Cedric D. Russell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01628-COA
CEDRIC D. RUSSELL
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
01/30/2009
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
DONALD W. BOYKIN
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
ROBERT SHULER SMITH
CRIMINAL - FELONY
CONVICTED OF COUNT I, AGGRAVATED
ASSAULT, AND COUNT II, POSSESSION
OF A FIREARM BY A CONVICTED
FELON, AND SENTENCED AS A
HABITUAL OFFENDER TO LIFE FOR
EACH COUNT, ALL IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION
AFFIRMED - 08/16/2011
BEFORE GRIFFIS, P.J., MYERS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Cedric Russell appeals his conviction in the Hinds County Circuit Court of one count
of aggravated assault and one count of possession of a firearm by a convicted felon and his
sentence, as a habitual offender, to two terms of life in the custody of the Mississippi
Department of Corrections (MDOC) without the possibility of parole or probation. On
appeal, Russell asserts the following issues as assignments of error: (1) the indictment
should have been dismissed for failure to provide a speedy trial; (2) the amended motion to
amend the indictment to allege sentence enhancement as a habitual offender should not have
been granted due to prosecutorial vindictiveness; (3) the State committed a discovery
violation; therefore, Russell should not have been sentenced as a habitual offender; (4) the
evidence was insufficient to sentence Russell as a habitual offender; (5) Russell was
improperly sentenced as a habitual offender; (6) Russell was denied a fair and impartial trial;
and (7) the circuit court erred in denying Russell’s Batson objection regarding the State’s use
of peremptory challenges. Finding no error, we affirm the circuit court’s judgment.
FACTS
¶2.
On December 19, 2006, Michael Porter arrived at his girlfriend’s house at
approximately 5:00 or 6:00 p.m. Porter’s girlfriend, Lawanda Hawkins, her sister, their
mother, children, and Russell were all present in the home.
¶3.
At trial, Porter stated that he left the house to get a bottle of gin from his car, which
was parked in the driveway. Porter testified that Russell followed him outside. Porter
opened his car, leaned over the front seat, and reached over to get the gin from the back
floorboard. While he was in the car, Porter was shot twice in the leg. Porter crawled out of
the vehicle, stood up, and walked back into the house. Officers from the Jackson Police
Department arrived on the scene, and Porter was taken to University of Mississippi Medical
Center. Police officers found 9mm shell casings in the front of the house.
¶4.
On December 21, 2006, police officers arrested Russell, and he was subsequently
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indicted on August 16, 2007, for aggravated assault and for possession of a firearm as a
convicted felon. On March 10, 2008, the Hinds County District Attorney’s Office filed its
motion to amend the indictment to sentence Russell as a habitual offender under Mississippi
Code Annotated section 99-19-83 (Rev. 2007), stating that Russell had two prior felony
convictions, including a crime of violence.
¶5.
At trial, Porter testified that he told police everything that occurred prior to the
shooting, but he admitted that he failed to inform the police that he had a 9mm pistol in his
car when he was shot. Vicki Hawkins, Lawanda’s sister, testified that Porter always carried
a gun in his car. She stated that she observed both Porter and Russell go outside, but she
testified that when she went outside later, she did not see Russell. Vicki and Lawanda both
testified that they did not see who had fired the shots.
¶6.
Porter testified that he noticed that Russell had a pistol in his pocket while they were
inside Hawkins’s home, but he did not say anything about it to Russell. However, Porter
admitted at trial that he never told the police that he had seen a pistol in Russell’s pocket.
Porter also testified that he did not see Russell shoot the pistol.
¶7.
Russell testified that prior to the shooting, he went on the front porch of the house to
call a friend to pick him up. He stated that someone came by the house while he was outside
and asked if Porter was inside the house. Russell testified that one of his friends arrived and
picked him up before any shots were fired. Russell denied shooting Porter.
¶8.
After a trial held on January 27-30, 2009, Russell was found guilty of one count of
aggravated assault and one count of possession of a firearm by a convicted felon. Prior to
sentencing, the State submitted its amended motion to amend the indictment to sentence
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Russell as an habitual offender, seeking to add two additional felony convictions for
consideration in support of sentencing Russell under section 99-19-83. The addition of the
two convictions resulted in four prior convictions in support of habitual offender sentencing.
The motion was stamped “filed,” but the circuit clerk did not sign the motion, nor does it
appear on the circuit court docket. On January 30, 2010, the circuit court sentenced Russell
to life in the custody of the MDOC without parole or probation, with the two counts to be
served concurrently.
¶9.
Russell filed a motion for judgment notwithstanding the verdict (JNOV), or, in the
alternative, for a new trial. The circuit court denied both of these post-trial motions. Russell
now appeals.
DISCUSSION
I.
¶10.
Speedy Trial
On the day of trial, during the hearing on pretrial motions, the defense presented its
motion to set aside the order denying the pro se motion to dismiss for lack of a speedy trial.
