Duncan v. State


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Docket Number: 2003-KA-02721-SCT
Linked Case(s): 2003-KA-02721-SCT

Supreme Court: Opinion Link
Opinion Date: 08-10-2006
Opinion Author: Easley, J.
Holding: Affirmed

Additional Case Information: Topic: Armed robbery - Re-indictment - Peremptory challenge - Jury instructions - Bifurcated trial - Sufficiency of evidence
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Diaz, Carlson, Graves, Dickinson and Randolph, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 10-21-2003
Appealed from: Jasper County Circuit Court
Judge: Robert G. Evans
Disposition: Duncan was found guilty of armed robbery and sentenced to life imprisonment.
District Attorney: Eddie H. Bowen
Case Number: 23-22-K

Note: Duncan's motion for permission to file a supplemental brief is denied.

  Party Name: Attorney Name:  
Appellant: Jonathan Duncan




LESLIE D. ROUSSELL



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. DANIEL HINCHCLIFF  

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Topic: Armed robbery - Re-indictment - Peremptory challenge - Jury instructions - Bifurcated trial - Sufficiency of evidence

Summary of the Facts: Jonathan Duncan was convicted of armed robbery and was sentenced to life imprisonment. He appeals.

Summary of Opinion Analysis: Issue 1: Re-indictment Duncan received two mistrials based on hung jury’s as to the charge of capital murder that was based on the victim’s murder during the armed robbery. The State re-indicted Duncan under two counts, murder and armed robbery, arising from the same facts and circumstances. Prior to the third trial, the State made an entry of nolle prosequi as to the original charge which the trial court granted, dismissing the original indictment for capital murder. Duncan argues that the re-indictment amounted to double jeopardy and violated his right to a speedy trial. Re-indictment for the same offense after an order of nolle prosequi does not bar prosecution. Thus, the trial court did not err in allowing the trial to proceed under the re-indicted charges. Issue 2: Voir dire The defense made a vague request that the trial court strike sixteen potential jurors for cause, because they recognized or otherwise were acquainted with the victim’s family. The trial court denied the request based on each of the potential jurors’ assurance that they could be fair and impartial. Of the twelve jurors that were actually seated to serve as the jury, only one of those jurors stated that she knew the family. The defense requested an additional peremptory strike in order to remove the juror, but the court denied the request. Duncan argues that the court erred in not granting an additional peremptory strike. However, nothing presented by Duncan demonstrates that the court erred in taking the juror at her word under oath that she could be fair and impartial. Issue 3: Jury instructions Duncan argues that the court erred by granting an armed robbery element instruction and an aiding and abetting instruction. In Milano v. State, 790 So. 2d 179, 185 (Miss. 2001) the Supreme Court provided a sample jury instruction on aiding and abetting from the federal model jury instructions which is identical to the jury instruction given in this case. Accordingly, the trial court did not err in giving the jury instruction. Issue 4: Bifurcated trial Duncan argues that the court erred by not ordering a bifurcated sentencing hearing on the armed robbery. Rule 10.04(B) of the Uniform Rules of Circuit and County Court Practice clearly states that the decision whether or not to order a bifurcated trial rests within the trial court’s discretion in its use of the discretionary word “may.” Issue 5: Sufficiency of evidence Duncan argues that the inconsistency in the witnesses’ testimony required the court to grant J.N.O.V. and that the facts of the case did not support an armed robbery conviction. Two eyewitnesses testified as to what happened during the robbery. In addition, the co-defendant testified that he and Duncan were the two men that robbed the convenience store. A witness who had supplied the .45 caliber handgun used in the robbery testified that Duncan told him he had shot the man in the convenience store. Considering the evidence in the light most favorable to the State, there was sufficient evidence to convict Duncan of armed robbery.


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