McFadden v. State

• Decision Date: 16 December 1981
• Docket Number: No. 52909,52909
• Citation: 408 So.2d 476
• Parties: Alan McFADDEN, Delores Edwards and Carnell Young v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 476

408 So.2d 476

Alan McFADDEN, Delores Edwards and Carnell Young v. STATE of Mississippi.

No. 52909.

Supreme Court of Mississippi.

Dec. 16, 1981.

As Modified on Denial of Rehearing Jan. 20, 1982.

J. Kennedy Turner, Philadelphia, for appellants.

Bill Allain, Atty. Gen. by Karen Gilfoy, Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, P. J., and BROOM and HAWKINS, JJ.

ROBERTSON, Presiding Justice, for the Court:

Alan McFadden, Delores Edwards and Carnell Young were jointly indicted in the Circuit Court of Neshoba County for the crime of armed robbery of City Jewelry, Inc., on July 8, 1980.

In the indictment they were charged with willfully, unlawfully and feloniously taking men's and ladies' diamond rings, diamond wedding sets, and diamond clusters valued at $49,000, the property of City Jewelry, Inc., by putting Mrs. Waudine Whittle (an employee of City Jewelry, Inc.) "in fear of immediate injury to her person by the exhibition of a deadly weapon, namely, a pistol."

After hearing and disposing of a number of motions filed by and presented by defense counsel on behalf of defendants, a full trial was held and the following verdict rendered:

"We, the Jury, find the Defendants Alan McFadden, Delores Edwards and Carnell Young, guilty as charged and fix their punishment at imprisonment in the penitentiary for life."

The court accepted the verdict of the jury and imposed on each defendant a sentence of life imprisonment in the Mississippi State Penitentiary.

Defendants assign as error:

I. The right to a fair trial and due process of law was violated by the State of Mississippi through the action of the lower court by the refusal of the lower court to grant the appellant's motion for continuance to allow for reasonable time to prepare for trial.

II. The lower court erred in partially denying item 3, and then denying totally items 4, 5, and 8 of the appellants' motion for discovery and production.

III. The trial court erred in overruling the appellant, Carnell Young's motion for a severance.

IV. The lower court erred in overruling the appellant's motion to suppress in-court identification which was irreparably tainted by an unconstitutional and prejudicial pretrial confrontation and which was not shown to have a source independent of the pretrial identification.

V. The court erred in overruling the appellant, Carnell Young's motion for a directed verdict in that the state of Mississippi's case against said appellant failed to make out a prima facie case; or, alternatively, the court erred in refusing to grant a new trial because the verdict of the jury went against the evidence in the case.

VI. The trial court erred in overruling the appellant, Carnell Young's, motion for dismissal, or mistrial, on the ground that the jury was polled by the court improperly and without authority of law.

VII. The indictment is insufficient as a matter of law in that it fails to set forth all of the elements of the offense charged; specifically, the indictment fails to charge an intent to steal.

I.

The joint indictment was returned on September 16. On that day the court, noting the poverty of the defendants, appointed the public defender, J. Kennedy Turner, to represent defendants.

On September 18, defense counsel filed a "Motion to Suppress Identification Testimony," a detailed 3-page "Motion for Discovery and Production," and a "Motion to Quash." On September 19, defense counsel filed these additional motions: "Motion for Severance as to Carnell Young," a "Motion for Continuance", and a "Motion for Special Venire."

In the Motion for Continuance, defense counsel stated, among other things, that the case was set for trial on Monday, September 22, 1980, that each defendant intends to offer "separate and distinct alibis for the time in question", that counsel, as public defender, was busy on other cases, and asked for a continuance to the next term of court.

Mississippi Code Annotated section 11-7-123 (1972) provides:

"On all applications for a continuance the party shall set forth in his affidavit the facts which he expects to prove by his absent witness or documents that the court may judge of the materiality of such facts, the name and residence of the absent witness, that he has used due diligence to procure the absent documents, or presence of the absent witness, as the case may be, stating in what such diligence consists, and that the continuance is not sought for delay only, but that justice may be done. The court may grant or deny a continuance, in its discretion, and may of its own motion cross-examine the party making the affidavit. The attorneys for the other side may also cross-examine and may introduce evidence by affidavit or otherwise for the purpose of showing to the court that a continuance should be denied. No application for a continuance shall be considered in the absence of the party making the affidavit, unless his absence be accounted for to the satisfaction of the court. A denial of the continuance shall not be ground for reversal unless the supreme court shall be satisfied that injustice resulted therefrom." (Emphasis added).

