Lamar v. State


<- Return to Search Results


Docket Number: 2007-KA-00692-COA

Court of Appeals: Opinion Link
Opinion Date: 06-03-2008
Opinion Author: LEE, P.J.
Holding: Affirmed

Additional Case Information: Topic: Aggravated assault with deadly weapon & Possession of controlled substance - Sufficiency of evidence - Ineffective assistance of counsel - Admission of evidence - Identity instruction - Cautionary instruction
Judge(s) Concurring: KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
Judge(s) Concurring Separately: Roberts, J., specially concurs with separate written opinion, joined by Chandler, Griffis and Carlton, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 03-23-2007
Appealed from: PANOLA COUNTY CIRCUIT COURT
Judge: Andrew C. Baker
Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT WITH A DEADLY WEAPON, AND SENTENCED AS A HABITUAL OFFENDER TO SERVE TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND COUNT II, POSSESSION OF A CONTROLLED SUBSTANCE, AND SENTENCE OF SIX YEARS’ POST-RELEASE SUPERVISION, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IMPOSED IN COUNT I
District Attorney: John W. Champion
Case Number: CR2006-149-B(P2)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: MARCO TERRELL LAMAR




DAVID LYDELL TISDELL



 
  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: DESHUN TERRELL MARTIN  

    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 with deadly weapon & Possession of controlled substance - Sufficiency of evidence - Ineffective assistance of counsel - Admission of evidence - Identity instruction - Cautionary instruction

    Summary of the Facts: Marco Lamar was convicted of Count I, aggravated assault with a deadly weapon, and Count II, possession of a controlled substance. Lamar was sentenced as a habitual offender to serve twenty years for Count I and to six years’ post-release supervision for Count II. He appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Lamar argues that the aggravated assault conviction was against the overwhelming weight of the evidence and that there was insufficient evidence to support the possession conviction. Lamar argues that the testimony does not prove he was the shooter. However, eyewitnesses testified that Lamar was leaning from the car window holding a gun. Lamar also argues that the evidence was insufficient to prove that the bag of marijuana belonged to him. The jury heard testimony from a witness who saw another man take a large bag from Lamar’s car, and from the other man who admitted to stealing a large bag of marijuana from Lamar’s car, and found their stories to be credible. Thus, the evidence was sufficient. Issue 2: Ineffective assistance of counsel Lamar argues that his trial counsel was ineffective. He argues that his attorney should have objected to the testimony of a witness but has not pointed to how he was prejudiced by his attorney’s failure to object in this manner. Lamar argues that his attorney was ineffective in failing to seek a change in venue. Lamar cites to several newspaper articles describing the shooting. However, the level of newspaper reporting does not rise to the level of extraordinary and intensely prejudicial pretrial publicity necessary for a change in venue. Lamar states that he was denied the right to testify in his own defense. However, he fails to support this assertion with evidence from the record. Issue 3: Admission of evidence Lamar argues that the trial court erred in allowing a cell phone found in the parking lot to be introduced into evidence. However, Lamar failed to object at trial so the issue is waived on appeal. Issue 4: Identity instruction Lamar argues that the trial court erred in refusing his identity instruction that told the jury that the State had to prove the accuracy of the identification of Lamar as the perpetrator of the crime. Upon review of the instructions, it is clear that the jury was properly instructed. Issue 5: Cautionary instruction Lamar argues that the trial court erred in failing to issue a cautionary instruction in regard to the testimony of two people Lamar describes as “co-conspirators.” Lamar never requested a cautionary instruction. In addition, the granting of a cautionary instruction with regard to co-conspirator testimony is within the trial court’s discretion.


    Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court