Goree v. State

748 So. 2d 829, 1999 WL 619645
Court of Appeals of Mississippi·Decided August 17, 1999·No. 98-KA-00314-COA·Published·Cited by 5 cases

Opinion

748 So.2d 829 (1999)

Tommy GOREE a/k/a Tommy James Goree a/k/a Joe Worm a/k/a `Gee Tee', Appellant,
v.
STATE of Mississippi, Appellee.

No. 98-KA-00314-COA.

Court of Appeals of Mississippi.

August 17, 1999.

*830 Treasure R. Tyson, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

EN BANC.

THOMAS, J., for the Court:

¶ 1. Aggrieved by his conviction for aggravated assault in the Circuit Court of Lauderdale County, Tommy James Goree appeals on the following issues of error:

I. WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF GOREE'S GANG ACTIVITY?

II. WHETHER THE TRIAL COURT ERRED IN ALLOWING EXPERT TESTIMONY ON THE ISSUE OF GOREE'S ALLEGED GANG INVOLVEMENT?

III. WHETHER THE JURY'S VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND WHETHER THE TRIAL COURT ERRED IN DENYING THE JNOV?

¶ 2. Finding error, we reverse and remand for a new trial. Our review, however, will be limited and will address only that issue which required reversal or discussion on the merits. All other issues lack merit and do not warrant discussion.

FACTS

¶ 3. In the early morning hours of July 14, 1997, a shooting occurred in a vehicle operated by Tommy J. Goree while in the parking lot of the Dixie Pak-A-Sak convenience store on 24th Avenue in Meridian, Mississippi. Officer Michael Hoadley of the investigation's division of the Meridian Police Department was working a surveillance detail directly across the street from the Pak-A-Sak at the time of the shooting due to the fact that several armed robberies had occurred at various convenience stores in the Meridian area. Officer Hoadley testified that while he sat in surveillance at the Pak-A-Sak, he observed a late 70's model Chevrolet Nova pull into the Pak-A-Sak parking lot. Two males approached the vehicle and began to engage in conversation with the occupants. Officer Hoadley was unable to identify the persons occupying the Nova due to his angle of view but testified that during the course of events he heard what appeared to be the sound of a gunshot. Officer Hoadley then observed the two males run from the Nova towards the store, at which time the Nova sped off down 24th Avenue.

¶ 4. Dwight Horne testified that sometime between 11:00 p.m. and midnight he went to the Pak-A-Sak for some snacks and a drink. Horne testified that he saw Tommy Goree drive up and that he and a friend, Michael Jimerson, walked over to Goree's car to talk with him about nothing in particular. Horne stated that Tammy Seals was also sitting in the vehicle behind Goree in the back seat. During their conversation, Goree asked Home for money, *831 to which Horne pulled out his pockets and stated that he did not have any money to give. Goree then grabbed Horne and stated to Home that he knew who he was. Goree then pulled Horne by his shirt with both hands into the car. Horne further testified that Seals then reached over the front seat and put a gun to the right side of his head. Luckily, Horne managed to either jerked away from Goree's grip or was pulled out of the car by Jimerson just before the gun, which Seals had been holding to his head, discharged and struck Goree in the leg. Horne and Jimerson then fled from the vehicle and ran towards the store. At trial, Horne identified Goree and Seals as the persons who had assaulted him in the Pak-A-Sak parking lot on July 14, 1997.

ANALYSIS

I.

WHETHER THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF GOREE'S GANG ACTIVITY?

¶ 5. Goree argues that the testimony elicited by the State on the issue of Goree's involvement with an area gang known as the Black Gangsters failed to pass muster under M.R.E. 403 and should have been ruled inadmissible by the trial court as irrelevant and unduly prejudicial. Goree argues that the State's use of his suspected gang affiliation for purposes of proving motive in the aggravated assault of Home was without substantial foundation and amounted to pure speculation and innuendo. During presentation of the State's case-in-chief, the prosecution elicited testimony regarding Goree's gang affiliation while questioning Walter Johnson, a friend of Goree who was present at the Pak-A-Sak during the assault of Home. After timely defense objection on the admission of the gang affiliation testimony, discussion was held on the admissibility of the proposed testimony under M.R.E. 404(b).

Q. Now when you left, pulled away— well, let me ask you this. Are you and Mr. Goree and Mr. Williams and Ms. Seals, are y'all in any kind of organization together?
A. No.
Q. You're not?
A. No, sir.
BY MRS. TYSON: Objection as to relevance, Your Honor. I don't see what this has to do with anything.
BY THE COURT: Objection is overruled.
Q. Are you—
BY MRS. TYSON: Your Honor, I would ask for a motion outside the presence of the jury at this time.
BY THE COURT: You want to be heard outside the presence of the jury?
BY MRS. TYSON: Yes, Sir.
BY THE COURT: Ladies and gentlemen, if I can get you one more time to return to the jury room, I will bring you back in just a moment.
(WHEREUPON, THE JURY WAS EXCUSED FROM THE COURT-ROOM AT 3:50 P.M. AND THE FOLLOWING WAS HEARD IN THEIR ABSENCE, TO-WIT:)
BY THE COURT: All right. Mr. Prosecutor, what is the purpose for this line of questioning?
BY MR. ANGELO: I'm wondering what his connection is to the defendant. And I think that there is a significant probability that all of these individuals are in a— are gang members together, Your Honor.
BY MRS. TYSON: Your Honor—
BY THE COURT: Well, just a minute. This witness has referred to the defendant as his brother. And there was some innuendo in the last witness' testimony that the victim was grabbed around the collar and pulled inside the car with the question like you know who I am, which could have a connotation you know my name or you know what *832 my status is in the community. Where are we headed? Is this a motive for the crime, gang related?
BY MR. ANGELO: Yes, sir.
BY MRS. TYSON: Your Honor, we ask that any references to gang organizations or affiliations organizations, whatever, be— be denied that the District Attorney be allowed to mention this. I don't see what this has to do with the crime, why— if, in fact it did happen. He has already testified that they're friends. They have been old friends. I don't see that any kind of gang affiliation or organization has any relevance to this crime.
BY MR. ANGELO: He's also testified that there were no guns in the car when, obviously, there was one. And another witness, Fred Williams, says that there were two or three guns in the car, including a shotgun.
BY MRS. TYSON: He very may have not known that there were any guns in the car. To his knowledge that may be true.
BY THE COURT: You are dealing with a 4.04(b) [sic] issue in my judgment. Let me ask the prosecution this. It has got to be more than innuendo. Are you— are— you have any witness that you anticipate that's going to testify that this shooting was in some way motivated by gang-related activity?
BY MR.

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Goree v. State, 748 So. 2d 829, 1999 WL 619645 (Mich. Ct. App. 1999).

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