Bunch v. State

123 So.3d 484

Brandon BUNCH a/k/a Brandon Coleman Bunch a/k/a Brandon C. Bunch, Appellant

v.STATE of Mississippi, Appellee.

No. 2012–KA–00225–COA.

Court of Appeals of Mississippi.

Sept. 17, 2013.

Vanessa J. Jones, Hattiesburg, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.

CARLTON, J., for the Court:

¶ 1. Brandon Bunch appeals the judgment of the Wayne County Circuit Court that convicted him of five counts of automobile burglary and sentenced him as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC).

¶ 2. On appeal, Bunch raises the following issues:

(1) he was denied due process during voir dire by the trial court only allotting him ten minutes for jury selection and was prejudiced by not being allowed the twelve peremptory challenges as required by Mississippi Rule of Circuit and County Court 10.01;

(2) he was denied his fundamental right to a fair trial and was prejudiced by the court in allowing jury members [who] were friends of the victims [to remain on the panel];

(3) he was denied due process and his fundamental right to a fair trial and was prejudiced by the trial court allowing the State to appoint an “expert witness” to operate and control the computer used to display the surveillance videos;

(4) the trial court erred in allowing the State to select certain portions of the surveillance videos for viewing by the jury to the exclusion of all other portions of the videos[,] violating Mississippi Rule of Evidence 106;

(5) the trial court erred in allowing ... inadmissible hearsay evidence and violated his Sixth Amendment rights by allowing evidence to be admitted that [could not] be cross[-]examined[,] which violates the Confrontation Clause; he was also denied his fundamental right to a fair trial due to prosecutorial misconduct and by the court allowing witnesses to testify [about] videos that had not been entered into evidence;

(6) the trial court erred in allowing witnesses to testify who did not have personal knowledge[,] in violation of Mississippi Rule of Evidence 602;

(7) the State failed to prove all of the elements of the crime of automobile burglary in its five[-]count indictment; therefore, the trial court erred in denying the motion for [a] judgment notwithstanding the verdict (JNOV), or in the alternative, ... a new trial; consequently, the verdicts of guilty were against the overwhelming weight of the evidence;

(8) the trial court erred in sentencing him as a habitual offender under Mississippi Code Annotated section 99–19–83 [ (Rev.2007) ] because he had not served separate terms of one year or more in any state or federal penal institut[ion] as required by statute;

(9) his sentences constitute cruel and unusual [punishment] in violation of the Eighth Amendment of the United States Constitution;

(10) his life sentence is disproportionate in light of his crimes; and

(11) the trial court erred by the delay between the modification of probation, arrest, and the date of his final revocation hearing.

¶ 3. After reviewing the record, we find no error and affirm.

PROCEDURAL HISTORY

¶ 4. A grand jury before the Wayne County Circuit Court indicted Bunch on five counts of automobile burglary under Mississippi Code Annotated section 97–17–33 (Rev.2006) ¹ as follows:

(1) on October 31, 2010, Bunch burglarized Tina Foster's vehicle;

(2) between October 30, 2010, and November 1, 2010, Bunch burglarized Jonathan Tullos's vehicle;

(3) on November 3, 2010, Bunch burglarized Katie Odom's vehicle;

(4) between November 3, 2010, and November 4, 2010, Bunch burglarized Mike and Carolyn Powe's vehicle; and

(5) on November 4, 2010, Bunch burglarized Rhonda Pierce's vehicle.

¶ 5. Bunch's trial commenced on January 9, 2012, and at the conclusion of the trial, a jury found Bunch guilty of all five counts of automobile burglary. Following a sentencing hearing, the trial court found Bunch to be a habitual offender under Mississippi Code Annotated section 99–19–83 and sentenced him to life imprisonment on all five counts, to be served concurrently with each other, and to be served consecutively to a previous sentence in an unrelated cause number.

¶ 6. Bunch appeals his convictions and sentences.

FACTS

¶ 7. Tullos testified that he worked as a paramedic at Wayne General Hospital. Tullos stated that during one of his shifts, he went outside and discovered that his vehicle had been burglarized. Tullos testifiedthat this occurred sometime between October 30, 2010, and November 1, 2010. Tullos found a hole in the glass of the vehicle's window and his vehicle's stereo system stolen.

