Miller v. State

801 So. 2d 799, 2001 WL 1572765
Court of Appeals of Mississippi·Decided December 11, 2001·No. 2000-KA-01052-COA·Published·Cited by 7 cases

Opinion

801 So.2d 799 (2001)

Sullivan MILLER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2000-KA-01052-COA.

Court of Appeals of Mississippi.

December 11, 2001.

*800 Jack R. Jones, III, Southaven, Kenya D. Brooks, Attorneys for Appellant.

Office of the Attorney General, by W. Glenn Watts, Jackson, Attorney for Appellee.

Before KING, P.J., BRIDGES, and IRVING, JJ.

IRVING, J., for the Court:

¶ 1. Sullivan Miller was convicted of aggravated assault by a DeSoto County jury and sentenced to twenty years with five years suspended. He appeals his conviction and sentence and argues (1) that the trial court erred in commenting, during voir dire, on his right to remain silent, (2) that the verdict of the jury is against the overwhelming weight of the evidence and is not legally supported by sufficient proof, (3) that the prosecutor improperly commented to the jury on "explained flight," and (4) that the trial court erred in denying an instruction pertaining to identification testimony. We are not persuaded by Miller's arguments and affirm his conviction and sentence.

FACTS

¶ 2. On December 3, 1998, Sullivan Miller and Louis Thompson were both employees of Computer Science Corporation (CSC), an IBM subcontractor. However, CSC's contract with IBM was due to expire at the end of December. CSC's contract would then be taken over by Tascorp. Thompson was the project manager for CSC, and Miller was a peripheral specialist. Tascorp had asked Thompson to make recommendations as to which employees should be retained by Tascorp. Thompson had recommended that Miller not be retained. On December 3, 1998, Miller was informed by human resources personnel from Tascorp that due to specific recommendations, his employment would terminate at the end of December 1998. However, Miller did not return to work after December 3, 1998.

*801 ¶ 3. On the night of December 3, Thompson heard a knock at his door. He went to the door and inquired as to the identity of the person knocking. An individual responded that he was having car trouble. When Thompson opened the door, two men were standing in front of his door, and a third man, who Thompson identified as Miller, was at the corner of the house in a crouched position with a gun in his hand. According to Thompson, Miller came around to the door and got close enough to place the gun near Thompson's chest. Miller grabbed Thompson by the arm and fired two shots, but Thompson moved quickly to the side. Fortunately, the two shots missed. However, Miller fired a third shot which struck Thompson in the arm.

¶ 4. Thompson recognized the two men at his door as associates of Miller. He testified that they had been to his house earlier in the year in the company of Miller. Thompson testified that although the lights were off in his home, he got a good look at Miller. He testified that the attack occurred in the area just inside his opened door and that he was face to face with Miller. According to Thompson, the night sported a full moon and clear skies. A street light across the street shined directly in his front door, providing good visibility.

¶ 5. Melvin Johnson, second shift supervisor for Tascorp, testified that on the night of December 3, 1998, Miller called once or twice, between the hours of 8:00 p.m. and 10:00 p.m., inquiring as to Thompson's whereabouts; Miller also wanted to know if Thompson had left him a Tascorp application. Tomeka Nelson, Thompson's girlfriend and former employee of CSC, testified that she knew Miller from when she worked at CSC and he had visited the home that she and Thompson shared. Nelson explained that she thought the source of the animosity between Miller and Thompson derived from something involving Miller's ex-girlfriend. She said that Miller told her in September 1998 that he was going to do something to Thompson and that if it was not for the fact that Nelson and her three children were residing in the house, he would have already done something to Thompson. She also testified that she received a phone call from Thompson between 11:30 p.m. and 12:00 a.m. on the night of December 3, 1998; he told her that Miller had shot him.

¶ 6. Officer Audrey Broadway testified that she received a page at 10:47 p.m. to respond to a shooting at Thompson's residence. When she arrived on the scene at 11:07 p.m., Thompson was en route to the hospital. Officer Broadway surveyed the scene for evidence and found three casings and two spent bullets fired from a nine millimeter gun. She testified that the electricity in the house was off; however, she said that there was sufficient light from the moon and streetlights to see as she walked around the outside of the house and stood at the doorway. Officer Broadway took Thompson's statement at the hospital. Thompson identified Miller as the shooter.

¶ 7. Dianne Mims, Miller's sister, testified that she was at her mother's home on December 3, 1998, from 5:00 p.m. until 2:30 a.m. The family was barbecuing, cooking, talking and just having a good time. She said that Miller was at their mother's house when she arrived and that he did not leave at any time. She explained that Miller could not afford to live on his own because he was having financial problems and that he left town the next day, December 4, to go to live with their brother in Chicago.

¶ 8. Ruby Ferguson, the mother of Miller's two children, testified that she was at *802 Miller's mother's house on December 3. She arrived in the evening and remained there all night. She stated that Miller came shortly after she arrived, and she did not see him leave.

¶ 9. Lee Hayes, a friend of Miller, testified that on December 3 he went to Miller's mother's house just before dark. He remained there until just before midnight. When he left, Miller was still there.

ANALYSIS AND DISCUSSION OF THE ISSUES

Comment During Voir Dire

¶ 10. Miller argues that the court erred in commenting to the jury during voir dire on his right not to testify. It is Miller's contention that the comment was improper because it drew attention to the fact that he did not testify. According to Miller, the comment infringed on his basic fundamental right to remain silent.

¶ 11. During the voir dire, in the context of explaining the burden of proof, the court stated, "The defendant does not have to say or do one thing because he is completely and totally innocent as he sits there. Does everybody understand that? Does anybody have any problem with that? If I asked you to vote right now if Mr. Miller was guilty, how would you vote?"

¶ 12. The State argues that this issue is waived because there was no contemporaneous objection and the matter was not raised in post-trial motions. The State directs the Court's attention to Haddox v. State, 636 So.2d 1229, 1240 (Miss.1994), holding that if an objection was not asserted at the trial, then the issue is not properly preserved on appeal. Moreover, as the State also points out, the record shows that the trial court gave a defense instruction which told the jury that "no presumption of guilt may be raised and no inference of any kind may be drawn from the accused's decision not to testify."

¶ 13. We agree that an objection at the trial court level is generally a prerequisite for preservation of the right of appellate review. Miller made no such objection. Notwithstanding Miller's failure to object, w

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