Gooden v. StateGooden v. State
for the Court.
¶ 1. Lаrry Gooden was convicted of burglary of a storehouse. He was sentenced as a habitual offender and ordered to serve a term of seven years in the Mississippi Department of Corrections without the benefit of early release or parole. He brings this appеal and asserts the follow
FACTS
¶ 2. The Adams County Sheriffs Office responded to a burglary alarm at the Natchez Steam Laundry. Deputy Charles Latham arrived at the scene to investigate. During the trial, Deputy Latham testified that, upon his arrival, he witnessed a male individual put something on the ground and pull off a T-shirt. Latham further testified that he saw this gentleman mоve off the sidewalk and go up to the old Metro Communications Building which was next to the Natchez Steam Laundry. After a search of the surrounding area, two other policemen who had been called to assist in the investigation, found Gooden hiding under a nearby house. When found, Gooden wаs bleeding from three cuts on his hand. The police also found, just outside of the burglarized building, a small plastic file box containing some coins and some blood droppings on it. The file box was identified as belonging to Natchez Steam Laundry. Additionally, the police recovered a piеce of glass from the interior of the burglarized building. The glass also had blood on it. The blood found on these items was matched with Gooden’s DNA. Additional facts, as needed, will be given during a discussion of the issues.
ANALYSIS OF THE ISSUES PRESENTED
1. Motion for Continuance
¶ 3. Gooden requested a continuance because of the absence of a subpoenaed witness he planned to present on his behalf and because there were other witnesses that he claimed needed to be subpoenaed. A subpoena had been issued for and served on Tina Fitzgerald. However, on the morning of the trial, Fitzgerald told Gooden shе was not planning to come to court because her child was ill. Another subpoena, which had also been issued for another witness, had not been served. These subpoenas had been issued only four days prior to trial. When Gooden and his counsel arrived at the courthouse for trial, they moved for a continuance on the basis of witness unavailability. In support of the motion, counsel for Gooden advised the trial court that two new witnesses, or at least new to counsel’s knowledge, needed to be subpoenaed. Counsel argued that these witnesses wоuld provide testimony crucial to Gooden’s defense. Defense counsel argued that the witnesses were crucial because they would support Goo-den’s claim that he had been cut prior to the arrest while doing some labor for Fitzgerald.
¶4. The trial judge stated that she would have the sheriff sent to pick up Fitzgerald because she was required to be present due to the subpoena. However, that apparently did not occur. As to the “new” witnesses, the judge reprimanded Gooden for his late disclosure of the witnesses and denied the request, citing his own dеlinquency as insufficient to support a continuance.
¶ 5. The granting of a continuance is a matter within the sound discretion of the judge. Johnson v. State,
¶ 6. It is abundantly clear that the absence of the testimony of these witnesses did not inure to Goоden’s detriment or cause an injustice. As the State aptly points out in its brief, testimony that Goo-den injured or cut his hand while working for Fitzgerald prior to the burglary does not add one whit to Gooden’s defense. Gooden’s blood was found on a piece of glass inside the burglarized building, as well as on thе black plastic box that had been removed from the premises. Even if Gooden had been able to prove that he cut his hand prior to the burglary, that would not disprove the fact that he left blood at the scene of the crime. When Gooden came from under the building next to the laundry, his hand was bleeding. One of the officers testified that when Gooden came from under the building, he had what appeared to be a T-shirt wrapped around his hand. Apparently, this was the same T-shirt which Officer Latham had observed the individual pulling off.
¶ 7. DNA analysis determined that the blood left at thе scene of the crime belonged to Gooden, and Gooden does not enlighten us on how these witnesses might have been able to provide an innocent explanation for his blood being at the scene of the burglary. Whether the blood came from an old injury or an entirely nеw one is totally irrelevant.
¶ 8. Additionally, as to the “new witnesses,” the judge was totally within her discretion when she refused to continue the trial because of Gooden’s own delinquency. Gooden was aware of these witnesses from the beginning and offered nothing to explain his tardy disclosure. Further, аs with the cases of the subpoenaed witnesses, Gooden does not inform us as to how these witnesses’s testimony might have made a difference in the result of the trial. For the reasons stated, we can find no reason to conclude that the trial judge abused her discretion when she denied Gooden’s motion for a continuance.
2. Admission of Improper Evidence
¶ 9. Gooden claims that he was irreparably prejudiced when the trial court admitted into evidence the black box containing the coins. The box had been removed from the building, and coins, instead of tickets, were found inside of it. The blaсk box, which was used in the laundry to keep customer tickets, was normally stored under the counter. An employee of the laundry testified that a jar filled with water and coins was kept on the counter.
