Tate v. State, 1999-KM-01325-SCT.

• Decision Date: 03 May 2001
• Docket Number: No. 1999-KM-01325-SCT.,1999-KM-01325-SCT.
• Citation: 784 So.2d 208
• Parties: Roy A. TATE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

784 So.2d 208

Roy A. TATE v. STATE of Mississippi.

No. 1999-KM-01325-SCT.

Supreme Court of Mississippi.

May 3, 2001.

Ross R. Barnett, Jr., Jackson, Attorney for Appellant.

Office of the Attorney General, by Billy L. Gore, Attorney for Appellee.

EN BANC.

MILLS, J., for the Court:

INTRODUCTION

¶ 1. Roy A. Tate appeals his conviction for simple assault in the Sunflower County Circuit Court.

STATEMENT OF THE CASE

¶ 2. Roy A. Tate, an 81-year-old resident of Huntsville, Alabama, owns twenty catfish ponds in Sunflower County, Mississippi. Tate visited Sunflower County on June 8, 1998, and learned that folks had been fishing in his ponds without permission. Tate and his friend Harry Trammel traveled to the ponds after Tate learned of the poachers. Tate found nearly 100 people fishing in his ponds. He was irritated. He worked his way down the pond levee and approached the various groups of fishers. He notified them that they were trespassing on his ponds and ordered them to return the fish that they had caught and leave. Everyone Tate approached complied with his orders until he reached Velton Townsend. Townsend was fishing with his fifteen-year-old son, Leon Wright, and Carl Petty, Wright's uncle. The subsequent events involving Tate and the Townsend party are the subject of this case.

¶ 3. It is undisputed that Tate confronted Townsend regarding his activity at the ponds. Tate brandished a .38 caliber pistol at some point in the confrontation, initiated physical contact with Townsend by placing his hand on him, and ordered him to return the fish he and his party had caught. The specifics of this encounter, however, are disputed. ¶ 4. Townsend testified that he was fishing on these ponds because he had heard they were open to the general public due to an alleged foreclosure. Townsend saw Tate talking with other groups of fishers before Tate approached him. Townsend testified that Tate immediately began cursing at him and stated that the fish Townsend had caught belonged to Tate. Townsend testified that he was simply trying to figure out what was going on when Tate retrieved a firearm from his truck, shoved him against Townsend's vehicle, and choked him with one hand while he pointed the gun at his head. Townsend alleged that Tate used a racial slur towards him during this confrontation. He testified that he was not frightened when Tate pointed the firearm at him. Townsend's son, with Trammel's assistance, retrieved the fish from Townsend's truck and placed them back in the pond. Leon Wright's testimony regarding this confrontation substantiated that of his father.

¶ 5. Tate disputed Townsend's testimony. Tate alleged that he asked Townsend to return the fish and leave several times, and only after the Townsend party did not honor these requests did he reach into the cab of his truck and retrieve his weapon. He admitted placing his hand on Townsend, but he testified that he never choked him. Rather, he put his hand on Townsend's upper chest—never around his throat. He explained that he did this to put Townsend off balance so that Townsend could not grab the firearm from his hand. Townsend was younger and more powerful than him, and, as owner of the property, Tate was outnumbered at the time by poachers. Tate's experience in using firearms is well-documented. He is a 23-year veteran of the U.S. Army. He served in World War II and the Korean War, and has earned a Silver Star, a Purple Heart, and four Bronze Stars. Tate testified that his army training taught him to knock a larger opponent off balance when using a gun in close proximity to protect himself and to prevent his opponent from grabbing the gun. He testified that he did not use any racial slur against Townsend. Harry Trammel's testimony regarding this confrontation was substantially similar to Tate's. Tate and Trammel are white. Most of the poachers, though not all, were African American.

¶ 6. The State also offered proof in the trial court, without objection from Tate, that an additional altercation occurred with a Doris Stokes, another poacher found fishing at Tate's pond. Stokes testified that Tate assaulted her children, cursed her, grabbed her fishing pole, pointed his gun at her, and used a racial slur towards her. Tate denied most of these accusations but admitted pointing his firearm at her. He claims, however, that she swung her fishing pole at him, and he caught it in self-defense. Trammel testified that Stokes refused to leave when Tate asked her to do so. He further testified that Stokes cursed and threatened Tate and then swung her fishing pole at him. We are uncertain as to the relevancy of this testimony. These alleged actions may have consisted of separate bad acts and should have been, therefore, objectionable. On the other hand, they may have been relevant to portray the tensions prevalent at the levee and might be of some value to the defendant in arguing the extreme necessity of the actions taken.

