Commodore v. State


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Docket Number: 2007-KA-01268-COA

Court of Appeals: Opinion Link
Opinion Date: 10-28-2008
Opinion Author: CHANDLER, J.
Holding: Affirmed

Additional Case Information: Topic: Conspiracy, Burglary of building, Attempted grand larceny & Attempted aggravated assault - Weight of evidence - Ineffective assistance of counsel - Amendment of indictment - Admission of lay witness testimony - M.R.E. 701
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, and Carlton, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 12-22-2005
Appealed from: DeSoto County Circuit Court
Judge: Robert P. Chamberlin
Disposition: CONVICTED OF COUNT I, CONSPIRACY, AND SENTENCED TO FIVE YEARS AS A HABITUAL OFFENDER; COUNT II, BURGLARY OF A BUILDING OTHER THAN A DWELLING, AND SENTENCED TO SEVEN YEARS AS A HABITUAL OFFENDER; COUNT III, ATTEMPTED GRAND LARCENY, AND SENTENCED TO TEN YEARS AS A HABITUAL OFFENDER; AND COUNT V, ATTEMPTED AGGRAVATED ASSAULT, AND SENTENCED TO TWENTY YEARS AS A HABITUAL OFFENDER, ALL TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, AND TO PAY RESTITUTION IN THE AMOUNT OF $100 TO THE CRIME VICTIMS’ COMPENSATION FUND
District Attorney: John W. Champion
Case Number: CR-2005-378-C-D

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: EDGAR LEE COMMODORE, JR.




TONY L. AXAM



 
  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER  
    Appellee #2:  

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    Topic: Conspiracy, Burglary of building, Attempted grand larceny & Attempted aggravated assault - Weight of evidence - Ineffective assistance of counsel - Amendment of indictment - Admission of lay witness testimony - M.R.E. 701

    Summary of the Facts: Edgar Commodore, Jr., was convicted of the crimes of Count I, conspiracy; Count II, burglary of a building other than a dwelling; Count III, attempted grand larceny; and Count V, attempted aggravated assault. He appeals.

    Summary of Opinion Analysis: Issue 1: Weight of evidence Commodore argues that the weight of the evidence did not support the jury’s finding of guilt in the alleged charges. The State presented evidence from both eyewitnesses and police officers detailing the incidents leading up to Commodore’s arrest. The officers testified that Commodore admitted to his involvement in the scheme when he was stopped and questioned. The weight of the evidence presented at trial, when viewed in the light most favorable to the prosecution, could have led a reasonable trier of fact to find Commodore guilty of conspiracy, burglary, attempted grand larceny, and attempted aggravated assault. Issue 2: Ineffective assistance of counsel Commodore argues that he received ineffective assistance of counsel, because his attorney failed to adequately prepare him for cross-examination at trial. The trial record indicates the Commodore was prepared for direct and cross-examination at his trial. He was given a full explanation by the trial judge and questioned as to his knowledge regarding his right to testify or to remain silent. Commodore admitted to the judge at his trial that he had discussed these issues with his defense counsel. Commodore also argues that his defense counsel failed to adequately investigate his case. This can be considered trial strategy and falls within the wide range of reasonable professional conduct. Commodore also argues that the attorney failed to cross-examine witnesses in order to fully develop the theory of the defense. However, the trial record indicates that the attorney cross-examined almost every witness that was called by the State. Commodore additionally alleges that the attorney erred by failing to request a curative instruction following improper testimony that was timely objected to and properly sustained by the trial court. This decision must be viewed as strategic in nature. Commodore argues that because his attorney did not stop the cross-examination by the State, he was ineffective. However, case law states that a defendant does not have a right to confer with counsel during cross-examination. Issue 3: Amendment of indictment The State made an oral motion the morning of trial to amend the indictment to charge Commodore as a habitual offender. It is permissible to amend the indictment on the date of trial and to charge the defendant as a habitual criminal when defense counsel is aware of the State's intentions and the defendant is fully aware of the State's intentions during plea negotiations. Commodore was not unfairly surprised by the State’s intention to add the habitual offender status to his indictment as the assistant district attorney handling his case indicated that would be the consequence of rejecting the offered plea agreement. The court correctly held that an indictment can be amended on the morning of trial to make this type of change. The amendment was procedurally proper and comported with the requirements of UCCCR 7.06. Issue 4: Admission of testimony Commodore argues that the trial judge erred by allowing certain testimony at trial that Commodore claimed went to his intent. Under M.R.E. 701, a lay witness is not permitted to give opinion testimony as to the ultimate issue being determined in the case. A statement by an eyewitness that he “was worried the vehicle was going to come back and try to run over me again” was rationally based upon what he had observed that night. He had personal knowledge as to what he felt – that Commodore had attempted to run him over and might try again. This statement is allowable under Rule 701. In addition, the eyewitness’s opinion that he would have been struck and sustained some type of serious injury was rationally based upon his perceptions from that night and central to the determination of whether Commodore had attempted to inflict serious bodily harm with his vehicle.


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