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Hartzog v. State

Court of Appeals of Mississippi

December 5, 2017

KENNETH HARTZOG A/K/A KENNETH K. HARTZOG A/K/A KENNETH KEITH HARTZOG APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 11/23/2015

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT: HON. JEFF WEILL SR. JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. Kenneth Hartzog was indicted for one count of being a felon in possession of a firearm in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). After a trial by jury, Hartzog was found guilty as charged, and was sentenced as a habitual offender to serve ten years in the custody of the Mississippi Department of Corrections. He now appeals this conviction. Finding no error, we affirm.

         BACKGROUND

         ¶2. On the morning of October 5, 2014, Jackson Police Department Officers Melvin Williams and Jeremy McCinnis were called to a home near Raymond Road, after receiving information that shots were fired there. After arriving at the residence, the officers cautiously approached, hearing what they believed to be a loud verbal altercation between a male and female. The front door was slightly open, and Officer Williams pushed on it. Then, he knocked and announced his presence. Hearing no response or acknowledgment, Officer Williams pushed the door completely open, and noticed a man and woman in the living room. The man and woman, undisturbed by the officers' arrival, continued their apparent argument.

         ¶3. Officer Williams testified that he knew they were responding to a call about shots being fired, so he attempted to see what was in the male's hands; however, he could only see the male's left hand, which held a cell phone. But Officer McCinnis testified he saw the man holding a gun, and did not see what was in the man's other hand.

         ¶4. Upon noticing the officers, the man walked towards the kitchen. Officer McCinnis testified that during that time, the man quickly went to the kitchen area, then threw the gun on the floor, and attempted to flee. Officer McCinnis then came into contact with the man, tackled him to the ground, and placed him in handcuffs. Both the man and woman were briefly questioned at the scene, and the woman, who owned the home, told officers the man was her boyfriend and he had accused her of cheating on him. The man was arrested, and his true identity, Hartzog, was discovered later. The woman was identified as Rosina Griffin.

         ¶5. After his arrest, Hartzog signed a Miranda[1] waiver, and agreed to talk to Investigator Craig Crowley. During the interview, which was conducted after Hartzog was charged with being a felon in possession of a firearm, Hartzog admitted he obtained the gun from a back bedroom and shot it. The interview was admitted into evidence as Exhibit 4, and Hartzog's account of what happened is as follows.

         ¶6. Hartzog said he woke up that morning and realized his girlfriend was not in bed, so he went to look for her. He explained that Griffin had to work at 8 a.m., so she had gone to the front of the house to work out. When Hartzog came and found her, he noticed the door was messed up, and asked Griffin what had happened. Hartzog said Griffin had not been paying attention and had not noticed the damage. Then, Hartzog asked Griffin where the bat was that she sometimes kept by the door. Griffin told him she did not have the bat anymore, but told him she did have a gun. Although Hartzog did not see anyone who might have done the damage, Hartzog said he went and got the gun, stepped outside the front door, and fired a shot in the air. He explained that he thought Griffin's daughter may have gone to call the police. But, when the police arrived, they came straight towards him and grabbed him, even though he warned the police that the person who did the damage was going to get away. When Hartzog was asked whether the police ever found a suspect, he explained the police did not find anyone because they did not look.

         ¶7. Griffin, Hartzog's girlfriend at the time of his arrest (and wife at the time of his trial), testified she was at home with Hartzog on the day in question. Griffin stated, on that night, she heard a noise that woke her up, so she awoke Hartzog. She said, at some point, they noticed someone had kicked the door in, someone called the police, and the police came to the home. Griffin explained that when the police arrived, she and Hartzog were not arguing. Instead, they were hysterical because someone kicked the door in. Griffin expressed that the officers never asked about the alleged burglary and, when they arrived, they immediately tackled Hartzog.[2] Griffin tried to explain to the officers that they had the wrong person-she thought the police were there to investigate a burglary. However, when she told the officers someone else had kicked the door in, Griffin testified that Officer McCinnis told her to shut up and accused her of lying. She also said he threatened that if ...


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