Kirkwood v. State

53 So. 3d 7, 2010 Miss. App. LEXIS 48, 2010 WL 432254
CourtCourt of Appeals of Mississippi
DecidedFebruary 9, 2010
DocketNo. 2008-KA-01349-COA
StatusPublished
Cited by3 cases

This text of 53 So. 3d 7 (Kirkwood 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
Kirkwood v. State, 53 So. 3d 7, 2010 Miss. App. LEXIS 48, 2010 WL 432254 (Mich. Ct. App. 2010).

Opinion

BARNES, J.,

for the Court.

¶ 1. A Coahoma County jury found Thurman Kirkwood guilty of burglary of a dwelling, fleeing or eluding a law enforcement officer in a motor vehicle, possession of a firearm by a convicted felon, and grand larceny. The circuit court determined that Kirkwood was a habitual offender and sentenced him to twenty-five years for burglary, five years for fleeing a law enforcement officer, ten years for possession of a firearm by a convicted felon, and ten years for grand larceny, all in the custody of the Mississippi Department of Corrections (MDOC). All of the sentences were ordered to run concurrently without the possibility of parole or probation. Kirkwood now appeals.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. On October 11, 2007, W.C. Smith, upon returning from Memphis, Tennessee, discovered that his trailer in Friars Point, Mississippi had been burglarized. Smith has another residence, but he spends the night in this trailer approximately every other night. He also uses this trailer as an office and a shop. Smith recalled locking the trailer when he left for Memphis. When he returned, the deadbolt was broken, and the back door was open. Missing from the trailer were Smith’s four rifles, a briefcase, and two radio scanners.

¶ 3. Smith testified that earlier that day, Kirkwood, who is acquainted with Smith, came by the trailer alone, in need of gasoline money and looking for work. Kirk-wood was driving a blue and grey van. [11]*11Smith informed Kirkwood that he was going to Memphis but would be back “later on,” and gave Kirkwood ten dollars. While in Memphis, Smith received a telephone call from Kirkwood asking where Smith was and when he would return to the trailer. Reginald Smith, Smith’s nephew, testified that on October 11, he saw someone driving a blue and grey van near his uncle’s trailer.

¶ 4. Also around October 11, Roy Banks, who lives in Clarksdale, Mississippi, awoke to find his blue and grey 1991 GMC Safari van missing. Banks stated he purchased the vehicle several years earlier for $8,000. His wife’s cousin saw “some guy” driving the van in the area; so he called the police.

¶ 5. Officer Steven Poer, with the Clarksdale Police Department, received a dispatch call on October 11 to be on the lookout for Banks’s missing blue and grey van. Officer Poer saw the van being driven by Kirkwood in Clarksdale; so Officer Poer turned on his blue lights and sirens. Kirkwood did not pull over, and a high-speed chase ensued. Officer Poer testified the van reached speeds between 80 and 100 miles per hour. Kirkwood drove the van in the middle of the road, ignoring traffic signals, and nearly colliding with a tractor-trailer. Eventually, Kirkwood stopped the van, exited it, and ran into the woods, where law enforcement officers pursued him on foot. He was found hiding in a field and arrested shortly thereafter. Inside the van were four rifles, a briefcase, and some radio scanners, which Smith later identified as his. Officer Vincent Ramirez took photographs of the items, which were entered into evidence. Officer Poer testified that the only person inside the van, other than Kirkwood, was a woman. She was taken to the police station but was released because she could not eommuni-cate with law enforcement as she had a hearing impairment.

¶ 6. In November 2007, a Coahoma County grand jury returned a four-count indictment against Kirkwood for burglary, fleeing a police officer, possession of firearms by a convicted felon, and grand larceny. He was charged as a habitual offender. In January 2008, a two-day jury trial was held in the Coahoma County Circuit Court. Officer Ramirez, testifying for the State, claimed to have personal knowledge that Kirkwood was a prior convicted felon in Mississippi as he had served as an investigator in the prior case. The defense offered to stipulate to the status of Kirk-wood as a prior convicted felon. However, the State requested submission of a judgment and notice of criminal disposition into evidence, dated February 2004, where Kirkwood pleaded guilty to burglary of a building and was sentenced to seven years in the custody of the MDOC. A bench conference ensued. Over the objection of the defense to their relevancy, these documents were entered into evidence.

¶ 7. After the State rested its case, the trial court denied the defense’s motion for a directed verdict on all four counts. Kirkwood then testified in his own defense. His version of the events of October 11 are as follows. A friend picked him up in the blue and grey Safari van that morning with two other individuals. Kirkwood said his friend had had the van for a week. They all went to Smith’s trailer to buy crack cocaine.1 He described Smith as a “friend.” Kirkwood purchased the drugs from Smith, smoked them, and returned to Smith’s trailer to buy more. When Smith was not there, Kirkwood called him to see when he would return. Two of his friends became impatient and went into the trailer “to get the dope,” against Kirkwood’s advice. Kirkwood claimed he then walked [12]*12down the street while his friends entered the trailer. He saw his friends exit the trailer “with a blanket with something in it.” Kirkwood said that during the high-speed chase, he was not driving, and that his three other companions were in the van with him. He claimed that he ran from the police on foot because he panicked and was paranoid from drug usage, and he wanted to dispose of the crack cocaine in the woods. He denied touching any of the items that were stolen from Smith’s trailer, contending that his prints would not be on them.

¶ 8. During cross-examination, the State queried Kirkwood about the fact he never mentioned in his statement to police about going to Smith’s trailer to buy drugs. But, Kirkwood claimed he was “telling the truth now.” Also, he admitted that he never attempted to get his companions, who were allegedly at the scene, to testify on his behalf. However, Kirkwood complained that he gave law enforcement the names of the two individuals whom he claims were responsible for the burglary, but allegedly, the police failed to investigate them. Kirkwood maintained his innocence regarding all of the charges. The prosecution also asked Kirkwood if he was a convicted felon, and Kirkwood responded that he had “committed a lot of crimes.” The prosecutor asked him to “list a few for us.” After Kirkwood responded that he had “committed a few burglaries,” his counsel objected. The court ruled that Kirkwood, however, had “opened the door” and overruled the objection. Upon continued questioning, Kirkwood thereafter cited numerous prior convictions in Florida for burglary, aggravated assault, and felony fleeing. After both parties finally rested, the defense renewed its motion for a directed verdict, which was denied.

¶ 9. During the jury instruction conference, Kirkwood requested a circumstantial-evidence instruction because he claimed three of the four charges had no direct evidence of his guilt. The trial court judge found the State had used direct proof on at least a portion of all four charges and denied the instruction. The defense also objected to the State’s amendment of its instruction to add “dwelling” before the word “house” regarding the elements of burglary of a dwelling house. The judge overruled the defense’s objection and granted the instruction.

¶ 10. On the morning of the second day of trial, the judge met with the prosecutor, defense counsel, and Kirkwood in chambers.

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Related

Brown v. State
102 So. 3d 1130 (Court of Appeals of Mississippi, 2011)
Kirkwood v. State
52 So. 3d 1184 (Mississippi Supreme Court, 2011)
Thurman Kirkwood v. State of Mississippi
Mississippi Supreme Court, 2008

Cite This Page — Counsel Stack

Bluebook (online)
53 So. 3d 7, 2010 Miss. App. LEXIS 48, 2010 WL 432254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirkwood-v-state-missctapp-2010.