DATE OF JUDGMENT: 08/08/2013.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Following his trial in the Lauderdale County Circuit Court, a jury convicted Quincy Fox of two counts of kidnapping, one count of armed carjacking, and one count of armed robbery. Fox was sentenced, as an habitual offender, to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) for each count, with his sentences to run concurrently to one another. Fox initially filed a motion for a new trial, which the circuit court denied. Fox then filed a notice of appeal. However, over two weeks after filing a notice of appeal, Fox filed a second motion for a new trial with the circuit court. In it, he alleged that there was newly discovered evidence that Jessie Jones, a witness for the State and accomplice to the crimes, received a more lenient sentence than what he testified to at trial. The circuit court denied Fox's second motion for a new trial, and Fox filed the present appeal. He asks this Court to determine whether the circuit court erred in denying his second motion for a new trial and whether the circuit court erred in allowing the State to introduce evidence of Fox's other crimes. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On August 2, 2012, Fox and his codefendant, Jones, were indicted jointly for the armed carjacking of Robin Rosenbaum, the kidnapping of Rosenbaum and Amanda Davis, and the armed robbery of Davis. Fox and Jones were also individually indicted, in counts five and six, for felon in possession of a firearm. Fox was also indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007), which made him eligible for a life sentence if he was convicted of any of the charges in his indictment. Fox elected to go to trial, and his trial was held in the circuit court on May 28-30, 2013. At the beginning of the first day of his trial, the State moved for a nolle prosequi on the count of felon in possession of a firearm, and the circuit court entered an order granting the motion. Also on the same day, the circuit court entered an agreed order granting Fox's motion in limine to exclude any reference, in the jury's presence, to Fox's prior convictions or pending felony charges.
¶3. The State called Davis to testify first. According to her testimony, she and Rosenbaum were nurses who were teaching a class for the Rush Hospital Education Department on the night of January 10, 2012. As they were leaving the facility after 11 p.m., they stood near Rosenbaum's vehicle talking. Davis testified " [t]he next thing that happened was somebody came behind me, and there was a gun in . . . [Rosenbaum's] face." Davis explained that there were two men, one taller than the other, wearing blue jeans and hoodies, with the taller one holding the gun. Davis never saw any of the men's facial features besides their eyes, because the hoodies covered their faces. Davis and Rosenbaum gave the men their purses and keys, because they wanted to avoid getting in the car with the men. Davis and Rosenbaum did not have any money in their purses, so Davis told the men she would get money from the ATM if they
would let them leave. Davis and Rosenbaum got in Rosenbaum's car with the men after the gun was again pointed in their faces. Davis said that she was afraid the men would shoot them if they did not get in the vehicle. The men, with the shorter man driving Rosenbaum's car, drove to a bank where Davis handed the taller man, who was sitting with her in the back seat, her debit card and her PIN number. The taller man then handed the other man the gun, while he got out of the car to use the ATM. He was unsuccessful in withdrawing money, so he went back to get Davis out of the car too. Davis was able to withdraw $500, which was the maximum she could withdraw from the ATM per day. The bank's surveillance video captured images as the withdrawal occurred. Davis further testified that " [t]he guy in the back seat with me was the one running the show." After Davis withdrew the money, the two men took the money, and they stood outside of the car talking to one another while Davis and Rosenbaum were in the car. Davis said, " I looked down. [Rosenbaum] said something to me, and when I looked back, they were gone." In addition to the $500, the men also took Davis's cell phone and keys. Davis and Rosenbaum walked to a nearby gas station, where they were able to use another person's cell phone to call the police.
¶4. Rosenbaum also testified and corroborated much of Davis's testimony. She added that when the women refused to get into the car with the men, the taller man with the gun, " racked that gun and put it in my face and told me B__, get in the car or I'll shoot you." And it was only at that point that the women agreed to get into the car. Additionally, both Rosenbaum and Davis identified a gun as one that looked like the one the taller man was holding at the time of crimes. Neither could definitively say it was the same. Rosenbaum also testified that after Davis gave them $500 from the ATM, the men talked and then told the women they could leave, which they did because the men still had the keys to the car. According to her testimony, both men were wearing ski masks with the hoodies pulled tight around their faces, and she was unable to see their faces. The taller man with the gun was wearing a dark-colored ski mask, and the other man was wearing a tan-colored ski mask.
¶5. Jones testified next for the State. According to his testimony, he and Fox were in the Family Dollar store parking lot a week later, on the evening of January 17, 2012, when Officer Patrick Gale of the Meridian Police Department, who testified to these events later at trial, pulled in the parking lot to talk with them. Officer Gale testified that when he pulled in to the parking lot, one of the men, later identified as Fox, dropped something to the ground. Officer Gale frisked Jones and Fox, and he discovered a gun in Fox's coat pocket. At that point, both Jones and Fox ran from Officer Gale. Jones was apprehended, but Fox managed to escape. Fox was later apprehended by officers at an address given to them by Jones. Fox was the current boyfriend of Jones's girlfriend's daughter, whom Jones often referred to as his stepdaughter. Officers also questioned Jones about the incident that occurred on January 10, 2012, and Jones admitted that he and Fox were the ones responsible for the crimes. His testimony regarding the events that night were that he and Fox were walking when Fox saw Davis and Rosenbaum. Fox told ...