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ALVIE CHARLES HUGHEY v. STATE OF MISSISSIPPI

SEPTEMBER 02, 1987

ALVIE CHARLES HUGHEY
v.
STATE OF MISSISSIPPI



BEFORE WALKER, C.J., PRATHER AND SULLIVAN, JJ.

WALKER, C.J., FOR THE COURT:

In the Circuit Court of Alcorn County, Alvie Charles Hughey was convicted of armed robbery. The jury being unable to fix his penalty, the trial court sentenced him to a term of fifteen (15) years. Hughey appeals that conviction and sentence. Finding no error, we affirm.

On the afternoon of April 29, 1981, Mr. and Mrs. Haley Haney were working in the small grocery store they owned on Proper Street in Alcorn County. At 4:00 p.m., two (2) men came into the store, but left without making any purchase. Approximately an hour later, they returned to the store, accompanied by a woman. While the woman asked to purchase some bologna, the two (2) men closed the doors to the store, which had been propped open because of the warm weather. After the doors were closed, one of the men demanded that Mrs. Haney give him her ring, which she did, and that Mr. Haney give him the money from the cash register. When Mr. Haney hesitated, one of the men, later identified as Alvie Hughey, threatened to shoot and kill Mrs. Haney. Hughey had" what appeared to be a gun ", under his shirt, and Mrs. Haney saw" the prints of a gun "under his shirt, although Hughey" never took the gun out. "Before Mr. Haney could remove the money from the cash register, Tommy Williams, a frequent customer, came to the door of the grocery store, intending to enter. While moving toward the other door along with his two (2) companions, Hughey again threatened to shoot Mrs. Haney unless someone gave him the money from the cash register. Mrs. Haney opened

 the door which Tommy Williams was approaching, informed him that the store was being robbed, and asked him to" call the law. "Mr. Haney then took the money from the cash register and gave it to Hughey. As Williams left to call law enforcement officers, the trio exited the store with $200.00 in cash and the ring, which was a diamond cluster.

 As he drove away to call the police, Williams encountered a red light and had to stop because of approaching vehicles which had the right of way. While Williams was stopped at the intersection, Hughey opened the door to Williams' car and got in. Hughey stated that he had robbed the store and that he had a gun. When Hughey instructed Williams to drive to" the projects, "Williams did so. Hughey then got out of the car.

 Before he could be apprehended, Hughey fled to New York state, where he was arrested for criminal possession of a weapon. After being convicted on that charge, he entered a New York prison in March of 1982.

 In 1984, Hughey was tried on the armed robbery charge in the Circuit Court of Alcorn County; the jury returned a verdict of guilty, but could not reach an agreement as to penalty. The trial court then sentenced Hughey to serve a term of fifteen (15) years. He appeals, assigning three (3) errors.

 I. WAS THE EVIDENCE INSUFFICIENT TO CONVICT FOR ARMED ROBBERY?

 Hughey argues that there was no evidence to prove that he exhibited a gun, and that he therefore could not be convicted of armed robbery. This argument is without merit. Hughey had under his shirt an object which looked like a gun. Mrs. Haney testified that she saw" the prints of a gun. "Immediately after the robbery, Hughey himself told Tommy Williams that he had a gun. This evidence, along with the reasonable inferences flowing therefrom, was sufficient to present a jury question as to whether Hughey exhibited a deadly weapon. Valentine v. State, 415 So.2d 687, 689 (Miss.1982).

 II. DID THE COURT ERR IN CAUSING HUGHEY TO GO TO TRIAL ON THE DAY HE WAS ARRAIGNED, AND IN CAUSING HUGHEY TO GO TO TRIAL ON A DATE NINE DAYS AFTER HIS COUNSEL WAS NOTIFIED THAT SHE WAS APPOINTED TO REPRESENT HIM?

 Hughey moved for a continuance, alleging that he needed more time to prepare his claim of a violation of his right to a speedy trial. Although the trial court denied the continuance, an evidentiary hearing on Hughey's speedy trial claim was conducted after trial. The merits of that claim are discussed with regard to the next assignment of error. The grant or denial of a continuance lies within the sound discretion of the trial court. Gates v. State, 484 So.2d 1002, 1006 (Miss.1986); Carter v. State, 473 So.2d 471, 475 (Miss.1985). We find no abuse of that discretion in the instant case.

 III. WAS THE DEFENDANT DENIED HIS RIGHT TO A SPEEDY TRIAL?

 The following is a chronology of the events involved in this claim:

 April 29, 1981 The robbery with which Hughey was charged occurred.

 May, 1981 Hughey was indicted for armed robbery.

 September 9, 1981 Hughey was arrested in New York state on a weapons charge.

 March 5, 1982 Hughey entered a state prison in New York to serve two to six (2-6) years for the weapons conviction.

 April 22, 1982 New York correctional officer notified Mississippi Assistant Attorney General by mail that the Mississippi detainer lodged against Hughey had been received, that Mississippi authorities would be notified before Hughey was released, and that the Mississippi" warrant [was] not eligible for speedy trial. "That same day Hughey executed a document entitled" Agreement on Detainers: Form II, "which contained a notice of place of imprisonment, request for disposition of

 indictments, and waiver of extradition. Had Mississippi been a party to the Interstate Agreement on Detainers, then Mississippi would have been required, within 180 days of Hughey's waiver, to try him or remove the detainer. Mississippi, however, is not a party to the IAD. The document was not effective to waive extradition. It is not clear whether this document was sent to Mississippi officials.

 September, 1982 Hughey, having been informed by legal services that Mississippi was not a party to IAD, wrote to a Mississippi Assistant Attorney General and to the Chief Judge of the Circuit Court of Alcorn County, asking that he be tried at the earliest possible date.

 October 21, 1982 District Attorney John R. Young wrote to Rodney Moody, a New York corrections official. In the letter, which was apparently a follow-up to a telephone call, the district attorney thanked Moody for advising him of the" papers needed by [the New York prison] to return [Hughey to Mississippi] for trial. "The letter ended," Would you please send me your Interstate Forms 6 and 7 so that I can be sure to have what you need. "

 December 3, 1982 District attorney wrote to Hughey, telling him that he should sign a waiver of extradition so he could be tried in January of 1983. The district attorney stated

 in the letter that Hughey should see Rodney Moody, who would furnish him with the appropriate forms.

 January 4, 1983 Rodney Moody wrote to Hughey, stating the following:" This is in response to your recent communication indicating that I was to furnish you with the appropriate forms for Waiver of Extradition for the State of Mississippi. My records indicate that you signed the correct form . . . on April 22, 1982. For your information I am enclosing a copy of that form. "The document to which Moody referred was the IAD form.

 February 22, 1983 Prisoners' Legal Services of New York wrote to Hughey, responding to his letter and telling him that he had done everything possible to get Mississippi to prosecute.

 May 17, 1983 Hughey wrote to a Mississippi Assistant Attorney General and to the Chief Judge of the Circuit Court of Alcorn County, asserting his right to a speedy trial and ...


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