OF JUDGMENT 11/02/2015
COUNTY CIRCUIT COURT HON. WILLIAM E. CHAPMAN, III TRIAL JUDGE
COURT ATTORNEYS: BRYAN P. BUCKLEY CHRISTOPHER TODD McALPIN
WESLEY THOMAS EVANS MICHAEL GUEST
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ABBIE EASON KOONCE
DISTRICT ATTORNEY MICHAEL GUEST
RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
On April 2, 2015, Audrey Swinney drove her brother Tony
Swinney and their cousin LaMarvin Swinney to rob Bullets, a
convenience store in Flora, Mississipppi. Tony and his cousin
LaMarvin entered the store and robbed Pyare Lal, the
seventy-three-year-old proprietor of the store.
On May 6, 2015, a grand jury indicted Tony for robbery with
an enhancement for a crime committed against a victim of
sixty-five years of age or older, and conspiracy to commit
robbery. On October 27, 2015, a Madison County jury found
Tony guilty on both counts. The trial court sentenced Tony as
a habitual offender under Mississippi Code Section 99-19-83
(Rev. 2015), to life in prison without the possibility of
parole or early release for each count, with the sentences to
Tony appeals, raising the following issues:
I. Whether the trial court erred in sentencing Tony to life
imprisonment as a habitual offender.
II. Whether the trial court erred in failing to declare a
mistrial where the State elicited testimony of Tony
exercising his constitutional right to remain silent.
III. Whether the multiple instances of hearsay evidence
attributing guilt to Tony denied him a fair trial.
IV. Whether testimony by a state witness of having been in
prison with Tony was improper evidence of other bad acts.
V. Whether the jury was improperly instructed by instruction
peremptorily directing that a robbery occurred and that a
witness was an accomplice, thereby relieving the State of its
burden of proof.
VI. Whether counsel for Tony was ineffective.
VII. Whether the multitude of error herein, if held
individually to be harmless, constitutes cumulative error.
AND PROCEDURAL HISTORY
On the morning of April 2, 2015, Audrey picked up her cousin
LaMarvin and her brother Tony. While in the car, the three
made a plan to rob Bullets convenience store. They planned
that LaMarvin would put an item on the counter so the cashier
would open the register, tackle the cashier, and take the
money from the register. Meanwhile, Tony would destroy the
surveillance video footage. Audrey would serve as the getaway
Audrey, Tony, and LaMarvin arrived at the store around 9:00
a.m. Tony and LaMarvin entered the store. Because too many
people were outside, Tony and LaMarvin exited the store and
returned to the vehicle. Audrey drove away and they waited
across the street. About twenty minutes later, they returned
to the store's parking lot and pulled up to one of the
gas pumps. Tony and LaMarvin remained with the vehicle, and
Audrey got out as if she were going to pump gas. Lal did not
turn on the pump. Audrey got back in the vehicle and drove
About fifteen or twenty minutes later, Tony and LaMarvin
returned and entered the store. LaMarvin placed an item on
the cashier's counter. When Lal opened the register,
LaMarvin rushed around the counter and tackled Lal to the
ground. LaMarvin grabbed money from the register while
holding Lal down. Meanwhile, Tony went into Lal's living
quarters behind the counter. When Tony came back out, he and
LaMarvin exited the store. Audrey picked up Tony and LaMarvin
beside the store and they left the scene.
Lal called the police, and Flora's Assistant Police Chief
Clifton Nelson responded. Lal reported that $500 had been
taken from the register, $200 from a stand near the register,
and $1, 500 from a bank deposit bag located in Lal's
living quarters, for a total of $2, 200. Chief Nelson
reviewed the store's surveillance video showing the
robbery. The surveillance video of the robbery was shown to
the jury at trial. Chief Nelson learned from a witness at the
scene that two males, matching the appearance of the two
robbers depicted in the surveillance video, ran and got into
a blue Honda near the store after the robbery.
Lal could not identify Tony or LaMarvin; however, Lal
identified the driver of their vehicle as Audrey Swinney.
Audrey was Lal's former employee, whom he had terminated
for theft. Upon the information gathered by Chief Nelson,
Audrey was developed as a suspect in the robbery. That
afternoon, Audrey voluntarily appeared at the police station
and agreed to be interviewed. Audrey denied any involvement
in the robbery at Bullets and was released. Before Audrey
left the police station, Chief Nelson took photographs of
Audrey's vehicle, a blue Honda matching the witness's
description given at the scene.
