Dao v. State
| Docket Number: | 2006-KA-01170-COA Linked Case(s): 2006-KA-01170-COA2006-CT-01170-SCT |
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| Oral Argument: | 07-18-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 12-11-2007 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Admission of gang-affiliation evidence - M.R.E. 404(b) - M.R.E. 616 - M.R.E. 403 - Admission of testimony - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-23-2005 Appealed from: Forrest County Circuit Court Judge: Robert Helfrich Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Jon Mark Weathers Case Number: 03-433-CR |
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| Party Name: | Attorney Name: | |||
| Appellant: | HON. ROBERT B. HELFRICH |
GLENN STURDIVANT SWARTZFAGER |
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| Appellee: | FORREST COUNTY CIRCUIT COURT | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY |
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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: | Aggravated assault - Admission of gang-affiliation evidence - M.R.E. 404(b) - M.R.E. 616 - M.R.E. 403 - Admission of testimony - Sufficiency of evidence |
| Summary of the Facts: | Jimmy Dao was convicted of aggravated assault and was sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Admission of gang-affiliation evidence Dao argues that the court erred in allowing the State to introduce evidence regarding his affiliation with a gang because the evidence was irrelevant and inadmissible under M.R.E. 404(b). Because the State did not offer any evidence that the assault was gang related or any evidence as to motive, the gang affiliation evidence was inadmissible to prove motive. The judge in this case admitted the evidence of Dao’s gang affiliation to show bias. This type of evidence is clearly permitted under M.R.E. 616. Prior to admitting gang-affiliation testimony, a trial judge should administer the balancing test of M.R.E. 403. While Dao is correct that the trial judge never said that he found the evidence more probative than prejudicial, the judge heard arguments from both parties regarding the admissibility of the evidence prior to reaching the conclusion that it should be admitted for the limited purpose of showing bias. The trial judge’s implicit determination is sufficient. Dao also argues that the court erred in failing to instruct the jury that it was permitted to use the gang evidence only to make determinations of credibility of those witnesses. Dao did not request a limiting instruction. Therefore, this issue is procedurally barred. Issue 2: Admission of testimony Dao argues that he was prejudiced by the State’s questions regarding the murder of another person. The testimony regarding the murder, which occurred at Dao’s mother’s home, was clearly improper and should not have been presented to the jury. Nevertheless, there is overwhelming evidence, including Dao’s own testimony, that when he fired the bullet into the door of the 4-Runner, he was not acting in self-defense. Therefore, admission of the evidence regarding the murder was harmless error. Issue 3: Sufficiency of evidence Dao argues that the State’s evidence proved that he did not possess the required intent to commit aggravated assault. Dao admitted on cross-examination that a person was seated in the 4-Runner when he fired the shot. Dao’s own testimony reveals that the person was not posing a threat when Dao fired the pistol. Thus, his argument is without merit. |
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