Tony Chisholm a/k/a Tony D. Chisholm v. State of Mississippi ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-KA-01439-COA
TONY CHISHOLM A/K/A TONY D. CHISHOLM APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/20/2018
TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN E. BRIGGS
TONY CHISHOLM (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 04/07/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.
C. WILSON, J., FOR THE COURT:
¶1. A Wilkinson County Circuit Court jury convicted Tony Chisholm of felony fleeing
or eluding a law enforcement officer in a motor vehicle under Mississippi Code Annotated
section 97-9-72 (Rev. 2014). Chisholm appeals, contending that there was insufficient
evidence to support his conviction, that the jury was biased against him, and that the deputy
sheriff failed to tell him that he was under arrest or read him his Miranda rights before
attempting to pull him over. He also asserts that the circuit court did not properly instruct
the jury on the lesser included offense of misdemeanor fleeing. Finding no error, we affirm.
BACKGROUND AND PROCEDURAL HISTORY
¶2. Wilkinson County Sheriff’s Deputy Lemuel Rutledge drove to the Pieces nightclub
outside Woodville, Mississippi, after being informed that Chisholm was there. At the time,
Deputy Rutledge knew that Chisholm had various felony warrants out for his arrest. Once
Deputy Rutledge arrived at the nightclub, he exited his police cruiser. Chisholm, who was
in the driver’s seat of an SUV, also exited his vehicle. The two spoke. After a short
exchange, Chisholm got back into his vehicle and left the parking lot by driving the SUV up
a hill that led into the parking lot of a neighboring building (rather than exiting via the
normal parking lot exit). Deputy Rutledge got back into his police cruiser and followed
Chisholm in an attempt to pull Chisholm over. Another deputy, Deputy Elliot Lowe, also
followed in his police cruiser behind Deputy Rutledge.1
¶3. Despite the deputies’ blue lights and sirens being on, Chisholm did not pull over. The
deputies continued to follow Chisholm through town. During the pursuit, Chisholm drove
ten to thirty miles per hour over the speed limit, passed multiple cars in a no-passing zone,
ran more than one car off the road, ran a stop sign, and took an erratic turn. The deputies lost
sight of Chisholm’s vehicle when forced to stop to avoid wrecking into another vehicle. Law
enforcement found and arrested Chisholm four days later.
¶4. A grand jury indicted Chisholm for felony fleeing. Deputy Rutledge testified on
behalf of the State at trial. After the State rested its case-in-chief, Chisholm moved for a
1
By the time of Chisholm’s trial, Deputy Lowe had left the Wilkinson County
Sheriff’s Department and moved out of state. Deputy Lowe did not testify during
Chisholm’s trial.
2
directed verdict. The circuit court denied Chisholm’s motion. Prior to closing arguments,
Chisholm renewed his motion for a directed verdict, and the court again denied Chisholm’s
motion. The jury found Chisholm guilty of felony fleeing, and the circuit court sentenced
Chisholm to serve five years in the custody of the Mississippi Department of Corrections.
Chisholm filed a motion for a new trial, which the court denied. Chisholm now appeals,
contending that there was insufficient evidence to support his conviction, that the jury was
biased, and that the deputy sheriff failed to tell Chisholm that he was under arrest or read him
his Miranda rights before attempting to pull him over. In his pro se reply brief, Chisholm
also asserts that although the circuit court gave a jury instruction on the lesser included
offense of misdemeanor fleeing, the instruction regarding the form of the verdict did not give
the jury that option. We address these issues in turn.
DISCUSSION
I. Sufficiency of the Evidence
¶5. Chisholm first contends that the State did not present sufficient evidence at trial to
support his felony fleeing conviction. According to Chisholm, at most, he should have been
convicted of misdemeanor fleeing. We disagree.
¶6. In considering whether the evidence is sufficient to sustain a conviction, “the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Williams v. State, 35 So. 3d 480, 485 (¶16) (Miss. 2010). Where the
facts and inferences “point in favor of the defendant on any element of the offense with
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sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that
the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if
“reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different
conclusions on every element of the offense,” the evidence is sufficient, and the conviction
should be sustained. Id.
¶7. Here, the jury convicted Chisholm of felony fleeing. Mississippi Code Annotated
section 97-9-72 provides the elements for this crime:
(1) The driver of a motor vehicle who is given a visible or audible signal by a
law enforcement officer by hand, voice, emergency light or siren directing the
driver to bring his motor vehicle to a stop when such signal is given by a law
enforcement officer acting in the lawful performance of duty who has a
reasonable suspicion to believe that the driver in question has committed a
crime, and who willfully fails to obey such direction shall be guilty of a
misdemeanor . . . .
(2) Any person who is guilty of violating subsection (1) of this section by
operating a motor vehicle in such a manner as to indicate a reckless or willful
disregard for the safety of persons or property, or who so operates a motor
vehicle in a manner manifesting extreme indifference to the value of human
life, shall be guilty of a felony . . . .
