IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-02050-COA DAVARIOUS LEVONTE TALLEY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/10/2013 TRIAL JUDGE: HON. MARCUS D. GORDON COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: EDMUND J. PHILLIPS JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF BURGLARY OF A DW ELLING HOUSE AND SENTENCED TO TW ELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 05/19/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. BARNES, J., FOR THE COURT: ¶1. A S cott County jury returned a guilty verdict against Davarious Levonte Talley f or the charge of b u r g l a r y o f a dwelling house. The Scott County Circuit C ourt sentenced him to twelve y ears in the custody of the Mississippi D epartm ent o f Corrections. Talley now appeals, claim ing the trial court i m properly f

ailed to strike certain inadm issible hearsay testim o ny . Finding no error, we af f irm

.STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. Talley , a nineteen-y ear-old f orm er college student, was indicted f or the Decem

ber 22, 2012 b urglary of Dam ekia Boone’s hom e in Forest, Mississippi. Talley liv e d i n t h e sam e neighborhood as Boone. At trial, six witnesses testif ied f or the State. Boone testif ied that her h o me h a d been burglarized w hile she and her children were v isiting her m other that evening. Missing f

rom her hom e were an Xbox Kinect Star W ars Edition video gam e and

a p air of Jordan athletic shoes. Later, she noticed her GPS was gone. Dam age was done to bedroom windows that were closed and locked when she lef t, but had b een pried open. Also, her back door, which she had locked upon leaving, w as unlocked. N o o ne had been given
perm ission to enter her house. ¶3. Pray er W right, a thirteen-y ear-old ey ewitness to the crim e who knew T alley through her brother, testif

i ed t hat o n the date at issue, s he had spent the n ight with h er f r iend, Nikki Martin, w ho lived near Boone’s h ouse. From Nikki’s house, she observed Talley watching Boone’s house f

rom a “violet” van. Later, Pray e r saw Talley enter Boone’s house through

a window af

ter the Boones l e f

t h o me . Additionally , Nikki t estif ied she saw Talley sitting inside his m other’s van that evening parked o utside Boone’s house. N ikki told h er m other, who called the police. Keontavious Gardner, a f if teen-y ear-old, testif

ied that Talley told h im he h ad s een Boone cashing a check that day , a nd that he intende d t o rob her later that evening. Keontavious declined Talley ’s invitation to join him in the burglary

. ¶4. Keshun C h a n d l e r , a s i x teen-y ear-old ey ewitness to the burglary , testif ied that he observed Talley park his van in f ront of Boone’s h ouse and clim b through a window. At the

2tim e, Keshun was at N ikki’s house with Pray er. Keshun saw Talley exit the house through

the back do o r with an Xbox and a GPS. Later that evening, Keshun and Talley went to a Texaco station, and Talley asked a n individual there i f he wanted to buy the X box. Keshun denied any

involvem ent with the burglary

. ¶5. Of f icer Ricky Hoy e of the Forest Pol i c e D e p a r t me n t t e s tif ied t hat approxim ately twenty m inutes af

t er h e received a dispatch call about the burglary , h e observed Talley sitting alone in the drive r ’ s s e a t o f a ma roon van parked on the side of a road scrolling through a GPS. Of f icer Hoy e also saw an Xbox video gam e inside the van. ¶6. Talley testif

ied i n his own def

ense. He denied telling Keshun he was going to rob the Boones. He blam ed the burglary on Keshun. Talley testif ied that he saw Keshun enter the Boones’ back w indow a nd exit through the back door with the video gam e a nd GPS. Talley stated he observed the crim e nearby , f rom the y ard of an individual nam ed Poncho. Talley testif i ed two other y ouths also went in the house with Keshun. Talley c ontended the stolen GPS was actually his, and that when he took Keshun to t he Texaco, Keshun m ust have lef

t the stolen Xbox i n the v a n. A pproxim ately one hour e lapsed f r om t he t im e Talley claim ed he saw Keshun leave Boone’s hom e to when Talley was picked up by

the police. ¶7. Perry W right, Pray er’s b rother, also testif ied f o r the d ef ense. Perry c laim ed that af ter Talley was arrested and jailed, he had a conversation with Keshun, and Keshun conf ided that he went in the house with Talley

