Andrew McCormick v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-01547-COA
ANDREW MCCORMICK
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
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:
08/22/2000
HON. ROBERT H. WALKER
HARRISON COUNTY CIRCUIT COURT
SCOTT WATSON WEATHERLY JR.
OFFICE OF THE ATTORNEY GENERAL
BY DEIRDRE MCCRORY
CONO A. CARANNA II
CRIMINAL - FELONY
FOUND GUILTY OF POSSESSION OF AT LEAST 30
GRAMS OF COCAINE SENTENCED TO SERVE A
TERM OF 20 YEARS IN THE CUSTODY OF THE MDOC
AFFIRMED - 12/18/2001
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
1/8/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Andrew McCormick was found guilty by a circuit court jury of possession of at least thirty grams of
cocaine. On appeal, McCormick argues that the evidence was insufficient, that his constitutional right to
counsel of his own choosing was violated, that the State used its peremptory challenges in a discriminatory
manner, that his motion for continuance should have been granted, and that his sentence constitutes cruel
and unusual punishment. We find none of these allegations to be valid. Consequently, we affirm.
STATEMENT OF THE FACTS
¶2. On July 19, 1999, at approximately 8:20 P.M., two black men entered the Ramada Limited, a hotel
located on Highway 90 in Biloxi, Mississippi. Dung Dinh, the hotel's president and manager, stated that the
two individuals, who were later identified as Andrew McCormick and Maurice Jackson, looked as if they
had been running because both were sweating profusely. Upon entering the hotel, Jackson and McCormick
immediately went into the restroom but re-emerged almost immediately. They then sat down in the hotel's
breakfast area. Dinh asked them to leave. Instead of complying, they asked for permission to use a phone
to call a cab. Dinh told them to use the public phone located in the lobby.
¶3. Shortly after this conversation occurred, a black Mercedes arrived at the hotel with three Asian men
inside. Jackson and McCormick, seeing the new arrivals before the reverse occurred, ran into the
manager's office and locked themselves inside. Two of the individuals from the Mercedes entered the hotel
lobby. The manager thought that one of them had a gun under his shirt. One of the men asked Dinh if two
black men had recently entered the hotel. Dinh testified at trial that he was afraid of a confrontation and
therefore denied seeing two such men. The Asian males returned to their car and appeared to be leaving
when Jackson and McCormick emerged from the hotel office. Their pursuers spotted them but before they
could re-enter the hotel, Dinh locked the lobby doors and instructed another hotel employee to call the
police.
¶4. Two eyewitnesses testified that during this time McCormick placed a plastic bag that contained white
round objects into his pocket. One of the witnesses heard either McCormick or Jackson state that "this was
a drug deal gone bad."
¶5. The three men in the Mercedes drove away when hotel president Dinh told them that the police had
been contacted. Before the police responded, Jackson and McCormick attempted to leave the premises,
but Dinh refused to unlock the doors. When the police arrived, McCormick was seen running into a storage
room near Dinh's office. There only briefly, McCormick then re-entered the lobby and was searched by the
police. One of the hotel employees, having been told by a guest of McCormick's rush into the storeroom,
went into the room and discovered inside a refrigerator a plastic shopping bag containing a white substance.
The police were told and took possession of what later proved to be cocaine.
¶6. Both Jackson and McCormick were arrested. McCormick was indicted for possession of at least thirty
grams of cocaine with intent to distribute. McCormick was found guilty and his appeal to the Supreme
Court has been deflected here.
DISCUSSION
I. Denial of continuance and refusal to allow appointed counsel to withdraw
¶7. McCormick's indictment was returned in February 2000. A waiver of arraignment was signed by both
McCormick and his court appointed counsel in May, with a trial date set of August 14, 2000. On that latter
date, McCormick's counsel advised the court that he was not ready to proceed because he had been
unable to contact McCormick, who had been released on bail. The court remanded McCormick into
custody and set the trial for August 21, 2000.
¶8. On August 17, 2000, new counsel filed a motion for continuance. She claimed that McCormick had
retained her as counsel and that she did not have sufficient time to prepare an adequate defense. Counsel
also maintains that a continuance was needed to secure the presence of an expert witness who would be
critical to McCormick's defense. The expert was to be a latent fingerprint examiner. At trial the State made
no objection and that expert testimony was admitted. In addition, a continuance was said to be necessary
because McCormick needed to secure the presence of two Asian men who were detained in connection
with this offense. The State argued, though, that the named witnesses claimed to have no knowledge of the
cocaine, and therefore the defense would not be prejudiced by their absence.
¶9. The motion for continuance was denied. The trial court stated that the case had been set for trial for
months. The court allowed McCormick's retained counsel to participate in the trial if she so desired, while
refusing to allow court-appointed attorney to withdraw.
¶10. In an analogous precedent, the defendant had appointed counsel but shortly before trial retained a
different counsel. Atterberry v. State, 667 So. 2d 622, 630 (Miss. 1995). The new counsel requested a
continuance, but the motion was denied. At that point, the retained counsel refused to proceed. The trial
judge's response was to order court appointed counsel to go forward and represent the defendant. As here,
the trial court also gave retained counsel the option of assisting in the trial. The Supreme Court stated that
based on these facts the trial court acted within its discretion. Id. A defendant has an absolute right to
counsel, but the right to choose counsel is not absolute. It is a right that must not be abused or manipulated
in such a way as to "thwart the progress of a trial." Ladnier v. State, 273 So. 2d 169, 173 (Miss. 1973).
