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Calloway v. State

Court of Appeals of Mississippi

March 5, 2019


          DATE OF JUDGMENT: 05/09/2017





         EN BANC.

          GREENLEE, J.

         ¶1. A Forrest County jury found Joanie Calloway guilty of being an "attempted accessory after the fact" of capital murder, in violation of Mississippi Code Annotated sections 97-1-5 and 97-1-7 (Rev. 2014) and of hindering the prosecution, in violation of Mississippi Code Annotated section 97-9-103 (Rev. 2014). The trial court sentenced Calloway to consecutive sentences of twenty years for attempted accessory after the fact and five years for hindering the prosecution, to be served in the custody of the Mississippi Department of Corrections (MDOC). Calloway appeals, arguing (1) the evidence was insufficient to support her conviction for attempted accessory after the fact, (2) cumulative errors in her trial require reversal, and (3) her sentence for attempted accessory after the fact was unconstitutionally disproportionate. We find no error and affirm Calloway's convictions and sentences.


         ¶2. At approximately 7:30 p.m. on May 9, 2015, Hattiesburg Police Department Officer Benjamin Deen stopped Calloway's vehicle during a routine traffic stop, and his dash camera automatically switched on. Calloway was traveling with three passengers in her car, who were later identified as her boyfriend, Marvin Banks, her friend, "Loco," and her son. Banks sat in the front-passenger seat, and the other two passengers sat in the back of the car. After Officer Deen made contact with Calloway, he called for backup. Officer Liquori Tate responded.

         ¶3. During trial, the video from Officer Tate's dash camera was played for the jury and admitted into evidence. In the video, Calloway and Banks can be seen moving around in the car. Officer Deen informed Officer Tate that Calloway's license was suspended and that Calloway's front-seat passenger was putting something underneath his seat. Officers Deen and Tate ordered Calloway and Banks out of the vehicle to get them away from whatever had been stashed under the font seat. In a written statement later given to law enforcement and admitted into evidence, Calloway admitted that, while inside the car, Banks retrieved a gun from his waistline and said he was "going to kill the motherf****rs." Calloway stated that she urged Banks to put the gun away and he placed it under the passenger seat.

         ¶4. The dash-camera video showed that Calloway complied with Officer Deen's request to exit the vehicle. Banks, however, showed hesitancy in exiting. When Banks eventually stepped outside the car, he grabbed the gun from beneath his seat and shot Officer Dean in the temple. Calloway jumped back in the car. Banks then shot Officer Tate and attempted to shoot Officer Deen's dash camera. From within the car, Calloway held her foot on the break and yelled, "Marvin, get in, Marvin, Marvin." Banks continued shooting, and Calloway drove off. After she did so, "Loco" jumped out of the car.

         ¶5. Calloway drove until she encountered several barricades blocking the street near an outdoor festival, and then she exited her car. One of the festival goers, Marcia Goff, testified that Calloway and her son approached her. Goff stated that Calloway seemed jittery and very nervous. Calloway stated, "I didn't do nothing. How could this happen to me? I gave these two guys a ride and was going to Fat Boys, and one of them reached over and turned the blinker a different direction, and that's when the police pulled us over." "I didn't know they were gonna shoot at the police," Calloway added. Calloway told Goff she suffers from post-traumatic stress disorder and needed her medication, so Goff told her to sit down. Goff told Calloway that she was going to have to call the police; Calloway replied "yes[, ] and an ambulance."

         ¶6. Goff called 9-1-1 and spoke with an emergency-services operator. During the call, Goff told the operator, "[Calloway] was just a nice person and gave them a ride because they needed a ride." Goff handed Calloway the phone, and Calloway told the operator that she had taken three Seroquil doses, was "f****d up," and could not remember anything. Calloway gave her information to the operator but handed Goff's phone back when the operator began asking questions. The 9-1-1 call was played for the jury and admitted into evidence as Exhibit 10.

         ¶7. Laron Smith testified that he was a sergeant with the Hattiesburg Police Department in May 2015 and reported to Calloway's location on a dispatch call. Smith said that he encountered Calloway in an outdoor parking lot. She seemed calm and appeared to be crying, but she was not shedding any tears. Smith testified that Calloway told him two black males had jumped inside of her car somewhere on Main Street. Smith identified several locations on Main Street and asked Calloway where she had been near, but she said she did not know. As Smith questioned Calloway further, Calloway looked down as she answered. Smith suspected that Calloway was not being truthful. He read Calloway her Miranda[1] rights and placed her in his vehicle in order to take her to the police department for an interview.

