Hill v. State

4 So. 3d 1063, 2009 Miss. App. LEXIS 14, 2009 WL 73232
CourtCourt of Appeals of Mississippi
DecidedJanuary 13, 2009
DocketNo. 2006-KA-01966-COA
StatusPublished
Cited by3 cases

This text of 4 So. 3d 1063 (Hill 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
Hill v. State, 4 So. 3d 1063, 2009 Miss. App. LEXIS 14, 2009 WL 73232 (Mich. Ct. App. 2009).

Opinion

KING, C.J.,

for the Court.

¶ 1. Courtney Hill was convicted of the sale of cocaine and sentenced to twenty years in the custody of the Mississippi Department of Corrections. He appeals his conviction and sentence.

¶ 2. On appeal Hill states these assignments of error:

I. THERE WAS JURY MISCONDUCT SO AS TO DEPRIVE THE APPELLANT OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY.
II. THE MENTIONING OF THE PRIOR BAD ACTS OF THE APPELLANT BY THE STATE WAS SO PREJUDICIAL TO THE APPELLANT AS TO REQUIRE REVERSAL.
III. THE TRIAL COURT SHOULD HAVE SUSTAINED THE DEFENSE ATTORNEY’S MOTION FOR A CONTINUANCE WHEN HE WAS GIVEN NEW EVIDENCE ON THE DAY OF TRIAL.
IV. THE CUMULATIVE ERRORS IN THIS CASE DENIED APPELLANT HILL A RIGHT TO A FAIR TRIAL.

¶ 3. This Court finds no error and affirms the conviction and sentence.

FACTS

¶ 4. Hill was convicted of selling a single rock of crack cocaine to Kendrick Shelton, a paid informant for the Montgomery County Sheriffs Office.

¶5. On March 8, 2006, Chief Deputy David Johnson went to the home of Shelton and gave him twenty dollars and instructed him to call Hill and buy a rock of crack cocaine from him. The subsequent transaction was recorded on videotape and also witnessed by Chief Johnson, who was watching through a window. The videotape of the transaction was shown to the jury, and Chief Johnson testified at Hill’s trial, as did Shelton.

¶ 6. Hill did not testify at trial and offered no witnesses.

¶ 7. Hill was convicted of the sale of cocaine and sentenced to twenty years in the custody of the Mississippi Department of Corrections.

DISCUSSION

I. Jury Misconduct

¶8. Hill contends that Lou Ann Ervin, one of the jurors, was “believed” to be related to the State’s witness Shelton. Hill contends that Ervin is “the fiancee [of] and had children by the brother of Kenny Shelton, Kendrick Shelton.... ”

¶ 9. The voir dire of the jury has not been included in the record, so it is impossible to determine if Ervin failed to disclose any of this information prior to being selected to be on the jury. In fact, there is no information in the record on Ervin other than her being selected to be on the jury in the record and a notation on the jury list that she “knows Shelton.” The information on Ervin’s connection to a wit[1065]*1065ness in this case all comes from Hill’s brief. Even the information in Hill’s brief does not show that Ervin was related to the witness Shelton or his brother. Included in the record are the challenges for cause and the peremptory challenges. Er-vin was not challenged for cause, and the defense did not use a peremptory challenge against her.

¶ 10. “The burden is on the defendant to make a proper record of the proceedings.” Genry v. State, 735 So.2d 186, 200(¶72) (Miss.1999). Hill had the duty of making sure that the record contains sufficient evidence to support this assignment of error. Burney v. State, 515 So.2d 1154, 1160 (Miss.1987) (superceded on other grounds). In this case, none of the facts asserted by Hill can be found in or supported by the record. As such, this Court cannot decide this issue based on the assertions found only in the appellant’s brief.

¶ 11. There is no merit to this assignment of error.

II. Hill’s Prior Acts

¶ 12. Hill argues that the trial judge should have granted his motion for a mistrial when Shelton testified during his direct examination that he had purchased crack cocaine from Hill before.

¶ 13. The following exchange occurred at trial:

Q. [By the Prosecutor] How do you know Courtney Hill?
A. Because he lives in Kilmichael. I mean, I know him through there.
Q. How long have you been knowing Courtney Hill?
A. About 10 years, 10 or 12 years.
Q. All right.
A. Or since I’ve lived in Kilmichael.
Q. How did you know what his telephone number was?
A. Because I purchased crack cocaine from him before.

Based on Shelton’s comments, defense counsel then moved for a mistrial.

¶ 14. The trial judge then instructed the jurors to disregard the question and answer. The judge polled each juror to determine whether he or she could disregard the testimony and whether the testimony would be a factor in the determination of a verdict in the case. Each juror was questioned on the record and stated that the testimony would be disregarded. The judge had stated that if any juror indicated that “this was going to affect [him or her] in any way” that he would declare a mistrial.

¶ 15. In addition, the judge, at the close of evidence, also instructed the jury with instruction C-l, which stated:

You should not speculate as to possible answers to questions which the Court did not require to be answered. Further, you should not draw any inference from the content of those questions. You are to disregard all evidence which was excluded by the Court from consideration during the trial.

¶ 16. “Absent unusual circumstances, where objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.” Wright v. State, 540 So.2d 1, 4 (Miss.1989). In Hampton v. State, 910 So.2d 651, 655(¶ 9) (Miss.Ct.App.2005), this Court summarized the law on this point as follows:

The authority to declare a mistrial is left largely to the sound discretion of the trial court. Pulphus v. State, 782 So.2d 1220(¶10) (Miss.2001). Within this authority is the discretion to determine whether the objectionable comment is so prejudicial that a mistrial should be de-[1066]*1066dared. Edmond v. State, 312 So.2d 702, 706 (Miss.1975). Furthermore, when the trial court instructs the jury, we must assume that the panel followed the instruction. Puckett v. State, 737 So.2d 322(¶72) (Miss.1999). In this case, the trial court decided to eliminate all of White's testimony since White had only testified as to his pursuit and arrest of Hampton. The trial court admonished the jury to disregard White’s testimony, and we find no abuse of discretion in doing so.

¶ 17. We also find no abuse of discretion by the trial judge and no merit to this assignment of error.

III. Denial of a Continuance

¶ 18. Hill contends that the State was tardy with discovery and under Box v. State, 437 So.2d 19, 21 (Miss.1983), he should have been granted a continuance to investigate why there was a mix up in the laboratory reports on the crack cocaine.

¶ 19. Apparently, the defense counsel was given the wrong laboratory report about the crack cocaine. The report initially given to counsel was for crack cocaine from a prior sale by Hill of .10 gram of crack cocaine, rather than the .19 gram of crack cocaine that was sold by Hill to Shelton. Hill was not indicted for the prior sale of crack cocaine.

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Related

Flowers v. State
119 So. 3d 1108 (Court of Appeals of Mississippi, 2013)
Moore v. State
105 So. 3d 390 (Court of Appeals of Mississippi, 2012)

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Bluebook (online)
4 So. 3d 1063, 2009 Miss. App. LEXIS 14, 2009 WL 73232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-v-state-missctapp-2009.