. ¶8. The State called two rebuttal witnesses, Of f i cer Hoy e and Of

f icer Joe Blakeney of the Forest P olice Departm ent. Of f icer Hoy e clarif

ied that he saw two Garm in GPS devices in

3Talley ’s van, a n d the Xbox was behind the d river’s seat. Of

f icer Blakeney interviewed Talley , who told him he was unaware of the b urglary , and that o ne of his f riends m ust have lef t the stolen Xbox in his vehicle. ¶9. Af ter Talley was convicted and sentenced, he f iled a m otion f

or a new t rial, which was denied. ANALYSIS ¶10. Talley raises one issue on appeal – whether the trial court erred in declining to strike Pray e r’s hearsay

testim ony

during def

ense counsel’s cross-exam i nation. ¶11. Adm ission or exclusion of ev i d e n c e w i l l be reviewed by the appellate c ourt f or an abuse of discretion. Osborne v. State , 5 4 So. 3d 8 41, 8 45 ( ¶12) (Miss. 2011). “Reversal is
proper only where the error adversely af f ects a s u bstantial right of a p arty .” Id. (citation

om itted). ¶12. During the State’s case-in-chief , Pray er t estif

ied a b o u t w h a t s h e s a w f

rom Nikki Miller’s house the night of the burglary

. Nikki’s h ouse was n ear Boone’s h ouse, and Pray er

was spending the night wi t h N i k k i

. Pray er, Nikki’s m o ther, and her sister were all in the house. During cross-exam ination, Pray er testif ied: Q. And w hat were y ’all doing there at t he house?

. . . [ W ]hen y ou say t hat y ou saw him p ull up and get out of h i s van. So where

. . . at Nikki’s house were y ou? A. W e [ were] outside in the f ront y ard.

. . . . Q. And y ou saw [ Talley ] pull up . . . and park his van and then do what?

4A. He went in the house.

Q. [ D]id y ou stay

in f ront of Nikki’s house? A. I was standing in the f r o n t o f h er house, a n d t hen I w ent back in the house and cam e outside and then he was in the house.

. . . . Q. You saw him

com e out of the house? A. Yes, sir. Q. W here did he com e out f rom ? A. The back door. Q. You can’t see the back door f rom where y ou were, though, can y ou? A. No, but he cam e out the back door. Q. And y ou know that how? A. Because when . . . they [ were] running through t here and he cam e out the door. Q. W ho is “they ? ” A. Keviana [ (sister of Nikki’s m o ther)] and her sister. Q. Keviana and her sisters . . . told you this? A. [ Y ] eah, they [

were] running.

. . . . A. And then they called my name, and then -- Q. And they told you they saw him. A. Cause he – they said he ran around the building when he saw them.

5BY [ DEFENSE COUNSEL]: Your Honor, I object t o h er testim ony

and m o ve to strike i t, if she didn’t observe a ny of this, and it appears t hat s he didn’t.
BY THE COURT: H er testim ony is subject to cross-exam ination and it does not m ean it should be stricken. Your m otion’s overruled. Q. You did not actually see him go in that house, did y ou?

. . . . A. Yes, I saw him

go through the window. Q. And y ou say these others are the ones that saw h im – actually saw . . . this m an right here actually com e out of

the house, right? A. Yes, sir. Q. Y ou didn’t see him come out of the house? A. They called my name when they saw him. Q. I understand that but that’s not m y q uestion. Y

ou didn’t see him come . . . out of the house, did you? A. No, sir. (Em phasis added.) From t his testim ony , Pray er apparent l y s a w T alley go into Boone’s house, but she did not witn e s s T a l l ey em erging f rom the house. Talley claim s Pray er’s testim o ny about seeing him leave Boone’s h ouse s h ould have been stricken because she was rely ing on what her f

riends told her. ¶13. “‘Hearsay ’ is a statem ent, other than one m ade by the declarant while testif y ing at the trial or hearing, of

f ered in evidence to prove the truth of the m a tter asserted.” M.R.E. 801(c). Hearsay is generally inadm issible. M.R.E. 802. Undoubtedly , the s tatem ents m ade by Pray er about h er f

riends s eeing T alley leave the h ouse are hearsay

. H owever, “a def endant cannot

6com

plain on appeal concerning evidence that he him s elf brought out at t r i a l

. ” R o g e rs v. State , 85 So. 3d 293, 296 (¶13) (Miss. 2012) (quoting Fleming v. S tate , 604 S o. 2d 280, 289 (Miss. 1992)). T h is rule includes evidence introduced as a result o f cross-exam i nation by def ense counsel. Id. at (¶12). ¶14. Here, t he statem ents a t issue were elicited by Talley ’s o wn d e f e nse counsel; so this
argum ent is without m erit. Regardless of whether Pray er saw Talley exit the house, the crim e

o f b u r glary involves “breaking and entering” the dwelling house; thus, testim ony about entering, not exiting, the house is the key

. See M iss. C ode A nn. § 9 7

- 1 7

- 2 3 ( R e v. 2014). Pray e r did see Talley e nter the house through a window, and this testim ony was not hearsay

. Additionally , Keshun testif ied he s aw T alley enter and exit f rom the house. A ccordingly , any error was harm less. ¶15. THE JUDGMENT OF T H E CIRCUIT COURT O F SCOTT COUNTY OF CONVICTION OF B URGLARY OF A DWELLING AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY. LEE, C.J. , IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

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