Immanuel Manning v. State of Mississippi , 269 So. 3d 216 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-KA-01301-COA
IMMANUEL MANNING A/K/A PAPOOSE A/K/A APPELLANT
IMMANUEL D. MANNING A/K/A IMMANUEL
DEWAYNE MANNING A/K/A EMMANUEL
MANNING A/K/A EMMANUEL D. MANNING
A/K/A EMMANUEL DEWAYNE MANNING
A/K/A HOLLYWOOD
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/04/2016
TRIAL JUDGE: HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN TAYLOR COOK
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
LADONNA HOLLAND
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 03/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. A jury in the Oktibbeha County Circuit Court convicted Immanuel Manning of murder
and witness intimidation. On the charge of murder, Manning was sentenced as a habitual
offender to life in the custody of the Mississippi Department of Corrections (MDOC) without
eligibility for parole or early release. On witness intimidation, the circuit court sentenced
Manning to two years in MDOC custody.
¶2. On appeal, Manning argues that (1) Lieutenant Brett Watson’s lay opinion testimony
was inadmissible; (2) the State presented insufficient evidence to support the conviction for
witness intimidation; (3) jury instruction S-3(A) constructively amended Manning’s
indictment; and (4) this Court should reverse Manning’s murder conviction under the
doctrine of retroactive misjoinder. Because we find the evidence was sufficient to support
a conviction of witness intimidation, we will only address assigned errors 1–3.
FACTS AND PROCEDURAL HISTORY
¶3. On March 7, 2014, Christopher Houston was shot and killed at his home in Starkville,
Mississippi. Houston shared that home with his girlfriend Natalla Carter. Carter testified
that she was cleaning a bathtub at the time of the shooting. After Houston was shot, Carter
stated that she ran outside when she heard Houston call her name. Once outside, Carter saw
Houston on the ground near a four wheeler. According to Carter, Houston, in making his
final statement, told her that “Papoose shot [him].” Carter testified that she knew “Papoose”
to be Manning, and Houston addressed Manning with the same moniker.
¶4. Deputy Mahyar Netadji, of the Oktibbeha County Sheriff Department, was the first
law-enforcement officer to arrive on the scene. Carter relayed that Houston had said that
“Papoose” shot him. According to Netadji, he knew that “Papoose” was Manning’s moniker.
¶5. Netadji unsuccessfully tried to get a verbal response from Houston. Houston died at
the scene, despite emergency responders’ attempts to revive him there and at the hospital.
After Houston was transported to the hospital, Netadji spoke to Carter again, who informed
Netadji that Manning likely was headed to Jackson, Mississippi.
2
¶6. In response, Netadji notified dispatchers of Manning’s possible involvement in the
shooting and sent a “be on the lookout” (BOLO) alert to neighboring counties and the
Mississippi Highway Patrol. Next, Netadji then spoke with Reginald Ferguson, Carter’s
neighbor. According to Ferguson, he was outside barbecuing when he noticed a gray Pontiac
Bonneville, with a wing on the back, drive into the area before the shooting. Ferguson went
inside his home for a moment, and when he returned he saw a man running back to the
Pontiac. Ferguson described the driver as wearing mustard-colored pants and a dark-colored
jacket.
¶7. Netadji provided that description to dispatch, Lieutenant Watson, and other law-
enforcement officers. Watson also responded to the scene. Watson also knew Manning was
referred to as Papoose and proceeded to search for information on Manning. While the
record is unclear on how Watson ascertained Manning’s cell phone number, Watson used it
to contact T-Mobile to discover where the phone had been used earlier that day. T-Mobile
emailed Watson coordinates of Manning’s cell phone throughout the day. This information
eventually led to Manning’s apprehension in Pearl, Mississippi. After being detained,
Officer Greg Jones tested Manning’s hands for gunshot residue at the Pearl Police
Department.
¶8. Manning eventually was released on bond. While on bond, Carter encountered
Manning twice. According to Carter, Manning made kissing gestures toward her during this
first encounter. During the second encounter, Carter testified Manning said something that
she took as a threat, although she could not remember exactly what he had said. She filed
3
charges against him shortly thereafter.
¶9. On July 18, 2014, Manning was indicted and charged with first-degree murder,
possession of stolen property,1 and witness intimidation. Manning’s trial began on August
1, 2016. The State called nine witnesses during its case-in-chief. Manning called one
witness and then chose to testify. Afterward, the State called three rebuttal witnesses and
rested. The jury found Manning guilty of murder and witness intimidation. Manning
appeals.
