Carter v. State

953 So. 2d 224, 2007 WL 1017757
CourtMississippi Supreme Court
DecidedApril 5, 2007
Docket2005-KA-01589-SCT
StatusPublished
Cited by11 cases

This text of 953 So. 2d 224 (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, 953 So. 2d 224, 2007 WL 1017757 (Mich. 2007).

Opinion

953 So.2d 224 (2007)

Ricky CARTER a/k/a Rickie Carter
v.
STATE of Mississippi.

No. 2005-KA-01589-SCT.

Supreme Court of Mississippi.

April 5, 2007.

*225 Pearson Liddell, Jr., attorney for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before SMITH, C.J., CARLSON and RANDOLPH, JJ.

RANDOLPH, Justice, for The Court.

¶ 1. Following a jury trial in the Circuit Court of Oktibbeha County, Ricky Carter was convicted of attempted burglary of a dwelling and sentenced, as a habitual offender, to serve a term of twenty-five (25) years in the custody of the Mississippi Department of Corrections ("MDOC"). After Carter's motion for new trial or J.N.O.V. was denied by the circuit court, he filed notice of appeal. On appeal, Carter raises the following assignments of error: (1) whether the circuit court erred by admitting Carter's prior felony convictions into evidence and (2) whether the circuit court erred in instructing the jury that it could consider Carter's prior felony convictions as motive when they had not been introduced for that purpose.

FACTS

¶ 2. Paul Buckley lived on a secluded, gravel road in Oktibbeha County, Mississippi.[1] On January 7, 2003, at approximately 3:00 p.m., Buckley arrived home early from work and sat down at the desk in his living room. Buckley's desk was not visible from any windows with the blinds open. Soon thereafter, Buckley:

heard the rear door. . . . [I]t was locked, and the doorknob was not locked. And I heard the distinct sound that it was *226 being tried and forced open but the deadbolt caught it.[[2]] I thought it might be my wife coming home . . . early. So, I walked around . . . and I saw a man going around this way quickly from the door and it looked like he was trying to look into [the house through] this [bay] window. I went to the phone . . . [b]ecause I was immediately alarmed and called 911.
Then, I came back at this door to make sure it was locked. And he came around and then got a few feet away and saw me, and he was startled. Then, he became very agitated that I was there.

According to Buckley, the accused began "talking very quickly . . . saying that he was looking for a job, and wasn't this the 16th section road? And I said, no. He said he was trying to find a plumber named David Montgomery, I think." Remaining on the line with 911, Buckley told Carter through the door that he had called the police. At that point, Carter "said a few more things about he was just looking for a job from this plumber."

¶ 3. Officer Tommy Whitfield, a deputy sheriff with the Oktibbeha County Sheriff's Department at the time of this incident, testified that as he pulled into Buckley's driveway, he "met [Carter] coming across the front yard, toward my car." At that point, Officer Whitfield:

asked him who he was. He gave me a name. I don't remember what name he gave me. And I started to call it in, and then he stopped me and told me that he had lied to me, that that wasn't his real name. He said that he didn't give me his real name because . . . he thought there was a warrant for his arrest from Clay County. He gave me his real name. I called it in and ha[d] them chec[k] it, and there was a warrant from Clay County. So, I went ahead and placed him in custody. . . .

¶ 4. Once Officer Whitfield left with Carter in custody, Buckley went into his back yard and noticed that a gate which he "never left . . . open" and only used rarely "for taking debris out of [his] garden[,]" was open. While Buckley admitted that he had not checked if the gate was open or closed when he arrived home that day, he further stated that he had probably not used the gate "for two or three months."

¶ 5. According to Officer Whitfield, while Carter was in custody, he:

told me that he had caught a ride out there with a person who he had known since high school, Ken Wilkerson [sic]. He said it was his classmate and he had given him a ride out there to try to talk to a David Montgomery about a job. I didn't know Ken personally. But I knew . . . one of the corrections officer[s] knew him. So, I had him . . . try to get in touch with Mr. Wilkinson to see if that was true. . . .

Later that afternoon, Wilkinson received a phone call from the Oktibbeha County Sheriff's Department while he was in Mobile, Alabama. He stated that he had left for Mobile around 10:00 a.m. that day and had not seen Carter. Furthermore, Wilkinson testified that while he and Carter were classmates at Starkville High in the mid-1980's, he had not seen Carter in years. Officer Whitfield then:

had the dispatcher's pul[l] up the driver records for Mississippi for David Montgomery's. There were no David Montgomery's in Oktibbeha or Clay County. I checked the . . . 911 books and the 911 center that have who owns houses in *227 Oktibbeha County, there were no David Montgomery's listed in any of the registers.

¶ 6. On July 10, 2003, an indictment was filed against Carter, stating:

Ricky Carter . . . on or about [the] 7th day of January 2003 . . . did unlawfully, wilfully, feloniously, and burglariously attempt to break and enter the dwelling house of Paul Buckley, with the intent to unlawfully, willfully, feloniously, and burglariously take, steal, and carry away the property that was then inside, and in furtherance thereof, did the following overt acts:
1. by going to the residence of Paul Buckley;
2. by attempting to open the back door of the said residence,
but was intercepted and failed therein; in violation of MCA § 97-17-23[[3]]. . . .

On November 5, 2003, Carter entered a plea of not guilty to the charge of attempted burglary. Thereafter, on February 5, 2004, the State filed a motion to amend the indictment for the purpose of "includ[ing] the Habitual Offender language pursuant to Section 99-19-81 M.C.A. (1972)[[4]]. . . ." In support thereof, the State sought to introduce evidence of six of Carter's prior convictions.

¶ 7. The jury trial commenced on July 26, 2005, in the Circuit Court of Oktibbeha County. Following testimony, the State moved to introduce evidence of Carter's prior convictions. In so doing, the State argued that:

[Carter's] prior convictions would prove to show his intent along with other factors . . . that the Court has already heard: [c]oming in through the back gate, not using the front door, things of that nature that Mr. Buckley has obviously already testified to. . . . [T]hese should be admissible to prove solely the intent of this defendant. It is not use[d] for character evidence. . . . And the Court can give the jury a limit[ing] instruction to that effect.

(Emphasis added).[5] In granting the State's motion, the circuit court determined that:

in this particular case, given the facts thus far, the intent of the defendant is greatly an issue. . . . [This evidence] is extremely probative of his intent, a necessary element, and that outweighs the *228 prejudicial effect in this case. . . . If requested, the limiting instruction will be given to the jury that they can only use prior convictions to show intent.

¶ 8. Evidence of Carter's prior convictions included:

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Cite This Page — Counsel Stack

Bluebook (online)
953 So. 2d 224, 2007 WL 1017757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-state-miss-2007.