Smith v. State
| Docket Number: | 2005-KA-00591-COA Linked Case(s): 2005-CT-00591-SCT ; 2005-ka-00591-coa |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-13-2006 Opinion Author: Myers, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Aggravated assault - Sufficiency of evidence - Exclusion of witness - Prejudicial comments Judge(s) Concurring: King, C.J., Lee, P.J., 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: 02-17-2005 Appealed from: Lincoln County Circuit Court Judge: Mike Smith Disposition: CONVICTED OF AGGRAVATED ASSAULT - SENTENCED TO SERVE A TERM OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND A FINE OF $10,000, RESTITUTION AND $2,500 IN ATTORNEY’S FEES District Attorney: DEE BATES Case Number: 04-239MS |
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| Party Name: | Attorney Name: | |||
| Appellant: | Darrell Dominique Smith |
DAVID FITZGERALD LINZEY |
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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: | Aggravated assault - Sufficiency of evidence - Exclusion of witness - Prejudicial comments |
| Summary of the Facts: | Darrell Smith was convicted of aggravated assault and sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Smith argues that the evidence was insufficient due to the conflicting testimony of the witnesses. A jury's finding on conflicting testimony will not be disturbed where there is substantial evidence to support the verdict. The victim testified that Smith was the person who shot her. This testimony was corroborated by her husband. The only contradictory testimony was that supplied by Smith himself. His testimony was that he did not fire the shot that hit the victim or that he even had a gun. No testimony was given indicating that anyone else at the scene had a gun. Thus, there is adequate testimony to support the verdict of the jury. Issue 2: Exclusion of witness Smith argues that the court erred in refusing to allow a witness to testify in his defense. At the conclusion of the first day of trial, Smith’s counsel notified the prosecution and court that a witness who was at the scene of the incident, had voluntarily come forward to testify. Counsel became aware of this witness at approximately noon on the first day of trial and waited until the conclusion of that day’s hearing to request that he be added to the witness list. Smith argues that the witness would rebut prosecution witnesses who testified that they had seen Smith shoot the victim. The trial court ruled that the name of this witness was in the file from the date of the incident until the date of trial and that he was not an unknown witness. It is reasonable to presume that there is something suspect about a defense witness who is not identified until the eleventh hour has passed. Thus, the court did not abuse its discretion in excluding this testimony. Issue 3: Prejudicial comments Smith argues that statements made by the court concerning Smith’s absence were highly prejudicial. Smith did not show up for trial that was to begin at 9:00 a.m. Following a conference, the court addressed the jury pool and informed them of Smith’s absence, that the trial would proceed in absentia, and what effect that would have on the defendant. During voir dire, the court was informed that Smith had been located and his reason for absence was that he thought the trial was to begin at 1:00 p.m. When voir dire concluded after 1:00 p.m., the court addressed the jury concerning the statements earlier in the day concerning the absence of Smith and instructed the jurors to disregard Smith’s absence earlier in the day. The court asked if any jurors would have difficulty putting the absence out of their mind during deliberations. No juror indicated that he or she would have any difficulty. It must be presumed that the jurors followed the court's admonition to disregard unanticipated, unprovoked incidents and to decide the case solely on the evidence presented. |
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