Anthony Roberson v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00874-COA
ANTHONY ROBERSON
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
APPELLANT
APPELLEE
05/31/2001
HON. ALBERT B. SMITH III
QUITMAN COUNTY CIRCUIT COURT
JOHNNIE E. WALLS, JR.
STEVEN W. PITTMAN
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY:
LAURENCE Y. MELLEN
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
MANSLAUGHTER: SENTENCED TO 20 YEARS; 4
YEARS SUSPENDED TO COMMENCE AFTER
DEFENDANT HAS SERVED 16 YEARS. SENTENCE
SHALL RUN CONSECUTIVELY TO ANY AND ALL
SENTENCES PREVIOUSLY IMPOSED.
DISPOSITION:
AFFIRMED - 9/3/2002
MOTION FOR REHEARING FILED: 9/17/2002
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE KING, P.J., LEE, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. Anthony Roberson was convicted of manslaughter in the Circuit Court of Quitman County and
sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections with
four years suspended. Aggrieved by his conviction and sentence, Roberson has appealed and raised the
following issues which we quote verbatim:
I. Did the trial court err by overruling the defendant's objection to the testimony of Officer
Sims, recounting an oral statement given to him by the defendant in response to questioning,
on the ground that there was no evidence of a valid waiver of rights by the defendant?
II. Did the trial court err by overruling the defendant's objection to the testimony of Teresa
Ruth, recounting an oral statement given to her by the defendant in response to questioning,
on the ground that there was no evidence of a valid waiver of rights by the defendant?
III. Did the trial court err by denying the defense requested jury instruction D-8, and by
granting the prosecution requested jury instruction number S-3?
IV. Did the trial court err by instructing the jury in accordance with both the defense
requested instruction number D-2 and with prosecution requested jury instruction number S2?
V. Did the trial court err by overruling the defendant's motion for directed verdict made at
the close of all the proof?
FACTS
¶2. On September 4, 2000, Charles Sims, Chief of Police for the City of Marks, Mississippi (also an
officer with the Town of Falcon Police Department), responded to a call from Ms. Shirley Cotton's trailer
home in Falcon, Mississippi regarding a shooting which occurred at approximately 10:39 p.m. Upon
arriving at the trailer, Officer Sims found "a body lying on the west side of the road next to a ditch." As the
officer shone his flashlight on the body, he recognized it as that of Tommy Cotton, Ms. Cotton's exhusband. He then contacted the Quitman County Sheriff's Department for an ambulance. Officer Sims saw
Anthony Roberson (Ms. Cotton's son) and his wife, Vivian Roberson, on the front porch of the trailer.
¶3. Prior to asking Roberson about the incident, Officer Sims orally advised Roberson of his Miranda
rights. Officer Sims testified that Roberson then told him that "he and his wife was [sic] in bed, and she
woke and told him that someone was in there. She heard some noises in the house. he got up - - he got up
and got his gun and started down the hall. He saw someone run out the door. He proceeded behind them
and he fired one shot in the air, and he said the second shot he leveled off and shot the person."
¶4. According to Roberson's wife, she put the gun under the steps when a crowd of people gathered. At
Officer Sims' request, Roberson retrieved and gave the gun to the officer. Officer Sims indicated that he
collected two shell casings. "One was located on the porch of Shirley Roberson's trailer. The other one on
the ground just east of the steps."
¶5. After gathering information at the scene, Officer Sims asked Roberson, his wife, and his mother to come
to the town hall and put their statements in writing. While at the town hall, Roberson executed a written
waiver of rights form, which was witnessed by Officer Sims. Roberson then gave a handwritten statement to
the officer.
¶6. The county coroner, Teresa Ruth, testified that upon examining the body, she noticed a bullet hole
located in the center of the deceased's back. As part of her investigation, she attempted to determine if
there was a trail of blood between the trailer and the spot where the body was located. She saw no such
blood trail. She stated that the deceased had a white bank envelope which contained a twenty dollar bill
clutched in his hand. Ruth asked Roberson to tell her what had happened. Ruth testified that while standing
on the porch of the trailer, Roberson stated that "he and Vanessa [sic] were waked [sic] up when they
heard somebody coming into the trailer. And they got up and the intruder ran. He went to get the gun out of
the cabinet. . . . He went on the porch with the gun and fired two shots."
¶7. Dr. Steven Hayne performed an autopsy on the body of Tommy Cotton. He testified that "there was an
entrance gunshot wound being located over the mid-part of the back 17½ inches below the top of the head,
one inch to the right or the mid-part of the back." Dr. Hayne determined that the cause of death was a
"gunshot wound to the back, distant or near contact and perforated."
