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COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/01/2011. TRIAL JUDGE: HON. ANDREW K. HOWORTH.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF, GEORGE T. HOLMES.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JOHN R. HENRY, JR.
BEFORE WALLER, C.J., CHANDLER AND KING, JJ. DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, CHANDLER, PIERCE, KING AND COLEMAN, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
WALLER, CHIEF JUSTICE.
¶1. James McCoy appeals his convictions and sentences in the Union County Circuit Court for two counts of armed robbery. McCoy's appellate counsel argues that McCoy's sentences are excessive and the result of vindictiveness, that McCoy was denied a fair trial due to the prosecutor's use of the golden-rule argument, and that McCoy received ineffective assistance of counsel at trial. McCoy has filed a pro se supplemental brief, raising four additional assignments of error. Finding no reversible error, we affirm McCoy's convictions and sentences.
¶2. This case arises out of the March 8, 2006, armed robbery of Michael and Heather Whittington at their home in Union County. During the evening on that date, Michael, Heather, and their two daughters were at their home on County Road 56 in Myrtle, Mississippi, when two men forcibly entered their house. The men entered the master bedroom and demanded that Michael give them all of his money or they would kill his children. Michael attempted to fight the men, but one of them struck him over the head with a pistol, knocking him unconscious. One of the men searched the pockets of Michael's pants and took his cash, credit cards, and wallet. Michael had cashed a check at the
Bank of New Albany earlier that day and had roughly four thousand dollars on his person. The men then entered the master bathroom, held Heather at gunpoint, and took her engagement ring, her wedding band, and another diamond ring from her. After the intruders left the house, Heather called 9-1-1.
¶3. Jimmy Dean Whitten, a criminal investigator with the Union County Sheriff's Department, was one of the first law-enforcement officers to arrive at the Whittington residence after Heather's 9-1-1 call. Investigator Whitten attempted to take statements from Michael and Heather at the scene, but Michael was barely conscious due to his injuries, and Heather was too distraught to give an accurate description of the robbery.
¶4. Mickey Baker, an investigator with the Mississippi Highway Patrol, also was called to investigate the robbery. Investigator Baker was notified that some sheriff's deputies had located a black GMC pickup truck, still running, abandoned a short distance from the Whittingtons' house. The truck had been reported stolen two days earlier in Memphis, Tennessee. Investigator Baker went to search the truck. Inside the truck, Investigator Baker found purple Bank of Albany money wrappers, which were later identified as the ones that had been wrapped around the cash Michael had received at the Bank of New Albany earlier that day. The wrappers contained the teller's initials and the date " March 8, 2006." After searching the truck, Investigator Baker received a call from a resident in the area claiming he had seen the black truck driving in the area earlier in the day, followed by a small light-blue car.
¶5. Investigator Baker visited the Whittingtons in the hospital at around 11:30 p.m. on the night of the robbery. At that time, the Whittingtons were able to give him a description of the robbers. Michael described one of the men as a medium-build, dark-skinned, African-American male wearing a dark jacket and some kind of head covering, either a hood or a hat. This man was carrying a revolver. He believed the other man may have been white, but stated that he never got a good look at him. Heather described one of the robbers as a dark-skinned African-American male with a " round chubby face" and rough complexion and at least one gold tooth. She stated that this man was wearing a camouflage hooded jacket. Heather described the other robber as a light-skinned African-American or white male with smoother complexion. This man was wearing a black or brown jacket and either a hood or a hat. Heather estimated that both men were between 5' 10" and six feet tall and weighed between 180 and 200 pounds.
¶6. Through further investigation, the Union County Sheriff's Department determined that the robbers were likely from the Memphis area. Several days prior to the robbery, Michael had called the police to report a black Volvo with Memphis tags driving past his house. The Whittingtons' credit cards also had been used in the Memphis area after the robbery, prior to being cancelled. Michael owned a scrap-metal business and dealt primarily in cash, so Investigator Baker asked him to notify the sheriff's department if he could think of anyone from the Memphis area with whom he recently had done business.
