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Kirk v. State

Supreme Court of Mississippi

February 5, 2015

MARVIN KIRK
v.
STATE OF MISSISSIPPI

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[Copyrighted Material Omitted]

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COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/09/2013. TRIAL JUDGE: HON. WILLIAM E. CHAPMAN, III.

AFFIRMED.

FOR APPELLANT: PHILLIP W. BROADHEAD, OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, JOHN R. HENRY, JR.

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.

OPINION

Page 688

NATURE OF THE CASE: CRIMINAL - FELONY

KITCHENS, JUSTICE.

¶1. Marvin Kirk was tried and convicted of aggravated domestic violence in the Circuit Court of Madison County. He was sentenced as a Section 99-19-81 habitual offender to twenty years in the custody of the Mississippi Department of Corrections. The State alleged that Kirk twice had strangled his wife, Casey. At trial, witnesses testified that Casey had red marks on her neck shortly after the alleged assaults had occurred, and Casey testified that Kirk had strangled her. Kirk denied so doing. Finding Kirk's assignments of

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error to be without merit, we affirm his conviction and sentence.

STATEMENT OF THE FACTS

¶2. On Friday, January 25, 2013, Marvin Kirk, home from working offshore, woke around ten o'clock in the morning at his residence at 208 Waldrop Road in Madison County. Kirk testified that he went to a hardware store to purchase tools to repair a leaking faucet in the bath tub in the master bathroom. He testified that nothing occurred that day except " the ususal being married." Casey Kirk, Marvin's wife, who did not work outside the home, testified that she and the couple's two-year-old son Gabriel had spent the majority of the day at home watching cartoons, " until about 6:00 or so." She testified that her husband took her keys, phone, and wallet away from her, because " [h]e said I was doing drugs and that I was wanting to go get drugs and that I was cheating on him" and that, generally, " [h]e was just in an ill mood, just wanting me to do whatever he wanted me to do and control me." Casey testified that she did not use drugs on Thursday, January 24, 2013, or on the following weekend.

¶3. Casey testified that, at some point that Friday evening, Marvin began complaining that the house was dirty. When Marvin started complaining, the family was " sitting on the couch in the living room," so Casey got up to wash dishes. She said, " And I'm washing dishes, and he kept yelling at me, and I got irritated because I've done everything he wants me to do." Casey testified that, as the argument escalated, " [h]e started coming towards me." Marvin allegedly kicked Casey, which resulting in her falling onto the refrigerator. At that point, Casey testified, Marvin grabbed her by the neck and proceeded to choke her in the presence of their son. She stated that she was not able to breathe. When Marvin released her, Casey " gasped for breath," grabbed her son, and proceeded again to wash dishes " with Gabriel right beside me" in an effort to prevent Marvin from getting angrier. After completing the dishes, Casey and Gabriel returned to the sofa. Casey testified that Marvin " told me that my mouth was going to get me put in a shallow grave outside if I didn't shut up." That night, Casey and Gabriel shared her bed.

¶4. The next morning, Saturday, January 26, 2013, Casey and Gabriel watched cartoons until Marvin got up, again around ten o'clock. Marvin had slept in his chair in the living room. Casey testified that, when Marvin got up to go to the bathroom, she rushed to Marvin's chair, where he had been sitting for two days, in an effort to find her phone and her keys. She located both her phone and her keys and, when Marvin returned from the bathroom, he began asking Casey questions regarding why she needed them. He threw her phone out the back door into the kudzu and proceeded to wrestle with Casey to get her keys back. Casey testified that, as they were wrestling, she informed Marvin that she needed to go to the hospital. Finally, Marvin " got the keys away from me and broke the lanyard. Whenever it broke the lanyard, it cut my hand."

¶5. The melee continued, and " [h]e grabbed me, and he put me on the ground, and he choked me until where I couldn't see or breathe or anything." This occurred between the kitchen and the living room, because " the living room has carpet, the kitchen has hard floors," and Casey's " back was on the carpet, but [her] head was on the hardwood floor." Marvin allegedly " choked [Casey] completely out," meaning Casey " lost consciousness." When she came to, Casey testified, she searched frantically for a cigarette. When

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she located one, she " lit it in the house, not thinking. And he got mad at me, and he tried to wrestle the cigarette away from he, and was trying to burn me with the cigarette." According to Casey, Marvin succeeded in burning her with the cigarette.

