Wade Hampton Blackwell, Jr. v. State of Mississippi , 273 So. 3d 801 ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00865-COA
WADE HAMPTON BLACKWELL JR. A/K/A APPELLANT
WADE H. BLACKWELL JR. A/K/A WADE
HAMPTON BLACKWELL
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/30/2017
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
BARNES, C.J., FOR THE COURT:
¶1. A jury sitting before the Harrison County Circuit Court found Wade Hampton
Blackwell Jr. guilty of two counts of touching a child for lustful purposes. Blackwell
appeals and argues that (1) the prosecution should not have been allowed to amend the range
of dates listed in the indictment; (2) a prosecution witness should have been precluded from
testifying that Blackwell had molested him approximately twenty years earlier; (3) the
prosecution made improper comments during its closing argument; (4) the circuit court
should have granted his motion for a continuance after the victim gave unanticipated
testimony; and (5) his convictions should be reversed based on cumulative error. Finding
no error, we affirm the circuit court’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2. On January 19, 2015, twelve-year-old John1 revealed to his mother that Blackwell2
had been inappropriately touching him. John’s parents took him to see therapist Jamie
Varnado. After talking to John, Varnado told his parents that they should file a report with
the Harrison County Sheriff’s Department.3 The next morning, John’s mother met with
Investigator Alicia Stevison, who arranged a forensic interview.
¶3. On January 29, 2015, Tiffany Lizana conducted John’s forensic interview. John
reported that Blackwell had reached into John’s pants and rubbed his penis and buttocks.
John also said that Blackwell’s inappropriate touching began during “the summer before
last.” John would have been ten years old at that time. Later that day, John’s mother signed
three affidavits that Investigator Stevison prepared and notarized. One affidavit stated that
Blackwell had molested a ten-year-old sometime around May 30, 2013. Another stated that
he molested an eleven-year-old between May 2013 and May 2014. The third one stated he
molested an eleven-year-old between May 2014 and January 2015. Those affidavits resulted
1
We substitute a pseudonym for the victim’s name.
2
Blackwell is John’s paternal grandfather. John often spent the night at Blackwell’s
house.
3
Because Varnado is a mandated reporter, she also made “a report to DHS and . . .
contacted law enforcement.” See Miss. Code Ann. § 43-21-353(1) (Rev. 2015).
2
in a warrant for Blackwell’s arrest.
¶4. Blackwell was later indicted and charged with two counts of touching a child for
lustful purposes. See Miss. Code Ann. § 97-5-23(1) (Rev. 2014). Collectively, the
indictment alleged that Blackwell lustfully touched John’s penis and buttocks between
January 1, 2014, and January 19, 2015. Blackwell pled not guilty and opted to go to trial.
¶5. On the day before Blackwell’s trial began, the prosecution filed a motion to amend
the indictment. More specifically, the prosecution sought to increase the range of dates
alleged in the indictment so it covered inappropriate touching that occurred between January
1, 2013, and January 19, 2015. Blackwell filed a written response in opposition to the
State’s motion and requested a continuance. Blackwell also filed a motion in limine to
preclude evidence of a number of things, including the anticipated testimony of a witness
whom Blackwell had molested approximately twenty years earlier.
¶6. The parties convened on February 14, 2017, and the circuit court heard several
pretrial motions. For purposes of this opinion, the significant events were the circuit court’s
decisions to grant the prosecution’s motion to amend the indictment and to deny Blackwell’s
motion to prevent the prosecution from introducing evidence that Blackwell previously
molested someone else. The remainder of the day was devoted to jury selection.
¶7. The next day, the prosecution called John as its first witness. According to John,
Blackwell put his hands down John’s pants and rubbed his “front and back privates.” John
explained that Blackwell had rubbed his buttocks “[s]everal” times, and Blackwell rubbed
his penis the last time that Blackwell touched him inappropriately. Although John could not
3
remember specific dates that Blackwell’s inappropriate touching occurred, he did not deviate
from his representation that Blackwell’s inappropriate touching began during the summer
of 2013. The video of the forensic interview was played during John’s cross-examination
testimony; so the jury heard John’s January 2015 statement that the inappropriate touching
began during “the summer before last.”
