Kenneth Hartzog v. State of Mississippi
240 So. 3d 462
Miss. Ct. App.2017Background
- On Oct. 5, 2014, Jackson police responded to a call about shots fired at a residence; officers entered after hearing a loud verbal altercation.
- Officers encountered Kenneth Hartzog and a woman (Rosina Griffin). Officer McCinnis observed the man holding a gun, which the man allegedly threw to the floor and attempted to flee; officers tackled and arrested him.
- Hartzog, later identified, signed a Miranda waiver and admitted in a recorded interview that he retrieved a gun from a back bedroom and fired a shot outside the house.
- Griffin testified she never saw Hartzog with a gun, said the gun was in a box several steps away, and claimed officers threatened her; she disputed Hartzog’s admission.
- A jury convicted Hartzog of being a felon in possession of a firearm; he was sentenced as a habitual offender to ten years without early release or probation.
- The trial court found Hartzog timely entitled to an out-of-time appeal after he filed a motion for counsel within 30 days; the State challenged timeliness but the Court of Appeals upheld the extension and proceeded to the merits.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Hartzog) | Held |
|---|---|---|---|
| Timeliness of appeal | Appointment/order authorized out-of-time appeal was proper given timely motion for counsel and indigence | Appeal was untimely because notice filed beyond 30 days | Appeal was timely; trial court had good cause under M.R.A.P. 4 to extend time and appointed counsel perfected appeal |
| Denial of defense instruction D-6 (lack of knowledge of weapon) | Instructions given (S-1A) adequately required willful/knowing possession; law fairly announced | Trial court erred by refusing instruction that would have instructed jury to acquit if defendant did not know a deadly weapon was in the house | Denial not erroneous: instructions read as a whole covered "knowing" possession and fairly announced the law |
| Supplemental instruction C-10 (constructive possession) | C-10 properly clarified law on constructive possession in response to jury question | C-10 introduced a new theory and prejudiced defense / impaired counsel’s ability to respond | Court acted within discretion under Girton and URCCC 3.10; C-10 correctly stated constructive-possession law and could be given as supplemental instruction |
Key Cases Cited
- Busby v. Anderson, 978 So. 2d 637 (Miss. 2008) (jurisdiction and appellate-timeliness reviewed de novo)
- Milano v. State, 790 So. 2d 179 (Miss. 2001) (instructions reviewed as a whole; they must fairly announce the law)
- Davis v. State, 18 So. 3d 842 (Miss. 2009) (trial court may refuse instructions that incorrectly state the law or lack evidentiary foundation)
- Cooley v. State, 14 So. 3d 63 (Miss. Ct. App. 2008) (elements of felon-in-possession: possession and prior felony)
- Moore v. State, 676 So. 2d 244 (Miss. 1996) (act done willfully is also knowingly done)
- Girton v. State, 446 So. 2d 570 (Miss. 1984) (guidance on responding to jury questions; avoid unnecessary supplemental instructions)
- Hughes v. State, 983 So. 2d 270 (Miss. 2008) (trial court’s grant of supplemental instruction reviewed for abuse of discretion)
- Short v. State, 929 So. 2d 420 (Miss. Ct. App. 2006) (possession proven by actual or constructive possession)
- Curry v. State, 249 So. 2d 414 (Miss. 1971) (constructive possession requires awareness of presence/character and dominion or control)