April 28, 2015
DERRICK NEWELL, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
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 I'm going to allow
the statement to be presented to the [jury].
counsel again objected, and the circuit court judge
reiterated the following: " I think that under the Rules
of Evidence that the statement of a co-conspirator should be
allowed; although a conspiracy is not charged, I think the
fact that [Craft and Newell] were jointly indicted for the
same crime would suffice and meet that ruling . . . ."
After the testimony and evidence was presented to the jury,
found not guilty of armed robbery, aiding and abetting, and
accessory after the fact. He filed a PCR motion in 1999 that
was ultimately denied by the circuit court whose judgment was
affirmed by this Court. Newell recently filed another PCR
motion in the circuit court that was also denied. On appeal,
Newell asserts that although he was not charged with
conspiracy to commit armed robbery during the first trial, he
was improperly indicted and tried for conspiracy to commit
armed robbery based on the doctrines of double jeopardy and
The denial of post-conviction relief will not be reversed
" absent a finding that the [circuit] court's
decision was clearly erroneous." Smith v.
State, 806 So.2d 1148, 1150 (¶ 3) (Miss. Ct.App.
2002). Nonetheless, we review issues of law de novo.
Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.
1999). On appeal, Newell asserts that his conviction of
conspiracy to commit armed robbery is barred by both the
doctrines of double jeopardy and collateral estoppel. Hence,
we review his claim de novo and seek to determine whether the
circuit court's denial of his PCR motion was clearly
This Court has stated that the Fifth Amendment's Double
Jeopardy Clause " protects against a second prosecution
for the same offense after acquittal, against a second
prosecution for the same offense after conviction, and
against multiple punishments for the same offense."
Brooks v. State, 769 So.2d 218, 224 (¶ 21)
(Miss. Ct.App. 2000) (citation omitted). When reviewing
charges in multiple prosecutions for possible double-jeopardy
violations, we have held that if " each offense contains
an element not contained in the other," then double
jeopardy does not apply. Id. (citation omitted).
The United States Supreme Court has determined that within
the Double-Jeopardy Clause lies the doctrine of collateral
estoppel. See Ashe v. Swenson, 397 U.S.
436, 443-46, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). Though
often cited in tandem with double jeopardy, the Supreme Court
clearly stated that collateral estoppel is not to be applied
in a " hypertechnical sense." Id. at 444.
Rather, in criminal cases, collateral estoppel " means
simply that when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future
lawsuit." Id. at 443.
Newell cites to Griffin v. State, 545 So.2d 729
(1989), in support of his argument that his conspiracy
conviction violates double jeopardy. In Griffin, the
Mississippi Supreme Court stated that " where there is a
common nucleus of operative facts . . . and where the
ultimate fact has been determined in the prior acquittal by a
final judgment, a conspiracy trial is barred thereafter under
the constitutional double[-]jeopardy provision."
Id. at 730. In Griffin, Willie
Griffin's brother, Melvin, had been indicted for a
criminal offense and was awaiting trial. Id. at 731.
The day before the trial, Melvin and Willie visited the home
of their local mayor and asked him if he knew any names on a
list of potential jurors in Melvin's trial. Id.
When the mayor stated that he recognized one of the names,
Melvin asked the mayor to persuade her to look out for Melvin
while he was on trial. Id. During the conversation,
Willie was in the room watching television but never
participated in the conversation. Id. Willie was was
subsequently indicted for jury tampering and conspiracy to
commit jury tampering. Id. After his acquittal for
jury tampering and before the start of his trial for
to commit jury tampering, he filed a motion to dismiss the
case for violation of the Double-Jeopardy Clause.
Id. at 730. The circuit court denied the motion, and
Willie filed an interlocutory appeal. Id. at 731.
The State's evidence in both of Willie's trials
revolved around the single meeting at the mayor's house.
Id. at 733. At the trial for jury tampering, "
the State attempted to prove the offense by showing that
Willie was present in [the mayor's] home when . . .
Melvin attempted to enlist [the mayor] in influencing the
juror." Id. In its analysis, the supreme court
noted that " [b]y basing its evidence of Griffin's
membership in a conspiracy upon his alleged attempt to tamper
with [the] juror . . . the State seeks to have Griffin
convicted of the exact conduct for which he has been
acquitted." Id. at 734. Accordingly, the
supreme court reversed and rendered the circuit court's
denial of Willie's motion to dismiss. Id.
Five years later, the supreme court again addressed the
application of double jeopardy and collateral estoppel to
cases involving multiple trials for substantive offenses and
conspiracy. State v. Thomas, 645 So.2d 931 (Miss.
