                       COURT OF APPEALS 1/31/97
                                  OF THE
                           STATE OF MISSISSIPPI
                             NO. 94-KA-00959 COA

                            CONSOLIDATED WITH

                             NO. 95-KA-00597 COA

ELEKE DAVIS

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



            THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

                MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. JOHN L. HATCHER

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

CHARLES E. WEBSTER

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL

BY: JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY: LAURENCE Y. MELLEN

NATURE OF THE CASE: CRIMINAL-FELONY

TRIAL COURT DISPOSITION: ARMED ROBBERY: SENTENCED TO SERVE A TERM OF
SIX YEARS IN THE CUSTODY OF THE MDOC
MANDATE ISSUED: 6/26/97



BEFORE FRAISER, C.J., BARBER, COLEMAN, McMILLIN JJ.

FRAISER, C.J., FOR THE COURT:

Eleke Davis (Davis) was tried and convicted of armed robbery by a jury in the Coahoma Circuit
Court. He was sentenced to serve a term of six years in the custody of the Mississippi Department of
Corrections. He appeals his conviction, presenting the following issues for consideration:

           I. THE COURT ERRED IN FAILING TO SUSTAIN THE DEFENDANT’S
           OBJECTION TO IMPROPER RACIAL COMMENTS MADE TO THE JURY
           DURING THE FINAL PORTION OF THE STATE’S CLOSING ARGUMENTS AND
           IN FAILING TO SUSTAIN DEFENDANT’S SUBSEQUENT MOTION FOR
           MISTRIAL.

           II. DID THE TRIAL COURT LACK JURISDICTION TO REDUCE DAVIS’S
           SENTENCE?

Eight months after Davis perfected his appeal, the circuit judge reduced his sentence from six years to
four years. The trial court denied the state’s motion to vacate the amended sentence. Thereafter, the
state through its representative, the Attorney General, filed a Petition for Writ of Prohibition and/or
Other Appropriate Extraordinary Writ, claiming that the trial court did not have jurisdiction to amend
Davis’ sentence once he perfected his appeal. We consider the state’s petition along with the merits
of Davis’ appeal.

FACTS

On January 12, 1994 Ronald Bennett (Bennett) was tending his son’s pawn shop in Clarksdale,
Mississippi. Bennett and his wife were filling in for their son who took the afternoon off to go
hunting. Shortly after Bennett and his wife began working, four juveniles entered and left the store
several times. Davis was among the group when they reentered the store after Bennett’s other
customers had left. Davis approached Bennett, who was standing behind the counter, and told him
they were interested in buying a used Nintendo game. Davis was standing in front of Bennett, with
the counter separating them, while the other three stood at the front of the store. Bennett began
writing up a ticket for the Nintendo game as his wife asked whether to put the game in a bag. Bennett
testified that "I said, ‘Yes,’ and she was putting it in a sack, and then all of a sudden from across the
counter, the movement and then a hammer on top of my head." When asked who had the hammer,
Bennett replied that it was the defendant, Davis. Davis and the other three boys ran from the store,
and Bennett was taken to the hospital where he received four stitches in the top of his head.

After being picked up by the police and taken to the station, Davis gave a sworn, tape-recorded
statement about his involvement in the crime. Davis stated that he and a friend planned the crime
about a month before they actually carried it out. They got some more people to help them. They
wanted guns from the pawn shop to use in seeking revenge on another group of boys. Davis stole a
hammer from his cousin’s house. The following excerpt is from the transcript of the tape of Davis’
statement:

             Davis: And then we all, we said are yall ready to do this, and then we all walked over to
             the Pawn Shop. First time we went in it was, it was the uh, Mr. Bennett’s son. Then we
             asked him about the gun and he told us to get out cause we don’t, he don’t suppose to be
             telling us about guns and money. Then we walked around the building and then we came
             back and he was gone. His father and uh, wife and one of their friends was in there. So. I
             came out and told them there three people in there so we waited some more. Then we
             went in there and waited till the customers and the friend left. Then we told the story like
             we had money to buy the Nintendo and we didn’t have. So we went outside playing like
             we had money then I walked back in the store. Then I whispered, and then asked them if
             they was ready. And then Tony said, Tony Covington said you get to (inaudible) and bust
             him in the head with the hammer and then I, he told me the price was $41.59 and then I
             said so it is, and I hit him in the head. Then uh, Tony and Cory ran out the store. Cory
             supposed to be busting the glass on the counter so we could get the guns but they, they
             ran out, ran out. Then frog grabbed the brick and he was finna hit Mrs. Bennett with the
             brick but then I told him lets go. Then we ran out the store, ran on the beside Kentucky
             Fried Chicken and ran over the by Sonic then ran on over to Larry house. Then yall came
             picked us up.