¶ 10. Gooden argues that the coins were separate and distinct from the box and should have been subjected to a separate procedural standard of admittance before placing them into evidence for the jury’s deliberation. Gooden further arguеs that the jury may have been led to believe that the coins found in the box were the same coins that were scattered on the floor as a result of the shattered jar.
¶ 11. The State argues that Gooden is procedurally barred from this argument because Gooden failed to mаke a timely objection at the time the box, containing the coins, was admitted into evidence. The State also points out that it was not until its closing argument that defense
¶ 12. Based upon our review of the record, we agree that defense counsel failed to make a timely objection, resulting in the procedural bar. Notwithstanding the procedural bar, we find that Gooden’s contention is not well founded. We find it is an entirely logical inference that the coins found in the box were a portion of the coins which had been in the water jar and that the burglar used the black box to house some of the loot being taken. Therefore, when the proper predicate was established for admission of the box, nothing more was required for admission of its cоntents.
8. Search and Seizure
¶ 13. Gooden claims that the blood extracted from his body was done in violation of his constitutional rights because it was done without his consent. He asserts that this is a flagrantly unreasonable search and thus violates his Fourth Amendment right. The State, on the other hand, argues that the blood extraction was a direct result of Gooden’s request; therefore, the extraction did not violate his constitutional rights.
¶ 14. The reeoi'd reflects that on December 9, 1999, an order was entered setting Gooden’s trial for January 12, 2000. On January 11, 2000, defense counsel filed a motion to suppress any blоod evidence because “the State had made no attempt whatsoever by scientific testing to determine that the blood found at the scene of the alleged crime was that of the Defendant.” (emphasis added). The transcript of the hearing on the motion is not contаined in the record. However, on January 14, 2000, an order was entered resetting the trial of the case for February 2, 2000. On January 20, 2000, an order entitled “Order for Body Search of Suspect” was entered. In this order, the trial court recited that the order was being entered “[ujpon motion of Larry Gоoden for an order allowing and directing a duly licensed physician or other authorized personnel to extract blood from Larry Goo-den.” After the foregoing recital, the trial court found that Gooden was a suspect in the laundry burglary and that:
It is proper that Larry Gooden be allowed to furnish blood samples so that they might be scientifically compared for identity or common source with certain physical evidence recovered from the crime scene, namely blood samples recovered from pieces of glass and paneling and a black plastic box at the burglarized building.
¶ 15. On the morning of the trial of this cause, Gooden accused his trial counsel of having recommended, without his consent, that Gooden’s blood be drawn and compared with the blood found at the crime scene. The trial court advised Gooden that it was her understanding that he had asked for the blood test. Gooden denied having made such a request. Following some exchanges between Gooden, his counsel and the trial court, Gooden finally admitted that he agreed to have his blood drawn. Nevertheless, Gooden still contended that he never recommended that it be done and that he did not know anything about it until he was presented with the order by his trial counsel. Gooden testified that his trial counsel acted on his own volition in requesting the blood test in order to secure a continuance.
¶ 16. The trial court сoncluded that Gooden had requested that his blood be drawn and compared to the blood left at the scene of the crime. In arriving at this
¶ 17. We find nothing in the record to suggest that the trial court was in error in finding that Gooden consented to and indeed requested that a DNA blood analysis be done to rule him out as a suspect in the laundry burglary. Clearly, that could not be done without a known sample of his blood. He cannot now come back, after the testing occurred, and claim that the blood was taken without his consent. This argument lacks merit.
Jp. Sufficiency of the Evidence
¶ 18. Gooden claims the cоurt erred in denying his requests for a directed verdict and JNOV. Challenges to a trial court’s denial of a motion for a directed verdict or JNOV implicate a review of the sufficiency of the evidence. McClain v. State,
¶ 19. In the case at bar, there is more than an ample amount of evidence to support the verdict of guilt. First, Gooden was identified at the scene of the crime. Secondly, a black box which had been removed from the burglarized building was found near the building in the vicinity of where Gooden was first observed by one of the officers. Blood on this box, as well as blood on a piece of glass inside of the building, was later confirmed through DNA testing as belonging to Gooden. This issue is devoid of any merit.
5. Weight of the Evidence.
¶ 20. Gooden also charges the lower court with error for denying his rеquest for a new trial. Cases challenging a ruling on a motion for a new trial implicate a review of the weight of the evidence. The decision to grant or deny the motion reposes within the sound discretion of the trial judge. See Wetz,
¶ 21. Gooden asserts that no one was able to testify to seeing him inside the building. While that may be true, the
¶ 22. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF CONVICTION OF BURGLARY OF A STOREHOUSE AND SENTENCE OF SEVEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.
Notes
. The jar served as a contest offering discounts to customers who could drop the coins through the water and have them land a certain way.
. The content of this objection is off the record.