James Harold Roper v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01791-COA
JAMES HAROLD ROPER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
9/7/2006
HON. KENNETH L. THOMAS
QUITMAN COUNTY CIRCUIT COURT
W. DANIEL HINCHCLIFF
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTION OF SEXUAL BATTERY AND
SENTENCED AS AN HABITUAL OFFENDER
TO SERVE THIRTY YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY FOR
PAROLE.
AFFIRMED: 1/08/2008
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
On September 7, 2006, James Roper was convicted of sexual battery in the Circuit Court of
Quitman County. He was sentenced as an habitual offender to thirty years in the custody of the
Mississippi Department of Corrections. Aggrieved, he appeals and alleges that the trial court erred
in the denial of his jury instruction. We find no error and affirm.
FACTS
¶2.
On November 3, 2003, D.W.1 went to a neighbor’s house while they were having a cookout
in Lambert, Mississippi. D.W., Roper, and several other guests were in attendance at the cookout.
At some point during the cookout, D.W. and Roper each left the cookout. D.W. stated that while
on the way home, Roper “snatched him up” and put him in his car and drove away. D.W. testified
that Roper took him to a church in Crowder, Mississippi. There, they exited the vehicle and Roper
instructed D.W. to remove his pants. D.W. refused and Roper then pulled D.W.’s pants down. At
that point, Roper disrobed himself and tried to put his “whatchacallit” in D.W.’s “booty.” Roper
then performed oral sex on D.W. After Roper had completed the act, he returned D.W. to Lambert
around 1:00 a.m. He dropped him off on the train tracks and threatened to kill D.W. if he told
anyone what happened.
¶3.
After being dropped off by Roper, two girls found D.W. walking alone down by the train
tracks. They testified that he was acting in a strange manner and even ended up biting one of them.
Shortly thereafter, D.W.’s uncle came by and took D.W. back to his mother’s house.
¶4.
It was not until nine months later that D.W. told his mother what happened on that night.
During the description of what happened, D.W. identified Roper by his “raggedy” teeth, scars on his
arms, and brown hair.
¶5.
At trial, Roper chose not to testify, but he instead put on three witnesses. One of these
witnesses was Jody Norwood who lived at the house where the cookout took place. Norwood
testified that Roper did not leave until an hour or so after D.W. Further, he testified that during the
search after D.W. was determined missing, Roper’s blue car was parked at Roper’s residence.
1
Due to the nature of the offense, the victim's real name is not being used for purposes of this
opinion.
2
¶6.
At the conclusion of testimony, Roper offered an alibi jury instruction, which was refused
by the trial court. After receiving the jury instructions, the jury found Roper guilty of sexual battery,
but not guilty of kidnapping. Roper then filed a motion for JNOV, alleging several errors, which the
trial court denied. Roper then perfected this appeal.
ANALYSIS
¶7.
Roper asserts that the trial court committed reversible error when it denied jury instruction
D-3. Prior to addressing the merits of Roper’s claim, we must first address the State’s argument that
the issue is waived.
¶8.
The State argues that the issued is waived for two reasons: (1) failure to object to the refusal
of the instruction at the trial court and (2) failure to raise the issue in Roper’s motion for JNOV. For
support, the State cites Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 752 (Miss. 1996). There,
the supreme court stated, “Regarding the instructions Gollott claims the trial court erroneously
refused, Gollott failed to object to the refusal of D-4. As a result, this [c]ourt is not bound to address
the alleged error on appeal.” Id. This statement taken alone would suggest that in order to preserve
a refused jury instruction for review, one must make an objection to the refusal.
¶9.
However, the supreme court clarified this statement in Duplantis v. State, 708 So. 2d 1327,
1339 (¶52) (Miss. 1998). It stated, “Although in dicta we indicated that we could impose a
procedural bar, we did not intend to overrule existing case law and therefore require litigants to
object to the denial of instructions that they themselves have offered.” Id. Further, prior precedent
states that an issue involving the denial of a requested jury instruction:
is procedurally preserved by the mere tendering of the instructions, suggesting that
they are correct and asking the Court to submit them to the jury. This in and of itself
affords counsel opposite fair notice of the party's position and the Court an
opportunity to pass upon the matter. When the instructions are refused, there is no
reason why we should thereafter require an objection to the refusal unless we are to
place a value upon redundancy and nonsense.
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Id. at 1340 (¶52) (quoting Carmichael v. Agur Realty Co., 574 So. 2d 603, 613 (Miss. 1990)). Here,
Roper preserved his allegation of error when he tendered the instruction and the trial court refused.
He did not need to object to the refusal to preserve the error.
¶10.
As to the State’s second allegation of waiver, it is completely baseless. Roper’s motion for
JNOV clearly states, “The [c]ourt erred in denying Defense Instruction, D-3, which presented the
Defense’s theory of the case.” Therefore, this issue has not been waived as alleged by the State and
we turn to its merits.
¶11.
