Marvin Lewis Beckum, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-00420-COA
MARVIN LEWIS BECKUM, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
11/19/2003
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
JONATHAN MICHAEL FARRIS
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CRIMINAL - FELONY
CONVICTED OF ROBBERY AND SENTENCED
AS A HABITUAL OFFENDER TO THIRTY (30)
YEARS IN THE CUSTODY OF THE MDOC
WITHOUT THE POSSIBILITY OF PAROLE.
AFFIRMED - 12/13/2005
BEFORE KING, C.J., BRIDGES AND GRIFFIS, JJ.
BRIDGES, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
On November 17, 2003, a jury sitting before the Forrest County Circuit Court found Marvin
Beckum, Jr. guilty of robbery. The circuit court sentenced Beckum, a habitual offender, to thirty years
without the possibility of parole. On January 7, 2004, Beckum filed an unsuccessful motion for judgment
notwithstanding the verdict or, alternatively, a new trial. Aggrieved, Beckum appeals and advances the
following issues, listed verbatim:
I.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND/OR MOTION FOR NEW TRIAL AND IN
REFUSING TO GRANT THE PEREMPTORY INSTRUCTION.
II.
THE TRIAL COURT ERRED IN REFUSING TO GRANT [BECKUM’S] REQUEST FOR
A CONTINUANCE.
III.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] BATSON OBJECTION.
IV.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] MOTION FOR RECUSAL.
Finding no error, we affirm.
FACTS
¶2.
Beckum stood accused of robbing Mr. Robert Nimocks. At trial, Mr. Nimocks testified to the
following events. Around 7:30 p.m. on September 1, 2003, someone rang the doorbell at Mr. Nimocks’s
house in Hattiesburg, Mississippi. Mr. Nimocks, then eighty-eight years old, answered the door. A young
man stepped inside Mr. Nimocks’s house and asked Mr. Nimocks for a glass of water. Mr. Nimocks
recognized the young man. Mr. Nimocks also remembered that, several years prior, the young man
washed the windows at Mr. Nimocks’s house.
¶3.
Mr. Nimocks gave the young man a glass of water and they discussed whether Mr. Nimocks had
any chores that the young man could perform. Mr. Nimocks did not have any work for the young man.
Mr. Nimocks inserted some money into his wallet. As Mr. Nimocks went to put his wallet in his back
pocket, the young man attacked and robbed him. According to Mr. Nimocks’s testimony:
[T]he young man tackled me around the neck, and I don’t know just how it happened, but
I ended up on the floor with my head skint, my glasses turned up, and he was sitting
straddling me wanting to know where my money was or where my billfold was, and all the
time he was asking for it, he was reaching for it, and he grabbed it out of my hand, and he
sat on my back, and counted the money.
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¶4.
Not content with Mr. Nimocks’s money, the man ripped Mr. Nimocks’s phone out of the wall and
demanded the keys to Mr. Nimocks’s car. Mr. Nimocks complied. The young man took Mr. Nimocks’s
keys and left in Mr. Nimocks’s gray 1984 Ford. Mr. Nimocks then called 911.
¶5.
Five minutes later, Officer Tony Fontaine, a member of the Hattiesburg Police Department, arrived
at Mr. Nimocks’s house. Mr. Nimocks told Officer Fontaine that the young man took his car and his
money. Because the attacker knocked Mr. Nimocks’s glasses off, Mr. Nimocks could only recall that the
man had a round face, short hair, and wore sweat pants. Officer Fontaine reported the description of the
suspect, Mr. Nimocks’s car, and Mr. Nimocks’s license plate.
¶6.
Around midnight, Edward Biters, a police officer employed by the Forrest General Hospital,
patrolled the hospital grounds. Officer Biters, aware of the descriptions provided by Officer Fontaine, saw
a car that matched Officer Fontaine’s description. Officer Biters followed the car, observed the license
plate, and confirmed that the car was still listed as stolen. Officer Biters continued to follow the car.
