Talbert v. State
| Decision Date | 07 November 2013 |
| Docket Number | No. 2011–KA–01273–COA.,2011–KA–01273–COA. |
| Citation | 125 So.3d 66 |
| Parties | Benjamin TALBERT a/k/a Benjamin Lewis Talbert, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
OPINION TEXT STARTS HERE
Office of Indigent Appeals: W. Daniel Hinchcliff, Benjamin Talbert, appellant, pro se.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
EN BANC.
BARNES, J., for the Court:
¶ 1. A DeSoto County Circuit Court jury convicted Benjamin Talbert for the murder of Brendan Talley. Talbert was sentenced to a mandatory term of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The Mississippi Office of Indigent Appeals represents Talbert on appeal. The attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), stating that after diligently searching the history and record of Talbert's case, he found no arguable issues for appeal to present to this Court in good faith. Following the procedure set forth in Lindsey, Talbert filed a pro se brief on his own behalf. Citing several assignments of error, he appeals his conviction and sentence. Finding no error, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
¶ 2. Talbert dated Leanna Russell for approximately a year, until they parted company in June 2009 due to Talbert's substance-abuse problem. Talbert kept in contact with Russell, attempting to reconcile, and she remained friendly with Talbert, not wanting to hurt his feelings.
¶ 3. Two months after the breakup, Talbert went to Russell's apartment uninvited. Russell was there with her new boyfriend, Talley, and another friend, Corey Kessler. Talbert asked Russell if she was dating Talley. To spare Talbert's feelings, Russell claimed Talley was just a friend. Talbert was unconvinced and called Kessler later that evening, asking if Talley was Russell's boyfriend. Kessler denied that he was.
¶ 4. The following day, on August 8, 2009, an upset Talbert called Russell and stated he was going to commit suicide by shooting himself. She urged him not to harm himself. He called her again later that evening, wanting to see her, but she refused. Although Russell lied and said that she was not home, Talbert showed up armed at Russell's apartment shortly thereafter. Talley was in the apartment with Russell. After Talbert repeatedly beat on the door, Russell opened it. Talbert pushed his way inside, initially holding the pistol to his own head. Instead of shooting himself, however, Talbert shot Talley three times, killing him, before fleeing the scene.
¶ 5. In the hours after the shooting, the police talked with Talbert several times on the phone, and he eventually surrendered to police at his mother's residence. Searching Talbert, police recovered a .22–caliber revolver and a crack pipe from his pocket. The handgun had four spent rounds and one unspent round. After being advised of his rights, Talbert confessed to shooting Talley. He also stated that he had smoked crack before and after the shooting.
¶ 6. Following a jury trial, Talbert was convicted of murder and sentenced to life imprisonment in the custody of the MDOC, which sentence was to run consecutively to any another sentences. Talbert filed motions for a judgment notwithstanding the verdict and a new trial, which were denied.
¶ 7. On appeal, Talbert raises numerous assignments of error. For clarity, we have consolidated some of the issues in our discussion. After reviewing the issues cited by Talbert, we find no error exists and affirm the conviction and sentence.
ANALYSIS
¶ 8. Talbert filed a motion to suppress his taped statement given to police, claiming that he was under the influence of intoxicants at the time and, therefore, could not knowingly and voluntarily waive his rights. The circuit court overruled the motion on July 22, 2011, and the recorded statement was submitted into evidence. On appeal, Talbert reasserts his argument, noting the fact that he told police officers that he had been smoking crack, and a crack pipe was in his pocket when he was apprehended.
¶ 9. Whether a defendant intelligently, knowingly, and voluntarily waives his rights “is a factual question to be determined by a [circuit] court from the totality of the circumstances.” Taylor v. State, 94 So.3d 298, 307 (¶ 21) (Miss.Ct.App.2011) (citing Martin v. State, 854 So.2d 1004, 1007 (¶ 4) (Miss.2003)). “We will only reverse a circuit court's ‘determination of voluntariness if convinced that such a finding is manifestly wrong and/or against the overwhelming weight of the evidence.’ ” Id.
