Robert Kent Hardin v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-00576-COA
ROBERT KENT HARDIN
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
1/30/2004
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
DAVID FITZGERALD LINZEY
OFFICE OF ATTORNEY GENERAL
BY: CHARLES W. MARIS
BILLY L. GORE
DEE BATES
CRIMINAL - FELONY
CONVICTED OF COUNT I - BURGLARY OF A
DWELLING AND SENTENCED TO 25 YEARS
WITH 10 YEARS TO SERVE AND 15 YEARS OF
POST-RELEASE SUPERVISION; COUNT II BURGLARY OF A DWELLING AND
SENTENCED TO 25 YEARS WITH 10 YEARS
TO SERVE AND 15 YEARS OF POST-RELEASE
SUPERVISION; COUNT III - CONSPIRACY TO
COMMIT BURGLARY OF A DWELLING AND
SENTENCED TO 5 YEARS OF POST-RELEASE
SUPERVISION; COUNT IV - ARMED ROBBERY
AND SENTENCED TO 35 YEARS WITH 15
YEARS TO SERVE AND 20 YEARS OF POSTRELEASE SUPERVISION; COUNT V
KIDNAPING AND SENTENCED TO SERVE 5
YEARS OF POST-RELEASE SUPERVISION FOR
A TOTAL OF 35 YEARS TO SERVE ALL IN THE
CUSTODY OF THE MDOC AND SIXTY YEARS
OF POST-RELEASE SUPERVISION
AFFIRMED - 06/20/2006
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Robert Kent Hardin was convicted on two counts of burglary of a dwelling, one count of
conspiracy to commit burglary of a dwelling, one count of armed robbery, and one count of kidnaping.
Hardin was sentenced to serve twenty-five (25) years on count one, burglary of a dwelling, with ten (10)
years to serve in the custody of the Mississippi Department of Corrections and the remaining fifteen (15)
years on post-release supervision; twenty-five (25) on count two, burglary of a dwelling, with ten (10) years
to serve in the custody of the Mississippi Department of Corrections and the remaining fifteen (15) years
on post-release supervision; five (5) years on count three, conspiracy to commit the crime of burglary of
a dwelling, to be served on post-release supervision; thirty-five (35) years on count four, armed robbery,
with fifteen (15) years to serve in the custody of the Mississippi Department of Corrections and twenty (20)
years on post-release supervision; five (5) years on count five, kidnaping, to be served on post-release
supervision. Hardin’s total sentence resulted in thirty-five (35) years incarceration and the remaining sixty
(60) years on post-release supervision. On appeal, Hardin argues that his conviction is not supported by
legally sufficient evidence. We affirm.
FACTS
¶2.
Robert Kent Hardin and Johnny Lee Wallace met at the Hinds County Restitution Center. On
March 2, 2002, Hardin and Wallace signed out of the center and went to McDonald’s where Wallace
worked. Wallace testified that they had marijuana and that they smoked it on the way to McDonald’s.
After Wallace’s shift, they still had marijuana and did not want to return to the restitution center. They went
to the bus station and bought tickets to Brookhaven.
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¶3.
When the pair arrived in Brookhaven, Wallace called a friend to pick them up. Randy King picked
the two up at a gas station and took them to his dorm room at Copiah-Lincoln Community College. The
following day, King dropped them off at one of Wallace’s friend’s house, somewhere near McComb.
Wallace testified that about an hour after they were dropped off he was picked up by another friend, and
Hardin’s girlfriend picked him up. According to Wallace’s testimony, he never saw Hardin again. Wallace
was then asked:
Q.
Do you recall pleading guilty to the crimes of two counts of burglary of a dwelling,
conspiracy to commit burglary, armed robbery, and kidnaping?
A.
Yes, ma’am.
Q.
Did you have counsel at the time of the guilty plea?
A.
Yes, ma’am .
...
Q.
A.
¶4.
