Mixon v. StateMixon v. State
- Reporters:
- ,
- Before:
- Smith, Dickinson, Randolph
¶ 1. Darryl Mixon was tried and convicted by a jury of motor vehicle theft under
FACTS
¶ 2. At approximately 6:15 a.m. on December 9, 2002, Theodis Smith entered a Spur service station to pay for gasoline. While entering he passed a man leaving the store who, moments later, jumped into Smith‘s truck and began driving away. The clerk alerted Smith that someone was driving his truck away from the station. Smith ran outside and saw that the driver was the same man he had passed while entering the store. At the same time, a co-worker of Smith was driving by and picked Smith up. The two followed Smith‘s truck behind a white Honda Accord which was also following Smith‘s truck. Subsequently, Smith‘s truck came to a stop. The driver of the Accord also stopped, jumped out, and aided in unloading tools from Smith‘s truck. Smith called the police, giving them the address of a nearby home, and remained there awaiting their arrival. Both the drivers, in Smith‘s truck and the Accord, fled the scene before Officer Catchings arrived. The officer obtained a report of the incident and descriptions of the perpetrators from Smith. At approximately 8:45 a.m., Smith was notified by the police that two individuals fitting the descriptions had been captured. Smith went to the scene and, in the presence of Officers Catchings and Williams, identified Mixon as the person who had stolen his truck. At trial, Smith stated that he did not know Mixon before the theft and had never given Mixon permission to use or borrow the truck.
¶ 3. On March 12, 2004, the jury found Mixon guilty of motor vehicle theft under
ANALYSIS
¶ 4. Mixon raises three issues on appeal. First, he alleges that the State was erroneously allowed to bolster its case through the hearsay testimony of Detective Steven Wansley. Second, he argues that the State‘s second amendment to the indictment during trial was flawed. Third, he asserts that the State‘s summation was inflammatory.
¶ 5. This Court “will not order a new trial unless convinced that the verdict is so contrary to the overwhelming weight of evidence that, to allow it to stand, would be to sanction an unconscionable injustice.” Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). To hold otherwise would “denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Groseclose v. State, 440 So.2d 297, 300 (Miss.1983). Since “jury verdicts will not be disturbed except under the most dire of circumstances,” the review of criminal convictions is “in the light most favorable to the conviction.” King v. State, 798 So.2d 1258, 1261 (Miss.2001).
¶ 6. The admission of evidence is within the sound discretion of the trial judge. That discretion must be exercised in conformity with the Mississippi Rules of Evidence. Reversal is only appropriate when an abuse of discretion has “result[ed] in prejudice to the accused.” Parker v. State, 606 So.2d 1132, 1137-38 (Miss.1992); See also Sewell v. State, 721 So.2d 129, 138 (Miss.1998).
¶ 7. In the presence of Officers Catchings and Williams, Smith identified Mixon as the individual who had taken his truck. Officer Catchings later advised Detective Steven Wansley of Smith‘s identification of Mixon. Following Officer Catchings‘s testimony at trial, Detective Wansley testified that Officer Catchings advised him of Smith‘s identification of Mixon.
¶ 8. Mixon argues that, over his objection, Detective Wansley was improperly permitted to testify that Officer Catchings had told him that Smith identified Mixon as the perpetrator. On redirect, the same alleged hearsay was permitted as the circuit judge concluded that such “investigative work” was not incompetent hearsay and/or because the “door had been opened” to the hearsay on cross-examination.1
¶ 9. Citing Murphy v. State, 453 So.2d 1290, 1294 (Miss.1984), Mixon maintains that “you simply cannot `open the door’ to hearsay.” In Murphy, this Court found that “[h]earsay is incompetent evidence. You may open the door for collateral, irrelevant, and otherwise damaging evidence to come in on cross-examination ... but Mississippi recognizes no rule of law that allows double hearsay to be brought in through this open door.” Id. (citations omitted). We reaffirm the holding of this Court in Murphy. See also Kolberg v. State, 829 So.2d 29, 77 (Miss.2002). However, the inquiry regarding admissibility does not end there. The Mississippi Rules of Evidence control the admissibility vel non of the alleged double hearsay or, more accurately stated, hearsay included within hearsay. “Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules.”
¶ 10.
