Hathorne v. State

• Decision Date: 21 October 1999
• Docket Number: No. 98-KA-00412-SCT.,98-KA-00412-SCT.
• Citation: 759 So.2d 1127
• Parties: Sylvester HATHORNE a/k/a Sylvester James Hathorne a/k/a Sylvester Hawthorne v. STATE of Mississippi.
• Court: Mississippi Supreme Court

759 So.2d 1127

Sylvester HATHORNE a/k/a Sylvester James Hathorne a/k/a Sylvester Hawthorne v. STATE of Mississippi.

No. 98-KA-00412-SCT.

Supreme Court of Mississippi.

October 21, 1999.

Rehearing Denied May 11, 2000.

Wayne Hynum, Hattiesburg, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE SULLIVAN, P.J., BANKS AND WALLER, JJ.

WALLER, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. On February 3, 1997, Appellant Sylvester Hawthorne ("Hawthorne"), Dorothy Hawthorne ("Dorothy"), Dinah Hawthorne ("Dinah"), Calvin Vaughn ("Vaughn"), and Lawrence McLaurin ("McLaurin"), were indicted and charged with the crime of the armed robbery of the First National Bank of Picayune in Pearl River County, Mississippi, in violation of Miss.Code Ann. § 97-3-79 (1972). All individuals except Hawthorne pled guilty. Hawthorne's case proceeded to trial on January 20, 1998, before the Circuit Court of Pearl River County, Mississippi, the Honorable R.I. Prichard, III, presiding.

¶ 2. The jury returned a verdict of guilty, and the court sentenced Hawthorne to serve a term of thirty years, with no eligibility for parole.

¶ 3. Aggrieved by the denial of his motions for a mistrial and directed verdict and the rejection of his jury instructions, Hawthorne appeals to this Court. We affirm the conviction imposed by the trial court.

STATEMENT OF THE FACTS

¶ 4. On or about September 30, 1996, the First National Bank of Picayune, Pearl River County, Mississippi, was robbed. Several employees of the bank testified that three armed persons entered the bank and collected money from the teller's windows and vault. None of the bank employees could identify the robbers, who were wearing masks and gloves, and the bank's surveillance camera was inoperative.

¶ 5. Walter Smith testified that on September 30, 1996, he was in the bank's parking lot when he noticed a white Dodge Neon with aluminum foil over the license plate. He then saw three people run out of the bank and get into the car. According to Smith, he followed the car to the nearby Winn-Dixie grocery store, stopping at a service station to tell an attendant to call the police. He saw three people get out of the white Neon, taking their masks off, and then observed two of the males jump into a brown Dodge van already occupied by the driver who was a black female. Smith testified that he did not know what happened to the third person he saw get out of the Neon. According to Smith, the attendant then called him over to talk to the police on the phone. When Smith returned to the Winn-Dixie parking lot, he noticed both vehicles leaving with the white Neon occupied by only the driver, a heavy set black female. Smith testified that he thought all of the individuals taking their masks off were men, but that he could not be certain since he was about one hundred yards away. Smith further testified that he saw a total of three males and two females in the scenario, none of whom he could positively identify.

¶ 6. Stephen Watkins testified that he and his wife were driving up to the bank's drive-thru window when they saw the robbery in progress. They then drove around to the front of the bank and observed the three involved in the robbery get in a white Neon driven off by a black female. Watkins and his wife, who had called a police dispatcher from their car, followed the Neon into the nearby Winn-Dixie parking lot, where they then observed three people getting out of the Neon, two of whom were taking off their masks. The third person did not take off the mask, and Watkins was not sure if that person was a male or female. Watkins then saw the two un-masked males get into a brown van parked in the Winn-Dixie parking lot. Although Watkins had stated in the 911 call that he saw all three individuals get out of the white Neon into the brown van, he now recalled only two people getting in the van. According to Watkins, he and his wife followed the brown van until it was stopped by the police.

¶ 7. Patrol Officer Shelton Farmer testified that he stopped the white Neon and that Dorothy Hawthorne, a black female, was the only person in the car. Dorothy was placed under arrest and later identified as Hawthorne's mother. According to Farmer, he searched the car and found rental papers showing Dorothy had rented the car.

¶ 8. Ginger McElwain, an employee of Enterprise Rent-A-Car Agency, testified that on September 28, 1996, two days before the robbery, she rented a white Neon to Dorothy and Hawthorne. At trial, McElwain explained that she had verified Hawthorne's identity by looking at the driver's license information he presented.

