Craytonia Latroy Badger v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-01141-COA
CRAYTONIA LATROY BADGER A/K/A APPELLANT
CRAYTONIA BADGER A/K/A CRAYTONIA L.
BADGER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/26/2017
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/28/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶1. Craytonia Badger appeals his conviction for burglary of a building and sentence of
seven years in the custody of the Mississippi Department of Corrections (MDOC). On
appeal, Badger claims that his conviction is unlawful because his constitutional rights were
violated when the trial judge denied him the opportunity to recall a witness to testify. While
the transcript shows that Badger and his counsel were given an opportunity to question the
witness during the State’s case-in-chief, Badger claims that because the trial court denied him
the ability to properly rebut the witness’s testimony later in the trial, the State subjected him
to “trial by ambush.” Finding no error, we affirm the trial court’s judgment.
FACTS
¶2. In the early hours of October 22, 2014, the Gloster Police Department received a call
about a burglary at Gloster Drug Store (also known as Dixon’s Discount Pharmacy). After
officers assessed the scene, they received a call from the police department in Ferriday,
Louisiana, informing them that Lieutenant Lee Williams of the Ferriday Police Department
stopped Badger’s vehicle that same evening going northbound on Highway 425. During the
traffic stop, Lieutenant Williams conducted a search of Badger’s vehicle where he discovered
prescription drug bottles from Gloster Drug Store in Badger’s possession.
¶3. At trial, Lieutenant Williams testified that he conducted a traffic stop after observing
that Badger’s vehicle did not have a license plate. Lieutenant Williams stated that although
he did eventually notice a temporary license plate in the rear window, Badger could not
produce a driver’s license when requested. Badger did, however, produce a Mississippi
identification card. Lieutenant Williams performed a warrant check and discovered two
outstanding warrants for Badger’s arrest. Lieutenant Williams then arrested Badger for
driving without a license and having at least one outstanding warrant for his arrest.
¶4. Lieutenant Williams advised Badger of his Miranda1 rights and asked to search the
vehicle, and Lieutenant Williams testified that Badger consented to the search. The search
produced evidence connecting Badger to the break-in at Gloster Drug Store, including a maul
hammer (that Gloster police believed to be used in the burglary), blood-stained shoes and
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Miranda v. Arizona, 384 U.S. 436 (1966).
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clothing, and bottles of prescription drugs. Lieutenant Williams testified that his discovery
of the prescription drug bottles led him to contact the Amite County Sheriff’s Department
about having Badger in his custody.
¶5. Joseph Heflin, a forensic DNA analyst with the Mississippi Forensic Laboratory,
testified at trial that he performed tests on the blood and DNA samples recovered from
Gloster Drug Store and Badger’s car. Heflin testified that Badger’s blood matched the blood
on the hammer found in his car and the blood from the pharmacy within a reasonable degree
of scientific certainty.
¶6. On April 13, 2015, a grand jury indicted Badger for the crime of burglary of a
storehouse. The matter went to trial July 25, 2017, and the jury returned a guilty verdict. On
July 26, 2017, the trial court sentenced Badger as a habitual offender2 to serve seven years
in the custody of the MDOC. Because of his habitual-offender status, he is ineligible for
parole or probation. After the trial court denied his posttrial motions, Badger filed his notice
of appeal on August 15, 2017.
STANDARD OF REVIEW
¶7. The Mississippi Constitution ensures that those accused in a criminal proceeding have
the right to confront witnesses against them. Miss. Const. art. 3, § 26. While criminally
accused individuals have that right, the law clearly recognizes a trial court’s authority “to
exercise reasonable control over the mode and order of interrogating witnesses and
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The trial court held a separate hearing to determine Badger’s habitual-offender
status, and found that Badger constituted a habitual offender pursuant to Mississippi Code
Annotated section 99-19-81 (Rev. 2015).
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presenting evidence so as to make the interrogation and presentation effective for the
ascertainment of the truth.” Robinson v. State, 40 So. 3d 570, 577 (¶27) (Miss. Ct. App.
2009); see also M.R.E. 611(a). We recognize that “[i]t is within the sound discretion of the
trial court to permit a witness to be recalled to the stand once the witness has completed his
testimony.” Clark v. State, 233 So. 3d 832, 847 (¶26) (Miss. Ct. App. 2017).
