Bougon v. State


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Docket Number: 2002-KA-00868-COA
Linked Case(s): 2002-CT-00868-SCT ; 2002-KA-00868-COA

Court of Appeals: Opinion Link
Opinion Date: 03-09-2004
Opinion Author: Irving, J.
Holding: Affirmed

Additional Case Information: Topic: Manslaughter - Evidence of flight - Declarant’s state of mind - M.R.E. 803(3) - Prior conviction - Initial appearance - URCCC 6.03 - Court’s comments - Comment on defendant’s failure to take the stand
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers, Chandler and Griffis, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 04-15-2002
Appealed from: Neshoba County Circuit Court
Judge: Vernon Cotten
Disposition: MANSLAUGHTER CONVICTION AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MDOC WITH ONE YEAR SUSPENDED AND ONE YEAR ON POSTRELEASE SUPERVISION.
District Attorney: Ken Turner
Case Number: 01-CR-0099-NSC

  Party Name: Attorney Name:  
Appellant: Phillip W. Bougon




JAMES W. KITCHENS MARGARET P. ELLIS JEFFREY LYNN ELLIS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS, JR.  

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Topic: Manslaughter - Evidence of flight - Declarant’s state of mind - M.R.E. 803(3) - Prior conviction - Initial appearance - URCCC 6.03 - Court’s comments - Comment on defendant’s failure to take the stand

Summary of the Facts: Phillip Bougon was convicted of manslaughter by culpable negligence and was sentenced to twenty years with one year suspended and one year on post-release supervision. Bougon appeals.

Summary of Opinion Analysis: Issue 1: Evidence of flight Bougon argues that the court erred in admitting certain evidence regarding flight and refusing to admit other evidence to explain or rebut the evidence of flight. While evidence of flight is admissible as evidence of consciousness of guilt, a flight instruction is appropriate only where the flight is unexplained and somehow probative of guilt or guilty knowledge. The State offered evidence tending to show that Bougon attempted to avoid law enforcement authorities and also offered evidence concerning the circumstances surrounding Bougon's arrest. Bougon argues that he had a reasonable explanation, unrelated to any involvement in the murder, for not returning home even though he knew that the authorities were looking for him, i.e., since he had been convicted of armed robbery ten years earlier, he feared being arrested for possession of a firearm by a convicted felon. However, he also contends he had a permit to carry a gun. It is inconsistent for Bougon to contend on the one hand that he possessed legal permission to carry a firearm but contend on the other that he feared being arrested for possession of firearms. Given the evidence, the court properly granted a flight instruction. Issue 2: Declarant’s state of mind Bougon argues that the court erred in preventing him from rebutting the State’s claim of flight by not allowing a witness to testify as to what he told her during the telephone conversation, because the testimony was admissible to explain why he acted as he did and to show his plans or intent. M.R.E. 803(3) allows the admission of a statement that would otherwise be excluded as hearsay, when it is a statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition. Bougon himself testified to basically the same things that the witness would have testified to. Therefore, any error was harmless. Issue 3: Prior conviction Bougon argues that the court erred in overruling his motion for a mistrial based on alleged improper statements made by prosecution witness about Bougon’s previous conviction. If serious and irreparable damage has not occurred from an objectionable remark, the judge should direct the jury to disregard the remark. Here, the judge took appropriate measures to cure any potential prejudicial effect of the remark by admonishing the jury. Issue 4: Initial appearance Bougon argues that the State’s failure to provide him with an initial appearance within forty-eight hours of his arrest resulted in statements which were later used against him at trial. While URCCC 6.03 requires that every person in custody be taken before a judicial officer within forty-eight hours of arrest, a violation of Rule 6.03 alone will not result in the suppression of evidence or reversible error where the defendant was informed of his rights and made a knowing and voluntary waiver. In this case, Bougon freely and voluntarily waived his rights under Miranda and freely gave a statement. Issue 5: Court’s comments Bougon argues that the court erred in denying his motion for a mistrial based on the judge’s remark which left the jury with the impression that the court would not allow a mistrial and that the jury would be forced to deliberate until they reached a verdict. However, the judge simply stated that the court would be in recess until a verdict was returned, and a review of the statement in the context in which it was made reveals that one could not reasonably interpret it to mean that a mistrial or hung verdict was not an option. Bougon also argues that a comment by the judge strongly suggested to the jury that the defense’s cross-examination of the witness was unusual in that it was more thorough and broader than an ordinary cross-examination. However, the comment was an explanation and not an attempt to influence the jury’s verdict. Issue 6: Comment on defendant’s failure to take the stand Bougon argues that the court erred in denying his motion for mistrial when a remark made by the prosecutor impermissibly conveyed to the jury that he was obligated to put on a defense in his behalf and would be forced to testify. The test is whether the language can be reasonably construed to be a comment upon the failure of the defendant to take the stand. Nothing in the record suggests that the statement in issue directly or indirectly referred to Bougon’s right to testify or take the stand, and the statement cannot be construed reasonably to mean what Bougon alleges.


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