Cleveland Hope v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-01156-COA
CLEVELAND HOPE
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
06/30/2007
HON. RICHARD A. SMITH
SUNFLOWER COUNTY CIRCUIT COURT
FRANK CARLTON
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
WILLIE DEWAYNE RICHARDSON
CRIMINAL - FELONY
CONVICTED OF BURGLARY OF A
DWELLING AND SENTENCED TO
TWENTY YEARS, WITH TEN YEARS
SUSPENDED AND TEN YEARS TO SERVE
FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION AND FIVE
YEARS OF UNSUPERVISED POSTRELEASE SUPERVISION
AFFIRMED - 10/14/2008
BEFORE LEE, P.J., BARNES AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
SUMMARY OF THE CASE
¶1.
A jury sitting before the Sunflower County Circuit Court found Cleveland Hope guilty
of burglary of a dwelling. The circuit court sentenced Hope to a twenty-year sentence with
ten years suspended and ten years to serve followed by five years of post-release supervision
and five years of unsupervised post-release supervision. Hope claims the circuit court erred
when it (1) overruled his motion for a directed verdict, (2) overruled his motion for a mistrial
after the burglary victim testified that Hope was on house arrest when their child was born,
and (3) overruled his motion for a mistrial after Investigator Johnnie Bland testified that
Hope did not want to comment about the case. Additionally, Hope claims the cumulative
effect of the errors requires that we reverse the judgment of the circuit court. Finding no
error and consequently no cumulative effect of errors, we affirm the judgment of the circuit
court.
FACTS AND PROCEDURAL HISTORY
¶2.
The events that led to Hope’s conviction and present appeal transpired in Indianola,
Mississippi on February 6, 2006. At approximately 5:00 a.m., Etricia Mitchell heard banging
on her back door. Etricia answered her door and found Hope. Hope is the father of Etricia’s
child, and he wanted to know whose car was at her house. Etricia told Hope that the car
belonged to her cousin, but Hope did not believe her. Etricia told Hope to leave, but Hope
refused. Instead, he kicked the door in, went into Etricia’s house, and assaulted Etricia.
Hope soon realized that no one else was in the house with Etricia except their son.
¶3.
An unidentified person was with Hope. He followed Hope into the house, but he did
not participate in Hope’s assault of Etricia. At some point, this unidentified person told Hope
that the authorities had been summoned. Hope stopped his assault of Etricia, but he took her
cell phone.
¶4.
Officer Irish Johnson of the Indianola Police Department was the first responder on
2
the scene. Later, Investigator Bland of the Indianola Police Department went to Etricia’s
house and photographed the damage to Etricia’s home as well as Etricia’s injuries.
¶5.
On May 10, 2006, a Sunflower County grand jury returned an indictment against
Hope and charged him with third offense domestic violence and burglary of an occupied
dwelling. Hope pled not guilty, and on June 14, 2006, he proceeded to trial.
ANALYSIS
I.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED HOPE’S
MOTION FOR A DIRECTED VERDICT.
¶6.
During direct examination, Etricia testified that Hope banged on her door and that she
“told him to leave before [she] called the police. He was like f— the police. And about that
time [she] told him [she] was going to call the police, he had knocked the door down and
came in the house.” The prosecution asked, “[h]ow did he knock it down?” Etricia
responded, “[h]e kicked it in.” Later during direct examination, Etricia testified that Hope
entered her house first, and the unidentified man entered some time afterward. According
to Etricia, when her door was kicked in, she ran to her bathroom and locked the door, but
Hope kicked that door in as well. Hope then “pulled [Etricia] by [her] hair and grabbed [her]
out of the bathroom.” Hope proceeded to search Etricia’s house for another man, but there
was no one else there.
¶7.
Etricia went on to testify:
After he stopped looking to see whether or not nobody [sic] was in the house,
he caught me at my door in my room, and he just came and pushed my head
up against the door. I ran down the hall, and I slipped and fell. By the time I
got in the kitchen, the guy that was with him kept telling him the police was
coming, but he didn’t - - he kept hitting me and kicking me. That’s how I got
the bruises on my leg and all up here.
