Wilson v. State
| Docket Number: | 2011-KA-00097-COA Linked Case(s): 2011-KA-00097-COA ; 2011-CT-00097-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 06-05-2012 Opinion Author: Ishee, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Armed robbery - Sufficiency of evidence - Mistrial - Ineffective assistance of counsel Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Roberts, Carlton, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 09-15-2010 Appealed from: Franklin County Circuit Court Judge: Forrest Johnson Disposition: CONVICTED OF ARMED ROBBERY AND SENTENCED TO FORTY YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS Case Number: 10-KR-013 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Donald James Wilson a/k/a DJ Wilson a/k/a Donald J. Wilson a/k/a Donald Wilson |
W. DANIEL HINCHCLIFF
LESLIE S. LEE
PHILIP A. LETARD |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR. SCOTT STUART |
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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: | Armed robbery - Sufficiency of evidence - Mistrial - Ineffective assistance of counsel |
| Summary of the Facts: | Donald Wilson was convicted of armed robbery and sentenced to forty years. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Wilson argues that a deadly weapon must actually be used in the commission of a robbery in order for the robbery to constitute an armed robbery. He contends that the knife he allegedly possessed was never used in the robbery, nor was it referred to during the robbery as part of a spoken or written threat. He also argues that the knife was not directly or indirectly the cause of the fear of any immediate injury to the tellers. However, Wilson failed to assert this argument prior to the instant appeal. An appellant is not entitled to raise a new issue on appeal, since to do so prevents the trial court from having an opportunity to address the alleged error. Notwithstanding the procedural bar, Wilson’s claim that insufficient evidence was presented to prove all the elements of armed robbery is without merit. The tellers in this case reasonably believed one of the men had a knife because one teller thought she saw the knife. They were immediately placed in fear of harm when the men entered the bank and told the women to hand over the money. The overt act need not be the showing of the deadly weapon, only an overt act during the commission of the crime. Thus, there was sufficient evidence to convict Wilson of armed robbery. Issue 2: Mistrial Wilson argues the trial court erred in not declaring a mistrial when a witness stated on the stand that Wilson was a “three time loser,” referring to Wilson’s prior crimes. Wilson is procedurally barred from raising this issue since he failed to object at trial. In addition, the statement was not prejudicial to Wilson’s case. Issue 3: Ineffective assistance of counsel Wilson argues he received ineffective assistance of counsel. Wilson first contends he received ineffective assistance of counsel because his trial attorney failed to rebut the State’s race-neutral reasons for exercising its peremptory challenges. However, Wilson does not offer any argument as to how this alleged deficiency prejudiced his case. Wilson also asserts glaring failures of his trial counsel include his failure to move for a directed verdict at the close of the State’s case, failure to renew that motion at the close of the evidence, failure to submit a peremptory instruction, and failure to move for a JNOV after the close of the case. Counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections falls within the ambit of trial strategy. Wilson argues his trial counsel introduced inflammatory evidence when, during cross-examination of a witness for the State, he asked if Wilson had a weapon on him at the time of his arrest. However, the decision to ask certain questions is part of trial strategy. Wilson argues that his trial counsel was ineffective by failing to ask for a direct verdict or a peremptory instruction. Wilson has failed to prove that his trial counsel’s performance caused any prejudice to his case. |
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