The motion for continuance did not comply with the mandatory statutory requirements in that the affidavit for continuance failed to comply with statutory requirements.

In Barnes v. State, 249 So.2d 383 (Miss.1971), this Court noted the difference between a motion for continuance based on the lack of reasonable time for an attorney to prepare for trial and an application for continuance based on the ground of absent witnesses.

"The application for continuance upon the ground that the attorney for the defendant has not had a reasonable time to prepare for trial is different from an application for continuance on the ground that there is an absent witness. When a witness is absent the movant must continue his effort to obtain the witness after having filed the motion required by Section 1520 Mississippi Code 1942 Annotated (1956). See: King v. State, 251 Miss. 161, 168 So.2d 637 (1964). On the other hand, a motion for continuance upon the ground that an attorney has not had sufficient time to prepare for trial is subject to proof and also as to facts as they may appear from that which is known to the trial court." (249 So.2d at 384).

No proof whatsoever was offered as to the workload of the public defender. The trial court, of course, was personally cognizant of the public defender's workload, that the September term was only 12 days long, and that the next term would not be until February, 1981.

Applying the rule stated in Jackson v. State, 254 So.2d 876 (Miss.1971), we cannot say the trial judge abused his discretion in refusing a continuance in this case.

The Motion to Suppress Identification Testimony was called for hearing at 8:30 a.m., Tuesday, September 23, 1980. In this motion, the defendants contended that they were not represented by counsel at the pretrial confrontation (line-up on September 11, 1980), and that the line-up was unnecessarily suggestive and conducive to irreparable mistaken identification.

The defendants had been placed in jail at Ackerman in Choctaw County on a bank robbery charge. According to the testimony of the four police officers who transported them from Ackerman to Philadelphia for the line-ups, after their Miranda rights had been read and explained to them, they consented to come to Philadelphia for the line-ups.

The court, after hearing the testimony of all three defendants, three other witnesses and the four police officers, overruled the motion to suppress.

The motions for continuance, severance as to Carnell Young, and a special venire, were also heard on September 23. The motion for special venire was sustained by order dated September 23, 1980, and the case set for trial on Friday, September 26.

The order also provided:

"(T)hat the Sheriff of this County shall serve on the attorney for the Defendants, not later than 8:00 a.m., Thursday, September 25, 1980, a certified copy of the venire facias showing the service on each of the persons whose names are so drawn, ..."

The six motions filed by defense counsel were vigorously and ably presented by defense counsel and carefully considered by the court and, after disposition of these motions, a full trial was held on September 26, 10 days after indictment, and 10 days after appointment of counsel, and three days after the presentation, argument and decision on the six pre-trial motions.

On September 26, the date set for trial, defense counsel announced "ready". The two-volume record reflects that appointed counsel (the Public Defender) ably, skillfully, and vigorously defended defendants. This Court is satisfied that the defendants were ably, intelligently, skillfully and vigorously represented by their appointed counsel (the public defender and an experienced criminal lawyer) at the trial, and that no injustice resulted from the denial of the motion for continuance.

II.

The court, after carefully hearing and considering the motion for discovery and production, granted discovery of all witnesses and documents that it was required by statute and by Rule 4:06, Uniform Criminal Rules of Circuit Court Practice, to grant. See Scott v. State, 359 So.2d 1355 (Miss.1978).

The court was correct in partially denying item 3, and in totally denying items 4, 5 and 8 of defendants' motion for discovery and production.

III, V, AND VI.

These assignments of error have to do with Carnell Young only, III being with reference to the court's overruling Young's motion for severance, V having to do with the court's overruling a motion for a new trial because the verdict of the jury was against the weight of the evidence, and VI having to do with the court's overruling of Young's motion for a dismissal or mistrial because the court sua sponte polled the jury to determine whether the first verdict finding Carnell Young not guilty was the verdict of each juror.

In view of...