¶8. After John testified, the prosecution called his mother and father, Varnado, Emmett
Close, Investigator Stevison, and Lizana. All of the witnesses except Close testified
regarding their roles in reporting or relaying John’s allegations. Over Blackwell’s objection,
Close testified that Blackwell had molested him approximately twenty years earlier.
¶9. Blackwell chose not to testify, and he rested without calling any witnesses. Based on
defense counsel’s opening statement, cross-examinations, and closing arguments,
Blackwell’s defense theory was that John’s allegations were not credible. More specifically,
defense counsel suggested that John made up his allegations to get attention or he imagined
them because he had been diagnosed with Tourette syndrome which, according to defense
counsel, caused him to experience visual and auditory hallucinations.4
¶10. The jury found Blackwell guilty of both counts. The circuit court sentenced
Blackwell to fifteen years for the first offense and a consecutive ten-year sentence for the
second. Blackwell appeals.
4
Notwithstanding defense counsel’s suggestion, there was no evidence that
Tourette’s causes any form of sensory hallucination. John testified: “There’s two different
types of Tourette’s. There’s physical and verbal. I have the physical kind. . . . You twitch
your body uncontrollably.” John’s mother also testified that John had “head tics and hand
tics.” John denied that he had ever seen or heard anything that did not actually exist.
4
ANALYSIS
I. AMENDED INDICTMENT
¶11. Blackwell claims the circuit court erred when it allowed the prosecution to amend the
dates alleged in the indictment shortly before trial. “Trial courts may amend indictments
only to correct defects of form.” Leonard v. State, 972 So. 2d 24, 28 (¶12) (Miss. Ct. App.
2008) (citing Spears v. State, 942 So. 2d 772, 774 (¶6) (Miss. 2006)). Substantial defects
“must be corrected by the grand jury.” Id. “A change in the indictment is permissible if it
does not materially alter facts [that] are the essence of the offense on the face of the
indictment as it originally stood or materially alter a defense to the indictment as it originally
stood so as to prejudice the defendant’s case.” Id.
¶12. At the time of the offenses and Blackwell’s trial, the Uniform Rules of Circuit and
County Court still applied to criminal proceedings.5 Rule 7.06(5) required that an
“indictment . . . include . . . [t]he date, and if applicable, the time at which the offense was
alleged to have been committed.” But “a specific date in a child sexual abuse case is not
required so long as the defendant is fully and fairly advised of the charge against him.”
Jenkins v. State, 131 So. 3d 544, 549 (¶14) (Miss. 2013) (internal quotation marks omitted).
¶13. Blackwell reiterates his position that the amendment prejudiced his defense that he
never touched John inappropriately, especially not during the dates alleged in the indictment.
Blackwell’s attorney conceded that he was given a copy of John’s forensic interview during
discovery, and John had said that Blackwell began inappropriately touching John during
5
Blackwell was tried during February 2017, and the Mississippi Rules of Criminal
Procedure became effective on July 1, 2017.
5
“the summer before last,” meaning the summer of 2013. Even so, defense counsel argued
that because the beginning date in the indictment was January 1, 2014, he essentially had an
affirmative defense before the amendment, and he lost that defense after the amendment.
¶14. Blackwell’s position overlooks the fact that although John could not remember
exactly when Blackwell touched him inappropriately, he said that it began during the
summer of 2013 and continued afterward. The jury could have reasonably found Blackwell
guilty for touching that occurred during the dates originally listed in the indictment. Plus,
Blackwell’s defense that he never touched John was equally available before and after the
amendment. See Leonard, 972 So. 2d at 28 (¶13). Further, Blackwell was not unfairly
surprised by the amendment. The prosecution gave defense counsel a copy of John’s
forensic interview more than a year before Blackwell’s trial; so defense counsel had ample
notice of John’s statement that Blackwell began touching him during “the summer before
last,” meaning the summer of 2013.
¶15. On a different note, Blackwell also argues that the amendment was improper because
the grand jury had refused to charge Blackwell with inappropriately touching John before
January 1, 2014. Blackwell’s argument is based on the affidavits that John’s mother signed
on January 29, 2015. Blackwell assumes that the prosecution presented the affidavits to the
grand jury and that the grand jury returned the two counts in the indictment based on the
affidavits.
