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Cavett v. State

July 23, 1998

PATRICK LAMAR CAVETT
v.
STATE OF MISSISSIPPI



Before Prather, C.j., Roberts And Mills, JJ.

The opinion of the court was delivered by: Prather, Chief Justice

DATE OF JUDGMENT: 02/27/96

TRIAL JUDGE: HON. JAMES E. GRAVES, JR.

COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: EDWARD J. PETERS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION AFFIRMED

I. INTRODUCTION

¶1. This case arises from the April 28, 1995, shooting death of seventeen-year-old Jason Brown. The record reflects that Jason Brown and Patrick Holiday left the Metrocenter Shopping Mall that night in Brown's blue Malibu. The Malibu had very expensive hubcaps and a good stereo system.

¶2. Brown and Holiday were pursued "bumper-to-bumper" for several miles by a maroon Cougar driven by the appellant, Patrick Cavett. Cavett was flashing the headlights at Brown. Three other boys were in the car with Cavett: Glynn Stevens, Robert Strahan, and Calvin "Kenyatta" Shelton. Holiday knew Shelton from church and school.

¶3. Brown stopped at an intersection. Holiday exited Brown's car and asked "why the [expletive]" they were being followed. Cavett said, "break yourself." Holiday knew this meant that he was "fixing to get robbed."

¶4. Several shots were fired from the maroon Cougar, three or four of which came from Cavett's 9 mm weapon. Holiday, who had been shot in the leg, ran back to Brown's car. Cavett drove the Cougar away from the scene. Brown, who never left his vehicle, was fatally shot in the head. Brown did not threaten the boys in the Cougar in any way.

¶5. On August 8, 1995, Cavett, age seventeen, and the three others (Calvin Shelton, Glynn Stevens, and Robert Strahan) were indicted in the First Judicial District of the Hinds County Circuit Court for Brown's murder. In February, 1996, Cavett, Stevens, and Strahan were tried together. Co-indictee Shelton testified against them. The jury convicted Cavett of murder, and he was sentenced to life in prison. Cavett's subsequent motion for a new trial was denied February, 27, 1996. On appeal, he raises the following issues for consideration by this Court:

A. WHETHER CAVETT WAS DENIED A FAIR TRIAL?

B. WHETHER THE TRIAL COURT ERRED IN REFUSING TO SEVER?

C. WHETHER CAVETT WAS DENIED THE PROTECTION GUARANTEED IN THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT?

¶6. The issues raised by Cavett on appeal are without merit. Therefore, the judgment of the trial court is affirmed.

II. LEGAL ANALYSIS

A. WHETHER CAVETT WAS DENIED A FAIR TRIAL?

¶7. Cavett first argues that he was denied a fair trial by the actions of the trial Judge and the prosecutor. Specifically, Cavett contends that he was denied a fair trial by 1) "the State's attorney continually asking leading questions and being sustained upon timely objection"; 2) the trial Judge's failure "to grant the lawyers the respect they deserve" by threatening them with jail for contempt and telling them to "shut up and sit down"; 3) the trial Judge's failure, upon request, to admonish the jury to disregard; 4) the trial court's failure to grant a mistrial; and, 5) the State's failure to inform defense counsel that a firearms expert would testify regarding the stippling on the decedent's arm.

1. The leading questions by the prosecutor.

¶8. Cavett contends that he received an unfair trial because, on numerous occasions, defense counsel successfully objected to leading questions posed by the prosecutor. Cavett argues that, although "leading questions occur in probably every case ever tried, there comes a saturation point wherein the technique causes an unfair result."

¶9. Cavett does not cite any authority in support of this argument, and, therefore, consideration of this issue is procedurally barred. "The appellant bears the burden on appeal, and we will entertain no claims for which no supporting authority has been cited." Beckwith v. State , 707 So. 2d 547, 597 (Miss. 1997) (citing Allman v. State , 571 So.2d 244, 254 (Miss.1990); Smith v. State , 430 So.2d 406, 407 (Miss.1983)). Furthermore, a review of the record reveals that Cavett's argument is specious.

2. The demeanor of the trial Judge.

¶10. Cavett also argues that the demeanor of the trial Judge on two occasions resulted in an unfair trial. However, neither of the disputed incidents occurred in the presence of the jury, and Cavett has demonstrated no prejudice therefrom.

¶11. The first incident of which Cavett complains occurred after a lengthy discussion on peremptory challenges, during which the trial court repeatedly told the defense attorneys that they would have twelve peremptory challenges among the three defendants: [STEVENS' ATTORNEY]: I understand, but what we're saying is in light of the Court's ruling that the Defendants collectively get 12 challenges. We don't agree with that, as Your Honor said, but in light of the Court's ruling, that's again putting us in the position where we're forced to try to agree on which 12 and [the defense attorneys] --THE COURT: I'm not going to advise you how to do it. I'd probably do it mathematically. Three into twelve goes four times. I don't know how to do it. I think it's a stupid rule but it's a rule.

