Jeremy Wendell Isom v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-KA-00434-SCT
JEREMY WENDELL ISOM
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 02/15/2005
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RALPH STEWART GUERNSEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: BEN CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/11/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
EASLEY, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
¶1. Jeremy Wendell Isom (Isom) was indicted in the Circuit Court of Lafayette County,
Mississippi for burglary of a dwelling. Following a jury trial, Isom was convicted of burglary
of a dwelling house and sentenced to serve a term of twenty-five years in the custody of the
Mississippi Department of Corrections with five years suspended and twenty years to serve.
The trial court denied Isom’s post-trial motion for J.N.O.V., or in the alternative, new trial.
Isom now appeals to this Court.
FACTS
¶2. On December 26, 2003, Pam Thompson (Pam) awoke between 11:00 p.m. to 12:00
a.m. Pam shared the apartment with her brother, Terrel Thompson, in Oxford, Mississippi.
As she entered the hallway, Pam saw two men, one white and one black, walking toward her
brother’s room. Terrel was not at home at the time of the intrusion. When Pam screamed,
the two men ran out of the apartment.
¶3. Pam only recognized the white man. She knew him because he had been to the
apartment before to get some class notes from Terrel. The police later arrested the white
man, John Patterson (Patterson). Patterson admitted that he and Jeremy Isom were involved
in the burglary. He later agreed to testify against Isom. Patterson testified that he and Isom
decided to break into Terrel’s apartment, that Terrel was a drug dealer, that they called Terrel
on his cellphone, and Terrel told them that he was out of town for the holidays. Once
Patterson and Isom learned Terrel was out of town, they decided to break into Terrel’s
apartment at Oak View Apartments. Isom kicked in the door, and both men entered the
apartment. When Patterson saw Pam, he told Isom that there was someone else in the
apartment. Both men fled the apartment. Patterson ran out first with Isom following behind
him. Patterson stated they were breaking into the apartment to steal his drug dealer’s drugs
and money. Isom and Patterson ran to Maplewood Apartments, where a friend of Patterson’s
lived. The police questioned Patterson later that night. He confessed to his involvement in
the burglary and testified against Isom at trial.
2
¶4. Jenny Szerkins (Szerkins) was at Patterson’s friend’s apartment on December 26,
2003. Szerkins testified that Isom and Patterson arrived at the apartment sweaty. When Isom
learned the police were on their way to the apartment, he pulled out a gun and said that he
could not be caught with the gun.
¶5. Martha Everitt (Martha) testified that on December 26, 2003, she and her daughter,
Jessica Everitt (Jessica), were inside her home located on 2118 Harris Drive in Oxford,
Mississippi. Jessica saw flashing lights outside the house. Martha opened her front door and
a police officer told her to stay inside the house and lock the door. Jessica told Martha that
a man was in their backyard. Martha reported to the police that somebody was in the
backyard. Jessica saw the man jump over the fence. Martha then went to the kitchen and she
and Jessica saw a black male jump back over the fence, lose his footing, slide and run to one
of the fence gates. Martha had motion-sensor lights in her yard.
¶6. The next morning while walking in her backyard, Martha discovered a gun. Martha
put the gun in a plastic bag and called the police. At trial, Martha identified Isom as the man
in her yard on December 26, 2003. On cross-examination, Martha stated that when the
defendant slipped in the yard, he looked straight at her. Later, Martha stated that her
spotlight shone on him and he was wearing a “toboggan” on his head.
¶7. Jessica also testified at trial and identified Isom as the man in her backyard. Jessica
noticed that the motion-sensor spotlights came on at her home. She saw a man running
through the yard. When Jessica went to the back of her house, the spotlight was shining on
3
a black male crouched in front of the fence. She had a good look at him and saw his face.
He jumped over the fence. The next day, Jessica saw Isom again by the side of her house.
She notified the police that she saw Isom in the yard the next day. The police contacted
Jessica and Martha about a photographic line-up. Jessica viewed the photo line-up at the
police station and identified Isom from the photographs. Isom was convicted by a jury of
burglary of a dwelling house.