3
Etricia testified that Hope kicked her “ten times or more” and that Hope hit her in the face
with his hand “about” twenty times.
¶8.
On cross-examination, Etricia testified that when Hope was outside her door, she told
him to leave, and “by the time [she] could go get the phone, he had broke[n] in[to] the
house.” Counsel for Hope then had Etricia clarify the precise sequence of events. Etricia
testified that she turned and walked away from the door to get her cell phone from her
bedroom down the hallway; she made it as far as the living room and “heard him start
kicking [the door].” When Etricia “heard him start kicking [the door],” she ran down her
hallway to her bedroom and closed her bathroom door. At that point, the following exchange
transpired:
Q.
A.
No. The guy that was with him never came in the house until after.
Q.
Okay. I’m not suggesting that he did. What I’m suggesting is when he
kicked the door in, it could have been either one of them.
A.
¶9.
So when that door was kicked in, that could have been him or the guy that was
with him?
Correct.
At the close of the prosecution’s case, Hope moved for a directed verdict. Counsel
for Hope stated, “the evidence is, at least, questionable as to who kicked the door in.” The
circuit court overruled Hope’s motion. The defense rested without calling any witnesses.
Afterward, Hope submitted a peremptory instruction, but the circuit court refused to grant
that instruction. Post-trial, Hope filed a motion for a judgment notwithstanding the verdict
or, alternatively, for a new trial, though he did not specifically state that the evidence against
him was insufficient to sustain a guilty verdict because it was unclear who kicked in Etricia’s
4
door.
¶10.
On appeal, Hope’s entire argument, not including factual statements and a brief
citation regarding the fact that a motion for directed verdict, a request for a peremptory
instruction, and a motion for a JNOV all challenge the sufficiency of the evidence, is as
follows:
In this case, the evidence was clear that the victim of the [h]ouse burglary,
Etricia Mitchell, did not know who actually “broke” into her home. There was
another person with Hope and either one of them could have been the one who
kicked in the door. Ms. Mitchell, without doubt, testified that this was true.
Since who “broke” into the home was an essential element of the crime for
which Hope was convicted, the Court should have directed a verdict for Hope
for this charge.
¶11.
Hope last challenged the sufficiency of the evidence in his post-trial motion for a
JNOV.
“A motion for a judgment notwithstanding the verdict is a challenge to the
sufficiency of the evidence.” Gilbert v. State, 934 So. 2d 330, 335 (¶9) (Miss. Ct. App.
2006). In reviewing challenges to the sufficiency of the evidence, we consider the evidence
in the light most consistent with the verdict. Carr v. State, 655 So. 2d 824, 837 (Miss. 1995).
We give the State “the benefit of all favorable inferences that may reasonably be drawn from
the evidence.” Id. If we conclude that reasonable jurors could not have found beyond a
reasonable doubt that Hope was guilty, then we must reverse Hope’s conviction. Otherwise,
we must affirm. Id.
¶12.
A person is guilty of burglary of a dwelling upon sufficient proof of “breaking and
entering the dwelling house or inner door of such dwelling house of another, whether armed
with a deadly weapon or not, and whether there shall be at the time some human being in
such dwelling house or not, with intent to commit some crime therein.” Miss. Code Ann. §
5
97-17-23 (Rev. 2006). The crux of Hope’s argument is that Etricia could not testify with any
certainty that Hope kicked her door in. That is, Hope claims there is a reasonable doubt
whether he broke into and entered Etricia’s house because it is possible that the unnamed
individual who accompanied him kicked in Etricia’s door. This issue is without merit.
¶13.
First and foremost, Etricia testified that Hope banged on her door; Hope thought that
the car parked in her yard belonged to another man; his behavior and demeanor concerned
her enough that she intended to call the police; once she made her intent known, Hope stated
“f— the police”; and her exterior door was subsequently kicked in. It is noteworthy that
there was absolutely no evidence that the unidentified man kicked in Etricia’s door.
