Mayers v. State
| Docket Number: | 2008-KA-01722-COA Linked Case(s): 2008-KA-01722-COA ; 2008-CT-01722-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 02-23-2010 Opinion Author: Lee, P.J. Holding: Affirmed in part, vacated and remanded in part. |
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| Additional Case Information: |
Topic: Aggravated assault on law enforcement officers, Possession of stolen firearm & Possession of firearm by convicted felon - Defective indictment - URCCC 7.06 - Essential element - Scienter - Self-defense instruction - Cautionary instruction - Challenge for cause - Prior convictions - M.R.E. 404(b) - Opinion evidence - M.R.E. 701 - M.R.E. 702 - Illegal sentence - Section 97-37-37 - Double jeopardy - Disproportionate sentence Judge(s) Concurring: King, C.J., Myers, P.J., Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Judge(s) Concurring Separately: Maxwell, J., specially concurs with separate written opinion joined by Barnes and Roberts, JJ. Non Participating Judge(s): Irving, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-11-2008 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: Samac Richardson Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER, AND SENTENCED TO THIRTY YEARS; COUNT II, AGGRAVATED ASSAULT UPON A LAW ENFORCEMENT OFFICER, AND SENTENCED TO THIRTY YEARS; COUNT III, POSSESSION OF A STOLEN FIREARM, AND SENTENCED TO FIVE YEARS; COUNT IV, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED TO THREE YEARS, AND SENTENCED TO TEN ADDITIONAL YEARS EACH FOR COUNTS I AND II, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Michael Guest Case Number: 18969 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | KIRK VINCENT MAYERS |
GEORGE T. HOLMES |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN 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: | Aggravated assault on law enforcement officers, Possession of stolen firearm & Possession of firearm by convicted felon - Defective indictment - URCCC 7.06 - Essential element - Scienter - Self-defense instruction - Cautionary instruction - Challenge for cause - Prior convictions - M.R.E. 404(b) - Opinion evidence - M.R.E. 701 - M.R.E. 702 - Illegal sentence - Section 97-37-37 - Double jeopardy - Disproportionate sentence |
| Summary of the Facts: | Kirk Mayers was convicted of Counts I and II, aggravated assault on law enforcement officers; Count III, possession of a stolen firearm; and Count IV, possession of a firearm by a convicted felon. Mayers was sentenced to thirty years each for Counts I and II, five years for Count III, and three years for Count IV. Mayers was sentenced to two additional ten-year terms for the use of a firearm during the commission of a felony. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Defective indictment Mayers argues that he should be resentenced on the lesser charge of simple assault on law enforcement officers because the indictment did not specifically state that Mayers used a “deadly weapon.” He argues that the indictment is unclear because the word “gun” does not necessarily refer to a “handgun.” URCCC 7.06 provides that formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. It is clear from the indictment that Mayers injured the two police officers with a deadly weapon. Issue 2: Essential element Mayers argues that the State failed to prove an essential element of aggravated assault on a law enforcement officer because he did not knowingly shoot the law enforcement officers. He argues that he thought someone was breaking into the apartment and fired a gun toward the door in self-defense. When there is no doubt of the defendant’s unlawful intention, knowledge of the official capacity of the victim is invariably unnecessary; the assailant takes his victim as he finds him. But if the defendant asserts a lack of intention or wilfulness based upon ignorance of the identity of the victim and ignorance of the victim’s official privilege to interfere with the defendant’s person or freedom of movement, the jury must be allowed to consider the defendant’s evidence tending to show that he was ignorant of the official capacity of the victim. The question of whether Mayers committed a knowing assault was for the jury to decide, and the jury was properly instructed on this issue. The jury was presented with sufficient evidence to determine that Mayers knew or should have known that the men outside his door were police officers. Issue 3: Scienter Mayers argues that the State failed to prove that he knew the firearm he used in the shootings was stolen. Guilty knowledge must be both alleged and proved by the State for a conviction to stand. For the State to prove guilty knowledge, it must prove that the defendant received the property under circumstances that would lead a reasonable person to believe that it was stolen. The jury heard the informant testify that he gave Mayers a .22-caliber pistol in exchange for crack cocaine. The informant testified that Mayers knew the pistol was stolen, and Mayers was trying to sell it quickly because it was a stolen gun. The circumstances under which the gun was obtained would lead a reasonable juror to believe that it was stolen. Issue 4: Self-defense instruction Mayers argues that it was error for the trial court to refuse his proposed jury instruction on self-defense as a defense to the charge of being a felon in possession of a firearm. Self-defense