206 So. 3d 524
Miss.2016Background
- On Feb 9, 2012, Nelson discovered 150 pieces of steel scaffolding missing from his construction property; Walters’s truck was photographed delivering scaffolding to General Recycling on Feb 9, 2012. Walters later sold scrap metal to that recycler and had rented a forklift on Feb 7, 2012.
- Walters and codefendant Arnold Bailey were indicted for grand larceny (stealing scaffolding worth $500+). Walters was tried three times; first two trials ended in mistrials, third in conviction and a 10-year sentence.
- At trial the State introduced scale tickets and recycling photos, Nelson’s scaffolding, police and expert testimony identifying the scaffolding type and value, and Google Earth historical images as rebuttal to Walters’s claim that the scaffolding was his.
- The Legislature amended the grand-larceny statute in July 2014 (raising the minimum value and changing penalties) after the charged offense but before Walters’s conviction; trial court used the pre-amendment law at trial and sentencing.
- Walters appealed, raising: (1) incorrect application of grand-larceny statute (instruction and sentencing), (2) trial court’s quashing of Bailey’s subpoena, (3) admission of Google Earth images, (4) ineffective assistance of counsel and judicial bias (pro se).
Issues
| Issue | Plaintiff's Argument (Walters) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Application of grand-larceny statute (value element at trial) | Jury should have been instructed under amended statute (min $1,000) in effect at conviction | Statute governing crime/elements is the version in effect at time of offense; amendment not retroactive | Court held pre-amendment statute ( $500 threshold) governed because §99-19-1 preserves law in effect at time of offense; no plain error |
| Sentencing under amended statute | Sentencing court should apply ameliorative amendment in effect at conviction (shorter maximum) | §99-19-1 controls; amendment did not expressly apply retroactively; §99-19-33 not applicable here | Court held sentence under pre-amendment law was proper; §99-19-33 inapplicable; argument fails |
| Quashing subpoena for codefendant Bailey | Quash improperly denied Walters compulsory-process right; Bailey should have been called so jury could hear answers or Fifth invocation | Bailey, as untried codefendant, asserted a blanket Fifth-Amendment privilege on advice of counsel; court may quash when witness would invoke privilege to essentially all questions | Court upheld quashing as non-abuse of discretion: Bailey was co-defendant, counsel advised blanket Fifth, and trial judge had sufficient basis to prevent a useless appearance; any alleged harm did not affect third trial verdict |
| Admission of Google Earth historical images | Images were unauthenticated and hearsay (labels/datestamps unreliable) | Images are like photographs (not hearsay) and were prima facie authenticated by GIS director who used them routinely | Court held images are not hearsay and were properly authenticated prima facie under Rule 901; admission not an abuse of discretion |
| Ineffective assistance / judicial bias (pro se) | Counsel failed to invoke amended statute; judge punished under harsher law | State relies on governing statutory retroactivity and record | Court rejected pro se claims as meritless given statutory retroactivity rulings |
Key Cases Cited
- Moffett v. State, 49 So.3d 1073 (Miss. 2010) (issues not raised below are procedurally barred on appeal)
- Williams v. State, 794 So.2d 181 (Miss. 2001) (plain-error standard articulated)
- McGee v. State, 953 So.2d 211 (Miss. 2007) (plain-error inquiry elements)
- Russell v. State, 358 So.2d 409 (Miss. 1978) (legislature has exclusive authority to define crimes and punishments)
- West v. State, 725 So.2d 872 (Miss. 1998) (discussion of application of amended sentencing statutes and interplay with §99-19-1)
- Wilson v. State, 194 So.3d 855 (Miss. 2016) (overruling prior interpretation of §99-19-33; clarifies when ameliorative statutes apply)
- Edmonds v. State, 955 So.2d 787 (Miss. 2007) (addressing when blanket Fifth-Amendment claims may render witness unavailable)
- Lacouture v. United States, 495 F.2d 1237 (5th Cir. 1974) (trial court may refuse to require appearance of witness who will claim Fifth to essentially all questions)