Moore v. State
| Docket Number: | 2010-KA-00077-COA Linked Case(s): 2010-KA-00077-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-26-2011 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Conspiracy to commit armed robbery, Armed robbery & Manslaughter - Trial exhibits - URCCC 3.10 - Jury deliberations - Dying declaration - M.R.E. 804(b)(2) - Sufficiency of evidence Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts, Carlton and Russell, JJ. Concur in Part, Concur in Result 1: Maxwell, J. Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-12-2009 Appealed from: Marion County Circuit Court Judge: Prentiss Harrell Disposition: CONVICTED OF COUNT I, CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCED TO FIVE YEARS; COUNTS II, III, IV, V, VI, AND VII, ARMED ROBBERY, AND SENTENCED TO TWENTY YEARS FOR EACH COUNT; AND COUNT VIII, MANSLAUGHTER, AND SENTENCED TO TWENTY YEARS, WITH THE SENTENCES IN COUNTS I, II, AND VIII TO RUN CONSECUTIVELY, AND WITH THE SENTENCES IN COUNTS III, IV, V, VI, AND VII TO RUN CONCURRENTLY WITH COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $1,000 FINE, HIS PART OF $6,725 IN RESTITUTION, AND HIS PART OF A $4,500 FEE TO THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND Case Number: K08-0036H |
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| Party Name: | Attorney Name: | |||
| Appellant: | Joshua Moore |
BENJAMIN A. SUBER |
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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: | Conspiracy to commit armed robbery, Armed robbery & Manslaughter - Trial exhibits - URCCC 3.10 - Jury deliberations - Dying declaration - M.R.E. 804(b)(2) - Sufficiency of evidence |
| Summary of the Facts: | Joshua Moore was convicted of conspiracy to commit armed robbery, six counts of armed robbery, and manslaughter. Moore was sentenced to five years for the conspiracy charge, twenty years for each armed-robbery charges, and twenty years for the manslaughter charge. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Trial exhibits Moore argues that the trial court erred in not declaring a mistrial when it was discovered that during deliberations, the jury had not been provided two exhibits – the photograph of the decedent and the statement by Investigator Mitchell – both of which had been admitted into evidence. URCCC 3.10 provides that the court shall permit the jury, upon retiring for deliberation, to take to the jury room the instructions and exhibits and writings which have been received in evidence. Rule 3.10 has been held within reason, mandatory. However, on appeal an error of this sort may be deemed harmless. Here, there is no dispute that the failure to transfer the two exhibits from the courtroom to the jury-deliberation room was inadvertent and that the jury was not able to consider them during its deliberations. Because the photograph of the decedent was entered into evidence for the identification of the decedent during the forensic pathologist’s testimony, this exclusion is harmless error. It did not prejudice Moore’s defense. The inadvertent exclusion to the jury deliberations of the statement by Investigator Mitchell is harmless as well. The substance of the statement was that Investigator Mitchell had received a call from an anonymous source indicating that Moore did not shoot the decedent; rather, “Munt” did. While the statement is hearsay, it was entered by way of an agreement between the State and the defense after the State had rested its case-in-chief. During closing arguments, both the State and the defense referred to the statement and its contents. Based on the strength of the prosecution’s case, it was harmless error for Investigator Mitchell’s statement to be inadvertently excluded from jury deliberations. Issue 2: Dying declaration Moore argues that the trial court erroneously denied his motion for a mistrial after the State elicited hearsay testimony from a witness. The defense did not specifically object to the statement as hearsay until this appeal. Dying declarations are an exception to the exclusion of hearsay statements under M.R.E. 804(b)(2). Such a declaration is defined as a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death. The statement is considered a dying declaration if the wounded person is in extremis and dies after making the statement, the person realizes that he is mortally wounded, and he has no hope of recovery. Here, it can be inferred from the situation that at the time the decedent made the statement to the witness, he knew of his impending death and had no hope of recovery even if he did not specifically declare it. As Dr. Hayne testified, the decedent had been shot through the heart, and the bullet was lodged in his lung cavity. He was profusely bleeding internally, and while he might not have passed away immediately after being shot, he did shortly thereafter. Thus, the court did not err in admitting the testimony. Issue 3: Sufficiency of evidence Moore argues that there was insufficient evidence to support a conviction for armed robbery because the evidence shows nothing was taken from the victim. At trial, the victim testified that two armed, masked men, whom he identified as Moore and Varnado, kicked in the door to the game room. They hollered and ordered everyone on the floor while firing a firearm once into the air. The victim acknowledged that Moore and Varnado were serious about robbing the men in the room and then proceeded to take their money. While the victim did not lose any money to the robbers because he did not have any at that time, already having lost all of his money in the dice game, he admitted that Moore and Varnado had attempted to rob him and he was “scared for his life.” Because the evidence shows Moore attempted to take the property of the victim in a violent matter against his will, there is sufficient evidence of guilt of armed robbery. |
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