¶16. Defense counsel did not make this argument during the pretrial hearing on the
prosecution’s motion to amend the indictment. In fact, defense counsel did not make a
6
similar argument to the circuit court until the next morning. Assuming for the sake of
discussion that defense counsel’s day-late argument was sufficient to preserve this claim, we
would still find it meritless. There is no indication that Blackwell was given any information
about what occurred during the grand jury proceedings. Aside from defense counsel’s
speculation and conjecture, nothing suggests that the prosecution presented the affidavits
to the grand jury. Grand jury proceedings are generally secret. Miss. Code Ann. § 13-5-61(Rev. 2012); URCCC 7.04. We do not know what the prosecution presented to the grand
jury, and neither does Blackwell’s attorney. Because the record simply does not support
defense counsel’s claim that the grand jury “refused” to charge Blackwell with conduct that
occurred before January 1, 2014, we would find that this issue must fail even if it had been
properly preserved.
II. PRIOR BAD ACTS
¶17. Next, Blackwell claims that the circuit court erred when it allowed Close to testify
that Blackwell had touched him inappropriately approximately twenty years earlier.
According to Blackwell, Close’s testimony should have been precluded because he and John
did not describe similar allegations, and Close’s testimony was impermissible under Rules
404(b) and 403 of the Mississippi Rules of Evidence. Finally, Blackwell argues that the
circuit judge did not adequately articulate his reasoning that Close’s testimony was
admissible. “We review the circuit court’s admission or exclusion of evidence for abuse of
discretion.” Shoemaker v. State, 256 So. 3d 604, 613 (¶35) (Miss. Ct. App. 2018).
¶18. The prosecution proffered Close’s testimony during the pretrial hearing on
7
Blackwell’s motion in limine. Close said that he “grew up poor”; so he started working on
Blackwell’s shrimp boat during a summer break when he was around twelve years old.6 One
night when Close was sleeping in his bunk, he woke up when Blackwell began rubbing his
(Close’s) thigh and masturbating. Close later moved into Blackwell’s house. Close said that
Blackwell continued to touch him inappropriately. More specifically, Close said that
Blackwell touched his penis and his buttocks. Close never told anyone because he was
embarrassed.
¶19. Before Close’s proffer, the prosecution said that his testimony would show
Blackwell’s “sexual abuse was not an accident or a mistake. It also shows [Blackwell’s]
opportunity and his intent and plans.” The prosecution later added:
This shows that this defendant preys on younger boys living in his home who
he has contact with and access to. It also shows his intent and plan in this case
with [John]. It shows his motive, his MO, so to speak, which 404(b) allows,
is this desire to partake in pedophile sexual activities with young or
developing male children.
It also shows his means to accomplish that on occasions took place in the
home or away from the home on a boat where he had alone time with these
children that were living in his house. And that the defendant is taking
advantage of this . . . relationship where the defendant is the one who should
be leading these children and grooming them into adults in society and [he]
takes advantage of that, takes advantage of his position.
¶20. After the proffer, defense counsel argued that Close’s anticipated testimony was
unnecessary because John was capable of describing his allegations. Counsel also argued
6
Close was thirty-five years old when he testified. He did not know exactly how old
he had been when Blackwell began touching him inappropriately. Once during his proffer,
he said he had been between twelve and fourteen. He later said he had been twelve or
thirteen. When he testified before the jury, he said he may have been eleven or twelve.
8
that Close and John did not describe similar abuse, and the probative value of Close’s
testimony did not outweigh its prejudicial effect. The circuit court held:
All right. 404(b), dealing with character evidence, evidence of a crime,
wrongdoing[,] or other act is not admissible to prove a person’s character in
order to prove that on a particular occasion that person acted in accordance
with their character. However, two, permitted uses, this evidence may be
admissible for other purposes such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
It does not have to be the exact type of activity in every regard, but it must
pass through the filter of [Rule] 403 because [it] says relevant evidence may
be excluded if it is more prejudicial than probative. Court’s finding that it is
more probative than prejudicial. . . . It will be allowed in. You have your
objection.
Close’s subsequent testimony before the jury was consistent with his proffer, and he added
some additional details that have no bearing on this issue.
