IN THE SUPREME COURT OF MISSISSIPPI
NO. 2009-KA-00805-SCT
MARCUS DAVIS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 04/21/2009
TRIAL JUDGE: HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS
BY: BENJAMIN ALLEN SUBER
LESLIE S. LEE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA LYNN BLOUNT
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/05/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRAVES, P.J., DICKINSON AND CHANDLER, JJ.
GRAVES, PRESIDING JUSTICE, FOR THE COURT:
¶1. Davis was convicted by a Leflore County jury for attempted armed robbery of a
Dollar Tree store employee and sentenced to a term of twenty years in the custody of the
Mississippi Department of Corrections, with ten years to be served, followed by ten years of
post-release supervision, with five years supervised and five years unsupervised. Davis
appeals his conviction to this Court, raising the sole issue of whether the trial court abused
its discretion in admitting evidence of Davis’s involvement in a prior armed robbery of an
employee of the same Dollar Tree store. We find that the trial court did not abuse its
discretion in admitting evidence of Davis’s involvement in the prior armed robbery, because
the evidence was relevant to Davis’s intent, and its probative value outweighed its prejudicial
effect. Accordingly, we affirm Davis’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2. On May 4, 2007, Bobbie McKay (a female), the then-manager of the Dollar Tree store
in Greenwood, Mississippi, traveled with the cashier on duty that night, Shannon Jefferson
(a male), in his vehicle, to a nearby bank to make the store’s night deposit. The then-
assistant manager, Phoebe Porter, followed behind them in her own vehicle to the bank, per
company policy. McKay got out of Jefferson’s vehicle to drop the deposit in the night drop-
deposit box. As she was getting ready to drop the deposit, another vehicle appeared.
According to McKay, as she turned around (from facing the deposit box, where she had
dropped the money), she saw a tall person, dressed in dark blue with a dark blue hoodie over
his head coming toward her. Jefferson testified that the person was dressed in dark clothing
and was wearing a ski mask. The person was holding something shiny that McKay and
Jefferson suspected was a gun. McKay recalled that the person dropped the shiny object,
went to pick it up, and then ran back to the blue, four-door sedan from which the person had
emerged, because McKay was screaming. Jefferson similarly testified that it seemed like a
clip may have fallen out of the gun and then the person picked it up, ran back to the waiting
vehicle, and entered the passenger side of the car. McKay and Jefferson believed the person
2
had been planning to rob McKay. McKay returned to Jefferson’s car, and he, curiously, told
her not to call the police.1
¶3. Porter called the police, and the police located the blue sedan, occupied by the man
who had attempted to rob McKay, as well as another man, Travis Anderson. The police
engaged in a high-speed chase of the sedan, which ended when the driver of the sedan (later
determined to be Anderson) lost control and drove off the road into a cotton field. The two
men exited the passenger side of the sedan, with the taller man who had attempted to rob
McKay exiting first, and then both men ran into the cotton field. The police caught
Anderson, but the taller man escaped the police. The policeman who had chased down the
sedan and was on the scene at the cotton field testified that, on the seat of the sedan, the
police found Davis’s ID card from Viking Range, his place of employment.2 The policeman
testified that, when he saw Davis’s ID card in the sedan, he deduced that the tall, slim man
who had escaped probably was Davis. The tall man’s shape and size was consistent with the
shape and size of Davis, whom the policeman happened to know from having worked with
him for several years at a past job.
1
The State now suspects Jefferson assisted Davis in planning the attempted robbery.
2
The policeman who testified to having seen the ID, Sergeant Roosevelt Roach, testified that
he told a detective, Sergeant Chad Wiltshire, about it. Wiltshire testified that the Roach did in fact
tell him about the ID (although there are some slight inconsistencies in the trial transcript regarding
whether Roach showed Wiltshire the ID or only told him about it, and also about where exactly the
two officers were when Roach told Wiltshire about the ID). Wiltshire testified that he had no reason
to disbelieve Roach’s testimony that Roach had seen the ID. Roach told Wiltshire he gave the ID
to another detective, Deputy Willoughby, who conducted an inventory of the car back at the police
station; however Willoughby told Wiltshire that Roach did not give him the ID.
