Byrd v. State

977 So. 2d 405, 2008 WL 713626
CourtCourt of Appeals of Mississippi
DecidedMarch 18, 2008
Docket2006-KA-02044-COA
StatusPublished
Cited by2 cases

This text of 977 So. 2d 405 (Byrd 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
Byrd v. State, 977 So. 2d 405, 2008 WL 713626 (Mich. Ct. App. 2008).

Opinion

977 So.2d 405 (2008)

Nancy BYRD and Wendy Gayle (Gail) Byrd Miller, Appellants
v.
STATE of Mississippi, Appellee.

No. 2006-KA-02044-COA.

Court of Appeals of Mississippi.

March 18, 2008.

*406 Leslie S. Lee, Jackson, attorney for appellants.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before LEE, P.J., CHANDLER and BARNES, JJ.

LEE, P.J., for the Court.

FACTS

¶ 1. On the morning of May 12, 2005, Ernest Byrd was working in his yard in Bailey, Mississippi. Sometime around noon, Samantha Booth and her two-year-old stepson arrived at Ernest's home to discuss the purchase of land and a trailer *407 from Ernest. While sitting in the living room discussing the transaction, Ernest saw his estranged wife, Nancy, and his daughter, Wendy Gayle Byrd Miller, driving toward his residence. Ernest met Nancy at the front door. She told him she was there to get some of her clothes. He allowed her to enter but told her if she caused any problems he would call the sheriff's department.

¶ 2. According to Ernest, Nancy entered the house and started yelling and cursing at Samantha. Wendy remained in the vehicle parked out front. Ernest called the sheriff's department. At this point, Nancy exited the house and drove away. Ernest called the sheriff's department back to tell them not to hurry because Nancy had left, but he asked that they send a deputy to escort Samantha out. Before the sheriff's department made it to the house, Nancy had returned. Samantha testified that she called the sheriff's department when she saw Nancy and Wendy arrive. Ernest testified that he was outside putting trash in his truck when he heard a horn blowing and saw Nancy and Wendy coming back down the road toward his house. According to Ernest, Nancy and Wendy exited their vehicle, walked toward the porch, and yelled curse words at Samantha. Ernest also walked back onto the porch. Ernest claimed that at this point Wendy pulled out a pocket knife and attempted to stab him. Ernest picked up a framing hammer to defend himself. Nancy picked up an axe handle, broke the glass on the storm door, and hit Ernest in the head with the axe handle. Samantha claimed that when Nancy broke the storm door Ernest told her to run and hide. She hid in the back bathroom. Ernest subdued Nancy, and Wendy broke through the locked front door and ran inside the house. According to Ernest, Wendy grabbed a gun that he kept by his chair and ran back onto the porch with the gun. Samantha testified that she heard Nancy tell Wendy to get the gun by the chair. Samantha testified that she heard Wendy telling her mother to get out of the way and then heard a gun fire. Samantha testified that when she heard the gun fire, she ran out the back door and called 911 on her cell phone. She hid under a piece of tin in the woods and stayed there until the deputies arrived.

¶ 3. Ernest testified that Nancy told Wendy to shoot him, but he held Nancy in front of him to shield himself. Wendy fired a shot but missed. Ernest testified that he ran off the porch toward the backyard. Wendy fired two more shots but missed. Ernest hid behind a tree. He claimed that Wendy gave the gun to Nancy. He was still holding the axe handle he had taken from Nancy and threw it at her. He testified that when he did this, Nancy shot him in the arm. Ernest claimed that he tried to run but fell. He testified that Nancy tried to shoot him again, but the gun failed to fire. He played dead until the women were out of sight. He crawled into the woods and hid there until law enforcement arrived.

¶ 4. When deputies arrived, Samantha emerged from the woods and told Deputy David Taylor that Nancy and Wendy had shot Ernest and that he was hiding in the woods. Deputy Taylor called for Ernest, and he came out of the woods. Deputy Taylor found the gun in the house with four spent rounds. Deputy Taylor also found the axe handle, but he did not find the knife allegedly used by Wendy. Deputy Taylor did not check the gun for fingerprints or conduct a gunpowder residue test.

¶ 5. Wendy told a different story of the events that transpired on May 12. Wendy testified that she went with her mother to Ernest's house to collect some of her mother's belongings. Ernest met them on *408 the porch and asked them to return after Samantha left, which would be in about twenty minutes. When they returned, Ernest became upset because they did not wait long enough for Samantha to leave. According to Wendy, Ernest grabbed an axe handle and a hammer and began swinging at them. Wendy became upset when Ernest hit Nancy in the leg with the axe handle. Wendy testified that Ernest broke her thumb and injured her arm with the hammer. Wendy lunged at Ernest, and they both fell down the steps. At some point, Ernest dropped the hammer. According to Wendy, she and Ernest were in the front yard, and Nancy was on the porch when Samantha came from around the house and began firing a gun. Wendy testified that Ernest was telling Samantha to shoot Wendy, but Samantha shot Ernest instead. Samantha, however, testified that she never touched the gun. Wendy also denied ever using a gun or any other weapons. Wendy stated that Samantha then ran behind the house, and Wendy broke down the front door to get inside to call 911. She testified that she then went out back to check on her mother and father, but she could not find her father. Wendy testified that she was helping her mother to the truck when deputies arrived. She testified that she was in fear of Samantha. Samantha testified in rebuttal that on May 11, the day before Ernest was shot, Wendy allegedly forced Samantha off the highway and then cursed at her and threatened her. Wendy was treated on the afternoon of the shooting for bruises and a broken thumb.

PROCEDURAL HISTORY

¶ 6. Wendy and Nancy were charged with aggravated assault. Wendy was also charged with being a felon in possession of a firearm. Nancy and Wendy were tried jointly in the Circuit Court of Kemper County. The jury found Nancy and Wendy guilty on all counts. Nancy was ordered to serve a term of fifteen years in the custody of the Mississippi Department of Corrections with twelve years suspended and five years to serve on post-release supervision. On Count I, aggravated assault, Wendy was ordered to serve a term of fifteen years with twelve years suspended and five years post-release supervision. On Count II, felon in possession of a firearm, Wendy was ordered to serve three years with two years suspended and five years post-release supervision. The sentence in Count II was ordered to run consecutively to the sentence in Count I, with the post-release supervision for both counts ordered to run concurrently.

¶ 7. Nancy and Wendy filed motions for judgment notwithstanding the verdict and a new trial. Their motions were denied by the trial court.

¶ 8. Nancy and Wendy now appeal citing the following issues: (1) the trial court erred in allowing Wendy to be cross-examined on comments made by her attorney during opening argument; (2) the trial court erred in allowing the State to comment on the defendants' rights to remain silent; and (3) the verdict was against the overwhelming weight of the evidence.

¶ 9. Finding no error, we affirm.

DISCUSSION

I. DID THE TRIAL COURT ERR IN ALLOWING WENDY TO BE CROSS-EXAMINED ON COMMENTS MADE BY HER ATTORNEY DURING OPENING ARGUMENT?

¶ 10. Nancy and Wendy argue on appeal that they were denied a fundamentally fair trial because of statements made by counsel during opening and closing arguments and on cross-examination.

*409 ¶ 11.

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Bluebook (online)
977 So. 2d 405, 2008 WL 713626, Counsel Stack Legal Research, https://law.counselstack.com/opinion/byrd-v-state-missctapp-2008.