White v. State

919 So. 2d 1029, 2005 WL 1683608
CourtCourt of Appeals of Mississippi
DecidedJuly 19, 2005
Docket2003-KA-01664-COA
StatusPublished

This text of 919 So. 2d 1029 (White 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
White v. State, 919 So. 2d 1029, 2005 WL 1683608 (Mich. Ct. App. 2005).

Opinion

919 So.2d 1029 (2005)

Jamie WHITE, Appellant
v.
STATE of Mississippi, Appellee.

No. 2003-KA-01664-COA.

Court of Appeals of Mississippi.

July 19, 2005.

*1031 M. Lamar Arrington, Jeffrey A. Varas, Hazlehurst, attorneys for appellant.

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

Before KING, C.J., IRVING and GRIFFIS, JJ.

GRIFFIS, J., for the Court.

¶ 1. Jamie White was convicted of robbery in the Circuit Court of Jefferson County. White was sentenced to serve fifteen years in the Mississippi Department of Corrections. We find no error and affirm.

FACTS

¶ 2. On January 22, 2002, Amy Gower telephoned her friend, Kermit Malloy to inform him that she intended to visit him. Later that same evening, Gower called again explaining that she was stranded with car trouble and needed help. Malloy asked Carlos Brown, his friend, to accompany him to help Gower and the two drove in Brown's vehicle to her location.

¶ 3. Unbeknownst to Malloy, Gower and three other men had devised a plan. Malloy and Brown arrived at Gower's location and found her sitting on the roof of a Lincoln Towncar. Gower told them that she was "out of gas," and the two men began to assist her. Malloy and Brown returned to their vehicle where they waited on Gower. Suddenly, the doors to their car were opened and three men stood and pointed guns at Malloy and Brown. The three men instructed Malloy and Brown to remove their clothes and lie face down on the ground. Personal items, a miniature Doberman Pincher, and a car stereo were stolen. Gower and the three men then left the scene.

¶ 4. Four individuals were arrested for their role in the robbery. Gower was arrested on January 28, 2002. She implicated Donald Craig, Jamie White, and Carl Corey. Subsequently, these three men were arrested. Gower, Craig, and Corey pled guilty to robbery and testified against White at trial.

STANDARD OF REVIEW

¶ 5. The standard of review for denial of a motion for directed verdict or for judgment notwithstanding the verdict is the same. Alford v. State, 656 So.2d 1186, 1189 (Miss.1995). Once the jury has returned a guilty verdict, neither the trial court nor this Court is at liberty to direct that the defendant be found not guilty *1032 unless, viewed in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Conners v. State, 822 So.2d 290, 293 (¶ 6) (Miss.Ct. App.2001). This Court must consider as true all evidence consistent with the defendant's guilt, and the State must be given the benefit of all favorable inferences. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). It is not for this Court to pass on the credibility of witnesses, and where the evidence justifies the verdict, it must be accepted as having been found worthy of belief. Grooms v. State, 357 So.2d 292, 295 (Miss.1978). Under this standard of review, we look at the evidence presented at trial that favors the guilty verdict.

ANALYSIS

I. Improper closing remarks made by the district attorney.

¶ 6. White argues that the trial court should have granted his motion for JNOV or, in the alternative, for a new trial due to improper comments made by the prosecution in closing arguments. The State argues that White did not properly object or timely seek a mistrial. Therefore, this argument is procedurally barred.

¶ 7. In closing argument, the district attorney made the following statement: "It's his right to have a trial, but it's your duty, it's your duty to convict him for coming into Jefferson County robbing somebody." White's counsel objected. The trial judge sustained the objection. The trial judge then instructed the district attorney to rephrase his argument. The district attorney did so and continued with his closing argument. The closing arguments were then completed. The trial judge next asked counsel if there was anything further. At this time, White's counsel moved for a mistrial. The motion was denied. The jury was sent out to deliberate, and the verdict was rendered. White made no other mention of the matter until filing his motion for JNOV or, in the alternative, for a new trial.

