Charlie Sawyer v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00136-COA
CHARLIE SAWYER A/K/A CHARLIE SAWYER, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
10/3/2006
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
WILLIAM R. LABARRE
VIRGINIA LYNN WATKINS
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
FAYE PETERSON
CRIMINAL - FELONY
CONVICTED OF COUNT I, ARMED
ROBBERY, AND SENTENCED TO SERVE A
TERM OF LIFE WITHOUT PAROLE IN THE
CUSTODY OF MDOC. SENTENCE IN COUNT
I ORDERED TO RUN CONSECUTIVE TO
SENTENCE IN COUNT II. CONVICTED OF
COUNT II, CONVICTED FELON IN
POSSESSION OF A FIREARM, AND
SENTENCED AS A HABITUAL OFFENDER TO
SERVE A TERM OF LIFE WITHOUT PAROLE
IN THE CUSTODY OF MDOC. SENTENCE IN
COUNT II ORDERED TO RUN CONSECUTIVE
TO SENTENCE IN COUNT I.
REVERSED AND REMANDED: 07/1/2008
BEFORE KING, C.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Charlie Sawyer was convicted in the Circuit Court of Hinds County of armed robbery, in
violation of Mississippi Code Annotated section 97-3-79 (Rev. 2006), and of possession of a firearm
as a convicted felon, in violation of Mississippi Code Annotated section 97-37-5 (Rev. 2006).
Sawyer was subject to enhanced penalties as a habitual offender under Mississippi Code Annotated
section 99-19-83 (Rev. 2007). On appeal, Sawyer argues that his case should be reversed and
remanded for a new trial because the trial court abused its discretion: (1) when it denied his motion
to sever the counts against him, (2) when it did not require the State to agree to his stipulation, and
(3) when it denied his Batson challenge by accepting the prosecutor’s reasons for why she exercised
her peremptory challenges as being race-neutral.
FACTS
¶2.
On June 3, 2005, Alfred Jacobs attempted to purchase food at Ellis Seafood in Jackson,
Mississippi. While placing his order at the drive-thru menu board, Jacobs was robbed at gunpoint
by two men.
¶3.
On June 11, 2005, the employees of Ellis Seafood observed an armed man in the bushes
outside of their restaurant and called the police. The police officers arrived and surrounded the
armed man and arrested him. The officers determined that the armed individual was Sawyer.
Sawyer had previously been convicted of two armed robberies.
¶4.
Detective Brad Davis, who was assigned to the June 3, 2005, robbery, called Jacobs and
asked him to review a photographic lineup. After examining the photographic lineup, Jacobs
immediately identified Sawyer as one of the individuals who had robbed him on June 3, 2005.
¶5.
Sawyer was charged with armed robbery and possession of a firearm as a convicted felon.
Sawyer filed a motion to sever the trial on the count of armed robbery and the count of possession
of a firearm as a convicted felon. Sawyer argued that the probative value of his prior convictions
for armed robbery was “substantially outweighed by the danger of unfair prejudice.” M.R.E. 403.
At the hearing on the motion, counsel for Sawyer argued that if the trial court determined that
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severance was not appropriate, then Sawyer would stipulate to two prior felony convictions. The
State rejected the stipulation. The trial court denied the motion to sever and did not allow Sawyer
to stipulate to his prior convictions. It is from this issue that the Court has determined that the case
must be reversed and remanded for a new trial.
ANALYSIS
I.
¶6.
Should the trial court have severed the two counts?
Sawyer argues that the trial court should have severed the two counts against him because
the jury would automatically infer that he was guilty of Count I, armed robbery, when the jury heard
the evidence of his previous convictions for armed robbery, which were necessary to establish the
elements of Count II, possession of a firearm as a convicted felon.
¶7.
The standard of review for consideration of the trial court’s decision on a motion for
severance is abuse of discretion. Rushing v. State, 911 So. 2d 526, 532 (¶12) (Miss. 2005). The trial
judge is required to conduct a Corley hearing on the motion. Id. at 533 (¶14).
¶8.
In Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), the Mississippi Supreme Court
established the procedure a trial court should follow when a party moves to sever the counts in an
indictment. Pursuant to the holding in Corley, the State has the burden, during a Corley hearing, of
making out a prima facie case that the offenses charged are within Mississippi Code Annotated
section 99-7-2 (Rev. 2007). See id. “If the State meets its initial burden, the defendant may
thereafter rebut the State’s case by showing the ‘offenses were separate and distinct acts or
transactions.’” Rushing, 911 So. 2d at 533 (¶14) (quoting Corley, 584 So. 2d at 772). Under Corley,
the trial court must weigh the following: “whether the time period between the occurrences is
insignificant, whether the evidence proving each count would be admissible to prove each of the
other counts, and whether the crimes are interwoven.” Corley, 584 So. 2d at 772. After reviewing
the record, we find that the trial court in the instant case did indeed conduct a Corley hearing.
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Therefore, we will review this case under a Corley analysis.
¶9.
For Counts I and II to be tried together, the trial judge must first determine that the time
period between the two crimes is insignificant. Id. In Sawyer’s indictment, he was charged with
having committed both crimes on June 3, 2005.1 Because one crime is armed robbery and the other
is possession of a firearm as a convicted felon, there is little doubt that both crimes occurred
simultaneously, and the first factor has been met under Corley.
¶10.
Next, the trial court must determine if the evidence to prove the armed robbery count would
be used to prove the felon in possession of a firearm count. Obviously, the evidence from Count
I would be admissible in Count II because both crimes require that the State prove that Sawyer had
possession of a firearm, and both crimes happened at exactly the same time. Indeed, the evidence
necessary to prove Count I is admissible to prove Count II. Furthermore, Corley states, “[w]hether
the evidence would be admissible under [Mississippi Rule of Evidence 404(b)] has no bearing on
whether the trial court should allow a multi-count indictment.” Id. at 772 n.1. Thus, we find that
the evidence in one count may be used to prove the other count and that we need not address any
Rule 404(b) implications here.
¶11.
Finally, the trial court must determine whether or not the crimes are interwoven. The crimes
here are clearly interwoven because they occurred at the exact same time and both depend on the
fact that Sawyer possessed a firearm. See, e.g., Harris v. State, 908 So. 2d 868, 875 (¶25) (Miss.
Ct. App. 2005). Therefore, we cannot find that the trial judge abused his discretion in denying
Sawyer’s motion for severance under Corley.
1
From the record, it appears that the district attorney did not charge Sawyer as a felon in
possession of a firearm on the day he was arrested. The indictment could have charged Sawyer for
possession of a firearm as a convicted felon on June 11, 2005, the day that he was arrested.
Nevertheless, Sawyer’s charge was based on the State proving that he was in possession of a firearm
on June 3rd, when he allegedly robbed Jacobs.
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¶12.
However, as mentioned above, Corley does not address the implications of Mississippi Rule
of Evidence 404(b). Since the following section analyzes the reasons for reversal and remand for
a new trial, the trial court may reconsider whether severance is appropriate at the retrial of this case.
II.
¶13.
Should the trial court have made the State agree to Sawyer’s stipulation?
During the Corley hearing, Sawyer’s counsel made the alternative argument that Sawyer
would stipulate that he was a convicted felon. This stipulation would establish Sawyer’s status as
a prior convicted felon, the first element of the crime of possession of a firearm as a convicted
felon.2 Sawyer argued that, without this stipulation, the State would offer his two prior convictions
for armed robbery as evidence, and the jury would then infer that he was guilty of armed robbery
on June 3, 2005, because of his previous armed robbery convictions.
¶14.
We review the trial court’s “ rulings on the admission or exclusion of evidence for abuse of
discretion. An error in the admission or exclusion of evidence is not grounds for reversal unless the
error affected a substantial right of a party.” Williams v. State, 960 So. 2d 506, 510 (¶11) (Miss. Ct.
App. 2006) (citation omitted).
¶15.
Character evidence is not admissible to prove that one acted in conformity therewith on a
particular occasion. M.R.E 404(a). Under Rule 404(b) of the Mississippi Rules of Evidence,
“[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith.” Evidence of other crimes or bad acts may be
admissible to prove identity, knowledge, intent, motive, opportunity, or preparation. M.R.E. 404(b).
¶16.
