Young v. State, 53,727

Decision Date05 January 1983
Docket NumberNo. 53,727,53,727
Citation425 So.2d 1022
PartiesJerry Lynn YOUNG v. STATE of Mississippi.
CourtMississippi Supreme Court

David O. Butts and Michael Thorne, Tupelo, for appellant.

Bill Allain, Atty. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before SUGG, ROY NOBLE LEE and DAN M. LEE, JJ.

ROY NOBLE LEE, Justice, for the Court:

Jerry Lynn Young was indicted, tried and convicted in the Circuit Court of Lee County, Mississippi, for armed robbery, Honorable Neal Biggers, Jr., presiding, and was sentenced to twenty (20) years with the Mississippi Department of Corrections. He has appealed to this Court and assigns thirteen (13) errors in the trial below.

I.

Was the verdict of the jury contrary to the over-whelming weight of the evidence?

According to the evidence for the State, two (2) fully-masked individuals entered the rear door of the Union National Life and Fire Insurance (Union National) office in Tupelo, Mississippi, on Friday, February 15, 1980, after opening the door with a key. E.R. Easterling and Patricia Thrasher, employees of the insurance company, were at work inside. Easterling looked up from his desk and saw a masked figure at the rear entrance holding a shotgun. He was ordered to "get on the floor" and complied with that order. The robber wore a mask, gloves, and his entire body was covered, but Easterling estimated his height to be 5'7" to 5'8" and stocky build. He could not identify the person. The robber walked over to him and took his wallet which was clipped to his belt loop. As he lay on the floor, Easterling was unable to see any other person involved. Mrs. Thrasher was in an adjoining room, where she was engaged in receiving cash premium checks collected by insurance agents during the week. She heard someone coming in, thought an agent was returning from lunch, and was surprised by a masked figure wearing dark glasses and gloves, who told her to be quiet. She saw the second person with the shotgun and screamed. Mrs. Thrasher did not see any other weapons, and described the first individual seen by her as tall and slim. She could not see the robber's skin, but thought his voice was that of a black person. After about five (5) minutes, Easterling heard Mrs. Thrasher call and ask, if the robbers were gone, and he got up and attempted to call the police. The robbers had ripped out the telephone lines and Easterling went out the back to a business across the alley and called the police. On returning, he noticed a shiny new key still in the back door lock. That door was always kept locked, and all the agents had keys to it.

The police began an investigation of the robbery, but no arrests were made. On March 17, 1980, they arrested James Troy Harrison on another robbery charge and he confessed to the robbery of the Union National office. On March 26, 1980, he gave a statement implicating the appellant in the Union National robbery.

At trial, the facts stated above were testified to by the witnesses. James Troy Harrison and Jimmy Dorman also testified for the State. Harrison, age 33 years, stated he had known appellant approximately fifteen (15) months, and that they worked together in appellant's cleaning and painting business. On the day of the robbery, appellant picked up Harrison around 7:00 or 8:00 a.m.; they talked about robbing the insurance office; appellant told him that there would be a lot of money in the office on Fridays; and that he had a key to get in, together with a drawing of the layout of the building. About a week earlier, Harrison was with appellant and saw one Jimmy Dorman give him a key to the rear door of the building.

Harrison further testified that on the morning of the robbery, he and appellant drove to the home of a Garrett couple, took their truck, and returned to Tupelo where the truck was left at a mall. Then they went to appellant's home, waited there until around 11:30 a.m., and then returned to the truck, using it to drive to the insurance office. Harrison carried a sawed-off shotgun and Young had a chrome .32-caliber pistol. Harrison got the key from appellant, opened the rear door of the office, and they entered together. Harrison ordered the employees to lie down, and admitted taking Easterling's billfold. They obtained approximately twenty-eight hundred fifty dollars ($2,850.00) from the insurance company, pulled the wires loose from the telephones, and drove back to the mall where they switched vehicles and returned to appellant's home. Appellant gave Harrison six hundred dollars ($600.00) of the money.

