DAVID BRETT MIDDLETON A/K/A DAVID B. MIDDLETON A/K/A DAVID MIDDLETON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 08/26/2016
COAHOMA COUNTY CIRCUIT COURT HON. LINDA F. COLEMAN TRIAL
ATTORNEY FOR APPELLANT: MARK KEVIN HORAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER
GRIFFIS, C.J., BARNES AND CARLTON, P.JJ.
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.
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
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.
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
Officer Eddie Earl of the Clarksdale Police Department was
first on the scene. He activated his "duty
tape" 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.
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
Even though Officer Earl informed Middleton his oral
statement was recorded, Middleton insisted on ...