Gilmore v. State

• Decision Date: 27 June 2013
• Docket Number: No. 2011–KA–01702–SCT.,2011–KA–01702–SCT.
• Citation: 119 So.3d 278
• Parties: Stanley GILMORE a/k/a Stanley Tremaine Gilmore a/k/a “Money” v. STATE of Mississippi.
• Court: Mississippi Supreme Court

119 So.3d 278

Stanley GILMORE a/k/a Stanley Tremaine Gilmore a/k/a “Money”

v.STATE of Mississippi.

No. 2011–KA–01702–SCT.

Supreme Court of Mississippi.

June 27, 2013.

Frank G. Vollor, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before WALLER, C.J., CHANDLER and KING, JJ.

CHANDLER, Justice, for the Court:

¶ 1. Stanley Gilmore was convicted of aggravated assault and possession of a weapon by a convicted felon on September 7, 2011, in the Circuit Court of Copiah County. Gilmore stipulated that he previously had been convicted of two separate felonies and that he had shot Delwin Smith four times in self-defense. Gilmore appealed his conviction, raising numerous errors. We reverse and remand for a new trial on both counts, because Gilmore was prejudiced by the introduction of inadmissible evidence of a prior conviction.

FACTS

¶ 2. In March of 2011, Delwin Smith and Ronnie Thompson worked together as promoters for a rap concert in Port Gibson, Mississippi, and agreed to split the proceeds from the concert evenly. During the concert, Stanley Gilmore (also known as “Money”) told Thompson that he saw Smith's brother pocketing ticket money from one of the doors. That night, Smith and Thompson had a dispute regarding the amount of money they had split. On March 28, 2011, Smith went to Thompson's house to discuss the matter. Smith and Thompson spoke outside the house at first. At some point, Gilmore came outside, Thompson went back inside, and Smith was shot four times and severely wounded.

¶ 3. Smith testified that he was not angry when he arrived at Thompson's house and only wanted to resolve the disagreement. He claimed that, after an initial friendly greeting, Gilmore began to “cop an attitude” and “wanted to get violent.” When Smith began to back away, Gilmore pulled a gun out of the waist of his pants and shot Smith below the heart as Smith turned to leave. Smith fell to the ground, and Gilmore shot him two more times in his arm and in the hip. Smith said “Money, man, you ain't got to shoot me.” Gilmore then shot him a fourth time in his side before fleeing. Thompson came outside, helped Smith off the ground and into a truck, and took him to the hospital. Although Smith was hit with only four bullets, he said he heard five shots and one of them missed, but not the first one. Smith maintained he did not take a gun to the house, made no threats toward Gilmore, and did not struggle with Gilmore over a gun.

¶ 4. Thompson testified that Smith was upset because, after the concert, Thompson told Smith he was not going to work with him anymore. When Smith came to the house, he was angry and said he was tired of hearing people “talking in the street” about his brother stealing money. He asked to talk to Gilmore, who came outside and told Smith what he had seen during the concert. Smith then threatened Gilmore, saying “I got wolves, I got killers, I got guns,” which Thompson understood to mean he had people who “would do something to people for him.” Thompson went inside to get another person named “Cool,” because he didn't know what was “getting ready to go off.” At that point, Thompson heard a couple of gunshots, looked out the front-door peep hole, and saw Smith on the ground. Thompson called 911 and took Smith to the hospital.

¶ 5. Gilmore testified that he was upstairs talking to a family member over Facebook when Thompson called him downstairs. He claimed he was not carrying a gun, and that Smith was in a rage when he went outside. After Thompson went back in the house, Gilmore testified that Smith ran toward him with a gun. Gilmore then grabbed Smith's hand, and a shot went off, hitting a blue and red Crown Victoria in the driveway. A tussle ensued, in which Smith and Gilmore wound up on the ground, and the gun fired several times as Gilmore wrestled to get the gun. Gilmore explained that he “grabbed [the gun] at an angle down pulling it towards out of [Smith's] hand” and Smith fell on top of him. Gilmore got control of the gun, got up off the ground, saw Smith get up, and then “squeeze[d] the gun, but I can't say I hit him.” Gilmore dropped the gun, ran down the street and called a friend who took him to Vicksburg. He fled instead of going the police “because I was scared of what he was going to do to me,” and because Smith told him “that his people work on the force” in Port Gibson and “that he's paid those.” He believed Smith would somehow be able to use his influence to hurt him.

