McKee v. State

• Decision Date: 26 April 2001
• Docket Number: No. 1999-KA-00676-SCT.,1999-KA-00676-SCT.
• Citation: 791 So.2d 804
• Parties: Mark McKEE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

791 So.2d 804

Mark McKEE v. STATE of Mississippi.

No. 1999-KA-00676-SCT.

Supreme Court of Mississippi.

April 26, 2001.

Rehearing Denied August 23, 2001.

Dan W. Duggan, Jr., Brandon, for Appellant.

Office of the Attorney General by Jean Smith Vaughan, for Appellee.

EN BANC.

SMITH, Justice, for the Court:

¶ 1. Mark McKee was tried for and convicted of robbery. He appeals to this Court where we are asked to determine whether the verdict was against the weight of the evidence, whether he was entitled to a lesser-included offense instruction, and whether the trial court erred when it allowed prior bad act evidence to be admitted into evidence. We find no merit to any of these issues and therefore affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. On the night of March 10, 1998, Linda Pelly (hereinafter Victim) was shopping at Albertson's grocery store in Brandon. As she was putting her groceries into her car, a man approached her, stole her purse, and fled. At trial, the Victim described the chain of events in the following manner:

And I had seen a person, the car next to me, seen a person around the car and kind of stop at the trunk. And I thought, well, he needed to get something out of the trunk. And then when he came on around and came up between the cars, then that's when I got very uncomfortable. And I decided this is not right. And about that time, he bumped into me and snatched my purse and ran.

¶ 3. The Victim did not see the man's face and could only identify him as a black male wearing a stocking cap on his head and a floppy canvas coat. No weapon was used during the commission of the theft. The Victim testified that she became "uncomfortable," "frightened" and "afraid" as the man approached her prior to taking her purse.

¶ 4. The Rankin County Sheriff's Department responded to the incident and, through its investigation, developed McKee as a suspect in the theft. On March 11, 1998, the day after the theft, detectives Doug Holloway and Hulon Craft arrested McKee at his residence. McKee was then transported to the Rankin County Sheriff's Department. Upon arrival at the Sheriff's Department, detectives Craft and William Dodd mirandized McKee, who then informed them that he would not speak to them and would only speak to detective Holloway. McKee also signed a waiver of rights form. Holloway testified that he and McKee spoke alone, during which conversation McKee admitted that "he ran up behind the lady, grabbed her purse, ran back to a car that was waiting. They then left the area. And along the way, they just threw out the contents and the purse at various locations." According to Holloway, after McKee's initial confession, he then repeated this confession to all three detectives.¹ Dodd and Craft confirmed this, testifying that after speaking alone with Holloway, McKee confessed to the theft in the presence of all three detectives. Dodd testified that McKee also admitted wearing the clothes which the Victim described as being worn by the thief. Holloway testified about having seen a jacket fitting the description of that worn by the thief in McKee's home, and McKee testified that his mother owned a similar jacket. At trial, Craft testified that during the confession to the three detectives, McKee stated that he needed help because he was still using crack cocaine. Counsel for McKee objected and moved for a mistrial based on this statement, but the objection and mistrial motion were both overruled by the trial court. Dodd testified that in addition to confessing to the theft, McKee also offered to show the detectives where he dumped the Victim's purse. On March 12, 1998, detectives Dodd and Craft, accompanied by McKee, went out to a location on Grant's Ferry Road where McKee allegedly told them he had thrown the purse out. Dodd and Craft testified that they recovered the Victim's wallet and some papers belonging to her at that location, but failed to recover the purse itself. None of the items purportedly recovered on Grant's Ferry Road was introduced into evidence at trial.

¶ 5. During his testimony, McKee acknowledged having been mirandized and waving his rights, but he denied having made any confession on the day of his arrest. McKee's confession was not written, video taped or tape recorded. He also denied having told any detective that he threw the purse out on the side of the road, and he denied telling them where to look for it. McKee testified that he was working at the Rankin Medical Building on State Street in Jackson, Mississippi, at the time the theft occurred. However, he conceded that he could not produce any evidence to support this contention.