I. Discovery violation/continuance
¶8. Isom asserts that the trial court erred by allowing the admission of Jessica and Martha
Everitts’s testimony and that the trial court failed to apply the procedures for a discovery
violation by failing to either grant a continuance or exclude the testimony as outlined in the
Uniform Circuit and County Court Rule 9.04(A) and (I) and in Box v. State, 437 So. 2d. 19
(Miss. 1983). He also argues that the prosecution’s violation of the discovery rule and the
trial court’s denial of a continuance resulted in substantial prejudice and a miscarriage of
justice. The State contends that the trial court did not abuse its discretion by admitting
testimony and exhibits into evidence and by denying Isom’s request for a continuance. The
State also asserts that Isom failed to pass the two factor test in Brawner v. State, 872 So. 2d
1, 13 (Miss. 2004), and failed to demonstrate that manifest injustice resulted from the denial
of the continuance.
¶9. Originally, trial was set for December 6, 2004. A jury was empaneled on that day.
However, the trial court granted a continuance and reset the trial for January 20, 2005.
4
During the time of the continuance, the State sought to introduce two new witnesses, Jessica
and Martha Everitt. Jessica and Martha viewed an out-of-court photographic line-up on
January 4, 2005, and were to provide eyewitness testimony concerning Isom’s whereabouts
on the night of the burglary. Isom filed a motion in limine on the date of trial, to exclude
new evidence. In the alternative, he requested that the trial be continued in order to give
defense counsel the opportunity to ask the witnesses questions and prepare a proper defense.
¶10. Defense counsel asserted in the written motion in limine and at the hearing on the
motion that the district attorney’s office contacted Isom’s defense counsel by telephone on
January 14, 2005. The assistant district attorney informed defense counsel that there were
two new witnesses, Jessica and Martha, and relayed the substance of their potential
testimony. The prosecution delivered the names, address, and telephone number of Jessica
and Martha, synopsis statements of Jessica and Martha, an amended witness list, and a
supplement to witness statements to the office of Isom’s counsel on January 17, 2005.
Defense counsel was not aware that this information was dropped by his office until January
18. Also on January 18, the assistant district attorney produced 17 digital photographs, 12
color photographs, and two aerial maps. On “Wednesday, January 18" 1 , the assistant district
attorney gave defense counsel other documents and a copy of the photographic line-up
1
In the motion in limine and Motion for J.N.O.V., defense counsel outlines the
dates that he received information from the district attorney’s office. He refers to
“Wednesday, January 18, 2005" in the motions. This appears to be an slight oversight as
January 19 was a Wednesday, not January 18.
5
viewed by Jessica on January 4, 2005, from which she identified Isom. The telephone
number provided by the prosecution for Jessica and Martha was disconnected; therefore,
Isom’s counsel received a new contact number for the witnesses the day before trial. Isom
had a two day trial in which Martha testified on January 20 and Jessica testified on January
21, 2005.
¶11. The State believed that Jessica and Martha’s testimony would link a gun to Isom. The
witnesses saw Isom in their yard on the night of the burglary, and Martha found a gun in their
yard the next day. The trial court took the motion under advisement. Prior to Martha’s
testimony, Isom renewed his motion in limine to exclude the testimony or continue the case.
The trial court denied the motion and gave defense counsel fifteen minutes to speak to the
witnesses.
¶12. Uniform Circuit and County Court Rule 9.04(A) provides that the prosecution must
disclose the names and addresses of all witnesses in chief to the defendant or his/her attorney.
This Court in Payton v. State, 897 So. 2d 921, 941 (Miss. 2003) set out the procedures for
alleged discovery violations as follows:
In Box, and its progeny, this Court set out the procedure for trial courts to
follow when a discovery violation has occurred. This precedent has been
codified in URCCC 9.04(I), which reads, in pertinent part, as follows:
If during the course of trial, the prosecution attempts to introduce evidence
which has not been timely disclosed to the defense as required by these rules,
and the defense objects to the introduction for that reason, the court shall act
as follows:
6
1. Grant the defense a reasonable opportunity to interview the newly
discovered witness, to examine the newly produced documents, photographs
or other evidence; and
2. If, after such opportunity, the defense claims unfair surprise or undue
prejudice and seeks a continuance or mistrial, the court shall, in the interest of
justice and absent unusual circumstances, exclude the evidence or grant a
continuance for a period of time reasonably necessary for the defense to meet
the non-disclosed evidence or grant a mistrial.
3. The court shall not be required to grant either a continuance or mistrial for
such a discovery violation if the prosecution withdraws its efforts to introduce
such evidence. The court shall follow the same procedure for violation of
discovery by the defense.
