Armstrong v. State, 1999-KA-01039-COA.

• Citation: 771 So.2d 988
• Decision Date: 21 November 2000
• Docket Number: No. 1999-KA-01039-COA.,1999-KA-01039-COA.
• Parties: Joe ARMSTRONG, Jr. a/k/a Joe Earnest Armstrong Jr. a/k/a Falfa, Appellant, v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

771 So.2d 988

Joe ARMSTRONG, Jr. a/k/a Joe Earnest Armstrong Jr. a/k/a Falfa, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-01039-COA.

Court of Appeals of Mississippi.

November 21, 2000.

David Clay Vanderburg, Attorney for Appellant.

Office of the Attorney General by John R. Henry Jr., Booneville, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., IRVING, AND PAYNE, JJ.

IRVING, J., for the Court:

¶ 1. Joe Earnest Armstrong, Jr., John Bland, Kwame Brengettcy and Larry Carr were charged in a three-count indictment with conspiracy to commit a drive-by shooting, aggravated assault, and deliberate design murder. The trials of the four defendants were severed by the circuit court, and Armstrong and his three co-defendants were each tried separately for the crime of murder of Mark Martin. Armstrong was found guilty and sentenced to life imprisonment. Following the denial of his post-trial motions and being aggrieved of the conviction and sentence, he has appealed alleging that the trial court erred (1) in denying his motion to dismiss the indictment for violation of his rights to a speedy trial, (2) in allowing the testimony of Detective Paul Shivers of the Batesville Police Department concerning an incident occurring the day after the charged murder, (3) in allowing hearsay statements of a co-defendant, (4) in allowing the introduction of the transcript of witness's testimony from the trial of a co-defendant, (5) in allowing the State to cross-examine a defense witness concerning threats the witness made to certain individuals, (6) in allowing the State to recall a rebuttal witness and allowing the rebuttal testimony of another witness, (7) in allowing the State's jury instructions concerning the elements of the crime of murder and the aiding and abetting instruction, and (8) in denying his peremptory instruction and separate motions for new trial and JNOV. Finding no reversible error, we affirm.

FACTS

¶ 2. On the night of the incident in question Mark Martin was patronizing a local café known as Nick's Place in the town of Coffeeville, Yalobusha County, when a female asked him to dance with her. Martin at first declined, telling her that he wanted no trouble. Then, for whatever reason, Martin changed his mind and began dancing with her. As they were dancing, David Long, also known as Little David, made it known that he took offense to Martin and the young woman dancing together. Little David left the café but returned a short time later in the company of Armstrong, also known as Falfa, and coindictees, Larry Carr, also known as Spanky, John Bland, also known as Junior or "J.R.," and Kwame Brengettcy.

¶ 3. Little David and his friends surrounded Martin and a loud argument ensued. The owner of the café intervened in the difficulty and sent them all outside. While outside, Carr, Bland, Brengettcy and Armstrong continued to confront Martin. There was testimony that Martin tried to avoid the confrontation. There was further testimony that Bland and Armstrong were engaged in a struggle with each other for possession of a pistol and that Armstrong cried out, "Let me kill that n___r!" The victim's brother, Calvin Martin, then appeared on the scene armed with a shotgun. The owner of the bar came outside and broke up the altercation, disarming Calvin Martin in the process.

¶ 4. Martin, the victim, decided to go to another night spot with a friend named Horton, and the two of them left Nick's Place on foot. Armstrong, Carr, Bland and Brengettcy also left Nick's Place. They departed in two separate vehicles, one of which was Armstrong's Oldsmobile. The foursome soon reappeared; however, this time they were all in Armstrong's vehicle. In the meantime, Martin and Horton were still attempting to walk to another night spot.

¶ 5. Milton Kimble was driving Martin's car alongside Martin and Horton as they were walking, urging Martin to get into the car. Armstrong's car approached Martin's car from the rear with its headlights turned off. As Martin walked toward the driver's side of his car, Armstrong's car pulled alongside Martin's car, and Bland called out, "What's up, n___r, now?" Martin ignored them and kept walking. Just as Martin made it to the rear door of his automobile, the occupants of Armstrong's car began shooting. Gunfire was seen coming from the front and rear passenger windows of Armstrong's car. Martin tried to run but was struck by gunfire and fell across the back of his car. He tried to get up, but the occupants of Armstrong's car continued to shoot him in the back.

¶ 6. The trial testimony was that Armstrong was in the driver's seat at the time of the shooting, and as soon as the shooting stopped he caused his car to "bounce" in an act of celebration. Armstrong then drove from the scene.

