Harris v. State


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Docket Number: 2006-KA-01695-COA

Court of Appeals: Opinion Link
Opinion Date: 04-01-2008
Opinion Author: BARNES, J.
Holding: Affirmed

Additional Case Information: Topic: Aggravated assault - Display of injuries - M.R.E. 403 - Hearsay - M.R.E. 103(a) - M.R.E. 801(c) - Excited utterance - M.R.E. 803(2) - Weight of evidence - Ineffective assistance of counsel - M.R.E. 611(c)
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 09-08-2005
Appealed from: Hinds County Circuit Court
Judge: Winston Kidd
Disposition: CONVICTED OF TWO COUNTS OF AGGRAVATED ASSAULT AS A HABITUAL OFFENDER AND SENTENCED TO TWENTY YEARS ON COUNT I AND TWENTY YEARS ON COUNT II WITH THE SENTENCE IN COUNT I TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II AND CONSECUTIVELY TO THE SENTENCE IN MADISON COUNTY CAUSE NUMBER 2001-0503
District Attorney: Eleanor Faye Peterson
Case Number: 02-0-010

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: LACORY HARRIS A/K/A LECORRY HARRIS LACCORY FREDREKO A/K/A CORY HARRIS A/K/A LIL C




JAMES KEVIN RUNDLETT



 
  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI JEFFREY A. KLINGFUSS  

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    Topic: Aggravated assault - Display of injuries - M.R.E. 403 - Hearsay - M.R.E. 103(a) - M.R.E. 801(c) - Excited utterance - M.R.E. 803(2) - Weight of evidence - Ineffective assistance of counsel - M.R.E. 611(c)

    Summary of the Facts: Lacory Harris was convicted of two counts of aggravated assault for using an automobile to cause injury to his former girlfriend and her young daughter. He was sentenced to twenty years as a habitual offender. He appeals.

    Summary of Opinion Analysis: Issue 1: Display of injuries The trial court agreed to allow Harris’ ex-girlfriend to bring her daughter before the jury as she testified about the injuries the child suffered as a result of the wreck. Harris argues that allowing the child to appear before the jury was more prejudicial than probative and should have been precluded under M.R.E. 403. Not only does the Mississippi Constitution guarantee the victim of a crime the right to be present and be heard during the criminal proceedings, but section 99-43-21 provides that the victim has the right to be present throughout all criminal proceedings. In addition, the State was required to offer proof of serious bodily injury in order to convict Harris of aggravated assault. Thus, the child’s actual injuries were not devoid of probative value. Under these circumstances, the trial court did not abuse its discretion in finding that the probative value of the jury’s viewing the child’s injuries was not substantially outweighed by unfair prejudice to Harris. Issue 2: Hearsay Harris argues that the only witness who gave testimony that he committed a crime was his ex-girlfriend, and the rest of the State’s witnesses were erroneously allowed, over objection, to give hearsay evidence of his guilt. The testimonies to which Harris objects are primarily those of the persons who responded to the accident scene shortly after the wreck. He argues that the excited utterance exception to the hearsay rule should not apply because when his ex-girlfriend made the statements to the bystanders, she was no longer under the stress of the accident. Under M.R.E. 103(a), a ruling that allowed or excluded evidence will not be reversed unless a substantial right of the defendant was affected by the ruling. Clearly, the testimonies of those witnesses who came to the ex-girlfriend’s aid and of the investigating police officers regarding Harris causing the wreck were hearsay testimony under M.R.E. 801(c). None had independent knowledge of Harris’s actions of jerking the steering wheel. In evaluating whether a statement qualifies as an excited utterance exception under M.R.E. 803(2), it is important that there has been no intervening matter to eliminate the state of excitement and call into question the reliability of the utterance. Spontaneity is essential. Here, all of the hearsay statements fall under the excited utterance exception. The statements were made shortly after the trauma of the wreck in which the ex-girlfriend sustained injuries and after searching for and finding her small daughter seriously injured. Issue 3: Weight of evidence Harris argues that his conviction was against the overwhelming weight of the evidence, because all the jury had to hear were three inconsequential bits of information: there was a severely injured infant; Harris was a womanizing ex-convict; and he left the scene of the accident. The jury made a credibility decision between Harris’ version of events and his ex-girlfriend’s version and accepted the girlfriend’s. The jury, as the finder of fact, was completely within its authority in making the finding. Issue 4: Ineffective assistance of counsel Harris argues that his trial counsel was ineffective. Where the record is insufficient to support a claim of ineffective assistance, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief. He argues that trial counsel’s failure to subpoena certain telephone records amounted to ineffective assistance of counsel. The cell phone record, which Harris claims would bolster his version of events, is not a part of the record on appeal. Therefore, Harris' claim of ineffective assistance of counsel is dismissed without prejudice to preserve his right to renew such a claim on post-conviction collateral relief if he so chooses. Harris also argues that his trial counsel was ineffective for failing to object to fifty leading questions asked of his ex-girlfriend by the assistant district attorney during her testimony. M.R.E. 611(c) states that leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Harris has failed to demonstrate that trial counsel’s failure to object to the alleged leading questions constituted ineffective assistance. Failure to object to leading questions may fall within the ambit of trial strategy.


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