Whittington v. State

49 So. 3d 107, 2010 Miss. App. LEXIS 182, 2010 WL 1444555
CourtCourt of Appeals of Mississippi
DecidedApril 13, 2010
DocketNo. 2009-KA-00167-COA
StatusPublished
Cited by4 cases

This text of 49 So. 3d 107 (Whittington 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
Whittington v. State, 49 So. 3d 107, 2010 Miss. App. LEXIS 182, 2010 WL 1444555 (Mich. Ct. App. 2010).

Opinion

LEE, P.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On September 17, 2004, a jury in the Pike County Circuit Court found Karey Whittington guilty of murder. Whitting-ton was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections and ordered to pay a $10,000 fine. Whittington filed post-trial motions, which were denied. After receiving permission to file an out-of-time appeal, Whittington now appeals, asserting the following issues:' (1) he was prejudiced by hearsay statements; (2) he should have been allowed to use hearsay evidence to impeach the State’s hearsay evidence; (3) prejudice resulted from certain character evidence; (4) a manslaughter instruction was required; (5) a self-defense instruction was required; and (6) the verdict is not supported by the overwhelming weight of the evidence.

FACTS

¶ 2. During the evening of March 5, 1999, Jerry Frith was shot once in the chest and died shortly thereafter. The shooting occurred on a residential street in McComb, Mississippi, in an area referred to as Baertown. A witness, Leroy Carr, heard the shot and saw a red Chevrolet Camaro speeding away from where Frith’s body was found. Carr stated that two white men were in the Camaro.

¶ 3. The investigating authorities had no leads in Frith’s death until May 2003. In May 2003, Assistant Chief Perry Ashley of the McComb Police Department was notified that Robert LeBlanc had come forward with information regarding Frith’s murder. At the time LeBlanc was a trusty at the Pike County Jail. LeBlanc told Chief Ashley that Tony Temple stated that he was involved in Frith’s death. Temple also told LeBlanc that Whittington was involved.

¶ 4. Chief Ashley interviewed Temple in June 2003. Temple admitted that he owned a red Camaro and that he and Whittington were involved in Frith’s death. Temple stated that he and Whit-tington were looking for marijuana, so Temple pulled his car over next to two men. Discovering that these men did not have marijuana, Whittington told Temple to leave. As Temple was driving away, Whittington climbed halfway out the passenger door, pointed a shotgun toward the men, and shot at them. Temple told Chief Ashley that Whittington shot Frith using the .410-gauge shotgun, which he fired from inside Temple’s car. Temple stated that the shotgun belonged to his grandfather. Temple also told Chief Ashley that Dewayne Cash was present after the murder when Whittington bragged about shooting Frith. Temple and Whittington disposed of the shotgun. On cross-examination, Temple admitted that at some point that night, Whittington told Temple that Frith had a gun. Temple testified that he never saw a gun. According to Temple, Whittington at first said he fired the shotgun to scare the men, but later that night he said he fired at the men on [110]*110purpose. Whittington purportedly told Temple that he shot at the men because he was tired of being “ripped off’ by drug dealers.

¶ 5. Cash testified that he was living with Whittington during the time of Frith’s murder. According to Cash, Whit-tington told him that he leaned out of the passenger-side window of the car and shot a man, while Temple drove the car away.

¶ 6. Drew Wallace was incarcerated in the Pike County Jail at the same time as Whittington. Whittington was in jail awaiting his trial for Frith’s murder. Wallace testified that Whittington said, concerning Frith’s murder, “I did it, they know I did it, but they’ll never find the weapon.”

¶ 7. Candy Berry, Whittington’s ex-wife, testified that Whittington told her Frith pulled a gun on him; and as he left the scene, he shot the shotgun in the air, not at Frith. Whittington told Berry that he had acted in self-defense.

¶ 8. Mario Molinari was also incarcerated in the Pike County Jail at the same time as Whittington. Molinari testified that Whittington told him about the circumstances surrounding Frith’s death and repeatedly bragged about the shooting to other inmates. Molinari testified that Whittington told him the authorities would never find the gun.

¶ 9. Whittington presented several witnesses from the Pike County Jail, namely Raymond Dangerfield; Michael Kennedy; and Karey Whittington, Sr., Whittington’s father. All three men stated that they never heard Whittington admit to killing anyone.

¶ 10. Amanda Brewer also testified for Whittington, stating that Berry wanted to make sure Whittington stayed in jail.

¶ 11. Dr. Steven Hayne, a forensic pathologist, testified that Frith had a gunshot wound located on his lower right chest, and that he died from massive internal bleeding. Dr. Hayne testified that the bullet, upon entering Frith, traveled downward at approximately thirty degrees, consistent with the shooter being more elevated than the victim.

¶ 12. Steve Byrd, the crime lab technician, testified that the projectile recovered from Frith’s body was consistent with a .410-gauge shotgun. Byrd also identified the piece of fiber material found in Frith’s body as being consistent with filler wadding, a substance that takes up space in a .410-gauge-shotgun slug casing.

DISCUSSION

I. HEARSAY STATEMENTS

¶ 13. In his first issue on appeal, Whit-tington argues that several hearsay statements prejudiced his defense. Under Mississippi Rule of Evidence 801(c), hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” A trial court’s decision to admit or exclude testimony is reviewed for abuse of discretion. McGriggs v. State, 987 So.2d 455, 457 (¶ 3) (Miss.Ct.App.2008). “Even if this Court finds an erroneous admission or exclusion of evidence, we will not reverse unless the error adversely affects a substantial right of a party.” Id.

¶ 14. First, during Chief Ashley’s testimony, the State asked him whether Temple had offered any information regarding Frith’s murder. Whittington’s trial counsel objected on the ground of hearsay. The State countered that this information was not being submitted to prove the truth of what Temple had told Chief Ashley, but to show the steps Chief Ashley took during the investigation. The [111]*111State told the trial court that other witnesses, including Temple, would testify as to the truth of that statement. The trial court overruled the objection, but the Court instructed the jury that this particular statement was submitted to explain Chief Ashley’s actions in following up with the investigation. The trial court reiterated that the jury was not to take Temple’s statement to Chief Ashley as true. We find that these statements were not hearsay as they were submitted to show the actions Chief Ashley took during the investigation. See Myhand v. State, 981 So.2d 988, 991 (¶ 8) (Miss.Ct.App.2007); Ratliff v. State, 906 So.2d 133, 139 (¶ 21) (Miss.Ct.App.2004).

¶ 15. Chief Ashley also testified that he spoke with Cash the same day he interviewed Temple. The State asked Chief Ashley whether Cash’s information was consistent with Temple’s information. Chief Ashley started to answer that: “It was consistent with what Temple had already — ,” but Whittington’s trial counsel objected. Chief Ashley was not allowed to finish his statement. Although Chief Ashley did not finish his statement, we would still find this statement was submitted to show the actions Chief Ashley took during the investigation; thus, it was not hearsay.

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Bluebook (online)
49 So. 3d 107, 2010 Miss. App. LEXIS 182, 2010 WL 1444555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittington-v-state-missctapp-2010.