OF JUDGMENT: 08/13/2013.
FROM WHICH APPEALED: WALTHALL COUNTY CIRCUIT COURT. TRIAL
JUDGE: HON. DAVID H. STRONG JR. TRIAL COURT DISPOSITION:
DENIED MOTION FOR POST-CONVICTION RELIEF.
APPELLANT: WILL MCINTOSH, DAVID I. MEGDELL.
APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.
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
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
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:
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
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
Id. at 1265-66 (¶ 10).
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.
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 ...