URCCC 9.04 (emphasis added).
¶13. In this case, defense counsel claimed that he needed time to interview the witnesses
and prepare a defense. The trial court overruled the Box objection by defense counsel.
However, the trial court did allow defense counsel fifteen minutes to interview the witnesses.
In his brief, Isom argues that defense counsel was made aware of the two witnesses the week
of trial, only had an opportunity to contact the witnesses the day before their testimony, and
only had fifteen minutes on the day of their testimony to interview them.2
2
In the body of this issue, Isom’s main complaint of a discovery violation relates
to the testimony of Jessica and Martha. However, in the summary of his argument, he cites
to “a raft of photographs and other evidence.” The trial court admitted a number of
photographs and aerial pictures of the apartment crime scene and the Everitts’s home and
yard. The witnesses testified to the photographs and used the photographs to describe the
various areas. Likewise the aerial photographs were used by the witnesses to describe where
the two apartment complexes were located in relationship to one another. The admission
of these exhibits simply illustrated the locations that each witness described in his or her
testimony and was not prejudicial.
7
¶14. The Everitts were recently discovered witnesses. Once the prosecution was aware of
the witnesses, it informed Isom’s counsel. There is no evidence that the prosecution
deliberately withheld any information from Isom. The record is silent on what occurred
between January 4 and January 14, 2005. The record does reflect that the prosecution
requested that the police look into the unidentified witnesses in the police report. When the
police gave the prosecution the witnesses names, an interview was conducted on January 14,
2005, after which the prosecution called the defense counsel on the same day to inform him
of the witnesses and their potential testimony. The prosecution orally told defense counsel
about the witnesses and their expected testimony and provided a written synopsis of the
Everitts’s testimony to defense counsel prior to trial.
¶15. The trial court erred by failing to grant a continuance and admitting Jessica and
Martha’s testimony. However, these errors were harmless because the evidence was so
overwhelming that the jury could have sustained a conviction of burglary of a dwelling even
without Jessica and Martha’s testimony. The evidence before the jury was that Pam was in
the apartment that she shared with her brother Terrel on the night of the burglary. Pam
recognized Patterson as a person that had been to her apartment to exchange school notes
with her brother Terrel. She saw Patterson and a black male leave the house.
¶16. Patterson confessed to the crime and testified against Isom. He told police that Isom
was his accomplice to the burglary. Patterson called Terrel on a cellphone and learned that
Terrell was out of town. Patterson and Isom then decided to break into Terrel’s apartment
8
to steal money and drugs. Once Patterson and Isom realized that the apartment was
occupied, they fled Pam’s Oak View apartment and went to the Maplewood apartments.
When Isom and Patterson arrived at a Maplewood apartment, they were described as
“sweaty.”
¶17. Szerkins testified that she recognized Patterson and Isom from their former high
school days together. She also stated that Isom pulled out a gun in front of her and a group
of other people at the apartment, stating he could not be caught with the gun.
¶18. Officer Hatcher received a dispatch of a burglary and went to Pam’s house on
December 26. When he arrived at the scene, the officer called in a description to other police
units of a black male and a white male who had both fled the scene. The officer went to the
Maplewood apartment of Jay Lovett and found a group of people there. Officer Owen
attempted to open a back room in the apartment, heard some blinds, and a window open.
Officer Owen went outside and saw a person fleeing the area. Both Officers Hatcher and
Owen began to chase the person. This person ran down the driveway of 2118 Harris Drive
(the Everitts’s home at the time) and into some nearby woods.
¶19. The next day, Officer Hatcher arrived at work and was given a gun to enter into
evidence. The gun was recovered from the backyard of 2118 Harris Drive. Officer Hatcher
later went to the house and spoke to a female who stated that the gun was found in her
backyard. This house was the same house on Harris Drive the officer had chased the fleeing
person the previous night.
9
¶20. Clearly, the above facts were so overwhelming that the jury could have sustained a
conviction of burglary of a dwelling even without Jessica and Martha’s testimony.
Therefore, the trial court’s denial of the motion for continuance and subsequent admittance
of Martha and Jessica’s testimony, while in error, was harmless. See Jones v. State, 669 So.
