Elliott v. State


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Docket Number: 2009-KA-01516-COA

Court of Appeals: Opinion Link
Opinion Date: 04-19-2011
Opinion Author: Irving, P.J.
Holding: Affirmed in part, reversed and rendered in part.

Additional Case Information: Topic: Armed robbery, Conspiracy to commit armed robbery, Receipt of stolen property, & Conspiracy to receive stolen property - Defective indictment - Jurisdiction - Sufficiency of evidence - Bad acts - Prosecutorial misconduct -
Judge(s) Concurring: Lee, C.J., Ishee and Roberts, JJ.
Non Participating Judge(s): Griffis, P.J., Myers and Maxwell, JJ.
Concur in Part, Concur in Result 1: Barnes, J. Without Separate Written Opinion
Concur in Part, Dissent in Part 1: Carlton, J. With Separate Written Opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 12-12-2007
Appealed from: Pike County Circuit Court
Judge: David H. Strong
Disposition: Convicted of Count I, Armed Robbery; County II, Conspiracy to Committ the Crime Armed Robbery; Count III, Possession of Stolen Property; and Count IV, Conspiracy to Commit the Crime of Possession of Stolen Property; and Sentenced to Twenty-Five Years on Count I and Five Years Each on Counts II, III, and IV, all to Run Consecutively in the Custody of the Mississippi Department of Corrections, with the Defandant to Serve the Twenty-Five Years on Count I and the Sentences on Counts II, III, and IV to be Suspended, with Five Years of Post-Release Supervision
District Attorney: Dee Bates
Case Number: 07-400-PKS

  Party Name: Attorney Name:  
Appellant: Tony Elliott a/k/a Tony Elliot




LESLIE S. LEE, SHARON ANGLIN COUNTS



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER  

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Topic: Armed robbery, Conspiracy to commit armed robbery, Receipt of stolen property, & Conspiracy to receive stolen property - Defective indictment - Jurisdiction - Sufficiency of evidence - Bad acts - Prosecutorial misconduct -

Summary of the Facts: Tony Elliott was convicted of armed robbery, conspiracy to commit armed robbery, receipt of stolen property, and conspiracy to receive stolen property. Elliott was sentenced to twenty-five years for the armed robbery, and to five years for each of the other convictions, with the sentence for the conspiracy to commit armed robbery to run consecutively to the sentence for armed robbery and the sentence for receipt of stolen property to run consecutively to the sentence for conspiracy to commit armed robbery. However, the circuit court suspended the imposition of all but the twenty-five-year sentence and sentenced Elliott to five years of post-release supervision. Elliott appeals.

Summary of Opinion Analysis: Issue 1: Defective indictment Elliott argues that the portion of the indictment that charged him with conspiracy to possess stolen property was fatally unclear. This contention of error is moot. Issue 2: Jurisdiction Elliott argues that the circuit court lacked jurisdiction to try him for the crime of conspiracy to possess stolen property, because any conspiracy that occurred happened in Louisiana. From the record, it is clear that the conspiracy to steal the Jeep occurred wholly in Louisiana by and between Elliott and the others while they were in Louisiana. There is nothing in the record to indicate that any of the three men were in Mississippi at any point during the conspiracy to steal the Jeep. The crime of conspiracy is complete when there is evidence of an agreement. Some Mississippi cases have found continuing jurisdiction for a conspiracy even after the conspirators formed an agreement. However, the alleged conspiracy in this case, which began in Louisiana, was formed for the purpose of stealing the Jeep, which was subsequently stolen in Louisiana. The conspiracy here would have only continued until the theft of the Jeep in Louisiana. Thus, the circuit court lacked jurisdiction with regard to this count. Issue 3: Sufficiency of evidence Elliott challenges the sufficiency of the evidence. In Count I, Elliott was convicted of armed robbery. Given Elliott’s statement prior to trial that he and the others went to the apartment with guns and that he knew Andry was going to pop the ignition in order to steal the Mustang, sufficient evidence exists to prove that Elliott committed the offense of armed robbery. In Count II of the indictment, Elliott was charged with conspiracy to commit armed robbery. The general rule in Mississippi is that the uncorroborated testimony of an accomplice or a co-conspirator may be sufficient to sustain a conviction. However, an accomplice’s testimony is not sufficient if it is unreasonable, self-contradictory, or substantially impeached. Here, the testimony of one of the accomplices was corroborated by Elliott’s pretrial statement to the police, wherein he said that Andry was going to pop the ignition on the Mustang in order to steal it. Although there were some inconsistencies within the accomplice’s statement, under the circumstances, his testimony and Elliott’s statement are sufficient to sustain Elliott’s conviction for conspiracy to commit armed robbery. With regard to the conviction for possession of stolen property, the only evidence regarding the Jeep’s theft came from one of the accomplices, who stated unequivocally that he, Andry, and Elliott had stolen the Jeep together. It is clear that, notwithstanding the fact that the Jeep was stolen in Louisiana, Elliott could be prosecuted in Mississippi for receipt of stolen property because he possessed the stolen Jeep while in Mississippi. Issue 4: Bad acts Elliott argues that the Jeep’s theft was an extraneous bad act, evidence of which should have been inadmissible. It is obvious that Elliott’s argument is premised on the erroneous notion that he could not be prosecuted in Mississippi for possessing and retaining possession in Mississippi of the Jeep that was stolen in Louisiana. The State was obligated to prove as an element of the crime of receipt of stolen property that the property was in fact stolen and that Elliott knew that it was stolen. Since the theft occurred in Louisiana, evidence concerning the theft that occurred there was relevant. Issue 5: Prosecutorial misconduct Elliott argues that the prosecutor committed misconduct by indicting Elliott for receiving stolen property when Elliott had actually stolen the property in question. Elliott’s argument is premised on the erroneous notion that his indictment for receipt of stolen property is improper. Since his prosecution for receipt in Mississippi of property that was stolen in Louisiana was proper, it necessarily follows that the prosecutor did not commit any misconduct.


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