       IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                           NO. 2014-KA-00805-COA

SEAN LAND A/K/A SEAN L. LAND                                     APPELLANT

v.

STATE OF MISSISSIPPI                                               APPELLEE


DATE OF JUDGMENT:                    06/09/2014
TRIAL JUDGE:                         HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:           JONES COUNTY CIRCUIT COURT,
                                     SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:             OFFICE OF STATE PUBLIC DEFENDER
                                     BY: W. DANIEL HINCHCLIFF
                                         GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:               OFFICE OF THE ATTORNEY GENERAL
                                     BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                   ANTHONY J. BUCKLEY
NATURE OF THE CASE:                  CRIMINAL - FELONY
TRIAL COURT DISPOSITION:             CONVICTED OF COUNT I, ATTEMPTED
                                     ARMED ROBBERY, AND SENTENCED TO
                                     TWENTY-FIVE YEARS; COUNT II,
                                     AGGRAVATED ASSAULT, AND
                                     SENTENCED TO TEN YEARS; AND
                                     COUNT III, POSSESSION OF A FIREARM
                                     BY A FELON, AND SENTENCED TO
                                     SEVEN YEARS, WITH ALL SENTENCES
                                     TO RUN CONSECUTIVELY IN THE
                                     CUSTODY OF THE MISSISSIPPI
                                     DEPARTMENT OF CORRECTIONS
DISPOSITION:                         AFFIRMED – 01/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      JAMES, J., FOR THE COURT:

¶1.   On October 18, 2013, Sean Land was indicted for attempted armed robbery in
violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014), aggravated assault in

violation of Mississippi Code Annotated section 97-3-7(2)(a) (Supp. 2015), and possession

of a firearm by a felon in violation of Mississippi Code Annotated section 97-37-5 (Rev.

2014). Land appeals from a judgment of conviction entered by the Circuit Court of Jones

County, Second Judicial District, following a trial where the jury found him guilty on all

three counts. Finding no reversible error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On May 6, 2013, Sedrick Miles and Land rode together from Waynesboro,

Mississippi, to Laurel, Mississippi. They stopped at Walmart in Laurel. Miles went inside

to use the restroom, while Land remained in the vehicle seated in the front passenger seat.

Later, Miles exited Walmart, returned to the driver’s side of his vehicle, and began to look

through some CDs. While the two were in the vehicle, Fernando Noriega exited Walmart

with groceries he had purchased. As Noriega was walking to his vehicle, he was counting

his money. At that point, Land told Miles that he was going “to get out of the car and do

something.” Miles continued to look through his CDs and heard a gunshot. He looked up

and saw Noriega on the ground in the parking lot. He then saw Land “shooting him again.”

Land returned to the vehicle’s passenger seat, and Miles drove away from the scene.

¶3.    Noriega testified in Spanish at trial through an interpreter, as follows. While putting

groceries away in his van, Noriega felt a burning sensation in his leg. He realized he had

been shot. He fell backwards to the back of his van and felt a second shot in his stomach.

He testified that although he does not understand much English, he understood that the



                                              2
shooter wanted money.

¶4.    Lieutenant Jerome Jackson, an investigator for the Laurel Police Department, also

testified at trial. Lieutenant Jackson was called to investigate the shooting. He responded

to the scene, viewed the Walmart surveillance video, and obtained the license-plate number

of the vehicle that had been occupied by Miles and Land. It was determined that the vehicle

belonged to Miles. Two days later, Miles was arrested in Waynesboro. Miles made a

statement to police implicating Land as the actual shooter. Land was then arrested and, in

a videoed interview with police, confessed to shooting Noriega. The video of Land’s

interview containing the confession and detailed account of the shooting was played for the

jury at trial. The prosecution also played the Walmart surveillance video from the time of

the shooting. Lieutenant Jackson described what was occurring in the surveillance video as

it was played for the jury. Also, on one occasion, he pointed out where the jury should focus

its attention as it was played.

¶5.    Following the trial, the jury found Land guilty on all three counts. The trial court

sentenced Land to twenty-five years for the attempted armed robbery, ten years for the

aggravated assault, and seven years for possession of a firearm by a felon, with the sentences

to be served consecutively in the custody of the Mississippi Department of Corrections.

