Berry v. State

179 So. 3d 84, 2015 Miss. App. LEXIS 600, 2015 WL 7273371
CourtCourt of Appeals of Mississippi
DecidedNovember 17, 2015
DocketNo. 2014-KA-00377-COA
StatusPublished

This text of 179 So. 3d 84 (Berry v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berry v. State, 179 So. 3d 84, 2015 Miss. App. LEXIS 600, 2015 WL 7273371 (Mich. Ct. App. 2015).

Opinion

IRVING, P.J.,

for the Court:

¶ 1. A Hinds County jury convicted Dequan Berry of two counts of armed robbery. The Hinds County Circuit Court sentenced him to two concurrent terms of thirty years, with eighteen years to serve and twelve years .suspended on each count, all in the custody of the'Mississippi Department of Corrections. In addition, Berry was sentenced to five years under the gun-enhancement statute,1 with the sentence to run consecutively to the armed-robbery sentences.,

¶ 2. Berry argues that the circuit court erred in (1) denying his motion for a mistrial, (2) failing to sustain his objections during the cross-examination of a witness, and (3) depriving him of a'fundamentally fair and impartial trial due to the cumulative errors that occurred during trial.

¶ 3.'We find no merit to any of Berry’s arguments. Therefore, we affirm.

[86]*86FACTS

¶ 4. On April 15, 2012, at around 10:30 p.m., Skyler Watts and Kisha Catchings returned, from Walmart to their apartment complex, the Woodlands, which is located in Jackson, Mississippi. As they exited their vehicle and headed toward a stairwell, a young man approached them with a gun. Although the young man was wearing a bandana over his face, Skyler and Kisha recognized the man as Berry, who had once lived at the Woodlands. Berry demanded money, and, initially, Skyler and Kisha stated that they did not have any cash. Berry then forced Skyler and Kisha to go upstairs to their apartment, where he continued to demand money. Eventually, they told Berry that there was cash in a tin can in their kitchen. While retrieving the money, Berry ordered them to lie on the apartment floor, and they complied. After Berry took the money, he left the apartment.

¶ 5. At trial, Berry put on an alibi defense. His first witness, Carolyn Washington, testified that on the night of the robbery, Berry was playing cards with her and Berry’s grandmother, Mamie Aaron. According to Carolyn, they played until approximately 10:30 p.m. or 11:00 p.m. Mamie corroborated Carolyn’s testimony but added that later in the evening, she and Berry had watched television.

¶ 6. Berry testified in his own defense. He denied that he had committed the armed robberies and explained that on the night of the robberies, he had played cards with Mamie and Carolyn at Mamie’s apartment. He also testified that before living with his grandmother, he had lived with his mother at the Woodlands. Berry acknowledged knowing Skyler as “Little Fly” and admitted that when he lived at the Woodlands, Skyler lived upstairs.

¶ 7. After the close of all the evidence, the jury found Berry guilty of two counts of armed robbery. He timely filed a post-trial motion challenging the sufficiency and weight of the evidence undergirding the verdict. The circuit court denied the motion, and this appeal ensued.

DISCUSSION

1. Motion for a Mistrial

¶8. Berry argues that the circuit court erred in allowing the prosecutor to comment on his right to remain silent after his arrest; During the prosecution’s closing arguments, the prosecutor commented:

They’re telling you — they pointed him out in the courtroom yesterday. They knew him and still do. Well, so we get to the point where they know him. Then[,] the witnesses come forward. Well, Ms. Aaron and Ms. Washington, they testify, “Look, well, we were playing cards.” Well, [Berry] obviously said that after he was arrested....

At this point, Berry’s counsel objected, stating that it was impermissible for the prosecution to speak on Berry’s right to remain silent. He then moved for a mistrial. The circuit judge overruled the objection and denied the motion for a mistrial, stating “that it was an appropriate closing argument remark.”

¶ 9. This Court stated in Crutcher v. State, 68 So.3d 724, 728 (¶6) (Miss.Ct.App. 2011) (internal citation and quotation marks omitted):

The State is entitled to comment on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation. The question is whether the prosecutor’s statement can be construed as commenting upon the failure of the defendant to take the stand. This approach effectively prevents the protective shield of the Fifth Amendment from being converted into a sword that cuts back on the area of [87]*87legitimate comment by the prosecutor on the weaknesses in the defense case. Prosecutorial comment must be examined in context. When the statement is not an outright violation, this Court will review the facts on a case-by-case basis. Furthermore, not every comment regarding the lack of any defense is automatically deemed to point toward the defense’s failure to testify.
If a question arises as to the prosecution’s comment on the defendant’s failure to testify, each case must be considered on an individual basis on the facts of that particular case. Even if an error occurs, such comment is deemed harmless beyond a reasonable doubt where the evidence of guilt is so overwhelming that the jury would have returned a guilty verdict in spite of the prosecutor’s comment.

Here, the prosecutor was commenting on the evidence presented at trial and was attempting to inform the jury about the statement that Berry gave after being arrested, but before the prosecutor could do so, Berry’s counsel objected. Berry’s right to remain silent was not at issue because he had waived that right and had voluntarily given a statement, which had been admitted into evidence without objection from Berry. In addition, Berry took the stand and testified in his own defense.

¶ 10. During closing arguments, it is perfectly okay for either the State or the defense to comment upon the evidence produced during the trial. After reviewing the record, we cannot find that the prosecutor’s comment was improper or that the circuit judge erred in allowing the prosecutor to proceed with his closing argument. This issue is without merit.

2, Objections During the Cross-examination of Mamie Aaron

¶ 11. Berry also argues that the circuit court erred in allowing the prosecution to elicit irrelevant testimony from Mamie during her cross-examination. During the cross-examination, the following colloquy occurred:

Q. In March 2012, how many children did your daughter Lakeisha have?
[DEFENSE ATTORNEY]: Your Hon- or, object to relevance.
THE COURT: I’ll overrule. It’s cross-examination.
* * *
A. She has six children.
* * *
Q. Do you know whether or not [Berry] was the oldest, the middle, the youngest?
A. I know[, he is] the oldest.
Q. Okay. How many boys and jhow many girls did she have? J
A. Two boys and four girls.
Q. Okay. Now when [Berry] came to live with you in March of 2012, was that the first time he had ever come to live with you?
A. On his own, yes.
Q. Okay. And tell me what you mean by “on his own.”
A.

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Related

Dedeaux v. State
519 So. 2d 886 (Mississippi Supreme Court, 1988)
Harding v. State
17 So. 3d 1129 (Court of Appeals of Mississippi, 2009)
Crutcher v. State
68 So. 3d 724 (Court of Appeals of Mississippi, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
179 So. 3d 84, 2015 Miss. App. LEXIS 600, 2015 WL 7273371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berry-v-state-missctapp-2015.