IMMANUEL MANNING A/K/A PAPOOSE A/K/A IMMANUEL D. MANNING A/K/A IMMANUEL DEWAYNE MANNING A/K/A EMMANUEL MANNING A/K/A EMMANUEL D. MANNING A/K/A EMMANUEL DEWAYNE MANNING A/K/A HOLLYWOOD v. STATE OF MISSISSIPPI
NO. 2016-KA-01301-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
03/06/2018
DATE OF JUDGMENT: 08/04/2016 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD, LADONNA HOLLAND DISTRICT ATTORNEY: SCOTT WINSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/06/2018
WESTBROOKS, J., FOR THE COURT:
¶1. A jury in the Oktibbeha County Circuit Court convicted Immanuel Manning of murder and witness intimidation. On the charge of murder, Manning was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or early release. On witness intimidation, the circuit court sentenced Manning to two years in MDOC custody.
FACTS AND PROCEDURAL HISTORY
¶3. On March 7, 2014, Christopher Houston was shot and killed at his home in Starkville, Mississippi. Houston shared that home with his girlfriend Natalla Carter. Carter testified that she was cleaning a bathtub at the time of the shooting. After Houston was shot, Carter stated that she ran outside when she heard Houston call her name. Once outside, Carter saw Houston on the ground near a four wheeler. According to Carter, Houston, in making his final statement, told her that “Papoose shot [him].” Carter testified that she knew “Papoose” to be Manning, and Houston addressed Manning with the same moniker.
¶4. Deputy Mahyar Netadji, of the Oktibbeha County Sheriff Department, was the first law-enforcement officer to arrive on the scene. Carter relayed that Houston had said that “Papoose” shot him. According to Netadji, he knew that “Papoose” was Manning‘s moniker.
¶5. Netadji unsuccessfully tried to get a verbal response from Houston. Houston died at the scene, despite emergency responders’ attempts to revive him there and at the hospital. After Houston was transported to the hospital, Netadji spoke to Carter again, who informed Netadji that Manning likely was headed to Jackson, Mississippi.
¶7. Netadji provided that description to dispatch, Lieutenant Watson, and other law-enforcement officers. Watson also responded to the scene. Watson also knew Manning was referred to as Papoose and proceeded to search for information on Manning. While the record is unclear on how Watson ascertained Manning‘s cell phone number, Watson used it to contact T-Mobile to discover where the phone had been used earlier that day. T-Mobile emailed Watson coordinates of Manning‘s cell phone throughout the day. This information eventually led to Manning‘s apprehension in Pearl, Mississippi. After being detained, Officer Greg Jones tested Manning‘s hands for gunshot residue at the Pearl Police Department.
¶8. Manning eventually was released on bond. While on bond, Carter encountered Manning twice. According to Carter, Manning made kissing gestures toward her during this first encounter. During the second encounter, Carter testified Manning said something that she took as a threat, although she could not remember exactly what he had said. She filed
¶9. On July 18, 2014, Manning was indicted and charged with first-degree murder, possession of stolen property,1 and witness intimidation. Manning‘s trial began on August 1, 2016. The State called nine witnesses during its case-in-chief. Manning called one witness and then chose to testify. Afterward, the State called three rebuttal witnesses and rested. The jury found Manning guilty of murder and witness intimidation. Manning appeals.
DISCUSSION
I. Whether Brett Watson‘s lay opinion was inadmissible.
¶10. Manning argues that Watson‘s testimony was inadmissible lay opinion testimony, because cell-tower pings are technical in nature. Additionally, Manning argues that the State‘s leading questions evoked affirmative answers from Watson when discussing how he tracked Manning‘s direction of travel through his cell phone‘s coordinates.
¶11. “The standard of review for both the admission or exclusion of evidence is abuse of discretion.” Walls v. State, 928 So. 2d 922, 926 (¶9) (Miss. Ct. App. 2006) (citing Harrison v. McMillan, 828 So. 2d 756, 765 (¶27) (Miss. 2002)). “Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id. “There is a two-part test to determine the admissibility of lay witness opinion testimony.” Id. at (¶10). “The information must assist the trier of fact and the opinion must be based upon first hand knowledge.” Id. (citing Jones v. State, 678
¶12. Manning cites to Collins v. State, 172 So. 3d 724 (Miss. 2015) in support of his contentions. In Collins, 172 So. 3d at 727 (¶1), Jairus Collins was convicted of murdering Ebony Jenkins. Jenkins‘s body was discovered behind a building in Hattiesburg, Mississippi. Id. “During the course of the investigation, police officers identified Collins as a suspect in Jenkins‘s murder.” Id. “Collins initially told officers he did not know Jenkins very well and was working the night of December 7, 2011.” Id. at 732 (¶4). “Officers subpoenaed Collins‘s work schedule, however, which showed that Collins was not at work on December 7, 2011.” Id.
