Duhart v. State
| Docket Number: | 2004-KP-01168-COA Linked Case(s): 2004-KP-01168-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 01-24-2006 Opinion Author: Barnes, J. Holding: AFFIRMED |
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| Additional Case Information: |
Topic: Uttering a forgery - Ruling on habeas petition - Identification testimony - Sufficiency of evidence - Newly discovered evidence Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis and Ishee, JJ. Non Participating Judge(s): Southwick and Roberts, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-01-2004 Appealed from: Lee County Circuit Court Judge: Thomas J. Gardner Disposition: CONVICTED OF UTTERING FORGERY AND SENTENCED TO SERVE A TERM OF FIFTEEN YEARS IN THE CUSTODY OF THE MDOC Case Number: CR00-437 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Dennis F. Duhart a/k/a Dennis Felton Duhart |
DENNIS FELTON DUHART (PRO SE) |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS |
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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: | Uttering a forgery - Ruling on habeas petition - Identification testimony - Sufficiency of evidence - Newly discovered evidence |
| Summary of the Facts: | Dennis Duhart was convicted for uttering a forgery and sentenced to fifteen years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ruling on habeas petition Duhart argues that the court abused its discretion in failing to rule on his habeas petition and motion for JNOV in a timely manner. It is the movant’s responsibility to obtain a ruling from the court on motions, and failure to do so constitutes a waiver. The record does not show that Duhart acted diligently in pursuing his habeas petition and motion for preliminary hearing to decision. In fact, in his order dismissing Duhart’s habeas petition as moot, the trial judge noted that instead of setting the petition and motion for hearing and obtaining a ruling, Duhart and his counsel made the decision to go to trial on the forgery charge. Because the record shows that Duhart did not diligently pursue his habeas petition and motion for preliminary hearing to ruling, the motions are deemed waived. Issue 2: Identification testimony Duhart argues that the court erred in denying his motion to suppress identification testimony. When determining whether to suppress evidence of a pre-trial identification, the court must resolve whether the identification procedure used by law enforcement was unnecessarily suggestive. The court found that the witness had ample time to observe Duhart at the time of the crime, as he personally cashed Duhart’s check; that the testimony of the witness showed that he had been attentive at the time Duhart passed the instrument; that the witness’s prior description of Duhart was not particularly strong, but was not weak enough to militate against admitting the identification; that the witness did not waver in his in-court identification of Duhart as the culprit; and that the length of time between the crime and the witness’s initial identification had been short. It is clear from the record that the trial court considered the necessary factors and made a well-founded decision. Therefore, the court did not abuse its discretion in denying Duhart’s motion to suppress the identification testimony. Issue 3: Sufficiency of evidence Duhart challenges the sufficiency of the evidence. The State presented evidence that Duhart took the blank check from his employer and filled it out using a typewriter. That Duhart knew the check to be forged is a reasonable inference from this evidence. Viewing the evidence in the light most favorable to the prosecution, it is evident that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Issue 4: Newly discovered evidence Duhart argues that the court abused its discretion in not granting a new trial based upon the discovery of handwritten time sheets showing that Duhart worked a full eight hours on the day that the store clerk said he had cashed a check for Duhart. Newly discovered evidence warrants a new trial if the evidence will probably produce a different result or verdict; further, the proponent must show that the evidence has been discovered since the trial, that it could not have been discovered before the trial by the exercise of due diligence, that it is material to the issue, and that it is not merely cumulative, or impeaching. In the case at hand, it is not at all clear that the new evidence would probably produce a different result or verdict. While the handwritten time sheets corroborate Duhart’s contention that he was not in Tupelo on that date, the time sheets do not necessarily prove Duhart’s version of the story. Because of the short distance between Pontotoc and Tupelo, it is still quite feasible that Duhart traveled to Tupelo during his lunch break to cash a check at Wright’s Short Stop. In addition, Duhart has failed to show that he acted with due diligence in discovering the time sheet evidence. |
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