[CAVETT'S ATTORNEY]: Your Honor, I make a motion on behalf of Patrick Cavett for additional strikes as a result of the Court's ruling.

Let me explain something. See, the more times I hear it doesn't convince me anymore that I ought to grant it.

[CAVETT'S ATTORNEY]: I understand, but --THE COURT: Let me stop you. I'm denying it and I'm citing anybody for contempt who raises it again and states any reason that's one I've already heard before. I'm not going to spend all morning denying the same motions. Y'all are just saying the same thing and little children sitting in here know all you're doing is saying the same thing over and over again. I'm not hearing it anymore. If you've got a new motion you need to raise it. If you raise the same motion and you say the same thing to me, you're going to be fined. The only reason I'm not going to put you in jail is because I need you so I can get this trial over with.

¶12. Cavett also complains that the trial Judge told his attorney to "sit down and shut up". This is not an accurate depiction of the record. After Cavett's attorney had interrupted him twice in the same sentence, the Judge actually said, "Shut up while I'm talking." Of course, this terminology is not an example of ideal courtroom decorum, but, then, neither is interrupting a Judge twice in one sentence.

¶13. Certainly, this Court has acknowledged that the actions of a trial judge can be bad enough to prejudice the jury. See Waldrop v. State , 506 So. 2d 273, 276 (Miss. 1987) (trial Judge understandably "lost his cool" in front of jury). However, the disputed interactions in the case sub judice were limited to arguments held outside the presence of the jury. Therefore, Cavett's argument that the trial Judge's demeanor resulted in an unfair trial is without merit.

¶14. Although the Judge's conduct in this case did not affect the outcome of the trial, discourteous conduct in the courtroom can have broader ramifications. Canon 3. 3 of the Code of Judicial Conduct, requires Judges to be "patient, dignified, and courteous". How well the judiciary abides by this requirement greatly affects the public perception of the courts. Furthermore, all officers of the court should comport themselves in a manner that instills public trust and confidence in the decisions rendered.

3. The trial court's denial of defense counsel's request to admonish.

¶15. Cavett further argues that the trial Judge should have granted defense counsel's request to admonish the jury to disregard witness testimony on two occasions. These requests to admonish arose after the trial court sustained defense objections. The trial Judge found that, at least with regard to one of the requests, a contemporaneous admonition would have drawn even more attention to the objectionable matter. Furthermore, although the trial Judge denied the contemporaneous requests for an admonition, he subsequently gave a written instruction admonishing the jury to disregard all excluded evidence.

¶16. Cavett argues that, when the trial Judge sustained the objections and denied the request to admonish the jury, "it can only be presumed that [the jury] considered the incompetent testimony." However, "[a]s this Court has oft-stated: 'Our criminal Justice system necessarily proceeds on the premise that jurors take their responsibilities quite seriously,' and this Court 'presume[s] as a matter of institutional imperative that our jurors respect the law as they are instructed by the court.'" Alexander v. State , 602 So. 2d 1180, 1183 (Miss. 1992) (quoting Middlebrook v. State , 555 So. 2d 1009, 1013 (Miss. 1990)). See also Hoops v. State , 681 So. 2d 521, 528-29 (Miss. 1996) (jury is presumed to have followed trial Judge's admonition to disregard witness's inappropriate remarks).

¶17. Moreover, [i]t is the well established rule in Mississippi that where a trial Judge sustains an objection to testimony interposed by the defense in a criminal case and instructs the jury to disregard it, the remedial acts of the court are usually deemed sufficient to remove any prejudicial effect from the mind of the jurors. The jury is presumed to have followed the directions of the trial Judge.

Vickery v. State , 535 So. 2d 1371, 1380 (Miss. 1988) (citations omitted).

¶18. Cavett's timely objections were sustained. Moreover, at least with regard to the second request of admonition, the trial Judge ruled that a contemporaneous admonition would have drawn further attention to the objectionable comment. Subsequently, at the Conclusion of the presentation of all evidence, the trial Judge gave a written instruction to the jury to disregard such comments. Therefore, this issue is without merit.

4. The trial Judge's denial of defense's motion for mistrial.

ΒΆ19. Cavett next asserts that the trial Judge should have granted a mistrial during the State's redirect examination of Calvin Shelton. Shelton was in Cavett's car the night of Brown's murder. He was indicted with Cavett, Stevens, and Strahan, but he was not tried with them. He testified against all of them at trial. On cross-examination, the defense questioned Shelton at length regarding his motives for testifying. During the State's redirect examination of Shelton, the following transpired: [ASSISTANT DISTRICT ATTORNEY]: Has either one of these defendants ...


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