Ross v. State, 89-KA-0947

• Decision Date: 17 June 1992
• Docket Number: No. 89-KA-0947,89-KA-0947
• Citation: 603 So.2d 857
• Parties: Sammy Joe ROSS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 857

603 So.2d 857

Sammy Joe ROSS v. STATE of Mississippi.

No. 89-KA-0947.

Supreme Court of Mississippi.

June 17, 1992.

Rehearing Denied July 22, 1992.

Joseph C. Langston, Langston Langston Michael & Bowen, Booneville, for appellant.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and SULLIVAN, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

This burglary case arose on the appeal of Sammy Joe Ross from the judgment of the Circuit Court of Tippah County resulting in a 15-year sentence, as an habitual offender under Miss.Code Ann. Sec. 99-19-81 (Supp.1988), which raises the following nine issues:

A. Whether the trial court erred in not quashing the indictment.

B. Whether the trial court erred in overruling the appellant's motion to dismiss based upon violation of the Mississippi 270-day rule, and upon violation of the appellant's constitutional right to a speedy trial.

C. Whether the trial court erred in allowing the state to call witnesses in Cause No. 5634 when no discovery was tendered to the appellant on that cause number.

D. Whether the trial court erred in allowing the in-court identification of the appellant after an illegal out-of-court lineup.

E. Whether the trial court erred in allowing photographic evidence of the appellant taken five months after the alleged crime was perpetrated.

F. Whether the trial court erred by allowing the prosecutor to comment in closing argument on the appellant's failure to call other witnesses whom either side could have called.

G. Whether the trial court erred in not granting a directed verdict at the end of the state's case and the renewal of the said motion at the end of the trial upon the issue of burglary as in the elements thereof having not been met by the proof given.

H. Whether the trial court erred in refusing to grant instruction D-4 on the lesser-included offense of simple assault.

None of the above issues warrant reversal of Ross's conviction. This Court affirms the appellant's conviction and sentence.

A. Facts

Johnson ¹, a high-school student, lived with her grandfather on a dead-end, dirt road in Tippah County. On May 26, 1987, as Johnson talked with an acquaintance at the door, she saw a white pick-up truck drive by towards the end of the road. She watched the truck drive down the road. The acquaintance left, and Johnson started a load of laundry and prepared to mop. Five minutes later, at about 3:15 in the afternoon, Ross knocked on her door. Johnson answered, opening the wooden door and pushing the screen door partially open. Ross stood on the porch about two feet from Johnson, claiming to need directions to the house of a family who might help him find his lost dogs.

Johnson told Ross that she did not know the family, at which point he grabbed her upper arm and, displaying a gun, forced her into the living room near the sofa. Some light came through the closed window curtains and the front door remained open. Johnson had turned the kitchen and bathroom lights on, and could plainly see. She stated, "I can't forget his face."

Ross ordered Johnson to remove her shorts and top. She repeatedly pleaded with him, "Don't do this." Ross aimed his gun at Johnson's chest as she undressed. Johnson "was just scared," thinking that Ross would rape and kill her. She agreed, on cross-examination, that she cried and felt "scared to death." Johnson told Ross that her grandfather would be home. Ross again grabbed her arm, forced her to sit down, threatened to shoot her if she stood, and backed toward the door.

After Ross turned at the door and fled to his truck, Johnson, naked, crawled to the window. She could see his new, white, Ford pick-up truck but could not identify the tag number. She could, however, describe Ross in detail.

B. Procedural History

On October 31, 1988, a Tippah County grand jury indicted Sammy Joe Ross for burglary of an inhabited dwelling, pursuant to section 97-17-21 of the Mississippi Code, and as a habitual offender, pursuant to section 99-19-81 of the Mississippi Code. The indictment cited, as previous convictions, a life sentence for rape in Tippah County cause number 5568, a 10-year sentence for attempted rape in Prentiss County cause number 9609, and a 10-year sentence for attempted rape in Union County cause number 6202, all handed down between June and October of 1988. ²

II. ANALYSIS

A. Whether the trial court erred in not quashing the indictment.

On October 31, 1988, the Tippah County grand jury indicted Ross for burglary of an inhabited dwelling, presenting in the true-bill:

That Sammy Joe Ross ... did ... unlawfully, willfully, feloniously and burglariously break and enter the dwelling house of ... Johnson ... in which there was at the time a human being, namely ... Johnson, when he, the said Sammy Joe Ross, had there and then, the intent to commit some crime therein once inside, to-wit to make an assault upon the said ... Johnson and to rape, ravish and carnally know ... Johnson, against her will, in violation of the provisions of Section 97-17-21 of the Mississippi Code of 1972....

