Nalls v. State

344 So.3d 310

Lonnie NALLS, Jr. a/k/a Lonnie Nalls a/k/a Lonnie Lee Nalls, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-KA-00592-COA

Court of Appeals of Mississippi.

August 2, 2022

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK, LONNIE NALLS JR. (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CASEY BONNER FARMER

BEFORE BARNES, C.J., GREENLEE AND LAWRENCE, JJ.

GREENLEE, J., FOR THE COURT:

¶1. A jury in the Washington County Circuit Court convicted Lonnie Nalls Jr. of attempted murder and possession of a firearm by a felon. The circuit court sentenced Nalls, as a violent habitual offender, to serve two consecutive terms of life without eligibility for parole in the Mississippi Department of Corrections (MDOC). After the circuit court denied his motion for judgment notwithstanding the verdict (JNOV) or a new trial, Nalls appealed. Finding no reversible error, we affirm.

STATEMENT OF THE FACTS

¶2. In March 2019, Nalls and Lamarcus Ware were indicted for the attempted murder of Jeremy Jones. Nalls was also indicted for possession of a firearm by a felon and charged as a violent habitual offender.

¶3. Several months later, in September 2019, Ware pled guilty to aggravated assault and was sentenced accordingly.

¶4. Nalls’ first trial in October 2020 resulted in a hung jury.¹ At Nalls’ second trial, in April 2021, Brian Ledlow testified that on February 27, 2018, he was talking with Jones and some others on a residential street in Greenville when he noticed a gray Toyota at a corner. Ledlow testified that less than ten minutes later, he observed a gold Honda driving toward them. As he moved out of the street, gunshots came from the vehicle. According to Ledlow, Ware (whom he had known for about five years) was shooting from the front of the vehicle, and Nalls (whom Ledlow had known for more than ten years) was shooting from the back of the vehicle. Ledlow testified that Jones was hit by one of the bullets. According to Ledlow, he identified the shooters as Nalls and Ware to law enforcement that night. Ledlow testified that Nalls called him and Jones after the shooting and attempted to persuade them not to testify.

¶5. Similarly, Jones testified that he was talking to Ledlow and some others when he observed a vehicle's headlights turn off and approach them. Jones testified that Ware was shooting a handgun while driving the vehicle and that Nalls was shooting an assault rifle in the back seat. Jones explained that he was friends with Nalls and did not understand why Nalls had shot him. According to Jones, he was not able to provide a statement at the time, but about a month and a half after the shooting, he gave a statement and identified Nalls and Ware as the shooters.² Like Ledlow, Jones testified that Nalls attempted to persuade him not to testify.

¶6. Officer Gary David Galloway with the Greenville Police Department testified that he was on patrol when he received a call that shots had been fired. Initially, Officer Galloway said that Jones was lying on his back when he arrived at the scene, but he later testified that Jones was face down. According to Officer Galloway, he spoke with Jones at the scene, and Jones identified Nalls and Ware as the shooters and stated that Nalls had been driving the vehicle. Officer Galloway testified that Ledlow left the scene before he was able to speak with him. In his report, however, Officer Galloway stated that he identified a possible witness and spoke with him briefly. Additionally, in his prior sworn testimony, Officer Galloway said that the first person who spoke with law enforcement was Ledlow and that he identified the suspects that night. According to Officer Galloway, Ledlow stated that Ware was driving the vehicle and that Nalls was in the front seat. When specifically asked if Nalls was in the passenger seat, Officer Galloway responded, "Yes, possibly." In his report, however, Officer Galloway stated that Nalls was driving the vehicle and that Ware was in the passenger seat. Later, Officer Galloway testified that he was mistaken about Ware being the driver of the vehicle. Officer Galloway testified that Ledlow described the vehicle as "a gray colored Chevrolet that had an auto tag on it like a dealer tag." In his report, however, Officer Galloway stated that Ledlow described the vehicle as a late-model gray-colored Chevrolet, Camry, or Honda with a Team Auto paper tag.

¶7. Finally, Investigator Danny Poe with the Greenville Police Department testified that he was one of the first officers to arrive at the scene. According to Investigator Poe, he spoke with Ledlow, who described the gray vehicle with the Team Auto tag and identified Nalls and Ware as the shooters. Additionally, Investigator Poe testified that Sergeant Sutton obtained a recorded statement from Jones while he was hospitalized. According to Investigator Poe, Jones identified Nalls and Ware as the shooters in the recorded statement.

