Anderson v. State
| Docket Number: | 2006-KP-00282-COA Linked Case(s): 2006-KA-00282-COA ; 2006-CT-00282-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-09-2008 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault & Possession of firearm by felon - Remarks by prosecutor - URCCC 3.05 - Peremptory strikes - Hearsay - M.R.E. 801(c) - Flight instructions Judge(s) Concurring: Lee and Myers, P.JJ., Chandler, Griffis, Barnes, Roberts, and Carlton, JJ. Concur in Part, Concur in Result 1: Irving, J. Concurs in Result Only: King, C.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-10-2004 Appealed from: LEFLORE COUNTY CIRCUIT COURT Judge: Richard Smith Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND SENTENCED AS A HABITUAL OFFENDER TO TWENTY YEARS; COUNT II, AGGRAVATED ASSAULT, AND SENTENCED AS A HABITUAL OFFENDER TO TWENTY YEARS; AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED TO THREE YEARS, WITH ALL SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PROBATION OR PAROLE District Attorney: Willie Dewayne Richardson Case Number: 2003-0111-CICR |
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| Party Name: | Attorney Name: | |||
| Appellant: | REGINALD ANDERSON |
GEORGE T. HOLMES,
LESLIE S. LEE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER |
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| Topic: | Aggravated assault & Possession of firearm by felon - Remarks by prosecutor - URCCC 3.05 - Peremptory strikes - Hearsay - M.R.E. 801(c) - Flight instructions |
| Summary of the Facts: | Reginald Anderson was convicted for two counts of aggravated assault and one count of possession of a firearm by a convicted felon. He was sentenced as a habitual offender to twenty years for each count of aggravated assault and three years for possession of a firearm by a convicted felon, with all sentences to run concurrently. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Remarks by prosecutor Anderson argues that the trial court erred by overruling his objection to certain remarks made by the prosecutor to the venire panel during voir dire. It is well established that during voir dire the prosecutor has a duty to make such inquiries as would insure that the jurors would be fair and impartial to the defendant as well as to the State's case. Abuse of discretion will only be found where a defendant shows he or she was clearly prejudiced by the prosecutor’s comments. Anderson argues that the prosecutor asked the jury to commit to a certain verdict in violation of URCCC 3.05 and that the word “thug” used by the prosecutor is invective and was only used to prejudice the jury pool against him. Under Rule 3.05, the posing of hypothetical questions to the venire panel during voir dire, which requires a juror to pledge a particular verdict, is prohibited. However, a hypothetical question does not create per se reversible error where the prosecutor does not specifically request a verdict during voir dire. Ascertaining whether jurors are capable of returning a specific verdict differs greatly from requiring them to pledge a specific verdict under a hypothetical question. The record does not indicate any statements or questions by the prosecution requiring the venire panel to pledge a specific verdict. The prosecutor merely asked if the jurors were capable of returning a guilty verdict regardless of whether or not they perceived Anderson and the victims to possess certain character flaws. While a prosecutor’s decision to refer to a defendant, victim, or any other party to a criminal prosecution as a “thug” inherently increases the danger that the jury will be prejudiced against that party, Anderson was clearly not prejudiced. Any prejudice created by the prosecutor’s question was rehabilitated by both the trial judge and Anderson’s attorney prior to the completion of voir dire. Issue 2: Peremptory strikes Anderson argues that the State exercised its peremptory strikes on six African American jurors in a racially motivated manner. There is nothing in the record that suggests Anderson objected to the State’s peremptory strikes at the time that they were made. His failure to do so procedurally bars this issue for review. In addition, Anderson failed to show that the facts and circumstances of this case raised an inference that the prosecutor used his peremptory challenges for the sole purpose of striking black jurors from the venire. The only argument offered by Anderson was that the prosecutor’s challenges must have been racially motivated because all six were used on black jurors. However, the record reflects that Anderson, as well as both of the aggravated assault victims, are black. Therefore, race was not directly nor inferentially an issue in the underlying trial. Further, the venire pool was predominately black. The record also clearly shows that even after the State used all six of its peremptory challenges on black jurors, the final jury was still made up of seven black jurors and five white jurors. Issue 3: Hearsay Anderson argues that the trial court erroneously admitted hearsay testimony by a police sergeant who was allowed to testify as to what he was told by several witnesses during his investigation of the shooting. Although hearsay is prohibited by M.R.E. 801(c), an exception exists for certain hearsay statements made to the police during the course of their investigation. However, where the out-of-court statement is testimonial in nature, the statement is generally not admissible unless the declarant is unavailable to testify in court, and the defendant has had a prior opportunity to cross-examine him or her. In this case, the statements were not admitted for the purpose of proving the truth of the matter asserted but rather to explain the next step in the sergeant’s investigation, which was to develop a photographic lineup that included Anderson’s picture. Further, even if the sergeant’s recitation of the witnesses’ statements were considered to be testimonial, any error by the trial court in admitting the statements would be harmless because Anderson had the opportunity to cross-examine all three witnesses at trial. Issue 4: Flight instructions Anderson argues that there was insufficient evidence to support two separate flight jury instructions, because there was no direct evidence that he ever left Greenwood prior to being arrested. A flight instruction is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge. The State offered evidence tending to show that Anderson attempted to avoid law enforcement authorities for a three-and-a-half-month period, including the day of his arrest. There was probative value in considering flight in this case, and the trial court did not err by granting the flight jury |
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