Hurt v. State

757 So. 2d 1102, 2000 Miss. App. LEXIS 220, 2000 WL 559243
CourtCourt of Appeals of Mississippi
DecidedMay 9, 2000
DocketNo. 1999-KA-00725-COA
StatusPublished

This text of 757 So. 2d 1102 (Hurt 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
Hurt v. State, 757 So. 2d 1102, 2000 Miss. App. LEXIS 220, 2000 WL 559243 (Mich. Ct. App. 2000).

Opinion

IRVING, J.,

for the Court.

¶ 1. Marcellus Hurt was indicted and convicted of taking possession of or taking away a motor vehicle belonging to Dorothy Jenkins in violation of Miss.Code Ann. § 97-17-42 (Supp.1999). He was sentenced to serve five years in the custody of the Mississippi Department of Corrections with one and a half years suspended and three and a half years to serve. Three issues are raised on appeal of that conviction and sentence. Those issues, taken verbatim from his appeal brief, are:

A. THE COURT ERRED IN ALLOWING HEARSAY TESTIMONY CONCERNING A POLICE REPORT.
B. THE COURT ERRED IN GRANTING THE STATE’S MOTION IN LIMINE, DENYING THE DEFENDANT THE RIGHT TO CROSS EXAMINE THE POLICE OFFICER CONCERNING A STATEMENT MADE BY THE DEFENDANT TO LAW ENFORCEMENT OFFICERS.
C. THE COURT ERRED IN DENYING JURY INSTRUCTION D-l, THE PEREMPTORY INSTRUCTION.

Finding no reversible error, we affirm.

Facts

¶ 2. The facts, according to the State’s proof, are as follows: Alan Dunigan, a member of the Tate County Sheriffs Department, was on routine patrol in the town of Senatobia at about 2:30 a.m. on the morning of August 19, 1998. ' He observed what appeared to him to be suspicious behavior on the part of the driver of a white Buick and the driver of a blue mini van. He followed both vehicles for a short distance and eventually stopped the white Buick which was being driven by Hurt. There was an individual in the passenger seat of the car.

¶ 3. Dunigan noticed that the Buick had no steering wheel and that the steering column was damaged on the side opposite the key insertion device. Dunigan also saw broken glass on the back seat and a shattered rear window on the passenger side of the automobile. He radioed an inquiry to dispatch as to whether the Buick had been reported stolen. He received a response that there had been no report of the car being stolen. The vehicle had a Northwest Community College parking decal, so Dunigan contacted Northwest’s campus police and made the same inquiry. Their initial response was also that there had been no report of the vehi[1104]*1104cle being stolen. Dunigan asked the campus police to perform a check of the decal number to determine to whom the decal had been issued. In the meantime, Duni-gan placed Hurt and his passenger under arrest. After Dunigan took Hurt and his passenger into custody, but while he was still on the roadside where he had stopped the vehicle, he received word that the car had just been reported stolen to the campus police. The case was turned over to the Northwest campus police. Hurt gave a self-serving and exculpatory statement the following day.

¶4. Jacova Jenkins was a student at Northwest Community College in Senato-bia. His mother, Dorothy Jenkins, was the owner of the white Buick being driven by Hurt. Jacova used the car during the week while he lived on campus. Tina Davidson, also a student at Northwest and a personal friend of Jacova, saw the car being driven away from Jacova’s dormitory parking lot at around 2:30 a.m. on the morning in question. She felt certain that Jacova would not be out that time of morning, so she called him. When Jacova answered the phone, she told him what she had seen.

¶ 5. Jacova testified that he received a telephone call from Tina Davidson between 2:30 and 3:00 a.m. informing him that she saw the car being driven away from his dormitory. He went outside and discovered that the car was indeed missing from the parking lot where he had left it. He then dressed and went immediately to the campus police and reported the theft. Ja-cova did not know Hurt and did not give Hurt permission to drive the car that morning, or any other time.

¶ 6. A1 Dodson, the night supervisor with Northwest campus police, was on duty during the early morning hours of the day in question. He was working a shift that began at 7:00 p.m. and ended at 3:00 a.m. At approximately 2:30 a.m., he received a radio call from the sheriffs office inquiring whether there had been any report of a white Buick having been stolen on campus. Dodson responded that there had been no such report. He was asked to check the number on the Northwest parking decal on the Buick to find out to whom it had been issued. Dodson learned that the decal had been issued to Jacova Jenkins.

¶ 7. A short time later, Jacova came into the office to report the theft of the car. Dodson was the individual to whom Jacova spoke. Dodson directed campus patrolman Johnny Threatt to prepare a written report of Jacova’s complaint. Dodson was provided a copy of the offense report while he was on the stand. He testified that the report contained a notation at the top of the form that Jacova came into the office and reported the theft at 2:40 a.m. and a notation at the bottom of the form that the report was prepared at 2:50 a.m. Counsel for Hurt objected that it was hearsay for Dodson to testify about the contents of the report when Dodson had not actually prepared the report. The court overruled Hurt’s objection and held that the report was being offered as a' business record exception to the hearsay rule.

¶ 8. At the close of the State’s case-in-chief, Hurt moved for a directed verdict of acquittal on the ground that the State had failed to prove each and every single element of the crime charged beyond a reasonable doubt. The motion was denied. Hurt rested without testifying or presenting any witnesses in his own behalf.

Analysis of Issues Presented

I. Hearsay and the police offense report

¶ 9. Hurt contends that the testimony of Dodson regarding the contents of the police offense report prepared by Threatt was blatant hearsay and a violation of his constitutional rights. He argues that in allowing Dodson to testify regarding the contents of the report when he did not prepare it was a violation of M.R.E. 803(6) which provides as follows:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: [1105]*1105(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.(emphasis added).

¶ 10. In Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996), the Mississippi Supreme Court announced that the standard of review for the admissibility of evidence rests within the discretion of the trial court, but that a determination of whether the trial court employed the proper legal standards in its fact findings governing evidence admissibility is also necessary.

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Related

Jones v. State
342 So. 2d 735 (Mississippi Supreme Court, 1977)
Harrison v. State
722 So. 2d 681 (Mississippi Supreme Court, 1998)
Peterson v. State
671 So. 2d 647 (Mississippi Supreme Court, 1996)
Tigner v. State
478 So. 2d 293 (Mississippi Supreme Court, 1985)
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757 So. 2d 1102, 2000 Miss. App. LEXIS 220, 2000 WL 559243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hurt-v-state-missctapp-2000.