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Horton v. State

Court of Appeals of Mississippi

January 30, 2018

MALCOLM HORTON A/K/A MALCOLM DEVONTE HORTON A/K/A MALCOLM DEVONTE HORTON, JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/04/2016

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL TRIAL JUDGE:

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

          BARNES, JUDGE.

         ¶1. On December 9, 2015, Malcolm Horton was convicted of armed robbery. He was sentenced by the Hinds County Circuit Court, First Judicial District, to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty years to serve, ten years suspended, and five years of post-release supervision. The court also ordered Horton to serve a consecutive sentence of five years for the use or display of a firearm during the commission of a felony under Mississippi Code Annotated section 97-37-37(1) (Rev. 2006). After the trial court denied his post-trial motion, Horton appealed. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On January 11, 2012, at approximately 10:45 p.m., Officer Stephanie Burse responded to a call regarding the attempted robbery of a Burger King on Robinson Road in Jackson, Mississippi. The assistant manager told Officer Burse that a masked gunman wearing a black shirt and jeans approached the restaurant while she was attempting to close; she ran back inside and hit the panic button, thwarting the robbery. While interviewing the employee, Officer Burse overheard a radio dispatch that a Popeyes's restaurant on Terry Road had been robbed.

         ¶3. Officer Ken Travis responded to the call regarding the Popeyes's robbery. He spoke with three employees, including the manager, Tameka Cross. The employees told Officer Travis that "they were approached by at least two males wearing black masks and black shirts." One employee, Nakisha Anderson, later testified that before the robbery she noticed a "dark red" car pull up next door and saw a masked male dressed in black get out and cock a pistol; so she and the other employee ran to a nearby store for help. Cross was forced back into the restaurant at gunpoint to open the safe, and the robber took approximately $700. While following Cross into the store, the gunman discharged his weapon into the air.

         ¶4. Horton was arrested a few days later in connection with the robberies. On January 19, 2012, he gave a recorded video statement to Detectives Eric Smith and Delars Smith, confessing to robbing the Popeyes and a Waffle House. Horton also gave a written statement to Detective Marcus Williams, in which he said he "ran up on a woman at [a] Jasco (store) with a gun" and took her "maroon Impala." Consistent with his video statement, Horton stated that he had on a mask and "was in all black" and that after taking the car, he robbed the Popeyes and a Waffle House.

         ¶5. Horton was indicted on May 9, 2012. Count I alleged that he attempted to rob a Burger King restaurant using a handgun. Count II alleged that he robbed a Popeyes's restaurant using a handgun. The indictment also alleged that Horton violated section 97-37-37(1) for "having used a firearm during the commission of a felony." A jury trial was held on December 8-9, 2015. Horton was found guilty on Count II, but was acquitted on Count I. At a separate sentencing hearing, the trial judge sentenced Horton to thirty years in the custody of the MDOC, with twenty years to serve, ten years suspended, and five years of post-release supervision. He was also ordered to serve a five-year consecutive sentence under the firearm-enhancement statute.

         ¶6. On December 17, 2015, Horton filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion, and he now appeals.

         DISCUSSION

         I. Whether the trial court erred in denying Horton twelve peremptory challenges.

         ¶7. During jury selection, the trial judge allowed both the defense and the State six peremptory challenges. Defense counsel argued that Horton should be given twelve peremptory challenges:

MR. ROUTH: Your Honor mentioned earlier to the jury six strikes or six peremptory challenges would be employed in this case. We believe it should be [twelve]. It's a capital case where a possible sentence of life is in play. . . .
THE COURT: Is the State going to ask the jury to pass on sentence?
MR. SMITH: No, Your Honor. We're not seeking life and we're not gonna instruct the jury in that regard. I believe they have to be the ones who ...

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