Sheppard v. State

910 So. 2d 1182, 2005 WL 2140799
CourtCourt of Appeals of Mississippi
DecidedSeptember 6, 2005
Docket2003-KA-02507-COA
StatusPublished
Cited by3 cases

This text of 910 So. 2d 1182 (Sheppard 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
Sheppard v. State, 910 So. 2d 1182, 2005 WL 2140799 (Mich. Ct. App. 2005).

Opinion

910 So.2d 1182 (2005)

Donald Scott SHEPPARD, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2003-KA-02507-COA.

Court of Appeals of Mississippi.

September 6, 2005.

*1184 Pamela Lynn Huddleston, attorney for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before LEE, P.J., IRVING and CHANDLER, JJ.

IRVING, J., for the Court.

¶ 1. Donald Scott Sheppard was convicted of manslaughter by a Jones County jury. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve and five years on post-release supervision. On appeal, Sheppard alleges that the trial court erred in allowing investigator Kevin Flynn to give expert testimony without first qualifying him as an expert witness and erred in allowing the introduction of certain photographs into evidence. Sheppard also contends that the jury's verdict was against the sufficiency and weight of the evidence. Finding no reversible error, we affirm Sheppard's conviction.

FACTS

¶ 2. On the evening of August 2, 2001, Sheppard was out drinking at a local bar with his wife Sheila Walters when they became involved in an altercation with each other.[1] Timothy Barnes, the victim, and his friend Sheila Mahaffey were also present at the bar and witnessed the altercation between Sheppard and his wife.[2] Shortly thereafter, Walters left Sheppard at the bar and went home alone. What transpired next is the subject of dispute.

¶ 3. At trial, Sheppard testified that when he arrived home, Walters was preparing to leave the house. Sheppard further testified that he and Walters then began arguing again, and at that time, he decided to take his gun to his father's house because Walters had previously been shot by a boyfriend during an argument.[3] Sheppard stated that when he stepped outside, he observed Barnes pulling up into his driveway. He testified that although he fired a warning shot in the air in an effort to get Barnes to leave, Barnes ignored the shot and proceeded to drive further into the yard. Sheppard stated that when Barnes pulled up to where he was standing in the yard, Barnes rolled down his window and informed him that he was there to check on him and Sheila. Sheppard alleged that he and Barnes then began to exchange words, and that he demanded Barnes to leave his property. *1185 Sheppard contends that as he was walking toward Barnes's truck, he stumbled and fell backwards, causing the gun to accidentally discharge and hit Barnes. However, in a statement given to police on the night of the incident, Sheppard alleged that Barnes asked to see his gun, and as he was walking toward the truck to give Barnes the gun, he stumbled over a tree stump and fell backwards, causing the gun to accidentally discharge.

¶ 4. Mahaffey however gave a different version of events. She testified that before Walters left the bar, Walters asked Barnes to come to her home to pick her up. Mahaffey stated that she agreed to ride with Barnes to get Walters, and as she and Barnes were turning into Sheppard's driveway, they heard a noise that sounded like a firecracker. Mahaffey testified that they could see Sheppard standing in his driveway, and that when they arrived further in the yard, Barnes rolled his window down and shook Sheppard's hand. Mahaffey contends that Sheppard then pointed the gun inside of Barnes's window and shot him. She stated that she did not remember seeing Sheppard stumble, nor did she recall hearing Barnes ask Sheppard to see his gun.

¶ 5. An autopsy revealed that Barnes suffered a single gunshot wound to his upper left arm, and that he died as a result of massive bleeding when the bullet traveled to his chest and struck his aorta. Dr. Steven Haynes, the pathologist who performed Barnes's autopsy, testified that the barrel of the gun was approximately one foot away from Barnes's shoulder when it was fired. Sheppard was subsequently indicted for murder, and as previously stated, was convicted of manslaughter. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Kevin Flynn's Testimony

¶ 6. Sheppard first contends that the trial court erred in allowing Kevin Flynn, a former investigator with the Jones County Sheriff's Department, to give expert testimony regarding the gun's trigger tension without first qualifying him as an expert witness.[4] The State however counters that the trial court did not err in allowing Flynn's testimony because the defense first elicited the testimony on cross-examination, thus entitling the prosecution to further elaborate on the matter on redirect. The State also argues that because Flynn testified that he had personally fired the gun, it was appropriate for him to give testimony regarding his perception of the gun's trigger tension.

¶ 7. The record reflects that on direct-examination, Flynn testified that he recovered from the scene of the crime a spent shotgun shell and a single-shot twenty gauge shotgun. Flynn then provided testimony regarding the sequence of events that were necessary to fire the gun. The following exchange then transpired between Flynn and Sheppard's attorney on cross-examination:

*1186 Q: This is my question to you. Since this is the issue in the case as to what happened at the truck on the second shot, we've heard testimony from you about it's a single shot. Have to load, have to cock it, finger on the trigger. Did you send the shot gun to the crime lab and have the trigger tested as to the tension it would take to squeeze it for it to discharge? Because guns, as I understand it, have different tensions. Some will just touch and go off, and some will need a good squeeze. And my fingers may be stronger than a little old lady's and your fingers may be stronger than mine.
But there's still an industry standard as to the tension of the trigger so that it becomes more objective. Are you aware of that standard? Squeezing the trigger and it having a certain score as to it being discharged?
A: Yes, sir.
Q: Okay. Since you are familiar with that standard, did you send it to the crime lab so that we could see if that trigger would take just a slight jerk to discharge it or if it really had to be squeezed? Did you do that?
A: No, sir.
Q: Thank you.
Mr. Buckley: No further questions.

Thereafter, Flynn gave the following testimony on redirect:

Q: Officer Flynn, did you cock the gun at anytime afterwards and test fire it or pull the trigger yourself?
A: Yes, sir, I did.
Q: Did you note it being what we call a hair trigger at any point—
Mr. Buckley: Objection, Your Honor. That requires expert testimony and the crime lab. That has not been furnished to us previously to this occasion.
THE COURT: Overruled.
Q: You are familiar with that gun and those types of guns, are you not?
A: Yes, sir.
Q: Would you say based on your experience that the trigger once it is cocked was abnormally easy to pull or hard to pull or would be normal?
A: In my experience with them, as with firearms, it was just as natural as any of the other ones I've ever shot.
Q: And I believe it's called a single action. I get them mixed up.

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910 So. 2d 1182, 2005 WL 2140799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheppard-v-state-missctapp-2005.