Devance v. State

768 So. 2d 319, 2000 WL 1460779
CourtCourt of Appeals of Mississippi
DecidedOctober 3, 2000
Docket1999-KA-01472-COA
StatusPublished
Cited by6 cases

This text of 768 So. 2d 319 (Devance 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
Devance v. State, 768 So. 2d 319, 2000 WL 1460779 (Mich. Ct. App. 2000).

Opinion

768 So.2d 319 (2000)

Jimmy DEVANCE, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-01472-COA.

Court of Appeals of Mississippi.

October 3, 2000.

*320 Robert Charles Stewart, Gulfport, Attorney for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE McMILLIN, C.J., LEE, AND PAYNE, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. This is an appeal from the Circuit Court of Harrison County, First Judicial District, where Jimmy Devance was convicted on July 28, 1999, of kidnaping, aggravated assault and armed robbery—all counts arising out of the same event. Devance was sentenced to twenty-five years each on the kidnaping and armed robbery charges, and twenty years on the aggravated assault charge, sentences to run concurrently. The circuit court overruled Devance's motion for a new trial or judgment notwithstanding the verdict (JNOV). Feeling aggrieved, Devance appeals his convictions.

*321 FACTS

¶ 2. Sometime around midnight on May 4, 1997, Jimmy Devance, who had worked for Mr. Onno Hill as a "fix-it" man, went to Hill's door on the pretense that Devance's truck broke down. Hill invited Devance in and gave him a glass of water while Hill got dressed. Hill and Devance then got into Hill's car, presumably to take Devance home, or back to work on Devance's truck. After Hill removed the car-theft device from his Cadillac, Devance attacked him with a knife, showed Hill a gun and told him to get in the house. Devance bound Hill to his bed with a combination of duct tape and coat hangers and robbed Hill of two guns, approximately $400 and the Cadillac. Early the next morning, after struggling for several hours, Hill managed to free himself and walked across the back yard to his daughter's house. Hill awakened his daughter and son-in-law, Wanda and Willie Adam, by screaming Wanda's name. Wanda found Hill on her patio covered in blood and remnants of duct tape wrapped around his wrists and legs. Wanda and Willie described Hill as being "scared to death," "totally upset," and "just hysterical." When asked by Wanda what happened, Hill exclaimed "that [s.o.b.] Jim Devance tried to kill me." Hill died of natural causes in January 1998, almost nine months after the assault, and eighteen months before Devance's trial.

¶ 3. Devance was arrested on October 1, 1997, in Woodland Park, Colorado, after leaving a McDonald's. He was taken into custody and interviewed, and the videotape of that interview was admitted in the trial. In the videotaped statement, Devance apparently claimed he had been drinking, and that when he came out of an "alcoholic blackout" he was inside Hill's Cadillac driving through the state of Texas.

¶ 4. The Cadillac was recovered at a cemetery in Liberty County, Texas, the same day of the assault. Detective Jim Bates of the Liberty County Sheriff's Department testified that he learned from the Gulfport Police Department teletypes of warrants and affidavits for Jimmy Devance. Detective Bates also testified that he learned of an address in Cleveland, Texas, where Devance may have been, but did not find the appellant there. Instead he found the appellant's son, Jimmy Joe Devance. Jimmy Joe Devance testified as a hostile witness admitting that his father told him and his brother that Devance (the father) had "tied up an old man, took his car and [a] gun ... robbed him in Gulfport, and left him tied up." He further testified that his father had come to Texas in the Cadillac, and gave the pistol taken from Hill to a man named Johnny Mize in exchange for a ride to the bus station. The son stated that he (the son) drove the Cadillac from Mize's house and left it in the cemetery. Additionally, the son testified that he saw some money in his father's possession that had a blood stain on it.

APPELLANT'S STATEMENT OF ISSUES

¶ 5. With this appeal, Devance raises the following issues for our review:

I. The Court erred in failing to prohibit the testimony of the victim's daughter and son-in-law regarding statements made to them by Mr. Hill. The hearsay statements did not have sufficient indicia o[f] reliability, prevented the defendant from cross-examining his accuser and should not have been admitted. [MRE 803(2)—Excited Utterance Exception]
II. The Court erred in failing to suppress the video statement of Jimmy Devance in that the defendant was under the influence of drugs and/or alcohol and could not intelligently waive his right to an attorney or comprehend what he was doing.
DISCUSSION
I. Mississippi Rules of Evidence 803(2) Hearsay exception; excited utterance.

¶ 6. Prior to the trial, the State filed a motion for hearsay exception determination, *322 and Devance filed a motion in limine to suppress the testimony of Wanda and Willie Adam regarding statements Hill made at the time of the incident. The circuit court ruled the statements admissible under Mississippi Rules of Evidence 803(2) which states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: ...
(2) Excited Utterance. 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.

In White v. Illinois, 502 U.S. 346, 356, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the U.S. Supreme Court stated, "[W]here proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied." The circuit court stated that in its opinion, the White case and MRE 803 itself, which finds the availability of the declarant immaterial, resolve the confrontation issue.

¶ 7. Devance argues that it is unclear whether Hill's statements were in reference to the defendant, claiming that the Adams and the State made that leap without testimony in support of their conclusion. Devance claims that the Adams' testimony "identified Mr. Devance by name only, a name he shared with his son, and should not have been admitted." However, no evidence exists in the record that Hill knew the son, or that the son had ever been to Hill's home. The son testified that he had lived in Cleveland, Texas, all of his life. Also, the testimony from the Adams and the Appellant in the video interview is that Devance worked for Hill at his home on numerous occasions. Additionally, if Hill had meant to refer to Devance's son, it is reasonable for a jury to infer that he would have made that clear during the nine months between the incident and his death. Furthermore, as the State asserts, this would go to the weight given to the testimony by the jury, not the admissibility.

¶ 8. Devance questions the reliability of Hill's statement in light of testimony that the seventy-seven year-old victim drank alcohol, the attack occurred in the middle of the night, and no determinative testimony was given concerning lighting conditions when the attack occurred. Wanda Adam's testimony was that Hill invited his attacker in, gave him a glass of water while Hill got dressed, and that, although the initial attack occurred in the car, Hill was forced to return into the house where he was then bound with duct tape and coat hanger wires. There was no testimony that the activities in the house were done in the dark. It would appear that Hill had plenty of time to recognize his attacker.

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Bluebook (online)
768 So. 2d 319, 2000 WL 1460779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/devance-v-state-missctapp-2000.