Woods v. State, 52346

• Citation: 393 So.2d 1319
• Decision Date: 14 January 1981
• Docket Number: No. 52346,52346
• Parties: Robert Lee WOODS v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 1319

393 So.2d 1319

Robert Lee WOODS v. STATE of Mississippi.

No. 52346.

Supreme Court of Mississippi.

Jan. 14, 1981.

Rehearing Denied March 4, 1981.

H. Lee Bailey, Jr., Bailey & Bailey, Winona, for appellant.

Bill Allain, Atty. Gen. by Billy L. Gore, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROBERTSON, LEE and BOWLING, JJ.

BOWLING, Justice, for the Court:

This multiple indictment and conviction arose in the Circuit Court of Montgomery County. Appellant, Robert Lee Woods, was charged in one indictment consisting of three counts: Burglary, armed robbery and kidnapping. The indictment further charged that as appellant had two prior felony convictions on separate charges and had received sentences of more than one year under each, he should receive an enhanced sentence as a habitual criminal under Mississippi Code Annotated section 99-19-81 (Supp.).

The trial resulted in the conviction of appellant under all three counts of the indictment. The jury failed to agree on punishment under the armed robbery and kidnapping charges. The trial judge then sentenced appellant to a term of fifteen years with the Department of Corrections under the burglary conviction, and two life sentences for the armed robbery and kidnapping convictions.

Appellant alleges a number of errors which, he contends, require a reversal of the cause. We shall hereafter discuss those alleged errors as presented. First, however, we should get the case in perspective as it was received by the jury.

The principal witness for the prosecution was one Carnell Ward, a fifty-nine year old male. He testified that on January 6, 1980, at about two o'clock P.M., he was not feeling well and was in bed at his home. The appellant, with whom Ward was acquainted, came to the door and demanded entrance. Ward told him that he could not enter, whereupon appellant kicked in the door which was locked and entered Ward's room. Appellant produced a silver-plated 38-caliber pistol and demanded Ward's money. The latter told appellant that all his money was in the pocket of his pants that were on a chair near the bed. Appellant went through the pockets of the pants and took the sum of $13.

According to Ward, appellant then demanded that Ward dress and go with him in Ward's car. Appellant dragged him into the car, cautioning him to say nothing and to play like nothing was happening during the course of the trip they were about to take. Appellant had secured the car keys from Ward's pocket. Ward testified that he was required to drive and that they first went to the home of a Mrs. Robertson. Ward described in detail the route taken and the places they passed on the way. At the Robertson house, appellant bought some corn whiskey and drank some of it. He made Ward drink some of the liquor. Ward's money taken by appellant was used for the purchase. Ward testified that appellant hit him in the chest and made him take a drink.

After leaving the Robertson house, appellant required Ward to drive for a distance, after which appellant took over the driving saying that Ward was not "driving right." Appellant then drove several miles in reckless fashion before permitting Ward to again drive the vehicle. Thereafter, appellant ordered Ward to drive to "The Pines," a local beer joint. On the way, Ward was told to turn right onto a dirt road near a white church. Appellant needed to relieve himself, which he did. According to Ward, appellant then returned to the car and forced Ward to commit what Ward described as an "act." At appellant's demand, Ward then drove to The Pines where they got out of the car and entered. Shortly before reaching The Pines, appellant made Ward give him his watch. After arriving at The Pines, appellant took the car keys from Ward. Ward testified that they both got out on the driver's side of the car, with appellant cautioning Ward not to talk while in The Pines. This establishment was located about ten miles from Winona. Appellant testified that a man named Edwards operated The Pines and was at the bar. Appellant bought beer for himself and Ward. The two men then left The Pines and got back in the car, both men again entering from the driver's side. Appellant, who had the keys, placed them in the ignition and ordered Ward to drive. During the trip back to Winona, appellant cursed and threatened Ward for not having any other money.