Officer Fontaine and Detective William McCormick, also with the Hattiesburg Police Department, joined
Officer Biters in his pursuit.
¶7.
The officers attempted to stop the car, but the driver sped up and attempted to evade them. The
officers chased the car for seven to ten miles before the driver stopped at a house. When the driver
stopped, he got out of the car and ran into the woods. Officer Fontaine got out of his car and chased the
driver on foot. Officer Fontaine caught the driver approximately seventy-five to one hundred yards from
the point at which he stopped Mr. Nimocks’s car. The driver, Marvin Beckum, Jr., wore white tennis
shoes, blue jean shorts, and a light colored shirt.
¶8.
On September 2, 2003, Detective McCormick returned to Mr. Nimocks’s house. During that
visit, Detective McCormick showed Mr. Nimocks a photograph line up that contained five photographs
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and asked Mr. Nimocks whether he could identify the young man that robbed him. Mr. Nimocks picked
out Beckum’s picture.
¶9.
At trial, the prosecution called five witnesses: Officer Fontaine, Mr. Nimocks, Officer Biter,
Detective McCormick, and Jeffery Byrd, a crime scene investigator. Beckum did not present any evidence
of his own. As mentioned, the jury convicted Beckum and Beckum filed unsuccessful motions for JNOV
and for a new trial.
ANALYSIS
I.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT AND/OR MOTION FOR NEW TRIAL AND IN
REFUSING TO GRANT THE PEREMPTORY INSTRUCTION.
¶10.
In this issue, Beckum requests our review of three dispositions in the circuit court: (1) the circuit
court’s decision to overrule his motion for JNOV; (2) the circuit court’s decision to overrule his motion for
a new trial; and (3) the circuit court’s decision to overrule his request for a peremptory instruction. A
request for peremptory instruction and a motion for JNOV both challenge the legal sufficiency of the
evidence. McClain v. State, 625 So.2d 774, 778 (Miss. 1993). A motion for a new trial challenges the
weight of the evidence. Carr v. State, 774 So.2d 469 (¶15) (Miss. Ct. App. 2000).
A.
¶11.
WAS THE EVIDENCE AGAINST BECKUM INSUFFICIENT TO SUPPORT THE
JURY’S VERDICT?
Beckum’s peremptory challenge and his motion for JNOV both challenged the sufficiency of the
evidence at the time Beckum raised them. McClain, 625 So.2d at 778. This Court must review Beckum’s
last challenge. Id. Beckum last challenged the sufficiency of the evidence when he raised his motion for
JNOV. Id.
In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter
of law is viewed and tested in a light most favorable to the State. The credible evidence
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consistent with [Beckum’s] guilt must be accepted as true. The prosecution must be given
the benefit of all favorable inferences that may be reasonably drawn from the evidence.
Matters regarding the weight and credibility of the evidence are to be resolved by the jury.
We are authorized to reverse only where, with respect to one or more of the elements of
the offense charged, the evidence so considered is such that reasonable and fair-minded
jurors could only find the accused not guilty.
Id. (citations omitted).
¶12.
Beckum claims that the circuit court should have granted his motion for JNOV because the State
presented insufficient evidence that Beckum was the young man who robbed Mr. Nimocks. To support
his claim, Beckum notes that, on the day of trial, Mr. Nimocks could not identify him as his attacker.
Beckum also submits that no evidence places him at Mr. Nimocks’s house on September 1, 2003.
¶13.
Beckum did not raise this specific allegation in his motion for JNOV or for a new trial. A motion
for directed verdict and JNOV must be specific. Banks v. State, 394 So.2d 875, 877 (Miss.1981).
Consequently, this allegation, raised for the first time on appeal, is procedurally barred.
B.
¶14.
WAS THE JURY’S VERDICT AGAINST THE OVERWHELMING WEIGHT OF
THE EVIDENCE?