Ross did not move in writing to quash the indictment, but did so move ore tenus before trial began. In his motion to quash, Ross claimed that the state had handled the scheduling of Ross's trials in an improper manner. The court denied the motion. In his motion for new trial, Ross merely alleged: "The Court erred in refusing to quash the indictment for good cause shown." In this appeal, Ross raises entirely new challenges to his indictment.

Under Mississippi law, if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for new trial. Miss.Code Ann. Sec. 9-13-31; Jackson v. State, 423 So.2d 129, 131-32 (Miss.1982) (citing Colson v. Sims, 220 So.2d 345, 346 n. 1 (Miss.1969)); see also Griffin v. State, 495 So.2d 1352, 1353 (Miss.1986). The rationale for this rule is based on the policy of giving the trial judge, prior to appellate review, the opportunity to consider the alleged error. Cooper v. Lawson, 264 So.2d 890, 891 (Miss.1972); see also Howard v. State, 507 So.2d 58, 63 (Miss.1987).

In this case, while Ross made an ore tenus pretrial motion to quash, he alleged none of the grounds presented here for review. In his motion for new trial, he alleged none of the grounds presented here for review. The trial court, therefore, has never had the opportunity to pass on its alleged errors. As a consequence, this issue has not been preserved for appeal and warrants no consideration by this Court.

B. Whether the trial court erred in overruling the

appellant's motion to dismiss based upon violation of the

Mississippi 270-day rule, and upon violation of the

appellant's constitutional right to a speedy trial.

Ross asserts in his brief that the Tippah County grand jury previously presented him with a different indictment for the same crime. Ross alleges that, when this previous indictment figures into a speedy trial calculation, the state has violated his right to a speedy trial and has re-indicted in order to preserve a cause on which the clock had already run. In his brief, Ross states:

[A]t the time the new indictment was sought by the prosecution, ... the 270 days had run since the request of the defendant for a speedy trial. The prosecution sought, by way of a new indictment, to circumvent, the prohibition from bringing Ross to trial under Cause No. 5567.... The prosecution should not be able to do indirectly what they were prohibited to do directly, i.e. trying the defendant on this charge after the expiration of the time in which a defendant must be brought to trial.

The record in this case reveals that, before trial, Ross moved to dismiss for failure to timely prosecute. Ross argued that the same crime as the one at hand led to a charge of attempted rape in Tippah County cause number 5567. Ross's attorney alleged that the prior indictment remained on the docket. The court denied the motion to dismiss.

The rule of law requires that, through the record, the appellant must establish any facts underlying a claim of error. This Court cannot review an allegation of error without having before it a reviewable record; nor can this Court cannot rely on assertions of fact in an appellant's brief. Collins v. State, 594 So.2d 29 (Miss.1992); Mason v. State, 440 So.2d 318, 319 (Miss.1983); Branch v. State, 347 So.2d 957, 958-59 (Miss.1977).

Under the law of this state, Ross has utterly failed to present this court with a record for review on this issue. The record provides no certified documents revealing whether the alleged previous indictment arose from the same crime. More importantly, the record provides no certified documents detailing the circumstances of continuances prior to the instant indictment. Ross attempts to support his speedy trial claim by attaching to his brief an uncertified copy of a docket sheet from a previous indictment. This Court cannot accept "evidence" asserted in or attached to a brief. Ross has provided the Court with nothing to review on this issue.

C. Whether the trial court erred in allowing the state to

call witnesses in Cause No. 5634 when no discovery

was tendered to the appellant on that

cause number.

Ross alleges that the state committed a discovery violation when it provided him with discovery catalogued under the cause number for a different indictment arising out of the same occurrence. Ross frames the error as "whether or not the prosecution has the duty to inform the attorney for the Defendant not only the information given but which case it applies to."

On the record, defense counsel explained Ross's objection to the court. Counsel described how the same set of events led to two indictments, one numbered 5567 and the other, the instant case, numbered 5634. Counsel asserted that, when it requested...