Vickers v. State
| Docket Number: | 2006-KA-01711-COA Linked Case(s): 2006-KA-01711-COA ; 2006-KA-01711-COA ; 2006-CT-01711-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-08-2008 Opinion Author: ROBERTS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Capital murder, Aggravated assault, Conspiracy to commit capital murder & Possession of a firearm by a convicted felon - Sufficiency of evidence - Double jeopardy - Impeachment evidence - M.R.E. 609(a)(1) - Juror misconduct - Ability to present meaningful defense - M.R.E. 613(b) - M.R.E. 103(a)(2) - M.R.E. 801(c) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS AND ISHEE, JJ. Non Participating Judge(s): CARLTON, J. Concur in Part, Concur in Result 1: Barnes, J. without separate written opinion. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 05-13-2003 Appealed from: WASHINGTON COUNTY CIRCUIT COURT Judge: Richard Smith Disposition: CONVICTION OF COUNT I CAPITAL MURDER AND SENTENCE OF LIFE WITHOUT THE POSSIBILITY OF PAROLE; AND COUNT II AGGRAVATED ASSAULT AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I; AND COUNT III CONSPIRACY TO COMMIT CAPITAL MURDER AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I AND CONCURRENTLY TO THE SENTENCE IN COUNT II; AND COUNT IV CONSPIRACY TO COMMIT CAPITAL MURDER AND SENTENCE OF TWENTY YEARS TO RUN CONSECUTIVELY TO COUNT I AND CONCURRENTLY TO COUNT II AND III; AND COUNT VI POSSESSION OF A FIREARM BY A CONVICTED FELON AND SENTENCE OF THREE YEARS TO RUN CONSECUTIVELY WITH COUNT I AND CONCURRENTLY WITH COUNTS II, III, AND IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND ORDER TO PAY COURT COSTS OF $263. District Attorney: Willie Dewayne Richardson Case Number: 2002-357 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES DWIGHT VICKERS, SR. |
JAMES LAPPAN,
ANDRE DE GRUY,
LESLIE S. LEE |
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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: | Capital murder, Aggravated assault, Conspiracy to commit capital murder & Possession of a firearm by a convicted felon - Sufficiency of evidence - Double jeopardy - Impeachment evidence - M.R.E. 609(a)(1) - Juror misconduct - Ability to present meaningful defense - M.R.E. 613(b) - M.R.E. 103(a)(2) - M.R.E. 801(c) |
| Summary of the Facts: | James Vickers, Sr. was convicted of capital murder, aggravated assault, conspiracy to commit capital murder, a second conviction of conspiracy to commit capital murder, and possession of a firearm by a convicted felon. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Vickers argues that the State failed to meet its burden as to capital murder because there was no direct evidence proving that anything of value was offered or exchanged from Vickers to the hired assassin for the killing of the victim, Vickers’ brother. Two witnesses testified that after their failed attempts to murder the victims in exchange for money, Vickers contacted them and told them that he found someone else to complete the job. They also testified, without contradiction, that Vickers told them that he told the other man he would pay him $50,000 for killing his brother and sister-in-law. One of the victims and a neighbor identified the assassin from a photograph array. Viewing all evidence in a light most favorable to the prosecution, it was legally sufficient to support the jury’s verdict of guilt. This evidence was also more than sufficient to prove that the assassin committed the aggravated assault of one of the victims while in the employ of Vickers. Vickers also argues that no conspiracy could have existed between Vickers and one of the witnesses, because the witness testified that he never planned on actually murdering the victims. The witness did testify that he never planned on killing anyone, and as Vickers argues, there must have been an agreement between Vickers and the witness to accomplish an unlawful purpose. However, contrary to his stated intention, the witness also testified as to his involvement in the attempts on the victims’ lives. Given the actions of the witness in furtherance of the conspiracy, it was fully within the jury’s discretion to discount his testimony that he did not intend to go through with the murders. With regard to the conviction of possession of a firearm by a convicted felon, Vickers argues that there was no testimony corroborating the witnesses’ testimonies that Vickers possessed the pistols; jury instruction number twenty-two allowed the jury to find Vickers guilty if they found he possessed a .38 caliber pistol, or a .22 caliber pistol, or a 9mm pistol, and there is no way to tell if the jury unanimously found Vickers guilty for possessing any one of the pistols; and the State’s jury instruction did not specify the actual date(s) Vickers possessed a firearm. Two witnesses testified that Vickers was in possession of no less than three pistols. The testimony of even one witness is enough for the jury to find guilt. When the jury instructions are read together, it is clear that for the jury to find Vickers guilty of this count, they must have all agreed on a specific pistol he was in possession of. Thus, there is no error in the jury instructions as given. Because Vickers fails to cite any authority for the proposition that the failure to provide in a jury instruction a specific date a prior convicted felon possessed a firearm affects the weight or sufficiency of the charge, this issue is procedurally barred. Issue 2: Double jeopardy Vickers argues that the State should not have been able to