Tate v. State


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Docket Number: 2003-KA-02504-SCT
Oral Argument: 01-19-2005
 

 

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Supreme Court: Opinion Link
Opinion Date: 03-24-2005
Opinion Author: Dickinson, J.
Holding: Affirmed

Additional Case Information: Topic: Possession & delivery of marijuana - Prior convictions - M.R.E. 404(b) - M.R.E. 403 - Evidence of arrests - Limiting instruction - Potential witness - Closing argument - Mistrial - Weight of evidence - Cruel and unusual punishment
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Randolph, JJ.
Non Participating Judge(s): Diaz, J.
Concurs in Result Only: Graves, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 11-07-2003
Appealed from: Lauderdale County Circuit Court
Judge: Larry Eugene Roberts
Disposition: Appellant was convicted of possession and delivery of marijuana.
District Attorney: Bilbo Mitchell
Case Number: 298-03

  Party Name: Attorney Name:  
Appellant: Kirby Glenn Tate




Glen W. Hall J. Niles McNeel Percy Stanfield



 

Appellee: State of Mississippi W. Daniel Hinchcliff Charles W. Maris, Jr. Jim Hood  

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Topic: Possession & delivery of marijuana - Prior convictions - M.R.E. 404(b) - M.R.E. 403 - Evidence of arrests - Limiting instruction - Potential witness - Closing argument - Mistrial - Weight of evidence - Cruel and unusual punishment

Summary of the Facts: Kirby Tate was convicted of possession and delivery of marijuana. He appeals.

Summary of Opinion Analysis: Issue 1: Prior convictions Tate argues that the court erred in allowing the State to question him about his prior convictions because these convictions occurred more than ten years prior to the date of the current trial. The court held Tate’s prior convictions to be inadmissible for purposes of impeachment because they fell outside the ten-year period, and Tate argues that the court should have used the same reason to exclude the conviction for purposes of M.R.E. 404(b) when conducting a M.R.E. 403 balancing inquiry. Tate presented an entrapment defense at trial. Entrapment is the act of inducing or leading a person to commit a crime not originally contemplated by him, for the purpose of trapping him for the offense. If the defendant already possessed the criminal intent, and the request or inducement merely gave the defendant the opportunity to commit what he or she was already predisposed to do, entrapment is not a defense. A defendant’s prior drug activity is admissible to show predisposition. Therefore, Tate’s prior convictions were admissible for the purpose of showing Tate’s predisposition to selling marijuana. The record does not show, however, that the court balanced the evidence of Tate’s prior convictions under M.R.E. 403 before allowing them to be admitted. While prior convictions which have been found relevant under M.R.E. 401, and which satisfy M.R.E. 404(b) may be potentially admissible to prove disposition, they may be allowed into evidence only after passing a Rule 403 balancing test, which must be conducted on the record. Failure of the court in this case to conduct a Rule 403 inquiry was error. However, the error was harmless since the court gave a limiting instruction to the jury regarding the purpose for which these convictions could be considered and overwhelming evidence of Tate’s guilt was presented at trial. Issue 2: Evidence of arrests Tate argues that the court should not have allowed the State to introduce evidence of his arrest for possession of marijuana and possession with intent to deliver and his arrest for possession of marijuana. The court did not abuse its discretion in allowing the State to question Tate about the arrests as rebuttal to Tate’s testimony. Tate opened the door for cross-examination on his drug-related activities. Issue 3: Limiting instruction Tate argues that the court erred by not giving a limiting instruction concerning his arrests. The record shows no request by Tate for the instruction. Issues not brought before the trial court are deemed waived and may not be raised for the first time on appeal. In addition, a court is not required to issue a sua sponte instruction, and the burden is upon counsel to request a limiting instruction if the defense desires one. Issue 4: Potential witness Tate argues that the court erred in refusing his request to reopen his case and call the daughter of the confidential informant as a witness to impeach her father’s testimony. The court did not abuse its discretion when it ruled that the potential witness could not testify. The court explained its reasoning thoroughly on the record, and the decision was within the court’s discretion. Issue 5: Closing argument Tate argues that the district attorney made misleading and improper statements in closing argument that Tate would get back with his children when his sentence was completed. The defense made no objection to the prosecutor’s remarks at trial. This issue is thus procedurally barred. Issue 6: Mistrial Tate argues that the court should have granted his motion for a mistrial on the basis that several defense witnesses were intimidated by Lauderdale County law enforcement officials. The court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant's case. The judge was in the best position to observe these witnesses and to determine the effect this alleged incident had on the trial. Both witnesses later testified. Tate has not shown how this incident prejudiced or damaged his case. Issue 7: Weight of evidence Tate argues that the cumulative effect of all of the errors denied him a fair and impartial trial. Tate admitted that at least some of the marijuana found at the scene of the arrest belonged to him, and the testimony of the confidential informant and the law enforcement officers established that Tate was in possession of marijuana and participating in what he believed to be a sale of marijuana. Based on this evidence, the verdict was not against the weight of the evidence. Issue 8: Cruel and unusual punishment Tate argues that his sentence constituted cruel and unusual punishment, because his sixty year sentences without parole will leave him incarcerated until he is ninety-nine years old. Sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the limits prescribed by statute. Tate’s sentence is within the statutory guidelines prescribed by the Legislature for the crime for which he was convicted. In addition, his sentence is not grossly disproportionate to his crime.

HOLDING: Affirmed.


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