¶13. After officers showed Collins phone records from the night of Jenkins‘s murder, Collins admitted to having some contact with Jenkins that night. Id. “Based on the phone records they obtained, officers determined that Collins and Jenkins exchanged several phone calls and text messages the night of December 7, 2011.” Id. One of the detectives involved in the investigation testified regarding longitude and latitude coordinates and cell phone towers that Collins and Jenkins‘s cell phones used to make and receive calls.
¶14. The Mississippi Supreme Court found that the admission of the detective‘s testimony was a reversible error. Id. at 744 (¶29). The Court opined “that testimony that simply describes the information in a cell phone record is properly lay testimony.” Id. at 743 (¶28). “Likewise, testimony that merely informs the jury as to the location of cell phone towers may properly be lay testimony when it is based upon the personal observations of the witness.”
¶15. Relying on our Supreme Court‘s holding in Collins, Manning argues that Watson provided improper expert testimony when he testified regarding the coordinates and real-time locations provided by T-Mobile. However, this issue is waived on appeal because Manning‘s defense attorney failed to object to Watson‘s testimony and the State‘s presentation of the evidence. “The failure to object to testimony at trial waives any assignment of error on appeal.” Ross v. State, 16 So. 3d 47, 57 (¶21) (Miss. Ct. App. 2009) (internal quotation marks omitted).
¶16. Procedural bar notwithstanding, the State argues that Manning‘s assignment of error is without merit. The State notes that Watson‘s testimony is markedly distinguishable from the testimony that the Supreme Court warned against in Collins. We agree. The detective‘s testimony in Collins purported to pinpoint the general area that the cell phone users were located. Here, Watson merely placed the coordinates from the records supplied by T-Mobile into Google maps. Watson‘s testimony was not complex or technical, necessitating specialized knowledge or training. Moreover, Watson‘s testimony did not implicate Manning as the detective‘s testimony did in Collins. Therefore, we find that the admission of Watson‘s testimony was not in error.
II. Whether the State presented sufficient evidence to convict Manning of witness intimidation.
¶18. Manning argues that Carter‘s allegations regarding her two encounters with him after he was released on bond were insufficient to support his conviction for witness intimidation. Specifically, Manning argues that Carter‘s testimony regarding the threatening statement he made was so patchy, nondescript, and nebulous that it is impossible to conclude what Manning said to her. As a result, Manning asserts that the State failed to prove witness intimidation beyond a reasonable doubt.
¶19.
¶20. In the case at hand, the jury found Carter‘s testimony as to the threatening nature of Manning‘s gestures credible. Carter was the only individual who heard Houston‘s final statements regarding who shot him. Carter also identified Manning as “Papoose” and was a key state witness. In viewing the evidence in the light most favorable to the State, it was reasonable for the jury to find Manning guilty of witness intimidation.
III. Whether instruction S-3(A) constructively amended Manning‘s indictment.
¶21. Manning argues that the variance between his indictment and one of the State‘s jury instructions constructively amended the indictment. Specifically, Manning asserts that the State‘s jury instruction neglected to allege an overt act because the grand jury indicted Manning on the allegations that he engaged in conversation and blowing kisses. However, Manning waived this error on appeal because his defense counsel failed to object to the lack of an overt act in the instruction. “The failure to object to testimony at trial waives any assignment of error on appeal.” Ross, 16 So. 3d at 57 (¶21). Therefore, this matter is procedurally barred.
¶23. Instruction S-3(A) informed the jury that it should find Manning guilty of intimidating a witness if it found from the evidence beyond a reasonable doubt that Manning: “did unlawfully, willfully[,] and feloniously; attempt to intimidate or otherwise influence . . . Carter, a witness to a crime; by threats, communication with her with threats, force or abuse; to obstruct or impede the administration of [j]ustice in any [c]ourt.”
¶24. In Bell v. State, 725 So. 2d 836, 855-56 (Miss. 1998), the [Supreme Court] held that reversal is required where a defendant was convicted of an element of the offense not contained in the indictment, and “. . . reversal is automatic because the defendant may have been convicted on a ground not charged in the indictment.” Bishop v. State, 812 So. 2d 934, 941 (¶25) (Miss. 2002) (internal quotations omitted). However, “[n]ot all variances between the indictment and instructions constitute a constructive amendment, nor do they rise to plain error.” Bell, 725 So. 2d at 855 (¶61). “The central question is whether the variance is such as to substantially alter the elements of proof necessary for a conviction.” Id.
¶25. Manning argues that the State‘s failure to include an allegation of an overt act creates such a considerable variance that it warrants reversal. We do not agree. The omission of an overt act did not change any element of the offense or broaden the grounds upon which he
¶26. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND TINDELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.