Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J., For The Court:
Burtchell a.k.a. Burchell v. State, 96-KA-01375, __ So. 2d __
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY, ARMED ROBBERY AND AGGRAVATED ASSAULT
TRIAL COURT DISPOSITION: ADJUDGED GUILTY OF ARMED ROBBERY AND SENTENCED TO SERVE 51 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS FOR COUNT; ADJUDGED GUILTY OF AGGRAVATED ASSAULT AND SENTENCED TO SERVE 20 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; BOTH SENTENCES TO RUN CONCURRENTLY WITH NO HOPE OF PROBATION OR PAROLE
DISPOSITION AFFIRMED - 7/14/98
MOTION FOR REHEARING FILED:
A grand jury returned a two-count indictment against Darrell Wynn Burtchell. Count I charged Burtchell with the armed robbery of Nancy Ann Cowan while she worked as the night clerk at a Majik Market convenience store, and Count II charged Burtchell with aggravated assault on the same Nancy Ann Cowan. A jury in the Circuit Court of the Second Judicial District of Harrison County returned verdicts of "Guilty as charged" on both counts of the indictment, pursuant to which the trial court sentenced Burtchell to serve fifty-one years for armed robbery in the custody of the Mississippi Department of Corrections and to serve twenty years in the custody of the Mississippi Department of Corrections for aggravated assault, both of which sentences were to run concurrently. In his sentencing order, the Judge added that Burtchell's fifty-one year sentence for armed robbery was to be served "day for day without hope of probation or parole pursuant to Sections 97-3-79 & 47-7-3 MS Code 1972 as Amended." In his appeal from the trial court's judgment of conviction and sentencing, Burtchell asserts: (1) that the trial court erred by incarcerating him without the possibility of parole, (2) that the trial court erred because it did not sua sponte instruct the jury to guide their deliberations on whether Burtchell's victim had properly identified him, (3) that the trial judge erred by refusing to grant certain instructions on reasonable doubt and presumption of innocence, which his trial counsel requested, and (4) that he was denied effective assistance of counsel. We affirm the trial court's judgment of conviction, but we modify its sentence by amending it to delete the provision which denied Burtchell the "hope of probation or parole pursuant to Sections 97-3-79 & 47-7-3 MS Code 1972 as Amended."
At ten o'clock on the night of September 8, 1994, Nancy Ann Cowan began working her eight-hour shift as assistant manager of the Majik Market convenience store located at the intersection of Quave and Gorenflo Streets in D'Iberville, Mississippi. At approximately four o'clock on the morning of September 9, a young Caucasian male entered the store. According to Cowan's testimony at the trial, she was standing in front of the counter when he approached her. When he was about five feet from her, he said, "I wonder if you'd do me a favor?" Cowan replied, "Sure." Then, he pulled out a dark, small-caliber pistol and said, "Give me all your money in your register." Cowan took one ten-dollar bill, two five-dollar bills, and approximately twenty one-dollar bills from the cash register drawer and handed them to the gun-wielding young man.
When he took the money, he told Cowan, "Now you need to come around the counter and hand me a twelve-pack of beer." Cowan complied with his request by handing him a twelve-pack of Busch beer which was on a "special display" in the store. She estimated that she was about two feet from her assailant when she handed him the beer. Then she began to back away from him to get behind a candy rack in the store. As she did so, she stated, "Don't shoot me. I have two kids I have to support. Please don't shoot me." While he continued to "flash" his pistol, the man told her, "Well, I was going to kill you, but now I'm not." Then he turned to leave the store. As he was about to leave, Cowan stepped from behind the candy rack. As Cowan stepped from behind the candy rack, the man turned around and began firing his pistol at her as he hurried from the store and into the street. He fired at least four times, and two of the bullets struck Cowan, one in her upper arm, which broke it, and one in her abdomen. Screaming, Cowan ran to the telephone and called 911 to report what had just happened.
Harrison County Sheriff's Deputy Nicholas Cheatham, who was patrolling the D'Iberville area on the midnight shift, received a "dispatch" at 4:14 a.m. to report to the Majik Market, and about one minute later he arrived at the store. Cheatham saw nobody inside the Majik Market store, so he drew his weapon and entered it. Inside, Cheatham found Cowan "squatted down" behind the counter, using the telephone. Cowan looked up at Cheatham and said, "Nick, I've been shot." Cheatham assured her that she was going to be all right and that she could hang up the telephone.
Cowan told Cheatham that her assailant was a white male, approximately five-feet, eight-inches tall, weighing 150 pounds, with brown hair pulled back into a ponytail. Cheatham noticed a trail of four.25 caliber shell casings which "started approximately in front of the cashier" and extended out the door. Cheatham also found two bullet holes in the rear wall of the store. One bullet hole was directly in front of the door, and the other one was "about six feet to the left of it, approximately waist or abdomen high...." Outside the store, Cheatham found a twelve-pack of Busch beer near the dumpster. A sudden downpour of rain, which began after Cheatham had entered the Majik Market, had caused it to burst open.
