Larry Tyrese Minter v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-00922-COA
LARRY TYRESE MINTER
APPELLANT
v.
STATE OF MISSISSIPPI
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:
APPELLEE
11/25/2008
HON. LISA P. DODSON
HARRISON COUNTY CIRCUIT COURT
GEORGE T. HOLMES
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CONO A. CARANNA II
CRIMINAL - FELONY
CONVICTED OF CAPITAL MURDER IN
COUNTS I AND II AND SENTENCED TO
LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE
POSSIBILITY OF PAROLE OR EARLY
RELEASE, WITH THE SENTENCE IN
COUNT II TO RUN CONCURRENTLY
WITH THE SENTENCE IN COUNT I, AND
CONVICTED OF ROBBERY IN COUNT VIII
AND SENTENCED TO FIFTEEN YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, TO
RUN CONSECUTIVELY TO THE
SENTENCES IN COUNTS I AND II
AFFIRMED – 01/11/2011
BEFORE KING, C.J., IRVING, ROBERTS AND CARLTON, JJ.
IRVING, J., FOR THE COURT:
¶1.
A jury in the Harrison County Circuit Court convicted Larry Tyrese Minter of two
counts of capital murder and one count of robbery. The circuit court then sentenced Minter
to two life sentences in the custody of the Mississippi Department of Corrections (MDOC),
without the possibility of parole or early release, for the capital murders and to fifteen years
in the custody of the MDOC for the robbery. The circuit court ordered that the fifteen-year
sentence run consecutively to Minter’s life sentences. Unhappy with the circuit court’s
judgment, Minter appeals and asserts that he was prejudiced by the admission of hearsay, that
his confrontation rights were improperly limited by the circuit court, and that the weight of
the evidence is against his conviction.
¶2.
Finding no reversible error, we affirm the judgment of the circuit court.
FACTS
¶3.
On the morning of December 15, 2006, Harold Joseph Levron Jr. walked into his
home in Gulfport, Mississippi. A home invasion was in progress. According to the evidence
at trial, Minter, Lazairian Murphy, Darryl Simmons, and Junior Green had broken into the
home to steal the contents of a safe. Levron struggled with the four men in his home and was
eventually shot and killed. Minter’s accomplices consistently stated that Minter shot Levron
with Levron’s own gun that was taken from him sometime during the struggle.
¶4.
At some point during the burglary, Levron’s friend, Christiana Ann Suber, entered the
home. It is not clear whether Levron was already dead when Suber arrived. When Suber
saw the men in Levron’s home, she attempted to flee. She was able to get out of the house,
but one of the burglars captured her and took her into the house. Back inside, Suber was
sexually assaulted by Green. She was then restrained with duct tape, which was wrapped
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around her head, arms, and legs. According to Green’s and Simmons’s pretrial statements,
which were not admitted at trial, the burglars then discussed whether to leave Suber alive;
Minter allegedly stated that she could not be left alive. The other men then went outside the
house; shortly thereafter, they heard a single gunshot. Minter came outside and told them
that he had killed Suber. Minter and the other burglars then left in Levron’s truck, which
they drove to a bridge where Minter threw away Levron’s gun.
¶5.
Suber’s son, William, and her ex-husband, John Crittenden, arrived at Levron’s home
after Suber had failed to show up for a prearranged outing. Crittenden testified that the first
thing he noticed upon approaching the house was a red and gold jacket that was lying outside
on the ground; Crittenden recognized the jacket as one that Suber had gotten recently and
was very proud of. Crittenden and William knocked on the front door of the home several
times; when there was no answer, they opened the door and saw Levron’s body. Crittenden
testified that they immediately left and called 911. Officers arrived at the scene and, after
obtaining a search warrant, conducted a search.
¶6.
When officers entered the home, they immediately observed Levron’s body near the
front entryway of the home. The officers then searched the rest of the house. In a hallway,
they discovered a large black safe which nearly blocked the hallway. Beyond that, they
entered a back bedroom and found Suber’s naked and bound body. She had been killed by
a single gunshot wound to the head. Examination of the scene revealed a large hole that had
been created in the exterior wall of Levron’s attached garage. Once in the garage, the
burglars apparently had broken a window and unlocked a door that led into the rest of the
home. The officers realized that Levron’s truck was missing. After obtaining a description
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of the vehicle, the officers disseminated a description of the truck, which was stopped by law
enforcement later that evening. There were four occupants inside the truck at that time,
including Minter’s brother.
¶7.
Law enforcement officers eventually determined that Minter, Murphy, Green, and
Simmons were the burglars. Although Simmons did not testify at trial, he gave a statement
to police prior to trial wherein he claimed that Minter had shot both Levron and Suber.
