Bush v. State


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Docket Number: 2003-KA-01528-SCT
Linked Case(s): 2003-KA-01528-SCT

Supreme Court: Opinion Link
Opinion Date: 02-10-2005
Opinion Author: Waller, P.J.
Holding: Affirmed

Additional Case Information: Topic: Capital murder - Suppression of statement - Sufficiency of evidence - Right of confrontation - M.R.E. 801(d)(2)(E) - Statement by co-conspirator - Prior convictions - Balancing test - M.R.E. 609(a)(1) - Prosecutorial misconduct
Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Graves, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 10-18-2002
Appealed from: Harrison County Circuit Court
Judge: Kosta N. Vlahos
Disposition: Appellant was convicted of capital murder with the underlying felony being armed robbery and sentenced to life in prison without probation or parole.
District Attorney: Cono A. Caranna, II
Case Number: B2401-0000-671

  Party Name: Attorney Name:  
Appellant: Kanynne Jamol Bush a/k/a Jamol Kanynne Bush




JAMES (JAY) R. FOSTER



 

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

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Topic: Capital murder - Suppression of statement - Sufficiency of evidence - Right of confrontation - M.R.E. 801(d)(2)(E) - Statement by co-conspirator - Prior convictions - Balancing test - M.R.E. 609(a)(1) - Prosecutorial misconduct

Summary of the Facts: Kanynne Bush was convicted of capital murder with the underlying felony being armed robbery. He was sentenced to life in prison without probation or parole. He appeals.

Summary of Opinion Analysis: Issue 1: Suppression of statement Bush argues that his confession to the crime was not the result of his free and rational choice. Bush argued before the trial court that any statements made to the officers during their interview with him were inadmissible because of the failure to comply with Miranda and because a warrant for Bush’s arrest had not been issued. Bush’s attorney explicitly stated that Bush had not confessed to the murder, and Bush told the court he had not even spoken to the officers about the murder. Bush may not argue one defense in a motion to suppress and then, on appeal, use a completely different defense to cite the trial court for error. Issue 2: Sufficiency of evidence Bush argues that the evidence is insufficient. Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Bush of capital murder with the underlying felony being armed robbery. Bush both confessed to and described the murder, giving the officers details about the incident, including the fact that the purpose of the robbery attempt was to rob the store’s safe, that the cashier was pregnant, and that he shot the cashier’s boyfriend after he refused to get on the floor, and that three females worked with him in committing the crime. His description matched the accounts of both the cashier, who personally suffered through the ordeal, and a person who helped plan the robbery. Issue 3: Right of confrontation Bush argues that a witness’s testimony regarding anything one of the co-defendants may have said violated Bush’s Sixth Amendment right to confrontation. M.R.E. 801(d)(2)(E) provides that a statement is not hearsay if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. Because Bush cites no statements attributed to the co-defendant which she made outside the furtherance of the conspiracy, this issue is without merit. Issue 4: Prior convictions Bush argues that the court inappropriately allowed evidence of his prior convictions and failed to conduct an on-the-record balancing test before allowing the convictions into evidence. Bush is procedurally barred from raising the issue of the trial court’s alleged failure to conduct an on-the-record analysis, because he failed to object. In addition, the trial judge considered the time of the prior bad acts, the similarity between one of the convictions and the current charge, and how allowing the prosecution to impeach Bush with his prior convictions was valuable in that it allowed the State to provide the jury with necessary information to help in its search for the truth. It is apparent that the judge appropriately satisfied the requirements of M.R.E. 609(a)(1) by conducting a substantive balancing test. Where an accused, on direct examination, seeks to exculpate himself, such testimony is subject to normal impeachment via cross-examination, and this is so though it would bring out that the accused may have committed another crime. Here, Bush, on cross-examination, said that he didn’t like guns, knives, or anything of that nature. The State properly brought his credibility into question when it used his criminal history to demonstrate that contrary to his alleged fearful disposition towards weapons, he had previously been convicted of robbing a boy of his jacket, armed robbery, and armed kidnaping. Issue 5: Prosecutorial misconduct Bush argues that during closing arguments the court inappropriately allowed the State to refer to his veracity, criminal record, and danger of allowing him to live in society. The State appropriately highlighted both the threat Bush has proven he poses to society and his apparent struggles with being completely forthright on the stand. In doing so, the State merely appealed to the jury based on facts that were a part of the record and the natural deductions and conclusions that the prosecution drew therefrom.


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