Alford v. State

• Decision Date: 08 June 1995
• Docket Number: No. 92-KA-00407-SCT,92-KA-00407-SCT
• Parties: Michael Joe ALFORD v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1186

656 So.2d 1186

Michael Joe ALFORD v. STATE of Mississippi.

No. 92-KA-00407-SCT.

Supreme Court of Mississippi.

June 8, 1995.

Fred L. Cooper, Columbia, for appellant.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

Michael Joe Alford was tried in the Circuit Court of Marion County, found guilty of burglary of an inhabited dwelling and sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections. Aggrieved, Alford appeals to this Court citing the following issues:

I. THE TRIAL COURT ERRED IN FAILING TO DIRECT A VERDICT OF NOT GUILTY, OR IN THE ALTERNATIVE, GRANTING PEREMPTORY INSTRUCTION NO. D-7.

II. THE VERDICT OF THE JURY WAS AGAINST THE WEIGHT OF THE EVIDENCE AND EVIDENCED A BIAS OR PREJUDICE ON THE PART OF THE JURY AGAINST THE APPELLANT.

III. THE TRIAL COURT ERRONEOUSLY ALLOWED THE STATE TO USE APPELLANTS PRIOR CONVICTION OF GRAND LARCENY

TO IMPEACH APPELLANT'S TESTIMONY.

Alford consolidated issues I and II which are meritorious and warrant discussion. Alford waived issue III which we need not address. After a thorough review of the consolidated issues we are of the opinion that Alford's contention that the State failed to prove the necessary element of criminal intent once Alford was inside the dwelling is meritorious. Thus the State failed to prove the burglary of an inhabited dwelling.

However, the jury in the case sub judice was given an instruction for trespass. Trespass is a lesser included offense of every burglary. The jury found Alford guilty of the greater crime of burglary. The facts in evidence proved conclusively beyond a reasonable doubt that Alford committed the offense of trespass. We find no need for a new trial for this offense. Therefore, by authority of Anderson v. State, 290 So.2d 628 (Miss.1974), this Court reverses the conviction of burglary, affirms the lesser included offense of trespass, and remands for resentencing in accordance with this opinion.

STATEMENT OF THE FACTS

Greg Cooper, a detective with the Marion County Sheriff's Department was dispatched at 3:00 a.m. on August 9, 1991, to investigate a break-in at the residence of Laura Lambert. Cooper stated that there were scratch marks and pry marks on the front door of the trailer, apparently caused by a screwdriver or knife. Cooper identified the defendant, Michael Joe Alford, in the courtroom as the man he arrested on August 12, 1991. Cooper testified that he had read Alford his Miranda rights. Alford signed the form acknowledging that he understood his rights, yet he waived his rights and spoke to Cooper. Cooper read the Miranda form at trial.

Cooper stated that Alford was not under the influence of alcohol or narcotics when he waived his Miranda rights. Cooper stated that Alford responded and answered his questions, and did not invoke his right to remain silent.

Michelle McDaniel testified that on August 9, 1991, she was 13 years old and living with her grandmother. She watched television that night and went to bed at approximately 10:00 p.m. McDaniel stated that about 12:00 or 1:00 a.m. she heard a door squeak. She asked who was there and she heard a voice say "It's me." When she asked who "me" was she said the voice replied "Mike." At that point she screamed for her grandmother, telling her that "Mike's in the house." McDaniel stated that when she got out of bed, Alford "pulled my arm and told me not to go tell my grandmaw. So that's all--and he pull [sic] my arm." McDaniel claimed he also pushed her. McDaniel stated that Alford was holding his shoes in his hand and he put them on by the washing machine in the trailer. McDaniel identified Alford in the courtroom.

McDaniel testified that Alford left the trailer by the back door which he had to unlock before leaving. McDaniel said the back door was always locked. McDaniel stated that Lambert had welcomed Alford in the trailer before, but he was not welcomed inside on that night. On cross-examination, McDaniel stated that she smelled alcohol on Alford, but she did not know if he was drunk. Lambert could not testify at trial because she was in the hospital.