¶21. Rule 404(b) prohibits the use of prior-bad-acts evidence to prove a person’s
character to show that he acted in conformity therewith. However, Rule
404(b) permits the use of such evidence to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.
Before admitting prior-bad-acts evidence, a trial judge should filter the
evidence through Mississippi Rule of Evidence 403 and determine whether
the evidence’s probative value outweighs its prejudicial effect to the
defendant. Where the evidence’s probative value outweighs its prejudice, the
trial judge may admit the evidence. In the context of child-sexual-abuse cases,
even evidence of remote past sexual-abuse allegations may be admitted for a
proper purpose under Rule 404(b), especially when coupled with an
appropriate limiting instruction to the jury.
Shoemaker, 256 So. 3d at 613-14 (¶36) (citations omitted).
¶22. In arguing that the circuit court erred when it allowed the prosecution to present
Close’s testimony, Blackwell relies heavily on what the Mississippi Supreme Court has
9
recently described as this Court’s “sharply divided”7 decision in White v. State, 228 So. 3d
893 (Miss. Ct. App. 2017). The lead opinion reversed Curtis White’s convictions for
gratification of lust and statutory rape and remanded the case for a new trial because a circuit
court “committed a plethora of reversible errors” and the “circuit court repeatedly abused
its discretion and violated White’s constitutional rights [to] due process and a fair trial by
an impartial jury . . . .” Id. at 896-97 (¶1). Among the “plethora” of errors was the circuit
court’s decision that a witness could testify, over the defendant’s objection, that nine years
earlier she had an “affair with [the defendant that was] based on . . . ‘mutual flirtation’ . . . .”
Id. at 901 (¶20). The defendant had been twenty-four years old at the time of the “affair,”
and the witness had been “between fifteen and seventeen.”8 Id.
¶23. The lead opinion held that the defendant’s “affair [was] . . . not probative of his plan,
motive, intent, or opportunity in regard to [the thirteen year-old victim]” and “[t]he two
scenarios [we]re hardly factually similar . . . .” Id. at 902 (¶20). Consequently, the lead
opinion held that “the circuit court abused its discretion in admitting . . . highly prejudicial
and minimally probative [evidence of a] nine-year-old statutory[ ]rape . . . .” Id. at (¶22).
The lead opinion also held that the circuit court did not adequately explain its decision when
it merely agreed with the prosecution that the witness’s testimony was admissible under
7
McGrath v. State, No. 2017-KA-01184-SCT, 2019 WL 1722890, at *8 (¶17) (Miss.
Apr. 18, 2019). In White, one judge joined the author of the lead opinion, three judges
concurred in part and in the result, and four judges dissented. One judge did not participate.
8
As noted in White, “[i]t was unclear how old White was when the affair began, but
the record show[ed] that it lasted for approximately two years, ending when [the witness]
was seventeen years old.” Id. at n.4.
10
every contemplated basis in Rule 404(b) and said that the probative value of the evidence
outweighed its prejudicial effect.” Id. at (¶21-22).
¶24. Notwithstanding the outcome in White, it is well settled that “evidence of a sexual
offense, other than the one charged, [that] involves a [different] victim” is not per se error
“if properly admitted under Rule 404(b), filtered through Rule 403, and accompanied by an
appropriately[ ]drafted limiting or cautionary instruction to the jury.” Derouen v. State, 994
So. 2d 748, 756 (¶20) (Miss. 2008). “The purposes listed in Rule 404(b) are not exhaustive;
they simply are examples of noncharacter purposes for which evidence of other crimes,
wrongs, or acts may be admitted.” Boggs v. State, 188 So. 3d 515, 519 (¶11) (Miss. 2016)
(quoting Green v. State, 89 So. 3d 543, 549 n.12 (Miss. 2012)). Prior abuse of a different
victim may be admissible under Rule 404(b) if it demonstrates that the “‘defendant’s means
of accomplishing pedophilic sexual activities on past occasions bears substantial
resemblance to each other and with the present offense,’ which served as proof of motive
and a common plan or scheme.” Id. at (¶13) (quoting Gore v. State, 37 So. 3d 1178, 1186
(¶18) (Miss. 2010)). And “‘overwhelming similarities’ between prior instances of sexual
misconduct and the charged offense ‘undeniably bring the testimony of these other victims
within the purview of admissibility under Rule 404(b).’” Id. at (¶14) (quoting Green, 89 So.
