Joseph Dewayne Wash v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-00545-COA
JOSEPH DEWAYNE WASH
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
2/5/2003
HON. ROBERT P. KREBS
JACKSON COUNTY CIRCUIT COURT
GEORGE S. SHADDOCK
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
ROBERT KEITH MILLER
CRIMINAL - FELONY
MANSLAUGHTER - SENTENCED TO SERVE A
TERM OF 18 YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED - 03/23/04
BEFORE MCMILLIN, C.J., BRIDGES, AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
¶1.
In March 2002, Joseph Dewayne Wash was indicted for manslaughter by the Jackson County
Grand Jury for the death of Kavie Simmons of Moss Point. In February 2003, a jury found Wash guilty
of manslaughter and Circuit Judge Robert P. Krebs sentenced Wash to a term of eighteen years. Wash’s
motion for a new trial or, in the alternative, judgement notwithstanding the verdict was denied. Wash now
appeals in forma pauperis on these issues:
STATEMENT OF THE ISSUES
I. DID THE TRIAL COURT ERR IN ALLOWING THE REBUTTAL TESTIMONY OF CHARLES
WEATHERSPOON AFTER THE STATE COMPLETED ITS CASE IN CHIEF?
II. IS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE
EVIDENCE ADDUCED AT TRIAL AND CONTRARY TO THE LAW OF THIS STATE?
III. IS THE SENTENCE RENDERED IN THIS CASE EXCESSIVE UNDER THE FACTS AND
EVIDENCE PRESENTED AT TRIAL AND CONSIDERING THE HISTORY OF THIS
DEFENDANT?
FACTS
¶2.
On the night of September 29, 2001, Wash was involved in an altercation at the 504 Club in Moss
Point, Mississippi. The initial scuffle was broken up by Simmons; however, Wash returned to the club later
that evening and at approximately 4:00 a.m. Simmons was shot twice from behind. Wash testified that he
was at home where he resides with his mother the entire evening but several witnesses identified Wash as
the shooter. Five witnesses testified at trial that they were ear and eye witnesses, three of those made
photographic and in-court identifications of Wash, testifying that they saw him shoot Simmons.
¶3.
Charles Weatherspoon was also charged with the shooting of Simmons but the State did not offer
his testimony during its case-in-chief against Wash. The State did call Weatherspoon as a rebuttal witness
to rebut the testimony offered by Wash. Weatherspoon testified that Wash was indeed at the club that night
and not at his mother’s house the entire night.
ANALYSIS
I. DID THE TRIAL COURT ERR IN ALLOWING THE REBUTTAL TESTIMONY OF CHARLES
WEATHERSPOON AFTER THE STATE COMPLETED ITS CASE IN CHIEF?
¶4.
We consider whether the trial judge abused his discretion in allowing rebuttal testimony. The
decision to allow rebuttal evidence or testimony is at the sole discretion of the trial judge. McGaughy v.
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State, 742 So.2d 1091, 1093 (¶6) (Miss. 1999). In the present case Weatherspoon was indicted for
accessory after the fact for the same crime with which Wash was charged. Weatherspoon was listed as a
possible witness at trial during discovery but was not called during the prosecution’s case in chief.
Weatherspoon was called to rebut the alibi testimony given by Wash.
¶5.
Wash’s testimony that he was alone and at his mother’s house at the time of the shooting was an alibi
that was inconsistent with the notice of alibi witness filed with the State. The State claimed to be prejudiced
by this change in alibi theories by the defense and wanted to call Weatherspoon in rebuttal. The trial judge
ruled that Weatherspoon could be called as a rebuttal witness but limited the scope of the rebuttal testimony
to whether or not Wash was at the club that night and whether Wash shot Simmons.
¶6.
Wash argues the State was required to present all relevant evidence as to the defendant’s guilt in
its case in chief. Hosford v. State, 525 So.2d 789, 791 (Miss. 1988). Wash believes the limiting
instructions given regarding Weatherspoon’s testimony were insufficient to correct the error of his testifying.
The State, however, argues that the granting of rebuttal testimony is not reversible error unless the defendant
is not allowed surrebuttal testimony which was not requested in the case at hand. Myers v. State, 353
So.2d 1364, 1369 (Miss. 1978) (citing Grant v. State, 219 Miss. 800, 70 So.2d 28, 803 (1954)).
¶7.
