Gibson v. State, 97-KA-00721-SCT.

Decision Date25 November 1998
Docket NumberNo. 97-KA-00721-SCT.,97-KA-00721-SCT.
Citation731 So.2d 1087
PartiesOrlando GIBSON, a/k/a Orlando Deon Gibson v. STATE of Mississippi.
CourtMississippi Supreme Court

Marie Wilson, Greenville, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

Before PITTMAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

JAMES L. ROBERTS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. Orlando Gibson was indicted in the Circuit Court of Washington County, Mississippi on August 3, 1996, on one count of aggravated assault, pursuant to Miss.Code Ann. § 97-3-7(2) and one count of aggravated assault on a law enforcement officer, pursuant to Miss.Code Ann. § 97-3-7(2). On September 6, 1996, Gibson was arraigned and entered a plea of not guilty to all charges. Gibson's trial was continued by the Court on his motion on October 30, 1996. Gibson failed to appear for trial on or about February 2, 1997, and a bench warrant was issued. On February 4, 1997, an initial forfeiture was taken on Gibson's bond and a scire facies was issued on the bonding company by the court. On May 5, 1997, trial was held and the jury returned a verdict of guilty on both charges. On May 9, 1997, Gibson was sentenced to serve a term of twenty (20) years in the Mississippi Department of Corrections for aggravated assault and a term of thirty (30) years in the Mississippi Department of Corrections for aggravated assault on a police officer, with terms to run consecutively.

¶ 2. Gibson filed a Motion for New Trial or in the Alternative for JNOV on May 12, 1997. The trial court entered an order overruling the Motion on May 12, 1997. Gibson filed a Notice of Appeal asserting the following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED GIBSON'S MOTION FOR A DIRECTED VERDICT AND WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
II. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT SUBMITTED JURY INSTRUCTION S-6 TO THE JURY?
III. A. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT STATED THAT GIBSON WAS NOT ENTITLED TO A SIMPLE ASSAULT INSTRUCTION?
B. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED JURY INSTRUCTION D-8?
IV. WHETHER THE STATE VIOLATED BATSON BY USING ALL OF ITS PEREMPTORY CHALLENGES AGAINST BLACK POTENTIAL JURORS?
V. WHETHER THE SENTENCE RENDERED BY THE TRIAL COURT WAS SO GROSSLY DISPROPORTIONATE AND EXCESSIVE AS TO WARRANT REVERSAL?
VI. WHETHER GIBSON WAS DENIED A FAIR TRIAL DUE TO THE CUMULATIVE ERRORS EFFECT MADE AT TRIAL?
STATEMENT OF THE FACTS

¶ 3. On June 1, 1996, a carnival was held at the Washington County Convention Center. Deputy Joel Sandifer of the Washington County Sheriff's Department was working in full uniform at the carnival for security. At Gibson's trial Sandifer testified that sometime between 12:00 and 1:00 a.m., as he and Deputy Dempsey Hollis were working security in the midway area, a large crowd began screaming and running towards the deputies. Upon going to the area to see what was happening, Sandifer and Hollis noticed that a large fight had broken out. Sandifer stated that as they were trying to separate the people, a man took a swing at him and then ran off. Sandifer chased the man outside of the midway area. According to Sandifer, when he and the subject rounded one of the rides and entered the parking lot area, the man shot his pistol back toward the midway area, in the direction of the crowd. Sandifer identified Gibson as the subject he chased and saw fire the pistol.

¶ 4. Sandifer further testified that he and Hollis chased Gibson toward a vehicle that was parked in the parking lot. He stated that as they ran, Gibson was shooting in the two deputies direction. When they came upon the car, Gibson jumped into the passenger side. Sandifer stated that he noticed that Gibson still had the pistol in his hand. Sandifer noticed that there was a person in the driver's seat and thus, ordered him to get out of the car and to get down on the ground. As the driver complied, Gibson jumped out of the back window and landed on the ground. Gibson further testified that as Gibson was getting up off the ground with the weapon pointed in the officer's direction, Hollis fired on him.