1994). Therein, Benny Thomas was indicted for burglary and
conspiracy to commit burglary. Id. at 932. After
being convicted of burglary, Thomas cited Griffin
for the proposition that a subsequent trial for conspiracy to
commit burglary was barred by double jeopardy. Id.
at 932, 934. The circuit court agreed and the State appealed.
Id. at 932.
The supreme court distinguished the facts in Griffin
from Thomas's case in that " the factual question
necessary to convict [Griffin] of conspiracy to commit jury
tampering was answered negatively by the jury."
Id. at 934. The supreme court went on to clarify its
holding in Griffin as follows:
Griffin is factually specific. A person could be
acquitted on the substantive charge and still be tried on the
conspiracy charge as long as the jury did not decide in the
substantive charge that there was no agreement to commit the
crime. For instance, one could be acquitted on a burglary
charge and still have agreed (conspired) to commit the crime.
Griffin is limited to the facts of that case.
In the case at bar, the charges of armed robbery, aiding and
abetting, and accessory after the fact were based on events
occurring immediately prior to, during, and immediately after
the robbery. The charge for conspiracy to commit armed
robbery was based on a conversation that took place an entire
day before the robbery occurred. This involved two separate
factual questions occurring at separate times -- one being
whether or not Newell was part of the actual robbery and the
other being whether Newell participated in the conversation
where the men planned to rob the victim. This was not a
single factual question presented to the jury that, once
answered, was dispositive to the crime of conspiracy as was
the case in Griffin.
Likewise, the elements present in armed robbery and
conspiracy to commit armed robbery are not intertwined.
Mississippi Code Annotated section 97-3-79 (Rev. 2014)
defines armed robbery as a " tak[ing] or attempt[ing] to
take from the person or from the presence the personal
property of another and against his will by violence to his
person or by putting such person in fear of immediate injury
to his person by the exhibition of a deadly weapon . . .
." Conspiracy occurs " [i]f two . . . or more
persons conspire . . . [t]o commit
a crime[.]" Miss. Code Ann. § 97-1-1(1)(a) (Rev.
2014). Again, the conversation relating to the future
commission of the robbery and the actual robbery itself were
two separate acts, and therefore, two separate findings of
fact for which double jeopardy would not apply in theory.
Newell asserts, however, that the jury determined in the
first trial the question of whether Newell participated in
the conversation during which the men planned the robbery. In
support thereof, Newell points to dialogue during the first
trial in open court between the circuit judge and attorneys
for both parties involving a challenge to the introduction of
a statement made by Craft that Newell was with him several
hours before the robbery. The following was stated:
State: Your Honor, it is the State's contention that this
statement is a statement against interest because [Craft has]
alleged an alibi for the early morning hours of [the day of
the robbery,] and it is a statement against interest because
it places Carlos Craft at some place other than his home in
the early morning hours of the day; furthermore, it is
probative because it's circumstantial evidence because
Carlos Craft is telling the officers that he, Derrick Newell,
and Timos Magee were together in the early morning hours.
. . . .
Court: The objection made by the Defendant Newell to the
statement, the objection has been made that it is hearsay
against the Defendant Newell. The State's attorney has
stated that it was an act of [a] co-conspirator. I think the
statement has met the requirements of the Rules of Evidence,
and I'm going to allow the statement to be presented to
Defense: Object, your Honor. I will object to anything with
respect to [Newell] that it's hearsay being offered for
the truth of the matter, and also there has been no showing
of common plan or scheme for conspiracy that involved Mr.
Newell . . . . [I]n addition to that, that Mr. Cooley, the
victim, didn't even identify Mr. Newell. I think this
would be irrelevant, his being involved in that part of it,
whether he was or not somewhere at 2:30 in the morning.
. . . .
Court: Well, a joint indictee is, I think it's one step
above that of a joint conspirator, a co-conspirator, and I
think that under the Rules of Evidence that the statement of
a co-conspirator should be allowed; although a conspiracy is
not charged, I think the fact that they were jointly indicted
for the same crime would suffice and meet that ruling
although this is a novel issue before this Court. . . . [T]he
objection will be overruled.
also notes that during closing arguments, the State told the
jury that Newell and Craft " decided they would go and
rob someone," and that the two men " decided on
September 23, 1997, that they were going to go out to David
Cooley's house and rob him . . . ."
