Fabiyonne Peel a/k/a Fabiyonne K. Peel v. State of Mississippi

After a report of a burglary with theft of property, Investigator Adrian Ready

questioned a man named Pates. Pates had been caught on video using a stolen credit card at

a Jackson-area store. Local people had reported the card stolen after their apartment was

burglarized. In addition to the credit card, the burglars stole an iPad and a car.

¶3. During questioning, Pates implicated Fabiyonne Peel and three other men in the

burglary and theft. Investigator Ready then questioned Pates’s girlfriend, who confirmed

seeing Peel drive a group to the stolen car and watching the group drive away. With that

information, Investigator Ready obtained an arrest warrant for Peel. Upon entering Peel’s

home, he found Peel hiding under a pile of clothes near the bed. Investigator Ready also

found the stolen iPad.

¶4. A grand jury indicted Peel for burglary of a dwelling, conspiracy to commit burglary

of a dwelling, motor-vehicle theft, and conspiracy to commit motor-vehicle theft. A Madison

County Circuit Court jury acquitted Peel of the charge for conspiracy to commit motor

vehicle theft; however, a mistrial was declared on the remaining counts because the jury

could not reach a unanimous decision.

¶5. Several months later, Peel’s second trial was held, and a jury found him guilty of

burglary of a dwelling, conspiracy to commit burglary of a dwelling, and motor-vehicle theft.

The circuit court sentenced Peel as a violent habitual offender to three concurrent terms of

life imprisonment in the Mississippi Department of Corrections’ custody.

¶6. Peel moved for a JNOV or, in the alternative, a new trial, which the circuit court

denied. He appeals, alleging that: (1) the circuit court erred when it limited his cross

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examination of Investigator Ready; (2) there was not sufficient evidence to convict Peel of

motor-vehicle theft; (3) his motor-vehicle theft conviction violates the Double Jeopardy

Clause; and (4) the guilty verdicts were contrary to the weight of the evidence.

DISCUSSION I. Did the circuit court err in limiting Peel’s cross-examination of Investigator Ready?

¶7. Peel asserts that the circuit court erred when it did not allow him to cross-examine

Investigator Ready regarding his interrogation of Peel. Therefore, he requests a new trial.

¶8. “Regarding the admission or exclusion of evidence, we employ an abuse-of-discretion

standard of review.” Robinson v. State, 248 So. 3d 892, 896 (¶15) (Miss. Ct. App. 2018). “A

defendant’s failure to contemporaneously object to the admission of evidence at trial, as

required by Mississippi Rule of Evidence 103, effectively waives the issue on appeal.”

Carter v. State, 227 So. 3d 416, 421 (¶14) (Miss. Ct. App. 2017).

¶9. On direct examination of Ready, the State asked if Peel asserted an alibi:

Q. And did the Defendant try to give you an alibi for that night? A. He did. Q. Where did he claim he was? A. Said he was with his girlfriend . . . . Q. For what period of time? A. All night. Q. In fact did he tell you all weekend? A. All weekend.

Peel made no objection. Then, during cross-examination, Peel attempted to question

Investigator Ready about the interrogation, and the circuit court limited his line of

questioning after objection by the State because it was “hearsay being brought out by the

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Defendant.” This decision was a proper application of our evidentiary law, as “[h]earsay is

a statement, other than one made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.” Fullilove v. State, 101 So. 3d

669, 675 (¶19) (Miss. Ct. App. 2012). But Peel asserts that had the court allowed his

questioning of Investigator Ready, the testimony would have shown that Peel told

Investigator Ready about where he obtained the iPad and other exculpatory evidence.1

¶10. Peel only asserted that the State got “hearsay evidence in and when our side [did not].”

However, Peel failed to contemporaneously state that the prosecution had opened the door

or cite Mississippi Rule of Evidence 106, which provides, “If a party introduces all or part

of a writing or recorded statement, an adverse party may require the introduction, at that time,

of any other part—or any other writing or recorded statement—that in fairness ought to be

considered at the same time.”

¶11. The circuit court, in its motion in limine ruling, had previously reviewed the

interrogation by Investigator Ready and found that it would be excluded as hearsay.

