McGee v. State


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Docket Number: 2004-KA-00497-COA
Linked Case(s): 2004-KA-00497-COA
Court of Appeals: Opinion Link
Opinion Date: 01-17-2006
Opinion Author: Irving, J.
Holding: AFFIRMED
Additional Case Information: Topic: Murder & Aggravated assault - Weight of evidence - Discovery violations - UCCCR 9.04 - Cross-examination - Rebuttal testimony - Prosecutorial misconduct - Closing argument - Jury instructions - Ineffective assistance of counsel
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Chandler, Griffis, Barnes and Ishee, JJ.
Non Participating Judge(s): Roberts, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Trial Court: Date of Trial Judgment: 06-04-2003
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Disposition: CONVICTED OF MURDER AND AGGRAVATED ASSAULT AND SENTENCED TO LIFE FOR THE MURDER AND TWENTY YEARS FOR THE AGGRAVATED ASSAULT, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
District Attorney: Eleanor Faye Peterson
Case Number: 02-0-014
  Party Name: Attorney Name:  
Appellant: Baron McGee




 MINOR F. BUCHANAN



  
Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS  
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Topic: Murder & Aggravated assault - Weight of evidence - Discovery violations - UCCCR 9.04 - Cross-examination - Rebuttal testimony - Prosecutorial misconduct - Closing argument - Jury instructions - Ineffective assistance of counsel
Summary of the Facts: Baron McGee was convicted of murder and aggravated assault. He was given concurrent sentences of life and twenty years. He appeals.
Summary of Opinion Analysis: Issue 1: Weight of evidence McGee argues that the State’s case relied wholly on the testimony of two witnesses whose stories are questionable at best. An eyewitness identified McGee as the person she saw shoot the two men that night. She positively picked McGee out of a photographic lineup of six individuals. She also made an in-court identification of McGee as the shooter. In addition, one of the victims identified McGee as the person who shot him in the neck. There was also physical evidence which corroborated the testimony of these witnesses. Therefore, the evidence presented was sufficient to support a conviction. Issue 2: Discovery violations McGee argues that the court erred in not granting his request for a witness’s criminal record, because the prior criminal convictions would have been exculpatory evidence. Uniform Circuit and County Court Rule 9.04 requires the prosecution to disclose the criminal record of the defendant, not that of victims or other witnesses. In addition, McGee did not show in the trial court, and has not shown in this appeal, how the witness’s criminal record was material to the preparation of his defense. Issue 3: Cross-examination McGee argues that the court should have granted a mistrial due to a witness’s non-responsive, inadmissible, and prejudicial answers on cross-examination. The record shows that the witness actually answered all questions asked of him on cross-examination, although not in the manner that the defense would have liked. There is no case law that requires a finding that a defendant is denied a fair trial when questions are asked of a witness and the court fails to instruct the witness to answer the questions to the satisfaction of the asking attorney. Issue 4: Rebuttal testimony McGee argues that the court erred in allowing a witness’s rebuttal testimony, because the prosecution kept the witness’s identity a secret in order to surprise and ambush him at trial. The record indicates that the witness was discovered to be a rebuttal witness during the course of the trial. The record also indicates that as soon as his identity and knowledge were discovered by the prosecution, the defense was informed and given access to the witness. The court offered the defense additional opportunities to interview the witness. Furthermore, the court was willing to postpone the trial for the remainder of that day in order to provide the defense more time to interview the witness. McGee’s refusal of the offer acted as a waiver of his objection. Issue 5: Prosecutorial misconduct McGee argues that the court erred in denying his motions for a mistrial during the prosecutor’s cross-examination of him, because the cumulative effect of the prosecutor’s improper and prejudicial questions warrant reversing his conviction. There was no showing of conduct that resulted in substantial or irreparable harm to McGee’s case. In fact, the record reflects that the court sustained a number of the defense’s objections during the prosecution’s cross-examination of McGee. Issue 6: Closing argument McGee argues that the prosecution made an improper send a message to the community emotional appeal to the jury. However, McGee did not object to the argument which he now contends was prejudicial. Therefore, the issue is procedurally barred. Issue 7: Jury instructions McGee argues that the court erred by refusing to grant his jury instruction which properly contrasted reasonable doubt with a preponderance of the evidence. Three other instructions sufficiently addressed the jury’s duty to convict McGee only if it found that the State had proved beyond a reasonable doubt that he committed the charged offenses. Therefore, McGee’s proposed instruction was repetitive and unnecessary. Issue 8: Ineffective assistance of counsel McGee argues that his trial counsel failed to provide effective assistance of counsel. The record in this case does not affirmatively show ineffectiveness of constitutional dimensions, nor is there any stipulation by the parties regarding the adequacy of the record. Therefore, relief is denied without prejudice to McGee to raise this issue again via a motion for post-conviction relief, should he so choose.


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