Johnson v. State

94 So.3d 1209

Carson JOHNSON, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–KA–01330–COA.

Court of Appeals of Mississippi.

Dec. 13, 2011.

Rehearing Denied May 8, 2012.

Certiorari Denied Aug. 9, 2012.

George T. Holmes, Jackson, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

EN BANC.

MAXWELL, J., for the Court:

¶ 1. A jury found Carson Johnson guilty of burglary of a dwelling and possession of a prohibited weapon by a convicted felon. The circuit judge sentenced Johnson to twenty years and ten years respectively for each charge, with the sentences ordered to run concurrently. Johnson appeals, alleging that a discovery violation, defective indictment, and fatally flawed jury instructions require reversal. We find no reversible error and affirm both convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of January 7, 2009, Katherine Cestia stopped by the apartment of her fiancé, Lindsey Callon. The apartment is on the second floor of a building on Pearl Street in downtown Natchez, Mississippi. It shares a staircase with the law office of Barrett Martin. Cestia walked halfway up the stairs and saw a man on the landing outside of Callon's apartment door. Cestia asked the man what he was doing. He told her he was going to Martin's office to ask for work. Cestia saw the man collect something and walk down the stairs. As he walked past her, she noticed he was carrying one of Callon's rifles, partially wrapped in a piece of cloth. Cestia told him, “You can't take that. It doesn't belong to you.” But the man responded, “I can take whatever I want,” then walked away.

¶ 3. Cestia called 911 and reported that “a black gentleman just walked into” her fiancé's apartment “and stole a gun. He had baggy clothes. Shoes were untied, kind of flopping off. Scruffy, not well kept.” There was no sign of a break-in, but Cestia recalled the door to the apartment had been left unlocked that day because the housekeeper had just left. Approximately twenty minutes later, officers with the Natchez Police Department arrived and asked if Cestia could identify the burglar. The suspect was “pulled out of” a patrol car, and Cestia identified Johnson as the man she had encountered on the staircase.

¶ 4. Johnson was not carrying anything when the police picked him up. But Lieutenant Craig Godbold testified that, immediately after Cestia identified him, Johnson told the police: “If you let me go, I will show you where the gun is.” Johnson directed the police to Memorial Park, approximately two blocks from Callon's apartment, where the officers located the rifle under some trees. Cestia identified the gun as the one taken from Callon's apartment—a Marlin .35 caliber rifle. Because it was deer season, the officers returned the gun to Callon after recording the rifle's serial number.

¶ 5. An Adams County grand jury returned a two-count indictment against Johnson for Count I, burglary of a dwelling, and Count II, possession of a gun by a felon. The circuit judge ordered a mental evaluation of Johnson, who spent two months in the forensic unit at Whitfield State Hospital undergoing a competency evaluation.¹ Johnson was found competent to stand trial, and his trial began on March 2, 2010.

¶ 6. The day before trial, the circuit judge held a hearing on Johnson's motion to suppress the rifle. Johnson argued because the rifle was returned to Callon, Johnson could not examine the evidence. He also claimed returning the gun destroyed the chain of custody. At this hearing, the State discussed Johnson's statement made to Lt. Godbold about showing them the location of the rifle if they would let him go. Defense counsel claimed to be surprised by the statement, which was not included in the discovery the State provided. So Johnson moved to suppress the statement as well. The circuit judge denied both motions but directed the State provide Lt. Godbold's “Supplemental Report” the next morning. The trial judge gave defense counsel an opportunity that morning to interview Lt. Godbold and consider the statement's impact on the defense. But he denied Johnson's motion for a continuance and subsequent motion for a mistrial, finding the late disclosure of the statement did not prejudice Johnson's insanity defense.

¶ 7. At trial, Dr. John Montgomery, a psychiatrist, testified that Johnson was able to discern right from wrong at the time of the offense. Dr. Montgomery explained that Johnson had been diagnosed with “schizophrenia in the residual phase which means ... some of the symptoms have improved over time, and he's kind of reached a stable level with his mental illness.”

¶ 8. Johnson, against his counsel's advice, chose to testify. He stated he knew right from wrong and denied burglarizing Callon's apartment. He claimed he found the rifle discarded by the side of a building, picked it up, and took it to the park. He also admitted he knew he was not supposed to have a firearm because he is a convicted felon.