“The contention that the verdict is against the overwhelming weight of the evidence must first be
raised in the defendant's motion for a new trial.” Carr, 774 So.2d at (¶15) (citing URCCC 10.05). “The
trial court has substantial discretion in ruling on a motion for a new trial and should only grant the motion
where allowing the verdict to stand would result in an unconscionable injustice.” Carr, 774 So.2d at (¶15).
“When reviewing a trial court's denial of a motion for a new trial, this Court must consider the evidence in
the light most favorable to upholding the verdict.” Id. “We must keep in mind that it is the jury's
responsibility to resolve matters regarding the weight of the evidence and the credibility of witnesses.” Id.
“This Court can only reverse upon finding that the trial court has abused its discretion in denying the new
trial motion.” Id. at 473. Beckum faces “a presumption that the judgment of the trial court is correct.”
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Stack v. State, 860 So.2d 687 (¶20) (Miss. 2003) (citing Alexander v. State, 759 So.2d 411, 418
(Miss. 2000). ”Beckum’s burden is to demonstrate some reversible error. Id.
¶15.
Beckum’s motion for a new trial simply stated that “the jury’s verdict . . . [was] against the
overwhelming weight of the evidence.” Beckum’s challenge of the weight of the evidence merely concluded
that the verdict was against the overwhelming weight of the evidence. Unquestionably, this is a vague and
general statement. Beckum’s brief, generalized, and conclusory argument failed to distinguish any particular
deficiency in the proof, or to assert how the verdict is contrary to the overwhelming weight of the evidence.
Accordingly, this issue is procedurally barred. Stack, 860 So.2d at (¶20). That being the case, we will
not consider the merits of Beckum’s claims.
II.
THE TRIAL COURT ERRED IN REFUSING TO GRANT [BECKUM’S] REQUEST FOR
A CONTINUANCE.
¶16.
On November 13, 2003, four days before trial, Beckum filed a motion for continuance. Beckum’s
two attorneys stated that they were unprepared for trial because they litigated three trials in the preceding
three weeks and had also been involved in plea negotiations. The State objected to Beckum’s request for
a continuance. Citing Mr. Nimocks’s age, his poor health and anxiety, and that Mr. Nimocks’s daughter
took off work to fly from Kansas City to support her father, the State argued that the circuit court should
proceed with the trial as scheduled.
¶17.
The circuit court noted that Beckum’s two appointed attorneys were appointed a month prior to
trial, that the charge against Beckum was not particularly difficult. Further, the circuit court held that Mr.
Nimocks’s age made it necessary to proceed with the trial as scheduled. Accordingly, the circuit court
overruled Beckum’s motionfor continuance. Beckum appeals that decision on the same basis he presented
to the circuit court.
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¶18.
“The decision to grant or deny a continuance is left to the sound discretion of the trial court.”
Stack, 860 So.2d at (¶7). “Unless manifest injustice appears to have resulted from the denial of the
continuance, this Court should not reverse.” Lambert v. State, 654 So.2d 17, 22 (Miss. 1995). “The
burden of showing manifest injustice is not satisfied by conclusory arguments alone, rather the defendant
is required to show concrete facts that demonstrate the particular prejudice to the defense.” Stack, 860
So.2d at (¶7) (internal quotations omitted).
¶19.
Here, we cannot conclude that the circuit court abused its discretion when it overruled Beckum’s
motion for continuance. The circuit court clearly articulated its reasoning. Mr. Nimocks was the victim and
the only eyewitness to the crime. Concerned with the prospect that Mr. Nimocks, eighty-eight years old,
might suffer illness or otherwise be unable to testify at a later date, the circuit court pressed forward with
trial. Moreover, while Beckum claims his attorneys had little time to prepare for trial, Beckum presents no
argument that shows how the circuit court’s decision caused him prejudice or “manifest injustice.” Beckum
does not claim that his attorneys would have acted differently or presented a different strategy, had they
received their continuance. As such, we affirm the circuit court’s decision to overrule Beckum’s motion
for continuance.
III.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] BATSON OBJECTION.
¶20.