Jimmy Mac Dorman, age thirty-two (32) years, testified for the State that he was formerly employed by the insurance company and had worked there approximately two and one-half (2 1/2) months. He had known appellant for two and one-half (2 1/2) years, and met Harrison through appellant. According to him, appellant had seen him with a large sum of money which he had collected from insurance customers and appellant asked him about the collections and agents turning in money on Fridays. Dorman said that appellant told him "I don't want you to do anything, all I want is a key." Dorman gave appellant and Harrison a key to the rear door. On the day of the robbery, Dorman did his usual work, went to lunch, and returned to the office after the robbery was over. That night, he went to appellant's house and appellant gave him six hundred dollars ($600.00).

Appellant's defense was an alibi testified to by himself and his wife. He cross-examined Harrison and Dorman pro se and attempted to discredit their testimony by inconsistencies and contradictions. Appellant contended that Harrison and Dorman were not telling the truth and that he never went to the insurance office nor did he have anything to do with the crime.

Only slight corroboration of an accomplice's testimony is required to sustain a conviction. Feranda v. State, 267 So.2d 305 (Miss.1972). The testimony of Harrison and Dorman was corroborated to some extent by Easterling and Patricia Thrasher. The credibility and reasonableness of the testimony of Harrison and Dorman was for the determination of the jury. Cochran v. State, 278 So.2d 451 (Miss.1973). It is within the province of the jury to accept parts of the testimony and to reject parts of the testimony of any witness, and the jury may give consideration to all inferences flowing from the testimony. Grooms v. State, 357 So.2d 292 (Miss.1978).

We are of the opinion that, applying the same rule here as in a request for a peremptory instruction of not guilty, considering all the evidence in behalf of the State as true, together with reasonable inferences flowing therefrom, and rejecting the evidence of the defendant in conflict therewith, the evidence for the State is sufficient to sustain the verdict of guilty, and it is not contrary to the overwhelming weight of the evidence. Warn v. State, 349 So.2d 1055 (Miss.1977).

II.

Did the lower court err in declining to dismiss the indictment against appellant?

The appellant contends that he was not sufficiently notified that he would be tried on the indictment here since he was indicted May 26, 1980, arraigned May 27, 1980, and the case was not set at the next August 1980 Term or the next November 1980 Term. The case was set for the February 1981 Term of court, but appellant testified that he did not know the State was serious about trying him. The record does not indicate the reason why the case was not tried during the August and November 1980 Terms. The appellant also contends that he was not afforded a speedy trial which resulted in prejudice to him, in that a witness was not available. However, appellant obtained a continuance from the May 1980 Term to the August 1980 Term and the number of days delay from the indictment to trial, considering that continuance, amounted to one hundred eighty-three (183) days, which is considerably less than the two hundred seventy (270) day limitation imposed by Mississippi Code Annotated Sec. 99-17-1 (1972). See State v. Davis, 382 So.2d 1095 (Miss.1980).

We are of the opinion that there is no merit in this assignment.

III.

Did the lower court err in permitting the prosecution to impeach appellant with a recent prior conviction alleged by appellant to have been fraudulently obtained?

The appellant testified in his own behalf and the district attorney asked him about an armed robbery conviction which occurred on December 17, 1980, in Lee County, Mississippi, in Cause # 18,302. The appellant admitted such conviction.

He contends that requiring him to testify about the conviction constitutes reversible error for the reason that such conviction was obtained by fraudulent actions of the State in coercing one of its witnesses to testify falsely against him; that the State willfully concealed material evidence; that the State allowed its witness to testify falsely about material facts without correcting them; that one of the officers suborned perjury and caused a State's witness to testify falsely; and that four (4) State's witnesses perjured themselves at the trial.

The robbery conviction in question was on appeal to the Mississippi Supreme Court at the time the case sub judice was tried, and appellant indicated that he expected the judgment in that case to be reversed either by this Court on appeal or by some subsequent post-conviction action.

This Court had the precise question before it and answered the question adversely to appellant's contention in Milstid v. State, 347 So.2d 1319 (Miss.1977), quoting from Nicholson v. State, 254 So.2d 881 (Miss.1971), as follows:

"We find no merit in the appellant's assignment relative to allowing the district attorney to cross examine him in regard to his recent conviction of the crime of manslaughter.... A majority of the jurisdictions hold a defendant may be impeached by the use of a previous conviction which is on appeal. The basis for so holding is...

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