¶ 6. After all the evidence was presented, the jury found McKee guilty as charged in the indictment of strong arm robbery, in violation of Miss.Code Ann. § 97-3-73 (2000). McKee, sentenced as a habitual offender² pursuant to Miss.Code Ann. § 99-19-81 (2000), was ordered to serve fifteen (15) years in the custody of the Department of Corrections without possibility of probation, parole, or early release. McKee now appeals his conviction, raising the following assignment of errors:

ISSUES

I. THE TRIAL COURT ERRED BY FAILING TO GRANT APPELLANT'S MOTION FOR DIRECTED VERDICT AND MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT; AND THE VERDICT

WAS AGAINST THE WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED BY DENYING DEFENSE INSTRUCTION D-7, A LESSER INCLUDED OFFENSE INSTRUCTION.

III. THE TRIAL COURT ERRED BY IMPROPERLY ALLOWING THE INTRODUCTION OF PRIOR BAD ACTS EVIDENCE.

LEGAL ANALYSIS

I.

Was the verdict against the weight of the evidence?

¶ 7. We have stated:

In reviewing the question of whether a verdict is sufficiently supported by the evidence, the Supreme Court is required to look at the totality of the circumstances, and "[o]ur concern here is whether the evidence in the record is sufficient to sustain a finding adverse to [the defendant] on each element of the offense ... [W]ith respect to each element, of the offense, [we must] consider all of the evidence—not just the evidence which supports the case for the prosecution—in light most favorable to the verdict."

Yates v. State, 685 So.2d 715, 718 (Miss. 1996) (citing Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

¶ 8. "Every person who shall feloniously take the personal property of another, in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery." Miss.Code Ann. § 97-3-73 (2000). "Every person convicted of robbery shall be punished by imprisonment in the penitentiary for a term not more than fifteen years." Miss.Code Ann. § 97-3-75 (2000).

¶ 9. Through her testimony, the Victim stated that her purse was taken against her will. She also stated that she saw the thief approach her prior to the theft and that as he walked toward her, she became "uncomfortable," "frightened" and "afraid." Through this testimony, the State established the elements of robbery (i.e. the taking of one's personal property from her person and against her will, by putting such person in fear of some immediate injury to her person). McKee, however, argues that the State failed to prove the thief in this case gained possession of the Victim's purse by placing her in fear of immediate injury, and in doing so, failed to prove that element of robbery. He does not contest that the State proved the other elements of the offense. Notwithstanding his contention, McKee offered no evidence to prove that the Victim was not fearful when her purse was taken (i.e. evidence that the Victim never saw the thief, that her demeanor was relaxed and casual even after she saw the thief, etc.).

¶ 10. In support of his argument, McKee cites Clayton v. State, 759 So.2d 1169 (Miss.1999), wherein this Court overturned a defendant's conviction for robbery on the grounds that the State failed to prove that the defendant obtained the victim's property by placing her in immediate fear of personal injury. Clayton is factually distinguishable, and therefore inapplicable, to the case sub judice, because in Clayton, the thief approached the victim from behind, and the victim never saw the thief until after the theft had occurred. Consequently, the theft in Clayton was not "effectuated through fear of immediate injury to the victim." Id. at 1170-71.

¶ 11. McKee argues the verdict cannot stand because the Victim never saw the thief's face, and, therefore, could not positively say that he was indeed the thief. However, three detectives all testified that McKee admitted that he was the one who took the Victim's purse. In Young v. State, 352 So.2d 815 (Miss.1977), this Court affirmed an armed robbery conviction under similar circumstances. "Defendant correctly asserts that [the victim] did not positively identify the defendant and that her testimony, standing alone, would not be sufficient to convict; however, her testimony and defendant's confession is sufficient to support the verdict of the jury." Id. at 819.

¶ 12. McKee also asserts that the verdict is against the weight of the evidence because, notwithstanding the testimony of the three detectives to the contrary, McKee testified that he neither confessed to the crime, nor told the detectives that he had thrown the purse and its contents out on the side of the road. He points out that there is no written or taped proof of the alleged confession.

This Court has in numerous cases, too many to mention, said that when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony ... in a criminal prosecution the jury may accept the testimony of some witnesses and reject that of others, and that they may accept in part and reject in part the evidence on behalf of the state or on behalf of the accused. In other words, the credibility of witnesses is not for the reviewing court.

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