Boyd v. State

977 So. 2d 329, 2008 WL 732591
CourtMississippi Supreme Court
DecidedMarch 20, 2008
Docket2006-KA-00562-SCT
StatusPublished
Cited by89 cases

This text of 977 So. 2d 329 (Boyd v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyd v. State, 977 So. 2d 329, 2008 WL 732591 (Mich. 2008).

Opinion

977 So.2d 329 (2008)

Everett BOYD
v.
STATE of Mississippi.

No. 2006-KA-00562-SCT.

Supreme Court of Mississippi.

March 20, 2008.

*332 Bernard C. Jones, Jr., Laura Skeen Kuns, Jackson, attorneys for appellant.

Office of the Attorney General, by Billy L. Gore, attorneys for appellee.

Before WALLER, P.J., DICKINSON and LAMAR, JJ.

DICKINSON, Justice, for the Court.

¶ 1. The defendant was convicted of murder while engaged in the crime of drive-by shooting and shooting into an occupied dwelling. On appeal, he argues several issues and requests that his conviction be overturned. Finding no reversible error, we affirm the circuit court's disposition.

STATEMENT OF FACTS AND PROCEEDINGS

¶ 2. Everett Boyd, Michael O'Neal, L.C. Gibson, and Charles Adams were out drinking. The four men were at Boyd's house when O'Neal, who was extremely intoxicated, pulled out his pistol and shot into the air. O'Neal then returned to his house in Lexington, where he resided with his girlfriend, Glenda Hoover, and their three children. There, outside his house, he was shot and killed by a forty-five caliber handgun.

¶ 3. Holmes County Deputy Sam Chambers observed a broken bedroom window and what appeared to be "a bullet hole out in the back wall about . . . a foot or less from the ceiling." No firearms, bullets, or shell casings were found at the scene.

¶ 4. Several witnesses, including Hoover, identified Boyd as the killer. Hoover testified that, soon after O'Neal arrived home, she heard a car pulling up outside. When O'Neal stepped outside the house to investigate, an altercation ensued. Although Hoover stayed inside the house and did not see the incident, she testified she had known Boyd for eight years as O'Neal's friend, and she recognized his voice. Seconds later, Hoover heard two gunshots. A bullet entered through her bedroom window. After she heard the car drive off, Hoover went outside and discovered O'Neal, staggering and collapsing. After trying to resuscitate him, she summoned an ambulance. O'Neal died at the hospital later that night.

¶ 5. Soon after the shooting, Hoover received two calls from Boyd. She called 911 and summoned her father, Glenn Brown, and O'Neal's father, John Pilgram, to the scene. Boyd arrived at the scene shortly thereafter. Claiming he was innocent, Boyd stated that O'Neal had shot himself.

¶ 6. The next day, Brown handed over a nine-millimeter Luger handgun to the police, which he said was given to him by Pilgram. He identified it as belonging to O'Neal because he saw the gun ". . . when [Michael] first bought it." Pilgram testified *333 that, after finding the gun on the front seat of O'Neal's vehicle on the night of the murder, he had handed it to Brown.

¶ 7. Additionally, Hoover found a bullet inside her house, underneath a broken glass window, a day or two after the incident. She gave the bullet to Deputy Chambers who provided it to Brian McIntire, a forensics expert. McIntire determined the bullet was a forty-five round which could not have been fired from the nine-millimeter handgun which had belonged to O'Neal.[1] Furthermore, the entrance wound was consistent "with a large caliber projectile, including a forty-five caliber projectile."

¶ 8. Dr. Steven Hayne, a forensic pathologist, testified that, for a short distance after the bullet exited O'Neal's body, it would have been traveling with sufficient velocity "to penetrate or perforate a half-inch piece of wood."[2] Additionally, he said, the wound inflicted on O'Neal "would be consistent with the decedent in a standing position receiving a gunshot wound through the chest."

¶ 9. Both L.C. Gibson and Charles Adams testified that, at the time of the murder, they saw Boyd converse with O'Neal, get back in the car, and fire two shots out of the window. They also testified that Boyd told them that he wanted to shoot the gun in front of O'Neal's house and wake his "folks" the same way O'Neal did Boyd's. However, in their original statements to police, Gibson and Adams claimed they did not hear or see Boyd shooting a gun because they were too intoxicated. They claimed they did not tell the detectives the truth because, at the time, they were scared and did not want to get involved.

¶ 10. Boyd told Deputy Chambers that he owned a thirty-eight revolver that was in a layaway in Grenada. He added that O'Neal owned "a .9 or a .380. Maybe a .45."

¶ 11. The jury returned a verdict of guilty against Boyd for the murder of O'Neal while engaged in the crime of drive-by shooting and for shooting into an occupied dwelling. The trial court sentenced Boyd to serve a term of life imprisonment on the first count and a concurrent term of ten years' imprisonment on the second count. Boyd timely perfected his appeal, which we now consider.

ANALYSIS

¶ 12. Boyd raises the following issues: (1) Whether his conviction violates the double-jeopardy clause of the Fifth Amendment of the United States Constitution; (2) whether the state failed to prove an essential element of the crime of shooting into an occupied dwelling; (3) whether his conviction was against the overwhelming weight and sufficiency of the evidence; (4) whether the state invented and argued facts not in evidence during closing argument; and (5) whether the cumulative errors require reversal of conviction.

I.

¶ 13. Boyd argues for the first time on appeal that prosecuting and convicting him of both murder and shooting into an occupied dwelling deprived him of *334 his Fifth Amendment[3] protection from being twice put in jeopardy for the same offense. Ordinarily, this Court will not entertain non-jurisdictional assignments of error not raised prior to appeal. However, we have made exceptions for claims of significant violations of fundamental rights. For instance, in a recent case in which a double-jeopardy claim was raised for the first time on appeal, we considered the issue because "the protection against double jeopardy is a fundamental right." Graves v. State, 969 So.2d 845, 847 (Miss. 2007).

¶ 14. In keeping with our holding in Graves, and the heightened level of scrutiny afforded claims of fundamental right violations, we will fully address Boyd's claim that he was denied his constitutional protection against double jeopardy, notwithstanding his failure to raise it in the trial court. We caution trial counsel, however, that we are neither required nor inclined to do so in every case. We apply a de novo standard of review to claims of double jeopardy. Brown v. State, 731 So.2d 595, 598 (Miss.1999).

¶ 15. The constitutional protection at issue, commonly known as the double-jeopardy clause, is enforceable against the states through the Fourteenth Amendment. Its protection prohibits, inter alia, multiple punishments for the same offense. Id. at 599.

¶ 16. In double-jeopardy claims, we apply the "same elements" test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932). See, e.g., Thomas v. State, 711 So.2d 867, 870 (Miss.1998). Thus, even though a defendant may be charged with violation of two separate statutes, we look to see whether "each [statutory] provision requires proof of a fact which the other does not." Blockburger, 284 U.S. 299 at 304, 52 S.Ct. 180.

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Cite This Page — Counsel Stack

Bluebook (online)
977 So. 2d 329, 2008 WL 732591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyd-v-state-miss-2008.