¶ 8. Between the end of October 2010 and the beginning of November 2010, Foster had her vehicle burglarized while parked in a parking lot at Wal–Mart. Foster was not driving her vehicle that night, but instead allowed her friend Maurice Mayfield to drive her car to Wal–Mart. Mayfield informed Foster that someone had burglarized her vehicle and that the vehicle's stereo system was stolen. Foster met Mayfield in town, and he explained to her that he went into Wal–Mart for ten minutes, and he returned to find her vehicle burglarized.

¶ 9. On November 3, 2010, Odom parked her vehicle in the visitor's parking lot at Wayne General Hospital, left the vehicle unlocked, and went inside the hospital to visit a friend. While inside, someone burglarized her vehicle and stole her purse from the vehicle.

¶ 10. Pierce worked for Wal–Mart. On November 3, 2010, Pierce parked her vehicle in a parking lot on the side of Wal–Mart and went into the store to start her shift. Upon her return to the vehicle, she noticed that someone had broken her vehicle's passenger window and stolen her bag from the car.

¶ 11. On the morning of November 4, 2010, Wayne General Hospital security officer Paul Walley was operating the security system at the hospital when he observed an individual in the parking lot who appeared to be looking into the windows of various cars. Walley followed the individual on camera before exiting the hospital to confront the individual. Upon arriving in the parking lot, Walley confronted and detained the suspicious individual, who was later identified as Bunch. Walley noticed blood streaming from Bunch's wrists. Walley detained Bunch until Officer Fred Daniels with the Waynesboro Police Department arrived and placed Bunch under arrest. After examining other vehicles in the parking lot, Walley found a burglarized vehicle that belonged to Powe. Powe testified that she had parked her vehicle and entered Wayne General Hospital to visit her husband, who was hospitalized. Security later located her in the hospital and informed her that someone had burglarized her vehicle. The vehicle's window had been broken, and the vehicle's stereo system stolen.

¶ 12. The State, in its case-in-chief, admitted into evidence copies of the footage from the surveillance videos of the five automobile burglaries that occurred in the parking lots of Wal–Mart and Wayne General Hospital. Due to the large amount of footage on the surveillance videos, the State played only those portions of the videos that showed activity relating to the burglaries of the automobiles. The trial court gave Bunch the opportunity to present any other portions of the video footage he deemed relevant. Bunch, however, chose to rest his case without introducing any of the video footage.

¶ 13. The facts in the record regarding the authentication of the video footage reflect that witnesses familiar with the contents authenticated it, thereby allowing its admission into evidence. Tim Napp, the assistant manager at Wal–Mart, testified that he acted as the custodian of the surveillance-video equipment for Wal–Mart. Napp's co-employee provided copies of Wal–Mart's surveillance footage to law enforcement, as requested by Officer Wesley Waites with the Waynesboro Police Department. Napp testified that Wal–Mart kept the surveillance videos for security purposes in the normal course of Wal–Mart's business of operating the store. Napp testified that the copies presented to him at trial fairly and accurately depicted what was on the original footage.

¶ 14. Similarly, Robert Slay, the IT director at Wayne General Hospital, testified that he operated and maintained the security system at Wayne General Hospital and acted as custodian of the surveillance-video equipment. Acting on a request from hospital administration, Slay retrieved copies of the surveillance footage of the parking lots in areas around the hospital. Slay testified that the videos presented to him at trial accurately depicted what he saw when he reviewed the original surveillance footage. Slay testified that in reviewing the surveillance videos pertaining to the automobile burglaries that occurred at Wayne General Hospital, he noticed a dark-colored Ford pickup in all of the surveillance videos. Slay narrated the surveillance videos of the automobile burglaries that occurred at Wayne General Hospital as the State published the videos to the jury. Slay later assisted in the operation of the video equipment as the State published to the jury the surveillance videos from the automobile burglaries that occurred at Wal–Mart.

DISCUSSION

I. VOIR DIRE

¶ 15. Bunch argues that the trial court erred in only allotting defense counsel ten minutes for jury selection and in treating him with bias. Bunch also argues that the trial court erred in allowing him less than the twelve peremptory challenges required by Rule 10.01 of the Mississippi Uniform Rules of Circuit and County Court. Lastly, Bunch argues that the trial court erred by allowing the victims' friends, neighbors, and fellow church members to remain on the jury panel.

¶ 16. The record reflects no objections by defense counsel at trial as to the alleged time constraints during jury selection or as to any alleged bias by the trial court...