Swinney v. State, 2016–KA–00469–SCT

• Decision Date: 11 January 2018
• Docket Number: NO. 2016–KA–00469–SCT,2016–KA–00469–SCT
• Citation: 241 So.3d 599
• Parties: Tony SWINNEY a/k/a Tony Deshaun Swinney v. STATE of Mississippi
• Court: Mississippi Supreme Court

241 So.3d 599

Tony SWINNEY a/k/a Tony Deshaun Swinney

v.STATE of Mississippi

NO. 2016–KA–00469–SCT

Supreme Court of Mississippi.

January 11, 2018

ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE

BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

COLEMAN, JUSTICE, FOR THE COURT

¶ 1. On April 2, 2015, Audrey Swinney drove her brother Tony Swinney and their cousin LaMarvin Swinney to rob Bullets, a convenience store in Flora, Mississippi. Tony and his cousin LaMarvin entered the store and robbed Pyare Lal, the seventy-three-year-old proprietor of the store.

¶ 2. On May 6, 2015, a grand jury indicted Tony for robbery with an enhancement for a crime committed against a victim of sixty-five years of age or older, and conspiracy to commit robbery. On October 27, 2015, a Madison County jury found Tony guilty on both counts. The trial court sentenced Tony as a habitual offender under Mississippi Code Section 99–19–83 (Rev. 2015), to life in prison without the possibility of parole or early release for each count, with the sentences to run concurrently.

ISSUES

¶ 3. Tony appeals, raising the following issues:

I. Whether the trial court erred in sentencing Tony to life imprisonment as a habitual offender.

II. Whether the trial court erred in failing to declare a mistrial where the State elicited testimony of Tony exercising his constitutional right to remain silent.

III. Whether the multiple instances of hearsay evidence attributing guilt to Tony denied him a fair trial.

IV. Whether testimony by a state witness of having been in prison with Tony was improper evidence of other bad acts.

V. Whether the jury was improperly instructed by instruction peremptorily directing that a robbery occurred and that a witness was an accomplice, thereby relieving the State of its burden of proof.

VI. Whether counsel for Tony was ineffective.

VII. Whether the multitude of error herein, if held individually to be harmless, constitutes cumulative error.

FACTS AND PROCEDURAL HISTORY

¶ 4. On the morning of April 2, 2015, Audrey picked up her cousin LaMarvin and her brother Tony. While in the car, the three made a plan to rob Bullets convenience store. They planned that LaMarvin would put an item on the counter so the cashier would open the register, tackle the cashier, and take the money from the register. Meanwhile, Tony would destroy the surveillance video footage. Audrey would serve as the getaway driver.

¶ 5. Audrey, Tony, and LaMarvin arrived at the store around 9:00 a.m. Tony and LaMarvin entered the store. Because too many people were outside, Tony and LaMarvin exited the store and returned to the vehicle. Audrey drove away and they waited across the street. About twenty minutes later, they returned to the store's parking lot and pulled up to one of the gas pumps. Tony and LaMarvin remained with the vehicle, and Audrey got out as if she were going to pump gas. Lal did not turn on the pump. Audrey got back in the vehicle and drove away.

¶ 6. About fifteen or twenty minutes later, Tony and LaMarvin returned and entered the store. LaMarvin placed an item on the cashier's counter. When Lal opened the register, LaMarvin rushed around the counter and tackled Lal to the ground. LaMarvin grabbed money from the register while holding Lal down. Meanwhile, Tony went into Lal's living quarters behind the counter. When Tony came back out, he and LaMarvin exited the store. Audrey picked up Tony and LaMarvin beside the store and they left the scene.

¶ 7. Lal called the police, and Flora's Assistant Police Chief Clifton Nelson responded. Lal reported that $500 had been taken from the register, $200 from a stand near the register, and $1,500 from a bank deposit bag located in Lal's living quarters, for a total of $2,200. Chief Nelson reviewed the store's surveillance video showing the robbery. The surveillance video of the robbery was shown to the jury at trial. Chief Nelson learned from a witness at the scene that two males, matching the appearance of the two robbers depicted in the surveillance video, ran and got into a blue Honda near the store after the robbery.

¶ 8. Lal could not identify Tony or LaMarvin; however, Lal identified the driver of their vehicle as Audrey Swinney. Audrey was Lal's former employee, whom he had terminated for theft. Upon the information gathered by Chief Nelson, Audrey was developed as a suspect in the robbery. That afternoon, Audrey voluntarily appeared at the police station and agreed to be interviewed. Audrey denied any involvement in the robbery at Bullets and was released. Before Audrey left the police station, Chief Nelson took photographs of Audrey's vehicle, a blue Honda matching the witness's description given at the scene.