¶ 10. The police investigation report shows that Talbert admitted that he had smoked crack prior to the shooting. Officer Todd Samples testified that when he spoke to Talbert approximately an hour after the shooting, Talbert confessed that he had been smoking crack. However, the investigation report also notes that Talbert was cooperative with law enforcement and acknowledged that he understood his rights when giving his confession, which occurred approximately four hours after the shooting. At the hearing on the motion to suppress Talbert's statement, Officer Samples stated there was nothing to indicate that Talbert did not understand or comprehend what he was doing. Detective Danielle Beith also interviewed Talbert after the shooting, and she testified at the hearing that Talbert appeared to understand what he was saying when he gave his statement. She stated: Later, at trial, Officer Samples said that he would not interview a suspect who appeared to be under the influence and reiterated that Talbert did not appear to be under the influence of any drugs. Furthermore, the evidence of the crack pipe found in his pocket was not introduced at the motion hearing.
¶ 11. Based on the evidence presented, we find that there is sufficient evidence to support the circuit judge's finding that Talbert's waiver of his rights and his recorded statement were voluntarily and knowingly made.
¶ 12. Talbert claims Officer Samples gave perjured testimony when he stated at trial that he conducted a pat down of Talbert during the arrest and retrieved the murder weapon. Talbert insists that discovery documents show another officer performed the pat down and seized the gun. Talbert is referring to the investigative report completed by Officer Samples that stated: “Deputy Brett Grossman recovered a small [.]22 caliber derringer (revolver) in Talbert's right pocket[.]”
¶ 13. Talbert is correct that Officer Samples testified: “I patted him down for safety purposes and recovered a gun, a small .22[d]erringer.” The Mississippi Supreme Court has stated: “To be sure, where it may be established that a conviction has been obtained through the use of false evidence or perjured testimony, the accused's rights secured by the [D]ue [P]rocess [C]lause of the Fourteenth Amendment of the Constitution of the United States are implicated.” Pearson v. State, 428 So.2d 1361, 1363 (Miss.1983) (citing Mooney v. Holohan, 294 U.S. 103, 112–13, 55 S.Ct. 340, 79 L.Ed. 791 (1935)).
¶ 14. However, Talbert has not asserted that Officer Samples was not present when the weapon was recovered. The identification of which officer retrieved the murder weapon is immaterial to the facts of this case so long as Officer Samples was present when Talbert was searched and the gun retrieved from his person. There is nothing to show that the misstatement in Officer Samples's testimony was material to obtaining Talbert's murder conviction. Therefore, we find no merit to Talbert's claim.
¶ 15. Talbert contends that the circuit court erred by not allowing Dr. Criss Lott, a forensic psychologist, to testify on the defendant's behalf. Dr. Lott provided a report to the circuit court as to Talbert's competence to stand trial. Lott's testimony from a previous trial, which resulted in a hung jury, was proffered to the court. In denying the admission of Dr. Lott's testimony, the circuit judge concluded:
Basically, the testimony of Dr. Lott would show that this young man upon examination had an addiction to certain drugs, and whether or not expressed exactly[,] more or less a defense of diminished capacity, which, of course, is not legally recognized in the State of Mississippi. Mississippi recognizes the McNaughton [sic] rule,1 which provides that the only defense of that sort that's available to a person is the McNaughton [sic] test, which means a person cannot distinguish between right and wrong.
.... Certainly insanity is not being claimed in this case; therefore, the only thing to claim, according to Dr. Lott, is the diminished capacity.
....
And I'm ruling that Dr. Lott's testimony is not relative to the inquiry here before us today.
¶ 16. Talbert claims Dr. Lott's testimony regarding his long history of drug use and state of mind was relevant to negate Talbert's intent to kill and preserve a defense of manslaughter. We find that the circuit court correctly excluded this testimony as diminished capacity is not a defense in Mississippi. See Brown v. State, 981 So.2d 1007, 1015 (¶ 24) (Miss.Ct.App.2007) (citations omitted) ( “that ‘diminished capacity’ is not a recognized defense to a criminal charge in Mississippi”). Furthermore, “[i]t is well established that voluntary intoxication is not a defense in Mississippi.” Adams v. State, 62 So.3d 432, 441 (¶ 31) (Miss.Ct.App.2011) (citing Smith v. State, 445 So.2d 227, 230–31 (Miss.1984)). This issue is without merit.
To continue reading
Request your trial