The testimony of Weatherspoon could arguably be part of the prosecution’s case in chief and part
of its rebuttal. In Barnes v. State, 532 So2d 1231, 1234 (Miss. 1988), the court held that “in gray areas,
some discretion must be afforded the circuit judge, especially when the defendant is offered and opportunity
for surrebuttal.” The circuit judge in Wash’s case recognized that this testimony was in a gray area and put
limitations on the prosecution so that its examination would not stray into areas that should have been
covered in the case in chief.
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¶8.
This Court in Jackson v. State, 840 So.2d 739, 741 (¶6) (Miss. Ct. App. 2003), recently defined
the parameters of rebuttal testimony as having three requirements:
1. The testimony and its reception will not consume so much additional time as to
give undue weight in practical probative force to the evidence so received;
2. The opposite party would be substantially able to meet the evidence by
surrebuttal as if the testimony was offered in chief;
3. The opposite party upon request therefore is given the opportunity to reply by
surrebuttal.
The third requirement was not requested and is not at issue in this case. The first requirement was properly
met since the testimony of Weatherspoon only took two pages in the transcript of the trial. The second
requirement was also properly met when Wash had an opportunity to cross examine Weatherspoon and
was given proper notification of his possible testimony during discovery before trial. For these reasons, we
determine that the trial judge did not abuse his discretion in allowing Weatherspoon’s rebuttal testimony.
II. IS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF CREDIBLE
EVIDENCE ADDUCED AT TRIAL AND CONTRARY TO THE LAW OF THIS STATE?
¶9.
In considering whether a verdict is contrary to the overwhelming weight of evidence, this Court must
consider whether or not allowing it to stand would sanction an “unconscionable injustice.” Gossett v. State,
660 So2d 1285, 1294 (Miss. 1995). In reviewing evidence to determine whether it is sufficient to support
its verdict this Court will review all evidence to support the verdict with all inferences drawn there from and
consider them to be true. Aldridge v. State, 398 So.2d 1308, 1309 (Miss. 1981).
¶10.
The State offered three ear and eye witnesses to the shooting plus the rebuttal testimony of
Weatherspoon. The testimony of these four witnesses was only opposed by the testimony of Wash himself
the defense’s only witness. There were no specific inconsistencies in the testimony of the State’s witnesses
but if there were it is the responsibility of the jury to weigh the credibility and determine the impeachment
value of all the testimony given. Jones v. State, 381 So.2d 983, 989 (Miss. 1990) (see also Blocker v.
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State, 809 So.2d 640, 645 (¶18) (Miss. 2002); Collier v. State, 711 So.2d 458, 462-63 (Miss. 1998)).
¶11.
Reviewing the evidence construed in the light most favorable to the verdict and giving consideration
for the role of the jury in determining questions of fact and credibility we find that Wash points to nothing
that would prove an unconscionable injustice would occur if this verdict were allowed to stand. Therefore,
we cannot reverse on this issue.
III. IS THE SENTENCE RENDERED IN THIS CASE EXCESSIVE UNDER THE FACTS AND
EVIDENCE PRESENTED AT TRIAL AND CONSIDERING THE HISTORY OF THIS
DEFENDANT?
¶12.
Whether or not the sentence of Wash was appropriate involves the consideration of whether the trial
judge abused his discretion when sentencing. “A trial court will not be held in error or held to have abused
[its judicial] discretion if the sentence imposed is within the limits fixed by statute.” Johnson v. State, 461
So.2d 1288, 1292 (Miss. 1984).
¶13.
The maximum sentence for manslaughter under Mississippi Code Annotated Sections 97-3-25 and
97-3-35 is twenty years. Wash’s sentence was for eighteen years. Wash claims that the sentence is unduly
harsh considering this is his first felony conviction and that he was in a drunken state at the time the crime
was committed. He cites Towner v. State, 837 So.2d 221, 227 (¶21) (Miss.Ct.App. 2003), which held
that when a first offender defendant is sentenced within the upper levels of authority justification is required
or else the sentence should be remanded for reconsideration.
¶14.
In Wade v. State, 802 So.2d 1023, 1030 (¶35) (Miss. 2001), the supreme court held that
“sentencing is within the discretion of the trial court and is not subject to appellate review if it is within the
limits prescribed by statute.” Since the sentence given was within the statutory limits we find no abuse of
discretion in the sentence given.
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¶15. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF CONVICTION
OF MANSLAUGHTER AND SENTENCE OF EIGHTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO JACKSON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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