Dambrell v. State

• Decision Date: 03 March 2005
• Docket Number: No. 2002-CT-01260-SCT.,2002-CT-01260-SCT.
• Citation: 903 So.2d 681
• Parties: Zacharia Chase DAMBRELL v. STATE of Mississippi.
• Court: Mississippi Supreme Court

903 So.2d 681

Zacharia Chase DAMBRELL v. STATE of Mississippi.

No. 2002-CT-01260-SCT.

Supreme Court of Mississippi.

March 3, 2005.

Phillip Broadhead, Oxford, Ross Parker Simons, attorneys for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

EASLEY, Justice, for the Court.

PROCEDURAL HISTORY

¶ 1. Zacharia Chase Dambrell (Dambrell) was convicted of attempted armed robbery by a jury in the Circuit Court of Jackson County, Mississippi, and sentenced to serve a term of six years in the custody of the Mississippi Department of Corrections. Dambrell appealed his conviction, and it was assigned to the Court of Appeals. A divided Court of Appeals reversed and rendered the case. Dambrell v. State, 905 So.2d 655, 2004 WL 1154451 (Miss.Ct.App.2004). The Court of Appeals denied the State's motion for rehearing, and the State then filed a petition for a writ of certiorari which this Court granted. 883 So.2d 1180 (Miss.2004).

FACTS

¶ 2. On May 9, 2000, Dambrell smoked marijuana and took LSD while spending time with three friends. Much later that evening and into the morning of May 10, 2000, Dambrell took some more LSD and talked about robbing a store for cigarettes and money. One of Dambrell's friends gave him a knife, a rag and a mask. He wrapped the knife in the towel and placed it in his belt and tied the shirt around his neck as he walked the quarter mile to the store. As he neared the store, Dambrell saw someone outside of the store, and he went behind a dumpster. Owen Waters, the E-Z store clerk, was frightened when he saw a figure by the store dumpster at 2:00 a.m. Waters reentered the store and called the police. Prior to entering the store, Dambrell placed the mask on his face.

¶ 3. As soon as the police department answered Waters's call, he saw someone enter the store. Dambrell had his face covered up to his nose with what looked like a white T-shirt. The T-shirt was later found in the dumpster. Dambrell had a towel wrapped around his hand. Dambrell entered the store and saw someone on the telephone. He threw down the towel and knife and left the store. When Dambrell threw the towel across the counter a butcher knife fell out of the towel. Waters was sure that Dambrell heard him tell the police that he was being robbed. Dambrell denied that he heard the clerk say anything. Waters stated that he saw the knife when Dambrell threw down the towel and knife. Nevertheless, when Waters saw Dambrell enter with the towel, Waters assumed that Dambrell had a weapon in his hand.

¶ 4. Dambrell was indicted pursuant to Miss.Code Ann. § 97-3-79 and convicted in the Jackson County Circuit Court of attempted armed robbery and sentenced to six years in the custody of Mississippi Department of Corrections. The Court of Appeals reversed and rendered the conviction finding that the State of Mississippi failed to prove an element of the crime, that being, the exhibition of a deadly weapon, a knife, to Waters, and that as a result of the lack of exhibition of the weapon, Waters was not placed in fear of immediate injury to his person.

DISCUSSION

¶ 5. The issue before this Court is whether Dambrell "exhibited" a deadly weapon pursuant to the armed and attempted armed robbery statute of Miss. Code Ann. § 97-3-79 which states:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

(emphasis added).

¶ 6. After careful consideration, this Court overrules Gibby v. State, 744 So.2d 244 (Miss.1999). We find that when a defendant makes an overt act and a reasonable person would believe that a deadly weapon is present, there is no requirement that a victim must actually see the deadly weapon in order to convict pursuant to Miss.Code Ann. § 97-3-79. Therefore, a victim is not required to have "definite knowledge" of a deadly weapon in the sense that the weapon must actually be seen by the victim's own eyes.

¶ 7. The Court of Appeals held:

In discussing Dambrell's motion for a directed verdict, the trial judge noted that the weapon was not exhibited because Waters never saw the weapon until Dambrell had disposed of it.

The State chose to track the language of Mississippi Code Annotated Section 97-3-79 in its indictment. By doing so, the State obligated itself to prove that Dambrell exhibited a deadly weapon to Waters, and that as a result of that exhibition, Waters was placed in fear of immediate injury to his person. The State was obligated to establish that any fear of Waters flowed directly from, and was occasioned by his awareness of the existence of the weapon. Mere assumption that a deadly weapon exists is not enough, the victim must have definitive knowledge that such deadly weapon does in fact exist to support a conviction under a standard of reasonable doubt. Gibby v. State, 744 So.2d 244, 245(¶ 8) (Miss.1999).

