Kirkwood v. State
| Docket Number: | 2008-KA-01349-COA Linked Case(s): 2008-KA-01349-COA ; 2008-CT-01349-SCT ; 2008-CT-01349-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-09-2010 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Burglary of a dwelling, Fleeing an officer in motor vehicle, Possession of firearm by convicted felon & Grand larceny - Prior convictions - M.R.E. 609 - Sufficiency of evidence - Circumstantial-evidence instruction - Peremptory instruction Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts and Carlton, JJ. Concur in Part, Concur in Result 1: Maxwell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 01-29-2008 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: CONVICTED OF COUNT I, URGLARY OF A DWELLING HOUSE, AND SENTENCED TO TWENTY-FIVE YEARS; COUNT II, FELONY FLEEING, AND SENTENCED TO FIVE YEARS; COUNT III, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED TO TEN YEARS; AND COUNT IV, GRAND LARCENY, AND SENTENCED TO TEN YEARS, AS A HABITUAL OFFENDER, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Laurence Y. Mellen Case Number: 2007-0105 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | THURMAN KIRKWOOD A/K/A MICKEY |
JUSTIN TAYLOR COOK |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS | ||
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: | Burglary of a dwelling, Fleeing an officer in motor vehicle, Possession of firearm by convicted felon & Grand larceny - Prior convictions - M.R.E. 609 - Sufficiency of evidence - Circumstantial-evidence instruction - Peremptory instruction |
| Summary of the Facts: | Thurman Kirkwood was convicted of burglary of a dwelling, fleeing or eluding a law enforcement officer in a motor vehicle, possession of a firearm by a convicted felon, and grand larceny. The circuit court determined that Kirkwood was a habitual offender and sentenced him to twenty-five years for burglary, five years for fleeing a law enforcement officer, ten years for possession of a firearm by a convicted felon, and ten years for grand larceny. Kirkwood appeals. |
| Summary of Opinion Analysis: | Issue 1: Prior convictions Kirkwood argues that the trial court erred in allowing the State to admit into evidence documents related to Kirkwood’s prior Mississippi felony conviction of burglary of a building in order to prove he was a felon, even when the defense offered to stipulate to that fact during the officer’s testimony. He also argues that the trial court misapplied M.R.E. 609 when Kirkwood testified about his prior felony convictions during his cross-examination. The admission of a prior conviction was not used to impeach a witness under Rule 609. Instead, the prosecution was using the officer’s testimony and the subsequent admission of court documents to prove Kirkwood’s status as a prior convicted felon for the felon in possession of a firearm charge. This prior conviction was very relevant to prove that Kirkwood was a prior felon for the felony fleeing and a felon in possession of a firearm. The prosecution must articulate a reason to deny a defendant’s offer to stipulate, showing why the probative value is not outweighed by the possible prejudice. Thus, it was incumbent upon the prosecution to show a lack of prejudice in this case, which it did not do. The trial court abused its discretion in not accepting Kirkwood’s offer to stipulate. However, such error may be deemed harmless when the accused’s conviction is supported by overwhelming evidence. Here, the trial court’s denial of Kirkwood’s offer to stipulate to his prior felony for burglary of a building was harmless error in light of the overwhelming weight of the evidence pointing toward Kirkwood’s guilt of this charge. Kirkwood also argues that the trial court erred in requiring him to testify during his cross-examination about his prior felony convictions in Florida because of their prejudicial nature. Kirkwood argues the trial court erred in failing to conduct an on-the-record balancing test of the probative value of the evidence weighed against its prejudicial effect under M.R.E. 609(a)(1)(B). Kirkwood’s counsel did not promptly object to this line of questioning until after Kirkwood had admitted to several burglaries. Kirkwood brought up the subject of his prior convictions by complaining that if law enforcement had followed proper procedure and taken his fingerprints, they would have known he did not touch any of the stolen items – specifically, the guns. Of the two additional crimes to which he testified following the objection, only one, felony fleeing, is similar to any of the current crimes for which Kirkwood was prosecuted. However, due to the overwhelming weight of the evidence presented to the jury for this charge, the court’s error in failing to conduct an on-the-record balancing test is harmless. Issue 2: Sufficiency of evidence Kirkwood argues that the State did not present sufficient evidence that the value of the stolen van was $500 or more, thereby requiring his conviction of grand larceny be reversed and rendered. Kirkwood argues that the State did not meet this burden of proof because the “value” of the van presented at trial was not the market value at the time of the crime, but the purchase price when the owner bought it. Thus, the jury had to speculate as to its market value, and there was not sufficient evidence to find it worth $500. While the State did not present any direct evidence as to the value of the van, and the amount of money paid for the vehicle is not evidence of its market value at the time of the crime, this argument is without merit. The owner of the van testified he had purchased the van “several years ago” for $8,000. He testified he was still driving the van at the time of the trial, and it had “a good motor and transmission.” A jury could certainly infer from the photographs and the owner’s testimony that the van would be worth at least $500. Issue 3: Jury instructions Kirkwood argues the trial court erred in denying the defense a circumstantial-evidence jury instruction and a peremptory jury instruction regarding the burglary of a dwelling charge. A circumstantial-evidence instruction is required only when the prosecution can produce neither an eyewitness nor a confession/statement by the defendant. Kirkwood argues that since portions of the burglary and grand larceny charges involve circumstantial, and not direct, evidence, a circumstantial-evidence jury instruction would have been proper. He fails to recognize that all of the evidence of the crime must be circumstantial to warrant this jury instruction. There was direct evidence of the burglary of the victim’s dwelling and the grand larceny of the van. The officer gave eyewitness testimony that Kirkwood was driving the van; there was only one other individual in the van – the woman; and stolen property was found inside the van once it was stopped. Kirkwood also argues that the trailer does not fit the requirement of a dwelling house under section 97-17-23, because it was not the victim’s permanent residence, and the victim was not residing there when the burglary occurred. The material consideration of whether a place is considered a dwelling house is the intention of the residents. The victim’s presence in the house at the time of the burglary is not required to convict under the statute. A person may simultaneously have two dwellings subject to burglary and sometimes reside with his family in one and sometimes in the other. Here, the jury could have reasonably found the victim resided in both his Walnut Street home and in the trailer. While the trailer had other purposes as a shop and office, this fact did not prevent the trailer from being a dwelling. He had personal possessions at the trailer and the intent to live there, even if not full time. |
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