Clayton Trammell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KP-00196-COA
CLAYTON TRAMMELL
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
01/22/2009
HON. FRANK G. VOLLOR
WARREN COUNTY CIRCUIT COURT
CLAYTON TRAMMELL (PRO SE)
OFFICE OF ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
RICHARD EARL SMITH JR.
CRIMINAL - FELONY
CONVICTED OF ARMED ROBBERY AND
SENTENCED TO THIRTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED: 01/11/2011
BEFORE MYERS, P.J., ISHEE AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Clayton Trammell was convicted by a jury sitting before the Warren County Circuit
Court for armed robbery and sentenced by the trial court to thirty years in the custody of the
Mississippi Department of Corrections. Trammell’s post-trial motion for a new trial was
denied, and he perfected this appeal. Trammell claims: (1) the trial court erred in denying
his motion to suppress evidence; (2) the verdict is against the weight of the evidence; (3) the
evidence was insufficient to sustain a conviction of armed robbery; (4) the trial court erred
in denying certain defense jury instructions; (5) the trial court erred in failing to grant a
competency hearing; (6) he received ineffective assistance of counsel; (7) the trial court
imposed an excessive sentence; and (8) cumulative error merits reversal. Finding no merit
to any of these claims, we affirm the judgment of conviction and sentence.
FACTS
¶2.
On the evening of April 24, 2007, Trammell, then age twenty-seven, enlisted Arthur
Andrews and Carl Junn Rumbley, both age sixteen, to help him rob the Piggly Wiggly store
in Vicksburg, Mississippi. Trammell had been “scoping Piggly Wiggly out,” and he knew
that the store did not have security cameras. To create a diversion, Trammell directed
Andrews to call 911 and report a shooting in another part of town. Trammell and Andrews
entered the Piggly Wiggly, and Trammell approached the store’s customer-service counter
where he handed Angela Hamilton, an employee, a note which read: “Put all the money in
the bag. Now! I have a gun. I will use it. Don’t make a sound.” Hamilton complied.
Although she never saw a gun, Hamilton testified that she believed Trammell had one due
to the note and the fact that Trammell had kept his right hand in his pocket.
¶3.
Three days later, Hamilton identified Trammell from in a photographic lineup. At
trial, Hamilton testified that Trammell was a regular customer at the store. She recalled
seeing Trammell in the store on the night before the robbery when he came in and asked
about a money order from California.
¶4.
Andrews and Rumbley were the first ones to be apprehended by the police after the
robbery. Both gave statements to the police implicating Trammell in the robbery. Trammell
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was indicted on one count of armed robbery and two counts of directing a child to commit
a felony.
¶5.
At trial, Trammell was granted a directed verdict on the two counts of directing a child
to commit a felony. Trammell was found guilty of armed robbery and sentenced to thirty
years in the custody of the MDOC. Additional facts will be related, as necessary, during the
discussion.
DISCUSSION
I. Motion to Suppress Evidence
¶6.
Following their interviews with Andrews and Rumbley, the police obtained a search
warrant for Trammell’s home. The search warrant listed the following items to be seized:
“money, checks, money order receipts, clothing worn during the robbery of the Piggly
Wiggly store to include gray hooded sweatshirt, dark denim pants, long sleeve black shirt.”
During the search of Trammell’s home, which Trammell shared with his mother, Officer
Billy Brown found and seized a gun hidden underneath clothes in a closet located in the
living-room area of the home. Prior to trial, Trammell moved to suppress the gun. The trial
court denied the motion, finding that the gun was admissible under the plain-view doctrine.
Trammell argues on appeal that the gun should have been suppressed because it was not
specifically listed in the search warrant and was not in plain view.
¶7.