The prosecution, in responding to this motion, sufficiently showed that Russell had suffered
no statutory or constitutional violation:
. . . I think the facts are clear, your Honor, that the defendant was arrested
December 26, 2006. He was indicted August 26, 2007, arraigned November
9, 2007. And his case was set for trial March 24, 2008.
All of these offenses of which indictments are presented to this Court
were supposed to be tried within 270 days according to the [sic] 99-17-1 of the
Mississippi Code. And his trial was certainly set within that time.
And your Honor, the reason that case was delayed was because the
defendant asked for it. I mean, any delay that we have after that goes against
the defendant. And I mean, I understand that [Russell’s attorney] Mr. Boykin
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needed to get him evaluated. That’s not the issue. I understand why he did
what he did. But certainly the delay is on the defense because he wanted a
mental evaluation. And he got one.
And as soon as he got one, at least within the next term, if not the
second term of court, he’s set for trial and we’re ready to go today. There is
no issue there. And number two is, Judge, what prejudice is he served – I
mean, has come to him. You know, there is no prejudice whatsoever. He has
no witnesses that aren’t available anymore. There’s nothing that’s missing.
I mean, regardless, we are within the timeframe as constitutionally and
statutorily provided. And I would note, your Honor, that he asked for the
speedy trial before he was even indicted.
So regardless, we’re within the statutory and constitutional confines of
the speedy trial. Secondly, he’s shown absolutely no prejudice whatsoever as
to the delay. And thirdly, I’d say any delay that’s happened is mostly because
of the defendant.
¶11.
Upon hearing and considering the motion, the circuit court ruled that “the motion is
not well taken and should be and hereby is denied. So that relates to both the statutory claim
and the constitutional claim of the defendant,” and then the circuit court further ruled that it
found no prejudice resulting from the delay.
¶12.
On appeal, Russell nonetheless asserts that the delay in his trial date violates both his
statutory right to a trial within 270 days of his arraignment under Mississippi Code
Annotated section 99-17-1 (Rev. 2007) and his constitutional right to a speedy trial under the
Sixth and Fourteenth Amendments to the United States Constitution and Article 3, section
26 of the Mississippi Constitution. Russell argues that his indictment should have been
dismissed for failure to provide him with a speedy trial. Russell claims that 571 days passed
between his date of arrest and his trial. Russell attributes this delay to the State, claiming that
the State gave no reason for this delay. Russell asserts that such a lengthy delay prejudiced
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him by causing him to lose contact with a critical witness named “Ron Ron,” who could not
be located prior to the trial.
¶13.
Our standard of review when addressing the claims of speedy-trial violations is as
follows:
Review of a speedy[-]trial claim involves a question of fact: whether the trial
delay arose from good cause. We will uphold the trial court's finding of good
cause if that decision is supported by substantial, credible evidence. However,
if no probative evidence supports the trial court's findings, we must reverse the
decision and dismiss the charge. The State bears the burden of proving good
cause for the speedy trial delay, and thus bears the risk of non-persuasion.
Good cause is a factual finding which is not different from any other finding
of fact, and thus[,] an appellate court should not disturb the finding when it is
based upon substantial evidence identified from the record.
Carr v. State, 966 So. 2d 197, 200 (¶5) (Miss. Ct. App. 2007) (internal citations omitted).
We will affirm a trial court’s findings where they are supported by substantial, credible
evidence. McBride v. State, 61 So. 3d 138, 147 (¶34) (Miss. 2011).
¶14.
Regarding Russell’s statutory right to a speedy trial, section 99-17-1 states: “Unless
good cause be shown, and a continuance duly granted by the court, all offenses for which
indictments are presented to the court shall be tried no later than two hundred seventy (270)
days after the accused has been arraigned.” Any delay as a result of action by the State that
is not supported by good cause will cause that time to be counted against the State. Wiley
v. State, 582 So. 2d 1008, 1011 (Miss. 1991). However, a delay caused by the actions of the
defendant, such as a continuance, will toll the running of the time period for that length of
time, and correspondingly, this time is subtracted from the total amount of the delay. Id.
¶15.
The record shows that Russell was arrested on December 21, 2006, indicted on August
16, 2007, and arraigned on November 9, 2007. Russell’s trial was initially set for March 24,
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2008, which was clearly within the statutory time of 270 days from his arraignment. We note
that Russell filed a pro se motion to dismiss for lack of a speedy trial on May 2, 2007, prior
to his indictment, which was denied due to no violation of section 99-17-1, but it resulted in
his trial date being moved up on the trial docket to February 11, 2008.
¶16.
However, Russell complained about his public defender, and he was subsequently
appointed new counsel in February 2008, resulting in his trial date being returned to March
24, 2008. Russell claimed that he had not spoken to his initially appointed counsel in over
a year. Russell’s new counsel then requested a mental evaluation on March 24, 2008. The
trial transcript explains that the doctor performing the evaluation was booked until October
2008. The evaluation was performed on October 5, 2008, and the report explaining the
results of the evaluation was issued the following day.