¶6. Casey testified that, at that point, she was able to grab Gabriel and walk out the back door. In hopes the " across-the-street neighbors," the Hobsons, were home, Casey fled there, but they were not home. Casey then returned to her driveway, " because I kept hearing car doors slamming" and she observed Marvin packing up the family car. He threatened to lock her out of the house, which he then agreed not to do. As he was walking to unlock the house door, Casey " put Gabriel down in the middle of the driveway" and " ran over there to try to get the car seat." Marvin pushed her away. Casey then " got really scared again," picked up Gabriel and ran back through the woods to her landlord's house.

¶7. Colita Ogletree, whom Casey had never met, was the wife of the Kirks' landlord, David Ogletree, a neighboring homeowner. Casey did not want her landlord " to see how crazy and messed up my family was because we were renting the house from them." Nevertheless, because other neighbors, the Hobsons, were not home, Casey fled to the Ogletrees' house. Colita answered the door and Casey informed her that her husband had strangled her and that she needed to place a telephone call to 911. At trial, this recorded 911 call was played for the jury.

¶8. Marvin's testimony at trial consisted of a significantly different version of events. He denied yelling at Casey during the weekend in question. He denied keeping Casey's telephone or keys from her, testifying that she had three phones and her keys were kept in magnetic boxes under the cars' hoods. He denied burning or attempting to burn Casey with a lit cigarette. He testified that, on the weekend in question, Casey " was looking for a bag of crystal meth that she inadvertently folded up in a towel and dropped on the floor." When Marvin informed Casey that he had flushed her methamphetamine, she began " digging through the house, just through everything, through stuff that you wouldn't look through generally if you were looking for something."

¶9. Marvin testified that, when Casey realized that her methamphetamine was gone, she went on a tirade: " I'm talking about like, 'You don't do nothing for this family, all you do is bitch. . . . All you do is gripe about what I don't do.'" He then collected his packed bags, his boots, his hard hat, and his life jacket and headed offshore. Marvin testified that, as he was packing the truck, Casey begged him to stay--in fact, he testified that Casey cut her thumb in an effort to wrest his keys from him as he was trying to leave. He denied that he ever had assaulted or choked his wife. He testified that the marks on Casey came from running though the woods to get to the Ogletrees' house. On cross examination, Marvin testified that no marks had been on Casey's neck when he left the house, and that he was unaware of how she had gotten the bruise on her arm or the cigarette burn. Marvin testified that he was pulled over by the police, who took him to the Ogletrees' house.

¶10. Colita Ogletree testified that when Casey arrived at her house, " [s]he was just very alarmed when she came in, and she showed me her forearm. It looked like she had a goose egg." Also, Colita noticed that Casey's neck was red. She testified that " she just had kind of a goose egg on her bicep and some bruising, and her neck was red."

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¶11. Deputy Sheriff Tommy Strait, the officer who responded to the call from the Ogletrees' house, testified that he and Deputy Sheriff Brad Sullivan had received a call about a potential domestic-violence case on Waldrop Road involving a white Toyota Forerunner. According to Strait, on the way to Waldrop Road, " we came into contact with him, Marvin Kirk, and detained him at the time and went to where Casey Kirk was." When asked about Casey's demeanor, Strait testified that;

She was scared and frantic and just really didn't know what to do because she was worried about Mr. Kirk coming back to where she was and getting her, as she said. I also noticed around her neck she had strangulation marks. She had several bruises upon her also.

Strait then photographed Casey's injuries and called an ambulance to take her to the hospital.

¶12. Deputy Sullivan testified that, when he observed the Toyota Forerunner, he detained Marvin, placed him, in handcuffs, into the back seat of a patrol car, and returned him to Waldrop Road. When the deputies arrived atthe Ogletrees' residence, Strait and Sullivan left Marvin in the patrol car outside and went in to speak with Casey. Sullivan testified that when he noticed that Casey " had red marks on her neck that she was pointing out to Deputy Strait, and she had some red marks on her arms," he returned outside and read to Marvin his Miranda[1] warnings, because " Mississippi state statute says domestic violence with strangulation is a felony domestic charge."

