Gilmore v. State

872 So. 2d 744, 2004 WL 1049551
CourtCourt of Appeals of Mississippi
DecidedMay 11, 2004
Docket2002-KA-01869-COA
StatusPublished
Cited by2 cases

This text of 872 So. 2d 744 (Gilmore 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
Gilmore v. State, 872 So. 2d 744, 2004 WL 1049551 (Mich. Ct. App. 2004).

Opinion

872 So.2d 744 (2004)

Michael GILMORE a/k/a Michael Deshawn Gilmore a/k/a Mac, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01869-COA.

Court of Appeals of Mississippi.

May 11, 2004.

*746 William C. Trotter, attorney for appellant.

Office of the Attorney General by Jean Smith Vaughan, attorney for appellee.

Before KING, C.J., BRIDGES, P.J., and CHANDLER, J.

BRIDGES, P.J., for the Court.

¶ 1. The Grand Jury of Washington County indicted Michael Gilmore for the offenses of capital murder and sexual battery. A jury trial followed in which the jury returned a verdict of "guilty." Gilmore received a sentence of life in prison without the possibility of parole on the capital murder charge and life in prison for the sexual battery charge, with the sentences to run consecutively. Following the trial court's denial of his motion for a directed verdict, motion for a new trial and JNOV, he now appeals to this Court.

*747 STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR A J.N.O.V.

II. WHETHER THE JURY'S VERDICT WAS BASED ON THE OVERWHELMING WEIGHT OF THE EVIDENCE.

III. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE STATEMENT OF GILMORE TO THE POLICE OFFICERS ON NOVEMBER, 2, 1999.

IV. WHETHER THE TRIAL COURT ERRED IN FAILING TO SEND THE JURY QUESTIONNAIRE TO VENIRE PERSONS IN SUFFICIENT TIME TO BE OF BENEFIT TO COUNSEL.

V. WHETHER THE TRIAL COURT ERRED IN ADMITTING THE AUTOPSY PICTURES OF THE VICTIM.

VI. WHETHER THE TRIAL COURT ERRED IN THE GUILT PHASE DURING CLOSING ARGUMENTS OF THE PROSECUTION IN ALLOWING THE STATE TO PLACE THE BURDEN OF PROOF ON GILMORE TO PRODUCE EVIDENCE.

FACTS

¶ 2. Y.S., a two year old, lived with her mother, her younger brother and her mother's boyfriend, the defendant, Michael Gilmore. On November 1, 1999, the child's mother woke up and left for work around 8:50 to 8:55 a.m, leaving the two children alone with Gilmore. When the child's mother came home later that day she found the child in bed with burns on her back and immediately took her to the hospital. Police officers from the Greenville Police Department were called to King's Daughters Hospital, in Greenville, Mississippi, to investigate the death of the child, who was dead on arrival. In a statement made by Gilmore, he stated that the child was burned by hot water from a pot she pulled off the stove and that he was the only adult in the house when she was burned. He also denied doing anything to the child. The State alleges that when the mother left to go to work, the child was fine, but by noon that same day the child was dead of blunt force trauma. It is also alleged that the child had been burned with boiling water and was sexually battered.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT OR A J.N.O.V.

¶ 3. With regards to Gilmore's first issue, he argues that the trial court committed reversible error when it failed to grant his motions for a directed verdict, or in the alternative, JNOV. He claims that the evidence was simply insufficient to sustain a verdict of guilty in his case and requires a reversal. Specifically, Gilmore claims there were no eyewitnesses, Gilmore voluntarily submitted to physical tests and never fled the scene. As for the sexual battery, he claims that the police turned a blind eye to the fact that there were three adults in the house with the victim, up and until approximately 9:40 a.m. on the day of Y.S.'s death.

¶ 4. With regards to motions for directed verdict and also a JNOV, our standard of review is as follows:

Sufficiency questions are raised in motions for directed verdict and also in JNOV motions. McClain v. State, 625 So.2d 774, 778 (Miss.1993). Where a defendant moves for a JNOV or a directed verdict, the trial court considers all of the credible evidence consistent *748 with the defendant's guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from this evidence. Id. This Court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State, 503 So.2d 803, 808 (Miss.1987.)

Holmes v. State, 798 So.2d 533, 538 (¶ 18) (Miss.2001).

¶ 5. Motions for directed verdict and motions for JNOV are both for the purpose of challenging the legal sufficiency of the evidence. Noe v. State, 616 So.2d 298, 302 (Miss.1993); McClain, 625 So.2d at 778. See also Strong v. State, 600 So.2d 199, 201 (Miss.1992).

¶ 6. Our standard of review regarding the legal sufficiency of the evidence is as follows:

[W]e must, with respect to each element of the offense, consider all of the evidence—not just the evidence which supports the case for the prosecution—in the light most favorable to the verdict. The credible evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fairminded jurors could only find the accused not guilty.

Wetz, 503 So.2d at 808.

¶ 7. The court in Billiot stated that the "jury is the sole judge of the credibility of witnesses, and the jury's decision based on conflicting evidence will not be set aside where there is substantial and believable evidence supporting the verdict." Billiot v. State, 454 So.2d 445, 463 (Miss.1984). This Court may not make an assessment on the credibility of the trial witnesses as this task is one for the jury. Kinzey v. State, 498 So.2d 814, 818 (Miss.1986).

¶ 8. According to the above standard of review, this Court looks at the evidence in the light most favorable to the verdict. We do not have the responsibility of reweighing the evidence to determine which witnesses we believe had the most credibility. All of the evidence points to the fact that Gilmore committed capital murder and sexual battery. There is no merit to this issue

II. WHETHER THE JURY'S VERDICT WAS BASED ON THE OVERWHELMING WEIGHT OF THE EVIDENCE.

¶ 9. Gilmore also argues that the verdict was against the overwhelming weight of the evidence. "He argues further that even though the evidence was laid out in front of them, the jury refused to consider it [sic]."

¶ 10. When discussing whether the verdict is against the overwhelming weight of the evidence, the standard of review is abuse of discretion in failing to grant a new trial. In Montana v. State, the Mississippi Supreme Court stated:

In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Only in those cases where the verdict is so contrary to the overwhelming weight *749 of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.

Montana v. State,

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Related

Carter v. State
996 So. 2d 112 (Court of Appeals of Mississippi, 2008)
Moses v. State
893 So. 2d 258 (Court of Appeals of Mississippi, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
872 So. 2d 744, 2004 WL 1049551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilmore-v-state-missctapp-2004.