Tramain Callahan v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-00528-COA

TRAMAIN CALLAHAN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/23/2018
TRIAL JUDGE: HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/26/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., TINDELL AND LAWRENCE, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Tramain Callahan was convicted of armed robbery by a Hinds County Circuit Court

jury and sentenced by the trial court to thirty years in the custody of the Mississippi

Department of Corrections (MDOC), with twelve years suspended and eighteen years to

serve, and placed on five years of post-release supervision. Callahan filed a motion for

judgment notwithstanding the verdict (JNOV), which the trial court denied. Aggrieved, he

appeals, arguing that the court erred in refusing the defense’s circumstantial-evidence jury

instruction. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY

¶2. On September 26, 2013, Richard Norton was working as a cashier at a Shell gas

station on Northside Drive in Jackson, Mississippi, when a man walked into the store and

passed him a slip of paper that read, “I have a gun. Give me your money.” When Norton

looked up, the man raised his shirt to reveal a firearm; so Norton proceeded to hand over

money from the cash register. The robber told Norton to lie on the floor, and Norton

complied.

¶3. The Jackson Police Department (JPD) responded to the crime scene. Norton

described the robber as tall, wearing a black shirt, black pants, and a wig or hat on his head.

The police viewed the gas station’s surveillance video, which depicted a man walking into

the store, handing Norton something, and Norton’s handing something back to the man. The

police released the video to the news media, asking for the public’s help in identifying the

man. Latricia Black contacted the police, informing them that the person in the video was

her boyfriend, Callahan.

¶4. Black and Callahan lived with Black’s daughter, Breanna, in an apartment complex

adjacent to the gas station. The apartment’s manager alerted police that a maintenance man

had found a bag near the apartment complex’s dumpster containing a wig with attached

dreadlocks. Also found near the wig were sunglasses and a piece of paper with Breanna’s

name on it. Police showed a photograph taken from the surveillance video to Breanna’s

school principal, who recognized the man in the video as a person who had picked up

Breanna from school.

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¶5. Callahan was arrested and indicted for armed robbery. Callahan was not present for

trial; so the court held the trial in absentia.1 JPD Detective Felix Hodge testified that he

responded to the robbery call on September 26, 2013, interviewing the gas station cashier and

recovering the surveillance video. He later talked to Black when she came to the police

station to say that she saw the video on the news, and she was able to identify her boyfriend,

Callahan, as the man in the video from a six-photo lineup shown to her. JPD Officer

Sheneka Freeman also responded to the scene, and she testified at trial that the cashier was

able to identify the man in the video as the one who robbed the store, although he could not

give her a name.

¶6. JPD Officer Danny Hicks testified that the apartment manager for Hallmark Garden

apartments contacted the police, informing them of items discovered by the maintenance man

near the apartment complex’s garbage dumpster. He contacted Hinds County Undersheriff

Cheryl Matory, who testified that she was called to retrieve some items left in an apartment

dumpster on Northside Drive, “walking distance” from the crime scene. The items she

recovered were a prescription bottle, sunglasses, “a dreadlock wig hat, notebook cover,

school papers[,] . . . and 37-live round ammunition.” Officer Hicks further stated that one

of the papers recovered had Breanna’s name on it; so he contacted the girl’s elementary

school. He showed a photo of the robber to the principal, and she told the officer that the

man had been to the school to pick up the child.

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Callahan was granted bail and released. Although Callahan was present at the
pretrial motions hearing on February 8, 2016, he failed to appear for trial on February 9; so
the trial court revoked his bond, and a bench warrant was issued for his arrest.

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¶7. The gas station cashier, Norton, testified that the man who robbed the station “had the

dreads like a Jamaican does, had a skullcap on; had a little band, you know, yellow band on

it, braid . . . [and] was in black sweats, about [six-]foot tall; kind of a big guy.”

¶8. Black testified that a week or two before the robbery, Callahan had purchased a hat

with false dreadlocks at a novelty store. When she saw the video on the news, she

recognized the man in the video as Callahan; so she called him to ask if he had robbed the

gas station. Although he denied any involvement, Black told him to move out of the

apartment, and she immediately went to the police station. She also recognized the

sunglasses found in the bag near the dumpster as hers.

¶9. After the State rested, the defense moved for a directed verdict, which the trial court

denied. The jury found Callahan guilty of armed robbery, and the trial court sentenced him

to thirty years in the custody of the MDOC, with twelve years suspended and eighteen years

to serve, and placed on five years of post-release supervision. The trial court denied

Callahan’s motion for a JNOV, and he appeals from the judgment, claiming that the court

erred in refusing his circumstantial-evidence instruction.

STANDARD OF REVIEW

¶10. This Court reviews a trial court’s giving or refusal of jury instructions for abuse of

discretion. Taylor v. State, 109 So. 3d 589, 595 (¶18) (Miss. Ct. App. 2013) (citing Victory

v. State, 83 So. 3d 370, 373 (¶12) (Miss. 2012)). “When reviewing the giving or refusal of

jury instructions, we do not view the jury instructions in isolation, but instead we consider

them as a whole.” Id. (citing Rushing v. State, 911 So. 2d 526, 537 (¶24) (Miss. 2005)).

