Shephard v. State


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Docket Number: 2009-KA-00112-COA
Linked Case(s): 2009-KA-00112-COA ; 2009-CT-00112-SCT

Court of Appeals: Opinion Link
Opinion Date: 03-01-2011
Opinion Author: Roberts, J.
Holding: Kirkham - Affirmed; Shephard - Reversed and remanded.

Additional Case Information: Topic: Aggravated assault - Comments by judge - Character evidence - M.R.E. 404(a) - M.R.E. 103(a)(2) - Severance - URCCC 9.03(2)
Judge(s) Concurring: King, C.J., Lee, P.J., Myers, P.J., Irving, Griffis, Barnes, Ishee and Maxwell, JJ.
Dissenting Author : Carlton, J. Without Separate Written Opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 12-17-2008
Appealed from: Bolivar County Circuit Court
Judge: Albert B. Smith, III
Disposition: Convicted of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections
District Attorney: Laurence Mellen
Case Number: 2008-022-CR2

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Lawonda Shephard and Alfred Kirkham




ANDREW BREVIK SCHIMMEL, DAVID NEIL MCCARTY, W. DANIEL HINCHCLIFF



 
  • Appellant #1 Brief
  • Appellant #2 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS  
    Appellee #2:  

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    Topic: Aggravated assault - Comments by judge - Character evidence - M.R.E. 404(a) - M.R.E. 103(a)(2) - Severance - URCCC 9.03(2)

    Summary of the Facts: Alfred Kirkham and Lawonda Shephard were convicted of aggravated assault. Kirkham was sentenced to twenty years, and Shephard was sentenced to fifteen years with five years suspended. They appeal.

    Summary of Opinion Analysis: Issue 1: Comments by judge Kirkham argues that the circuit judge made numerous inappropriate comments throughout the entirety of the trial. Although Kirkham did not object to any of the comments, he argued that the cumulative effect of what Kirkham considers to be the circuit judge’s attempts at levity eroded the seriousness of the proceedings. This is not the first time that such a claim has been raised against the circuit judge who presided over Kirkham’s trial. It is clear that some of the circuit judge’s comments were not only unnecessary, but also unnecessary attempts at levity. However, the cumulative or aggregate effect of the circuit judge’s comments did not erode Kirkham’s right to a fair trial. There is no instance in which the circuit judge made light of the proceedings or joked at the defendant's expense. Issue 2: Character evidence Kirkham argues that the circuit judge erred when it prohibited him from testifying regarding the victim’s reputation for violence. Pursuant to M.R.E. 404(a), evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion. Nevertheless, evidence that would otherwise be excluded under Rule 404(a) is admissible if it is evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor. In this case, there was no proffer of what Kirkham’s testimony might have been had Kirkham been allowed to continue. M.R.E. 103(a)(2) provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Based on the lack of a proffer in the record, the circuit judge did not abuse its discretion. Issue 3: Severance Shephard did not file a pretrial motion to sever her trial from Kirkham’s because Kirkham’s pretrial statement did not implicate Shephard. After the prosecution rested its case-in-chief, Kirkham opted to testify. Unlike his pretrial statement, Kirkham implicated Shephard during his direct testimony. Immediately after Kirkham’s unanticipated testimony, Shephard’s attorney moved to sever Shephard’s trial from Kirkham’s. The circuit judge overruled Shephard’s motion on the basis the Kirkham’s testimony was consistent with the victim’s. Shephard argues that the circuit judge erred. Under URCCC 9.03(2), the court may, on motion of the state or defendant, grant a severance of offenses if during trial, upon the consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense. To warrant reversal, an appellant must demonstrate that a codefendant attempted to exculpate himself at the expense of the appellant, i.e., there was a conflict of interest between the two; and that the balance of the evidence introduced at trial went more to the guilt of a codefendant than to the guilt of the appellant, such that the jury may have found the appellant guilty by association. Kirkham’s testimony avoided the appearance that he was the initial aggressor in the confrontation or that he left the confrontation, armed himself, and returned to the confrontation. The balance of evidence certainly went more toward Kirkham’s guilt than it did toward Shephard’s guilt. Other than the victim’s testimony and Kirkham’s unexpected testimony that was inconsistent with his statement, there was no evidence that Shephard behaved in any criminal manner. In summary, the jury certainly may have found Shephard guilty by association with Kirkham. Thus, the circuit judge erred when it denied Shephard’s motion for severance.


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