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[T] Mabry v. State

June 16, 1998

GARRETT MABRY A/K/A "PONCHO", APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE



Before Thomas, P.j., Diaz, And Herring, JJ.

The opinion of the court was delivered by: Thomas, P.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: 03/08/96

TRIAL JUDGE: HON. JANNIE M. LEWIS

COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO 20 YRS AS AN HABITUAL OFFENDER TO RUN CONCURRENT WITH DEFENDANT'S PAROLE REVOCATION, IF ANY

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Garrett Mabry appeals his conviction of aggravated assault raising the following issues as error:

I. THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. TESTIMONY AND ARGUMENT CONCERNING THE UNTESTED SHELL CASING, WHICH WAS NOT IN EVIDENCE, WERE IMPROPERLY ADMITTED.

III. THE INDICTMENT WAS IMPROPERLY AMENDED ON THE EVE OF TRIAL TO ENHANCE THE PENALTY AGAINST THE APPELLANT UNDER THE HABITUAL OFFENDER STATUTE.

IV. THE PROSECUTOR ENGAGED IN SEVERAL INSTANCES OF MISCONDUCT WHICH SEPARATELY AND CUMULATIVELY DENIED GARRETT MABRY A FUNDAMENTALLY FAIR TRIAL.

V. THE JURY WAS NOT PROPERLY INSTRUCTED.

Finding no error, we affirm.

FACTS

On the night of September 6, 1995, police officers Mickey Foxworth and Cedric Coates were on routine patrol in Belzoni, Mississippi. As they proceeded down Lincoln Street, Foxworth observed Marcus Body, whom he knew, sitting on the steps of Smith's Funeral Home. Body was advised to leave, and Body continued on up the street. At the time a young lady, Teresa Yarbor, was standing across the street. The two officers then resumed their patrol further up Lincoln Street where they saw Garrett Mabry sitting on the porch of a house. They continued on and saw a group of young men standing on a street corner. The officers decided to stop and monitor the situation when gun shots were heard.

Foxworth testified to hearing two shots, and Coates testified to hearing three shots. The officers were in agreement that the shots had come from the direction from which they had come. They immediately headed back to the area where they had been. They came upon Mabry who was on top of Body both kicking and hitting him. Foxworth saw that Mabry had a leather belt in his hands. Foxworth also testified that he found one spent shell casing from a.380 near the scene, but he neither took it into his possession nor photographed it. Coates did not see anything in Mabry's hands. The officers yelled at Mabry to "freeze." Mabry ran off only to be apprehended a few days later.

Body's injuries consisted of multiple hematomas, several cuts, and a swollen and shut eye. Body also had one especially large hematoma on the back of his head. One cut to Body's forehead required stitches. Body testified that he was walking down the street with his girlfriend, Yarbor, when Mabry called out to him. Mabry then questioned Body about how he was treating his girlfriend. Body then stated that he attempted to walk away when Mabry called to him again. Body turned around to face Mabry. When Body did so, Mabry pulled out a gun. Body then turned to leave when Mabry struck him in the back of the head with the gun causing him to black out. Body awoke in the street to find the two officers and his father standing above him.

Yarbor testified that she and Body had been fighting. She stated that Body had taken off his belt and told her she would have to go to his father's house. She had walked on ahead of Body and did not see the altercation take place. Aaron Smith testified that he was on his way home when he saw Body and Mabry in an argument. He stated that he saw Mabry reach behind his back and pull something out which he used to strike Body in the back of the head. Smith surmised that it must have been a gun since it went off with a flash when it struck Body. Smith went on to testify that the gun went off two more times. Smith also testified that Mabry proceeded to kick and strike Body after he had knocked him down.

Rayshound Stevenson and Rodney Taylor were two other witnesses to the altercation. Stevenson testified he was about half a block away from the fight. He saw Body and Mabry arguing and licks exchanged between the two but did not see a gun. He further testified that he heard shots, but the shots had not come from where the fight was taking place. Taylor testified that Body threw the first punch ...


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