¶6.    Land filed a motion for a judgment notwithstanding the verdict or, in the alternative,

a new trial and a motion for resentencing. The trial court denied Land’s motion. Land

appeals to this Court raising two issues: (1) whether the trial court erred in allowing

Lieutenant Jackson to provide a narration of the surveillance videos shown to the jury; and



                                              3
(2) whether the trial court erred in allowing physical evidence, specifically a pair of Miles’s

shoes, which were not produced during discovery, to be admitted.

                                STANDARD OF REVIEW

¶7.    “Our standard of review for either the admission or exclusion of evidence is abuse of

discretion.” Smith v. State, 942 So. 2d 308, 313 (¶11) (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. (citing Gibson v. Wright, 870 So. 2d 1250, 1258 (¶28) (Miss.

Ct. App. 2004)).

                                       DISCUSSION

       I.     Whether the trial court erred by allowing Lieutenant Jackson’s
              narrative of the video-surveillance recording.

¶8.    Land argues that the trial court erred by allowing Lieutenant Jackson’s narration of

the surveillance video while it was being shown to the jury.

¶9.    “It is permissible for a witness to narrate video evidence when the narration simply

describes what is occurring in the video, but it is impermissible if the witness ‘attempts to

place his own subjective interpretation of events transpiring in the video based on nothing

beyond the witness's own inspection of the contents of the videotape.’” Gales v. State, 153

So. 3d 632, 645 (¶41) (Miss. 2014) (citing Pulliam v. State, 873 So. 2d 124, 127 (¶8) (Miss.

Ct. App. 2004)).

¶10.   Lieutenant Jackson testified as non-expert at trial. Lieutenant Jackson’s narration

predominately simply described what was occurring in the video. Land’s counsel did not


                                              4
object to the narration of the video entirely. Additionally, Land’s counsel stated to the trial

court that it would be fine for Lieutenant Jackson to identify Miles in the video. Land’s

counsel also did not object to Lieutenant Jackson identifying Noreiga. Therefore, “any

argument to exclude the testimony prior to the objection is procedurally barred.” Gales, 153

So. 3d at 647 (¶49).

¶11.   Land’s counsel first objected to the narration when the prosecutor asked Lieutenant

Jackson to describe the shoes that Miles was wearing. The prosecutor heeded that objection,

and moved on from that line of questioning. The next objection came when the prosecutor

asked what door Miles appeared to enter when he was returning to the vehicle after exiting

Walmart, to which Lieutenant Jackson responded that it appeared to be the driver’s door.

The next objection was raised when the prosecutor asked which side of the car should the

jury be watching for activity after Miles had returned to the vehicle. The objection was

overruled, and Lieutenant Jackson directed the jury to focus their attention to the front

passenger side of the vehicle. Lastly, Land’s counsel objected prior to Lieutenant Jackson’s

testimony that, on a smaller screen, he was able to tell a difference in Miles’s footwear.

¶12.   Lay-witness opinions offered by Lieutenant Jackson must meet the requirements of

Mississippi Rule of Evidence 701. “Rule 701 permits the introduction of non-expert opinion

evidence if (a) the opinion is rationally based on the perception of the witness and (b) is

helpful to the clear understanding of the determination of a fact in issue.” Ratliff v. State,

879 So. 2d 1062, 1064 (¶5) (Miss. Ct. App. 2004) (citing M.R.E. 701). The comment to Rule

701 explains that there is a two-part prerequisite test for the admissibility of lay-witness



                                              5
opinion testimony. “First, the information must assist the trier of fact; and second, the

opinion must be based on first[]hand knowledge.” Gales, 153 So. 3d at 646 (¶45) (citing

Wells v. State, 604 So. 2d 271, 278 (Miss. 1992)). “There is no substitute for either

requirement.” Id. (citations omitted).

¶13.   In Wells, a store owner narrated a video as a lay witness of a defendant cashier, who

had been charged with embezzlement. Wells, 604 So. 2d at 272, 278. The store owner

speculated as to how the cashier was improperly taking money. Id. at 278-279. The Court

isolated the testimony, and deemed the narration harmless error. Id. at 280. Similarly, in

Ratliff, a store employee and manager described events depicted in a surveillance video of

a shoplifting incident even though neither possessed firsthand knowledge of the events on

the video. Ratliff, 879 So. 2d at 1065 (¶8). We isolated the impermissible testimony of the

store employee and manager and held that, “like the court in Wells, considering the totality

of the evidence presented before the court, the error was, at best, harmless.” Id. at 1065-66

(¶¶8, 10) (citing Wells, 604 So. 2d at 280).