Within about three minutes of Cheatham's arrival, an ambulance came, and its attendants took Cowan to the Biloxi Regional Hospital, where she underwent exploratory surgery on her abdomen, and her broken arm was set. Neither bullet was removed from Cowan's body. After the ambulance left with Cowan, John Noble, an investigator with the Harrison County Sheriff's Office instructed Cheatham to investigate the ownership of a red Nissan automobile which Noble had found parked about one block south of the Magic Market store on Rodriguez Street. Cheatham determined that the red Nissan belonged to one Kimberly Truelove, Burtchell's one-time girl friend.
At approximately four o'clock in the afternoon of the same day when Cowan had been robbed and shot, Bill Haden, another investigator with the Harrison County Sheriff's Office, received a telephone call. Based on information given to him from that call, Burtchell became a suspected perpetrator of that attack on Cowan. The Harrison County Sheriff's Department maintained thousands of photographs arranged in a filing system according to certain age, weight, height, and other distinctive classifications, from which photographs for line-ups could be selected. Investigator Haden prepared a photographic line-up composed of six pictures, including Burtchell's, which he had selected from the collection of photographs maintained by the sheriff's department. The six pictures were arranged in two rows of three pictures each. The pictures were numbered one through three from left to right on the top row and four through six from left to right on the bottom row. Burtchell's picture was picture number five located in the middle of the bottom row.
Accompanied by his boss, Captain Jimmy Johnson, and the evidence technician for the sheriff's department, Lou Ann O'Bannon, Investigator Haden went to Cowan's room in the Biloxi Regional Hospital shortly before seven o'clock on the evening of the same day that Cowan had been robbed and shot twice. Cowan's sister was with her when the officers arrived. When Investigator Haden showed Cowan the line-up, he told her, "Look at these pictures and see if there's anyone that you recognize from the incident." Cowan looked at the line-up for about ten seconds, and then she put her finger on photograph number five and said, "That's him. That's the man that robbed the store."
Haden and other officers went to Burtchell's mother's apartment, where they found Burtchell and arrested him. Pursuant to Burtchell's mother's consent, Haden and the other officers searched the apartment, during the course of which, they found Burtchell's wallet. In his wallet the officers found a driver's license for a female named Kimberly Truelove. Burtchell told Haden that it was his girl friend's driver's license. They also found a pair of green shorts from which they retrieved $44 in cash, including one ten-dollar bill, two five-dollar bills, and nineteen one-dollar bills.
As its witnesses the State called Nancy Ann Cowan, Officer Nicholas Cheatham, and Investigator Bill Haden. Our recitation of the facts is gleaned from their testimony. As his witnesses, Burtchell called Tracy Brown, James Mark Brown, and Cynthia Fortier. Burtchell also testified. Burtchell's three witnesses were called to buttress his alibi defense, which was that during the early morning hours of September 9, 1994, Burtchell was at the house occupied by Tracy Brown and her then boy friend, James Mark Brown, whom she had since married. With some discrepancies in their testimony, the two Browns and Cynthia Fortier testified that Burtchell had come to the Brown's home, which was located in Gulfport, some fifteen miles distant from the Majik Market convenience store where Cowan was robbed and shot, in time to watch the MTV music awards which were being televised that night.
They all established that Burtchell had been drinking beer all that night, and that by 3:30 the next morning, Burtchell was asleep on the couch. Tracy Brown testified that she had awaken early that morning and saw Burtchell asleep on the couch and that when she left for work the next morning around ten o'clock, Burtchell remained asleep on the couch. Cynthia Fortier, who stated that she was Burtchell's girl friend, testified that she had been drinking earlier that night in a local night club, after which she went to the Brown home about 2:30 a.m. to talk to Burtchell -- perhaps about his other girl friend, Kimberly Truelove, who was also attending the MTV awards party at the Brown home. Worthy of inclusion in this opinion is James Mark Brown's admission under the State's cross-examination that he admitted to Investigator Noble during Noble's interview of him the following Saturday that he and the other witnesses had talked about "covering up for [Burtchell] as far as where he was." James Mark Brown explained that he made the admission because he feared that Noble would "incarcerate" him if he did not tell Noble what he thought Noble wanted to hear. Noble was the investigator who had primary responsibility for investigating and developing the evidence in this case, yet neither the State nor Burtchell called him to testify.
Twenty minutes after they had begun to deliberate at 5:09 in the afternoon, the jury sent a note to the Judge in which they posed several questions, the subject of most of which was Kimberly Truelove, whom neither the State nor Burtchell called to testify. The Judge responded with the routine response that they had received all the evidence and instructions and that they must reach their verdict based only on that evidence and instructions of the law. The jury returned to continue their deliberation, but at 7:50 p.m., they sent another note to the Judge in which they advised him that they could not reach a unanimous decision "on both counts." The Judge then read the "Sharplin instruction" to the jury, whom he had instructed the bailiff to return to the courtroom. Approximately thirty minutes later, the jury returned with verdicts of "Guilty" on both charges of armed robbery and aggravated assault.
