Vernon Holder, III v. State of Mississippi
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IN THE COURT OF APPEALS 2/25/97
OF THE
STATE OF MISSISSIPPI
NO. 94-KA-01029 COA
VERNON HOLDER, III
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. MICHAEL RAY EUBANKS
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
DEBORAH HONES GAMBRELL
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: DOUGLASS, RICHARD,
NATURE OF THE CASE: FELONY: AGGRAVATED ASSAULT
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED AS HABITUAL
OFFENDER TO 20 YRS IN MDOC; SENTENCE SHALL NOT BE REDUCED OR
SUSPENDED, NOR SHALL DEFENDANT BE ELIGIBLE FOR PAROLE OR PROBATION;
DEFENDANT TO BE TREATED FOR ANY PSYCHOLOGICAL OR CHEMICAL
DEPENDENCY PROBLEMS.
BEFORE BRIDGES, C.J., KING, AND PAYNE, JJ.
KING, J., FOR THE COURT:
Holder was convicted of aggravated assault and sentenced as a habitual offender to serve twenty
years in the custody of the Mississippi Department of Corrections. Aggrieved, Holder appeals and
assigns for review the following issues:
I. Whether the trial court erred by failing to exclude the testimony of a witness because the witness
was coerced into testifying;
II. Whether the court erred when it failed to grant Holder’s motion for directed verdict because the
prosecution failed to prove each and every element of the aggravated assault offense;
III. Whether the court erred when it denied Holder’s request to submit to the jury an instruction
on the lesser included offense--simple assault.
We find no error and affirm the conviction and sentence.
FACTS
On or about January 1, 1994, Holder went to visit the home of his uncle, James Holder. James was
not present, but Holder’s uncle, Walter Holder and James’s girlfriend, Rhonda McLemore were
present along with McLemore’s minor children. When Holder arrived, one of the minor children was
attempting to shoot pool on a miniature pool table in the living room; however, the child’s younger
sibling frustrated his efforts by reaching for the pool stick. A tug-of-war over the pool stick arose
between the children, and Holder intervened. Holder spoke harshly to the older child, took the pool
stick, and gave it to the younger child.
McLemore, who was in the kitchen, heard Holder’s harsh words and entered the living room. When
McLemore entered the living room, Holder was shooting pool on the table. McLemore and Holder
quarreled over the harsh words spoken to her child, and the dispute evolved into a physical battle.
Evidence regarding who was the first aggressor conflicts. Holder testified that McLemore entered the
living room, grabbed the pool stick from him, and hit him. McLemore testified that she entered the
living room and asked Holder to leave, whereupon Holder hit her with the pool stick on her shoulder.
Walter Holder could not corroborate either Holder or McLemore’s testimony because he was in the
kitchen when the quarrel commenced and did not see the initial blow.
Both Holder and McLemore testified that McLemore threw an ashtray at Holder and retrieved a
knife from the kitchen during the dispute, but Walter intervened, and either Holder or Walter
removed the knife from McLemore’s possession. Thereafter, McLemore retreated into the bedroom
and locked the door, but Holder kicked the door to the bedroom in and followed McLemore into the
bedroom, where the quarrel continued. McLemore fled from the bedroom into the yard, and Holder
followed. The dispute continued, and during the course of the dispute, Holder pushed McLemore
into a fence. McLemore suffered a dislocated shoulder and sustained several bruises during the
altercation.
ANALYSIS OF THE ISSUES AND DISCUSSION OF LAW
I.
DID THE TRIAL COURT ERR IN ADMITTING THE TESTIMONY OF
MCLEMORE?
After McLemore had taken the stand, the district attorney asked McLemore for a narration of the
events which occurred during Holder’s visit. McLemore responded by stating that she could not and
left the witness stand. Thereafter, the district attorney requested a brief recess, which was granted by
the court. After the recess, McLemore returned to the witness stand, and defense counsel objected
and moved for a mistrial on the basis that McLemore could have been coerced or threatened into
testifying. In response to defense counsel’s objection and his motion, the state assured the court that
it merely asked McLemore to proceed with her testimony and advised her that she did not have to
fear the defendant. Defense counsel’s objection was overruled and motion for mistrial was then
denied.
Holder argues that McLemore’s testimony was coerced, and its admission into evidence deprived him
of due process. In support of this position, Holder cites the supreme court’s opinion in Harris v.
Canton Separate Public School Board, Nos. 90-CC-01288-SCT, 90-CC-01294-SCT (Miss. Apr. 21,
1994). Holder cites this case as holding that "an abuse of process such as coercion of a witness might
constitute a due process violation." However, on petition for rehearing, the opinion was withdrawn
and substituted.
In Harris, a middle school principal was terminated for assaulting and threatening a teacher. Prior to
the principal’s termination, a hearing was held at which the teacher was reluctant to testify. The
board’s attorney advised the teacher:
I want to make sure that you understand that your failure to cooperate with the Board in
finding out what happened could lead to your being terminated as teacher in the system.
That is not what the Board is interested in, that is not their choice at this point. But you
still don’t want to cooperate with us and tell us what happened?
Upon rehearing, the supreme court stated that it could be inferred from the teacher’s reluctance to
speak at the meeting and from her affidavit that she felt compelled to testify or lose her job.
