Austin v. State

• Decision Date: 03 May 2001
• Docket Number: No. 2000-KA-00234-SCT.,2000-KA-00234-SCT.
• Citation: 784 So.2d 186
• Parties: Artis AUSTIN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

784 So.2d 186

Artis AUSTIN v. STATE of Mississippi.

No. 2000-KA-00234-SCT.

Supreme Court of Mississippi.

May 3, 2001.

Thomas H. Pearson, Clarksdale, for Appellant.

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

Before PITTMAN, C.J., SMITH and EASLEY, JJ.

PITTMAN, Chief Justice, for the Court:

¶ 1. This is a criminal appeal from a judgment of the Circuit Court of Coahoma County, Mississippi, Circuit Judge Kenneth L. Thomas, presiding, wherein Artis Austin was convicted of capital murder and sentenced to life in prison without the possibility of parole. The indictment alleged that Austin, in concert with one Carlos Williams, committed the crime of robbery, and in the process, shot and killed Mrs. Johnnie Moore. The trials of Austin and Carlos Williams were severed, and an Order Transferring Venue to Panola County, Mississippi was entered on August 3, 1999 pursuant to defense counsel's request. After a jury trial, final judgment was entered on September 3, 1999. The trial court denied Austin's motion for a JNOV or a new trial, and this appeal was timely filed.

FACTS

¶ 2. On Friday, August 29, 1997, Johnnie Moore was working with her friend Ruth Hope Morganti at the McNeil Payment Agency in Clarksdale, Mississippi. At the Payment Agency, Moore and Morganti accepted payments for telephone and water bills. Moore was sixty-nine years old. She and Morganti had known each other since 1950, when they were employed together by the Southern Bell telephone company.

¶ 3. Around 11:30 in the morning, Moore and Morganti were sitting behind the payment windows at the Payment Agency. There were several customers present. A man walked over to Mrs. Morganti's side of the counter and slid an envelope under the window to her. When she opened it, she found that it did not contain a bill, but rather a blank piece of paper. Sensing that something was wrong, Morganti stooped down to sound an alarm that was built into the payment counter. As she was attempting to engage the alarm, Morganti heard a "real loud noise." She testified that when she raised up, a man had jumped on to the counter and was pointing a gun at her. She quickly stooped back down and heard Moore push her chair back and say, "Oh, no." She then heard a shot. Morganti then turned on the alarm and looked to see if Moore had been shot.

¶ 4. Morganti saw that Moore was bleeding from her chin. Moore stood up and walked into a back office. Morganti called 911 to report the robbery and the shooting. When she went into the back office, Moore had fallen to the floor. The cause of Moore's death was established by Dr. Steven Timothy Hayne. Moore died of wounds to her chin, neck, and chest caused by a large caliber bullet. Dr. Hayne testified that Moore likely lived and was conscious for some five minutes after having been shot. The gunman absconded with nearly two thousand dollars.

¶ 5. Various witnesses were present in or around the vicinity of the Payment Agency at the time of the incident. Each witness testified to seeing a stocky or heavy man with a gun running away from the scene of the crime. Most testified that the man was wearing a striped shirt and dark trousers, that the man tripped and almost fell while running down the street, and that the man dropped some money during his flight.

¶ 6. Ethel Ingram of Clarksdale was present at the Payment Agency. She observed a man kneeling on the counter in front of Mrs. Moore, pointing a gun at her. Ingram testified that the man's face was at least partially covered with what might have been a scarf of some kind and that the man wore a striped shirt.

¶ 7. David Davidson, who was ten years old at the time of the trial, was sitting in his grandmother's car outside the Payment Agency when the robbery and shooting occurred. Also in the car were Davidson's grandmother, sister, and brother. While sitting in the car, David heard a gunshot coming from within the Payment Agency. He observed three men running from the business. He testified that the man holding the gun was "chunky" in build, and that the man tripped and almost fell while running. David identified a striped shirt and trousers at trial as those worn by the chunky man with the gun.

¶ 8. Anneye Davidson, eleven years of age at the time of trial, testified that she also heard a gunshot while sitting in her grandmother's car. She also observed three men running out of the building, and she testified that the first man was "really heavy." She noticed that while running, the fat man tripped and dropped a gun. Anneye testified that the man also dropped some money and that he stopped to pick up both the gun and the money. At trial, she identified a striped shirt and a pair of pants at trial as those worn by the heavy man who tripped and fell while running. She further identified Austin at trial as being the "chubby guy" she observed running from the Payment Agency.

