Thomas v. State
| Docket Number: | 2011-KA-00840-COA Linked Case(s): 2011-KA-00840-COA ; 2011-CT-00840-SCT ; 2011-CT-00840-SCT ; 2011-CT-00840-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-02-2012 Opinion Author: Fair, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault & Felon in possession of weapon - Sufficiency of evidence - Section 97-37-5 - Discovery violation - URCCC 9.04(I)(2) - Character evidence - Missing witness - M.R.E. 804(a)(5) - Limit on cross-examination Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-03-2011 Appealed from: Hinds County Circuit Court Judge: Jeff Weill, Sr. Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, FELON IN POSSESSION OF A WEAPON, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Robert Schuler Smith Case Number: 06-1-026 |
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| Note: | On October 3, 2013, the Supreme Court reversed this opinoin part and affirmed it in part. The Supreme Court opinion can be found at http://courts.ms.gov/Images/Opinions/CO86677.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Anthony Tyrone Thomas a/k/a Anthony J. Thomas a/k/a Anthony B. Thomas a/k/a Big Hab a/k/a Anthony Thomas |
GEORGE T. HOLMES
WILLIAM R. LABARRE
VIRGINIA LYNN WATKINS
ALISON OLIVER KELLY |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE |
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| Topic: | Aggravated assault & Felon in possession of weapon - Sufficiency of evidence - Section 97-37-5 - Discovery violation - URCCC 9.04(I)(2) - Character evidence - Missing witness - M.R.E. 804(a)(5) - Limit on cross-examination |
| Summary of the Facts: | Anthony Thomas was convicted of aggravated assault and felon in possession of a weapon. In 2009, the Court of Appeals reversed Thomas’s conviction and remanded the case for a new trial because inadmissible evidence of prior convictions was admitted. Thomas now appeals his conviction for aggravated assault and felon in possession. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Thomas argues that the State presented insufficient evidence to prove the knife in question was a prohibited butcher knife. Section 97-37-5 prohibits a convicted felon from possessing “any firearm or any bowie knife, dirk knife, butcher knife, [or] switchblade knife . . . .” Thomas argues that the knife was just an average steak knife and not covered by the statute. What type of knife Thomas used in his attack was a question of fact for the jury. Direct evidence was admitted in the form of eyewitness testimony, and the handle of the knife was placed in evidence. Circumstantial evidence was presented as to the length of the blade and its strength. Thus, there was sufficient evidence for the jury to convict Thomas of being a felon in possession of what it determined was a butcher knife. Issue 2: Discovery violation Thomas argues that the State violated discovery rules when it failed to disclose a witness’s written statement before trial. The witness’s statement was not produced in discovery because it was sealed in an evidence bag which was not made available to the defense until two weeks prior to trial. The witness was on the State’s witness list. The trial judge granted the defense an opportunity to review the statement and the defense did not seek a continuance or a mistrial. Therefore, under URCCC 9.04(I)(2) the trial court was not obligated to exclude the evidence or grant a continuance or mistrial. Issue 3: Character evidence Thomas argues that inadmissible character evidence was presented that prejudiced his defense and the trial court should have declared a mistrial. The witness gave a non-responsive answer to the prosecutor’s question, and the trial judge sustained the defense’s objection and offered to instruct the jury to disregard the statement. Defense counsel refused the instruction and cannot now argue that it was error for the trial judge not to give it. Issue 4: Missing witness Thomas argues that a witness’s testimony from the previous trial should not have been admitted into evidence because she was not unavailable within the meaning of M.R.E. 804. Under Rule 804(a)(5), a witness is unavailable if he is “absent from the hearing[,] and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.” While the State must make a diligent effort to locate a missing witness, the State is not required to do everything conceivable to locate the witness. In this case, the State had its criminal investigator testify regarding his efforts to locate the witness. Because the State made reasonable and diligent efforts to locate the witness, the court did not err in finding the witness unavailable. Issue 5: Limit on cross-examination Thomas argues that his right to cross-examine the unavailable witness about the victim’s drug and alcohol use was improperly limited. This issue is procedurally barred, because Thomas never objected on this ground at trial. |
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