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Epting v. State

July 21, 1998

EMEILIO EPTING A/K/A EMEILIO ALAHUNDRA, APPELLANT EPTING
v.
STATE OF MISSISSIPPI, APPELLEE



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

The opinion of the court was delivered by: Diaz, J.

DATE OF JUDGMENT: 08/30/96

TRIAL JUDGE: HON. ROBERT G. EVANS

COURT FROM WHICH APPEALED: JASPER COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: DRIVE-BY SHOOTING: SENTENCED TO SERVE A TERM OF 5 YRS IN THE MDOC;

DISPOSITION AFFIRMED - 7/21/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. Emeilio Epting was convicted of a drive-by shooting and sentenced to five years in prison. From this conviction, he perfects his appeal to this Court and argues that the trial court erred (1) in refusing to accept his guilty plea, (2) in denying his "aggravated assault" jury instruction, and (3) in refusing to grant a mistrial based upon a witness's prejudicial statement. Finding his arguments without merit, we affirm.

FACTS

¶2. On May 22, 1995, Emeilio Epting and James Lindsey became involved in an argument. As the two were fighting, Epting's friends, Germane Strickland and Tony Keeton, approached-both carrying guns. According to Lindsey, Strickland and Keeton pointed their guns at him while Epting encouraged them to shoot Lindsey. Lindsey then pulled Epting in front of him to shield himself in case gunfire erupted. While still using Epting as a shield, Lindsey backed away from Strickland and Keeton, then freed Epting, then ran to his car, with Epting, Strickland, and Keeton in pursuit. A car chase ensued, with Epting's group following Lindsey's group. According to eyewitness testimony, gunshots were fired from Epting's car in the direction of Lindsey's car. Epting testified at trial in his own defense and claimed that while Strickland did fire a gun from Epting's car, that he (Epting) did not. Furthermore, Epting maintains that he was completely unaware of Strickland's plan to shoot at Lindsey's car. Nevertheless, the jury found Epting guilty of a drive-by shooting. Feeling aggrieved by the jury's decision, Epting appeals his conviction to this Court.

Discussion

I. DID THE TRIAL COURT ERR IN REFUSING TO ACCEPT EPTING'S GUILTY PLEA?

¶3. Immediately preceding the commencement of trial in this case, Epting moved to withdraw his prior plea of not guilty and enter a plea of guilty. While in chambers, the trial Judge questioned Epting regarding his understanding of the consequences of pleading guilty. In doing so, the Judge asked Epting if he participated in the commission of the crime. Epting replied that he was driving the automobile from which Germane Strickland was shooting, but that he had no malicious intent. The testimony in the case then proceeded as follows:

[T]he theory of the State's case [is] that you were an accessory before the fact, which means that you participated in the crime and helped it be committed by driving the car, and if you say you did that, then I will further consider accepting your guilty plea. If you tell me that you did not, then I will not give it anymore consideration, and we'll commence the trial. So, did you participate as an accessory before the fact to the commission of the crime as I've explained it to you?

THE DEFENDANT: I was driving the car, sir.

Well, that doesn't answer my question. Okay. Let's go try the case.

Epting argues that had the trial Judge accepted his guilty plea, then he would have been able to take the district attorney's sentencing offer of five years with four years suspended. Instead, Epting was tried and convicted of a ...


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