Kirk v. State

• Decision Date: 05 February 2015
• Docket Number: No. 2013–KA–01742–SCT.,2013–KA–01742–SCT.
• Citation: 160 So.3d 685
• Parties: Marvin KIRK v. STATE of Mississippi.
• Court: Mississippi Supreme Court

160 So.3d 685

Marvin KIRK

v.STATE of Mississippi.

No. 2013–KA–01742–SCT.

Supreme Court of Mississippi.

Feb. 5, 2015.

Rehearing Denied April 23, 2015.

Phillip W. Broadhead, Office of State Public Defender by George T. Holmes, attorneys for appellant.

Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellee.

Before WALLER, C.J., KITCHENS and COLEMAN, JJ.

Opinion

KITCHENS, Justice, for the Court:

¶ 1. Marvin Kirk was tried and convicted of aggravated domestic violence in the Circuit Court of Madison County. He was sentenced as a Section 99–19–81 habitual offender to twenty years in the custody of the Mississippi Department of Corrections. The State alleged that Kirk twice had strangled his wife, Casey. At trial, witnesses testified that Casey had red marks on her neck shortly after the alleged assaults had occurred, and Casey testified that Kirk had strangled her. Kirk denied so doing. Finding Kirk's assignments of error to be without merit, we affirm his conviction and sentence.

STATEMENT OF THE FACTS

¶ 2. On Friday, January 25, 2013, Marvin Kirk, home from working offshore, woke around ten o'clock in the morning at his residence at 208 Waldrop Road in Madison County. Kirk testified that he went to a hardware store to purchase tools to repair a leaking faucet in the bath tub in the master bathroom. He testified that nothing occurred that day except “the usual being married.” Casey Kirk, Marvin's wife, who did not work outside the home, testified that she and the couple's two-year-old son Gabriel had spent the majority of the day at home watching cartoons, “until about 6:00 or so.” She testified that her husband took her keys, phone, and wallet away from her, because “[h]e said I was doing drugs and that I was wanting to go get drugs and that I was cheating on him” and that, generally, “[h]e was just in an ill mood, just wanting me to do whatever he wanted me to do and control me.” Casey testified that she did not use drugs on Thursday, January 24, 2013, or on the following weekend.

¶ 3. Casey testified that, at some point that Friday evening, Marvin began complaining that the house was dirty. When Marvin started complaining, the family was “sitting on the couch in the living room,” so Casey got up to wash dishes. She said, “And I'm washing dishes, and he kept yelling at me, and I got irritated because I've done everything he wants me to do.” Casey testified that, as the argument escalated, “[h]e started coming towards me.” Marvin allegedly kicked Casey, which resulting in her falling onto the refrigerator. At that point, Casey testified, Marvin grabbed her by the neck and proceeded to choke her in the presence of their son. She stated that she was not able to breathe. When Marvin released her, Casey “gasped for breath,” grabbed her son, and proceeded again to wash dishes “with Gabriel right beside me” in an effort to prevent Marvin from getting angrier. After completing the dishes, Casey and Gabriel returned to the sofa. Casey testified that Marvin “told me that my mouth was going to get me put in a shallow grave outside if I didn't shut up.” That night, Casey and Gabriel shared her bed.

¶ 4. The next morning, Saturday, January 26, 2013, Casey and Gabriel watched cartoons until Marvin got up, again around ten o'clock. Marvin had slept in his chair in the living room. Casey testified that, when Marvin got up to go to the bathroom, she rushed to Marvin's chair, where he had been sitting for two days, in an effort to find her phone and her keys. She located both her phone and her keys and, when Marvin returned from the bathroom, he began asking Casey questions regarding why she needed them. He threw her phone out the back door into the kudzu and proceeded to wrestle with Casey to get her keys back. Casey testified that, as they were wrestling, she informed Marvin that she needed to go to the hospital. Finally, Marvin “got the keys away from me and broke the lanyard. Whenever it broke the lanyard, it cut my hand.”

¶ 5. The melee continued, and “[h]e grabbed me, and he put me on the ground, and he choked me until where I couldn't see or breathe or anything.” This occurred between the kitchen and the living room, because “the living room has carpet, the kitchen has hard floors,” and Casey's “back was on the carpet, but [her] head was on the hardwood floor.” Marvin allegedly “choked [Casey] completely out,” meaning Casey “lost consciousness.” When she came to, Casey testified, she searched frantically for a cigarette. When she located one, she “lit it in the house, not thinking. And he got mad at me, and he tried to wrestle the cigarette away from he, and was trying to burn me with the cigarette.” According to Casey, Marvin succeeded in burning her with the cigarette.

