Cox v. State

• Decision Date: 02 August 2001
• Docket Number: No. 1999-KA-01014-SCT.,1999-KA-01014-SCT.
• Citation: 793 So.2d 591
• Parties: Randy COX and Eddie James Shorty v. STATE of Mississippi.
• Court: Mississippi Supreme Court

793 So.2d 591

Randy COX and Eddie James Shorty v. STATE of Mississippi.

No. 1999-KA-01014-SCT.

Supreme Court of Mississippi.

August 2, 2001.

John D. Watson, West Memphis, AR, Wanda Turner-Lee Abioto, Memphis, TN, for Appellants.

Office of the Attorney General by Jean Smith Vaughan, for Appellee.

Before McRAE, P.J., DIAZ and EASLEY, JJ.

McRAE, Presiding Justice, for the Court:

¶ 1. Randy Edward Cox and Eddie James Shorty were tried together and convicted of the armed robbery of a gas station. Cox was sentenced as a habitual offender to life imprisonment without the possibility of parole, and Shorty was sentenced to thirty years imprisonment without the possibility of parole. They assert numerous errors concerning admissibility of evidence, improper prosecutor's statement at closing, overwhelming weight of the evidence, mental capacity of defendant and allowing amendment to indictment for habitual offender, and incompetency of counsel and defendant, all of which lack merit. The judgment of the circuit court is, therefore, affirmed.

FACTS

¶ 2. A few minutes before midnight Randy Cox entered Donnie's Deli convenience store in Southhaven, Mississippi. He asked the clerk, John Long, to use the telephone, and he left after approximately five to ten minutes. Long testified that Shorty entered the store at approximately 2:00 a.m. and attempted to return some cold medicines for cash. Long refused, and Shorty eventually left. At the time, Shorty was driving a small, white, two-door car.

¶ 3. At approximately 4:00 a.m., Cox entered the store wearing sunglasses, a yellow t-shirt pulled over his head, a long-sleeve sweat-shirt, and socks over his hands and arms. He pointed a pellet pistol, which was designed to look like a .357 Magnum revolver, at Long, and Long opened the cash register. Cox then took the cash drawer out of the register, which contained $107.85, and exited the store.

¶ 4. Long testified that Cox got into a small, white car which was parked approximately five feet from the front glass doors. He said the car was driven by a black man, but he could not positively identify Shorty as the driver. The two men then fled the scene. The officer who responded to the robbery was on his way to the store when he passed Cox and Shorty traveling in the other direction. As he turned around to pursue, the car veered off the road and wrecked.

¶ 5. Shorty was taken into custody without resistance, but Cox attempted to flee the scene. He was arrested in an adjacent parking lot and told the officers that he did not rob the store, that Shorty robbed the store, and that he feared for his life. At the scene police recovered the clothes used in the robbery, the sunglasses, the cold medicine Shorty had attempted to return earlier, a Crossman pellet pistol, the cash register drawer, approximately $70 to $80 in cash and coin currency, and a crack pipe.

¶ 6. A jury found the defendants guilty of armed robbery, and the court sentenced Cox as a habitual offender to life imprisonment without the possibility of parole and Shorty to thirty years without the possibility of parole.

DISCUSSION

I. Whether the court erred in denying the appellants' motion for mistrial after the admission of evidence which had been excluded in limine.

¶ 7. A crack pipe was found at the scene of Cox and Shorty's arrest. On motion in limine of the defendants, the circuit court ruled that the prosecution could not introduce evidence of the pipe at trial. At trial, an officer testified that he saw a crack pipe in the car. Defense counsel objected, and the judge took the attorneys into chambers. In chambers the prosecutor said that he forgot to tell the officer not to mention the pipe. The judge proceeded with the trial and admonished the jury that it must disregard the pipe because it might have belonged to anybody. He then asked each juror if mention of the pipe would affect them, and each responded negatively.

¶ 8. Cox cites Mack v. State, 650 So.2d 1289 (Miss.1994), and Watts v. State, 635 So.2d 1364 (Miss.1994) (reversed for failing to give proper limiting instruction), for the propositions that robbery has its own motive and that the introduction of other crimes constitutes reversible error. These cases are distinguishable because they all relate to other crimes that were actually introduced into evidence under M.R.E. 404(b) to prove motive for the crime.

¶ 9. In Mack, we specifically held that "prosecutors and trial courts alike should approach with caution any evidence of other crimes offered for the purpose of proving motive for a robbery. Robbery has its own motive—the attainment of something of value." 650 So.2d at 1313. We went on to hold that the admission into evidence of Mack smoking crack before and after the crime was harmless error due to the "close connection of a specific monetary objective and because of the overwhelming evidence of guilt." Id.

