Harris v. State

907 So. 2d 972, 2005 WL 407109
CourtCourt of Appeals of Mississippi
DecidedFebruary 22, 2005
Docket2003-KA-02667-COA
StatusPublished
Cited by3 cases

This text of 907 So. 2d 972 (Harris 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
Harris v. State, 907 So. 2d 972, 2005 WL 407109 (Mich. Ct. App. 2005).

Opinion

907 So.2d 972 (2005)

James M. HARRIS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02667-COA.

Court of Appeals of Mississippi.

February 22, 2005.
Rehearing Denied May 10, 2005.
Certiorari Denied July 21, 2005.

*974 Dan W. Duggan, Jr., Brandon, attorney for appellant.

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

Before LEE, IRVING and GRIFFIS, JJ.

IRVING, J., for the Court.

¶ 1. James M. Harris was convicted of house burglary by a Rankin County jury. He was sentenced as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections. Aggrieved by the jury's verdict, Harris presents the following issues for review: the trial court committed reversible error in (1) not granting his proffered accomplice instruction, (2) permitting the State to amend the indictment during trial, and (3) allowing prior bad acts into evidence. Harris also contends that the verdict was against the overwhelming weight of the evidence. Finding no reversible error, we affirm Harris's conviction.

FACTS

¶ 2. On the morning of October 15, 2001, James and Sybil White awoke to find an unlocked back door to their home open and their car missing. Sybil testified that her purse and car keys were also missing. She further testified that there were no signs of forced entry and that she did not hear anyone come into the house on the night of the incident. An investigation of the crime led to Harris's arrest and subsequent indictment for burglary.

¶ 3. At trial, Christy Johnston and David Shawn Crabb, convicted felons who were staying with James Harris at the time of the incident, testified on behalf of the State.[1] Johnston testified that she recalled seeing a blue Acura near their house and saw Harris in the vehicle. Johnston further testified that after the incident, Harris stated that he and Timmy Ray Bowling, another man who was staying at the house, "went out somewhere to one of the neighborhoods up north" and saw a house with the garage and carport door open. Johnston testified that Harris stated that he saw a purse on the counter top, went inside the house, and after grabbing the purse and keys, took off in the homeowner's car.

*975 ¶ 4. Similarly, Crabb testified that on the morning of October 15, he saw Harris in a blue newer model Acura. Crabb testified that when he inquired as to where Harris had gotten the Acura, Harris replied that he [Harris] and Bowling had gone into a garage, and then entered the house and took the keys from a lady's purse which was on the bar. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Jury Instruction D-2

¶ 5. Harris first argues that the trial court committed reversible error when it failed to grant his proffered cautionary instruction concerning the testimony of a codefendant. Harris contends that the instruction should have been granted because witnesses Johnston and Crabb were accessories after-the-fact since they both testified that they lived in the same house with Harris, heard a conversation about where the Acura came from, and saw the Acura.

¶ 6. The State, however, contends that Harris's argument concerning this issue is waived for failure to raise it at trial. The State alternatively contends that Harris's argument lacks merit because neither Johnston nor Crabb was indicted as codefendants with Harris in the instant case; thus, there was no evidence to warrant a cautionary instruction regarding an accomplice.

¶ 7. At trial, Harris submitted instruction D-2 which stated that "the court instructs the jury that the testimony of codefendants may be received as evidence against the defendant but it should be viewed with caution." Thereafter, the following exchange occurred between the State and the Defense:

MR. EMFINGER [THE PROSECUTOR]: These people are not codefendants, your Honor.
TOWNSEND [DEFENSE COUNSEL]: Your Honor, they are charged with the same crimes as Mr. Harris, they indicted both of them. Each one of these cases, the one that Christy pled to and the one David Shawn pled to.
MR. EMFINGER: That is true. They're codefendants in the other cases, just not in this one.
THE COURT: First of all, it was submitted as a codefendant instruction. There being no codefendants, it won't be given as drafted. Unless you have anything further to argue, Mr. Townsend, I'm not inclined to give it because there's just—
MR. TOWNSEND: We would like the terminology to be changed, Judge, to say convicted felons viewed as evidence but it should be viewed with caution.
THE COURT: I don't think that's the law. Unless you've got a case, I think the jury has the right to take those things into consideration in weighing the evidence. I think it's improper for me to instruct them in that regard. Again, that would be the court commenting on the evidence. So D-2 is going to be refused.

¶ 8. As stated, the State argues that Harris is procedurally barred from raising on appeal the issue of the court's refusal to give the above-quoted instruction. The basis for the State's position is that, at trial, Harris did not object on the grounds that an accomplice's instruction should have been given, choosing instead to submit instruction D-2 which instructs on how to view the testimony of codefendants. The State further points out that Harris even tried to modify his instruction to insert the names of the witnesses in the place of the word, "codefendants."

*976 ¶ 9. We agree with the State's recitation of the record. However, it is clear in the record that Harris never withdrew instruction D-2 and his offer to modify the instruction came after the court expressed reservation about giving the instruction as written. Further, the instruction was never modified, and the court refused instruction D-2 as it was originally submitted by Harris. "[T]he refusal of instructions offered by the defendant need not be objected to in order to preserve the issue for appeal." Green v. State, 884 So.2d 733, 736 (¶ 10) (Miss.2004). Therefore, we decline to hold that Harris is procedurally barred from raising on appeal the refusal of the trial court to grant instruction D-2.

¶ 10. Although we decline to procedurally bar review of the instruction issue, we, nevertheless, find that the trial judge did not err in refusing instruction D-2. The law is clear that "a defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Ladnier v. State, 878 So.2d 926, 931 (¶ 20) (Miss.2004) (citing Heidel v. State, 587 So.2d 835, 842 (Miss.1991)). Here, there is no evidence in the record to support a codefendant or accomplice jury instruction. Neither Crabb nor Johnston was indicted with Harris as codefendants in the present case; therefore, the trial judge was under no obligation to grant Harris's proffered instruction. Thus, this argument is without merit.

(2) Prior Bad Acts

¶ 11. Harris next argues that the trial court committed reversible error in allowing a number of prior bad acts to come into evidence against him.

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Bluebook (online)
907 So. 2d 972, 2005 WL 407109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harris-v-state-missctapp-2005.