¶ 11. Mixon further argues that such a statement is inadmissible hearsay citing Ratcliff v. State, 308 So.2d 225, 227 (Miss. 1975). Ratcliff did hold that the statements of an informant to investigators were inadmissible hearsay. However, that decision is clearly distinguishable from the case at bar. The linchpin of the Ratcliff decision was that “an accused person is entitled to be confronted with and have opportunity to cross-examine witnesses against him.” Id. In Ratcliff, the
II. Was the second attempted amendment of the indictment during trial flawed?
¶ 12. Mixon‘s indictment for motor vehicle theft initially included the word “feloniously,” in spite of the fact that the term is absent from the motor vehicle theft statute.2 Mixon contends that while the State‘s second motion to amend the indictment3 to remove the word “feloniously” was granted by the trial judge over Mixon‘s objection, no actual order allowing this amendment was entered as required by
¶ 13. The “purpose of an indictment is to furnish the accused [with] such a description of the charges against him as will enable him to adequately prepare his defense.” King v. State, 580 So.2d 1182, 1185 (Miss.1991) (quoting Williams v. State, 445 So.2d 798, 804 (Miss.1984)).
¶ 14. Here there was an oral motion to amend the indictment during trial because the word “feloniously” was included in the indictment due to a “scrivener‘s error.” Mixon was clearly charged with motor vehicle theft under
¶ 15. “The court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.”
¶ 16. Lastly, Mixon asserts that the State‘s closing argument prejudicially referred to Mixon‘s prior conviction for false pretenses and inflammatorily alluded to Mixon‘s guilt.8 As one may note by the style of this case, Mixon has a penchant to use more than one name or alias, including at the time of his arrest for this crime. The trial court found that Mixon‘s testimony, including an explanation for furnishing an alias to the arresting officer during direct examination, opened the door for the State to cross-examine Mixon regarding both a prior false pretenses conviction and his use of aliases.9 Therefore, the trial court overruled the objection of Mixon‘s counsel to questions on cross-examination about a prior conviction and prior use of alias names.
¶ 17. The Mississippi Rules of Evidence support the trial judge‘s determination. See
¶ 18. “[T]he test to determine if an improper argument by a prosecutor requires reversal is whether the natural and probable effect of the prosecuting attorney‘s improper argument created unjust prejudice against the accused resulting in a decision influenced by prejudice.” Dunaway v. State, 551 So.2d 162, 163 (Miss.1989). The evaluation of prejudice is a “question of severity” in which “the trial court has discretion in determining whether the inflammatory or prejudicial nature of the prosecutor‘s statement is significant enough to warrant granting the defendant‘s motion for a mistrial.” Sullivan v. State, 749 So.2d 983, 991 (Miss.1999) (citing Hoops v. State, 681 So.2d 521, 528 (Miss.1996)). While prosecutors “must exercise caution and discretion in making extreme statements in their arguments to the jury,” Johnson v. State, 596 So.2d 865, 869 (Miss.1992), “Where is no precedent supporting the [idea] that a single inappropriate
¶ 19. In Ramseur v. State, 368 So.2d 842 (Miss.1979), this Court held that the trial judge properly sustained an objection to a prosecutor‘s argument that the jurors were representatives of “the people of the State of Mississippi and this community.” Id. at 845. Since the trial court sustained the objection, this Court found that no prejudice resulted. See id.
¶ 20. In the present case, the trial judge sustained the defendant‘s objection to the State‘s closing argument that “[Mixon] doesn‘t want to go to jail today. If he did, he would have pled guilty a long time ago, and he would be in jail.” The trial judge then told the jury to disregard the statements of the prosecutor. Thereafter, the trial judge overruled the defendant‘s motion for a mistrial. In so doing, the trial judge did not abuse his discretion. Under Ramseur, by sustaining the objection and informing the jury of the necessity of disregarding the putative prejudicial statements, any potential prejudice was avoided. Accordingly, this Court finds that the trial judge‘s decision to overrule the defendant‘s motion for a mistrial was an appropriate exercise of his discretionary power under the circumstances.
CONCLUSION
¶ 21. Finding no prejudice to Mixon because of the trial court‘s rulings, and further finding no other basis to disturb the verdict of the jury, we affirm the judgment of the trial court.
¶ 22. CONVICTION OF MOTOR VEHICLE THEFT AND SENTENCE OF LIFE IMPRISONMENT, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.