Clay v. State

881 So. 2d 323, 2004 WL 1879243
Court of Appeals of Mississippi·Decided August 24, 2004·No. 2003-KA-00235-COA·Published·Cited by 5 cases

Opinion

881 So.2d 323 (2004)

Willie Earl CLAY a/k/a Willie E. Clay, Jr., Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-00235-COA.

Court of Appeals of Mississippi.

August 24, 2004.
Rehearing Denied November 2, 2004.

*324 James A. Williams, Brookhaven, attorney for appellant.

Office of the Attorney General by Charles W. Maris, Billy L. Gore, attorneys for appellee.

EN BANC.

CHANDLER, J., for the Court.

¶ 1. This appeal arises from a November 25, 2002 order of the Lauderdale County Circuit Court sentencing Willie E. Clay as an habitual offender after a jury found him guilty of burglary of a dwelling, pursuant to Mississippi Code Annotated section 97-17-23 (Rev.2000). Clay raises five issues on appeal challenging the manner in which identification testimony was introduced, the circuit court's handling of the jury's *325 apparent confusion over a lesser-included offense instruction, the effectiveness of trial counsel and the sufficiency of the evidence supporting the jury's verdict. He further asserts that the cumulative effect of the errors complained of denied his right to a fair and impartial trial. Finding no merit to these assignments of error, we affirm Clay's sentence and conviction.

FACTS

¶ 2. In mid-afternoon, on July 6, 2001, seventy-year-old Mary Katherine Duke heard a noise at her front door which sounded "like someone was tearing it up." She found the solid wood door kicked in and a man standing in her living room. She screamed at him; he looked at her without speaking and started toward her. As she started to run through the kitchen, he grabbed her blouse and pulled her back. She threw one chair in front of him and pushed another in his way before falling out the back door and down the steps. The man ran back out the front door and backed his car down the road.

¶ 3. Mrs. Duke's nephew, Langdon Duke, who lived in a trailer behind her house, heard his aunt's screams. He ran to her assistance and together they went around to the front yard where Langdon threw a rock at the intruder's car. Before calling the sheriff's department, they tried unsuccessfully to get a license tag number as the white, four-door car backed away.

¶ 4. Mrs. Duke testified at trial that the same man had come to her house the previous Sunday. He had inquired about a man named "Tuttle," claiming that he was responding to an ad in the newspaper. He also had asked to use her telephone and she brought a portable phone outside for him.

¶ 5. Ricky Presson, an investigator with the Lauderdale County Sheriff's Department, responded to Mrs. Duke's call and was assigned to investigate the case. The State Crime Laboratory was not able to make an identification of any fingerprints taken at the scene. Based on the Dukes' description of the intruder and his car, however, the sheriff's deputies thought Clay might be a suspect. Investigator Presson prepared a line-up of some photographs, including Clay's. He testified that when he first showed the line-up to Mrs. Duke, she became very frightened and said she would have to see the individual in person to make a positive identification. She later identified a more recent picture of Clay in another photo line-up Presson prepared.

¶ 6. Investigators then questioned Clay's girlfriend, Betty Doss, about Clay's whereabouts at the time of the crime, and the vehicle he was driving. Her description of a white 1985 Suburu with a dented right side matched the description given to Presson by Mrs. Duke and her nephew. It subsequently was found in the possession of a local mechanic, Jimmy Hopson, to whom Clay had given the car as security for money he borrowed from Hopson to buy back the car title from a local "Title for Cash" store.

¶ 7. Clay's girlfriend brought him into the sheriff's office on July 10, 2001. He gave a statement to Investigator Presson, admitting that he had been at Mrs. Duke's home. Clay, however, told authorities that he had knocked on Mrs. Duke's door to ask if she had seen the man he had been looking for previously and if she needed any yard work done. Clay stated that he asked her if he could have some water and when she turned to go inside, he thought she wanted him to come inside, too. He stated that "when I stuck my leg inside the door she panic [sic] and started hollering and pushing the door." He further claimed to have panicked, too, and started *326 walking "real fast" to his car, while Mrs. Duke "was screaming and hollering stuff."

¶ 8. On August 1, 2002, Clay was indicted by the grand jury of the Lauderdale County Circuit Court for burglary of a dwelling. His trial was held on November 25, 2002. Clay elected not to testify. The jury returned two separate verdicts, finding him guilty of burglary of a dwelling as well as of the lesser included offense, illegal trespass. After the circuit judge re-instructed the jury that it could return only one verdict, the jury deliberated further and found Clay guilty of burglary of a dwelling. Clay's motions for a mistrial, a new trial and a motion for a JNOV were denied by the circuit court. Clay was sentenced as an habitual offender to serve twenty-five years in the custody of the Mississippi Department of Corrections.

LAW AND ANALYSIS

I. WHETHER CLAY WAS DENIED A FAIR TRIAL BY THE IDENTIFICATION TESTIMONY GIVEN BY INVESTIGATOR RICKY PRESSON

¶ 9. Clay first asserts that he was prejudiced by the State's questioning of Investigator Ricky Presson, which, he contends, impermissibly revealed to the jury that he previously had been in trouble with the law and was "known to law enforcement." However, as distinguished from Robinson v. State, 735 So.2d 208 (Miss.1999) and Edlin v. State, 533 So.2d 403 (Miss.1988), on which Clay relies, no evidence of prior crimes, convictions or bad acts was introduced at trial. Rather, he now objects only to Presson's testimony regarding Mrs. Duke's identification of Clay from a photo line-up as well as his discussion with other investigators which led to the development of Clay as a suspect. While Clay's attorney made several timely objections during Presson's testimony, he did not object at trial to the lines of questioning to which he now objects. His right to raise these issues for appellate review, therefore, is forfeited. Walker v. State, 671 So.2d 581, 587 (Miss.1995); Kelly v. State, 463 So.2d 1070, 1073 (Miss.1985).

¶ 10. Clay, however, contends that the State's line of questioning was so egregious as to amount to plain error. As the State points out, "[t]he plain error doctrine permits this court to review errors committed during trial, even if they are not properly preserved on appeal, where those errors impact fundamental rights." Jackson v. State, 815 So.2d 1196, 1199(¶ 5) (Miss.2002). Clay does not articulate what fundamental rights were affected or how his rights may have been impacted by the testimony. Furthermore, no evidence of Clay's prior crimes or convictions, subject to limitation by Rule 404(b) of the Mississippi Rules of Evidence as discussed in Robinson, was even presented at trial. Accordingly, we find no merit to this assignment of error.

II. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO GRANT A MISTRIAL AFTER THE JURY RETURNED TWO SEPARATE VERDICTS

¶ 11. The jury received separate instructions on the elements of the crimes of burglary of a dwelling and illegal trespass. Clay

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