is not a viable defense to possession of a firearm by a convicted felon. Possession of a firearm by a convicted felon is a criminal act void of a third party to defend against. However, necessity is a valid defense to possession of a firearm by a convicted felon. In order to be entitled to a defense of necessity, the defendant must prove the act charged was done to prevent a significant evil; there was no adequate alternative; and the harm caused was not disproportionate to the harm avoided. The jury instruction, as requested, incorrectly states the law and was properly refused. If the requested instruction had been a defense of necessity, the instruction would have been without foundation in the evidence. Issue 5: Cautionary instruction Mayers argues that the trial court erred in failing to grant his requested cautionary jury instruction regarding possession of a firearm by a convicted felon. The trial court refused this instruction, as written, on the grounds that it was confusing and not a correct statement of the law. The trial judge did not abuse his discretion in making this determination. Instead of simply being a cautionary instruction, the instruction goes on to state that the jury “should not consider this element as evidence that Kirk Mayers possessed the firearm in question.” Mayers did not deny possession of the firearm; therefore, this was not an issue for the jury to decide. Issue 6: Challenge for cause Mayers argues that a juror should have been stricken for cause because he said he had work-related matters which would distract him from focusing on Mayers’s case. However, the juror did not otherwise indicate any bias or prejudice or any other reason why he should not be on the jury. Mayers has not argued that any prejudice resulted from the impaneling of the juror. Issue 7: Prior convictions Mayers argues that any probative value of introducing his prior convictions was outweighed by the prejudice it caused. Mayers offered to stipulate to the existence of his prior felony convictions in order to avoid potential prejudice by the jury. The State admitted that it would have accepted the stipulation if it was only trying to prove that Mayers was a felon in possession of a firearm. However, the State argues that the introduction of the prior convictions of house burglary and auto burglary was necessary to show motive. The prior felonies were introduced to show the State’s theory of motive as allowed under M.R.E. 404(b). Also, the introduction of the sentencing report was necessary to show the terms of Mayers’s probation. Introduction of Mayers’s prior convictions was not unduly prejudicial because the prior convictions were not being used to show Mayers’s character or that he acted in conformity with a previous crime, as the charges of burglary are distinct from the charges of aggravated assault. Issue 8: Opinion evidence Mayers argues that an investigator with the Pearl Police Department was allowed to give improper opinion evidence regarding the trajectory of the bullets fired by Mayers’s gun. The investigator was not qualified by the trial court as an expert but testified as to what he observed when he investigated the crime scene. M.R.E. 701 states that a lay person’s testimony is limited to opinions or inferences which are rationally based on the perception of the witness, helpful to the clear understanding of the testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of M.R.E. 702. The investigator’s testimony was nothing more than his opinion based on his personal observations. Thus, the issue is without merit. Issue 9: Illegal sentence Mayers argues that his sentence violated the prohibition against ex post facto application of criminal penalties. Mayers notes that section 97-37-37(2) became effective on July 1, 2007, and the crime at issue was committed on May 5, 2006. Mayers’s attorney objected to the application of section 97-37-37 on the basis of notice, but no argument is made regarding its ex post facto application. Constitutional questions not raised at the lower court will not be reviewed on appeal. However, this issue may be addressed under the plain-error doctrine because it affects Mayers’s substantive rights. Mayers’s substantive rights were violated by the ex post facto application of section 97-37-37(2). Section 97-37-37(1), which first became effective on July 1, 2004, was in effect at the time of the crime and was applicable to Mayers’s sentencing. The two ten-year sentences ordered as sentence enhancements to the sentences for Counts I and II are vacated and the case is remanded for the limited purpose of resentencing on the sentence enhancements in Counts I and II. Issue 10: Double jeopardy Mayers argues that the application of section 97-37-37 constitutes double jeopardy because it requires proof of the same elements as the underlying crimes. Section 97-37-37, which is entitled: “Enhanced penalty for use of firearm during commission of felony,” is clearly a sentence enhancement and does not set out separate elements of the underlying felony. Issue 11: Disproportionate sentence Mayers argues that his sentence was unconstitutionally disproportionate to the crimes charged. As a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal. The gravity of the offense in this case was very high, and the sentence imposed was not unduly harsh. |
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