Jessie Clifton Smith v. State of Mississippi ( 2001 )

IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00726-COA
JESSIE CLIFTON SMITH A/K/A JESSE SMITH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF TRIAL COURT 04/12/2001
JUDGMENT:
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GUS GRABLE SERMOS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DISTRICT ATTORNEY: RONNIE LEE HARPER
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: BURGLARY OF A CHURCH: SENTENCED TO SERVE A
TERM OF 14 YEARS PLUS ORDERED TO PAY ALL
COURT COSTS.
DISPOSITION: AFFIRMED - 07/16/2002
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED: 8/6/2002
BEFORE KING, P.J., LEE, AND IRVING, JJ.
LEE, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1. In April 2001, an Amite County jury convicted Jessie Clifton Smith of burglary of a church. He was
sentenced to serve fourteen years in the custody of the Mississippi Department of Corrections plus ordered
to pay costs. He subsequently filed a motion for judgment notwithstanding the verdict, but the motion was
denied. He now appeals that denial to this Court, arguing that the verdict was against the overwhelming
weight of the evidence. We find no error and affirm.
FACTS
¶2. The evening of December 12, 2000, James Wilson, a parishioner of the Smithdale Church of God in
Christ in Amite County, arrived at the church to find it had been burglarized. Deputy Jerry Bates from the
sheriff's department investigated the crime scene and talked to church members. Together, they determined
that missing items included a drum set, amplifier, and speakers. Outside the church the officer noted that a
side door had been pried open, and tire tracks indicated that a vehicle had gotten stuck in the mud. The
Amite County officers expanded their investigation to surrounding counties, looking into similar burglaries in
neighboring areas and talking with officers in other counties. From the evidence and information they
collected, they determined that Jessie Smith and his brother, David, were possible suspects. When the
missing equipment was located in a pawn shop in Hammond, Louisiana, Jessie and David Smith were
arrested and questioned. David Smith told the officers of his and his brother's plans to rob the church, and
he explained in detail the way they broke into the church, took the sound equipment and later pawned it.
Jessie testified that he had never seen the equipment before, and he denied having broken into the church as
his brother claimed.
DISCUSSION OF THE ISSUE
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE?
¶3. Jessie Smith raises a single issue on appeal: that the verdict was against the overwhelming weight of the
evidence. In his motion for judgment notwithstanding the verdict or, in the alternative, a new trial, Jessie
argued that the court improperly denied his motions for directed verdict, that the verdict was against the
overwhelming weight of the evidence, and that the evidence was insufficient to support the verdict. On
appeal, he only lists the "weight" issue; thus, we review this issue alone.
The standard for reviewing denial of a new trial goes to the weight of the evidence . . . . Furthermore,
[t]o discern that the jury verdict is against the weight of the evidence, we must "accept as true the
evidence which supports the verdict and will reverse only when convinced that the circuit court has
abused its discretion in failing to grant a new trial." In order to mandate a new trial, the verdict must be
"so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction
'unconscionable injustice[.]'"
Smith v. State, 800 So. 2d 535 (¶4) (Miss. Ct. App. 2001) (citations omitted). In efforts to show the trial
court erred in denying his motion for new trial, Jessie refers to various testimony at his trial and notes the
following: James Wilson, a church member who first discovered the burglary, never saw Jessie at the
church; Amite County Deputy Jerry Bates found no fingerprints at the scene; Deputy Barney Smith testified
he was not present at the break-in and that Jessie denied involvement to him; David Smith described
Jessie's involvement as his partner in the crime, but Jessie claims David's testimony is unreliable; Eric Myers,
who owned the pawn shop where the stolen property was found, testified that David Smith conducted the
transaction; and Marie Smith, a church member, testified that she did not know when the church was
burglarized, nor could she identify the burglar. The defense's only witness was Jessie Smith. Jessie testified
that he saw his brother at his house the afternoon after the burglary, and his brother asked him to go to
Hammond, Louisiana, with him to pawn some musical equipment that David owned. Jessie testified he had
never seen the equipment before, that David used his own identification to effect the transaction and that
David kept all of the money from the transaction.
¶4. The case was essentially Jessie's word against that of all the other witnesses, and we look to our role in
reviewing such a situation.
The jury is charged with the responsibility of weighing and considering conflicting evidence, evaluating
the credibility of witnesses, and determining whose testimony should be believed. The jury has the
duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial
defects of perception, memory, and sincerity. "It is not for this Court to pass upon the credibility of
witnesses and where evidence justifies the verdict it must be accepted as having been found worthy of
belief."
Ford v. State, 737 So. 2d 424 (¶8) (Miss. Ct. App. 1999) (citations omitted). Jessie claims that the only
witness to place him at the scene of the burglary was David, but David's testimony was not sufficient to
support the conviction based on the case of Mister v. State, 190 So. 2d 869 (Miss. 1966). In Mister, the
defendant was convicted of arson based on the testimony of one witness. Mister, 190 So. 2d at 871. The
supreme court determined that the witness' testimony was inconsistent with what he had told other people
and was unreasonable in other respects, making it insufficient to support a verdict of guilty. Id. The present
case is distinguishable from Mister in that David Smith's testimony is not improbable or self-contradictory or
substantially impeached. Additionally, "[w]e have repeatedly recognized that a defendant may be lawfully
convicted on the uncorroborated testimony of an accomplice . . . although we frequently caution that such
testimony should be viewed with suspicion and must be reasonable and not improbable, self-contradictory
or substantially impeached." Fairchild v. State, 459 So. 2d 793, 798 (Miss. 1984) (citations omitted).
Jessie points out that the testimony of Eric Myers, the pawn shop owner, contradicts David's testimony
concerning who actually participated in the transaction with Myers. However, even viewing David's
testimony cautiously, we do not find this discrepancy to rise to the level of "substantial impeachment." Thus,
we find Mister distinguishable.
¶5. The jury has the sole prerogative to weigh the credibility of each witness and to determine truthfulness.
Here, we presume they did so in arriving at their verdict. Accepting as true the evidence which supports the
verdict, we cannot find that an unconscionable injustice has resulted, nor has the judge abused his discretion
in denying Jessie's motion for new trial. Accordingly, we affirm.
¶6. THE JUDGMENT OF THE AMITE COUNTY CIRCUIT COURT OF CONVICTION OF
BURGLARY OF A CHURCH AND SENTENCE OF FOURTEEN YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF
THIS APPEAL ARE TAXED TO AMITE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.