Bolton v. State
| Docket Number: | 2011-KA-00161-COA Linked Case(s): 2011-KA-00161-COA ; 2011-CT-00161-SCT ; 2011-CT-00161-SCT ; 2011-CT-00161-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 05-16-2013 |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-12-2012 Opinion Author: Maxwell, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Burglary - Larceny jury instruction - Ineffective assistance of counsel Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 12-01-2010 Appealed from: HINDS COUNTY CIRCUIT COURT Judge: W. Swan Yerger Disposition: CONVICTED OF BURGLARY OF A DWELLING AND SENTENCED TO TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS District Attorney: Robert Shuler Smith Case Number: 2010-0612 |
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| Note: | On May 16, 2013, the Supreme Court reversed the Court of Appeals after finding the jury was improperly instructed per Daniels v. State. The SCT opinion can be found at http://courts.ms.gov/Images/Opinions/CO84824.pdf | |
| Party Name: | Attorney Name: | |||
| Appellant: | Dondrego Bolton |
LESLIE S. LEE
JUSTIN TAYLOR COOK |
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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: | Burglary - Larceny jury instruction - Ineffective assistance of counsel |
| Summary of the Facts: | Dondrego Bolton was convicted of burglary and sentenced to twenty-five years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jury instruction Bolton argues the trial court committed reversible error because it failed to instruct the jury on the elements of larceny. However, Bolton was convicted of burglary of a dwelling, not larceny. Bolton’s indictment charged him generally with the intent to steal. Just as the State did not have to specifically charge all the elements of larceny in the indictment, the State did not have to prove—and the jury did not have to find—Bolton committed larceny. Thus, the failure to instruct the jury on the elements of larceny was not a fundamental error. Based on the evidence, it is clear the jury convicted Bolton on the grounds charged in the indictment—that Bolton broke and entered the house with the intent “to take, steal, or carry away personal property of Millie Vance.” Issue 2: Ineffective assistance of counsel Bolton argues his attorney was ineffective for failing to object to certain comments by the State during both opening statements and closing arguments. In order for no prejudice to result, it must be clear beyond a reasonable doubt that, absent the prosecutor’s inappropriate comments, the jury would have found the defendant guilty. Bolton contends his attorney should have objected to opening arguments because the State had impermissibly commented on Bolton’s exercise of his right to stand trial and disregarded the presumption Bolton was innocent until proven guilty. The statements by the State were improper. However, the jury was properly instructed it could not find Bolton guilty unless the State proved every element of burglary beyond a reasonable doubt. Because the improper comment in opening statement did not negate this instruction, no reversible error occurred. Thus, Bolton has not met his burden to show he was prejudiced by his counsel’s failure to object. During closing argument, Bolton contends his attorney should have objected to the prosecutor’s comments about Bolton’s request for a lesser-included-offense instruction on trespass. Bolton contends the State was equating a trespassing conviction with a finding of not guilty—essentially telling the jury that convicting Bolton of mere trespass would “send a message” to the community that it was okay to break into people’s homes looking for property to steal. While the State’s closing argument did mention the community’s crime problem, it was not a “baseless appeal” to the jury to ignore the evidence and vote as community members. The State was making an appeal based on the evidence, urging the jurors to find Bolton guilty of burglary because the evidence supported a burglary conviction and not let Bolton “take the easy way out” by convicting him of a crime less serious than the one he committed. Absent these remarks, the jury would have still found Bolton guilty. Bolton also argues his attorney was deficient because he did not object to the “any other crimes” language added to the State’s burglary jury instruction. However, the jury instruction was not fundamentally flawed, and the indictment was not improperly constructively amended. |
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