2d 1383, 1395 (Miss. 1995)
II. Biggers factors
¶21. Isom argues that the trial court should have excluded the testimony of Martha and
Jessica Everitt because their identification was unreliable. In addition, Isom asserts that
Martha’s in-court identification was tainted because she was present in the same room when
Jessica positively identified Isom in the out-of-court photographic line-up. Isom also argues
that Martha and Jessica’s in-court identifications fail to meet most, if not all, of the Biggers
factors. See Neil v. Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972).
¶22. Martha and Jessica made positive identifications of Isom at trial. Prior to trial, Martha
and Jessica came to the police station to look at a photographic line-up. Jessica made a
positive identification at the out-of-court photographic line-up. Martha, however, failed to
positively identify Isom in the line-up and chose two people that could have been the person
in her backyard. Jenny Sznenick testified that Isom showed a gun to a group of people,
including herself, at the apartment. The Everitts’s testimony, Martha’s in particular, assisted
in linking a gun to Isom. Martha testified that she found a gun in her backyard the day after
a black male ran through her yard to escape police.
10
In Roche v. State, 913 So. 2d 306, 310 (Miss. 2005), this Court held:
The standard of review for trial court decisions regarding pretrial identification
is “whether or not substantial credible evidence supports the trial court's
findings that, considering the totality of the circumstances, in-court
identification testimony was not impermissibly tainted.” Ellis v. State, 667 So.
2d 599, 605 (Miss. 1995) (citing Magee v. State, 542 So. 2d 228, 231 (Miss.
1989); Nicholson v. State, 523 So. 2d 68, 71 (Miss. 1988); Ray v. State, 503
So. 2d 222, 224 (Miss. 1986)). We will only disturb the order of the trial court
“where there is an absence of substantial credible evidence supporting it.” Id.
(citing Ray, 503 So. 2d at 224).
This Court, also, held:
We have previously held that “pretrial identifications which are suggestive,
without necessity for conducting them in such manner, are proscribed.” York
v. State, 413 So. 2d 1372, 1383 (Miss. 1982). The United States Supreme
Court has also stated, “[t]he practice of showing suspects singly to persons for
the purpose of identification, and not as part of a lineup, has been widely
condemned.” Foster v. California, 394 U.S. 440, 443, 89 S. Ct. 1127, 22
L. Ed. 2d 402 (1969) (quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct.
1967, 11 L. Ed. 2d 1199 (1967)).
Roche, 913 So. 2d at 310-11. Even if the identification is impermissibly suggestive, the
identification can be admissible when “considering the totality of the circumstances
surrounding the identification procedure, the identification did not give rise to a very
substantial likelihood of misidentification.” York, 413 So. 2d at 1383 (quoting Neil v.
Biggers, 409 U.S. 188, 199-200, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972)). In Horne v. State,
825 So. 2d 627, 637 (Miss. 2002), this Court set forth the five Biggers factors which this
court must consider to determine whether the standard has been met for the identification
testimony. See Biggers, 409 U.S. at 199-200. The five factors are: “(1) the opportunity of
the witness to view the criminal at the time of the crime; (2) the witness' degree of attention;
11
(3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty
exhibited by the witness at the confrontation; and (5) the time between the crime and the
confrontation.” Horne, 825 So. 2d at 637 (citing Biggers, 409 U.S. at 199- 200.
¶23. In addition, this Court has held that “[p]retrial photograph identifications have been
generally upheld if the witnesses view the photographs separately and if there is no emphasis
placed on certain photographs as opposed to others.” Burks v. State, 770 So. 2d 960, 963
(Miss. 2000)(citing Simmons v. United States, 390 U.S. 377, 383, 88 S. Ct. 967, 19 L. Ed. 2d
1247 (1968)). In Burks, two witnesses viewed the photographs together and conferred with
one another about their choices. Id. at 965. This Court found, considering the totality of the
circumstances, the photograph identification was not so impermissibly suggestive as to give
rise to irreparable mistaken identification. Id.
A. Out-of-court photographic line-up
¶24. Isom, not the State, questioned Martha about an out-of-court photographic line-up.
Martha went to the police station to view the line-up; however, she did not positively identify
Isom. Instead, Martha simply narrowed the photographs down to two people that could have
been the man in her backyard. Isom raised the issue of Martha’s inability to make a positive
out-of-court identification. The State only asked Martha to make an in-court identification.