¶ 5. Deputy Hollis testified that he also was dressed in full uniform on the night of the incident. He stated that when he and Sandifer attempted to break up the fight, the officers somehow got separated from each other. He explained that Sandifer was probably thirty to forty feet away from him. Hollis testified that he heard gunshots being fired and observed the crowd immediately fan out. He then saw Sandifer running toward the field between two of the rides and Hollis began to run in towards that direction. Hollis noted that as he was rounding a ride, he saw Gibson firing a pistol toward himself and Sandifer. He screamed out "Stop, police," but Gibson continued to run. Hollis stated that when Gibson fired the last shot that Hollis heard, he cleared the rides and came to an open area and fired at Gibson, but missed. Hollis also testified that Gibson ran to the brown Buick, dove into the vehicle through the window, crawled across the front seat of the car, and finally dove out of the driver's side window. He stated that when Gibson landed on the ground, he was in a crouched position and still had the gun in his hand. As Gibson pushed himself off of the ground, he pointed the gun directly at Hollis, who was coming around the side of the car. Hollis testified that it was at this time that he pointed his gun at Gibson and fired. Gibson immediately fell to the ground. Hollis further noted while handcuffing Gibson, he saw the weapon just on Gibson's side at the rear tire, probably an arm's reach from him.

¶ 6. Sergeant Milton Gaston of the Washington County Sheriff's Department testified that on the night of the incident, he recovered a .32 revolver at the convention center next to a brown Buick. Gaston turned this weapon over to Investigator Kelvin McKenzie. Bullet holes were found in a trailer behind the ferris wheel.

¶ 7. The next witness was for the defense. Joseph Gibson, the defendant's brother, maintained that his brother never pointed a gun at the crowd or at the deputies. He also stated that his brother put the gun down before he climbed into the passenger side. However, the gun was found on the driver's side, which is where Gibson exited the car.

¶ 8. Terrance Butts also testified that Gibson shot only into the air three or four times, never at the crowd.

¶ 9. Gibson testified last for the defense. He stated that he fired the gun up in the air about four or five times in an attempt to break up the fight. According to him, when he was shot by the deputies, he did not have the gun in his hand. He did not shoot toward the deputies at any time.

DISCUSSION OF THE ISSUES
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT DENIED GIBSON'S MOTION FOR A DIRECTED VERDICT AND WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
A. Weight of the Evidence

¶ 10. Gibson argues in his first assignment of error that the verdict of the jury was against the overwhelming weight of the evidence. Here he says that there was no credible evidence which would tend to show that he had shot at the crowd at the fair or the deputies and that the jury's verdict was for that reason against the overwhelming weight of the evidence.

¶ 11. This Court will reverse the jury's findings "`only where the evidence is such that reasonable and fair-minded jurors could only find the defendants not guilty.'" Jackson v. State, 689 So.2d 760, 766 (Miss.1997)(quoting Heidel v. State, 587 So.2d 835, 838 (Miss.1991)

). In determining "... whether or not a jury verdict is against the overwhelming weight of the evidence, `this Court must accept as true the evidence which supports the verdict and will reverse only when it is convinced that the circuit court has abused its discretion in failing to grant a new trial.'" Coleman v. State, 697 So.2d 777, 788 (Miss. 1997) (quoting Nicolaou v. State, 612 So.2d 1080, 1083 (Miss.1992)); Herring v. State, 691 So.2d 948, 957 (Miss.1997); Jackson, 689 So.2d at 766. "Only in those cases where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal." Pleasant v. State, 701 So.2d 799, 802 (Miss.1997); Herring, 691 So.2d at 957; Benson v. State, 551 So.2d 188, 193 (Miss.1989)(citing McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)).

B. Sufficiency of the Evidence

¶ 12. Gibson also contends that the trial court erred in ruling that the evidence was legally sufficient to support a conviction of aggravated assault and aggravated assault on a law enforcement officer and that he is entitled, as a matter of law, to a reversal. He argues that the evidence is legally insufficient to support a conviction of aggravated assault. "When reviewing the sufficiency of the evidence, this Court looks at the lower court's ruling `on the last occasion when the sufficiency of the evidence was challenged.'" Ballenger v. State, 667 So.2d 1242, 1252 (Miss. 1995), quoting Green v. State, 631 So.2d 167, 174 (Miss.1994)

. The last occasion upon which Gibson challenged the sufficiency of the evidence was in his Motion for JNOV. Therefore, this Court is to consider all of the evidence presented throughout the course of the trial. "All evidence and inferences derived therefrom, tending to support the verdict, must be accepted as true, while all evidence favoring the defendant must be disregarded." Ballenger, 667 So.2d at 1252. See Hart v. State, 637 So.2d 1329, 1340 (Miss.1994); Clemons v. State, 460 So.2d 835, 839 (Miss. 1984). "Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury." Wetz v. State, 503 So.2d 803, 808 (Miss.1987)....

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