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Smith v. State

March 23, 1999

KENNY RAY SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



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

DATE OF JUDGMENT: 10/21/1997

TRIAL JUDGE: HON. BILLY JOE LANDRUM

COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT

DISTRICT ATTORNEY: JEANNINE T. PACIFIC

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CONVICTED OF DRIVE-BY SHOOTING; SENTENCED TO TWENTY YEARS IN THE CUSTODY OF MDOC

DISPOSITION: AFFIRMED - 03/23/1999

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

BEFORE BRIDGES, C.J., COLEMAN, IRVING, AND PAYNE, JJ.

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶1. This case is before the Court challenging the conviction of one count of drive-by shooting and sentence of twenty years incarceration in the custody of the Mississippi Department of Corrections. The appellant, Kenny Smith, unsuccessfully sought relief in the form of a JNOV at the trial level, which was denied. From that denial, Kenny timely filed this appeal raising the following seven issues: whether the verdict was against the overwhelming weight of the evidence, whether the trial court erred in denying Kenny's motion to quash the indictment because of inadequate language establishing the crime charged, whether the trial court erred in failing to suppress the written and video statements of co-defendant Donald Bernard Moore under MRE 801 and MRE 802, whether the trial court erred in failing to suppress Kenny's statements against co-defendant Donald Bernard Moore under MRE 801 and MRE 802, whether the trial court erred in not allowing Kenny a continuance after the state moved for severance of co-defendant Michael Waters, and whether the trial court erred in granting State's Jury Instructions 1 and 2.

¶2. Upon review of the briefs and applicable precedents, we overrule each of Kenny's suggestions of error. Accordingly, we affirm the conviction and sentence in this case.

FACTS

¶3. On December 29, 1996, Kenny had a verbal altercation with his apparent girlfriend, Melonie, at his aunt's home. After demanding that Melonie return some jewelry Kenny had given her, Kenny went into the house. Melonie came on the porch of the house, where she and Kenny engaged in more verbal jousting. Melonie left the porch area and proceeded to her car; Kenny pursued her, slamming the car door hard enough to dent it. Later, Barry Ulmer, Melonie's brother, confronted Kenny about denting the car and threatened him with a 9 mm pistol.

¶4. Around midday, after this confrontation with Barry, Kenny, along with Donald Moore and Michael Waters, armed themselves and went to Barry's home in a white Chevrolet Caprice so that Kenny could fist fight Barry. Kenny told police that Waters was driving the car, Moore was armed with an AK-47 and clip and a .25 caliber pistol with two rounds, and Kenny had a .22 caliber handgun with three rounds. When the trio approached Barry's home, Kenny maintains that Moore fired the first shot, and he also fired his gun. The three then fled the scene and were later apprehended by the Heidelberg Police Department. At Kenny's trial, Gregory and Fitzgerald Johnson, both neighbors of the Ulmers, testified that he saw Kenny, Moore, and Waters in the white car and heard the gun shots ring out from the car in the direction of the Ulmer home on the day and at the approximate time of the shooting in question. During the assault on the home, sixty-six year old Silas Ulmer, the grandfather of Barry Ulmer, was shot in the hip, and the bullet lodged in his abdomen, requiring removal of part of the victim's intestines.

¶5. At the time of Kenny's apprehension, along with Moore and Waters in the white car identified by the eyewitnesses to the shooting, law enforcement officers recovered a box of .25 caliber ammunition, an AK-47 rifle, a .22 caliber revolver, and a .25 caliber semi-automatic handgun. Physical evidence collected at the scene and tested against the weapons seized at the time of the arrest established that those weapons were used in the shooting.

DISCUSSION AND ANALYSIS

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

¶6. It is well established that matters regarding the weight of evidence are to be resolved by the jury. Neal v. State, 451 So. 2d 743, 758 (Miss. 1984). As such, our scope of review is limited in considering challenges to the weight of the evidence. In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable inJustice. Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995); Flowers v. State, 601 So. 2d 828, 833 (Miss. 1992); McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987). We cannot say that the evidence was such that allowing a conviction to stand on this evidence would result in an unconscionable inJustice. Thus, there is no error in this regard.

II. WHETHER THE TRIAL COURT ERRED IN DENYING KENNY'S MOTION TO QUASH THE INDICTMENT BECAUSE OF INADEQUATE LANGUAGE ESTABLISHING THE CRIME CHARGED

¶7. Kenny's next assignment of error alleges the trial court erred in not quashing the indictment because it lacked necessary language. Specifically, Kenny maintains that the indictment's omission of the exact statutory language rendered it fatally defective. The pertinent part of the drive-by shooting statute reads: "[a] person is guilty of a drive-by shooting if he attempts, other than for lawful self-defense, to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life by discharging a firearm while in or on a vehicle." Miss. Code Ann. § 97-3-109(1) (Supp. 1998). The pertinent part of the indictment read as follows: "unlawfully, wilfully, and feloniously did knowingly cause serious bodily injury to Silas Ulmer by discharging a firearm while in a vehicle and thus striking the said Silas Ulmer, with bullets fired from said firearm. . . ."

ΒΆ8. The seven items of URCCCP 7.06 are: the name of the accused; the date on which the indictment was filed in each court; a statement that the prosecution is brought in the name and by the authority of the State of Mississippi; the county and judicial district in which the indictment is brought; the date, and if applicable the time, on which the offense was alleged to be committed; however, failure to state the correct date shall not render the indictment insufficient; the signature of the foreman of the grand jury issuing it; and the words "against the peace and dignity of the state." Further, the rule requires that an indictment provide "a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully ...


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