A trial court’s denial of a motion to suppress will not be overturned where the trial
court’s findings are supported by substantial credible evidence. Johnson v. State, 999 So. 2d
360, 363 (¶13) (Miss. 2008). Under the plain-view doctrine, the police may make a
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warrantless seizure when the officer is lawfully in a position to view an object; the object’s
incriminating character is immediately apparent; and the officer has a lawful right of access
to the object. Walker v. State, 881 So. 2d 820, 827 (¶16) (Miss. 2004). “[P]roperty which
has a sufficient nexus to the crime being investigated may be seized at the time officers are
properly executing a warrant authorizing a search for other items.” Lockett v. State, 517 So.
2d 1317, 1326 (Miss. 1987) (quoting Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983);
United States v. Kane, 450 F.2d 77, 85 (5th Cir. 1971); United States v. Gentry, 642 F.2d
385, 387 (10th Cir. 1981)).
¶8.
In Lockett, the police conducted a search of the defendant’s premises based on a
search warrant that only listed “guns” as the items sought. Id. at 1325. After finding two
guns in the defendant’s bedroom, the police continued their search and discovered credit
cards hidden behind a wall plaque. Id. Lockett held that when the police are executing a
valid search warrant and come across “other incriminating articles” not specified in the
warrant, those items may be seized. Id. Based on the facts of the case, the Lockett court
reasoned that while “[i]n the course of searching for the guns[,] the officers were entitled to
make reasonable inspection of places where the guns may have been hidden[,]” such as “[a]
wall plaque which may well conceal a space within a wall where such items may be hidden.”
Id. at 1326.
¶9.
During the suppression hearing in this case, Officer Brown testified that when he
opened the closet door, he noticed some articles of clothing on the shelf above where other
clothing articles were hanging. Upon inspecting the items, Officer Brown located a gun.
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Officer Brown informed Officer Jeff Merritt, who was conducting a search elsewhere in the
home, that he had found a gun. Officer Merritt testified that when he asked Trammell’s
mother about the gun, she denied ownership of it.
¶10.
Based upon the evidence in the record, we find that Officer Brown was lawfully on
the premises. Officer Brown was entitled to make reasonable inspection of places where the
items identified in the search warrant may have been hidden, and the living-room closet was
such a location. Having discovered the gun, it was reasonable for Officer Brown to believe,
under the circumstances of the investigation, that the gun had evidentiary value.
Accordingly, we affirm the trial court’s denial of Trammell’s motion to suppress. This issue
is without merit.
II/III. Weight and Sufficiency of the Evidence
¶11.
Most of the claims Trammell raises under the weight-of-the-evidence issue actually
challenge both the sufficiency of the evidence and the weight of the evidence. Therefore, we
will address issues two and three together.
¶12.
Trammell claims that the verdict is against the weight of the evidence because
Hamilton: did not see Trammell brandish a gun during the robbery, did not testify that she
was in fear for her life, and did not testify that Trammell threatened her during the robbery.
Trammell also contends that Hamilton’s identification of him is questionable because she
testified at trial that he was a regular customer at the store, but Officer Brown testified that
he had learned Trammell’s identity from Andrews. On this point, Trammell submits that
Hamilton did not actually identify him as the perpetrator of the armed robbery until the day
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of trial, after she was “educated and coached” by the State. Lastly, Trammell contends that
the State failed to prove that he committed the crime of robbery because the State failed to
meet its burden of proof showing that he had actual knowledge of the gun used in the robbery
which was found at his mother’s residence.
¶13.
In reviewing whether the evidence is sufficient to sustain a conviction, the Mississippi
Supreme Court has stated that: “the critical inquiry is whether the evidence shows ‘beyond
a reasonable doubt that [the] 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.’” Bush v. State, 895 So. 2d 836,
843 (¶16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). This
inquiry does not require a reviewing court to ask whether the evidence established the
defendant’s guilt beyond a reasonable doubt. Id. (quoting Jackson v. Virginia, 443 U.S. 307,
315 (1979)). Instead, the reviewing court considers whether, after viewing the evidence in
the light most favorable to the State, “any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson, 443 U.S. at 315).
¶14.
