Gunn v. State


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Docket Number: 2009-KA-01901-SCT
Linked Case(s): 2009-KA-01901-SCT

Supreme Court: Opinion Link
Opinion Date: 01-27-2011
Opinion Author: Pierce, J.
Holding: Affirmed.

Additional Case Information: Topic: Grand larceny - Sufficiency of evidence - Mistrial - Comment on accused’s post-Miranda silence - Photographic lineup
Judge(s) Concurring: Waller, C.J., Carlson and Graves, P.JJ., Dickinson, Randolph, Lamar, Kitchens and Chandler, JJ.

Trial Court: Date of Trial Judgment: 11-18-2009
Appealed from: Bolivar County Circuit Court
Judge: Al Smith
Case Number: 2009-057-CR2

  Party Name: Attorney Name:  
Appellant: Timothy Gunn




OFFICE OF INDIGENT APPEALS: LESLIE S. LEE BENJAMIN ALLEN SUBER



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LA DONNA C. HOLLAND SCOTT STUART  

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Topic: Grand larceny - Sufficiency of evidence - Mistrial - Comment on accused’s post-Miranda silence - Photographic lineup

Summary of the Facts: Timothy Gunn was convicted of grand larceny and sentenced to ten years as a habitual offender. He appeals.

Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Though Gunn argues he was not the man who stole the duffel bag, overwhelming evidence proves the contrary. An eyewitness testified that he had seen Gunn remove the bag of tools from the victim’s trunk and carry them away. And while another witness did not see Gunn’s face, his description of the incident matched the witness’s, and both men agreed the perpetrator had worn a red shirt and khaki pants. Two days after the incident, the eyewitness picked Gunn out of a photo line up with no hesitation. Also, two officers testified that Gunn had been carrying the black and gold bag of tools when approached on the street. Video footage from the officer’s car clearly depicts Gunn carrying the black and gold bag on his shoulder. While Gunn claims that his conviction must be reversed because the price of the stolen tools was based on purchase price, a jury is allowed reasonably to infer the value of specific items based on purchase price and additional testimony. Therefore, the evidence presented was sufficient for a reasonable juror to find that the value of the stolen tools was more than $500. Issue 2: Mistrial Gunn argues an exchange between the prosecutor and an investigator violated his right against self-incrimination. It is improper and, ordinarily, reversible error to comment on the accused’s post-Miranda silence. And when the trial judge determines that the error does not reach the level of prejudice warranting a mistrial, the judge should admonish the jury to disregard the impropriety to cure its prejudicial effect. Here, the exchange between the prosecutor and the investigator concerning Gunn’s statement or lack thereof was improper. But reversal is not warranted, because the evidence weighs overwhelmingly against the defendant. Multiple eyewitnesses and video documentation implicated Gunn. Moreover, the comment was not used to impeach Gunn’s trial testimony nor did the State revisit this fact in its closing argument. Issue 3: Photo lineup Because he was the only individual in a six-person photographic lineup shown wearing a coat, Gunn argues that the lineup was impermissibly suggestive. Gunn failed to raise this issue properly at trial and is procedurally barred from arguing it for the first time on appeal. The mere fact that Gunn was the only person in the lineup wearing a coat does not make this “effectually a lineup of one and not six pictures,” as Gunn argues. The theft allegedly was committed by someone wearing a red shirt and khaki pants; there was no testimony the perpetrator was wearing a coat.


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