Accordingly, Isom may not complain on appeal for an issue that he, himself, raised. “[T]he
general rule is that a defendant may not, himself, introduce evidence at trial and then assert
on appeal that the admission of the evidence constituted reversible error.” McCullough v.
12
State, 750 So. 2d 1212, 1215 (Miss. 1999); Fleming v. State, 604 So. 2d 280, 289 (Miss.
1992).
¶25. Martha’s testimony on cross-examination refutes any assertion by Isom of an
impermissibly suggestive identification. Martha stated that she was present when Jessica
identified Isom in the photographic line-up. However, Martha did not know or see who
Jessica chose from the photographic line-up. The officer did not allow Jessica and Martha
to view the photographs together.
¶26. We find that Martha did not positively identify Isom at the photographic line-up. Isom
can show no prejudice by Martha’s presence at the photographic line-up. Rather, Martha’s
inability to positively identify Isom at the photographic line-up benefits Isom, as it creates
a jury question of Martha’s reliably and credibility on the issue of identification.
Furthermore, a review of the photographic line-up viewed by Martha and Jessica and
admitted at trial shows there was nothing impermissibly suggestive about it.
¶27. As for Jessica’s out-of-court identification, the State introduced testimony from
Jessica concerning her positive identification of Isom at the photographic line-up. Isom
objected to the admissibility of the line-up testimony on the grounds that the document was
produced a few days before trial. The trial court overruled the objection. We find that any
argument that the out-of-court identification was improper is waived. At trial, Isom cited to
a discovery violation not improper identification testimony. As stated in Issue I, the trial
court correctly found no discovery violation. Since the objection was based on the grounds
13
of a discovery violation and not improper identification, the issue was waived. See Stringer
v. State, 279 So. 2d 156, 158 (Miss. 1973).
B. In-court identification
¶28. Turning to the Biggers factors, Martha and Jessica’s in-court identifications favor the
admissibility of their testimony.
1. Martha
¶29. The first Biggers factor is the opportunity of the witness to view the criminal at the
time of the crime. A spotlight was shining in Martha’s backyard when Isom was in the yard.
Her house had motion-sensor lights which turned on in the backyard. Martha saw a black
male attempt to jump the fence in the backyard and slip. When Isom slipped, Martha saw
Isom because he looked straight at her. We find this factor favors admissibility.
¶30. The second Biggers factor is the witness's degree of attention. Martha saw Isom for
a few seconds and noticed that he had a “toboggan” on his head. She never saw Isom with
a gun. When asked if she remembered seeing Isom’s face, Martha testified that she did
because the spotlight was shining on his face. We find this factor favors admissibility.
¶31. The third Biggers factor is the accuracy of the witness's prior description of the
criminal. Martha stated that the person in her yard was a black male wearing a toboggan.
We find this factor is in favor of admissibility.
14
¶32. The fourth Biggers factor is the level of certainty exhibited by the witness at the
confrontation. Martha testified that she remembered seeing his face. We find this factor in
favor of admissibility.
¶33. The fifth Biggers factor is the time between the crime and the confrontation. The
crime occurred on December 26, 2003. Martha identified Isom in court in January 2005,
more than one year after the events. We find this factor favors Isom.
2. Jessica
¶34. The first Biggers factor is the opportunity of the witness to view the criminal at the
time of the crime. The motion-sensor lights came on around the house. Jessica saw a man
running in the front of her yard. She went to the back of the house, and the motion-sensor
spotlight was shining in the backyard. Jessica saw a black male crouched by the fence. The
male then tried to jump the fence. The next day Jessica saw the male in the backyard again.
We find this factor favors admissibility.
¶35. The second Biggers factor is the witness's degree of attention. Jessica saw the male,
whom she later identified in-court as Isom, in her yard when the spotlight was shining on
him. She noticed that he had a “do rag” on his head. Jessica also stated that she had a good
look at the suspect. We find this factor favors admissibility.
¶36. The third Biggers factor is the accuracy of the witness's prior description of the
criminal. Jessica testified that the person in her yard was a black male wearing a “do rag.”
She also saw Isom the next day in her yard. We find this factor is in favor of admissibility.
15
¶37. The fourth Biggers factor is the level of certainty exhibited by the witness at the
confrontation. Jessica identified Isom at trial and stated that she had a good look at him. We
find this factor favors admissibility.
