David Lee Hayes v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01131-COA
DAVID LEE HAYES
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
03/28/2000
HON. ELZY JONATHAN SMITH JR.
BOLIVAR COUNTY CIRCUIT COURT
RAYMOND L. WONG
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
LAURENCE Y. MELLEN
BRENDA MITCHELL
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
GLENN ROSSI
CRIMINAL - FELONY
ESCAPE: SENTENCED TO SERVE A TERM OF 5 YEARS
IN THE MDOC; SENTENCE NOT TO BE REDUCED OR
SUSPENDED NOR SHALL THE DEFENDANT BE
ELIGIBLE FOR PAROLE OR PROBATION.
AFFIRMED - 12/11/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
1/3/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. David Lee Hayes was convicted of one count of felony escape. On appeal he argues that hearsay
testimony was improperly allowed, and that there was insufficient evidence or at least that the verdict was
against the overwhelming weight of the evidence. We disagree and affirm.
STATEMENT OF FACTS
¶2. David Lee Hayes escaped from the Bolivar County correctional facility on May 4, 1999. He had
removed a portion of the ceiling in his cell, crawled through the attic, and removed a vent covering at one
end of the jail. Hayes was later apprehended by authorities in Ohio and was returned to Bolivar County
about three weeks later.
¶3. The indictment for felony escape required that the State show that Hayes "was in lawful custody
[pursuant] to lawful arrest and process issued under . . . the laws of the State of Mississippi by the
Municipal Court of Cleveland, Bolivar County, MS having been arrested pursuant to a warrant issued by
said Court on a charge of capital rape . . . ."
¶4. Hayes was convicted after a one-day trial. His appeal was deflected to this Court.
DISCUSSION
1. Failure to Make a Contemporaneous Objection
¶5. Officer Murray Roark of the Bolivar County Sheriff's Department testified that a felony warrant had
been issued by the Cleveland Municipal Court for Hayes' arrest. The State had charged and therefore
needed to prove that Hayes was legally incarcerated under an arrest warrant when he escaped. Hayes
argues that Roark's testimony about the warrant was hearsay. We will under the next issue discuss whether
the witness had any personal knowledge of the arrest warrant. For now, we will examine whether a proper
objection was made during the following sequence:
State: Investigator Roark, was the Defendant being held in custody on a warrant from the municipal
court on felony charges from the Cleveland Police Department at that time?
Roark: Yes.
Defense: Objection, your Honor, as to hearsay.
Court: Approach the bench.
¶6. Counsel approached the bench, an off-the-record discussion ensued, and questioning then resumed.
State: Mr. Roark, as an investigator for the Sheriff's Department, did you have any knowledge of
persons who were brought into the jail on arrest?
Roark: Yes, I do.
State: And as to David Hayes, do you have any personal knowledge of him having been arrested
prior to the time he escaped from the correctional facility?
Roark: Yes, I did.
State: And can you tell us based on that, if you have any personal knowledge, whether or not he was
being held on a warrant for municipal court at that time?
Roark: Yes, he was.
Defense: We object, your honor. Discovery violation.
Court: Overruled.
Defense: May we approach the bench for a second, your Honor?
¶7. Counsel approached the bench, and the jury was in due course excused from the courtroom.
Court: All right, counsel.
Defense: Your Honor, at this time we would make a motion for discovery violation under 9.04. The
State has anticipated trying to use the affidavit and/or warrant concerning Mr. Hayes on a felony
charge. That is physical evidence.
Court: Do you mean the felony charge of escape?
Defense: No, sir, felony charge on which he was in custody for.
Court: Well, they haven't mentioned what that is.
...
Defense: If they are not going to put in the affidavit and the warrant - Court: You mean on the other charge?
Defense: Yes, sir.
Court: Well, I've already ruled on that. They are not going to.
Defense: Yes, sir. Okay. Then we withdraw our objections.
...
State: Mr. Roark, I believe I asked you if you had any personal knowledge whether this Defendant
was being held in custody on a warrant from the municipal court on felony charges.
Roark: Yes, I do.