3d at 550 (¶17)). The Mississippi Supreme Court has also held that a defendant’s prior
sexual abuse of a different victim may be “admissible to prove . . . motive” in the form of
a “seemingly uncontrollable desire to partake in pedophilic sexual activities with young and
11
developing [similarly gendered] juveniles . . . .” Id. at 521 (¶18).9
¶25. This case is not like the unique circumstances in White. As mentioned above,
Blackwell’s defense theory was to cast doubt on John’s credibility. Counsel for Blackwell
consistently suggested that John imagined that Blackwell had touched him inappropriately
or that John made up the allegations to get his mother’s attention. Close’s testimony tended
to prove that John was not mistaken about his allegations, and Blackwell had a common plan
to take advantage of his proximity to a young developing boy and gratify his lust by
touching the victim’s penis and buttocks. The prosecution was also obligated to prove that
Blackwell inappropriately touched John with lustful intent. See Miss. Code Ann. § 97-5-
23(1). It was within the circuit court’s discretion to find that Close’s testimony was
admissible for those purposes, and that its probative value outweighed its prejudicial effect.10
We further note that the circuit court gave an appropriate limiting instruction. Finally, we
find that the circuit court’s omission of an express, on-the-record analysis regarding
admissibility under Rules 404(b) and 403 is harmless under the circumstances. See Alford
9
This ruling has drawn criticism that such a purpose is too close to propensity
evidence. Id. at 525 (¶¶28-31) (Dickinson, J., dissenting).
10
It was within the circuit court’s discretion to find that Close’s testimony was
admissible despite the fact that he described abuse that had occurred around twenty years
earlier. In Gore, 37 So. 3d at 1186-87 (¶19), our supreme court approvingly discussed a
number of decisions from other states that all stand for the general principle that evidence
of prior abuse of a different victim was not inadmissible simply because it was relatively old.
And in Young, 106 So. 3d at 814 (¶1), this Court upheld a decision that a prior victim could
testify about abuse that had happened approximately twenty years earlier. Similarly, in
Harris v. State, 165 So. 3d 473, 475-77 (¶¶6-10) (Miss. Ct. App. 2015), this Court upheld
a decision that two prior victims could describe abuse that had happened approximately
thirty years earlier.
12
v. State, 238 So. 3d 11, 14 (¶9) (Miss. Ct. App. 2018) (quoting Archer v. State, 118 So. 3d
612, 625-26 (¶57) (Miss. Ct. App. 2012)).
III. COMMENTS DURING CLOSING ARGUMENT
¶26. Blackwell claims the prosecution made improper and reversible comments during its
closing argument. First, Blackwell says the prosecution should not have said that there was
no evidence that John was angry at Blackwell because Blackwell would not let John have
frozen yogurt.11 Second, Blackwell says the prosecution should not have referred to him as
a child molester. But there was no contemporaneous objection to either comment. “As an
appellate court, we have no original jurisdiction to review this issue.” Gray v. State, 202 So.
3d 243, 261 (¶70) (Miss. Ct. App. 2015). Blackwell is procedurally barred from raising
these claims for the first time on appeal. See id. at 261-62 (¶70). And we do not find that
the comments at issue were “so inflammatory that the trial judge should have objected on
his own motion.” O’Connor v. State, 120 So. 3d 390, 399 (¶26) (Miss. 2013).
¶27. Procedural bar notwithstanding, Blackwell’s claims are meritless. He first argues that
it was improper for the prosecution to say that there was no evidence that John was angry
because Blackwell would not let him have frozen yogurt for dessert—the suggestion seems
to be that John retaliated against Blackwell by making up his allegations. Defense counsel
argues that there could have been such evidence if the prosecution had called the witness
11
During his opening statement, defense counsel said that the jury would hear
evidence that John said Blackwell had touched him inappropriately after Blackwell did not
let John have frozen yogurt for dessert. Defense counsel expected a prosecution witness to
present that testimony, but the prosecution ultimately chose not to call that witness and
defense counsel did not attempt to call him.
