Kunta Kidd v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: July 23, 2019
• Docket: 2018-KA-00171-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00171-COA

KUNTA KIDD A/K/A KUNTA KENTA KIDD APPELLANT A/K/A JACOB KIDD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/20/2017 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/23/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

GREENLEE, J., FOR THE COURT:

¶1. In 2017, a Forrest County grand jury indicted Kunta Kidd for kidnapping, armed

robbery, and aggravated assault. The State proceeded to trial on the kidnapping and

aggravated-assault charges, and Kidd was found guilty of both. On appeal, Kidd claims (1)

the evidence was insufficient to support his convictions, (2) the jury’s verdicts are against

the overwhelming weight of the evidence, (3) he was denied his right to confrontation and

his right to compulsory process, (4) the prosecutor engaged in prosecutorial misconduct, and

(5) he received ineffective assistance of counsel. Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY

¶2. At trial, sixty-three-year-old Eugene Buckley testified that when he arrived at his

house in Hattiesburg, Mississippi, on September 17, 2016, he noticed Kunta Kidd drinking

beer in his yard. Although it was getting dark outside, Buckley told Kidd that it was too early

for any nonsense. As Buckley opened his door, another man knocked him down and started

beating him and searching his clothing, including his socks and shoes. Then Kidd joined in.

According to Buckley, the men took his money and then left.

¶3. When questioned further about the incident, Buckley testified that as the men were

beating him, he lied and told them that his friend, Robert Boles, had his money. Buckley

hoped that the men would take him to Boles’s house and that Boles would call the police.

But when they arrived, Kidd stayed in the vehicle with Buckley while the other man knocked

on Boles’s door. When Boles did not answer, the man returned to the vehicle, and Kidd went

and knocked on the door. Buckley testified that he overheard Kidd ask Boles for his

(Buckley’s) money, but Boles said he did not have it. According to Buckley, someone was

in the vehicle with him at all times, and he was not able to leave. He also testified that Kidd

had a gun, and the other man acted like he had a gun.

¶4. Buckley testified that the men took him back to his house and continued to beat him.

According to Buckley, he eventually took off his shoe and sock and gave them $1,000. And

at that point, the men left. Defense counsel asked why the men did not find the money when

they were searching him earlier, and Buckley testified that they did not pull his shoes off.

¶5. When asked about the burns on his body, Buckley testified that he forgot about that

2 part. According to Buckley, before the men left, they threw gasoline on him, and Kidd used

a cigarette lighter to set him on fire.

¶6. Buckley testified that his nephew, David Alexander (a.k.a. “Man”),1 checked on him

every day. And Alexander showed up at some point during the incident. According to

Buckley, Kidd told Alexander that Buckley owed him some money, so Alexander left.2 But

Buckley testified that Alexander returned while he was on fire and threw a sheet over him

to extinguish the flames. Then Alexander took Buckley to Forrest General Hospital, but

Alexander did not stay with him.

¶7. Buckley was at the hospital briefly before he was airlifted to the burn center in

Jackson. According to Buckley, he initially told the police that he did not want to talk about

the incident because he feared for his life. But once he was assigned a room, he identified

Kidd as one of the suspects. At trial, the prosecutor asked Buckley if he saw Kidd in the

courtroom, and Buckley said, “No. . . .” Buckley was then instructed to stand up and look

around the courtroom. Buckley said, “Really, I don’t believe the person was from

Hattiesburg.” The prosecutor clarified that he was asking about Kidd and not the

unidentified suspect. Then Buckley identified Kidd as the person who set him on fire.

¶8. Boles testified that he heard Buckley’s truck outside his house around midnight.

Boles and Buckley had talked earlier, and Buckley indicated that he might stop by. But when

1 Buckley also referred to Alexander as his cousin. 2 It is not clear from the record, but Alexander may have said to Kidd, “I understand, man. . . . [D]o what you’ve got to do.”

3 Boles answered the door, he was surprised to see Kidd and not Buckley.3 Although Boles

sometimes held money for Buckley, he was not on that date. Boles testified that he told Kidd

that he did not have Buckley’s money, and then Kidd drove away. According to Boles, there

were two other people inside the vehicle, but it was too dark to identify them. Boles testified

Buckley’s cousin—Fonda Williams—called him a few hours later to tell him that Buckley

was in the hospital.

