Washington v. State

373 So.3d 1051

Micah WASHINGTON a/k/a Micah L. Washington, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-KA-00860-COA

Court of Appeals of Mississippi.

11/07/2023

LINCOLN COUNTY CIRCUIT COURT, HON. DAVID H. STRONG JR., JUDGE

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

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

McCARTY, J., FOR THE COURT:

¶1. A man fired shots near a construction site as he drove down the highway, injuring a construction worker. After he was found guilty of shooting into a vehicle and ordered to pay restitution, he appealed. We find there was no error in the proof presented at trial and affirm his conviction, but because the proof of restitution was unsubstantiated, we vacate and remand in part.

FACTS

¶2. One morning as Kevin Clark was driving on Interstate 55, he heard what "sounded like an 18-wheeler tire" had blown. He looked around to see if anyone had wrecked. But instead Clark saw a man driving a Dodge Charger with his arm out the window holding a gun. He witnessed the man "fire off" several rounds as he drove down the interstate.

¶3. The shooting happened near a construction site. At that time, several construction workers were present, including Joshua Odom. He was sitting in a company truck when he heard a "loud boom." After seeing that he had "blood [and] cuts everywhere," he realized someone had shot at him. He sustained injuries to his eye as a result of shattered glass.

¶4. Seeing Odom’s injuries, the workers began calling their safety director. When the director arrived, he saw Odom sitting in a company truck "with blood all over the left side of his face and his left arm." He also saw a "blown out" passenger side window and a "hole in the window on the driver’s side."

¶5. The shooter exited Interstate 55 onto U.S. Highway 84, and a BOLO was issued for the Dodge. After radar indicated the same Dodge was traveling 90 miles per hour in a 65-mile-per-hour zone, Highway Patrol Officer Marcus Fisher began pursuing the suspect "westbound on U.S. Highway 84." The suspect was driving erratically—alternating between the middle of the road and both lanes—despite other drivers traveling on that same road. After an extensive chase traveling at a speed "well over 100 miles [per] hour," the Dodge "wrecked out and hit a street sign."

¶6. The shooter was later identified as Micah Washington. The Highway Patrol officer recounted that when he interrogated Washington later, the suspect admitted "he kn[e]w he shot in the air three times" while driving on Interstate 55. However, Washington told the officer he was just "trying to get cars to move out of his way" so he could "get to Natchez to go to his dad’s house" and get a vehicle "he always wanted." Washington was indicted for two felonies: drive-by shooting and shooting into a motor vehicle.

PROCEDURAL HISTORY

¶7. At trial, James Latham, the safety director of the construction company, told the jury he received two phone calls about the shooting. First, Latham testified he was driving toward the construction site when he got a phone call from a worker "just north." He stated the worker told him "that our lab tech [Odom] had been shot by a car passing by and that he was injured." He said the worker told him the tech "was shot in the face."

¶8. The defense objected, arguing the testimony was hearsay. The trial judge responded, "I’m confident that it is likely an exception to the hearsay rule and a present sense impression. And I don’t know if it’s [an] excited utterance, but I have a suspicion it might be."

¶9. The director was then asked if the employee was actually present at the site when the incident happened. He agreed, explaining, "They were further north, yes. They were just north of it starting the lane closure."

¶10. The safety director then testified he "got a second call from [his] mechanic down the road, further south, that someone had come by and shot at them[.]" Defense counsel again objected, arguing the testimony was hearsay. The State responded, "[I]t’s an 803 exception, excited utterance. If you see somebody shooting a gun, that would put me in an excited state[.]" Nonetheless, the court sustained the objection until a predicate for the exception was laid.

¶11. After further questioning, Latham testified the mechanic was "excited and panicked" when he called. The witness further related how the mechanic sounded "scared" and "[a]bout three octaves higher" than he normally sounded in the fifteen years they had worked together.

¶12. The trial court then overruled defense counsel’s objection regarding the mechanic’s statements and allowed the testimony. Latham then testified that during the phone call, the mechanic said that "a car came by and shot at him."

¶13. The jury ultimately acquitted Washington of drive-by shooting but found him guilty of shooting into a motor vehicle. He was sentenced to serve three years in the custody of the Mississippi Department of Corrections and two years of post-release supervision.