¶8. At trial on May 1, 2001, Anthony Roberson was found guilty of manslaughter. He was sentenced to
serve a term of twenty years in the custody of the Mississippi Department of Corrections with four years
suspended.
¶9. On May 31, 2001, Roberson filed a motion for judgment notwithstanding the verdict or alternatively a
new trial. This motion was denied.
ISSUES AND ANALYSIS
I.
Did the trial court err by overruling the defendant's objection to the testimony of Officer
Sims, recounting an oral statement given to him by the defendant in response to questioning,
on the ground that there was no evidence of a valid waiver of rights by the defendant?
¶10. Roberson contends that the trial court erred by overruling his objection to Officer Sims' testimony.
Roberson claims Officer Sims recounted an oral statement given to him without evidence having been
presented of a valid waiver of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Roberson maintains that the State did not provide evidence of a waiver of his rights during the initial talk
with Officer Sims at the scene.
¶11. When the circuit court expressly or implicitly resolves the issue of admissibility of a confession against
a defendant, this Court's scope of review is confined to established limits. Greenlee v. State, 725 So. 2d
816 (¶21) (Miss. 1998). This Court has held that, "[w]here the trial court has overruled a motion to
suppress the confession of a defendant, this Court will reverse the trial court's decision only if the trial
court's ruling 'is manifestly in error or contrary to the overwhelming weight of the evidence.'" Id. (quoting
McGowan v. State, 706 So. 2d 231, 235 (Miss.1997)).
¶12. Officer Sims testified that he gave Roberson an oral Miranda warning prior to talking with him. Officer
Sims asked Roberson if he understood his rights to which the reply was affirmative. Officer Sims testified
that after the Miranda rights were given to Roberson, Roberson told him what happened.
¶13. The testimony during the suppression hearing reveals the following:
Q. Did he make a statement to you at the scene?
A. Yes, sir, he did.
Q. Prior to making that statement to you, what, if anything, did you say to him or do in regards to him
speaking to you?
A. I gave him his Miranda [r]ights verbally on the scene.
Q. All right. When you refer to Miranda [r]ights, is that the right to remain silent, the right to an
attorney, et cetera?
A. Yes, sir.
Q. Okay. And did he appear to understand those rights?
A. Yes, sir. I asked him did he understand them.
....
A. And he went on to tell me that he - - he and his wife was in bed, and she woke him and told him
that someone was in there. She heard some noises in the house. he got up - - he got up and someone
run out the door. He proceeded behind them and he fired one shot in the air, and he said the second
shot he leveled off and shot the person.
¶14. Officer Sims testified that at city hall he gave Roberson his Miranda rights a second time. At that time,
Roberson signed a Miranda waiver of rights form. The State did provide evidence through the officer's
testimony, which was uncontradicted, that Roberson was advised of his Miranda rights. Consequently, if
Roberson's attorney doubted whether the officer knew the Miranda warnings, he should have developed
this line of questioning on cross-examination. Dees v. State, 758 So. 2d 492 (¶7) (Miss. Ct. App. 2000).
¶15. The following testimony reveals Roberson's view regarding the Miranda warnings:
BY THE COURT: Mr. Walls, what is the objection if he gave him the Miranda rights to the
statement, both written and oral?
BY MR. WALLS: Your Honor, my client will testify that he told him that he had to sign it. He said he
didn't want to talk right then because he was upset and he presented it to him and said you had to sign
this and he signed it.
¶16. The mere fact that the Miranda warnings are given orally does not render them insufficient. The
Mississippi Supreme Court has said on this matter:
The appellant cites no authority, nor are we aware of any which requires that a waiver of an accused's
constitutional privileges against self-incrimination, right to counsel, etc. must be in writing and signed
by the accused before inculpatory statements made by him and otherwise freely and voluntarily given
are admissible in evidence. Such a statement is admissible provided the accused has been afforded the
protection of the Miranda warning and he thereafter knowingly and intelligently waives his rights and
freely and voluntarily makes the statement.
Davis v. State, 320 So. 2d 789, 790 (Miss. 1975).
The Mississippi Court of Appeals recently reiterated the adequacy of orally administering Miranda
warnings in stating "oral Miranda warnings and waivers are effective if proven to the satisfaction of the
trier of fact." The detailed findings of fact and conclusions of law provided by the trial court show that
the trier of fact in this case was satisfied with the effectiveness of the oral Miranda warnings.
