Moore v. State
| Docket Number: | 2008-KA-00946-SCT Linked Case(s): 2008-KA-00946-SCT ; 2008-KA-00946-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 11-04-2010 Opinion Author: Graves, P.J. Holding: Affirmed. |
|
| Additional Case Information: |
Topic: Murder - Continuance - Photograph - Juror misconduct - Speculative testimony - Manslaughter - Sufficiency of evidence Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 05-15-2008 Appealed from: Holmes County Circuit Court Judge: Jannie M. Lewis Disposition: Kenneth Moore, Jr., was convicted of murder in the Circuit Court of Holmes County and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). District Attorney: JAMES H. POWELL, III Case Number: 11,949 |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kenneth Moore, Jr. |
LATRICE WESTBROOKS |
|
|
| Appellee: | State of Mississippi | OFFICE OF ATTORNEY GENERAL: STEPHANIE BRELAND WOOD | ||
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. |
|
| Topic: | Murder - Continuance - Photograph - Juror misconduct - Speculative testimony - Manslaughter - Sufficiency of evidence |
| Summary of the Facts: | Kenneth Moore, Jr., was convicted of murder and sentenced to life imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Continuance Moore argues that the trial court abused its discretion in failing to grant the motion for continuance he requested on the date of trial. The record does not indicate that Moore ever filed a motion for new trial. Therefore, this issue is procedurally barred. In addition, Moore has failed to establish that the trial court abused its discretion in denying the motion for continuance. Moore’s counsel asserts that the trial court erred in not granting the continuance because the State had not yet propounded discovery. The record shows that counsel was provided copies of the tapes and the accompanying transcript, but that the tapes were blank. However, counsel was not certain that the tapes were blank until she attempted to listen to the tapes enroute to the courthouse on the date of trial. Further, counsel did not notify the District Attorney’s office of the problem until the date of trial. Moreover, the trial court recessed the proceeding so counsel could listen to the tape in question. Issue 2: Photograph Moore argues that the trial court abused its discretion in allowing an autopsy photograph of the victim to be admitted for identification purposes. Photographs have an evidentiary purpose and are admissible when they aid in describing the circumstances of the killing, describe the location of the body and cause of death, or supplement or clarify witness testimony. Here, the photograph was introduced for identification purposes during the testimony of Dr. Steven Hayne. Issue 3: Juror misconduct Moore argues that the trial court should have sua sponte granted a mistrial because a juror was related to a potential witness and had traveled to the courthouse with him. While the juror indicated during the State’s voir dire that she knew the potential witness, she was never asked whether she was related to him. In addition, Moore’s counsel did not object to the juror being seated on the jury or follow up on the State’s question. When the court learned that the juror had ridden to the courthouse with the potential witness (who never testified in the case), the court ultimately removed the juror because of the possible appearance of impropriety. Moore has failed to establish that good cause exists to believe that improper outside influence occurred or prejudicial information was exchanged. Issue 4: Speculative testimony Moore argues that, during the testimony of Moore’s brother, that speculative testimony was elicited regarding the body weight of the victim. The testimony complained of was merely an attempt to find out whether Moore’s brother knew if Moore was larger or smaller in physical size than the victim. This issue is without merit. Issue 5: Manslaughter Moore argues that the evidence showed that the killing was done in the heat of passion, thereby mitigating the killing to manslaughter. Moore did move for a directed verdict at the close of the State’s case-in-chief. However, Moore did not renew this motion at the conclusion of all of the evidence. Therefore, any objection Moore has to the sufficiency of the evidence has been waived. In addition, Moore’s assertion is not supported by the record. Witnesses for both the State and the prosecution testified consistently as to what occurred on the night in question. Witnesses testified that the fight lasted only a couple of minutes. Although there was testimony that Moore was losing the fight, the only evidence of injury sustained by Moore was a scrape on his elbow and a bloody nose. A witness testified that, after the fight, Moore stayed down the road talking to his brother and some other people for approximately fifteen to twenty minutes before he returned and shot the victim. The jury was instructed on both manslaughter and murder. The jury considered the evidence and concluded that Moore committed murder. That conclusion is supported by the record in this case. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