Green gave a similar statement before trial. Pretrial statements also indicated that Minter had
sexually assaulted Suber with a pool stick. At trial, Green denied that Minter had sexually
assaulted Suber.
¶8.
Prior to trial, Green accepted a guilty plea and was sentenced to life imprisonment in
return for the State not pursuing the death penalty against him. At his guilty-plea hearing,
Green acknowledged that he, Murphy, Minter, and Simmons had broken into Levron’s home.
Green stated at the hearing that Minter had fatally shot both Levron and Suber. Murphy
pleaded guilty to two counts of manslaughter and was sentenced to two consecutive twentyyear sentences. Both Green and Murphy agreed to testify against Minter as part of their plea
agreements.
¶9.
At trial, Green, Murphy, Crittenden, and various law-enforcement officers testified
for the State. Minter did not take the stand, but his mother and stepfather testified that he
was at home with them the morning of December 15, 2006. The State offered evidence that
Minter’s fingerprints were found on glass left in the doorway between the garage and
Levron’s house. Although Murphy’s and Green’s statements and testimonies contained
numerous inconsistencies and disparities, both maintained that Minter shot both Levron and
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Suber.
¶10.
Minter was convicted of two counts of capital murder and one count of robbery. The
circuit court dismissed a sexual-battery charge after Minter requested a peremptory
instruction on the charge. He was acquitted of a second sexual-assault count.
¶11.
Additional facts, as necessary, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Hearsay
¶12.
Minter contends that Detective Charles Bodie Jr.’s testimony regarding a .380-caliber
pistol was improper. Detective Bodie testified that the pistol was recovered from a creek,
which had been searched because Minter’s accomplices had told the police that Minter threw
Levron’s pistol in the creek. An underwater search team recovered the pistol. After several
objections, Detective Bodie testified that the pistol was registered to Levron. We quote at
length from Detective Bodie’s testimony regarding the pistol:
Q.
As part of your investigation did you also conduct a firearms trace?
A.
Yes, it was [sic].
Q.
Through what agency would you have conducted that trace?
A.
From the ATF, Alcohol, Tobacco and Firearms.
Q.
And on what weapon did you conduct a firearms trace?
[OBJECTION]:
Your Honor, we’re going to object to this. It’s our
understanding that Detective Bodie did not actually
conduct this search himself. He had someone conducted
[sic] it, and we have been notified that that person would
testify. If Detective Bodie, in fact, performed this search
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himself then fine. You know, they can continue on with
[sic], but he hasn’t answered that part of the question yet.
[COURT]:
I don’t think he’s asked that question yet. At this point I’m
going to overrule that objection. [Prosecutor], you’ve asked him
only which firearm he requested the trace on.
[PROSECUTOR]: That’s correct, Your Honor.
[COURT]:
Detective Bodie, limit your answer to that please, sir.
Q.
What firearm did you request a trace be conducted on?
A.
The Kel-Tec .380.
Q.
And to your knowledge is a firearm identification a regularly kept
record of the Alcohol, Tobacco and Firearms agency?
[OBJECTION]:
[COURT]:
Your Honor, if I may that would be hearsay, and that
would be my objection.
It will be overruled on that basis.
****
Q.
Detective, to your knowledge[,] is a firearms registration a regularly
kept record of the Alcohol, Tobacco and Firearms agency?
A.
Yes, it is.
Q.
What was the result of the request that you made of those records?
[OBJECTION]:
[COURT]:
Judge, same objection, Your Honor.
Come up, counsel.
(A CONFERENCE WAS HELD AT THE BENCH WITH ALL PARTIES.)
****
Q.
Detective, at your direction did you request a firearms search from
ATF?
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A.
Yes.
Q.
Did you receive the results of that trace?
A.
Yes, I did.
Q.
What type of records would be kept at ATF with regard to firearms?
A.
A firearms trace summary.
Q.
What information would that typically include?
A.
It’s going to be a breakdown of the identifying information of the
weapon; the make, model, caliber, serial number, and it will indicate
the manufacturer and the distributor and seller and the buyer.
Q.
Is that something that they would regularly keep of all firearms
purchased?
A.
Yes.
Q.
And the result that you stated that you received -- what was the result
of the trace that you stated that you received from ATF?
[OBJECTION]:
[COURT]:
Objection, Your Honor.
And that basis of your objection . . . ?
[DEFENSE ATTORNEY]:
[COURT]:
It’s hearsay for one. We would not be able
to cross-examine any of the records. The
records itself [sic] have not been
introduced into evidence, and we certainly
can’t cross-examine nothing.
That will be overruled on the basis of hearsay.
sustained . . . with regard to further foundation.
It will be
[PROSECUTOR]: If we may approach, Your Honor.
