White v. State

48 So. 3d 454, 2010 Miss. LEXIS 431, 2010 WL 3276011
CourtMississippi Supreme Court
DecidedAugust 19, 2010
DocketNo. 2009-KA-01155-SCT
StatusPublished
Cited by18 cases

This text of 48 So. 3d 454 (White 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
White v. State, 48 So. 3d 454, 2010 Miss. LEXIS 431, 2010 WL 3276011 (Mich. 2010).

Opinion

DICKINSON, Justice,

for the Court:

¶ 1. Tommy White appeals his conviction of possession of a firearm by a convicted felon, correctly claiming the trial judge erroneously allowed hearsay into evidence. But the error was harmless, so we affirm.

BACKGROUND

¶2. White got into an argument with Tony Buckley, who was sitting in a parked car with Roger Smith near B.J.’s Corner Store in Oakland, Mississippi. After-wards, Buckley and White went to their respective homes.

¶ 3. Amanda Anderson was Buckley’s live-in girlfriend and Amanda’s sister, Latoya Anderson, is White’s niece. Later that night, Latoya called Amanda, who was at Buckley’s house, to say that White had armed himself with a baseball bat and a shotgun and was on his way over. About five minutes later, White showed up at Buckley’s house and walked around it three times. Both Buckley and Amanda testified White was wearing “something” with long sleeves and “something” was sticking out of his sleeve. Amanda left to walk to the nearby Oakland Town Hall to get the police. As she was leaving, she overheard White threaten to shoot Buckley.

¶4. By the time Oakland Police Chief Russ Smith and Officer Paul Thomas responded, it was dark outside. Officer Thomas and Chief Smith spotted White (who was known to them) one street over from Buckley’s residence in front of Denise Bradford’s house. Officer Thomas exited his police cruiser and asked White to come over and talk to them. After hesitat[456]*456ing for a moment, White fled. Officer Thomas and Chief Smith pursued him on foot.

¶ 5. White fell in a driveway, and Chief Smith saw a shotgun fall out of his hand. Officer Thomas did not see the shotgun but heard something hit the ground which sounded like a weapon. When Chief Smith saw White pick up the shotgun and continue running, he took the lead in the pursuit while Officer Thomas stopped and drew his weapon. The pursuit continued around the side of a house, where Chief Smith caught White and wrestled the shotgun away from him. The shotgun fell to the ground, • and White broke free and continued running.

¶ 6. The police soon apprehended White in a nearby yard and found shotgun shells in his pockets. A sawed-off shotgun was recovered on the ground near the location of the initial struggle between White and Chief Smith.

¶ 7. White was indicted for possession of a firearm by a convicted felon. The trial judge — over White’s hearsay objection— allowed both Amanda and Buckley to testify as to the content of the telephone call from Latoya. White was convicted, and the trial court adjudged him a habitual offender and sentenced him to serve a term of ten years in the custody of the Mississippi Department of Corrections. White again raised the hearsay issue in a motion for a new trial. In denying the motion, the trial court found that, even if Amanda’s testimony was hearsay, “in light of the facts presented in this case, it was harmless error.”

¶ 8. White now appeals, claiming the trial court committed reversible error in allowing the hearsay into evidence. White also claims his conviction was against the overwhelming weight of the evidence.

ANALYSIS

¶ 9. We employ an abuse-of-discretion standard1 when reviewing claims that the trial judge erred by admitting hearsay.

Latoya’s Statements Were Inadmissible Hearsay.

¶ 10. During Buckley’s direct examination, the following exchange occurred:

Q: Okay. And at some point in time did you receive a phone call or Amanda receive a phone call?
A: Yes
Q: And who called?
A: His niece?
Q: Is she any kin to Amanda?
A: That’s her sister.
Q: So Tommy would also be Amanda’s niece — or Amanda would also be Tommy’s niece; is that right?
A: No. This is his niece by her daddy.
Q: I got you. And what did the niece tell ya’ll?
DEFENSE: Your Honor, I’m going to object to hearsay.
STATE: Excited utterance, present sense impression.
DEFENSE: I still object. It’s a hearsay statement, Your Honor.
STATE: The witness is allowed if they were advised of a — 803(1) or 803(2) present sense impression or excited utterance is the exception that we’re using to hearsay.
THE COURT: I’m going to overrule the objection.
Q: What did she tell y’all?
A: That he came home and got a baseball bat and a shotgun and was coming back around there to my house.

[457]*457¶ 11. During the State’s direct examination of Amanda, the following exchange occurred:

Q: After he got back, did you receive a phone call?
A: Yes
Q: Who did you receive a phone call from?
A: My Sister, Latoya
Q: And what did she tell you?
DEFENSE: Your Honor, we would have the same objection, hearsay, that we had previously.
THE COURT: All right. Response?
STATE: Same response. Same excited utterance, present sense impression.
THE COURT: I’m going to sustain the objection.
STATE: It’s already before the jury, Your honor.
THE COURT: That was what she said to [Buckley].
STATE: The conversation was between her and her sister.
THE COURT: Okay. That being the case, I’m going to overrule the objection and allow the question to be answered].
Q: Did your sister call you concerning Tommy White?
A: Yes.
Q: And what did she tell you?
A: She called me. And when she called me I answered the phone, and she told me about the dispute, that she got a call up from where he stay at, you know, that they had some words.
DEFENSE: Your Honor, I’m going to renew this objection. If I’m understanding correctly, it’s becoming double hearsay. Am I missing [sic]?
STATE: I don’t think she went into the text of the conversation to make it double hearsay. She’s telling — I can rephrase it to make it more direct.
THE COURT: I’m going to sustain the objection. Why don’t you rephrase it?
Q: Did she tell you to beware of Tommy White?
A: Yes.
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Q: What did she tell you about Tommy?
A: That she got a phone call from up where he stay at.
Q: All right. Don’t get into that.
A: Okay.

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Cite This Page — Counsel Stack

Bluebook (online)
48 So. 3d 454, 2010 Miss. LEXIS 431, 2010 WL 3276011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-miss-2010.