Joseph Darnell Peyton v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00924-COA
JOSEPH DARNELL PEYTON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
1/24/2002
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
KELLIE WILLIAMSON KOENIG
JAMES (JAY) R. FOSTER
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CONO A. CARANNA, II
CRIMINAL - FELONY
CONVICTED OF ARMED ROBBERY SENTENCED TO SERVE A TERM OF THIRTYFIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED - 09/30/2003
BEFORE SOUTHWICK, P.J., THOMAS AND IRVING, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Joseph Darnell Peyton was convicted in the Circuit Court of Harrison County of armed robbery
and sentenced as an habitual offender to thirty-five years in the custody of the Mississippi Department of
Corrections. Aggrieved, he asserts the following issues on appeal:
I.
THE TRIAL ATTORNEY FOR THE APPELLANT WAS INEFFECTIVE AS
COUNSEL.
II.
THE EVIDENCE PRESENTED AT TRIAL WAS NOT SUFFICIENT.
III.
THE TRIAL JUDGE ERRED IN NOT ALLOWING IN EVIDENCE OF THE
STATEMENT OF MICHAEL MARTISHIUS AND/OR ALLOWED THE TRIAL
ATTORNEY TO ASK THE INVESTIGATING OFFICERS ABOUT IT.
¶2.
Finding no error, we affirm.
FACTS
¶3.
The Pat O's liquor store in Biloxi was robbed on March 1, 2001, by a large man dressed as a
woman who pulled a gun after coming to the counter as if to buy a bottle of vodka. The clerk pushed the
silent alarm button and then complied with his demands, giving the thief the store's cash and the bottle of
vodka. The clerk noticed the thief leaving in a red car. A few minutes later, the police pulled over a small
red car being driven by a friend of Peyton with Peyton in the passenger seat.
¶4.
The driver of the car, Shari Thompson, was arrested along with Peyton. She described the
women's clothing Peyton had been wearing and police retrieved them that same day. A grand jury later
declined to indict Thompson. Approximately two weeks after the arrest, however, Thompson gave a
sworn statement to police describing the events of March 1, 2001. She stated she had helped Peyton dress
in women's clothing because he told her they were going to a gay bar. On the way to the bar, she stopped
at a convenience store near Pat O's to purchase a soft drink for herself and a beer for Peyton. When
Thompson returned to the car, Peyton was not in it. After a couple of minutes, Peyton came running
around the corner, jumped into the car and told Thompson to "Go, go, go!" Peyton removed the items of
women's clothing and threw them out of the car window along with a handgun.
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¶5.
Both Thompson and Peyton testified at trial. Thompson's testimony was as she had reported in
her statement to police. Peyton contradicted Thompson. He claimed to have been driving around town
with a man named Richard whom he had recently met and whose last name he did not know. Richard's car
overheated in a subdivision and Peyton borrowed Richard's cellular phone to call Thompson for a ride
although he did not know precisely where he was. When Thompson arrived to pick him up, she was
screaming hysterically that her friend had just robbed a store and then began throwing women's clothing
from the car.
¶6.
The jury found Peyton guilty of armed robbery and this appeal followed.
ANALYSIS
1. Ineffective assistance of counsel
¶7.
In his first assignment of error, Peyton argues his trial counsel was ineffective and he is entitled to
a new trial. Peyton bases this error upon an alleged admission of deficient performance by trial counsel as
well as that attorney's failure to subpoena any witnesses. Peyton claims he was prejudiced by this failure.
¶8.
Claims of ineffective assistance of counsel are analyzed by a two-part inquiry: (1) whether
counsel's performance was deficient; and (2) whether that deficiency prejudiced the defendant. Strickland
v. Washington, 466 U.S. 668, 687 (1984). The first prong is evaluated by whether or not counsel's legal
representation fell outside objectively measured boundaries of reasonableness. Id. at 687-88. The second
is measured by whether the trial outcome would have been different but for counsel's deficient performance.
Cole v. State, 666 So. 2d 767, 775 (Miss. 1995).
¶9.
The alleged admission of deficiency occurred on the morning of the trial during the State's motion
to exclude the testimony of an alibi witness, notice of which was not served upon the State until the prior
afternoon. Trial counsel acknowledged she bore responsibility for the late notice but requested the
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testimony be admitted nonetheless. Counsel did state later in the discussion that if the testimony were
excluded, her representation of Peyton would have been ineffective. Before the court could rule, the State
withdrew its objection to the testimony.
¶10.
There are no other entries in the record of any form of admission of deficient performance by trial
counsel. Neither was this single exchange such an admission. Counsel noted that if the testimony was
excluded, she would have been deficient but the testimony was not so excluded. The event which would
have precipitated an admission of ineffective assistance never occurred.
¶11.
Although Peyton alleges his counsel was ineffective for failing to subpoena witnesses, he does not
claim injury by the failure to place the alibi witness on the stand. Instead, he alleges that counsel should
have issued a subpoena to Michael Martishius, a bystander in the area of the robbery at the time it
occurred.
