Sipp v. State

936 So. 2d 326, 2006 WL 1703069
CourtMississippi Supreme Court
DecidedJune 22, 2006
Docket2004-KP-02287-SCT
StatusPublished
Cited by32 cases

This text of 936 So. 2d 326 (Sipp 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
Sipp v. State, 936 So. 2d 326, 2006 WL 1703069 (Mich. 2006).

Opinion

936 So.2d 326 (2006)

Herman SIPP, Jr.
v.
STATE of Mississippi.

No. 2004-KP-02287-SCT.

Supreme Court of Mississippi.

June 22, 2006.
Rehearing Denied August 31, 2006.

*329 Appellant, pro se.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before SMITH, C.J., WALLER, P.J., and DICKINSON, J.

WALLER, Presiding Justice, for the Court.

¶ 1. Herman Sipp, Jr. appeals from his conviction in Jackson County Circuit Court of murder and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. We affirm.

FACTS

¶ 2. Ann Loper and Herman Sipp, Jr. were involved in a dating relationship for several years. Though the relationship ended, Loper and Sipp continued to share an apartment. Loper then began to date Jimmy Neal Kelly. Loper knew of Sipp's jealous tendencies and attempted to keep her relationship with Kelly hidden from Sipp. Sipp, however, soon discovered the existence of Loper and Kelly's relationship. On the night of December 4, 2001, Loper and Kelly were leaving Kelly's residence at around one o'clock in the morning when Kelly was shot in the back. Kelly later died as a result of injuries sustained from his gunshot wound.

¶ 3. Following the shooting, Sipp went to the apartment of Gary Lewis, Jr., a neighbor of Sipp's. Lewis stated that Sipp seemed agitated, nervous, kept making *330 comments about the police coming, and even admitted to Lewis that he had shot at Kelly. Sipp also asked Lewis to provide an alibi for him during the hours surrounding the shooting even though he was not with Lewis at the time.

¶ 4. Sipp was arrested and charged with Kelly's murder. Police determined that the weapon used in the shooting was a high-powered rifle, but no bullet casings were recovered at the scene. Sipp was discovered to have borrowed a high-caliber, Russian rifle from his brother, Abram Sipp, not long before Kelly was shot and returned the gun a few days after Kelly's shooting. According to a police report, Abram Sipp told police that when Herman Sipp returned the gun two bullets were missing, though Abram was unable to recollect those details on cross-examination by the State. Ann Loper testified she heard a voice threatening to shoot her, too, and believed the voice to be Sipp's. Additionally, Richard Dixon, a fellow inmate of Sipp's, stated that Sipp confessed to shooting Kelly. Sipp denied confessing to the crime to anyone. Sipp stated he was at a party for much of the evening of Kelly's shooting, but witnesses who attended the party testified that Sipp was noticeably absent around ten o'clock and was not seen after that time. Sipp stated he was at Lewis's home from midnight until four o'clock in the morning after smoking marijuana, and, thus, could not have shot Kelly. Other witnesses added little to Sipp's case other than to state they had never seen Sipp with the gun allegedly used to kill Kelly and to attempt to damage the credibility of Richard Dixon.

¶ 5. After six hours of deliberations, the jury was summoned to give an update on their progress. The jury foreman stated there was a nine to three split among the jury, and it was his belief that the split would not be resolved that night. The circuit court suggested sending the jury home for the night and allowing them to continue deliberations the next day. Sipp argued against such a break and moved for the court to declare the jury hung. The circuit judge refused to declare a hung jury and recessed the trial until the next morning. The jury reached a unanimous verdict the following day and found Sipp guilty of Kelly's murder. The circuit judge immediately sentenced Sipp to life in prison.

ISSUES

1. Whether the Circuit Court Erred in Refusing to Declare a Mistrial

¶ 6. Sipp contends the circuit court erred by allowing the State to use a statement made by Sipp to impeach him. He argues that the State's use of that statement warranted the declaration of a mistrial because police violated his Miranda and Fifth and Sixth Amendment rights by procuring his statement after he had invoked his right to counsel. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). At issue is a statement concerning Sipp's participation in and injury from the breaking of a window at Kelly's home a few weeks before Kelly's murder. At the time of his statement, Sipp was in police custody and had been given a Miranda warning more than once. Sipp refused to sign a Miranda waiver and asked for his mother and attorney. Police continued to question Sipp, and Sipp made statements concerning a cut on his hand he received while breaking a window at Kelly's home a few weeks before Kelly's murder. At trial, the State used Sipp's statement for impeachment purposes during cross-examination of Sipp. Sipp objected to the use of the statement by the State and moved for a mistrial. The circuit judge denied Sipp's motion and allowed the State *331 to use the statement for impeachment purposes only.

¶ 7. We review motions for mistrial under an abuse of discretion standard. Tate v. State, 912 So.2d 919, 932 (Miss.2005). The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case; however, the trial judge is permitted considerable discretion in determining whether a mistrial is warranted since the judge is best positioned for measuring the prejudicial effect. Id. (citing Gossett v. State, 660 So.2d 1285, 1290-91 (Miss.1995); Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990)).

¶ 8. We have stated that a voluntary statement that is inadmissible due to some technical violation of Miranda or is inadmissible because it is in violation of a defendant's Fifth or Sixth Amendment rights can be used for impeachment purposes. See Cooley v. State, 391 So.2d 614, 619-21 (Miss.1980) (Defendant, on trial for murder, could be impeached with statements made to police about his "accidentally shooting a victim" in order to determine the general truthfulness of defendant's testimony. We went on to state that when a defendant takes the stand and testifies, he may be impeached by his own statements—even if those statements were taken in violation of his Miranda rights); Bogard v. State, 624 So.2d 1313, 1318-19 (Miss.1993) (Defendant on trial for burglary and aggravated assault could be impeached with testimony concerning his presence at a victim's home even if that statement was procured after defendant had pleaded the Fifth and/or requested counsel. Only a showing by defendant that the statement was not voluntarily given could exclude the statement). Concerning voluntariness, Sipp has not shown that he was threatened, mistreated, intoxicated, under the influence of drugs, or promised anything to make the statement. Id. Because Sipp's statement was made voluntarily, and the State made no attempt to use Sipp's statement in its case-in-chief, we cannot say the circuit court erred in allowing the State to use Sipp's statement for impeachment purposes.

¶ 9. Sipp also argues the circuit court should have issued a limiting instruction to the jury to clarify that Sipp's testimony about cutting his hand was strictly for impeachment purposes. However, we have stated that because a limiting instruction can actually focus the jury's attention on sensitive information, it is the responsibility of defense counsel to ask for the instruction. Brown v. State,

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Bluebook (online)
936 So. 2d 326, 2006 WL 1703069, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sipp-v-state-miss-2006.