Additionally, Etricia unequivocally testified that Hope then kicked in her bathroom door.
Considering Hope’s angry state, a rational juror could certainly have concluded that Hope
jealously believed Etricia had a man in her home; he stated “f— the police” in response to
Etricia’s threat to call the police; and since Hope kicked in Etricia’s bathroom door, he also
kicked in Etricia’s front door. As the State persuasively argues, “every reasonable inference
arising from [Hope’s] actions and words immediately prior to the breaking in of the door
would support the conclusion that it was indeed [Hope] who did so.”
¶14.
Furthermore, there was no evidence that Etricia invited Hope or the unidentified man
into her home, and it is uncontested that Hope went inside Etricia’s home and beat her. “It
is well-established in Mississippi that a breaking is conducted by an act of force, regardless
of how slight, necessary to be used in entering a building, such as turning a knob, a slight
push to further open a door, or raising a latch.” Davis v. State, 910 So. 2d 1228, 1231 (¶8)
(Miss. Ct. App. 2005) (citing Gross v State, 191 Miss. 383, 391, 2 So. 2d 818, 820 (1941)).
6
“Even if the door was unlocked or if only slight force was needed to gain entry, such entry
has been viewed as forcible for the purposes of our burglary statute.” Wheeler v. State, 826
So. 2d 731, 735 (¶12) (Miss. 2002) (citing Wright v. State, 540 So. 2d 1, 5 (Miss. 1989)).
¶15.
Even if we assumed, without any evidence, that this unidentified man kicked in
Etricia’s door and waited outside while Hope beat and kicked Etricia, Hope would still not
overcome his conviction. As the State correctly points out, “[i]t would simply mean that the
other man was an aider and abettor of the felony.” Because we are bound to consider the
evidence in the light most favorable to the verdict and give the State the benefit of any
inferences that can be drawn from the evidence, we must find that reasonable jurors could
have found beyond a reasonable doubt that Hope kicked in Etricia’s door.
II.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED HOPE’S
REQUEST FOR A MISTRIAL AFTER ETRICIA TESTIFIED THAT HOPE WAS
ON HOUSE ARREST WHEN THEIR SON WAS BORN.
¶16.
During Hope’s counsel cross-examination of Etricia, Hope’s counsel asked Etricia
whether Hope was present at the hospital when their son was born. Etricia answered, “[n]o.
He was on house arrest.” Hope’s attorney requested a mistrial because “[t]hey’ve now been
informed that he’s got a previous conviction.” The circuit court overruled Hope’s motion,
and Hope now appeals. As we review Hope’s assertion, we give “considerable discretion to
the trial judge in determining whether a mistrial is warranted because he is peculiarly situated
to determine if a remark is truly prejudicial.” McGilberry v. State, 741 So. 2d 894, 913 (¶63)
(Miss. 1999) (citation and internal quotations omitted).
¶17.
There is no merit to this assignment of error. As the prosecutor pointed out, the jury
was fully aware that Hope had prior convictions. Hope was charged with burglary and a
7
count of third offense domestic violence. By nature of the charges against Hope, the jury
was on notice that Hope had at least two prior convictions, and Etricia’s statement regarding
house arrest did not connect Hope to any particular conviction. Hope experienced absolutely
no prejudice as a result of Etricia’s answer to his attorney’s question.
III.
WHETHER THE CIRCUIT COURT ERRED WHEN IT OVERRULED HOPE’S
REQUEST FOR A MISTRIAL AFTER INVESTIGATOR BLAND TESTIFIED
THAT HOPE DID NOT WANT TO COMMENT ABOUT THE CASE.
¶18.
During Investigator Bland’s direct testimony, the prosecution asked Investigator
Bland whether he was able to identify the unnamed individual who accompanied Hope.
Investigator Bland responded, “[n]o. I did get a chance - - I spoke with Etricia Mitchell. She
stated that she didn’t know the guy. When we tried to talk to Cleveland Hope, he didn’t want
to comment about the case.”
