Hammonds v. State

734 So. 2d 295, 1999 WL 58979
CourtCourt of Appeals of Mississippi
DecidedFebruary 9, 1999
Docket97-KA-01096 COA
StatusPublished
Cited by3 cases

This text of 734 So. 2d 295 (Hammonds 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
Hammonds v. State, 734 So. 2d 295, 1999 WL 58979 (Mich. Ct. App. 1999).

Opinion

734 So.2d 295 (1999)

Durville Antonio HAMMONDS and Andra Fleming a/k/a Andre Flemming, Appellants,
v.
STATE of Mississippi, Appellee.

No. 97-KA-01096 COA.

Court of Appeals of Mississippi.

February 9, 1999.

*296 William F. Travis, Southaven, Jack Jones, Attorneys for Appellants.

Office of the Attorney General by Dewitt Allred III, Attorney for Appellee.

BEFORE BRIDGES, C.J., PAYNE, AND SOUTHWICK, JJ.

BRIDGES, C.J., for the Court:

¶ 1. Durville Antonio Hammonds and Andre Fleming were convicted in the De-Soto County Circuit Court of conspiracy to commit burglary (Count I), burglary of a dwelling (Count II) and grand larceny (Count III). Each was sentenced to five years suspended for Count I, fifteen years with nine years suspended, a fine of $500 and $100 to the Mississippi Crime Victims' Fund for Count II, and five years suspended for Count III. The sentences imposed in Count I and Count III are to run consecutively to the sentence imposed in Count II. Hammonds and Fleming appealed their conviction based on several assignments of error. Finding the assignments of error meritless, we affirm.

FACTS

¶ 2. On December 13, 1996, at about 9:00 or 9:30 a.m. Brian Williams glanced out the front window of his house on Walnut Grove Street in Horn Lake and noticed an unfamiliar yellow Chevette pull into the driveway of a house across the street. In the car were four persons, a black female, two black males, and a white male. As Williams watched, the woman, later identified as Nishiki Nelson, got out of the car, went to the front door of the house, knocked repeatedly on the door, and then returned to the car.

*297 ¶ 3. The yellow Chevette backed out of that driveway and pulled into the driveway at 6370 Walnut Grove Street where Scott and Carolyn McQueen resided. Nelson again got out of the car, went into the carport, and knocked repeatedly on the door. The larger of the two black males, Durville Antonio Hammonds, got out of the car and stood beside Nelson at the door. The driver, Robert Eugene Garcia, backed the vehicle out of the driveway out to the street, turned the car around and then backed it into the driveway under the carport. Williams called 911.

¶ 4. Garcia and the other black male, Andre Fleming, got out of the car and joined Nelson and Hammonds. Hammonds, who was wearing shorts, kicked the door open and all four persons entered the residence. Williams watched from his window as Fleming, Hammonds, Nelson, and Garcia carried personal property from the house and quickly loaded the items into the yellow Chevette.

¶ 5. The first officer to respond to the 911 call made by Williams, Horn Lake Police Officer Donald Dodge found the four persons seated in the loaded car preparing to leave. Officer Dodge identified Hammonds and Fleming as two of the four people in the car. The locked door to the house had been kicked in, and the residence had been ransacked. An inventory of the items found in the car was confirmed by Scott McQueen to be the items taken from the house.

¶ 6. Detective David Barton interviewed the suspects on the scene. Hammonds and Fleming stated that Garcia had told them the house belonged to his aunt and he needed their help to move his belongings out of her house. McQueen testified Garcia is no relation to the McQueens.

¶ 7. Andre Fleming, Robert Eugene Garcia, Durville Antonio Hammonds, and Nishiki Nelson were indicted for (1) conspiracy to commit burglary in violation of Miss.Code Ann. § 97-1-1(a) (Rev.1994), (2) burglary of a dwelling house in violation of Miss.Code Ann. § 97-17-23 (Supp.1998), and (3) grand larceny in violation of Miss. Code Ann. § 97-17-41 (Supp.1998). The trial court denied motions from Fleming and Hammonds for the severance of their causes, and they were tried jointly in the DeSoto County Circuit Court. Both were found guilty on each count and the trial court sentenced each to a term of fifteen years in the custody of the Mississippi Department of Corrections, with nine years suspended, a $500 fine and $100 to the Mississippi Crime Victims' Fund for the burglary, a consecutive term of five years, suspended, for the conspiracy and a consecutive term of five years, suspended, for the grand larceny.

¶ 8. Subsequently, Hammonds and Fleming moved for a JNOV or, alternatively, for a new trial. The trial court denied both motions.

¶ 9. Hammonds perfected this appeal assigning the denial of the motion for severance as error. Fleming appeals assigning as error (1) the trial court's denial of his request for a severance, (2) the trial court's denial of his motion for a mistrial, and (3) the trial court's denial of the motion for new trial. Finding these assignments of error to be without merit, we affirm.

ARGUMENT AND DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTIONS FOR SEVERANCE

¶ 10. Hammonds and Fleming assert the trial court abused its discretion in denying the motions for severance because the co-defendants presented antagonistic defenses. The State argues that neither co-defendant attempted to exculpate himself at the expense of the other; the balance of the evidence did not tilt more toward the guilt of one than toward the guilt of the other; and there was no conflict in the defenses relied upon by the co-defendants.

*298 ¶ 11. Moving for severance prior to trial, Hammonds argued that if Fleming testified Fleming would try to incriminate Hammonds by testifying that Hammonds kicked in the door making the co-defendants "diametrical[ly] against one another in the possible defense theories in this matter." The trial judge agreed with the State that such testimony by Fleming would not rise to the level of requiring a severance. Other testimony would show Hammonds and Fleming were caught at the scene by the police officers with the merchandise in the car; they were all in the car leaving; and all four of them were entering the house and loading stuff in the car. The trial judge denied Hammond's motion.

¶ 12. After the presentation of the State's case-in-chief, Hammond renewed his motion to sever. Fleming joined in the motion. The trial court again denied the motion to sever.

¶ 13. The trial judge has the discretion to grant a severance if it is necessary to promote a fair determination of the defendant's guilt or innocence. In Duckworth v. State, 477 So.2d 935, 937 (Miss. 1985), the Mississippi Supreme Court stated there are a number of criteria to be used to determine if the denial of a motion for severance is proper. These criteria are whether or not the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other. Absent a showing of prejudice, there are no grounds to hold the trial court abused its discretion. Id. at 937.

¶ 14. Neither Hammonds nor Fleming has shown he was prejudiced by being tried jointly. Although the appellants argue they presented antagonistic defenses which tended to exculpate one co-defendant at the expense of the other, the record shows Hammonds and Fleming presented the same defense: Garcia told them they were removing Garcia's belongings from Garcia's aunt's house.

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Related

Lawrence v. State
780 So. 2d 652 (Court of Appeals of Mississippi, 2001)
Blanch v. State
760 So. 2d 820 (Court of Appeals of Mississippi, 2000)
Johnson v. State
753 So. 2d 449 (Court of Appeals of Mississippi, 1999)

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734 So. 2d 295, 1999 WL 58979, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammonds-v-state-missctapp-1999.