Graves v. State

984 So. 2d 1035, 2008 WL 307325
CourtCourt of Appeals of Mississippi
DecidedFebruary 5, 2008
Docket2006-KM-01432-COA
StatusPublished
Cited by5 cases

This text of 984 So. 2d 1035 (Graves 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
Graves v. State, 984 So. 2d 1035, 2008 WL 307325 (Mich. Ct. App. 2008).

Opinion

984 So.2d 1035 (2008)

Gregory GRAVES, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-KM-01432-COA.

Court of Appeals of Mississippi.

February 5, 2008.
Rehearing Denied June 17, 2008.

*1037 Gary L. Honea, Magnolia, attorney for appellant.

Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. An Amite County Circuit Court jury found Gregory Graves guilty of simple assault. Graves appeals, arguing that extraneous information allegedly received by the jury during deliberations affected the verdict and that the verdict is against the weight and sufficiency of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2005, Graves and his wife of twenty years, Suzette (Susan) Graves, both life-long residents of Amite County, divorced. It is undisputed that Susan had been having an extramarital affair with Louie Wilkinson, the victim in this case, since approximately June 2005. Wilkinson was single and unemployed at the time of the affair. In January 2006, a few months after divorcing, Graves and Susan reconciled. Graves was under the impression that the affair between Susan and Wilkinson was over, but Wilkinson had continued to correspond with Susan after her and Graves's reconciliation by sending her a birthday card and giving her notes.

¶ 3. The incident at issue occurred on February 13, 2006. Susan had stopped by Wilkinson's house, unannounced, to give him a small Valentine's gift and to use the bathroom. Graves was driving by Wilkinson's home at about 2:30 p.m. when he noticed Susan's car in Wilkinson's driveway. Graves decided to pull into the driveway. The main entrance to Wilkinson's house is adjacent to the driveway, where there is a screened porch which leads into the kitchen. Graves entered Wilkinson's house, uninvited. Graves testified he wanted to talk to Wilkinson about why Wilkinson was corresponding with his ex-wife when they were attempting to reconcile. Testimony conflicts about what happened next, but an altercation between the two men ensued. The extent of the altercation was also in dispute; however, at the end of the confrontation, Wilkinson had a double compound fracture to his lower leg. Later that day, Graves was arrested. On February 23, 2006, Graves and Susan remarried.

¶ 4. In April 2006, a grand jury returned a two-count indictment against Graves for burglary of a dwelling and aggravated assault, pursuant to Mississippi Code Annotated sections 97-17-23 and 97-7-3 (Rev. 2006), respectively. At his arraignment, Graves pleaded not guilty. A two-day trial commenced in August 2006. The State offered two witnesses in its case-in-chief: Wilkinson and Officer Tommy Lee with the Amite County Sheriff's Department. Graves called four witnesses, including his wife, Susan, and himself. Two very different versions of the incident on February 13th unfolded: one version from Wilkinson and one version from Susan and Graves.

¶ 5. At trial, Wilkinson testified that Susan had come by his house, unannounced. Wilkinson saw Graves pull into his driveway and informed Susan, who was in the bathroom. Wilkinson stated both the screened porch door and kitchen door were unlocked, but closed. Susan emerged from the bathroom, and Wilkinson *1038 came into the kitchen where Graves "was standing there huffing and blowed up [sic] and very perturbed." Wilkinson claims he tried to calm Graves, but Graves, who was upset about the card and notes, "cold-cocked" him in the face. Wilkinson testified that Graves tried to choke him and stated he was going to kill him. Then, Wilkinson fell to the ground, feeling his leg "gone." However, Wilkinson admitted he told Susan during the scuffle to go "get the gun," which was kept in his bedroom. After Graves left, Wilkinson dragged himself to the bedroom to call 911 from his mobile telephone.

¶ 6. Graves and Susan, whose testimony matched, recounted a different version of the incident. Graves stated that both the porch and kitchen doors were "wide open," and he could see Wilkinson standing in the kitchen; so Graves entered the house. Graves contends that he and Wilkinson spoke, and Graves requested that Wilkinson quit corresponding with his ex-wife, as they were trying to reconcile. Wilkinson apologized to Graves for the correspondence. Susan emerged from the restroom at some point. Both Graves and Susan claim that Graves was not angry. Graves denied that he punched Wilkinson in the face, but instead he said Wilkinson warned him he had a gun in the bedroom. Graves reassured Wilkinson that he did not come there to fight, but Wilkinson started heading for the bedroom anyway. At this point, Graves and Susan admit Graves grabbed Wilkinson by the shirt to prevent him from going to the bedroom to get his gun. Graves claims Wilkinson then pushed him, and he fell over a table and some chairs, with Wilkinson falling on top of him. During this time, Graves insists Wilkinson was urging Susan to go get the gun and shoot Graves; so Susan told Graves to leave. Graves promptly left. He did not know Wilkinson's leg was severely broken until later, but he speculates it happened when Wilkinson fell over the chairs. Both Susan and Graves maintain the altercation amounted to a mere "tussle" that lasted no longer than twenty seconds.[1]

¶ 7. After both sides rested, the defense renewed its motion for a directed verdict, which had initially been raised and denied after the State's case-in-chief. The trial judge denied the motion. The jury was presented with instructions regarding the crimes of burglary of a dwelling house and aggravated assault, as well as the lesser-included offenses of willful trespass and simple assault. While in deliberations, the bailiff received a note from the jury, which read, "Define trespass?" After conferring with counsel on both sides, the judge instructed the jury to rely on the instructions already given. After deliberating nearly three hours, the jurors returned a verdict of guilty as to willful trespass and simple assault. The court polled the jury on its own motion and initiative, finding the verdict to be unanimous. However, the defense counsel told the judge, outside of the jury's presence, that the bailiff had advised him she overheard a telephone call in the jury room regarding the definition of trespass. When questioned by the judge, the bailiff corrected defense counsel that she did not hear a telephone call but heard a juror reading the definition of trespass from a book. The judge questioned the jury's foreperson about the matter; however, the judge did not receive a response about whether the jury relied on a different definition of trespass than that given in the instructions. The foreperson *1039 stated the jury arrived at the verdict of simple assault first. No further inquiry or objection was made by either counsel. Satisfied with this information, the judge excused the jurors. Defense counsel then moved to strike the trespass verdict. Out of an abundance of caution, the judge set aside the willful trespass verdict and accepted the guilty verdict for simple assault. The judge sentenced Graves to six months in the Amite County jail, with one month to serve and the remaining five months suspended, with Graves being placed on misdemeanor non-reporting probation for five years. The court also ordered Graves to have no contact with Wilkinson and to pay partial restitution of $330.18, in addition to all court costs and fees. Graves now appeals.

ANALYSIS

1.

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Bluebook (online)
984 So. 2d 1035, 2008 WL 307325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/graves-v-state-missctapp-2008.