3
¶4. The investigator who conducted the inventory of the sedan recovered a pistol from the
glove compartment, a blue ski mask, a cell phone, and the car’s license plate, which was in
the back seat of the car.3 A magazine with loaded rounds was found at the bank on the
ground beside the ATM where McKay had made the night deposit. No usable latent prints
were found on the gun or the magazine. Investigation revealed that the cell phone belonged
to Davis, and that a phone call had been placed from that cell phone to the Dollar Tree store
about fifteen minutes prior to the attempted robbery.
¶5. Davis had gone to his job at Viking the day before the attempted robbery, but not the
day after the attempted robbery, nor any day thereafter.4 He ultimately was arrested on the
Greenwood police’s warrant in Harris County, Texas, where he had moved following the
attempted robbery.5
¶6. In addition to the testimony provided by Dollar Tree employees McKay and Jefferson
and law-enforcement officers, Anderson, the man driving the blue sedan, also testified.
Anderson, who was twenty-one at the time of the attempted robbery, had met Davis, who
3
Anderson testified that the license plate was inside the car because “the screws had rusted
and made the holes bigger and [he] just put the tag in the back windshield.” In other words,
Anderson testified that he had not removed the license plate in preparation for the robbery.
4
The attempted robbery occurred the night of May 4, 2007. Davis went to his job at Viking
on May 3, 2007, but not on May 5, 2007, nor any day after that. The transcript is not clear as to
whether he worked on May 4, 2007.
5
At the sentencing hearing, Davis testified that he had decided to leave his job at Viking and
go to Texas “[b]ecause [he] just wanted a better life, just different change.” Davis did not give
Viking notice that he was leaving his job, nor did he have a job lined up in Texas at the time he left
Mississippi.
4
was thirty-six at the time of the attempted robbery, while both men were working at Viking.
Anderson testified to the following: Anderson’s and Davis’s relationship had been limited
to small talk at the Viking plant until Davis invited Anderson on May 3, 2007 (the day before
the robbery) to join him at La Pinata, a Mexican restaurant. Davis treated Anderson – who
was a custodian at Viking and lived in a “little shack” behind his mother’s house out in
Tchula – to a meal and a drink. At La Pinata, Davis told Anderson he was hurting financially
and that he needed to “hit a lick.” 6 Davis explained that he “had hit one once before and he
didn’t want to use his vehicle to do it again.”
¶7. According to Anderson, Davis told Anderson that the prior “lick” was a stick-up at
Dollar Tree, where Davis had robbed his (Davis’s) wife, who worked there, and then fled.
Anderson thinks Davis said he called the Dollar Tree before the stick-up to find out what
time his wife got off work (and thus what time she would be exiting the store with the night
deposit). Davis wanted to use Anderson’s car to “hit another lick” involving Dollar Tree.
Anderson told Davis that he could not allow him to use the car (the blue Buick Skylark sedan
eventually used in the attempted robbery) because the car was owned by his mother. That
ended the conversation about “hitting a lick.”
¶8. According to Anderson, the following evening, May 4, 2007, Davis and Anderson
made plans to get together again. This time, they met at Davis’s house in Greenwood at
about 8:00 p.m. or 8:30 p.m. When Anderson pulled up to the house, Davis pulled up behind
6
“Hit a lick” is a colloquialism for robbery.
5
him in his white truck and had gotten into Anderson’s car. Davis was dressed in a brown
hoodie and black and brown pants and shoes. Davis told Anderson he needed to go by the
bank and directed Anderson to the bank. Once they had gotten to the bank, Davis told
Anderson to pull over, and Davis made a phone call, asking the person on the other end
“what time his friend girl got off from work.” Davis told Anderson he was waiting for
someone to pull up, and when a car pulled up, Davis said, “That’s who I need to see,” and
then he got out of Anderson’s car, pulling on a ski mask and pulling out a gun as he did so.
Davis then ran over to McKay, McKay screamed, and then Davis ran back to Anderson’s car
and told Anderson to drive. Anderson testified that before Davis had gotten out of the car,
he did not know Davis was going to try to rob McKay. The high-speed chase then ensued,
with Davis directing Anderson where to drive. Anderson testified that he had wanted to stop,
but Davis had told him to continue, and Anderson had been fearful of Davis because Davis
had a gun. The chase ended in a cotton patch, where Anderson was caught by police.
