Robinson v. State

324 So.3d 1137

Arsenio ROBINSON, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-01081-COA

Court of Appeals of Mississippi.

January 12, 2021

Rehearing Denied June 1, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Humphreys County Circuit Court jury found Arsenio Robinson guilty of being an accessory after the fact to a murder in violation of Mississippi Code Annotated section 97-1-5 (Rev. 2014) and guilty of participation in gang activity in violation of Mississippi Code Annotated section 97-44-19(2) (Rev. 2014). The court sentenced Robinson to twenty years in the custody of Mississippi Department of Corrections (MDOC), with five years suspended and fifteen years to serve, and five years of supervised probation for the accessory-after-the-fact conviction; the court sentenced Robinson to ten years in the custody of the MDOC for the participation-in-gang-activity conviction to run consecutively to the first sentence. Robinson moved for a judgment of acquittal or, in the alternative, a new trial, which the circuit court denied. After reviewing the record, we affirm.

Statement of the Facts and Procedural History

¶2. On July 9, 2015, Robinson, a Greenville Police Department police officer, met his friends at a car wash in Belzoni, Mississippi, in Humphreys County. While at the car wash, Robinson started drinking. He conversed with Cordale Weathersby, a Vice Lords gang member, about an issue with Tahiti Banks, another Vice Lords member.¹ According to Weathersby, Robinson stated that Banks "had to die" because Banks was trying to take over the Vice Lords. Fred Hogan, also a Vice Lords gang member, joined the conversation, stating that he would "go over there and sort it out" with Banks.

¶3. Robinson and Hogan rode together in Robinson's car to Alberta Martin's barbeque gathering, which was located at 104 East Third Street in Belzoni, Mississippi. At the barbeque, Hogan and Banks argued, which led to Hogan shooting Banks several times. According to several witnesses, Robinson threw his car keys to Hogan and told him to "go go go." Robinson called his cousin to pick him up from the barbeque. From there, Robinson went to his parents’ house. When law enforcement arrived at the scene, several witnesses identified Robinson as having been at the barbeque. Accordingly, the officers contacted the Greenville Police Department about Robinson's possible involvement in the shooting.

¶4. Robinson eventually turned himself in for questioning. Robinson stated the following in a voluntary statement: "I was at 3rd Street/McKinley Alley when I heard a gunshot go off[.] [T]wo males was [sic] in a scuffle. It was about 10:00 p.m." But Robinson made a contradictory statement in another voluntary statement:

On Thursday, July 9, 2015 I Arsenio Robinson was at the car wash drinking. Myself and some other guys left the car wash and went on 3rd St. when I seen [sic] Blade and Fred get into a scuffle. I then heard a shot go off after and Blade was laying on the ground. I had been drinking with the other guys at the car wash and several people had my keys to get alcohol from under my truck. I heard one shot go off and then I heard about 3 or 4 more. I didn't seen [sic] when the shot was shot. I seen [sic] Blade grab Fred 1st then the gun shot when [sic] off.

¶5. On February 3, 2016, a Humphreys County grand jury indicted Robinson for Count I, being conspiracy to commit murder in violation of Mississippi Code Annotated section 97-1-1 (Rev. 2014); Count II, being accessory after the fact in violation of Mississippi Code Annotated section 97-1-5 ; and Count III, being participation in gang activity in violation of Mississippi Code Annotated section 97-44-19(2). The police arrested Robinson, and he was held in custody with bail set at $150,000.

¶6. Robinson filed a motion to dismiss his conspiracy-to-commit-murder charge on March 25, 2017, because the circuit court had granted Fred Hogan's motion for a directed verdict on his conspiracy-to-commit-murder charge. Robinson stated that "[w]hen the [c]ourt granted Hogan's motion for a directed verdict as to the conspiracy count to murder Tahiti Banks, that left no other person who has been charged or can be charged with conspiracy to murder Tahiti Banks." The circuit court granted this motion on June 19, 2017, dismissing Robinson's conspiracy-to-commit-murder charge.

