Smith v. State

90 So. 3d 122, 2012 WL 613324, 2012 Miss. App. LEXIS 121
CourtCourt of Appeals of Mississippi
DecidedFebruary 28, 2012
DocketNo. 2010-KA-00491-COA
StatusPublished
Cited by15 cases

This text of 90 So. 3d 122 (Smith 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
Smith v. State, 90 So. 3d 122, 2012 WL 613324, 2012 Miss. App. LEXIS 121 (Mich. Ct. App. 2012).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. A jury in the Hinds County Circuit Court found Antonio Smith guilty of armed robbery. On appeal, Smith argues: (1) the State impermissibly referenced his post-Miranda silence; (2) the trial court erroneously admitted evidence of drugs found in his vehicle; (3) the State violated Batson in exercising its peremptory strikes; and (4) the trial court erred in denying his proposed misidentification instruction. Finding no reversible error, we affirm.

FACTS

¶ 2. On April 30, 2006, an armed robbery occurred at a Jackson, Mississippi gas station. The gunman approached the store clerk, Patricia Gordon, and asked her for some Black & Mild cigars. When the man handed Gordon a five-dollar bill, she opened the cash register. The gunman then demanded, “Give me all the money,” and brandished a firearm he had hidden beneath his shirt. Gordon gathered the money from the register and placed it on the counter. The gunman took the money and cigars, then left the store.

¶ 3. Gordon immediately called 911. She told authorities the robber’s vehicle had a personalized license plate, reading “TY ROSE.” This license plate was registered to Rosenna Adams (Smith’s wife) for a GMC Yukon. A check of the personalized plate led police to Smith’s residence, where a GMC Yukon with “TY ROSE” on its tag was parked. Smith allegedly ran inside the house and refused to answer the door. Officers dispatched a SWAT team to the house, and a three-hour stand off ensued. Smith was eventually removed from the house and arrested. After obtaining Adams’s consent, police searched the Yukon and found a pack of Black & Mild cigars on the front floorboard and another pack on the rear floorboard. Officers also seized five plastic bags containing a “green leafy” substance, allegedly marijuana, from the rear seat of the vehicle.

¶ 4. On the date of the robbery, Gordon gave a written statement to police. She reported being robbed at gunpoint by a black male driving an “SUV” with “Ty Rose” on its license plate. The next day, an officer presented Gordon with a photographic lineup, and she identified Smith as the man who had robbed the gas station. At Smith’s trial, Gordon again identified Smith as the armed robber and described the “Yukon” he had driven with “TY ROSE” on the tag.

¶ 5. Smith testified in his own defense and denied robbing the gas station: He also denied he had ever visited the particular gas station where the robbery occurred. But he acknowledged he is sometimes called “Ty” and has a tattoo bearing that nickname. He also admitted the vehicle with “TY ROSE” on the license plate was his. He explained “TY ROSE” was a. combination of his and his wife Rosenna’s names. He claimed he had purchased the Black & Mild cigars found in his vehicle at a “local discount tobacco store.”

¶ 6. The jury found Smith guilty of armed robbery. The circuit court sentenced him to fifteen years, with ten to serve and five suspended. Smith timely appealed.

DISCUSSION

I. Comment on Right to Remain Silent

¶ 7. Smith claims the State improperly commented on his post-Miranda silence, first during an officer’s testimony and later during closing argument.

A. Officer’s Testimony

¶ 8. Smith’s first challenge is based on the following exchange during Officer Kent Daniels’s testimony:

[126]*126[The State]: Okay. Did you have any contact with the suspect?
[Officer Daniels]: Once they brought the suspect out the house, I had a patrol officer to transport him downtown to the unit, and I came down and advised him of his Miranda rights, and told him, you know, we want to get a statement from him of what happened, and he refused to give me a statement.

(Emphasis added). Smith’s counsel objected at this point, and the parties approached the bench. The bench conference was neither recorded nor described in the record. However, after the State had concluded its case and the jury had been excused, defense counsel addressed the comment: “You’re Honor, we just want to put on the record about the objection to [the] statement about the plaintiffs [sic] refused to talk. The Supreme Court has said numerous times that whether the defendant decides to talk to officers should not be mentioned[.]” Our review shows Smith’s counsel neither requested a mistrial nor a curative instruction. And the trial court did not discuss or rule on his objection, but instead moved on to other issues.