Therefore, we find that by not bringing to the court’s attention the previous ruling in limine,

and then not asserting that the full statement should be admitted under Rule 106, such issue

was waived on appeal and is procedurally barred from being asserted as error at the circuit

court level. We also note that the circuit court was correct in holding that the contents of the

interrogation were hearsay when offered by the defendant and that the circuit court was

1 We also note that prior to the first trial—which ended in a mistrial—the State filed a motion in limine to prohibit Peel from discussing the statement he made during the interrogation. The court granted that motion without objection from Peel. 4

within its discretion in prohibiting that testimony.

II. Was there sufficient evidence to convict Peel of motor-vehicle theft?

¶12. Peel asserts that evidence was insufficient to convict him of motor-vehicle theft

because he had no prior knowledge of the theft and did not participate or assist in the theft.

¶13. When evaluating the sufficiency of evidence to sustain a conviction, this Court asks,

“whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Brown v. State, 217 So. 3d 805, 807 (¶5) (Miss. Ct. App. 2017) (citing Jackson v.

Virginia, 443 U.S. 307, 315 (1979)).

¶14. The State offered much testimonial evidence at trial that indicated Peel was guilty of

motor-vehicle theft. The jury heard testimony that Peel drove the group of burglars to the

apartment, that Peel was inside of the apartment when the keys were stolen and the car was

driven away, and that Peel drove a group following the stolen car and watched that group

drive away. Importantly, the jury heard that Peel was present during the entire theft.

¶15. The jury was then instructed:

The Court instructs the Jury that if you unanimously find from the evidence in this case, beyond a reasonable doubt, that the defendant, Fabiyonne K. Peel, on or about January 10, 2016, in Madison County, Mississippi did:

1. willfully, unlawfully and feloniously; 2. without authority, take possession of or take away a motor vehicle; 3. one (1) 2011 Dodge Charger motor vehicle, VIN #2B3CL3CGOBH567324; 4. a motor vehicle belonging to Beverly Brown but being driven by Ashley Brown; 5. being valued at $5,000 or more but less than $25,000; 6. with the intent to permanently or temporarily convert it or to permanently

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or temporarily deprive of the owner of possession or ownership; then and in that event, the defendant, Fabiyonne K. Peel, is guilty of motor vehicle theft and it is your sworn duty to so find.

¶16. The jury found the essential elements were met beyond a reasonable doubt. And, after

viewing the evidence in the light most favorable to the prosecution, we hold that any rational

trier of fact could have found the essential elements of motor-vehicle theft beyond a

reasonable doubt.

¶17. Peel’s conviction of motor-vehicle theft is supported with sufficient evidence. We

therefore find that the circuit court properly denied Peel’s JNOV motion.

III. Did Peel’s motor-vehicle theft conviction violate the Double Jeopardy Clause?

¶18. Peel contends that because a jury had already acquitted him of conspiracy to commit

motor-vehicle theft, that acquittal precluded any other conviction based on aiding and

abetting motor-vehicle theft. He therefore claims that his motor-vehicle theft conviction

violates the Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution.

¶19. “We apply a de novo standard of review to claims of double jeopardy.” Kelly v. State,

80 So. 3d 802, 804 (¶8) (Miss. 2012) (quoting Boyd v. State, 977 So. 2d 329, 334 (¶14)

(Miss. 2008)). The Double Jeopardy Clause of the Fifth Amendment states: “[N]or shall any

person be subject for the same offence to be twice put in jeopardy of life or limb[.]” U.S.

Const. amend. V; see Benton v. Maryland, 395 U.S. 784, 787 (1969) (holding that this right

applies to the States through the Fourteenth Amendment); see also Miss. Const. art. III § 22

(1890) (“No person’s life or liberty shall be twice placed in jeopardy for the same offense;

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but there must be an actual acquittal or conviction on the merits to bar another prosecution.”).

¶20. We typically evaluate claims of double-jeopardy violations using the Blockburger test,

where the United States Supreme Court held that “where the same act or transaction

constitutes a violation of two distinct statutory provisions, the test to be applied to determine

whether there are two offenses or only one, is whether each provision requires proof of a fact

which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). But we

note that our Court recently wrote that “conspiracy to commit a crime is different from the

crime that is the object of the conspiracy; the first necessarily involves joint action while the

other does not.” Arnold v. State, 225 So. 3d 561, 564 (¶10) (Miss. Ct. App. 2017) (quoting

Moore v. State, 290 So. 2d 603, 605 (Miss. 1974)). Thus, motor-vehicle theft and conspiracy

to commit motor-vehicle theft are two distinct crimes that stem from two distinct statutory

provisions.

