Malone v. State
| Docket Number: | 2010-KA-00675-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 10-11-2011 Opinion Author: Lee, C.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Conspiracy to commit robbery & Capital murder - Hearsay - Statement by co-conspirator - M.R.E. 801(d)(2)(E) - Photographs - Opinion testimony - M.R.E. 701 - M.R.E. 702 - M.R.E. 803(6) - Jury instructions - Weight of evidence Judge(s) Concurring: Irving and Griffis, P.JJ., Myers, Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 12-17-2009 Appealed from: Humphreys County Circuit Court Judge: David H. Strong Disposition: CONVICTED OF COUNT I, CONSPIRACY TO COMMIT ROBBERY, AND SENTENCED TO FIVE YEARS AND TO PAY A $5,000 FINE, AND COUNT II, CAPITAL MURDER, AND SENTENCED TO LIFE WITHOUT THE POSSIBILITY OF PAROLE AND TO PAY A $10,000 FINE, WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS Case Number: 6254 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Veshone Malone a/k/a Veshon Malone |
OMAR LAMONT NELSON |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS |
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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 robbery & Capital murder - Hearsay - Statement by co-conspirator - M.R.E. 801(d)(2)(E) - Photographs - Opinion testimony - M.R.E. 701 - M.R.E. 702 - M.R.E. 803(6) - Jury instructions - Weight of evidence |
| Summary of the Facts: | Veshone Malone was convicted of Count I, conspiracy to commit robbery, and Count II, capital murder. On Count I, Malone was sentenced to five years and ordered to pay a $5,000 fine. On Count II, Malone was sentenced to life without the possibility of parole and ordered to pay a $10,000 fine. Malone appeals. |
| Summary of Opinion Analysis: | Issue 1: Conspiracy Malone argues that the trial court erred in failing to establish the existence of a conspiracy prior to the testimony of his co-defendants. Under, M.R.E. 801(d)(2)(E), a statement is not hearsay if it is made by a co-conspirator of a party during the course and in furtherance of the conspiracy. However, before the statement of an alleged co-conspirator can be admitted as evidence, the trial court must determine that there is preliminary evidence of a conspiracy. The record indicates that the trial court halted Smith’s testimony in order to determine whether there was evidence of a conspiracy before proceeding with any hearsay testimony regarding the conspiracy. There was enough evidence from the testimonies of the co-defendants that a conspiracy existed. Issue 2: Photographs Malone argues that the trial court erred in allowing the introduction of autopsy and crime-scene photographs. Photographs have evidentiary value when they aid in describing the circumstances of the killing; describe the location of the body and cause of death; supplement or clarify witness testimony. Here, the photographs clarified the witnesses’ testimonies; aided in describing the circumstances of the victim’s death; and showed the location of the body, the cause of death, and the location of the bullet wound. Issue 3: Opinion testimony Malone objected to testimony from a radio-frequency performance manager for Cellular South and a subpoena-compliance director for Cellular South’s parent company, Telapex, Inc., contending that both witnesses’ testimonies contained information that was only appropriate for an expert witness. According to M.R.E. 701, opinion testimony by a lay witness must be rationally based on the perception of the witness, helpful to the clear understanding of the testimony or the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge within the scope of M.R.E. 702 testimony by experts. In this case, neither witness’s testimony was so complex or technical as to render it expert testimony. They both testified as to records prepared in the course of regularly conducted business activity. They testified as a custodian of these particular records pursuant to M.R.E. 803(6). Thus, this issue is without merit. Issue 4: Jury instructions Malone argues that it was error for the trial court to remove the phrase, “even though it may cause a mistrial,” from two jury instructions. In Williams v. State, 5 So. 3d 496, 509-10 (¶45) (Miss. Ct. App. 2008), the Court found that this same phrase, “even though it may cause a mistrial in this case,” was unnecessary since the jurors had been properly instructed otherwise. After reviewing the instructions given to the jury as a whole in this case, it is clear that the instructions fairly state the law and create no injustice. Issue 5: Weight of evidence Malone argues that the verdict is contrary to the overwhelming weight of the evidence. There was testimony from Malone’s co-conspirators that it was Malone’s idea to rob the victim and that Malone provided transportation, a gun, a bat, clothes, and information about the victim’s house. Furthermore, Malone’s girlfriend testified that Malone asked her to provide him with an alibi for the night of the victim’s murder but she told investigators that she never saw Malone that night. The jury found the witnesses for the State more credible and resolved any conflicts in favor of the State. |
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