Gooden v. State

806 So. 2d 322, 2001 Miss. App. LEXIS 493, 2001 WL 1497171
CourtCourt of Appeals of Mississippi
DecidedNovember 27, 2001
DocketNo. 2000-KA-00850-COA
StatusPublished
Cited by1 cases

This text of 806 So. 2d 322 (Gooden v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gooden v. State, 806 So. 2d 322, 2001 Miss. App. LEXIS 493, 2001 WL 1497171 (Mich. Ct. App. 2001).

Opinion

IRVING, J.,

for the Court.

¶ 1. Larry Gooden was convicted of burglary of a storehouse. He was sentenced as a habitual offender and ordered to serve a term of seven years in the Mississippi Department of Corrections without the benefit of early release or parole. He brings this appeal and asserts the follow[324]*324ing assignments of error: (1) the trial court erred in denying his motion for a continuance when his witnesses were unavailable, (2) the court erred in allowing the jury to consider an exhibit not admitted into evidence, (3) the court erred in admitting forensic DNA blood evidence because the blood sample was taken from him in violation of his constitutional rights, and (4) the trial court erred in failing to grant his motions for a directed verdict and JNOV, or in the alternative, for a new trial. We reject Gooden’s contentions and affirm the judgment of the trial court.

FACTS

¶ 2. The Adams County Sheriffs Office responded to a burglary alarm at the Natchez Steam Laundry. Deputy Charles Latham arrived at the scene to investigate. During the trial, Deputy Latham testified that, upon his arrival, he witnessed a male individual put something on the ground and pull off a T-shirt. Latham further testified that he saw this gentleman move off the sidewalk and go up to the old Metro Communications Building which was next to the Natchez Steam Laundry. After a search of the surrounding area, two other policemen who had been called to assist in the investigation, found Gooden hiding under a nearby house. When found, Gooden was bleeding from three cuts on his hand. The police also found, just outside of the burglarized building, a small plastic file box containing some coins and some blood droppings on it. The file box was identified as belonging to Natchez Steam Laundry. Additionally, the police recovered a piece of glass from the interior of the burglarized building. The glass also had blood on it. The blood found on these items was matched with Gooden’s DNA. Additional facts, as needed, will be given during a discussion of the issues.

ANALYSIS OF THE ISSUES PRESENTED

1. Motion for Continuance

¶ 3. Gooden requested a continuance because of the absence of a subpoenaed witness he planned to present on his behalf and because there were other witnesses that he claimed needed to be subpoenaed. A subpoena had been issued for and served on Tina Fitzgerald. However, on the morning of the trial, Fitzgerald told Gooden she was not planning to come to court because her child was ill. Another subpoena, which had also been issued for another witness, had not been served. These subpoenas had been issued only four days prior to trial. When Gooden and his counsel arrived at the courthouse for trial, they moved for a continuance on the basis of witness unavailability. In support of the motion, counsel for Gooden advised the trial court that two new witnesses, or at least new to counsel’s knowledge, needed to be subpoenaed. Counsel argued that these witnesses would provide testimony crucial to Gooden’s defense. Defense counsel argued that the witnesses were crucial because they would support Goo-den’s claim that he had been cut prior to the arrest while doing some labor for Fitzgerald.

¶4. The trial judge stated that she would have the sheriff sent to pick up Fitzgerald because she was required to be present due to the subpoena. However, that apparently did not occur. As to the “new” witnesses, the judge reprimanded Gooden for his late disclosure of the witnesses and denied the request, citing his own delinquency as insufficient to support a continuance.

¶ 5. The granting of a continuance is a matter within the sound discretion of the judge. Johnson v. State, 631 So.2d 185, 189 (Miss.1994). Reversal is autho[325]*325rized when the judge abuses this discretion, and this abuse results in an injustice. See id.

¶ 6. It is abundantly clear that the absence of the testimony of these witnesses did not inure to Gooden’s detriment or cause an injustice. As the State aptly points out in its brief, testimony that Goo-den injured or cut his hand while working for Fitzgerald prior to the burglary does not add one whit to Gooden’s defense. Gooden’s blood was found on a piece of glass inside the burglarized building, as well as on the black plastic box that had been removed from the premises. Even if Gooden had been able to prove that he cut his hand prior to the burglary, that would not disprove the fact that he left blood at the scene of the crime. When Gooden came from under the building next to the laundry, his hand was bleeding. One of the officers testified that when Gooden came from under the building, he had what appeared to be a T-shirt wrapped around his hand. Apparently, this was the same T-shirt which Officer Latham had observed the individual pulling off.

¶ 7. DNA analysis determined that the blood left at the scene of the crime belonged to Gooden, and Gooden does not enlighten us on how these witnesses might have been able to provide an innocent explanation for his blood being at the scene of the burglary. Whether the blood came from an old injury or an entirely new one is totally irrelevant.

¶ 8. Additionally, as to the “new witnesses,” the judge was totally within her discretion when she refused to continue the trial because of Gooden’s own delinquency. Gooden was aware of these witnesses from the beginning and offered nothing to explain his tardy disclosure. Further, as with the cases of the subpoenaed witnesses, Gooden does not inform us as to how these witnesses’s testimony might have made a difference in the result of the trial. For the reasons stated, we can find no reason to conclude that the trial judge abused her discretion when she denied Gooden’s motion for a continuance.

2. Admission of Improper Evidence

¶ 9. Gooden claims that he was irreparably prejudiced when the trial court admitted into evidence the black box containing the coins. The box had been removed from the building, and coins, instead of tickets, were found inside of it. The black box, which was used in the laundry to keep customer tickets, was normally stored under the counter. An employee of the laundry testified that a jar filled with water and coins was kept on the counter.1 Following the burglary, the glass was found shattered on the floor with some coins scattered on the floor.

¶ 10. Gooden argues that the coins were separate and distinct from the box and should have been subjected to a separate procedural standard of admittance before placing them into evidence for the jury’s deliberation. Gooden further argues that the jury may have been led to believe that the coins found in the box were the same coins that were scattered on the floor as a result of the shattered jar.

¶ 11. The State argues that Gooden is procedurally barred from this argument because Gooden failed to make a timely objection at the time the box, containing the coins, was admitted into evidence. The State also points out that it was not until its closing argument that defense [326]*326counsel approached the bench and objected to the box’s admittance.2

¶ 12. Based upon our review of the record, we agree that defense counsel failed to make a timely objection, resulting in the procedural bar. Notwithstanding the procedural bar, we find that Gooden’s contention is not well founded.

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Related

Evans v. State
823 So. 2d 617 (Court of Appeals of Mississippi, 2002)

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Bluebook (online)
806 So. 2d 322, 2001 Miss. App. LEXIS 493, 2001 WL 1497171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gooden-v-state-missctapp-2001.