¶21. But Peel asserts a collateral-estoppel argument beyond Blockburger. He claims that

his acquittal on the charge of conspiracy necessarily reflects a determination that he did not

aid and abet the theft of the motor vehicle. But there are differences between the crime of

conspiracy and the crime of aiding and abetting. The United States Supreme Court observed

in Iannelli v. United States, 420 U.S. 770, 777 n.10 (1975), that an “agreement remains the

essential element of the crime [of conspiracy][] and serves to distinguish conspiracy from

aiding and abetting[,] which, although often based on agreement, does not require proof of

that fact . . . .” “Aiding, abetting, and counseling are not terms [that] presuppose the existence

of an agreement. Those terms have a broader application, making the defendant a principal

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when he consciously shares in a criminal act, regardless of the existence of a conspiracy.”

Pereira v. United States, 347 U.S. 1, 11 (1954). This is a valid distinction between

conspiracy and aiding and abetting, and it is relevant to the facts of this case and Peel’s

double-jeopardy argument.

¶22. And that double-jeopardy argument is based on Ashe v. Swenson, 397 U.S. 436

(1970), where the defendant was prosecuted and acquitted for robbery of one of six victims.

Id. at 439. The prosecutor then attempted to try the defendant for robbing a different victim.

Id. at 440. But the United States Supreme Court held that, despite entailing a different victim,

the second prosecution was barred by collateral estoppel because the first acquittal was based

on the factual determination that the defendant was not the perpetrator. Id. at 445. The

ultimate test here is “whether a rational jury could have grounded its verdict upon an issue

other than that which the defendant seeks to foreclose from consideration” in subsequent

prosecution. Id. at 444.

¶23. The record indicates that one of Peel’s co-defendants spontaneously decided to steal

the motor vehicle only after he happened upon its keys during the burglary. A rational jury

could have found that Peel never agreed to enter into a conspiracy to accomplish this

unplanned motor-vehicle theft. However, a rational jury could also have found that Peel

“consciously share[d] in [the] criminal act, regardless of the existence of a conspiracy.”

Pereira, 347 U.S. at 11.

¶24. Therefore, there is no double-jeopardy violation, and we affirm the circuit court’s

judgment.

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IV. Were the guilty verdicts contrary to the weight of the evidence?

¶25. Peel claims that the guilty verdicts were contrary to the weight of the evidence

because Pates’s testimony is “snitch testimony,” and, therefore, it cannot be trusted. Only

Pates placed Peel at the apartment, thus, Peel characterizes this as a miscarriage of justice.

¶26. When reviewing a challenge to the weight of the evidence, we will disturb a jury

verdict only if “it is so contrary to the overwhelming weight of the evidence that to allow it

to stand would sanction an unconscionable injustice.” Little v. State, 233 So. 3d 288, 291

(¶21) (Miss. 2017). This Court reviews the evidence in the light most favorable to the verdict.

Roberts v. State, 229 So. 3d 1060, 1068 (¶29) (Miss. Ct. App. 2017).

¶27. In general, uncorroborated accomplice testimony is sufficient to convict a defendant.

Grossley v. State, 127 So. 3d 1143, 1148 (¶14) (Miss. Ct. App. 2013) (citing Osborne v.

State, 54 So. 3d 841, 846 (¶22) (Miss. 2011)). But this premise “is inapplicable in those cases

where the testimony is unreasonable, self-contradictory or substantially impeached.” Id.

Other evidence supported Pates’s testimony—and ultimately Peel’s guilty verdict—including

a recorded telephone call from jail, Peel’s cell phone records that placed him near the

apartment around the time of the burglary, and the police having located the stolen iPad at

Peel’s house.

¶28. Finding that the verdicts were not so contrary to the overwhelming weight of the

evidence that to allow them to stand would sanction an unconscionable injustice, we affirm

the circuit court’s judgment.

We find that: (1) the circuit court did not err when it limited Peel’s cross-examination

of Investigator Ready; (2) there was sufficient evidence to convict Peel of motor-vehicle

theft; (3) Peel’s motor-vehicle theft conviction does not violate the Double Jeopardy Clause;

and (4) the guilty verdicts were not contrary to the weight of the evidence. Thus, we affirm

the circuit court’s judgment.