The trial court recessed until the next morning to conduct a hearing on whether the jury ought to sentence Burtchell to serve a life sentence for the crime of armed robbery. Pursuant to that hearing, at which the State called Cowan to testify and Burtchell called a minister involved in ministering to prisoners in the Harrison County jail, his mother, and his father, the jury returned the verdict that they could not agree upon a sentence of life imprisonment. The Judge referred to 1987 actuarial table by which he determined that Burtchell, then twenty-one years old, had a life expectancy of 52.6 years and, as we noted, sentenced him to serve fifty-one years on the conviction of armed robbery.
We quote Burtchell's four issues directly from the statement of the issues in his brief:
I. THE TRIAL COURT ERRED WHEN IT SENTENCED BURTCHELL TO CONCURRENT TERMS OF FIFTY-ONE YEARS AND TWENTY YEARS FOR THE RESPECTIVE CRIMES OF ARMED ROBBERY AND AGGRAVATED ASSAULT AND , AS PART OF THE SENTENCE, CONDEMNED A TWENTY ONE YEAR OLD MAN TO SERVE HIS TERM OF INCARCERATION DAY FOR DAY WITHOUT THE POSSIBILITY OF PAROLE.
II. REVERSIBLE ERROR WAS COMMITTED BY THE TRIAL COURT WHEN IT FAILED TO INSTRUCT THE JURY, ON ITS OWN INITIATIVE, ABOUT APPLICABLE LAW TO GUIDE IT ON THE ISSUE OF WHETHER OR NOT THE VICTIM OF THE ARMED ROBBERY AND AGGRAVATED ASSAULT HAD PROPERLY IDENTIFIED BURTCHELL AS THE PERPETRATOR OF EACH.
III. THE TRIAL COURT ERRED BY REFUSING TO GRANT INSTRUCTIONS NUMBERED D-1 AND D-7. FAILURE TO [G]IVE THE INSTRUCTIONS LEFT THE JURY GUIDED ONLY WITH RESPECT TO FINDING BURTCHELL GUILTY AND WITHOUT BEING TOLD THE PRESUMPTION OF INNOCENCE CLOTHING THE DEFENDANT, IS NEVER OVERCOME WHEN, UTILIZING STANDARDS TO ASSIST JURORS IN DETERMINATION OF REASONABLE DOUBT, AN EVIDENTIARY BASIS EXISTS TO FACTUALLY CONCLUDE HE IS NOT GUILTY, AFFORD HIM THE BENEFIT OF SUCH PRESUMPTION, AND FIND HIM NOT GUILTY.
IV. THE PROCEDURAL DEFAULTS OF TRIAL COUNSEL EVIDENCED BY THE OMISSION TO CHALLENGE THE VICTIM'S PRETRIAL IDENTIFICATION OF APPELLANT AND TRIAL TESTIMONY THROUGH A MOTION TO SUPPRESS, TO OFFER AN INSTRUCTION ON THE ISSUE OF IDENTIFICATION OR REQUEST THE COURT TO SO INSTRUCT THE JURY IN A TRIAL WHERE THE IDENTIFICATION OF APPELLANT WAS ONE OF TWO PRONGS OF THE DEFENSE, TO PRESERVE THESE ISSUES FOR REVIEW BY THE TRIAL AND APPELLATE COURT, AND THE FAILURE TO CALL AN IDENTIFICATION WITNESS READILY ACCESSIBLE DENIED THE DEFENDANT THE EFFECTIVE ASSISTANCE OF COUNSEL AND A FAIR TRIAL AS PROVIDED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES
2. Amendments to Section 47-7-3 of the Mississippi Code
Burtchell asserts that the Judge erred when he ordered that "[t]he defendant is to serve this sentence day for day without hope of probation or parole pursuant to Sections 97-3-79 *fn1 & 47-7-3 MS Code 1972 as Amended." The Judge based his sentencing order on the current version on Section 47-7-3, which reads, in part:
(d)(i) No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d) shall also apply to any person who shall commit robbery or attempted robbery on or after July 1, 1982, through the display of a deadly weapon. This subparagraph (d)(i) shall not apply to persons convicted after September 30, 1994;
(ii) No person shall be eligible for parole who shall, on or after October 1, 1994, be convicted of robbery, attempted robbery or carjacking as provided in Section 97-3-115 et seq., through the display of a firearm or drive-by shooting as provided in Section 97-3-109. The provisions of this subparagraph (d)(ii) shall also apply to any person who shall commit robbery, attempted robbery, carjacking or a drive-by shooting on or after October 1, 1994, through the display of a deadly weapon....
§ Miss. Code Ann. 47-7-3 (Supp. 1997). The legislature amended this section in 1994 to deny defendants who were convicted of armed robbery after October 1, 1994, eligibility for probation or parole. However, before October 1, 1994, Section 47-7-3 (d) read as follows:
(d) No person shall be eligible for parole who shall, on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm until he shall have served ten (10) years if sentenced to a term or terms of more than ten (10) years or if sentenced for the term of the natural life of such person. If such person is sentenced to a term or terms of ten (10) years or less, then such person shall not be eligible for parole. The provisions of this paragraph (d) shall also apply ...