¶ 6. Casey testified that, at that point, she was able to grab Gabriel and walk out the back door. In hopes the “across-the-street neighbors,” the Hobsons, were home, Casey fled there, but they were not home. Casey then returned to her driveway, “because I kept hearing car doors slamming” and she observed Marvin packing up the family car. He threatened to lock her out of the house, which he then agreed not to do. As he was walking to unlock the house door, Casey “put Gabriel down in the middle of the driveway” and “ran over there to try to get the car seat.” Marvin pushed her away. Casey then “got really scared again,” picked up Gabriel and ran back through the woods to her landlord's house.

¶ 7. Colita Ogletree, whom Casey had never met, was the wife of the Kirks' landlord, David Ogletree, a neighboring homeowner. Casey did not want her landlord “to see how crazy and messed up my family was because we were renting the house from them.” Nevertheless, because other neighbors, the Hobsons, were not home, Casey fled to the Ogletrees' house. Colita answered the door and Casey informed her that her husband had strangled her and that she needed to place a telephone call to 911. At trial, this recorded 911 call was played for the jury.

¶ 8. Marvin's testimony at trial consisted of a significantly different version of events. He denied yelling at Casey during the weekend in question. He denied keeping Casey's telephone or keys from her, testifying that she had three phones and her keys were kept in magnetic boxes under the cars' hoods. He denied burning or attempting to burn Casey with a lit cigarette. He testified that, on the weekend in question, Casey “was looking for a bag of crystal meth that she inadvertently folded up in a towel and dropped on the floor.” When Marvin informed Casey that he had flushed her methamphetamine, she began “digging through the house, just through everything, through stuff that you wouldn't look through generally if you were looking for something.”

¶ 9. Marvin testified that, when Casey realized that her methamphetamine was gone, she went on a tirade: “I'm talking about like, ‘You don't do nothing for this family, all you do is bitch.... All you do is gripe about what I don't do.’ ” He then collected his packed bags, his boots, his hard hat, and his life jacket and headed offshore. Marvin testified that, as he was packing the truck, Casey begged him to stay—in fact, he testified that Casey cut her thumb in an effort to wrest his keys from him as he was trying to leave. He denied that he ever had assaulted or choked his wife. He testified that the marks on Casey came from running though the woods to get to the Ogletrees' house. On cross examination, Marvin testified that no marks had been on Casey's neck when he left the house, and that he was unaware of how she had gotten the bruise on her arm or the cigarette burn. Marvin testified that he was pulled over by the police, who took him to the Ogletrees' house.

¶ 10. Colita Ogletree testified that when Casey arrived at her house, “[s]he was just very alarmed when she came in, and she showed me her forearm. It looked like she had a goose egg.” Also, Colita noticed that Casey's neck was red. She testified that “she just had kind of a goose egg on her bicep and some bruising, and her neck was red.”

¶ 11. Deputy Sheriff Tommy Strait, the officer who responded to the call from the Ogletrees' house, testified that he and Deputy Sheriff Brad Sullivan had received a call about a potential domestic-violence case on Waldrop Road involving a white Toyota Forerunner. According to Strait, on the way to Waldrop Road, “we came into contact with him, Marvin Kirk, and detained him at the time and went to where Casey Kirk was.” When asked about Casey's demeanor, Strait testified that;

She was scared and frantic and just really didn't know what to do because she was worried about Mr. Kirk coming back to where she was and getting her, as she said. I also noticed around her neck she had strangulation marks. She had several bruises upon her also.

Strait then photographed Casey's injuries and called an ambulance to take her to the hospital.

¶ 12. Deputy Sullivan testified that, when he observed the Toyota Forerunner, he detained Marvin, placed him, in handcuffs, into the back seat of a patrol car, and returned him to Waldrop Road. When the deputies arrived at the Ogletrees' residence, Strait and Sullivan left Marvin in the patrol car outside and went in to speak with Casey. Sullivan testified that when he noticed that Casey “had red marks on her neck that she was pointing out to Deputy Strait, and she had some red marks on her arms,” he returned outside and read to Marvin his Miranda¹ warnings, because “Mississippi state statute says domestic violence with strangulation is a felony domestic charge.”

¶ 13. On April 3, 2013, Marvin Kirk was indicted by a Madison County grand jury under Mississippi Code Section 97–3–7(4) for aggravated domestic violence. On July 26, 2013, the State moved to amend Kirk's indictment to charge him as an habitual offender under Mississippi Code Section 99–19–81. Kirk previously had received a 1998 conviction for grand larceny in Yazoo County, Mississippi, for...