Russell v. State


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Docket Number: 2009-KA-01628-COA
Linked Case(s): 2009-KA-01628-COA ; 2009-CT-01628-SCT

Court of Appeals: Opinion Link
Opinion Date: 08-16-2011
Opinion Author: Carlton, J.
Holding: Affirmed

Additional Case Information: Topic: Aggravated assault & Possession of firearm by convicted felon - Right to speedy trial - Prosecutorial vindictiveness - Discovery violation - Section 99-19-83 - Sufficiency of evidence - Voir dire - Peremptory challenges
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts and Russell, JJ.
Concur in Part, Concur in Result 1: Barnes and Maxwell, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 01-30-2009
Appealed from: Hinds County Circuit Court
Judge: W. Swan Yerger
Disposition: CONVICTED OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II, POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCED AS A HABITUAL OFFENDER TO LIFE FOR EACH COUNT, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION
District Attorney: Robert Shuler Smith
Case Number: 07-673-CR(Y)

  Party Name: Attorney Name:  
Appellant: Cedric D. Russell




DONALD W. BOYKIN



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY  

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Topic: Aggravated assault & Possession of firearm by convicted felon - Right to speedy trial - Prosecutorial vindictiveness - Discovery violation - Section 99-19-83 - Sufficiency of evidence - Voir dire - Peremptory challenges

Summary of the Facts: Cedric Russell was convicted of one count of aggravated assault and one count of possession of a firearm by a convicted felon. He was sentenced as a habitual offender to two terms of life without the possibility of parole or probation. He appeals.