Ward testified that when they reached the Winona Junior Food Mart, he stopped the car quickly, jumped out leaving the keys behind, and ran into the store. He then attempted to warn the store operator that appellant had instructed him to get some money from the store. Ward testified that he told the woman in the store to lock the door as appellant intended to rob them. Appellant then came in the store, grabbed Ward and tried to pull him outside. As he was being dragged towards the door, Ward grabbed a gum machine and appellant was unable to pull him loose. When one of the store employees announced that she was calling the police, appellant left the store and was last seen leaving the lot in a car with someone else. According to Ward, he and appellant reached the Junior Food Mart between 7:30 and 8:00 o'clock P.M., after having been together, as hereinbefore discussed, since shortly after two o'clock P.M.

The prosecution introduced testimony from witness J. L. Edwards, who stated that he operated "The Hardship Club," commonly known as "The Pines." He knew both appellant and Ward and had seen them in his establishment on the afternoon in question between 4:30 and 5 o'clock P.M. According to Edwards, Ward was seated and appellant was standing close by him. Woods ordered a quart of beer and drank it. Edwards testified that the two men left together.

The prosecution then introduced Thelma Bludsaw, who was working at the Junior Food Mart at the time in question. She knew Ward as he had been in the store many times. She testified that he entered the store between 7:30 and 8:00 o'clock P.M., and was acting very differently from the other times she had seen him. He ran up to her, stating that "you are fixing to be robbed." She testified that he then ran back toward the cooler "like he was trying to run away" and was "looking wild and acting funny." According to Bludsaw, another man came in and told Ward to "come on and let's go."; that he was going out of there or was going to be pulled out. Ward grabbed the gum machine near the door and would not release it. Ward then announced he would not let go of the machine until someone called the police. The other man then turned Ward loose and left. Ward remained in the store holding onto the gum machine until the police arrived. Bludsaw did not know the other man involved but identified him at the trial as being the appellant.

The prosecution also introduced John Welch, the night manager of the Junior Food Mart, whose testimony was essentially the same as the previous witness.

Appellant's defense was an alibi. He first placed on the stand a witness named Odis Merritt who owned and operated a business known as "Last Chance." He was asked whether or not appellant was in his place of business on January 6, 1980, and he promptly stated that appellant was in his place of business but he could not say it was on January 6. Merritt testified that whatever day it was, appellant and one C. W. Wright were together. Upon being examined by appellant's attorney as a surprise witness, Merritt stated that appellant was the one who told him the date was the 6th. The witness testified that on the occasion in question appellant came to the cafe about 11 o'clock A.M. and stayed until in the night time.

Appellant Woods testified in his own behalf. He was 26 years of age and stated that he had "heard talk" of Carnell Ward. He testified that on January 6, 1980, he arrived at Merritt's Cafe about 8:30 in the morning and stayed there until 6:30 or 7:00 that evening and that Merritt and one C. W. Wright were present. He testified that he first saw Ward around 6:30 or 7:00 that evening at the Junior Food Mart, and that Ward was acting "crazy." Appellant contended that he had attempted to remove Ward from the store as he was bothering the store employees. Appellant maintained that he had found Ward's watch, introduced into evidence, by the side of the road near his girl friend's house on January 7th.

Did the lower court err in denying appellant's motion for a continuance?

The day prior to trial, appellant's attorney filed a written motion for a continuance, alleging that C. W. Wright, a prospective witness for appellant, was a necessary witness for appellant's defense; that due diligence had been used to procure the presence of Wright but that he was in the University Hospital in Jackson, Mississippi. The only thing in the affidavit for continuance about Wright's testimony was that "he has information regarding the whereabouts of the defendant on the date in question." On the morning of the trial date, appellant's attorney renewed the continuance motion orally. In chambers, it was stated to the trial court that Wright was with defendant on the date in question. There was another oral motion for a continuance. In overruling the motion, the court stated that there was nothing before the court to show whether or not Wright would ever be available to testify as a witness in the cause and overruled the motion for that reason.

We have held repeatedly that an application for a continuance is addressed to the sound discretion of the trial court unless that discretion is abused and the defendant is prejudiced thereby. Fermo v. State, 370 So.2d 930 (Miss.1979); McClendon v. State, 335 So.2d 887 (Miss.1976); Sample v. State, 320 So.2d 801 (Miss.1975).

In Burrill v. State, 328 So.2d 334 (Miss.1976), the statutory procedure to follow in requesting continuances was discussed fully as follows:

The absence of certain out-of-state witnesses is urged as requiring reversal. Facts expected to be proved by the...