DAVID LAVOR ANDERSON A/K/A DAVID LEROY ANDERSON A/K/A DAVID ANDERSON, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
DATE OF JUDGMENT: 08/18/2011.
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR. TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MURDER, AND SENTENCED TO LIFE IMPRISONMENT, AND COUNT II, AGGRAVATED ASSAULT, AND SENTENCED TO FIFTEEN YEARS, WITH THE SENTENCE IN COUNT II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, BOTH IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANT: MICHAEL W. CROSBY.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: STEPHANIE BRELAND WOOD.
CARLTON, J. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. A Harrison County jury found David Anderson guilty of murder and aggravated assault. Anderson now appeals and raises the following issues: (1) whether the circuit court judge made a de facto finding that Anderson was not guilty of murder; (2) whether the circuit court judge erred in denying his motions for a directed verdict and a judgment notwithstanding the verdict (JNOV); (3) whether the circuit court judge erred in denying his motion for a new trial; (4) whether the circuit court judge erred by refusing to admit police reports under the business-record exception to the hearsay rule; (5) whether the circuit court judge erred by allowing the State to admit evidence over Anderson's objection; (6) whether prosecutorial misconduct denied Anderson a fair trial; and (7) whether cumulative error requires a reversal of Anderson's conviction. Finding no error, we affirm.
¶2. In the early morning hours of April 12, 2009, a shooting occurred at the Boiler Room, a night club in Gulfport, Mississippi.
When police arrived on the scene around 3 a.m., they discovered that Anthony McCord had been shot in the chest and Zonetta Williams had been shot in the leg. McCord was transported to the hospital, where he later died from his injuries. A Harrison County grand jury indicted Anderson for Count I, the murder of McCord, pursuant to Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2006), and Count II, the aggravated assault of Williams, pursuant to Mississippi Code Annotated section 97-3-7(2)(b) (Rev. 2006).
¶3. Anderson was tried in August 2011. At trial, Williams testified that after leaving work around 11 p.m. on April 11, 2009, she met her cousin Iwanza Hamilton at the Boiler Room. The Boiler Room had a photo booth located near the back wall, where patrons could have their picture taken. After Williams and Hamilton had their picture taken, they waited by the night club's rear bar area to receive their printed pictures. As they waited, Williams testified that she heard a noise that sounded like a balloon popping and felt a pain in the lower part of her left leg, as though someone had kicked her. After a few more seconds, Williams heard a scream, followed by the sounds of more people screaming and running. Although she tried to run, Williams fell to the ground because of her injured leg. She crawled behind the bar and shouted out to Hamilton, letting Hamilton know that she had been shot. Williams later learned that her leg was broken, and she underwent surgery to insert a metal rod in her leg and to remove the bullet.
¶4. Hamilton also testified as to what occurred the night of the shooting. As she and Williams waited for their pictures to print, Hamilton saw a man wearing a black shirt (McCord) approach a second man (Anderson) and take a swing at the second man. Hamilton testified during direct examination that she later saw the man wearing the black shirt lying on the ground after the shooting. In addition, Hamilton testified that she did not see the actual shooting but that she did hear the gunshot.
¶5. On cross-examination, Anderson's attorney showed Hamilton a prior statement that she made to police and that was included in the investigator's report. In the statement, Hamilton told the police that she heard a gunshot and then saw the man in the black shirt fall on the floor and not move. While Hamilton did not dispute that she had signed the statement, she consistently maintained during her trial testimony that she did not remember seeing the man in the black shirt fall to the ground. Instead, she testified that she only remembered seeing him on the ground following the shooting. Hamilton further testified during cross-examination that she heard a gunshot soon after the man in the black shirt took a swing at the other man. She testified that she could not see a gun but that the night club was packed with other people and that she did not think she had been close enough to see a gun.
¶6. The State next called Mark Hawthorne to testify. Hawthorne had worked at the Boiler Room as a security guard and had been at the night club when the shooting occurred. Hawthorne testified that around 1:30 a.m., he and Ben Davis, another security guard, saw Anderson and McCord " getting ready to fight, making gestures, arms up, stuff like that, getting in each other['s] face, [and] pushing each other." Davis went over to the men and told them to stop. After Davis broke up the altercation, Hawthorne testified that McCord began to walk away from Anderson. However, McCord then headed back toward Anderson, took one or two swings at Anderson, and then Hawthorne
heard a gunshot. Hawthorne further testified that he saw a big cloud of smoke appear in the space between the two men.
