Timothy L. Nunn v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-KA-00198-SCT
TIMOTHY L. NUNN a/k/a TIMOTHY LOUIS
NUNN a/k/a TIMOTHY ANDRE NUNN a/k/a
TIMOTHY JOHNSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 01/20/2017
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
TRIAL COURT ATTORNEYS: LISA COLLUMS
CHRISTOPHER ALAN GREEN
PATRICIA SIMPSON
CHRISTOPHER CARTER
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: JUSTIN T. COOK
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA AINSWORTH
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 02/14/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. A Harrison County jury found Timothy Nunn guilty of unlawful possession of a
firearm by a convicted felon. The trial court sentenced Nunn as a habitual offender under
Mississippi Code Section 99-19-81 (Supp. 2018) to ten years without the possibility of parole
or early release. Nunn filed a notice of appeal following the trial court’s denial of his motion
for a new trial. Finding no arguable issue to raise on appeal, Nunn’s appellate attorney filed
a brief in accordance with Lindsey v. State, 939 So. 2d 743 (Miss. 2005). Discerning no
reversible error or issue warranting supplemental briefing, we affirm Nunn’s conviction and
sentence.
FACTUAL AND PROCEDURAL BACKGROUND
¶2. On January 27, 2015, Detectives Joey Wuest and Larry McCook of the Gulfport
Police Department observed Nunn driving without a seatbelt. The detectives initiated a
traffic stop, but Nunn continued to drive for several blocks. Detective Wuest observed Nunn
reaching toward the passenger area and backseat of the vehicle. After Nunn had stopped his
vehicle, Detective Wuest approached the passenger side of the vehicle, while Detective
McCook approached the driver’s side of the vehicle.
¶3. Detective Wuest saw a firearm on the rear center of the floorboard. Officer Wuest
notified Detective McCook about the firearm. Meanwhile, Nunn exited the vehicle and
approached Detective McCook. Nunn was handcuffed immediately. In addition to Nunn,
a male passenger was seated in the front passenger seat, and a female occupant was seated
in the back seat. The two passengers were ordered to exit the vehicle, and the loaded firearm
was recovered from the vehicle.
¶4. Nunn was arrested and interviewed at the Gulfport Police Department by Detectives
Clayton Fulks and McCook. Nunn told the detectives that he knew the firearm was in the
vehicle before he had been stopped by Detectives Wuest and McCook. Nunn admitted that
he possessed the firearm. Nunn told the detectives that he handed the firearm to the
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passenger in the back seat. An audio recording of the interview was admitted into evidence
and played for the jury.
¶5. Detective Fulks testified that Nunn had admitted that he knew the firearm was in the
vehicle before being stopped. Detective Fulks also testified that Nunn acknowledged that
he had handed the gun to a passenger in the vehicle.
¶6. Detective Wuest identified Nunn as the driver of the vehicle he had stopped on
January 27, 2015. Detective Wuest also identified the firearm and rounds recovered from
the rear floorboard of the vehicle. The firearm was tested at the Mississippi Forensics
Laboratory, and it was determined that it was fully functional. The parties stipulated that
Nunn was a convicted felon.
¶7. Nunn testified in his defense. Nunn testified that he had lied to law enforcement
during his interview. Nunn also testified that he did not know the firearm was in the vehicle
and that the firearm did not belong to him.
¶8. The jury found Nunn guilty of unlawful possession of a firearm by a convicted felon.
The trial court sentenced Nunn as a habitual offender under Section 99-19-81 to ten years.
¶9. Nunn’s appellate counsel filed a brief consistent with Lindsey, asserting that no
arguable issues could be appealed. Nunn’s appellate counsel served a copy of the brief on
Nunn and requested that Nunn be allowed to file a pro se appellate brief. The Court granted
appellate counsel’s request and afforded Nunn the opportunity to file a pro se brief. Nunn
failed to file a pro se brief.
ANALYSIS
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¶10. Nunn’s appellate counsel has complied with the Court’s procedure set forth in
Lindsey. Under Lindsey, the Court also has a duty to conduct an independent review of the
record to determine whether any arguable issue is apparent, and, if so, to require
supplemental briefing. Bowlin v. State, 154 So. 3d 883, 886 (¶ 9) (Miss. 2015).
¶11. In the case sub judice, the State proved the requisite elements of unlawful possession
of a firearm as defined in Mississippi Code Section 97-37-5 (Rev. 2014). The State also
proved that Nunn is a habitual offender under Section 99-19-81. After reviewing the record
and transcript, we discern no reversible error and find no viable issues to be argued on
Nunn’s behalf on appeal. Accordingly, we affirm Nunn’s conviction and sentence.
¶12. AFFIRMED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR. GRIFFIS, J., NOT PARTICIPATING.
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