Before Pittman, P.j., McRAE And Roberts, JJ.
The opinion of the court was delivered by: Pittman, Presiding Justice
DONALD COY LAITSCH, JR. v. STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 09/14/95
TRIAL JUDGE: HON. JOHN H. WHITFIELD
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION AFFIRMED - 3/12/98
On September 14, 1995, Donald Coy Laitsch, Jr. was found guilty by a jury in the Circuit Court of the Second Judicial District of Harrison County of the crime of armed robbery. The jury was unable to agree on sentencing Laitsch to life imprisonment. On the same day, the trial Judge sentenced Laitsch to a term of thirty-two years and six months of imprisonment as an habitual offender.
On October 18, 1994, Charles Newsom was working as the store clerk at a Majik Market convenience store in D'Iberville. The Appellant, Laitsch, came into the store, wearing a towel over his face and holding a knife, and told Newsom that this was a hold-up. He told Newsom he wanted the money and, with the knife, motioned Newsom to the cash register. Newsom, who was scared, went to the cash register and opened it. Laitsch directed Newsom to also give him the keys to Newsom's car. Newsom reached into his pocket, where he had a pistol, which he drew and fired at Laitsch, wounding him. Laitsch tried to run, but Newsom blocked him at the door and held him until the police arrived. Newsom positively identified Laitsch as the robber. The robbery was videotaped by the store's security camera, and the videotape was introduced into evidence. Laitsch appeals from the jury verdict in the lower court and assigns the issues for this Court's review:
I. THE TRIAL COURT MATERIALLY ERRED WHEN IT GRANTED THE ORE TENUS MOTION OF THE STATE AND PERMITTED AMENDMENT OF THE INDICTMENT TO PROPERLY CHARGE LAITSCH AS AN HABITUAL CRIMINAL UNDER THE DICTATES OF SECTION 97-19-83, MISS. CODE ANN. OF 1972.
II. THE TRIAL COURT MATERIALLY ERRED WHEN IT OVERRULED DEFENSE MOTIONS FOR A DIRECTED VERDICT AND FOR A PEREMPTORY INSTRUCTION AT THE CLOSE OF ALL EVIDENCE.
III. THE TRIAL COURT MATERIALLY ERRED IN ITS RESPONSE TO THE JURY NOTE INQUIRING AS TO WHETHER OR NOT THERE WAS A DIFFERENCE BETWEEN ...