Prior to closing arguments, the circuit court instructed the
jury. After instructing the jury as to impartiality, the duty
to weigh the evidence, the presumption of innocence, and
other general matters, the circuit court addressed the crimes
for which Newell was charged and the determinations that the
jury was to make. The instructions constituted the following:
The [c]ourt instructs the jury that every person who shall
aid or assist any felon, knowing that said such person has
committed a felony with the intent to enable
such felon to escape or avoid arrest, trial conviction, or
punishment after the commission of such felony, is guilty of
being an accessory after the fact. Therefore, if you, the
jury, find that on or about September 23, 1997, within the
jurisdiction of this [c]ourt[,] that Derrick Newell did aid
and assist any felon in the armed robbery of David Cooley,
then and only then may you find Derrick Newell guilty of
being an accessory after the fact.
. . . .
The [c]ourt instructs the [j]ury that every person who aids,
abets, assists, and encourages another person in the
commission of a crime is guilty as a principal to the crime,
and [is] just as guilty as the person who actually commits
the offense. Therefore, if you, the jury, find that on or
about September 23, 1997, within the jurisdiction of this
[c]ourt[,] . . . Derrick Newell did willfully, unlawfully,
and feloniously give aid, assist, or [give] encouragement in
[the] armed robbery against David Cooley, then you may find
the defendant guilty of armed robbery. The [c]ourt instructs
the jury that every person who shall feloniously attempt to
take the personal property of another and against his will[,]
by violence to his person or by putting such person in fear
of immediate injury to his person by the exhibition of a
deadly weapon[,] shall be guilty of armed robbery.
. . . .
If you find from the evidence that, number one, Derrick
Newell on or about September 23, 1997, two, willfully
attempted to take the personal property of David Cooley[,] .
. . three, in [his] presence, from [his] person, . . . four,
against [his] will, five, by putting David Cooley . . . in
fear of some immediate injury to [his] person, . . . six, by
exhibiting a handgun, . . . seven, that such gun was a deadly
weapon, and, eight, that at the time Derrick Newell had the
intent to permanently deprive David Cooley . . . of the
property, then you should find the defendant guilty as
. . . .
The [c]ourt instructs the jury that a lesser included offense
is a crime which includes some of the elements of the greater
offense, but not all of them. In this case, you may consider
the lesser included offense of accessory after the fact to
armed robbery as to Derrick Newell in the event you cannot
agree on the greater charge of armed robbery. If you find
that the State has failed to prove beyond a reasonable doubt
that Derrick Newell participated in the armed robbery and did
not give aid, assistance, [or] encouragement to others before
the armed robbery took place, but do find beyond a reasonable
doubt that [he] either received some of the proceeds from the
armed robbery, helped the principals avoid justice by giving
false information to the authorities, or by assisting the
perpetrators after the fact, knowing that such persons had
committed the armed robbery, then you may find Derrick Newell
guilty of the lesser included offense of accessory after the
fact and should so indicate in the verdict form.
It is clear that the jury was only asked to determine whether
Newell was guilty of armed robbery, aiding and abetting, and
accessory after the fact. The jury was never told that
conspiracy was alleged, and they were never presented with
the elements of conspiracy or any evidence regarding the
crime of conspiracy. The mention of the words "
conspirator" and " conspiracy" were confined
to one brief conversation during the three-day trial when the
words were stated in passing. Even then, it was said during a
oral analysis of the rules of evidence in a dialogue between
the circuit judge and the attorneys in an effort to ascertain
the admissibility of Craft's statement regarding
Newell's whereabouts many hours prior to the robbery.
During the circuit judge's analysis, there was no mention
of the conversation wherein the men planned the robbery or of
any robbery conspiracy involving Newell. Rather, the circuit
judge was faced with a novel legal question regarding
admissibility of evidence by a joint indictee. While the
circuit judge had not faced this question before, it appears
he had faced the question in terms of joint conspirators.
Hence, the circuit judge talked through the answer to the
question by passively comparing the situation, in terms of
admissibility of a single statement only, to the rules of
evidence governing joint conspirators.
Again, the jury was never asked to determine whether Newell
committed the crime of conspiracy. In reviewing Newell's
PCR motion, the circuit judge noted this fact as well. At the
hearing on the PCR motion, the circuit court acknowledged
that the jury in the first trial determined " whether
[Newell] was an aider or an abettor within the crime itself.
[However,] [t]hey weren't framed the question of whether
[Newell] was engaged in a conspiracy because . . . the issue
was never framed for the jury to determine his guilt or lack
thereof as to the charge of conspiracy." We agree.
Newell's contention that the crime of conspiracy to
commit armed robbery was presented to the jury and
subsequently dismissed by the jury in Newell's first
trial such that double jeopardy and collateral estoppel would
attach is unfounded. This issue is without merit.
THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT DENYING THE
MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.
C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL, FAIR
AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.