prosecute him for capital murder while at the same time prosecute him for conspiracy to commit capital murder, because to allow conviction for both crimes violated the double jeopardy clause. The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. In order to elevate Vickers’ charge of capital murder, the State was required to show that the assassin committed the murder and that he had been offered or received something of value from Vickers. In order for the jury to find Vickers guilty of separate conspiracies with two other men, the State was required to prove additional facts. Thus, the convictions do not violate the double jeopardy clause. Issue 3: Impeachment evidence Vickers argues that the court erred in ruling that defense counsel could not question a witness on his 1977 conviction or alleged arrests. M.R.E. 609(a)(1) allows impeachment of a non-party witness by evidence of a crime punishable by imprisonment of more than one year. In all but extreme situations, which are not present in this case, non-party witnesses for the State may be impeached under Rule 609(a)(1) without balancing the probative value of the evidence with its prejudicial effect. In this case, the witness’s burglary conviction was twenty-six years old at the time Vickers sought to use it for impeachment. The proponent of using an antiquated conviction for impeachment purposes must first demonstrate the probative value of the conviction by showing how the conviction suggests the witness is less than credible. When asked by the trial court why evidence of the conviction should be admitted in this case, defense counsel stated that it went to the credibility of the witness and shows his reason for testifying on behalf of the State. As correctly identified by the trial court, evidence of the twenty-six year-old conviction was not probative of the witness’s credibility or an unfounded assertion that he was working as an informant for law enforcement. In fact, there was no evidence presented whatsoever that supported defense counsel’s allegation that the witness was an informant. Accordingly, Vickers failed to make a prima facie showing of the probative value of the burglary conviction. Vickers also argues that the court erred in denying his request to impeach the witness through the use of fourteen alleged arrests, none of which resulted in a conviction. Assuming that the arrests mentioned by defense counsel were accurate, that fact alone is neither evidence of favorable treatment by law enforcement, nor bias. Thus, the trial court’s decision was not in error. Issue 4: Juror misconduct Vickers argues that had the jurors answered truthfully during voir dire proper challenges could have been made against them. It is a judicial question as to whether a jury is fair and impartial and the court's judgment will not be disturbed unless it appears clearly that it is wrong. In this case, as found by the trial court, the testimony of the jurors during the closed hearing showed that no substantial or material information was withheld by either juror. In addition, all three jurors testified that their verdict in Vickers’ case was based solely upon the law as instructed by the trial court and the evidence and testimony presented at trial. Issue 5: Ability to present meaningful defense Vickers argues that the trial court’s rulings on many evidentiary issues prevented him from mounting a meaningful defense. Vickers first argues the trial court erred in not allowing his trial counsel to question the victim regarding Vickers’ father’s estate. Vickers was given the opportunity to bring this evidence before the jury, but chose not to. Such can hardly be identified as trial court error. Vickers also argues that he should have been allowed to impeach the victim with a prior inconsistent statement made during a hypnosis session. If the victim had given testimony differing from her prior descriptions then defense counsel would have had the prerogative of impeaching her by confronting her with her prior inconsistent statements under M.R.E. 613(b). Furthermore, a witness's testimony that she does not remember giving a prior statement may be impeached by questioning about the statement. However, in order to preserve the claim, defense counsel was required under M.R.E. 103(a)(2) to make a proffer showing that the taped statements were admissible at all under rule 613(b). Without such a showing in the record, the trial court’s ruling is affirmed. Prior to trial, the State submitted a motion in limine seeking to prohibit Vickers’ defense counsel from suggesting the aggravated assault victim as a possible suspect in her husband’s murder. The trial court granted the State’s motion on the basis of hearsay. M.R.E. 801(c) defines hearsay as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. The statement sought from the investigator was clearly hearsay since it was being offered to prove the aggravated assault victim hired someone to kill her husband. Vickers also argues that the trial court precluded defense counsel from cross-examining the investigator as to why firearm charges were not pursued against a witness. However, the record does not show that defense counsel was prohibited from asking any substantive question. Vickers argues that the court did not allow the victim to be cross-examined about a wrongful death lawsuit she filed against Vickers. However, defense counsel did, in fact, ask the victim whether she filed a wrongful death suit against Vickers. |
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