Mixon v. State

921 So. 2d 275, 2005 WL 3312768
CourtMississippi Supreme Court
DecidedDecember 8, 2005
Docket2004-KA-01576-SCT
StatusPublished
Cited by15 cases

This text of 921 So. 2d 275 (Mixon 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
Mixon v. State, 921 So. 2d 275, 2005 WL 3312768 (Mich. 2005).

Opinion

921 So.2d 275 (2005)

Darryl MIXON a/k/a Darrell Mixon a/k/a Daryl Mixon a/k/a Larry Williams a/k/a Reginald Wells
v.
STATE of Mississippi.

No. 2004-KA-01576-SCT.

Supreme Court of Mississippi.

December 8, 2005.
Rehearing Denied March 2, 2006.

*276 George T. Holmes, Jackson, attorney for appellant.

Office of the Attorney General by Jose Benjamin Simo, attorneys for appellee.

Before SMITH, C.J., DICKINSON and RANDOLPH, JJ.

*277 RANDOLPH, Justice, for the Court.

¶ 1. Darryl Mixon was tried and convicted by a jury of motor vehicle theft under Miss.Code Ann. § 97-17-42 in the Circuit Court of the First Judicial District of Hinds County. Since he had two prior convictions in which he actually served one year or more, one of which was a violent offense, Mixon was sentenced to life imprisonment as a habitual offender under Miss.Code Ann. § 99-19-83.

FACTS

¶ 2. At approximately 6:15 a.m. on December 9, 2002, Theodis Smith entered a Spur service station to pay for gasoline. While entering he passed a man leaving the store who, moments later, jumped into Smith's truck and began driving away. The clerk alerted Smith that someone was driving his truck away from the station. Smith ran outside and saw that the driver was the same man he had passed while entering the store. At the same time, a co-worker of Smith was driving by and picked Smith up. The two followed Smith's truck behind a white Honda Accord which was also following Smith's truck. Subsequently, Smith's truck came to a stop. The driver of the Accord also stopped, jumped out, and aided in unloading tools from Smith's truck. Smith called the police, giving them the address of a nearby home, and remained there awaiting their arrival. Both the drivers, in Smith's truck and the Accord, fled the scene before Officer Catchings arrived. The officer obtained a report of the incident and descriptions of the perpetrators from Smith. At approximately 8:45 a.m., Smith was notified by the police that two individuals fitting the descriptions had been captured. Smith went to the scene and, in the presence of Officers Catchings and Williams, identified Mixon as the person who had stolen his truck. At trial, Smith stated that he did not know Mixon before the theft and had never given Mixon permission to use or borrow the truck.

¶ 3. On March 12, 2004, the jury found Mixon guilty of motor vehicle theft under Miss.Code Ann. § 97-17-42. From that verdict, Mixon appeals seeking a new trial.

ANALYSIS

¶ 4. Mixon raises three issues on appeal. First, he alleges that the State was erroneously allowed to bolster its case through the hearsay testimony of Detective Steven Wansley. Second, he argues that the State's second amendment to the indictment during trial was flawed. Third, he asserts that the State's summation was inflammatory.

¶ 5. This Court "will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). To hold otherwise would "denigrate the constitutional power and responsibility of the jury in our criminal justice system." Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Since "jury verdicts will not be disturbed except under the most dire of circumstances," the review of criminal convictions is "in the light most favorable to the conviction." King v. State, 798 So.2d 1258, 1261 (Miss.2001).

¶ 6. The admission of evidence is within the sound discretion of the trial judge. That discretion must be exercised in conformity with the Mississippi Rules of Evidence. Reversal is only appropriate when an abuse of discretion has "result[ed] in prejudice to the accused." Parker v. State, 606 So.2d 1132, 1137-38 (Miss.1992); See also Sewell v. State, 721 So.2d 129, 138 (Miss.1998).

*278 I. Was the State erroneously allowed to bolster its case with hearsay testimony?

¶ 7. In the presence of Officers Catchings and Williams, Smith identified Mixon as the individual who had taken his truck. Officer Catchings later advised Detective Steven Wansley of Smith's identification of Mixon. Following Officer Catchings's testimony at trial, Detective Wansley testified that Officer Catchings advised him of Smith's identification of Mixon.

¶ 8. Mixon argues that, over his objection, Detective Wansley was improperly permitted to testify that Officer Catchings had told him that Smith identified Mixon as the perpetrator. On redirect, the same alleged hearsay was permitted as the circuit judge concluded that such "investigative work" was not incompetent hearsay and/or because the "door had been opened" to the hearsay on cross-examination.[1]

¶ 9. Citing Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984), Mixon maintains that "you simply cannot `open the door' to hearsay." In Murphy, this Court found that "[h]earsay is incompetent evidence. You may open the door for collateral, irrelevant, and otherwise damaging evidence to come in on cross-examination ... but Mississippi recognizes no rule of law that allows double hearsay to be brought in through this open door." Id. (citations omitted). We reaffirm the holding of this Court in Murphy. See also Kolberg v. State, 829 So.2d 29, 77 (Miss.2002). However, the inquiry regarding admissibility does not end there. The Mississippi Rules of Evidence control the admissibility vel non of the alleged double hearsay or, more accurately stated, hearsay included within hearsay. "Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." M.R.E. 805.

¶ 10. Mississippi Rule of Evidence 801(d)(1)(C) provides "[a] statement is not hearsay if: [t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... one of identification of a person made after perceiving him ...." (emphasis added). Here, Smith, the first declarant, was available for cross-examination, and also made an in-court identification of Mixon as the individual who stole his truck. Moreover, the second declarant, Officer Catchings, likewise testified at trial and was also available for and subject to cross-examination. Therefore, the statements regarding Smith's identification were not hearsay. M.R.E. 801(d)(1)(C). These declarations were statements of identification made after perceiving Mixon. Therefore, this Court finds Detective Wansley's testimony that Officer Catchings informed him of Smith's identification of Mixon as the perpetrator was not hearsay and therefore was admissible.

¶ 11. Mixon further argues that such a statement is inadmissible hearsay citing Ratcliff v. State, 308 So.2d 225, 227 (Miss. 1975). Ratcliff did hold that the statements of an informant to investigators were inadmissible hearsay. However, that decision is clearly distinguishable from the case at bar. The linchpin of the Ratcliff decision was that "an accused person is entitled to be confronted with and have opportunity to cross-examine witnesses against him." Id. In

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Bluebook (online)
921 So. 2d 275, 2005 WL 3312768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mixon-v-state-miss-2005.