Davis v. State

• Decision Date: 12 October 1999
• Docket Number: No. 97-KA-00669-COA.,97-KA-00669-COA.
• Citation: 750 So.2d 552
• Parties: Gary DAVIS, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

750 So.2d 552

Gary DAVIS, Appellant, v. STATE of Mississippi, Appellee.

No. 97-KA-00669-COA.

Court of Appeals of Mississippi.

October 12, 1999.

William B. Sullivan, Attorney for Appellant.

Office of the Attorney General by W. Glenn Watts, Attorney for Appellee.

EN BANC.

THOMAS, J., for the Court:

¶ 1. Gary Davis appeals his conviction of armed robbery and assault with a deadly weapon in the Jones County Circuit Court. Davis was sentenced to twenty years on each charge to run consecutively. Davis now appeals his convictions, raising the following issues as error:

I. WHETHER DAVIS'S RIGHT TO A SPEEDY TRIAL WAS VIOLATED.

II. WHETHER THE TRIAL COURT ERRED IN DISMISSING HIS MOTION TO DISMISS FOR SPEEDY TRIAL VIOLATIONS WHEN THE STATE FAILED TO MAKE AN AFFIRMATIVE RESPONSE.

III. WHETHER DAVIS WAS REQUIRED TO PROCEED WITHOUT SUFFICIENT NOTICE AND

AN OPPORTUNITY TO HAVE WITNESSES SUBPOENAED AND PRESENT.

IV. WHETHER THE TRIAL COURT IMPOSED A SENTENCE AMOUNTING TO CRUEL AND UNUSUAL PUNISHMENT.

V. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING DAVIS'S MOTION TO MERGE THE COUNTS OF THE INDICTMENT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Frank Smith, a painter, drove to the South Park Village area of Laurel on July 10, 1994. Having recently painted buildings there, he was familiar with the area. As he drove by Units 30 and 33, he heard someone yell, and he slowed down. Two black males approached, and one of the men tried to grab Smith's keys. Smith held onto the keys and got out of the car, and the second man pointed a gun at Smith and demanded Smith's wallet, which contained $125, and his watch. After the first man hit him on the head with a claw hammer, Smith jumped back into his car. As he started his car and attempted to leave, the second man shot him through his left thigh. Bleeding from his head and his leg, Smith drove a short distance, pulled over, and requested help from a bystander. An ambulance took Smith to the hospital. He later identified Davis from a photo array as the individual who stole his wallet and shot him.

PROCEDURAL HISTORY

¶ 4. On July 10, 1994, the Jones County grand jury indicted Davis, along with a codefendant, on charges of armed robbery and aggravated assault. The indictment was filed on September 14, 1994, and the circuit clerk issued a capias which listed the charges against Davis. The return indicates that a deputy sheriff executed the capias on March 17, 1996. The circuit judge rendered bench warrants on May 14, 1996, and August 12, 1996. Also on August 12, 1996, the judge rendered an "Order Placing Hold on Defendant, Gary Davis," directing the sheriff of Lauderdale County to notify the sheriff of Jones County as soon as the court in Lauderdale County disposed of pending charges so that the defendant could be returned for disposition of the charges in Jones County.

¶ 5. The circuit judge completed another bench warrant on January 13, 1997. The bench warrant return reflects that Davis was placed in the Jones County Jail on February 12, 1997. At his arraignment on February 25, 1997, Davis waived the reading of the indictment and pleaded not guilty to both charges. The court appointed the public defender to represent Davis and set the case for trial on March 26, 1997. On March 14, the public defender filed a motion for additional time for the purpose of filing motions and entering plea petitions. He submitted that he "had difficulty in obtaining an initial interview with the [d]efendant." During the pretrial status hearing on March 24, 1997, defense counsel asserted that Davis had not contacted him. He was then informed of Davis's incarceration. On the anticipated date for trial, defense counsel expressed hope that a plea agreement would be finalized and, alternatively, requested that he be allowed to "plead time" because Davis had been locked up for over a year.

¶ 6. After Davis refused the plea bargain offered by the district attorney, defense counsel detailed for the record that he was unaware that he had been appointed to represent Davis until March 11, and he did not request the file until March 24, 1997. For these reasons, he only learned of potential defense witnesses on March 27. He moved for dismissal of the case based on the fact that the indictment was dated two and a half years earlier. The court denied the motion and continued the case until April 14, 1997. During a pretrial status hearing on April 3, Davis's attorney stated, "That's for trial, your Honor." He did not indicate any necessity for additional time.

