 2d 294, 298 (Miss. 1993) in support of his
position that the trial court is required to make specific findings as to the merits of the
race-neutral reasons given for excluding the potential jurors. Hatten requires trial courts to
make “an on-the-record, factual determination, of the merits of the reasons cited by the State
for its use of peremptory challenges against potential jurors.” Id. at 298. However, in Gary
v. State, 760 So. 2d 743, 748 (¶12) (Miss. 2000), the supreme court stated the following:
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[W]here a trial judge fails to elucidate such a specific explanation for each race
neutral reason given, we will not remand the case for that Batson-related
purpose alone. This Court is fully capable of balancing the Batson factors in
cases such as this one. Continued remand of such cases only wastes the trial
court’s limited resources and acts to further delay justice.
See Pruitt v. State, 986 So. 2d 940, 946 (¶¶20-21) (Miss. 2008); Johnson v. State, 875 So. 2d
208, 214 (¶10) (Miss. 2004); Berry v. State, 802 So. 2d 1033, 1047 (¶¶47-49) (Miss. 2001);
Newberry v. State, 2007-KA-00875-COA (¶7) (Miss. Ct. App. Dec. 9, 2008). Since Thomas
offered no rebuttal, the trial court based its decision on the reasons given by the State and
found these reasons to be race-neutral. We can find no error on the part of the trial court;
thus, this issue is without merit.
¶18.
We note that the trial court had to conduct another Batson hearing based on Thomas’s
improper use of peremptory strikes. The trial court found that one of Thomas’s race-neutral
reasons was unacceptable and refused to grant that particular strike.
V. PROSECUTORIAL MISCONDUCT
¶19.
In his fifth issue on appeal, Thomas cites to five instances of alleged prosecutorial
misconduct that denied him a fair trial. We will address each perceived error separately.
A. Comment Concerning Thomas Firing a Weapon
¶20.
During opening statements, the State was describing the police officer’s attempt to get
a description of the person “who did the shooting and robbing.” Thomas objected to any
testimony about a shooting. Once Thomas realized that the State was describing Thomas’s
actions when he entered the establishment and not implying that he was shooting the patrons,
Thomas withdrew his objection. Upon resuming its opening statement, the State reiterated
to the jury that Thomas fired a shot into the ceiling and not at the individuals inside. Since
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Thomas withdrew his objection, we cannot find any error with this statement.
B. Comment Concerning “Exhibiting” During Opening Statement
¶21.
During opening statements, the State was discussing the elements of armed robbery
and stated the following: “Not just robbery, armed robbery. Exhibiting a weapon. See, when
you point and wave, you are exhibiting a weapon.” Although Thomas failed to object to this
statement, we find no error regardless. The State was merely discussing the elements of
armed robbery.
C. Comment on Facts Not in Evidence
¶22.
During closing statements, the State said the following: “If he had something over his
eyes, he couldn’t see so his whole face wasn’t covered, folks. That’s the thing. His whole
face wasn’t covered.” Thomas objected, arguing that this statement was contrary to the
evidence. The trial court overruled the objection. In general, parties may comment upon any
facts introduced into evidence, and may draw whatever deductions and inferences that seem
proper from the facts. Bell v. State, 725 So. 2d 836, 851 (¶40) (Miss. 1998). Although all
the witnesses testified that Thomas had some type of fabric tied around his head, we cannot
find that this statement concerning Thomas’s eyes was prejudicial. One could easily infer
that, in order to commit the crimes as charged, Thomas would not have restricted his
eyesight.
D. Comments Regarding a False Statement Made by a Witness
¶23.
Thomas argues that the State improperly attempted to impeach Rosie Thomas,
Thomas’s mother, during Thomas’s testimony. During her testimony Rosie was asked what
Thomas was wearing on the night of the armed robbery. Rosie stated that Thomas was
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wearing a long blue-striped shirt, blue jeans, and black shoes. On cross-examination, Rosie
stated that she had gone to bed around 11:35 p.m. on the night of the armed robbery and
heard about the alleged armed robbery not long after around 12:10 a.m. The State also
elicited information concerning her shift hours as a dispatcher for the police department.
