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CLYDE ROBINSON v. STATE OF MISSISSIPPI

MARCH 13, 1985

CLYDE ROBINSON
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER

PRATHER, JUSTICE, FOR THE COURT:

This is an appeal from a criminal conviction in the Circuit Court of Lincoln County, in which Clyde Robinson was convicted of armed robbery and sentenced to a term of twelve years in the Mississippi Department of Corrections. Robinson appeals, assigning as error:

(1) The trial court erred in admitting evidence of the co-indictee's guilty plea;

 (2) The trial court erred in granting the state's cautionary instruction regarding the testimony of an accomplice;

 (3) The trial court erred in granting an instruction defining the crime of armed robbery which was unduly misleading; and

 (4) The verdict was against the overwhelming weight of the evidence.

 I.

 On July 7, 1982, appellant Robinson, a 30 year old resident of McComb, MS, picked up Kevin John Whitwell who was hitchhiking along I-55 North. Whitwell, a 28 year old school teacher from Sidney, Australia, had taken a year off from teaching in order to travel around the United States. Robinson drove north approximately 20 to 25 miles, dropping Whitwell off at the Summit exit.

 Sometime later, Robinson returned accompanied by Lynwood Magee and again picked up Whitwell. Robinson exited the interstate and stopped for gas, then proceeded along old Hwy. 51 toward McComb. When the car stopped at an intersection, Magee, who was riding in the back seat, pointed a .38 caliber pistol at Whitwell and told him to put his hands on the dashboard. Magee reached around into Whitwell's top left shirt pocket and removed $10.00 in cash and a digital clock. Appellant Robinson tore a money belt from around Whitwell's neck. Robinson removed from the money belt $1,900.00 in

 traveler's checks and some foreign currency. At Magee's command, Whitwell got out of the car and ran toward a pasture.

 Robinson and Magee proceeded to drive to McComb and stopped at the Fast Lane Store where Magee forged Whitwell's name on a $20.00 traveler's check which he used to purchase $7.00 worth of gas. Robinson and Magee stopped next at the Billups on 51 and Broadway where Magee forged Whitwell's name on a $20.00 traveler's check which he used to purchase a 6-pack of beer and some cigarettes. Robinson and Magee then pulled over on the Higgins High School Road where they searched Whitwell's backpack, removing a camera and throwing the backpack into a ditch.

 At trial, appellant Robinson testified that, after dropping off Whitwell at the Summit exit, he returned to McComb and went to Willie Martin's Lounge. According to Robinson, he mentioned to a group of people that he was going to Jackson and Magee invited himself along for the ride. Robinson admitted that the gun used during the robbery was his and that he kept it in his glove compartment, but denied giving the gun to Magee. Robinson testified that he had no knowledge that Magee was going to rob anyone.

 Lynwood Magee testified that when he saw Robinson at Willie Martin's Lounge, Robinson told him about the hitchhiker and said he wanted Magee to help him rob the man. According to Magee, Robinson opened the glove compartment of his car, pulled out the pistol and handed it to Magee.

 Laville Isaac, Lynwood Magee's cousin, testified that she saw Robinson and Magee around 8:30 or 9:00 on July 7, 1982 at her residence in McComb. According to Isaac, Robinson cautioned Magee against cashing the traveler's checks in McComb and volunteered to take them to Louisiana and cash them. Isaac testified that appellant traded the gun and the camera for the remaining traveler's checks.

 II.

 Whether the trial court erred in admitting evidence at co-indictee's guilty plea.

 Lynwood Magee, who was jointly indicted with the appellant but separately tried, was questioned by the district attorney on direct-examination as follows:

 Q. Let me ask you now, what crimes or misdemeanors have you been convicted of?

 A. The only crime I've been convicted of is armed robbery today.

 Q. What about any misdemeanor?

 A. Several in the ...


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