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DISCUSSION

¶11. At trial, the defense proffered Jury Instruction D-6, which provided:

The [c]ourt instructs the jury that if there is a fact or circumstance in this case
susceptible to two interpretations, one favorable and the other unfavorable to
the accused, and when the jury has considered said fact or circumstance with
all other evidence, and there is a reasonable doubt as to the correct
interpretation, then you, the jury, must resolve such doubt in favor of the
accused, and place upon such fact or circumstance the interpretation most
favorable to the accused.

The [c]ourt instructs the jury that if you can reconcile the evidence upon any
reasonable hypothesis consistent with the accused’s innocence, you should do
so and find him not guilty.

The State argued there was direct evidence—the wig, surveillance video, coupled with

Norton’s and Black’s testimony—of the crime. The trial court refused Jury Instruction D-6,

finding that Black’s testimony “offered direct evidence that Mr. Callahan was the man in the

video.” Callahan contends on appeal that the court’s refusal of the instruction was error.

Specifically, he asserts that because the cashier could not identify him as the robber, and

because there was no confession, the evidence was wholly circumstantial.

¶12. The Mississippi Supreme Court has held that “[d]irect evidence . . . must directly and

not by inference implicate the accused and not just show that there has been a crime.”

Burleson v. State, 166 So. 3d 499, 509 (¶29) (Miss. 2015). “[E]xamples of direct evidence

include an admission or confession by the defendant to ‘a significant element of the offense,’

or eyewitness testimony ‘to the gravamen of the offense charged.’” Id. (quoting Kirkwood

v. State, 52 So. 3d 1184, 1187 (¶10) (Miss. 2011)). Circumstantial evidence is “evidence

which, without going directly to prove the existence of a fact, gives rise to a logical inference

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that such fact does exist.” Id. (quoting Keys v. State, 478 So. 2d 266, 268 (Miss. 1985)). If

there is no confession or eyewitness testimony “to the gravamen of the offense charged, the

defendant is entitled to an instruction requiring the jury to exclude every other reasonable

hypothesis other than that of guilt before a conviction can be had.” Id. (citations and internal

quotation marks omitted).

¶13. “A two-theory instruction provides that when a jury has considered facts and

circumstances along with all other evidence, and every reasonable theory of innocence has

been excluded, the jury must resolve the case in favor of the defendant.” Evans v. State, 119

So. 3d 1084, 1086 (¶10) (Miss. Ct. App. 2013). However, “[t]o receive the two-theory

instruction, the evidence must be purely circumstantial and two reasonable hypotheses or

theories arising out of the evidence must be presented to the jury.” Johnson v. State, 235 So.

3d 1404, 1412 (¶24) (Miss. 2017).

¶14. We conclude there was no error in the trial court’s refusal of Jury Instruction D-6

because there was direct evidence. Norton was an eyewitness to the “gravamen of the

offense charged” and identified the person in the surveillance video as the robber, noting that

he was wearing dreadlocks and a cap. See Carrier v. State, 815 So. 2d 1222, 1225 (¶12)

(Miss. Ct. App. 2001) (rejecting defendant’s argument that he was entitled to a “[t]wo-

[t]heory” circumstantial instruction as there was an eyewitness to the armed robbery).

Furthermore, Black positively identified Callahan from the station’s surveillance video. She

testified that Callahan had bought a wig with dreadlocks, similar to the one worn in the

video, a couple of weeks before the robbery.

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¶15. Callahan also argues that the surveillance video failed to show a crime being

committed; thus, it failed to “capture the ‘gravamen of the offense charged.’” We find no

merit to this argument. In Dennis v. State, 271 So. 3d 722, 729 (¶30) (Miss. Ct. App. 2018),

a defendant challenged the use of a video as direct evidence, claiming that the video showed

that a crime occurred but not who committed it. This Court found no merit to the defendant’s

contention, holding, “The jury had the right to view the video footage and draw its own

conclusions. Testimony provided by various witnesses identifying [John] Dennis as the

suspect—Facebook posts, public inquiry, officers’ testimony—supported the decision of the

trial court allowing the direct-evidence instruction and denying circumstantial evidence and

two-theory instructions.” Id. As stated, Norton testified as to the events shown in the video,

clearly stating that an armed robbery had occurred, and the jury in this case was allowed to

watch the surveillance video, consider Norton’s and Black’s testimony, and draw its own

conclusions.

¶16. “If any evidence qualifies as ‘direct’ evidence, a circuit court may refuse a

circumstantial-evidence instruction.” Allen v. State, 111 So. 3d 679, 684 (¶10) (Miss. Ct.

App. 2013) (citing McInnis v. State, 61 So. 3d 872, 876 (¶13) (Miss. 2011)). Finding no

reversible error in the trial court’s refusal of the defense’s circumstantial-evidence

instruction, we affirm.

¶17. AFFIRMED.

CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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