13
who was expected to present it and the witness testified consistent with defense counsel’s
expectation. But the prosecution’s comment was factually accurate; the jury did not hear any
evidence that John was angry because he was denied frozen yogurt. The comment at issue
was also in response to defense counsel’s fruitless cross-examination of the prosecution’s
witnesses. In short, it was not improper for the prosecution to point out that the jury had not
heard any evidence to support defense counsel’s implication.
¶28. As for Blackwell’s complaint about the prosecution’s “child molester” comment, he
again relies heavily on White. That case held that reversible error also resulted from “the
cumulative effect of the otherwise harmless” improper comments that the prosecution made
“[t]hroughout [the] trial.” White, 228 So. 3d at 905 (¶30). Despite the lack of an objection
to “a litany of prejudicial comments” during the prosecution’s closing argument, the lead
opinion held that cumulatively reversible-prosecutorial misconduct stemmed in part from
the fact that the prosecution called the defendant a pedophile three times and referred to him
once as a child molester. Id. at 910-11 (¶¶52-55). The lead opinion also said that calling
the defendant a pedophile was “plain error that warrant[ed] reversal standing alone.” Id. at
911 (¶55). But in Case v. State, 187 So. 3d 177, 184 (¶¶24-25) (Miss. Ct. App. 2015), we
held that an appellant who had been convicted of two counts of fondling a child was
procedurally barred from arguing for the first time on appeal that the prosecution improperly
called him a pedophile four times during its closing argument. And even if the claim had
not been procedurally barred, it would have been meritless because “the prosecutor’s
comments, taken in context, show[ed] that the prosecutor was commenting on the facts
14
presented in the evidence.” Id. at (¶26).
¶29. Again, this case is different from White. Neither of the prosecutors ever called
Blackwell a pedophile in front of the jury. Instead, one of the prosecutors said that
Blackwell was “a child molester. He touched [John], rubbed . . . his penis, rubbed his butt
multiple times . . . .” Later, the prosecutor said:
In voir dire we talked about stereotyping people and you can’t look at
someone and say, [“]oh, this is a child molester[”] because they come from all
walks of life. But now that we’ve heard all the testimony and the evidence,
I submit to you that, yes, look at this defendant, look at him. That’s what
[defense counsel] asked you to do in opening. This is a child molester.
“Attorneys on both sides are generally afforded broad latitude during closing arguments so
long as counsel in his address to the jury keeps fairly within the evidence and the issues
involved.” Id. Viewed in appropriate context, the prosecution was arguing that Blackwell
was guilty of the charges he faced—two counts of gratification of lust by improperly
touching a child. Instead of using that language, the prosecution used a shorter, more
familiar synonym for the crime. Said differently, the comments at issue were tethered to the
legal and factual circumstances of the case, so they were “fair argument based upon the
testimony and evidence . . . .” Divine v. State, 947 So. 2d 1017, 1022 (¶12) (Miss. Ct. App.
2007) (upholding a decision denying a motion for mistrial after a prosecutor referred to a
defendant as a sexual predator and a child molester during closing argument in a trial for
sexual battery of a minor). Thus, we would find this issue meritless even if it were not
procedurally barred.
IV. CONTINUANCE
15
¶30. During the forensic interview, John said that Blackwell’s inappropriate touching
occurred in Blackwell’s living room. During John’s direct testimony, he said that
Blackwell’s inappropriate touching occurred in the living room and “[i]n the house, just
random places.” On cross-examination, John testified that it occurred in the living room and
in Blackwell’s bedroom. When defense counsel asked John if he had ever told anyone about
inappropriate touching in Blackwell’s living room, John said that he had told one of the
prosecutors that, but he could not remember when. Defense counsel told the circuit judge
that he had “a motion,” and he “ask[ed] permission to make it so we don’t delay.” The
circuit judge responded: “At the appropriate time.”
¶31. After the victim finished testifying, defense counsel complained that the prosecution
had not given him notice that John would testify that some of the inappropriate touching had
occurred in Blackwell’s bedroom. According to defense counsel, John’s unexpected
testimony undermined his ability to argue that John’s allegations were not credible because
it would be unlikely for Blackwell to molest the victim in a public area like his living room;
especially since the victim’s two siblings and Blackwell’s wife would have likely been in
Blackwell’s house at the same time as Blackwell and the victim. Defense counsel concluded
by asking the circuit court to “begin the Box proceedings”12 so he could decide “whether . . .