State: And was he being held on felony charges?
Roark: Yes, he was.
¶8. There was no ruling on the record on Hayes' original hearsay objection. No request was made to
record the bench conference that occurred after the objection was made. "[I]t is the duty of the appellant to
see that the record of the trial proceedings wherein error is claim[ed] is brought before this Court."
McKnight v. State, 738 So. 2d 312, 317 (Miss. Ct. App. 1999). It would appear from the questions that
followed the unrecorded conference that the State had been told to lay a predicate for the witness's
personal knowledge of the warrant. After the State asked additional questions, again it asked about the
warrant. Hayes once more objected but did not again allege hearsay. Now a discovery violation was
claimed. No issue regarding discovery is made on appeal.
¶9. No ruling on the hearsay objection appears on the record. A party's failure to obtain a ruling on an
objection prevents our consideration of the alleged error. Taylor v. State, 795 So. 2d 512, 519 (Miss.
2001). What does appear implies that the court required the State to lay a better predicate concerning the
officer's personal knowledge of the warrant. Thus Hayes cannot argue that his first objection was
improperly overruled -- it may even have been sustained. Then later Hayes argued the different potential
defect of a discovery violation. "An objection on one specific ground waives all other grounds." Swington
v. State, 742 So. 2d 1106, 1110 (Miss. 1999). We find no overruled hearsay objection to the admission
of this evidence.
¶10. The effect of not objecting after an initial uncertain trial court ruling is shown in a precedent in which the
State attempted to introduce into evidence the crack cocaine purchased from the defendant. Graves v.
State, 767 So. 2d 1049, 1054 (Miss. Ct. App. 2000). The defendant objected, arguing that a proper
chain of custody had not been established. Id. The State informed the court that a previous witness had
testified as to a certain link in the chain. The trial court then admitted the crack cocaine as evidence without
objection from the defendant. This Court held that because the defendant "failed to voice a new or
continuing objection" that the defendant "fail[ed] to preserve his right to appeal this issue." Id. Similarly,
Hayes failed to inform the Court that he continued to find a hearsay violation after the State had asked a
question that appeared to be in response to the initial bench conference.
¶11. To replace the necessary objection at trial, Hayes argues that his raising this assignment of error in his
post-trial motion removes the procedural defect. However, even though "certain issues are required to be
raised in a motion for new trial, raising objections there which should have been made at trial has never
been thought to cure the failure to object at the proper time." Rodgers v. State, 777 So. 2d 673, 675
(Miss. Ct. App. 2000).
¶12. What Hayes had to acquire was a ruling on his hearsay objection. There is no record that the first
objection was overruled. Later it appeared he was satisfied with the State's success in removing any
hearsay problems with the testimony. No reversible error appears.
2. Plain error
¶13. Even if the objection based on hearsay was not properly presented and pursued, Hayes argues the
admission of the officer's testimony about the warrant was plain error. We first determine whether the
testimony was hearsay.
¶14. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." M.R.E. 801. Roark admitted on crossexamination that he had no part in the preparation of the warrant upon which Hayes was arrested, that he
did not take part in the investigation of the crime charged upon which the warrant was predicated, that he
did not book Hayes at the correctional facility on the charge, and that he did not see any documents from
the municipal court in relation to the charge upon which Hayes was arrested. Instead, he learned of the
existence of a warrant from investigators from the Cleveland Police Department. Quite clearly, Roark's
statement concerning the existence of the warrant was hearsay. He had no personal knowledge but knew
only what he had been told.
¶15. Hayes argues that admission of the testimony concerning the warrant is plain error which obviates the
necessity of a contemporaneous objection. If errors occur that affect substantial rights of a party, the Court
should consider them even though not brought to its attention though proper procedures at trial or on
appeal. M.R.E. 103(d).
¶16. The plain error rule does not lead to automatic removal of the procedural barriers. "Only an error so
fundamental that it generates a miscarriage of justice rises to the level of plain error . . . ." Morgan v. State,
793 So. 2d 615, 617 (Miss. 2001). "To determine if plain error has occurred, we look to whether the trial
court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has
prejudiced the outcome of the trial." Cox v. State, 793 So. 2d 591, 597 (Miss. 2001).
