Wells v. State
| Docket Number: | 2010-KA-00752-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-18-2011 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder - Jurisdiction - M.R.A.P. 4(e) - M.R.A.P. 2(c) - Change of venue - Prior bad acts Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Maxwell and Russell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 10-29-2009 Appealed from: Jackson County Circuit Court Judge: Dale Harkey Disposition: CONVICTED OF DELIBERATE-DESIGN MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Anthony N. Lawrence, III Case Number: 2008-11,329(3) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Darwin Wells, Jr. |
BENJAMIN ALLEN SUBER |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Murder - Jurisdiction - M.R.A.P. 4(e) - M.R.A.P. 2(c) - Change of venue - Prior bad acts |
| Summary of the Facts: | Darwin Wells Jr. was convicted of deliberate-design murder and sentenced to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction The trial court granted an extension of time for defense counsel to file a motion for a new trial. M.R.A.P. 4(e) instructs that a criminal defendant who makes a “timely motion” for a judgment of acquittal notwithstanding the verdict or a motion for new trial, under the Uniform Rules of Circuit and County Court Practice, has thirty days from the entry of the order denying such motion to file his notice of appeal. In order for the time for notice of appeal to be tolled, the post-trial motion for a new trial must be filed within ten days of the entry of the judgment or order from which appeal is taken. A motion for a JNOV, as it relates to a criminal case, is untimely where filed beyond the ten-day limit for a motion for new trial and beyond the term of the court. A review of the record in this case shows that Wells was convicted of deliberate-design murder on October 29, 2009. The trial court filed its sentencing order on October 30, 2009. On November 9, 2009, in response to defense counsel’s timely ore tenus motion for an extension of time, the trial court entered an order extending the time in which Wells must file his motion for a new trial to thirty days from November 9, 2009. On December 9, 2009, defense counsel filed a JNOV/new trial motion. After a hearing, the trial court denied the motion on April 9, 2010. Wells’s notice of appeal was filed on May 6, 2010. There is no authority that the circuit court has any discretion to extend time limits for filing a motion for a JNOV or for a new trial. Defense counsel filed Wells’s JNOV/new trial motion on December 9, 2009, which was past the required time period but within the extended period granted by the trial court. Because defense counsel untimely filed a post-trial motion, the thirty-day requirement for filing his notice of appeal began on the date of imposition of sentence, October 30, 2009. Wells’s notice of appeal was filed on May 6, 2010. The notice of appeal was not timely filed in accordance with Rule 4(e). However, in light of the fact that defense counsel relied upon the trial court’s order of extension, the Court will address the merits of the appeal in the interests of justice as provided in M.R.A.P. 2(c). Issue 2: Change of venue Wells argues the trial court abused its discretion by not granting his requests for a change of venue. Wells contends that due to the large circulation of newspapers and television station broadcasts, a large percentage of the citizens in Jackson County were directly exposed to the prejudicial articles and reporting involving his case. The State can rebut the presumption that the defendant could not receive a fair trial by proving that the trial court impaneled an impartial jury. Here, there is no evidence indicating the trial court erred in finding that the jurors were fair and impartial. The record shows that after Wells filed his motion for a change of venue, the trial court held a pretrial hearing where the court randomly selected ten jurors of a jury pool to ascertain the impact, if any, of pretrial publicity upon potential jurors. The trial court found that an overwhelming majority of the potential jurors indicated that they could be impartial, and the court found Wells could receive a fair trial. Issue 3: Prior bad acts Wells argues that the trial court improperly admitted into evidence testimony regarding his prior bad acts by an officer’s testimony that Wells had stated: “They hate me because of my past.” Where testimony briefly refers to another crime and the testimony was not purposefully elicited to show the defendant’s character, no reversible error occurs. In this case, there was no abuse of discretion by the trial court in allowing the testimony at issue into evidence. The trial court found that the officer’s testimony, as to Wells’s statement about people not liking him because of his past, constituted an unspecific and ambiguous remark. |
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