Nason v. State

840 So. 2d 788, 2003 Miss. App. LEXIS 183, 2003 WL 1228041
CourtCourt of Appeals of Mississippi
DecidedMarch 18, 2003
DocketNo. 2001-KA-01949-COA
StatusPublished
Cited by2 cases

This text of 840 So. 2d 788 (Nason 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
Nason v. State, 840 So. 2d 788, 2003 Miss. App. LEXIS 183, 2003 WL 1228041 (Mich. Ct. App. 2003).

Opinion

BRIDGES, J.,

for the court.

¶ 1. The grand jury of Montgomery County indicted Michael Nason for the crime of armed robbery. A jury trial followed in which the jury returned a verdict of “guilty” for the crime of armed robbery. Nason was then sentenced to serve a term of forty years with the Mississippi Department of Corrections. Soon after, defense counsel filed motions for JNOV or in the alternative, a new trial. The court denied the motions, and Nason appealed to this Court.

STATEMENT OF THE ISSUES

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF MARIUM ANTONIO SMITH?

[790]*790II. WHETHER THE TRIAL COURT ERRED IN DENYING NA-SON’S MOTIONS FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE SUCH VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

FACTS

¶ 2. On July 14, 2001, three masked men entered a Piggly Wiggly, in Winona, Mississippi, and armed robbed it of $1,149.96. The record does not reflect the exact time frame between the robbery and the arrest of the individuals involved. At trial, the State called five eyewitnesses to the crime, to testify. The first eyewitness that the State called was Jamilia Stephens, a cashier at the Piggly Wiggly. Ms. Stephens testified that she was present at the scene and witnessed the three men enter, walk around, buy cigarettes and then walk out. Later, they came back into the store carrying guns and a man in a green shirt had a mask over his face. Ms. Stephens also testified that the man in green shot once and told everyone to “get down.” She later identified the man who had worn the green shirt as the defendant, Michael Na-son, and was sure it was him even though he wore a mask.

¶ 3. The next witness the State called was Vera Mitchell. Ms. Mitchell testified that she was in the office, counting money, at the time of the robbery, and it was at that time that a man in a blue shirt came into the office and demanded that she give him money and to open the safe. Keeping her head down the entire time, she informed the man she could not open the safe, but gave him the money she had from the cash drawer and then he left.

¶ 4. Nathan Bevis, an employee of Pig-gly Wiggly, testified that he was present at the scene and witnessed the robbery. He also testified that earlier, three men walked in the store and bought some cigarettes and that later the three men came back and made the robbery. He further identified the defendant as the man in green who fired a gun. Bevis explained that the mask that the man in green wore only covered part of his face, from the nose down and because Bevis got a good look from the nose up he could identify the defendant.

¶ 5. Also called to testify was Kimi Stephens, another cashier at the Piggly Wiggly, who testified that she had been working at the cash register, when she noticed three men come in and buy cigarettes. Later, the same three men came in again but this time to carry out the robbery.

¶ 6. Hank Jones was called to testify on behalf of the State. Jones, a cashier and bag boy, was working on the night of the robbery and testified that the man in a green shirt had a gun, which he fired once, and yelled to everyone to get to the ground.

¶ 7. Also at trial, the State call Marium Antonio Smith, a co-defendant, to testify. Mr. Smith identified Nason as one of the perpetrators of the crime.

ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE TESTIMONY OF MARIUM ANTONIO SMITH?

¶ 8. In this first issue Nason, argues that the trial court erred in allowing Smith to testify because Smith’s testimony was unreliable and filled with inconsistencies. Nason also claims that it was error because Smith’s testimony was only given in an effort to avoid a life sentence, thus proving it was self-serving and not credible. Finally, Nason claims that Smith’s testimony was done under fear and duress.

[791]*791¶ 9. In Blocker v. State, 809 So.2d 640 (¶ 20) (Miss.2002), the Mississippi Supreme Court held that a trial court has “great latitude in admission or exclusion of evidence where the question is one of materiality or relevancy, and its decision should only be reversed where this discretion is abused.” However, the Court in Johns v. State, 592 So.2d 86, 88-89 (Miss.1991) (citing Jones v. State, 368 So.2d 1265, 1267 (Miss.1979)), stated “that the testimony of an accomplice must be viewed with great caution and suspicion. Where it is uncorroborated, it must also be reasonable, not improbable, self-contradictory or substantially impeached.” Id.

10. Even though Smith’s testimony should be viewed with caution and suspicion, it was the trial judge’s responsibility to weigh the probative value of the testimony versus the prejudicial aspect of the testimony. Even though Smith’s testimony contained inconsistencies, it is the duty of the jury to determine “the impeachment value of inconsistencies or contradictions as well as testimonial defects of perception, memory, and sincerity.” Noe v. State, 616 So.2d 298, 308 (Miss.1993) (citing Jones v. State, 381 So.2d 983, 989 (Miss.1980)).

¶ 11. Furthermore, the testimony of Smith was not uncorroborated. Testimony can be corroborated by either evidence or by other testimony. The State presented at least two witnesses, all of whom testified closely if not exactly to what Smith testified to. As for the testimony being “reasonable, not improbable, self-contradictory or substantially impeached,” Smith’s testimony was well within reason and not improbable. Smith was even warned about this possibility right before he was to testify and was given the chance to back out of testifying. In addition, Na-son had an opportunity to cross-examine Smith, which would have enabled Nason to bring to light any inconsistencies, ulterior motives, fear or duress.

II. WHETHER THE TRIAL COURT ERRED IN DENYING NASON’S MOTIONS FOR JNOV OR IN THE ALTERNATIVE A NEW TRIAL BECAUSE SUCH VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 12. With regards to the second issue, Nason argues that the verdict is against the overwhelming weight of the evidence in that his conviction is based on the wholly unreliable and self-serving testimony of Smith and the testimony of only two people who said they could positively identify Nason as a robber, even though three-fourths of the robber’s face was covered with a mask.

¶ 13. Our standard of review regarding a motion for new trial is stated in McClain v. State:

The challenge to the weight of the evidence via motion for a new trial implicates the trial court’s sound discretion. Procedurally such challenge necessarily invokes Miss. Unif.Crim. R. of Cir. Ct. P. 5.16. New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion, and on review we accept as true all evidence favorable to the State.

McClain v. State, 625 So.2d 774, 778 (Miss.1993). See also Collier v. State, 711 So.2d 458, 461(¶ 13) (Miss.1998); Herring v. State, 691 So.2d 948, 957 (Miss.1997). The same standard is used to review overruled motions for a directed verdict and overruled motions for JNOV. See McClain, 625 So.2d at 778; Wetz v. State, 503 So.2d, 803, 808 (Miss.1987).

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Bluebook (online)
840 So. 2d 788, 2003 Miss. App. LEXIS 183, 2003 WL 1228041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nason-v-state-missctapp-2003.