Whittington v. State
| Docket Number: | 2009-KA-00167-COA Linked Case(s): 2009-KA-00167-COA ; 2009-CT-00167-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-13-2010 Opinion Author: Lee, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder - Hearsay - M.R.E. 801(c) - Witnesses for the defense - Character evidence - Manslaughter instruction - Self-defense instruction - Weight of evidence Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-17-2004 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: Keith Starrett Disposition: CONVICTED OF MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $10,000 FINE District Attorney: Dee Bates Case Number: 03-267-KA |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Karey Whittington |
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: | Murder - Hearsay - M.R.E. 801(c) - Witnesses for the defense - Character evidence - Manslaughter instruction - Self-defense instruction - Weight of evidence |
| Summary of the Facts: | Karey Whittington was convicted of murder and sentenced to life in prison. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay Whittington argues that several hearsay statements prejudiced his defense. Under M.R.E. 801(c), hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. First, during a police officer’s testimony, the State asked him whether a witness had offered any information regarding the murder. These statements were not hearsay as they were submitted to show the actions the officer took during the investigation. Whittington also argues that a witness’s testimony, regarding how he remembered who another person had told the witness was with him on the night of the victim’s death, was hearsay. After Whittington’s trial counsel objected to the testimony, the trial judge sustained the objection to the extent the testimony was offered to prove the truth of what was stated. However, the trial judge allowed the testimony to the extent it showed the witness’s thought process in remembering Whittington’s name. The trial judge did not abuse his discretion in doing so. Issue 2: Witnesses for the defense Whittington argues that the trial judge improperly excluded testimony from several of his witnesses. All three witnesses were in jail with Whittington at some point prior to his trial. The trial judge, citing hearsay, refused to let the witnesses testify in detail as to any conversation they may have had with Whittington concerning the murder. However, all three witnesses were allowed to testify using “yes” or “no” answers that they had never heard Whittington admit to killing the victim. A statement made by Whittington to any of these witnesses would be hearsay under M.R.E. 801(c). There is no applicable hearsay exception which would allow the three witnesses to give detailed accounts of any conversation with Whittington concerning the murder. Issue 3: Character evidence Whittington argues that it was prejudice for the jury to hear that prior to his arrest for murder, he was out on bond after being charged with child abuse. The record shows that the trial judge interrupted the witness and excused the jury. After a discussion, the trial judge brought the jury back in and informed the jurors that they were to disregard the previous question and answer. The trial judge asked each juror to raise his/her hand in an affirmative response. The trial judge did not abuse his discretion by asking the jury to disregard this particular question and answer. Issue 4: Manslaughter instruction Whittington argues that the trial judge should have given a manslaughter instruction for the jury to consider, because the evidence at best showed he acted impulsively or in the heat of passion. A defendant charged with murder is not entitled to a manslaughter instruction where the record contains no evidence from which the jury could determine that the killing resulted from heat-of-passion and not the result of malice. Here, the record lacks evidence such that a reasonable juror could find Whittington guilty of manslaughter. Whittington failed to produce any evidence to show that he was in a state of violent or uncontrolled rage or that he had been provoked. Issue 5: Self-defense instruction Whittington argues that the trial judge erred in refusing his self-defense instruction. The killing of a human being is justified when committed in the lawful defense of one’s own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished. Here, there was no evidence that the victim threatened to use a gun against Whittington, and no testimony was introduced that Whittington thought he was in imminent danger. Issue 6: Weight of evidence Whittington argues that the verdict is against the overwhelming weight of the evidence, because any evidence supporting the guilty verdict is based upon unreliable testimony. Although most of the witnesses for the prosecution and for the defense were criminals, it was for the jury to assess their credibility. |
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