             Hoskins: Okay. Alright, um when you hit him with the hammer did he say anything?

             Davis: He fell back and he said oh shit, and then Tony started bouncen around. Then him
             and Cory broke out the store. Cory was supposed to be bustin’ the glass so we could get
             the guns, but they out ran out the store. And then frog grabbed the brick. . . .

             Hoskins: Where the brick was [sic]?

             Davis: I believed he left it in the store. Then he dropped it. which he suppose to be busting
             Mrs. Bennet in the head with the brick, but I told him not to, then I said let’s go. Then we
             ran up out the store.

At trial, Davis took the stand in his own defense and testified that he lied when he gave the statement
to Hoskins. Davis stated that he did not hit Bennett, but one of the other boys did. According to
Davis, he agreed to take the blame so the other boys would not get in as much trouble. He claimed
that he and the other three made up the story he gave to Hoskins. The jury convicted him of armed
robbery.

             I. THE COURT ERRED IN FAILING TO SUSTAIN THE DEFENDANT’S
             OBJECTION TO IMPROPER RACIAL COMMENTS MADE TO THE JURY
             DURING THE FINAL PORTION OF THE STATE’S CLOSING ARGUMENTS AND
             IN FAILING TO SUSTAIN DEFENDANT’S SUBSEQUENT MOTION FOR
             MISTRIAL.

During the prosecutor’s final closing argument, he made the following statements to the jury:

             Now, after yesterday’s case, quite frankly I had somebody tell me outside of this
           courtroom that you will never get 12 black jurors to convict a black person of a crime
           against a white person in this county.

Davis objected to that portion of the prosecutor’s argument as improper and the trial court overruled
the objection. The prosecutor continued, saying:

           That [race] was introduced into that trial. You all heard it introduced into that one, and it
           doesn’t have any place in the trial. This isn’t an issue about black and white. This is an
           issue about 12 jurors who took an oath to follow the law and apply it to the evidence that
           you have heard in this case. . . .

After the jury retired to deliberate, Davis moved for a mistrial because of the prosecutor’s comments
on race. The trial court denied the motion for mistrial. On appeal, Davis asserts that the trial court
erred in failing to sustain his objection and grant a mistrial because of the prosecutor’s improper
comments. He relies on the case of Herring v. State, 522, So. 2d 745, 746 (Miss. 1988), in which the
prosecutor directly addressed specific jury members and berated the jury about their racial makeup
and the effect it could possibly have on the outcome of the case. Id. The prosecutor admonished the
jury, telling them that the black members of the jury would be unable to vote against a black
defendant. Id. Herring is distinguishable from this case. Unlike the prosecutor in Herring, the
prosecutor in the present case did not directly address specific members of the jury to whom he was
speaking or berate them into deciding the case simply because of their race. In fact, he did just the
opposite, telling them that race had no part in the decision-making process. In Herring, the
prosecutor went on and on about the jury’s racial make-up and its inevitable limitations upon justice.
Id. In the case sub judice, the prosecutor made the short and simple point to the jury that race had no
place in the trial.

In Herring, the court sustained an objection to the prosecutor’s argument, but denied a motion for
mistrial. On appeal, the Mississippi Supreme Court stated that the trial court’s action in sustaining the
objection, the jury’s ability to disregard the comment, and the overwhelming evidence of guilt
negated any need for reversing Herring’s conviction and sentence. Herring, 522 So. 2d at 748.
Nonetheless, the court made it clear that interjection of race into argument is improper and is to be
condemned. Id. The court pointed out, however, that the cases condemning comments on race were
based on the prosecutor’s action in urging of conviction on the basis of the defendant’s race. Id. We
agree that the interjection of race into closing argument in an effort to persuade the jury or ignite
passion or prejudice is clearly improper. In this case, however, the prosecutor simply made the point
that race should not be a factor in the jury’s decision. It is the better practice to leave all comments
about race outside the courtroom. While the prosecutor’s action was not reversible error in this case,
we caution against the use of any comment about race. In this case the jury had overwhelming proof
of Davis’s guilt, negating the necessity for reversal. Herring, 522 So. 2d at 748.