¶9. Anderson made two false statements to the police. Anderson initially told police
Davis’s nickname rather than Davis’s real name because, according to Anderson, he feared
that if he revealed Davis’s real name, Davis would know it was him who had told and would
retaliate by hurting Anderson’s family. The other false statement Anderson made to the
police was that Davis had been driving the car. According to Anderson, he made this
statement because the police were verbally and physically aggressive, and he was just
agreeing to everything they asked him – “[He] was just telling them what [he] thought they
really wanted to hear and [he] was really just trying to get it over with. . . . [The police] were
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being too aggressive for [him] and [he] had never been to jail anyway [or even dealt with the
police] . . . .” Anderson testified he had met up with Davis the night of the attempted robbery
only because “[he] wanted to get back out to eat again at La Pinata.”
¶10. Jefferson, the Dollar Tree employee who drove McKay to the bank the night of the
attempted robbery, testified regarding the robbery that had taken place in December 2006
(about five months before the attempted robbery at issue in the instant case). One night in
December 2006, while Jefferson and Annette Davis, Davis’s wife who was employed by
Dollar Tree as assistant manager at the time,7 were exiting the Dollar Tree store, someone
dressed in dark clothing ran up to Annette, who was walking in front of Jefferson, and
snatched the night-deposit money she was holding. The robber was wearing a hoodie, so
Jefferson could not see his face. The robber was never caught.
¶11. Davis and Anderson were indicted for one count of attempted armed robbery and one
count of fleeing law enforcement in the Circuit Court of Leflore County. Prior to trial,
Anderson entered a guilty plea. The trial court directed a verdict on the fleeing-law-
enforcement charge against Davis, dismissing that count. After a two-day trial, during which
Davis elected not to call any witnesses, the jury convicted Davis of attempted armed robbery.
After a sentencing hearing, the trial court sentenced Davis to a term of twenty years in the
custody of the Mississippi Department of Corrections, with ten years to be served, followed
by ten years of post-release supervision, with five years supervised and five years
7
Annette Davis was not employed by Dollar Tree at the time of the May 4, 2007, robbery.
7
unsupervised. After the trial court denied Davis’s motion for a new trial, or, in the alternative,
judgement of acquittal notwithstanding the verdict, Davis timely appealed to this Court.
DISCUSSION
¶12. The sole issue Davis raises on appeal is whether the trial court abused its discretion in
admitting testimony regarding the December 2006 unsolved armed robbery of the same Dollar
Tree store. Davis argues that the evidence regarding the December 2006 robbery was not
relevant under Mississippi Rule of Evidence 404(b) and was more prejudicial than probative
under Rule 403.
¶13. Pretrial, Davis made an ore tenus motion to exclude any evidence regarding the
December 2006 robbery. The trial court denied the motion, finding that the evidence was
admissible under 404(b) because it was relevant to motive, intent, or common plan and was
not admitted to prove that Davis had acted in conformity with his character. The trial court
also found that the two robberies were interrelated in that they had targeted the same store and
had occurred only five months apart. The trial court further found that the evidence’s
probative value was not substantially outweighed by the danger of unfair prejudice, confusion,
misleading the jury, or delay. The evidence, the trial court explained, was not introduced to
appeal to the jury’s emotions or sympathies.
¶14. We review a trial court’s admission or exclusion of evidence for abuse of discretion.
Murray v. State, 849 So. 2d 1281, 1288 (Miss. 2003). The trial court’s discretion must be
exercised within the confines of the Mississippi Rules of Evidence. Id. We will reverse only
if such discretion has been abused and a substantial right of a party has been affected. Id.
8
¶15. Rule 402 of the Mississippi Rules of Evidence requires that evidence be relevant and
provides that all relevant evidence is generally admissible. Miss. R. Evid. 402. Rule 403
provides that relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion, or waste of time. Miss. R. Evid.
403. Further, Rule 404(b) explains that “[e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that he acted in conformity
therewith.” Miss. R. Evid. 404(b). “It may, however, be admissible for other purposes such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Id. Evidence of other crimes, wrongs, or acts of the defendant offered
pursuant to Rule 404(b) may be excluded if its probative value is substantially outweighed by
the danger of unfair prejudice. Miss. R. Evid. 403.