¶ 8. If trial counsel deems opposing counsel to be "overstepping the wide range of authorized argument," he must make a timely objection and "insist upon a ruling by the trial court." Johnson v. State, 477 So.2d 196, 209-10 (Miss.1985). The trial court must first determine if the objection should be sustained or overruled. Id. Then, if the argument is improper and, the objection is sustained, the trial counsel has a "further duty" to move for a mistrial at this time. Id. If the trial court rules that a statement was improper, the court must then admonish the jury to disregard the statement, unless the statement caused serious and irreparable damage; in that case, the trial judge may grant a mistrial. Id.

¶ 9. We find that, even if the prosecutor's remarks were improper, the particular statement at issue is not a statement that caused serious and irreparable damage to White's case. Far more damaging to White's case was the actual evidence put on by the State. We cannot say that this passing comment made in closing argument so prejudiced White as to warrant a new trial. Therefore, we find this issue to be without merit.

II. Jury instructions.

¶ 10. White argues that the trial court erred in two aspects regarding the jury instructions. First, by allowing instruction S-5, White argues that the jury had two avenues to find him guilty. Specifically, White maintains that under such instruction, White could have been found guilty as the principal, or as an accomplice. White also contends that the trial court erred in refusing jury instruction D-7, his circumstantial *1033 evidence instruction. White argues that the evidence supported such an instruction. We will consider each instruction separately.

¶ 11. The trial court enjoys considerable discretion regarding the form and substance of jury instructions. Our principal concern is that the jury was fairly instructed and that it understood both the defendant's and the prosecution's theory of the case. Rester v. Lott, 566 So.2d 1266, 1269 (Miss.1990). When examining jury instructions refused by the trial court, we look at the evidence from the view of the party requesting the instruction. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992). Each party has the right to have his theory of the case presented to the jury by instructions, provided that there is credible evidence that supports that theory. Id.

¶ 12. White argues that instruction S-5 was submitted in error because he was indicted as a principal, not an accomplice. Instruction S-5 reads:

The Court instructs the Jury that the guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

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Related

Solem v. Helm
463 U.S. 277 (Supreme Court, 1983)
Harmelin v. Michigan
501 U.S. 957 (Supreme Court, 1991)
Hester v. State
463 So. 2d 1087 (Mississippi Supreme Court, 1985)
Grooms v. State
357 So. 2d 292 (Mississippi Supreme Court, 1978)
McClain v. State
625 So. 2d 774 (Mississippi Supreme Court, 1993)
Rester v. Lott
566 So. 2d 1266 (Mississippi Supreme Court, 1990)
Hollins v. State
799 So. 2d 118 (Court of Appeals of Mississippi, 2001)
Alford v. State
656 So. 2d 1186 (Mississippi Supreme Court, 1995)
Reynolds v. State
585 So. 2d 753 (Mississippi Supreme Court, 1991)
Sullivan v. State
749 So. 2d 983 (Mississippi Supreme Court, 1999)
Franklin v. State
676 So. 2d 287 (Mississippi Supreme Court, 1996)
Johnson v. State
477 So. 2d 196 (Mississippi Supreme Court, 1985)
Hoops v. State
681 So. 2d 521 (Mississippi Supreme Court, 1996)
Gathright v. State
380 So. 2d 1276 (Mississippi Supreme Court, 1980)
Splain v. Hines
609 So. 2d 1234 (Mississippi Supreme Court, 1992)
Keys v. State
478 So. 2d 266 (Mississippi Supreme Court, 1985)
Conners v. State
822 So. 2d 290 (Court of Appeals of Mississippi, 2001)
Montana v. State
822 So. 2d 954 (Mississippi Supreme Court, 2002)

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Bluebook (online)
919 So. 2d 1029, 2005 WL 1683608, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-state-missctapp-2005.