Arrington v. State
| Docket Number: | 2010-KA-00808-COA Linked Case(s): 2010-KA-00808-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-29-2011 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Manslaughter - Double jeopardy - M.R.A.P. 10 - Mistrial - Sufficiency of evidence Judge(s) Concurring: Lee, C.J., Griffis, P.J., Myers, Roberts, Carlton, Maxwell and Russell, JJ. Concur in Part, Dissent in Part 1: Irving, P.J., and Barnes, J., concur in part and in the result without separate written opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 04-08-2010 Appealed from: Newton County Circuit Court Judge: Marcus D. Gordon Disposition: CONVICTED OF MANSLAUGHTER AND SENTENCED AS A HABITUAL OFFENDER TO TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Mark Sheldon Duncan Case Number: 09-CR-002-NWG |
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| Party Name: | Attorney Name: | |||
| Appellant: | Thermon Arrington |
CALEB ELIAS MAY |
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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: | Manslaughter - Double jeopardy - M.R.A.P. 10 - Mistrial - Sufficiency of evidence |
| Summary of the Facts: | Thermon Arrington was convicted of manslaughter and was sentenced as a habitual offender to twenty years without eligibility for parole or probation. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy Arrington claims by refusing a manslaughter instruction in the first trial and allowing one in the second trial, the trial judge violated Arrington’s constitutional right against double jeopardy. His argument fails primarily because he has not supplied the Court with a record on which it can decide his assigned error. The part of the first trial that would have set out the discussion of the instructions given or denied was not designated by Arrington for inclusion in the appeal record. Pursuant to M.R.A.P. 10, it was Arrington’s responsibility to ensure that his appellate record was sufficiently made so the Court could analyze his alleged errors. Arrington’s double-jeopardy argument also fails because it was not included in his motion for a JNOV or new trial. Finally for double jeopardy under the Mississippi Constitution to bar a second prosecution, there must be an actual conviction on the merits. Arrington’s first trial ended in a mistrial, and there was no conviction. Issue 2: Mistrial Arrington argues that the trial judge should have specially voir dired the jury concerning Arrington’s statement during the trial about his attorney’s bias and then, if necessary, declared a mistrial. The only statement the jury might have heard was Arrington’s assertion that his attorney was “biased.” The judge is provided considerable discretion to determine whether a remark is so prejudicial that a mistrial should be declared. Where serious and irreparable damage has not resulted, the judge should admonish the jury then and there to disregard the impropriety. Here, all of the jurors chosen for the trial swore to the trial judge that they could be fair and impartial and follow their instructions faithfully. Further, Arrington did not include the failure to declare a mistrial when he spoke of his “biased” counsel in his motion for a JNOV or new trial. Issue 3: Sufficiency of evidence There was sufficient evidence to support Arrington’s conviction of manslaughter. The State called several eyewitnesses to the shooting. The witnesses corroborated each other’s testimony in testifying that Arrington and the victim argued and Arrington then armed himself with a pistol. Some witnesses said they saw the victim with a knife, while others testified that he did not have a knife. However, no witness, other than Arrington, testified that the victim was armed with a knife and used it in a threatening manner toward Arrington during the argument. The police department searched for a knife, but never found one. The expert witness who performed the autopsy testified that the victim died of a gunshot wound to an artery in his neck. While Arrington testified at times that he shot the victim in self-defense and at other times that he accidentally shot him, the jury rejected Arrington’s testimony and instead believed the host of witnesses who stated Arrington shot and killed the victim without malice but in the heat of passion without authority of law. There is ample evidence in the record to support this verdict. |
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