During jury selection, one of Beckum’s attorneys raised a Batson challenge. Beckum’s attorney
stated that “[w]e’ve come across two black jurors during this whole time and both of them have been
struck.” Those two jurors were Ms. Beverly Lewis and Mr. Jones.1
¶21.
As for Mr. Jones, the prosecution stated that it excluded Mr. Jones because he was unresponsive,
disinterested, and did not pay attention to one of the prosecutors. The prosecution claimed it decided to
1
Mr. Jones’s first name does not appear in the record.
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exclude Ms. Lewis for strategic purposes. That is, the prosecution excluded Ms. Lewis to leave room on
the jury for jurors that, according to the prosecution, were more ideal for their purposes because they had
been victims of robbery. The circuit court determined that the prosecution had race-neutral reasons for
excluding Mr. Jones and Ms. Lewis. As such, the circuit court overruled Beckum’s Batson challenge.
Aggrieved by that decision, Beckum appeals.
¶22.
In Batson v. Kentucky, 476 U.S. 79, 96 (1986) the United States Supreme Court held that a
defendant may establish a prima facie case of purposeful discrimination during jury selection based solely
on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial. To
establish the prima facie case under Batson, a defendant must demonstrate three elements: (1) that the
defendant is a member of a cognizable racial group; (2) that the prosecutor has exercised peremptory
challenges toward the elimination of veniremen of his race; and (3) that facts and circumstances infer that
the prosecutor used his peremptory challenges for the purpose of striking minorities. Tanner v. State, 764
So.2d 385 (¶12) (Miss. 2000).
¶23.
“Once the defendant sets forth a prima facie case, the burden shifts to the State to come forward
with a race-neutral explanation for challenging the jurors.” Id. at (¶13) (internal quotations omitted). “The
trial court must then determine whether the objecting party has met its burden of proving there has been
purposeful discrimination in the exercise of the peremptory challenge.” Id. “[G]reat deference is given the
trial court when determining whether the offered explanation under the unique circumstances of a case is
truly a race-neutral reason.” Id. at (¶14). “Accordingly, we will not reverse a trial judge's factual findings
on this issue unless they appear clearly erroneous or against the overwhelming weight of the evidence.” Id.
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¶24.
For clarity’s sake, it is appropriate to analyze the circuit court’s decision as it pertained to each
excluded juror. We begin with Ms. Lewis. At trial, the circuit court held that “using a strike to reach what
you consider a more or a better juror due to their life experiences” was a race-neutral reason. While the
prosecutor articulated multiple reasons for excluding Ms. Lewis, one such reason was that he wanted to
have victims of robbery on the jury. To get to those jurors who were victims of robbery, he decided to
exclude Ms. Lewis. Thus, the prosecution made a tactical decision to exclude Ms. Lewis.
¶25.
In Walters v. State, 720 So.2d 856 (¶33) (Miss. 1998), our supreme court held that the State
offered a race-neutral explanation for exercising a peremptory challenge when the State excluded a juror
to get to the next prospective juror, who had previously been a victim of a crime. In Jackson v. State, 832
So.2d 579 (¶5) (Miss. Ct. App. 2002), this Court held that exercising a peremptory challenge for no
specific reason “other than to get down the line to some other jurors that [he] wanted to keep” is not a
race-neutral reason to exclude a juror. While reasons need not be persuasive or plausible, they must be
reasons. Id. The case at bar is more like Walters than Jackson. Here, the prosecution did not exercise
a peremptory instruction for no specific reason “other than to get down the line to some other jurors” with
no further explanation. Similar to Walters, the prosecution exercised a peremptory instruction to get to
jurors who had been victims of robberies.
¶26.
Because the prosecution articulated a tactical and race-neutral reason to exclude Ms. Lewis, we
cannot conclude that the circuit court’s findings were clearly erroneous or against the overwhelming weight
of evidence. Accordingly, we will not reverse the circuit court’s finding that the prosecution did not engage
in purposeful discrimination in choosing the jury.
¶27.
