Smith v. State

907 So. 2d 292, 2005 WL 1385202
CourtMississippi Supreme Court
DecidedMay 26, 2005
Docket2003-KA-02105-SCT
StatusPublished
Cited by19 cases

This text of 907 So. 2d 292 (Smith 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
Smith v. State, 907 So. 2d 292, 2005 WL 1385202 (Mich. 2005).

Opinion

907 So.2d 292 (2005)

Christopher SMITH a/k/a Chris Smith/Christopher Anderson
v.
STATE of Mississippi.

No. 2003-KA-02105-SCT.

Supreme Court of Mississippi.

May 26, 2005.
Rehearing Denied August 4, 2005.

*293 Dan W. Duggan, Jr., Brandon, attorney for appellant.

Office of the Attorney General by W. Daniel Hinchcliff, attorney for appellee.

Before SMITH, C.J., CARLSON and DICKINSON, JJ.

DICKINSON, Justice, for the Court.

¶ 1. Following a two day trial, a jury found Christopher Smith guilty of armed carjacking. The trial judge sentenced him as a habitual offender to serve thirty (30) years, without possibility of parole, in the custody of the Mississippi Department of Corrections along with a fine in the amount of $10,000. Smith appeals. We affirm.

BACKGROUND

¶ 2. On the afternoon of September 2, 2001, Glenda Craft was in her car at the intersection of Allen and Beatty Streets in Jackson. Two men in another vehicle pulled alongside Craft, blocking her in. The passenger got out, pulled a gun, and ordered Craft out of her vehicle. After Craft exited her vehicle, the passenger got in, and both men sped away in the two vehicles, leaving Craft on the roadside.

¶ 3. Later that afternoon Craft gave police a description of the passenger but not of the driver, except that the driver was a *294 black adult male. She also told the police her car was a blue Chevrolet Caprice but did she not recall the license plate or vehicle identification number ("VIN").

¶ 4. On October 29, Jackson Police Officer Veronica Mance pulled Christopher Smith over. He was driving a blue Chevy Caprice, and Officer Mance noticed that the VIN was not original to the car. Upon subsequent investigation, Officer Mance discovered that the VIN plate on the driver's door was missing. Smith was unable to produce any proof of ownership or a valid driver's license, but he did produce a bill of sale for a different Chevy Caprice.

¶ 5. Officer Terry Dismuke later discovered inconsistent VIN numbers on the Caprice, and the Jackson Police Department determined that the vehicle was indeed stolen.

¶ 6. Officer Ned Garner with the Jackson Police Department's Auto Theft Unit went to Craft's house with a photograph line-up. From a group of photographs on a card, Craft positively identified a photograph of Smith as the driver of the vehicle, and on November 13, 2001, Craft was able to identify the passenger of the vehicle in a second photograph line-up.

¶ 7. After Smith was arrested on November 8, he waived his Miranda rights and told the police that he dropped "Main" (later identified as Elvin Simmons) off at a gas station on Gallatin Street on September 2, 2001, and that he had purchased the Caprice (Craft's vehicle) from Simmons for $700.

¶ 8. At trial, Simmons testified that he and a friend were at Smith's house on the day in question and that Smith offered at least $50 to each man who would help him steal a car to use to "fix up" his gray Chevrolet Caprice. The third friend, finding $50 to be insufficient compensation, refused to participate. Simmons testified that when he and Smith went to look for a car, they saw a woman getting into a blue Chevrolet Caprice and Smith said, "this a lick right here. This is the car I need." Simmons explained that "this is a lick" meant that "this was the perfect opportunity to get a car." Simmons further testified that Smith handed him a loaded gun while following the woman and that Smith got out of the vehicle with him to approach the woman. Simmons testified that after the carjacking took place, he drove the stolen vehicle back to Smith's house and Smith followed in his own vehicle. Once safely back at the house, Smith switched the VIN numbers on the vehicles.

¶ 9. Smith, the sole defense witness, testified that he had purchased the blue Caprice from Simmons for $700 because his gray Caprice needed a starter. He said he never ran into Simmons nor was he ever with Simmons on the day in question. Further, he said he never discussed committing a robbery or carjacking with Simmons, had never seen Simmons carjack anyone, and had never driven Simmons to help with a carjacking. He testified that he dropped Simmons off with the understanding that Simmons would steal a car. He testified that he had seen Craft in the store but never had he seen her when he was with Simmons.

¶ 10. On cross-examination, Smith testified that his statement to Officer Garner, "All I know is that shortly after Main [Simmons] got out of the vehicle with me, he was following me in the vehicle," concerned a different night, and he was unsure what vehicle Simmons followed him in. He testified that he drove Simmons into North Jackson to steal the car referred to in the statement. Later during the cross-examination, Smith admitted that the car he purchased for $700 "was stolen, but I didn't know nothing about no robbing and carjacking."

*295 ¶ 11. At the conclusion of testimony, the trial judge held a conference with counsel to discuss jury instructions. When the trial judge stated which instructions would be given, neither party offered any objection.

¶ 12. The jury found Smith not guilty, of armed robbery but found him guilty of armed carjacking. Smith's contentions on appeals are:

I. The trial court committed reversible error in refusing jury instruction D-8.
II. The trial court committed reversible error in refusing jury instruction D-1.
III. The court committed reversible error in not directing the verdict; or in the alternative a judgment notwithstanding the verdict.

¶ 13. When an appellant assigns as error the trial judge's refusal to grant a requested instruction, this Court does not consider the requested instruction in isolation, but rather considers all jury instructions as a whole. Parks v. State, 884 So.2d 738, 746 (Miss.2004). A trial judge may refuse to give a requested instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Id.

I. Did the trial court commit reversible error by not granting jury instruction D-8?[1]

¶ 14. Jury instruction D-8, which the trial court refused to give, reads as follows:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that between September 2 and October 29, 2001 that Christopher Smith did aid or abet another person to willfully and without authority take possession of or take away a motor vehicle belonging to Glenda Craft, then and in that event you should find Christopher Smith guilty of Taking Possession of or Taking Away a Motor Vehicle.

¶ 15. This requested instruction was an attempt by Smith to have the trial court instruct the jury on an alleged lesser-included offense of aiding and abetting in motor vehicle theft. A jury instruction on a lesser-included offense is to be given only when a defendant "point[s] to evidence in the record from which a jury could reasonably find him not guilty of the crime with which he was charged and at the same time find him guilty of the lesser included offense." Ladnier v. State, 878 So.2d 926, 932 (Miss.2004) (citing Toliver v. State, 600 So.2d 186, 192 (Miss.1992)).

¶ 16. We have held that the "essential elements of a lesser-included offense are among the elements of the superior offense." State v. Shaw, 880 So.2d 296, 301 (Miss.2004) (citations omitted).

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Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 292, 2005 WL 1385202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-miss-2005.