Lipsey v. State
| Docket Number: | 2008-KA-00607-COA Linked Case(s): 2008-KA-00607-COA ; 2008-CT-00607-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-15-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder & Kidnapping - Right to present defense - URCCC 9.05 - M.R.E. 401 - Photographs - M.R.E. 403 - Right to speedy trial Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-06-2007 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: CONVICTED OF COUNTS I, II, AND III, MURDER, AND SENTENCED TO LIFE FOR EACH COUNT; COUNT IV, KIDNAPING, AND SENTENCED TO THIRTY YEARS, WITH THE SENTENCES TO RUN CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Robert Shuler Smith Case Number: 06-0-175(1,2,3&4) |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Dexter Lipsey a/k/a Derrick Dwayne Lipsey |
WILLIAM R. LABARRE, VIRGINIA LYNN WATKINS, LESLIE S. LEE, GRETA M. HARRIS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR. | ||
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| Topic: | Murder & Kidnapping - Right to present defense - URCCC 9.05 - M.R.E. 401 - Photographs - M.R.E. 403 - Right to speedy trial |
| Summary of the Facts: | Dexter Lipsey was convicted of murder and kidnapping. He was sentenced as a habitual offender to life for the murder convictions and thirty years for the kidnapping conviction. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Right to present defense Lipsey argues that the trial court deprived him of the opportunity to present a defense when it barred him from presenting the testimony of an alibi witness; granted the prosecutors’ motion in limine to restrict testimony as to cocaine found in the blood of the murder victims, or to refer to 3520 Cromwell Street as a “crack house”; refused to permit Lipsey to make a proffer; and denied Lipsey the opportunity to recross-examine Dr. Hayne. With regard to his alibi witness, Lipsey argues that since the defense counsel turned over the information as soon as she received it, and counsel did not attempt to gain a tactical advantage over the State, an arbitrary application of URCCC 9.05 denied him the fair right to a complete defense. However, the record shows that Lipsey failed to raise this constitutional claim in the trial court when the judge was considering whether to exclude the alibi witness, or at any other time. Thus, the issue is procedurally barred. Additionally, Lipsey’s public defender had been representing him for over a year before Lipsey informed her, the day before trial was set to commence, that he had an alibi witness. Sufficient facts in the record indicate that while Lipsey’s counsel was forthcoming about the new alibi information, Lipsey himself was not. Lipsey’s timing is suspect. Lipsey argues that various indications support his claim that the residence at 3520 Cromwell Street was the scene of illegal drug use, and it was known in the community as a “crack house.” Lipsey claims that such evidence was relevant to his defense that some other person might have committed the murders. However, the State argued that no drugs were found in the house, and there was nothing to show that the cocaine ingested by the three murder victims had been ingested at the house. Thus, the trial court held that the fact that the victims had cocaine in their systems was not relevant under M.R.E. 401. Lipsey has failed to show any connection between the fact that the victims had used cocaine, or had been shot in a place where cocaine may have been used, and Lipsey’s alleged misidentification as the perpetrator of the crimes. Lipsey further argues that the trial court erred in denying him the right to recross-examine Dr. Hayne, the forensic pathologist, as to new matters brought out on redirect examination. Recross-examination is not allowable as a matter of right, but a matter of trial court discretion. The trial court did not abuse its discretion in denying recross-examination regarding the issues of times of death or personal items found with the victims, since Dr. Hayne was not questioned about personal items or times of death during the State’s redirect examination. Also, Lipsey failed to support his allegations that questioning Dr. Hayne about personal items or the times of death would have somehow adversely affected Dr. Hayne’s credibility. Issue 2: Photographs Lipsey argues that the trial court abused its discretion in admitting the autopsy photographs of the victims during the testimony of Dr. Hayne, because they violated M.R.E. 403 and were prejudicial. Photographs have evidentiary value where they aid in describing the circumstances of the killing and the corpus delicti; where they describe the location of the body and cause of death; and where they supplement or clarify witness testimony. Here, the photographs either showed the crime scene and location of the bodies of the victims, or they were used by the State’s expert witness to supplement and clarify his testimony. Issue 3: Right to speedy trial Lipsey argues that the trial court erred in denying his motion to dismiss for failure to grant him a speedy trial, which Lipsey claims is a violation of both his statutory and constitutional right to a speedy trial. At the time of trial, approximately 428 days had passed since Lipsey’s arraignment, and approximately 654 days since his arrest. Lipsey did not complain about lack of a speedy trial until approximately 418 days after his arraignment. Thus, Lipsey in effect acquiesced to the delay. Lipsey’s argument concerning a statutory violation of a speedy trial is without merit. Both parties concede that a period of approximately 654 days passed between Lipsey’s arrest and his trial which is presumptively prejudicial. The reason for the delay was a valid one as the court was working on older cases prior to 2006. Lipsey received a trial within ten days of filing his demand for speedy trial. Although Lipsey claims he was prejudiced by the passage of time between his arrest and the trial because he could no longer recall the names of witnesses or the location of a particular alibi witness, Lipsey’s counsel represented to the trial court that she had never actually spoken to this particular alibi witness, and she admitted that she did not attempt to interview or locate the witnesses at the time of Lipsey’s arrest, over a year and a half before the trial. No explanation appears in the record as to why Lipsey did not give his attorney the names or location of these witnesses at an earlier date. Under the totality of the circumstances, Lipsey’s constitutional right to a speedy trial was not violated. |
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