Mr. Wallace, count three is an indictment for conspiracy. And you just testified
that you pled guilty to that. That count of conspiracy says that you conspired with
Robert Kent Hardin to commit these crimes, and you pled guilty under oath to
that, didn’t you?
Yes, I did.
The court then allowed the State to call Investigator Lance Falvey, of the Lincoln County Sheriff’s
Department, to testify about the statement Wallace gave on April 22, 2002, after he was arrested. This
statement was played for the jury and to contradict Wallace’s testimony. In the recorded statement,
Wallace gave a very different version of the events.
¶5.
In Wallace’s recorded statement, he implicated Hardin as his co-conspirator. He gave a detailed
account of the burglary, robbery, and kidnaping as well as flight to Mexico. Wallace’s statement contains
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internal inconsistencies, notably he alternates calling his co-conspirator “Robert” or “Sean.” At Hardin’s
trial, Wallace admitted that he gave the statement that implicated Hardin in an effort to get a plea bargain.
STANDARD OF REVIEW
¶6.
In reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most
favorable to the verdict. Bush v. State, 895 So. 2d 836, 844 (¶16) (Miss. 2005). If any reasonable trier
of fact could have found the essential elements of the crime beyond a reasonable doubt, we uphold the
verdict. Id. Should the facts and inferences considered in a challenge to the sufficiency of the evidence
“point in favor of the defendant on any element of the offense with sufficient force that reasonable men could
not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the
appellate court to reverse and render. Id. (citing Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
ANALYSIS
¶7.
Hardin argues that no prosecution witness ever identified him as the person who was with Johnny
Wallace the day the crimes were committed. “The character and adequacy of evidence of identification
of an accused in a criminal case is primarily a question for the jury, provided the evidence could reasonably
be held sufficient to comply with the requirement of proof beyond a reasonable doubt.” Passons v. State,
239 Miss. 629, 634, 124 So. 2d 847, 848 (Miss. 1960). Our review of the record reveals that Hardin
is incorrect. Indeed, Hardin claims that the prosecution failed to offer any evidence of the identity of the
defendant. However, it is clear from the transcript that the prosecution expected Wallace to identify Hardin
as his co-conspirator and to connect Hardin to each of the crimes. When Wallace recanted his story, the
prosecution was left with a difficult task of proving Hardin’s identity and connection to the crimes without
Wallace testifying consistent with his statement to Officer Falvey.
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¶8.
Hardin claims that during trial nine witnesses testified for the prosecution. Investigator Falvey was
the only one who was asked to identify Hardin in court. He asserts that there was no in- court identification
of Hardin that placed him with Johnny Wallace immediately prior to, during or immediately following the
alleged crimes.
¶9.
The prosecution elicited testimony from the three witnesses who possibly could have identified
Hardin. However, their testimony focused on the race, age, physical build and lack of tattoos of the
perpetrators. Each witness was asked to describe the perpetrators, and they all described the perpetrators
as white males. Each witness testified that one was slightly taller than the other, but of about the same build.
¶10.
Investigator Lance Falvey testified that Johnny Wallace is five feet nine inches tall and
approximately 135 or 140 pounds. Falvey also testified that Hardin is five feet six inches tall and weighs
approximately 135 pounds.
¶11.
Dorothy Featherly, Wallace’s aunt, was the victim of the armed robbery. She testified that she
knew Wallace was there. The prosecutor did not ask Ms. Featherly if she could identify the other person
who robbed her. Featherly’s testimony did not result in an identification of Robert Hardin as the second
perpetrator. Featherly testified that she was robbed by two young men of medium build, who were
wearing white tee shirts, black pants and masks covered their faces.
¶12.
Randy King testified that Johnny Wallace called King to pick him up in Brookhaven on the night
Wallace and Hardin left the restitution center. King recalled that he picked Wallace and another person
up and was told the other person was named Sean. According to King, Sean was white and built about
the same as Wallace, but Sean was shorter than Wallace. King also testified that Sean was a smaller build,
and he would describe Wallace as taller and thinner. The prosecutor did not ask King if he could identify
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Hardin as the person who was with Wallace. King was asked if he noticed any tattoos on Johnny’s friend’s
arms. King responded that he did not notice any at all.