When asked about her work schedule, Rosie stated that she believed the armed robbery had
occurred on a Saturday night and that she had worked the day shift that Saturday from 6:00
a.m. until 2:00 p.m.
¶24.
During direct examination, Thomas stated that he returned home to Rosie’s house
sometime after 10:30 or 11:00 p.m. and that he thought his mom was in her room. During
Thomas’s cross-examination, the State asked Thomas if he was aware that, on the night of
the robbery, Rosie clocked in for work at 11:00 p.m. Thomas objected to the State trying to
impeach him with Rosie’s testimony. The trial court overruled the objection. However, on
appeal, Thomas asserts that the State was attempting to impeach Rosie’s testimony, rather
than Thomas’s testimony in violation of Rule 613(b) of the Mississippi Rules of Evidence.
¶25.
First, we note that Thomas’s contention is waived. “Asserting grounds for an
objection on appeal that differs from the ground given for the objection at the trial level does
not properly preserve the objection for appellate review.” Woodham v. State, 779 So. 2d 158,
161 (¶12) (Miss. 2001). Second, we note that Rule 613(b) refers to prior inconsistent
statements by a witness. We find no evidence in the record of any prior statements made by
Rosie that could be used to impeach her testimony.
¶26.
Thomas also takes issue with a statement made by the State to the trial court regarding
a rebuttal witness. However, this conversation occurred at the bench, away from the jury’s
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ears.
E. Comment During Sentencing Hearing
¶27.
During the sentencing hearing the State made a comment that the trial court should
“take into consideration the fact that he put us through this trial . . . [Thomas] should have
taken his plea offer.” Thomas responded that it is “unconstitutional for him to be punished
for exercising his right to a trial.” The trial court responded, “And I agree with that. I would
not consider that as part of his sentencing.” The trial court clearly was not influenced by
Thomas’s failure to plead guilty. We can find no prejudice in the State’s comments.
F. Cumulative Error
¶28.
Thomas argues that the numerous instances of prosecutorial misconduct necessitate
a reversal. As we have found no evidence of prosecutorial misconduct, this issue is without
merit.
VI. JURY INSTRUCTION D-5
¶29.
In his sixth issue on appeal, Thomas argues that the trial court erred in amending jury
instruction D-5 to strike certain language. The instruction stated the following:
It is a question of fact whether the gun claimed to have been used by
Christopher Thomas was a deadly weapon in the manner claimed to have been
used.
A deadly weapon may be defined as any object, article or means which, when
used as a weapon under the existing circumstances is reasonably capable of
producing or likely to produce death or serious bodily harm to a human being
upon whom the object, article or means is used.
The State objected to the language “in the manner claimed to have been used,” and over an
objection by Thomas, the language was removed from the instruction. It is well-settled law
12
that an appellate court does not review jury instructions in isolation; instead, we consider
them as a whole to determine if the jury was properly instructed on the law. Milano v. State,
790 So. 2d 179, 184 (¶14) (Miss. 2001). When read as a whole, if the instructions fairly
announce the law of the case and create no injustice, no reversible error will be found.
Phillipson v. State, 943 So. 2d 670, 671 (¶5) (Miss. 2006).
¶30.
Thomas cites to Davis v. State, 530 So. 2d 694, 700 (Miss. 1988) to support his
contention that using this particular language in jury instructions has been upheld. We agree
with Thomas. However, we find no reversible error because the language in the second
paragraph of D-5, “when used as a weapon under the existing circumstances,” adequately
conveys the same point as the removed language.
VII. OBJECTIONS MADE BY THOMAS
¶31.
In his seventh issue on appeal, Thomas argues that the trial court erred in overruling
certain objections made during trial.
The first challenge occurred during the direct
examination of Collins. The State asked Collins if his story of the events that night had
changed between the robbery and trial. Thomas made a general objection, which the trial
court overruled. The supreme court has stated that objections must be made with specificity
in order to be preserved for appeal and that “general objections will not suffice.” Seeling v.