¶19.
Counsel for Hope moved for a mistrial “[b]ased on [Investigator Bland’s] statement
about [Hope] exercising a constitutional right not to testify.” The prosecution responded and
argued that Investigator Bland “has a right to say the defendant gave no statement, and the
Court can certainly instruct the jury that he has a constitutional right to do that, and it cures
the problem.” Hope’s attorney argued that a curative instruction would not cure Investigator
Bland’s statement. The circuit court denied Hope’s request for a mistrial and went on to
state, “I’m not going to instruct them. I think it just draws attention to it at this point.” Hope
now appeals. As with the previous issue, we give “considerable discretion to the trial judge
in determining whether a mistrial is warranted because he is peculiarly situated to determine
if a remark is truly prejudicial.” McGilberry, 741 So. 2d at 913 (¶63).
¶20.
Hope’s entire argument is as follows:
8
There is not [sic] question but that a decision of whether to grant a mistrial lies
within the sound discretion of the trial judge. However, there should at least
be inquiry made and consideration given as to whether an admonition or
curative instruction could remove any prejudicial effect that the inadmissible
matter being place [sic] before the jury may have caused. McGilberry v. State,
741 So. 2d 894 (Miss. 1999)[.]
Again, no cautionary instruction was given to the [j]ury and the [j]ury was not
questioned about whether they could disregard the statement made by the
witness since Hope had a constitutionally guaranteed right not to give a
statement to the police.
¶21.
We are unable to find any portion of McGilberry in which the Mississippi Supreme
Court held as Hope’s attorney references.1 In one issue, the McGilberry court addressed an
alleged comment on a defendant’s failure to testify, but at no point does McGilberry address
a comment on a defendant’s right to decline to give a statement.
¶22.
We cannot conclude that Hope experienced any prejudice as a result of Investigator
Bland’s statement. Investigator Bland’s statement was not a comment on Hope’s failure to
testify. As the State points out, Investigator Bland’s statement “did not invite the jury to
consider the fact that [Hope] did not give a statement as evidence of his guilt. Instead,
1
McGilberry is a fifty-four page opinion regarding a capital murder conviction.
Counsel for Hope failed to cite to any specific page of that opinion. Though there is
certainly more than one issue regarding the failure to grant a mistrial in McGilberry, not once
does that opinion state anything resembling a requirement that “there should at least be
inquiry made and consideration given as to whether an admonition or curative instruction
could remove any prejudicial effect” of a supposed inadmissible matter. Then again, it is
unclear exactly what counsel for Hope suggests. Counsel could mean that the circuit court
should ask the jury whether it could disregard such a statement. However, by using the
passive voice, counsel for Hope could also be suggesting that the circuit court should
consider whether a curative instruction would relieve any prejudice of an improper
statement. If that is the substance of Hope’s argument, then there is no doubt the circuit
court satisfied that – and ultimately concluded that an admonition or curative instruction
would only draw attention to Investigator Bland’s statement.
9
[Investigator Bland] was simply explaining why he had been unable to identify and locate
the man who was with [Hope].” What is more, the circuit court later instructed the jury that
Hope’s decision not to testify could not be considered as evidence of guilt. Accordingly, we
must conclude that the circuit court did not abuse its discretion when it declined to grant
Hope’s request for a mistrial.
IV.
WHETHER THE CUMULATIVE EFFECT OF THE ERRORS MANDATE
REVERSAL.
¶23.
Hope claims the cumulative effect of the errors require that we reverse this matter for
a new trial. However, we have found no individual errors, and it follows that there can be
no cumulative effect of errors that do not exist. There is no merit to this issue.
¶24. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH TEN YEARS SUSPENDED AND TEN YEARS TO SERVE
FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION AND FIVE
YEARS OF UNSUPERVISED POST-RELEASE SUPERVISION, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES AND ISHEE, JJ., CONCUR. CARLTON, J., NOT PARTICIPATING.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.