MALCOLM HORTON A/K/A MALCOLM DEVONTE HORTON A/K/A MALCOLM DEVONTE HORTON, JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 01/04/2016
COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL
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
IRVING, P.J., BARNES AND WESTBROOKS, JJ.
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.
AND PROCEDURAL HISTORY
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
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.
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
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.
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.
Whether the trial court erred in denying Horton
twelve peremptory challenges.
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
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
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 ...