Clarence Arrington v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-KA-00254-COA
CLARENCE ARRINGTON
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
11/17/2009
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
HUNTER NOLAN AIKENS
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
ANTHONY J. BUCKLEY
CRIMINAL - FELONY
CONVICTED OF FELONY ESCAPE AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY
FOR PAROLE OR PROBATION
AFFIRMED - 02/15/2011
BEFORE LEE, P.J., ROBERTS AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Clarence Arrington was found guilty in the Circuit Court of Jones County of felony
escape. Arrington was sentenced as a habitual offender and ordered to serve five years in the
custody of the Mississippi Department of Corrections. The trial court denied Arrington’s
motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.
¶2.
Arrington now appeals, asserting the following issues: (1) he was deprived of his
constitutional right to testify; (2) the State failed to establish that he was a habitual offender;
and (3) the indictment failed to allege an essential element of the crime, and the trial court
erred in allowing a jury instruction, which constituted an impermissible constructive
amendment to the indictment, to be given.
FACTS
¶3.
Arrington was brought to the Laurel Police Department for a bond hearing. Officer
David Marshall of the Laurel Police Department escorted Arrington to the booking area of
the police station. Arrington asked if he could smoke a cigarette. Officer Jim Thornhill
opened the door to the security area to allow Arrington to smoke. Arrington walked out to
the security area, which was at the top of a set of stairs. Officer Thornhill testified that he
and Officer Marshall turned to talk to each other, and Arrington ran down the stairs. The
escape was captured on surveillance video, which was shown to the jury. Arrington was later
found hiding in a closet in a nearby residence.
DISCUSSION
I. RIGHT TO TESTIFY
¶4.
Arrington argues that he was denied the right to testify on his own behalf by the trial
court and/or his trial counsel. At trial, the following exchange occurred outside the presence
of the jury:
[DEFENSE COUNSEL]: I’ve advised you that it’s your decision and your
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decision alone whether or not you testify in this case; correct?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: I’ve advised you that if you do choose to testify
you’ll be subject to cross-examination by the district attorney’s office?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: And it will be a wide[-]open cross-examination?
[ARRINGTON]: Yes, sir.
....
[DEFENSE COUNSEL]: Do you want to testify in this case?
[ARRINGTON]: Yes, sir.
THE COURT: Okay.
[PROSECUTOR]: He does?
[DEFENSE COUNSEL]: Yes
[PROSECUTOR]: Your Honor, I think [defense counsel] needs to advise him
that he’s going to be subject to cross-examination, and . . . if he opens the door
I will cross-examine him on [his prior conviction] and the particular
underlying offense if he starts to allude into it, if he opens the door.
THE COURT: Does he understand that?
[DEFENSE COUNSEL]: Clarence, you understand that if you say anything
about the charge of grand larceny where you’re accused [of] stealing a TV or
grand larceny where you’re accused of stealing air conditioner compressors,
if you mention any of those, the State can cross-examine you about the fact
that you’re charged with those offenses?
[ARRINGTON]: Yes, sir.
[DEFENSE COUNSEL]: And they can also cross-examine you about your
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prior felony convictions if you mention them in your testimony?
[ARRINGTON]: Yes, sir, I understand.
[DEFENSE COUNSEL]: And with all that in mind you still want to testify?
[ARRINGTON]: Yes.
THE COURT: All right. Bring the jury out. You may step down. Are you
going to have anymore witnesses, [defense counsel]?
[DEFENSE COUNSEL]: Your Honor, I don’t believe I will.
THE COURT: I’m just trying to get a time frame here.
[DEFENSE COUNSEL]: Your Honor, we’ve reconsidered, and he’s not going
to testify. . . .
¶5.
Arrington argues that when his counsel announced that he did not want to testify, the
trial court should have questioned him on the record again. Arrington cites to Culberson v.
State, 412 So. 2d 1184, 1186-87 (Miss. 1982), which states:
We suggest to the trial judges of the state that, in any case where a defendant
does not testify, before the case is submitted to the jury, the defendant should
be called before the court out of the presence of the jury, and advised of his
right to testify. If the defendant states he does not wish to testify, he may not
be forced to take the stand; however, if he states that he wants to testify he
should be permitted to do so. A record should be made of this so that no
question about defendant’s waiver of his right to testify should ever arise in the
future.
¶6.