Summary of Opinion Analysis: Issue 1: Right to speedy trial Russell argues that the delay in his trial date violates both his statutory right to a trial within 270 days of his arraignment under section 99-17-1 and his constitutional right to a speedy trial. The record shows that Russell was arrested on December 21, 2006, indicted on August 16, 2007, and arraigned on November 9, 2007. Russell’s trial was initially set for March 24, 2008, which was clearly within the statutory time of 270 days from his arraignment. Russell filed a pro se motion to dismiss for lack of a speedy trial on May 2, 2007, prior to his indictment, which was denied due to no violation of section 99-17-1, but it resulted in his trial date being moved up on the trial docket to February 11, 2008. However, Russell complained about his public defender, and he was subsequently appointed new counsel in February 2008, resulting in his trial date being returned to March 24, 2008. Russell’s new counsel then requested a mental evaluation on March 24, 2008. The trial transcript explains that the doctor performing the evaluation was booked until October 2008. The evaluation was performed on October 5, 2008, and the report explaining the results of the evaluation was issued the following day. After the defense-requested evaluation, the record reflects that Russell’s counsel asked that Russell’s case be put back on the trial docket, but the record shows that his counsel failed to ask for a trial setting. Russell’s trial finally began on January 27, 2009. However, as explained, much of that time is attributable to defense delay and there was no violation of Russell’s statutory right to a speedy trial. With regard to his constitutional right, Russell’s trial occurred a little more than two years after his arrest; therefore, the delay is presumptively prejudicial. As explained, much of the delay was a result of the defendant’s actions. Russell filed a motion for right to a speedy trial on May 2, 2007, which was prior to his indictment. The record also shows that Russell filed various additional motions in relation to his speedy trial request – including a motion to set aside the order denying the motion to dismiss for lack of speedy trial, a motion to show cause for delay, and a motion to dismiss the indictment for failure to provide a speedy trial. The record shows that the circuit judge carefully considered Russell’s claims and applied the appropriate judicial tests. Although the circuit judge did not fully articulate his calculations regarding defense delay in his findings, the record shows that the circuit judge spoke to the issue of prejudice and the Barker factors; thus, the circuit court’s findings are supported by substantial evidence in the record. Issue 2: Prosecutorial vindictiveness Russell argues that the amended motion to amend the indictment to charge him as a habitual offender should not have been granted due to prosecutorial vindictiveness. Russell alleges that the State made a plea offer to him prior to trial and told him that if he rejected the plea offer, the indictment would be amended to allege that he was a habitual offender under section 99-19-83. Russell claims that the State’s action of filing its amended motion to amend the indictment after the trial had ended but prior to sentencing, alleging that Russell had four prior convictions, one of which was a crime of violence, constituted prosecutorial vindictiveness. The doctrine of prosecutorial vindictiveness precludes action by a prosecutor that is designed to penalize a defendant for invoking any legally protected right available to a defendant during a criminal prosecution. Where there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness on the part of the sentencing authority, there is a presumption of prosecutorial vindictiveness. However, when no such likelihood exists, it is the defendant's burden to prove actual vindictiveness. The trial transcript and Russell’s brief allude to a document that the State sent to Russell’s counsel on February 14, 2008, making Russell a plea offer as a non-habitual offender, which stated that “if he refused this offer, we’ll amend indictment to big H.O. on both counts” and was signed by an assistant district attorney. Thus, Russell was aware of the terms of the plea agreement. In addition, the State is allowed to amend a defendant’s indictment after the verdict, but prior to sentencing. Thus, the circuit court did not err in allowing the State to amend its indictment prior to sentencing, but after conviction. Issue 3: Discovery violation Russell argues that due to a discovery violation by the State, he should not have been sentenced as a habitual offender pursuant to section 99-19-83. For a discovery violation to require reversal, there must be a showing of prejudice, and the non-disclosed material must be more than simply cumulative. The record reflects that the State called Evelyn Dixon, a special-projects officer at the MDOC who also serves as the records custodian, to testify that two time sheets existed regarding Russell’s prior convictions – “one for each incarceration, which we have two charges on each time sheet.” Russell’s counsel admitted that he had time to examine the documents, although he clarified that he was not confirming their accuracy as to the computation of time served. There were no discovery violations and also no showing of prejudice. Issue 4: Sufficiency of evidence Russell calls into question the circuit court’s finding beyond a reasonable doubt that he had four prior convictions, and one of the prior convictions was for a crime of violence. He also argues that the circuit court could not find, beyond a reasonable doubt, that he had served sentences of one year or more for two of the sentences. The State must prove a defendant’s habitual-offender status beyond a reasonable doubt. The record shows that the circuit court did not err in finding that the State had presented sufficient evidence that Russell had met the requirements of section 99-19-83. Issue 5: Voir dire Russell argues that the voir dire process prejudiced the jury against him, which denied him a fair and impartial trial. In order to overcome the presumption of fairness and impartiality, a party must present evidence indicating that the jury was not fair and impartial and show that prejudice resulted from the circuit court's handling of the voir dire. A defendant fails to show the necessary prejudice where the defense counsel fails to question jurors about an inappropriate comment, and the venire members have made general declarations that they could set aside their prejudices and reach a decision based on the evidence. Russell also argues that the circuit judge also improperly denied his challenges for cause for three veniremen who stated that when they entered the courtroom, they wondered “what Russell had done, not merely what he had been charged with.” Eventually, the defense counsel exercised peremptory challenges on each of the three jurors at issue, and as a result, none of these challenged jurors sat on the trial jury. Thus, this issue is without merit. Issue 6: Peremptory challenges Russell argues that the circuit court erred in denying his Batson objection regarding the State’s use of peremptory challenges against African American venirepersons without adequate, race- neutral justification. Russell objected to the State’s peremptory strikes on the grounds that all twelve strikes were African American venirepersons, and he contended that there were no race-neutral reasons for those strikes. The State proceeded to explain the race-neutral reasons for each of its strikes. The Supreme Court has accepted the following as race-neutral reasons for the exercise of peremptory challenges: living in a high-crime area, body language, demeanor, prosecutor's distrust of the juror, inconsistency between oral responses and juror's card, criminal history of juror or relative, social work and other types of employment, and religious beliefs, and inattentiveness. All of the reasons provided by the State fall within these race-neutral reasons.


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