Russell v. State

• Decision Date: 09 February 2012
• Docket Number: No. 2009–KA–01628–COA.,2009–KA–01628–COA.
• Citation: 79 So.3d 529
• Parties: Cedric D. RUSSELL, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

79 So.3d 529

Cedric D. RUSSELL, Appellant

v.STATE of Mississippi, Appellee.

No. 2009–KA–01628–COA.

Court of Appeals of Mississippi.

Aug. 16, 2011.Rehearing Denied Nov. 8, 2011.Certiorari Denied Feb. 9, 2012.

Donald W. Boykin, Jackson, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before GRIFFIS, P.J., MYERS and CARLTON, JJ.

CARLTON, J., for the Court:

¶ 1. Cedric Russell appeals his conviction in the Hinds County Circuit Court of one count of aggravated assault and one count of possession of a firearm by a convicted felon and his sentence, as a habitual offender, to two terms of life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole or probation. On appeal, Russell asserts the following issues as assignments of error: (1) the indictment should have been dismissed for failure to provide a speedy trial; (2) the amended motion to amend the indictment to allege sentence enhancement as a habitual offender should not have been granted due to prosecutorial vindictiveness; (3) the State committed a discovery violation; therefore, Russell should not have been sentenced as a habitual offender; (4) the evidence was insufficient to sentence Russell as a habitual offender; (5) Russell was improperly sentenced as a habitual offender; (6) Russell was denied a fair and impartial trial; and (7) the circuit court erred in denying Russell's Batson objection regarding the State's use of peremptory challenges. Finding no error, we affirm the circuit court's judgment.

FACTS

¶ 2. On December 19, 2006, Michael Porter arrived at his girlfriend's house at approximately 5:00 or 6:00 p.m. Porter's girlfriend, Lawanda Hawkins, her sister, their mother, children, and Russell were all present in the home.

¶ 3. At trial, Porter stated that he left the house to get a bottle of gin from his car, which was parked in the driveway. Porter testified that Russell followed him outside. Porter opened his car, leaned over the front seat, and reached over to get the gin from the back floorboard. While he was in the car, Porter was shot twice in the leg. Porter crawled out of the vehicle, stood up, and walked back into the house. Officers from the Jackson Police Department arrived on the scene, and Porter was taken to University of Mississippi Medical Center. Police officers found 9mm shell casings in the front of the house.

¶ 4. On December 21, 2006, police officers arrested Russell, and he was subsequently indicted on August 16, 2007, for aggravated assault and for possession of a firearm as a convicted felon. On March 10, 2008, the Hinds County District Attorney's Office filed its motion to amend the indictment to sentence Russell as a habitual offender under Mississippi Code Annotated section 99–19–83 (Rev.2007), stating that Russell had two prior felony convictions, including a crime of violence.

¶ 5. At trial, Porter testified that he told police everything that occurred prior to the shooting, but he admitted that he failed to inform the police that he had a 9mm pistol in his car when he was shot. Vicki Hawkins, Lawanda's sister, testified that Porter always carried a gun in his car. She stated that she observed both Porter and Russell go outside, but she testified that when she went outside later, she did not see Russell. Vicki and Lawanda both testified that they did not see who had fired the shots.

¶ 6. Porter testified that he noticed that Russell had a pistol in his pocket while they were inside Hawkins's home, but he did not say anything about it to Russell. However, Porter admitted at trial that he never told the police that he had seen a pistol in Russell's pocket. Porter also testified that he did not see Russell shoot the pistol.

¶ 7. Russell testified that prior to the shooting, he went on the front porch of the house to call a friend to pick him up. He stated that someone came by the house while he was outside and asked if Porter was inside the house. Russell testified that one of his friends arrived and picked him up before any shots were fired. Russell denied shooting Porter.

¶ 8. After a trial held on January 27–30, 2009, Russell was found guilty of one count of aggravated assault and one count of possession of a firearm by a convicted felon. Prior to sentencing, the State submitted its amended motion to amend the indictment to sentence Russell as an habitual offender, seeking to add two additional felony convictions for consideration in support of sentencing Russell under section 99–19–83. The addition of the two convictions resulted in four prior convictions in support of habitual offender sentencing. The motion was stamped “filed,” but the circuit clerk did not sign the motion, nor does it appear on the circuit court docket. On January 30, 2010, the circuit court sentenced Russell to life in the custody of the MDOC without parole or probation, with the two counts to be served concurrently.

