Sipp v. State
| Docket Number: | 2004-KP-02287-SCT Linked Case(s): 2004-KP-02287-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-22-2006 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Murder - Mistrial - Use of statement for impeachment - Exclusion of exhibits - Jury deliberations - Closing argument - Sufficiency of evidence - Ineffective assistance of counsel Judge(s) Concurring: Smith, C.J., Diaz, Easley, Carlson, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Cobb, P.J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-26-2004 Appealed from: Jackson County Circuit Court Judge: Robert P. Krebs Disposition: Sipp appeals from his conviction in Jackson County Circuit Court of murder and sentence of life imprisonment in the custody of the Mississippi Department of Corrections. Case Number: 2003-10,226(1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Herman Sipp, Jr. |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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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: | Murder - Mistrial - Use of statement for impeachment - Exclusion of exhibits - Jury deliberations - Closing argument - Sufficiency of evidence - Ineffective assistance of counsel |
| Summary of the Facts: | Herman Sipp, Jr. was convicted of murder and sentenced to life imprisonment. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Mistrial Sipp argues that the court erred by allowing the State to use a statement made by Sipp to impeach him and the State’s use of that statement warranted the declaration of a mistrial because police violated his Miranda rights by procuring his statement after he had invoked his right to counsel. A voluntary statement that is inadmissible due to some technical violation of Miranda or is inadmissible because it is in violation of a defendant’s Fifth or Sixth Amendment rights can be used for impeachment purposes. Sipp has not shown that he was threatened, mistreated, intoxicated, under the influence of drugs, or promised anything to make the statement. Because Sipp’s statement was made voluntarily, and the State made no attempt to use Sipp’s statement in its case-in-chief, the circuit court did not err in allowing the State to use Sipp’s statement for impeachment purposes. Sipp also argues the court should have issued a limiting instruction to the jury to clarify that Sipp’s testimony about cutting his hand was strictly for impeachment purposes. The record does not reflect that Sipp ever moved for the limiting instruction to be given, and, as such, the judge did not err by failing to give such an instruction to the jury. Issue 2: Exclusion of exhibits Sipp argues that the court erred in denying Sipp’s motion to allow four defense exhibits to be introduced into evidence for purposes of showing the improbability that the victim was shot from the position indicated by the State. Sipp attempted to have exhibits showing parts of the scene and angle overlays admitted into evidence. The defense had no expert or witness to testify as to the validity or accuracy of the proposed evidence, and only defense counsel could vouch for its reliability. Demonstrative aids or diagrams should only be allowed when they are based on evidence presented. Since Sipp failed to show how the diagrams and trajectory estimates he wanted to be placed into evidence had any scientific justification, expert basis, or basis in first hand knowledge, the court did not err in excluding the diagrams as evidence. Issue 3: Jury deliberations After six hours of deliberation, the jury’s foreman indicated that strides were being made toward a unanimous vote, but he was not sure a verdict could be reached that night. Sipp moved to declare a hung jury. The judge refused to find a hung jury, recessed the court, and instructed the jury to return the next morning to continue deliberations. Sipp argues that the court’s refusal to declare a hung jury was reversible error. Because deliberations had taken only six hours and progress was being made, the judge did not abuse his discretion in refusing to declare a mistrial and recessing jury deliberations overnight. Sipp also argues the court erred by failing to question each of the jurors on whether they had read a newspaper article that Sipp’s counsel found to be adverse to Sipp’s case. However, the record is completely devoid of any comments or indications by the members of the jury that any of them had been inappropriately contacted or had viewed restricted forms of media. Issue 4: Closing argument Sipp argues that the court erred by allowing the State to make a statement concerning the exact time Sipp returned to his neighbor’s house the night of the murder. Prosecutors are bound to the facts introduced in evidence and to the fair and reasonable deductions and conclusions to be drawn therefrom. Here, the prosecutor was simply presenting to the jury his own deductions of Sipp’s whereabouts based on witness testimony. Issue 5: Sufficiency of evidence Two witnesses testified that Sipp confessed to shooting the victim. Sipp’s alibi could not be confirmed by any of the people he alleged he had been with before, during, or after the time of the shooting, and circumstantial evidence concerning the weapon used to kill the victim also pointed to Sipp as the shooter. Viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Issue 6: Ineffective assistance of counsel Sipp argues that his counsel was ineffective when he failed to object to two statements made concerning an allegation that Sipp made copies of his girlfriend’s keys and in failing to call the victim’s former girlfriend. Sipp fails to show the relevance these facts have in the present case. As such, Sipp fails to show that his counsel erred in ignoring the irrelevant information, and he fails to convincingly assert that objecting to the statements would have changed the trial’s result. In addition, an attorney’s choice of whether to call certain witnesses and ask certain questions falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim. |
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