After the defense-requested
evaluation, the record reflects that Russell’s counsel asked that Russell’s case be put back
on the trial docket, but the record shows that his counsel failed to ask for a trial setting. The
Mississippi Supreme Court has held that while a defendant has no duty to bring himself to
trial, he does have a responsibility to assert his right to a speedy trial. Jaco v. State, 574 So.
2d 625, 632 (Miss. 1990). Russell’s trial finally began on January 27, 2009. However, as
explained above, much of that time is attributable to defense delay.
¶17.
In its pretrial motion, the State argued that Russell was arrested on December 26,
2006, and indicted on August 26, 2007, with the arraignment on November 9, 2007. The
State asserted the case was set for trial on March 24, 2008, and the State submitted that the
trial date was delayed because of the defendant’s request for new counsel and also for a
mental evaluation. The State asserted that as soon as Russell obtained his mental evaluation,
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he received a trial setting within 270 days. The State argued that the time from March 24,
2008, the original trial date and also the date of Russell’s oral motion requesting a mental
evaluation, to January 27, 2009, the date of trial, constituted a delay attributable to the
defense, due to the request for the mental examination. The trial transcript also reflects that
during the pretrial motions, the defense agreed that the period of time when Russell was
awaiting the evaluation should not be attributable to the State.
¶18.
The circuit judge addressed the accountability of the delay in ruling upon pretrial
motions, stating:
On 12-21-06 initially arrested, 8-16-07 indictment, 11-9-07
arraignment, trial set for March 24, 2008, 12-21-07 the court denies motion to
dismiss for lack of speedy trial. 2-11-08 trial date. No trial as defendant
complained of public defender.
On 3-10-08 the State moves to amend indictment to allege violent
habitual offender, 3-21-08 defendant moves to set aside 12-21-07 order, 3-2408 jury selection and commencement of trial to begin. And then there was
substantial argument made by Mr. Kessler [assistant district attorney] in his
brief in response to the motion to set aside the court’s order.
This court notes in this brief filed by Mr. Kessler that on December 21,
2007 this court denied a motion to dismiss filed pro se by Russell but moved
his case for trial to February 11, 2008. That trial did not commence as Russell
was complaining of his public defender and demanding new counsel, which
he was given.
This court, argued by Mr. Kessler, said it should attribute this delay to
Russell, and therefore does not count this period of delay against the State. In
total, this Court should find that all but the last 42 days of delay are
attributable to the State, albeit with limited weight given the absence of
evidence indicating intentional delay, again, argued by Mr. Kessler as that
delay exceeds the presumptively prejudicial threshold of eight months, this
Court should hold this factor to favor [Russell].
¶19.
As stated, the circuit judge concluded that he found “all but the last 42 days of delay
8
are attributable to the State, albeit with limited weight given the absence of evidence
indicating intentional delay.” The circuit judge also explained that he considered “all aspects
of this case, and particularly the motion, and consider[ed] the history, the timeline, the
Barker factors, arguments of counsel . . ., [and] briefs of counsel previously submitted to the
court” when denying the motion to dismiss. As our supreme court requested in State v.
Ferguson, 576 So. 2d 1252, 1255 (Miss. 1991), when examining a defendant’s assertion of
a speedy-trial violation, “it would be extremely helpful if the [c]ircuit [c]ourts . . . would
provide us with an articulated statement of their findings of evidentiary fact made and the
reasons for the decision to grant [or deny] the motion.” In the present case, we find the
circuit court’s findings are supported by substantial, credible evidence; thus, we find no
violation of Russell’s statutory right to a speedy trial.
¶20.
We now address Russell's constitutional concerns. Regarding Russell’s constitutional
right to a speedy trial, the United States Supreme Court established a four-part balancing test
to determine the parameters of a speedy trial were, and to determine when an accused’s right
to a speedy trial had been violated, stating: “(1) length of the delay, (2) the reason for the
delay, (3) the defendant's assertion of his right to a speedy trial, and (4) prejudice to the
defendant.” Barker v. Wingo, 407 U.S. 514, 529-34 (1972). The Mississippi Supreme Court
has adopted the Barker analysis as applicable to the state constitutional speedy trial right.
See Skaggs v. State, 676 So. 2d 897, 900 (Miss. 1996).
¶21.
In examining the first factor, the length of delay, we note that the constitutional right
to a speedy trial, unlike the statutory right created by section 99-17-1, attaches when a person
has been effectively accused of a crime. Jenkins v. State, 947 So. 2d 270, 276 (¶14) (Miss.
9
2006). In addition, this “first factor has been called a triggering mechanism because until
there is some delay which is presumptively prejudicial, there is no need for an inquiry into
the other balancing test factors.” Carr, 966 So. 2d at 201(¶8) (citing Barker, 407 U.S. at
531-32). “[T]here must first be a finding of a ‘presumptively prejudicial’ delay or our
inquiry on the issue ends.” Id. Here, the record reflects that Russell’s trial finally began on
January 27, 2009. Additionally, “[a]n eight-month delay between arrest and trial has been
found to be presumptively prejudicial.” Id. (citing Smith v. State, 550 So. 2d 406, 408 (Miss.