¶38. The fifth Biggers factor is the time between the crime and the confrontation. The
crime occurred on December 26, 2003. Jessica identified Isom in court on January 21, 2005,
more than one year after the events. We find this factor favors Isom.
¶39. All of the five Biggers factors, except the fifth factor, the time between the crime and
the confrontation, favor admissibility in this case. Looking at the totality of the
circumstances, substantial and credible evidence supported the trial court’s ruling to admit
the evidence. We find the testimony was sufficient for the identification to be admissible
without any likelihood of misidentification or irreparable identification. We find this issue
is without merit.
III. Sentencing.
¶40. Isom argues that the trial court abused its discretion by sentencing him to the
maximum sentence pursuant to Miss. Code Ann. § 97-17-23. In addition, Isom claims that
the trial judge relied on his own findings of fact as aggravating factors, instead of a jury’s
findings, to enhance and justify “a long prison sentence.” Isom relies is large part upon
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) and Blakely
v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) for authority.
16
¶41. “Sentencing is within the complete discretion of the trial court and not subject to
appellate review if it is within the limits prescribed by statute.” Walls v. State, 718 So. 2d
1107,1114 (Miss. 1998)(quoting Hoops v. State, 681 So. 2d 521, 537 (Miss. 1996)); Berry
v. State, 722 So. 2d 706. 707 (Miss. 1998). In Fleming v. State, 604 So. 2d 280, 302 (Miss.
1992), this Court held that the general rule in Mississippi is that a sentence that does not
exceed the maximum term allowed by the statute cannot be disturbed on appeal. However,
this Court will review a sentence that allegedly imposed a penalty that is disproportionate to
the crime. Id.
¶42. Miss. Code Ann. § 97-17-23 provides as follows:
Every person who shall be convicted of breaking and entering the dwelling
house or inner door of such dwelling house of another, whether armed with a
deadly weapon or not, and whether there shall be at the time some human
being in such dwelling house or not, with intent to commit some crime therein,
shall be punished by imprisonment in the Penitentiary not less than three
(3) years nor more than twenty-five (25) years.
(Emphasis added).
¶43. The maximum sentence permitted under Miss. Code Ann. § 97-17-23 for the burglary
of a dwelling house is twenty-five years. The trial court sentenced Isom to twenty-five years,
five years suspended and twenty to serve, which is clearly within the proscribed period of
incarceration. As Mississippi case law provides, sentencing is at the discretion of the trial
court and not subject to appellate review if it is within the limits prescribed by statute. Walls,
718 So. 2d at 1114; Berry , 722 So. 2d at 707; Fleming, 604 So. 2d at 302.
17
¶44. Isom asserts that the trial judge enhanced Isom’s sentence and based the sentence on
his own findings of fact as to aggravating factors rather than the findings of a jury. In
support of this assertion, Isom cites to three excerpts from the trial record. The first reference
concerns a page of the transcript that “references the investigation of the probation
department as to aggravating factors.” It is unclear from Isom’s brief how this reference
harmed Isom. The record reflects that the trial court had a pre-sentence report prepared by
the Department of Corrections. In Ferrell v. State, 810 So. 2d 607, 612 (Miss. 2002), this
Court held that “[a] defendant's constitutional rights are not violated when a sentencing court
considers the information contained in a pre-sentence investigation report in determining
what sentence to impose.”
¶45. Isom objected to certain pages of the report. The State made no objection, and the
trial court allowed the information to be redacted from the report. Isom was allowed to make
a statement to the trial court. Part of his statement was made to clarify any problem with the
pre-sentence report. The trial court stated that it reviewed the investigation report, however,
it would “take that into consideration as may be appropriate subject to the revisions that are
being made here today.” (Emphasis added). Therefore, we find the trial court indicated that
it would not consider these redacted portions of the report. In addition, Isom had an
opportunity to make a statement to the judge.
¶46. Isom cited two other points made by the trial court. The trial court stated that the
circumstantial proof indicated that Isom was armed at the time of the burglary. The record
18
reflects that Szerkins and the Everitts testified about a gun. Szerkins testified that when Isom
learned that the police were coming to the apartment where he was hiding, Isom showed a
group of people a gun and stated that he could not get caught with a gun. Martha and Jessica
saw Isom in their yard on the night of the burglary. The next day Jessica saw Isom in her
yard again, and Martha walked around the yard and found a gun.