¶11. The most noteworthy fact about McCormick's motion for continuance is that although McCormick
alleges a continuance was necessary to obtain the testimony of subpoenaed witnesses, he offered no
affidavit stating "the facts which he expects to prove by his absent witness or documents that the court may
judge the materiality of such facts," as required by statute. Miss. Code Ann. § 99-15-29 (Rev. 2000).
Therefore, the effect of the missing witnesses on the trial is the rankest speculation.
¶12. McCormick relies on two precedents to demonstrate reversible error. In one, the defendant was
required to stand trial three weeks after being indicted, giving retained counsel only eight days to prepare a
defense. Hughes v. State, 589 So. 2d 112, 113 ( Miss. 1991). Not only did counsel have eight days to
prepare for one trial, this same attorney had to represent Hughes's son in trial the next day. Id. at 114.
Thus, one attorney had two different trials with less than ten days to prepare for both. McCormick had
more than five months after his indictment to become prepared, including to retain counsel and to have any
witnesses served with a subpoena who were necessary to his defense. In the other precedent on which
McCormick relies, the defense had timely summoned several witnesses, "and no official return had been
made as to why the witnesses" had not been served. Barnes v. State, 249 So. 2d 383, 384 (Miss. 1971).
That defect does not exist as to McCormick.
¶13. To be distinguished are the requirements for a motion for continuance based on lack of reasonable
time to prepare and a continuance requested because of the absence of a witness:
[t]he application for continuance upon the ground that the attorney for the defendant has not had a
reasonable time to prepare for trial is different from an application for continuance on the ground that
there is an absent witness. When a witness is absent the movant must continue his effort to obtain the
witness . . . . On the other hand, a motion for continuance upon the ground that an attorney has not
had sufficient time to prepare for trial is subject to proof and also as to facts as they may appear from
that which is known from the trial court.
Id.
¶14. The argument of McCormick's retained counsel that she needed more time to prepare was rejected
by the trial judge. "[I]t is largely within the sound judicial discretion of the trial judge as to whether or not the
defendant's attorney has had ample time to prepare for trial." Id. at 384-85.
II. Batson Violation
¶15. McCormick's next assertion of error concerns the State's allegedly purposeful exclusion of black
jurors and the trial judge's failure to require the State to explain the reason for the peremptory strikes that it
exercised. It is improper for either the prosecutor or the defendant to use peremptory challenges on the
basis of race. Once a prima facie case of discriminatory use has been made, the party exercising the
challenges must then explain the reason for each one. Batson v. Kentucky, 476 U.S. 79, 96 (1986). At
McCormick's trial, the trial court found that no prima facie case of discrimination was ever made.
¶16. McCormick argues that a prima facie case was made because the State attempted to strike two black
veniremen for cause, which the trial court denied, and subsequently struck the same potential jurors using
peremptory challenges. We find a prima facie case that the State did not want those two jurors, but that
does not prove race bias. The trial court noted that the State had utilized only two of its six peremptory
strikes and had accepted three black jurors.
¶17. We agree that the State's acceptance of one black juror does not necessarily block the inference of
discrimination if a significant number of other jurors of that race were struck. The "fact that the prosecution
used all of the peremptory strikes necessary (five) to remove all but one black person from the jury satisfies
the requirement of raising an inference of racial discrimination." Conerly v. State, 544 So. 2d 1370, 1372
(Miss. 1989). The trial court made a reasonable fact finding at McCormick's trial, despite Connerly, that
striking only two of five prospective black jurors does not create a prima facie case of discrimination even if
striking five of six does.
III. Sufficiency of Evidence
¶18. McCormick argues that there was insufficient evidence to convict. We review the evidence in the
record with deference for the jury's finding of guilt. We will view all the evidence from the perspective that
favors the verdict, making all reasonable evidentiary inferences and credibility choices that are consistent
with guilt. Only when "the facts and inferences so considered point in favor of the accused with sufficient
force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,"
is the evidence insufficient to sustain the judgment of conviction. Bishop v. State, 771 So. 2d 397, 402-03
(Miss. Ct. App. 2000).
¶19. McCormick's guilt is supported by eyewitness testimony that he placed a bag containing a white
substance in his pants shortly before the police arrived at the Ramada. A hotel patron testified that he heard
either McCormick or his compatriot say that this was a drug deal that had gone bad. An employee of the
hotel saw McCormick run into the hotel storage room, only to emerge a short time later. It was in that
storage room that the cocaine was found in bags similar to the ones McCormick was seen placing in his
pants minutes earlier. This is sufficient to convict.
IV. Constitutionality of Sentence
¶20. McCormick was sentenced to serve twenty years in the penitentiary without the prospect of probation
or parole. He asserts that this is disproportionate to the crime and is cruel and unusual punishment. The
Supreme Court has held that the defense must raise the proportionality issue in the trial court, or else the
matter is procedurally barred. Taylor v. State, 452 So. 2d 441, 450 (Miss. 1984). Regardless, "the
imposition of a sentence is within the discretion of the trial court and this Court will not review the sentence,
if it is within the limits prescribed by statute." Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988).
¶21. McCormick could have been sentenced to sixty years in prison with a fine of two million dollars. The
trial court acted within the limits prescribed by statute. We find no error.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF POSSESSION OF THIRTY GRAMS OR MORE OF COCAINE AND
SENTENCE AS AN HABITUAL OFFENDER OF TWENTY YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS ARE
ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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