¶ 9. Russell filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. The circuit court denied both of these post-trial motions. Russell now appeals.

DISCUSSION

I. Speedy Trial

¶ 10. On the day of trial, during the hearing on pretrial motions, the defense presented its motion to set aside the order denying the pro se motion to dismiss for lack of a speedy trial. The prosecution, in responding to this motion, sufficiently showed that Russell had suffered no statutory or constitutional violation:

... I think the facts are clear, your Honor, that the defendant was arrested December 26, 2006. He was indicted August 26, 2007, arraigned November 9, 2007. And his case was set for trial March 24, 2008.

All of these offenses of which indictments are presented to this Court were supposed to be tried within 270 days according to the [sic] 99–17–1 of the Mississippi Code. And his trial was certainly set within that time.

And your Honor, the reason that case was delayed was because the defendant asked for it. I mean, any delay that we have after that goes against the defendant. And I mean, I understand that [Russell's attorney] Mr. Boykin needed to get him evaluated. That's not the issue. I understand why he did what he did. But certainly the delay is on the defense because he wanted a mental evaluation. And he got one.

And as soon as he got one, at least within the next term, if not the second term of court, he's set for trial and we're ready to go today. There is no issue there. And number two is, Judge, what prejudice is he served—I mean, has come to him. You know, there is no prejudice whatsoever. He has no witnesses that aren't available anymore. There's nothing that's missing.

I mean, regardless, we are within the timeframe as constitutionally and statutorily provided. And I would note, your Honor, that he asked for the speedy trial before he was even indicted.

So regardless, we're within the statutory and constitutional confines of the speedy trial. Secondly, he's shown absolutely no prejudice whatsoever as to the delay. And thirdly, I'd say any delay that's happened is mostly because of the defendant.

¶ 11. Upon hearing and considering the motion, the circuit court ruled that “the motion is not well taken and should be and hereby is denied. So that relates to both the statutory claim and the constitutional claim of the defendant,” and then the circuit court further ruled that it found no prejudice resulting from the delay.

¶ 12. On appeal, Russell nonetheless asserts that the delay in his trial date violates both his statutory right to a trial within 270 days of his arraignment under Mississippi Code Annotated section 99–17–1 (Rev.2007) and his constitutional right to a speedy trial under the Sixth and Fourteenth Amendments to the United States Constitution and Article 3, section 26 of the Mississippi Constitution. Russell argues that his indictment should have been dismissed for failure to provide him with a speedy trial. Russell claims that 571 days passed between his date of arrest and his trial. Russell attributes this delay to the State, claiming that the State gave no reason for this delay. Russell asserts that such a lengthy delay prejudiced him by causing him to lose contact with a critical witness named “Ron Ron,” who could not be located prior to the trial.

¶ 13. Our standard of review when addressing the claims of speedy-trial violations is as follows:

Review of a speedy[-]trial claim involves a question of fact: whether the trial delay arose from good cause. We will uphold the trial court's finding of good cause if that decision is supported by substantial, credible evidence. However, if no probative evidence supports the trial court's findings, we must reverse the decision and dismiss the charge. The State bears the burden of proving good cause for the speedy trial delay, and thus bears the risk of non-persuasion. Good cause is a factual finding which is not different from any other finding of fact, and thus[,] an appellate court should not disturb the finding when it is based upon substantial evidence identified from the record.

Carr v. State, 966 So.2d 197, 200 (¶ 5) (Miss.Ct.App.2007) (internal citations omitted). We will affirm a trial court's findings where they are supported by substantial, credible evidence. McBride v. State, 61 So.3d 138, 147 (¶ 34) (Miss.2011).

¶ 14. Regarding Russell's statutory right to a speedy trial, section 99–17–1 states: “Unless good cause be shown, and a continuance duly granted by the court, all offenses for which indictments are presented to the court shall be tried no later than two hundred seventy (270) days after the accused has been arraigned.” Any delay as a result of action by the State that is not supported by good cause will cause that time to be counted against the State. Wiley v. State, 582 So.2d 1008, 1011 (Miss.1991). However, a delay caused by the actions of the defendant, such as a continuance, will toll the running...