Fullilove v. State
101 So. 3d 669
| Miss. Ct. App. | 2012Background
- Fullilove was arrested in Clarksdale on Feb 9, 2010 in connection with a Walmart theft and an outstanding misdemeanor warrant; the State charged him with conspiracy and grand larceny as a habitual offender; in a pretrial interview he admitted involvement and described accomplices; Walmart surveillance and the interview were admitted at trial; the jury found him guilty of conspiracy and not guilty of grand larceny, and he was sentenced to five years as a habitual offender.
- The indictment reflected his status as a habitual offender due to two prior non-violent felony offenses; the prior convictions used for habitual-offender status were possession of cocaine and possession of stolen property.
- During the State’s rebuttal at trial, the prosecutor commented on Fullilove’s lack of testimony and argued that Fullilove spoke through video and a pretrial statement; Fullilove’s counsel objected to a mistrial.
- The circuit court denied motions for mistrial and JNOV; Fullilove appealed arguing sufficiency of the evidence, hearsay, prosecutorial comment, and habitual-offender status.
- On review, the Mississippi appellate court affirmed, finding sufficient evidence of conspiracy, no reversible error in evidentiary rulings, proper handling of the prosecutorial comment, and correct habitual-offender determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Post-trial motions for JNOV or new trial | JNOV/new trial should be granted; verdict against weight of evidence | Evidence supports verdict; no error | Court affirmed denial of JNOV/new trial |
| Hearsay within Investigator Walker testimony | Testimony about Officer Hinton identifying suspects was hearsay | Testimony served investigatory purposes; admissible | Assignment lacks merit; error not shown to affect substantial rights |
| Prosecutor's comment on defendant's silence | Comment violated Fifth Amendment by referencing failure to testify | Comment permissible as response to defense argument; no mistrial needed | No abuse of discretion; comment within proper closing argument as contextualized by Dora/Robinson |
| Habitual-offender status under §99-19-81 | Two prior felonies established habitual-offender status | Second prior conviction improperly calculated | Two prior felonies satisfy statutory requirement; sentence affirmed |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (standard for sufficiency of evidence; rational view of the evidence supports conviction)
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prohibition on prosecutorial comment that silence is evidence of guilt)
- United States v. Robinson, 485 U.S. 25 (U.S. 1988) (prosecutor’s comment about opportunity to testify must respond to defense, not imply guilt)
- Dora v. State, 986 So.2d 917 (Miss. 2008) (distinguishes comments on failure to testify from comments on lack of defense)
- Jackson v. State, 381 So.2d 1040 (Miss. 1980) (habitual-offender status may be based on prior convictions despite suspension or probation)
- Blakeney v. State, 39 So.3d 1001 (Miss. 2010) (confession as direct evidence when admitting on element of offense)
- Smith v. State, 984 So.2d 295 (Miss. Ct. App. 2007) (out-of-court statements admissible to explain officer’s investigation)