Hurt v. State Of Miss.

• Decision Date: 20 May 2010
• Docket Number: No. 2008-KA-00424-COA.,2008-KA-00424-COA.
• Citation: 34 So.3d 1191
• Parties: Danny HURT, Appellant,v.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

34 So.3d 1191

Danny HURT, Appellant,v.STATE of Mississippi, Appellee.

No. 2008-KA-00424-COA.

Court of Appeals of Mississippi.

Sept. 15, 2009.

Rehearing Denied Feb. 23, 2010.

Certiorari Denied May 20, 2010.

[34 So.3d 1191 1192]

W. Daniel Hinchcliff, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before KING, C.J., BARNES and ISHEE, JJ.

ISHEE, J., for the Court.

¶ 1. A jury in the Circuit Court of Franklin County found Danny Hurt guilty of armed robbery. Hurt was sentenced to twenty-five years in the Mississippi Department of Corrections as a habitual offender, without eligibility for parole or probation. Hurt's sentence was also enhanced by Mississippi Code Annotated section 99-19-351(Rev.2007) because the victim of the armed robbery was a person over the age of sixty-five years. Hurt was ordered to pay restitution to the victim in the amount of $1,700 and all court costs, including attorney's fees. Aggrieved by the circuit court's ruling, Hurt appeals, alleging that the prosecutor's comments during trial regarding his post-arrest, pre- Miranda silence violated his Fifth Amendment

[34 So.3d 1191 1193]

rights and thereby denied him a fundamentally fair trial. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Seventy-nine-year-old Curtley Hayes was the victim of an armed robbery on April 25, 2007. Hayes routinely checked several oil wells in Franklin County in his work as an independent oilfield pumper. Hayes was in the process of checking an oil well when someone came up from behind, held a knife to his throat, and hit him on the back of the head. The attacker knocked Hayes to the ground and took all the cash from his wallet. The attacker then threw Hayes's cell phone into the woods, knocked off his glasses, and stole his truck. After the robbery, Hayes walked to a nearby home and contacted the Franklin County Sheriff's Department. When Sheriff James Newman arrived, Hayes described his attacker as about five-foot-nine and approximately 165 pounds. However, Hayes was unable to describe his attacker's face because his attacker's head and body were completely covered.

¶ 3. Sheriff Newman soon identified Hurt as a suspect in the armed robbery. Hayes knew Hurt as a result of Hurt's previous work at Cornwell Well Services (Cornwell) repairing oil wells. Hayes had visited Cornwell in the past and had coffee with Hurt on several occasions. Hayes testified at trial that everyone, including Hurt, was aware of Hayes daily routine of checking the oil wells. It was discovered that Hurt was aware of the exact route Hayes generally took to inspect the oil wells. Hayes also testified that it was well known by the workers at Cornwell that he carried cash with him on his daily route.

¶ 4. A warrant was issued for Hurt's arrest, and Sheriff Newman and Troy Travis of the Mississippi Highway Patrol traveled to New Albany to arrest him. Hurt was told at the time of the arrest that he was being charged with the armed robbery of Hayes that occurred on April 25, 2007. Sheriff Newman testified that Hurt never said a word after his arrest on the trip back until they stopped at the Brookhaven Highway Patrol substation. Sheriff Newman brought Hurt into the substation to interview him, and at that time, he first advised Hurt of his Miranda rights. According to Sheriff Newman, Hurt stated that he had about fifteen or twenty witnesses that would put him in New Albany at the time of the armed robbery. Hurt refused to give the names of any of the witnesses, and he refused to make any other statements. Sheriff Newman testified that at that point, Hurt became violent and said, “If you take these cuffs off of me, I'll whip you're a-.” The officers then transported Hurt to the Franklin County Jail. Upon arrival, Sheriff Newman attempted to talk to both Hurt and Bridget Jones, who had identified Hurt as a suspect. However, Hurt began screaming at Jones, calling her a “ratty whore” and asking “why did she rat [Hurt] out.”

¶ 5. Jones, an acquaintance of Hurt, who sold him illegal drugs every few days, testified against him at trial. Jones claimed that she was with Hurt at the time of the robbery. Jones testified that Hurt came to her home, and she agreed to ride with him to pick up some money from Hayes. Hurt parked his vehicle near a church and left her in the vehicle while he went to collect the money from Hayes. Jones testified that Hurt soon returned driving Hayes's truck. When he returned, he was in a hurry. He parked Hayes's truck, and he quickly jumped back in his own vehicle and drove away quickly. Jones claimed that Hurt later confessed to her that he had robbed Hayes. Possessing this information,

[34 So.3d 1191 1194]

Jones visited Hayes at his home and identified Hurt as the perpetrator of the armed robbery. Jones then relayed the information to Sheriff Newman. Jones was subsequently arrested for armed robbery, and she took the sheriff to the place where she had waited for Hurt. She said that Hurt passed her notes while she was in jail and told her to keep her mouth shut.

