        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01301-COA

IMMANUEL MANNING A/K/A PAPOOSE A/K/A                                        APPELLANT
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                                                          APPELLEE

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
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., GREENLEE AND WESTBROOKS, JJ.

       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.
¶2.    On appeal, Manning argues that (1) Lieutenant Brett Watson’s lay opinion testimony

was inadmissible; (2) the State presented insufficient evidence to support the conviction for

witness intimidation; (3) jury instruction S-3(A) constructively amended Manning’s

indictment; and (4) this Court should reverse Manning’s murder conviction under the

doctrine of retroactive misjoinder. Because we find the evidence was sufficient to support

a conviction of witness intimidation, we will only address assigned errors 1–3.

                       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.



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¶6.       In response, Netadji notified dispatchers of Manning’s possible involvement in the

shooting and sent a “be on the lookout” (BOLO) alert to neighboring counties and the

Mississippi Highway Patrol. Next, Netadji then spoke with Reginald Ferguson, Carter’s

neighbor. According to Ferguson, he was outside barbecuing when he noticed a gray Pontiac

Bonneville, with a wing on the back, drive into the area before the shooting. Ferguson went

inside his home for a moment, and when he returned he saw a man running back to the

Pontiac. Ferguson described the driver as wearing mustard-colored pants and a dark-colored

jacket.

¶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



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charges against him shortly thereafter.

¶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

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             The State ultimately chose to retire the possession-of-stolen-property charge to the
files.

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So. 2d 707, 710 (Miss. 1996)). “A layperson is qualified to give an opinion based upon his

first hand knowledge that other lay people do not possess.” Id.

¶12.   Manning cites to Collins v. State, 172 So. 3d 724 (Miss. 2015) in support of his

contentions. In Collins, Jairus Collins was convicted of murdering Ebony Jenkins. Id. at 727

(¶1). 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.”



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Id. “But testimony that goes beyond the simple descriptions of cell phone basics, specifically

testimony that purports to pinpoint the general area in which the cell phone user was located

based on historical cellular data, requires scientific, technical, or other specialized knowledge

that requires expert testimony.” Id.

¶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.

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¶17.   “When reviewing a challenge to the sufficiency of the evidence, this Court will

reverse and render only if the facts and inferences point in favor of the defendant on any

element of the offense with sufficient force that reasonable men could not have found beyond

a reasonable doubt that the defendant was guilty.” Hughes v. State, 983 So. 2d 270, 275-76

(¶10) (Miss. 2008) (internal quotation marks omitted). “This Court considers the evidence

in the light most favorable to the state.” Id. “The state receives the benefit of all favorable

inferences that may reasonably be drawn from the evidence.” Id. (internal citations omitted).

¶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.   Mississippi Code Annotated section 97-9-113 states that “[a] person commits the

crime of intimidating a witness if he intentionally or knowingly: . . . [h]arasses or intimidates

or attempts to threaten, harass or intimidate a witness or a person reasonably expected to be

a witness.” As stated prior, Carter testified to two incidents that she perceived as threats.

In the first encounter, Carter stated this occurred when she was leaving the complex where

both her mother and Manning resided: “I was coming in to Brooksville Garden and he was

leaving out making kissing gestures.” In the second encounter, Carter testified that she could

not hear exactly what Manning stated to her, but she could make out the words “do



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something.” “The [Supreme Court] has stated that a single witness’s uncorroborated

testimony is sufficient to support a conviction.” Cousar v. State, 855 So. 2d 993, 998-99

(¶16) (Miss. 2003). Moreover, “[t]he jury determines the weight and credibility to give

witness testimony and other evidence.” Gillett v. State, 56 So. 3d 469, 505 (¶102) (Miss.

2010) (citing Massey v. State, 992 So. 2d 1161, 1163 (¶12) (Miss. 2008)). “This Court may

not pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must

be accepted as having been found worthy of belief.” Id. (internal quotation marks omitted).

¶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.

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¶22.   Procedural bar notwithstanding, Manning’s indictment informed him that he was

being charged with intimidating a witness by “unlawfully, willfully[,] and feloniously

attempt[ing] to intimidate or otherwise influence . . . Carter, a witness to a crime, by threats,

force[,] or abuse, by engaging in conversation and blowing kisses at . . . Carter, to obstruct

or impede the administration of justice. . . .”

¶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



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could be found guilty. Accordingly, we find this argument without merit.

¶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.




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