¶14.   Here, Lieutenant Jackson did not identify Land or even mention the robbery while the

video was played. His testimony had little bearing in Land’s case and was a mere exposition

of the crime. See Gales, 153 So. 3d at 647 (¶49) (noting that although the trial court

improperly admitted an investigating officer’s narration of a surveillance video, the error

would not amount to plain error because the officer’s statement had little bearing on the case

and was a mere exposition of the crime). Regardless, even without the narration of

Lieutenant Jackson, there was more than enough evidence supporting Land’s conviction,



                                               6
including his own confession, Miles’s testimony implicating Land as the shooter, as well as

Noriega’s testimony.

¶15.   Lieutenant Jackson did not possess firsthand knowledge of the events recorded on the

Walmart surveillance video. As a result, Lieutenant Jackson should not have been allowed

under Rule 701 to offer opinion testimony regarding the actions in the video. However, in

considering the totality of the evidence before the trial court, the error was, at best, harmless.

       II.     Whether the trial court erred by allowing the introduction of
               evidence of the shoes.

¶16.   Land argues that the trial court erred by allowing the shoes worn by Miles on the day

of the robbery to be entered into evidence in violation of Uniform Rule of Circuit and County

Court 9.04. We disagree.

¶17.   The prosecutor questioned Miles about the shoes he was wearing at Walmart the day

of the shooting. Miles described the shoes, and stated that he had the shoes with him at the

trial. Land’s counsel objected and a bench conference commenced. Land’s counsel claimed

unfair surprise because the shoes were not produced to the defense during discovery. The

prosecutor responded that the first time he saw the shoes was the morning of trial. The trial

court allowed the prosecutor to continue his questioning. Miles confirmed that the newly

produced shoes were the same shoes he was wearing at Walmart the day of the shooting, as

depicted on the surveillance video. The prosecutor then stated that he had offered to show

the shoes to Land’s counsel, who refused to examine the shoes. Land’s counsel never moved

for a continuance or a mistrial. The shoes were then admitted into evidence.

¶18.   Uniform Rule of Circuit and County Court 9.04 provides, in pertinent part:


                                                7
       If during the course of trial, the prosecution attempts to introduce evidence
       which has not been timely disclosed to the defense as required by these rules,
       and the defense objects to the introduction for that reason, the court shall act
       as follows:

              1. Grant the defense a reasonable opportunity to interview the
              newly discovered witness, to examine the newly produced
              documents, photographs or other evidence; and

              2. If, after such opportunity, the defense claims unfair surprise
              or undue prejudice and seeks a continuance or mistrial, the court
              shall, in the interest of justice and absent unusual circumstances,
              exclude the evidence or grant a continuance for a period of time
              reasonably necessary for the defense to meet the non-disclosed
              evidence or grant a mistrial.

              3. The court shall not be required to grant either a continuance
              or mistrial for such a discovery violation if the prosecution
              withdraws its efforts to introduce such evidence.

URCCC 9.04(I).

¶19.   “In order for the requirements of Rule 9.04(I)(2) to be invoked, the defense must (1)

after such an opportunity, claim unfair surprise and (2) seek a continuance or mistrial.”

Williams v. State, 991 So. 2d 593, 601 (¶28) (Miss. 2008). In Williams, the court held that

although the defendant objected and requested a recess when the prosecution sought to admit

evidence not disclosed in discovery, he waived his argument on appeal by failing to request

a continuance under Rule 9.04. Id. at 600-01 (¶¶27, 30) (“Defense counsel requested a recess

and not a continuance as required by Rule 9.04, and therefore waived arguing this issue on

appeal.”). Likewise, even though Land claimed unfair surprise, he waived his argument that

the trial court erred by admitting the shoes into evidence because he failed to request a

continuance or a mistrial, which is a requirement under Rule 9.04.



                                              8
                                        CONCLUSION

¶20    We find the trial court’s allowing Lieutenant Jackson’s opinion testimony regarding

the surveillance video to be harmless error. Moreover, Land waived his challenge to the

introduction of the shoes by failing to comply with Rule 9.04. Accordingly, we affirm the

trial court’s judgment of conviction.

¶21. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT, SECOND
JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, ATTEMPTED ARMED
ROBBERY, AND SENTENCE OF TWENTY-FIVE YEARS; COUNT II,
AGGRAVATED ASSAULT, AND SENTENCE OF TEN YEARS; AND COUNT III,
POSSESSION OF A FIREARM BY A FELON, AND SENTENCE OF SEVEN
YEARS, WITH ALL SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




                                            9
