Byrd v. State
| Docket Number: | 2006-KA-02044-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-18-2008 Opinion Author: LEE, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Aggravated assault & Felon in possession of firearm - Closing argument - Right to remain silent - Weight of evidence - M.R.E. 609 Judge(s) Concurring: KING, C.J., MYERS, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Non Participating Judge(s): ROBERTS, J. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 11-03-2006 Appealed from: Kemper County Circuit Court Judge: Lester F. Williamson Disposition: NANCY BYRD-CONVICTED OF AGGRAVATED ASSAULT AND ORDERED TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWELVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY $750 RESTITUTION TO THE VICTIM’S COMPENSATION FUND. WENDY MILLERCONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND ORDERED TO SERVE FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWELVE YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION AND PAY $750 RESTITUTION TO THE VICTIM’S COMPENSATION FUND; CONVICTED OF COUNT II, FELON IN POSSESSION OF A FIREARM, AND ORDERED TO SERVE THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS SUSPENDED AND FIVE YEARS OF POST-RELEASE SUPERVISION; THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO COUNT I WITH THE POST-RELEASE SUPERVISION FOR BOTH COUNTS TO RUN CONCURRENTLY District Attorney: Bilbo Mitchell Case Number: 2005-CR-33 |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | NANCY BYRD AND WENDY GAYLE (GAIL) BYRD MILLER |
LESLIE S. LEE |
|
|
| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS | ||
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. |
|
| Topic: | Aggravated assault & Felon in possession of firearm - Closing argument - Right to remain silent - Weight of evidence - M.R.E. 609 |
| Summary of the Facts: | Wendy Miller and Nancy Byrd were convicted of aggravated assault. Wendy was also convicted of being a felon in possession of a firearm. Nancy was sentenced to fifteen years with twelve years suspended and five years to serve on post-release supervision. Wendy was sentenced to fifteen years with twelve years suspended and five years post release supervision on the aggravated assault charge and to three years with two years suspended and five years post-release supervision on the firearm charge. They appeal. |
| Summary of Opinion Analysis: | Issue 1: Closing argument Nancy and Wendy argue that they were denied a fundamentally fair trial because of statements made by counsel during opening and closing arguments and on cross-examination. The standard of review that appellate courts must apply to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. While the prosecution made incorrect statements about the defense’s opening statement, the natural and probable effect of the prosecution’s statements did not create an unjust prejudice against Nancy or Wendy. Issue 2: Right to remain silent Nancy and Wendy argue that the deputy’s testimony that they declined to give statements penalized them for exercising their Fifth Amendment right to remain silent. Evidence of post-arrest silence is improper because it violates the accused’s right against self-incrimination. Here, the deputy’s statement was harmless error. Nancy and Wendy’s silence was not being used against them, and only one reference was made to their intentions to remain silent. Issue 3: Weight of evidence Nancy and Wendy argue that the verdict was against the overwhelming weight of the evidence. As for the argument that the prosecution unnecessarily attacked Wendy’s credibility, Wendy had a prior felony conviction for obtaining a controlled substance by fraud. Since Wendy’s prior felony conviction involved lying or deceit, impeachment based on M.R.E. 609 was proper. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