In determining whether a jury verdict is against the overwhelming weight of the
evidence, we view all of the evidence in the light most favorable to the verdict. Id. at 844
(¶18). This Court 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.
Smith v. State, 925 So. 2d 825, 832 (¶16) (Miss. 2006).
¶15.
Armed robbery is defined by Mississippi Code Annotated section 97-3-79 (Rev.
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2006), which provides in part:
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[.]
¶16.
At trial, Hamilton testified that when Trammell presented her with the demand note,
which indicated that Trammell had a gun, she complied by giving him “the whole bag of
money” belonging to the Piggly Wiggly store. And she testified that Trammell’s actions
placed her in fear for her life.
¶17.
The fact that Hamilton never saw a weapon is of no matter. In Lyons v. State, 942 So.
2d 247, 250-51 (¶¶13-16) (Miss. Ct. App. 2006), this Court, relying on the supreme court’s
pronouncement in Dambrell v. State, 903 So. 2d 681, 683 (¶6) (Miss. 2005), held that the
exhibition of a note stating that the defendant has a gun is an overt act which would
reasonably lead a victim to believe that a deadly weapon is present for the purposes of our
armed-robbery statute. The Dambrell court held as follows:
We find that when a defendant makes an overt act and a reasonable person
would believe that a deadly weapon is present, there is no requirement that a
victim must actually see the deadly weapon in order to convict pursuant to
Miss. Code Ann. Section 97-3-79. Therefore, a victim is not required to have
“definite knowledge” of a deadly weapon in the sense that the weapon must
actually be seen by the victim’s own eyes.
Dambrell, 903 So. 2d at 683 (¶6) (overruling Gibby v. State, 744 So. 2d 244 (Miss. 1999)).
¶18.
With regard to Hamilton’s identification of Trammell, contrary to Trammell’s
assertion on appeal, the record reveals that Hamilton did in fact make a positive pretrial
identification of Trammell when she picked his picture out of a photographic lineup three
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days after the armed robbery had occurred. Whether or not Hamilton informed the police
immediately after the robbery that she had seen Trammell in the store prior to the robbery
was something for the jury to ponder, not this Court. Further, as the State points out,
Andrews, who participated in the armed robbery along with Trammell, also positively
identified Trammell as the perpetrator.
¶19.
As to the gun, it was introduced into evidence at trial during Officer Brown’s
testimony for the jury’s consideration that Trammell possessed the means to commit the
crime of armed robbery, as represented by the note he displayed to Hamilton. In 77 C.J.S.
Robbery § 79 (2006), this is said:
Testimony connecting a weapon with the accused or the robbery is
admissible. Evidence of the defendant’s possession of a weapon is admissible
if the jury can infer from the evidence that the weapon could have been used
in the commission of the crime. Where an accused’s possession of weapons
or other instruments of crime affords no reasonable inference of guilt of the
offense charged, it should be excluded. Subject to this qualification, however,
evidence is admissible in a robbery prosecution to show that the accused
owned, possessed, or had access to tools, implements, or other articles with
which the robbery was or might have been committed, and especially when the
article is of a lethal nature.
Proof of possession of a deadly weapon is not limited to cases where the
weapon is openly displayed, but includes evidence of facts, circumstances, and
conduct from which the jury may infer that the robber was armed. It is
ordinarily permissible to prove the accused’s ownership or possession of
weapons before or after the commission of the robbery, as where weapons
were later found in the accused’s car, or in a room occupied by the accused,
or in an outbuilding adjacent to his or her residence.
¶20.
Officer Brown told the jury about the search that was conducted at Trammell’s place
of residence and where and how the gun was located. Officer Brown made it known to the
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jury that he did not ask Trammell’s mother if the gun belonged to Trammel. Officer Merritt
did not testify. During Andrews’s testimony, Andrews told the jury that no gun was involved
in the robbery, but he stated that Trammell did own a gun. The respective testimonies
presented factual questions for the jury’s determination as to whether the gun found at
Trammell’s place of residence was connected to the robbery of the Piggly Wiggly.
