Max Power
Max Power is the Editor-in-Chief of Undoing Time. You can reach him at info@undoingtime.org or by calling 866-664-3052
In this Mississippi Criminal Caselaw Roundup we’ll be discussing the latest developments in Mississippi criminal law, criminal appeals, and post-conviction relief.
Cases we’ll cover include first degree murder, possession of a firearm by a felon, tampering with physical evidence, jury instruction, plain error, merger of charges, voyeurism, sex offender, right to counsel, hybrid representation, pro se, accident defense, and more.
The Mississippi Criminal Caselaw Roundup is a blog summarizing the latest developments in criminal law, criminal appeals, and post-conviction relief in the State of Mississippi. Our sponsoring attorney will digest the latest reversed convictions throughout the Mississippi Court of Appeals and Mississippi Supreme Court.
This is a FREE service designed to give you the cutting edge of developments in Mississippi criminal law, appeals, and post-conviction relief.
MISSISSIPPI SUPREME COURT
CLICK TO READ Larry L. Stuart v. State of Mississippi, Docket # 2022-KA-00585-SCT
Larry Stuart was convicted of filming a person without her knowledge when she had
an expectation of privacy, a felony under Mississippi Code Section 97-29-63. He was
sentenced to serve five years, day for day, in the custody of the Mississippi Department of Corrections, and he was ordered to register as a sex offender.
In this case, Jane discovered disturbing videos on an electronic tablet in her home in May 2017. The videos showed her boyfriend, Stuart, inappropriately recording her 16-year-old daughter, Betsy, without her knowledge or consent. Jane recognized the underwear in the video as belonging to Betsy, and she found more of Betsy’s missing underwear in a locked closet. Stuart claimed he was trying to record Jane talking on the phone to her ex-boyfriend and did not intend to record Betsy.
Jane reported the incident to the Lamar County Sheriff’s Department, leading to Stuart’s indictment in November 2018 for violating Betsy’s expectation of privacy. Stuart was initially represented by the public defender’s office, with various attorneys assigned to his case. Due to conflicts, several attorneys withdrew, leading to delays.
Stuart’s trial was eventually set for May 19, 2022, but he expressed dissatisfaction with his attorney, leading to a series of changes in legal representation. Ultimately, Stuart decided to represent himself, and the trial proceeded as scheduled. Stuart was convicted and sentenced to five years in prison.
On appeal, Stuart argued that the trial court violated his right to counsel by forcing him to represent himself and that the court erred in denying his proposed accident jury instruction.
The Supreme Court rejected these arguments, ruling that Defendant had hybrid representation at trial due this standby appointed counsel, Mr. Whiteacre, being present the entire time. Hybrid representation is based on the Mississippi Constitution, which states “[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both[.]” Miss. Const. art. 3, § 26. Stuart took the role of “lead counsel” in his defense. He conducted voir dire, cross-examined witnesses, and conducted his own closing arguments. But Whitacre, as “second chair,” assisted Stuart throughout the trial process. At the trial court’s instruction, Whitacre was available “at Mr. Stuart’s request. However, much or little he and Mr. Stuart agree[d], Mr. Whitacre c[ould] participate[.]” Whitacre argued pretrial motions, acted on Stuart’s behalf to select a jury, and submitted jury instructions. Whitacre sat next to and was available to Stuart throughout the trial. Whitacre also prepared and filed post-trial motions on Stuart’s behalf.
Additionally, the Supreme Court held that the jury instruction concerning the defense of accident properly stated the law and that Defendant’s proposed jury instruction on the defense of accident was properly denied.
MISSISSIPPI COURT OF APPEALS
CLICK TO READ Kedrick Tevon Lee v. State of Mississippi, Docket # 2022-KA-00078-COA
Kedrick Tevon Lee was convicted of first-degree murder, two counts of felon in possession of a firearm, and one count of tampering with physical evidence. He was sentenced as a habitual offender to serve life in prison for first-degree murder, two ten-year terms in custody for possession, set to run consecutively to each other and the life term, and ten years in custody for tampering with evidence, set to run concurrently with the other three sentences, without eligibility for parole, probation, or early release.
Defendant was involved in an altercation with the decedent in a parking lot among a crowd of people and shot the decedent in the back multiple times. Defendant fled the scene on foot. Three days later, Defendant was interviewed by a detective from the Hattiesburg Police Department. After waiving Miranda rights, Defendant identified himself from the parking lot surveillance video footage and admitted that the two guns he used during the shooting were his and his deceased brother’s. He admitted that after fleeing on foot he was picked up by a friend and left both firearms in the friend’s car, and later discarded the sweatshirt he was wearing the night of the shooting. Neither of the guns nor the sweatshirt was everrecovered by authorities.
At trial, the court issued a jury instruction on the tampering with physical evidence charge that did not contain the statutory element that the evidence was disposed of “with intent to impair its use, verity or availability in the pending criminal investigation or prospective official proceeding.” Trial counsel did not object to the jury instruction.
The Court of Appeals merged the firearms offenses because under Mississippi Supreme Court precedent, simultaneous possession of multiple firearms generally constitutes only one offense under Section 97-37-5(1) unless there is evidence that the weapons were stored in different places or acquired at different times.
The Court of Appeals affirmed the convictions for first-degree murder, merged the two counts of felon in possession of a firearm and remanded for resentencing on the one count, and reversed and remanded for a new trial on the charge of tampering with physical evidence. The Court found that the jury instruction on the tampering charge was erroneous because failure to instruct the jury on the essential elements of crime is plain error for which no objection is needed.
Reversed in part, affirmed in part.
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