           II. DID THE TRIAL COURT LACK JURISDICTION TO REDUCE DAVIS’S
           SENTENCE?

After the verdict, the trial court judge sentenced Davis to serve six years in the custody of the
Mississippi Department of Corrections (MDOC). Davis petitioned the court to reduce his sentence.
After seeking such relief, but before the judge ruled on his request, Davis perfected his appeal,
challenging the conviction. The sequence of events surrounding the trial court’s action subsequent to
the conviction and original sentence are as follows:

1) August 11, 1994 Davis was found guilty of armed robbery. 2) August 17, 1994 Davis filed his
motion for new trial or in the alternative judgment notwithstanding the verdict. August 22, 1994 the
trial court judge denied the motion. 3) September 8, 1994 a sentencing hearing was held, and Davis
was sentenced to six years in the custody of the MDOC. 4) September 13, 1994 Davis filed a motion
to reconsider his sentence. 5) September 21, 1994 Davis perfected his appeal to the Mississippi
Supreme Court before the trial judge ruled on his motion to reduce sentence. 6) May 9, 1995, more
than eight months after Davis filed his motion, the trial judge held a hearing on the motion to
reconsider his sentence and by amended judgment dated May 11, 1995, reduced the sentence to four
years in the custody of the MDOC. The district attorney moved to vacate the amended judgment on
the grounds that the court lacked jurisdiction to render it. This motion was denied by the trial judge.

The state, acting through the Attorney General then filed a petition for writ of prohibition or other
extraordinary writ. A panel of three supreme court justices considered the petition and ordered that
the motion be considered with the merits of Davis’s appeal. Davis’s case and the state’s motion were
subsequently assigned to this court for consideration and disposition. The state’s motion is
considered under the authority granted in rule 21 of the Mississippi Rules of Appellate Procedure,
which states, "[t]he Court of Appeals shall issue writs and other process necessary for the exercise
and enforcement of its jurisdiction. . . ." M.R.A.P. 21(b). A writ of prohibition "may issue as an aid to
the appellate process by superior courts to inferior courts to prevent action by an inferior court or
judge which cannot be remedied on appeal." State v. Maples, 402 So. 2d 350, 352 (Miss. 1981).
Writs of prohibition are remedial writs utilized by a superior court to prohibit certain action by a
lower court. State v. Maples, 402 So. 2d at 352. In the case sub judice, the state petitioned the
supreme court and requested that the trial judge be prohibited from reducing Davis’s sentence
because the trial court lost jurisdiction of the case when Davis was originally sentenced and perfected
his appeal.

In its petition, the state argued that the trial court lost jurisdiction of Davis’s case when Davis
perfected his appeal. In Smith v. State, 445 So. 2d 227, 232 (Miss. 1984), the Mississippi Supreme
Court stated that the lower court was without jurisdiction to hear a motion to set aside the jury
verdict after defendant perfected his appeal to the supreme court. Subsequently, the court in Wilcher
v. State, expounded on that rule and stated:

           This court held that once a final decree is entered and an appeal is perfected the trial court
           no longer has jurisdiction over the cause. In the instant case, the trial court entered an
           order granting appeal on September 16, 1982. On the same day Wilcher filed an affidavit
           of poverty to avoid having to post an appellate bond. Therefore, under the holding in
           Dunavant Enterprises, the trial court was without authority to enter the supplemental
           judgment and that judgment is of no effect.

