Cleveland v. State

820 So. 2d 37, 2002 WL 485839
CourtCourt of Appeals of Mississippi
DecidedApril 2, 2002
Docket2000-KA-02046-COA
StatusPublished
Cited by5 cases

This text of 820 So. 2d 37 (Cleveland 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
Cleveland v. State, 820 So. 2d 37, 2002 WL 485839 (Mich. Ct. App. 2002).

Opinion

820 So.2d 37 (2002)

Christopher CLEVELAND a/k/a Pee Wee, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2000-KA-02046-COA.

Court of Appeals of Mississippi.

April 2, 2002.
Rehearing Denied June 25, 2002.

Edmund J. Phillips, Jr., Brooks, Robert N. Brooks, Carthage, attorneys for appellant.

Office of the Attorney General by Charles W. Maris, Jr., attorney for appellee.

EN BANC.

LEE, J., for the court.

¶ 1. Christopher Cleveland who was also known as "Pee Wee" was convicted for the crime of aggravated assault on Cleveland McCall. Cleveland has filed a timely appeal and asserts the following issue: whether the trial judge erred regarding his denial of a continuance and the admission of testimony from other witnesses pertaining to the alleged suspect, Raymond Murrell. This Court finds this issue without merit. Accordingly, we affirm the verdict and sentence of the trial court.

*38 FACTS

¶ 2. At a little after 11:00 p.m., Cleveland McCall was in his bedroom inside his mother's house. McCall explained that his mother told him there was a knock on the door. McCall went to the door and looked out of the window and saw Cleveland standing on the other side of the door. Thereafter, McCall was struck in the head with a bullet. Interestingly, a convenience store clerk testified that Cleveland was in the convenience store near where the shooting of McCall occurred at around 11:00 p.m.

¶ 3. Cleveland testified that he did not shoot McCall. Additionally, Cleveland presented testimony from his uncle. Cleveland's uncle contended that McCall had admitted that he knew Cleveland was not the shooter, instead McCall had told him it was Raymond. Cleveland's uncle testified that this meant Raymond Murrell.

¶ 4. For the purpose of this appeal, we focus primarily on the dialogue that surrounds the continuance regarding the testimony of Raymond Murrell, and whether the testimony of the witnesses who would state that Murrell said he shot McCall should have been admitted.

¶ 5. Prior to trial, Cleveland had served a subpoena on Raymond Murrell to compel his testimony. On the day of the trial, counsel for Cleveland notified the trial judge that Murrell had been served with a subpoena; however, Murrell was not present and an attachment was requested and issued. Thereafter, Cleveland announced ready subject to the presence of his witnesses which included Murrell. The trial court considered Cleveland ready and the case proceeded to trial.

¶ 6. After the State had rested its case and before the defense had begun presenting theirs, counsel for Cleveland moved for a continuance. Counsel requested the continuance until such time Raymond Murrell could be found or it was determined that he could never be found.

¶ 7. Counsel for Cleveland requested the continuance because Cleveland had issued a subpoena for Murrell and Murrell did not appear nor was he found by the sheriffs office. Counsel for Cleveland asserted that Murrell would either admit or deny that he was the one who shot McCall. If Murrell denied that he shot McCall, then Cleveland would call witnesses to impeach Murrell's testimony who would state that Murrell had told them that he had shot McCall. At this time, the trial judge ruled that the motion was premature and that if it arose again he would address it at that time. This issue did arise again. The State objected to the admission of the evidence under Mississippi Rules of Evidence Rule 8.04.

¶ 8. Counsel for Cleveland informed the trial judge that although he had not intended to use it, there was a tape of a person who would be identified as Raymond Murrell. Counsel asserted that on the tape the person identified as Murrell admitted that he had shot McCall. Counsel stated that he might use this evidence for corroboration.

¶ 9. The trial court ruled as follows: "I asked Mr. Brooks had he talked to Raymond Murrell and knew himself what he would testify to, and, Mr. Brooks said he had not, and, nothing has been offered to indicate what this witness would testify to, so I am going to overrule your motion."

DISCUSSION

I. WHETHER THE TRIAL JUDGE ERRED REGARDING HIS DENIAL OF A CONTINUANCE AND THE ADMISSION OF TESTIMONY FROM OTHER WITNESSES PERTAINING TO THE ALLEGED SUSPECT, RAYMOND MURRELL.

*39 ¶ 10. On appeal, Cleveland argues that the trial judge's refusal to grant the continuance and to admit the statement from Raymond Murrell was in error.

¶ 11. "Under this Court's standard of review the granting of a continuance is largely within the sound discretion of the trial court, and a judgment will not be reversed because the continuance is refused unless there has been an abuse of sound discretion." Hardiman v. State, 776 So.2d 723, 727(¶ 19) (Miss.Ct.App.2001) (citations omitted). Hardiman also stated:

[T]he refusal of a motion for a continuance on the ground of the absence of a witness will not be overturned on a motion for a new trial unless the witness, or his affidavit showing what his testimony would be, is offered on the hearing of the motion, or it is shown that it was impossible or impracticable to secure the attendance of the witness or to secure his affidavit.

Id. (citations omitted); see also Wilson v. State, 716 So.2d 1096, 1099 (¶¶ 8-22) (Miss. 1998). In the case at bar, Cleveland's motion for new trial did not offer the testimony of Murrell or his affidavit stating what his testimony would be. Additionally, while counsel for Cleveland had asserted at the trial level that he had served Murrell with a subpoena, he did not argue or prove before the trial judge in his motion for a new trial that "it was impossible or impracticable to secure the attendance of the witness or to secure his affidavit." We cannot reverse this case. Other than the mere assertions made during the trial by counsel for Cleveland regarding Murrell's testimony, there is no substantive proof that what Murrell would have said would have aided Cleveland. Therefore, this issue is without merit.

¶ 12. On appeal, Cleveland has asserted three reasons why the testimony should have been admitted: (1) it was offered not only to prove the truth of the matter asserted, but also to demonstrate that another person had confessed, and therefore per [MRE] 801(c) it was not hearsay, (2) the testimony by Randy Cleveland ... together with the proffer of the recorded statement of Raymond Murrell was sufficient corroboration to make the statements admissible as an exception to the hearsay rule per MRE 804(b)(3), and (3) the statements were probative of material fact and served the ends of justice per MRE 803(24). We note that the record before this Court does not disclose that Cleveland made arguments to the trial judge for the admission of Murrell's testimony based on these grounds.

¶ 13. The closest we come to finding mention of these arguments is by the State with regards to its objection to the admission of the testimony under Mississippi Rules of Evidence 804. Therefore, the issue raised by Cleveland is procedurally barred. See Evans v. State, 725 So.2d 613, 639(¶ 48) (Miss.1997). Even though these issues are procedurally barred, our review does not end here.

¶ 14. Cleveland has argued that the trial judge erred in not granting a continuance because once Murrell's presence was secured he could have taken the stand to testify. If Murrell denied making the statement that he had shot McCall, then five witnesses could have been called to impeach his testimony. In the case at bar, we take the approach that the Mississippi Supreme Court took in Blue v. State,

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Cite This Page — Counsel Stack

Bluebook (online)
820 So. 2d 37, 2002 WL 485839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleveland-v-state-missctapp-2002.