Carter v. State

722 So. 2d 1258, 1998 WL 800124
CourtMississippi Supreme Court
DecidedNovember 19, 1998
Docket97-KA-00760-SCT
StatusPublished
Cited by70 cases

This text of 722 So. 2d 1258 (Carter 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
Carter v. State, 722 So. 2d 1258, 1998 WL 800124 (Mich. 1998).

Opinion

722 So.2d 1258 (1998)

Alberta CARTER
v.
STATE of Mississippi.

No. 97-KA-00760-SCT

Supreme Court of Mississippi.

November 19, 1998.

*1259 George T. Dickerson, Waynesboro, Kathryn N. Nester, Jackson, Attorneys for Appellant.

Office of the Attorney General By Pat Flynn, Jackson, Attorney for Appellee.

Before SULLIVAN, P.J., McRAE AND SMITH, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Alberta Carter was indicted by the Wayne County Grand Jury during the January Term 1997, for the murder of Willie Mildred Hundley. On May 8, 1997, the jury found Carter guilty as charged, and Circuit Court Judge Robert W. Bailey sentenced her to the mandatory life sentence. Carter appeals to this Court, assigning as error the trial court's admission of hearsay testimony and prior criminal conduct, refusal of a lesser included offense instruction on manslaughter, the prosecutor's misinforming the jury on the law during closing argument, and denial of her motions for a new trial or JNOV. Finding no merit to Carter's claims, we affirm her conviction and sentence in this case.

STATEMENT OF THE FACTS

¶ 2. On Thanksgiving Day, November 28, 1996, Alberta Carter, her boyfriend Melvin Luke, her brother Jerry Cooley, and his girlfriend Willie Mildred Hundley were riding around in Cooley's brother's truck drinking bootleg whiskey and beer. Cooley and Carter got into an argument, because Cooley wanted some of Carter's whiskey, and she wouldn't give him any.

¶ 3. Three or four minutes later, they pulled the truck over to the side of the road for Carter and Hundley to go to the bathroom. The two women went to the back of the truck while Cooley and Luke stayed inside. Cooley testified that he heard Hundley yell, "Alberta!" and heard a gunshot, so he went to the back of the truck to investigate. When he approached, he saw Carter put something in the front of her pants that he thought was a gun and pull her shirt over it. Carter testified that she was only tucking her shirt into her pants and didn't have a gun. Cooley said that Carter told him that someone had been shooting at her and Hundley. He testified that Carter looked at him and said, "bitch," and then went back to the truck and drove away. Carter denied calling Hundley a bitch and said she didn't remember telling Cooley that someone had been shooting at them. She testified that when she and Hundley got out of the truck, they got into an argument, because Hundley wanted to go back into town to get more to drink, and Carter didn't want to drive back to town. When Carter and Luke drove off, Cooley found Hundley lying in the bushes and discovered that she'd been shot.

*1260 ¶ 4. Luke testified that he was drunk and asleep, woke up when he heard gunshots, but then went back to sleep again because he'd been drinking too much. He said that when they drove off, Carter told him that she had killed the girl. Carter denied killing Hundley, and denied telling Luke that she'd shot anyone. Her story was that Cooley and Hundley were alive and well when she drove away. Luke also testified that although he didn't see her with a gun that day, he knew that Carter regularly carried a .38 caliber pistol, the same caliber of the bullet recovered from Hundley's body.

¶ 5. Cooley flagged down a passing motorist, Darryl Williams, and told him that "his wife" had been shot. Williams stopped and called 911. While on the phone with the emergency dispatcher, Williams asked Cooley what had happened, and he replied, "My crazy-ass sister shot my wife." Deputy Sheriff Michael Patton was called to the scene, arriving about ten minutes after the shooting. When Deputy Patton asked Cooley who had shot Hundley, Cooley told him that his crazy sister shot her. Sheriff Farrior also questioned Cooley at the hospital that night around 7:00 about what had happened, and Cooley told him that Carter had shot Hundley. Cooley was intoxicated when the sheriff spoke with him that night, but his statement the next morning was substantially the same as his statement the night before and his testimony at trial.

¶ 6. Carter turned herself in at 10:00 a.m. the next morning. She gave a statement to Sheriff Farrior claiming that she and Luke left Cooley and Hundley alive on the side of the road between 8:30 and 9:00 p.m. However, Hundley died at the hospital at approximately 6:45 p.m. At trial, Carter explained that she had just been confused about the time. Carter denied shooting Hundley and said that she turned herself in, because she'd heard that the police were looking for her in connection with the murder.

¶ 7. Carter denied ever owning, possessing, or firing a .38 caliber pistol. Carter further denied ever shooting at anyone at her mother's house, particularly with a .38, although she testified that she had fired a .22 outside at her mother's house. She also stated that her mother had accidentally shot her before. Sheriff Farrior testified on rebuttal that he investigated a shooting in July of 1996, at Carter's mother's house between Carter and her mother in which a .38 caliber and a .22 caliber were fired.

¶ 8. Based on the above testimony, the jury found Carter guilty of murder. Judge Bailey sentenced Carter to the mandatory term of life imprisonment, and Carter appeals to this Court.

STATEMENT OF THE LAW

I.

THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE HEARSAY TESTIMONY.

¶ 9. Carter argues that the testimony of Darryl Williams and Deputy Patton as to Cooley's statements that his crazy sister shot Hundley were inadmissible hearsay. "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Miss. R. Evid. 801(c). The testimony in question falls under the definition of hearsay, making it inadmissible unless it falls under a recognized exception. Miss. R. Evid. 802. The State's position is that Cooley's statements were admissible under the excited utterance exception. An excited utterance is "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Miss. R. Evid. 803(2). Carter responds that these statements do not qualify as excited utterances, because they were prompted and not spontaneous, because Cooley had time to cool off before making the statements, and because Cooley did not witness the shooting.

¶ 10. Spontaneity is "the essential ingredient" to the underlying theory supporting admission of an excited utterance. Davis v. State, 611 So.2d 906, 913-14 (Miss.1992) (quoting Miss. R. Evid. 803(2) cmt.). Here, Cooley's statements that Carter shot Hundley were prompted by Williams's and Deputy Patton's questions about what happened. However, "under the excited utterance exception *1261 the fact that questions are asked, while relevant to spontaneity, does not ipso facto demonstrate a lack of spontaneity in every case." Sanders v. State, 586 So.2d 792, 795 (Miss.1991). Where the excited utterance is prompted by a simple question, even from an officer, such as "What happened?" or "What's wrong?" we have still found the statement to fall under the exception. Id.; Davis, 611 So.2d at 908, 913-14.

¶ 11. Carter also argues that Cooley had time to cool off before making the statements, removing them from the definition of excited utterances. The key question is whether Cooley was still in an excited state when he made the statements. Miss. R. Evid. 803(2) cmt.

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Cite This Page — Counsel Stack

Bluebook (online)
722 So. 2d 1258, 1998 WL 800124, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-state-miss-1998.