160 So. 3d 1184
Miss. Ct. App.2014Background
- On Nov. 28, 2011, Kimberly Lewis (assistant manager at Sand Dollar Lifestyles) was robbed and forced into a hotel parking lot; approximately $8,000 in store deposits and personal items were taken by an armed perpetrator (Demarcus Timmons).
- Kenisha Rush (store assistant manager) testified that her boyfriend, Antonio Wallace, arranged for his cousin Timmons to rob Lewis; Wallace allegedly coordinated by receiving Rush’s text that Lewis was leaving and contacting others in the getaway car.
- Wallace’s brother Reginald and Timmons were at the scene; phone records show calls/texts between Wallace and Reginald during the relevant time frame; Wallace allegedly received $2,500 of the stolen funds and passed $500 to Rush.
- Timmons and Reginald testified that Wallace was not involved and received no money; other witnesses (Rush, Lewis) implicated Wallace in planning and distribution.
- A Madison County jury convicted Wallace of armed robbery, kidnapping, and conspiracy to commit armed robbery; sentences of 34, 34, and 5 years respectively, to run concurrently.
- Wallace appealed, raising (1) insufficient evidence, (2) verdict against the weight of the evidence, and (3) erroneous admission of a prior conviction (argued to have chilled his right to testify).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Wallace) | Held |
|---|---|---|---|
| Sufficiency of the evidence to convict as principal/aider or accessory before the fact | Evidence of planning, coordinating texts/calls, phone records, and distribution of proceeds supports conviction as principal (aider/abettor or accessory before the fact) | Wallace argued he was not present, was at most a knowing spectator, and therefore evidence is insufficient | Affirmed — viewed in light most favorable to State, jury could find Wallace participated in planning/implementation; conviction supported |
| Weight of the evidence (motion for new trial) | The same facts supporting sufficiency show verdict is not against overwhelming weight; credibility issues resolved by jury | Wallace argued convictions are against overwhelming weight given conflicting testimony from Timmons and Reginald | Affirmed — no unconscionable injustice; jury credibility determinations control |
| Admission of prior burglary conviction and chilling effect on right to testify | Trial court properly ruled prior conviction admissible for impeachment under Rule 609 and Peterson balancing; the State may use it if Wallace testified | Wallace contended the ruling chilled his right to testify; he did not testify and failed to proffer the intended testimony | Affirmed — defendant failed to proffer testimony; procedurally barred from claiming chilling effect on appeal |
Key Cases Cited
- Bush v. State, 895 So. 2d 836 (Miss. 2005) (standard for reviewing sufficiency and weight of the evidence)
- Davis v. State, 866 So. 2d 1107 (Miss. Ct. App. 2003) (jury resolves witness credibility and conflicts)
- Walton v. State, 752 So. 2d 452 (Miss. Ct. App. 1999) (aider and abettor/accessory before the fact may be convicted as principal)
- Peterson v. State, 518 So. 2d 632 (Miss. 1987) (balancing test for admitting prior convictions under impeachment rules)
- McClellan v. State, 34 So. 3d 548 (Miss. 2010) (defendant who fails to proffer testimony is procedurally barred from claiming chilling effect on appeal)
- Heidelberg v. State, 584 So. 2d 393 (Miss. 1991) (requirement to preserve a proffer of testimony to review claimed denial of right to testify)