                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2004-KA-02348-SCT

WILLIE HUTCHINSON WILLIAMS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            11/12/2004
TRIAL JUDGE:                                 HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                   GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     ROBERT T. LASTER, JR.
                                             PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. GLENN WATTS
DISTRICT ATTORNEY:                           DOUG EVANS
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED – 01/05/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Willie Hutchinson Williams was convicted of armed robbery following a jury trial in

the Circuit Court of Grenada County and sentenced to serve a twenty-year sentence in the

custody of the Mississippi Department of Corrections, without the possibility of probation or

parole. It is from this conviction that Williams seeks relief in the present appeal to this Court.




                                             FACTS
¶2.    On January 3, 2004, at approximately 7:30 p.m. a man dressed in dark clothing with

bushy hair entered the General Nutrition Center (GNC) store in Grenada, Mississippi, and

inquired about the nutritional supplement creatine. GNC employee Charry Brown directed the

man to the rear of the store, where the supplement was located. Brown was the manager and

lone employee at the GNC that evening. As he pondered what type of creatine to buy, the man

knocked a promotional shaker cup off of a nearby shelf. The man placed the shaker cup back

on the shelf, selected the capsule form of creatine, and then approached the counter with the

supplement. Brown met him in the aisle before he reached the counter. The man handed the

supplement to Brown, who headed toward the counter to ring up the sale. As Brown turned

toward the counter, the man struck her in the face and demanded the store’s money.

¶3.    As Brown began to scream, her assailant ran to the front of the store. However, shortly

after scurrying to the front of the store, the man turned around and returned to the counter. He

then took hold of Brown and held a red-handled steak knife to her throat. The man ordered

Brown to open the cash register and threatened Brown’s life several times in the process.

After taking all of the money from the register, the now armed robber headed to the rear of the

store to retrieve the shaker cup he knocked over earlier. As the man left the store he had in his

possession the money from the cash register, a bottle of creatine capsules and the shaker cup.

Before exiting the store, the man threatened to kill Brown if she contacted the authorities. He

then fled on foot around the corner of the building.        Brown initially testified at trial that the

total amount of cash stolen from the register was “around” $233.

¶4.    Once the assailant left the store Brown immediately telephoned the police, who arrived

at the GNC at 7:48 P.M. Officers Justin Gammage and George Douglas were two of the first


                                                  2
officers to arrive at the scene. When Officer Gammage asked about the identity of the robber,

Brown said that she recognized the culprit as Willie Summerville who lived in the Washington

Garden apartment complex. Officer Gammage asked Brown if she meant Willie Williams, and

she responded “yeah, that’s his name.”          In her testimony at trial Brown, explained that she

forgot that Willie used the last name Williams and not the surname “Summerville” as used by

his mother. Brown informed the officers that she had known Willie “all [her] life just about”

and they “grew up together in the same neighborhood.” Brown also positively identified Willie

Williams in a photo lineup as the man who had assaulted her and committed the armed robbery.

¶5.       While on the scene, Officer Douglas took a statement from Gwendolyn Stinson, a clerk

at the Shoe Show, which is a shoe store located near the GNC in the same shopping center.

Stinson informed Officer Douglas that prior to the robbery of GNC, a suspicious male entered

the Shoe Show.       The manager of the store noticed that the individual was acting in a peculiar

manner, and directed Stinson to keep an eye on him.                    Stinson observed the man for

approximately five minutes before he approached her and uttered “I can’t seem to find no shoes

today.”     Stinson testified at trial that as this individual addressed her, she “looked him dead

straight in the face.” She also maintained that the man left Shoe Show heading in the direction

of GNC. After the robbery Officer Douglas produced a photo array and asked Stinson if she

could identify any one of the eight men pictured as the same suspicious character she observed

in her store. Stinson identified Willie Williams’s picture from the photo lineup.

¶6.       Shortly after determining that Willie Williams was a prime suspect in the armed

robbery, authorities traveled to Williams’s residence in the Washington Garden Apartment

Complex.      In the meantime, Williams’s mother, Mary Summerville, was contacted by a family


                                                     3
member who informed her that the police suspected her son was involved in an armed robbery.

