253 So. 3d 334
Miss. Ct. App.2018Background
- On January 11, 2012, masked gunmen attempted/committed robberies at a Burger King and a Popeyes; a Popeyes manager (Tameka Cross) was forced at gunpoint to open the safe and ~ $700 taken. Horton was arrested days later.
- Horton gave a recorded video confession admitting he wore a mask, was “in all black,” used a handgun, robbed Popeyes and a Waffle House, and carjacked a maroon Impala. He also provided a written statement repeating similar facts.
- Indictment: Count I — attempted robbery of Burger King; Count II — robbery of Popeyes; allegation of violating Miss. Code §97-37-37(1) (use/display of firearm during felony).
- Jury trial (Dec. 2015): Horton convicted of Count II (Popeyes), acquitted on Count I. Jury instructions for armed robbery referenced exhibition of a deadly weapon (handgun).
- Sentencing: Circuit court sentenced Horton to 30 years (20 to serve, 10 suspended, 5 years post-release supervision) and imposed a consecutive 5-year firearm enhancement under §97-37-37(1). Post-trial motion denied; Horton appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Number of peremptory challenges | Horton: armed robbery is a capital offense allowing 12 peremptories because it carries possible life imprisonment. | State/Court: the State did not seek life; under Rule 10.01 for felonies not involving possible death or life, each side gets 6. | Court: No abuse of discretion — six peremptories appropriate where jury sentencing to life was not possible in practice. |
| Firearm enhancement under §97-37-37(1) | Horton: trial court erred imposing enhancement because jury was not separately instructed to find “use or display” of a firearm; also double jeopardy claim. | State: jury convicted armed robbery with instruction finding exhibition of a deadly weapon; that finding supplies the element for the enhancement; enhancement is sentencing, not separate offense. | Court: Enhancement valid — jury found exhibition/use of a handgun; no double jeopardy violation. |
| Admission of other-bad-acts evidence (Waffle House, carjacking) — Rules 404(b), 403, 105 | Horton: evidence of uncharged Waffle House robbery and carjacking was prejudicial and not necessary; lack of limiting instruction violated Rule 105. | State: statements and events were part of a single transaction/series and necessary to tell a coherent story and to corroborate witness testimony about a dark red car; admissible under 404(b); trial judge considered 403; defendant waived limiting instruction by not requesting one. | Court: No abuse of discretion — 404(b) admissible as part of a common scheme/transaction and to identify defendant; any Rule 403 concern was not reversible and any limiting instruction could have been requested by defense under Rule 105. |
Key Cases Cited
- Bester v. State, 188 So. 3d 526 (Miss. 2016) (court may impose life sentence absent jury recommendation where statute permits court to fix penalty)
- Johnson v. State, 44 So. 3d 365 (Miss. 2010) (jury finding of armed robbery by firearm satisfies elements of firearm-enhancement statute)
- Taylor v. State, 137 So. 3d 283 (Miss. 2014) (legislature intended enhanced sentencing statutes to apply with the underlying offense without double-jeopardy concern)
- Price v. State, 898 So. 2d 641 (Miss. 2005) (evidence of other crimes admissible when part of single transaction or closely related series)
- Brown v. State, 890 So. 2d 901 (Miss. 2004) (State may present other-crimes evidence when necessary to present a coherent story)
- Davis v. State, 40 So. 3d 525 (Miss. 2010) (same; admissibility of other acts when substantially necessary for complete story)
- Jones v. State, 920 So. 2d 465 (Miss. 2006) (Rule 403 balancing required but trial judge need not use formulaic language; review focuses on whether evidence was patently prejudicial)
- Curry v. State, 202 So. 3d 294 (Miss. Ct. App. 2016) (defendant may waive a limiting instruction under Rule 105; failure to request one forecloses reversible error)