¶9. Fonda Williams testified that around 1 a.m., her son—David Alexander—called her

and told her to go to the hospital. According to Williams, when she arrived at the hospital,

Buckley identified Kidd as a suspect. But on cross-examination, Williams testified that she

was not sure if Buckley identified Kidd as a suspect at the hospital or at the burn center.

¶10. Another one of Buckley’s cousins, Janet Creekmoore, testified that Williams told her

to go to the hospital. According to Creekmoore, Buckley told her that Kidd burned him

because he would not give him his money.

¶11. Officer Thomas Robinson Sr., with the Hattiesburg Police Department, responded to

the hospital. He testified that Buckley’s hospital room smelled of gasoline, and he noticed

that Buckley had been burned. According to Officer Robinson, Buckley stated that two

African-American males robbed him, and then his nephew drove him to the hospital. But

Buckley refused to tell Officer Robinson who the suspects were because he was scared that

they would “come back and finish him off.”

¶12. When Officer Robinson stepped outside the hospital room, he spoke with Williams,

3 Boles testified that he recognized Kidd from seeing him around the community.

4 who stated that Alexander called her and told her that Buckley had been burned. She stated

that she then called Boles, who identified Kidd as a suspect. But at the time, Buckley would

not identify the suspects. Officer Robinson testified that he tried to get in touch with

Alexander, but he did not have Alexander’s contact information.4 According to Officer

Robinson, Buckley did not identify Kidd as a suspect until after he turned the case over to

the detectives.

¶13. Jeff Byrd, the crime scene investigator, testified that he found a burned shirt inside of

Buckley’s house. He also found a small reddish stain, which he believed was blood and

another unknown substance that was possibly flesh. When asked why nothing was submitted

to the Mississippi Forensics Laboratory for testing, Byrd explained that he was not

responsible for making that decision.

¶14. Lieutenant Dale Bounds testified that he obtained written statements from Williams

and Creekmore on September 19. They stated that Buckley told them at the burn center that

Kidd robbed him and set him on fire. Lieutenant Bounds then called Buckley at the burn

center, and Buckley confirmed that Kidd had stolen $1,000 from him and set him on fire.

¶15. Once Buckley was released from the burn center, Lieutenant Bounds spoke with him

in more detail. Buckley stated that on September 17, 2016, Kidd had been hanging out at his

house all day, drinking and asking for drugs. And eventually, Kidd started demanding

money. Buckley told him that two people were involved in the incident—Kidd and a tall,

slender African-American male with plats in his hair. Lieutenant Bounds spoke with Boles,

4 Officer Robinson testified that he asked Williams for Alexander’s phone number, but Williams told him that Alexander called her from a blocked number.

5 who stated that Kidd came to his house asking for Buckley’s money that night. And

Lieutenant Bounds spoke with Alexander over the telephone, but Alexander stated that he

did not have any information.

¶16. After the State rested its case-in-chief, Kidd testified in his defense. Kidd testified

that around 10:30 p.m. or 11 p.m. on September 17, 2016, he and his cousin, Amber, stopped

by Buckley’s house on their way to the store. Kidd testified that he had known Buckley for

years, and Buckley owed him a payment for cocaine. According to Kidd, Buckley answered

the door and said that he forgot because he was drunk. Kidd testified that he asked Buckley

for the payment, and Buckley said to give him five minutes. So Kidd went to the store and

then back to his apartment.

¶17. Kidd testified that five to ten minutes later, Buckley brought him the money for the

cocaine. According to Kidd, they sat and talked for a minute, and Buckley had “a pint” with

him. Kidd testified that around 11 p.m. or 11:30 p.m. they both walked outside to go their

separate ways. According to Kidd, before he got in a vehicle to go to the club he noticed two

men standing outside. Kidd could not recall the name of the person who drove the vehicle

or the name of the club that he went to.

¶18. Kidd testified that after going to the club, he went back to his apartment. When he

woke up the next morning, a woman outside told him what happened, and he said, “[T]hey’re

probably gonna have my name all up in some crap, you know, like they always do.” Kidd

explained that people in the community disliked him because he had recently served eleven

years for strong-armed robbery. Kidd denied going to Boles’s house, and he denied robbing

6 and setting Buckley on fire.

¶19. Ultimately, the jury found Kidd guilty of kidnapping and aggravated assault. The trial

court sentenced Kidd, as a violent habitual offender, to serve consecutive terms of life in the

custody of the Mississippi Department of Corrections. After the denial of his post-trial

motion, Kidd appealed.