¶14. Additionally, Washington was ordered to pay court costs, a $250 fine, restitution of $1,000 to the construction company, and "full restitution" to the victim. He moved for a new trial or judgment notwithstanding the verdict, which the trial court denied. Washington appealed.

DISCUSSION

I. Whether portions of Latham’s testimony should have been excluded as hearsay.

¶15. Washington argues two sequences in Latham’s testimony were impermissible hearsay. He further contends that as a result of this error, his Sixth Amendment right to confront his accusers was violated.

[1, 2] ¶16. "The standard of review regarding admission or exclusion of evidence is abuse of discretion." Liddell v. State, 281 So. 3d 34, 37 (¶5) (Miss. Ct. App. 2019). "We employ a de novo standard of review when presented with constitutional issues." Id.

[3, 4] ¶17. "Hearsay is an out-of-court statement offered to prove the truth of the matter asserted." Crist v. Loyacono, 65 So. 3d 837, 844 (¶21) (Miss. 2011). "So for an out-of-court statement to be admissible, it must either be offered for some other proper purpose, or fall into one of the enumerated exceptions to the general hearsay rule." Id. "[O]therwise it is subject to a confrontation objection." Freeman v. State, 121 So. 3d 888, 898 (¶24) (Miss. 2013).

A. Whether the first phone call was a present sense impression.

[5] ¶18. Washington argues that the safety director’s testimony about the first phone call he received from a worker should have been excluded because it did not meet the exception of present sense impression. Specifically, he contends the testimony was improper because the construction workers did not have personal knowledge that specifically Odom had been shot, only a general knowledge of the shooting.

[6, 7] ¶19. Mississippi Rule of Evidence 803 provides several exceptions to the rule against hearsay, including a present sense impression. A present sense impression is "[a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it." MRE 803(1). "This exception is based on the theory that the contemporaneous occurrence of the event and the statement render it unlikely that the declarant made a deliberate or conscious misrepresentation." Murray v. State, 345 So. 3d 610, 617 (¶14) (Miss. Ct. App. 2022). Notably, "[s]pontaneity is the essential factor" for determining if the exception applies. MRE 803, advisory committee note.

¶20. In one case, we held that a murder victim’s statements to friends in the hour before her murder were admissible as a present sense impression. Kuebler v. State, 205 So. 3d 623, 643-44 (Miss. Ct. App. 2015), rev’d on other grounds, 204 So. 3d 1220 (Miss. 2016). After a night of constant verbal berating by a man, the victim called her friends, explaining that the man "was being ‘mean’ and ‘ugly’ to her." Id. at 631 (¶¶5, 8). She also texted another friend, "Wake up … I need [yo]u to save me." Id. at (19). She was later found dead. Id. at 632 (¶10).

¶21. The trial court allowed the admission of the statements as present sense impression. Id. at 643 (¶58). The defendant appealed, arguing the "statements [were] inadmissible hearsay and violated his right to confront witnesses." Id. We held the statements were admissible as present sense impressions because the conversations occurred shortly before the victim’s death and described an event or condition made while she was perceiving the event or condition immediately thereafter. Id. at 643-44 (¶¶61-62).

¶22. Similar to the phone call and text message in Kuebler, the first call the safety director received described an event "made … immediately after the declarant perceived it." MRE 803(1). The worker who called Latham specified Odom had been "shot in the face." Latham testified the worker was at the site during the shooting and called the safety director immediately after the shooting occurred. As we determined the messages in Kuebler were present sense impressions since they were made "shortly" before the victim’s murder, here the near-instantaneous call made to the safety director qualifies under the exception as well.

¶23. Therefore, the first phone call was properly admitted under the present sense impression exception to the rule against hearsay.

B. Whether the second call was an excited utterance.

[8] ¶24. Washington also argues that the safety director’s testimony about the second phone call should have been excluded because it did not meet the excited utterance exception to hearsay. He contends that the testimony was improperly admitted because the mechanic did not have personal knowledge that Odom had been shot but only general knowledge of the shooting.

[9–11] ¶25. An excited utterance is "[a] statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused."...