        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CA-01652-COA

DERRICK NEWELL                                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          08/13/2013
TRIAL JUDGE:                               HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:                 WALTHALL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   WILL MCINTOSH
                                           DAVID I. MEGDELL
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: LISA L. BLOUNT
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED MOTION FOR POST-
                                           CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 04/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    Derrick Newell was convicted in the Walthall County Circuit Court in 1998 for

conspiracy to commit armed robbery. Immediately prior to his trial, Newell had been

acquitted of the crimes of armed robbery, aiding and abetting, and accessory after the fact.

Following his conviction, he was subsequently sentenced as a habitual offender to life in the

custody of the Mississippi Department of Corrections (MDOC) without the possibility of

early release. He filed a motion for post-conviction relief (PCR) in 1999 which was denied

by the circuit court. We affirmed the circuit court’s judgment. Newell has now filed another
PCR motion, which was also denied by the circuit court. Aggrieved, he appeals. On appeal,

Newell argues that his acquittal for the crimes involved in the actual robbery barred the State

from indicting and prosecuting him for conspiracy to commit armed robbery under a double-

jeopardy theory. Finding no error, we affirm.

                                STATEMENT OF FACTS

¶2.    This is not our first review of Newell’s case. In 1999, we analyzed a motion for post-

conviction relief in which Newell contested whether his right to due process was violated,

whether hearsay was admitted, whether the verdict was against the overwhelming weight and

sufficiency of the evidence, and whether he was improperly sentenced as a habitual offender.

Newell v. State, 754 So. 2d 1261, 1263 (¶1) (Miss. Ct. App. 1999). There, we explained the

events leading up to the appeal as follows:

       In September 1997, David Cooley was asleep in his home when two men
       clothed in black and wearing masks entered his bedroom and demanded
       money. When Cooley did not produce the money, one man put a gun in
       Cooley's mouth, and the other man put a gun to his chest [and] asked him to
       give up the money. Once the men completed the robbery, they fled from
       Cooley's house. The State presented evidence that Newell, Carlos Craft, and
       Temus Magee had formed a conspiracy to commit armed robbery against
       Cooley. The testimony showed that although Newell waited in the car while
       Craft and Magee committed the robbery, Newell knew that the robbery was
       being committed; he drove Craft and Magee away from the scene of the crime
       after the robbery had been committed, and he was given some of the proceeds
       from the crime. The defense presented testimony that Newell was not part of
       the armed robbery.

Id. at 1263 (¶2). Specifically, we noted:

       During the State's case-in-chief, Craft testified that he and Magee had
       discussed the robbery, and although Newell kept repeating that he wanted
       nothing to do with the robbery, Newell drove the car to Cooley's house, waited
       outside while Craft and Magee committed the robbery, and then drove the car


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       from Cooley's house after the robbery was committed. Craft testified that he
       was not sure of the amount but he thought that Newell got a cut of the money.
       Magee testified that Newell participated in the conversation about the armed
       robbery. He further stated that Newell would have participated in the actual
       crime, but did not only because Magee would not let him kill Cooley. Magee
       also testified that the proceeds were split evenly between all three men.
       Another witness for the State, Traneese Lee, testified that Magee, Craft, and
       Newell were all three present in her house having a conversation about robbing
       Cooley. She further testified that when the men left, Newell had possession
       of a gun.

Id. at 1265-66 (¶10).

¶3.    After considering the witnesses’ testimony, the jury returned a verdict finding Newell

guilty of conspiracy to commit armed robbery. Newell was deemed a habitual offender. He

was then sentenced to life in prison without the possibility of early release or parole.

¶4.    Prior to Newell’s trial for conspiracy to commit armed robbery, he was tried, along

with Craft, for the crimes of armed robbery, aiding and abetting, and accessory after the fact.

During that trial, several statements were made in front of the jury referencing conspiracy.

Specifically, after Newell’s counsel raised an objection to the admissibility of a statement

made by Craft as a statement against Newell’s interest and as hearsay, the circuit court judge

stated the following:

       [T]he objection has been made that it is hearsay against . . . Newell. The
       State’s [a]ttorney has stated that [the statement involves] . . . an act of [a] co-
       conspirator. I think the statement has met the requirements of the [Mississippi]
       Rules of Evidence, and I’m going to allow the statement to be presented to the
       [jury].

Newell’s counsel again objected, and the circuit court judge reiterated the following: “I think

that under the Rules of Evidence that the statement of a co-conspirator should be allowed;

although a conspiracy is not charged, I think the fact that [Craft and Newell] were jointly

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indicted for the same crime would suffice and meet that ruling . . . .”

