COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 11/06/2012. TRIAL JUDGE: HON. JOHN HUEY EMFINGER. TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED TO LIFE IMPRISONMENT.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.
BEFORE LEE, C.J., ISHEE, ROBERTS AND JAMES, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] Following trial in the Rankin County Circuit Court, a jury convicted Robert Floyd McGuire of the murder of Lynda Tate. McGuire, unsuccessful in his post-trial motions, filed the present appeal challenging the circuit court's admission of certain evidence, the denial of his peremptory instruction, and the denial of his motion for a new trial. Finding no error, we affirm McGuire's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
[¶2] On the evening of December 3, 2011, John Santistevan was at his home in Rankin County when McGuire, his next-door neighbor, knocked on his door. McGuire asked Santistevan to call 911 because he had just shot his girlfriend, Lynda Tate, at their home. When emergency officials arrived, they discovered Tate, deceased in a chair in her living room, with a gunshot wound to her head.
[¶3] At trial, McGuire admitted he had been drinking alcohol that day, that Tate had to pick him up earlier, so he could avoid getting a DUI, and that Tate wanted
him to quit drinking. He explained that after they arrived home, he went to account for his guns after having concerns he had left one in their recreational vehicle. He found the .45-caliber Hi Point pistol in their bedside-table drawer, and he took it out of the holster because he thought about cleaning it. Still holding the pistol, McGuire leaned in to give Tate a kiss on the cheek/ear lobe. He stated that the hand holding the pistol was placed on the back of the chair. McGuire said Tate swatted at him with her hand, as if to shoo him away, and the gun then inexplicably discharged. McGuire testified that he loved Tate and never intended to shoot her.
[¶4] According to Lisa Funte, a medical examiner for the State of Mississippi, Tate died of a gunshot wound to the left side of her head. The entry wound was slightly above Tate's left ear, with a back-to-front and upward trajectory. Funte also explained that the gunshot came from close range, meaning approximately an inch or closer, and Tate's middle finger was wounded by the gunshot. Mississippi Crime Lab forensic scientist Felecia Robinson testified that the projectiles recovered from the scene came from the pistol that was also recovered from the scene. She also explained that this pistol had a manual safety on the side above the magazine well; a magazine safety, meaning the pistol would not discharge unless the magazine was fully seated inside the magazine well; and an internal safety that would require the trigger to be pulled with a pressure greater than 7.25 pounds of force. According to Robinson, the pistol did not have a hair trigger and would not accidentally discharge if it was dropped. The State also presented evidence that McGuire tested positive for gunshot residue on both hands.
[¶5] On March 8, 2012, McGuire was indicted, pursuant to Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014), for the murder of Tate. McGuire's trial was held on September 24-26, 2012, and resulted in a jury convicting him of murder. He was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. McGuire filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. McGuire filed the present appeal and raised the following three issues, which we quote:
I. Whether the trial court erred in admitting impermissible evidence of other bad acts under hearsay exceptions when the evidence was highly inflammatory, purely speculative, without relevance, and manifestly not admissible[.]
II. Whether the trial court erred in refusing to grant [McGuire's] peremptory instruction where [McGuire] was the only witness to the death of his girlfriend and where his version of the events was born[e] out of the evidence and was not substantially contradicted in any material particulars[.]
III. Whether the trial court erred in failing to grant McGuire a new trial where the jury's verdict was not supported by the weight of the evidence[.]
I. 911 RECORDING
[¶6] McGuire argues that the circuit court erred in the admission of a portion of the 911 call. An appellate court applies an abuse-of-discretion standard when reviewing a circuit court's admission or exclusion of evidence. Anderson v. State, 62 So.3d 927, 933 (¶ 13)
(Miss. 2011) (citation omitted).
[¶7] The State called Santistevan, and he testified:
Q. Where did you live on December 3, 2011?
A. The address is . . . .
Q. Okay. And tell the ladies and gentlemen of the jury what happened to you that afternoon.
A. Well, I was doing laundry and some other stuff, taking care of stuff. I heard the doorbell ring and I answered the door and Mr. McGuire had stated that he had just killed his girlfriend and I needed to call 911. And before he was really finished, he started walking away so I just closed the door. I didn't really think anything of it other than maybe he was having a fight. And I thought about going over there and seeing what I could do and then I thought maybe I better not and I called 911 right away, 911.
Q. And what did you report to 911?
A. I told them that the neighbor had came over and said that he had just murdered his girlfriend that I should call 911.
McGuire made no objection to Santistevan's testimony.
[¶8] The State then called Kim Preston, the communications supervisor for the Brandon Police Department. Preston was asked a number of questions to lay a foundation to offer the 911 recording. She testified:
Q. When a 911 call comes into the Brandon Police Department, is it the regular practice of the police department to make a recording, an audio recording of that call?
A. Yes, sir.
Q. And is that audio recording normally kept and maintained by the Brandon Police Department?
A. Yes, sir.
Q. Now if someone was going to get a copy of a 911 call from the Brandon Police Department, who would they come to to get a copy?
A. They would come to me.
Q. Ms. Preston, I'm going to hand you a disk. Can you tell me what that is[?]
A. That is the 911 recording in this case.
. . . .
Q. [T]his disk that you made, does it contain an actual call, actual recording of the 911 call that came in to the Brandon Police Department involving the Robert McGuire case?
A. Yes, sir.
Q. And whenever you make this recording, do you in any way change or alter the ...