Fair v. State

766 So. 2d 787, 2000 WL 1222237
CourtCourt of Appeals of Mississippi
DecidedAugust 29, 2000
Docket1999-KA-00645-COA
StatusPublished
Cited by4 cases

This text of 766 So. 2d 787 (Fair 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
Fair v. State, 766 So. 2d 787, 2000 WL 1222237 (Mich. Ct. App. 2000).

Opinion

766 So.2d 787 (2000)

James FAIR, Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-KA-00645-COA.

Court of Appeals of Mississippi.

August 29, 2000.

*789 M.A. Bass, Jr., Hazlehurst, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorneys for Appellee.

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

MOORE, J., for the Court:

¶ 1. James Fair, Jr. was indicted by a Copiah County grand jury for capital murder and conspiracy. Following a trial, the jury found Fair guilty of capital murder. The circuit court sentenced Fair to life without the possibility of parole in the custody of the Mississippi Department of Corrections. On appeal, Fair presents the following issues for our review

I. (A) THE TRIAL COURT ERRED IN ALLOWING HEARSAY EVIDENCE FROM A THIRD PARTY DISCUSSING STATEMENTS THAT THE VICTIM HAD MONEY ON HIS PERSON.
(B) THE TRIAL COURT ERRED IN ALLOWING HEARSAY EVIDENCE FROM A THIRD PARTY DISCUSSING STATEMENTS BY THE THREE DEFENDANTS AND NOT BEING ABLE TO IDENTIFY THE DEFENDANTS.
II. THE COURT ERRED IN ADMITTING EVIDENCE OF THE ALLEGED CONTENTS OF THE VICTIM'S WALLET TO BE PRODUCED TO THE JURY AND USED TO INFLAME THE BIAS AND PREJUDICE OF THE JURY.
III. THE COURT ERRED IN NOT GRANTING A DIRECTED VERDICT FOR THE DEFENDANT IN THAT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WAS INSUFFICIENT TO SUPPORT A VERDICT OF GUILTY.
IV. THE COURT ERRED IN ALLOWING PROSECUTORIAL MISCONDUCT AND IN FAILING TO ADMONISH THE JURY CONCERNING THE PROSECUTOR'S REFERENCE TO THE DEFENDANT AS "A KILLER" DURING CLOSING ARGUMENTS.
V. THE COURT ERRED IN SENTENCING THE DEFENDANT TO LIFE WITHOUT PAROLE IN VIOLATION OF SECTION 99-19-101(2), MISSISSIPPI CODE ANNOTATED (1972).

Finding the assignments of error to be without merit, this Court affirms.

STATEMENT OF THE FACTS

¶ 2. On September 7, 1998, Ben Tanner was dropped off at a barbeque at the Hazlehurst Villas in Hazlehurst, Mississippi. It was reported that Tanner was awaiting the return of his pickup truck. After awhile, tired of waiting on his truck, Tanner decided to leave the party on foot. Tanner was assaulted, robbed and murdered while walking down Nelson Drive from the Hazlehurst Villas.

*790 ¶ 3. Derrick Stewart, one of Fair's co-workers, testified that on the day in question, Cornell Moreland told James Fair and Carl Porter, a/k/a Carl Arnold (Porter), that he knew Tanner had some money on him and did they want to "get it off of him." Stewart testified that at that point he left the gathering and went to his apartment, having no further contact with those men that day. Stewart continued by stating that the next day, when Fair came and woke him up for work, Fair told him about the incident in question. Stewart testified that Fair told him as he was walking Tanner up the road from the barbeque the night before, Porter came up from behind and hit Tanner in the back of the head with a board, and Fair then went through Tanner's pockets. Fair had told Stewart that only he and Porter were involved.

¶ 4. Teresa Catchings, a resident of Hazlehurst Villas, testified that she was on the balcony of her upstairs apartment on the night of the barbeque, where she overheard a conversation regarding how much money a man had on him and how they were going to try "and get it off him." She further testified that she was aware that the three individuals involved in the conversation were Fair, Porter, and Moreland. However, Catchings could not identify who said what in that conversation.

¶ 5. Officer John Goza, an investigator for the Copiah County Sheriff's Department, testified that Fair, after waiving his rights, made a statement to the police on September 9, 1998. Officer Goza testified that Fair told the police he had heard Moreland and Porter talking at the barbeque about robbing Tanner. Fair had stated that later in the evening, while he was walking with Tanner up the street, Porter came up and hit Tanner over the head with a board. Officer Goza testified that in his statement, Fair stated that it was Porter who grabbed the wallet out of Tanner's pocket, and that Porter just handed him the contents of the wallet. Fair told the police the location of the contents of the stolen wallet and the weapon, which were recovered, and that his fingerprints would be on the contents of the wallet, but not on the board. Officer Goza also testified as to a statement made by Porter to the police wherein Porter admits hitting Tanner on the head with a board, but states that it was Fair who went through Tanner's pockets and retrieved the wallet.

¶ 6. Fair testified in court that on the day in question Moreland told him that he and Porter were going to rob Tanner. Fair testified that as he and Tanner were walking, he saw Porter running up behind Tanner with the board, and he told Porter not to do it. Fair also testified that it was Porter who went through Tanner's pockets, and that Porter just handed him some credit cards and other contents from the wallet. Fair denied knowing that anything was going to happen, and he testified that he did not want to be a participant in any of that night's events. In making the determination that Fair was a participant in the robbery that took place on the night of September 7, 1998, which resulted in the murder of Tanner, the jury found Fair guilty of capital murder.

LAW AND ANALYSIS

I. (A) DID THE TRIAL COURT ERR IN ALLOWING HEARSAY EVIDENCE FROM A THIRD PARTY DISCUSSING STATEMENTS THAT THE VICTIM HAD MONEY ON HIS PERSON?

¶ 7. At the trial, Derrick Stewart, a third party, testified on behalf of the State. During his testimony, he recalled a statement made by Cornell Moreland on the night in question. Stewart told the court that while at the barbeque on September 7, 1998, he was standing around with Moreland, Porter, and Fair. During their conversation, Moreland stated that he knew Tanner had some money on him and did they all want to help "get it off of him." When Stewart testified as to this statement, *791 Fair's attorney objected as to hearsay. In making his final ruling on the matter, the circuit court judge stated that the statement was not hearsay because it was not offered for the truth of the matter asserted, but to simply prove it was said. He held that it was offered to show state of mind of the declarant, and that it was part of the res gestae. Fair disagrees, asserting that the statement was inadmissible hearsay, but making no substantial argument in defense of this contention. We therefore find his argument to be without merit.

¶ 8. Hearsay is defined as "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." M.R.E. 801(c) (emphasis added). As stated above, the lower court, in determining that the statement was not being offered to prove the truth of the matter, found the statement to be admissible. In agreement with this ruling, we find the State's arguments convincing.

¶ 9. A similar ruling was found in Arnold v. State, 739 So.2d 422 (Miss.Ct.App.1999), a case dealing with check forgery. In Arnold, the defendant had paid the cashier at a grocery store, Angel King, with a check. Prior to the incident in question, a third party, Nancy Daniels, had told King "that she knew this guy [the defendant]. That she was kin to him and that at that time after we were suspicious of it we had called to see if his check was good."

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Cite This Page — Counsel Stack

Bluebook (online)
766 So. 2d 787, 2000 WL 1222237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fair-v-state-missctapp-2000.