State, 844 So. 2d 439, 445 (¶17) (Miss. 2003). Thomas has failed to preserve this issue on
appeal.
¶32.
The next objection occurred during the testimony of Officer Bright. The State asked
Officer Bright if there was another suspect during the course of the investigation. Officer
Bright responded in the negative.
Thomas objected, stating the question called for
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speculation. Thomas argues that Officer Bright was not the chief investigator on the case and
did not have firsthand knowledge of the investigation. However, Officer Bright clarified that
there was not another suspect in his part of the investigation. We note that there were no
other suspects because Thomas turned himself in on the night of the armed robbery. We
cannot find any error by the trial court in overruling this particular objection.
¶33.
Thomas also refers us to his earlier issue concerning the improper impeachment of
Rosie’s testimony through Thomas’s testimony. Finding no error, we decline to review this
argument again.
¶34.
Lastly, Thomas cites to his cross-examination where the State asked him if he had
ever owned a firearm. Thomas objected as to relevance, and the trial court sustained the
objection. At the same time the trial court ruled on the objection, Thomas answered “thirtyeight.” Thomas claims that the trial court overruled the objection, but the record clearly
reflects that the trial court sustained the objection. Since Thomas did not request that the jury
be told to disregard the objectionable matter, then there is no error. See Shipp v. State, 749
So. 2d 300, 303-04 (¶¶16-17) (Miss. Ct. App. 1999). This issue is without merit.
VIII. SUFFICIENCY OF THE EVIDENCE
¶35.
In his eighth issue on appeal, Thomas argues that the trial court erred in failing to
grant his motion for a directed verdict and his motion for a JNOV. Thomas argues that the
evidence was legally insufficient to support the verdict. Thomas mentions that the verdict
was against the overwhelming weight of the evidence, but his brief solely discusses whether
the evidence was sufficient.
¶36.
A motion for a JNOV challenges the sufficiency of the evidence. Bush v. State, 895
14
So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he critical inquiry is whether the evidence shows
‘beyond a reasonable doubt that accused committed the act charged, and that he did so under
such circumstances that every element of the offense existed.’” Id. (citation omitted). If,
viewing the evidence in the light most favorable to the State, any rational trier of fact could
have found, beyond a reasonable doubt, the essential elements of the crime existed, this Court
will affirm the denial of a motion for a JNOV. Id. If we find that reasonable, fair-minded
jurors could have concluded that the defendant was guilty of the accused crime, the evidence
will be deemed sufficient. Id.
¶37.
Thomas’s sole contention is that the State failed to prove that he was, in fact, the
perpetrator. Thomas relies on the testimony from Collins, Clark, and Jones, who each stated
that they did not see the face of the armed robber. However, Collins had known Thomas for
ten to fifteen years and testified that he recognized Thomas from the clothes he was wearing.
Clark had known Thomas for eight years and recognized him from his voice, his clothes, and
his shoes.
Jones had also seen Thomas leave the Game Room and testified that he
recognized Thomas when he returned by his clothing, shoes, and height. Although there was
conflicting testimony as to the exact color of Thomas’s clothes, the jury was responsible for
weighing this conflicting evidence, “evaluating the credibility of witnesses, and determining
whose testimony should be believed.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct.
App. 1999). From the evidence presented, we find that reasonable, fair-minded jurors could
have concluded that Thomas was guilty of armed robbery. This issue is without merit.
IX. CUMULATIVE ERROR
¶38.
In his final issue on appeal, Thomas argues that the cumulative errors of the trial court
15
mandate reversal for a new trial. Finding each of Thomas’s arguments to be without merit,
we consequently do not find any cumulative error that would necessitate a reversal. This
issue is without merit.
¶39. THE JUDGMENT OF THE YAZOO COUNTY CIRCUIT COURT OF
CONVICTION OF THREE COUNTS OF ARMED ROBBERY AND SENTENCE OF
FIFTEEN YEARS FOR EACH COUNT, WITH THE SENTENCES TO RUN
CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO YAZOO COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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