Ramsey v. State
| Docket Number: | 2005-KA-00070-COA Linked Case(s): 2005-KA-00070-COA ; 2005-CT-00070-SCT ; 2005-KA-00070-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-17-2006 Opinion Author: Chandler, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Capital murder & Robbery - Variance in indictment and instructions - Inconsistent statements - Without authority of law - Deliberate design murder - Right to testify - Lesser-included offense instruction - Photographs - M.R.E. 403 - Ineffective assistance of counsel - Closing argument - Peremptory challenges - Prior convictions - Accomplice instruction - Sufficiency of evidence Judge(s) Concurring: C.J., Lee and Myers, P.JJ., Southwick, Irving, Griffis, Barnes and Ishee, JJ. Non Participating Judge(s): Roberts, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-01-2004 Appealed from: Lauderdale County Circuit Court Judge: Larry Eugene Roberts Disposition: CONVICTION ON COUNT I - CAPITAL MURDER AND COUNT II - ROBBERY - SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE OR ANY FORM OF EARLY RELEASE IN THE CUSTODY OF THE MDOC AS TO COUNT I, AND SENTENCED TO A CONCURRENT TERM OF 15 YEARS AS TO COUNT II District Attorney: BILBO MITCHELL Case Number: 269-03 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jermaine A. Ramsey |
JAMES A. WILLIAMS |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL |
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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: | Capital murder & Robbery - Variance in indictment and instructions - Inconsistent statements - Without authority of law - Deliberate design murder - Right to testify - Lesser-included offense instruction - Photographs - M.R.E. 403 - Ineffective assistance of counsel - Closing argument - Peremptory challenges - Prior convictions - Accomplice instruction - Sufficiency of evidence |
| Summary of the Facts: | Jermaine Ramsey was convicted of the crimes of capital murder and robbery. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Variance in indictment and instructions Ramsey argues that the court erred in allowing a jury instruction that differed in its verbiage from the charge in his indictment. No objection to the language of the jury instruction is in the record. Thus, Ramsey failed to preserve this issue for appeal. In addition, the language of the indictment properly charged Ramsey with capital murder under section 97-3-19(2)(e) and the jury instruction properly instructed the jury on the elements of capital murder under section 97-3-19(2)(e). Issue 2: Inconsistent statements Ramsey argues that inconsistent evidence regarding whether he or another man killed the victim, in combination with the trial court’s instructions permitting a conviction and sentence to prison for life without parole, constitute a Fourteenth Amendment due process violation. Ramsey relies on several United States Supreme Court cases which all concern sentencing enhancements involving the death penalty. None of the referenced cases are applicable to Ramsey’s case. The district attorney did not seek the death sentence. Issue 3: Without authority of law Ramsey argues that the court fatally erred in not providing in a portion of the jury instructions the language, “without authority of law.” Even though a synonym of the phrase “without authority of law” did not appear in a separate enumerated paragraph in the second portion of the jury instruction, there was no error when reading the instruction as a whole. The jury was properly informed of the requisite findings under the statute and the proof needed to sustain such a charge. Issue 4: Deliberate design murder Ramsey argues that another variance in the language of his indictment and a jury instruction constituted a fatal error and violated his constitutional right to a fair trial. Ramsey argues that the jury instruction should have required a finding of deliberate design. The Supreme Court addressed this issue in Doss v. State, 709 So. 2d 369 (Miss. 1996), and found there is nothing about the statute which requires any intent to kill when a person is slain during the course of a robbery. Issue 5: Right to testify Ramsey argues that his decision not to testify arose when the State allegedly threatened to impeach his testimony by threatening to call a psychologist to the stand. This argument is without merit, because the record does not indicate that the State used any intimidation tactics to keep Ramsey off the stand. In addition, Ramsey's decision not to testify was voluntary. Issue 6: Lesser-included offense instruction Ramsey argues that he should have received a lesser-included offense instruction of obstructing justice and for aggravated assault and that the court should have given an instruction for simple murder. A lesser-included offense instruction is required only where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt. There is no dispute that the victim died as a result of being shot with a .25 Raven automatic pistol. The trial judge correctly held that aggravated assault was not under the facts of the case in any way a lesser-included or related offense of robbery. In the same manner, an obstruction of justice charge was not appropriate, nor do the facts in the record support such a charge. Ramsey did not request a simple murder instruction and is thus procedurally barred from raising this issue on appeal. Issue 7: Photographs Ramsey argues that four of the photographs taken during the autopsy of the victim were inflammatory and irrelevant. Autopsy photographs are admissible only if they possess probative value. Pictures such as the ones admitted in this trial have been found to have probative value in showing the location and number of wounds, and the extent and force of the violence involved. The mere fact that photographs depict an unpleasant or gruesome scene is no bar to their admission if they are relevant under M.R.E. 403. The photographs were used in the State's case-in-chief to corroborate the testimony of the officer who found the body, and who testified as to the condition of the scene as it existed on the night in question. Other photographs were used in conjunction with the testimony of Dr. Hayne who performed the autopsy. Thus, there was no abuse of discretion on the part of the trial court in finding the photographs were more probative than prejudicial. Issue 8: Ineffective assistance of counsel Ramsey argues counsel was ineffective by failing to object to leading questions asked of the State’s witnesses; failing to object to hearsay; failing to object to the State’s closing argument; failing to request a lesser included offense instruction on simple murder; failing to object to the variance between the indictment and the jury instructions; and failing to raise a Batson challenge to the State’s alleged improper striking of certain jurors. Nothing in the record affirmatively showing ineffectiveness of constitutional dimensions. Further, Ramsey has failed to show prejudice. Issue 9: Closing arguments Ramsey argues that his right to silence was violated by the State’s alleged improper reference to his co-defendant and the victim as being the only eyewitnesses to the crime. The State is prohibited, either by direct comment, insinuation or innuendo, from commenting on the defendant's failure to testify. The Supreme Court has held that it was not an improper comment on a capital murder defendant’s failure to testify when the prosecution stated that an accomplice’s testimony regarding a ripped shirt was the “only testimony” and the “only reliable information” made available. Thus, this issue is without merit. Issue 10: Peremptory challenges Ramsey argues that the prosecutor improperly used three peremptory challenges. Ramsey failed to raise a Batson challenge at trial. The trial court therefore did not have the opportunity to make any fact-findings and the issue is without merit. Issue 11: Prior convictions Ramsey argues that although he was able to question the co-defendant about his juvenile record, the impeachment was limited because the scope of cross-examination was inadequate. According to section 43-21-561(5), a youth court adjudication can be used to cross-examine a witness in a criminal proceeding to show "bias or interest." The record shows that Ramsey’s counsel asked the co-defendant about two particular instances where he was ordered to attend training school while a youth in the State of Mississippi. Therefore, Ramsey’s argument is without merit. Issue 12: Accomplice instruction Ramsey argues that the court should have instructed the jury to view the co-defendant's testimony as an accomplice with caution. Ramsey did not submit such an instruction to the court, nor did he request one. Because Ramsey failed to submit or request such an instruction, this argument is procedurally barred. Issue 13: Sufficiency of evidence An eyewitness testified that Ramsey was in fact the shooter. Shell casings were found at Ramsey’s home in his chest of drawers, the victim’s personal effects were found in a garbage bag that Ramsey’s mother had attempted to throw away, and the spent cartridges matched the type of the gun that was used in the killing. Considering this evidence in the light most favorable to the verdict, there was substantial evidence of such quality to support Ramsey’s guilt of capital murder with the underlying felony of robbery. |
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