Trammell’s argument on this point concerns a charge of possession of the gun and not the
crime of armed robbery. See, e.g., Muscolino v. State, 803 So. 2d 1240, 1243 (¶13) (Miss.
Ct. App. 2002).
¶21.
Based on our review of the record, we find that there was sufficient evidence
produced at trial from which the jury could reasonably determine that Trammell was guilty
of armed robbery. And we do not find the verdict to be contrary to the weight of the State’s
evidence. Issues II and III are without merit.
IV. Defense Jury Instructions
¶22.
Trammell contends that the trial court erroneously refused defense jury instructions
D-1, D-4, D-6, and D-8. He also argues that he was denied an opportunity to present a
defense jury instruction on his theory of the case and that the jury instructions given were not
adequate and misled the jury.
¶23.
Jury instructions are to be read as a whole. McKlemurry v. State, 947 So. 2d 987, 990
(¶3) (Miss. Ct. App. 2006). “No reversible error will be found to exist if, when read together,
the instructions correctly state the law and effectuate no injustice.” Id. Although a criminal
defendant is entitled to present jury instructions which support his theory of the case, that
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entitlement is limited in that the trial court may properly refuse instructions which are
cumulative, incorrectly state the law, or are fairly covered by other jury instructions.
Livingston v. State, 943 So. 2d 66, 71 (¶14) (Miss. Ct. App. 2006).
¶24.
Defense jury instruction D-1 is an elements instruction, which the trial court denied
as being cumulative. The trial court had already granted the State’s instruction S-1A, an
elements instruction, which the trial court had found properly stated the law. Defense
counsel’s objection to instruction S-1A was that it stated the following element of the crime:
“by the exhibition of a deadly weapon through the use of a written note stating that Clayton
Trammell was armed with a gun.” Defense counsel argued that the armed-robbery statute
references only the display of a deadly weapon. As previously discussed, under the authority
of Dambrell and Lyons, an armed-robbery conviction will be sustained when there is
evidence that a note was exhibited to a robbery victim indicating that the perpetrator has a
deadly weapon. Jury instruction S-1A properly stated the law, and we find no error with the
trial court’s decision to deny defense instruction D-1.
¶25.
Defense instruction D-4 was denied by the trial court as being cumulative. The record
reveals that the trial court’s instruction C-1, which is nearly verbatim to D-4, had already
been granted with no objection from Trammell.
¶26.
Defense instruction D-6 is a circumstantial-evidence instruction, and it was denied by
the trial court because the State had presented eyewitness testimony identifying Trammell
as the individual who had robbed the Piggly Wiggly store on April 24, 2007. Eyewitness
testimony constitutes direct evidence, and when the State presents direct evidence against a
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criminal defendant, a circumstantial-evidence instruction is not warranted. Ross v. State, 954
So. 2d 968, 1009 (¶100) (Miss. 2007); Jones v. State, 920 So. 2d 465, 477-78 (¶38) (Miss.
2006).
¶27.
Finally, defense jury instruction D-8 was a form-of-the-verdict instruction, which
included directions for the form of the verdict on two additional counts on which Trammell
had been indicted–directing a child to commit a felony. Trammell was granted a directed
verdict on both of these counts. Accordingly, jury instruction D-8 was properly refused.
¶28.
Trammell fails to articulate how the trial court’s refusal to grant the aforementioned
defense jury instructions denied him the opportunity to present his theory of the case, or how
the given jury instructions were inadequate and misled the jury. For the above stated reasons,
we find no error with the trial court’s decision to deny defense jury instructions D-1, D-4, D6, and D-8. Accordingly, this issue is without merit.
V. Competency Hearing
¶29.
Trammell claims that the trial court committed reversible error in failing to conduct
a hearing to determine whether he was competent to stand trial. According to the record,
Trammell’s defense counsel filed a motion for appointment of a psychiatrist to conduct a
psychiatric evaluation. But the motion was never pursued to a decision.