¶7. On April 4, 2006, Michael called the Union County Sheriff's Department and
stated that a man from Memphis named Steven Ryan Davis had just come to his shop to sell some scrap metal. Michael had done business with Davis on numerous occasions and always paid Davis in cash. Officers with the Union County Sheriff's Department located Davis and stopped his vehicle. Davis was driving his father's truck with a suspended license and no proof of insurance, so he was taken into custody. When questioned about the robbery, Davis denied any involvement in or knowledge of the crime. However, Davis did admit that he owned a light blue Plymouth Colt, which matched the description of the car seen near the Whittingtons' house on the night of the robbery. Davis posted bond for his traffic offenses and was released from police custody the same day.
¶8. Investigator Baker later questioned Davis a second time while he was in custody in Memphis. At this interview, Davis admitted to his involvement in the robbery and provided Baker with information on two men nicknamed " Alligator" and " Baby J," the other men involved in the robbery.
¶9. " Alligator," also known as Allery Hopson, was arrested after the police recovered Heather's rings from two pawn shops in Memphis and determined that he had pawned them. Hopson owned a black Volvo with Memphis tags matching the license-plate number recorded by Michael several days prior to the robbery. Investigator Baker described Hopson as a light-skinned African American with a smooth complexion, while he described McCoy as a dark-skinned African American with a round face and gold teeth.
¶10. " Baby J," also known as James McCoy, subsequently contacted the Union County Sheriff's Department and denied any involvement in the crime. After being told that the police were checking surveillance video from several places in Memphis where the Whittingtons' credit cards had been used, McCoy contacted the sheriff's department again and told them that Hopson and Davis had implicated him in the robbery in an attempt to keep Davis's family from finding out about his involvement in the crime. He stated that he had loaned Hopson his phone on the night of the robbery and had met up with Hopson and Davis at a gas station in Memphis after the robbery. McCoy subsequently was arrested for the robbery, as well.
¶11. McCoy, Hopson, and Davis were indicted for two counts of robbery using a deadly weapon in violation of Section 97-3-79 of the Mississippi Code. On November 14, 2007, McCoy pleaded guilty to both counts. The trial court sentenced McCoy to thirty years' imprisonment for each count, with five years suspended from each sentence and five years of post-release supervision. The court ordered McCoy's sentences to run concurrently.
¶12. On February 9, 2009, McCoy filed a petition for post-conviction relief in the trial court, claiming that he had received incorrect information regarding his eligibility for parole. The trial court denied McCoy's petition, and his appeal was assigned to the Court of Appeals. See McCoy v. State, 47 So.3d 1197 (Miss. 2010). The Court of Appeals found merit in McCoy's claims and remanded for an evidentiary hearing to determine whether McCoy had relied on the incorrect information in entering his plea, as well as whether his attorney was ineffective in providing erroneous information. Id. at 1198-99. On remand, the trial court determined that McCoy's convictions and sentences should be set aside. McCoy subsequently entered pleas of not guilty to the offenses charged.
¶13. McCoy was tried before a jury in the Union County Circuit Court on November 15, 2011. At trial, Davis testified that he had done business with Michael on several occasions, knew where he lived, and knew he dealt in large quantities of cash. Davis stated that he owed a large drug debt to Hopson prior to the robbery. Hopson asked Davis if he knew someone he could rob to pay back the debt, and Davis gave him Michael's name. Prior to the robbery, Davis and Hopson drove to the Whittingtons' house in Hopson's black Volvo to show Hopson where Michael lived. On the night of the robbery, McCoy drove Davis's car to the Whittingtons' house, while Davis rode with Hopson in a black truck. Davis stated that he had met McCoy before but knew him only as " Baby J" at the time. Davis noticed that the steering column on Hopson's truck was broken, indicating that it had been stolen. Before arriving at the Whittingtons' house, Davis switched vehicles with McCoy, and Hopson and McCoy drove off while Davis waited in his car. He stated that he waited behind because he did not think he could have gone into the Whittingtons' house without Michael recognizing him. After about five minutes, Hopson and McCoy returned in the black truck, and Davis followed them away from the Whittingtons' house. A few miles later, Hopson left the truck on the side of the road, and he and McCoy rode with Davis back to Memphis. On the way back to Memphis, Davis dropped McCoy off at a gas station, where his car was waiting.
¶14. At the conclusion of the trial, the jury entered a verdict finding McCoy guilty of both counts of armed robbery. The jury could not agree to fix a life sentence, so the trial court sentenced McCoy to thirty-five years' imprisonment for each charge, with five years suspended from each sentence and five years ...