Upon finding that the evidence is admissible under Mississippi Rule of Evidence 404(b) or
2
Under Mississippi Code Annotated section 97-37-5(1) (Supp. 2007), “[i]t shall be unlawful
for any person who has been convicted of a felony under the laws of this state . . . to possess any
firearm . . . .” The statute also provides the following penalty upon conviction of a maximum fine
of $5,000 or a sentencing range of one to ten years, or both a fine and imprisonment. Miss. Code
Ann. § 97-37-5(2) (Supp. 2007).
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otherwise, a court must still consider whether the evidence passes the Rule 403 filter. Rule 403
provides that otherwise admissible evidence may be excluded where the risk of undue prejudice
substantially outweighs the probative value of the evidence.
¶17.
Sawyer argues that Rule 404(b) prohibits the introduction of his prior convictions. The State
argues that the evidence of the prior convictions is not offered to prove Sawyer’s character or that
he acted in conformity therewith. Instead, the State argues that evidence of the prior convictions is
necessary to establish the first element of the crime of possession of a firearm as a convicted felon,
in violation of Mississippi Code Annotated section 97-37-5.
¶18.
At trial, Sawyer relied on the United States Supreme Court decision in Old Chief v. United
States, 519 U.S. 172 (1997). In Old Chief, the defendant was charged with “assault with a
dangerous weapon[,] using a firearm in relation to a crime of violence[, and] violation of 18 U.S.C.
§ 922(g)(1).” Id. at 174. Section 922(g)(1) is similar to our felon in possession of a firearm statute.
¶19.
Old Chief had previously been convicted of “assault causing serious bodily injury.” Id. at
175. Prior to trial, Old Chief moved the trial court to exclude any mention of his previous
conviction for assault, and he “offered to ‘solve the problems here by stipulating, agreeing and
requesting the Court to instruct the jury that he has been convicted of a crime punishable by
imprisonment exceeding one (1) year.’” Id. “The Assistant United States Attorney refused to join
in a stipulation, insisting on his right to prove his case his own way, and the District Court agreed
. . . . At trial, over renewed objection, the Government introduced the order of judgment and
commitment for Old Chief's prior conviction.” Id. at 177.
¶20.
After a thorough analysis of the common law and Federal Rules of Evidence 403 and 404(b),
the Supreme Court held:
Given these peculiarities of the element of felony-convict status and of admissions
and the like when used to prove it, there is no cognizable difference between the
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evidentiary significance of an admission and of the legitimately probative component
of the official record the prosecution would prefer to place in evidence. For purposes
of the Rule 403 weighing of the probative against the prejudicial, the functions of the
competing evidence are distinguishable only by the risk inherent in the one and
wholly absent from the other. In this case, as in any other in which the prior
conviction is for an offense likely to support conviction on some improper ground,
the only reasonable conclusion was that the risk of unfair prejudice did substantially
outweigh the discounted probative value of the record of conviction, and it was an
abuse of discretion to admit the record when an admission was available.
Id. at 191.
¶21.
The State responded that “I don’t know what case [the defense attorney] has, but we all know
- - and I don’t even know what district she is citing out of. Looks like Florida, I guess. . . . But we
all know that if their [sic] citing to a Florida law, I mean you don’t know what’s applicable or not,
but this is Mississippi state law . . . .” The trial court accepted the State’s argument that it must be
bound by Mississippi law and not Florida law.
¶22.
The State’s argument was that it did not have to agree to the stipulation and the court cannot
force the State to accept the stipulation. At trial, the prosecutor cited Evans v. State, 802 So. 2d 137
(Miss. Ct. App. 2001) as the controlling authority. Indeed, in Evans, citing Mississippi Code
Annotated section 97-37-5, this Court held that the State is not limited by “the methods by which
it may prove the prior conviction(s).” Evans, 802 So. 2d at 140 (¶7).
¶23.
The prosecutor also cited Carter v. State, 953 So. 2d 224 (Miss. 2007) as controlling
authority. Ricky Carter was charged with and convicted of attempted burglary of a dwelling and
was sentenced as a habitual offender to serve twenty-five years in custody. Carter, 953 So. 2d at
225 (¶1). At trial, the court admitted, over objection, evidence that Carter had six prior burglary or
grand larceny convictions. Id. at 227 (¶¶6-7). The State argued that the prior convictions were
offered under Rule 404(b) to prove the element of intent. Carter, 953 So. 2d at 231 (¶17). The
supreme court held that the trial court did not abuse its discretion in admitting Carter's prior felony
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convictions into evidence. Id. The supreme court determined that the factual circumstances
required that the prior convictions be admitted to show that Carter had the intent to take, steal, and
carry away; and the convictions were not used as character evidence. Id. at 229 (¶11).
