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McRoy v. State

February 23, 1999

DONALD MCROY A/K/A ERIC SUMMON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Lee, And Southwick, JJ.

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

DATE OF JUDGMENT: 08/20/1997 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: 08/20/1997: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 20 YRS IN THE CUSTODY OF THE MDOC, WITH 8 YRS SUSPENDED, LEAVING 12 YRS TO SERVE

DISPOSITION: AFFIRMED - 02/23/1999

¶1. Donald McRoy was indicted by the grand jury of Jones County on November 26, 1996, on a charge of aggravated assault. McRoy was convicted of aggravated assault in the Circuit Court of Jones County on August 20, 1997. Pursuant to the verdict of the jury, he was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections with eight years suspended, leaving twelve years to serve. He appeals his conviction and sentence to this Court.

A. FACTS

¶2. Early in the evening of December 12, 1995, Jeffrey Brown was sitting on the passenger side of an automobile belonging to Jim Young. Ray Martin was driving Young's automobile when the two men pulled the vehicle into the driveway of Young's home, which is located across the street from Ray Martin's home. Young testified that the two men had borrowed his car to go and fill a spare tire with air. When they returned Young questioned Martin as to the whereabouts of Jeffrey Brown. Martin told Young that he had dropped Brown off. At that time Martin noticed an automobile parked in his yard across the street. He told Young that he was going to walk over and see who it was. Young testified further that as Martin started out of the driveway, a man stopped him and asked him where Brown was. Martin told the man that he had dropped Brown off. The man asked if he could look in the car. Martin replied that the car was not his and the man would have to ask the owner of the car, Mr. Young, who was standing on the porch. The man began to walk up the driveway calling Brown's name. When Brown answered from the car, Young saw a pistol in the stranger's hand. Young heard two shots and then saw the man run back to the automobile across the street and flee the scene. There were three or four people in the fleeing automobile and one of them was a female. Young testified that he did not know the man who shot Jeffrey Brown, but that the appellant favored him. Ray Martin was unable to testify due to a recent stroke.

¶3. Jeffrey Brown, the victim, testified that he noticed two people approaching the vehicle, and noticed that one of the people was the appellant, Donald McRoy a/k/a Eric Summon. Brown testified that he knew McRoy because he met him two years prior to the shooting and that for the eight or nine months preceding the shooting he saw McRoy three to five times a week.

¶4. According to Brown, McRoy walked over to the automobile in which he was sitting and said something to the effect of "you black 'MF' I am going to kill you." McRoy was carrying a gun and after threatening Brown's life, he shot him twice. Subsequent to the shooting, Brown was shown a photograph line-up at the direction of the Laurel Police Department. From the line-up, he identified McRoy as his assailant. At trial, Brown again identified McRoy as the man who shot him. Additionally, Officer Kevin Flynn, who arrived at the scene of the crime shortly after the shooting, testified that Brown told him that Eric Summon (a/k/a McRoy) had shot him.

¶5. Antonio Ross, Brown's cousin, testified that he was with McRoy on the evening in question, as were Gary Hampton and Pam Ross. Ross maintained that although he and the aforementioned three were in Hattiesburg, Mississippi on the evening that Jeffrey Brown was shot, they were also in Laurel, Mississippi later that evening. Ross testified that he and the other three passengers were driving to Laurel to "get in contact" with Brown because they had no other way of contacting him. "Something" had happened to McRoy, and they were going to determine whether Brown knew anything about it.

¶6. Ross testified that he was not aware that McRoy wished to impose violence of any kind upon Brown. However, when they saw the car in which Brown was riding pull into Young's driveway, McRoy walked across the street at which point Ross heard two gunshots fired. McRoy went back to the car, and they left the scene.

¶7. Donald McRoy testified that he was not in Laurel on the night of the shooting and therefore could not have been the assailant. He alleged that he was at a party in Hattiesburg, Mississippi celebrating his engagement to his wife. Ms. Mary Strickland, a family friend of McRoy, corroborated his alibi by testifying that she attended the Hattiesburg party from about 6:00 until around 10:30, and McRoy was present at the party the entire evening. McRoy's wife, Michelle McRoy, also corroborated McRoy's story that he had been in Hattiesburg at the party, and not in Laurel at the shooting.

¶8. Donald McRoy was indicted on November 26, 1996. On August 20, 1997, a jury of the Jones County Circuit Court found McRoy guilty of aggravated assault and sentenced him to serve a term of twenty years in the Mississippi Department of Corrections with eight years suspended, leaving twelve years to serve. He now appeals his conviction and sentence to this Court.

B. THE ISSUES

I. THE TRIAL COURT ERRED IN NOT SUSTAINING THE APPELLANT'S MOTION TO QUASH THE JURY JUDGES AFTER THE EXTRANEOUS AND INCORRECT STATEMENT OF THE TRIAL JUDGE AS TO AN INDICTMENT FATALLY PREJUDICED THE APPELLANT'S DEFENSE.

II. THE TRIAL COURT ERRED IN NOT GRANTING THE APPELLANT'S PROFFERED JURY INSTRUCTIONS D-3 (CP-28), D-4 (CP-29), AND D-5 (CP-31), SAID INSTRUCTIONS BEING PROPER STATEMENTS OF THE LAW AND ESSENTIAL TO THE APPELLANT'S DEFENSE.

III. THE VERDICT (CP-41), OF THE JURY IN THIS CASE IS CONTRARY TO THE LAW OF THIS STATE, AND IS AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE EVIDENCE ADDUCED AT TRIAL.

C. ANALYSIS

I. DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION TO QUASH THE JURY judges?

ΒΆ9. McRoy claims that the trial court committed reversible error in not sustaining his motion to quash the jury panel. His motion was based on an exchange between the trial court Judge and the jury panel during voir dire. The question which prompted the exchange was proffered by the State. The State's attorney questioned the jury panel if they had any personal dealings with the criminal Justice system that might influence them in their decision making. One juror expressed resentment toward the criminal ...


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