[he] would move for a mistrial or a continuance . . . .”
¶32. The prosecutor responded that she did not remember the victim telling her that
Blackwell had molested him in Blackwell’s bedroom, and Box was moot because defense
12
Box v. State, 437 So. 2d 19, 23-24 (Miss. 1983) (Robertson, J., specially
concurring); see also URCCC 9.04(I) (supplanted by MRCrP 17.9(b)).
16
counsel had finished cross-examining the victim. The prosecutor also noted that when the
forensic interviewer asked the victim whether Blackwell had touched him in any other
places, it was unclear whether the victim understood that to mean other places on his body.
Ultimately, the circuit court held:
The [S]tate cannot possibly give every word that’s going to come out of the
victim’s mouth when [he] testif[ies]. The defendant is on notice of what the
charges are. Simply saying it happened on the couch or it happened in the
bedroom is all in the same home. This doesn’t change anything. I don’t even
feel like it’s a Box violation, much less a valid motion for a mistrial, so [there
is] no violation and there is no mistrial. It’s denied.
¶33. On appeal, Blackwell claims the circuit court committed reversible error “because a
material discovery issue in which the known information was withheld from the defense, and
when the violation occurred, the trial judge refused to follow the Box procedures . . . .”
(Italics added). He also submits that “[i]t was an important part of the defense to argue that
it was not likely that [Blackwell] would do something so offensive in a public place.”
Although Blackwell does not expressly argue that the circuit court should have granted a
mistrial, we interpret that to be his position; especially since it would have been pointless
for the circuit judge to grant a continuance after defense counsel finished cross-examining
the victim. We review “a trial court’s denial of a motion for mistrial for abuse of
discretion.” Hurst v. State, 195 So. 3d 736, 744 (¶20) (Miss. 2016).
¶34. First and foremost, it is questionable whether defense counsel moved for a mistrial.
He certainly complained about a perceived discovery violation, but he did not go so far as
to move for a mistrial or even for a continuance. Even so, the circuit court interpreted
defense counsel’s complaints as a motion for a mistrial, because the circuit court ultimately
17
found that defense counsel was not entitled to one.
¶35. In any event, the Box procedure does not apply to this case. At the time of
Blackwell’s trial, the Box procedure was still delineated in Rule 9.04(I) of the Uniform
Rules of Circuit and County Court. It provided that if the prosecution attempts to introduce
undisclosed evidence and the defense objects, the circuit court must:
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.
¶36. That procedure applies “when the State attempts to enter previously undisclosed
evidence over the defendant’s objection.” Terrell v. State, 237 So. 3d 717, 730 (¶51) (Miss.
2018). As the State notes, the prosecution did not introduce evidence that Blackwell’s
inappropriate touching occurred in his living room and his bedroom. Defense counsel
elicited that testimony when he cross-examined the victim. And as the prosecution discussed
at trial, the victim’s forensic interview was ambiguous regarding whether his response that
Blackwell had not touched him anywhere else referred to anywhere else on his body, or
anywhere else in Blackwell’s house. To the extent that Blackwell actually moved for a
mistrial, it was within the circuit court’s discretion to deny that request.
V. CUMULATIVE ERROR
¶37. Finally, Blackwell argues that his conviction should be reversed “especially with
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respect to the error of prosecutorial misconduct for which there was no contemporaneous
objection” based on what he describes as the “cumulative error rule.”
The cumulative error doctrine stems from the doctrine of harmless error which
holds that individual errors, which are not reversible in themselves, may
combine with other errors to make up reversible error, where the cumulative
effect of all errors deprives the defendant of a fundamentally fair trial.
However, where there was no error in part, there can be no reversible error to
the whole.
Jackson v. State, 263 So. 3d 1003, 1018 (¶47) (Miss. Ct. App. 2018) (quoting Harris v.
State, 970 So. 2d 151, 157 (¶24) (Miss. 2007)). Having found no errors, harmless or
otherwise, there was no cumulative error. We affirm the circuit court’s judgment.
