Before Thomas, P.j., King, And Payne, JJ
The opinion of the court was delivered by: Payne, J
DONALD FLOWERS, KENNETH BLACKWELL,, APPELLANTS JERRY STEWARD AND RICKY WHITE 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
DATE OF JUDGMENT: 05/20/94
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: EACH APPELLANT: CONSPIRACY TO COMMIT THE CRIMES OF AGGRAVATED ASSAULT, AGGRAVATED ASSAULT (FOUR COUNTS) AND FOR STEWARD ALSO SHOOTING INTO AUTOMOBILE; SENTENCES FOR EACH APPELLANT VARY
DISPOSITION AFFIRMED IN PART, REVERSED IN PART 3/10/98
Donald Flowers, Kenneth Blackwell, Jerry Steward, and Ricky White were convicted in count I for conspiracy to commit aggravated assault and in counts II, III, IV, and V for aggravated assault. The trial court sentenced each appellant to five years in count I and fifteen years in each of counts II, III, IV, and V. The trial court ordered the sentences in counts I, II, and V to run concurrently and the sentences in counts III and IV to run consecutively. Additionally, Jerry Steward was convicted for shooting into an automobile and sentenced to serve a term of eight years. The complete sentence ordered for each appellant is as follows: Donald Flowers -- forty-five years with twenty years to serve and last twenty-five years suspended pending successful completion of five years probation upon release, get a GED, pay a $5,000 fine and court costs; Kenneth Blackwell -- forty-five years with thirty years to serve and last fifteen years suspended pending successful completion of five years probation upon release, get a GED, pay a $5,000 fine and court costs; Jerry Steward -- fifty-three years to serve, pay a $6,000 fine and court costs; Ricky White -- forty-five years with thirty-five years to serve and last ten years suspended pending successful completion of five years probation upon release, obtain a GED, pay a $5,000 fine and court costs. All sentences are to be served in the custody of the Mississippi Department of Corrections.
Appellants' motions for JNOV or, in the alternative, a new trial were overruled. Finding error as to Issue IV as it pertains to appellant Ricky White, we reverse and render. As to appellants Flowers, Blackwell, and Steward, we affirm the decision of the trial court in all issues.
Appellants Donald Flowers and Kenneth Blackwell appeal together. Appellants Jerry Steward and Ricky White each filed separate briefs. Some of the issues overlap. As to those issues, we will address the arguments of all appellants together. We will address all other issues individually. The issues will be addressed as follows: Assignment of Error by Donald Flowers, Kenneth Blackwell, Jerry Steward, and Ricky White
I. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL WHEN THE DISTRICT ATTORNEY ELICITED TESTIMONY OF OTHER CRIMES IN CONTRAVENTION OF THE MOTION IN LIMINE.
Assignments of Error by Donald Flowers, Kenneth Blackwell, and Ricky White
II. WHETHER THE TRIAL COURT ERRED BY NOT GRANTING A MISTRIAL DUE TO THE IMPLEMENTATION OF EXTRAORDINARY SECURITY MEASURES AND BRINGING THE APPELLANT INTO THE COURTROOM IN HANDCUFFS AND SHACKLES.
III. WHETHER THE TRIAL COURT ERRED BY SEQUESTERING THE JURY ON THE STATE'S MOTION IN VIOLATION OF UNIFORM CIRCUIT COURT RULE 10.02.
IV. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING A NEW TRIAL BY DENYING APPELLANTS' MOTION FOR A DIRECTED VERDICT AND PEREMPTORY JURY INSTRUCTIONS AS THE VERDICT IS MANIFESTLY AGAINST THE WEIGHT OF THE EVIDENCE.
V. WHETHER THE VERDICT OF THE JURY IS THE RESULT OF BIAS, PASSION, OR PREJUDICE DUE TO IMPROPER CLOSING REMARKS OF THE STATE.
Assignments of Error by Donald Flowers and Kenneth Blackwell
VI. WHETHER THE TRIAL COURT ERRED BY NOT QUASHING THE INDICTMENT.
VII. WHETHER THE TRIAL COURT ERRED BY NOT SEVERING THE DEFENDANTS.
Assignments of Error by Jerry Steward
VIII. WHETHER THE TRIAL COURT ERRED, OR COUNSEL WAS INEFFECTIVE, FOR NOT ALLOWING STEWARD TO TESTIFY AT HIS TRIAL.
IX. WHETHER THE CHARGING OF APPELLANT FOR THE ACTUAL OFFENSES AND CONSPIRACY TO COMMIT THE SAME IDENTICAL OFFENSES VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE UNITED STATES CONSTITUTION.
In the early morning hours of June 6,1993, Timothy Wilson, John Jordan, Willie Robinson, and five friends went to Stewart's Club (Appellant Jerry Steward is not connected to the ownership or naming of Stewart's Club) in Hazlehurst after leaving a graduation party at another club. Upon entry into Stewart's Club, Timothy Wilson was confronted by a group of guys wearing khaki pants, white tee shirts, and blue bandanas. One of these guys accused Wilson of "perpetrating a gangster." At trial, eyewitness Mecha Pickens identified Kenneth Blackwell as the person who confronted Wilson. Wilson, however, testified that he was initially confronted by Donald Flowers. Wilson indicated that he denied being in a gang but Flowers continued to harass him. Fearing an altercation may result, the bouncer for Stewart's Club asked Wilson and his friends to leave the club. Once outside, Wilson and his friends were attacked by Blackwell and other members of his gang known as the Gangster Disciples. Specifically, the testimony indicated that Blackwell was seen hitting John Jordan in the ribs and that Flowers punched Robinson and cut him about the face with a knife. None of the victims or eyewitnesses could testify any further to who caused specific injuries. Following a brawl in the parking lot and numerous gunshots, Wilson, Jordan, and Robinson ended up in the hospital. Dr. Terry Brantley, the emergency room doctor, testified that he treated Robinson for a stab wound to the back and multiple cuts to the face and ear. Dr. Brantley testified that Jordan had incurred a gunshot wound to the left testicle. At another hospital, Wilson was attended by Dr. Kenneth Whittington and treated for several lacerations about his head and arm. Dr. Whittington indicated that the most serious of Wilson's injuries was a four inch laceration to the head which was most likely caused by a "great deal of force" with a "blunt object."
The testimony indicated that Jerry Steward was the leader of the Gangster Disciples and was the person who shot into the vehicle in which Jordan was riding in his attempt to escape. The evidence indicated that this same vehicle had been shot a total of eleven times.
As to the conspiracy charge, the State presented the testimony of confidential informant Daniel Gardner that Steward had conducted a meeting at his home attended by all of the appellants in addition to numerous other alleged gang members. Gardner stated that at this meeting on June 5, 1993, the topic of Discussion was protecting the Gangsters' turf at any cost. Gardner indicated that there was further Discussion about a previous altercation with some guys from Lincoln County and that Steward stated that the tires on any Lincoln County cars would be cut and that the owners of these cars would be "beat down." The State presented further evidence that another meeting had taken place prior to the June 5th meeting and that the same Discussion took place.
All four appellants were tried together. Following a trial on the merits, the jury found all four appellants guilty of count I conspiracy to commit aggravated assault, count II aggravated assault on John Jordan with a knife and a bottle, count III aggravated assault on Tim Wilson with a knife, count IV aggravated assault on Willie Robinson with a bottle, and count V aggravated assault on John Jordan with a gun. Additionally, Jerry Steward was convicted ...