[COURT]:
Come on up.
(A CONFERENCE WAS HELD AT THE BENCH WITH ALL PARTIES.)
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Q.
Detective, where were these records that you say regularly kept [sic],
where would they be received from by [sic] ATF?
A.
The request would be e-mailed to the ATF, and this is as per directive
from our department[;] each and every firearm that is received into the
department has a firearms trace run on it.
Q.
You stated previously that [sic] what some of the types of records that
are kept by ATF as part of this[;] what are those records that they keep?
[OBJECTION]:
[COURT]:
A.
Judge, objection.
already.
That’s been asked and answered
Overruled.
The firearms trace summary will contain the make, model, serial
number, [and] caliber of the weapon.
[COURT]:
Then it is sustained. That was not the question that he was
asked. Re[-]ask your question, [Prosecutor].
Q.
Who did they receive -- who does ATF receive this information from?
A.
At the time it was my assistant.
[OBJECTION]:
[COURT]:
Judge, we object to that question also. He’s speculating
who the ATF receives that from. I don’t think Detective
Bodie knows what the ATF -- he can [sic] answer that
question. He doesn’t have personal knowledge of it. He
doesn’t work for the ATF that I know of.
Detective Bodie, if you know what they received you may
testify. If you don’t[,] don’t speculate.
Q.
Detective Bodie, if I may rephrase my question. The information that
is contained in a trace by ATF generally speaking, not the one that you
were on that day, where do they obtain that information?
A.
From the forms that are sent to them from the dealers at the time of
purchase.
Q.
That would be the distributors of the firearms, correct?
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A.
Correct.
Q.
And is that something that they maintain as part of their normal
business operations?
A.
As part of law, yes. As a matter of law, yes.
Q.
Again at this time I would ask what were the results of the trace you
requested from ATF?
[OBJECTION]:
[COURT]:
Objection, Your Honor, same objection.
It will be overruled at this time. He can testify with regard to
why they maintain it and how they did it.
Q.
A.
The trace indicated that the original purchaser of the Kel-Tec .380 was
Harold Joseph Levron.
Q.
What was the date of the purchase on the trace?
A.
November 22nd of 2004.
Q.
Where was that purchase made?
A.
Dad’s Pawn and Gun.
Q.
Where is Dad’s Pawn and Gun located?
A.
¶13.
What were the results of the request that you made in this case?
In Gulfport on 25th Avenue.
Circuit courts enjoy considerable discretion when admitting evidence at trial, and we
review that decision “under the abuse-of-discretion standard.” Tate v. State, 20 So. 3d 623,
632 (¶23) (Miss. 2009) (quoting Turner v. State, 3 So. 3d 742, 744 (¶9) (Miss. 2009)).
Minter contends that Detective Bodie’s testimony about the ownership of the pistol
constituted impermissible hearsay.
¶14.
There is no doubt that the best evidence of what the State sought to prove was the
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actual trace run by the ATF. Ideally, the documents should have been introduced into
evidence rather than paraphrased by Detective Bodie. The contents of such a trace are
generally admissible under Rule 803(6) of the Mississippi Rules of Evidence. Because the
contents of the trace were most likely admissible, any error in allowing Detective Bodie to
testify regarding the result of the trace was harmless. Minter has not introduced any
authority to suggest that the trace would have been inadmissible, nor does he contend that
Detective Bodie incorrectly summarized the contents of the ATF trace.
¶15.
Although Minter frames this issue in terms of hearsay, he also argues that Detective
Bodie’s testimony violated Minter’s Sixth Amendment right to confront the evidence against
him. To violate Minter’s right of confrontation, the hearsay evidence must have been
testimonial in nature. Neal v. State, 15 So. 3d 388, 403 (¶34) (Miss. 2009) (citing Crawford
v. Washington, 541 U.S. 36, 68 (2004)). “Testimonial” evidence “applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to
police interrogations . . . .” Id. (quoting Crawford, 541 U.S. at 68). The Neal court held that
“a statement is testimonial when it is given to the police or individuals working in connection
with the police for the purpose of prosecuting the accused.” Id. at 404 (¶35) (quoting
Hobgood v. State, 926 So. 2d 847, 852 (¶12) (Miss. 2006)). Here, the firearms-trace report
here was not made for the purpose of prosecuting Minter; rather, it was produced by the ATF
to establish the ownership of the pistol that was recovered. The ATF was not attempting to
prosecute Minter when it produced the trace report, nor was the report the product of prior
testimony or police interrogation. In short, the hearsay evidence did not violate Minter’s
Sixth Amendment right to confrontation because the evidence was not testimonial in nature.
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2. Green’s Statement
¶16.
