JUSTIN JAMES A/K/A " HURRICANE" A/K/A JUSTIN CURTIS MARTELL JAMES AND DETRIUS ROBERSON A/K/A " LIL D", APPELLANTS
STATE OF MISSISSIPPI, APPELLEE
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/21/2010. TRIAL JUDGE: HON. C.E. MORGAN III. TRIAL COURT DISPOSITION: JAMES: CONVICTED OF COUNT I, ARMED ROBBERY; COUNT II, MANSLAUGHTER; COUNTS III AND IV, AGGRAVATED ASSAULT; AND COUNT V, CONSPIRACY TO COMMIT ARMED ROBBERY; AND SENTENCED TO TWENTY YEARS EACH ON COUNTS I, II, III, AND IV, AND FIVE YEARS ON COUNT V; WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II, III, AND IV; WITH THE SENTENCE IN COUNT III TO RUN CONCURRENTLY WITH THE SENTENCE IN COUNT II; WITH THE SENTENCE IN COUNT IV TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II AND III; AND WITH THE SENTENCE IN COUNT V TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, II, III, AND IV; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ROBERSON: CONVICTED OF COUNT I, ARMED ROBBERY; COUNT II, MANSLAUGHTER; COUNTS III AND IV, AGGRAVATED ASSAULT; AND COUNT V, CONSPIRACY TO COMMIT ARMED ROBBERY; AND SENTENCED TO TWENTY YEARS EACH ON COUNTS I, II, III, AND IV, AND FIVE YEARS ON COUNT V; WITH THE SENTENCE IN COUNT I TO RUN CONSECUTIVELY TO THE SENTENCES IN COUNTS II, III, AND IV; WITH THE SENTENCE IN COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT II; WITH THE SENTENCE IN COUNT IV TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS II AND III; AND WITH THE SENTENCE IN COUNT V TO RUN CONCURRENTLY WITH THE SENTENCES IN COUNTS I, II, III, AND IV; ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANTS: IMHOTEP ALKEBU-LAN, CHOKWE LUMUMBA.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND.
BEFORE IRVING, P.J., CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. On March 1, 2010, an Attala County grand jury indicted Justin James (James) and Detrius Roberson (Roberson) (collectively Defendants) on the following charges: Count I, armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2006); Count II, manslaughter in violation of Mississippi Code Annotated section 97-3-47 (Rev. 2006); Count III, aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2006); Count IV, aggravated assault in violation of section 97-3-7(2)(a); and Count V, conspiracy to commit armed robbery in violation of Mississippi Code Annotated section 97-1-1 (Supp. 2013). Defendants were both convicted on all five counts. On appeal, Defendants raise the following issues: (1) whether the trial court erred by refusing Roberson's jury instruction as to the weight of the evidence; (2) whether the trial court erred by refusing Defendants' jury instruction as to accomplice testimony; (3) whether the trial court erred by refusing James's jury instruction as to his theory of the case; (4) whether the trial court's form of the verdict was erroneously worded; and (5) whether juror misconduct denied Defendants a fair and impartial trial. Finding no error, we affirm.
¶2. On November 14, 2008, a robbery occurred at the Hill Brothers Logging Shop (Logging Shop) in Kosciusko, Mississippi, where several people had gathered to play cards, drink beer, and socialize. Upon hearing a knock at the door around 11 p.m., Jimmy Cook (Cook) went to the door and asked who was outside, but no one answered. Around the same time, Keith Holt (Holt) parked his truck outside the Logging Shop and witnessed four masked men with guns run away from the Logging Shop's front door. Holt saw the men hide behind a nearby truck.
¶3. Ricky Hill (Ricky) and Jim Hill (Jim) exited the Logging Shop to see who was outside. Holt relayed what he had seen to Ricky, and Ricky walked toward the truck where the men had hidden. As Ricky made his way to the truck, one of the masked men pointed a gun at Ricky's face and instructed him to drop to his knees and crawl back into the Logging Shop. Another masked man chased Jim into the Logging Shop. Several shots were fired into the Logging Shop, and the masked men demanded money from the people inside the Logging Shop. The gunfire resulted in injuries to Cook and Donnie Elmore (Elmore) and in the death of Jessie Earl Hill (Jessie). During the robbery, one robber's mask slipped, revealing the man's face. Ricky identified the man as Barry Love (Love).