¶ 6. Freddie Yarbrough, a Claiborne County sheriff's deputy, testified that he investigated the scene the day of the shooting, and that he found no gun and saw no bullet holes in the Crown Victoria. Elbert Hyder, called by the State during rebuttal, testified that he drove up to the house during the incident and witnessed Gilmore holding a gun and backing away from the house, while Smith came around the back of the house with blood running down his back. Hyder did not hear any gunshots, and after pulling into the driveway to see if Gilmore was going to shoot Smith, he backed up and drove away, because he had children in the car with him.

¶ 7. Gilmore was convicted on both counts, and the trial court denied his motions for directed verdict and a new trial. Gilmore now raises the following errors: (1) that the verdict was against the overwhelming weight of the evidence, (2) that the trial judge erred in rejecting his requested lesser-included-offense instruction, (3) that the trial judge inadequately instructed the jury that the State had the burden of proving beyond a reasonable doubt that he did not act in self-defense, (4) that the trial judge erred in admitting evidence of a prior conviction of simple battery, and (5) that the State improperly presented evidence in its rebuttal case that it was required to present during its case-in-chief. Moreover, he argues that, cumulatively, these errors merit reversal, even if none merits reversal standing alone.

1. Whether the verdict was against the overwhelming weight of the evidence such that the trial court abused its discretion by denying Gilmore's motion for a new trial.

¶ 8. Smith argues the trial court should have granted his motion for a new trial, and that to uphold the verdicts would sanction an unconscionable injustice. Specifically, he claims the overwhelming weight of the evidence proved that Smith was the aggressor who threatened Gilmore with the gun, and that Gilmore acted in self-defense.

¶ 9. We review the denial of a motion for a new trial for abuse of discretion. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). We must view the evidence in the light most favorable to the verdict, and a new trial will be granted only in those “exceptional cases in which the evidence preponderates heavily against the verdict” and is “so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush v. State, 895 So.2d 836, 844 (Miss.2005) (quoting Amiker v. Drugs for Less, Inc., 796 So.2d 942, 947 (Miss.2000)). The evidence supporting the verdict must be extremely weak, tenuous, or doubtful for us to award a new trial. Dilworth v. State, 909 So.2d 731, 737 (Miss.2005). The “jury is the sole judge of the weight of the evidence and the credibility of the witnesses,” and it may choose to believe one witness over another. Ewing v. State, 45 So.3d 652, 655 (Miss.2010) (quoting Mohr v. State, 584 So.2d 426, 431 (Miss.1991)).

¶ 10. A person who “attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm” is guilty of aggravated assault. Miss.Code Ann. § 97–3–7(2)(a)(ii) (Rev.2006). Because Gilmore stipulated that he had caused bodily injury to Smith by shooting him four times, the State had to prove only that Gilmore “purposely or knowingly” shot Smith, and not in self-defense. The State provided ample evidence, primarily Smith's detailed account, for a reasonable jury to believe that Gilmore purposely and knowingly shot Smith, that Gilmore was the aggressor, and that he did not act in self-defense. The jury, being the sole judge of witness credibility, was entitled to believe Smith's story over Gilmore's and Thompson's stories. Further, certain facts in Gilmore's testimony were contradicted by both Officer Yarbrough and Elbert Hyder, such as that the first shot hit a parked car in the driveway, that Gilmore dropped the gun at the scene, and the description of the clothes Gilmore was wearing. Just because the jury chose to believe Smith over Gilmore does not mean the verdict was based on extremely weak or tenuous evidence, and Gilmore's evidence did not preponderate heavily against the verdict. Gilmore is not entitled to a new trial on aggravated assault.

¶ 11. Under our felony possession statute, a convicted felon is prohibited from possessing “any firearm.” Miss.Code Ann. § 97–37–5 (Rev.2006). Because Gilmore stipulated that he was a convicted felon who was not able to possess a firearm lawfully, the State needed only to prove that Gilmore had “willfully possessed a firearm.” Jones v. State, 920 So.2d 465, 473 (Miss.2006). Again, this was a fact question that the jury was entitled to decide in favor of the State. Smith testified that Gilmore had a gun on his person when he came outside, and that Gilmore had produced the gun and shot him. Even though Gilmore testified that he wrestled the gun away from Smith only in self-defense, the jury heard enough evidence that it reasonably could find that Smith's story was true. In addition to Smith's testimony, Hyder testified that he saw Gilmore holding the gun. The jury's finding that Gilmore willfully possessed the firearm with which he shot Smith was not based on extremely weak or tenuous evidence, and we will not disturb that finding now. Gilmore's claim in this issue is without merit.

2. Whether the trial court erred in...