¶8. After the State rested its case, Lamarcus Ware testified in behalf of the defense. Ware told the jury that he had been indicted for attempted murder but pled guilty to aggravated assault and had been sentenced to fifteen years in the custody of the MDOC. According to Ware, he shot Jones, and Nalls had nothing to do with the shooting. Ware testified that he did not know Nalls at the time of the shooting, and Nalls was not in the vehicle with him. Ware admitted that when he pled guilty, he accepted as true the fact that he "act[ed] in concert" with someone, and he acknowledged that he did not tell the judge that he acted alone. Then he testified that the only person he acted in concert with was the victim—Jones.

¶9. Finally, Nalls stipulated that he had a prior felony conviction. Nalls was convicted of attempted murder and possession of a firearm by a felon. On April 20, 2021, the circuit court sentenced Nalls, as a violent habitual offender, to serve two consecutive terms of life without eligibility for parole. Nalls filed a motion for JNOV on May 3, 2021, and a motion for JNOV or a new trial on May 5, 2021. On May 5, 2021, the court denied Nalls’ motion for JNOV or a new trial. On May 27, 2021, Nalls filed a notice of appeal.

¶10. After filing the notice of appeal, Nalls filed a pro se brief.³ In his pro se brief, Nalls raises issues with respect to his first trial, which resulted in a hung jury. He also makes the following claims with respect to his second trial: (1) the court erred by admitting portions of Ledlow's testimony that were contradictory to his prior sworn testimony, (2) the judge was biased, (3) the court erred by sentencing him as a violent habitual offender, (4) trial counsel's assistance was ineffective, and (5) the jury did not give the appropriate amount of weight to Jones's testimony and Ware's testimony. Subsequently, the Office of State Public Defender Indigent Appeals Division filed an appellant's brief on Nalls’ behalf claiming that the jury's verdicts were against the overwhelming weight of the evidence. The State filed an appellee's brief addressing only the weight of the evidence.

DISCUSSION

¶11. At the outset, we note that "[t]his Court must have jurisdiction to consider this appeal." Tingle v. State , 285 So. 3d 708, 710 (¶9) (Miss. Ct. App. 2019) (quoting Cane v. State , 206 So. 3d 1268, 1271 (¶7) (Miss. Ct. App. 2016) ). Although "the State has not challenged appellate jurisdiction, we must determine whether jurisdiction exists." Id . (quoting Hunt v. State , 11 So. 3d 764, 766 (¶5) (Miss. Ct. App. 2009) ).

¶12. Under Rule 25.1(c) of the Mississippi Rules of Criminal Procedure, "[a] motion for a new trial shall be made within ten (10) days after entry of judgment (which, for purposes of this Rule, includes both adjudication of guilt and sentence)." Rule 4(e) of the Mississippi Rules of Appellate Procedure instructs that a criminal defendant who makes a "timely" motion for a new trial under MRCrP 25.1 has thirty days from the entry of the order denying such motion to file his notice of appeal.

¶13. Here, the court's sentencing order was filed on April 20, 2021. The record indicates that Nalls’ attorney filed two post-trial motions on his behalf—one on May 3, 2021, and one on May 5, 2021. Because neither motion was filed within the ten-day period, the time for filing the notice of appeal was not tolled. M.R.A.P. 4(e). Additionally, Nalls’ notice of appeal was not filed by his attorney until May 27, 2021, beyond the thirty days after the court entered the sentencing order. Therefore, Nalls’ notice of appeal was not timely filed. M.R.A.P. 4(a).

¶14. This Court may suspend the requirements or provisions of the rules "[i]n the interest of expediting decision, or for other good cause shown[.]" M.R.A.P. 2(c). Nalls has not given any justification for the untimely filing of his notice of appeal. However, the State did not object to the timeliness of Nalls’ post-trial motions or notice of appeal, and dismissing the appeal will likely spark additional pleadings. See Gardner v. State , 302 So. 3d 615, 616-17 (¶8) (Miss. 2020) (King, P.J., dissenting); see also Gordon v. State , 288 So. 3d 381, 388 (¶16) (Miss. Ct. App. 2019). Therefore, we suspend the rules and address the merits of Nalls’ appeal. M.R.A.P. 2(c) (permitting extension of time to appeal "in criminal and post-conviction cases, but not in civil cases").

I. Pro Se Brief

¶15. Under Rule 28(b) of the Mississippi Rules of Appellate Procedure, "[a]n appellant in a criminal appeal may file a pro se supplemental Brief of the Appellant." The pro se brief "may address issues not raised by counsel," but the "issues must be based on the record." M.R.A.P. 28(b). Additionally, the pro brief "shall conform to the requirements of Rule 28(a), (e), (f), (h) and (l)." M.R.A.P. 28(b). Nalls failed to comply with Rule 28(a)(7) of the Mississippi Rules of Appellate Procedure, which provides that "[t]he argument shall contain the contentions of [the] appellant with...