DISCUSSION

I. Sufficiency of the Evidence

¶20. When reviewing a challenge to the sufficiency of the evidence, “the relevant question

is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Reynolds v. State, 227 So. 3d 428, 436 (¶32) (Miss. Ct. App. 2017). “The issue on

appeal is not whether the reviewing court would have found the defendant guilty; rather, the

conviction must be affirmed if there was sufficient evidence for ‘any rational trier of fact’

to have rendered a guilty verdict.” Id.

¶21. In order to obtain a conviction for kidnapping in this case, the State had to prove that

Kidd, acting without lawful authority, and with or without intent to secretly confine, forcibly

seized and confined Buckley. Miss. Code Ann. § 97-3-53 (Rev. 2014). At trial, Buckley

testified that when they arrived at Boles’s house, Kidd stayed in the vehicle with him while

the other man knocked on Boles’s door. When Boles did not answer, the man returned to the

vehicle, and Kidd went and knocked on the door. According to Buckley, someone was in the

vehicle with him at all times, and he was not able to leave. He also testified that Kidd had

7 a gun, and the other man acted like he had a gun.

¶22. In order to obtain a conviction for aggravated assault in this case, the State had to

prove that Kidd purposely caused serious bodily harm to Buckley by pouring gasoline or

kerosene on him and burning him. Miss. Code Ann. § 97-3-7(2)(a)(ii) (Rev. 2014). Buckley

testified that before the men left, they threw gasoline on him, and Kidd used a cigarette

lighter to set him on fire. Officer Robinson testified that when he arrived at the hospital,

Buckley’s room smelled of gasoline, and he noticed that Buckley had been burned.

¶23. After viewing the evidence in the light most favorable to the prosecution, we find that

any rational trier of fact could have found the essential elements of the crimes beyond a

reasonable doubt. This issue is without merit.

II. Weight of the Evidence

¶24. When reviewing a challenge to the weight of the evidence, “we will only disturb a

verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to

stand would sanction an unconscionable injustice.” Lloyd v. State, 228 So. 3d 953, 956 (¶9)

(Miss. Ct. App. 2017). The evidence must be viewed “in the light most favorable to the

verdict, and we must affirm unless the trial court abused its discretion in denying a new

trial.” Id.

¶25. Kidd asserts that Buckley was not a reliable witness. But this Court has held that

“[w]itness credibility is for the jury to determine.” Duncan v. State, 240 So. 3d 519, 523

(¶17) (Miss. Ct. App. 2018) (citing Winding v. State, 908 So. 2d 163, 168 (¶20) (Miss. Ct.

App. 2005)). “The jury acts as fact-finder and must determine the credibility of the

8 witnesses, and the proper weight to be assigned to their testimony.” Id. “Any conflicts in

the evidence are for the jury to resolve.” Id. (citing Williams v. State, 64 So. 3d 1029, 1033

(¶13) (Miss. Ct. App. 2011)).

¶26. Kidd also asserts that law enforcement disregarded evidence that may have led to

other suspects. For example, Kidd argues that law enforcement should have obtained

surveillance footage from the club as well as the store near Buckley’s house. He also argues

that evidence should have been submitted to the crime lab. But the State is not obligated “to

present proof of the breadth of its investigation.” Bryant v. State, 853 So. 2d 814, 820 (¶21)

(Miss. Ct. App. 2003). “It is necessary but also sufficient that the State present proof that the

defendant committed the crime.” Id. As discussed in Issue I, the State presented sufficient

evidence that Kidd committed the crimes in this case.

¶27. Considering the evidence presented, we do not find the verdict to be so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice. Accordingly, the trial court did not err in denying Kidd’s motion

for a new trial.

III. Rights to Confrontation and Compulsory Process

¶28. Kidd claims he was denied the right to confront his accuser and the right to

compulsory process because David Alexander did not testify at trial.

¶29. The Sixth Amendment to the United States Constitution provides that in all criminal

prosecutions, the accused shall enjoy the right to be confronted with the witnesses against

him. U.S. Const. amend. VI. “The Confrontation Clause confers a right to confront those

9 who bear testimony against the defendant.” Chambliss v. State, 233 So. 3d 898, 903 (¶22)

(Miss. Ct. App. 2017) (quoting Conners v. State, 92 So. 3d 676, 682-83 (¶16) (Miss. 2012)).

Therefore, “the testimonial statements of a witness who does not testify at trial are

inadmissible unless the witness is unavailable and the defendant had a prior opportunity for

cross-examination.” Id.