However, the evidence of coercion was insufficient to overcome the Board’s presumption of
integrity; therefore, Harris’s due process rights were not violated.
Unlike the witness in Harris, McLemore was not threatened with the deprivation of an interest or
privilege--she would be jailed if she refused to testify. McLemore’s reluctance toward testifying
probably arose because she felt uneasy about testifying against the nephew of her boyfriend.
Therefore, we do not find that McLemore’s reluctance toward testifying resulted from coercion and
that Holder’s due process rights were violated. This assignment of error lacks merit.
II.
DID THE TRIAL COURT ERR IN FAILING TO GRANT HOLDER’S MOTION FOR
DIRECTED VERDICT BECAUSE THE PROSECUTION FAILED TO PROVE EACH
AND EVERY ELEMENT OF THE AGGRAVATED ASSAULT OFFENSE?
Holder assigned as error the trial court’s denial of his motion for a directed verdict; however, in the
body of his brief, Holder argues that a new trial should be ordered because the state failed to disclose
material evidence affecting McLemore’s credibility. Because Holder failed to argue the assignment
regarding the court’s denial of the motion for directed verdict, we assume that Holder has abandoned
the assignment. Therefore, we do not consider whether the trial court erred when it denied Holder’s
motion for directed verdict. Estes v. State, 533 So. 2d 437, 440 (Miss. 1988).
In addition, Holder did not assign as error the issue regarding the state’s failure to disclose material
evidence affecting McLemore’s credibility. Generally, an unassigned error may not be urged as
grounds for reversal. Read v. State, 430 So. 2d 832, 838 (Miss. 1983) (citation omitted). In spite of
the fact that Holder failed to assigned this issue, Holder did not identify specifically the information
the state failed to disclose. Moreover, the record is void of any evidence supporting Holder’s
contention that the state failed to disclose material evidence affecting McLemore’s credibility. A
party seeking reversal of the judgment of a trial court must present this Court with a record adequate
to show that an error of reversible proportions has been committed. Hansen v. State, 592 So. 2d 114,
127 (Miss. 1991) (citations omitted). Holder failed to satisfy this requirement; therefore, we are
unable to give credence to this assignment of error.
III.
DID THE TRIAL COURT ERR IN DENYING HOLDER’S REQUEST FOR AN
INSTRUCTION ON THE LESSER INCLUDED OFFENSE SIMPLE ASSAULT?
Holder argues that the trial court erred by denying the defense the following jury instruction, which
attempted to define the elements of simple assault:
The court instructs the jury that if you find the Defendant is guilty of an attempt to cause
or purposely, knowingly, or recklessly cause bodily injury to Rhonda McLemore or
negligently cause bodily injury to Rhonda McLemore with a deadly weapon or other
means likely to produce death or serious bodily harm or an attempt by physical means to
put Rhonda McLemore in fear of eminent serious bodily harm, then you shall find the
Defendant guilty of the lessor included offense of simple assault.
Holder emphasizes his prior comradeship with McLemore and argues that because he did not intend
to cause her serious bodily injury, the court should have granted the requested instruction. In support
of this argument, Holder cites Stubbs v. State, 441 So. 2d 1386, 1389 (Miss. 1983) (citation omitted)
. In Stubbs, the supreme court said that a simple assault instruction is proper when the element of
intent is absent from the assault. Holder and McLemore’s prior comradeship does not conclusively
establish Holder’s lack of intent to commit aggravated assault. Intent to cause serious bodily injury
may reasonably be inferred from the fact that Holder pursued and persisted in his attacks upon
McLemore even after she had retreated to the bedroom. Notwithstanding the fact that there was
sufficient evidence substantiating a finding that Holder intended to cause serious bodily injury, the
court instructed the jury as follows:
The court instructs the jury that the defendant Vernon Holder, III, has been charged with
the crime of aggravated assault, and therefore, if you believe from the evidence in this
case, beyond a reasonable doubt that the defendant, Vernon Holder, III, on or about the
1st day of January, 1994, in Lamar County, Mississippi, did wilfully, unlawfully,
feloniously, purposely, and knowingly commit an aggravated assault upon one Rhonda
McLemore, a human being by the following manner, by attempting to cause serious bodily
injury to Rhonda McLemore with a deadly weapon, to wit: A pool stick and/or a broom
handle, then you shall find the defendant Vernon Holder, III, guilty as charged of
aggravated assault.
If you find that the Defendant did not intend to cause serious bodily injury but did intend
to cause some lesser injury to Rhonda McLemore, then you shall find the defendant guilty
of the lesser included charge of simple assault.
A lesser included offense instruction was submitted to the jury when the court instructed the jury to
find Holder guilty of simple assault if it determined that Holder did not intend to cause McLemore
serious bodily injury. This assignment of error lacks merit.
In conclusion, we find that Holder’s appeal lacks merit and therefore, affirm the conviction and
sentence.
THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF CONVICTION
OF AGGRAVATED ASSAULT AND SENTENCE OF 20 YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS
AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO APPELLANT.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, PAYNE,
AND SOUTHWICK, JJ., CONCUR.
HERRING, J., NOT PARTICIPATING.
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