Delashmit v. State
| Docket Number: | 2007-KA-02130-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-09-2008 Opinion Author: CARLSON, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Enticement of a child for sexual purposes - Admission of statements - Lesser offense instruction - Closing argument Judge(s) Concurring: SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, DICKINSON, RANDOLPH AND LAMAR, JJ. Concurs in Result Only: GRAVES, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-27-2007 Appealed from: LEE COUNTY CIRCUIT COURT Judge: Thomas J. Gardner Disposition: Count II: Conviction of enticement of a child for sexual purposes and sentence of life imprisonment in the custody of the Mississippi Department of Corrections, as a habitual offender, without the possibility of parole. District Attorney: John Richard Young Case Number: CR07-150 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | STEPHEN JOSEPH DELASHMIT |
MISSISSIPPI OFFICE OF INDIGENT
APPEALS BY: GEORGE T. HOLMES |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LA DONNA C. HOLLAND | ||
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: | Enticement of a child for sexual purposes - Admission of statements - Lesser offense instruction - Closing argument |
| Summary of the Facts: | Stephen Delashmit was convicted of enticement of a child for sexual purposes. He was sentenced as a habitual offender to life imprisonment without parole. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Statements Delashmit argues that his separate confessions to a sheriff and to an investigator were improperly admitted. He argues that the first confession was made while he was under arrest which was without probable cause and that the second statement was made after he had invoked his right to counsel. Delashmit was not under arrest at the time of his first confession. An arrest is the taking into custody of another person by an officer or a private person for the purpose of holding him to answer for an alleged or suspected crime. One who voluntarily accompanies an officer to a place where he may be interviewed is not under arrest. Delashmit voluntarily got into the patrol car to speak with the sheriff and was only a suspect at that time. Regarding the second statement, Delashmit’s statement of “I prefer a lawyer” was only an ambiguous mention of possibly speaking to an attorney and not sufficient to invoke the right to counsel. Issue 2: Lesser offense instruction Delashmit argues that the jury should have been given a lesser-offense instruction on indecent exposure. A lesser-included-offense instruction, or a lesser-offense instruction, should be granted only if there is an evidentiary basis for such instruction in the record. Delashmit was not entitled to the lesser-offense instruction on misdemeanor indecent exposure. Based on the overwhelming evidence, no reasonable jury could have found Delashmit not guilty of any element of the principal charge. The victim, an eight-year-old girl, testified that Delashmit had offered her fifty dollars and had exposed his “middle spot” to her. Delashmit also confessed that he had offered the child victim fifty dollars to have sex with him and had shown her his penis. Issue 3: Closing argument Delashmit argues that he suffered irreparable prejudice due to the trial court’s limiting his closing arguments. Distinctions between reasonable doubt, all possible doubt, beyond a shadow of a doubt, and the like are permissible during trial counsel's closing argument. Delashmit was given this opportunity during closing arguments. However, defense counsel chose to discontinue his argument with regard to reasonable doubt after an objection. This was not trial-court error but rather a choice on the part of defense counsel. In addition, based on the overwhelming evidence of guilt, this error, if any, had no effect on the ultimate outcome of this case. |
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