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[T] Delaney v. State

May 05, 1998

DAVID DERREL DELANEY A/K/A DERRELL COOPER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



Before Thomas, P.j., Coleman, And Hinkebein, JJ.

Bridges, C.j., McMILLIN And Thomas, P.jj., Diaz, Herring, Hinkebein, King, Payne, And Southwick, JJ., Concur.

The opinion of the court was delivered by: Coleman, J., For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 02/09/96

TRIAL JUDGE: HON. JOSEPH H. LOPER, JR.

COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT

BY: SCOTT STUART

DISTRICT ATTORNEY: DOUG EVANS

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT AND SENTENCED TO SERVE 18 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS

David Derrel Delaney was indicted for the felony of aggravated assault on George Franklin. Pursuant to Delaney's trial on that charge, the jury returned a verdict of "Guilty," and the trial Judge sentenced him to serve a term of eighteen years in the custody of the Mississippi Department of Corrections with four years suspended for five years and the remaining fourteen years to serve. In the appeal of his conviction, Delaney asserts that the trial Judge erred when he sustained the State's objection to his counsel's opening statement that Delaney's victim had "a reputation of being a bad man" because the victim had "boasted that he had shot a man in Chicago." While this Court acknowledges that perhaps the trial court erred by restricting Delaney's counsel's opening argument on this subject, such error was harmless under the circumstances of this case. Therefore, we affirm.

I. FACTS

Around midnight on June 16, 1995, George Franklin and others had engaged in a water balloon fight in the parking lot of Liberto's grocery store on U.S. Highway 51 across the street from the Double-Quik convenience store in Grenada. As the water balloon fight ended, Delaney drove his blue 1983 Chevrolet Caprice Classic into Liberto's parking lot. With Delaney were his cousin, Tereko Rocket, who was sitting in the front passenger's seat, and Benny Lewis, who was sitting in the back seat behind the driver. All three of them lived in Water Valley.

After Delaney drove into Liberto's parking lot, George Franklin, also from Water Valley, approached Delaney's Caprice to converse with Delaney and Lewis. Lewis later testified that he was a good friend of Franklin's brother. After a brief conversation among the three, Delaney prepared to drive away with his two passengers, but Franklin tossed a water balloon into Delaney's Caprice through the driver's-side window. The water balloon landed in Delaney's lap, but it did not burst. Delaney drove his Caprice out of Liberto's parking lot, continued once around the block, but then returned to the same lot, where he again parked. Delaney exited his car, approached Franklin, and asked him why he had thrown the balloon. Exactly what happened next remains uncertain, but ultimately Delaney returned to his car, sat in the driver's seat, reached under his seat, removed a black pistol, aimed it at Franklin, and fired it once. The bullet penetrated Franklin's abdomen and exited his back.

Delaney again drove away from the parking lot and returned to his home in Water Valley. On his way home, Delaney took Lewis and his cousin Rocket to their homes. Delaney threw the pistol into a ditch near his cousin's home. It was never recovered. In the meantime, Willie Taylor rushed Franklin to the hospital in Grenada, from where he was flown to a hospital in Memphis for surgery and treatment for the gunshot wound. Franklin remained in the hospital in Memphis for approximately one week. The next morning, Delaney surrendered at the City of Grenada Police Department.

II. TRIAL

During his opening statement, Delaney's counsel remarked, "Additionally, you're going to find out that Mr. Franklin has got a reputation of being a bad man; that is, that he either did, or boasted that he'd shot a man in Chicago." The prosecutor immediately made the following objection to the remark:

Your Honor, I'm going to object at this point. I don't think that's proper. I move that the jury be admonished to disregard and I move the Court to admonish counsel not to inject matters that certainly have not been admitted into evidence at this point, and would not even be thought to be admissible into evidence at this point.

The trial Judge conducted a hearing on the State's objection outside the presence of the jury. Outside the jury's presence, the trial Judge commented, "I certainly think that there would be improper character evidence to get into until such time as the Court has had an opportunity to rule on it, so I'm going to admonish the jury to disregard that." When the jury returned to the courtroom, the trial Judge instructed them: "You're to disregard any ...


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