Daryl Hawkins v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-01204-COA
DARYL HAWKINS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
05/13/2004
HON. ALBERT B. SMITH III
BOLIVAR COUNTY CIRCUIT COURT
GEORGE T. HOLMES
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF ATTEMPTED
BURGLARY OF AN AUTOMOBILE AND
SENTENCED AS A HABITUAL OFFENDER
TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION
AFFIRMED – 12/09/2008
BEFORE MYERS, P.J., IRVING AND CARLTON, JJ.
IRVING, J., FOR THE COURT:
¶1.
Daryl Hawkins was convicted by the Bolivar County Circuit Court of attempted
burglary of an automobile and sentenced as a habitual offender to life in the custody of the
Mississippi Department of Corrections. Aggrieved, he appeals and asserts (1) that the
indictment is void, (2) that he was entitled to a jury instruction based on the theory of
abandonment, (3) that the trial court erred in denying his motion for a directed verdict or,
alternatively, for a judgment notwithstanding the verdict, and (4) that his sentence is
unconstitutional.
¶2.
Finding no error, we affirm.
FACTS
¶3.
During the early morning hours of March 7, 2004, Robert Graham, an investigator
with the Cleveland Police Department, sat in an unmarked car while on special patrol at the
Colony Apartments in Cleveland, Mississippi. At approximately 3:00 a.m., Investigator
Graham observed a Nissan Altima with two occupants, who would later be identified as
Brandon James and Daryl Hawkins, enter the parking lot. Investigator Graham exited his
vehicle and hid between other vehicles that were parked in the parking lot and watched as
James drove to the back of the apartment complex. Investigator Graham watched as the
vehicle came back around, and he saw the passenger, who he recognized as Hawkins, walk
toward a vehicle. Investigator Graham then observed Hawkins rub dew off of the vehicle’s
window and look inside. Hawkins went to another vehicle, a Nissan Sentra, and broke its
window.1 The car’s alarm sounded, Hawkins ran to his vehicle, and James pulled off.2
¶4.
Investigator Graham called for backup, ran to his vehicle, and gave chase.
1
Investigator Graham stated that he did not see what Hawkins used to break the
2
Investigator Graham was clear that James did not exit the vehicle at any time.
glass.
2
Investigator Graham followed Hawkins’s vehicle as it continued through Cleveland,
Mississippi, toward the City of Boyle. Investigator Graham and other officers, who had
arrived to assist him, blocked Hawkins’s car in. Thereafter, Hawkins and James were
arrested. After James and Hawkins were placed in a patrol car, Investigator Graham saw a
sharp object with a wooden handle which was later determined to be an ice pick.
¶5.
James also provided his account of what transpired. He testified that Hawkins paid
him five dollars to drop him off at the Colony Apartments. James then stated that he drove
around to the back of the apartment complex and that Hawkins got out of the vehicle. James
stated that he did not see or hear anything else. According to James, shortly thereafter,
Hawkins got back in the vehicle and instructed him to “drive before somebody think [sic]
we’re out here trying to break into something.” James testified that he heard a car alarm
when Hawkins opened the car door. He also stated that he did not hear the alarm when
Hawkins exited the vehicle. James and Hawkins then left the apartment complex and were
later stopped by the police. James testified that when they noticed the police car behind
them, Hawkins stated, “I broke the window out of the car, man, we’re fixing to go to jail.”
¶6.
Hawkins testified on his own behalf and stated that at approximately 1:00 a.m. he was
approached by James while he was standing on a street corner. Hawkins explained that
James agreed to give him a ride home, but they somehow ended up at the Colony
Apartments. Hawkins stated that once they arrived at the apartment complex, James drove
to the rear of the complex and got out of the vehicle. Hawkins claimed that he did not know
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where James went after he exited the vehicle. According to Hawkins, a short time later,
James reappeared and got back into the vehicle. However, James was only in the vehicle for
a short time before he got out again. Hawkins stated that James then ran back to the vehicle
and drove off. Hawkins testified that he never exited the vehicle. Hawkins recalled hearing
the car alarm sound after James re-entered the vehicle the second time. Hawkins testified
that Investigator Graham was mistaken about who he saw that night, as he maintained that
James was the person who got out of the vehicle that night.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶7.
In his first assignment of error, Hawkins contends that the indictment is defective
because it failed to state necessary elements of the offense of attempted burglary, namely that
he committed an overt act in furtherance of the attempted burglary and that he failed to
consummate its commission. “The question of whether an indictment is fatally defective is
an issue of law and deserves a relatively broad standard of review by [the appellate courts].”
Jones v. State, 912 So. 2d 973, 975 (¶8) (Miss. 2005) (citing Peterson v. State, 671 So. 2d
647, 652 (Miss. 1996) (superceded by statute)). Therefore, we review a claim that an
indictment is defective de novo. Id.
¶8.