Summerville immediately and emotionally voiced concerns to her son regarding his possible

involvement in the armed robbery of the GNC.

¶7.    When officers arrived at Williams’s home at approximately 8:17 p.m. they were met

at the door by Summerville. Summerville advised the officers that Williams was present in the

apartment and she allowed the officers entry into her home.          The officers requested and

received Summerville’s consent to search the apartment.         Before searching the apartment,

Officer Gammage presented a consent form for Summerville to sign.        After Officer Gammage

explained the form and obtained Summerville’s signature, a search of the apartment

commenced.

¶8.    The officers discovered Williams in the bathroom. He was shirtless, sweaty and in the

process of cutting his own hair. The officers noticed a black tee shirt on the bathroom floor,

apparently damp with sweat.        During the course of searching Williams’s bedroom, the police

recovered $178 in cash concealed under a sheet on his bed.           Thereafter the police took

Williams into custody and placed him on “investigatory hold” until further questioning was

conducted.

¶9.    After leaving the apartment, the officers retraced a path leading from the back of the

GNC to the Washington Garden Apartment Complex. A leisurely walk from the GNC to the

Washington Garden Apartments was timed at approximately twelve minutes.            Officers also

walked the trail searching for the missing creatine and shaker cup that was stolen from the

GNC. The officers did not find the creatine. However, they did find a GNC shaker cup and lid

in a wooded area along the path.


                                                 4
¶10.      The police clearly and concisely issued Miranda warnings            prior   to Williams’s

interrogation.    Additionally, Williams voluntarily read aloud and signed a waiver of rights form

prior to the commencement of questioning.       Throughout his interview with the police Williams

consistently asserted that he was not responsible for the robbery of the GNC.              Williams

maintained that he could not have perpetrated the robbery because he was at a friend’s

apartment in the Washington Garden Complex watching football when the crime was

committed. During the interview, Williams stated that he was unemployed and had no source

of income.       Further, Williams alleged that he was unaware of any money in his room, but

acknowledged he would have known had there been any present.

¶11.      Williams was indicted for the armed robbery of the GNC. Williams was tried before

a jury in the Circuit Court of Grenada County and was subsequently found guilty of the armed

robbery and sentenced to twenty years in the Mississippi Department of Corrections.           After

sentencing, Williams filed a motion for a JNOV or a new trial which the trial court ultimately

denied.

¶12.      One day after Williams was convicted of armed robbery, his trial counsel was

conducting a voir dire examination of potential jurors in a separate and unrelated case.

Coincidentally a potential juror in the unrelated case had also been seated as a juror for

Williams’s trial.     During the course of voir dire questioning in the succeeding case, the

potential juror indicated that she had a relative that had been the victim of a crime.          She

revealed that her cousin, a member of the Bolivar County Sheriff’s Department, was shot

several times during a routine traffic stop.   Further, the potential juror informed the trial court

that the incident would not allow her to sit as a fair and impartial juror in the subsequent case.


                                                 5
During voir dire examination before Williams’s trial potential jurors were asked a similar line

of questions; however, the juror at issue failed to respond in that instance.         Williams now

appeals to this Court.

                                             DISCUSSION

         I.        J.N.O.V. AND/OR NEW TRIAL

¶13.     A motion for a judgment notwithstanding the verdict (JNOV) challenges the legal

sufficiency of the evidence presented at trial. Shelton v. State, 853 So. 2d 1171, 1186 (Miss.

2003).        “This Court must review the trial court’s finding regarding sufficiency of the evidence

at the time the motion for JNOV was overruled.” Eakes v. State, 665 So. 2d 852, 872 (Miss.

1995); see Wetz v. State, 503 So. 2d 803, 807-08 (Miss. 1987). “The evidence is viewed in

the light most favorable to the State.      All credible evidence supporting the conviction is taken

as true; the State receives the benefit of all favorable inferences reasonably drawn from the

evidence.” McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). “If the facts so considered

point so overwhelmingly in favor of the appellant that reasonable men could not have arrived

at a contrary verdict, we are required to reverse and render.” Jefferson v. State, 818 So. 2d

1099, 1110-11 (Miss. 2002).          “Thus, the scope of review on this issue is limited in that all

evidence must be construed in the light most favorable to the verdict.” Anderson v. State, 904

So. 2d 973, 978 (Miss. 2004).