¶5.    After the testimony and evidence was presented to the jury, Newell was found not

guilty of armed robbery, aiding and abetting, and accessory after the fact. He filed a PCR

motion in 1999 that was ultimately denied by the circuit court whose judgment was affirmed

by this Court. Newell recently filed another PCR motion in the circuit court that was also

denied. On appeal, Newell asserts that although he was not charged with conspiracy to

commit armed robbery during the first trial, he was improperly indicted and tried for

conspiracy to commit armed robbery based on the doctrines of double jeopardy and collateral

estoppel.

                                      DISCUSSION

¶6.    The denial of post-conviction relief will not be reversed “absent a finding that the

[circuit] court’s decision was clearly erroneous.” Smith v. State, 806 So. 2d 1148, 1150 (¶3)

(Miss. Ct. App. 2002). Nonetheless, we review issues of law de novo. Brown v. State, 731

So. 2d 595, 598 (¶6) (Miss. 1999). On appeal, Newell asserts that his conviction of

conspiracy to commit armed robbery is barred by both the doctrines of double jeopardy and

collateral estoppel. Hence, we review his claim de novo and seek to determine whether the

circuit court’s denial of his PCR motion was clearly erroneous.

¶7.    This Court has stated that the Fifth Amendment’s Double Jeopardy Clause “protects

against a second prosecution for the same offense after acquittal, against a second

prosecution for the same offense after conviction, and against multiple punishments for the

same offense.” Brooks v. State, 769 So. 2d 218, 224 (¶21) (Miss. Ct. App. 2000) (citation



                                              4
omitted). When reviewing charges in multiple prosecutions for possible double-jeopardy

violations, we have held that if “each offense contains an element not contained in the other,”

then double jeopardy does not apply. Id. (citation omitted).

¶8.    The United States Supreme Court has determined that within the Double-Jeopardy

Clause lies the doctrine of collateral estoppel. See Ashe v. Swenson, 397 U.S. 426, 443-46

(1970). Though often cited in tandem with double jeopardy, the Supreme Court clearly

stated that collateral estoppel is not to be applied in a “hypertechnical sense.” Id. at 444.

Rather, in criminal cases, collateral estoppel “means simply that when an issue of ultimate

fact has once been determined by a valid and final judgment, that issue cannot again be

litigated between the same parties in any future lawsuit.” Id. at 443.

¶9.    Newell cites to Griffin v. State, 545 So. 2d 729 (1989), in support of his argument that

his conspiracy conviction violates double jeopardy. In Griffin, the Mississippi Supreme

Court stated that “where there is a common nucleus of operative facts . . . and where the

ultimate fact has been determined in the prior acquittal by a final judgment, a conspiracy trial

is barred thereafter under the constitutional double[-]jeopardy provision.” Id. at 730. In

Griffin, Willie Griffin’s brother, Melvin, had been indicted for a criminal offense and was

awaiting trial. Id. at 731. The day before the trial, Melvin and Willie visited the home of

their local mayor and asked him if he knew any names on a list of potential jurors in Melvin’s

trial. Id. When the mayor stated that he recognized one of the names, Melvin asked the

mayor to persuade her to look out for Melvin while he was on trial. Id. During the

conversation, Willie was in the room watching television but never participated in the



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conversation. Id. Willie was was subsequently indicted for jury tampering and conspiracy

to commit jury tampering. Id. After his acquittal for jury tampering and before the start of

his trial for conspiracy to commit jury tampering, he filed a motion to dismiss the case for

violation of the Double-Jeopardy Clause. Id. at 730. The circuit court denied the motion,

and Willie filed an interlocutory appeal. Id. at 731.

¶10.   The State’s evidence in both of Willie’s trials revolved around the single meeting at

the mayor’s house. Id. at 733. At the trial for jury tampering, “the State attempted to prove

the offense by showing that Willie was present in [the mayor’s] home when . . . Melvin[]

attempted to enlist [the mayor] in influencing the juror.” Id. In its analysis, the supreme

court noted that “[b]y basing its evidence of Griffin’s membership in a conspiracy upon his

alleged attempt to tamper with [the] juror . . . the State seeks to have Griffin convicted of the

exact conduct for which he has been acquitted.” Id. at 734. Accordingly, the supreme court

reversed and rendered the circuit court’s denial of Willie’s motion to dismiss. Id.

¶11.   Five years later, the supreme court again addressed the application of double jeopardy

and collateral estoppel to cases involving multiple trials for substantive offenses and

conspiracy. State v. Thomas, 645 So. 2d 931 (Miss. 1994). Therein, Benny Thomas was

indicted for burglary and conspiracy to commit burglary. Id. at 932. After being convicted

of burglary, Thomas cited Griffin for the proposition that a subsequent trial for conspiracy

to commit burglary was barred by double jeopardy. Id. at 932, 934. The circuit court agreed

and the State appealed. Id. at 932.