¶24.
Carter’s defense to the attempted burglary charge was that he was looking for a job and was
lost. Id. at 226 (¶2). Carter argued that the admission of prior convictions was unduly prejudicial,
even though the jury would have to determine Carter’s “intent, namely, whether it was burglarious
or whether he was merely a trespasser gone horribly awry.” Id. at 229 (¶12). The supreme court
determined that the jury must determine Carter's intent, and his prior convictions were permitted for
the limited purpose to establish intent under Rule 404(b). Id. at 231 (¶17). Thus, the supreme court
found that the trial court did not abuse its discretion in admitting Carter's prior felony convictions
into evidence. Id.
¶25.
The appellate brief filed on behalf of the State of Mississippi by the Attorney General does
not cite either Evans or Carter as authority for this Court to follow in deciding this appeal.
Astonishingly, the State does not even cite Old Chief or attempt to respond to Sawyer’s argument
on Mississippi Rule of Evidence 403 or 404. Instead, the State offers the following:
We are aware of [the] appellant’s concern that a jury might be inclined to reason that
Sawyer must be guilty “here and now” of the armed robbery [as] charged in Count
I because he had been twice previously convicted “then and there” of the armed
robberies [as] charged in Count II.
It seems as though the State, without specifically stating it, concedes that the trial court may have
been in error. The State’s only argument is to provide us with a concise recitation of the law on
limiting instructions. We do not believe a limiting instruction would cure the error committed here.
¶26.
Old Chief interprets the Federal Rules of Evidence. The Mississippi Supreme Court,
however, has stated:
Though a few differences exist, the Mississippi Rules of Evidence are generally the
8
same as the Federal Rules of Evidence. In construing the Mississippi Rules of
Evidence, this Court has generally cited federal case law which interpreted the
federal rule corresponding with the Mississippi [R]ule of Evidence at issue in the
case.
Hall v. State, 691 So. 2d 415, 420 n.3 (Miss. 1997).
¶27.
Unlike Carter, the State here does not offer Sawyer’s two prior convictions for armed
robbery as an exception under Rule 404(b), i.e., “motive opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” M.R.E. 404(b). Instead, the State sought
to establish one of the elements of the crime of possession of a firearm as a convicted felon pursuant
to Mississippi Code Annotated section 97-37-5.
¶28.
The facts presented here are identical to the facts in Old Chief. We therefore conclude that
the United States Supreme Court’s opinion in Old Chief governs the outcome. Indeed, it would be
difficult, if not impossible, for the jury to put aside evidence in Count II that Sawyer had twice
before committed armed robbery when it considered Count I, regarding Sawyer’s guilt of armed
robbery on June 3, 2005. As in Old Chief, we find that the probative value of Sawyer’s prior armed
robbery convictions is substantially outweighed by the danger of unfair prejudice because the jury
would use Sawyer’s prior convictions as evidence in considering Count I. M.R.E. 403. Thus, we
find that the trial court abused its discretion when it allowed evidence of Sawyer’s two prior
convictions of armed robbery to be admitted into evidence when a valid stipulation was available.
Accordingly, we reverse and remand this case for a new trial.
III.
¶29.
Did the State commit a Batson violation?
Given our holding to reverse and remand for a new trial on other grounds, Sawyer’s claim
that there was a Batson violation is now moot.
CONCLUSION
¶30.
Even though we find that the trial court properly applied the test in Corley, we remind the
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trial court that it “may, on motion of the state or defendant, grant a severance of offenses whenever
. . . it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence
of each offense . . . .” URCCC 9.03 (emphasis added). After reviewing Old Chief, we find that the
trial court abused its discretion because it should have either severed the two counts and tried them
separately, or the court should have made the State accept Sawyer’s stipulation if the State still
desired to try the two counts together.
¶31. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS REVERSED
AND REMANDED FOR A NEW TRIAL CONSISTENT WITH THIS OPINION. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND
CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.
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