¶8. Chisholm asserts that he did not operate his vehicle with “reckless or willful disregard
for the safety or persons or property, or . . . manifesting extreme indifference to the value of
human life.” As support, Chisholm states that “there were simply no accidents and no
injuries caused by [his] actions.” But Chisholm did not have to cause accidents or injuries
to be convicted of felony fleeing. Hobson v. State, 181 So. 3d 1021, 1026 (¶9) (Miss. Ct.
App. 2015) (“The mere fact that no one was injured by [the defendant’s] reckless driving is
irrelevant to the [felony fleeing] conviction.”).
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¶9. In Hobson, the Court found sufficient evidence to support a felony fleeing conviction
where the defendant “failed to stop when the officer activated his blue lights, ran three stop
signs, and exceeded the posted speed limit in a residential area.” Id. In Chisholm’s case,
Deputy Rutledge testified that Chisholm failed to stop even though Deputy Rutledge had
activated both his blue lights and siren. Deputy Rutledge also testified that, during his
pursuit of Chisholm, Chisholm drove over the speed limit, ran a stop sign, passed vehicles
in the wrong lane and in a no-passing zone, and made an erratic turn. In doing so, Chisholm
forced other vehicles to drive off the road to avoid hitting him. Accordingly, the State
presented the jury with sufficient evidence to find the essential elements of felony fleeing,
including Chisholm’s “reckless or willful disregard for the safety of persons or property,”
beyond a reasonable doubt.2
II. Impartial Jury
¶10. As his second assignment of error, Chisholm contends that he was not afforded an
impartial jury because “all or most of the jurors had ties to law enforcement.” A defendant
“bears the burden of showing [he] was ‘prejudiced by the jury selected or that the jury was
biased or less than impartial.’” Dewitt v. State, 269 So. 3d 388, 395 (¶19) (Miss. Ct. App.
2018) (quoting George v. State, 812 So. 2d 1103, 1108 (¶22) (Miss. Ct. App. 2001)), cert.
denied, 258 So. 3d 286 (Miss. 2018). “We have stated that the trial court has ‘complete
discretion’ to remove any juror that the trial court is convinced is not able to try the case
without any bias or prejudice toward the State or the defendant.” Taylor v. State, 90 So. 3d
2Chisholm’s cursory request for a new trial on remand, which ostensibly challenges
the weight of the evidence, yields no different result.
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97, 107 (¶36) (Miss. Ct. App. 2011). “Since ‘there is no firm rule guiding the courts in every
given situation of voir dire examination, these matters must be determined on a case by case
basis.’” Dewitt, 269 So. 3d at 395 (¶19) (quoting Langston v. State, 791 So. 2d 273, 281
(¶19) (Miss. Ct. App. 2001)). “An appellate court may not reverse a decision by a trial court
regarding jury selection unless there is an abuse of discretion.” Taylor, 90 So. 3d at 107
(¶36).
¶11. In his brief, Chisholm presents no evidentiary support for his assertion that the jury
was biased against him or less than impartial. Further, in carefully reviewing the record, we
find no abuse of discretion by the trial court regarding jury selection. This issue therefore
lacks merit.
III. Miranda Rights
¶12. In his third assignment of error, Chisholm contends that Deputy Rutledge allowed him
to leave the Pieces nightclub parking lot without telling him that he was under arrest or
reading him his Miranda rights.3 Chisholm cites no authority and provides no further
argument in support of this assignment of error. “Failure to cite relevant authority obviates
the appellate court’s obligation to review such issues.” Simmons v. State, 805 So. 2d 452,
487 (¶90) (Miss. 2001). Regardless, being placed under arrest and being advised of Miranda
rights are not predicates for the crime of felony fleeing. By the plain language of section 97-
9-72, neither arrest nor Miranda warning is a required element of felony fleeing. Thus, this
issue is likewise meritless.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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IV. Jury Instruction on Lesser Included Offense
¶13. Finally, Chisholm belatedly asserts in his reply brief that although the circuit court
gave a jury instruction on the lesser included offense of misdemeanor fleeing, the instruction
regarding the form of the verdict did not give the jury that option. It is a well-established rule
that “[w]e will not consider issues raised for the first time in an appellant’s reply brief.”
Nelson v. State, 69 So. 3d 50, 52 (¶8) (Miss. Ct. App. 2011) (quoting Sanders v. State, 678
So. 2d 663, 669-70 (Miss. 1996)). Nonetheless, the record shows that Chisholm’s assertion
regarding the lesser-included-offense instruction is simply not true. The record indicates that
the trial court provided the jury with an instruction regarding the lesser included offense of
misdemeanor fleeing and that the instruction regarding the form of the verdict also included
that option.
¶14. Based on the foregoing reasons, we affirm Chisholm’s felony fleeing conviction and
sentence.
¶15. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ.,
CONCUR.
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