Moore v. State

105 So. 3d 390, 2012 Miss. App. LEXIS 506, 2012 WL 3289929
Court of Appeals of Mississippi·Decided August 14, 2012·No. No. 2010-KA-02074-COA·Published·Cited by 4 cases

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Charles Moore was convicted of aggravated assault and conspiracy to commit aggravated assault. Moore challenges the trial judge’s denial of his motions for a mistrial after two of the State’s witnesses mentioned his prior imprisonment. Neither of the witnesses’ brief responses about his incarceration were prompted by the State, and we find no abuse of discretion in denying a mistrial. We also find no merit to Moore’s additional challenges to the weight and sufficiency of the evidence. We affirm.

BACKGROUND FACTS

¶ 2. On the evening of May 22, 2009, Moore and his three teenaged nephews stopped at a convenience store in West, Mississippi, where Moore bought them quarts of beer. After they finished then-beers, Moore mentioned to- his nephews that he “needed to take care of some business in Lexington.” Moore then drove the group to a rural area in Holmes County, where he stopped his car on a dead-end [392] road near the trailer where his ex-girlfriend, Jennifer Hampton, was staying. Moore popped the trunk and told the boys to “get their guns.” One nephew grabbed a .22-caliber rifle and another a shotgun. Two of the nephews opened fire on a car parked in front of Jennifer’s trailer. Moore, who had snuck behind the trailer, aimed through the bedroom window and shot Jennifer’s then-current boyfriend, Derrell Blair, who was sleeping. Moore’s bullet struck Blair in the head, severely injuring him. Two of the nephews pleaded guilty to conspiracy to commit aggravated assault, but Moore proceeded to trial.

¶ 3. The jury found Moore guilty of aggravated assault and conspiracy to commit aggravated assault. After his motion for a judgment notwithstanding the verdict or new trial was denied, Moore timely appealed.

DISCUSSION

I. Evidence of Prior Criminal History

A. Witnesses’ Testimony

¶ 4. Jennifer and her father, Matthew Hampton, testified during the State’s casein-chief. Both made unsolicited comments about Moore’s having gone to the penitentiary for an unrelated crime. Jennifer and Moore had been in a long-term relationship, having five children together. And both Jennifer’s and Matthew’s unprompted comments were made in the context of explaining why Jennifer’s relationship with Moore had deteriorated.

¶ 5. Jennifer testified on direct examination about her break-up with Moore and her subsequent relationship with Blair. Jennifer explained she and Moore “tried to get back, but he went to jail for like 18 months.” Moore’s counsel objected, and the trial judge instructed the jury to disregard the testimony because “it has nothing to do with this case.” The trial judge denied Moore’s motion for a mistrial.

¶ 6. Matthew, who lived nearby Jennifer, claimed he had heard the gunshots. He immediately thought Moore had shot Jennifer or Blair. When pressed during cross-examination about why he suspected Moore had shot one of them, he explained his suspicions were based on a previous phone conversation he had overheard between Jennifer and Moore. Matthew testified that he confronted Moore about the phone conversation. And Moore purportedly told Matthew: “It ain’t like you heard. I didn’t tell Jennifer I was going to do nothing to her. I just love her, and I want to raise my kids.” Matthew claimed he responded by asking Moore: “Well, how ... can you raise your kids or want to come back home and raise your kids, [when] you jumped up and married [another woman], and now all a sudden when you done went to the penitentiary ... you want to come out and be a father.”

¶ 7. Moore’s attorney requested a bench conference and complained Matthew’s answer was unresponsive. The trial judge noted that “[Matthew] answered the question. He went on to say why that was his first thought. And if it had something to do with the penitentiary, that was why.” The trial judge suggested Moore’s attorney should perhaps not “ask him any open-ended questions.” Moore’s attorney moved for a mistrial, which was denied. No limiting instruction was requested or given regarding Matthew’s testimony.

B. Denial of a Mistrial

¶ 8. Moore claims both mentions of his incarceration violated Mississippi Rule of Evidence 404(b) and required a mistrial. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” “The reason for the rule is to [393] prevent the State from raising the inference that the accused has committed other crimes and is therefore likely to be guilty of the offense charged.” White v. State, 842 So.2d 565, 573 (¶ 24) (Miss.2003) (citations omitted).

¶ 9. The denial of a motion for a mistrial is reviewed for abuse of discretion. Pittman v. State, 928 So.2d 244, 249 (¶ 1) (Miss.Ct.App.2006) (citing Bass v. State, 597 So.2d 182, 191 (Miss.1992)). And we are mindful that trial judges are better situated than their appellate counterparts to decide whether a trial should be discontinued. Id. (citing Schwarzauer v. State, 339 So.2d 980, 982 (Miss.1976)).

¶ 10. Moore is correct that a government witness’s statement about a defendant’s criminal record is generally improper and inadmissible. Forbes v. State, 771 So.2d 942, 952 (¶ 33) (Miss.Ct.App.2000) (citing Reynolds v. State, 585 So.2d 753, 754-55 (Miss.1991)). But we note Jennifer’s brief comment about Moore’s imprisonment was not prompted by the State and was immediately addressed by the trial judge’s limiting instruction that Moore’s time in prison “has nothing to do with this case.” The Mississippi Supreme Court has held “[wjhere no serious and irreparable damage was engendered by an improper remark, a curative instruction is deemed sufficient to remove the taint from the minds of the jurors.” Clark v. State, 40 So.3d 531, 539 (¶ 16) (Miss.2010) (internal citations and quotations omitted). “Absent unusual circumstances, where [an] objection is sustained to improper questioning or testimony, and the jury is admonished to disregard the question or testimony, we will not find error.” Hill v. State, 4 So.3d 1063, 1065-66 (¶16) (Miss.Ct.App.2009) (quoting Wright v. State, 540 So.2d 1, 4 (Miss.1989)). We find the judge’s curative instruction was sufficient to remedy any improper reference to Moore’s criminal past and prevent any undue prejudice.

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Moore v. State, 105 So. 3d 390, 2012 Miss. App. LEXIS 506, 2012 WL 3289929 (Mich. Ct. App. 2012).

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