DISCUSSION
I. Whether Brett Watson’s lay opinion was inadmissible.
¶10. Manning argues that Watson’s testimony was inadmissible lay opinion testimony,
because cell-tower pings are technical in nature. Additionally, Manning argues that the
State’s leading questions evoked affirmative answers from Watson when discussing how he
tracked Manning’s direction of travel through his cell phone’s coordinates.
¶11. “The standard of review for both the admission or exclusion of evidence is abuse of
discretion.” Walls v. State, 928 So. 2d 922, 926 (¶9) (Miss. Ct. App. 2006) (citing Harrison
v. McMillan, 828 So. 2d 756, 765 (¶27) (Miss. 2002)). “Even if this Court finds an erroneous
admission or exclusion of evidence, we will not reverse unless the error adversely affects a
substantial right of a party.” Id. “There is a two-part test to determine the admissibility of
lay witness opinion testimony.” Id. at (¶10). “The information must assist the trier of fact
and the opinion must be based upon first hand knowledge.” Id. (citing Jones v. State, 678
1
The State ultimately chose to retire the possession-of-stolen-property charge to the
files.
4
So. 2d 707, 710 (Miss. 1996)). “A layperson is qualified to give an opinion based upon his
first hand knowledge that other lay people do not possess.” Id.
¶12. Manning cites to Collins v. State, 172 So. 3d 724 (Miss. 2015) in support of his
contentions. In Collins, Jairus Collins was convicted of murdering Ebony Jenkins. Id. at 727
(¶1). Jenkins’s body was discovered behind a building in Hattiesburg, Mississippi. Id.
“During the course of the investigation, police officers identified Collins as a suspect in
Jenkins’s murder.” Id. “Collins initially told officers he did not know Jenkins very well and
was working the night of December 7, 2011.” Id. at 732 (¶4). “Officers subpoenaed
Collins’s work schedule, however, which showed that Collins was not at work on December
7, 2011.” Id.
¶13. After officers showed Collins phone records from the night of Jenkins’s murder,
Collins admitted to having some contact with Jenkins that night. Id. “Based on the phone
records they obtained, officers determined that Collins and Jenkins exchanged several phone
calls and text messages the night of December 7, 2011.” Id. One of the detectives involved
in the investigation testified regarding longitude and latitude coordinates and cell phone
towers that Collins and Jenkins’s cell phones used to make and receive calls.
¶14. The Mississippi Supreme Court found that the admission of the detective’s testimony
was a reversible error. Id. at 744 (¶29). The Court opined “that testimony that simply
describes the information in a cell phone record is properly lay testimony.” Id. at 743 (¶28).
“Likewise, testimony that merely informs the jury as to the location of cell phone towers may
properly be lay testimony when it is based upon the personal observations of the witness.”
5
Id. “But testimony that goes beyond the simple descriptions of cell phone basics, specifically
testimony that purports to pinpoint the general area in which the cell phone user was located
based on historical cellular data, requires scientific, technical, or other specialized knowledge
that requires expert testimony.” Id.
¶15. Relying on our Supreme Court’s holding in Collins, Manning argues that Watson
provided improper expert testimony when he testified regarding the coordinates and real-time
locations provided by T-Mobile. However, this issue is waived on appeal because Manning’s
defense attorney failed to object to Watson’s testimony and the State’s presentation of the
evidence. “The failure to object to testimony at trial waives any assignment of error on
appeal.” Ross v. State, 16 So. 3d 47, 57 (¶21) (Miss. Ct. App. 2009) (internal quotation
marks omitted).
¶16. Procedural bar notwithstanding, the State argues that Manning’s assignment of error
is without merit. The State notes that Watson’s testimony is markedly distinguishable from
the testimony that the Supreme Court warned against in Collins. We agree. The detective’s
testimony in Collins purported to pinpoint the general area that the cell phone users were
located. Here, Watson merely placed the coordinates from the records supplied by T-Mobile
into Google maps. Watson’s testimony was not complex or technical, necessitating
specialized knowledge or training. Moreover, Watson’s testimony did not implicate
Manning as the detective’s testimony did in Collins. Therefore, we find that the admission
of Watson’s testimony was not in error.
II. Whether the State presented sufficient evidence to convict Manning of
witness intimidation.
6
¶17. “When reviewing a challenge to the sufficiency of the evidence, this Court will
reverse and render only if the facts and inferences point in favor of the defendant on any
element of the offense with sufficient force that reasonable men could not have found beyond
a reasonable doubt that the defendant was guilty.” Hughes v. State, 983 So. 2d 270, 275-76
(¶10) (Miss. 2008) (internal quotation marks omitted). “This Court considers the evidence
in the light most favorable to the state.” Id. “The state receives the benefit of all favorable
inferences that may reasonably be drawn from the evidence.” Id. (internal citations omitted).
