Grisby v. State


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Docket Number: 2008-KA-01915-COA
Linked Case(s): 2008-KA-01915-COA ; 2008-CT-01915-SCT

Court of Appeals: Opinion Link
Opinion Date: 11-09-2010
Opinion Author: King, C.J.
Holding: Affirmed.

Additional Case Information: Topic: Attempted armed robbery - Venue - Jury instruction - Weight of evidence
Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 09-26-2008
Appealed from: WASHINGTON COUNTY CIRCUIT COURT
Judge: Margaret Carey-McCray
Disposition: CONVICTED OF ATTEMPTED ARMED ROBBERY AND SENTENCED TO THIRTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHT YEARS TO SERVE AND FIVE YEARS OF POSTRELEASE SUPERVISION
District Attorney: WILLIE DEWAYNE RICHARDSON
Case Number: 2005-273

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Ellis Grisby




STEPHEN NICK



 
  • Appellant #1 Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

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    Topic: Attempted armed robbery - Venue - Jury instruction - Weight of evidence

    Summary of the Facts: Ellis Grisby was convicted of attempted armed robbery and sentenced to thirteen years, with eight years to serve and five years of post-release supervision. He appeals.

    Summary of Opinion Analysis: Issue 1: Venue Grisby argues that the State failed to prove venue and jurisdiction pursuant to section 99-11-3(1). Through direct or circumstantial evidence, the State must prove venue beyond a reasonable doubt. The victim testified at trial that his home is located in Hollandale in Washington County. Additionally, law enforcement from the Hollandale Police Department and the Washington County Sheriff’s Department confirmed the victim’s address. Thus, there was direct evidence to establish Washington County as the proper venue. Issue 2: Jury instruction Grisby argues that the trial court erred by recalling the jury to read a jury instruction which improperly singled out evidence against him. He also argues that the timing of the reading of the jury instruction negatively influenced the jury to acquit the co-defendant. Grisby’s failure to lodge a contemporaneous objection to the reading of the jury instruction waives the issue on appeal. Issue 3: Weight of evidence Grisby argues that the evidence against him and the co-defendant is similar; thus, it is unconscionable that the jury acquitted the co-defendant but found him guilty of the charge. If the defendants had been tried separately on the same indictment and the testimony had been identical in both cases, an acquittal of one would not affect a verdict of guilty as to the other. The rule is the same when they are tried together. Grisby also argues that the State failed to prove that he committed the crime beyond a reasonable doubt because the victim could not identify the suspects; the green shirt found at Grisby’s home was not identified; and the gunshot-residue test was negative. A representative from the Mississippi State Crime Laboratory testified that gun-powder residue is removed over time. Therefore, a negative result of a gun-powder-residue test would not conclusively prove the defendant’s innocence. The victim was not able to identify the robbers because their faces were covered. However, he did testify that one of the robbers was wearing a green shirt, and he was approximately 5'4" or 5'5". Grisby testified that he was approximately 5'3" or 5'4". Two witnesses testified that they saw Grisby walking in the area of the victim’s home moments prior to the incident, and Grisby was wearing a green shirt that day. In addition, the police found a damp, green shirt in a laundry basket in Grisby’s home. Viewing the evidence in the light most favorable to the verdict, the verdict is not against the overwhelming weight of the evidence.


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