¶ 9. When reviewing challenges to comments on post-Miranda silence, we are generally faced with a trial court’s denial of a motion for a mistrial, which we review for abuse of discretion. Gilbert v. State, 48 So.3d 516, 521 (¶ 20) (Miss.2010). But here, Smith did not seek a mistrial. We agree with the State that Smith failed to preserve this issue for appeal. The Mississippi Supreme Court has held that “when anything transpires during the trial that would tend to prejudice the rights of defendant^] ... he must ask the trial court for a mistrial upon the happening of such occurrence when the same is of such nature as would entitle him to a mistrial.” Blackwell v. State, 44 So.2d 409, 410 (Miss. 1950). A contemporaneous motion for a mistrial “is critical because it allows the judge to avert a mistrial, if possible, by admonishing the jury to disregard the utterance.” Knight v. State, 751 So.2d 1144, 1154 (¶ 26) (Miss.Ct.App.1999). We find Smith’s failure to timely request a mistrial or curative instruction is a procedural bar to our review of the issue. See, e.g., Randall v. State, 806 So.2d 185, 213 (¶ 69) (Miss.2001); Logan v. State, 773 So.2d 338, 349 (¶¶ 43-46) (Miss.2000); see also Collins v. State, 81 So.3d 1174, 1179 (¶13) (Miss.Ct.App.2011) (rehearing denied Nov. 29, 2011) (citing Parker v. State, 20 So.3d 702, 707-08 (¶ 23) (Miss.Ct.App.2009)).1 Still we address the merits.

¶ 10. The Fifth Amendment to the United States Constitution provides: “No person ... shall be compelled in any criminal case to be a witness against himself[.]” The Fourteenth Amendment incorporates this right to the states. Chamberlin v. State, 989 So.2d 320, 332 (¶ 35) (Miss. 2008). The applicable provision in the Mississippi Constitution essentially mirrors the federal right. It states: “In all criminal prosecutions the accused ... shall not be compelled to give evidence against himself[.]” Miss. Const. art. 3, § 26.

¶ 11. The United States Supreme Court has held that a criminal defendant’s post-Miranda silence may not be used by the government to impeach the defendant’s exculpatory testimony. See Doyle v. Ohio, 426 U.S. 610, 611, 619, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Because it is implicit in Miranda warnings “that silence will carry no penalty,” it would be fundamen[127]*127tally unfair to allow a defendant’s post-arrest silence to be used to impeach his subsequent trial testimony. Id. at 618, 96 S.Ct. 2240.2

¶ 12. It is “improper and ordinarily, reversible error to comment on the accused’s post-Miranda silence.” Emery v. State, 869 So.2d 405, 408-09 (¶ 17) (Miss.2004) (quoting Quick v. State, 569 So.2d 1197, 1199 (Miss.1990)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jarvis Jones v. State of Mississippi
Court of Appeals of Mississippi, 2025
Malcolm McLaughlin v. State of Mississippi
Court of Appeals of Mississippi, 2022
Jeffrey Martin v. State of Mississippi
266 So. 3d 652 (Court of Appeals of Mississippi, 2018)
Tawana Terrell Johnson v. State of Mississippi
252 So. 3d 50 (Court of Appeals of Mississippi, 2018)
George Lomax v. State of Mississippi
220 So. 3d 211 (Court of Appeals of Mississippi, 2017)
Casey Birkley v. State of Mississippi
203 So. 3d 689 (Court of Appeals of Mississippi, 2016)
Ryan Nicholas O'Donnell v. State of Mississippi
173 So. 3d 907 (Court of Appeals of Mississippi, 2015)
Donelson v. State
158 So. 3d 1154 (Court of Appeals of Mississippi, 2014)
Watts v. State
132 So. 3d 1062 (Court of Appeals of Mississippi, 2014)
Ellis v. State
141 So. 3d 415 (Court of Appeals of Mississippi, 2013)
Campbell v. State
118 So. 3d 598 (Court of Appeals of Mississippi, 2012)
Sanders v. State
97 So. 3d 1259 (Court of Appeals of Mississippi, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
90 So. 3d 122, 2012 WL 613324, 2012 Miss. App. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-missctapp-2012.