1989)). We note that Russell’s trial occurred a little more than two years after his arrest;
therefore, the delay is therefore presumptively prejudicial, and the remaining Barker factors
must be considered.
¶22.
The second factor considers whether the delay was justified, and the burden shifts to
the State to produce evidence justifying the delay and to persuade the trier of fact of the
legitimacy of the reasons. Carr, 966 So. 2d at 201 (¶9). “Delays caused by the defense, such
as requests for continuances, will toll the running of the speedy trial clock for that length of
time attributable to the continuance.” Hersick v. State, 904 So. 2d 116, 121 (¶8) (Miss. 2004)
(citation omitted). Although the circuit judge’s ruling in the present case does not explicitly
calculate all days attributable to defense delay, the circuit judge did, as previously noted,
explain that he found all but the last forty-two days of delay to be attributable to the State.
The circuit judge gave limited weight to the delay by the State, however, due to the absence
of evidence indicating intentional delay. The record reflects that Russell made the request
for new counsel and also requested a mental evaluation, resulting in a delay of the trial date
in order to accommodate these requests. The Mississippi Supreme Court has held that the
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defendant is responsible for delays resulting from psychiatric, mental, physical, and IQ
examinations requested by the defense. Thorson v. State, 653 So. 2d 876, 891 (Miss. 1994).
Additionally, in Magnusen v. State, 741 So. 2d 282, 289 (¶24) (Miss. Ct. App. 1998), this
Court explained that a delay caused by the withdrawal of the defendant’s attorney cannot be
weight against the State because such delay is beyond the State’s control. We further note
that the doctor selected by the defense for the examination was unable to conduct Russell’s
mental evaluation until nearly seven months after Russell’s request. Therefore, we will
weigh this factor as neutral.
¶23.
In turning to the third factor, we examine Russell’s assertion of his right to a speedy
trial. This Court has stated:
Though the State has the burden to provide a speedy trial, a defendant attains
more points under this factor of the Barker test if he has asserted his right to
a speedy trial. Failure to assert the right will make it difficult for a defendant
to prove that he was denied a speedy trial.
Muise v. State, 997 So. 2d 248, 253 (¶15) (Miss. Ct. App. 2008) (internal citations and
quotations omitted). The record reflects that Russell filed a motion for right to a speedy trial
on May 2, 2007, which was prior to his indictment. The circuit judge dismissed Russell’s
motion, but re-scheduled his trial for an earlier date.
¶24.
The record also shows that Russell filed various additional motions in relation to his
speedy trial request – including a motion to set aside the order denying the motion to dismiss
for lack of speedy trial, a motion to show cause for delay, and a motion to dismiss the
indictment for failure to provide a speedy trial.
¶25.
In considering the final factor of whether Russell was prejudiced by the delay, we
11
must look to the three interests for which the speedy-trial right was designed: to prevent
oppressive pretrial incarceration; to minimize anxiety and concern of the accused; and to
limit the possibility that the defense will be impaired. Bonds v. State, 938 So. 2d 352, 358
(¶16) (Miss. Ct. App. 2006). In Jenkins, 947 So. 2d at 277 (¶21) (internal citations and
quotations omitted), the supreme court held that “[g]enerally, proof of prejudice entails the
loss of evidence, the death of witnesses, or the staleness of an investigation.” Additionally,
we note that the defendant bears the responsibility of showing prejudice in order to weight
this factor in his favor. See Birkley v. State, 750 So. 2d 1245, 1252 (Miss. 1999); Perry v.
State, 637 So. 2d 871, 876 (Miss. 1994). In his motion to dismiss, Russell asserts that he was
“suffering mental anxiety” while being held without bond. However, the supreme court has
held that “a defendant's assertion of prejudice attributable solely to incarceration, with no
other harm, typically is not sufficient to warrant reversal.” Jenkins, 947 So. 2d at 277 (¶21).
¶26.
Russell claims that he was prejudiced by the delay in his trial date since he lost contact
with Ron Ron, who Russell submits to be a “critical” witness. Russell alleges that Ron Ron
would testify that he picked up Russell from Hawkins’s house prior to the shooting.
However, the record supports the State’s argument that Russell admitted on crossexamination that he never knew Ron Ron’s last name. We find Russell’s claim of prejudice
to lack support. See Birkley, 750 So. 2d at 1252; Perry, 637 So. 2d at 876. We further find
that the circuit court was within its discretion in determining that the length of time between
Russell’s arrest and trial did not violate either his statutory or his constitutional right to a
speedy trial. See Alexander v. State, 841 So. 2d 1138, 1144, 1146 (¶¶15, 24) (Miss. Ct. App.
2002) (explaining analysis for courts to utilize when reviewing possible violations of a
12
defendant’s constitutional and statutory right to a speedy trial). The record reflects that the
circuit judge carefully considered Russell’s claims and applied the appropriate judicial tests.