Where the State has failed to establish that a weapon was exhibited, then of necessity it has also failed to establish that the victim was placed in fear of immediate injury to his person by the exhibition of a weapon. Our review of the record leads to the unavoidable conclusion that it does not contain proof of every essential fact alleged in the indictment. Therefore, it contains insufficient evidence upon which a reasonable person might have found Dambrell guilty pursuant to the indictment against him. Where the State has failed to prove each and every essential element of the indictment as drafted we are compelled to reverse and render the conviction. Lee v. State, 756 So.2d 744, 748 (¶ 11) (Miss. 1999). The State failed to prove that Waters was placed in immediate fear by exhibition of a deadly weapon, accordingly this Court reverses and renders Dambrell's conviction.

Dambrell, 905 So.2d at 658-59, 2004 WL 1154451 (¶¶ 13-15) (emphasis added).

¶ 8. At the end of Waters's cross-examination, he testified:

THE COURT: I have a question. Mr. Waters, you indicated that when he [Dambrell] walked in he had the towel and—

WATERS: The towel, he had the knife wrapped up in the towel, so I never did actually see the knife until after he slung it.

THE COURT: So he came in and he had the towel and—

WATERS: Wrapped around the knife.

THE COURT: That's all?

WATERS: Yes, sir.

THE COURT: Could you tell what it was?

WATERS: Not at that point, no, sir. I didn't know until he slung it. That's when I knew he had a knife.

THE COURT: So when he slung it the towel and the knife went off in the same direction?

WATERS: Yes, sir.

THE COURT: That's when you realized he had a weapon?

WATERS: Yes, sir.

¶ 9. On redirect examination Waters stated:

STATE: Mr. Waters, when the Defendant walked, this is in response to the Judge's question, the Defendant walked in with the towel, was the knife wrapped up in the towel like this?

WATERS: Yes, sir. It was all wrapped up where you couldn't see it.

STATE: Okay. What did you—what went through your mind when you saw this?

WATERS: I assumed he had a weapon in his hand is what I assumed.

STATE: Okay. So did the fact that it was wrapped in a towel as opposed to being out like this, did that change your fear factor?

WATERS: No, uh uh (indicating negative).

STATE: So you were just as afraid —

WATERS: Well, I knew he had a weapon that's what, that's what—

STATE: That meant weapon to you, did it not?

WATERS: Yes, sir.

(emphasis added).

¶ 10. On recross examination, Waters further stated:

DEFENSE: Okay. He comes in the door with this towel wrapped around his hand and—

WATERS: No, he, he had the towel— his hand —

DEFENSE: Something, the towel was out of his hand and it appeared that he had something in the towel?

WATERS: Right.

DEFENSE: And you assumed it was a weapon?

WATERS: Yes, sir.

DEFENSE: But you couldn't tell what it was?

WATERS: No, sir.

DEFENSE: And the first time you actually saw what it was, he was running—

WATERS: Right.

DEFENSE: — not walking, but running out the door?

WATERS: Right.

DEFENSE: Then he threw it?

WATERS: Yes, sir.

(emphasis added).

¶ 11. The Court of Appeals relied upon Gibby v. State, 744 So.2d 244 (Miss.1999), for authority to reverse and render the conviction against Dambrell. The problem with the case insofar as the Court of Appeals determined was that the State failed to prove all elements of the crime. Specifically, a victim has to have definite knowledge that a deadly weapon actually exists and not just an assumption that a deadly weapon exists in order to uphold a conviction. Id. at 245.

¶ 12. Here, the Court of Appeals ruled that the State had the duty to prove that Dambrell exhibited a deadly weapon and Waters was placed in fear of immediate injury to his person as a result of the exhibition of the deadly weapon. Therefore, Waters's fear had to be a result of his awareness of the existence of the deadly weapon. However, the Court of Appeals ruled that the State failed to establish that a weapon was exhibited and consequently the State failed to establish that Waters was in fear of immediate injury to his person.

¶ 13. The State argues that this case involves an attempted armed robbery, not armed robbery. Since the crime was attempted armed robbery the words "attempt to" precede the other elements of robbery and any element that placed Waters in fear by the exhibition of a deadly weapon. In other words the indictment stated that Dambrell attempted to commit the crime, including attempting to exhibit a deadly weapon....