Next, we turn to Mr. Jones. According to the prosecution, Mr. Jones was disinterested and
inattentive during voir dire. The circuit court held that reasoning to be race-neutral. We cannot find that
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the circuit court’s finding is clearly erroneous, as “[i]nattentiveness alone has been accepted as a
race-neutral explanation for the exercise of a peremptory strike.” Horne v. State, 825 So.2d 627 (¶24)
(Miss. 2002). Having found that the circuit court’s findings of race-neutral reasons to exercise peremptory
challenges against Ms. Lewis and Mr. Jones, we affirm the decision of the circuit court.
IV.
THE TRIAL COURT ERRED IN DENYING [BECKUM’S] MOTION FOR RECUSAL.
¶28.
On the day of trial, Beckum filed a motion for recusal. Beckum argued that the circuit court judge
encountered Beckum when the circuit court judge worked as a public defender and again when he worked
as a prosecutor. Based on those circumstances, Beckum concluded that the circuit court judge should
recuse himself. The circuit court judge responded that he had defended Beckum on an unrelated charge
and that he had, on previous occasions, recused himself from two other cases that were pending against
Beckum. On those occasions, he recused himself because those two cases were pending when he worked
in the district attorney’s office.
¶29.
However, the circuit court judge overruled Beckum’s motionfor recusal because he had no contact
with Beckum’s then present case as a prosecutor or in any other way. Beckum appeals from the circuit
court judge’s decision to overrule his motion for recusal.
The law surrounding the recusal of a judge in Mississippi is well settled. Under Canon 3
of the Code of Judicial Conduct, an appellate court, in deciding whether a judge should
have disqualified himself from hearing a case uses an objective standard. A judge is
required to disqualify himself if a reasonable person, knowing all the circumstances, would
harbor doubts about his impartiality. The decision to recuse or not to recuse is one left to
the sound discretion of the trial judge, so long as he applies the correct legal standards and
is consistent in the application. This Court presumes that a trial judge is qualified and
unbiased, and this presumption may only be overcome by evidence which produces a
reasonable doubt about the validity of the presumption. When a judge is not disqualified
under the constitutional or statutory provisions the decision is left up to each individual
judge and is subject to review only in a case of manifest abuse of discretion.
Tubwell v. Grant, 760 So.2d 687 (¶7) (Miss. 2000) (internal quotations and citations omitted).
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¶30.
Beckum argues that he “properly rebutted the presumption of impartiality and demonstrated
manifest error on the part of the trial judge.” To support this general claim, Beckum says that he
“demonstrated that the trial judge had previously represented [him] and had also been a member of a
District Attorneys [sic] administration that had sought to prosecute [him].” Beckum also states that he
“demonstrated that the trial judge had previously recused himself from previous cases” that involved
Beckum.
¶31.
Truly, Beckum demonstrated that the circuit court judge did defend him on a prior unrelated charge.
That, without more, does not overcome the presumption of impartiality. We can also agree that Beckum
demonstrated that the circuit court judge once worked as a member of a district attorney’s office that
prosecuted Beckum. Still, that does not overcome the presumption of impartiality, in and of itself. Finally,
Beckum demonstrated that the circuit court judge recused himself from two cases against Beckum. The
circuit court judge discussed why he felt the need to recuse himself from those two cases, but not the case
at hand - those two previous cases originated during his employment with the district attorneys office. This
case, unlike the two prior cases against Beckum, did not originate during the circuit court judge’s
employment with the district attorney’s office.
¶32.
Because Beckum failed to overcome the presumption that the circuit court judge was unbiased and
impartial, we cannot conclude that the circuit court abused his discretion when he overruled Beckum’s
motion for recusal. Accordingly, we affirm the circuit court’s decision.
¶33. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF CONVICTION
OF ROBBERY AND SENTENCE AS A HABITUAL OFFENDER TO THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
THE POSSIBILITY OF PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO FORREST COUNTY.
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KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES AND ISHEE,
JJ., CONCUR. IRVING, J., NOT PARTICIPATING.
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