¶13.
The prosecutor did not ask King if he could recognize the person who was with Wallace that night.
Even though King possibly could have corroborated the allegation that Robert Hardin was also known as
Sean, the prosecutor did not ask King if the person who he picked up and allowed to spend the night in
his dorm room was in the courtroom.
¶14.
Keith Boyd also testified for the prosecution. Keith Boyd lived a short distance from the scene of
crimes. Boyd testified that, on the day the crimes were committed, he was awakened at his home and
found two young white men at his door. They asked him for a ride to Bristers’ store. Boyd testified that
he was not going to take them until one of them offered him one hundred dollars to get them to the store
before three o’clock. Boyd then drove the pair to the store.
¶15.
Boyd saw the faces of both perpetrators very shortly after the crimes occurred. However, the
prosecutor did not ask Boyd if he could identify the person that was with Johnny Wallace that day. Boyd
was also asked about the race and build of the men, and described them as white, young guys. Boyd did
testify that one of them was three or four inches shorter than the other. Boyd was also asked about the
presence of tattoos on the forearms of either of them, and he testified that he did not notice any tattoos.
¶16.
As discussed above, the prosecution called Johnny Wallace to the stand to testify he identified
Robert Hardin. However, Wallace testified that Hardin was not the one who committed the crimes with
him. The prosecutor then questioned Wallace about his guilty plea, where he identified Robert Hardin as
his co-conspirator. The prosecution offered, without objection by the defense counsel, the taped statement
given by Johnny Wallace to Investigator Falvey shortly after Wallace was arrested. On this tape, Wallace
gives a long statement detailing the events from when he and Hardin left the restitution center until Wallace
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was arrested. The taped statement implicates Hardin as his cohort, but also refers to “Sean” as the person
who committed the crimes with him. The names are used interchangeably.
¶17.
Hardin argues that the “taped statement is unreasonable, not probable, and substantially impeached.
According to the Court, that would render his testimony unusable.” Nason v. State, 840 So. 2d 788, 791
(¶11) (Miss. Ct. App. 2003). In Nason, Smith, a co-defendant, was called to testify to identify Nason as
the “perpetrator of the crime.” Id. at 790 (¶7). Nason argued that the testimony was unreliable, self
serving and not credible. Id. at (¶8). This Court held
Even though Smith's testimony should be viewed with caution and suspicion, it was the trial
judge's responsibility to weigh the probative value of the testimony versus the prejudicial
aspect of the testimony. Even though Smith's testimony contained inconsistencies, it is the
duty of the jury to determine “the impeachment value of inconsistencies or contradictions
as well as testimonial defects of perception, memory, and sincerity.” Noe v. State, 616 So.
2d 298, 303 (Miss.1993) (citing Jones v. State, 381 So. 2d 983, 989 (Miss.1980)).
Furthermore, the testimony of Smith was not uncorroborated. Testimony can be
corroborated by either evidence or by other testimony. The State presented at least two
witnesses, all of whom testified closely if not exactly to what Smith testified to. As for the
testimony being “reasonable, not improbable, self-contradictory or substantially
impeached,” Smith's testimony was well within reason and not improbable. Smith was even
warned about this possibility right before he was to testify and was given the chance to
back out of testifying. In addition, Nason had an opportunity to cross-examine Smith,
which would have enabled Nason to bring to light any inconsistencies, ulterior motives, fear
or duress.
Nason, 840 So. 2d at 791 (¶¶10-11). Nason does not support Hardin’s argument.
¶18.
