OF JUDGMENT: 09/07/2017
COUNTY CIRCUIT COURT, HON. LAWRENCE PAUL BOURGEOIS, JR. TRIAL
COURT ATTORNEYS: MATTHEW DRAKE BURRELL JIM L. DAVIS, III
ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LISA L. BLOUNT
DISTRICT ATTORNEY: JOEL SMITH
RANDOLPH, C.J., COLEMAN AND CHAMBERLIN, JJ.
RANDOLPH, CHIEF JUSTICE
Eric Sharkey was found guilty of two counts of armed robbery
and one count of possession of a firearm by a convicted felon
and received three sentences-fifteen years for each armed
robbery and ten years for possession, all to run
concurrently. Sharkey appeals his convictions and sentences.
Finding no error, we affirm.
AND PROCEDURAL HISTORY
Eric Sharkey, Madison Magee, and Marvin Bolden were indicted
on two counts of armed robbery and possession of a firearm by
a convicted felon. The State moved to amend Sharkey's
indictment to reflect his status as a habitual
offender. No argument was raised in opposition. The
trial court found Sharkey to be a habitual offender under
Mississippi Code Section 99-19-81 (Rev. 2014). The State also
was allowed to exclude the specific sentences of
Sharkey's codefendants, both of whom had entered a guilty
plea to the same crime.
During Sharkey's trial, Don Patterson, Woodrow Berry,
Bolden, and Magee gave essentially the same account of the
facts. Berry was visiting Patterson when both men were robbed
by Sharkey, Bolden, and Magee. Bolden came in Patterson's
home and asked for beer, cigarettes, and change for a $100
bill. Patterson told him that he did not have change. Magee
then entered Patterson's home with a gun and ordered
Patterson and Berry to lie face down on the floor. When
Sharkey came inside, Magee told him to check the back
bedrooms. Sharkey attempted to remove a television from one
of the back bedrooms, but it fell. When Sharkey came back
into the living room, Patterson noticed that Sharkey had
Patterson's pistol. Magee then told Sharkey to get the
television from the living room. Sharkey took the television
outside and then came back into the house. As Magee began
looking for drugs, Sharkey told Magee to hurry up and to get
out of the house. Magee took Patterson's watch, ring,
wallet, and Berry's money. Patterson testified that,
aside from those items and the television, a gun, whiskey,
and medicine were also taken.
Patterson testified that Sharkey was the only person who
entered his bedroom, where his pistol was located. Patterson
and Berry testified that the three men were all working
together. Both men testified that Sharkey had tattoos on his
neck and face.
Kevin Hinds, a patrol lieutenant for the Stone County
Sheriff's Department, testified that he responded to a
call regarding an armed robbery. Hinds identified Sharkey as
one of the men he had arrested for the armed robbery.
Captain Ray Boggs with the Stone County Sheriff's Office
testified that he spoke with Patterson, who informed him that
Patterson and Berry had been robbed at gunpoint. Patterson
knew Bolden by name and was able to give a description of the
other men. Once Boggs got to the scene of the arrest, he
noticed a light-skinned, African-American male with tattoos
on his face in the front passenger seat. Boggs, both at the
scene and at trial, identified the passenger as Sharkey.
Boggs searched the vehicle and found a "Hi-Point 40
caliber pistol tucked in the [front passenger] seat." He
also found a silver .380 pistol tucked between the front
seats. In addition to the weapons, Boggs found bottles of
medication prescribed to Patterson, a television, a watch, a
diamond ring, and money. Boggs testified that Patterson came
to the sheriff's office and identified his recovered
items, including the .40 caliber pistol. Boggs showed
Patterson and Berry photographic lineups, and both were able
to identify Sharkey as one of the men who had robbed them.
Immediately before the State rested, the trial court read an
agreed stipulation to the jury that Sharkey previously had
been convicted of the felony uttering a forgery. Sharkey
moved for a directed verdict on all three counts; his motion
was overruled. Sharkey elected not to testify in his defense,
and no other witnesses were called.
The jury was instructed and found Sharkey guilty of all three
counts. Sharkey was found to be a habitual offender and was
sentenced to a term of fifteen years for Count I, fifteen
years for Count II, and ten years for Count III, to run
concurrently. Sharkey's motions for a new trial or,
alternatively, a judgment notwithstanding the verdict were
OF THE ISSUES
On appeal, Sharkey raises the following issues:
WHETHER THE VENIRE WAS TAINTED, RENDERING SHARKEY'S TRIAL
WHETHER THE PROSECUTION'S GIVING NONVERBAL SIGNALS TO A
STATE'S WITNESS DURING THAT WITNESS'S TESTIMONY WAS
WHETHER THE TRIAL COURT ERRED IN REFUSING A DURESS JURY
WHETHER THE TRIAL COURT ERRED IN REFUSING
LESSER-INCLUDED-OFFENSE INSTRUCTIONS FOR ROBBERY OR
WHETHER THE VENIRE WAS TAINTED, RENDERING
SHARKEY'S TRIAL UNFAIR.
Sharkey argues that the trial court erred in denying his
motion for mistrial. He urges that he is entitled to a new
trial, because during voir dire the jurors were informed that
witnesses Bolden and Magee had been indicted, had pled
guilty, and were serving time for the same crime for which
Sharkey was on trial. One venire member responded that he
would have "a little trouble getting over the statement
about the other two being convicted. . . ." The State
interrupted and asked to approach the bench. During the bench
conference, the venire member indicated that he had already
formed an opinion about Sharkey's guilt. He was struck
Sharkey moved for a mistrial. In opposing the motion, the
State argued that (1) the statement was made during voir dire
and was not evidence, (2) a guilty plea was less prejudicial
than a conviction by a jury, and (3) the State anticipated
calling both men to testify. The State informed the court
that it would not ask either witness about their guilty pleas
unless Sharkey inquired about them on cross-examination.