Hawkins’s indictment states, in pertinent part, that:
DARYL HAWKINS & BRANDON L. JAMES,
late of the County and Judicial District aforesaid, on or about March 7, 2004,
in the County, Judicial District and State aforesaid, and within the jurisdiction
of this Court, individually or while aiding and abetting and/or acting in concert
with each other, did then and there, unlawfully, willfully, feloniously and
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burglariously attempt to break and enter a certain automobile, commonly
known as, called and being a 2000 Nissan Sentra, by breaking out a window,
said automobile being located at Colony Apartments in Cleveland,
Mississippi, there situated, of the property of Kristi Ann Beachy a/k/a “Chris
Beachy,” in which there were then and there goods, merchandise, equipment
or valuable things, kept for use or sale, with the intent to steal therein, or to
commit any felony . . . .
(Emphasis added). As clearly evidenced by the indictment, Hawkins was on notice that he
was being indicted for attempting to break into an automobile by “breaking out a window.”
The Mississippi Supreme Court has held that “[t]he crime of attempt to commit an offense
occurs when a person shall design and endeavor to commit an offense, and shall do any overt
act toward the commission thereof, but shall fail therein, or shall be prevented from
committing the same ….” Henderson v. State, 660 So. 2d 220, 222 (Miss. 1995) (quoting
Ross v. State, 601 So. 2d 872, 874 (Miss. 1992)).
¶9.
In order to convict Hawkins of attempted burglary, the State was required to show
that he “attempted to” break and enter the Nissan Sentra but either failed or was prevented
from doing so. In this case, the evidence clearly shows that Hawkins possessed the requisite
intent to commit the crime of burglary. He peered into the window of one vehicle before he
even approached the Nissan Sentra. It was only after he had broken the window and the car
alarm had sounded that Hawkins fled from the Nissan Sentra. Thus, we find that the record
supports Hawkins’s conviction for attempted burglary. We further find that the indictment
was sufficient to put Hawkins on notice that he was being charged with attempted burglary,
and that the indictment specifically set forth the conduct that constituted the attempt. Based
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on the reasons stated, we find no merit to this issue.
¶10.
Hawkins also argues that the indictment is defective because it failed to charge the
third element of attempt: the failure to consummate its commission. It is the law of this State
that “the intent to commit a crime plus any slight act toward its consummation is sufficient
in law to constitute the commission of an attempted crime.” Ford v. State, 218 So. 2d 731,
732 (Miss. 1969) (citing Stokes v. State, 92 Miss. 415, 428, 46 So. 627, 629 (1908)). Thus,
Hawkins’s indictment is not defective even though it did not charge that he failed to
consummate the burglary. This issue lacks merit.
¶11.
Next, Hawkins argues that the trial court erred in refusing to grant his request for the
following abandonment jury instruction:
If you find from the evidence, beyond a reasonable doubt, that Daryl Hawkins
freely and voluntarily abandoned his intent to commit the crime of burglary
of an automobile before the defendant performed any overt act toward the
commission of that crime, and if you further believe there was not an outside
cause prompting the abandonment, then you shall find the defendant not
guilty.
“A defendant is entitled to have jury instructions given which present his theory of the case.
However, the trial judge may properly refuse the requested instructions if they are found to
. . . be without proper foundation in the evidence of the case.” Green v. State, 884 So. 2d
733, 735 (¶3) (Miss. 2004) (quoting Howell v. State, 860 So. 2d 704, 761 (¶203) (Miss.
2003)). The State objected to the abandonment instruction and argued that “the breaking [of]
the window is the act toward the commission of a felony and that the alarm is what says,
‘Don’t do it.’”
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¶12.
In order for an abandonment instruction to be warranted a defendant must show that
he voluntarily abandoned his intent and did “not have his intent frustrated by the resistance
of the victim or the intervention of a third party.” Pruitt v. State, 528 So. 2d 828, 831 (Miss.
1988) (citing Edwards v. State, 500 So. 2d 967, 969 (Miss. 1986)). Investigator Graham
testified that Hawkins did not flee from the vehicle until after he had broken the window and
the car alarm sounded. On the other hand, Hawkins testified that Investigator Graham
mistakenly identified him as being the person who had broken the window out of the Nissan
Sentra. Hawkins also testified that he never exited his vehicle. Further, James stated that
Hawkins exited the vehicle even though James stated that he did not see Hawkins approach
the Nissan Sentra. As such, there is nothing in the record that supports Hawkins’s contention
that he abandoned his attempt to burglarize the Nissan Sentra. By contrast, Hawkins testified
that he did not approach the Nissan Sentra at all. In Ishee v. State, 799 So. 2d 70, 73 (¶7)
(Miss. 2001) (emphasis added) (quoting Bucklew v. State, 206 So. 2d 200, 202-03 (Miss.