¶30.
As this Court held in Roy v. State, 878 So. 2d 84, 89 (¶23) (Miss. Ct. App. 2003), a
movant is charged with the duty of pursuing a motion through to a hearing for a decision.
See URCCC 2.04. A psychiatric evaluation is required only if the trial court has reasonable
ground to believe that the defendant is incompetent to stand trial. URCCC 9.06. No where
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in the record is there any indication that the trial court had a reasonable ground to believe that
Trammell was not competent to stand trial. See Epps v. State, 984 So. 2d 1042, 1045 (¶9)
(Miss. Ct. App. 2008) (“The defendant bears the burden of ‘persuading the trial judge that
there is sufficient evidence to warrant a mental examination.’”). Further, a competency
hearing is not required unless the trial court has already ordered a psychiatric evaluation.
Sanders v. State, 9 So. 3d 1132, 1136 (¶16) (Miss. 2009) (citing URCCC 9.06).
¶31.
Accordingly, we find this matter is procedurally barred.
VI. Ineffective Assistance of Counsel
¶32.
“Ordinarily, ineffective-assistance-of-counsel claims are more appropriately brought
during post-conviction proceedings. This is because during direct appeals the Court is
limited to the trial court record in its review of the claim, and there may be instances in which
insufficient evidence exists within the record to address the claim adequately.” Archer v.
State, 986 So. 2d 951, 955 (¶15) (Miss. 2008). In such a case, “the proper resolution is to
deny relief without prejudice to the defendant’s right to assert the same claim in a
post-conviction relief proceeding.” Liddell v. State, 33 So. 3d 524, 533 (¶31) (Miss. Ct. App.
2010) (quoting Willis v. State, 811 So. 2d 450, 454 (¶8) (Miss. Ct. App. 2001)). We may
determine the merits of an ineffective-assistance-of-counsel claim on direct appeal only if
“the record affirmatively shows ineffectiveness of constitutional dimensions, or . . . the
parties stipulate that the record is adequate and the Court determines that findings of fact by
a trial judge able to consider the demeanor of witnesses, etc. are not needed.” Id. The bulk
of Trammell’s allegations of ineffective assistance involve alleged inaction by defense
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counsel based on matters outside the record. And the record does not affirmatively show
ineffectiveness of constitutional dimensions. Therefore, we dismiss Trammell’s ineffectiveassistance-of-counsel claim without prejudice so that he may pursue it in a post-conviction
proceeding if he chooses.
VII. Sentence
¶33.
Trammell claims that his thirty-year sentence is effectively a life sentence which
requires reversal because the jury did not recommend a life sentence.
¶34.
When a jury does not recommend a life sentence on a conviction for armed robbery,
the trial court’s imposition of a sentence is proper where the trial court takes into
consideration the defendant’s life expectancy and “all the relevant facts necessary to fix a
sentence for a definite term of years reasonably expected to be less than life.” Lindsay v.
State, 720 So. 2d 182, 185 (¶9) (Miss. 1998). Here, the trial court consulted two different
actuarial tables of life expectancy before imposing Trammell’s thirty-year sentence. Both
tables showed the life expectancy for a person of Trammell’s age, sex, and race to be thirtynine years. In accordance with Lindsay, the trial court made a record and considered all the
relevant factors necessary to determine Trammell’s sentence, which the record supports as
being reasonably less than life. Id. at (¶11). Therefore, we find Trammell’s sentence to be
a lawful sentence. This issue is without merit.
VIII. Cumulative Error
¶35.
Where there is no error in any one of the alleged assignment of errors, there can be
no cumulative error. Hughes v. State, 892 So. 2d 203, 213 (¶29) (Miss. 2004). Thus, we find
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no merit to Trammell’s claim of cumulative error.
¶36. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF THIRTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN
COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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