The trial court found that the State should not have
mentioned the guilty pleas in voir dire and directed the
State not to reference the pleas during examination. The
trial court denied the motion for mistrial. Sharkey did not
question either Bolden or Magee about their guilty pleas, and
the State did not mention the pleas during their testimony.
This Court employs an abuse-of-discretion standard of review
to determine whether a trial judge erred in denying a request
for a mistrial. Pitchford v. State, 45 So.3d 216,
240 (Miss. 2010). A trial judge need declare a mistrial only
"when there is an error in the proceedings resulting in
substantial and irreparable prejudice to the defendant's
case." Id. (quoting Parks v. State,
930 So.2d 383, 386 (Miss. 2006)). Likewise, the standard of
review for a post-trial motion is abuse of discretion.
Young v. State, 236 So.3d 49, 55 (Miss. 2017).
"This Court will not order a new trial unless it is
convinced that the verdict so contradicts the overwhelming
weight of the evidence that to allow the verdict to stand
would sanction an unconscionable injustice."
Id. (citing McNeal v. State, 617 So.2d 999,
1009 (Miss. 1993)). The jury's verdict was supported by
the overwhelming evidence adduced at trial.
We find no abuse of discretion in the trial court's
denial of the motion for mistrial. The statement was made
during voir dire, and the only juror who told the court that
he could not be impartial in light of the two
accomplices' convictions was excused for cause. When
Magee and Bolden were called as witnesses, their pleas and
sentences were not discussed. Sharkey failed to present
evidence that he had suffered substantial or irreparable
WHETHER THE PROSECUTION'S GIVING
TO A STATE'S WITNESS DURING THAT WITNESS'S TESTIMONY
Sharkey claims that the prosecutor erred by giving a
nonverbal cue to a witness during the witness's
testimony. During direct examination of Patterson by the
State, the following exchange occurred:
Q. Could you see anything on the defendant that stood out to
Q. How were you able - was there any distinctive markings on
A. The tattoos.
MR. DAVIS: Objection to the State leading by making facial -
to get testimony out of the witness, Your Honor.
THE COURT: That's overruled. Go ahead.
BY MR. BURRELL:
Q. What did you see on the defendant that stood out to you?
A. The tattoos.
Sharkey relies on Williams v. State, 539 So.2d 1049
(Miss. 1989), for the proposition that "[a]n attorney
should never signal to a witness, regardless of how innocent
the action may be, because this leaves with the jury the
impression of covertness and partiality between the witness
and the signalling party." Williams, 539 So.2d
at 1053. In Williams, the record was clear that the
prosecutor admittedly made a hand gesture, signaling his
witness to "go ahead and now give the information that
the Court had previously ruled as inadmissible. . . ."
Id. at 1052.
Today's case is distinguishable, because the record does
not reflect that the prosecutor gave any hand signals to the
witness in front of the jury. We find that the trial court
did not abuse its discretion in overruling Sharkey's
WHETHER THE TRIAL COURT ERRED IN REFUSING A DURESS
The standard of review for issues involving jury instructions
is well-established. Jury instructions must be read as a
whole to determine if the instructions were proper.
Milano v. State, 790 So.2d 179, 184 (Miss.
2001). Jury instructions must fairly announce the law of the
case and not create an injustice against the defendant.
Id. This rule is summed up as follows: "In
other words, if all instructions taken as a whole fairly, but
not necessarily perfectly, announce the applicable rules of
law, no error results." Id. See Adams v. State,
772 So.2d 1010, 1016 (Miss. 2000). See also Davis v.
State, 18 So.3d 842, 847 (Miss. 2009).
Sharkey offered a proposed jury instruction on his
affirmative defense of duress. Sharkey contends that he did
not willingly agree to participate in the robbery and
complied with Magee's commands out of fear of being shot.
Sharkey submits that duress was a theory of his defense;
therefore, he was entitled to proposed jury instruction D-18.
In denying the instruction, the trial court noted that no
evidence was offered that Sharkey was afraid of Magee.
While a defendant has a right to jury instructions that
present his theory of the case, that right is not absolute.
Davis v. State, 18 So.3d 842, 847 (Miss. 2009). Jury
instructions are within the discretion of the trial court.
Id. The trial court may refuse an instruction if it
is without foundation in the evidence. Id. In
Banyard v. State, this Court adopted the following
four-part test for duress:
(1) the defendant was under an unlawful and present,
imminent, and impending threat of such a nature as to induce
a well-grounded apprehension of death or serious bodily
injury; (2) that he had not recklessly or negligently placed
himself in the situation; (3) that he had no reasonable legal
alternative to violating the law; (4) that a direct causal
relationship may be reasonably anticipated between the
criminal action and the avoidance of harm.
Banyard, 47 So.3d 676, 682 (Miss. 2010).
While Sharkey's attorney suggested in his opening
statement and closing argument that Sharkey was in fear of
Magee and committed the robbery under duress, no evidence was
offered to support that suggestion. Sharkey failed to offer
any evidence that he was threatened in any way while he was
committing the crime. Because Sharkey failed to ...