Joseph Antwan Glenn v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-01149-COA
JOSEPH ANTWAN GLENN A/K/A JOSEPH
ANTWON GLENN, GREGORY SMITH AND
CRYSTAL DANIELS
APPELLANTS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/19/2005
HON. ALBERT B. SMITH III
BOLIVAR COUNTY CIRCUIT COURT
WILBERT LEVON JOHNSON
GLENN S. SWARTZFAGER
BENJAMIN ALLEN SUBER
RICHARD B. LEWIS
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CRIMINAL - FELONY
JOSEPH ANTWAN GLENN A/K/A JOSEPH
ANTWON GLENN, GREGORY SMITH AND
CRYSTAL DANIELS EACH,
RESPECTIVELY, CONVICTED OF COUNT
I, CONSPIRACY TO COMMIT ARMED
ROBBERY, AND SENTENCED TO FIVE
YEARS, AND COUNT II, ATTEMPTED
ARMED ROBBERY, AND SENTENCED TO
TWENTY YEARS, ALL IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH SENTENCES TO
RUN CONSECUTIVELY AND WITHOUT
ELIGIBILITY FOR PAROLE
AFFIRMED - 09/23/2008
BEFORE LEE, P.J., CHANDLER AND GRIFFIS, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Joseph Antwan Glenn, Crystal Daniels, and Gregory Smith were each convicted in
the Circuit Court of Bolivar County for one count of conspiracy to commit armed robbery
and a second count of attempted armed robbery. The circuit court sentenced each of them
to five years on the conspiracy conviction and twenty years on the attempt conviction, with
the sentences to run consecutively and without eligibility for parole. Each of them now
appeals his or her convictions.
¶2.
Glenn argues that: (1) the circuit court erred by denying his motion for a new trial, and
(2) the circuit court erred by denying his motion for a directed verdict and his motion for
judgment notwithstanding the verdict (JNOV).
¶3.
Daniels argues that: (1) the indictment was defective for not specifying the overt act
that the State claimed constituted attempt; (2) the circuit court erred by denying her motion
for JNOV and her motion for a new trial; and (3) she received ineffective assistance of
counsel at trial.
¶4.
Smith argues that: (1) the evidence was insufficient to support the verdict, and (2) the
verdict was against the overwhelming weight of the evidence.
¶5.
Finding no error, we affirm.
FACTS
¶6.
On July 8, 2004, three individuals entered and attempted to rob the Cleveland State
Bank in Merigold, Mississippi. Two of the individuals were male, and they were wearing
long black wigs and female clothing. The third individual was a female, and she was dressed
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as a male. Two of them were carrying backpacks. The bank’s security guard, Donnell
Hogan, was outside taking a smoke break when the three of them walked into the bank. He
said that he noticed the individuals because they looked suspicious, and he followed them
into the bank.
¶7.
Inside the bank, the three individuals initially went to the area where the security
guard usually stood. Then, one of the males, who was later identified as another codefendant, Lewis Green,1 approached the window of Mary Ann Tribble, one of the bank’s
tellers. Green inquired about opening a checking account. When Tribble asked Green for
identification, he said he did not have any, and he asked the female, who was later identified
as Daniels, whether he had any identification in the car. At the trial, Tribble testified that
Daniels was constantly moving back and forth “like she had ants in her pants.” Tribble said
that Daniels kept checking out the window after the last customer left. Tribble also noticed
that Daniels did most of the communicating with Green; she appeared to give him signals.
¶8.
Following a shootout with Hogan, the three individuals escaped from the bank without
having taken any money. Hogan was injured by a shot to his foot, and a bullet also passed
through his shirt without striking his body. A short time after the attempted robbery, police
pulled over a gold Jeep Cherokee that matched a description of a vehicle seen leaving the
area of the crime. The Jeep had grass hanging from its undercarriage, as if someone had
recently driven it through tall grass. Glenn was driving the Jeep, and Daniels was riding with
him. Glenn told the officers that they were trying to find somewhere to make out. Officers
1
Green's conviction of conspiracy to commit armed robbery is not presently before
this Court on appeal.
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took Glenn and Daniels back to the bank, where Daniels was identified as the female who
was involved with the robbery. Bank employees did not identify Glenn as one of the
individuals involved with the attempted robbery, but they recognized him from his monthly
visits to the bank to cash his father’s check.
¶9.
It was later revealed that the gold Jeep appeared to be the same one that Hogan and
other bank employees had noticed suspiciously parked across the street from the bank. They
did not see it on the day of the attempted robbery, but they had seen it a number of times
previously. Hogan and the bank tellers believed the Jeep was suspicious because no one ever
exited the Jeep, and it drove away every time Hogan went outside to get the license plate
number. According to Hogan, he never saw anyone inside the Jeep because it was driven
away, and it had tinted windows.