¶ 7. The chief of police of the town of Coffeeville, Jerry Martin (no relation to the murder victim), testified that he received a telephone call at about 11:15 on the night in question from Grenada Lake Medical Center, reporting the admission of the victim in this case. Chief Martin instituted an investigation and immediately began looking for Armstrong and his companions. A "BOLO" (be on the look out) was issued for Armstrong and his car. At about 9:00 the next morning, the Batesville Police Department located Armstrong's car at a Batesville motel. Chief Martin drove to Batesville and met with deputies from the Panola and Yalobusha County Sheriff Departments and officers of the Batesville Police Department. Troopers from the Mississippi Highway Patrol also joined the contingent. They went to the motel parking lot and were able to positively identify an Oldsmobile parked there as the one belonging to Armstrong.

¶ 8. Detective Lieutenant Paul Shivers of the Batesville Police Department testified that he attempted to determine from the hotel clerk which rooms had been let to the occupants of the Oldsmobile. Not being entirely sure that the occupants of those rooms were the ones wanted in Coffeeville, he checked the telephone numbers to which calls had been placed during the night from the rooms. As a result of this effort, the officers were able to confirm that the rooms' occupants were the individuals being sought. However, at about that same time, an officer posted to keep watch of the Oldsmobile reported that the occupants of the rooms were leaving the motel. A contingent of Batesville police officers followed the Oldsmobile.

¶ 9. Lieutenant Raye Hawkins, also of the Batesville Police Department, was the officer assigned to pursue and stop Armstrong's car when it initially left the motel. Hawkins pulled behind Armstrong's car and activated his siren and lights. Armstrong neither stopped nor increased his speed, but continued to drive along at a speed of about 35-40 miles per hour, ignoring the lights and siren behind him.

¶ 10. Two roadblocks were set up, one by the Batesville police officers and one by the troopers. Armstrong drove his car through both roadblocks. As he did so, the officers fired shots at the car's tires, striking and deflating all four. Still, Armstrong drove on, and Hawkins continued behind him. At one point, Armstrong stopped. Hawkins also stopped and attempted to exit his patrol car; however, as Hawkins stepped from his patrol car, Armstrong drove off. All of Armstrong's tires were completely flat at this point.

¶ 11. Hawkins followed Armstrong's car and drew abreast of it. At this point, the chase was approaching a busy shopping area. Hawkins, seeing the need to put an end to Armstrong's refusal to stop, produced his shotgun and aimed it at the Armstrong car. Armstrong turned sharply to his right and crashed his vehicle to a stop.

¶ 12. After Armstrong and his passengers, Brengettcy, Carr, Bland and three females, were taken out of the car and subdued, a search of the area was made. A .38 caliber pistol with one live round was found in the road.

¶ 13. Dr. Steven Hayne performed an autopsy on the body of Mark Martin. He found four gunshot wounds: one to the right lower back, one to the left lower back, one to the left buttock, and one coursed across the chest. Either of the two bullet wounds to the lower back was mortal. Dr. Hayne removed one bullet fragment from the body during the course of the autopsy. Steve Byrd, a forensic scientist with the Mississippi Crime Laboratory specializing in firearms evidence examinations, testified that the bullet fragment removed from Martin's body and submitted to him for examination was fired from the pistol recovered from the area of Armstrong's crashed vehicle.

¶ 14. Jackie Spearman was called to testify by the State. Initially, he refused to answer questions, and at one point insisted that he be allowed to "plead the Fifth." Inasmuch as he was not, and never had been, accused in the matter of the killing of Martin, he was held in contempt for his refusal to answer and was sentenced to spend the night in the county jail. The next morning Spearman was again brought in to testify. This time Spearman answered questions and testified that he knew Armstrong, Carr and Bland and saw them at a pool hall on the afternoon of the day of the shooting. He said that just as he was entering the pool hall he heard Armstrong and the other two discussing the victim. They were heard to say, "We're going to have to kill that n___r." They were also heard to say that the best time to accomplish this goal would be after the café closed that night. Spearman also heard Armstrong brag about having put a 12 gauge shotgun to Martin's head in the past. Spearman testified that he told Martin of this but that Martin did not appear to be concerned about it.

¶ 15. The defense opened with Kwame Brengettcy, who testified that Bland fired the shots from Armstrong's car that killed Martin. Brengettcy claimed that Bland did not share his intention beforehand and that there was no discussion among the riders in the car about hunting down and killing Martin. Brengettcy...