Decisions – Miss.Ct. App. – Aug. 5, 2014

Donelson v. State Albert “Batman” Donelson was acquitted of robbery but convicted of aggravated assault in the beating of a man who was severely beaten, stripped of his clothes, and placed in a shopping cart. Donelson appeals on sufficiency of the evidence grounds, that he was prejudiced by the prosecution’s referring to him as Batman, that the court erred in failing to give an instruction on impeachment of a witness, that he was denied the right to cross-examine a witness about a deal he was given, that the trial court erred in defining reasonable doubt during voir dire, and that the court erred in not considering evidence discovered after the trial. The Court of Appeals affirms. This first sentence of the opinion should give you an idea of Batman’s character: “Albert Donelson, Eric Lindsey, and Antonio Marshall beat Richard Crosby, stripped him naked, stuffed him in a grocery cart, and dumped him in a parking lot—all because Donelson did not recognize Crosby as he walked past Donelson’s house late one night.”

Bates v. State – Bates was convicted of simple assault on a law enforcement officer and sentenced to 5 years. The victim here, Sheriff’s Deputy James Cox, was working as a security officer at a Jackson restaurant (Reed Pierce’s) with the approval of his boss and in uniform. On the night of the altercation, last call had been announced and the wait staff was waiting around to divide up their tips. Bates was hanging around and the manager asked Cox to ask Bates to leave. Bates took exception with the request to leave. When two more security guards stepped up, Bates left the restaurant and the deputies followed him. In the parking lot,Bates kept threatening to beat Cox up and ruin his career. He then got in his truck and drove toward the guards making a sharp turn so that his truck would broadside them. He also fired his gun. Cox jumped into his marked vehicle and radioed for backup. Bates was arrested at a nearby house. Recovered from his truck was a .38 revolver and a spent shell casing. Bates was charged with agg. assault on a police officer. The state requested a lesser included instruction on simple assault. The jury convicted him of simple assault. On appeal he argues sufficiency of the evidence claiming that there was insufficient evidence that Cox was acting within the course and scope of his employment when Bates assaulted him because he was being paid by the restaurant.

While no Mississippi case has dealt with this exact issue, other states have. And the consensus is that an officer’s private employment as a security guard does not limit his authority or responsibility to act within his official duties. See, e.g., S.D. v. State, 11 So. 3d 401, 402 (Fla. Dist. Ct. App. 2009) (“A police officer can be engaged in the lawful performance of his duties when working an off-duty job.”); State v. DeSanto, 410 A.2d 704,705 (N.J. Sup. Ct. App. Div. 1980) (“[T]he police uniform has the same significance to the public whether the wearer is technically on or off duty[, and] in such a situation[,] the municipality and its public expect and obtain real benefits from the police officer.”) . . . .

Bates also objects to the testimony of the jail nurse who was called in rebuttal after Bates testified that the gun had gone off accidentally causing his ears to ring and burning his skin. Bates objected to the nurse’s testimony because she did not actually examine him. The guards gave Bates a form and showed it to the nurse who testified that the form did not mention ringing ears or burned skin. Bates objected to her testimony because she did not have personal knowledge. The Court finds that the fact she did not examine Bates goes to weight and not admissibility.

Howell v. State – Howell was indicted for murder but found guilty of manslaughter in the death of LaKeith Jones. Denorris Howell and his friend Cal Curry were at Howell’s house when a car drove up with Lakeith Jones, Jeremy Jones, Dean Bridgeforth and Terrance Cowan in it. Howell has sold Jones a car and Jones still owed money on it. He drove to Howell’s to pay the balance and get a set of keys. Jones met up with Howell in Howell’s garage and an argument ensued. Howell ended up shooting Jones who was unarmed. Howell defended the case claiming he shot Jones in self defense and should have been given an instruction pursuant to the castle doctrine. The court finds no error. “As a review of the record reflects, the evidence fails to show that Jones unlawfully and forcibly entered Howell’s home or that Jones attempted to assault or commit violence upon Howell.” The court also finds that Howell’s sufficiency of the evidence argument lacks merit as does his argument that the court erred in refusing to admit photos of Howell’s family members.

Clay v. State – Clay was convicted of agg. assault and sentenced to three years. Clay got into a fight with Marquita Thomas at Thomas’s apartment over a man. They got into an argument. At some point Clay pulled out a box cutter and began slashing Thomas. Thomas grabbed a chair and hit Clay in the shoulder whereupon the guy over whom they were fighting broke up he fight. There were several people at the apartment who witnessed the fight. Cedric McRay testified that Clay only used the box cutter in self defense. He was impeached with the fact he had been previously convicted of misdemeanor false information. Clay argues that the court should have excluded this evidence. The Ct of Appeals affirms finding that evidence that a witness has been convicted of a crime involving dishonesty is admissible. MRE 609(a)(2). Clay next argue that the court should have excluded facebook posts purportedly made by Clay. The court agrees:

In this instance, we find the State has failed to make a prima facie case that the Facebook comments were from Clay. Although some of the postings mention a fight and the name Marquita, there was no testimony that the photograph in the Facebook profile was that of Clay. The profile states the account belongs to a “Crystal Clear,” who was born on March 4; graduated from Clarksdale High School; speaks Japanese, Chinese, and English; and lives in Paris, France. No personal information regarding Clay was elicited to determine whether the profile was hers. Furthermore, Clay did not admit authorship of these postings, nor was there testimony she was seen composing these comments. The only testimony concerning Clay’s Facebook usage occurred prior to the altercation with Thomas, which only established that Clay had used Thomas’s computer in the past to log in to her Facebook account. This testimony also highlights concerns regarding the susceptibility of Clay’s Facebook account to a potential security breach.

Notwithstanding that the trial court erred, the admission of the evidence was harmless given that three witnesses who testified that Clay arrived at Thomas’s apartment angry and ready to fight and that once the fight began, Clay pulled out a box cutter.

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