Burnett v. State
| Docket Number: | 2006-KA-01015-COA Linked Case(s): 2006-KA-01015-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-27-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Bigamy & False pretenses - Section 97-29-13 - Section 99-11-17 - Jury instruction - Admission of testimony - Spousal privilege - Section 13-1-5 - M.R.E. 504(b) Judge(s) Concurring: KING, C.J., LEE, P.J.J., MYERS, P.JJ., IRVING, J. GRIFFIS, J. BARNES, J., ISHEE, J., ROBERTS, J., CARLTON, J.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-25-2006 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: CONVICTED OF COUNT I BIGAMY AND SENTENCED TO TEN YEARS; COUNT II FALSE PRETENSES AND SENTENCED TO TEN YEARS TO RUN CONCURRENTLY WITH COUNT I; AND COUNT III FALSE PRETENSES AND SENTENCED TO TEN YEARS SUSPENDED WITH FIVE-YEARS OF POSTRELEASE SUPERVISION TO RUN CONSECUTIVELY WITH COUNTS I AND II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Jon Mark Weathers |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | DAVID GENE BURNETT BUTT A/K/A DAVID GENE BURNETT |
RAY T. PRICE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Bigamy & False pretenses - Section 97-29-13 - Section 99-11-17 - Jury instruction - Admission of testimony - Spousal privilege - Section 13-1-5 - M.R.E. 504(b) |
| Summary of the Facts: | David Burnett was convicted of one count of bigamy and two counts of false pretenses. He was sentenced to ten years each on two of the counts, and to ten years suspended with five years of post-release supervision on the remaining count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Burnett argues that, because his marriage to his second wife took place in Tennessee, jurisdiction was proper in that state and not in Mississippi. He argues that the language of section 97-29-13, the bigamy statute, prohibits only the actual marriage ceremony and not the cohabitation in a bigamous relationship. However, section 99-11-17 provides that, when an offense is commenced in Mississippi and consummated out of state, an accused may be indicted and tried in the county in which an offense was commenced. It is clear from the testimony that Burnett, while at home in Forrest County, planned to take his wife out of state to marry her. At no point did Burnett plan to remain in Tennessee, and he and his wife only stayed there for a week after the marriage ceremony and then returned to their home in Forrest County. The crime was actually commenced in Forrest County as provided for under section 99-1-17, and this was sufficient to allow the Forrest County Circuit Court to hear the case against Burnett. Issue 2: Jury instruction Burnett argues that the court erred by refusing to grant defense’s jury instruction on the ownership of a joint account. A defendant is entitled to have the trial court give jury instructions that present his theory of the case; however, the court may deny an instruction that misstates the law, is covered elsewhere in the instructions, or is not supported by the evidence. While the instruction may be a correct interpretation of a joint account, it is, nevertheless, irrelevant to the charges of false pretenses that Burnett faced. Proving that Burnett deposited the funds into a joint account would not negate the false pretense charges. Issue 3: Admission of testimony Burnett argues that the court erred in allowing his first wife to testify, because her testimony was inadmissible, she was incompetent as a witness against him, and it violated his spousal privilege. Section 13-1-5 provides that, with some exceptions, one spouse is not a competent witness against the other spouse. Nevertheless, the supreme court has held that this does not prevent former spouses from testifying against each other, even relating to acts during the marriage, so long as the testimony was not privileged communication. Burnett’s marriage to his first wife ended when, upon her petition, the Florida court declared that David Eugene Burnett died on August 13, 1998, in the Gulf of Mexico. As such, she was his ex-wife at the time of the trial and, therefore, competent to testify against him. M.R.E. 504(b) did not operate to preclude her from testifying against Burnett, since she did not testify as to communication between Burnett and herself, let alone a confidential communication. Also, the trial judge was within his discretion when he allowed her to testify to the facts relating to her marriage to Burnett, his disappearance, and how their marriage eventually ended. |
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