Sanders v. State

939 So. 2d 842, 2006 WL 2865621
Court of Appeals of Mississippi·Decided October 10, 2006·No. 2005-KA-00068-COA·Published·Cited by 5 cases

Opinion

939 So.2d 842 (2006)

Marvin Sinatra SANDERS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-KA-00068-COA.

Court of Appeals of Mississippi.

October 10, 2006.

*843 Johnnie E. Walls, Jr., Greenville, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before MYERS, P.J., BARNES, and ISHEE, JJ.

*844 MYERS, P.J., for the Court.

¶ 1. On August 19, 2004, Marvin Sinatra Sanders was found guilty of two counts of capital murder and one count of aggravated assault in the Circuit Court of Coahoma County. Sanders received a sentence of two terms of life imprisonment without the possibility of parole for the capital murder charges, and a twenty year sentence for the charge of aggravated assault, all to run consecutively.

¶ 2. Sanders then filed a motion for a judgment notwithstanding the jury verdict or, in the alternative, a new trial, which the trial court overruled on August 30, 2004. Thereafter, Sanders timely filed his motion for appeal and his notice of appeal in forma pauperis. The circuit court granted Sanders' motion and appointed Honorable Johnnie E. Walls, Jr., to continue the representation of Sanders in his appeal. Subsequently, Walls filed a brief summarizing the case's procedural and factual history, complete with citations to the record, certifying that after scouring the record thoroughly he found no arguable issues supporting Sanders' appeal in conformity with our supreme court's ruling in Lindsey v. State, 2003-KA-00331-SCT, 939 So.2d 743, 2005 WL 613396 (Miss. Mar. 17, 2005). Additionally, Walls addressed several potential arguable issues that Sanders might have possibly raised on appeal as a pro se litigant, but correctly concluded that each issue was without merit and advised Sanders of his right to file a pro se brief.

¶ 3. Aggrieved, Sanders timely filed a brief on his own behalf and now appeals the following issues:

I. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY JUDICIAL MISCONDUCT.

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT.

III. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE INTRODUCTION OF INFLAMMATORY PHOTOGRAPHS.

IV. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY THE COURT ALLOWING AN IN-COURT IDENTIFICATION RESULTING FROM A PRIOR MISIDENTIFICATION.

V. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 4. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 5. In the late evening hours of October 3, 2003, Vester Mae Triplett was operating her small neighborhood grocery store located on Miles Road in the Roundway Community near Clarksdale, Mississippi, which was equipped with guest tables, game machines and a pool table. At that time, Triplett's brother's residence was located approximately one hundred yards from her store. On some occasions, including the night of October 3, 2003, Triplett catered to adults who shot pool, gambled and had a few drinks. On this evening, Triplett and several others, including Johnny Scott and Marvin Sanders were participating in a craps game.

¶ 6. Sanders, a long-time resident of the small community, arrived at Triplett's store at approximately 10:00 p.m. While at Triplett's store, Sanders drank beer and gin and was losing in the craps game. Sanders apparently ran out of money during the game and twice borrowed money from other players. Testimony at trial indicated that Sanders was upset about *845 losing and stated, "I'm gonna get my `F' money back, my mother `F' money back." Shortly before midnight Sanders left. Only Triplett and Scott remained in the store. At approximately midnight Triplett saw Sanders stop his car in the middle of the road in front of her store for a short time, then pull off. Shortly thereafter Triplett began preparing to close the store and depart. While Triplett and Scott were preparing to leave, Sanders returned to the store, fatally shot Scott in the back of the head, and demanded money from Triplett. At this point, Triplett saw through the window another person enter the parking lot of the store, exit his running vehicle, and proceed toward the front door of the store. After Triplett handed Sanders the money and pleaded for her life, Sanders shot Triplett in the face and she fell to the floor. As Triplett lay on the floor, Brandon Lott unknowingly walked into the store and was immediately shot and killed by Sanders, his body left lying in the doorway. After Sanders left, Triplett then pulled herself from the floor, found her keys, walked over the body of Lott to reach her van in the parking lot of the store. She then drove to her brother's nearby residence and blew the horn for attention. Triplett's brother called 911 and waited until the ambulance arrived. Triplett identified the shooter, both at that time and later in open court, as Marvin Sanders, whom she had attended high school with and had known for more than fifteen years.

LEGAL ANALYSIS

I. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY JUDICIAL MISCONDUCT.

II. WHETHER APPELLANT WAS DEPRIVED OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT.

¶ 7. These two issues are combined as they arise under the same standard of review and are governed by the same facts. Sanders cites several instances that he characterizes as judicial and prosecutorial misconduct. He argues that it was judicial misconduct on the part of the trial court to allow the prosecutor to ask leading questions and prosecutorial misconduct to ask the leading questions. Additionally, he argues that it was judicial misconduct for the court to allow the prosecutor to question a witness on redirect beyond the scope of the direct examination. Sanders further alleges error and misconduct by citing to several statements made by the prosecutor in his closing argument.

¶ 8. The decision to allow leading questions rests within the discretion of the trial court. Parks v. State, 930 So.2d 383, 387(¶ 9) (Miss.2006). Only upon a finding of an abuse of discretion will a trial courts' ruling be disturbed. Id. We cannot say that under the context and circumstances of this case that the trial court abused its discretion in allowing the prosecutor to ask leading questions.

¶ 9. Pursuant to the Mississippi Supreme Court's recent adoption of a two-part test to determine whether a prosecutor's closing remarks constitute reversible error, we review first whether the remarks were improper, and if so, whether the remarks prejudicially affected the accused's rights. Spicer v. State, 921 So.2d 292, 318(¶ 55) (Miss.2006) (adopting test annunciated by the Ohio Court of Appeals in State v. Grimes, 2005 Ohio 203, P18 (Ohio Ct.App.2005)). "It must be clear beyond a reasonable doubt, that absent the prosecutor's comments, the jury could have found the defendant guilty." Id. The standard used in reviewing closing arguments is "whether the natural and probable effect of the prosecuting attorney's improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice." Rushing v. State, 711 So.2d 450, 455(¶ 15) (Miss.1998) (quoting *846 Taylor v. State, 672 So.2d 1246, 1270 (Miss.1996)). The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect. Roundtree v. State, 568 So.2d 1173, 1177 (Miss.1990).

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Sanders v. State, 939 So. 2d 842, 2006 WL 2865621 (Mich. Ct. App. 2006).

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