Newell v. State

754 So. 2d 1261, 1999 WL 1140902
CourtCourt of Appeals of Mississippi
DecidedDecember 14, 1999
Docket1998-KA-01427-COA
StatusPublished
Cited by11 cases

This text of 754 So. 2d 1261 (Newell 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
Newell v. State, 754 So. 2d 1261, 1999 WL 1140902 (Mich. Ct. App. 1999).

Opinion

754 So.2d 1261 (1999)

Derrick NEWELL, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01427-COA.

Court of Appeals of Mississippi.

December 14, 1999.

*1263 Edward O'Neal Benson, Brookhaven, Attorney for Appellant.

Office of the Attorney General by Deirdre McCrory, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.

BRIDGES, J., for the Court:

¶ 1. Derrick Newell was convicted in the Circuit Court of Walthall County for the crime of conspiracy to commit armed robbery. Newell was sentenced as a habitual offender to a term of life imprisonment without the benefit of early release or parole in the custody of the Mississippi Department of Corrections. Newell filed a motion for a judgment notwithstanding the verdict or, in the alternative, a motion for a new trial which the trial court denied. Aggrieved with the judgment against him, Newell has perfected an appeal and argues the following issues

1. THE CIRCUIT JUDGE VIOLATED NEWELL'S 14TH AMENDMENT RIGHT TO DUE PROCESS AND PREJUDICED THE JURY AGAINST HIM.
2. THE CIRCUIT JUDGE ERRED BY IMPROPERLY ADMITTING HEARSAY STATEMENT'S OF THE STATE'S WITNESSES.
3. THE JURY VERDICT WAS AGAINST THE OVERWHELMING WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
4. THE CIRCUIT COURT COMMITTED REVERSIBLE ERROR BY CHARGING AND CONVICTING ONLY NEWELL OF CONSPIRACY.
5. THE CIRCUIT COURT ERRED BY IMPROPERLY ENHANCING THE SENTENCE OF NEWELL WITHOUT SUFFICIENT NOTICE.

Finding these issues to be without merit, we affirm the judgment of the circuit court.

FACTS

¶ 2. In September 1997, David Cooley was asleep in his home when two men clothed in black and wearing masks entered his bedroom and demanded money. When Cooley did not produce the money, one man put a gun in Cooley's mouth, and the other man put a gun to his chest asked him to give up the money. Once the men completed the robbery, they fled from Cooley's house. The State presented evidence that Newell, Carlos Craft, and Temus Magee had formed a conspiracy to commit armed robbery against Cooley. The testimony showed that although Newell waited in the car while Craft and Magee committed the robbery, Newell knew that the robbery was being committed; he drove Craft and Magee away from the scene of the crime after the robbery had been committed, and he was given some of the proceeds from the crime. The defense presented testimony that Newell was not part of the armed robbery. Newell was indicted for the crime of conspiracy to commit armed robbery. After hearing all testimony, the jury apparently accepted the State's version of events and found Newell guilty. The circuit court denied Newell's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. Aggrieved with the trial court's decision, Newell has now perfected this appeal.

ARGUMENT AND DISCUSSION OF LAW

¶ 3. The Court would like to comment that the appellant's brief has been somewhat unusual in that in the "ARGUMENT" section, the brief failed to separately and distinctly address each issue. Although the brief gives a general argument, without the aid of numbers and headings, there has been some difficulty in distinguishing each assignment of error and the argument *1264 intended to support each assignment. However, the Court will address each issue as it is listed in the statement of issues. Parties should see M.R.A.P. 28 for the proper form for the appellate brief.

Issue 1: Did the trial court violate Newell's Fourteenth amendment right to due process by making him wear shackles and handcuffs inside of the courtroom?

¶ 4. Newell argues on appeal that the trial court abused its discretion by making Newell appear in court shackled and handcuffed. He further maintains that this action created a presumption of guilt rather than innocence that prejudiced the jury against him. The State argues that Newell's threats against witnesses and the prosecutor and his vow not to be committed to prison alive show that the trial judge did not abuse his discretion. The State further contends that there is no evidence that the jury ever actually saw the shackles.

¶ 5. The Mississippi Supreme Court held in Rush v. State:

It is a common law right of a person being tried for the commission of a crime to be free from all manner of shackles or bonds, whether of hands or feet, when in court in the presence of the jury, unless in exceptional cases where there is evident danger of his escape or based upon reasonable grounds for apprehension.

Rush v. State, 301 So.2d 297, 300 (Miss. 1974). The trial judge has the discretion to determine whether the circumstances are such that the defendant should be shackled during the trial. Brown v. State, 690 So.2d 276, 287 (Miss.1996)(citing Rush, 301 So.2d at 300). In the case sub judice, there was testimony presented that Newell had threatened to "wipe out" the district attorney and all the witnesses. There was further testimony that Newell stated that they would have to kill him to remove him from the courtroom. The record shows that the judge determined that Newell was an evident danger to himself as well as others in the courtroom. After examining the record and the testimony therein, we cannot say that the trial judge abused his discretion. Accordingly, this issue is without merit.

Issue 2: Did the circuit judge improperly admit hearsay statements?

¶ 6. Newell argues that "the circuit judge improperly admitted a `slew' of hearsay statements by various witnesses." Newell's brief instructs this Court to "see" two cases in support of his position, but he fails to make any argument at all on how these cases apply to this issue. The Mississippi Supreme Court has found:

The purpose of briefs and arguments is to present to the Court in concise form the points and questions in controversy, and by fair argument on the facts and law of the case, to assist the Court in arriving at a just and proper conclusion, and to notify opposing counsel of the questions to be presented and the authorities relied on in reference thereto. In other words, the purpose is to aid the appellate court in determining what the law is.

Dozier v. State, 247 Miss. 850, 851-52, 157 So.2d 798, 799 (1963). The State argues that Newell failed to identify the alleged hearsay which is the subject of this issue. The State further maintains that Newell has not even begun to demonstrate any reversible error to this Court. We agree. Newell takes less than a page to make a general assertion that the trial court incorrectly admitted hearsay statements. However, he never states which statements were incorrectly admitted, nor does he give any reasons or arguments as to why the statements were incorrectly admitted. On appellate review, the position of this Court is clear; "[w]e require counsel to not only make a condensed statement of the case but, must also support propositions of law with reasons and authorities." Hoops v. State, 681 So.2d 521, 535 (Miss.1996)(quoting Pate v. State, 419 So.2d 1324, 1325-26 (Miss.1982)). *1265 M.R.A.P. 28(a)(1)(6) gives the requirements for the argument in an appellate brief:

The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied upon.

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Cite This Page — Counsel Stack

Bluebook (online)
754 So. 2d 1261, 1999 WL 1140902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newell-v-state-missctapp-1999.