¶12.
Martishius was unavailable as a witness at trial but he had given a statement to police at the time
of the robbery. The trial court ruled the unsworn statement inadmissible hearsay. Peyton asserts the
substance of Martishius' statement was critical to his defense because it contradicted Shari Thompson's
account of events in material ways. Specifically Peyton claims that, "[b]ecause Shari Thompson places
Peyton at the scene of the crime around the time of the robbery," it was therefore deficient performance
by trial counsel requiring reversal to fail to assure Martishius' presence at trial.
¶13.
Although Peyton was not permitted to introduce the statement at trial, he did make a proffer outside
the jury's presence as to the content of the statement. Martishius told police he had seen a red car pull to
the curb near the liquor store, a man get out, jump across the ditch, go into the liquor store then run back
out some little time later and the car drive away. Martishius said he initially thought there was only one
person in the car but later realized there were two, he thought the man had been driving and he thought the
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license plate was obscured by a paper bag. Martishius was later taken to view Thompson's car and he
identified it as the one he had seen parked near the liquor store.
¶14.
Thompson had testified she had been driving and she parked on a street different than that identified
by Martishius. There was also a discrepancy in the color of sweater Thompson said Peyton was wearing
and the one Martishius identified the running man as wearing. None of these small discrepancies on
collateral matters in any way cast doubt upon Thompson's placement of Peyton at or near the scene of the
robbery at the time it occurred. Assuming Martishius would have testified in consonance with the statement
given police, we cannot see that it would have significantly altered the outcome of this trial. Failing to issue
a subpoena to Martishius cannot have prejudiced Peyton.
2. Sufficiency of the evidence
¶15.
Peyton next argues the evidence presented was insufficient to sustain his conviction. He points to
the fact that no witness actually identified him as the perpetrator as proof of the insufficiency of the
evidence.
¶16.
In testing an allegation of insufficient evidence, we look at the evidence in the light most favorable
to the State and the reasonable inferences to be drawn from that evidence. McClain v. State, 625 So.
2d 774, 778 (Miss. 1993). We will reverse only where, with respect to one or more elements of the crime
charged, no reasonable and fair-minded jury could have found the defendant guilty. Wetz v. State, 503
So. 2d. 803, 808 (Miss. 1987).
¶17.
The store clerk did not identify Peyton. She did, however, describe him and the female clothing
he was wearing and identified the clothing found by police as the same the robber was wearing. This
description is born out by a store security videotape of the robbery. Shari Thompson likewise described
the clothing and the geographic location where Peyton had thrown them from her car, the areas where
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police later found the clothing described. Thompson admitted driving Peyton, in the women's clothing, to
the vicinity of the liquor store, and a bottle of vodka of the same size and brand stolen from the store was
found in the back seat of Thompson's car. These facts are sufficient to create a circumstantial case of
Peyton's guilt. The verdict was not unreasonable and this assignment of error is without merit.
3. Exclusion of Martishius' statement
¶18.
In the final argument, Peyton alleges error on the part of the trial court in excluding the statement
of witness Michael Martishius to police. At trial, Peyton attempted to cross-examine Investigator Michael
Brown about the contents of the statement. Martishius was deemed an unavailable witness as he was then
an in-patient at a rehabilitation facility and the court found no applicable exceptions to the hearsay rule.
¶19.
Admissibility of evidence is a matter largely left to the discretion of the trial court, subject to the
requirements of the Mississippi Rules of Evidence. Parker v. State, 606 So. 2d 1132, 1136 (Miss. 1992).
We reverse evidentiary rulings only where the lower court abuses its discretion, resulting in prejudice to the
defendant. Id.
¶20.
Peyton argued at trial and again here on appeal that he did not seek to have the contents of
Martishius' statement offered for their truth but rather to show the course of Brown's investigation. The trial
court disagreed and proceeded to carefully explain why none of the hearsay exceptions applied, including
the "catch-all" exception of Mississippi Rule of Evidence 804(b)(5). The court found the statement lacked
the necessary indicia of trustworthiness, was not probative of a material fact but offered solely for
impeachment, and Peyton did not comply with the rule's notice requirement.
¶21.
We cannot disagree with the trial court, particularly in light of the admission by trial counsel that use
of the statement was intended for the specific purpose of contradicting Shari Thompson's testimony. That
is impeachment. Further review of the transcript shows the impeachment would have centered only on
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collateral matters–whether the red car was parked on the street in front of the store or the street to the side
of it, whether the license plate was obscured, what color sweater the running man was wearing. Martishius
never claimed to have witnessed the robbery, he never identified–or excluded–Peyton as the robber, he
merely saw a man get out of a red car then come back later, get in the car and drive away. None of the
information the statement may have provided contradicted Thompson's testimony in any significant manner
such that the interests of justice demand our finding an abuse of discretion.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY-FIVE YEARS AS AN
HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO
HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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