Hilliard v. State
| Docket Number: | 2008-KA-02055-COA Linked Case(s): 2008-KA-02055-COA ; 2008-CT-02055-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-24-2010 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Sale of cocaine - Continuance - Closing arguments - Cautionary instruction 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: 10-29-2008 Appealed from: RANKIN COUNTY CIRCUIT COURT Judge: William E. Chapman, III Disposition: CONVICTED OF SALE OF A CONTROLLED SUBSTANCE AND SENTENCED TO FORTY-FIVE YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THIRTY YEARS TO SERVE, FIFTEEN YEARS SUSPENDED, FIVE YEARS OF POST-RELEASE SUPERVISION, AND TO PAY A $10,000 FINE, WITH $5,000 SUSPENDED District Attorney: Michael Guest Case Number: 19,219 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Robert Mitchell Hilliard |
LATRICE WESTBROOKS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS | ||
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: | Sale of cocaine - Continuance - Closing arguments - Cautionary instruction |
| Summary of the Facts: | Robert Hilliard was convicted of the sale of cocaine and sentenced to forty-five years, with thirty years to serve and five years of post-release supervision. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance The State submitted the audio recording of the drug-sale transaction and the video of the traffic stop of Hilliard that immediately followed the drug sale to defense counsel on the morning of the pretrial conference, one day before trial. Defense counsel entered a motion for a continuance in order to have more time to review the tapes. Additionally, the defendant stated that he needed more time to hire new counsel. The circuit court judge denied the motion for continuance, and Hilliard argues this was error. At the hearing on the pretrial motion, the State contended that it had no intention of using the audio and video evidence at trial. Hilliard claims, however, that the State alluded to the tapes during the trial. However, defense counsel never objected to these questions or testimony. In addition, defense counsel thoroughly questioned the police officers, during cross-examination, regarding the audio-taped transaction and the video of the traffic stop. As for Hilliard’s request for new counsel, current defense counsel told the circuit judge that he was ready and willing to proceed to trial. Issue 2: Closing argument During closing arguments, the prosecution made a statement that defense counsel was going to “talk about that this defendant lied.” The test with regard to alleged misconduct by counsel during opening statements or closing arguments is to see if the natural and probable effect of the improper argument creates unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. The State clarified that it was referring to Melton, the confidential informant, and admitted its error, and the circuit judge sustained the objection and informed the jury that the statement was made in error. This statement was not prejudicial to Hilliard. Hilliard also argues that the State’s remark – that the defense “could have introduced” the video or audio tapes into evidence if it believed that the tapes contradicted the officers’ testimonies – was prejudicial as it commented on Hilliard’s failure to testify. Not every comment regarding the lack of any defense is automatically deemed to point toward the defendant’s failure to testify. The State may remark on the lack of any defense, and such comment will not be construed as a reference to the defendant’s failure to testify by innuendo and insinuation. In this case, the State explained it had meant the confidential informant and not Hilliard in its statement. Furthermore, the circuit court sustained the defense’s objection and told the jury to disregard the misstatement. Issue 3: Jury instruction Hilliard argues that the court should have given an instruction that the confidential informant was an accomplice since he was involved in a criminal activity. A cautionary instruction is not absolutely required in every case involving the testimony of a cooperating individual, even when there is evidence of potential bias on the part of that witness in favor of the State – especially where the testimony of the witness finds corroboration in other evidence. Here, there was corroborating testimony from police officers. In addition, the jury instruction was cumulative. |
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