Gilbert v. State
| Docket Number: | 2009-KA-01539-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-10-2010 Opinion Author: Carlson, P.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Aggravated assault - Sufficiency of evidence - Mistrial - Comment on post-Miranda silence - Reference to “victim” - Habitual offender status - Amendment of indictment Judge(s) Concurring: Waller, C.J., Graves, P.J., Dickinson, Randolph, Lamar, Kitchens, Chandler and Pierce, JJ. Procedural History: Jury Trial; JNOV Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-17-2009 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: John Gilbert, Jr. was convicted of aggravated assault stemming from an incident between him and Alice Stapleton. Gilbert was sentenced as a habitual offender to life in prison without parole under Mississippi Code Section 99-19-83 (Rev. 2007). After the trial judge denied Gilbert’s motion for judgment notwithstanding the verdict, or in the alternative, a new trial District Attorney: Brenda Fay Mitchell Case Number: 2009-0011 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | John Willis Gilbert, Jr. |
OFFICE OF INDIGENT APPEALS: LESLIE S. LEE, PHILLIP W. BROADHEAD |
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| Appellee: | State of Mississippi | OFFICE OF THE 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. |
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| Topic: | Aggravated assault - Sufficiency of evidence - Mistrial - Comment on post-Miranda silence - Reference to “victim” - Habitual offender status - Amendment of indictment |
| Summary of the Facts: | John Gilbert, Jr. was convicted of aggravated assault and was sentenced as a habitual offender to life in prison without parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Gilbert argues that the evidence presented by the State was insufficient, because the witness testimony offered against him was biased and, as a result, the testimony was not credible. Two of the witnesses offered by the State against Gilbert were the victim and her daughter. The State presented photographic evidence of the victim’s injuries, and the victim and her daughter both testified that Gilbert had stabbed the victim. When the evidence is viewed in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that Gilbert was guilty of aggravated assault. Issue 2: Mistrial Gilbert argues that the trial court erred when it denied his motion for mistrial after an officer testified to Gilbert’s exercise of his Miranda rights, because this violated his constitutional right to a fair trial. Specifically, the officer testified that he had read Gilbert his Miranda rights and then Gilbert had “refused to speak with [him] about the incident.” The trial court must declare a mistrial when there is an error in the proceedings resulting in substantial and irreparable prejudice to the defendant’s case. If the trial judge determines that the error did not result in substantial and irreparable prejudice, the judge should admonish the jury to disregard the impropriety in order to cure its prejudicial effect. While it is improper and ordinarily, reversible error to comment on the accused’s post-Miranda silence, when the defendant’s post-Miranda rights are mentioned only once and the judge admonishes the jury concerning the statement, the violation will not result in reversible error. In this case, there was only one mention of Gilbert’s exercise of his Miranda rights. Further, the trial judge promptly admonished the jury to disregard the officer’s comment. Accordingly, the trial judge did not abuse his discretion when he denied Gilbert’s motion for a mistrial. Issue 3: Reference to “victim” Gilbert argues that the trial court erred by allowing an expert witness for the State to refer to the victim as the “victim.” The trial court did not abuse its discretion in allowing the testimony referring to the “victim.” The trial court previously had denied Gilbert’s motion in limine regarding the term “victim,” and the use of the word was isolated and not emphasized. Issue 4: Habitual offender status An amendment regarding the habitual-offender status of an indictment is permissible, as it affects only sentencing and not substance. Gilbert’s original indictment listed four offenses in the habitual-offender section: intimidating a witness, unlawful use of a phone, obstructing an officer, and attempted homicide. All convictions occurred in Wisconsin. However, Gilbert was not convicted of attempted homicide in Wisconsin, because he had pleaded guilty to a lesser charge of first degree reckless endangerment. At the sentencing hearing in today’s case, the State moved to amend the indictment to reflect the conviction of first-degree reckless endangerment, rather than attempted homicide. The amendment to Gilbert’s indictment reflected the actual crime for which he was convicted. This amendment affects only sentencing, not the substance of Gilbert’s indictment. Thus, there was no error in allowing the amendment. Gilbert also argues that the State did not meet its burden of proof because it speculated as to the meaning of abbreviations in certain documents used to enhance the sentence under the habitual-offender statute. The trial court found that Gilbert previously had been convicted of at least two felonies, intimidation of a witness and reckless endangerment; that Gilbert had served one year or more for each crime; and that reckless endangerment was a crime of violence. The trial court did not err in finding that the State had presented sufficient evidence showing that Gilbert had met the requirements of section 99-19-83. The discussion between the State and the trial court as to the meanings of some abbreviations in the sentencing documentation did not show that the State had failed to meet its burden of proof. |
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