Eley v. State

19 So. 3d 124, 2009 Miss. App. LEXIS 161, 2009 WL 824191
CourtCourt of Appeals of Mississippi
DecidedMarch 31, 2009
DocketNo. 2007-KA-02220-COA
StatusPublished

This text of 19 So. 3d 124 (Eley 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
Eley v. State, 19 So. 3d 124, 2009 Miss. App. LEXIS 161, 2009 WL 824191 (Mich. Ct. App. 2009).

Opinion

GRIFFIS, J.,

for the court.

¶ 1. Carl Eley was found guilty of armed robbery and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections. On appeal, Eley argues that: (1) his motion in limine to prohibit Mark Bannister from testifying was improperly denied, and (2) the trial court erred when it denied his motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, his motion for a new trial, because a juror, Ronald Keith Cash, failed to respond truthfully to relevant, direct, and unambiguous questions during voir dire. We find no error and affirm.

FACTS

1. The Crime

¶ 2. James Stone, the victim, and Bannister were installing vinyl siding on a home on Cox Street in Jackson, Mississippi. While they were working, Eley came by several times and made conversation with them. When the two men were packing up to leave for the day, Eley came back to the house with a friend, allegedly Eric Stringer. Eley followed Stone inside the house and robbed him at gunpoint. Stringer was outside with Bannister during the robbery. After Stone gave Eley $42, Eley and Stringer left the scene.

¶ 3. Stone went outside and told Bannister what had happened, and they drove to a nearby parking lot to call authorities and their supervisor. Bannister and the supervisor rode around the neighborhood looking for the suspects. Bannister saw Stringer at a convenience store and called the police. Bannister and Stone identified Stringer as the friend of the man who had robbed Stone. A month later, police received a tip that Eley was the gunman. Stone positively identified Eley as the man who had robbed him, but Bannister could not make an identification.

2. Juror Ronald Keith Cash

¶4. During voir dire, the trial judge read the names of all witnesses, including Detective David Domino, and asked if any of the jurors knew them. The first alleged omission occurred when Cash did not indicate that he knew Detective Domino. After testifying, Detective Domino recognized Cash. He and Cash met only once, one year and eight months before this trial, when Cash was the victim of an armed robbery that Detective Domino was investigating. The following day, Detective Domino called the State to notify them, but the trial was over. The next morning, the trial judge held a post-trial hearing to discuss the matter.

¶ 5. The second alleged omission concerns the armed robbery that Detective Domino investigated. During voir dire, the trial judge asked if there was anyone who for a religious reason or moral reason could not sit in judgment of another human being, and the State asked if anyone for religious reasons or other reasons felt they could not sit in a criminal case and judge another person’s guilt or innocence.

¶ 6. At this time, two potential jurors said they did not think they could be fair in this type of case because each had a loved one who was shot during an armed robbery. Cash never indicated that there was any reason why he could not sit in this criminal case. After Detective Domino came forward and said he recognized Cash, it came to light that Cash was the victim of an armed robbery.

[127]*127¶ 7. Lastly, the State also asked if any of the potential jurors had been booked into jail. Cash said he had a DUI ten years ago. The State asked if that was all, and he said yes. After voir dire, the State asked that Cash stay to be interviewed in private. After asking him about the DUI, the State asked him if there was anything else. Cash responded:

A: I have been before sir, on something else, but I was told since it was [non-]adjudicated that, you know I did not have — you know, it was not on my record and I did not have to disclose it.
Q: You were indicted in '05 for possession of cocaine?
A: Yes, sir.

Based on Cash’s failure to be forthcoming about his arrest for cocaine possession, the State challenged him for cause as not being truthful during voir dire.

¶ 8. Eley’s counsel forcefully argued that Cash should not be excused. He explained that he tells his clients that once they complete their non-adjudication, if asked about a criminal charge, then they can say no. Eley’s counsel went on to say that he thought this was a mistake and that Cash was not trying to hide anything and was not being intentionally dishonest. The trial judge found that there could have been confusion and did not dismiss Cash for cause.

ANALYSIS

I. Was Eley’s motion in limine to prohibit Mark Bannister from testifying improperly denied?

¶ 9. Eley claims that Bannister should not have been allowed to testify because he did not have personal knowledge of the critical event, the armed robbery, and his testimony was irrelevant, confusing, and misleading. The State argues that Bannister had personal knowledge, because he was with the victim and gunman immediately before and after the robbery. The trial court overruled Eley’s motion in limine and allowed Bannister to testify about what he saw.

¶ 10. The standard of review for a trial judge’s decision to admit or exclude evidence is abuse of discretion. Graves v. State, 492 So.2d 562, 565 (Miss.1986).

¶ 11. Under Mississippi Rule of Evidence 602, a witness must have “personal knowledge of the matter” unless they are testifying as an expert. “[A] person can testify to facts within his knowledge, gained through any of his senses.” Perkins v. State, 290 So.2d 597, 599 (Miss.1974) (citing Dennis v. Prisock, 221 So.2d 706, 710 (Miss.1969)). Eley argues that Bannister lacked the required personal knowledge because he did not actually see the armed robbery occur. While it is true that Bannister did not see the robbery occur, he did see the gunman when the gunman stopped to talk to him and Stone immediately before the robbery occurred.

¶ 12. Based on his personal knowledge, Bannister described the gunman as five-foot five-inches tall, approximately twenty years old, and wearing a do-rag. While Bannister could not identify Eley in a lineup, his description matched Stone’s description of the gunman — five-foot four-inches tall and wearing a do-rag. Bannister also explained that after the robbery, he and Stone drove to a nearby restaurant because they were afraid that the men were still in the area and lived close by.

¶ 13. Eley cites Estate of Carter v. Phillips and Phillips Constr. Co., 860 So.2d 332 (Miss.Ct.App.2003) as grounds for reversal when a non-expert witness is allowed to testify when they were not present at the accident. However, in Estate of Carter, the investigating police offi[128]*128cer was not present when the accident occurred, and her testimony was found to be “either hearsay or outside the limits of lay testimony.” Id. at 337(1120). Here, Bannister testified about what he saw, not about what someone else told him they saw.

¶ 14. Bannister saw the man who had robbed Stone and gave an accurate description of him, which matched the description given by Stone. However, he was unable, a month later, to pick the man out of a lineup. There is nothing confusing or misleading about Bannister’s testimony. The trial judge did not abuse his discretion by allowing Bannister to testify about what he saw and did before, during, and after the robbery. This issue is without merit.

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Related

Perkins v. State
290 So. 2d 597 (Mississippi Supreme Court, 1974)
Estate of Carter v. PHILLIPS CONST. CO., INC.
860 So. 2d 332 (Court of Appeals of Mississippi, 2003)
McNeal v. State
617 So. 2d 999 (Mississippi Supreme Court, 1993)
Graves v. State
492 So. 2d 562 (Mississippi Supreme Court, 1986)
Dennis v. Prisock
221 So. 2d 706 (Mississippi Supreme Court, 1969)
Odom v. State
355 So. 2d 1381 (Mississippi Supreme Court, 1978)
Myers v. State
565 So. 2d 554 (Mississippi Supreme Court, 1990)
Atkinson v. State
371 So. 2d 869 (Mississippi Supreme Court, 1979)

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Bluebook (online)
19 So. 3d 124, 2009 Miss. App. LEXIS 161, 2009 WL 824191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eley-v-state-missctapp-2009.