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Pettis v. State

Court of Appeals of Mississippi

May 22, 2018

SAMMIE HENRY PETTIS A/K/A SAMMIE PETTIS A/K/A SAMMIE H. PETTIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/15/2017

          FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. A Forrest County Grand Jury indicted Sammie Henry Pettis for armed robbery as a nonviolent habitual offender. After a two-day trial, Pettis was found guilty and was sentenced to twenty years in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for parole or probation. Following his unsuccessful motion for a judgment notwithstanding the verdict (JNOV) or a new trial, Pettis appeals. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On July 11, 2016, Pettis entered Central Sunbelt Credit Union in Hattiesburg, Mississippi, waved a gun in the air and announced that he was robbing the bank. Christopher Lee, a teller at the bank, testified that Pettis held the gun to his head, placed a bag in front of him, and demanded that he fill the bag with money. Lee testified that he was fearful because of Pettis's gun. Pettis then went to Tammy Jones-Glover, another teller, and demanded that she fill the bag with money. Like Lee, Jones-Glover later testified that she feared for her life because Pettis pointed the gun at her as she filled the bag with money. Shortly after this interaction with Jones-Glover, Pettis left the bank.

         ¶3. Lawanda Hall, another Central Sunbelt employee, called 911 and reported the robbery. Hall described the assailant as an African-American male wearing a burgundy shirt, a black fedora, and dark sunglasses. Another witness, Kristi Polk, described the fedora as a "Michael Jackson" hat because it was "sparkly." The shirt, hat, and sunglasses were found with Pettis shortly after he was apprehended.

         ¶4. Officer Eric Gannon[1] of the Hattiesburg Police Department was en route to the bank when he overheard that the suspect was headed toward AAMCO Transmission. Officer Gannon was on his way to AAMCO when he spotted Forrest Martin fishing in a nearby creek. Officer Gannon then found Pettis hiding in the water. Pettis was trying to stuff a burgundy or maroon shirt in a bag. According to Officer Gannon, Pettis said, "you caught me."

         ¶5. When Detective Gareth Wood arrived at the creek, Pettis was already in custody. Detective Wood later testified that he asked Pettis to identify himself, and Pettis complied. Pettis then said that he was "having a bad day, " he "just robbed a bank, " and that he "parked his car too far away." After Pettis arrived at the police station, he waived his Miranda[2] rights and gave a full confession.

         ¶6. Following a two-day trial, Pettis was found guilty of armed robbery and sentenced as a nonviolent habitual offender to twenty years in MDOC custody. His appellant counsel claims that the circuit court erred when it sentenced Pettis as a habitual offender. In a pro se supplemental brief, Pettis claims the indictment was fatally defective, his armed-robbery conviction is contrary to the overwhelming weight of the evidence, the State presented improper testimony, and he was denied the right to confront an adverse witness.

         DISCUSSION

         I. Whether the trial court erred by sentencing Pettis as a habitual offender.

         ¶7. Pettis asserts that the trial court erred in sentencing him as a nonviolent habitual offender. His reasoning is based on the fact that, incident to his 1997 conviction for escaping from prison, he was sentenced to three years in MDOC custody with two and one-half years suspended and six months to serve.

         ¶8. Pettis had two prior felony convictions for which he had been sentenced to separate terms of one year or more. The record reflects that in 1989 Pettis had five convictions stemming from one incident.[3] The nonviolent habitual offender statute does not require that one serve a year for each prior felony conviction. Miss. Code Ann. § 99-19-81 (Rev. 2015). It is enough that he was sentenced to at least one year for at least two prior felonies arising from separate incidents. See id. Therefore, this issue is meritless.

         II. Whether Pettis's indictment was defective.

         ¶9. Pettis maintains that the indictment was defective because it contained an inaccurate date of the offense and that he could not adequately prepare a defense because he was not adequately notified of the charges against him. "The question of whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by an appellate court." Davis v. State, 866 So.2d 1107, 1110 (¶11) (Miss. Ct. App. 2003). The Mississippi Supreme Court has held "that a variance in the date on an indictment will not be a cause for reversal where there is no prejudice by such variance." Id. "The ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Warren v. State, 187 So.3d 616, 621-22 (¶10) (Miss. 2016). "An indictment must contain (1) the essential elements of the crime charged, (2)sufficient facts to fairly inform the defendant of the charge which he must defend, and (3)sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Id. at 621 (¶10). Moreover, "Rule 7.06 of the Uniform Rules of Circuit and County Court Practice[4] states, in pertinent part, that the indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." Id. (internal quotation mark omitted).

         ¶10. The indictment against Pettis charged in part:

[O]n or about July 11, 2014, [Pettis] did willfully, unlawfully[, ] and feloniously take, steal, and carry away from the person and/or the presence of, and against the will of Christopher Lee and Tammy Glover, approximately $18, 500.00 in U.S. Currency, the property of the said Christopher Lee and Tammy Glover by virtue of their employment at Sunbelt Federal Credit Union as [b]ank [t]ellers, by putting . . . Lee and . . . Glover in fear of immediate injury to their persons, by the exhibition of a deadly weapon, to wit: a ...

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