Taylor v. State, 789 So. 2d 787 (¶26) (Miss. 2001) (citations omitted).
¶17. Roberson has not established that the trial court committed manifest error in allowing the confession
made to Officer Sims. Therefore, we find no error on this issue.
II.
Did the trial court err by overruling the defendant's objection to the testimony of Teresa
Ruth, recounting an oral statement given to her by the defendant in response to questioning,
on the ground that there was no evidence of a valid waiver of rights by the defendant?
¶18. Roberson contends that the trial court erred by allowing the testimony of the county coroner, Teresa
Ruth, who recounted an oral statement given to her by Roberson. As Roberson was standing on the porch,
she identified herself as the coroner and asked that he tell her what happened. Ms. Ruth testified:
A. I just asked him to tell me what had happened. And he told me that he and Vanessa [sic] were
waked up when they heard somebody coming into the trailer. And they got up and the intruder ran.
He went to get the gun out of the cabinet.
....
A. Anthony went to get the gun. And the intruder had run out. He went out on the porch with the gun
and fired two shots.
Q. Okay. What did he indicate to you that the person that he was shooting at was doing?
A. He indicated that he ran out of the trailer.
....
A. He stated he got his gun out of the cabinet, went on the porch and fired two shots at the person
running.
Roberson objected to the coroner's testimony, because "she's an arm of the State" and never advised him
of his rights.
¶19. When a defendant has once been advised of his Miranda rights, other officers who subsequently
discuss that charge with him are not required to advise him of his rights again. Taylor v. State, 789 So. 2d
787 (¶27) (Miss. 2001). The evidence in the record indicates that Roberson had been given his Miranda
rights verbally. We find that this issue is moot.
III.
Did the trial court err by denying the defense requested jury instruction D-8, and by
granting the prosecution requested jury instruction number S-3?
¶20. Roberson contends that the trial court erred by denying his jury instruction D-8(1) and by granting the
State's jury instruction S-3.(2) He asserts that he is entitled to a jury instruction "couched in language" from
his perspective which informs the jury that " if it finds the prosecution has failed to negate self-defense
beyond a reasonable doubt, then it is the duty of the jury to acquit the defendant."
¶21. The standard of review regarding challenges to jury instructions is set forth as follows:
Jury instructions are to be read together and taken as a whole with no one instruction taken out of
context. A defendant is entitled to have jury instructions given which present his theory of the case,
however, this entitlement is limited in that the court may refuse an instruction which incorrectly states
the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.
Even though based on meager evidence and highly unlikely, a defendant is entitled to have every legal
defense he asserts to be submitted as a factual issue for determination by the jury under proper
instruction of the court. Where a defendant's proffered instruction has an evidentiary basis, properly
states the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes
reversible error.
Humphrey v. State, 759 So. 2d 368 (¶33) (Miss. 2000) (citations omitted).
¶22. In his brief, Roberson indicates that the jury was not fully and accurately informed of the law governing
the case at trial. The record reveals the following:
BY THE COURT: Okay. You want a self-defense instruction is what you're telling me and these are
the last two you have?
....
BY MR. ROSSI: The State objects to D-6 and D-8 on two bases. One is that neither one of these
instructions are correct statements of the law. The Robinson case clearly outlines and is the longstanding case in the state of Mississippi defining self-defense. . . .
....
BY THE COURT: That's the law. I have familiarized myself with the law on this case. 87-315 [sic] is
justifiable homicide what the State has indicated. I'm going to give S-3. I'm going to put refused. I'm
going to refuse D-6 and D-8.
While Roberson offered instruction D-8, he did not object to the State's instruction. Before an instruction
may be granted, there must be in the record an evidentiary basis for it. Catchings v. State, 684 So. 2d
591, 595-96 (Miss. 1996). There was no testimony or evidence of self-defense. Therefore, we find this
issue to be without merit.
IV.
Did the trial court err by instructing the jury in accordance with both the defense requested
instruction number D-2 and with prosecution requested jury instruction number S-2?
¶23. Roberson contends that the trial court erred by instructing the jury in accordance with his instruction
D-2 and the State's instruction S-2. Instruction D-2 is stated as follows:
In order to find Anthony Roberson guilty of manslaughter you must find that he killed Tommy Cotton
by culpable negligence. Culpable negligence is defined as the omission to do something which a
reasonable, prudent person would do, or the doing of something which a reasonable, prudent person
would not do, under the circumstances surrounding the particular case. Culpable negligence must be
ascertained from the facts of each case.
