Drummer v. State
| Docket Number: | 2012-KA-02004-COA Linked Case(s): 2012-KA-02004-COA ; 2012-CT-02004-SCT ; 2012-CT-02004-SCT ; 2012-CT-02004-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 07-15-2014 Opinion Author: Carlton, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Grand larceny & Attempted grand larceny - Flight instruction - Discovery violation - URCCC 9.04(I) - Sufficiency of evidence - Habitual offender status Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Ishee, Roberts and Fair, JJ. Concur in Part, Concur in Result 1: Barnes and Maxwell, JJ., Without Separate Written Opinion Concur in Part, Dissent in Part 1: James, J., Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 11-29-2012 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: JAMES T. KITCHENS JR. Disposition: Convicted of Counts I and II, grand larceny, and Count III, attempted grand larceny, and sentenced as a habitual offender of ten years and to pay a $500 fine for each count, with the sentence in Count I to run consecutively to the sentence in Count II, and with the sentence in Count III to run concurrently with the sentence in Count II District Attorney: Forrest Allgood Case Number: 2009-0103-CR1 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Vance Drummer |
OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LISA L. BLOUNT |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Grand larceny & Attempted grand larceny - Flight instruction - Discovery violation - URCCC 9.04(I) - Sufficiency of evidence - Habitual offender status |
| Summary of the Facts: | Vance Drummer was convicted of two counts of grand larceny and one count of attempted grand larceny. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Flight instruction Drummer argues that the circuit court judge abused his discretion by giving a flight instruction to the jury. An instruction that the defendant’s flight may be considered as a circumstance of guilt or guilty knowledge is appropriate only where that flight is unexplained and somehow probative of guilt or guilty knowledge. Drummer claims that his flight from Officer Anderson was equally probative of the larceny offenses and the felony-flight offense. However, the record shows that Drummer’s larceny charges stemmed from offenses that occurred earlier in the day in Columbus, located in Lowndes County, and that were completed prior to Drummer running the stop sign. Officer Anderson saw Drummer run a four-way stop sign in Mathiston, located in Webster County, which is a different county from the one where the larceny offenses occurred. A high-speed chase then ensued because Drummer failed to stop in response to Officer Anderson’s lights and siren. Thus, the record supports the circuit court’s decision to give a flight instruction. Issue 2: Discovery violation Drummer argues that he was prejudiced by the admission into evidence of Officer Anderson’s photographs, which the State failed to disclose prior to trial. Where the State is tardy in furnishing discovery which it was obligated to disclose and after an initial objection is made by the defense, the defendant is entitled upon request to a continuance postponement of the proceedings reasonable under the circumstances. Drummer raised a timely initial objection to the State’s failure to disclose Officer Anderson’s file. In accordance with URCCC 9.04(I), the circuit court judge then granted Drummer an opportunity to review the new photographs the State wished to admit into evidence. The circuit court judge also offered Drummer’s attorney another full day to interview Officer Anderson and to review the file he brought to court. Drummer’s attorney simply asked for another fifteen minutes to review the material. Drummer never requested a continuance or raised a motion for a mistrial at any point during this exchange. And, Drummer has failed to show any prejudice resulting from the admission of Officer Anderson’s photographs. Thus, there is no error. Issue 3: Sufficiency of evidence Drummer challenges the sufficiency of the evidence for his attempted grand larceny conviction. Considering the evidence in the light most favorable to the State, and accepting as true all credible evidence consistent with Drummer’s guilt, there is sufficient evidence in the record to support Drummer’s conviction for attempted grand larceny. The jury heard testimony from the officer who stopped Drummer in the stolen van and from the service manager of the company which owned the van, who discovered that someone had tried to steal a company truck, which he valued at approximately $6,000. Issue 4: Habitual offender status Drummer challenges his habitual-offender status. Prior to Drummer’s trial, the circuit court judge granted the State’s motion to amend Count I of Drummer’s indictment to reflect his status as a habitual offender. The two predicate convictions offered in support of the State’s motion included Drummer’s felony flight conviction from Officer Anderson in Webster County and an unrelated conviction for the unlawful taking of a motor vehicle in DeSoto County. For both predicate convictions, Drummer was sentenced to a term of one year or more in the custody of MDOC. Drummer argues that his felony flight fails as a predicate offense because it occurred on the same day as his grand larceny offenses. Although Drummer’s felony-flight and larceny offenses occurred on the same date, the offenses failed to arise from a common nucleus of operative fact. The crimes occurred at different times of day, occurred in different cities and counties, required different criminal intents, involved different victims, and required different elements of proof. Thus, the circuit court did not err in using the predicate felony-flight offense to enhance Drummer’s sentence for the grand-larceny conviction. |
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