¶18. Manning argues that Carter’s allegations regarding her two encounters with him after
he was released on bond were insufficient to support his conviction for witness intimidation.
Specifically, Manning argues that Carter’s testimony regarding the threatening statement he
made was so patchy, nondescript, and nebulous that it is impossible to conclude what
Manning said to her. As a result, Manning asserts that the State failed to prove witness
intimidation beyond a reasonable doubt.
¶19. Mississippi Code Annotated section 97-9-113 states that “[a] person commits the
crime of intimidating a witness if he intentionally or knowingly: . . . [h]arasses or intimidates
or attempts to threaten, harass or intimidate a witness or a person reasonably expected to be
a witness.” As stated prior, Carter testified to two incidents that she perceived as threats.
In the first encounter, Carter stated this occurred when she was leaving the complex where
both her mother and Manning resided: “I was coming in to Brooksville Garden and he was
leaving out making kissing gestures.” In the second encounter, Carter testified that she could
not hear exactly what Manning stated to her, but she could make out the words “do
7
something.” “The [Supreme Court] has stated that a single witness’s uncorroborated
testimony is sufficient to support a conviction.” Cousar v. State, 855 So. 2d 993, 998-99
(¶16) (Miss. 2003). Moreover, “[t]he jury determines the weight and credibility to give
witness testimony and other evidence.” Gillett v. State, 56 So. 3d 469, 505 (¶102) (Miss.
2010) (citing Massey v. State, 992 So. 2d 1161, 1163 (¶12) (Miss. 2008)). “This Court may
not pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must
be accepted as having been found worthy of belief.” Id. (internal quotation marks omitted).
¶20. In the case at hand, the jury found Carter’s testimony as to the threatening nature of
Manning’s gestures credible. Carter was the only individual who heard Houston’s final
statements regarding who shot him. Carter also identified Manning as “Papoose” and was
a key state witness. In viewing the evidence in the light most favorable to the State, it was
reasonable for the jury to find Manning guilty of witness intimidation.
III. Whether instruction S-3(A) constructively amended Manning’s
indictment.
¶21. Manning argues that the variance between his indictment and one of the State’s jury
instructions constructively amended the indictment. Specifically, Manning asserts that the
State’s jury instruction neglected to allege an overt act because the grand jury indicted
Manning on the allegations that he engaged in conversation and blowing kisses. However,
Manning waived this error on appeal because his defense counsel failed to object to the lack
of an overt act in the instruction. “The failure to object to testimony at trial waives any
assignment of error on appeal.” Ross,16 So. 3d at 57 (¶21). Therefore, this matter is
procedurally barred.
8
¶22. Procedural bar notwithstanding, Manning’s indictment informed him that he was
being charged with intimidating a witness by “unlawfully, willfully[,] and feloniously
attempt[ing] to intimidate or otherwise influence . . . Carter, a witness to a crime, by threats,
force[,] or abuse, by engaging in conversation and blowing kisses at . . . Carter, to obstruct
or impede the administration of justice. . . .”
¶23. Instruction S-3(A) informed the jury that it should find Manning guilty of intimidating
a witness if it found from the evidence beyond a reasonable doubt that Manning: “did
unlawfully, willfully[,] and feloniously; attempt to intimidate or otherwise influence . . .
Carter, a witness to a crime; by threats, communication with her with threats, force or abuse;
to obstruct or impede the administration of [j]ustice in any [c]ourt.”
¶24. In Bell v. State, 725 So. 2d 836, 855-56 (Miss. 1998), the [Supreme Court] held that
reversal is required where a defendant was convicted of an element of the offense not
contained in the indictment, and “. . . reversal is automatic because the defendant may have
been convicted on a ground not charged in the indictment.” Bishop v. State, 812 So. 2d 934,
941 (¶25) (Miss. 2002) (internal quotations omitted). However, “[n]ot all variances between
the indictment and instructions constitute a constructive amendment, nor do they rise to plain
error.” Bell, 725 So. 2d at 855 (¶61). “The central question is whether the variance is such
as to substantially alter the elements of proof necessary for a conviction.” Id.
¶25. Manning argues that the State’s failure to include an allegation of an overt act creates
such a considerable variance that it warrants reversal. We do not agree. The omission of an
overt act did not change any element of the offense or broaden the grounds upon which he
9
could be found guilty. Accordingly, we find this argument without merit.
¶26. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
10