¶14.     A motion for a new trial is subject to a different standard of review than does a motion

for a judgment notwithstanding the verdict. Sheffield v. State, 749 So. 2d 123, 127 (Miss.

1999).         While a judgment notwithstanding the verdict tests the legal sufficiency of the



                                                    6
evidence and “asks the court to hold, as a matter of law, that the verdict may not stand . . . [t]he

motion for a new trial is an altogether different animal.” Jesco, Inc. v. Whitehead, 451 So.

2d 706, 713- 14 (Miss. 1984) (Robertson, J., specially concurring). “A motion for a new trial

simply challenges the weight of the evidence.” Jones v. State, 2005 WL 1712995, *15 (Miss.

2005)(citing Sheffield, 749 So. 2d at 127).            Moreover, “[a] greater quantum of evidence

favoring the party against whom the motion is made is necessary for that party to withstand a

motion for a new trial as distinguished from a motion for j.n.o.v.” Jesco, 451 So. 2d at 714.




¶15.    We will not order a new trial unless convinced that the verdict is “so contrary to the

overwhelming weight of the evidence that, to allow it to stand, would be to sanction an

unconscionable justice.” Bush v. State, 895 So. 2d 836, 844 (Miss. 2005).            Therefore, this

Court will only reverse the trial court’s denial of a motion for a new trial if the trial court has

abused its discretion. Id at 845.

¶16.    Williams asserts that the evidence presented by the State does not sustain a finding that

he committed armed robbery because the evidence presented at trial was weak, inconsistent,

and not credible.       First, Williams contends that discrepancies exist between the physical

descriptions of the assailant by Charry Brown and Gwendolyn Stinson.              Second, Williams

claims that because the amount of money recovered from his bed differs dramatically in

amount and denomination from the amount stolen from the GNC, the likelihood that Williams

was the involved in the armed robbery is not probable. Williams also submits that a lack of

physical evidence is fatal to the verdict returned by the jury.      Finally, Williams maintains that

his alibi completely absolves him of this crime.

                                                   7
¶17.    Conversely, the State asserts that the evidence presented at trial is sufficient to support

a conviction and no “unconscionable justice” has ensued. Jones v. State, 635 So. 2d 884, 887

(Miss. 1994). Further, the State directs this Court’s attention to an assortment of facts in the

record in support of the jury’s verdict.

¶18.    First, the State points to Brown’s       identification of Willie Williams as the man who

entered the GNC and held a knife to her neck.              Second, the State relies on Stinson’s

corroborative testimony that she positively identified Williams as the suspicious person who

entered and exited Shoe Show just before the robbery occurred. Third, the State contends that

the concealed money discovered in Williams’s bed is relevant evidence. The State submits that

this evidence tends to prove Williams’s guilt when taking into account the concealment of the

money, Williams’s denial of having any money, a job or other source of income, Williams was

sweaty when officers arrived at his apartment, and Williams was in the process of changing his

appearance by cutting his own hair, at a time he knew the police were looking for him.

Moreover, the trial court ruled on this issue during trial and determined that “it will be for the

jury to decide as to the weight and worth of it . . . the probative value outweighs any prejudicial

effect[.]”   Finally, the State calls this Court’s attention to the testimony of Brian Crystal,

Williams’s alibi witness.        At trial Crystal initially testified that Williams arrived at his

apartment around 6:30 to 7:00 p.m. to watch football and stayed for about forty-five minutes

to an hour. However, Crystal also admitted that when detectives first interviewed him, he told

them that Williams arrived at his apartment around 6:00 p.m.          Crystal could not remember

either of the teams in the football game. Further Crystal admitted that he was not wearing a

watch during Williams’s visit.


                                                  8
¶19.    Williams urges this Court to consider that he was entitled to a judgment notwithstanding

the verdict, or in the alternative a new trial.        However, there is a wealth of evidence in the

record to support Williams’s armed robbery conviction. As this Court explicitly stated in Neal

v. State, 451 So. 2d 743, 758 (Miss. 1984), “[u]nder our system, the jury is charged with the

responsibility for weighing and considering conflicting evidence and the credibility of

witnesses.” See, e.g., Pearson v. State, 428 So. 2d 1361, 1363 (Miss. 1983); Gathright v.