¶7. After the sound of the gunshot, Hawthorne saw McCord fall to the ground, and then both McCord and Davis began checking to see whether they had been shot. Hawthorne pursued Anderson as Anderson tried to exit the night club. As Anderson crossed the night club's stage, Hawthorne testified that he saw a gun in Anderson's hand. When Hawthorne put a hand on Anderson to prevent him from leaving, Anderson told Hawthorne to let him go. Around the same time, McCord approached Hawthorne and asked for help before collapsing on the floor.
¶8. When questioned about the gun he had seen in Anderson's hand, Hawthorne testified that he had been in the military for twelve years and was familiar with certain types of guns. Despite attempts by Anderson's attorney to later impeach his testimony with a police report, Hawthorne testified at trial that the gun in Anderson's hand appeared to be a .40-caliber or .45-caliber handgun. Hawthorne further testified that, at the time the altercation began, he was standing about ten to fifteen feet away from McCord and Anderson and could see everything clearly. Hawthorne stated that, after the gunshot, most of the night club's patrons cleared out of the area and that only he, Davis, Anderson, and McCord remained in the area.
¶9. The State's next witness, Maurice Bryant, worked as the Boiler Room's disc jockey the night of the shooting. Prior to Bryant's testimony, the circuit court judge excused the jury. Because Bryant planned to elaborate on the statement he had given to police two years earlier, the circuit court judge allowed Anderson's attorney to interview Bryant outside the jury's presence. After interviewing Bryant, Anderson's attorney said that he had no objection to Bryant's testimony.
¶10. Bryant testified that on the night of the shooting, when he heard the gunshot, he turned off the music and turned on the night club's lights. As he scanned the room, Bryant testified that he saw a man walk across the floor who did not appear to be " panicky" like other patrons and who looked out of place. Bryant further testified that he saw the man put a gun in the waistband of his pants and cover it with his shirt as he exited the night club with the rest of the crowd. From a photo line-up, Bryant identified the man as Anderson.
¶11. Detective Stephen Carlson with the Gulfport Police Department also testified at Anderson's trial. Detective Carlson testified that he was neither the on-call detective the night of the shooting, nor the designated " case detective" for the shooting. However, because Detective Carlson was scheduled to be on-call the day after the shooting, the on-call case detective, Justin Hayes, asked him to assist with the case. Detective Carlson testified that at the time of trial Detective Hayes was serving the military on active-duty orders out of town.
¶12. At Detective Hayes's request, Detective Carlson went to the hospital and interviewed Williams and Hamilton. Detective Carlson testified that, in the course of their investigation, the police determined that Anderson was a suspect in the case. Once the police determined a residence for Anderson, they obtained a search warrant. Detective Carlson testified that no one was at the residence when the police executed the search warrant. When they searched the residence, the police found Anderson's driver's license; three empty gun boxes that appeared to have each contained a .40-caliber handgun at one time; a box of .40-caliber shells,
seventeen of which were missing; and a receipt for the purchase of a .40-caliber handgun. Detective Carlson testified that the receipt was issued to Anderson and contained the serial number of the gun purchased. He further testified that the serial number on the receipt matched the serial number for one of the empty handgun boxes found at the residence. Further testimony from the State's witnesses established that the projectile removed from Williams's leg was fired by a .40-caliber gun.
¶13. The jury found Anderson guilty of both counts charged in his indictment. For Count I, murder, the circuit court judge sentenced Anderson to life imprisonment, and for Count II, aggravated assault, to a consecutive term of fifteen years, with both sentences to be served in the custody of the Mississippi Department of Corrections (MDOC). Anderson filed a motion for a JNOV or, in the alternative, a motion for a new trial and a finding that the jury's verdict was against the overwhelming weight of the evidence. The circuit court judge denied Anderson's motion for a JNOV or a new trial. Aggrieved by the circuit court's rulings, Anderson appeals.
I. Whether the circuit court judge made a de facto finding that Anderson was not guilty of murder.
¶14. Anderson first argues that the circuit court judge made a de facto finding on the record that Anderson was not guilty of murder. The circuit court judge made the statement at issue during a conference with the attorneys to discuss the proposed jury instructions and to consider objections to the instructions.
¶15. Anderson's attorney informed the circuit court judge during the discussion that Anderson had decided to object to a jury instruction on manslaughter. Anderson's attorney also provided case law for the circuit court judge to review, and he asserted that the cases demonstrated that " [j]ust because you have a murder charge, it is not always appropriate to give a manslaughter instruction. . . . I want to submit to you these cases that show[,] . . . cases where the judge declined to give [a manslaughter jury instruction] under the opinion that the facts did not support manslaughter[.]"
¶16. After taking time to review the case law provided by Anderson's attorney, the circuit court ...