1968)), the Mississippi Supreme Court stated that:
An attempt is a direct movement toward the commission of the crime after the
preparations have been made; the defendant’s act must be a direct,
unequivocal act toward the commission of the intended crime; that his acts
must have progressed to the extent of giving him power to commit the offense
and nothing but an interruption prevented the commission of the offense; that
the defendant’s act must reach far enough toward the accomplishment of his
intention to commit the offense to amount to a commencement of the
consummation or to be a step in the direct movement toward its commission;
and that some appreciable fragment of the crime must be committed so that the
crime would be completed if the defendant were not interrupted.
It is extremely likely that Hawkins would have burglarized the Nissan Sentra had its car
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alarm not sounded; thus, the burglary would have been completed if he were not interrupted
by it. We conclude that the trial judge committed no error in refusing to allow the
abandonment instruction, as it is clear that it was not supported by the evidence. This issue
lacks merit.
¶13.
Hawkins also argues that the trial judge erred in failing to grant his motion for a
directed verdict or, alternatively, his motion for a judgment notwithstanding the verdict.
Motions for directed verdicts and motions for judgments notwithstanding the verdict
challenge the sufficiency of the evidence used to convict. Fleming v. State, 732 So. 2d 172,
182 (¶33) (Miss. 1999) (citing Noe v. State, 616 So. 2d 298, 302 (Miss. 1993)). “When
reviewing a case for sufficiency of the evidence, ‘the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.’” Brown
v. State, 970 So. 2d 710, 712-13 (¶7) (Miss. 2007) (quoting Jackson v. Virginia, 443 U.S.
307, 319 (1979)). “If, keeping in mind the reasonable-doubt standard, ‘reasonable and fairminded [jurors] in the exercise of impartial [judgment] might reach different conclusions on
every element of the offense,’ the evidence will be deemed to have been sufficient.” Id. at
713 (¶7) (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
¶14.
We conclude that reasonable, fair-minded jurors could have found Hawkins guilty of
attempted burglary of an automobile, as the evidence shows that Hawkins approached a
vehicle prior to approaching the Nissan Sentra; he then made his way to the Nissan Sentra,
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looked inside, and broke its window. Investigator Graham, James, and Hawkins testified at
trial. The jury must have found Hawkins’s testimony less credible than that of Investigator
Graham and James. “[T]he jury is charged with the responsibility for weighing and
considering conflicting evidence and the credibility of witnesses.” Luster v. State, 515 So.
2d 1177, 1180 (Miss. 1987) (citing Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)).
There is nothing to support Hawkins’s assertion that the evidence was insufficient to sustain
his conviction. There is no merit to this issue.
¶15.
Finally, Hawkins argues that his sentence is unconstitutionally disproportionate to the
crime of attempted burglary of an automobile. Hawkins relies on Solem v. Helm, 463 U.S.
277 (1983) to support his contention that his sentence of life without the possibility of parole
in the custody of the Mississippi Department of Corrections is unconstitutional. In Solem,
the United States Supreme Court set the standard for proportionality as follows:
a court’s proportionality analysis under the Eighth Amendment should be
guided by objective criteria, including (i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed on other criminals in the
same jurisdiction; and (iii) the sentences imposed for commission of the same
crime in other jurisdictions.
Solem, 463 U.S. at 292. Hawkins argues that his sentence runs afoul of the three-pronged
analysis in Solem. We point out that the United States Supreme Court subsequently held that
“Solem was simply wrong; the Eighth Amendment contains no proportionality guarantee.”
Harmelin v. Michigan, 501 U.S. 957, 965 (1991). We also note that the Mississippi
Supreme Court held in Hoops v. State, 681 So. 2d 521, 538 (Miss. 1996) (quoting
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Smallwood v. Scott, 73 F.3d 1343, 1347 (5th Cir. 1996)) that “[i]n light of Harmelin, it
appears that Solem is to apply only when a threshold comparison of the crime committed to
the sentence imposed leads to an inference of ‘gross disproportionality.’”
¶16.
Hawkins was convicted of attempted burglary of an automobile and sentenced as a
habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007)
which provides:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to and served separate terms of one (1) year or more in
any state and/or federal penal institution, whether in this state or elsewhere,
and where any one (1) of such felonies shall have been a crime of violence
shall be sentenced to life imprisonment, and such sentence shall not be
reduced or suspended nor shall such person be eligible for parole or
probation.
(Emphasis added). It is clear that under the facts of this case if Hawkins were found guilty
of the charge of attempted burglary of an automobile, he could be sentenced as a habitual
offender under section 99-19-83, as he has one previous conviction for robbery and two for
burglary. It is well established that “[s]entencing is within the complete discretion of the
trial court and [is] not subject to appellate review if it is within the limits prescribed by
statute.” Hoops, 681 So. 2d at 537 (citing Reynolds v. State, 585 So. 2d 753, 756 (Miss.
1991)). We find no merit to this issue, as Hawkins’s sentence was within the statutory
limits. Thus, no further analysis pursuant to Solem is required.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF ATTEMPTED BURGLARY OF AN AUTOMOBILE AND
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SENTENCE AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO BOLIVAR COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES,
ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
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