State, 380 So. 2d 1276, 1278 (Miss. 1980).               Further, this Court has held that “we do not

reverse criminal cases where there is a straight issue of fact, or a conflict in the facts; juries

are impaneled for the very purpose of passing upon such questions of disputed fact, and we do

not intend to invade the province and prerogative of the jury.” Hyde v. State, 413 So. 2d 1042,

1044 (Miss. 1982) (quoting Evans v. State, 159 Miss. 561, 132 So. 563, 564 (1931)).

¶20.    After diligent review of the record we find that this issue is without merit.

        II.     JUROR’S FAILURE TO RESPOND

¶21.    During the voir dire examination the following question was asked of all potential

jurors: “How many of you have ever had a family member who has been a victim of some type

of crime?”     Patricia Bennett, juror number 38, failed to respond to this question and was

subsequently empaneled as a juror in the case at bar. The jury returned a verdict of guilty in

this matter.

¶22.    One day after Williams was convicted of armed robbery Patricia Bennett sat as a

potential juror in a separate and unrelated criminal matter involving a drive-by shooting.

Williams’s trial counsel was also acting defense counsel in the subsequent case.            The trial




                                                     9
court conducted a portion of the voir dire examination.                The court posed questions which

elicited several material responses from Bennett.

        BY THE COURT: Is there anybody who has had a family member who has been
        in law enforcement but is not now? . . .

        A. I have a cousin that was in the Bolivar County Sheriff’s Department.

        Q. Ms. Bennett, would that affect you at all in this matter?

        A. No, sir.

                                                    ...

        BY THE COURT: How many of you have ever been or had a family member
        who has been the victim of a crime of any kind? . . .

        Q. Ms. Bennett?

        A. I have a cousin that was doing a routine traffic citation, and he was shot
        several times.

        Q. Okay, that occur here?

        A. In Bolivar County.

        Q. Bolivar County. Would that affect you at all in this matter and keep you
        from being fair and impartial?

        A. Yes, sir. It would.
                                                    ...

        BY THE COURT: Okay, how many of you have ever had a family member who
        has been charged with a felony crime? . . .

        A. I have a brother serving time for drug charges.

        Q. Would that affect you at all?

        A. No.




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¶23.    Once the trial court completed its voir dire examination of potential jurors in the

subsequent case, the State and counsel for the defendants were allowed to conduct voir dire.

Relevant questions and Bennett’s reply follows:

        BY COUNSEL FOR FIRST DEFENDANT: The District Attorney just told you
        that there was a drive-by shooting and Keno Bounds was shot and is now
        paralyzed. He is in a wheelchair. Would the fact that Keno Bounds was shot and
        in a wheelchair, is now in a wheelchair, would that cause you to have sympathy
        for Keno Bounds and perhaps disregard what the real question, the fact that you
        have to find him guilty beyond a reasonable doubt? Would that cause you to be
        swayed in anyway, the fact that he is shot and in a wheelchair?. . .

        Q. Yes, ma’am?

        A. I don’t know if I could or not. I had a relative that went through a similar
        incident, and the magnitude he had to go through and suffer and the loss to his
        family, and I just–

                BY THE COURT: –Ms. Bennett, I believe you have already told me that
                because of that, you didn’t think you could be fair and impartial. Isn’t
                that correct?

        A. Yes, sir.

¶24.    Counsel for the first defendant completed his questioning without further response

from    Bennett. The trial court also allowed counsel for the second defendant an opportunity

to voir dire the jury pool.    Moreover, counsel for the second defendant was trial counsel for

Williams where trial preceded the following interchange:

        BY COUNSEL FOR SECOND DEFENDANT: There is just a couple of
        questions. I will start off here. Now Ms. Bennett, number 38. I understand that
        you had an uncle in law enforcement. I remember that from the other day, but
        you said something new today about that you didn’t tell me Monday; right?
        There was somebody that was killed?

