FORD v. STATE No. 2010-KP-00278-COA.
69 So.3d 788 (2011)
Stevenson FORD, Appellant v. STATE of Mississippi, Appellee.
Court of Appeals of Mississippi.
September 13, 2011.
Stevenson Ford , appellant, pro se.
Office of the Attorney General by Stephanie Breland Wood , attorney for appellee.
Before GRIFFIS, P.J., BARNES and ROBERTS, JJ.
ROBERTS, J., for the Court:
¶ 1. A jury sitting before the Washington County Circuit Court found Stevenson Ford guilty of murder. Ford was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Ford appeals pro se and raises fourteen issues. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. Ford's conviction was set into motion by events that occurred in Greenville, Mississippi, during the early morning hours of September 7, 2008. Ford and several of his friends had been at a nightclub called Southern Whispers, where some of his friends were involved in an altercation with Marvin Stuckett and some of Stuckett's friends.
¶ 3. The jury's verdict supports the following version of events. After they left Southern Whispers, Ford and two others were riding in Jessie Lee's car. Lee was following Freddie Harris. Ford's cousin, Daner Ford, was riding with Harris. Ford and his friends originally intended to go to an "after-hours" nightclub. When Harris made an unexpected u-turn, Ford told Lee to follow Harris. Lee complied.
¶ 4. Lee followed Harris to Stockton Drive, where Ford told Lee to pull over near Stuckett's house. Again, Lee complied. Daner had gotten out of Harris's car, which was parked on the opposite end of the 200 block of Stockton Drive. Armed with a rifle, Daner was walking toward Lee's car. Ford and two friends, Ken Johnson and Jonathan Robinson, all got out of Lee's car. Lee remained inside his car. According to Lee, he then heard multiple gunshots. Lee saw Ford firing a pistol.
¶ 5. After the gunshots had ceased, Ford, Robinson, and Johnson all got back into Lee's car. Daner also got into Lee's car. According to Lee, Daner was upset. Daner's head was bleeding because he had been grazed by a gunshot. Lee later testified that Daner told Ford that Ford had nearly killed him.
¶ 6. Meanwhile, Stuckett's friend, Chris York, was on his way to Stuckett's house. York saw Harris's car and Lee's car leaving Stockton Drive. York was able to see Ford, Daner, and Lee in Lee's blue Chevrolet Caprice. He believed that there might have been other people in Lee's car, but he was not able to distinguish who else was with Lee. York continued to Stuckett's house. When he arrived, he found Stuckett's car, but he was not able to find Stuckett.
¶ 8. Officers with the Greenville Police Department found spent cartridges and unfired ammunition outside Stuckett's house. Some were fired from a rifle that fired 7.62 x 39 mm ammunition. Others were fired from a 9-mm pistol. However, Dr. Thomas Deering's autopsy indicated that the fatal bullet was fired from a .38-caliber pistol. Detective Erica Brown's investigation led authorities to Ford, Daner, Robinson, Harris, and Lee. They were all indicted and charged with murdering Stuckett, but Ford was tried separately.
¶ 9. On November 16, 2009, Ford went to trial. Ford presented a defense based on his alibi that he was not with any of the co-defendants when Stuckett was killed. According to Ford's witnesses, Latasha Ford and Dave Smith, he could not have shot Stuckett because, except for a seven-minute period, Ford was with one of them during the night that Stuckett was murdered. For brevity's sake, specific events that occurred during Ford's trial will be discussed in greater detail as necessary in the analysis portion of this opinion. As previously mentioned, the jury found Ford guilty of murder. Aggrieved, Ford appeals.
I. JURY INSTRUCTIONS
A. ACCOMPLICE INSTRUCTION
¶ 10. Ford claims the circuit court should have granted a cautionary instruction "in regards to the testimony of the witnesses who had been charged with an offense or the same offense." We interpret Ford to mean that the circuit court should have granted an accomplice instruction regarding Lee's testimony. According to Ford, "[s]uch instruction was refused by the trial court." Ford does not specify which instruction he has in mind, but it is of no moment because Ford is mistaken.