Although the circuit judge did not fully articulate his calculations regarding defense delay
in his findings, the record shows that the circuit judge spoke to the issue of prejudice and the
Barker factors; thus, we find that the circuit court’s findings are supported by substantial
evidence in the record. See Ferguson, 576 So. 2d at 1255. Finding no error by the circuit
court, we find that this issue is without merit.
II.
¶27.
Prosecutorial Vindictiveness
Russell next argues that the amended motion to amend the indictment to charge him
as a habitual offender should not have been granted due to prosecutorial vindictiveness.
Russell alleges that the State made a plea offer to him prior to trial and told him that if he
rejected the plea offer, the indictment would be amended to allege that he was a habitual
offender under section 99-19-83. Russell claims that the State’s action of filing its amended
motion to amend the indictment after the trial had ended but prior to sentencing, alleging that
Russell had four prior convictions, one of which was a crime of violence, constituted
prosecutorial vindictiveness.
¶28.
“The doctrine of prosecutorial vindictiveness ‘precludes action by a prosecutor that
is designed to penalize a defendant for invoking any legally protected right available to a
defendant during a criminal prosecution.’” Garlotte v. State, 915 So. 2d 460, 467 (¶23)
(Miss. Ct. App. 2005) (citations omitted). “Where there is a ‘reasonable likelihood that the
increase in sentence is the product of actual vindictiveness on the part of the sentencing
authority,’ there is a presumption of prosecutorial vindictiveness.” Moore v. State, 938 So.
13
2d 1254, 1264 (¶30) (Miss. Ct. App. 2006) (citing Alabama v. Smith, 490 U.S. 794, 799
(1989)). “However, when no such likelihood exists, it is the defendant's burden to prove
actual vindictiveness.” Id. (citing Alabama, 490 U.S. at 799-800).
¶29.
In Baskin v. State, 986 So. 2d 338, 344 (¶19) (Miss. Ct. App. 2008), Keith Baskin, like
Russell, argued that the circuit court erred in allowing the State to amend the indictment after
the verdict, but prior to sentencing. The court found no merit in Baskin’s claims of
prosecutorial vindictiveness, noting that the prosecutor offered the plea bargain in the
presence of both Baskin and his counsel, that Baskin “was advised, prior to trial, of the
consequences of going to trial and receiving a guilty verdict in light of his past criminal
history,” and that Baskin “was free to accept or reject the plea bargain at issue.” Id. at (¶¶1920).
¶30.
In the present case, the trial transcript and Russell’s brief allude to a document that
the State sent to Russell’s counsel on February 14, 2008, making Russell a plea offer as a
non-habitual offender, which stated that “if he refused this offer, we’ll amend indictment to
big H.O. on both counts” and was signed by an assistant district attorney.1 We therefore find
that Russell was aware of the terms of the plea agreement. In ruling on Russell’s objection
to amending the indictment, the circuit judge stated:
The current state of the law is they can do what they did. And that’s the
opinion of the Court. . . . And probably what they have done is try to make an
offer, plea bargain, which is obviously common in this Court, this state, all
over the country. It’s done every day hundreds if not thousands of times, what
they’ve done in this case, made an offer saying if you – this is our offer, plea
bargain. If you don’t take it it’s off the table, we’re going for the maximum,
or we’re going to amend to enhance the penalty.
1
This document does not appear in the record.
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¶31.
The Baskin court also noted that Mississippi law holds that “prior offenses used to
charge the defendant as [a] habitual offender are not substantive elements of the offense
charged”; thus, the State is allowed to amend a defendant’s indictment after the verdict, but
prior to sentencing. Id. at (¶19) (citing Shumaker v. State, 956 So. 2d 1078, 1087 (¶26)
(Miss. Ct. App. 2007)). Thus, we cannot find that the circuit court erred in allowing the State
to amend its indictment prior to sentencing, but after conviction. This issue is without merit.
III.
¶32.
Discovery Violation
Russell claims that due to a discovery violation by the State, he should not have been
sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83.
He argues that after he was found guilty but prior to sentencing, the State provided him with
documents relating to his four prior convictions. Russell claims that the length of time he
served for two of the convictions was in dispute. Russell states that the documentation
provided by the State showed that he had served exactly one year, which marks the
difference between him being sentenced under Mississippi Code Annotated section 99-18-81
(Rev. 2007) as opposed to section 99-19-83. Russell claims that he did not have the
opportunity to investigate adequately the length of the sentences he had served, and the
circuit court failed to give him a continuance to allow him to do so.
¶33.
For a discovery violation to require reversal, this Court has established that there must
be a showing of prejudice, and the non-disclosed material must be more than simply
“cumulative.” McCoy v. State, 811 So. 2d 482, 484 (¶15) (Miss. Ct. App. 2002). The State
argues that Russell had actual knowledge of his prior convictions, since he was convicted and
served time.
The State further argues that convictions three and four were served
15
concurrently as convictions one and two, so if Russell had no problem with the computation
of the time served for the first two convictions, he should not have a problem with the third
and fourth convictions, either; therefore, he cannot show any prejudice.
¶34.
