265 So. 3d 151
Miss.2019Background
- Eric Sharkey was tried for two counts of armed robbery and one count of possession of a firearm by a convicted felon; convicted on all counts and sentenced (15, 15, and 10 years concurrent); found to be a habitual offender.
- Co-defendants Madison Magee and Marvin Bolden had pleaded guilty earlier and were serving sentences; they testified for the State at Sharkey's trial.
- Victims Patterson and Berry testified that Magee, Bolden, and Sharkey jointly robbed them at gunpoint; Patterson identified Sharkey (tattoos) and recovered property and a .40 pistol from the vehicle where Sharkey was a passenger.
- During voir dire the prosecutor told the venire that co-defendants had pled guilty; one veniremember said he had formed an opinion and was excused for cause; Sharkey moved for a mistrial which the trial court denied and took no further curative action.
- Sharkey objected at trial to alleged nonverbal signaling by the prosecutor, requested a duress instruction, and requested lesser-included-offense instructions for simple robbery and petit larceny; the trial court denied those requests.
- The Mississippi Supreme Court affirmed Sharkey's convictions, addressing (1) voir dire disclosure of co-defendants' pleas, (2) alleged prosecutor signaling, (3) refusal of a duress instruction, and (4) refusal of lesser-included instructions.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Sharkey) | Held |
|---|---|---|---|
| 1. Voir dire disclosure of co-defendants' guilty pleas | Disclosure was not evidence, proper to probe juror bias, and the remark occurred in voir dire; juror who said he was biased was excused | Disclosure prejudiced the venire and required mistrial or curative instruction | No abuse of discretion; statement in voir dire not used at trial, biased juror excused, no substantial prejudice shown |
| 2. Prosecutor gave nonverbal signals to witness | No improper signaling occurred on the record | Prosecutor signaled witness to elicit inadmissible testimony (Williams) | Overruled objection within trial court's discretion; record does not show impermissible hand signals |
| 3. Denial of duress jury instruction | Instruction lacked evidentiary foundation; no testimony showed Sharkey feared Magee | Sharkey contended he acted under fear and was entitled to instruction on duress | Denial proper: duress instruction requires evidentiary support and Sharkey offered no evidence of threats or fear meeting Banyard factors |
| 4. Denial of lesser-included offense instructions (simple robbery/larceny) | Evidence showed armed robbery with firearms and active participation; no factual basis for lesser offenses | Sharkey argued he did not know robbery would occur and did not actively join; property value unclear for petit larceny | Denial proper: no evidentiary basis for simple robbery or petit larceny; participation in armed robbery made him a principal regardless of who held weapon |
Key Cases Cited
- Pitchford v. State, 45 So.3d 216 (Miss. 2010) (abuse-of-discretion standard for mistrial rulings)
- Banyard v. State, 47 So.3d 676 (Miss. 2010) (four-part test for duress defense)
- McCray v. State, 293 So.2d 807 (Miss. 1974) (co-indictee convictions not competent evidence; reversible error and protection of fair trial)
- Ivy v. State, 301 So.2d 292 (Miss. 1974) (evidence of co-indictee conviction inimical to fair trial)
- White v. State, 616 So.2d 304 (Miss. 1993) (distinguishing permissible uses of accomplice guilty plea—impeachment/prior consistent statement—from substantive proof)
- Wallace v. State, 466 So.2d 900 (Miss. 1985) (permissible impeachment use of codefendant guilty plea when co-defendant testifies)
- Reid v. State, 266 So.2d 21 (Miss. 1972) (curative instruction can mitigate prejudice from disclosure of co-defendant proceedings)
- Williams v. State, 539 So.2d 1049 (Miss. 1989) (attorney must not signal witness; improper gestures can be reversible when used to introduce inadmissible evidence)
- Strickland v. State, 980 So.2d 908 (Miss. 2008) (participant in armed robbery is a principal regardless of who held the weapon)
- McCune v. State, 989 So.2d 310 (Miss. 2008) (lesser-included instructions require an evidentiary basis)