¶ 11. The circuit actually granted Ford's request for a cautionary accomplice instruction. Specifically, the circuit court granted instruction D-16, which states:
A trial court has considerable discretion regarding the form and substance of jury instructions. Fulgham v. State, 46 So.3d 315, 323 (¶ 17) (Miss.2010). As we review Ford's claim, we must read the instructions as a whole. Id. To demonstrate that the circuit court abused its discretion in refusing to grant an instruction, an appellant must show that the instruction he requested was (1) a correct statement of the law, (2) not substantially covered by other instructions, and (3) so important that the circuit court's failure to instruct the jury on that issue seriously impaired the appellant's ability to present his defense. Id.
¶ 12. Because the circuit court granted an accomplice instruction, we find no merit to Ford's claim that the circuit
B. PROFFERED INSTRUCTION D-4
¶ 13. Next, Ford claims the circuit court erred when it refused his proffered jury instruction designated as instruction D-4. Proffered instruction D-4 states:
Although the circuit court refused proffered instruction D-4, the circuit court instructed the jury according to instruction CCR-8, which states:
As stated previously, a criminal defendant is not entitled to an instruction that is covered elsewhere by another instruction. Poole, 826 So.2d at 1230 (¶ 27). Instruction CCR-8 is substantially the same as proffered instruction D-4. Accordingly, the circuit court acted within its discretion when it denied proffered instruction D-4. As with Ford's first argument under this heading, we find no merit to Ford's second argument.
¶ 14. In this issue, Ford claims that the indictment against him is illegal. Ford's reasoning is based on the fact that Count I of the indictment included a murder charge and a charge that Ford qualified for enhanced sentencing because he used or displayed a firearm during the commission of the murder. To be precise, the indictment against Ford states:
According to Ford, the indictment was illegal because it contained two charges within
¶ 15. Ford is correct that "[w]here two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding." Miss.Code Ann. § 99-7-2(2). Ford's misunderstanding is based on the difference between a charge versus a sentence enhancement. Mississippi Code Annotated section 97-37-37(1) (Supp.2010) provides:
Section 97-37-37(1) "is clearly a sentence enhancement and does not set out separate elements of the underlying felony." Mayers v. State, 42 So.3d 33, 45 (¶ 50) (Miss.Ct. App.2010). Stated differently, by claiming that Ford qualified for enhanced sentencing as set forth in section 97-37-37(1), the prosecution did not seek to prove that Ford was guilty of a separate offense. The enhancement charge was not a charge of a separate crime. Instead, the prosecution sought to increase the penalty that Ford faced in the event that he was found guilty of murder. Accordingly, the indictment is not illegal. There is no merit to this issue.
III. INCONSISTENT VERDICTS
¶ 16. Ford's argument under this heading is based on the same fundamental misunderstanding of the nature of the charges in the indictment as discussed in the previous issue. Here, Ford argues that the jury must have been confused, because it found him guilty of murder, but it found that he did not qualify for enhanced sentencing pursuant to section 97-37-37(1). According to Ford, because the jury did not find that he qualified for enhanced sentencing pursuant to section 97-37-37(1), the jury was obligated to find him not guilty of murder.
¶ 17. However, Ford is procedurally barred from arguing this issue because he did not cite any relevant legal authority. Walker v. State, 913 So.2d 198, 222 (¶ 73) (Miss.2005). Pro se litigants are afforded some leniency, but they must be held to the same substantial standards of litigation conduct as members of the bar. Sumrell v. State, 972 So.2d 572, 574 (¶ 6) (Miss.2008). This includes the obligation to support his argument on appeal with citation to relevant legal authority. See M.R.A.P. 28(a)(6). Furthermore, Ford failed to raise this issue at trial. It is, therefore, procedurally barred on appeal. Walker, 913 So.2d at 217 (¶ 49).
