McGilberry v. State

797 So. 2d 940, 2001 WL 1254897
CourtMississippi Supreme Court
DecidedApril 26, 2001
Docket98-KA-00657-SCT
StatusPublished
Cited by20 cases

This text of 797 So. 2d 940 (McGilberry v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McGilberry v. State, 797 So. 2d 940, 2001 WL 1254897 (Mich. 2001).

Opinion

797 So.2d 940 (2001)

Phillip McGILBERRY a/k/a Phillip Charles McGilberry, Jr.,
v.
STATE of Mississippi.

No. 98-KA-00657-SCT.

Supreme Court of Mississippi.

April 26, 2001.
Rehearing Denied July 27, 2001.

J. Ronald Parrish, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorneys for Appellee.

BEFORE PITTMAN, C.J., SMITH and EASLEY, JJ.

PITTMAN, Chief Justice, for the Court:

¶ 1. Phillip Charles McGilberry, Jr. was indicted on October 30, 1997, by the Jones County Grand Jury for the murder of Marquelon Shelby in violation of Miss. Code Ann. § 97-3-19(1). Prior to trial the State moved in limine to exclude evidence of an altercation that had occurred between McGilberry and Shelby two months prior to Shelby's death. The trial court granted the motion. After a four-day trial, the jury returned a verdict of guilty for the crime of murder. The trial judge subsequently sentenced McGilberry to serve life in the custody of the Mississippi Department of Corrections. The trial court denied McGilberry's motion for a new trial or, in the alternative, j.n.o.v.

¶ 2. McGilberry perfected a timely appeal seeking relief in the form of a reversal *941 of the judgment and conviction of the trial court. McGilberry also asks that this Court remand his case to the trial court or grant a new trial on the charge of manslaughter.

FACTS

¶ 3. It is undisputed that Marquelon Shelby was shot to death by Phillip Charles McGilberry, Jr. on June 13, 1997. The shooting occurred in a trailer that was Shelby's barbershop. The trailer also served as a place where people came to drink and watch television.

¶ 4. The evening of the murder, Shelby had finished cutting hair and was watching a basketball game with some of the patrons. Before the shooting occurred, McGilberry entered the trailer twice for no apparent reason. Testimony regarding whether there was an exchange of words between the two men before the shooting took place was inconsistent, although it appears that when McGilberry entered Shelby raised his arms into the air and said, "What's up? What you want to do?" before McGilberry pulled a gun from under his sweatshirt and fired at Shelby causing his death.

DISCUSSION

¶ 5. McGilberry claims that the trial court should not have excluded evidence of a prior altercation between Shelby and him. The altercation, where Shelby allegedly beat McGilberry with an iron pipe, occurred two months before Shelby was shot by McGilberry. McGilberry contends that the exclusion of the evidence adversely affected his ability to make a claim that he was acting in self-defense or to attempt to mitigate his actions from the crime of murder to manslaughter.

¶ 6. The State filed its Motion in Limine on the day of trial, and it was sustained by the trial court, ruling that the altercation was too remote in time. The trial court later reiterated during trial that the altercation was too remote in time and not relevant to the crime. Counsel for McGilberry made several attempts to introduce evidence of prior threats by Shelby to McGilberry, that Shelby was known to carry a weapon, and that there were earlier disputes between the two men in the hope of showing bad character on the part of Shelby.

¶ 7. The rule of evidence applicable to this case is Mississippi Rule of Evidence 404(a)(2) which states:

Rule 404. CHARACTER EVIDENCE NOT ADMISSIBLE TO PROVE CONDUCT; EXCEPTIONS; OTHER CRIMES
(a) Character Evidence Generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
(2) Character of Victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor;

The Comment to Rule 404(a)(2) states:

Ordinarily a victim's character is irrelevant.... Under specific circumstances, however, the character of a victim may be relevant. This would most likely arise in instances where the defendant claims that the victim was the initial aggressor and that the actions were in the nature of self-defense. In order to prove this [victim was initial aggressor or defendant's actions were in nature of self-defense] the defendant must offer evidence of an overt act perpetrated *942 against him by the victim. Freeman v. State, 204 So.2d 842 (Miss.1967)....

Miss. R. Evid. 404(a)(2) cmt.

¶ 8. This Court has stated, "[t]he general rule is that evidence of the bad character of the deceased is competent where there is doubt as to which of the parties was the aggressor." Arrington v. State, 366 So.2d 246, 248 (Miss.1979). In the present case, any aggression on the part of Shelby could not be attributed to the day of his death, but only to a fight that happened two months before.

¶ 9. McGilberry contends that he had reasonable apprehension that Shelby would cause him serious bodily injury. He also argues that the serious bodily injury was imminent. The record is clear that Shelby was not the aggressor. Testimony indicates that McGilberry did not appear to be apprehensive. When McGilberry entered the trailer and shot, Shelby had been sitting on the couch watching a basketball game. The State put on adequate eyewitness testimony which refuted McGilberry's claim of self-defense.

¶ 10. Andra Jones, an eyewitness to the shooting, testified that on the day Shelby was killed by McGilberry, Shelby was "very generous, very friendly" [towards McGilberry]. Jones further testified that "there was no reason for animosity ..." and that Shelby was "on the couch and he was very normal until he was shot." Jones's testimony was corroborated by Johnny Stewart, another eyewitness. Stewart also testified that he did not hear anything between Shelby and McGilberry prior to McGilberry shooting Shelby to death. Ralph Thompson, another eyewitness to the murder, testified that Shelby was sitting on the couch watching the basketball game when McGilberry pulled a gun from underneath his sweatshirt and shot Shelby to death.

¶ 11. The testimony shows that McGilberry planned to kill Shelby that day. McGilberry entered the trailer three times before shooting Shelby. The first two times McGilberry entered the trailer he was wearing a t-shirt. When he returned the third time, McGilberry had on a sweatshirt. Logically, the jury could infer that McGilberry put on the sweatshirt to conceal the gun he was going to use to murder Shelby.

¶ 12. Regarding motions in limine, this Court applies the following standard:

[A] motion in limine "should be granted only when the trial court finds two factors are present: (1) the material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury."

Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988) (quoting State v. Quick, 226 Kan. 308, 597 P.2d 1108, 1112 (1979)). Accord, Hageney v. Jackson Furniture of Danville, Inc., 746 So.2d 912, 918 (Miss.Ct.App.1999).

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Bluebook (online)
797 So. 2d 940, 2001 WL 1254897, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgilberry-v-state-miss-2001.