Croft v. State

• Decision Date: 09 October 2008
• Docket Number: No. 2007-KA-01331-SCT.,2007-KA-01331-SCT.
• Citation: 992 So.2d 1151
• Parties: Anthony CROFT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

992 So.2d 1151

Anthony CROFT v. STATE of Mississippi.

No. 2007-KA-01331-SCT.

Supreme Court of Mississippi.

October 9, 2008.

Mississippi Office of Indigent Appeals, by Benjamin Allen Suber, attorney for appellant.

Office of the Attorney General, by Lisa Lynn Blount, attorney for appellee.

Before WALLER, P.J., EASLEY and GRAVES, JJ.

EASLEY, Justice, for the Court.

¶ 1. Anthony Croft was convicted on three of five counts of armed robbery in the Circuit Court of Bolivar County, Mississippi, and sentenced to twenty-five years for each count, said sentences to run concurrently. Croft timely filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a motion for a new trial. The trial court denied the post-trial motions. From that final judgment, Croft appeals.

FACTS

¶ 2. Croft testified that on September 15, 2005, he lost $175 shooting dice at Mac's Place, a small bar located in Mound Bayou where patrons go to drink beer, shoot pool, play dominos, and sometimes bet on sporting events. Croft said he believed that Larry McKnight, who operated the establishment, had been using bogus dice. Croft left the bar and went to his sister's house, where he got more money and a gun. Croft said he arrived back at Mac's Place in a vehicle with Randall James and Louise Fipps (Louise), Croft's aunt. Larry Hogan and Michael Warren, both of whom were indicted with Croft in this matter, followed in another vehicle.

¶ 3. Croft entered the bar for the second time that evening and again started rolling dice. After losing $75 on a roll of "snake eyes," Croft said he confronted McKnight about the dice. McKnight pushed him in response, so Croft said he pulled out his gun with the intent of getting out of Mac's Place without any problems. Croft then demanded his money back from McKnight. Croft said at that point, James and Louise began grabbing money from the table, money which Croft stated was already there. Croft "took about $75 off the table," claiming it was his, and left Mac's Place with Louise, Hogan, James, and Warren.

¶ 4. Croft testified that they dropped off James and Louise prior to being arrested outside his grandmother's house by the Mound Bayou police for armed robbery. It was uncontested that Croft had $174 on his person when arrested.

¶ 5. The State put on eight eyewitnesses who each testified to a different version of events. Testimony conflicted as to whether people inside Mac's Place were playing dice games, dominos, or just standing around when the robbery occurred. The testimony, however, was consistent that Croft was not gambling at the time of the robbery.

¶ 6. Kelvin Fipps, Croft's cousin and a nephew of Louise Fipps, testified he was outside Mac's Place at the time of the robbery. Looking through the window, he saw Croft holding a gun in one hand and a pool cue in the other. Kelvin said he heard Croft tell the people inside to throw their money on the table. He said he tried to get into the building to stop Croft, but Hogan was holding the door closed. Kelvin testified that as he kicked and banged on the door, Warren told him to "leave it alone, let him handle his business," referring to Croft.

¶ 7. Robert Lee Fields also was outside Mac's Place at the time. Field's testimony corroborated Kelvin's testimony.

¶ 8. Sylvester Fipps, Louise Fipps's son, was inside Mac's Place when Croft entered the establishment for the second time that evening. He testified that Croft walked into the bar, asked somebody for a beer, pulled out a gun and told everyone to get in the corner. Sylvester stated he had $80 of his own money on the table at the time Croft ordered Louise to gather it up with the rest of the money. The record, however, is unclear as to when and how Sylvester's money got on the table. Sylvester also indicated that Croft had been playing dice earlier, but was not playing at the time of the robbery.

¶ 9. Larry McKnight testified that Croft walked into the bar, laid a pistol on the table, and asked Eddie Johnson to buy him a beer. Croft then picked up the pistol, along with a pool cue, and told everyone to get against the wall. According to McKnight, people were standing around a table playing dominos, not rolling dice. Croft ordered them to empty their pockets and to put their money on the table. McKnight placed approximately $285 on the table. At that point, there was a loud bang at the door where Hogan was standing guard. McKnight said the noise diverted Croft's attention long enough for Eddie Johnson and others to retrieve their money from the table; McKnight did not make the attempt. Croft redirected his attention to the table and ordered Louise to pick up the money and bring it to him at the bar. Croft then left with James and Hogan.

