Harris v. State

908 So. 2d 868, 2005 WL 1870182
Court of Appeals of Mississippi·Decided August 9, 2005·No. 2003-KA-02576-COA·Published·Cited by 13 cases

Opinion

908 So.2d 868 (2005)

Labotchy HARRIS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02576-COA.

Court of Appeals of Mississippi.

August 9, 2005.

*870 W. Ellis Pittman, attorney for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorneys for appellee.

Before LEE, P.J., IRVING and CHANDLER, JJ.

IRVING, J., for the Court.

¶ 1. Labotchy Harris was convicted by a Lafayette County grand jury of count one, burglary of an inhabited dwelling; count two, sale of a stolen firearm; and count three, felon in possession of a firearm. He was sentenced to twenty-five years in count one, five years in count two, and three years, as a habitual offender, in count three. All sentences were ordered to run consecutively and to be served in the custody of the Mississippi Department of Corrections.

¶ 2. Aggrieved, Harris has appealed, asserting (1) that the trial court erred in not properly instructing the jury, (2) that the trial court committed reversible error in granting one of the State's jury instructions, (3) that the evidence, under the holding in Shields v. State, 702 So.2d 380 (Miss.1997), was insufficient to convict him of the charge of burglary of an inhabited dwelling, and (4) that the trial court committed reversible error in not severing the counts of the indictment.

¶ 3. Finding no error, we affirm.

FACTS

¶ 4. Carrie Scott, a chemistry laboratory manager and instructor and volunteer reserve officer with the University of Mississippi Police Department, lived at Lot 83, Oxford Wheel Estates Trailer Park, in Oxford, Mississippi. Sometime between October 29, 2001, and November 3, 2001, Scott's home was broken into, and a gym bag containing her police gear was stolen. Among the stolen equipment was a Glock 19 pistol, a bullet proof vest, extra clips of ammunition, a gun belt, and a police jacket. Scott testified that she had seen Labotchy Harris around the trailer park in the early months of 2001. Billy Cox, owner of Oxford Wheel Estates, also testified that Harris frequently came to the trailer *871 park to visit his father, Willie Burford, who lives behind Scott on Lott 84.

¶ 5. Jay Hill, investigator with the Lafayette County Sheriff's Department, testified that on December 9, 2001, he got a phone call from Jay Suppiah, and Suppiah informed him that a man identifying himself as "Derrick" had offered to sell Suppiah some computers. Hill testified that he instructed Suppiah to ask "Derrick" about purchasing a Glock 19 pistol and a bullet proof vest.

¶ 6. On December 10, 2001, Suppiah meet with Harris to discuss the purchase of a Glock pistol, a bullet proof vest, and three clips. On December 11, 2001, and on December 15, 2001, Suppiah recorded a conversation with Harris in which Suppiah negotiated the price for the computers, gun, bullet proof vest, and clips. No purchase was made on these dates because Harris did not have the bullet proof vest. On December 19, 2001, Suppiah arranged another meeting with Harris in order to purchase the vest and gun, but Harris did not show up. However, on December 30, 2001, Suppiah met with Harris and purchased the gun and three loaded magazines which were turned over to Hill on December 31, 2001. Hill further testified that Harris was not immediately arrested because Hill wanted to see if the bullet proof vest and the other stolen items could be recovered. The bullet proof vest and other stolen items were never recovered. Harris was arrested on January 17, 2002. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Failure to Properly Instruct the Jury

¶ 7. Harris first argues that the trial court erred in giving instructions S-1 and S-3. Instruction S-1 defined the elements of burglary, and Instruction S-3 advised the jury that it may infer guilt in a circumstance where, in the absent of a reasonable explanation, a person was in possession of recently stolen property. Harris also argues that the trial court should have given a proper circumstantial evidence instruction because the prosecution did not have a confession or an eyewitness. Harris maintains that the trial court's granting of S-1 amounted to a failure to submit to the jury the essential elements of the crime in that the jury was told that the State only needed to prove each and every element beyond a reasonable doubt and was not told that the State needed to exclude every reasonable hypothesis consistent with Harris's innocence before the jury could convict. Harris further argues that, despite his trial counsel's failure to object to jury instruction S-1, this Court should address this issue under the plain error doctrine.

¶ 8. The State counters that this issue is procedurally barred because Harris's counsel failed to object to the instruction and failed to offer a circumstantial evidence instruction. See Lynch v. State, 877 So.2d 1254, 1264(¶ 18) (Miss.2004); Cunningham v. State, 828 So.2d 208, 214(¶ 25) (Miss.2002). The State maintains that not withstanding the procedural bars, Harris's argument is patently wrong because it is the duty of trial counsel for a defendant to submit a circumstantial evidence instruction.

¶ 9. In a circumstantial evidence case, "the test to be applied in considering the sufficiency of proof is whether a rational fact finder might reasonably conclude that the evidence excludes every reasonable hypothesis inconsistent with guilt of the crime charged." Shields v. State, 702 So.2d 380, 382 (Miss.1997). A circumstantial instruction should only be given when *872 the prosecution cannot produce an eyewitness or a confession. McNeal v. State, 551 So.2d 151, 157 (Miss.1989). However, while a circumstantial evidence instruction may be appropriate, it remains incumbent upon the defendant to request such an instruction. Poole v. State, 231 Miss. 1, 94 So.2d 239, 240 (1957). It is not generally the obligation of the trial court to prepare and submit instructions on behalf of the State or the defendant. Samuels v. State, 371 So.2d 394, 396 (Miss.1979).

¶ 10. "Case law does not impose upon a trial court a duty to instruct the jury sua sponte, nor is a court required to suggest instructions in addition to those which the parties tender." Ballenger v. State, 667 So.2d 1242, 1252 (Miss.1995). As a general rule, "no error may be predicated upon the Court's refusal to give an instruction defense counsel never requested." Williams v. State, 566 So.2d 469, 472 (Miss.1990). Accordingly, we find no error in the trial court's failure to give a circumstantial evidence instruction.[1]

¶ 11. Harris next argues that the trial court committed reversible error in granting the State's jury instruction S-3 because S-3 amounted to a peremptory instruction.[2] Harris maintains that S-3 effectively told the jury that it may infer guilt as to not only the burglary charge, but also the charges of possession of a firearm by a convicted felon and the sale of a stolen firearm. Harris maintains that an instruction which correctly states the principles of the applicable law is set forth in Fletcher v. State, 168 Miss. 361, 151 So. 477 (1933). The instruction discussed in Fletcher reads: "The Court instructs the jury that the possession of property recently stolen is a circumstance which may be consider

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Harris v. State, 908 So. 2d 868, 2005 WL 1870182 (Mich. Ct. App. 2005).

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