¶38. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL, LAWRENCE
AND C. WILSON, JJ., CONCUR. McCARTY, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY WESTBROOKS AND McDONALD, JJ.
McCARTY, J., DISSENTING:
¶39. With all due respect, I cannot agree with the majority’s finding that the circuit court
committed harmless error when it allowed Close’s witness testimony and the State to call
Blackwell a child molester during closing arguments.
¶40. This case perfectly represents exactly why we have the Mississippi Rules of
Evidence—especially Rule 403—to guard against conviction by social pressure or disgust.
Rule 403 provides that “[a]lthough relevant, evidence may be excluded if its probative value
is substantially outweighed by the danger of unfair prejudice.” M.R.E. 403. Allowing the
witness’s decades-old testimony was prejudice per se.
¶41. “Under Rule 404(b), evidence of crimes, wrongs, or acts is not admissible to prove
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the character of a person in order to show that he acted in conformity therewith.” White v.
State, 228 So. 3d 893, 901 (¶16) (Miss. Ct. App. 2017). “[T]he prosecution may not
introduce prior bad acts for the purpose of showing that the defendant had a propensity to
engage in such conduct, that is, because he had done things like this before, he probably did
it this time.” Cole v. State, 126 So. 3d 880, 885 (¶20) (Miss. 2013). “The reason for the rule
is to prevent the State from raising the inference that the accused has committed other crimes
and is therefore likely to be guilty of the offense charged.” Mitchell v. State, 110 So. 3d 732,
734 (¶10) (Miss. 2013).
¶42. There are exceptions in which a defendant’s prior bad act may be admissible. These
are when the State submits evidence in order to show one of the following: motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident. M.R.E. 404(b)(2). None of these exceptions apply in the present case. I can find
no other reason to introduce Close’s testimony other than to prejudice the jury. This is a
classic example of inadmissible propensity evidence.
¶43. This case closely tracks White v. State, 228 So. 3d—no matter the attempts to
distinguish it. In White, the State submitted witness testimony of a nine-year-old allegation
of sexual offense by the defendant at his current trial. White, 228 So. 3d at 901(¶18). On
appeal, this Court held that the witness’s testimony was not probative of the defendant’s
plan, motive, intent, or opportunity and therefore was inadmissible. Id. at 902 (¶22). The
same result should be reached here today. Just as in White, the circuit court here abused its
discretion by admitting highly prejudicial and minimally probative evidence of an uncharged
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twenty-year-old offense. I am certain that the jury convicted Blackwell due to the ancient
allegations.
¶44. Just as in White, the trial court also failed to make on-the-record findings. “When the
trial court admits other bad acts evidence under Rule 404(b), it should make an on-the-
record Rule 403 finding that the probative value is not substantially outweighed by the
danger of unfair prejudice.” Id.
¶45. In White this court took issue with the circuit court neglecting to specify what, under
404(b), made the defendant’s prior bad act admissible. Id. We said that the circuit court’s
general explanation of the rule was not adequate. Id. Just as in White, the circuit court here
did not adequately explain its decision. It merely agreed with the prosecution and said the
evidence was admissible under Rule 404(b).
¶46. “The proposition that an uncharged, factually dissimilar, and almost [two-]decade-old
offense contains probative value that substantially outweighs the threat of unfair prejudice
to the defendant’s constitutional rights is certainly a stretch.” White, 228 So. 3d at 901(¶18).
¶47. In addition to the improper witness testimony, Blackwell’s case also warrants reversal
based on the State’s wildly out-of-bounds closing argument. The majority finds no error
because the State never referred to Blackwell as a pedophile. Technically, this is true. What
happened was way worse because the State called the defendant a child molester not once,
but twice:
But now that we’ve heard all the testimony and the evidence, I submit to you
that, yes, look at this defendant, look at him. That’s what they asked you to
do in opening. This is a child molester.
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....
And I’ll tell you what, there is one explanation and it’s a much simpler one.
This defendant is a child molester.
¶48. This is the sort of statement that shocks the conscious and prevents a defendant from
receiving a fair trial. Cases should be tried based on their facts—not innuendo or
fearmongering.
¶49. For the forgoing reasons, I respectfully dissent.
WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.
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