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Newell v. State

Court of Appeals of Mississippi

April 28, 2015

DERRICK NEWELL, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 08/13/2013.

          COURT FROM WHICH APPEALED: WALTHALL COUNTY CIRCUIT COURT. TRIAL JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.

         FOR APPELLANT: WILL MCINTOSH, DAVID I. MEGDELL.

         FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.

         BEFORE LEE, C.J., ISHEE AND FAIR, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

          OPINION

Page 702

         ISHEE, J.

         [¶1] Derrick Newell was convicted in the Walthall County Circuit Court in 1998 for conspiracy to commit armed robbery. Immediately prior to his trial, Newell had been acquitted of the crimes of armed robbery, aiding and abetting, and accessory after the fact. Following his conviction, he was subsequently sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of early release. He filed a motion for post-conviction relief (PCR) in 1999 which was denied by the circuit court. We affirmed the circuit court's judgment. Newell has now filed another PCR motion, which was also denied by the circuit court. Aggrieved, he appeals. On appeal, Newell argues that his acquittal for the crimes involved in the actual robbery barred the State from indicting and prosecuting him for conspiracy to commit armed robbery under a double-jeopardy theory. Finding no error, we affirm.

         STATEMENT OF FACTS

         [¶2] This is not our first review of Newell's case. In 1999, we analyzed a motion for post-conviction relief in which Newell contested whether his right to due process was violated, whether hearsay was admitted, whether the verdict was against the overwhelming weight and sufficiency of the evidence, and whether he was improperly sentenced as a habitual offender. Newell v. State, 754 So.2d 1261, 1263 (¶ 1) (Miss. Ct.App. 1999). There, we explained the events leading up to the appeal as follows:

Page 703

In September 1997, David Cooley was asleep in his home when two men clothed in black and wearing masks entered his bedroom and demanded money. When Cooley did not produce the money, one man put a gun in Cooley's mouth, and the other man put a gun to his chest [and] asked him to give up the money. Once the men completed the robbery, they fled from Cooley's house. The State presented evidence that Newell, Carlos Craft, and Temus Magee had formed a conspiracy to commit armed robbery against Cooley. The testimony showed that although Newell waited in the car while Craft and Magee committed the robbery, Newell knew that the robbery was being committed; he drove Craft and Magee away from the scene of the crime after the robbery had been committed, and he was given some of the proceeds from the crime. The defense presented testimony that Newell was not part of the armed robbery.

Id. at 1263 (¶ 2). Specifically, we noted:

During the State's case-in-chief, Craft testified that he and Magee had discussed the robbery, and although Newell kept repeating that he wanted nothing to do with the robbery, Newell drove the car to Cooley's house, waited outside while Craft and Magee committed the robbery, and then drove the car from Cooley's house after the robbery was committed. Craft testified that he was not sure of the amount but he thought that Newell got a cut of the money. Magee testified that Newell participated in the conversation about the armed robbery. He further stated that Newell would have participated in the actual crime, but did not only because Magee would not let him kill Cooley. Magee also testified that the proceeds were split evenly between all three men. Another witness for the State, Traneese Lee, testified that Magee, Craft, and Newell were all three present in her house having a conversation about robbing Cooley. She further testified that when the men left, Newell had possession of a gun.

Id. at 1265-66 (¶ 10).

         [¶3] After considering the witnesses' testimony, the jury returned a verdict finding Newell guilty of conspiracy to commit armed robbery. Newell was deemed a habitual offender. He was then sentenced to life in prison without the possibility of early release or parole.

         [¶4] Prior to Newell's trial for conspiracy to commit armed robbery, he was tried, along with Craft, for the crimes of armed robbery, aiding and abetting, and accessory after the fact. During that trial, several statements were made in front of the jury referencing conspiracy. Specifically, after Newell's counsel raised an objection to the admissibility of a statement made by Craft as a statement against Newell's interest and as hearsay, the circuit court judge stated the following:

[T]he objection has been made that it is hearsay against . . . Newell. The State's [a]ttorney has stated that [the statement involves] . . . an act of [a] coconspirator. I think the statement has met the requirements of the [Mississippi] Rules of Evidence, and ...

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