Livingston v. State


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Docket Number: 2004-KA-02455-COA
Linked Case(s): 2004-CT-02455-SCT ; 2004-KA-02455-COA

Court of Appeals: Opinion Link
Opinion Date: 05-30-2006
Opinion Author: King, C.J.
Holding: AFFIRMED

Additional Case Information: Topic: Murder & Kidnaping - Discovery violation - Exclusion of evidence - Heat of passion manslaughter instruction - Weight of evidence
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

Trial Court: Date of Trial Judgment: 09-03-2004
Appealed from: Lamar County Circuit Court
Judge: Michael R. Eubanks
Disposition: COUNT I MURDER - SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT IN THE CUSTODY OF MDOC. COUNT III KIDNAPING - SENTENCED TO SERVE A TERM OF THIRTY YEARS IN THE CUSTODY OF MDOC WITH FIFTEEN YEARS TO SERVE AT MDOC AND THE REMAINING FIFTEEN YEARS OF SAID SENTENCE TO BE SERVED UNDER POSTRELEASE PROVISION WITH FIVE YEAR SUPERVISION PERIOD. THE SENTENCE IMPOSED IN COUNT III OF KIDNAPING IS TO RUN CONSECUTIVE TO THE SENTENCE IMPOSED IN COUNT I OF MURDER
District Attorney: Claiborne McDonald
Case Number: 2004K-258E

  Party Name: Attorney Name:  
Appellant: Travis Livingston




REX K. JONES, E. LINDSAY CARTER



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. DANIEL HINCHCLIFF  

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Topic: Murder & Kidnaping - Discovery violation - Exclusion of evidence - Heat of passion manslaughter instruction - Weight of evidence

Summary of the Facts: Travis Livingston was found guilty of murder and kidnaping. He received a sentence of life imprisonment for the murder charge, and a consecutive thirty year sentence for the kidnaping charge. He appeals.

Summary of Opinion Analysis: Issue 1: Discovery violation Livingston argues that the State violated Uniform Circuit and County Court Rule 9.04 by failing to disclose prior to trial a synopsis of the anticipated testimony of two witnesses. The testimony of both witnesses was admitted into evidence without objection from Livingston. It was not until an officer testified that he had spoken with the two witnesses when responding to the 911 call did Livingston’s attorneys raise the issue before the judge. Accordingly, this issue is procedurally barred. Issue 2: Exclusion of evidence Livingston sought to offer into evidence a report from the Mississippi Crime Lab which showed that the murder victim’s urine screened positive for marijuana. The court excluded the admission of the report but allowed Livingston to make a proffer. Livingston claimed that this evidence would support his theory that the victim was the initial aggressor. However, the crime lab report indicated that an insufficient sample volume was submitted to perform a confirmatory drug analysis. Furthermore, defense counsel admitted that they had no expert to testify about the alleged correlation between marijuana consumption and violence. The court did not err in excluding the report since Livingston failed to sufficiently prove its relevance. Livingston also argues that the court erred in excluding the proposed testimony of a licensed psychologist who evaluated Livingston prior to trial. Her opinion was that Livingston was in a state of diminished perception and capacity due to the heightened state of arousal and fear he was experiencing at the time. Mississippi does not recognize diminished capacity as a defense to a criminal charge. Issue 3: Heat of passion manslaughter instruction The court properly denied Livingston’s proposed jury instruction because it lacked foundation in the evidence. As shown by the testimony of eyewitnesses, not only was there no adequate provocation to warrant a heat of passion manslaughter instruction, but also there was no violent, uncontrollable rage at the time of the incident. Issue 4: Weight of evidence Since three witnesses testified that they saw Livingston murder the victim, and a fourth witnessed the circumstances surrounding the murder, the jury’s verdict has not resulted in an unconscionable injustice. There was also sufficient evidence for a rational juror to find that the State proved beyond a reasonable doubt that Livingston kidnaped his ex-wife. Eyewitnesses testified that they saw Livingston forcibly seize, confine, and carry away his ex-wife.


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