¶12.   The supreme court distinguished the facts in Griffin from Thomas’s case in that “the



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factual question necessary to convict [Griffin] of conspiracy to commit jury tampering was

answered negatively by the jury.” Id. at 934. The supreme court went on to clarify its

holding in Griffin as follows:

       Griffin is factually specific. A person could be acquitted on the substantive
       charge and still be tried on the conspiracy charge as long as the jury did not
       decide in the substantive charge that there was no agreement to commit the
       crime. For instance, one could be acquitted on a burglary charge and still have
       agreed (conspired) to commit the crime. Griffin is limited to the facts of that
       case.

Id.

¶13.   In the case at bar, the charges of armed robbery, aiding and abetting, and accessory

after the fact were based on events occurring immediately prior to, during, and immediately

after the robbery. The charge for conspiracy to commit armed robbery was based on a

conversation that took place an entire day before the robbery occurred. This involved two

separate factual questions occurring at separate times – one being whether or not Newell was

part of the actual robbery and the other being whether Newell participated in the conversation

where the men planned to rob the victim. This was not a single factual question presented

to the jury that, once answered, was dispositive to the crime of conspiracy as was the case

in Griffin.

¶14.   Likewise, the elements present in armed robbery and conspiracy to commit armed

robbery are not intertwined. Mississippi Code Annotated section 97-3-79 (Rev. 2014)

defines armed robbery as a “tak[ing] or attempt[ing] to take from the person or from the

presence the personal property of another and against his will by violence to his person or

by putting such person in fear of immediate injury to his person by the exhibition of a deadly

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weapon . . . .” Conspiracy occurs “[i]f two . . . or more persons conspire . . . [t]o commit a

crime[.]” Miss. Code Ann. § 97-1-1(1)(a) (Rev. 2014). Again, the conversation relating to

the future commission of the robbery and the actual robbery itself were two separate acts, and

therefore, two separate findings of fact for which double jeopardy would not apply in theory.

¶15.   Newell asserts, however, that the jury determined in the first trial the question of

whether Newell participated in the conversation during which the men planned the robbery.

In support thereof, Newell points to dialogue during the first trial in open court between the

circuit judge and attorneys for both parties involving a challenge to the introduction of a

statement made by Craft that Newell was with him several hours before the robbery. The

following was stated:

       State:        Your Honor, it is the State’s contention that this statement is a
                     statement against interest because [Craft has] alleged an alibi for
                     the early morning hours of [the day of the robbery,] and it is a
                     statement against interest because it places Carlos Craft at some
                     place other than his home in the early morning hours of the day;
                     furthermore, it is probative because it’s circumstantial evidence
                     because Carlos Craft is telling the officers that he, Derrick
                     Newell, and Timos Magee were together in the early morning
                     hours.

       ....

       Court:        The objection made by the Defendant Newell to the statement,
                     the objection has been made that it is hearsay against the
                     Defendant Newell. The State’s attorney has stated that it was an
                     act of [a] co-conspirator. I think the statement has met the
                     requirements of the Rules of Evidence, and I’m going to allow
                     the statement to be presented to the jury.

       Defense:      Object, your Honor. I will object to anything with respect to
                     [Newell] that it’s hearsay being offered for the truth of the
                     matter, and also there has been no showing of common plan or

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                     scheme for conspiracy that involved Mr. Newell . . . . [I]n
                     addition to that, that Mr. Cooley, the victim, didn’t even identify
                     Mr. Newell. I think this would be irrelevant, his being involved
                     in that part of it, whether he was or not somewhere at 2:30 in the
                     morning.

       ....

       Court:        Well, a joint indictee is, I think it’s one step above that of a joint
                     conspirator, a co-conspirator, and I think that under the Rules of
                     Evidence that the statement of a co-conspirator should be
                     allowed; although a conspiracy is not charged, I think the fact
                     that they were jointly indicted for the same crime would suffice
                     and meet that ruling although this is a novel issue before this
                     Court. . . . [T]he objection will be overruled.

Newell also notes that during closing arguments, the State told the jury that Newell and Craft

“decided they would go and rob someone,” and that the two men “decided on September 23,

1997, that they were going to go out to David Cooley’s house and rob him . . . .”

