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03/28/96 ARMSTRONG v. STATE

March 28, 1996

ARMSTRONG
v.
STATE



Before Bridges, C.j., Herring, And Southwick, JJ.

The opinion of the court was delivered by: Herring, J., For The Court

BILLY R. ARMSTRONG A/K/A BILLY RAY ARMSTRONG, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT

BY: JEAN SMITH VAUGHAN

DISTRICT ATTORNEY: BILBO MITCHELL

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: ROBBERY WITH A DEADLY WEAPON: SENTENCED TO SERVE 15 YRS IN THE CUSTODY OF THE MDOC; DEFENDANT IS ORDERED TO ATTEND ALCOHOL & DRUG PROGRAM & PARTICIPATE IN PSYCHOLOGICAL COUNSELING BY MDOC & PAY COURT COSTS OF $234.50

DISPOSITION AFFIRMED - 6/23/98

The Appellant, Billy Ray Armstrong, appeals from the judgment and sentence of the Circuit Court of Lauderdale County, Mississippi, in which he was found guilty of the charge of armed robbery in violation of section 97-3-79 of the Mississippi Code of 1972, as amended. Armstrong is represented by two attorneys, each of whom has filed an appellate brief on his behalf. We affirm Armstrong's conviction and sentence.

A. THE FACTS

Ricky Lofton, an employee of S & C Tree Service, got off work and arrived at his home in Meridian, Mississippi, at approximately 2:00 p.m. on August 24, 1995. After bathing, he left his home and was walking toward the home of a co-worker when another man approached him and asked for money. Immediately thereafter, Billy Ray Armstrong also approached Lofton with a brick in his hand. At this point, Armstrong raised the brick above his head in a threatening manner and ripped open Lofton's shirt pocket, which appeared to have money in it. Lofton was unarmed at the time.

Lofton informed Armstrong (whom he knew) and the other unnamed assailant that he had no money. At this time, a vehicle carrying a third assailant pulled up to the scene. After getting out of the vehicle, the third assailant approached Lofton and asked if Lofton was carrying any money. When Lofton replied that he had none, the third assailant struck Lofton in his face and right eye, and the first assailant approached Lofton and struck him with a broken bottle. Now thoroughly frightened, Lofton threw seven one dollar bills on the ground and ran. A chase ensued as Armstrong and one of the other assailants pursued Lofton. When Lofton ran into Wade's Grocery Store, Armstrong threw a brick at him which missed Lofton but shattered the glass front door of the store building. Once inside, Lofton and the store owner called the local police department for assistance, and Armstrong and the other assailant ran. Later, Lofton met with law enforcement officers and identified Armstrong as one of his assailants. The Appellant was arrested approximately two weeks later on the charge of armed robbery. He was indicted on the same charge on November 15, 1995.

B. COURSE OF PROCEEDINGS

Armstrong's trial was held on March 25, 1996. Prior to that date, on February 15, 1996, he wrote a letter to the circuit clerk indicating his desire to discharge his court-appointed attorney, Gary B. Jones, Esq. To justify this request, Armstrong cited (1) a lack of communication; (2) his attorney's failure to secure him a preliminary hearing; and (3) his attorney's lack of interest.

On March 18, 1996, Armstrong filed a hand written petition for a writ of habeas corpus, and requested that the charges against him be dismissed. As grounds for the petition for writ of habeas corpus, the Appellant claimed that he had been denied due process of law because of ineffective assistance of counsel in the preliminary stages of his criminal proceeding. An additional and lengthy "complaint" was also filed by Armstrong setting forth a variety of charges against his attorney. The petition for a writ of habeas corpus was denied by the trial Judge on March 19, 1996.

On the day of trial, March 25, 1996, Armstrong was still represented by Jones and was present in the chambers of the trial Judge for jury selection when he again informed the court, in a loud and boisterous manner, that he wanted to discharge Jones. He also requested a continuance in order to have time to get another lawyer. When the court refused to discharge Jones as Armstrong's attorney or to grant a continuance after Jones announced he was ready for trial, Armstrong refused to go into the courtroom with Jones for the trial and insisted that he be returned to the county jail. During the exchange between Armstrong and the trial court, Armstrong was informed that he was not entitled to choose his court-appointed attorney but could hire his own attorney if he had the funds ...


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