The record reflects that the State called Evelyn Dixon, a special-projects officer at the
MDOC who also serves as the records custodian, to testify that two time sheets existed
regarding Russell’s prior convictions – “one for each incarceration, which we have two
charges on each time sheet.” Russell’s counsel admitted that he had time to examine the
documents, although he clarified that he was not confirming their accuracy as to the
computation of time served. After hearing testimony from Dixon and Lieutenant Tammy
Gaines, who works at the Hinds County Sheriff’s Office detention center in Raymond,
Mississippi, the circuit judge found that “the State has now complied with the habitual[]offender statute, section 99-19-83 . . . by proving four previous felony convictions prior to
the conviction of [Russell], one of which was a violent crime. Actually two, an aggravated
assault and felon in possession of a firearm.” The circuit judge then clarified that he made
these findings “beyond a reasonable doubt.”
¶35.
In this case, we find no discovery violations and also no showing of prejudice. Id.
Any discovery violation that might have occurred was harmless error.
IV.
¶36.
Insufficient Evidence
Russell’s fourth and fifth assignments of error relate to his habitual offender status and
subsequent sentencing; thus, we will address these two assignments of error together.
¶37.
Russell calls into question the circuit court’s finding beyond a reasonable doubt that
he had four prior convictions, and one of the prior convictions was for a crime of violence.
16
He also claims that the circuit court could not find, beyond a reasonable doubt, that he had
served sentences of one year or more for two of the sentences. Russell alleges that the
evidence presented at trial was insufficient to sentence him as a habitual offender to life
without parole or probation, pursuant to section 99-19-83. Instead, Russell claims that the
documents provided by the MDOC in support of his habitual offender status only proved that
one of his sentences had been served for one year or more. Russell states that the discharge
certificate was only dated one year after the sentence had begun, but it did not state Russell’s
actual release date.
¶38.
We note that the State must prove a defendant’s habitual-offender status beyond a
reasonable doubt. Gilbert v. State, 48 So. 3d 516, 524-25 (¶35) (Miss. 2010). The record
reflects that the State called Dixon to testify as to the language in Russell’s inmate time
sheets as well as to the terms of Russell’s incarceration. On direct examination, the
prosecutor inquired about Russell’s convictions and incarcerations and established the
following:
Q: Ms. Dixon, I’m going to call your attention to a possession of cocaine and
possession of marijuana, less than once ounce, to distribute conviction that was
rendered in the Circuit Court of Madison County on October 27, 1995[,] in
which the defendant was sentenced to two years in the Department of
Corrections.
Do you have any records that reflect whether or not this defendant was
held in custody by the Department of Corrections on those two charges?
A: Yes, sir.
Q: And were those charges run consecutively or concurrently?
A: They’re run concurrent.
17
Q: Okay. And how much time did the Cedric Russell that’s reflected in your
records serve on those two concurrent charges?
A: He was sentenced to serve two years.
concurrent. So he served one year.
He served one year that run
Q: Okay. From what date to what date?
A: Begin date April 10, 1995, and released April 10, 1996.
....
Q: I’m now going to call your attention to a possession[-]of[-]firearm[-]by[]a[-]convicted[-]felon conviction from the Circuit Court of Madison County,
cause number 99-0067, count three, in which the defendant, Cedric Russell,
was sentenced to one year in the Department of Corrections on February 29 of
2000.
Do you have any records that reflect that a Cedric Russell was received
into custody by the Department of Corrections on that charge?
A: Yes, sir.
Q: And what do your records reflect that that Cedric Russell served in custody
on that charge? How much time?
A: His sentence began on March 15, 1999, and was released on June 2, 2000.
....
Q: And he was sentenced to one year?
A: Yes sir. He was sentenced to one year on the possession of a weapon as
a felon, and one year, two months, 19 days on the aggravated assault.
Q: Okay.
A: And those two run concurrent.
Q: And aggravated assault cause number 98-2-018 out of the first judicial
district of Hinds County, Mississippi, the defendant was sentenced on May 9
of 2000. I believe you’ve already stated, is that the conviction you were
talking about, the aggravated assault?
18
A: Yes, sir.
Q: And how much time did he serve on that?
A: He served 445 days.
Q: That is in excess of one year?
A: Yes, sir.
¶39.
On cross-examination, Dixon also affirmed that she could tell the court, beyond a
reasonable doubt, that Russell did indeed serve one year on two of the charges. As stated
above, the circuit judge found, beyond a reasonable doubt, that “the State has now complied
with the habitual[-]offender statute, section 99-19-83 . . . by proving four previous felony
convictions prior to the conviction of [Russell], one of which was a violent crime. Actually
two, an aggravated assault and felon in possession of a firearm.”
¶40.
We find from the record before us that the circuit court did not err in finding that the
State had presented sufficient evidence showing that Russell had met the requirements of
section 99-19-83. See Gilbert, 48 So. 3d 516 at 525 (¶¶37-38). Therefore, the circuit court
did not err in sentencing Gilbert as a habitual offender under section 99-19-83. We find no
merit to Russell’s fourth and fifth assignments of error.
