McGregory v. State
| Docket Number: | 2006-KA-01698-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 04-08-2008 Opinion Author: KING, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Simple assault & Aggravated assault - Exclusion of testimony - URCCC 9.04(I) - Lesser-included offense instruction - Impartial jury - Sufficiency of evidence - Ineffective assistance of counsel Judge(s) Concurring: LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ. Concurs in Result Only: Irving and Barnes, JJ., concur in result only without separate written opinion. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-14-2006 Appealed from: Hinds County Circuit Court Judge: Bobby DeLaughter Disposition: CONVICTED OF COUNT II SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED TO FIVE YEARS, COUNT III SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED TO FIVE YEARS TO RUN CONSECUTIVE TO SENTENCE IN COUNT II, AND COUNT IV SIMPLE ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED TO FIVE YEARS TO RUN CONSECUTIVE TO SENTENCES IN COUNT II AND III, AND COUNT V AGGRAVATED ASSAULT ON A LAW ENFORCEMENT OFFICER AND SENTENCED TO THIRTY YEARS TO RUN CONSECUTIVE TO SENTENCES IN COUNT II, III, AND IV, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS. District Attorney: Eleanor Faye Peterson Case Number: 05-1-172 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | WILLIE MCGREGORY A/K/A WILLIE
MCGREGORY, JR. |
MICHAEL E. ROBINSON |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER | ||
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: | Simple assault & Aggravated assault - Exclusion of testimony - URCCC 9.04(I) - Lesser-included offense instruction - Impartial jury - Sufficiency of evidence - Ineffective assistance of counsel |
| Summary of the Facts: | Willie McGregory, Jr. was found guilty of three counts of simple assault and one count of aggravated assault, all on police officers. He was sentenced to five years’ imprisonment on each of the simple assault counts and thirty years’ imprisonment on the aggravated assault count. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Exclusion of testimony Prior to the convening of trial proceedings, the court heard motions in limine brought by the State to exclude the testimony of two witnesses as a discovery violation. McGregory argues that the trial court should have granted a continuance, and the decision to exclude the testimony of these potential defense witnesses effectively shut down his self-defense claim. McGregory was still able to put forth his own testimony in support of his self-defense claim. Under URCCC 9.04(I), the trial court has the discretion to either give the offended party an opportunity to evaluate the discoverable material, grant a continuance, exclude the evidence, or grant a mistrial. The weight of the sanction should be based on the motivation of the offending party in violating the discovery rule. Here, the trial court believed this discovery violation was an attempt to gain a tactical advantage. Therefore, the court did not abuse its discretion in excluding the testimony. Issue 2: Lesser-included offense instruction McGregory argues that the court erred when it sua sponte submitted a lesser-included offense instruction of simple assault. Prior to giving the instructions to the jury, the trial court recessed for twenty minutes allowing the attorneys to review the instructions. When the trial court reconvened, the trial judge asked State and defense counsel if they wished to be heard concerning any of the preliminary rulings on any of the instructions. Neither party made any objections or arguments to the jury instructions. Therefore, McGregory is procedurally barred from raising this issue on appeal. Issue 3: Impartial jury McGregory argues that he was denied his right to a fair trial before an impartial jury. The proper standard for excluding a venire member from the jury is to determine whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath. The determination of whether a juror is fair and impartial is a judicial question. Two of the jurors about whom McGregory complains stated that they would follow the law, fairly consider the evidence, and would not prejudge the issues. While the other juror voiced her thoughts about self-defense against law enforcement, she stated under oath that she would be able to follow the law. Thus, this allegation of error is without merit. Issue 4: Sufficiency of evidence McGregory argues that the evidence was insufficient to support the verdict and the verdict was against the overwhelming weight of the evidence with regard to two of the counts. Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict McGregory of the two counts of simple assault on a law enforcement officer. Testimony was provided that the officers were acting within the scope of their employment when they responded to the tire shop and set up a perimeter around the building. The officers testified that McGregory shot at them. Additionally, an investigator collected seventeen 7.62 x 39 millimeter spent cartridges from the crime scene. These were the same type of cartridges that McGregory had outside of the tire shop. Clearly, this was sufficient evidence. Issue 5: Ineffective assistance of counsel McGregory argues that he was denied effective assistance of counsel. The record does not give the unquestionable impression that McGregory’s counsel was ineffective. Thus, there is no basis to hold that the trial court should have sua sponte found that McGregory’s counsel was constitutionally ineffective. |
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