¶30. A review of the record reveals that Kidd failed to raise this issue at trial or in his post-

trial motion. Accordingly, Kidd has waived this issue. See id. at 903 (¶23); see also Anthony

v. State, 23 So. 3d 611, 620 (¶41) (Miss. Ct. App. 2009). Notwithstanding the procedural bar

to this claim, we note that none of Alexander’s alleged testimony was against Kidd. Fonda

testified that Alexander told her to go to the hospital. And Lieutenant Bounds testified that

Alexander told him that he did not have any information about the incident.

¶31. With respect to his compulsory process argument, Kidd acknowledges that no

subpoenas or summons were issued to compel David Alexander’s presence at trial. Because

Kidd never asserted his compulsory rights or objected at trial, we find that Kidd waived this

claim as well. See Gilmore v. State, 772 So. 2d 1095, 1100 (¶17) (Miss. Ct. App. 2000); see

also Brandau v. State, 662 So. 2d 1051, 1054 (Miss. 1995).

IV. Prosecutorial Misconduct

¶32. Kidd claims the prosecutor engaged in numerous instances of prosecutorial

misconduct. “The standard of review for prosecutorial misconduct has been clearly

established by the Mississippi Supreme Court as follows: Where prosecutorial misconduct

endangers the fairness of a trial and the impartial administration of justice, reversal must

10 follow.” Anderson v. State, 154 So. 3d 42, 57 (¶48) (Miss. Ct. App. 2014) (quoting

Catchings v. State, 39 So. 3d 943, 947 (¶10) (Miss. Ct. App. 2009)).

¶33. Kidd’s primary complaint is that the prosecutor knowingly used false testimony. But

Kidd’s defense counsel did not object to this at trial. This Court has repeatedly held that

“failure to object contemporaneously at trial waives any claim of error on appeal.” Graves

v. State, 216 So. 3d 1152, 1161 (¶26) (Miss. 2016). Therefore, Kidd waived the right to raise

this instance of alleged prosecutorial misconduct on appeal. Id. at 1162 (¶26).

Notwithstanding the procedural bar, Kidd’s argument lacks merit. Kidd’s claim is actually

a challenge to the weight of the evidence because he disputes the credibility of witnesses and

points to conflicts in their testimony. But as discussed, this Court does not determine the

credibility of witnesses or resolve conflicts in the evidence. Little v. State, 233 So. 3d 288,

289 (¶1) (Miss. 2017). That is the jury’s responsibility. Id.

¶34. Kidd also claims the prosecutor violated Mississippi Rule of Evidence 404(b). Rule

404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove

a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” M.R.E. 404(b)(1). But “[t]his evidence may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” M.R.E. 404(b)(2).

¶35. At trial, Kidd testified that the morning after the incident, a woman told him what

happened, and he said, “[T]hey’re probably gonna have my name all up in some crap, you

know, like they always do.” On cross-examination, the prosecutor questioned Kidd about

11 his testimony:

BY THE PROSECUTOR: You get up in the morning. They tell you he’s been injured, and your first thing come in your mind is, oh, they gonna say I did it?

BY THE DEFENDANT: I mean, you know, you have to know - -

BY THE PROSECUTOR: Why?

BY THE DEFENDANT: - - where I was. You had to know where I was in life before I went and did. I had just done 11- calendar years for a prior conviction, so I had just got home. ....

BY THE DEFENDANT: I violated on probation. I was out from serving a[n] 11-year sentence.

BY THE PROSECUTOR: For what?

BY THE DEFENDANT: I was on probation.

BY THE DEFENDANT: On strong-armed robbery, yes.

¶36. The prosecutor then questioned Kidd about his “propensities” and his “past history

to do this type [of] stuff.” The prosecutor commented that it “sounds like [the crime in this

case] would fit the pattern” because “that follows the M.O.” But Kidd’s defense counsel did

not object to the prosecutor’s questioning on the basis that it violated Rule 404(b).

Therefore, Kidd waived the right to raise this claim on appeal. See Graves, 216 So. 3d at

1161 (¶26); see also Tidwell v. State, 806 So. 2d 1146, 1148 (¶8) (Miss. Ct. App. 2002).

