McCray v. State
| Docket Number: | 2009-KA-00509-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-14-2010 Opinion Author: Irving, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Aggravated assault - Hearsay - M.R.E. 801(d)(1)(C) - Closing argument - Peremptory challenges Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts and Carlton, JJ. Non Participating Judge(s): Maxwell, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-29-2008 Appealed from: Coahoma County Circuit Court Judge: Kenneth L. Thomas Disposition: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN YEARS TO SERVE AND FIVE YEARS OF POST-RELEASE SUPERVISION District Attorney: Brenda Fay Mitchell Case Number: 2007-0096 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Vandarren McCray |
W. DANIEL HINCHCLIFF |
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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: | Aggravated assault - Hearsay - M.R.E. 801(d)(1)(C) - Closing argument - Peremptory challenges |
| Summary of the Facts: | Vandarren McCray was convicted of aggravated assault and sentenced to fifteen years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Hearsay McCray argues that the trial court erred in refusing to allow a witness to testify regarding the victim’s alleged statement that he knew that McCray was not his assailant. According to M.R.E. 801(d)(1)(C), a statement is not hearsay if the declarant testifies at the trial and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person. This issue is procedurally barred for failure to raise it at the trial level. In addition, it is without merit. The proffer of the witness’s testimony fails to show that he would have testified that the victim identified someone other than McCray as his attacker or that the victim stated that McCray was not his attacker. Issue 2: Closing argument McCray argues that the circuit court erred when it did not sua sponte declare a mistrial during the State’s closing arguments, because the prosecutor used several improper “send-a-message” arguments. The court must determine whether defense counsel objected to the comments and whether defense counsel invited the comment. In the present case, no objection was made to any “send-a-message” remarks during the prosecutor’s closing argument. Also, the remarks of which McCray complains were invited by defense counsel; consequently, this issue is waived. Issue 3: Peremptory challenges McCray argues that the State committed gender discrimination when it used all of its peremptory strikes against African American females. There is no doubt from the record that the State used all of its peremptory strikes against females. When asked for neutral reasons for the strikes, the prosecutor provided reasons for several of the strikes. When pressed for reasons for the remainder of the strikes, he indicated that he was striking females in an attempt to get a more balanced jury as to gender. The final makeup of the panel indicates that of the twelve jurors and four alternates, eleven were women. Clearly, the prosecutor allowed many women to serve on the jury, as almost seventy-five percent of the final panel makeup was female. Under these circumstances, the prosecutor did not violate Batson in striking women after so many women had been accepted for the final panel. |
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