Instruction S-2 is stated as follows:
The Court instructs the jury that manslaughter is the killing of a human being by the culpable
negligence of another, and if you believe from the evidence in this case beyond a reasonable doubt
that ANTHONY ROBERSON on September 4, 2000, did kill Tommy Cotton, a human being, by
an act of culpable negligence which is more than gross negligence and constitutes a departure from
what would be the conduct of an ordinarily careful and prudent person under the same circumstances,
so as to evince an indifference to the consequences of such acts, then and in that event you should find
the defendant, ANTHONY ROBERSON, guilty as charged.
¶24. Roberson maintains that neither of the above instructions fully, fairly and adequately informed the jury
as to the elements of the offense. He indicates that "the State's instruction diminishes the level of departure
from standards of ordinary care which will elevate ordinary negligence to culpable negligence as
contemplated by Mississippi Code Annotated Section 97-3-47 (Rev. 2000)."(3)
¶25. However, Roberson acknowledges that his instruction makes no distinction at all between culpable
negligence and ordinary negligence. Because it is the State's duty to prove every element of the crime
beyond a reasonable doubt, the State also has a duty to make sure the jury is properly instructed with
regard to the essential elements of the crime. Reddix v. State, 731 So. 2d 591 (¶4) (Miss. 1999). "It is
rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is
charged." Id.
¶26. The defense counsel and the State discussed jury instructions D-2 and S-2 regarding what constitutes
culpable negligence with the trial judge. The trial judge determined that instruction S-2 provided an
adequate meaning of culpable negligence and allowed the instruction to be given to the jury.
¶27. After discussion of jury instruction D-2, the trial judge modified this instruction and noted there was no
objection to the modification. Failure to offer a timely objection to an instruction at trial constitutes a waiver
of the issue on appeal. Brown v. State, 764 So. 2d 463 (¶¶20, 21) (Miss. Ct. App. 2000). Therefore, we
find no error on this issue.
V.
Did the trial court err by overruling the defendant's motion for directed verdict made at the
close of all the proof?
¶28. Roberson contends that the trial court erred by overruling his motion for directed verdict. Roberson
relies on Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933), which states that:
Where the defendant or the defendant's witnesses are the only eyewitnesses to the homicide, their
version, if reasonable, must be accepted as true, unless substantially contradicted in material
particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of
common knowledge.
¶29. Roberson indicates that there is no other evidence of the circumstances which surrounded this shooting
other than the accounts given by him and his wife as eyewitnesses. Roberson's reliance on Weathersby is
misplaced. Weathersby only has application when the testimony is uncontradicted. The location of the
body, the lack of a blood trail, the location of the wound and the location of the shell casings all contradict
Roberson's claim of self-defense.
¶30. This issue is without merit.
¶31. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF
CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH FOUR
YEARS SUSPENDED IS AFFIRMED. SENTENCE TO RUN CONSECUTIVELY TO ANY
AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS ARE ASSESSED AGAINST
THE APPELLANT.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
1. Instruction D-8: The Court instructs the jury that the Defendant, Anthony Roberson, was at the
time of the shooting of Tommy Cotton entitled to act upon appearances, and if the conduct of the
deceased, Tommy Cotton, was such as to induce in the mind of a reasonable person, situated as
Anthony Roberson was, under all the circumstances that existed, and viewed from the standpoint of
Anthony Roberson, a fear that death or great bodily harm was about to be inflicted by the deceased
on her [sic], it does not matter if there was no such danger provided that the jury believes that
Anthony Roberson acted in self-defense from real and honest conviction. Under those circumstances
then the jury should find Anthony Roberson "Not Guilty", even though the jury might believe that at the
time he was actually mistaken and that he was not in any great danger.
2. Instruction S-3: The Court instructs the jury that to make an assault justifiable on the grounds of
self-defense, the danger to the defendant, ANTHONY ROBERSON, must be either actual, present
and urgent, or the defendant, ANTHONY ROBERSON, must have reasonable grounds to
apprehend a design on the part of the victim, Tommy Cotton, to kill him or do him some great bodily
harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent
danger of such design being accomplished. It is for the jury to determine the reasonableness of the
grounds upon which the defendant, ANTHONY ROBERSON, acts.
3. Mississippi Code Annotated Section 97-3-47 (Rev. 2000) provides: Homicide; all other killings:
Every other killing of a human being, by the act, procurement, or culpable negligence of another, and
without authority of law, not provided for in this title, shall be manslaughter.
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