¶10.
After stopping the Jeep, officers continued searching the area for other suspects,
which led them to an abandoned house. The house was suspicious because it appeared as if
someone had recently driven through the high grass in the front yard. This connected the
house to the gold Jeep that officers had stopped. Inside the house, officers discovered the
two backpacks carried by the suspects during the attempted robbery. A pink backpack
recovered in the bedroom closet contained two handguns: a Ruger .45 millimeter automatic,
and a Jennings .9 millimeter. The other backpack was black and blue, and officers found it
in the living room. It contained various articles of clothing that the suspects had worn during
the attempted robbery: two wigs, a drawstring bag, and a brown purse. Inside the purse was
ammunition for a .45 millimeter handgun, latex gloves, and some zip ties formed into
handcuffs.
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¶11.
While in the house, officers apprehended Green as he tried to escape. Shortly
thereafter, officers also apprehended Smith running through a field approximately 300-400
yards behind the house. Smith did not have on a shirt, but he was wearing a black skirt
similar to the one seen in the surveillance video. Outside the house, officers discovered a
black brassiere. Green was taken to the hospital because he had been hit by two bullets
during the gunfight with Hogan. It was revealed that he had wrapped a brassiere around one
of the bullet wounds. At the hospital, Hogan identified Green as the shooter from the bank.
At trial, Hogan also identified Smith as the third individual in the bank during the attempted
robbery.
¶12.
After the State rested its case-in-chief, Green pleaded guilty to charges of armed
robbery and possession of a firearm by a felon. He continued to assert not guilty pleas on
the charges of conspiracy to commit armed robbery and aggravated assault. After Green
entered his guilty pleas, he took the stand to assert his defenses to the remaining charges, and
he also gave exculpatory testimony for his co-defendants.
¶13.
According to Green, it was not his idea to rob the bank, but that of a man named Rico
Brown. Green said he had been shooting dice with Rico a few days earlier and had amassed
a considerable debt. Green testified that he owed Rico $2,400, but the State questioned
whether he originally told the authorities that he owed Rico $4,700. Rico demanded that
Green repay the debt by the weekend. Green said that Rico drove him by the Cleveland State
Bank and told him to rob the bank to get the money. Green said that it was all Rico’s idea,
and Rico even gave him the two handguns found in the backpack.
¶14.
None of the other three defendants put on a case in defense. Instead they relied on
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Green’s exculpatory testimony that they were unaware of the plan to rob the bank to
convince the jury that they were not involved in the plan to rob the bank.
¶15.
The jury convicted Glenn, Daniels, and Smith of conspiracy to commit armed robbery
and attempted armed robbery. The circuit court then sentenced each of them to five years
on the conspiracy charge and twenty years on the attempt charge, with the sentences to run
consecutively and without eligibility for parole. Each of them now appeals his or her
convictions.
ANALYSIS OF THE ISSUES
¶16.
There are three separate appellants in the present case. Some of them assert the same
or similar issues, but because the facts are particular to each appellant, we will address each
of their claims separately. We begin with Smith’s issues.
I.
Smith
A.
¶17.
Insufficient Evidence
In reviewing a trial court’s denial of motions for a directed verdict and JNOV, we
must look at the sufficiency of the evidence. Bush v. State, 895 So. 2d 836, 843 (¶15) (Miss.
2005). We will ask whether the evidence shows "beyond a reasonable doubt that accused
committed the act charged, and that he did so under such circumstances that every element
of the offense existed; and where the evidence fails to meet this test[,] it is insufficient to
support a conviction." Id. at (¶16) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)).
Taking the evidence in the light most favorable to the verdict, the question is whether a
rational trier of fact could have found all the essential elements beyond a reasonable doubt.
Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)).
6
¶18.
Mississippi Code Annotated section 97-3-79 (Rev. 2006) defines armed robbery as
follows:
Every person who shall feloniously take or attempt to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon shall be guilty of robbery . .
..
With those elements of robbery in mind, this Court addressed a similar argument regarding
an attempted-armed-robbery conviction of an abettor in Nichols v. State, 822 So. 2d 984, 989
(¶7) (Miss. Ct. App. 2002). In Nichols, we set out the applicable law as follows:
To commit robbery, a person must “take the personal property of another, in
his presence or from his person and against his will, by violence to his person
or by putting such person in fear of some immediate injury to his person.”
