Before Bridges, C.j., Hinkebein, And King, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: April 21, 1997
TRIAL JUDGE: HON. RICHARD WAYNE MCKENZIE
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: ARMED ROBBERY: SENTENCED TO A TERM OF THIRTY-FIVE (35) YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
¶1. Legrane Lenox was tried by a jury and convicted in the Circuit Court of Forrest County for the crime of armed robbery. The Judge sentenced Lenox to thirty-five years in the Mississippi Department of Corrections. Lenox assigns five errors:
"I. The trial court erred in failing to sustain Lenox's motion for a mistrial, following objection to a question asked by the State as to Lenox's alleged "gang membership in California."
"II. The trial court erred in allowing certain testimony before the jury, over objection, as to Lenox's prior conviction on second degree robbery with a firearm in the State of California to the extreme prejudice of Lenox.
"III. The trial court erred in granting, over objection, Jury Instructions S-2 and S-3, said instructions being in conflict with each other and S-3 not being found in the indictment.
"IV. The jury verdict is against the overwhelming weight of evidence and is contrary to the law in this state.
"V. The sentence is unusually harsh and constitutes cruel and inhuman treatment within the meaning of the federal and state constitutions and represents a violation of Lenox's constitutional rights."
¶2. Finding no error, we affirm.
¶3. Around 9:50 p.m. on March 27, 1995, Legrane Lenox, Jr. and Victor Denard Jackson entered the Jitney Jungle No. 34 located at 2800 Lincoln Road in Hattiesburg, robbing the store of $6,523, twenty-five books of twenty postage stamps, and two booklets of Jitney savings certificates. Lenox and Jackson were arrested on April 11, 1995, and indicted for armed robbery on May 25, 1995.
¶4. The following sequence of events were developed at trial:
"Two Jitney Jungle customers placed Lenox at the store about 9:30 p.m. on March 27. Jimmy Henderson was entering the parking lot to shop at the Jitney Jungle No. 34, when he noticed Lenox suspiciously peering around the corner of the store. Later while waiting in the cashier line, Henderson noticed a red car with tinted windows slowly pass the front window several times. The passenger window was partially open and Henderson could see part of the passenger's face. When he left the store, Henderson noted the red car had a Marion County license plate."
¶5. Camille Soulier had finished her shopping and was conversing with store employees. Soulier noticed two black men wearing bulky clothing entering the store, one behind the other, walking so closely they were almost touching. Soulier positively identified the first man as Legrane Lenox, Jr. The shorter man following Lenox was later identified as Victor Denard Jackson. Soulier saw Lenox and Jackson walk toward a magazine rack located behind the last checkout counter.
¶6. The cashier, Jeff Bivins, saw Jackson and Lenox for the first time when they were approximately five to ten feet away from him. The men were clothed in long-sleeved dark pullovers, dark loose fitting pants, and skull caps. Bandanas partially covered the face area. Only a small area of dark skin could be seen between the caps and bandanas.
¶7. As the men approached Bivins, Jackson raised a large shiny handgun and instructed Bivins to get down. Bivins saw Lenox jump over the customer service counter into the front office.
¶8. The grocery manager, Gary Brown, was talking on the telephone in the front office when Lenox came over the counter into the office. Lenox grabbed the telephone from Brown, hung it up, and demanded, "Give me the money." Brown stepped away from the safe. Lenox went to the unlocked safe, opened the door, and began raking the bundled money into a dark nylon bag with both hands. Lenox said, "Where's the rest of it?" Brown answered, "There is no more." Lenox responded, "Don't lie to me or I'll kill you." Brown repeated, "There is no more."
¶9. Lenox returned his attention to the safe, grabbed the cash box containing the money not bundled, and attempted to shove the box into the bag. When the cash box would not fit in the bag, Lenox left with the dark bag and the cash box tucked under his arm. Jackson and Lenox ran out the front door of the store.
¶10. Brown testified he saw Jackson pointing a shiny large caliber revolver in the direction of the ...