We must first consider the effect of Wallace’s taped statement. Hardin argues that Wallace’s
testimony in court is inconsistent with the statement given on the tape, and the recorded statement is
internally inconsistent. Wallace’s statement would be considered under the definiation of hearsay. It is an
out of court statement that is being offered to prove the truth of the matter asserted. However, Mississippi
Rule of Evidence 801(d)(1)(A) provides that “[a] statement is not hearsay if: . . . The declarant testifies
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at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is
inconsistent with his testimony, and was given under oath subject to the penalty of perjury at a trial, hearing
or other proceeding, or in a deposition. . . .” Thus, Wallace’s testimony that he previously pled guilty and
as part of the plea testified under oath that he “conspired with Robert Kent Hardin to commit these crimes”
is sufficient to identify Hardin as a participant in the crimes.
¶19.
Next, we must consider the corroborating evidence. “Only slight corroboration of an accomplice’s
testimony is required to sustain a conviction.” Young v. State, 425 So. 2d 1022, 1024 (Miss. 1983). In
addition to Wallace’s guilty plea, the following evidence provides corroboration:
1.
Wallace met Hardin at the restitution center. They left together without
authorization smoked marijuana together, rode the bus to Brookhaven together,
and were together the following day at the home of a guy named Wesley.
2.
The jury was entitled to consider similar descriptions elicited from Featherly, King,
and Boyd concerning the physical features and builds of the two men they
encountered.
3.
The jury was entitled to consider the similarity of clothing. Hardin wore a 9 ½
size shoe while Wallace wore size 11. There was testimony describing white Tshirts and black pants.
4.
The jury was entitled to consider the clothing with Mexican labels and tags which
reflected it was either made or purchased in Mexico.
5.
The jury was entitled to consider the fact that Hardin was arrested in Laredo,
Texas, a border town.
6.
The jury was entitled to consider the testimony concerning the gang-related tattoos
on the forearms of both Wallace and Hardin which were never noticed by anyone
until after the trip to Mexico.
7.
The jury was entitled to consider the fact that over $8,000 was taken during the
burglaries and the robbery of Featherly. Thus, both men had sufficient funds to
travel to Texas and Mexico.
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8.
9.
¶20.
The jury was entitled to consider that “Poker” was too non- descriptive to be
anything other than a fabrication by Wallace.
The jury was entitled to consider Hardin’s abandoned clothing found at the crime
scene.
Ordinarily it would be within the jury’s province to determine which statement was most credible.
It is for jurors to resolve conflicts in testimony. McGee v. State, 828 So. 2d 847, 850 (¶13) (Miss. Ct.
App. 2002) (citing Jackson v. State, 614 So. 2d 965, 972 (Miss. 1993)).
¶21.
We find the evidence was sufficient to support Hardin’s conviction. Therefore, we affirm.
¶22. THE JUDGMENT OF THE LINCOLN COUNTYCIRCUIT COURT OF CONVICTION
OF COUNT I - BURGLARY OF A DWELLING AND SENTENCED TO TWENTY-FIVE
YEARS WITH TEN YEARS TO SERVE AND FIFTEEN YEARS OF POST-RELEASE
SUPERVISION; COUNT II - BURGLARY OF A DWELLING AND SENTENCED TO
TWENTY- FIVE YEARS WITH TEN YEARS TO SERVE AND FIFTEEN YEARS OF POSTRELEASE SUPERVISION; COUNT III - CONSPIRACY TO COMMIT BURGLARY OF A
DWELLING AND SENTENCED TO FIVE YEARS OF POST-RELEASE SUPERVISION;
COUNT IV - ARMED ROBBERY AND SENTENCED TO THIRTY-FIVE YEARS WITH
FIFTEEN YEARS TO SERVE AND TWENTY YEARS OF POST-RELEASE SUPERVISION;
COUNT V KIDNAPING AND SENTENCED TO SERVE FIVE YEARS OF POST-RELEASE
SUPERVISION FOR A TOTAL OF THIRTY-FIVE YEARS TO SERVE ALL IN THE
CUSTODYOF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND SIXTYYEARS
OF POST-RELEASE SUPERVISION IS AFFIRMED. THIS SENTENCE WILL ALSO RUN
CONSECUTIVE TO HIS PROBATION REVOCATION. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO LINCOLN COUNTY.
KING, CJ., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER,
BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
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