V.
¶41.
Voir Dire
Russell next argues that the voir dire process prejudiced the jury against him, which
denied him a fair and impartial trial. Specifically, Russell claims that the circuit judge
refused to allow Russell to ask the venire that “if they were in the minority, and after their
deliberations had ended, would they change their vote merely to go home, or merely to go
along with the majority.” Russell claims that the circuit judge also improperly denied his
19
challenges for cause for the three veniremen who stated that when they entered the
courtroom, they wondered “what Russell had done, not merely what he had been charged
with.” Russell submits that one of those veniremen said he wondered what Russell did based
on the fact that he was a young, black male.
¶42.
Generally, a voir dire is presumed sufficient to ensure a fair and impartial jury. Ross
v. State, 954 So. 2d 968, 988 (¶31) (Miss. 2007). In order to overcome the presumption of
fairness and impartiality, “a party must present evidence indicating that the jury was not fair
and impartial and show that prejudice resulted from the circuit court's handling of the voir
dire.” Id. (citing Manning v. State, 735 So. 2d 323, 336 (¶19) (Miss. 1999)). Additionally,
“[a] trial court's finding that an impartial jury was impaneled will not be reversed unless the
court abused its discretion.” Id. (citing Holland v. State, 705 So. 2d 307, 336 (¶97) (Miss.
1997)).
¶43.
Regarding Russell’s claim that the circuit judge refused to allow Russell to ask the
venire that “if they were in the minority, and after their deliberations had ended, would they
change their vote merely to go home, or merely to go along with the majority,” we note that
“judicial rules prohibit a party from asking venire members hypothetical questions or
attempting to elicit a pledge to vote a certain way if a certain set of circumstances are
shown.” Id. at 989 (¶35). Additionally, our supreme court “has held that a defendant fails
to show the necessary prejudice where the defense counsel fails to question jurors about an
inappropriate comment, and the venire members have made general declarations that they
could set aside their prejudices and reach a decision based on the evidence.” Id. at 988 (¶32)
(citing Holland, 705 So. 2d at 339-40 (¶¶121-23); West v. State, 463 So. 2d 1048, 1054
20
(Miss. 1985). Thus, we find that the circuit court’s ruling in the present case was within its
discretion.
¶44.
Turning next to Russell’s claim regarding his challenges for cause, the record reflects
that during the jury-selection conference, defense counsel challenged for cause the three
jurors who Russell submits “wondered what he did.” After hearing arguments from the
prosecutor and defense counsel, the circuit judge refused to remove these jurors for cause.
The circuit judge explained his decision, stating that:
the court asked if everybody could be fair and impartial, and if anyone
couldn’t let us know. Those weren’t the exact words, but certainly it was not
stated explicitly, inclusively. And the court went over and over the fact that
this man is innocent at this time and repeated what the court advised them
earlier. So the court believes they were properly advised about the innocence
of this man at this time. And so the court does not believe there’s been a
showing for cause for those ones.
The record shows that the circuit judge also previously explained to the veniremen that they
were entitled to their first impression of Russell, but clarified that “the fact that an indictment
has been returned against [Russell] is no indication of guilty whatsoever.” Eventually, the
defense counsel exercised peremptory challenges on each of the three jurors at issue, and as
a result, none of these challenged jurors sat on the trial jury. Thus, we find this issue is
without merit. Tapper v. State, 47 So. 3d 95, 98-99 (¶¶11-15) (Miss. 2010).
¶45.
In Christmas v. State, 10 So. 3d 413, 423 (¶¶46-47) (Miss. 2009), the supreme court
refused to address the merits of the defendant’s claim that the circuit court erred by denying
his challenge for cause against a juror who did not actually sit on the jury, based on
comments that juror made during voir dire examination. The supreme court cited its previous
decision in Mettetal v. State, 615 So. 2d 600, 603 (Miss. 1993), wherein the court held that:
21
So long as the jury that sits is impartial, the fact that the defendant had to use
a peremptory challenge to achieve that result does not mean that the defendant
was denied his constitutional rights. Ross v. Oklahoma, 487 U.S. 81, 88, 108
S.Ct. 2273, 2278, 101 L.Ed.2d 80, 90 (1988). This Court has explained that
a prerequisite to presentation of a claim of a denial of constitutional rights due
to denial of a challenge for cause is a showing that the defendant had
exhausted all of his peremptory challenges and that the incompetent juror was
forced by the trial court's erroneous ruling to sit on the jury. Chisolm v. State,
529 So. 2d 635, 639 (Miss. 1988).
¶46.
This issue is without merit.
VII.
¶47.
Batson Challenge
In his final assignment of error, Russell argues that the circuit court erred in denying
his Batson objection regarding the State’s use of peremptory challenges against African
American venirepersons without adequate, race-neutral justification. Russell points to the
fact that all twelve of the State’s peremptory challenges were of African American people,
and for some challenges, the State failed to give race-neutral reasons.
¶48.
