Tillman v. State, Nos. 89-KA-1276

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: HAWKINS; ROY NOBLE LEE; McRAE; BANKS, J., concurs in result and concurs in Part I and dissents in Part II with separate written opinion joined by McRAE; PITTMAN; BANKS; McRae
• Citation: 606 So.2d 1103
• Parties: Walter TILLMAN v. STATE of Mississippi. Clyde STEVENSON v. STATE of Mississippi.
• Docket Number: 89-KA-1321,Nos. 89-KA-1276
• Decision Date: 19 August 1992

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606 So.2d 1103 Walter TILLMAN
v.
STATE of Mississippi.
Clyde STEVENSON
v.
STATE of Mississippi. Nos. 89-KA-1276, 89-KA-1321. Supreme Court of Mississippi. Aug. 19, 1992.

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John Edward Stillions, III, Indianola, for appellant.

Michael C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, P.J., and PRATHER and McRAE, JJ.

HAWKINS, Presiding Justice, for the Court:

Walter Tillman and Clyde Stevenson appeal their convictions of burglary and conspiracy to commit burglary from the Circuit Court of Sunflower County. Tillman was sentenced to five years in prison for the burglary conviction and three years for the conspiracy conviction. Stevenson was sentenced as an habitual offender to seven years for the burglary conviction and five years for the conspiracy conviction. Because we find that the trial court erred in denying Tillman's request for a severance, we reverse and remand his convictions for a new trial. Stevenson's convictions, however, are affirmed.

FACTS

James McDonald, the owner of the Roundaway Grocery Store in rural Sunflower County, testified that when he opened the store the morning of January 10, 1989, he discovered that the store had been burglarized during the night. He testified that the window on the west side of the store had been broken and the back door was open. McDonald estimated that $2,000 to $3,000 worth of merchandise was taken by the burglars, including a television

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set, a .22 pistol, radios and all kinds of groceries.

Chester Campbell testified that on January 9, 1989 he and Stevenson discussed breaking into the Roundaway Grocery after visiting it while hunting in the area. Campbell told Stevenson that he had been in the store with his mother on several occasions and had seen money in the cash register. When they finished hunting, Campbell and Stevenson went to Walter Tillman's house, where Campbell and Stevenson were staying, and discussed burglarizing the store with Tillman. According to Campbell, Tillman asked him if he definitely knew that there were valuable items in the store and Campbell replied that he did. Campbell then asked Tillman if he wanted to go with them and Tillman answered affirmatively.

Campbell testified that he, Stevenson and Tillman rode in Tillman's truck to the Roundaway Grocery later that night. Tillman drove the truck past the store and past a house located near the store in order to make sure no one was nearby. Tillman then backed the truck up to the store. While Tillman stood guard with a .30/.30 rifle and a 12 gauge shotgun, Stevenson broke a window out and entered the store through the window. Stevenson then let Campbell in through the back door. Campbell and Stevenson took several items from the store and loaded them in the truck, including a television set, radios, a .22 pistol and bags of groceries. In all, Campbell testified that they took approximately 45-50 bags of groceries from the store. After Tillman filled his truck with gas from the store's gas pump, they returned to Tillman's house where they unloaded the groceries. On cross-examination, Tillman's counsel successfully brought out the fact that Campbell had also been indicted for burglarizing Martin's Grocery Store in Boyer, Mississippi, on January 10, 1989. Campbell was not allowed to testify that Stevenson was also indicted for the Martin's Grocery Store burglary.

Tillman testified that he and his wife Josephine were separated. He testified that one night in early January, 1989, he was staying at his wife's house when Campbell and Stevenson came by and asked to borrow his truck. Tillman lent them his truck and Campbell and Stevenson kept it all night. Tillman testified that he stayed at his wife's house all night and when he got up the next morning, he found his truck sitting outside his wife's house with the keys in the ignition. When he returned to his house, Tillman saw the groceries, the t.v. and a radio. He asked Campbell where these items had come from and Campbell replied that he got them at a store in the country. According to Tillman, Campbell did not tell him that these items were stolen. Tillman admitted that he took a pack of fish to his wife and children, but testified that he told Campbell and Stevenson that they could not keep anything at his house. When he returned home from work that afternoon, everything had been taken elsewhere. Josephine Tillman and Tillman's son, Walter, Jr., testified that Tillman stayed at Josephine's house one night in early January, 1989, and that Stevenson borrowed Tillman's truck that night.

Stevenson testified that on January 9, 1989, he went to Stella Sutton's (the mother of Stevenson's friend Roger Simpson) house in Indianola at about 5:00 p.m. and stayed until approximately 8:00 p.m. when he went to visit a friend, Michael Scott, in Shaw, Mississippi. He returned to Sutton's house at about 9:30 p.m. and watched videos with her until 3:00 a.m. when he went home to Tillman's house. Stevenson testified that he was not with either Tillman or Campbell that night and did not borrow Tillman's truck. Aaron Nance testified that he and Stevenson were at Sutton's house watching videos until 3:00 a.m. on January 10, 1989. Nance and Stevenson then went to Nance's house where they spent the night.

LAW

I. SEVERANCE

Tillman and Stevenson contend that the trial court erred in overruling Tillman's motion for severance since their defenses were in conflict and Stevenson was

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indicted as an habitual offender. First, the State argues correctly that Stevenson may not raise this issue on appeal since he never moved for a severance at trial. Therefore, this Court must determine only whether Tillman was entitled to a severance.

In Hawkins v. State, 538 So.2d 1204, 1207 (Miss.1989), the Court stated that the trial court has the discretion to grant a severance if it is necessary to promote a fair determination of the defendant's guilt or innocence. See also Miss.Unif.Crim.R.Cir.Ct.Prac. 4.04; Miss.Code Ann. Sec. 99-15-47 (1972); Rooks v. State, 529 So.2d 546, 556 (Miss.1988); Duckworth v. State, 477 So.2d 935, 937 (Miss.1985); Cardwell v. State, 461 So.2d 754, 758 (Miss.1984); Langston v. State, 373 So.2d 611, 612 (Miss.1979). In Duckworth the Court stated that the criteria used to determine whether a denial for a motion for severance is proper are whether or not the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. Duckworth, 477 So.2d at 937; Hawkins, 538 So.2d at 1207; Johnson v. State, 512 So.2d 1246, 1254 (Miss.1987)....