On April 6, 2015, a warrant was issued for Audrey's
arrest. Audrey agreed to be interviewed a second time. During
the interview, Audrey said that Eric Jackson and Milton
Deemus were the two males with her at the store the day of
the robbery. Audrey posted bond and was released. Eric
Jackson and Milton Deemus were arrested the next day. After
Eric Jackson was arrested, his brother Joshua Jackson came
forward with information implicating Tony in the robbery.
Joshua Jackson claimed that he had overheard Audrey, Tony,
and Milton Deemus planning to rob Bullets days prior to the
robbery. Milton Deemus provided an alibi. Eric Jackson and
Milton Deemus later were released.
Chief Nelson issued an arrest warrant for Audrey for impeding
the investigation. Audrey was arrested and interviewed a
third time. Audrey stated that the individuals she had
previously named as assisting her in the robbery were
incorrect. Audrey stated that her brother Tony and her cousin
LaMarvin assisted her in the robbery. At trial, LaMarvin
admitted that he, Audrey, and Tony had planned and carried
out the robbery of Bullets. LaMarvin identified himself and
Tony as the two males depicted in the surveillance video
During a recess of Tony's trial, Audrey pleaded guilty to
robbery. The State did not call her to the stand to testify.
After the State rested its case in chief, Tony rested without
testifying and without putting any witnesses on the stand.
The jury returned a verdict finding Tony guilty of robbery of
a person of the age of sixty-five years or over and
conspiracy to commit robbery. On November 2, 2015, the trial
court conducted a sentencing hearing. The trial court
sentenced Tony as a habitual offender under Section 99-19-83
to life imprisonment without the possibility of parole or
early release on both counts, with each sentence to run
concurrently with the other.
Tony raises several arguments for the first time on appeal.
"Generally, a party who fails to make a contemporaneous
objection at trial must rely on plain error to raise the
issue on appeal, because otherwise it is procedurally
barred." Parker v. State, 30 So.3d 1222, 1227
(¶ 15) (Miss. 2010). As a result, Tony asks the Court to
review the arguments raised for the first time on appeal
under the plain error doctrine.
"The plain error doctrine is employed only in situations
when a defendant's substantive or fundamental rights are
affected." Green v. State, 183 So.3d 28, 31
(¶ 6) (Miss. 2016). "Plain-error review is properly
utilized for correcting obvious instances of injustice or
misapplied law." Id. "For the plain-error
doctrine to apply, there must have been an error that
resulted in a manifest miscarriage of justice or seriously
affects the fairness, integrity or public reputation of
judicial proceedings." Hall v. State, 201 So.3d
424, 428 (¶ 12) (Miss. 2016).
"To determine if plain error has occurred, this Court
must determine if the trial court has deviated from a legal
rule, whether that error is plain, clear, or obvious, and
whether that error has prejudiced the outcome of the
trial." Conner v. State, 138 So.3d 143, 151
(¶ 19) (Miss. 2014). "Prejudice often is lacking
when the weight of the evidence against a defendant is
overwhelming." Hall v. State, 201 So.3d at 428
First, Tony argues that the trial court erred by sentencing
him as a habitual offender under Section 99-19-83, because
the State failed to prove that Tony had served two terms of
confinement of a year or more for his prior felony
convictions. Second, Tony argues that the State failed to
prove that at least one of his previous felony convictions
had been a crime of violence as required by Section 99-19-83.
The Court does not reach Tony's second argument because
it is undisputed that the State failed to prove that Tony
served two terms of confinement of a year or more for his
prior felony convictions.
Both Tony and the State agree that the Court should vacate
his sentences and remand for resentencing because there was
insufficient proof demonstrating that Tony actually had
served a year or more for his prior felony convictions.
"An illegal sentence is an obvious error subject to
plain-error review." Martin v. State, 214 So.3d
217, 220 (¶ 6) (Miss. 2017). As such, the issue raised
for the first time on appeal of whether the State failed to
prove his habitual offender status under Section 99-19-83 is
reviewable as plain error. Conner v. State, 138
So.3d 143, 150-51 (¶ 19) (Miss. 2014).
Under "Section 99-19-83, the maximum term of life
imprisonment will be imposed if the State can prove beyond a
reasonable doubt that the defendant has previously been
convicted of two or more felonies on charges separately
brought and arising out of separate indictments at different
times, that the defendant was sentenced to and served
separate terms of one year or more in any state or federal
penal institution, and that ...