IV. RIGHT TO DECLINE TO TESTIFY
¶ 18. Ford claims the circuit court failed to inform him properly of his right to decline to testify. Aside from that blanket statement and a brief recitation of the general law on the subject, Ford also states that he "should have been fully appraised of his right to not testify by the trial court before he was permitted to take the witness stand."
¶ 19. However, the record reflects that Ford was informed of his right to choose not to testify during the following exchange:
¶ 20. In Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982), the Mississippi Supreme Court stated as follows:
Ford was informed of his right to choose whether he wanted to testify. Ford was also informed that, if he opted to forego testifying, the jury would have been instructed that it must not hold his silence against him. Fully informed of his rights, Ford chose to testify. We find no merit to this issue.
V. STUCKETT'S CRIMINAL RECORD
¶ 21. Ford claims the circuit court erred when it refused to allow him to introduce Stuckett's criminal record. However, the record does not indicate that Ford ever attempted to have Stuckett's criminal record introduced into evidence. Because the circuit court did not have the opportunity to consider this issue, it is procedurally barred. Latiker v. State, 918 So.2d 68, 75 (¶ 17) (Miss.2005).
VI. CHANGE OF VENUE
¶ 22. Next, Ford claims the circuit court should have changed the venue. Ford reasons that a change of venue was warranted because "the Chief of Police . . . was actually the grand father [sic] of the deceased." Ford raises this issue for the first time on appeal. Consequently, this issue is procedurally barred. Latiker, 918 So.2d at 75 (¶ 17).
¶ 23. Under this heading, Ford argues that the circuit judge should have recused herself because she was a friend of Stuckett's grandfather. The record contains no indication that the circuit judge was a friend of Stuckett's grandfather. What is more, Ford never moved for recusal. Therefore, this issue is procedurally barred. Latiker, 918 So.2d at 75 (¶ 17).
VIII. SUFFICIENCY OF THE EVIDENCE
¶ 24. Ford argues that the jury's verdict was not supported by sufficient evidence. According to Ford, the prosecution failed to prove that he killed Stuckett. Ford reasons that the circuit court erred when it denied his motion for a judgment notwithstanding the verdict (JNOV).
¶ 25. "A motion for a [JNOV] is a challenge to the sufficiency of the evidence." Gilbert v. State, 934 So.2d 330, 335 (¶ 9) (Miss.Ct.App.2006). As our Mississippi Supreme Court has stated:
Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (internal citations and quotations omitted). However, this Court will determine that there was sufficient evidence to sustain the jury's verdict if the evidence was "of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense." Id. (internal citations and quotations omitted).
¶ 26. Ford was charged with murdering Stuckett while acting in concert with four other co-defendants. Ford claims the circuit court should have granted his motion for a JNOV because the prosecution "failed to prove that [he] actually killed Stuckett." "Every person who shall be an accessory to any felony, before the fact, shall be deemed and considered a principal, and shall be indicted and punished as such." Miss.Code Ann. § 97-1-3 (Rev.2007). "One who is an accessory[-]before[-]the[-]fact or one who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in the design of the felony." Scarborough v. State, 956 So.2d 382, 386
¶ 27. Viewed in the evidence most favorable to the prosecution, there was evidence presented that Ford ordered Lee to follow Harris's car when Harris made a u-turn and began driving toward Stuckett's house. Lee testified that Ford further ordered him to pull his car over near Stuckett's house. According to Lee's testimony, Ford got out of Lee's car after they saw Daner walking toward them with a rifle. Lee testified that he personally saw Ford firing a pistol. Dr. Deering's autopsy indicated that Stuckett had been killed by a .38-caliber bullet. Starks Hathcock testified that .38-caliber bullets are "most commonly" fired from a revolver. To summarize, there was evidence that Ford ordered Lee to follow Harris. There was evidence that Ford ordered Lee to stop outside Stuckett's house. There was evidence that Ford got out of Lee's car and fired a pistol. And there was evidence that Stuckett was killed by a bullet that was fired from a pistol. Accordingly, we find that reasonable, fair-minded jurors could have found Ford guilty. It follows that we find no merit to this issue.