¶ 7. Immediately prior to trial, Davis moved for the court to require the State to strike one count of the indictment and to choose whether to proceed against him for either armed robbery or aggravated assault. He asserted that he should not be required to stand trial on more than one crime based upon only one set of facts. The court heard the basis for the indictment and denied the motion to strike.

TRIAL

¶ 8. At a side-bar conference, the defense noted that it had not announced ready and was not in a position to proceed without Sahenia Trotter, a defense witness who was subpoenaed but could not be served because she had moved to another state. The court instructed the defense to have the sheriff find any absent witnesses. Frank Smith testified first for the State. Smith stated that he was a self-employed painter and that he painted the South Park Village apartment buildings' exteriors several months prior to the incident on Sunday, July 10, 1994. On that day, Smith drove to Laurel in the early afternoon to find Mike, the maintenance man at South Park Village, because he needed a tall ladder in order to finish painting his brother's house. He had been unable to rent a bucket lift in Hattiesburg because they were being used for the construction of a new mall.

¶ 9. Smith explained that he drove around the South Park Village complex looking for Mike or Mike's truck. At the back of the complex, Smith made a U-turn to avoid an area where water covered the road. As he drove away from the water, Smith heard someone call him. Thinking that it might be Mike, Smith pulled over. He saw a black male coming toward his car, and a second black male reached into the driver's side window for the keys. Smith grabbed the keys and the man's hand, and then he noticed a pistol pointed at him.

¶ 10. Smith identified the man with the pistol as the defendant, Gary Davis. Davis told him to get out of the car and drop his wallet. According to Smith, Davis said, "you won't be needing it [the wallet] where you will be going." Sensing that Davis was about to shoot him, Smith jerked the keys away from the other man who grabbed a hammer from Smith's car and demanded the keys. Smith said that he took his driver's license and threw the wallet as he jumped toward his car. The man with the hammer struck Smith on the head, knocking him into his car. While his leg dangled from the car, Smith turned the ignition, and Davis shot Smith in his left leg. Smith drove away as fast as he could. He stopped by a park where he saw a man, and he told the man he had been shot. An ambulance arrived, and a Laurel policeman located the bullet at the scene.

¶ 11. Smith identified photographs of the apartment complex and indicated the location of the incident. He stated that he did not know Gary Davis by name at the time of the incident and that he identified Gary Davis after seeing his picture in the photo array that Officer Knight provided. He identified a photograph of the bullet wound to his leg. On cross-examination, Smith recalled his statement to police. He described the extension ladder and the maintenance man, and he sketched a map of the South Park Village area indicating the location of the office and maintenance building. He explained that his window was open because his 1976 Monte Carlo two-door had no air conditioning. The defense raised questions about Smith's attempt to get a ladder owned by the Housing Authority, and Smith explained that he could haul a ladder on his car roof and detailed his search for a ladder in Hattiesburg.

¶ 12. Officer Kevin Jackson, a patrolman with the Laurel Police Department, explained that a confidential informant told him that Gary Davis was a possible suspect in the case. The informant received nothing in exchange for the information and had previously provided credible information. Officer Jackson described the South Park Village area which had previously been called Johnson Circle, and he acknowledged the high incidence rate for narcotics sales in that area. He described the maintenance building, and he located, on Frank Smith's diagram, the Brown Circle office and the drainage ditch running between the Brown Circle and Johnson Circle projects.

¶ 13. Next, Officer Lee (Mackie) Knight, a former detective with the Laurel Police Department, testified. He responded to the call on July 10, 1994, interviewed the victim at the hospital emergency room, and proceeded to the Johnson Circle area where the shooting occurred. After obtaining information from Officer Jackson, Officer Knight prepared a photo line-up and presented it to Frank Smith at the hospital. From the first photo array, Smith identified Davis's co-indictee. Smith provided a statement to police on the evening of July 10 at the police station. After he located a photograph of Gary Davis, Officer Knight prepared a photo-line-up and took it to Smith's house on July 12. He explained the photo array and said that Smith identified Davis without hesitation. Officer Knight established venue and described Smith's injuries. On cross-examination, he acknowledged that Smith could not describe the maintenance man to officers. Thereafter, the State rested.

¶ 14. After the defendant moved for a directed verdict and the court denied the motion, Davis's counsel mentioned that one witness had not been found. The State objected to...