Fullilove v. State
| Docket Number: | 2010-KA-01444-COA Linked Case(s): 2010-KA-01444-COA ; 2010-CT-01444-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-10-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Conspiracy - Sufficiency of evidence - Hearsay - M.R.E. 801(c) - Right to remain silent - Habitual offender status - Section 99-19-81 Judge(s) Concurring: Irving and Griffis, P.JJ., Roberts, Maxwell and Fair, JJ. Concur in Part, Dissent in Part 1: Ishee, J. Concur in Part, Dissent in Part Joined By 1: Lee, C.J., Barnes and Russell, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-25-2010 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: CONVICTED OF CONSPIRACY AND SENTENCED AS A HABITUAL OFFENDER TO FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Brenda Fay Mitchell Case Number: 2010-0035 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Anthony Fullilove |
ALLAN D. SHACKELFORD
LESLIE S. LEE
PHILLIP BROADHEAD |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS SCOTT STUART |
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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 - Sufficiency of evidence - Hearsay - M.R.E. 801(c) - Right to remain silent - Habitual offender status - Section 99-19-81 |
| Summary of the Facts: | Anthony Fullilove was convicted of conspiracy and sentenced as a habitual offender to five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Fullilove argues that the State only presented circumstantial evidence to show that a conspiracy existed between Fullilove and two other people. The record shows that during the investigator’s pretrial recorded interview with Fullilove, which was admitted into evidence at trial, Fullilove admitted to acting as a lookout for another man as he unlocked the iPod case. Fullilove also admitted that he removed two iPods from the case and placed them in the shopping cart. The Walmart video-surveillance evidence, also admitted into evidence, shows Fullilove removing two items out of the case and placing them in an empty cart. A confession by a defendant constitutes direct evidence. Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Fullilove of conspiracy. Issue 2: Hearsay Fullilove argues that the circuit court committed plain error by allowing an investigator to testify that during the investigation, a police officer allegedly identified the three men on the surveillance tape, and this identification by the officer led to Fullilove’s arrest. Fullilove argues that this statement is hearsay under M.R.E. 801(c), which the State offered to prove the truth of the matter asserted — that Fullilove was one of the three men on the surveillance video. Fullilove failed to timely object, and thus waives his argument on appeal that the challenged testimony is hearsay. Statements do not constitute hearsay when admitted to explain an officer's course of investigation or motivation for the next investigatory step by that officer. The State asserts and the record supports that the circuit court admitted the officer’s alleged identification of Fullilove to show the investigator’s reasons for proceeding to interrogate Fullilove about the theft, and not for the purpose of proving the truth of the assertion by the officer. Issue 3: Right to remain silent Fullilove argues that the State violated his right to remain silent under the Fifth Amendment to the United States Constitution by the prosecutor’s comment during closing argument regarding Fullilove’s failure to testify. The context of the disputed comments here shows that the circuit court admitted Fullilove’s pretrial recorded audio statement into evidence during trial. Both the prosecution and the defense referred to Fullilove’s pretrial recorded statement during their closing arguments. During closing arguments, the law allows a lawyer to refer to the evidence admitted at trial. Issue 4: Habitual offender status Fullilove argues that the circuit judge erred in holding that Fullilove’s sentence satisfied that requirements of the habitual-offender statute, section 99-19-81. Fullilove concedes his conviction in December 2005 for possession of cocaine and sentence of six years, with one year to serve and five years suspended. However, Fullilove argues the legal insufficiency of the second of the two convictions used to enhance his current sentence. Specifically, Fullilove claims that he received only a three-month sentence, plus five years post-release supervision, for this second conviction. An individual is not required to have actually served any prison time in order to be sentenced as a habitual offender. Fullilove’s two prior felony convictions satisfy the requirements of section 99-19-81. |
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