¶ 10. Likewise, in Snelson v. State, 704 So.2d 452 (Miss.1997), cited by Shorty, the trial court admitted under Rule 404(b) evidence of crack use by Snelson long after the robbery was committed. We held that to be reversible error because there was no showing that Snelson's primary motivation was to purchase crack cocaine. This case is also distinguishable, as the trial judge in the instant case excluded evidence of the crack pipe and admonished the jury to disregard it when it was mentioned by the witness.

¶ 11. In Estes v. State, 533 So.2d 437, 439 (Miss.1988), the trial court granted a motion in limine to exclude other crimes as they related to Estes. The victim was being cross-examined and made reference to other crimes. The trial judge sustained the objection and struck the reference. The court also told the jury to disregard the testimony. We held this to be harmless error. "It is well settled that when the trial judge sustains an objection to testimony and he directs the jury to disregard it, prejudicial error does not result." Id. (citing Wetz v. State, 503 So.2d 803, 810 (Miss.1987); May v. State, 460 So.2d 778, 783 (Miss.1984); Shelby v. State, 402 So.2d 338, 340 (Miss.1981)). On re-direct examination, the victim once again made a similar reference. We held this to be harmless error because "[i]t is presumed that when a trial judge sustains an objection the jury understands that the trial court disapproves of the testimony." Id. (citing Davis v. State, 472 So.2d 428, 433 (Miss.1985)).

¶ 12. In the case at bar, the judge sustained the objection and ordered the jury to disregard testimony regarding the pipe. We have held that "[t]he trial judge is in the best position for determining the prejudicial effect of an objectionable remark by either the prosecutor or a witness." Perkins v. State, 600 So.2d 938, 940 (Miss.1992). Where "serious and irreparable damage" has not resulted, the judge should "admonish the jury then and there to disregard the impropriety." Roundtree v. State, 568 So.2d 1173, 1178 (Miss.1990). The jury is presumed to have followed the admonition of the trial judge to disregard the remark. Dennis v. State, 555 So.2d 679, 682-83 (Miss.1989). Under the facts at bar, it cannot be said that the circuit court abused its discretion in denying the defendants' motion for mistrial.

II. Whether the court erred in denying the appellants' motion for mistrial based on the remarks of the prosecutor in closing arguments.

¶ 13. During closing arguments, the prosecution made the following statement: "Randy Cox and Eddie Shorty committed, short of murder, what I consider to be the most invasive violent crime that could be committed against a human being." After closing arguments, defense counsel moved for a mistrial, which was denied by the circuit court. ¶ 14. The State argues that Cox and Shorty failed to object to the statement at the time it was made and that a contemporaneous objection is needed to preserve the issue for appeal. It contends that, had the objection been raised, the judge could have addressed the statement, and could have admonished the jury, if he found that to be necessary. "It is the duty of a trial counsel, if he deems opposing counsel overstepping the wide range of authorized argument, to promptly make objections and insist upon a ruling by the trial court." Brewer v. State, 725 So.2d 106, 131 (Miss.1998).

¶ 15. The test to determine if an argument by the prosecution requires reversal is "whether the natural and probable effect of the improper argument created an unjust prejudice against the accused as to result in a decision influenced by the prejudice so created." Davis v. State, 530 So.2d 694, 701 (Miss.1988). Having been denied the opportunity to correct the error, if any, the granting of a motion for a mistrial is within the sound discretion of the trial judge. Bass v. State, 597 So.2d 182, 191 (Miss.1992). Cox and Shorty have not shown that the court abused its discretion, and this issue therefore lacks merit.

III. Whether the verdict was against the overwhelming weight of the evidence.

¶ 16. Cox and Shorty claim that the court erred in denying their motions for directed verdict, new trial, and judgment notwithstanding the verdict because the verdict was against the overwhelming weight of the evidence. Shorty argues that no direct evidence connects him to any element of the crime. Cox argues that the gun he used was a pellet gun and, therefore, not a deadly weapon.

¶ 17. The evidence in the record shows that both men were in the store that night and that Shorty, by his own admission, was desperate for money. Later that night a man robbed the store while another waited outside in a getaway car similar to that which Shorty was driving earlier. On his way to the scene in response to the robbery call, an officer was passed by a car traveling away from the crime scene at a high rate of speed and driven by Shorty with Cox in the passenger seat.

¶ 18. After Shorty lost control of the vehicle and wrecked, the officers arrested the two at the...