Ford v. State, 98-KA-00182-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 98-KA-00182-COA.,98-KA-00182-COA.
• Citation: 753 So.2d 489
• Parties: Tyderius FORD, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

753 So.2d 489

Tyderius FORD, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00182-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Martin A. Kilpatrick, Greenville, Attorney for Appellant.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. After an initial mistrial on this matter, Appellant Tyderius Ford was retried and convicted in the Washington County Circuit Court on a three-count indictment on charges including Count I, conspiracy to commit robbery; Count II, armed robbery; and Count III, possession of a weapon by a convicted felon.

¶ 2. Ford was sentenced to five years in prison on Count I of conspiracy to commit robbery, forty years in prison on Count II for armed robbery, and three years in prison on Count III of possession of a firearm by a convicted felon. The sentences were to run consecutively with time Ford was already serving on a suspended sentence for the September 14, 1993, felony of burglary of a dwelling house. Feeling aggrieved, Ford filed this appeal.

FACTS

¶ 3. On February 3, 1996, Tyderius Ford and Robert McCollough were arrested in connection with an armed robbery at Hollandale Liquor Store in Hollandale, Mississippi. On February 16, 1996, Ford escaped from the Hollandale jail and fled to Illinois where he remained for approximately one year before returning to Mississippi to turn himself in to the authorities.

¶ 4. Due in great part to the testimony of co-defendant McCollough, Ford was subsequently charged and convicted on a three-count indictment alleging armed robbery, conspiracy to commit robbery and possession of a weapon by a convicted felon.

¶ 5. Also relevant to this case with regard to sentencing is the fact that in 1993, Ford pleaded guilty to burglary of a dwelling house in Sharkey County, Mississippi, and was sentenced to seven years in jail, that sentence being suspended.

ARGUMENT AND DISCUSSION OF THE LAW

STANDARD OF REVIEW

¶ 6. Ford raises one issue in this appeal: whether Ford is entitled to a new trial because the verdict was against the weight of the evidence.

¶ 7. Our standard of reviewing issues concerning weight of the evidence is described in Lee v. State, 733 So.2d 336 (Miss.Ct.App.1999). "The decision of whether or not to grant a motion for a new trial rests in the sound discretion of the trial judge and should only be granted when the judge is certain that the verdict is so contrary to the overwhelming weight of the evidence that failure to grant the motion would result in an unconscionable injustice." Id. at 342.

¶ 8. "In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an unconscionable injustice." Danner v. State, 748 So.2d 844 (¶ 7) (Miss.Ct.App. 1999).

¶ 9. In the present case, it does not appear the evidence was such that allowing a conviction to stand on this evidence would result in an unconscionable injustice. Thus, we find no error and uphold the trial court's decision not to grant a new trial.

ANALYSIS OF THE ISSUE PRESENTED

I. WHETHER OR NOT THE VERDICT WAS AGAINST THE OVER-WHELMING WEIGHT OF THE EVIDENCE.

¶ 10. In support of his allegation that the verdict was against the overwhelming weight of the evidence, Ford argues he is entitled to a new trial because (a) Robert McCollough, the co-defendant, accepted a plea bargain in exchange for his testimony against Ford; (b) the State relied on "shoddy police work and vague circumstantial evidence"; and (c) the verdict is against the great weight of the evidence as to warrant another jury trial. We will address each of these factors with regard to applicable law.

¶ 11. First, Ford argues the State's case was based primarily on the testimony of Robert McCollough, who testified pursuant to a plea bargain agreement. Further, Ford argues McCollough's testimony is uncorroborated and McCollough had motives to implicate Ford.

¶ 12. In support, Ford argues the case of Mister v. State, 190 So.2d 869 (Miss.1966) is controlling in this situation. In Mister, the facts are somewhat similar to the present case; however, there exists one major difference. In Mister, the case was based solely on the testimony of an accomplice, and in the present case, contrary to Ford's contentions, such is not the case. McCollough's testimony is not the sole convicting issue; police evidence and testimony from other persons is also convincing as to Ford's guilt.

¶ 13. Ford also cites to Cole v. State, 217 Miss. 779, 785, 65 So.2d 262, 264 (1953), which...