¶ 28. Ford filed a motion for a continuance on November 3, 2009. Within that motion, Ford stated that he needed additional time because the prosecution planned to have Lee testify, and Lee was in the process of being extradited from Texas. On November 12, 2009, Ford filed an amended motion for a continuance. Ford noted that his trial was scheduled for November 16, 2009, and Lee had been extradited, but Lee had refused to talk to Ford's attorney prior to trial. The record does not indicate that the circuit court heard Ford's motion for a continuance. Likewise, the record does not indicate that the circuit court ruled on Ford's motion.
¶ 29. Ford contends that the circuit court should have granted his motion for a continuance to give Ford's attorney time to prepare for Lee's testimony. Ford concedes that his attorney was aware that Lee would testify for the prosecution. To be precise, Ford states: "While the defense expected that Lee would testify as a witness for the [S]tate[,] there was never any confirmation of that fact until Lee was returned to the State of Mississippi [ten days prior to trial]." According to Ford, his attorney needed additional time "to prepare his defense of Lee's possible testimony since Lee had been formally charged with being the shooter of Stuckett until the prosecution offered Lee a deal."
¶ 30. As previously mentioned, the record does not indicate that the circuit court heard or ruled upon Ford's motion for a continuance. "It is the duty of the movant, when a motion or other pleading is filed . . . to pursue [that] motion to hearing and decision by the court." URCCC 2.04. Stated differently, Ford bore the burden of pursuing the relief he requested. Runnels v. State, 919 So.2d 1072, 1074 (¶ 8) (Miss.Ct.App.2005). "No action was taken by the trial court[;] thus[,] there is no ruling from which [Ford] may appeal to this Court. Therefore, we conclude our review of this issue by simply resolving it adversely to him." Id. (citation and quotation omitted).
X. VOIR DIRE
¶ 31. Ford claims that, during voir dire, the prosecution presented facts of the case that should not have been
Citing Spicer v. State, 921 So.2d 292, 318 (¶ 55) (Miss.2006) as the sole authority under this argument, Ford argues that the prosecutor's question was "similar to other remarks that the Mississippi Supreme Court has repeatedly condemned as improper."
¶ 32. The comment at issue in Spicer was a "send-the-message" comment that was made during closing arguments. Id. at 317 (¶ 52). To be precise, the prosecutor in Spicer made the following comments during closing arguments:
Id. at (¶ 51). No portion of the voir dire comments in Ford's case are remotely similar to the comment at issue in Spicer. As Spicer is the only authority that Ford cited to support his argument under this heading, it follows that Ford failed to cite relevant authority for this issue. Thus, this issue is procedurally barred. Walker, 913 So.2d at 222 (¶ 73); M.R.A.P. 28(a)(6).
XI. MISTRIAL BASED ON LEE'S TESTIMONY
¶ 33. This issue stems from the following exchange, which occurred during Lee's direct-examination testimony:
¶ 34. We will reverse a circuit court's decision to deny a motion for a mistrial if the circuit court's decision was an abuse of the circuit court's discretion. Flora v. State, 925 So.2d 797, 804 (¶ 5) (Miss.2006). The rationale behind our standard of review is that the circuit court "is best suited to determine the prejudicial effect of an objectionable remark and is given considerable discretion in deciding whether the remark is so prejudicial as to merit a mistrial." Id. "Unless serious and irreparable damage results from an improper comment, the judge should admonish the jury then and there to disregard the improper comment." Id. (citation and quotations omitted).