Roper alleged that the trial court’s denial of his alibi instruction constituted reversible error.
The trial court offered two reasons for its denial: (1) there was no factual basis for the instruction,
and (2) it would allow Roper to essentially testify without being subject to cross-examination. The
specific jury instruction read:
“Alibi” means elsewhere or in another place. In this case, James Harold Roper is
asserting the defense of alibi by saying that he was at his home, at the time of the
alleged offense.
“Alibi” is a legal and proper defense in law. James Harold Roper is not required to
establish the truth of the alibi to your satisfaction, but if the lack of evidence in this
case raises in the minds of the jury a reasonable doubt as to whether the defendant
was present and committed the crime, then you must give the defendant the benefit
of any reasonable doubt and find the defendant not guilty.
¶12.
This Court views jury instructions as a whole, not individually. Wilson v. State, 592 So. 2d
993, 997 (Miss. 1991). “When a defendant asserts the defense of alibi, and presents testimony in
support of that defense, the defendant is entitled to a jury instruction focusing upon such a theory.”
Cochran v. State, 913 So. 2d 371, 375 (¶14) (Miss. Ct. App. 2005). However, the instructions must
be supported by the evidence. Id. “Where proof does not support an alibi defense, the instruction
should not be granted.” Id.
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¶13.
The first reason the trial court gave for the denial of the jury instruction was that an
evidentiary basis did not exist for the instruction. Specifically, the court said that there was no
evidentiary basis that Roper was home at the time of the offense. Roper counters by pointing to the
testimony of Norwood. Norwood testified during the defense’s case-in-chief that between 10:00
p.m. and 10:30 p.m. he assisted in searching for D.W. During the time that he was searching for
D.W., he saw Roper’s car at Roper’s residence. However, neither Norwood nor any other witness
stated that they saw Roper at home after he left the cookout.
¶14.
While Norwood’s testimony might suggest that Roper was at home during the time D.W. was
missing, it is mere conjecture. A similar situation occurred in Morris v. State, 777 So. 2d 16, 29
(¶63) (Miss. 2000). There, Wade, a witness for the defendant, stated that Morris had come over to
her house with her boyfriend at the time the murder took place. Id. at (¶61). However, she stated
that she never actually saw him when he supposedly came over. Id. At trial, Morris sought to
introduce an alibi jury instruction which was denied. On appeal, the supreme court took into account
that Wade never saw Morris on the night of the murder and therefore, there was “no evidence
whatsoever to warrant an alibi jury instruction.” Id. at (¶65).
¶15.
As in Morris, Roper requests an alibi instruction based on the testimony of a witness that
never actually saw him during the time that the crime took place. Therefore, as in Morris, we
likewise hold that there was no evidence to warrant an alibi jury instruction.
¶16.
The trial court’s second reason for the refusal of the alibi instruction was that the jury
instruction would essentially allow Roper to testify without taking the witness stand. The trial
court’s reasoning comes from the part of the instruction that reads, “Roper is asserting the defense
of alibi by saying that he was at his home, at the time of the alleged offense.” (Emphasis added).
Roper points out that this is the standard alibi jury instruction and that it has previously been
5
approved by this Court. However, we are still held to the maxim that the trial court may refuse a jury
instruction if it does not have a foundation in the evidence presented at trial. Ladnier v. State, 878
So. 2d 926, 931-32 (¶20) (Miss. 2004) (quoting Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)).
Here, no evidence was presented that Roper said anything. He maintained his constitutionally
protected right to remain silent throughout the trial.
¶17.
Roper points to his trial counsel’s request to amend the offending language of the instruction
by replacing “saying” with “asserting.” However, the trial court responded, “The defendant has not
taken the stand in this case. Therefore, he cannot, in the [c]ourt’s opinion, effectively assert, make
an assertion without testifying.” Essentially, the trial court stated that there was not an evidentiary
foundation that Roper asserted he was at home at the time of the incident. In fact, no evidence was
offered at trial that Roper made any such assertions, either through his choice to remain silent or
through the testimony of any other witnesses. Roper had his opportunity to present evidence and
testify during the trial. He is not allowed to present new evidence through jury instructions.
Therefore, the trial court was correct in its denial of this jury instruction.
¶18.
When a defendant’s jury instruction has an evidentiary basis, properly states the law, and is
the only instruction on his theory of the case, it would be reversible error to refuse it. However,
“[w]here proof does not support an alibi defense, the instruction should not be granted.” Cochran,
913 So. 2d at 375 (¶14). Here, there was no evidentiary basis presented at trial to support the
instruction. Therefore, the trial court did not commit error when it denied the alibi instruction, and
its judgment is affirmed.
¶19. THE JUDGMENT OF THE QUITMAN COUNTY CIRCUIT COURT OF
CONVICTION OF SEXUAL BATTERY AND SENTENCE AS AN HABITUAL OFFENDER
TO A TERM OF THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY OF PAROLE IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.
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LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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