¶ 6. Arthur Ball also testified against Hurt. Ball was incarcerated in an adjoining cell to Hurt for a short period of time. Ball claimed that Hurt admitted to committing the armed robbery, and he said that he witnessed Hurt attempting to pass notes to Jones in jail.

¶ 7. During the State's opening statement and during its case-in-chief, the prosecutor commented on Hurt's post-arrest silence for most of the trip from New Albany to Franklin County. The prosecutor questioned why Hurt would remain silent about his alibi until they reached Brookhaven, preventing Sheriff Newman from interviewing potential alibi witnesses while he was still in New Albany. During Sheriff Newman's testimony, he repeatedly stated that Hurt made no comment during the trip from New Albany to the Brookhaven substation. Hurt also testified in his own defense at trial. During the cross-examination, the prosecutor questioned why Hurt did not ask Sheriff Newman any details about the crime but instead remained silent upon his arrest. Hurt responded that: “I am being transported. There's no need for conversation.” Again, in closing arguments, the prosecution referred to Hurt's initial silence for an almost three-hour trip after his arrest before he disclosed he had alibi witnesses.

¶ 8. Hurt was indicted on September 11, 2007, under Mississippi Code Annotated section 97-3-79 (Rev.2006) for armed robbery, enhanced by Mississippi Code Annotated section 99-19-351 because the victim was a person over the age of sixty-five. At trial, Hurt moved for a directed verdict of acquittal at the close of the State's case and again at the close of trial, which the circuit court denied Following the jury trial, Hurt was found guilty of armed robbery and was also found to be a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). Hurt was sentenced to twenty-five years in the Mississippi Department of Corrections, without eligibility for parole or probation. Hurt was also ordered to pay restitution to the victim in the amount of $1,700 and to pay all court costs, including attorney's fees.

DISCUSSION

Whether it was error to allow the prosecutor's comments at trial.

¶ 9. Hurt argues on appeal that his constitutional rights were violated by the prosecutor's repeated references to Hurt's post-arrest, pre- Miranda silence during the trial. Hurt contends that the case against him consisted primarily of unreliable testimony from an accomplice, Jones, and from Ball, an untrustworthy jailhouse snitch. Therefore, Hurt argues that the State improperly augmented its case with questions and comments regarding Hurt's silence after his arrest, using his silence as an implicit admission of guilt. During the State's opening statement, the prosecutor stated the following:

Now, Sheriff Newman is going to tell you about he and Mr. Travis went to New Albany to get Danny Hurt.... That they went up there, they picked him up, and on the ride home, Mr. Hurt said absolutely nothing to either one of them. Now, he's told what he's charged with, armed robbery of Curtley Hayes that occurred on April 25th, last year. They drive all the way from New Albany

[34 So.3d 1191 1195]

to Franklin County, and Mr. Hurt says absolutely nothing about it. They stopped in Brookhaven ... and at that time, Mr. Hurt says, “Oh, that's not-I couldn't have possibly been involved in that because I was in New Albany, Mississippi, on April the 25th.” Now they just left New Albany where the sheriff could have interviewed witnesses, gotten names and gone right then. He didn't say a word when the sheriff first put him in the car. He waits until he gets to Brookhaven....

Similarly, during the State's questioning of Sheriff Newman, the following exchange took place:

Q: Would you tell us what happened on [the trip from New Albany to Brookhaven]. What was said, what, if anything? What happened?

A: [Investigator Travis] and myself talked a little bit. Danny never said a word.

Q: Did he ask you anything about what he was being charged with or anything like that?

A: No, sir.

Q: No conversation at all?

A: He didn't to me.

Q: Okay. Did he say anything to you before he left the sheriff's department in Union County?

A: Didn't say nothing to me.

Q: He just got in the car?

A: That's right.

Q: And rode all the way back down here?

A: We stopped at Brookhaven substation first.

....

Q: Sheriff, you indicated that you and Investigator Travis had returned from New Albany. About how long did that trip take in your car back down to Brookhaven?

A: About three hours.

¶ 10. Hurt initially notes that it is improper for a prosecutor to comment on a defendant's post-arrest, post- Miranda silence, but he acknowledges that commenting on a defendant's post-arrest, pre- Miranda silence has not been held to be reversible error under Mississippi law. Hurt argues that such reasoning is logically inconsistent and that both pre- M...