¶ 9. Charles Hooper, an employee with the Clarksdale Police Department, was in the post office on personal business between 11:30 and noon on August 29, 1997. One Calvin Sanders came into the post office and informed Hooper that someone was robbing the McNeil Payment Agency. Hooper walked outside the post office and saw a person running towards him with a silver and gold pistol in his hand. Hooper testified that at first, he did not know who the man was. Hooper stated that he later "distinguished [the man] by his build and his hair" because he had a chance to look at the man as he passed, and that he "figured out who he was then after that." Hooper testified that he had attended high school with Austin and that he had known that man for some five to six years. Hooper identified Austin at trial as the man who ran toward him with a gun in his hand. Hooper testified that Austin's appearance had changed since the last time Hooper had seen him in that Austin had lost a good deal of weight and had cut his long hair. Hooper testified that at the time of the robbery and shooting, Austin was "heavy" with "a real big behind."

¶ 10. James Piggie testified that while he was attempting to park behind the post office on August 29, he heard the sound of gunfire. He looked toward the Payment Center and saw four legs sticking out from the counter. After hearing a shot, James saw two men running down the street. He testified that one of the men tripped, that money flew out of the man's hand, and that the man tried to pick up the money.

¶ 11. Detective Sergeant Danny Hill responded to robbery and shooting. He investigated the area around the railroad track into which Austin had been seen to run. After a fruitless search, Hill went back to the Payment Center. Shortly thereafter, Hill was advised by another officer that the resident of a house some 75 to 100 yards from the railroad tracks had called the police to report a suspicious noise beneath her house. Hill discovered, in the crawl space beneath the house, a striped shirt, a pair of black pants, a white cap, a black "mask looking thing", and a pistol. The object that was shaped like a mask was composed of "pantyhose type material." A hair consistent with Austin's head hair was found in the pantyhose material. The pistol held five rounds of ammunition, and one round had been fired. An expert witness testified that the bullet that struck and killed Mrs. Moore originated from the gun left beneath the house.

¶ 12. Officer John D. Chambers also participated in the initial search for the suspects. He was positioned near the railroad tracks. While standing his post, Chambers observed a man walking out into one of the streets in the area. When the man discovered that he had been seen by Chambers, the man ran away and disappeared around the railroad depot. Chambers testified that the man was wearing dark pants, and that he weighed between 200 to 220 pounds. Chambers had known Austin for over fifteen years, and he identified Austin at trial as being the man he observed and chased on the day of the shooting and robbery.

¶ 13. On the day of the robbery, Artis Austin and Carlos Williams traveled to Tunica, Mississippi, and then to Memphis, Tennessee. They next took a Greyhound bus to Chicago, Illinois. They were apprehended a short time later.

DISCUSSION

I. WHETHER THE EIGHTH AMENDMENT PROHIBITS THE USE OF THE UNDERLYING FELONY IN A FELONY MURDER CONVICTION AS AN AGGRAVATING FACTOR IN SENTENCING, THEREBY RENDERING MISS.CODE ANN. § 99-19-101(5)(D) UNCONSTITUTIONAL?

A. Whether the Eighth Amendment allows the underlying felony to also be used as an aggravating factor.

¶ 14. Artis Austin was convicted of capital felony murder under Miss.Code Ann. § 97-3-19(2)(e) with an underlying felony of robbery. During the sentencing phase, the trial court directed the jury to consider, as an aggravating factor in sentencing, that the killing was committed during the commission of a robbery. Austin argues that the use of the underlying felony of robbery as an aggravating factor amounted to a "double counting" of the underlying crime in violation of Austin's Eighth Amendment rights. Further, Austin asks the Court to hold that Miss.Code Ann. § 99-19-101(5)(d)¹ (2000) is unconstitutional when a defendant such as Austin has been convicted of felony murder as defined in Miss.Code Ann. § 97-3-19² (2000). Austin asks the Court to redress the alleged errors by granting him a new sentencing hearing.

¶ 15. This argument is not properly before the Court in view of the fact that the jury did not return a sentence of death against Austin. Where the jury is given an instruction that allegedly "invites" the death sentence, yet the instruction does not result in causing the jury to render such a verdict, the verdict will not be disturbed. Gilliam v. State, 186 Miss. 884, 192 So. 440 (1939). Since Austin did not ultimately receive the death penalty, he has suffered no prejudice arising from the instruction. This Court will not consider alleged errors or issues which have no practical...