¶ 9. The jury found Johnson guilty on both counts. The circuit judge sentenced Johnson to twenty years for burglary of a dwelling and ten years for possession of a prohibited weapon by a felon. The sentences were ordered to run concurrently. Johnson filed a motion for a new trial, which was denied. He timely appealed.

ANALYSIS OF THE ISSUES

¶ 10. Johnson argues the circuit judge erred: (1) by not granting his motion for a continuance or later request for a new trial due to the failure to disclose Lt. Godbold's supplemental report during discovery; (2) by not granting a directed verdict or imposing a lesser sentence for Count I because the indictment charged him with “business burglary,” not “dwelling burglary”; and (3) by not ordering a new trial on Count II because he was never charged with possessing a “firearm,” and the jury was not properly instructed on this element of the offense.

¶ 11. Because the discovery violation did not prejudice Johnson's insanity defense and the evidence of his guilt was overwhelming, we find the circuit judge did not abuse his discretion by denying Johnson's motion for a continuance. And we find no errors in either count of the indictment. The charging document clearly notified Johnson he was accused of burglary of a dwelling and possession of a firearm by a convicted felon—despite not tracking the exact language of either statute.

¶ 12. Though we find the jury instruction on the weapon-possession count erroneously omitted the element “possession of a firearm,” Johnson's possession of the rifle was undisputed at trial and proven by his own admission. Because we find beyond a reasonable doubt the jury would have found Johnson guilty on Count II absent the erroneous instruction, we find the jury-instruction error to be harmless.

I. Discovery Violation

¶ 13. Rule 9.04(I) of the Uniform Rules of Circuit and County Court governs the procedure a trial court must follow when considering discovery violations. “A violation of Rule 9.04 is considered harmless error unless it affirmatively appears from the entire record that the violation caused a miscarriage of justice.” Payton v. State, 897 So.2d 921, 942 (¶ 67) (Miss.2003) (citations omitted) (finding no abuse of discretion in denying continuance based on URCCC 9.04(I)). “The decision to grant or deny a motion for a continuance is within the sound discretion of the trial court and will not be grounds for reversal unless shown to have resulted in manifest injustice.” Id.

¶ 14. Rule 9.04(I)'s directives to the trial court are dependent on when the court learns of the discovery violation. If “at any time prior to trial,” the court learns of the discovery violation, it has the discretion to permit the discovery of the withheld material, grant a continuance, or enter any other appropriate order. URCCC 9.04(I). But “[i]f during the course of trial,” the State attempts to introduce evidence not timely disclosed over the defendant's objection, the trial court must:

1. Grant the defense a reasonable opportunity to interview the newly discovered witness, to examine the newly produced documents, photographs, or other evidence; and

2. If, after such opportunity, the defense claims unfair surprise or undue prejudice and seeks a continuance or a mistrial, the court shall, in the interest of justice and absent unusual circumstances, exclude the evidence or grant a continuance for a period of time reasonably necessary for the defense to meet the non-disclosed evidence or grant a mistrial.

....

Id. at 9.04(I)(1)-(2).

¶ 15. Admittedly, the State's disclosure of Lt. Godbold's supplemental report on the eve of trial was untimely. Thus, the mandatory considerations of Rule 9.04(I) were triggered. The circuit judge acted appropriately by giving Johnson's counsel an opportunity to examine the statement and interview Lt. Godbold. URCCC 9.04(I)(1). Defense counsel was made aware of Johnson's statement the day before trial, and upon receiving a copy of the supplemental report describing the statement, he was given a few hours to review the report. While the one-day notice does not necessarily remedy the discovery violation, the Mississippi Supreme Court has noted: “ ‘By no means does a [discovery] violation mean invariably that the defendant will be entitled to a continuance until the next term of court. There will no doubt be cases where postponement of a day or two, or in some cases even an hour or two, will suffice.’ These determinations necessarily depend on the nature and extent of each discovery violation.” Fulks v. State, 18 So.3d 803, 806 n. 3 (Miss.2009) (quoting Reuben v. State, 517 So.2d 1383, 1386 (Miss.1987)). Here, there is no evidence of misconduct on the State's part in withholding the supplemental report. Nor is there evidence the State was concealing the fact they would be calling Lt. Godbold as a witness.

¶ 16. When Johnson sought a continuance and mistrial, the circuit judge denied Johnson's motions...