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Talley v. State

Court of Appeals of Mississippi

May 19, 2015

DAVARIOUS LEVONTE TALLEY, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/10/2013. TRIAL JUDGE: HON. MARCUS D. GORDON. TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY OF A DWELLING HOUSE AND SENTENCED TO TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.

FOR APPELLANT: EDMUND J. PHILLIPS JR.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE.

BEFORE LEE, C.J., BARNES AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 517

NATURE OF THE CASE: CRIMINAL - FELONY

BARNES, J.

[¶1] A Scott County jury returned a guilty verdict against Davarious Levonte Talley for the charge of burglary of a dwelling house. The Scott County Circuit Court sentenced him to twelve years in the custody of the Mississippi Department of Corrections. Talley now appeals, claiming the trial court improperly failed to strike certain inadmissible hearsay testimony. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

[¶2] Talley, a nineteen-year-old former college student, was indicted for the December 22, 2012 burglary of Damekia Boone's home in Forest, Mississippi. Talley lived in the same neighborhood as Boone. At trial, six witnesses testified for the State. Boone testified that her home had been burglarized while she and her children were visiting her mother that evening. Missing from her home were an Xbox Kinect Star Wars Edition video game and a pair of Jordan athletic shoes. Later, she noticed her GPS was gone. Damage was done to bedroom windows that were closed and locked when she left, but had been pried open. Also, her back door, which she had locked upon leaving, was unlocked. No one had been given permission to enter her house.

[¶3] Prayer Wright, a thirteen-year-old eyewitness to the crime who knew Talley through her brother, testified that on the date at issue, she had spent the night with her friend, Nikki Martin, who lived near Boone's house. From Nikki's house, she observed Talley watching Boone's house from a " violet" van. Later, Prayer saw Talley enter Boone's house through a window after the Boones left home. Additionally, Nikki testified she saw Talley sitting inside his mother's van that evening parked outside Boone's house. Nikki told her mother, who called the police. Keontavious Gardner, a fifteen-year-old, testified that Talley told him he had seen Boone cashing a check that day, and that he intended to rob her later that evening. Keontavious declined Talley's invitation to join him in the burglary.

[¶4] Keshun Chandler, a sixteen-year-old eyewitness to the burglary, testified that he observed Talley park his van in front of Boone's house and climb through a window. At the time, Keshun was at Nikki's house with Prayer. Keshun saw Talley exit the house through the back door with an Xbox and a GPS. Later that evening, Keshun and Talley went to a Texaco station, and Talley asked an individual there if he wanted to buy the Xbox. Keshun denied any involvement with the burglary.

[¶5] Officer Ricky Hoye of the Forest Police Department testified that approximately twenty minutes after he received a dispatch call about the burglary, he observed Talley sitting alone in the driver's seat of a maroon van parked on the side of a road scrolling through a GPS. Officer Hoye also saw an Xbox video game inside the van.

[¶6] Talley testified in his own defense. He denied telling Keshun he was going to rob the Boones. He blamed the burglary on Keshun. Talley testified that he saw Keshun enter the Boones' back window and exit through the back door with the video game and GPS. Talley stated he observed the crime nearby, from the yard of an individual named Poncho. Talley testified two other youths also went in the house with Keshun. Talley contended the stolen GPS was actually his, and that when he took Keshun to the Texaco, Keshun must have left the stolen Xbox in the van. Approximately one hour elapsed from the time Talley claimed he saw Keshun leave

Page 518

Boone's home to when Talley was picked up by the police.

[¶7] Perry Wright, Prayer's brother, also testified for the defense. Perry claimed that after Talley was arrested and jailed, he had a conversation with Keshun, and Keshun confided that he went in the house with Talley.

[¶8] The State called two rebuttal witnesses, Officer Hoye and Officer Joe Blakeney of the Forest Police Department. Officer Hoye clarified that he saw two Garmin GPS devices in Talley's van, and the Xbox was behind the driver's seat. Officer Blakeney interviewed Talley, who told him he was unaware of the burglary, ...


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