Before Thomas, P.j., Diaz, And Southwick, JJ.
The opinion of the court was delivered by: Diaz, J., For The Court:
DATE OF JUDGMENT: 02/21/97
TRIAL JUDGE: HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: G. GILMORE MARTIN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CT I CAPITAL MURDER SENTENCED TO LIFE IMPRISONMENT WITH ELIGIBILITY FOR PAROLE; CT II ARMED ROBBERY SENTENCED TO 20 YRS WITH 10 TO SERVE & 10 SUSPEND 5 YRS PROBATION; CT III CAPITAL MURDER LIFE IN MDOC; CT IV ARMED ROBBERY SENTENCED TO 18 YRS WITH 8 TO SERVE & 10 SUSPEND 5 YRS PROBATION ; CT V CAPITAL MURDER SENTENCED TO LIFE IMPRISONMENT IN MDOC
¶1. Shawnderic Horton appeals the decision of the Warren County Circuit Court convicting him of three counts of capital murder and two counts of armed robbery. Horton raises the following issues in his appeal: (1) whether the evidence presented at trial was sufficient to establish the crimes of capital murder and armed robbery and whether the jury's verdict was against the overwhelming weight of the evidence, (2) whether the circuit court erred in failing to provide him with a speedy trial and denying his motion to dismiss, (3) whether the circuit court erred in admitting the gun into evidence and whether the probative value outweighed the prejudice to the jury, and (4) whether the circuit court erred in dismissing a juror after being duly chosen and seated. Finding no error, we affirm the ruling of the circuit court.
¶2. In the fall of 1994, Michael Garrison, Clifton G. Brown, and Dorian D. Martin were students at Hinds Community College in Utica. At that time, Mr. Brown owned a Mickey Mouse watch, and Mr. Martin owned a gold- nugget Seiko watch. On October 15 and 16, 1994, the Vicksburg police became aware that all three students were missing and that the three had left the Utica campus together in Mr. Martin's car on October 10, 1994. On October 17, 1994, Mr. Martin's car was found in a casino parking lot with the door ajar and the keys in the ignition. When the officers dusted the car for fingerprints, they discovered that the car had been wiped clean of prints. Consequently, no fingerprints were found anywhere in the interior of the car.
¶3. During the course of the investigation, Horton's name came up as a possible associate of Mr. Martin's. Horton was interviewed by the police on or about October 20, 1994. His statement was admitted into evidence at his subsequent trial. In that statement, Horton told the police that he went to Phoenix, Arizona by bus on October 9, 1994. Furthermore, he stated that he did not know anything about the disappearance of the three students. The police checked Horton's alibi and discovered that he and Dennis J. Berry purchased bus tickets at 4:30 p.m. on October 10, 1994, and departed for Phoenix around 7:00 p.m. that night. When the police confronted Horton with this information, he changed his story.
¶4. On October 21, 1994, Horton told the police he had some information about what happened to the three students, and then he took them to where the bodies were located. The next day, Horton gave a second statement to the police which was video taped and admitted into evidence at his trial. In this statement, Horton described the events leading up to the death of the three students. Additionally, the police were able to recover two watches which Horton was able to identify as taken from the victims.
¶5. In December 1994, Horton related the following story in a video taped interview. Mr. Berry came to Vicksburg from Phoenix, Arizona, prior to October 10, 1994, to attend the funeral of Dominique Givens, who was Horton's cousin who died in Arizona. Dennis J. Berry observed Horton talking with two people, one of whom was the victim Mr. Martin. Mr. Berry commented on their cars and inquired about how much money the two had and who they were. Horton stated that they carried money sometimes, and then Berry said that he was going to rob them. Berry asked Horton to obtain a gun for him which he did through several of his friends. Berry then traded a gold chain for the gun.
¶6. Mr. Martin, Mr. Brown, and Mr. Garrison were supposed to come to Horton's house to retrieve money that Horton owed Mr. Martin. They arrived Monday and came inside Horton's house. As Horton was about to pay Mr. Martin, Berry pulled a gun and robbed them of the two watches, some money, and other items. Berry directed Horton to tape Mr. Brown and Mr. Garrison with duct tape. Then, Berry decided the students should be taken out to the country somewhere. Horton stated that he drove Mr. Martin's car and found a secluded place in the country. He further stated that Berry took the three men out of the car, pushed them into the bushes, then decided to make them enter an abandoned house where he shot and killed all three of them. The cartridge casings, cartridges, and projectiles were later found in the house. Thereafter, Horton drove Mr. Martin's car to the casino parking lot, wiped it down to remove fingerprints, and left it. Throughout his statement, Horton expressed that he tried to talk Berry out of shooting the three students.
¶7. Once Berry and Horton were back in Vicksburg, they bought their bus tickets, bought and consumed beer and liquor, went home and packed, and returned to bus station to wait for the bus. Horton stated that he made Berry get rid of the gun before he agreed to board the bus with him. Berry gave the gun to Mike Williams who eventually sold it to Timothy Harris. Thereafter, Berry and Horton boarded the bus and went to Arizona. Mr. Williams was later requested by the police department to retrieve the gun, which he did.
¶8. When Horton returned from Arizona, he had with him one of the watches and a jacket stolen during the robbery. After he found out that the police were looking for him, he deposited the jacket and watch with a neighbor for safekeeping, and then he went down to the police station. Berry was later arrested in Arizona
¶9. On May 3, 1995, Horton was indicted jointly with Berry in the Circuit Court of Warren County on the charges of (1) capital murder (kidnapping) of Clifton G. Brown, (2) the armed robbery of Clifton G. Brown, (3) the capital murder (kidnapping) of Dorian D. Martin, (4) the armed robbery of Dorian D. Martin, and (5) the capital murder (kidnapping) of Michael Garrison. All of these crimes were alleged to have been committed on or about October 10, 1994.
¶10. Horton filed a motion to dismiss for want of a speedy trial, alleging both a violation of his constitutional right to a speedy trial and a violation of Miss. Code Ann. § 99-17-1. Horton was arrested on October 21 or 22, 1994. He was indicted on May 3, 1995, and he was arraigned on May 5, 1995. Horton's first attorney represented him from April 25, 1995 until June 13, 1995 when he withdrew because of a conflict of interest. The initial setting for the joint trial of Horton and Berry was July 17, 1995; however, a continuance was granted on a motion by Berry. Instead, another murder case was tried during that week. The trial court found that both the attorney's withdrawal and the other murder trial constituted good cause for the delay. Thereafter, Berry's attorney withdrew on October 25, 1995, and a continuance was granted on a motion by Berry on that date.
¶11. Severance of the defendants was granted on March 13, 1996, and the trial court found that the motion was made by both defendants. On April 12, 1996 the State filed a motion for a special setting of this case for trial outside of term, and by agreement on April 22, 1996, the circuit court set the case for trial on September 30, 1996.
¶12. On August 20, 1996, the circuit court an on ore tenus motion of both parties continued the date for filing pre-trial motions in the case from August 19, 1996 to September 6, 1996. On September 6, 1996, the defense filed a motion for continuance from the September 30th trial date until November of December of 1996, on the basis of unpreparedness for trial and a scheduling conflict stemming from the parties' engagement in plea negotiations. On ...