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Casey v. State

Court of Appeals of Mississippi

February 27, 2018


          DATE OF JUDGMENT: 09/21/2015





         EN BANC.

          GRIFFIS, P.J.,

         ¶1. Kendrick Casey was convicted of aggravated assault and armed robbery. He was sentenced as a habitual offender to life in the custody of the Mississippi Department of Corrections (MDOC) on both counts, with the sentences to run concurrently. On appeal, he claims the trial court erred in denying his motion for a continuance on the morning of trial, and in not issuing subpoenas instanter for two witnesses Casey claimed were avoiding service of earlier subpoenas. We find no error and affirm.


         ¶2. On the evening of February 5, 2013, a Harrison County Sheriff's deputy encountered a disoriented and injured Johnny Ray Holmes kneeling by a building. The deputy discovered that Holmes had been shot and robbed of prescription drugs during an altercation in a vehicle driven by Jonathan Young. Holmes could not identify who shot him, as the person had attacked him from the backseat of Young's vehicle. Young later identified Casey as the third person in the car. Young said that he and Holmes had arranged to meet so Young could buy prescription drugs (Oxycodone) for his friend Jessica Orr and her boyfriend Casey. When Holmes got into Young's car, Casey grabbed Holmes from behind, demanded the drugs, and hit Holmes over the head with a gun. In the process of handing over the pills, Holmes and Casey fought over the gun, and Holmes was shot. Holmes jumped from the parked vehicle and crawled to a nearby building while Young and Casey drove off. No weapon was recovered.

         ¶3. Casey and Young were indicted on December 23, 2013, for one count of aggravated assault and one count of armed robbery. In exchange for pleading guilty to accessory after the fact to aggravated assault and having the armed-robbery charge passed to the files, Young testified against Casey. During pretrial proceedings, the trial court granted Casey's three separate motions for a continuance, mainly due to issues with his representation.

         ¶4. On July 7, 2015, Casey's new defense counsel filed a notice of alibi, asserting that Casey was with Orr at the time the crime occurred. A July 9, 2015, supplement to the notice of alibi further stated that Orr's mother, Annette Newsome, would testify that she saw Orr and Casey late that evening at her home. At a hearing on July 13, 2015, defense counsel moved for a fourth continuance, stating more time was needed to serve subpoenas to alibi witnesses, particularly Orr and Newsome. Counsel noted it had been "difficult . . . to get Ms. Newsome served with a subpoena" and said: "[W]e've done everything in due diligence to get these witnesses." The court granted the motion, and the case was continued for two months.

         ¶5. On September 9, 2015, defense counsel notified the trial court that he had not been able to locate Orr or Newsome for service of the subpoenas. Orr had become a "hostile witness" and was "not responding to anything that [counsel had] done to try to get her to come in to state where she was on that night with [Casey]." A private investigator, Edwin Seward, had been hired to find Orr, and counsel informed the judge:

[W]e still can't locate [Orr]. Judge, we believe we found her, but . . . whenever she answers her phone [and we say] we're looking for [Orr], she says it's not her and whatever. We've actually got now a subpoena to go out to her for court next week, and we have one of Mr. Casey's family members who knows what she looks like so we can [e]nsure that we serve her. . . . This woman is hostile to the defense. . . . [S]he has rejected every phone call and every overture that I've [made] to get her to come in.

         However, neither Orr nor Newsome were located and served with a subpoena. On September 14, at a pretrial hearing, the trial court reserved ruling on the State's motion in limine regarding several of the alibi witnesses, and with regard to Orr, stated: "If Ms. Orr shows up, then we will revisit the whole issue outside the presence of the jury. . . . I'm going to wait to see, whether she even testifies and if so, what she says." Defense counsel responded that the trial court's approach was "fair." Counsel informed the court that Seward would be available the next day to "reurge our motion for a continuance . . . because of the efforts of two people to avoid process to become a witness."

         ¶6. Defense counsel moved for a fifth continuance on the following day (September 15) and requested the court to issue an "instanter warrant" for Orr and Newsome. Seward testified that he had attempted to serve Orr and Newsome with subpoenas for over three months but had been unable to contact them. The Sunday before the trial, Seward went to another address and was told by a woman, whom he later discovered was Orr, that she would not accept anything, and she cursed at him. Seward said he was informed by Casey's mother that morning that Orr and Newsome were intentionally avoiding service of the subpoenas.

         ¶7. The trial judge denied the motion for a continuance, noting that he had "already granted a lengthy continuance in the case." He also denied the request to issue an "instanter warrant" based on his reasoning that "there's been nothing brought before the [c]ourt by way of motion prior to today to ask the [c]ourt for assistance in serving these alleged witnesses." The trial proceeded.

         ¶8. Holmes testified that he randomly encountered Young as he was walking to the store and asked for a ride. It was at that point that he was attacked and shot, but he could not identify the assailant. Young testified to a slightly different set of facts. Young said he had been helping Newsome with some errands that afternoon, and he encountered Orr and Casey that evening at Newsome's home. Young, a known drug addict, claimed Orr and Casey asked him to obtain some prescription drugs for them; so he contacted Holmes and arranged a meeting. Holmes wanted Young to come alone, but Casey insisted on coming; so Young told Casey to hide in the back seat. He identified Casey as the person who shot Holmes.

         ¶9. Casey was found guilty of both counts. The trial court sentenced Casey as a habitual offender to life in the custody of the MDOC for each count, with the sentences to run concurrently. See Miss. Code Ann. ยง 99-19-83 (Rev. 2015). Casey filed a motion for a judgment notwithstanding the verdict, and a hearing was held. Among his numerous assignments of error, he argued that the court "erred by not granting a continuance as requested by the defendant due to our inability to locate two material witnesses who clearly were dodging [the] process server." The trial court denied the motion but did not make any specific findings regarding the issue of ...

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