Peel v. State, 031919 MSCA, 2017-KA-01051-COA

Docket Nº:2017-KA-01051-COA
Opinion Judge:GREENLEE, J.
Party Name:FABIYONNE PEEL A/K/A FABIYONNE K. PEEL APPELLANT v. STATE OF MISSISSIPPI APPELLEE
Attorney:ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: MICHAEL GUEST
Judge Panel:BARNES, C. J, CARLTON, PJ, TINDELL, LAWRENCE AND C WILSON, JJ, CONCUR J WILSON, PJ, CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION McDONALD, J, CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE WRITTEN OPINION WESTBROOKS, J, CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN ...
Case Date:March 19, 2019
Court:Court of Appeals of Mississippi
 
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FABIYONNE PEEL A/K/A FABIYONNE K. PEEL APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

No. 2017-KA-01051-COA

Court of Appeals of Mississippi

March 19, 2019

DATE OF JUDGMENT: 05/10/2017

MADISON COUNTY CIRCUIT COURT TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER GEORGE T. HOLMES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: MICHAEL GUEST

EN BANC.

GREENLEE, J.

¶1. The Madison County Circuit Court denied Fabiyonne Peel's motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Peel appeals. He asserts that: (1) the circuit court erred when it limited his cross-examination of Investigator Ready; (2) there was not sufficient evidence to convict Peel of motor-vehicle theft; (3) his motor-vehicle theft conviction violates the Double Jeopardy Clause; and (4) the guilty verdicts were contrary to the weight of the evidence. We affirm the circuit court's judgment.

FACTS AND PROCEDURAL HISTORY

¶2. After a report of a burglary with theft of property, Investigator Adrian Ready questioned a man named Pates. Pates had been caught on video using a stolen credit card at a Jackson-area store. Local people had reported the card stolen after their apartment was burglarized. In addition to the credit card, the burglars stole an iPad and a car.

¶3. During questioning, Pates implicated Fabiyonne Peel and three other men in the burglary and theft. Investigator Ready then questioned Pates's girlfriend, who confirmed seeing Peel drive a group to the stolen car and watching the group drive away. With that information, Investigator Ready obtained an arrest warrant for Peel. Upon entering Peel's home, he found Peel hiding under a pile of clothes near the bed. Investigator Ready also found the stolen iPad.

¶4. A grand jury indicted Peel for burglary of a dwelling, conspiracy to commit burglary of a dwelling, motor-vehicle theft, and conspiracy to commit motor-vehicle theft. A Madison County Circuit Court jury acquitted Peel of the charge for conspiracy to commit motor-vehicle theft; however, a mistrial was declared on the remaining counts because the jury could not reach a unanimous decision.

¶5. Several months later, Peel's second trial was held, and a jury found him guilty of burglary of a dwelling, conspiracy to commit burglary of a dwelling, and motor-vehicle theft. The circuit court sentenced Peel as a violent habitual offender to three concurrent terms of life imprisonment in the Mississippi Department of Corrections' custody.

¶6. Peel moved for a JNOV or, in the alternative, a new trial, which the circuit court denied. He appeals, alleging that: (1) the circuit court erred when it limited his cross- examination of Investigator Ready; (2) there was not sufficient evidence to convict Peel of motor-vehicle theft; (3) his motor-vehicle theft conviction violates the Double Jeopardy Clause; and (4) the guilty verdicts were contrary to the weight of the evidence.

DISCUSSION

I.

Did the circuit court err in limiting Peel's cross-examination of Investigator Ready?

¶7. Peel asserts that the circuit court erred when it did not allow him to cross-examine Investigator Ready regarding his interrogation of Peel. Therefore, he requests a new trial.

¶8. "Regarding the admission or exclusion of evidence, we employ an abuse-of-discretion standard of review." Robinson v. State, 248 So.3d 892, 896 (¶15) (Miss. Ct. App. 2018). "A defendant's failure to contemporaneously object to the admission of evidence at trial, as required by Mississippi Rule of Evidence 103, effectively waives the issue on appeal." Carter v. State, 227 So.3d 416, 421 (¶14) (Miss. Ct. App. 2017).

¶9. On direct examination of Ready, the State asked if Peel asserted an alibi: Q. And did the Defendant try to give you an alibi for that night?

A. He did.

Q. Where did he claim he was?

A. Said he was with his girlfriend . . . .

Q. For what period of time?

A. All night.

Q. In fact did he tell you all weekend?

A. All weekend.

Peel made no objection. Then, during cross-examination, Peel attempted to question Investigator Ready about the interrogation, and the circuit court limited his line of questioning after objection by the State because it was "hearsay being brought out by the Defendant." This decision was a proper application of our evidentiary law, as "[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fullilove v. State, 101 So.3d 669, 675 (¶19) (Miss. Ct. App. 2012). But Peel asserts that had the court allowed his questioning of Investigator Ready, the testimony would have shown that Peel told Investigator Ready about where he obtained the...

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