Donelson v. State
| Docket Number: | 2012-KA-00859-COA Linked Case(s): 2012-CT-00859-SCT ; 2012-KA-00859-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-05-2014 Opinion Author: Maxwell, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Aggravated assault - Sufficiency of evidence - Reference to nickname - Reasonable doubt definition - Cross-examination - Witness credibility instruction - Second post-trial motion - URCCC 10.05 Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Fair and James, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-16-2011 Appealed from: HINDS COUNTY CIRCUIT COURT Judge: TOMIE T. GREEN Disposition: Convicted of aggravated assault and sentenced to twenty years in the custody of the Mississippi Department of Corrections Case Number: 11-79CRG |
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| Party Name: | Attorney Name: | |||
| Appellant: | Albert Donelson |
SANFORD E. KNOTT |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA L. BLOUNT |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Aggravated assault - Sufficiency of evidence - Reference to nickname - Reasonable doubt definition - Cross-examination - Witness credibility instruction - Second post-trial motion - URCCC 10.05 |
| Summary of the Facts: | Albert Donelson was convicted of aggravated assault and sentenced to twenty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Donelson argues there was no evidence that he used a rifle, gun, or blunt object to injure the victim and at best, the evidence supports him kicking the victim. However, there was evidence that Donelson injured the victim by striking him with an assault rifle. A gun does not have to be used for its designed purpose in order for it to be a deadly weapon. The jury heard evidence that, after Donelson and others “stomped” the victim and while he was still on the ground, Donelson struck him with an assault rifle. The jury saw pictures of the victim taken while he was in the hospital and heard testimony by the victim that, due to his injuries, he had no recollection of that night. Donelson also argues that the evidence was insufficient because it consisted of the uncorroborated testimony of his co-indictee. Generally, uncorroborated accomplice testimony may be sufficient to convict a defendant unless it is unreasonable, self-contradictory or substantially impeached. Here, the co-indictee explained his previous inconsistent statements. And, his testimony was corroborated by another witness and other evidence. Thus, there is sufficient evidence to support the verdict. Issue 2: Reference to nickname Donelson argues that the verdict was based on jury bias which resulted from the prosecutor reading from a witness statement that referred to Donelson as “Batman.” The trial judge had ruled that the nickname could not be referenced by the State. While the State’s reference to “Batman” was improper, the trial judge reacted swiftly to enforce her prior evidentiary ruling. In addition, Donelson did not ask for a mistrial. Thus, there is no error. Issue 3: Reasonable doubt definition Donelson argues for the first time on appeal that he is entitled to a new trial, because the judge improperly defined “reasonable doubt” for the jury. Because reasonable doubt defines itself, it needs no definition by the court. Not only did Donelson fail to object, but the judge’s statements were made during voir dire, before the jury was actually seated. At the end of trial, the seated jury received instructions. And Donelson admits there was nothing wrong with how these instructions spelled out the State’s burden of proof. Thus, there is no error. Issue 4: Cross-examination Donelson argues that the judge hindered his right to cross-examination of his co-indictee. When a trial court rules so as to prevent certain testimony from being introduced, it is incumbent on the party to make a proffer of what the witness would have testified to or the point is waived for appellate review. Here, Donelson made no proffer, so this issue is waived. Issue 5: Jury instructions Donelson argues that the judge’s rejection of his witness-credibility instruction was error. The trial judge may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Here, the issue of the co-indictee’s credibility was covered in the other instructions. Thus, the judge did not err in refusing the instruction. Issue 6: Second post-trial motion Donelson appeals the denial of his “Second Motion for New Trial, or in the Alternative, Post-Conviction Relief” which he filed four months after his judgment was entered, three months after his first post-trial motion was denied, and a month and a half after he petitioned to reopen the time to file an appeal. Pursuant to URCCC 10.05, his motion was filed too late. As a motion for post-conviction relief, his motion was filed too soon. Thus, there is no error. |
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