Drummer v. State

167 So. 3d 1222, 2014 WL 3409099, 2014 Miss. App. LEXIS 379
CourtCourt of Appeals of Mississippi
DecidedJuly 15, 2014
DocketNo. 2012-KA-02004-COA
StatusPublished
Cited by3 cases

This text of 167 So. 3d 1222 (Drummer v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Drummer v. State, 167 So. 3d 1222, 2014 WL 3409099, 2014 Miss. App. LEXIS 379 (Mich. Ct. App. 2014).

Opinion

CARLTON, J.,

for the Court:

¶ 1. A jury found Vance Drummer guilty of two counts of grand larceny and one count of attempted grand larceny. Drummer now appeals the Lowndes County Circuit Court’s final judgment against him and the denial of his motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On appeal, Drummer raises the following issues: (1) whether the circuit court judge erred by giving a flight instruction to the jury; (2) whether Drummer was prejudiced by a discovery violation; (3) whether the evidence was sufficient to support Drummer’s conviction for attempted grand larceny; (4) whether the guilty verdict for attempted grand larceny was contrary to the weight of the evidence; and (5) whether the circuit court judge properly sentenced Drummer as a habitual offender. Finding no error, we affirm.

FACTS

¶ 2. While finishing his patrol around 3:55 a.m. on January 2, 2009, Officer Happ Anderson witnessed a vehicle run through a four-way stop in Mathiston, Mississippi, which is located in both Webster County and Choctaw County. The vehicle, a white utility van, was pulling a trailer loaded with a John Deere lawnmower. Officer Anderson turned on his siren and flashed [1226]*1226his lights as he pulled behind the van heading west on Highway 82. As Officer Anderson later testified at trial, for the majority of the highway chase, he and the van drove in excess of ninety miles per hour. When the van’s driver, later identified as Drummer, failed to slow down or otherwise respond to his pursuit, Officer Anderson attempted to pass the van. However, each time Officer Anderson tried this maneuver, Drummer swung the trailer into the left lane to prevent Officer Anderson from pulling alongside the van.

¶ 3. Officer Anderson contacted another law enforcement officer in a nearby town. This second officer attempted to stop the van by parking his patrol car in the westbound lanes of the highway. However, Drummer managed to drive around the roadblock and continue along Highway 82. After passing Winona, Mississippi, about forty miles from Mathiston, Officer Anderson’s radio signal failed, and he called 911 for assistance. The dispatcher eventually reached law enforcement officers in Leflore County, who were able to set up a roadblock at the county line .between Carroll County and Leflore County before the van reached them.

¶4. As the van neared the roadblock, Drummer turned into a church parking lot and hit a light pole. Drummer then exited the van and, with the police pursuing him, ran through a pasture and into a utility shed. When Drummer refused to exit the utility shed, the police officers sent a police dog into the shed. Soon after the dog entered the shed, Drummer exited. An inspection of both the van and the utility shed confirmed that Drummer was the only person involved in the chase. The police’s investigation revealed that the white van, trailer, and John Deere lawnmower had been stolen from businesses in Columbus, Mississippi, which is situated in Lowndes County. The white van was stoi-len from Thompson Truck Center, and the trailer and John Deere lawnmower were both stolen from Agri-Turf, located about a mile down the road from Thompson Truck Center. Police also learned in the course of their investigation that one of Thompson Truck Center’s trucks had sustained interior damage when someone had apparently tried to start the vehicle without a key.

¶ 5. A grand jury indicted Drummer for two counts of grand larceny and one count of attempted grand larceny pursuant to Mississippi Code Annotated section 97-17-41 (Rev.2006). Prior to the start of Drummer’s trial, the State filed a motion to amend Count I of his indictment to reflect that he was a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). The motion stated that Drummer had previously been convicted of the following crimes: (1) felony fleeing or eluding a law enforcement officer in a motor vehicle; and (2) the unlawful taking of a motor vehicle. The motion further provided that Drummer’s felony-fleeing conviction occurred in Webster County Circuit Court and that his conviction for the unlawful taking of a motor vehicle occurred in DeSoto County Circuit Court. Before voir dire, and outside the presence of the jury, the circuit court judge presiding over Drummer’s trial granted the State’s motion to amend the indictment.

¶ 6. During Drummer’s trial, the State called Officer Anderson, now retired, as its first witness. During a bench conference held partway through Officer Anderson’s testimony, Drummer’s attorney informed the circuit court judge that the State had just shown him some photographs not previously disclosed to the defense. In response, the State explained that it had not received a copy of the Mathiston police file prior to trial. Instead, Officer Anderson had brought the photographs with him [1227]*1227that morning, and the State had just viewed them for the first time. The six new photographs in Officer Anderson’s file were taken at Thompson Truck Center in Columbus after the discovery of the grand larceny of the white utility van and the attempted grand larceny of the company’s truck. The photographs depicted the damage done to the chain securing Thompson Truck Center’s gate and to the steering column and ignition switch inside the company’s truck.

¶ 7. In light of the State’s delinquency in discovering and disclosing the photographs, the circuit court judge gave Drummer’s attorney an opportunity to review the photographs during a trial recess. After examining the photographs, Drummer’s attorney moved to exclude them, but he failed to request a continuance or mistrial at any point during the discussion. The circuit court judge determined that the photographs depicted content that had already been described in the indictment and the reports provided in discovery. The circuit court judge also determined that Officer Anderson had been available to both sides before trial and that there was no evidence of an attempt by either side to gain an unfair advantage. Therefore, the circuit court judge allowed the photographs into evidence. However, since neither side had seen the photographs prior to trial that morning, the circuit court judge also ordered that a copy of Officer Anderson’s file be made for both sides, and he granted both sides additional time to review the material.

¶ 8. When the trial resumed, Officer Anderson testified as to the content of several photographs that the State admitted into evidence. He stated that the photographs fairly and accurately depicted the white van, its attached trailer, and the John Deere lawnmower as they looked after the highway chase. One photograph depicted a screwdriver, which Officer Anderson testified that he saw fall from Drummer’s pocket as Drummer exited the van. Additional photographs showed the damage inflicted on the van. Officer Anderson testified that the van’s fender sustained damage and its rearview mirror shattered when the van hit the light pole. He also testified that the ignition switch on the van’s steering column had been pried off.

¶ 9. The State next called Kenny Smith as a witness. Smith worked as a service manager for Thompson Truck Center. The morning of January 2, 2009, Smith received a telephone call informing him that the Webster County Sheriffs Office had recovered a stolen van that belonged to Thompson Truck Center. When Smith arrived at work, he noticed that the chain securing the gate had been cut and that the van was missing from its usual parking spot.

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Related

Vance Drummer v. State of Mississippi
167 So. 3d 1180 (Mississippi Supreme Court, 2015)

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Bluebook (online)
167 So. 3d 1222, 2014 WL 3409099, 2014 Miss. App. LEXIS 379, Counsel Stack Legal Research, https://law.counselstack.com/opinion/drummer-v-state-missctapp-2014.