¶37. Kidd also claims that the prosecutor improperly vouched for witnesses. Specifically,

Kidd takes issue with the following comment made by the prosecutor: “Nah, you got the

12 handcuffs put on [you] because the victim identified you. A non-biased witness identified

you as holding him in the car, and that all these people - - you’re talking about this club, none

of that actually exist[s].” Defense counsel objected, asking: “Is this a question, or is [the

prosecutor] testifying?” Because defense counsel did not object on the basis that the

prosecutor was improperly vouching for a witness, Kidd waived the right to raise this claim

on appeal as well. See Walker v. State, 671 So. 2d 581, 616 (Miss. 1995).

¶38. Next, Kidd claims that Buckley was given a “second chance” to make an in-court

identification of Kidd. At trial, the prosecutor asked Buckley if he saw Kidd in the

courtroom, and Buckley said, “No[.]” Buckley was then instructed to stand up and look

around the courtroom. Buckley said, “Really, I don’t believe the person was from

Hattiesburg.” The prosecutor clarified that he was asking about Kidd and not the

unidentified suspect. Then Buckley identified Kidd as the person who set him on fire.

Although Kidd waived this claim as well, it is clear from the record that Buckley was

confused and thought he was being asked about the unidentified suspect, not Kidd.

¶39. Finally, Kidd takes issue with the fact that the prosecutor cut off Investigator

Bounds’s testimony. At trial, Investigator Bounds testified about the investigation. As he

started to testify about what the victim told him, the prosecutor said, “I don’t want - - just

stop. . . . So the jury won’t get too lost.” It may be inferred from the record that the

prosecutor was trying to prevent the witness from eliciting hearsay. Accordingly, this

instance of prosecutorial misconduct is without merit.

¶40. We find that Kidd’s prosecutorial-misconduct claims were either waived for failure

13 to object at trial or are without merit.

V. Ineffective Assistance of Counsel

¶41. Finally, Kidd claims he received ineffective assistance of counsel. In order to prove

ineffective assistance of counsel, a defendant must show: “(1) counsel’s performance was

deficient and (2) the deficient performance prejudiced the defense.” Herrington v. State, 102

So. 3d 1241, 1244 (¶10) (Miss. Ct. App. 2012) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). “Essentially, the defendant must show with reasonable probability that but

for counsel’s deficient performance, the outcome at trial would have been different.” Id.

(citing Carr v. State, 873 So. 2d 991, 1003 (¶28) (Miss. 2004)).

¶42. This Court has held that “[w]hen reviewing a claim of ineffective assistance of

counsel, ‘a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be considered sound

trial strategy.’” Id. at 1244-45 (¶11) (quoting Strickland, 466 U.S. at 689). “Moreover, ‘with

respect to the overall performance of the attorney, counsel’s choices of whether or not to file

certain motions, call witnesses, ask certain questions, or make certain objections fall within

the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.’”

Id. (quoting Carr, 873 So. 2d at 1003 (¶27)).

¶43. The State contends that Kidd’s ineffective-assistance-of-counsel claims should not be

heard on direct appeal and should be raised in a post-conviction-relief action. This Court

generally does not “consider a claim of ineffective assistance of counsel when the claim is

14 made on direct appeal because we are limited to the trial court record in our review of the

claim, and there is usually insufficient evidence within the record to evaluate the claim.” Id.

at 1245 (¶12) (quoting Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003)). But this

Court will consider an ineffective-assistance-of-counsel claim when: “(1) the record

affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate

that the record is adequate to allow the appellate court to make the finding without

consideration of the findings of fact of the trial judge.” Id.

¶44. Kidd asserts that his attorney failed to investigate, prepare for trial, adequately consult

with him, provide discovery materials, raise objections, effectively cross-examine witnesses,

and question the victim (Buckley) regarding his medical records. We agree with the State

that the record is not adequate to allow this Court to address the majority of Kidd’s claims.

We note that it is apparent from the record that defense counsel did not cross-examine the

victim about his medical records, which suggest that he may have consumed a pint of whisky

and indicate that he tested positive for alcohol and opiates on the night that the crimes

occurred. But counsel’s choice as to whether to ask certain questions falls within the ambit

of trial strategy. At this point, we cannot say that the record affirmatively shows

ineffectiveness of constitutional dimensions.

¶45. Because there is no obvious deficiency in Kidd’s counsel’s representation based on

the record before this Court and because the State has not stipulated that the record is

adequate to address Kidd’s claims, we dismiss Kidd’s ineffective-assistance-of-counsel

claims without prejudice. Should he choose to do so, Kidd may raise all of his ineffective-

15 assistance-of-counsel claims in a post-conviction proceeding.

¶46. AFFIRMED.

BARNES, C.J., CARLTON, P.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.