DISCUSSION
¶8. On appeal, Badger’s sole assignment of error is that the trial court violated his right
to examine a witness necessary for his defense. Badger contends that during the trial,
Lieutenant Williams’s testimony produced new evidence about a potential video recording
of the traffic stop. Our review of the record indicates that the defense, not the State, elicited
the information from Lieutenant Williams during cross examination. Badger’s argument
hinges on the following testimony from Lieutenant Williams:
Q: Do y’all have body cameras over there?
A: Yes, sir, we do.
Q: Was it on?
A: I can’t remember, sir. To be honest with you, I can’t remember.
I’m sure it was.
Q: Do you have a video of that?
A: Sir, it’s been so long ago that I just can’t remember. Honestly,
I can’t remember.
¶9. After concluding cross examination, defense counsel tendered the witness and alerted
the trial court to the possibility of calling Lieutenant Williams at a later point in the trial. The
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trial court responded as follows:
THE COURT: This is your cross-examination. Why would you need to
question him later?
[Defense attorney]: Well, we may find evidence that would support –
THE COURT: I’ll take that up later. It’s possible you can call him as a
witness. We’ll see.
¶10. After the State rested, defense counsel moved for a directed verdict, which the trial
court denied. Defense counsel then requested that the trial court recall Lieutenant Williams
to the courtroom to testify, claiming that inconsistencies existed between his testimony and
that of officers from the Amite County Sheriff’s Department and Mississippi Bureau of
Narcotics. The State informed the trial court that it would be very difficult to recall
Lieutenant Williams, explaining that he was on disability leave and lived a great distance
away. The trial court agreed that he “remember[ed] something about the possibility of
recalling him,” but found that no basis existed to do so because Lieutenant Williams “was
up here available and fully questioned yesterday.” Badger responded, “There’s basis because
[Lieutenant Williams] . . . testified about the body camera” and also that he took pictures of
evidence he found in the trunk of Badger’s vehicle, but none of the evidence actually
appeared in the photographs. The trial court ruled as follows:
[T]hese are all matters that could have been inquired of the witness when he
was here present yesterday. He’s an out of state witness on disability, and the
State advises that he’s not available today. You will be allowed to call the
other two witnesses. These are matters that could have been inquired of him
yesterday.
¶11. Our review of the record indicates that neither Badger nor his counsel requested that
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the trial court retain Lieutenant Williams for later questioning or to instruct Lieutenant
Williams that he remained under subpoena and should not leave in case defense counsel
recalled him. The record shows that the State subpoenaed Lieutenant Williams to testify as
a witness at trial. Defense counsel failed to subpoena Lieutenant Williams before trial and
also failed to request a subpoena instanter for him after his trial testimony. Furthermore,
neither defense counsel nor Badger requested a continuance to investigate the “new
evidence” heard during Lieutenant Williams’s cross examination. Nonetheless, Badger relies
heavily on the principle of “trial by ambush” to support his appeal. Badger argues that
Lieutenant Williams’s disability status did not impede his ability to testify the day before and
that the trial court never dismissed him.
¶12. The Mississippi Supreme Court has discussed cases where counsel is unable to fully
prepare a defense because the prosecution fails to disclose certain facts or witnesses. Badger
cites two specific cases, Harris v. General Host Corp., 503 So. 2d 795, 796-97 (Miss. 1986)
and Fulks v State, 18 So. 3d 803, 805-07 (¶¶3-14) (Miss. 2009), to bolster his argument.
Badger’s brief cherry picks the applicable law of this State and compares his trial to scenarios
where defendants are not given a fair trial because of surprise evidence. Our review of the
law, however, identifies that Badger’s claims are not as deeply rooted in the law as he
contends.
¶13. In Harris, an expert witness who was not originally identified in discovery testified
at trial, to the surprise of the defense. Harris, 503 So. 2d at 796. The supreme court found
that this put the defense at a disadvantage because it could not properly prepare to rebut the
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testimony of an expert witness that the defense had no knowledge of before the morning of
trial. Id. at 798.
¶14. Additionally, Badger believes the trial court subjected his counsel to conditions
similar to the facts in Fulks. Although Fulks did articulate the supreme court’s distaste for
unsavory prosecutorial tactics, like revealing inculpatory evidence on the eve of trial, it does
not fit the facts before us. Fulks, 18 So. 3d at 805 (¶9). Unlike the case before us, the
defense counsel in Fulks moved for a continuance upon the State’s revelation of new
evidence, and the trial court improperly denied the motion. Id. at 807 (¶14).