¶ 9. On April 6, 2015, a warrant was issued for Audrey's arrest. Audrey agreed to be interviewed a second time. During the interview, Audrey said that Eric Jackson and Milton Deemus were the two males with her at the store the day of the robbery. Audrey posted bond and was released. Eric Jackson and Milton Deemus were arrested the next day. After Eric Jackson was arrested, his brother Joshua Jackson came forward with information implicating Tony in the robbery. Joshua Jackson claimed that he had overheard Audrey, Tony, and Milton Deemus planning to rob Bullets days prior to the robbery. Milton Deemus provided an alibi. Eric Jackson and Milton Deemus later were released.

¶ 10. Chief Nelson issued an arrest warrant for Audrey for impeding the investigation. Audrey was arrested and interviewed a third time. Audrey stated that the individuals she had previously named as assisting her in the robbery were incorrect. Audrey stated that her brother Tony and her cousin LaMarvin assisted her in the robbery. At trial, LaMarvin admitted that he, Audrey, and Tony had planned and carried out the robbery of Bullets. LaMarvin identified himself and Tony as the two males depicted in the surveillance video robbing Lal.

¶ 11. During a recess of Tony's trial, Audrey pleaded guilty to robbery. The State did not call her to the stand to testify. After the State rested its case in chief, Tony rested without testifying and without putting any witnesses on the stand.

¶ 12. The jury returned a verdict finding Tony guilty of robbery of a person of the age of sixty-five years or over and conspiracy to commit robbery. On November 2, 2015, the trial court conducted a sentencing hearing. The trial court sentenced Tony as a habitual offender under Section 99–19–83 to life imprisonment without the possibility of parole or early release on both counts, with each sentence to run concurrently with the other.

STANDARD OF REVIEW

¶ 13. Tony raises several arguments for the first time on appeal. "Generally, a party who fails to make a contemporaneous objection at trial must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred." Parker v. State , 30 So.3d 1222, 1227 (¶ 15) (Miss. 2010). As a result, Tony asks the Court to review the arguments raised for the first time on appeal under the plain error doctrine.

¶ 14. "The plain error doctrine is employed only in situations when a defendant's substantive or fundamental rights are affected." Green v. State , 183 So.3d 28, 31 (¶ 6) (Miss. 2016). "Plain-error review is properly utilized for correcting obvious instances of injustice or misapplied law." Id. "For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity or public reputation of judicial proceedings."

Hall v. State , 201 So.3d 424, 428 (¶ 12) (Miss. 2016).

¶ 15. "To determine if plain error has occurred, this Court must determine if the trial court has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether that error has prejudiced the outcome of the trial." Conner v. State , 138 So.3d 143, 151 (¶ 19) (Miss. 2014). "Prejudice often is lacking when the weight of the evidence against a defendant is overwhelming." Hall v. State , 201 So.3d at 428 (¶ 12).

ANALYSIS

I. Habitual Offender

¶ 16. First, Tony argues that the trial court erred by sentencing him as a habitual offender under Section 99–19–83, because the State failed to prove that Tony had served two terms of confinement of a year or more for his prior felony convictions. Second, Tony argues that the State failed to prove that at least one of his previous felony convictions had been a crime of violence as required by Section 99–19–83. The Court does not reach Tony's second argument because it is undisputed that the State failed to prove that Tony served two terms of confinement of a year or more for his prior felony convictions.

¶ 17. Both Tony and the State agree that the Court should vacate his sentences and remand for resentencing because there was insufficient proof demonstrating that Tony actually had served a year or more for his prior felony convictions. "An illegal sentence is an obvious error subject to plain-error review." Martin v. State , 214 So.3d 217, 220 (¶ 6) (Miss. 2017). As such, the issue raised for the first time on appeal of whether the State failed to prove his habitual offender status under Section 99–19–83 is reviewable as plain error. Conner v. State , 138 So.3d 143, 150–51 (¶ 19) (Miss. 2014).

¶ 18. Under " Section 99–19–83, the maximum term of life imprisonment will be imposed if the State can prove beyond a reasonable doubt that the defendant has previously been convicted of two or more felonies on charges separately brought and arising out of separate indictments at different times, that the defendant was sentenced to and served separate terms of one year or more in any state or federal penal institution, and that at least one such felony was a crime of violence." Long v. State , 52 So.3d 1188, 1196 (¶ 26) (Miss. 2011).

¶ 19. On October 19, 2015, the trial court...