¶ 10. Eddie Johnson (also known as Big Eddie) testified that he was sitting next to the bar when Croft entered the building. He said no one was shooting dice, but some people were standing around playing dominos at the time. According to Johnson, Croft entered the bar, walked over and asked Johnson to buy him a beer. Johnson refused. Croft then pulled out a gun and said, "Well, Big Eddie, you think this here will get that beer?" Croft told Johnson to put his money on the table. Johnson took $600 out of his pocket and placed it on top of the table. Johnson stated that Croft ordered Louise to get the money off the table. Johnson said it appeared to him that Louise was trying to talk Croft out of what he was doing. While Louise was gathering the money, Johnson said someone kicked the door where Croft had his "guard" standing. The commotion distracted Croft; Johnson then grabbed his $600 from the table.

¶ 11. Louise testified she walked inside Mac's Place, saw Croft, and asked him to buy her a beer. Croft agreed and the two walked toward the bar. Louise then observed Croft with a gun and heard him say, "It's is a stickup." Croft told her, "Get the money off the table and put it on the counter." Louise did what she was told. She testified that she left Mac's Place alone and walked home.

¶ 12. Paulette Hunter testified she went in Mac's Place to use the restroom. She first heard Croft tell Hogan to lock the door, then noticed Croft with a gun in one hand and a pool stick in the other. She knew it was a holdup when Croft "asked them to give him their money." Hunter saw Louise pick up the money and heard Croft tell James to take the money. Croft then went through the money and said, "I know there was some one hundred dollar bills in here somewhere. Where's the hundred dollar bills at?"

¶ 13. Livingston Jones, a bartender at Mac's Place, testified that Croft came into the bar, placed a gun on the table, and said "it's a stickup." Jones took $50 from his pocket, which he said belonged to the bar, and put it on the table. Jones said the $50 was from beer sales and would have been turned over to McKnight at the end of the night. Jones said Croft instructed Louise to the pick up the money and hand it to him. Croft took the money from her and left the building. Jones also testified he did not see anyone playing dice that evening.

¶ 14. The jury subsequently found Croft guilty of armed robbery of Sylvester Fipps, Larry McKnight, and Eddie Johnson. They found Croft not guilty of armed robbery as to Livingston Jones and Johnny Brown (Brown did not testify).

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING INVESTIGATOR JOE SMITH'S TESTIMONY.

¶ 15. The standard of review for the admission or exclusion of evidence is abuse of discretion. Brown v. State, 969 So.2d 855, 860 (Miss.2007) (citing Poole v. Avara, 908 So.2d 716, 721 (Miss.2005)). "The relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused." Johnston v. State, 567 So.2d 237, 238 (Miss.1990) (citing Hentz v. State, 542 So.2d 914, 917 (Miss.1989); Monk v. State, 532 So.2d 592, 599 (Miss.1988)).

¶ 16. Croft contends the trial court erred by not allowing the testimony of Investigator Joe Smith, a narcotics investigator with the Bolivar County Sheriff's Department, who did not participate in the robbery investigation conducted by the Bolivar County police. Croft proffered Smith's testimony for the court's determination as to what parts would be admissible for his defense. Croft maintains that Smith would have testified that Mac's Place was being investigated for both drug and gambling activity, and that McKnight had served time in federal prison for a drug crime. Croft asserts this testimony would have supported his defense theory, which was as follows: McKnight was running a crooked game of dice the night of September 15, and because Croft had threatened to inform the police about illegal gaming at Mac's Place if McKnight did not return Croft's money, McKnight was biased and had an interest in testifying against Croft.

¶ 17. On proffer, Smith testified that Croft approached him shortly after Croft's arrest for the armed robbery with information regarding drug activity at Mac's Place. Smith first put Croft in contact with an agent for the Drug Enforcement Agency, but nothing transpired from that meeting. Smith thereafter initiated his own drug investigation into Mac's Place. At the time of Croft's trial, Smith indicated he was still gathering intelligence and information about drug activity at the establishment. Smith stated he had no knowledge concerning illegal gambling activity at the establishment. Finally, when asked whether he knew if McKnight had served time in federal prison for drugs, Smith said he thought he heard that McKnight had, but was not sure.

¶ 18. The trial court ruled Smith's testimony inadmissible under Mississippi Rules of Evidence 608 and 609.¹ The trial court determined that Smith had insufficient knowledge pertaining either to McKnight's prior federal conviction or to illegal gambling activity at the establishment. The trial court also ruled that Smith's...