¶4. Following his arrest, Love admitted his involvement in the robbery and identified James, Roberson, and Robert Landfair (Landfair) as his fellow conspirators. The police arrested all three men, and James and Roberson, Defendants in this appeal, were jointly indicted and tried. Prior to Defendants' trial, Landfair pleaded guilty. Two months after Defendants' trial, Love was tried and convicted.
¶5. On March 1, 2010, a grand jury indicted Defendants on five counts: Count I, armed robbery in violation of section 97-3-79; Count II, manslaughter in violation of section 97-3-47; Count III, aggravated assault in violation of section 97-3-7(2)(a); Count IV, aggravated assault in violation of section 97-3-7(2)(a); and Count V, conspiracy to commit armed robbery in violation of section 97-1-1.
¶6. Defendants' trial began on September 20, 2010. In addition to the testimony of several eyewitnesses who were at the Logging Shop on the night of the robbery,
the State called Love to testify against Defendants. Love testified that Roberson called him the day of the shooting to enlist him in a plan to get money back from a person with whom Roberson had previously had an altercation. Roberson told Love that the person would be at the Logging Shop on the night in question. Around 9:30 p.m. or 10 p.m. that night, Roberson, James, and Landfair picked Love up in a white Cadillac driven by James, and the men proceeded to the Logging Shop.
¶7. According to Love's testimony, James parked the white Cadillac on a dirt road near the Logging Shop, and the four men concealed their faces and grabbed firearms from the car trunk. The men then made their way to the Logging Shop, and James called Jimmy Fletcher (Fletcher), who was inside the Logging Shop. Love testified that James asked Fletcher whether any guns were inside the Logging Shop, and Fletcher responded that no guns were inside the building. Roberson then knocked on the locked front door. A voice from within the Logging Shop asked who was outside, but none of the men answered. At this point Holt pulled into the parking lot, and the four men hid.
¶8. Love testified that James was the robber who pointed his gun at Ricky's head and forced Ricky to crawl back into the Logging Shop. Love further testified that James, Roberson, and Landfair all fired shots into the building but that he (Love) neither fired shots nor stepped fully through the building's doorway. Following the shooting, Love claimed that Landfair fled on foot while the other three men made their way back to the Cadillac. When Love returned home, his mother informed him that the police were looking for him. Love called the police and then went to the sheriff's department the next morning. He provided the police with a statement identifying himself, James, Roberson, and Landfair as the men involved in the robbery.
¶9. During the trial, Defendants' attorneys impeached Love on the following points: (1) which gun Love carried with him to the Logging Shop; (2) where Love stood during the shooting; and (3) whether Love fired any shots into the building during the robbery. In a prior statement signed by Love, he stated that he had a 9-millimeter handgun with him during the robbery. A second signed statement to police said that Love carried a 12-gauge shotgun with him and fired into the Logging Shop three times. At trial, however, Love testified that he chose a .40-caliber handgun from the weapons in the car trunk and that he never fired shots into the Logging Shop.
¶10. Other witness testimony differed from Love's as to which of the four shooters actually stood in the door and fired the first shots. According to Love's testimony at trial, he never fired shots into the building and, at most, had one foot inside the building's doorway. Ricky testified, however, that as he crawled back to the Logging Shop, he saw Love step into the building and fire three or four shots inside. Ricky further testified that Love appeared to be holding a shotgun or a rifle.
¶11. Despite the discrepancies between Love's testimony at trial and his prior statements, as well as between Love's testimony and that of other witnesses, the State argues in its brief that Love consistently maintained that he, James, Roberson, and Landfair committed the robbery. The State further argues that other evidence presented at trial substantially corroborated Love's testimony. Both Holt and Regina Hill Coates (Regina), a daughter of the deceased victim, Jessie, testified that they saw a white Cadillac parked near the Logging Shop before the shooting. Regina stated that she saw a white Cadillac
parked on a nearby road as she drove to the Logging Shop the night of the robbery and that she saw four heads in the parked car. Police also recovered an unspent 9-millimeter round when they searched James's car, a white Cadillac. In both his signed statements to police and his trial testimony, Love consistently maintained that Roberson carried a Tec-9 handgun the night of the robbery. Although no 9-millimeter rounds were found at the Logging Shop, the State asserts that the discovery of the unspent round in James's car " corroborates Love's assertion that Roberson was armed with a Tec-9, which uses 9[-millimeter] ammunition."