¶47. Isom also cites the trial judge considering that Isom did not accept responsibility for
the crime. Indeed, Isom admitted in the sentencing phase that he did not take responsibility
for a crime. However, he did take responsibility for placing himself around certain people
and in an environment which resulted in his “situation,” that being his criminal proceeding.
¶48. In Jackson v. State, 551 So. 2d 132, 149 (Miss. 1989), this Court held:
Our law has long provided that the imposition of sentence following a criminal
conviction is a matter within the discretion of the Circuit Court, subject only
to statutory and constitutional limitations. So long as these are not offended,
we rarely interfere. Moreover, the Court is not limited to the consideration of
evidence presented of record at trial when imposing sentence.
(Emphasis added).
¶49. Isom’s reliance on Apprendi and Blakely is misplaced. Isom cites to Apprendi for
the proposition that “[o]ther than the fact of a prior conviction, any fact that increases a
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury.”
Apprendi, 530 U.S. at 490. The statute at issue in Apprendi had an enhancement sentence
for hate crimes. The United States Supreme Court found that the jury was to determine if the
sentence should be enhanced. Id.
19
¶50. Isom relies upon Blakely for its clarification of the term “statutory maximum.” In
Blakely, 542 U.S. at 303-04, the Unites States Supreme Court held:
Our precedents make clear, however, that the "statutory maximum" for
Apprendi purposes is the maximum sentence a judge may impose solely on the
basis of the facts reflected in the jury verdict or admitted by the defendant.
[See] Ring [v. Arizona, 536 U.S. 584, 592-593, and n. 1, 122 S. Ct. 2428, 153
L. Ed. 2d 556 (2002)], (" 'the maximum he would receive if punished according
to the facts reflected in the jury verdict alone' " (quoting Apprendi, supra, [530
U.S.] at 483, 120 S. Ct. 2348)); Harris v. United States, 536 U.S. 545, 563,
122 S. Ct. 2406, 153 L. Ed. 2d 524 (2002) (plurality opinion) (same); cf.
Apprendi, supra, at 488, 120 S. Ct. 2348 (facts admitted by the defendant). In
other words, the relevant "statutory maximum" is not the maximum sentence
a judge may impose after finding additional facts, but the maximum he may
impose without any additional findings. When a judge inflicts punishment that
the jury's verdict alone does not allow, the jury has not found all the facts
"which the law makes essential to the punishment," [1 J.] Bishop, [Criminal
Procedure § 87, p. 55 (2d ed. 1872)], and the judge exceeds his proper
authority.
¶51. We find that the statute applicable to Isom’s crime of burglary of a dwelling is
distinguishable from Apprendi and Blakely. Isom was found guilty by a jury pursuant to
Miss. Code Ann. § 97-17-23 which has no sentence enhancement provision. In other words,
there is no increased or enhanced punishment pursuant to Miss. Code Ann. § 97-17-23 upon
a finding of aggravating factors.
¶52. In this case, Isom was indicted for burglary of a dwelling house. This crime carries
a maximum sentence of twenty-five years imprisonment. Clearly, because Isom was found
guilty of burglary of a dwelling house, he could be sentenced to twenty-five years
imprisonment for this crime within the guidelines set forth in the applicable statute. We find
there was no abuse of discretion by the trial judge in sentencing Isom. The twenty-five year
20
sentence, with five years suspended and twenty years to serve, was within the limits set forth
by the statute. The trial judge redacted and did not consider a portion of the investigation
report at Isom’s request. There was testimony that Isom had a gun on the night of the
burglary. Further, consideration by the trial judge that Isom did not accept responsibility for
his actions was proper. See Jackson v. State, 551 So. 2d at 149. We find the issue is without
merit.
CONCLUSION
¶53. We find that the conviction and sentence of the Circuit Court of Lafayette County,
Mississippi is affirmed.
¶54. CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF
TWENTY-FIVE (25) YEARS, WITH TWENTY (20) YEARS TO SERVE, FIVE (5)
YEARS SUSPENDED AND FIVE (5) YEARS ON POST RELEASE SUPERVISION,
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AND PAYMENT OF ALL COSTS, AFFIRMED.
SMITH, C.J., WALLER, P.J., CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.
COBB, P.J. AND DIAZ, J., NOT PARTICIPATING.
21