Wilcher v. State, 455 So. 2d 727, 737 (Miss. 1984), cert. denied, 470 U.S 1034 (1985). The
Mississippi Supreme Court reiterated its holding in Wilcher in Grubb v. State, 584 So. 2d 786, 790
(Miss. 1991), stating, "once a final [judgment] is entered and an appeal is perfected [to the Supreme
Court], the trial court no longer has jurisdiction over the cause." Grubb, 584 So. 2d at 790 quoting
Wilcher v. State, 455 So. 2d 727, 737 (Miss. 1984). The Mississippi Supreme Court specifically
addressed the issue of a circuit court’s ability to amend a defendant’s sentence after appeal in
Harrigill v. State, 403 So. 2d 867, 868-69 (Miss. 1981):

           [O]nce a case has been appealed from the circuit court to this Court, the circuit court
           loses jurisdiction to amend or modify its sentence. If the case is affirmed, the lower court
           is issued a mandate to perform purely ministerial acts in carrying out the original sentence.
           [O]nce a case has been terminated and the term of court ends, a circuit court is powerless
           to alter or vacate its judgment.

           When a criminal case has been completed and the term of court ends, unless the circuit
           court has deferred sentence, or placed the defendant upon a suspended sentence and
           retained jurisdiction for this specific purpose as authorized by statute, the power of the
           circuit court to alter or amend its sentence is terminated.

           Following conviction and final termination of a case, however, neither the circuit court nor
           this Court has power to simply review a case and decide whether or not the original
           sentence should be amended in any way.



Id. Section 47-7-33 of the Mississippi Code allows a circuit or county court to suspend a sentence
and place a defendant on probation, and section 47-7-37 grants continued jurisdiction to the county
or circuit court to revoke any or all of the suspension or probation and impose a sentence on the
defendant. However, in Davis’s case the trial judge could not retain jurisdiction to amend the
sentence by invoking section 47-7-33 because the crime was one carrying a potential life sentence,
excluding Davis from those potentially eligible for probation or suspension. M.C.A. § 47-7-33 (Rev.
1993).

In the case sub judice, the trial judge responded to the state’s petition for writ of prohibition, and
stated that the case was distinguishable from previous case law because Davis filed his motion to
reduce sentence before perfecting an appeal. The trial judge stated that the circuit court automatically
retained jurisdiction when Davis filed his motion to reconsider his sentence. The trial court’s
conclusion does not comport with applicable rules of appellate procedure. Rule 4(e) of the
Mississippi Rules of Appellate Procedure (M.R.A.P.) addresses post-trial motions in criminal cases
and states:

           If a timely motion under the Uniform Criminal Rules of Circuit Court is filed in the trial
           court by the defendant: (1) for judgment of acquittal notwithstanding the verdict of the
           jury, or (2) for a new trial under Rule 5.16, the time for appeal for all parties shall run
           from the entry of the order denying such motion. A notice of appeal filed before the
           disposition of any of the above motions shall have no effect. A new notice of appeal must
           be filed within the prescribed time measured from the entry of the order disposing of the
           motion as provided above. Notwithstanding anything in this rule to the contrary, in
           criminal cases the 30 day period shall run from the date of the denial of any motion
           contemplated by this subparagraph, or from the date of imposition of sentence, whichever
           occurs later.
In this case, a motion for a JNOV or alternatively a new trial was made on August 17, 1994. This
motion was denied on August 22, 1994. On September 8, 1994 the trial judge sentenced Davis to six
years in the MDOC. According to Rule 4(e), Davis’s 30 days in which to perfect an appeal began
running from the date of imposition of his sentence. The trial judge in his response to the state’s
petition contends that Davis’s motion to reduce his sentence had the same effect as a motion for
JNOV or a motion for a new trial, thus tolling the start of the 30 day appeal time limit. The rule does
not support the trial judge’s position. Rule 4(e) only specifies two post-trial motions that delay the
appeals process, and Davis’s motion to reduce his sentence is not one of them. The rule specifies that
in criminal cases, the 30 day time limit begins on the date of imposition of sentence or the date of the
denial of the motion for JNOV or motion for new trial. Davis’s 30 days began to run the date of
imposition of his sentence.

The trial judge states that Davis had a property interest in his right to appeal as well as his right to file
a post-trial motion. According to the trial judge’s suggestion, Davis has to forego a motion to
reconsider his sentence in order to file his appeal on the merits within the 30 day time limit, thus
depriving him of his property interest without due process of law. However, the trial judge assumes
that Davis’s post-trial motion to reduce his sentence cannot or will not be considered before the
perfection of appeal. The rules are clear that a defendant has 30 days from the time of sentencing or
denial of a motion for JNOV or new trial, whichever is last. If the 30 day time limit is drawing to a
close and the defendant has not received a decision from the trial judge, he can apply for an extension
of time for good cause under Rule 4(g):

           The trial court may extend the time for filing a notice of appeal upon motion filed not later
           than 30 days after the expiration of the time otherwise prescribed by this rule. Any such
           motion which is filed before expiration of the prescribed time may be granted for good
           cause and may be ex parte unless the court otherwise requires.



