Diamio v. State
| Docket Number: | 2005-KA-00782-COA Linked Case(s): 2005-KA-00782-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-24-2006 Opinion Author: King, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary of church, Petit larceny & Felony malicious mischief - Motion to suppress - Motion to sever - Lesser-related offense instruction - Constitutionality of statutes - Ineffective assistance of counsel Judge(s) Concurring: Lee and Myers, P.JJ., Southwick, Irving, Chandler, Griffis, Barnes, Ishee and Roberts, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 03-10-2005 Appealed from: Tallahatchie County Circuit Court Judge: Ann Lamar Disposition: COUNT I - CONVICTION OF BURGLARY OF A CHURCH AND SENTENCE OF TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; COUNT II - CONVICTION OF PETIT LARCENY AND SENTENCE OF ONE YEAR IN THE TALLAHATCHIE COUNTY JAIL; COUNT III - CONVICTION OF BURGLARY OF A CHURCH AND SENTENCE OF FIVE YEARS ON POSTRELEASE SUPERVISION, PENDING FUTURE GOOD BEHAVIOR; COUNT IV - CONVICTION OF PETIT LARCENY AND SENTENCE OF ONE YEAR IN THE TALLAHATCHIE COUNTY JAIL; COUNT V - CONVICTION OF FELONY MALICIOUS MISCHIEF AND SENTENCE OF FIVE YEARS ON POST-RELEASE SUPERVISION, PENDING FUTURE GOOD BEHAVIOR. District Attorney: JOHN W. CHAMPION Case Number: CR-2004-18-L(T1) |
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| Party Name: | Attorney Name: | |||
| Appellant: | Joseph T. Dimaio a/k/a JT |
ALISON OLIVER KELLY |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. DANIEL HINCHCLIFF |
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| Topic: | Burglary of church, Petit larceny & Felony malicious mischief - Motion to suppress - Motion to sever - Lesser-related offense instruction - Constitutionality of statutes - Ineffective assistance of counsel |
| Summary of the Facts: | Joseph Dimaio was convicted of two counts of burglary of a church, two counts of petit larceny, and one count of felony malicious mischief. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to suppress Dimaio argues that the evidence found in his home during the execution of a search warrant should have been suppressed due to the lack of probable cause. Probable cause exists when facts and circumstances within an officer's knowledge, or of which he has reasonably trustworthy information, are sufficient within themselves to justify a man of average caution in the belief that a crime has been committed and that a particular person committed it. The information obtained by the officer, when viewed as a whole, would reasonably lead an officer to believe that evidence material to a criminal investigation would be found in Dimaio’s home. Issue 2: Motion to sever Dimaio argues that the court erred in failing to sever the five counts relating to the church burglaries. When determining whether a multi-count indictment is proper, the court should consider whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven. Here, the trial court was correct in finding that the two burglaries, which occurred five days apart and involved the same establishment, as well as both acts of petit larceny and malicious mischief which occurred during the burglaries, were all part of a common scheme or plan. Issue 3: Lesser-related offense instruction Dimaio argues that the court erred in failing to grant his lesser-related offense instruction. Lesser-related offense instructions should not be granted when, taking the evidence in the light most favorably to the accused, no reasonable jury could find the defendant guilty of the lesser related offense. Considering the officer’s testimony that Dimaio admitted breaking in to the church, the friend’s testimony relaying a detailed account of the events, together with all of the evidence found in Dimaio’s home, no reasonable juror could have found Dimaio guilty of receiving stolen property. Issue 4: Constitutionality of statutes Dimaio argues that sections 97-17-33(2), 97-17-41(1)(B) and 97-17-43(2) are unconstitutional as violative of the Establishment Clause of the First Amendment. The Establishment Clause of the First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion.” The statutes in question do not in any way involve religious activity, much less state sponsorship, financial support, or active involvement thereof. The statutes are located in the chapter of the Mississippi Code prohibiting crimes against property. The purpose of the statutes is simply to deter criminal activity. The fact that the statutes in question provide harsher penalties for crimes committed in places of worship does not amount to government endorsement of religion. Rather the harsher penalties reflect a common view that crimes committed in places of worship are more repugnant to the community. Issue 5: Ineffective assistance of counsel Dimaio argues that he received ineffective assistance of counsel due to counsel’s alleged failure to interview a particular witness and seek a change of venue. Dimaio’s claim of ineffective assistance is not proper on direct appeal since he cannot offer any support from the record to substantiate his claim. |
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