Earl Blue v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00787-COA
EARL BLUE A/K/A 'PIG'
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
05/03/2001
HON. W. ASHLEY HINES
LEFLORE COUNTY CIRCUIT COURT
LELAND H. JONES III
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
FRANK CARLTON
CRIMINAL - FELONY
ARMED ROBBERY: SENTENCED TO A TERM OF
THIRTY YEARS IN THE CUSTODY OF THE MDOC
CONSECUTIVE TO CAUSE NUMBER 23,904.
REVERSED AND REMANDED - 10/01/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
10/22/2002
BEFORE KING, P.J., IRVING, CHANDLER, AND BRANTLEY, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Earl Blue was convicted of armed robbery in the Circuit Court of Leflore County. The trial court
sentenced him to thirty years' imprisonment after the jury was unable to agree on whether to sentence Blue
to life. The court subsequently denied his motion for a judgment notwithstanding the verdict and Blue
appeals to this Court. Blue now argues that the State never proved that he used a weapon during the
commission of the robbery; therefore, he cannot be found guilty of armed robbery. We agree, finding that
the State failed to prove a necessary element of armed robbery. However, the evidence clearly supports a
finding of simple robbery. Therefore, we reverse and remand this case for sentencing on the lesser-included
offense of simple robbery.
FACTS
¶2. On the evening of May 3, 2000, Earl Blue walked into the Shell-Go store in Greenwood, Mississippi.
Blue entered the restroom and walked out, loitering inside the store for approximately ten minutes. After all
of the customers had left the store, Blue walked to the counter and purchased two pieces of gum. When
Katrina Wilson opened the register, Blue ordered her and the other clerk, Jacqueline Sandifer, to step
back. Blue had a brown paper bag over his hand, pointing it in their direction. Wilson, not knowing whether
Blue possessed a weapon underneath the bag, stepped back from the register. Blue then reached in the
register and grabbed approximately $175, escaping through the door.
I. DID THE TRIAL COURT ERR IN DENYING BLUE'S MOTION FOR A JNOV?
¶3. Blue appeals from the denial of his motion for a JNOV, challenging the sufficiency of the evidence in
support of his armed robbery conviction. When reviewing a trial court's denial of a motion for a directed
verdict or JNOV, this Court considers "the sufficiency of the evidence as a matter of law . . . in a light most
favorable to the State." McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). We will accept any credible
evidence that supports guilt as true, granting the prosecution "the benefit of all favorable inferences that may
reasonably be drawn from the evidence." Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987). This Court
will only reverse where a reasonable, fair-minded juror could not have found one of the required elements
of the crime. Gleeton v. State, 716 So. 2d 1083, 1087 (¶ 14) (Miss. 1998).
¶4. Section 97-3-79 of the Mississippi Code sets out the elements of armed robbery:
Every person who shall feloniously take or attempt to take from the person or from the presence the
personal property of another and against his will by violence to his person or by putting such person in
fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery .
...
Miss. Code Ann.§ 97-3-79 (Rev. 2000). Blue argues that because his hand had been concealed in a paper
bag, and neither witness saw whether there was anything in the bag, there was no exhibition of a deadly
weapon.
¶5. The Mississippi Supreme Court has held that "the determination of whether an instrument is a deadly
weapon is a question of fact to be determined by the jury." Duckworth v. State, 477 So. 2d 935, 938
(Miss. 1985). However, in Duckworth, unlike the case sub judice, the perpetrator of the crime actually
pointed a "blank starter pistol" at his victim; the jury was asked to decide whether the starter pistol, although
not inherently deadly, could be considered deadly within the language of the statute. Id. at 938. Similarly, in
Hughey v. State, 512 So. 2d 4 (Miss. 1987), the court determined that an object under the defendant's
shirt could be considered a deadly weapon where evidence was presented that the object had the outline of
a gun and the perpetrator told the victim that it was a gun. Hughey, 512 So. 2d at 6.
¶6. Unlike Duckworth and Hughey, neither of the two clerks witnessed a gun or even the outline of a gun.
In Gibby v. State, 744 So. 2d 244, 245 (¶8) (Miss. 1999), the court stated that absent actual evidence
demonstrating the exhibition of a gun, we will not affirm a defendant's conviction for armed robbery. In
Gibby, the defendant poked something hard into the victim's ribs, demanding he get out of the car; the
victim testified that he assumed the defendant had a gun. Id. at 244-45 (¶3). The Mississippi Supreme
Court reversed the defendant's conviction for armed robbery, emphasizing that "[a]ssumptions are not
evidence and cannot support a conviction on any standard, let alone beyond a reasonable doubt." Id. at 245
(¶8).
