Deandre Riser v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01822-COA
DEANDRE RISER A/K/A KENNY LEE
APPELLANT
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
6/13/2001
HON. SAMAC S. RICHARDSON
MADISON COUNTY CIRCUIT COURT
WESLEY THOMAS EVANS
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
RICHARD D. MITCHELL
CRIMINAL - FELONY
COUNT I, MURDER: SENTENCE OF LIFE .
COUNT II, AGGRAVATED ASSAULT:
SENTENCE OF TWENTY YEARS. COUNT III,
AGGRAVATED ASSAULT: SENTENCE OF
TWENTY YEARS. COUNT IV, AGGRAVATED
ASSAULT: SENTENCE OF TWENTY YEARS.
COUNT V, AGGRAVATED ASSAULT:
SENTENCE OF TWENTY YEARS ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS. SENTENCES IN COUNTS
II THROUGH V ARE TO RUN CONSECUTIVELY
WITH EACH OTHER AND CONSECUTIVELY
TO COUNT I.
AFFIRMED - 05/13/2003
BEFORE MCMILLIN, C.J., LEE AND IRVING, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
Deandre Riser a/k/a Kenny Lee (hereafter "Riser") was found guilty by a Madison County jury of
one count of murder and four counts of aggravated assault. He was sentenced to life imprisonment on the
murder conviction and twenty years on each aggravated assault conviction, the assault sentences to be
served consecutively to each other and consecutively to the murder sentence. Originally, Riser had been
indicted upon the murder charge only. Two weeks prior to his trial date, the grand jury returned a new
indictment which included the murder charge as well as the four aggravated assault charges. On appeal
Riser asserts that the trial court should have quashed the indictment or granted his motion for severance of
the various counts. In the alternative Riser claims that, conceding the propriety of the multiple count
indictment and the court’s authority to try all counts in a single proceeding, the trial court abused its
discretion in refusing his motion for a continuance.
I.
Facts
¶2.
We deal primarily with procedural questions in this appeal, rendering it unnecessary to give a
lengthy recitation of the facts of the case. It is enough to say that the State presented evidence showing that
Riser entered a business establishment in Canton known as Leroy's Club and, without apparent
provocation, purposely shot five patrons inside the club. One shooting victim was fatally wounded.
II.
Multi-Count Indictment
¶3.
Originally, Riser was indicted only on a murder charge involving the deceased victim. That
indictment was handed down by the grand jury in 1998. A trial date was ultimately set for June 11, 2001.
In May 2001, a different grand jury returned a new indictment charging Riser with one count of murder,
being the same charge in the original indictment, together with four additional counts, each one for
aggravated assault against the remaining four victims who survived the shooting.
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¶4.
Defense counsel filed a motion to quash the indictment on the grounds that the multi-count
indictment was prejudicial to Riser's right to a fair trial for several reasons, including an assertion that the
crimes were unrelated and, therefore, did not fit into the narrowly-defined circumstance where such an
indictment is proper. The motion was denied and the case proceeded to trial on the original trial date.
¶5.
Riser argues first that the trial court committed reversible error by not granting severance of the
multi-count indictment that was issued just prior to trial. Historically, multi-count indictments were
prohibited in Mississippi by decisions of the Mississippi Supreme Court such as Stinson v. State, 443 So.
2d 869, 873 (Miss. 1983). However, in 1986 the Legislature adopted a multi-count indictment statute and
the Mississippi Supreme Court subsequently adopted a procedural rule allowing such indictments in
language that essentially tracked the statute. Miss. Code Ann. § 99-7-2 (Rev. 2000); URCCC 7.07. The
critical element of the statute and the rule is that such indictments are authorized only when the alleged
crimes arise out of the same transaction or are parts of a common scheme.
¶6.
When a multi-count indictment has been returned and the defendant requests severance, the trial
court is required to conduct a hearing. Corley v. State, 584 So. 2d 769, 772 (Miss. 1991). The State
bears the burden at that hearing of demonstrating that the alleged offenses do indeed arise out of the same
transaction or are parts of a common scheme. Corley, 584 So. 2d at 772. The defense "may rebut by
showing that the offenses were separate and distinct acts or transactions." Id. The trial court is admonished
to consider the time period between the offenses, whether evidence proving each offense would be
admissible to prove the other counts, and whether the offenses are interwoven. Id. When these factors
are properly considered, this Court will give deference to the trial court's findings when challenged on
appeal, employing an abuse of discretion standard. Id.
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¶7.
The trial judge, in ruling on the motion in this case, recognized that the offenses occurred at the
same place. It was also brought to his attention that the entire incident was over in a matter of minutes.
The trial judge commented on the difficulty presented if the fact witnesses were allowed only to testify to
a specific charge since the offenses were so interrelated that telling the story of what happened would be
much harder if the offenses were severed. Riser did not make a showing of how each offense was separate
and distinct. In this situation, we are unable to discover reversible error in the trial court's ruling.
III.
Denial of a Continuance
¶8.
On appeal, Riser alternatively contends that, even if it was permissible to try him on all counts in
one trial, the Court erred in denying his request for a continuance and forcing him to go to trial so soon after
the new indictment was issued. The denial of a continuance is not an issue that may be reviewed for error
on appeal when the matter is not assigned as a ground for a new trial in an appropriate post-trial motion.
Crawford v. State, 787 So. 2d 1236, 1242 (¶ 25) (Miss. 2001). In Riser's motion filed after the guilty
verdicts were returned, his only assertions are that the verdict was against the overwhelming weight of the
evidence and that the verdict was contrary to the applicable law and the evidence. The trial court judge
cannot be put in error on that which he did not have an opportunity to pass upon its validity. Id.
¶9.
Though this procedural bar may appear harsh at first glance, we observe that, at the time a
continuance motion is made before trial commences, there necessarily must be some measure of conjecture
or speculation as to the extent the defendant would, in fact, be prejudiced by being forced to trial at a time
when he contended that he was not prepared. However, after the trial is concluded, issues regarding
prejudice arising from being forced to trial too early could be expected to be more apparent and could be
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demonstrated with a measure of certainty that simply would not be available before trial commenced.
Requiring the matter to be raised once again gives the trial court an opportunity to reconsider its earlier
ruling after becoming armed with actual knowledge about how the trial actually progressed and what
problems the defense encountered because of lack of time to adequately prepare. That would appear to
be an entirely reasonable requirement, having the potential to avoid the waste of judicial resources involved
in requiring an appellate court to consider an issue based on information that was not available to the trial
court when it considered the issue for the first time. We find this issue procedurally barred because it was
not raised before the trial court in a new trial motion.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF
CONVICTION OF COUNT I MURDER AND SENTENCE OF LIFE IMPRISONMENT;
COUNTS II, III, IV, AND V OF CONVICTIONS OF AGGRAVATED ASSAULT AND
SENTENCES OF TWENTY (20) YEARS EACH WITH THESE SENTENCES TO RUN
CONSECUTIVELY TO EACH OTHER, AND CONSECUTIVELY TO COUNT I, ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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