¶16.   Prior to closing arguments, the circuit court instructed the jury. After instructing the

jury as to impartiality, the duty to weigh the evidence, the presumption of innocence, and

other general matters, the circuit court addressed the crimes for which Newell was charged

and the determinations that the jury was to make. The instructions constituted the following:

       The [c]ourt instructs the jury that every person who shall aid or assist any
       felon, knowing that said such person has committed a felony with the intent to
       enable such felon to escape or avoid arrest, trial conviction, or punishment
       after the commission of such felony, is guilty of being an accessory after the
       fact. Therefore, if you, the jury, find that on or about September 23, 1997,
       within the jurisdiction of this [c]ourt[,] that Derrick Newell did aid and assist
       any felon in the armed robbery of David Cooley, then and only then may you
       find Derrick Newell guilty of being an accessory after the fact.

       ....

       The [c]ourt instructs the [j]ury that every person who aids, abets, assists, and

                                               9
       encourages another person in the commission of a crime is guilty as a principal
       to the crime, and [is] just as guilty as the person who actually commits the
       offense. Therefore, if you, the jury, find that on or about September 23, 1997,
       within the jurisdiction of this [c]ourt[,] . . . Derrick Newell did willfully,
       unlawfully, and feloniously give aid, assist, or [give] encouragement in [the]
       armed robbery against David Cooley, then you may find the defendant guilty
       of armed robbery. The [c]ourt instructs the jury that every person who shall
       feloniously attempt to take the personal property of another and against his
       will[,] by violence to his person or by putting such person in fear of immediate
       injury to his person by the exhibition of a deadly weapon[,] shall be guilty of
       armed robbery.

       ....

       If you find from the evidence that, number one, Derrick Newell on or about
       September 23, 1997, two, willfully attempted to take the personal property of
       David Cooley[,] . . . three, in [his] presence, from [his] person, . . . four,
       against [his] will, five, by putting David Cooley . . . in fear of some immediate
       injury to [his] person, . . . six, by exhibiting a handgun, . . . seven, that such
       gun was a deadly weapon, and, eight, that at the time Derrick Newell had the
       intent to permanently deprive David Cooley . . . of the property, then you
       should find the defendant guilty as charged.

       ....

       The [c]ourt instructs the jury that a lesser included offense is a crime which
       includes some of the elements of the greater offense, but not all of them. In
       this case, you may consider the lesser included offense of accessory after the
       fact to armed robbery as to Derrick Newell in the event you cannot agree on
       the greater charge of armed robbery. If you find that the State has failed to
       prove beyond a reasonable doubt that Derrick Newell participated in the armed
       robbery and did not give aid, assistance, [or] encouragement to others before
       the armed robbery took place, but do find beyond a reasonable doubt that [he]
       either received some of the proceeds from the armed robbery, helped the
       principals avoid justice by giving false information to the authorities, or by
       assisting the perpetrators after the fact, knowing that such persons had
       committed the armed robbery, then you may find Derrick Newell guilty of the
       lesser included offense of accessory after the fact and should so indicate in the
       verdict form.

¶17.   It is clear that the jury was only asked to determine whether Newell was guilty of



                                              10
armed robbery, aiding and abetting, and accessory after the fact. The jury was never told that

conspiracy was alleged, and they were never presented with the elements of conspiracy or

any evidence regarding the crime of conspiracy. The mention of the words “conspirator” and

“conspiracy” were confined to one brief conversation during the three-day trial when the

words were stated in passing. Even then, it was said during a very short oral analysis of the

rules of evidence in a dialogue between the circuit judge and the attorneys in an effort to

ascertain the admissibility of Craft’s statement regarding Newell’s whereabouts many hours

prior to the robbery. During the circuit judge’s analysis, there was no mention of the

conversation wherein the men planned the robbery or of any robbery conspiracy involving

Newell.    Rather, the circuit judge was faced with a novel legal question regarding

admissibility of evidence by a joint indictee. While the circuit judge had not faced this

question before, it appears he had faced the question in terms of joint conspirators. Hence,

the circuit judge talked through the answer to the question by passively comparing the

situation, in terms of admissibility of a single statement only, to the rules of evidence

governing joint conspirators.

¶18.   Again, the jury was never asked to determine whether Newell committed the crime

of conspiracy. In reviewing Newell’s PCR motion, the circuit judge noted this fact as well.

At the hearing on the PCR motion, the circuit court acknowledged that the jury in the first

trial determined “whether [Newell] was an aider or an abettor within the crime itself.

[However,] [t]hey weren’t framed the question of whether [Newell] was engaged in a

conspiracy because . . . the issue was never framed for the jury to determine his guilt or lack



                                              11
thereof as to the charge of conspiracy.” We agree. Newell’s contention that the crime of

conspiracy to commit armed robbery was presented to the jury and subsequently dismissed

by the jury in Newell’s first trial such that double jeopardy and collateral estoppel would

attach is unfounded. This issue is without merit.

¶19. THE JUDGMENT OF THE WALTHALL COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO WALTHALL COUNTY.

     LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL,
FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.




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