Burdette v. State

110 So. 3d 296, 2013 WL 1235910, 2013 Miss. LEXIS 75
Mississippi Supreme Court·Decided March 28, 2013·No. No. 2012-KA-00447-SCT·Published·Cited by 29 cases

Opinions

LAMAR, Justice,

for the Court:

¶ 1. Derrick Burdette was indicted and tried in the Circuit Court for the Second Judicial District of Panola County for the murder of Herman Smith. The jury acquitted Burdette of murder but found him guilty of the lesser offense of manslaughter. Burdette was sentenced to a twenty-year term in the custody of the Mississippi Department of Corrections (MDOC), to run consecutively with a sentence he already was serving for an unrelated offense. On appeal, Burdette asserts two assignments of error: (1) that the jury verdict was against the overwhelming weight of the evidence, and (2) that his Confrontation Clause rights were violated at trial. We find that the jury verdict was not against the weight of the evidence. While we do find error amounting to the violation of Burdette’s right to confront the witnesses against him, the error did not result in a manifest miscarriage of justice. Accordingly, we affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS IN TRIAL COURT

¶ 2. On the evening of January 26, 2011, Kenyada Smalley, a resident of Still Trailer Park in Batesville, called the police to report a shooting at the trailer park. The victim, Herman Smith, who used the nickname “Old School,” was the boyfriend of Kenyada’s mother, Cynthia Smalley.1 Officer Jeremy Haley of the Batesville Police [298] Department (BPD) was first on the scene. When Officer Haley arrived, Cynthia was leaning into a gray Pontiac in which Smith was sitting on the driver’s side; Smith had suffered several gunshots and was conscious and alert, but apparently in great pain. From the record, it is unclear into which side of the car the officers observed Cynthia leaning.

¶ 3. BPD Lieutenant Ruby Myers arrived on the scene next and encountered Smith, who was still sitting in the gray Pontiac, having suffered several gunshots. Smith was clearly in pain, but remained alert and conscious. When Myers asked Smith who had shot him, he stated that it was a person called “Scooter,” and Smith further identified this person as Derrick Burdette, the defendant. Myers recorded this conversation with her “body mike,” and a recording of this exchange later was played for the jury. Several shell casings were found on the ground near a passenger door of the car, on the driver’s side floorboard, and in the center console of the car. No weapons or drugs were found inside the car.2 Cynthia was still present at the vehicle when Myers arrived. By the time of trial, Cynthia had passed away. BPD Detective George Williford collected shell casings and bullets that he and other officers found at the scene, and these were entered into evidence. All of the casings were determined to be .380 casings. Willi-ford found no weapon or drugs in Smith’s car, but he agreed with defense counsel that such items potentially could have been removed before the police arrived.

¶ 4. Smith was taken by ambulance to the hospital, where Murdis Smith, the victim’s mother, was permitted to talk to him. Smith informed his mother that “Scooter” had shot him, and she so testified at trial. Smith also spoke to Detective Williford and informed him that he had been shot by “Scooter;” he was able to identify a photograph of Burdette. That night, Smith’s condition declined and he died. Dr. Paul McGarry, an expert in forensic pathology, performed an autopsy on Smith’s body. At trial, he testified that the cause of death was “continuing internal bleeding due to multiple gunshot wounds.” Dr. McGarry also recovered three bullets from Smith’s body, which he transferred to Detective Williford, who entered them into evidence.

¶ 5. Four individuals, Robert Walker Jr., Shawanda Rushing, Latisha Curry, and Tim Curry,3 all initially denied having been at the scene of the crime that night. All four later admitted having ridden to the trailer park from Crenshaw with Burdette, and all four testified for the State at trial. Three of the four used drugs on the trip; the exception was Latisha, who was seven months pregnant. All agreed that the purpose of the trip was to buy drugs or pills from Smith. Walker accompanied Burdette to meet Smith. Walker testified that he got to Smith’s car first, and then Burdette shoved him out of the way and shot Smith, stating “I told you I was going to get you.” Walker did not notice a gun on Smith, and he identified Burdette’s pistol as chrome with a black handle. Latisha testified that she heard gun shots and saw that Burdette’s eyes were red when he returned to the vehicle. Latisha asked Burdette if it was him they had heard shooting, and he answered “yes.”

¶ 6. Anthony and Fred Curry,4 Bur-dette’s brothers, were not present at the [299] scene but were both aware that Burdette recently had purchased a pistol. Fred stated that, the day of the shooting, Bur-dette had left the courthouse in Sardis and had stated nonchalantly that “he was going to kill somebody,” and Fred had believed him to be kidding.5 The day after the shooting, Burdette called a family meeting and announced that he had killed someone, but he did not make any claim at this meeting that he was defending himself at the time of the killing. Burdette asked Anthony to help him dispose of the weapon, but Anthony refused. Fred eventually disposed of the weapon by transporting it to Burdette’s cousin, Kendrick Harris, also known as “Ken,” in Water Valley. Detective Williford eventually was able to recover this weapon, a Sig Sauer nine-millimeter handgun, from Water Valley.

¶ 7. The day following the shooting, January 27, 2011, Deputy Earl Burdette6 took Derrick Burdette into custody, and he was charged with the murder of Herman Smith. Burdette initially made a statement that he was not involved in the shooting and was not even in Batesville at the time. On February 10, 2011, Burdette for the first time admitted to the police, via a written letter, to having shot Smith. Bur-dette stated that Smith had a weapon and that Smith had drawn this weapon on him first, and that Burdette had responded in self-defense by pulling his own weapon and shooting Smith.

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Burdette v. State, 110 So. 3d 296, 2013 WL 1235910, 2013 Miss. LEXIS 75 (Mich. 2013).

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