¶ 9. Officer Ismael Quiroz testified that he stopped the brown van and arrested three people who were in the van: Dinah, Hawthorne's sister; McLaurin, Hawthorne's roommate; and Vaughn, Hawthorne's cousin. Quiroz further testified that he did not see Hawthorne anywhere in the area of the arrests that day.

¶ 10. Officer Larry Cagle testified that he searched the brown van. According to Cagle, he recovered two black and red masks, two black pants, two weapons (a 12-gauge shotgun and a semiautomatic handgun), shirts, ammunition, and $2,095.00 in cash. No fingerprints from the weapons were recoverable.

¶ 11. Alan Hornky, a gun dealer in Pearl River County, testified that he sold Hawthorne a 12-gauge shotgun on September 27, 1996, approximately one month before the armed robbery. Hornky identified the shotgun taken by police from the van as the weapon he sold to Hawthorne.

¶ 12. Dinah testified that when police had pulled her over on September 30, 1996, Vaughn and McLaurin were also in the van. She explained that they had jumped in the van at the Winn-Dixie parking lot. She further testified that earlier on the morning of the robbery, she had gone with Hawthorne and Dorothy when they rented the white Neon.

¶ 13. On direct examination, Dinah admitted that, in a previous hearing, she had testified that on the morning of the robbery Vaughn, McLaurin and Hawthorne told her to come with them to pick up the white Neon at her grandmother's house. Dinah further testified that when she was at the Winn-Dixie parking lot, she saw Hawthorne standing beside the Neon vehicle and that after she pulled out of that parking lot with Vaughn and McLaurin, she did not see Hawthorne again. She had seen her mother's blue van in the Winn-Dixie parking lot that day, and it was parked next to the white Neon and brown van. She also stated that she had gone to the bank earlier on the day of the robbery in response to "the guys" telling her to go up to the bank and look around.

¶ 14. On cross-examination, Dinah stated that she did not think her brother helped rob the bank. She was further cross-examined about two inconsistent statements she had given to the police. In the first statement she did not implicate Hawthorne, and in the second she did.

¶ 15. On direct examination, McLaurin claimed that he, Vaughn and Hawthorne told Dinah to take them to Henleyfield to pick up a white rental car on the morning of the robbery. Later that day, according to McLaurin, he, Hawthorne and Vaughn entered into the bank with red and black masks on and robbed it. McLaurin stated that he had a pistol; Hawthorne had a pistol; and Vaughn had a shotgun. Contrary to other witnesses' accounts, McLaurin testified that they left the bank in a white Neon driven by Hawthorne and met Dinah and Dorothy in the Winn-Dixie parking lot. He further testified that Dorothy was waiting in a blue and white van, Dinah was waiting in a brown van, and he and Vaughn jumped in the brown van with Dinah. Hawthorne did not get in the brown van with him and Calvin and that he did not see where Hawthorne went after they left the Winn-Dixie parking lot. McLaurin further testified that Hawthorne had supplied the masks and guns used in the robbery.

¶ 16. On cross-examination, McLaurin admitted giving the police three different versions as to how the armed robbery occurred. In the first version, he did not implicate Hawthorne, but in the second and third statements he did.

¶ 17. He further testified on cross-examination that he had already pled guilty to an armed robbery in Lamar County, but had not yet been sentenced. He admitted that he was afraid that if he did not testify in accordance with what the State wished, his sentence in Lamar County might be affected. ¶ 18. Ricky Frierson, a detective with the Picayune City Police Department, testified that he was unable to find any fingerprints in this case, and that a blue and white Dodge conversion van, registered to Hawthorne's father, may have also been involved in the armed robbery. Frierson further testified that on September 30, 1997, a warrant was issued for Hawthorne's arrest and his picture was placed in the newspaper and on television as wanted for armed robbery. According to Frierson, Hawthorne turned himself in to the police on February 24, 1997.

¶ 19. After the State rested and Hawthorne's motion for a directed verdict was denied, Hawthorne testified. He denied having any part in the robbery and testified that he was in Baton Rouge, Louisiana, from the day of the robbery until February 24, 1997. He admitted that he rented the white Neon, but denied having any knowledge of its being used in the bank robbery.

STATEMENT OF THE LAW

I. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR NEW TRIAL ON THE FOLLOWING GROUNDS:

A. THE COURT ERRED IN NOT GRANTING THE DEFENDANT'S MOTION FOR MISTRIAL.

¶ 20. Hawthorne claims that he should have been granted a mistrial after Dinah, a co-indictee, informed the jury that she had entered a guilty plea in the same offense.

¶ 21. At the request of defense counsel, the trial judge instructed the prosecuting attorney to tell his witnesses not to mention that some of the co-defendants had already pled guilty to the crime for which Hawthorne was now on trial.

¶ 22. On re-direct...