Fred Partee v. State of Mississippi , 270 So. 3d 236 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00932-COA
FRED PARTEE A/K/A FREDERICK PARTEE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/03/2017
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 08/21/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND TINDELL, JJ.
TINDELL, J., FOR THE COURT:
¶1. In March 2017, a Tunica County jury found Fred Partee guilty of burglary of a
dwelling. With four prior-felony convictions and prior sentences to separate terms of one
year or more, the Tunica County Circuit Court sentenced Partee as a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2015) to twenty-five years without
eligibility for parole or probation. Partee filed an unsuccessful motion for a judgment
notwithstanding the verdict (JNOV) or, alternatively, for a new trial. Partee now appeals and
asserts the admission of hearsay evidence bolstered the State’s case against him and rendered
his trial unfair. Finding no error, we affirm Partee’s conviction and sentence.
FACTS
¶2. Over the defense’s objection, the circuit court first allowed Investigator Columbus
Jones to testify at trial about a burglary relayed to him by a fifteen-year-old witness, Jasmine
Carey, who identified Partee as the person who burglarized Maggie Clay’s house. Partee’s
attorney objected on the basis of hearsay and asked the court to limit the testimony to
identification only. The court found the anticipated testimony fell within an exception to the
hearsay rule and overruled the objection. The court allowed Investigator Jones to testify
about what Carey saw and the manner in which Carey observed Partee. Investigator Jones
testified as follows:
Q. [(By Mr. Gresham:)] And during that interview with Jasmine Carey --
excuse me -- I think I said Clay -- Carey, what did she advise you that she
observed on that date, October 5th, 2016?
A. She stated that she had observed -- she’d seen Mr. Partee, Fred, as she
called him --
Q. What’s his last name?
A. Partee -- going inside of Ms. Clay’s residence through the window.
Q. So did she say she knew him?
A. Yeah, she said she knew him.
Q. And was she consistent with her identification of Mr. Partee?
A. Yes, she was.
Q. And did she say how close she was to him or what she observed him doing
or what he did or anything?
A. Yeah. She stated that she was standing in the street right in front of the
residence, and she could observe him get up on the vehicle that was parked in
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the -- in that hole right there by the window, remove the air conditioner and go
inside the residence. She stated that she didn't see him come out but --
Q. Go ahead.
THE COURT: Let’s try to limit it down back to just her identification of him.
Q. (By Mr. Gresham:) And did she ever identify Mr. Partee as leaving the
area?
A. Yes, she did.
Q. And when she identified him leaving the area, what --
MR. JOHNSON: Your Honor, object to this line of questioning as to hearsay.
THE COURT: Well, I’ll allow it but only in terms of her ability to identify
him.
Q. (By Mr. Gresham:) Did she state how close she was to him when he left?
A. Yes. She stated she was standing right there, and he walked right across
in front of her.
Q. And she was positive on her identification to you?
A. Yes, she was.
¶3. The State thereafter called Carey to the witness stand, and she identified Partee in
court. Carey described what she recalled Partee wearing on the evening of the burglary. In
more detail, Carey testified to the following: she had known Partee all her life; and on
October 5, 2016, she was across the street from Partee when she saw him walk by with a red
two-wheeled cart, go toward Clay’s house, stand up on Clay’s green truck, lift the window
of Clay’s house, pull out an air conditioner, put the air conditioner on the two-wheeled cart,
and go into Clay’s house through the window. When Partee went inside the house, Carey
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testified that she stepped up closer to look. She did not see Partee come out of the house.
She testified that she later saw Partee come out of Clay’s yard with the air conditioner on the
cart and walk past her. Carey testified that Partee was in the house at least ten to fifteen
minutes. She additionally stated that she saw another individual, whose nickname she said
was “Young,” enter Clay’s house through the open window along with Partee.
STANDARD OF REVIEW
¶4. We review a trial court’s decision to admit or exclude testimony for abuse of
discretion. McGriggs v. State, 987 So. 2d 455, 457 (¶3) (Miss. Ct. App. 2008).
ANALYSIS
¶5. Partee argues that the circuit court erred in allowing Investigator Jones to testify at
trial about the statements Carey made to him during the burglary investigation. Partee asserts
that Investigator Jones’s testimony about Carey’s statements constituted inadmissible hearsay
that improperly bolstered Carey’s testimony.
¶6. Hearsay is defined by Mississippi Rule of Evidence 801(c) as “a statement that: (1)
the declarant does not make while testifying at the current trial or hearing; and (2) a party
offers in[to] evidence to prove the truth of the matter asserted in the statement.” However,
Mississippi Rule of Evidence 801(d)(1)(C) provides “[a] statement . . . is not hearsay [if]:
. . . [t]he declarant testifies and is subject to cross-examination about a prior statement, and
the statement . . . identifies a person as someone the declarant perceived earlier.” (Emphasis
added).
¶7. Here, Carey testified at trial and was available for and subjected to cross-examination.
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Likewise, Investigator Jones was available for and subjected to cross-examination. Further,
each of Carey’s statements, as testified to by Investigator Jones, are, for the most part,
statements of identification of Partee in the manner Carey perceived him at the time. Carey
identified Partee as: the person she saw cut down the side to the back of Clay’s house; the
person she saw get up on a vehicle; the person she saw remove an air conditioner from Clay’s
window; the person she saw go inside Clay’s house through the window; and the person she
saw leave the area minutes later.
¶8. Thus, the statements regarding Carey’s identification of Partee were not hearsay. See
M.R.E. 801(d)(1)(C). Instead, these were statements of identification made after perceiving
Partee. We therefore find Investigator Jones’s testimony regarding Carey’s identification of
Partee was non-hearsay and was admissible. To the extent the admission of any of
Investigator Jones’s testimony regarding Carey’s statement was in error, the error was
harmless. The jury heard, from Carey, in more detail about: Carey’s relationship to Partee,
the victim, and others; Partee’s movements in, toward, and around the victim’s house; and
Partee’s possession of the victim’s air conditioner. Accordingly, this issue lacks merit.
CONCLUSION
¶9. Because the investigator’s hearsay-identification testimony fell within an exception
to the rule against hearsay and Partee’s right to a fair trial was not prejudiced, we find no
error in the circuit court’s admission of the testimony. We therefore affirm Partee’s
conviction and sentence.
¶10. AFFIRMED.
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LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
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