McGilvery v. State, 55777
| Decision Date | 26 March 1986 |
| Docket Number | No. 55777,55777 |
| Citation | 497 So.2d 67 |
| Parties | Sherman McGILVERY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Thomas E. Schwartz, Dan R. Wise, Wise & Schwartz, Hattiesburg, for appellant.
Edwin Lloyd Pittman, Atty. Gen. by DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
EN BANC.
Sherman McGilvery appeals his conviction in the circuit court of Forrest County for the crime of armed robbery and sentence to serve 45 years. We affirm his conviction, but remand the case to the circuit court for another review of an appropriate sentence.
We will discuss the assignments of error in the course of the opinion.
The grand jury of Forrest County indicted McGilvery and Fitzgerald Tanner for the armed robbery of Agnes Lawrence on May 10, 1983, and the taking from her of $220 belonging to Greentree Enterprises, a convenience store corporation.
Lawrence worked the 11:00 p.m.-7:00 a.m. shift in Greentree Store No. 1 in Hattiesburg. She worked alone. Around 2:30 on the morning of May 10 two black males came into the store. They meandered in the store and aroused her suspicion. After they tarried for a long time, Lawrence saw one behind the counter at the cash register. She was grabbed by the other, and a revolver was placed in her back. Following threats she told them how to get all the money on hand. They then took her to the back of the store, told her to stay there, and fled. After a short interval, being cautiously satisfied they had gone, Lawrence telephoned the police. As a witness Lawrence was not called upon to identify either of the robbers. A subsequent audit revealed the robbers had taken approximately $220 in cash.
At trial Lawrence was able to identify the money bag the robbers had taken from a handwritten slip inside, which was in the handwriting of a fellow employee. Lawrence also identified a carton of cigarettes as containing the stamp of Greentree stores, and a bottle of Brut brand cologne as a type sold in her store, the cigarettes and cologne being shelved behind the counter.
Several police officers in squad cars immediately converged upon the area and began searching for the suspects, whom they believed had fled on foot. Two men were observed by officer Marty Cooper crossing a railroad track and road towards the Pineview Apartment complex, which he reported on the radio. Sergeant John Smith located Tanner in one of the apartments and called for assistance. Officer Harold Street responded, and Tanner was taken into custody. The Greentree money bag, subsequently identified by Lawrence, was also found in the apartment.
Captain Charles Sherill of the police department was en route to the apartment complex when he heard Cooper's statement that the two men were headed towards the complex. He and Sergeant Smith arrived simultaneously at the apartment, and Smith told him on the radio that it appeared one of the men was walking around J building.
Sherill walked around to the back of the building and found McGilvery lying on the ground. As Sherill approached McGilvery, McGilvery jumped up and started walking off rapidly. Sherill told McGilvery he was a robbery suspect, and got close enough to grab McGilvery by the shirt. McGilvery pulled out of the shirt and ran, but was caught after a chase, and arrested. Sherill returned to the spot where he first noticed McGilvery lying down and found the bottle of Brut cologne and carton of cigarettes which were identified in court by Lawrence.
The money bag, and the items of merchandise were offered in evidence as state's exhibits over McGilvery's objection.
Mark Cameron was employed on the 10:00 p.m.-7:00 a.m. shift in another business in Hattiesburg. On his break he went to Greentree No. 1 around 2:30 a.m. and observed two black males whose behavior aroused his suspicion. He thought they might be engaged in shoplifting. He remained in the store for several minutes and got a good look at McGilvery. He positively identified McGilvery at a police line-up the next day, and in court as being one of the black males in the store when he was there.
Neither McGilvery nor any other witness testified in his defense.
There is no merit to McGilvery's contention that the verdict was against the overwhelming weight of the evidence. An armed robbery was unquestionably committed. The fact that McGilvery was positively identified as being in the store shortly before the robbery at this early morning hour, that he was found lying on the ground behind the building into which the other robber fled, that he fled upon being discovered by Officer Sherill, that he refused to halt when informed he was a robbery suspect, that he resisted Officer Sherill's attempt to take him into custody, and that the merchandise of the kind sold in the store was found where he was lying down, all combined, clearly created a jury issue as to his guilt. McGilvery did not take the stand and offered no defense witnesses. As we stated in Rush v. State, 301 So.2d 297, 300 (Miss.1974):
While it is the right and privilege of a defendant to refrain from taking the witness stand, and no presumption is to be indulged against him for exercising that right, still the testimony of the witnesses against him may be given full effect by the jury, and the jury is likely to do so where it is undisputed and the defendant has refused to explain or deny the accusations against him.
See also: York v. State, 413 So.2d 1372, 1384 (Miss.1982); Reeves v. State, 159 Miss. 498, 132 So. 331 (1931).
McGilvery also claims it was prejudicial error to admit the...
To continue reading
Request your trial
-
Whittington v. State
...Blanks v. State, 451 So.2d 775, 779 (Miss.1984); Winters v. State, 449 So.2d 766, 771 (Miss.1984). Also, see: McGilvery v. State, 497 So.2d 67, 69 (Miss.1986); Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981) (Justice Powell, INSPECTION OF CAR At a pre-trial hearing i......
-
White v. State, 57448
...the natural inference, deducible from such facts, that he is the thief, by failure or refusal to testify." See also: McGilvery v. State, 497 So.2d 67, 68 (Miss.1986); rush v. State, 301 So.2d 297, 300 In U.S. v. Cotter, 425 F.2d 450, 452 (1st Cir.1970), the First Circuit Court of Appeals he......
-
Cowart v. State
...court found that forty-eight years was a proper and legal sentence. ¶ 54. Relying primarily on this Court's decision in McGilvery v. State, 497 So.2d 67 (Miss.1986), Cowart argues that there is a great disparity between his sentence and the sentence of his accomplice, Terrance London, and t......
-
Corbin v. State, 89-KA-1204
...the natural inference, deducible from such facts, that he is the thief, by failure or refusal to testify." See also: McGilvery v. State, 497 So.2d 67, 68 (Miss.1986); Rush v. State, 301 So.2d 297, 300 In U.S. v. Cotter, 425 F.2d 450, 452 (1st Cir.1970), the First Circuit Court of Appeals he......