¶15. It is clear from our review of the law that Badger wrongly parallels his treatment at
trial to Harris and Fulks. The record reveals that, unlike Harris, defense counsel knew that
Lieutenant Williams arrested Badger and that the State subpoenaed Lieutenant Williams to
testify at court. Defense counsel failed to request that the trial court retain Lieutenant
Williams or instruct him that he remained under subpoena and should not leave in case
defense counsel recalled him. The supreme court has addressed the duty of counsel to ensure
witnesses are under subpoena many times before. Specifically, counsel has a duty to show
that he or she is “either under process or a reasonable effort has been made to serve him or
her with a subpoena.” Triplett v. State, 666 So. 2d 1356, 1359 (Miss. 1995) (quoting Eslick
v. State, 238 Miss. 666, 673, 119 So. 2d 355, 359 (Miss. 1960)). To blatantly refuse to seek
all avenues to ensure a witness will appear to testify at trial is a failure by the defense. Id.Furthermore, our stringent review of the record points to defense counsel considering the
possibility of the existence of the video in trial preparation by way of cross examination
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questions.
¶16. After our review of the record, we find no merit to Badger’s argument that he was
subjected to trial by ambush or that the trial court erred by refusing to allow Badger to recall
Lieutenant Williams after the State’s case-in-chief. We therefore affirm the trial court’s
judgment.
¶17. AFFIRMED.
LEE, C.J., IRVING, P.J., BARNES, FAIR, WILSON AND GREENLEE, JJ.,
CONCUR. TINDELL, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN
OPINION. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITH
SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND TINDELL, J.
WESTBROOKS, J., CONCURRING IN PART AND IN RESULT:
¶18. I agree with the majority’s decision to affirm Badger’s burglary conviction. I write
separately because I find that the trial court abused its discretion in denying Badger the
opportunity to recall a witness to testify. Nonetheless, the overwhelming weight of the
evidence supports the jury’s verdict, and therefore the trial court’s error was harmless and
does not require reversal of the conviction.
¶19. During trial, after cross-examinations, Badger’s defense counsel requested an
opportunity to recall Lieutenant Williams at a later point in the trial. The trial court
responded, “I’ll take that up later. It’s possible you can call him as a witness. We’ll see.” The
request to question Lieutenant Williams came after the defense learned of possible body-
camera footage and photographs of Badger’s trunk from the time of his arrest. The trial court
ruled that:
[T]hese are all matters that could have been inquired of the witness when he
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was here present yesterday. He’s an out of state witness on disability, and the
state advises that he’s not available today. You will be allowed to call the other
two witnesses. These are matters that could have been inquired of him
yesterday.
¶20. The Mississippi Court of Appeals has held that a trial judge has not abused his
discretion in denying a defendant’s request to recall a witness when the defendant has offered
no evidence that questioning the witness again would provide any additional, helpful
information to the jury. See Clark v. State, 233 So. 3d 832, 848 (¶27) (Miss. Ct. App. 2017).
Here, Badger’s defense counsel purported he was not aware of the body-camera footage or
photographs from the arrest before trial. Questioning Lieutenant Williams again may have
provided clarity on the facts in dispute including whether Badger gave the Lieutenant
permission to search his vehicle.
¶21. Although the trial court’s exercise of discretion to deny permission to recall
Lieutenant Williams was unreasonable, I find the error to be harmless in this case. The
Mississippi Supreme Court has held that:
Constitutional error does not automatically require reversal of a conviction.
However, before a constitutional error is determined to be harmless, the court
must be able to declare a belief that it was harmless beyond a reasonable
doubt. An error may be found by this Court to be harmless beyond a
reasonable doubt only where the weight of the evidence against the accused is
overwhelming. A harmless-error determination requires an examination of the
facts, the trial context of the error, and the prejudice created thereby as
juxtaposed against the strength of the evidence of defendant's guilt.
Walton v. State, 998 So. 2d 971, 976 (¶14) (Miss. 2008) (citations and internal quotation
marks omitted). Badger did not make an effort to subpoena Lieutenant Williams and ensure
his presence during his case-in-chief. He failed to request a continuance regarding any new
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evidence. Lastly, the evidence showed that the DNA of Badger’s blood matched the blood
found at the crime scene and that the video footage of clothing matched the clothing found
in his car. He was caught with a hammer with glass and concrete on it along with
prescription drugs taken from the drugstore. The jury’s verdict was not contrary to the
overwhelming weight of the evidence, and therefore the trial court’s error was harmless.
GRIFFIS, P.J., AND TINDELL, J., JOIN THIS OPINION.
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