Moore v. State Of Miss.
| Decision Date | 04 November 2010 |
| Docket Number | NO. 2008-KA-00946-SCT,2008-KA-00946-SCT |
| Parties | KENNETH MOORE, JR. v. STATE OF MISSISSIPPI |
| Court | Mississippi Supreme Court |
ATTORNEY FOR APPELLEE: OFFICE OF ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD.
BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.
¶1. Kenneth Moore, Jr., was convicted of murder in the Circuit Court of Holmes County and sentenced to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The record does not indicate that Moore filed any post-trial motions, but he subsequently filed this appeal. We find that the issues raised by Moore are without merit and that his conviction should be affirmed.
¶2. On the night of August 19, 2007, Moore, Cordarius McChriston and numerous others gathered at a nightclub in Holmes County called Club Greasy. During the night, some minor verbal exchanges occurred between Moore and McChriston. The exchanges later escalated into a brief, physical fight outside the club, during which McChriston apparently got the best of Moore. Moore's brother, Latravis Skinner, broke up the fight and walked Moore a distance away from the area to try to calm him down. Junior Williams, who was the owner of Club Greasy, Corey Johnson, and some others accompanied the pair and attempted to calm Moore. After several minutes, Moore indicated that he was going to retrieve his baseball cap from the ground near where the fight occurred. Instead, Moore approached McChriston and started shooting at him. McChriston, who had been struck by a bullet to the chest, ran away as Moore gave chase and continued firing more shots. McChriston jumped a fence and ran to a neighboring club called the Safe House, where he collapsed. McChriston died from his injury.
¶3. After a jury trial in the Circuit Court of Holmes County, Moore was convicted of murder and sentenced to life imprisonment in the custody of the MDOC. The record in this matter does not indicate that any post-trial motions were filed. Moore then filed this appeal.
¶4. Moore asserts that the trial court abused its discretion in failing to grant the motion for continuance he requested on the date of trial. The State asserts that Moore is procedurallybarred from raising this issue because it was not raised in a motion for new trial. Alternatively, the State asserts that this issue is without merit. The State is correct.
¶5. In Metcalf v. State, 629 So. 2d 558 (Miss. 1993), this Court said:
On a motion for a new trial, certain errors must be brought to the attention of the trial judge so that he may have an opportunity to pass upon their validity before this Court is called upon to review them. Weyen v. Weyen, 165 Miss. 257, 139 So. 608 (1932). For example, the denial of a continuance in the trial court is not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground.
Metcalf, 620 So. 2d at 561-62.
¶6. The record does not indicate that Moore ever filed a motion for new trial. Therefore, this issue is procedurally barred. Notwithstanding the procedural bar, Moore's assertion is without merit. In Conway v. State, 915 So. 2d 521 (Miss. 2005), Conway's attorney filed a motion for continuance five days before trial on the grounds that he was unprepared for trial. This Court has said:
A circuit court judge has wide discretion in deciding whether to grant a continuance, and the denial of a motion for continuance will not be reversed absent a showing of substantial prejudice or manifest injustice. Simmons v. State, 805 So. 2d 452, 484 (¶ 72) (Miss. 2002). The moving party bears the burden of establishing prejudice. Wilson v. State, 755 So. 2d 2, 5 (¶ 11) (Miss. Ct. App. 1999). Conway offers no proof that his attorney at trial was unprepared or that he was prejudiced from his attorney's lack of preparation. This issue is without merit.
¶7. In the instant case, Moore's attorney moved for a continuance on the date of trial, saying that she was not prepared because she had been busy with other cases. The trial court denied the motion, noting that counsel had known of the trial setting for some four months. On appeal, Moore's counsel asserts that the trial court erred in not granting the continuancebecause the State had not yet propounded discovery. Specifically, counsel is referring to audiotapes of statements. The record shows that counsel was provided copies of the tapes and the accompanying transcript, but that the tapes were blank. However, counsel was not certain that the tapes were blank until she attempted to listen to the tapes enroute to the courthouse on the date of trial. Further, counsel did not notify the District Attorney's office of the problem until the date of trial. Moreover, the trial court recessed the proceeding so counsel could listen to the tape in question, Moore's statement, which was approximately fifteen minutes in length, and compare it to the previously provided transcript. Finally, counsel was given an opportunity to cross-examine Holmes County Sheriff's Deputy Chief Roosevelt March regarding the content of the tape and the accompanying transcript.
¶8. We find that Moore has failed to establish that the trial court abused its discretion in denying the motion for continuance. Further, Moore has failed to establish any showing of substantial prejudice.
¶9. Moore asserts that the trial court abused its discretion in allowing an autopsy photograph of McChriston to be admitted for identification purposes.
¶10. In Noe v. State, 616 So. 2d 298 (Miss. 1993), this Court said:
It is well settled in this state that the admission of photographs is a matter left to the sound discretion of the trial judge and that his decision favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion.... "A review of our case law indicates that the discretion of the trial judge runs toward almost unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative value."... A photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary purpose.
Id. at 303 (citations omitted). Further, this Court has said that photographs have an evidentiary purpose "when they: (1) 'aid in describing the circumstances of the killing; (2) describe the location of the body and cause of death; (3) supplement or clarify witness testimony.'" Jordan v. State, 995 So. 2d 94, 110 (Miss. 2008).
¶11. In the instant case, the photograph depicts the head and neck area of McChriston and is neither gruesome nor inflammatory. Further, the photograph was introduced for identification purposes during the testimony of Dr. Steven Hayne. Accordingly, we find that this issue is without merit.
¶12. Moore asserts that the trial court should have sua sponte granted a mistrial because juror Sarah Wade was related to potential witness Dewan McGee and had traveled to the courthouse with him. Moore asserts that Wade did not acknowledge this during voir dire. However, Moore's assertion mischaracterizes what occurred. During voir dire by the State, the following exchange occurred:
¶13. Wade was never asked whether she was related to Magee. Further, Moore's counsel did not follow up on Wade's response during the State's voir dire that she knew Magee. More importantly, Moore's counsel did not object to Wade being seated on the jury. Duringthe State's case-in-chief, Moore's counsel then provided the trial court information that Wade and Magee had ridden to court together because Magee did not have transportation. The trial court then held a conference with Wade in which Wade reiterated that nobody had asked if she was related to Magee, but that she had informed the State that she knew him. Wade also explicitly stated that she had never discussed the case with Magee. Moore's counsel later informed the trial court that she had heard through a relative of Moore that Wade and another juror knew McChriston's family. The trial court ultimately removed Wade because of the possible appearance of impropriety of her riding with Magee. Moore's counsel did not move for a mistrial on this ground.
¶14. In Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 418-19 (Miss. 1993), this Court said:
Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 418-19 (Miss. 1993)....
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