¶16. We apply a two-part analysis to determine the admissibility of evidence under Rule
404(b):
The evidence offered must (1) be relevant to prove a material issue other than
the defendant’s character; and (2) the probative value of the evidence must
outweigh the prejudicial effect. The second part of this analysis is required by
Mississippi Rule of Evidence 403, as Rule 403 is the ultimate filter through
which all otherwise admissible evidence must pass.
Welde v. State, 3 So. 3d 113, 117 (Miss. 2009) (internal citations and quotations omitted).
¶17. We find that the evidence regarding the December 2006 unsolved armed robbery of
the same Dollar Tree store was relevant to proving Davis’s intent, and further, that it was not
admitted to prove Davis’s character to show that he acted in conformity therewith. Miss. R.
Evid. 404(b). Evidence that he had robbed the same store several months earlier makes it
9
more likely that he intended to rob McKay on May 4, 2007, even though he did not end up
successfully doing so. Establishing that Davis intended to rob McKay was necessary for the
State to meet its burden of proving beyond a reasonable doubt that Davis “did unlawfully,
willfully and feloniously, attempt to take the personal property of Dollar Tree from the person
of or presence of Bobby McKay, against her will, by putting Bobby McKay in fear of
immediate injury to her person by exhibition of a deadly weapon . . . . ” – i.e., establishing
intent was fundamental to proving Davis guilty of attempted armed robbery. In addition, the
evidence’s probative value was not substantially outweighed by the danger of unfair
prejudice. Miss. R. Evid. 403. As the trial court noted, evidence of Davis’s involvement in
the prior robbery is not the type of evidence that would play on the jurors’ sympathies or
emotions.
¶18. Furthermore, this Court has held that “the State has a legitimate interest in telling a
rational and coherent story of what happened.” Brown v. State, 483 So. 2d 328, 330 (Miss.
1986) (internal quotations and citations omitted). See also Williams v. State, 991 So. 2d 593,
607 (Miss. 2008). “Where substantially necessary to present to the jury the complete story
of the crime, evidence or testimony may be given even though it may reveal or suggest other
crimes.” Brown, 483 So. 2d at 330 (internal quotations and citation omitted). See also
Williams, 991 So. 2d at 607.
¶19. Introducing evidence of Davis’s involvement in the December 2006 robbery was
necessary for the State to tell “a rational and coherent story of what happened.” Brown, 483
So. 2d at 330 (internal quotations omitted). Anderson’s testimony suggests that, were it not
10
for Davis having already used his vehicle in a robbery of the same Dollar Tree store, Davis
would not have sought use of Anderson’s car. Thus, introducing evidence of the December
2006 robbery was necessary to explain to the jury how Anderson came to be involved in the
attempted robbery. Furthermore, according to Anderson, Davis was the one who brought up
the December 2006 robbery and who voluntarily admitted that: “. . . he was hurting
financially. . . and he needed to hit a lick . . . he had hit one once before [involving Dollar
Tree] and he didn’t want to use his vehicle to do it again. He wanted to use [Anderson’s]
vehicle.” 8
¶20. Accordingly, we find that the trial court did not abuse its discretion in admitting
evidence of the December 2006 robbery. Notably, in addition to analyzing the evidence under
Rule 404(b) and Rule 403, the trial court offered to give a limiting jury instruction regarding
Rule 404(b).9
CONCLUSION
¶21. For the reasons discussed above, we affirm Davis’s conviction and sentence.
¶22. COUNT I: CONVICTION OF ATTEMPTED ARMED ROBBERY AND
SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH TEN (10) YEARS TO BE SERVED,
8
Anderson further testified:
[Davis] just said that, I think, his wife was working there [at Dollar Tree], maybe
that’s what he said, his wife was working there and that he just stuck her up or
whatever and took off, whatever. . . . I think he said he called there to see what time
they got off and that, I think that was it. He called to see what time she got off.
9
Davis, however, elected not to have the jury instruction given, reasoning that it would only
call more attention to the matter.
11
FOLLOWED BY TEN (10) YEARS OF POST-RELEASE SUPERVISION, WITH
FIVE (5) YEARS SUPERVISED AND FIVE (5) YEARS UNSUPERVISED, WITH
CONDITIONS, AFFIRMED.
WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, KITCHENS,
CHANDLER AND PIERCE, JJ., CONCUR. DICKINSON, J., CONCURS IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION.
12