This Court employs a well-established standard of review when considering Batson
challenges. Camper v. State, 24 So. 3d 1072, 1074 (¶12) (Miss. Ct. App. 2010). “This Court
reviews a trial court's ruling on a Batson challenge with great deference and will not overturn
the trial court's ruling unless it is clearly erroneous or against the overwhelming weight of
the evidence.” Id. at 1074-75 (¶12) (quoting Pruitt v. State, 986 So. 2d 940, 942 (¶8) (Miss.
2008)). We accord great deference in the findings of the circuit court because “the trial judge
is in the best position to evaluate the demeanor and credibility of the attorney offering the
gender/race-neutral explanation.” Id. at 1075 (¶12) (quoting Perry v. State, 949 So. 2d 764,
767 (¶7) (Miss. Ct. App. 2006)).
¶49.
The Equal Protection Clause of the Fourteenth Amendment of the United States
22
Constitution prohibits parties from exercising peremptory challenges against jurors “solely
based on their race.” Johnson v. State, 529 So. 2d 577, 583 (Miss. 1988) (citing Batson v.
Kentucky, 476 U.S. 79, 89 (1986)). When a party asserts that a discriminatory purpose for
the peremptory challenge exists, qualifying it as a Batson challenge, a trial court should
employ the following three-step procedure:
(1) the defendant must make out a prima facie case by showing that the totality
of the relevant facts gives rise to an inference of discriminatory purpose; (2)
once the defendant has made out a prima facie case, the burden shifts to the
State to explain adequately the racial exclusion by offering permissible, raceneutral justifications for the strikes; and (3) if a race-neutral explanation is
tendered, the trial court must then decide whether the opponent of the strike
has proved purposeful racial discrimination. The burden remains on the
opponent of the strike to show that the race-neutral explanation given is merely
a pretext for racial discrimination.
Pruitt, 986 So. 2d at 942-43 (¶8).
¶50.
Turning to the facts of the case at bar, we will review each of Russell’s strikes
individually that are at issue on appeal. Russell specifically names Shirley Banks, Sheila
Williams, Mary Ashmore, and Emma Lee Boone, and asserts that the State failed to provide
a race-neutral reason for striking these venirepersons.
¶51.
In reviewing the record, we note that Russell objected to the State’s peremptory
strikes on the grounds that all twelve strikes were African American venirepersons, and he
contended that there were no race-neutral reasons for those strikes. The State proceeded to
explain the race-neutral reasons for each of its strikes. Beginning with Banks, the State
explained that it struck her due to the fact that she had a class starting at 6:00 p.m., and she
informed the court during voir dire that “she didn’t want to be here past 5:30.” The State also
noted that Banks wears glasses, but she did not bring them with her that day, although she
23
stated that she would bring her glasses if chosen for the jury. Next, the State explained that
when the venire was asked whether they would make the State prove motive, Williams
nodded her head affirmatively. The State stated that it struck Williams due to the indication
that she would make the State prove motive when motive may not be necessary to prove.
The State next explained that it struck Ashmore due to her late work schedule, which may
affect her ability to remain attentive during trial, as well as the fact that she has a brother-inlaw who works at Oakley Training School, which may cause her to have some sympathy for
Russell. Finally, the State explained that it struck Boone due to her employment at the
Mississippi State Hospital at Whitfield. The State explained its concern that Boone:
may at some point during this trial speculate as to the mental abilities if that
were to come up. Even with no motive, especially her being sympathetic in
that regard . . . I think we have the right to strike somebody that works at a
mental institution, especially in this case.
¶52.
After listening to the State’s race-neutral reasons for its peremptory strikes, the circuit
judge overruled Russell’s objection, finding that the State had provided sufficient raceneutral justifications for each of its strikes. We note that precedent requires that we give
great deference to the circuit court’s findings of whether or not a peremptory challenge was
race neutral, see Manning, 765 So.2d at 519 (¶8); Booker, 5 So. 3d at 358 (¶3). Additionally,
we acknowledge that the supreme court has accepted the following as race-neutral reasons
for the exercise of peremptory challenges: living in a “high[-]crime” area, body language,
demeanor, prosecutor's distrust of the juror, inconsistency between oral responses and juror's
card, criminal history of juror or relative, social work and other types of employment, and
religious beliefs, and inattentiveness. Hicks v. State, 973 So. 2d 211, 220 (¶¶27-28) (Miss.
24
2007) (internal citations omitted). The record demonstrates that the circuit court properly
made a sincere effort to weigh and examine the race-neutral reasons provided by the State.
Nothing in the record before us reveals that the circuit court abused its discretion in finding
that the State had provided sufficient race-neutral reasons for its peremptory strikes. Thus,
we find no merit to this issue.
¶53. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II,
POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE AS
A HABITUAL OFFENDER OF LIFE FOR EACH COUNT, ALL 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 HINDS COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, ISHEE, ROBERTS AND
RUSSELL, JJ., CONCUR. BARNES AND MAXWELL, JJ., CONCUR IN PART AND
IN THE RESULT.
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