McKee v. State, 791 So. 2d 804, 807 (¶8) (Miss. 2001). To attempt a crime,
a person must possess the intent to commit the particular crime, commit an act
toward committing the crime, and fail to consummate the offense. Greenwood
v. State, 744 So. 2d 767, 771 (¶19) (Miss. 1999). “Any person who is present
at the commission of a criminal offense and aids, counsels, or encourages
another in the commission of that offense is an ‘aider and abettor’ and is
equally guilty with the principal offender.” Gleeton v. State, 716 So. 2d 1083,
1088 (¶17) (Miss. 1998).
Nichols, 822 So. 2d at 989 (¶7).
¶19.
In support of the charge of attempted armed robbery, the State put on evidence that
Smith disguised himself as a woman, entered the bank with Green and Daniels, and shuffled
around nervously as Green attempted to hold up the teller with a handgun, all the while
shielding his face from view. Thereafter, he was caught attempting to escape from the
abandoned safe house where police apprehended Green, and he was still wearing the same
women’s skirt that he wore during the attempted robbery. Smith, Daniels, and Green each
carried a bag or a purse into the bank, and police recovered various items in those bags that
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could be used in a bank robbery, including two handguns, ammunition, zip ties, and latex
gloves. We find that this evidence was sufficient to establish each of the necessary elements
of attempted armed robbery.
¶20.
The facts presented were also sufficient evidence to allow the jury to infer that Smith
was involved in a conspiracy to rob the Cleveland State Bank with Glenn, Daniels, and
Green. The only element of conspiracy to commit armed robbery is an agreement among two
or more people to commit the crime. Miss. Code Ann. § 97-1-1(1)(a) (Rev. 2006); see also
Stovall v. State, 873 So. 2d 1056, 1058 (¶11) (Miss. Ct. App. 2004). A “conspiracy
agreement need not be formal or express, but it may be inferred from the circumstances,
particularly by declarations, acts[,] and conduct of the alleged conspirators. Furthermore, the
existence of a conspiracy, and a defendant's membership in it, may be proved entirely by
circumstantial evidence.” Neal v. State, 806 So. 2d 1151, 1157 (¶14) (Miss. Ct. App. 2002)
(quoting Harris v. State, 731 So. 2d 1125, 1132 (¶42) (Miss. 1999)).
¶21.
From the evidence presented, we find that there was sufficient evidence to support
each of the required elements of attempted armed robbery and conspiracy to commit armed
robbery. Accordingly, we find that the circuit court did not err in denying Smith’s motion
for a directed verdict and his motion for JNOV.
B.
¶22.
Weight of the Evidence
A motion for a new trial questions the weight of the evidence. Bush, 895 So. 2d at
844 (¶18). Such a motion is within the discretion of the trial court, which “should be invoked
only in exceptional cases in which the evidence preponderates heavily against the verdict.”
Id. (quoting Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947 (¶18) (Miss. 2000)). “[W]e
8
will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence
that to allow it to stand would sanction an unconscionable injustice.” Id. When reviewing
a denial of a motion for a new trial, we weigh the evidence in the light most favorable to the
verdict. Id.
¶23.
Smith did not take the stand to rebut the charges or offer his story of the events. He
also did not present any other evidence in his defense. Instead, he relied solely on Green’s
testimony that Green only tried to rob the bank to pay a debt to Rico, and Green did not make
his plans known to any of the other alleged conspirators. Ultimately, it was for the jury to
judge the witnesses’ credibility. Jones v. State, 920 So. 2d 465, 472 (¶22) (Miss. 2006)
(citing Jackson v. State, 614 So. 2d 965, 972 (Miss. 1993)). In this case, the jury rejected
Green’s exculpatory testimony that he only convinced Smith and Daniels to dress up as part
of a prank; instead, the jury found that they, along with Glenn, were directly involved in the
attempted robbery.
¶24.
Taking the evidence in the light most favorable to the verdict, we do not find Smith’s
convictions to be contrary to the overwhelming weight of the evidence. His arguments are,
therefore, without merit.
II.
Daniels
A.
¶25.
Defective Indictment
We first note that, notwithstanding the State’s waiver argument, the issue of whether
an indictment failed to charge an essential element of a crime is not waived if an appellant
did not assert the issue before the circuit court. Durr v. State, 446 So. 2d 1016, 1017 (Miss.
1984). Therefore, even though Daniels did not raise this issue at the time of trial or in her
9
post-trial motions, we will address its merits.
¶26.
