210 So. 3d 569
Miss. Ct. App.2016Background
- On Sept. 1, 2011, Jeanette Yung was attacked in her driveway: the assailant (identified at trial as Burgess) threatened her with a Leatherman, forced her toward his truck, and she suffered cuts and bruises before escaping; items and blood were recovered at the scene.
- Burgess was arrested later that day after a vehicle crash and identified by Yung in a photo lineup; a Leatherman sheath and a Walmart greeting card were found in his truck.
- Burgess testified he was in the subdivision scavenging discarded items, denied intent to kidnap or assault, and claimed a struggle over the Leatherman occurred.
- A jury convicted Burgess of attempted kidnapping and aggravated assault; he received concurrent MDOC sentences (10 and 20 years) to run consecutive to an earlier sexual-battery sentence.
- On appeal Burgess raised five claims: admission of prior convictions and exclusion of testimony about appealing them; denial of mistrial after a witness referenced a separate interview about an assault on Burgess’s wife; exclusion of cell-phone records; the propriety of an “acquit first” lesser‑included instruction (S‑3A); and denial of a fair/impartial jury based on a juror who favored police credibility.
Issues
| Issue | Burgess's Argument | State's Argument | Held |
|---|---|---|---|
| Admissibility of three prior felony convictions under MRE 609(a)(1) | Prior sexual‑battery convictions were irrelevant to credibility and unduly prejudicial; should be excluded. | Convictions are admissible for impeachment if Peterson factors support probative value over prejudice; details of sexual offenses can be withheld. | Trial court did a Peterson hearing, limited disclosure (no sexual‑battery details), and did not abuse discretion in admitting convictions for impeachment. |
| Permit testimony that Burgess intended to appeal prior convictions (MRE 609(e)) | He should have been allowed to testify he intended to appeal to mitigate prejudice of introducing convictions. | Rule 609(e) permits evidence only of a pending appeal; intent to appeal without a pending appeal is not admissible. | No pending appeal at trial; trial court properly excluded testimony about intent to appeal. |
| Mistrial after witness referenced interview about an assault on Burgess’s wife | Mention of another alleged assault was highly prejudicial and required mistrial. | The reference was inadvertent; objection was sustained and the jury was instructed to disregard, curing any prejudice. | Trial court denied mistrial but gave curative instruction and individually questioned jurors; appellate court found no abuse of discretion. |
| Exclusion of Burgess’s cell‑phone records | Records would verify location/calls and support Burgess’s scavenging explanation. | Records were not relevant to proving or disproving elements of kidnapping/aggravated assault. | Records were irrelevant under MRE 401; exclusion was within the trial court’s discretion. |
| Giving “acquit first” lesser‑included instruction (S‑3A) | The instruction pressures jurors and risks coerced verdicts; it should have been refused. | “Acquit first” instructions are permissible; instruction appropriately framed. | Court held such instructions are not prohibited by Mississippi law and S‑3A was proper. |
| Denial of fair and impartial jury due to juror favoring police credibility | Juror 12 should have been struck for cause; requiring a peremptory to remove him denied fairness. | Defendant used a peremptory to remove juror; mere loss of a peremptory is not a constitutional violation absent an incompetent juror forced to serve. | Because juror 12 was removed by peremptory and no incompetent juror was forced to sit, no constitutional violation was shown. |
Key Cases Cited
- White v. State, 785 So. 2d 1059 (Miss. 2001) (overruled McInnis; Rule 609 admits non‑dishonesty convictions if Rule 609 analysis supports admissibility)
- Peterson v. State, 518 So. 2d 632 (Miss. 1987) (factors to weigh probative value vs. prejudice for impeachment by prior convictions)
- Fulgham v. State, 46 So. 3d 315 (Miss. 2010) (Mississippi law permits “acquit first” lesser‑included instructions)
- Carpenter v. State, 910 So. 2d 528 (Miss. 2005) (standard for mistrial relief and curative effect of jury admonition)
- Johnson v. State, 68 So. 3d 1239 (Miss. 2011) (loss of a peremptory challenge alone does not establish denial of an impartial jury)