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Middleton v. State

Court of Appeals of Mississippi

January 22, 2019

DAVID BRETT MIDDLETON A/K/A DAVID B. MIDDLETON A/K/A DAVID MIDDLETON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/26/2016

          COAHOMA COUNTY CIRCUIT COURT HON. LINDA F. COLEMAN TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: MARK KEVIN HORAN

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          BEFORE GRIFFIS, C.J., BARNES AND CARLTON, P.JJ.

          BARNES, P.J.

         ¶1. David Brett Middleton was convicted of aggravated assault by a Coahoma County jury and sentenced to ten years in the custody of the Mississippi Department of Corrections, with five years suspended and five years of post-release supervision. On appeal, Middleton claims the trial court erred in allowing a law-enforcement officer's "duty tape" to be played to the jury because the tape contained a racial slur. Additionally, he argues his motion for a directed verdict should have been granted because there was no evidence presented that the action of driving a motor vehicle in a parking lot constituted a means likely to produce serious bodily injury. We find both issues without merit and affirm.

         STATEMENT OF FACTS

         ¶2. On the afternoon of February 11, 2015, Larry Brown, a fifty-six-year-old homeless African-American male, was struck by a GMC Sierra pickup truck driven by Middleton, a white male. The incident occurred in an empty parking lot in Clarksdale, Mississippi. The parking lot was in front of a vacant building that was previously a grocery store. Middleton, a local businessman and realtor, leased commercial space in the Executive Plaza, which was across the street. Dave Houston, who could view the parking lot from his barbershop across the street, testified that Brown had been living outside the entrance to the vacant building for at least a year. On the day of the incident, Houston was called outside while cutting hair. Cedric Betts, another barber, was outside with a customer and noticed Middleton's truck following Brown. Betts testified the truck followed Brown from the Executive Plaza into the empty parking lot. Middleton, who was driving the truck, and Brown were having an argument. Betts stated Middleton was screaming at Brown, at one point saying "I'm gone kill you, n*****." Brown, meanwhile, was cursing back at Middleton, walking away from the truck. Betts testified that Middleton then revved his truck's engine and hit Brown with his truck. Brown lay on the ground, but then got up and walked away.

         ¶3. Houston also testified he observed Middleton and Brown having a "verbal disagreement." Houston then saw Brown on the ground but did not see what caused him to hit the ground. Houston ran to check on him, and Middleton came by in his truck and asked Houston if Brown was "okay." Houston then called the police to obtain medical attention for Brown, but he had left the scene.

         ¶4. During the incident, firefighters were training outside of the Clarksdale Fire Department, which is across the street from the parking lot. Captain Marvin McCray testified that he heard the truck's engine revving and a "loud boom" or "thump." He then saw Brown lying face down in front of Middleton's truck in the nearby parking lot. Richard Trotter, another firefighter, testified he saw a man walking down the sidewalk and heard an engine revving in the empty parking lot. He saw Middleton's truck and then heard a "loud bump" that sounded like a car accident. When Trotter looked back again, Brown was lying face down on the ground. Several people ran to help Brown, but he ignored them and walked down the street, talking incoherently.

         ¶5. Officer Eddie Earl of the Clarksdale Police Department was first on the scene. He activated his "duty tape"[1] and recorded his conversation with Middleton. At the time, Middleton was not under arrest and was very cooperative, wanting to tell Officer Earl his version of the events. The tape was played for the jury over the defense's objection. In it, Middleton explained that he managed the Executive Plaza for his father, who owned the property. They had had prior problems with Brown, who was homeless, being on the property and scaring tenants. Middleton had a park bench removed from outside the plaza because Brown would loiter there and harass tenants. Brown had also been arrested for this conduct in the past.

         ¶6. On the tape, Middleton explained to Officer Earl that earlier in the day, Middleton had told Brown to leave the property, but Brown cursed at him. Middleton became angry. The men cursed back and forth at each other. Middleton apologetically admitted he called Brown a "n*****" because he was "mad as hell at that son-of-a-b****." He told Officer Earl "this has been an ongoing thing for several weeks." Middleton claimed he only intended to scare Brown with his truck, but instead he accidentally "clipped him with the [side] mirror." Brown fell down. When Middleton circled back around, Brown was gone. Because Brown got up quickly after being hit, Middleton felt Brown was not injured too badly. He added that if he really wanted to hurt Brown, he "could've run him slap over."

         ¶7. Even though Officer Earl informed Middleton his oral statement was recorded, Middleton insisted on ...


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