Under Mississippi Code Annotated section 99-19-5(1) (Rev. 2007), a jury may convict
a defendant of the crime charged in an indictment or of an attempt to commit the same
offense. Nevertheless, for an indictment to properly charge a defendant with attempt, it must
charge two elements: “(1) the intent to commit the offense, and (2) an overt act toward its
commission.” Maxie v. State, 330 So. 2d 277, 277 (Miss. 1976) (citing Ford v. State, 218
So. 2d 731, 732 (Miss. 1969)).
¶27.
As we also stated above, Mississippi Code Annotated section 97-3-79 defines armed
robbery as follows:
Every person who shall feloniously take or attempt to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon shall be guilty of robbery . .
..
¶28.
Regarding Count II, attempted armed robbery, the allegedly defective indictment
about which Daniels now complains charged the appellants as follows:
[I]ndividually or while aiding and abetting each other and/or acting in concert
with each other, did unlawfully, wilfully[,] and feloniously, commit an assault
upon the person of Donnell Hogan with a certain deadly weapon, to-wit: a
pistol, and did then and there, feloniously put them, the said Donnell Hogan
and/or Mary Ann Tribble and/or Janet Porter Free, in fear of immediate injury
to their persons by the exhibition of said deadly weapon as aforesaid, with the
unlawful and felonious intent to steal, they, the said Lewis Green, Crystal
Daniels, Gregory Smith, and Joseph [Antwan] Glenn, while aiding and
abetting each other and/or while acting in concert with other did unlawfully,
wilfully[,] and feloniously attempt to take, steal[,] and carry away from the
person of or in the presence of and against the will of the said Mary Ann
Tribble, certain personal property, to-wit: United States currency, of the
property of The Cleveland State Bank, a corporation, and/or depositors in The
Cleveland State Bank, contrary to the form of the statute in such cases made
and provided and against the peace and dignity of the State of Mississippi . .
10
..
As seen from the quoted passage, the indictment charged that Daniels and her fellow
appellants acted with the intent to steal the property of the bank. The indictment also charged
that they did so by exhibiting and firing a pistol – acts which put the employees of the bank
in fear of immediate injury to their persons.
¶29.
After reviewing the indictment, we see no merit in Daniels’s argument that the State
failed to properly charge her with attempted armed robbery. All of the elements necessary
for attempt and for armed robbery are present, including the specific overt acts that took
place inside the bank. The indictment also alleged that the appellants acted in concert with
each other. We find that the indictment properly charged Daniels with attempted armed
robbery, and this issue is without merit.
B.
¶30.
Motions for JNOV and for a New Trial
The standards of review regarding these issues are set out in the section addressing
Smith’s alleged errors concerning the rulings on his post-trial motions, and those same
standards are applicable to Daniels’s alleged errors concerning the rulings on her post-trial
motions. Furthermore, for the same reasons that Smith’s issues concerning his post-trial
motions were without merit, Daniels’s issues are also without merit.
¶31.
If anything, the evidence against Daniels was stronger than the evidence against
Smith. She too disguised herself as a member of the opposite sex, and she also entered the
bank with Green and appeared to be nervous the entire time. Additionally, Hogan and the
bank tellers all testified that Daniels communicated with Green while he was at the teller
window, and she seemed to be giving him signals. They also testified that she also walked
11
over to the door and checked outside after the last bank customer left. It was immediately
following this event that Green pulled out the handgun in an attempt to hold up Tribble.
¶32.
Also like Smith, Daniels did not take the stand or call any witnesses in her defense.
She too relied solely on Green’s testimony that he was the only one who knew about the plan
to rob the bank; therefore, that was the only evidence in her favor for the jury to consider.
The jury had the opportunity to consider Green’s testimony, but it rejected his account in
light of the evidence of Daniels’s participation in the attempted armed robbery.
¶33.
As with Smith, we find that there was sufficient evidence of each of the necessary
elements of attempted armed robbery and conspiracy to commit armed robbery.
Furthermore, despite Green’s testimony, we find that Daniels’s convictions were not against
the overwhelming weight of the evidence. Accordingly, we find that the circuit court did not
err in denying Daniels’s motion for JNOV and her motion for a new trial, and we find that
this issue is without merit.
C.
¶34.
Ineffective Assistance of Counsel
The standard to be applied to an ineffective assistance of counsel claim was set forth
by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984).
Under Strickland, which this Court must follow, the defendant bears the burden of proof that:
(1) counsel's performance was deficient, and (2) the deficient performance prejudiced the
defense. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). We look at the totality of
the circumstances in determining whether counsel was effective. Id. There is a strong but
rebuttable presumption that counsel's performance fell within the wide range of reasonable
professional assistance. Id.