Arrington was advised of his right to testify.
That is all that is suggested in
Culberson. We cannot find support for the contention that a defendant should be advised of
his right to testify every time he or she changes his or her mind on whether to testify.
¶7.
Further, the facts of Culberson are distinguishable from this case. In Culberson, Alvin
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Culberson argued that his attorney prevented him from testifying. Id. at 1186. The
Mississippi Supreme Court reversed for an evidentiary hearing after evidence was presented
that Culberson told the trial judge during the motion for a new trial that he desired to testify.
Id. Also, Culberson’s attorney admitted that he may have caused some confusion by the way
he advised Culberson. Id. Arrington was given an opportunity to speak after the jury verdict
was read. Arrington stated that he felt he had “been railroaded from the whole get go.” He
went on to say: “That man put the charge on me. He say [sic] he was going to automatically
send me to prison from the go.” Arrington was referring to a police officer’s statement to
him. But the trial court found this immaterial as the officer did not participate in the trial.
¶8.
Arrington did not express a desire to testify after his attorney advised the trial court
that Arrington had changed his mind, and this issue was not mentioned in the motion for a
new trial. We find that the trial court informed Arrington of his right and did not prevent him
from testifying. If Arrington’s contention is that his attorney prevented him from testifying,
we find this issue better suited for an ineffective-assistance-of-counsel claim. Such an issue
is more appropriately raised in a motion for post-conviction relief, if he chooses to do so.
II. HABITUAL-OFFENDER STATUS
¶9.
Arrington argues that the State failed to prove that he was a habitual offender under
Mississippi Code Annotated section 99-19-81 (Rev. 2007).
¶10.
Section 99-19-81 states:
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
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have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.
A bifurcated hearing is required to prove habitual-offender status, and the State must prove
the requirements set forth in the statute beyond a reasonable doubt. Davis v. State, 680 So.
2d 848, 851 (Miss. 1996).
¶11.
Arrington asserts that the State failed to present evidence of his prior crimes during
the sentencing hearing. Prior to trial, the State moved to amend the indictment to reflect that
Arrington had been convicted of two previous felonies. At the conclusion of trial, the trial
court granted the State’s motion. The sentencing orders from the prior crimes were attached
to the motion. The first order sentenced Arrington to serve three years for the crime of grand
larceny. The second order sentenced Arrington to serve five years for the burglary of a
dwelling. Both sentences were issued in Jones County.
¶12.
Arrington argues that it was insufficient that the sentencing orders were attached to
the amended indictment. He asserts the State should have offered them as exhibits at the
sentencing hearing. No objection was made at trial to Arrington’s habitual-offender status;
thus, Arrington must assert this argument as plain error on appeal. Brown v. State, 995 So.
2d 698, 703 (¶21) (Miss. 2008). The sentencing orders were included with the amended
indictment and were made part of the record on appeal. Even though they were not
introduced as exhibits at trial, we find sufficient evidence was presented to establish
Arrington’s two prior convictions. This issue is without merit.
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III. INDICTMENT
¶13.
Finally, Arrington argues that his indictment was fatally defective. An essential
element of Arrington’s crime, felony escape, was that Arrington was in custody for a felony
arrest or felony conviction. Arrington argues that the indictment did not make clear that the
confinement from which he escaped was for a felony arrest or conviction.
¶14.
The purpose of an indictment is to put a defendant on notice of the charges against
him so that he is able to prepare an adequate defense. Evans v. State, 916 So. 2d 550, 551
(¶5) (Miss. Ct. App. 2005). “All that is required is that the indictment provide ‘a concise and
clear statement of the elements of the crimes charged.’” Id. at 551-52 (¶5) (quoting Williams
v. State, 445 So. 2d 798, 804 (Miss. 1984)).
¶15.
The indictment states that Arrington “did willfully, unlawfully, and feloniously,
escape from the Laurel Police Department, in which he was confined and in lawful custody,
in violation of Section 97-9-49.” The indictment clearly states that Arrington “feloniously”
escaped. The escape is not felonious unless the charge for which the defendant is in custody
is a felony. Miss. Code Ann. § 97-9-49 (Rev. 2006). This issue is without merit.
¶16. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF
CONVICTION OF FELONY ESCAPE AND SENTENCE AS A HABITUAL
OFFENDER OF FIVE YEARS 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
JONES COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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