Minter next argues that his right to confront the evidence against him was improperly
impinged upon by the circuit court’s limitation of Minter’s use of a statement signed by
Green. During questioning outside the presence of the jury, Green stated that he did not
write the affidavit; when asked whether he had read it before signing it, he first stated that
he had “scanned” it and then stated that he “didn’t even read it.” During questioning by the
circuit court, Green stated that the contents of the statement were “true.”
¶17.
The relevant portions of the statement read as follows:
I[,] Junior Green[,] am aware of my rights and I’m also aware that this
document will be -or- could be used against me in a court of law. The
circumstances of this case isn’t [sic] as [d]etectives have been lead [sic] to
believe. Mr. Larry Minter . . . isn’t the individual that shot and killed the
deceased party involved in this case, -nor- did he (Mr. Larry Minter) rob, steal
-or- take anything from the deceased person(s) involved in this case.
I[,] Junior Green[,] have knowledge of whom [sic] committed these acts[,] and
I’m willing to let the proper officials know who was involved in this crime.
I just don’t want an innocent man (Mr. Larry Minter) to be found guilty of a
crime that he didn’t commit -or- have knowledge of.
Green admitted that he read the second paragraph quoted above before signing the statement.
The circuit court ruled that Minter would be allowed to use only the second paragraph at
trial. The circuit court reasoned that the second paragraph was the only paragraph that Green
admitted to having read before he signed the statement.
¶18.
We find that the circuit court should not have limited Minter’s use of the statement
to the second paragraph above; rather, Minter should have been allowed to question Green
about the entirety of the statement. However, the second paragraph clearly alluded to
Minter’s innocence when it stated that: “I just don’t want an innocent man (Mr. Larry
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Minter) to be found guilty of a crime that he didn’t commit -or- have knowledge of.”
¶19.
Despite the circuit court’s ruling that Minter could use the second paragraph, Minter’s
counsel chose not to question Green about the statement during Green’s testimony in front
of the jury. Furthermore, the portion of the statement that the circuit court allowed Minter
to use was still exculpatory as to Minter. Therefore, we find no prejudicial error requiring
reversal.
3. Weight of the Evidence
¶20.
In his final contention of error, Minter contends that the overwhelming weight of the
evidence does not support his convictions. In reviewing the weight of the evidence, “the
evidence is weighed in the light most favorable to the verdict.” Williams v. State, 35 So. 3d
480, 491 (¶41) (Miss. 2010) (citing Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005)).
A new trial will be granted only if we find that “the verdict is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction [an]
unconscionable injustice.” Id. (quoting Bush, 895 So. 2d at 844 (¶18)).
¶21.
Minter points to the inconsistencies in Murphy’s and Green’s testimonies, as well as
to the fact that both Murphy and Green had taken plea bargains from the State. Minter also
notes that Green stated during his testimony that he had lied about parts of his testimony. In
addition to attacking the testimonies of his accomplices, Minter complains about the Gulfport
Police Department’s investigation of the crime: “There was no testing of a good portion of
the physical evidence. There were no shoe[-]print comparisons, and most strikingly, no
ballistic evidence offered at all. The matters involving the Mazda truck and the weapon and
evidence found inside of it were never explained.”
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¶22.
As to the testimonies of Murphy and Green, the jury heard the inconsistencies in the
testimonies. The jury also heard Green’s admission that he had lied; the jury knew that both
Green and Murphy had accepted plea bargains in return for testifying against Minter.
Despite the inconsistencies, both Green and Murphy remained steadfast in certain parts of
their stories: that Levron was killed in the course of a burglary gone wrong, that Suber was
killed after she entered the home, that Minter was present during the events in question, and,
most importantly, that Minter shot and killed both Levron and Suber. While the police
investigation in this case was not perfect, it was adequate. The jury heard all of the evidence
in this case, including the inconsistencies and the actions taken or not taken by law
enforcement during the investigation of the crime. It is well established that “[t]he jury is the
sole judge of the weight of the evidence and the credibility of the witnesses.” Lima v. State,
7 So. 3d 903, 910 (¶35) (Miss. 2009) (quoting Mohr v. State, 584 So. 2d 426, 431 (Miss.
1991)). Viewing the evidence in the light most favorable to the verdict, we find that allowing
Minter’s convictions to stand does not sanction an unconscionable injustice.
¶23. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF CAPITAL MURDER IN COUNTS I AND II AND SENTENCES
OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE OR EARLY
RELEASE, WITH THE SENTENCE IN COUNT II TO RUN CONCURRENTLY
WITH THE SENTENCE IN COUNT I, AND CONVICTION OF ROBBERY IN
COUNT VIII AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, TO RUN CONSECUTIVELY
TO THE SENTENCES IN COUNTS I AND II, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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