¶17. We cannot find a significant issue regarding whether Hayes was actually legally incarcerated at the time
of his escape. Had an objection been sustained to Roark's testimony about the warrant, it is reasonable to
assume the State could have readily acquired a witness from the nearby Cleveland municipal authorities to
testify and perhaps even present the warrant. Whether we are correct on that assumption or not, we cannot
find that this hearsay on the important but technical issue of whether Hayes was incarcerated as a result of
an arrest warrant prejudiced the outcome of the trial or affected any of Hayes' fundamental rights.
3. Directed Verdict and Motion for Judgment Notwithstanding the Verdict
¶18. Hayes argues the insufficiency of the evidence based on the absence of proof of the warrant. We have
already examined the issue as a procedural point. Now we examine it as a sufficiency of evidence matter.
¶19. "The standard of review for a denial of directed verdict and JNOV is identical." Williams v. State,
794 So. 2d 181, 184 (Miss. 2001). "When reviewing the sufficiency of the evidence, this Court looks to all
of the evidence before the jurors to determine whether a reasonable, hypothetical juror could find, beyond a
reasonable doubt, that the defendant is guilty." Williams, 794 So. 2d at 184. The indictment charging Hayes
with felony escape required the State to prove that Hayes was in the lawful custody of the Sheriff of Bolivar
County pursuant to a warrant issued by a municipal court judge and that he escaped from that custody.
Investigator Roark testified that Hayes was being held at the Bolivar County correctional facility on a
warrant from the municipal court on felony charges. Roark testified that Hayes exited his cell by removing a
portion of the ceiling, crawling through the attic, and removing a vent at one end of the building. He also
testified that Hayes did not have permission to leave his cell and that Hayes had not been released.
¶20. There was a multitude of other evidence proving Hayes' escape. Charles Anderson, chief deputy at the
Bolivar County Sheriff's Department, testified that he alerted other law enforcement agencies through a
national computer network that Hayes had escaped. Anderson testified that he was notified on either May
12th or 13th that Hayes had been apprehended in Ohio.
¶21. The central issue regarding sufficiency is the same point as we have already discussed. To rephrase for
this issue, Hayes argues that the only evidence of the existence of an arrest warrant that proves that he had
been properly incarcerated was hearsay. That may be, but the testimony about the warrant was admitted
without a hearsay objection being made. The testimony was hearsay, but it proved that there was a warrant.
By failing to point out a hearsay defect in the State's necessary evidence, a defendant does not create
reversible error based on the sufficiency of that evidence. The evidence was defective but the defect was
not pointed out to the court. We have found the shortcoming not to be fundamental error. Consequently,
this flawed but not unduly prejudicial evidence can be used to prove the element of lawful incarceration.
4. Overwhelming Weight of the Evidence
¶22. Hayes appears also to be arguing that he was entitled to a new trial. "As distinguished from a motion
for a judgment notwithstanding the verdict, a motion for new trial asks that the jury's guilty verdict be
vacated on grounds related to the weight, not the sufficiency, of the evidence presented at trial." Austin v.
State, 784 So. 2d 186, 196 (Miss. 2001). The Court is "to consider all evidence in the light most favorable
to the prosecution, accepting all credible evidence consistent with the verdict as true." Austin, 784 So. 2d at
196. "The Court "will not order a new trial unless convinced that the verdict is so contrary to the
overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable
injustice." Id.
¶23. Hayes' argument that the verdict was against the overwhelming weight of the evidence assumes that
Roark's hearsay statements concerning the municipal warrant should not be considered. For one more time,
we declare the contrary. We have already summarized the evidence, and find that the verdict is not contrary
to the overwhelming weight of this evidence.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF ESCAPE AND SENTENCE OF FIVE YEARS WITHOUT PAROLE OR
PROBATION IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. SENTENCE IMPOSED IN THIS CAUSE SHALL RUN
CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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