¶13. On April 3, 2013, Marvin Kirk was indicted by a Madison County grand jury under Mississippi Code Section 97-3-7(4) for aggravated domestic violence. On July 26, 2013, the State moved to amend Kirk's indictment to charge him as an habitual offender under Mississippi Code Section 99-19-81. Kirk previously had received a 1998 conviction for grand larceny in Yazoo County, Mississippi, for which received a five-year sentence with three years and six months suspended, leaving one year and six months to serve and one year of supervised probation following release from custody.[2] In 2007, Kirk had received a burglary conviction in Yazoo County, Mississippi, and was sentenced to serve six years, with two years to serve and four years of post-release supervision.[3] On August 12, 2013, the Madison County Circuit Court ordered the amendment of Kirk's indictment to include the Section 99-19-81 habitual-offender charge. Kirk was tried on August 28, 2013, and was found guilty of aggravated domestic violence by a Madison County jury.

¶14. On October 7, 2013, the trial court sentenced Kirk as an habitual offender to twenty years' imprisonment, the statutory maximum for aggravated domestic violence. See Miss. Code Ann. § 97-3-7(4)(a) (Rev. 2014). The trial court denied Kirk's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, on October 11, 2013. Kirk filed a notice of appeal to this Court on October 16, 2013.

¶15. Kirk raises four issues for review by this Court:

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I. Whether it was plain error for the trial court to permit a law enforcement officer to testify to medical causation, that the victim's injuries appeared to be a result of strangulation, in a case in which strangulation was an element of the crime charged in the indictment.
II. Whether the trial court erred by denying the Appellant's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial.
III. Whether the trial court erred by excluding letters and a text message.
IV. Whether the trial court erred by prohibiting defense counsel from cross examining the victim regarding a drug hair follicle test on grounds of relevancy.
V. Whether the trial judge committed reversible error with regard to jury deliberations following the trial.

Each assignment of error is considered in turn.

ANALYSIS

I. Whether it was plain error for the trial court to permit a law enforcement officer to testify to medical causation, that the victim's injuries appeared to be a result of strangulation, in a case in which strangulation was an element of the crime charged in the indictment.

¶16. Kirk recognizes that no contemporaneous objection was forthcoming when Deputy Strait testified at trial regarding the marks he had observed on Casey Kirk's neck. On direct examination, when asked about Casey's demeanor, Strait testified that he " noticed around her neck she had strangulation marks." He further testified that he requested an ambulance " due to her complaining about her throat being sore and obviously because of the bruising and things that can happen in a strangulation to the neck." And when asked about the incident report he prepared on the day in question, Strait responded: " She indicated that there was shoving, hitting with a closed fist, and a slap with an open hand, beating up, and strangulation." But, in spite of the failure of trial counsel to interpose an objection, Kirk claims that the doctrine of plain error applies.

¶17. Generally, preservation of an issue for appeal requires a contemporaneous objection at trial. Christmas v. State, 10 So.3d 413, 421 (Miss. 2009) (quoting Walker v. State, 913 So.2d 198, 238 (Miss. 2005)). The doctrine of plain error permits this Court to consider, in spite of a lack of a contemporaneous objection at trial:

obvious error which was not properly raised by the defendant and which affects a defendant's fundamental, substantive right. For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Johnson v. State, 155 So.3d 733, 2014 WL 971542, *4 (Miss. March 13, 2014) (quoting Burdette v. State, 110 So.3d 296, 303 (Miss. 2013) (quoting Conners v. State, 92 So.3d 676, 682 (Miss. 2012))). Kirk claims that, " [w]ith no expert witness, no eye-witnesses, and witnesses with mere reiterations of Casey Kirk's testimony, the State improperly introduced medical expert testimony through a lay law enforcement witness to salvage its case." According to Kirk, this violated his " right ...


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