Alford requested a directed verdict. The court stated that "I'm not sure about the locked doors. I think there's been enough evidence to show the doors were locked, but even if they weren't locked, you could still have a breaking and entering by turning the door knob and coming in, from my understanding of the law." The court believed the elements of burglary had been met and denied the directed verdict. The court was not sure whether an assault occurred, but believed there was enough evidence for the jury to consider the issue.

Michael Joe Alford testified that he was thirty years old, that he knew Lambert and recalled going to the trailer between 9:00 p.m. and 12:00 p.m. on August 9, 1991. He testified that he had known McDaniel since she was four, if not younger. Alford said the former sheriff, Webbie McKenzie, dropped him off at Lambert's trailer. Alford stated that he did not know why he took his shoes off, and he did not have a knife, or anything similar, with him. He said the back door was not locked and "I stuck my head in and picked my feet up and went on in and walked around to her room." Alford stated that he had spent the night there before, but that was years before. When asked whether he ever attempted to open the front door, he replied: "No, sir-ree, I did not."

Alford stated that he had been to the trailer before and knew that Lambert kept the screen with the steel door locked. He stated that he went to talk with McDaniel about some keys he had, "and that was as fer [sic] as it went." When he got in McDaniel's room, he realized he startled her and asked her not to wake up her grandmother. He said McDaniel told him "You could have killed me," and she was scared, but he stated "I ain't gonna kill you. I'll kiss you before I kill you." Regardless, McDaniel awakened Lambert, and Alford went with McDaniel to Lambert's room and talked with Lambert. Alford testified that she asked him how he got in, and what was he doing there. He said Lambert "was getting on to me a little bit, you know--fussing at me like a mother, which she kind of is cause she's known me a long time.... I've stayed there a week at a time cause I didn't have a place to stay back then, you know. I was kind of roaming around, you know." Alford stated that Lambert told him there would not be any trouble and not to come back late at night again. He stated he locked the door as he left. Alford stated he had been drinking whiskey that night "cause I just got out of jail."

Alford stated that it was normal for him to visit people at three o'clock in the morning because he didn't have a car and he got stranded. Alford claimed that he needed to make phone calls to be picked up. He further stated that the police would come "behind me and says I was harassing and aggravating this woman, and I said, 'I don't know what you talking about, aggravation. All I asked was could I use the phone, and she said no, and I left.' " He only asked the people that he knew for permission to make phone calls.

Alford stated that he had no intention of harming McDaniel, he only wanted to talk to her, and he did not keep her in the room when he grabbed her arm. Alford testified that he had been convicted for grand larceny in 1984.

Alford was convicted of burglary and sentenced to ten years at the Mississippi Department of Corrections. At sentencing Alford admitted that he had a drinking problem that he believed he had inherited from his father. The court ordered that he be given treatment and evaluation while at Parchman.

DISCUSSION OF LAW

This Court has held that the standard of review for "a denial of a judgment notwithstanding the verdict and a peremptory instruction are the same.... Our standards of review for a denial of a judgment notwithstanding the verdict and a directed verdict are also identical." Sperry-New Holland v. Prestage, 617 So.2d 248, 252 (Miss.1993); See also Smith v. State, 646 So.2d 538, 542 (Miss.1994). The Court will

consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, [we are] required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required.

Id. citing Munford, Inc. v. Fleming, 597 So.2d 1282, 1283-84 (Miss.1992).

Alford is correct in arguing that the two elements of the offense of burglary are:

(1) breaking and entering the dwelling house of Laura Lambert at a time when the dwelling was occupied by Laura Lambert and her granddaughter, Michelle McDaniel, and (2) for the purpose of committing the crime of assault upon Michelle McDaniel once inside. Both of these elements must be proved as charged in the indictment. Brumfield v. State, 206 Miss. 506, 40 So.2d 268 (1949).

Whether Alford came through the front door by use of force or the rear door avails Alford little for argument purposes. Any effort, however slight, such as the turning of a door knob to enter, constitutes a breaking, as was readily admitted by Alford in his brief.

In Newburn v. State, 205 So.2d 260 (Miss.1967), the Court further stated that "[w]e have repeatedly held that evidence of the slightest force necessary to open an entrance into a dwelling house is sufficient to satisfy the essential element of breaking under the charge of burglary of an inhabitant's dwelling." Id. at 263; see...