                BY THE COURT: Ms. Bennett has already said she could not be fair and
                impartial because of that incident.



                                                  11
                BY COUNSEL: Yes, sir. I was just clarifying the accuracy.

        A. I had a cousin that went through a similar incident with this, and I just don’t
        think it would be fair.

        Q. That is fine. But my question was you didn’t, I didn’t have it in my notes that
        you did that on Monday; right?

        A. Monday wasn’t a shooting. It’s totally different.

¶25.    Williams charges that a reasonable inference can be made that he was prejudiced as

result of Patricia Bennett’s failing to disclosure that a member of her family had been the

victim of a crime.      This Court in Odom v. State, 355 So. 2d 1381, 1383 (Miss. 1978),

declared:

        we hold that where, as here, a prospective juror in a criminal case fails to
        respond to a relevant, direct, and unambiguous question presented by defense
        counsel on voir dire, although having knowledge of the information sought to be
        elicited, the trial court should, upon motion for a new trial, determine whether
        the question propounded to the juror was (1) relevant to the voir dire
        examination; (2) whether it was unambiguous; and (3) whether the juror had
        substantial knowledge of the information sought to be elicited. If the trial
        court’s determination of these inquiries is in the affirmative, the court should
        then determine if prejudice to the defendant in selecting the jury reasonably
        could be inferred from the juror’s failure to respond. If prejudice reasonably
        could be inferred, then a new trial should be ordered. It is, of course, a judicial
        question as to whether a jury is fair and impartial and the court’s judgment will
        not be disturbed unless it appears clearly that it is wrong.

In the case at bar, it is apparent to this Court that the question propounded to Bennett was (1)

relevant to the voir dire examination, (2) unambiguous, and (3) the juror had substantial

knowledge of the information sought.1           Nevertheless, each case involving the voir dire of




        1
        While the trial judge did not explicitly state them as such, it is obvious after a
thorough review of the record that trial judge applied the factors set forth in Odom.

                                                     12
prospective jurors must be decided on an ad hoc basis considering the facts then before the

court. Id.

¶26.     In this case, we find no reasonable inference of prejudice as Williams insists. As

previously discussed there is a vast amount of evidence in the record supporting Williams’s

guilt including:

         1. Positive identifications of Williams by two witnesses,

         2. Concealed money discovered in Williams’s bed,

         3. Williams’s sweaty appearance when the police arrived,

         4. Williams’s decision to cut his hair, even after learning that he was wanted for
         questioning by the police in connection with an armed robbery,

         5. Inconsistencies in statements given by Williams’s alibi witness.

After considering the totality of the evidence, we conclude that the facts are overwhelmingly

in favor of the verdict returned by the jury.       Moreover, no reasonable juror could have reached

a contrary verdict in the case at bar.

¶27.     Further, when defense counsel inquired as to the reason Bennett could remain impartial

in Williams’s trial and not the subsequent trial she drew a clear distinction and stated “Monday

wasn’t a shooting.      It’s totally different.” Bennett’s declaration is a strong indicator that she

was not partial in reaching her verdict during Williams’s trial.

¶28.     Additionally, Bennett insisted that she would be able to remain impartial in spite of her

cousin’s former employment in the Sherriff’s Department.             Bennett also maintained that she

could remain impartial regardless of the fact that her brother had been charged with a felony




                                                     13
in the past.       Thus, Bennett plainly differentiated the shooting from all other instances

presented.

¶29.    Hence, after considering her statements in toto, it is apparent that Bennett clearly

distinguished an armed robbery by exhibiting a knife from a drive-by shooting. Therefore, we

find that this issue without merit.

                                            CONCLUSION

¶30.    For these reasons, the trial court did not err in denying the motion for J.N.O.V. or for

new trial.    The evidence before us is overwhelmingly in favor of the verdict rendered by the

jury. Therefore, we affirm the trial court’s judgment.

¶31. CONVICTION OF ARMED ROBBERY AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AND PAY ALL COURT COSTS, FEES AND ASSESSMENTS, AFFIRMED.

     WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. COBB, P.J., AND GRAVES, J., CONCUR IN RESULT ONLY. DIAZ, J.,
NOT PARTICIPATING.




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