¶7. Here, the State presented no objective evidence that Blue possessed a gun at the time of the robbery;
as such, the conviction for armed robbery must be reversed. According to both Wilson and Sandifer, they
did not know whether a gun was within the opaque, paper bag. However, as a matter of precaution, both
clerks assumed there was a gun within the paper bag. Clearly, under the reasoning in Gibby, these
assumptions are not enough to support Blue's conviction of armed robbery. Moreover, Blue neither
threatened to shoot the clerks nor made any other assertion indicating that he possessed a gun. Finally, the
police officers never recovered a gun.
¶8. While recognizing that the evidence does not support a conviction for armed robbery, we find the
evidence is clearly sufficient to support a conviction for simple robbery. As the record reflects, the jury was
instructed that if it did not find Blue guilty of armed robbery, it could find him guilty of the simple robbery, a
lesser-included offense of armed robbery. As the Mississippi Supreme Court has stated, the direct remand
rule allows this Court to remand the case for sentencing on the lesser-included offense of simple robbery
where the State proved all of its necessary elements but failed to prove the crime of armed robbery. Clark
v. State, 756 So. 2d 730, 733 (¶12) (Miss. 1999). See also Gibby, 744 So. 2d at 245 (¶9). Therefore,
this case is remanded for sentencing on the offense of simple robbery.
II. DID THE TRIAL COURT ERR IN ADMITTING BLUE'S STATEMENT THAT HE
WAS "TIRED OF RUNNING?"
¶9. During the trial, Judy Leach, a detective secretary for the Greenwood Police Department, testified that
Blue commented, "I'm glad it's over with. I'm tired of looking over my shoulder." Blue argued that the
statement should have been excluded as he had already indicated to the police officers that he did not wish
to make any statements. According to Blue, he stated to police that he desired to be placed in a cell and did
not wish to make any statements. However, rather than placing him directly in the cell, the police put him in
a chair before the police secretary. Blue now argues that the act of placing him before the secretary was
coercive and the subsequent statement should have been excluded. The State does not dispute that Blue
requested to remain silent; however, it argues that Blue's statement was voluntary and unsolicited. The judge
permitted the statement, noting that "if they had asked him anything, it would be clearly inadmissible."
¶10. A voluntary, unsolicited statement is admissible. Luster v. State, 515 So. 2d 1177, 1179 (Miss.
1987); Murphy v. State, 426 So. 2d 786, 789 (Miss. 1983). The finding of whether a statement was
voluntarily given is factual; therefore, we will not reverse the trial court's decision to admit the statement
unless clearly erroneous. Mettetal v. State, 602 So. 2d 864, 868 (Miss. 1992). The trial court must weigh
the totality of the circumstances in making the factual inquiry into the voluntariness of a statement or
confession. Morris v. State, 798 So. 2d 603, 606 (¶8) (Miss. Ct. App. 2001). "The defendant bears a
heavy burden in attempting to reverse a trial court's decision that a confession is admissible." Id.
¶11. We first note that there is no evidence in the record that Blue asked to be taken directly to the jail cell
upon arrival at the police station. Regardless, the police secretary made no attempt to question Blue while
he was in custody, respecting his request and right against self-incrimination. See Fabian v. State, 267 So.
2d 294, 296 (Miss. 1972) (noting that voluntary, spontaneous admissions prior to any interrogation are
admissible). The trial judge emphasized this when stating the reasons for admitting Blue's statement.
Furthermore, we do not find the mere act of placing Blue in front of the secretary prior to placing him in a
jail cell so coercive as to require reversal. This act, when viewed with all the other circumstances
surrounding Blue's custody, does not qualify as an actual interrogation. As such, we find his statement
voluntary and admissible.
III. DID THE TRIAL COURT ERR IN SENTENCING BLUE TO THIRTY YEARS'
IMPRISONMENT?
¶12. Blue argues that the trial court exceeded its jurisdiction and the will of the jury in sentencing him to
thirty years' imprisonment because the term was so long that, when combined with other sentences being
served by Blue, the total exceeded his life expectancy. This argument is moot since we are remanding for
sentencing on simple robbery, a crime with a maximum sentence of fifteen years. Even were we to reach this
argument, it is wholly without merit. The Mississippi Supreme Court has made explicitly clear, "each
sentence is to be imposed without respect to the other." Erwin v. State, 557 So. 2d 799, 803 (Miss.
1990). Therefore, although the jury chose not to impose a life sentence, the sentence of thirty years when
combined with a prior sentence of twenty-five years, may in fact exceed Blue's life expectancy. See Wash
v. State, 807 So. 2d 452 (¶¶16-21) (Miss. Ct. App. 2001).
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF
CONVICTION OF ARMED ROBBERY IS REVERSED AND REMANDED FOR
SENTENCING ON THE CRIME OF SIMPLE ROBBERY. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO LEFLORE COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING AND MYERS, JJ., CONCUR. BRANTLEY, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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