¶12. The State also argues that the subpoenaed phone records of the four men supports Love's testimony. According to Love's testimony, Roberson called him when he, James, and Landfair arrived outside Love's house to pick Love up. The State contends that this was likely the phone call made from Roberson's phone to Love's phone at 10:17 p.m. The State also argues that a call made from James's phone at 10:52 p.m., about ten minutes before the shooting, was likely the call made to Fletcher to see whether anyone inside the Logging Shop had a gun.
¶13. Love also testified that Landfair escaped on foot after the shooting while the other three men returned to the car. The subpoenaed phone records reflect that between 11:02 p.m. and 12:22 a.m. Roberson made fourteen calls to Landfair's cell phone. Love further testified that he and James dropped Roberson off so that Roberson could get his mother's vehicle. Then Love and James dropped off James's vehicle, set out on foot, and met Roberson in front of a club. The State asserts that this part of Love's testimony is also corroborated by the phone records, which show that James and Roberson called each other five times between 12:22 a.m. and 12:42 a.m.
¶14. At Defendants' trial, Roberson and two of his friends testified that Roberson was at a bar when the shooting occurred. While on the witness stand, Roberson further claimed that he did not have his cell phone the night of the shooting. Despite the phone records showing that he called Love's phone seven times before the shooting, Roberson also testified that he and Love had a bad history and that it would have been unusual for him to contact Love.
¶15. Another witness at Defendants' trial, Keshia Windom (Windom), testified and provided an alibi for James. James is the father of one of Windom's children, who was three months old at the time of the shooting. Windom testified that James came to see his three-month-old baby at 10 p.m. the night of the shooting and stayed until 11:30 p.m. However, in a statement made by Love to the police, which Defendants offered into evidence, Love said that James called Windom before the shooting and " said if anything went down for her to say she was with him."
¶16. After hearing the testimony and considering the evidence presented, a jury found James and Roberson guilty of all five counts charged in their indictment. The trial judge ordered James to serve a term of twenty years in the custody of the Mississippi Department of Corrections (MDOC) for each of the first four counts charged in his indictment and to serve a term of five years in the custody of MDOC for Count V; with the sentence in Count I to run consecutively to the sentences in Counts II, III, and IV; with the sentence in Count III to run concurrently with the sentence in Count II; with the sentence in Count IV to run consecutively to the sentences in Counts II and III; and with the
sentence in Count V to run concurrently with the sentences in Counts I, II, III, and IV. The trial judge ordered Roberson to serve a term of twenty years in the custody of MDOC for each of the first four counts charged in his indictment and to serve a term of five years in the custody of MDOC for Count V; with the sentence in Count I to run consecutively to the sentences in Counts II, III, and IV; with the sentence in Count III to run consecutively to the sentence in Count II; with the sentence in Count IV to run concurrently with the sentences in Counts II and III; and with the sentence in Count V to run concurrently with the sentences in Counts I, II, III, and IV.
¶17. On October 29, 2010, James filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial. On November 3, 2010, Roberson filed an amended motion for a JNOV or, in the alternative, a motion for a new trial, setting forth allegations that mirrored those in James's motion. In their motions, Defendants alleged that the trial court denied their right to a fair trial by not removing Hattie Mae McLaurin (McLaurin) and other jurors who failed to acknowledge during voir dire that they knew the family of the deceased victim. Defendants asserted that their right to a fair trial was also denied by the State's use of perjured testimony. In addition, Defendants claimed that the trial court erred by giving the State's defective accomplice jury instruction and that the State failed to prove its case beyond a reasonable doubt.
¶18. The trial judge entered an order on January 10, 2011, denying Defendants' motions. Defendants then filed a motion on January 28, 2011, for a rehearing and reconsideration of their motion for a JNOV or, in the alternative, a new trial. In the alternative, they filed a second motion for a new trial. Defendants based their motion on newly discovered evidence. An attached affidavit signed by Erica Barnes (Barnes), a juror in the case, stated that Barnes had worked at Wal-Mart with two daughters of Jessie, the victim killed in the armed robbery. The affidavit further stated that, upon recognizing the victim's daughters, Barnes was unable to remain fair and impartial during the trial. Barnes's affidavit also ...