Strohm v. State
| Docket Number: | 2001-KA-01134-COA Linked Case(s): 2001-KA-01134-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-18-2003 Opinion Author: Irving, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of dwelling - Continuance - Physical appearance - Discovery violation - URCCC 9.04(I) - Display of tattoos - Right against self-incrimination - Lesser-included offense instruction - Certification of prior convictions - Closing argument Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-14-2001 Appealed from: Winston County Circuit Court Judge: Joseph H. Loper Disposition: BURGLARY OF A DWELLING- SENTENCED TO SERVE A TERM OF 25 YEARS IN THE MDOC. District Attorney: Doug Evans Case Number: 2001-010 CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | William Wayne Strohm |
CYNTHIA ANN STEWART |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Burglary of dwelling - Continuance - Physical appearance - Discovery violation - URCCC 9.04(I) - Display of tattoos - Right against self-incrimination - Lesser-included offense instruction - Certification of prior convictions - Closing argument |
| Summary of the Facts: | William Strohm was convicted for the burglary of a dwelling and was sentenced to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance Strohm argues that the court erred in denying his motion for continuance which he requested in order to allow him to shower, shave, and change clothes. He argues that the large Rebel flag on his shirt and his unkempt appearance prejudiced him with the jury. A decision to deny or grant a continuance will not be reversed unless manifest injustice resulted. Not only did Strohm appear generally clean at trial, but he knew as early as a day before trial that he would have his hearing but made no arrangements to have family members bring him clothes. Therefore, there was no manifest injustice. Issue 2: Discovery violation Strohm argues that the court erred when it admitted a photograph of the alleged crime scene, because the court did not give him adequate time to reevaluate his theory of defense of trespass upon the admittance of the photograph. URCCC 9.04(I) requires that if during the trial, the prosecution attempts to introduce evidence which has not been timely disclosed to the defense and the defense objects, the court must grant the defense a reasonable opportunity to examine the newly produced documents, photographs or other evidence. Here, the State did not learn of the photograph until the witness was being interviewed for trial. At that point, the State immediately notified the defense. In addition, the court allowed adequate time for Strohm to interview the witness prior to her testifying. Therefore, there was no discovery violation. Issue 3: Tattoos Strohm argues that the court erred in forcing him to show his tattoos as part of in-court identification proceedings, because this violated his Fifth Amendment right not to incriminate himself and prejudiced the jury. Not only does Strohm make a different argument on appeal that he did in the trial court which serves as a procedural bar, but the Fifth Amendment privilege against self-incrimination protects an accused from providing evidence of a testimonial or communicative nature. Strohm’s tattoo was a physical characteristic of his body and was not testimonial or communicative in nature. Issue 4: Lesser-included offense instruction Strohm argues that his request for an instruction on the lesser-included offense of trespassing should have been granted. To warrant the lesser-included-offense instruction, a defendant must point to some evidence from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense. The fact that the door facing of the victim’s house was partially destroyed and items were collected in one location in her living room overwhelmingly refutes Strohm's assertion that he simply trespassed. No reasonable jury could have returned a verdict other than guilty as charged as to the burglary count. Issue 5: Prior convictions Strohm argues that the court erred when it considered his prior convictions to determine his sentence for the burglary conviction, because the copies of the convictions were uncertified. The court did not err in taking judicial notice of its own court records, considering the prior convictions of Strohm and viewing other pending charges against him, as this is not specifically prohibited by statute or the Mississippi Constitution. Issue 6: Closing argument Strohm argues that the State engaged in an inappropriate closing argument, because it commented on absence of a person Strohm had mentioned in his testimony. While the failure of either party in a criminal prosecution to call a witness equally accessible to both is not a proper subject for comment, such comment is not improper where the witness was more available to and in closer relationship with the other party. Because the association in this case indicates a close relationship to Strohm, the witness was not equally available to the prosecution and the prosecution had every right to comment on Strohm’s failure to call him. |
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