¶ 35. As noted above, the circuit court instructed the jury to disregard Lee's testimony that he heard someone yell, "Don't do it, O.J.," contemporaneously with Stuckett's murder. By instructing the jury to disregard Lee's testimony, it is clear that the circuit court sustained Ford's objection. "When a trial judge sustains an objection to testimony and directs the jury to disregard the statement, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony." Id. at 805 (¶ 10) (citation and quotation omitted). Ford does not attempt to demonstrate that the jury did not follow the circuit court's instructions. That is, Ford failed to demonstrate that the jury did not disregard Lee's testimony. Likewise, Ford failed to demonstrate that the jury could not have disregarded Lee's testimony. Accordingly, there is no merit to this issue.
XII. MISTRIAL BASED ON OFFICER LARRY TISABY'S TESTIMONY
¶ 36. Ford's argument under this heading is based on the following portion of Officer Larry Tisaby's testimony during direct examination by the prosecution:
Next, there was a bench conference outside of the jury's presence. The circuit
At the conclusion of Officer Tisaby's testimony, Ford moved for a mistrial. Outside of the jury's presence, Officer Tisaby explained that he did not fully understand that he was not allowed to testify that he received information regarding the fact that a car that was involved with Stuckett's murder was parked at a gas station. Officer Tisaby stated that he did not hear the prosecution's instructions to avoid testifying as such because he was sick. The circuit court denied Ford's motion for a mistrial. Ford claims the circuit court erred.
¶ 37. Ford cites Campbell v. State, 750 So.2d 1280 (Miss.Ct.App.1999) as authority for his argument that the circuit court should have granted his motion for a mistrial. In Campbell, 750 So.2d at 1283 (¶ 13), this Court stated:
(Internal citations omitted). The facts in Campbell are clearly distinguished from the facts of the case presently before us. The objectionable comments in Campbell involved repeated references to the fact that the defendant in that case was involved in crimes separate from the one he faced at trial. Id. at 1282-83 (¶ 10). The testimony presently at issue pertained to the means by which Officer Tisaby discovered the location of a car that was involved with the crime. There were not repeated utterances of objectionable testimony. Furthermore, the testimony presently at issue is not nearly as prejudicial as the objectionable testimony in Campbell. In fact, Ford does not attempt to explain how he suffered prejudice from the testimony at issue. That apparently inadvertent portion
¶ 38. "When a trial judge sustains an objection to testimony and directs the jury to disregard the statement, it is presumed, unless otherwise shown, that the jury followed the directions of the trial judge to disregard such comment or testimony." Flora, 925 So.2d at 805 (¶ 10) (citation and quotation omitted). Ford failed to demonstrate that the jury could not have disregarded Officer Tisaby's testimony. Likewise, Ford failed to demonstrate that the jury did not disregard Lee's testimony. This issue is without merit.
XIII. EXPERT WITNESS
¶ 39. Ford claims the circuit court erred when it allowed Hathcock to testify as an expert witness in the field of forensic firearms. Ford does not elaborate as to why the circuit court erred when it accepted Hathcock as an expert witness.
¶ 40. "There is a presumption that the judgment of the trial court is correct, and the burden is on the appellant to demonstrate some reversible error to this Court." White v. State, 818 So.2d 369, 371 (¶ 7) (Miss.Ct.App.2002) (quoting Clark v. State, 503 So.2d 277, 280 (Miss. 1987)). The appellant has a duty to do more than make mere assertions. Id. He must set forth reasons for his arguments and cite authority in support of them. Id. If he fails to meet those obligations, this Court has no duty to consider his mere allegations. Id. Because Ford merely asserted that the circuit court erred when it accepted Hathcock as an expert witness without explaining why the circuit court erred, this issue is procedurally barred on appeal. Id.
XIV. CUMULATIVE ERRORS
¶ 41. According to Ford, the cumulative effect of the errors committed at trial requires that we reverse the circuit court and remand this matter for a new trial. We have found no errors. It follows that there can be no cumulative effect of errors that do not exist. Harrison v. State, 49 So.3d 80, 85 (¶ 18) (Miss.2010).
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ISHEE, CARLTON, MAXWELL AND RUSSELL, JJ., CONCUR.
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