M.R.A.P. 4(g). In this case, the trial judge did not rule on Davis’s motion to reduce sentence until
more than eight months after its filing.

Davis’s arsenal was not without legal weapons designed for relief. He could have petitioned for a
writ of mandamus to compel the trial judge to rule on his motion within the 30 day appellate time
limit. He could have utilized M.R.A.P. Rule 21 to petition the Mississippi Supreme Court or this
court to issue a writ of mandamus to the trial judge, compelling him to rule on Davis’s motion to
reduce his sentence. "The writ of mandamus is one of the ancient, extraordinary writs designed to
compel action. . . ." Doss v. State, 324 So. 2d 253, 254 (Miss. 1975). In State v. Maples, 402 So. 2d
350, 352 (Miss. 1981), the supreme court stated that, "this Court has announced a different rule
pertaining to writs of mandamus by holding that the Supreme Court has original jurisdiction to
entertain a writ of mandamus to compel a trial judge to act in a matter pending before him." "The
writ of mandamus is an aid to the appellate process because a superior court directs an inferior court
to take some affirmative action so the action of the inferior court may be reviewed on appeal." Id. at
353. In Woods v. Lee, 390 So. 2d 1010, 1011 (Miss. 1980), the appellant filed a motion
notwithstanding the verdict or in the alternative a motion for a new trial, and the trial judge took the
motions under advisement for over a year. The Mississippi Supreme Court stated that the appellant’s
recourse was by writ of mandamus to compel the trial judge to rule on the matter. Id.

The trial judge implies that extraordinary circumstances warranted reconsideration of Davis’s
sentence. An examination of those circumstances reveals that Davis was thirteen years old when he
was convicted of armed robbery and sentenced to six years in the custody of the MDOC. During the
sentencing hearing, the trial judge and the attorneys discussed the appropriate statutory limitations
upon the circuit court. Section 99-3-79 of the Mississippi Code sets the maximum sentence for armed
robbery at life imprisonment if the jury so finds. Otherwise, the circuit court can sentence the
defendant to no less than three years. Additionally, section 47-7-3 of the Mississippi Code states that
a defendant convicted of armed robbery and sentenced to more than ten years cannot be eligible for
parole until the defendant has served the first ten years. If the defendant’s sentence is less than ten
years, he shall not be eligible for parole. The trial judge took these statutory guidelines into
consideration at Davis’s sentencing, as well as considering the fact that the three other defendants
involved in the robbery were each sentenced to fifteen years each, with a possibility of parole after
serving one fourth of their time. With all of this information in front of him, the trial judge sentenced
Davis to six years in the custody of the MDOC. Nearly one year later, the trial judge rendered an
amended judgment reducing Davis’s sentence to four years because of his age and the possibility that
the other defendants might only have to serve one fourth of their fifteen year sentence. With the same
information in front of him at the original sentencing hearing, there was no reason the trial judge
could not have originally sentenced Davis to four years. There were no extraordinary circumstances
warranting reconsideration of Davis’s sentence. Perfection of the appeal divested the trial judge of
jurisdiction to reduce Davis’s sentence. The state’s petition for writ of prohibition is granted, and the
trial judge is o rdered to vacate the amended sentence and reinstate the original sentence of six years
in the custody of the MDOC.

THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION
OF ARMED ROBBERY IS AFFIRMED. THE STATE’S PETITION FOR WRIT OF
PROHIBITION AND/OR OTHER APPROPRIATE EXTRAORDINARY WRIT IS
GRANTED AND THE COAHOMA COUNTY CIRCUIT JUDGE IS ORDERED TO
VACATE THE AMENDED SENTENCE OF FOUR YEARS AND REINSTATE THE
ORIGINAL SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS. COSTS TAXED TO COAHOMA COUNTY.



BRIDGES AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, KING, McMILLIN,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