         ¶8. Smith testified that later, after Calloway indicated that she was willing to talk to him, he again read Calloway her Miranda[2] rights and asked if she understood. Initially Calloway did not say yes; instead, she stated, "I told that motherf****r not to do that s**t." Smith read Calloway her Miranda[3] rights for a third time, and Calloway said she understood her rights. Calloway then told Smith that she and a man named "Cuz" had been driving around the Mobile Street area looking to buy marijuana. Calloway claimed she did not know "Cuz's" real name. Calloway said that while they were driving, "Cuz" offered her some cocaine, and she declined because she had taken Seroquel for her bipolar disorder. Smith asked if anyone else had been in the car with Calloway, and she told him that her son and a man named "Loco" had also been with her.

         ¶9. Smith further testified that Calloway told him she had been pulled over by a police officer. Calloway said that "Cuz" pulled out a gun, she told him to put it away, and he put the gun under his seat. Calloway said that the officer asked for her driver's license and went back to his vehicle to run the identification Calloway gave him. When the officer left, Calloway and "Cuz" began talking. Calloway said "Cuz" pulled the gun back out and said "I'm about to f*****g do this s**t." Calloway told him not to. When the officer returned to Calloway's car, he asked her to step outside. Calloway told Smith that "Cuz" then exited the passenger side of the vehicle and shot the police officer. She also told Smith that she jumped back in her car and fled the scene because she was scared. When Smith asked Calloway to describe "Cuz's" attire, she said that he had been wearing a white shirt, blue jean shorts, and some plaid shoes. In the video from Officer Tate's dash camera, Banks is wearing a dark shirt with colorful designs of blue, pink, and orange. Smith said when he viewed the dash-camera video, he immediately recognized Banks.

         ¶10. Lieutenant Lotosha Myers-Mitchell of the Hattiesburg Police Department testified that she interviewed Calloway at the police department. Lieutenant Myers-Mitchell stated that she read Calloway her Miranda[4] rights, and Calloway agreed to speak with her. Calloway also signed a waiver form, which was admitted into evidence as Exhibit 11. Lieutenant Myers-Mitchell testified that in describing the shooting, Calloway maintained that she did not know the two individuals whom she gave a ride to but had purchased weed from them before. Calloway gave a written statement describing the traffic stop and shooting, which was published to the jury and admitted into evidence as Exhibit 12. At 10:30 p.m., Lieutenant Myers-Mitchell showed Calloway a photo lineup, and Calloway identified one of the men as "Cuz" and wrote "looked like the passenger in my car" on an accompanying form. The lineup and identification form were admitted into evidence as Exhibits 13 and 14.

         ¶11. Master Sergeant Trent Weeks of the Mississippi Bureau of Investigations also interviewed Calloway. Master Sergeant Weeks testified that Calloway was "very calm" during the interview. He said that Calloway told him she had smoked some marijuana and had taken some bipolar medication prior to the interview. Master Sergeant Weeks said he went over Calloway's Miranda[5] rights with her, and Calloway signed and initialed a waiver of her rights. The signed waiver, executed at 12:16 a.m., was admitted into evidence as Exhibit 16. Master Sergeant Weeks explained that the interview was video and audio recorded. The video of Calloway's interview was subsequently received into evidence as Exhibit 17 and published to the jury.

         ¶12. Early in her interview with Master Sergeant Weeks, Calloway again claimed that she picked up "Cuz" and his friend, "Loco," maintaining that she did not know either man's real name. She said that after an officer stopped her vehicle, "Cuz" pulled a gun from his waistline and stated, "we ain't going to jail." Calloway also gave a written statement to Master Sergeant Weeks, in which she claimed that "Cuz" said "he was going to kill the motherf****rs." Her written statement was admitted into evidence as Exhibit 18. Master Sergeant Weeks testified that Calloway only began referring to "Cuz" by his real name after Banks's name was broadcasted over the radio.

         ¶13. Aaron Thomas, a friend of Banks's also testified for the State. Thomas said that he had known Banks since 1995 or 1996 and grew up across the street from Banks in Hattiesburg. Thomas testified that in May 2015 he and Banks still lived across the street from each other. Thomas said that during that time, Banks and Calloway were in a relationship and had been dating for roughly six months. Thomas said that Calloway knew Banks's real name, knew where he lived, and visited him roughly three to four times a week. Thomas testified that on the day of the shooting, Calloway and Banks had spent time together at his mother's house.

         ¶14. After the State rested its case, Calloway moved for a directed verdict as to attempted accessory after the fact and hindering the prosecution. The motion was denied. Calloway did not present any witness testimony in her defense. Following jury deliberations, the jury found Calloway guilty of being an attempted accessory after the fact of capital murder and guilty of hindering the prosecution in the first degree. Calloway subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied Calloway's motion, and she has timely appealed.


         I.Sufficiency of the ...

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