12
¶35.
Specifically, Daniels now claims that her trial counsel was ineffective for only cross-
examining co-defendant Green and for failing to cross-examine any of the State’s witnesses.
She does not, however, allege what information, if any, that her trial counsel could have
elicited from the State’s witnesses on cross-examination. Daniels also briefly argues that her
trial counsel should have filed pretrial motions to suppress identification of her by the
witnesses. However, her argument is limited to a single sentence; she does not cite to any
evidence to support why the identification was improper or to any case law that supports her
argument.
¶36.
The decision of whether to cross-examine a witness is trial strategy, and it is within
trial counsel’s discretion. Golden v. State, 968 So. 2d 378, 389 (¶46) (Miss. 2007). In
Golden, the supreme court noted that “absent a showing of some helpful fact which clearly
could – and should – have been developed on cross-examination, such decisions do not
warrant a finding of ineffective assistance of counsel.” Id. at 390 (¶49). We find the
reasoning in Golden to be dispositive of Daniels’s issue on appeal. We find no support for
Daniels’s claim that her trial counsel’s performance was ineffective, nor do we find any
indication that Daniels’s defense was prejudiced by her trial counsel’s decision not to crossexamine the State’s witnesses. Accordingly, this issue is without merit.
III.
Glenn
A.
¶37.
Motion for JNOV
As with Smith’s and Daniels’s issues regarding their motions for JNOV, the same
standard applies to our review of the trial court’s denial of Glenn’s motion for JNOV.
¶38.
The State presented a number of facts that implicated Glenn in the plan to rob the
13
bank. Shortly after the attempted armed robbery, Glenn was stopped by police officers while
driving the gold Jeep that had been seen near the scene of the crime. Officers noticed grass
hanging from the undercarriage of the Jeep, which eventually led them to the abandoned
house where they apprehended Green and Smith. That house was owned by Glenn’s family.
When police stopped Glenn, Daniels, who was identified as one of the robbers, was a
passenger in the Jeep. There was also blood on the back seat of the Jeep, presumably from
the gunshot wounds sustained by Green. Furthermore, while Green claimed that he was the
only one who knew he was going to attempt to rob the bank, he admitted that Glenn drove
them to the bank and waited for them to come out of the bank. Green testified that Glenn
knew “we was going to come running.”
¶39.
The evidence was sufficient to establish Glenn’s guilt of each element of conspiracy.
The evidence also was sufficient to enable a reasonable juror to find, beyond a reasonable
doubt, that Glenn – knowing of the plan to rob the bank – drove Green, Daniels, and Smith
to the bank, waited for them outside, and then served as the getaway driver. These acts
rendered him liable as a principal to the attempted armed robbery. McCuiston v. State, 791
So. 2d 315, 317 (¶¶5-6) (Miss. Ct. App. 2001); Miss. Code Ann. § 97-1-3 (Rev. 2006)
(stating that “[e]very person who shall be an accessory to any felony, before the fact, shall
be deemed and considered a principal, and shall be indicted and punished as such . . . . ”).
We find that the circuit court did not err in denying Glenn’s motion for JNOV, and this issue
is without merit.
B.
¶40.
Motion for a New Trial
Like Smith and Daniels, Glenn did not take the stand, and he did not offer any
14
evidence in his defense. He also relied solely on Green’s testimony that the other alleged
conspirators knew nothing about the plan. From the evidence presented, we do not find
Glenn’s convictions to be against the overwhelming weight of the evidence. We find no
manifest injustice in the jury’s verdict; therefore, we affirm the circuit court’s denial of
Glenn’s motion for a new trial.
¶41. AS TO EACH APPELLANT, RESPECTIVELY, THE JUDGMENT OF THE
CIRCUIT COURT OF BOLIVAR COUNTY OF CONVICTION OF COUNT I,
CONSPIRACY TO COMMIT ARMED ROBBERY, AND SENTENCE OF FIVE
YEARS, AND COUNT II, ATTEMPTED ARMED ROBBERY, AND SENTENCE OF
TWENTY YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS WITH SENTENCES TO RUN CONSECUTIVELY AND
WITHOUT ELIGIBILITY FOR PAROLE, IS AFFIRMED. ALL COSTS OF THIS
APPEAL WITH RESPECT TO APPELLANT SMITH ARE ASSESSED TO
BOLIVAR COUNTY. ALL COSTS OF THIS APPEAL WITH RESPECT TO
APPELLANT GLENN AND APPELLANT DANIELS ARE ASSESSED TO
APPELLANT GLENN AND APPELLANT DANIELS, RESPECTIVELY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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