¶ 7. Sunflower County Deputy Sheriff Harold Keys pulled Tate over approximately two to three hours after Tate left his catfish ponds. Keys testified that he had received a complaint that Tate had pulled a gun on some people earlier that day. Chief Deputy Robert Thompson arrived at the scene shortly after Keys stopped Tate. Both Keys and Thompson discussed the situation with Tate on the side of the road, and both deputies testified that Tate used a racial slur towards Keys, who is black, and that he used a racial slur when referring to the individuals who had been fishing in his ponds. Tate admitted to the deputies that he pulled his gun on the people at his catfish ponds. He was arrested, and his gun was confiscated. Tate denied using any racial slurs in the presence of the deputies.

¶ 8. Tate's first trial for simple assault was in the Sunflower County Justice Court on July 14, 1998. He was fined $173.50. Tate appealed to the Sunflower County Circuit Court. The circuit court held a trial de novo on June 4, 1999. The jury found him guilty of simple assault under Miss.Code Ann. § 97-3-7(1)(c) (Supp. 1999). The trial court ordered Tate to pay a fine of $500. Tate now appeals to this Court, raising the following assignments of error:

ISSUES

I. Because the verdict was against the overwhelming weight of the evidence, Tate's motion for a directed verdict, as well as his motions for J.N.O.V. and a new trial, should have been granted.

II. The state-sponsored testimony and the questions and arguments of the prosecution improperly called attention to defendant's race, leading to a jury verdict that was the product of bias and prejudice.

III. The trial judge abused her discretion in failing to rebuke the prosecution for its appeals to the race issue.

IV. The trial judge abused her discretion in failing to sustain defense objections to the irrelevant testimony of Deputy Keys.¹

LEGAL ANALYSIS

I. Was the verdict against the overwhelming weight of the evidence?

¶ 9. We have stated:

In passing upon a motion for directed verdict, all evidence introduced by the state is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict of guilty, the motion for a directed verdict must be overruled.

Hall v. State, 644 So.2d 1223, 1228 (Miss. 1994). Motions for J.N.O.V. are reviewed in the same manner. Henson v. Roberts, 679 So.2d 1041, 1045 (Miss.1996). A trial court's denial of a motion for a new trial will be reversed only when an abuse of discretion has occurred. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999).

¶ 10. Miss.Code Ann. § 97-3-7(1)(c), the statute under which Tate was convicted, provides that:

A person is guilty of simple assault if he... attempts by physical menace to put another in fear of imminent serious bodily harm; and, upon conviction, he shall be punished by a fine of not more than Five Hundred Dollars ($500.00) or by imprisonment in the county jail for not more than six (6) months, or both.

¶ 11. A landowner may use such force as is reasonably necessary to protect his property or evict trespassers from his property. Higgenbotham v. State, 237 Miss. 841, 846, 116 So.2d 407, 409 (1959). The jury was instructed to find Tate not guilty of simple assault if it found that he used such force as was reasonably necessary to (1) prevent Townsend from removing the fish from his property; or (2) remove the trespassing Townsend from his property. The jury convicted Tate, and thus obviously found that he used unreasonable force in regaining possession of his fish and evicting Townsend from his property.

¶ 12. Tate argues that the force he used during his confrontation with Townsend was reasonably necessary. He states that he is well-trained in the use of firearms as a result of his training and experience in the military. Thus, he asserts he used his gun in a careful and skillful manner. Tate notes that he neither fired the weapon nor struck Townsend with it. He further asserts that his actions were reasonable since he was outnumbered by poachers at the catfish ponds and was much older and weaker than Townsend.

¶ 13. Tate also testified that over the years he has been victimized by people fishing in his ponds without permission. Tate has never recovered any of his fish, and no one has ever been prosecuted for stealing his fish, notwithstanding the fact that he has reported these incidents several times to local law enforcement. Tate argues that he had no choice but to take the action he took if he wanted to avoid losing the fish Townsend and his party had caught.

¶ 14. The State agrees that the issue in the present case is whether or not Tate used reasonable force to recover his fish and evict the trespassing Townsend from his property. The State asserts, however, that this issue was for the jury to decide and argues that there is sufficient evidence in the record to support the jury's finding that Tate used more force than was...