¶7. Apparently, a first trial took place because Robinson moved for a mistrial and the opportunity to file a motion for change of venue.² On June 21, 2017, the circuit court granted Robinson's motion for a mistrial because after the voir dire of the jury panel for more than two hours, the court found that the greater majority of the jury knew Robinson and his family as well as the victim and his family. Therefore, it would have been almost impossible to pick a jury from the panel.

¶8. The second trial took place in the Humphreys County Circuit Court, which lasted from June 25, 2018, through June 28, 2018. The State presented several witnesses, beginning with Officer David James of the Humphreys County Sheriff's Department. Officer James testified that he received a call that there had been a shooting on Third Street and McKinley Street in Belzoni, Mississippi. After arriving at the scene, he interviewed several witnesses. The witnesses testified that while at the barbeque, Hogan and Banks began arguing. Robinson then made "gang innuendoes." Shortly after, Hogan shot Banks once, walked away, but then turned around and shot Banks two or three more times. According to the witnesses, Robinson walked toward Hogan, threw his car keys, and told Hogan to get out of there.

¶9. Cordale Weathersby testified that he, Robinson, and Hogan were all members of the "Insane Vice Lords." Prior to the barbeque and shooting, Weathersby testified that he was with Hogan and Robinson at the car wash. According to Weathersby, he told Robinson that if Robinson's problem with Banks was personal, Robinson needed to handle it himself. Hogan and Robinson then drove away.

¶10. The State's next witness, Alberta Martin, testified that she saw Hogan murder Banks with a gun, stating the following: "He shot the first time and the second time, he emptied the clip. And when he got through shooting and he walked off going like in the middle of the road, and that's when Arsenio came, met him and throw the keys to him." Further, Martin stated that she did not hear Hogan ask Robinson for his car keys; instead, Robinson willingly gave his keys to Hogan, and Hogan then drove away in Robinson's car. Additionally, she testified that Robinson was in a gang.³

¶11. The State presented another witness, Jankia McKinley, who was present at the barbeque during the shooting. According to McKinley, Banks and Hogan were conversing when Robinson began to argue with Banks. Hogan then began arguing with Banks as well. McKinley stated that she heard Robinson call Banks "a mafia and an imposter." Hogan pushed Banks and then shot him once but came back to shoot Hogan about three more times. Right after the shooting, McKinley testified she saw Robinson throw Hogan his car keys, and Hogan sped off in Robinson's car. Based on her observation, McKinley stated that Robinson handed Hogan his car keys to assist him to leave the scene.

¶12. Leonard Robinson, another witness at the barbeque, testified that he heard Robinson call Banks "a mafia" and "an imposter," to which Banks responded, "I ain't nobody with that bullshit." Hogan then shot Banks multiple times. After the shooting, Leonard testified that he saw Robinson throw Hogan his car keys and say "go, go, go." Hogan then drove Robinson's car away from the murder scene.

¶13. At the close of the State's case-in-chief, Robinson's counsel moved for a directed verdict. Specifically, Robinson requested that the court instruct the jury to find him not guilty to the accessory-after-the-fact-to-murder charge and not guilty to the participation-of-gang-activity charge. Regarding the accessory-after-the-fact charge, Robinson argued that the State had not proved that he had the intent to enable Hogan to escape and avoid arrest. He admitted that he did throw Hogan his keys, but it was not to assist him. Regarding the participation-of-gang-activity charge, Robinson argued that there was no evidence that he did anything for the benefit of a street gang. Further, he argued that because the circuit court already ruled that the conspiracy count could not be proved beyond a reasonable doubt, the State could not prove each and every element of participation of gang activity. The court denied Robinson's motion, finding that the State had put forth a prima facia case of the elements of the charge to accessory after the fact to murder as well as the charge of participation in gang activity. Robinson then testified as the only witness in his defense.

¶14. Robinson testified that on the day of the shooting, he did not have a conversation with Weathersby. Further, Robinson testified that Banks instigated the altercation at the barbecue by yelling at him and his friends, "[Y]ou still not running S-H-I-T." According to Robinson, Banks grabbed Hogan, and then the gun went off. He watched Hogan shoot Banks three or four more times, but he did not do anything because he claimed that he could not retrieve his gun from its holster. Robinson testified that he did not stay and protect the scene because "I was out there and there was a lot of commotion and I didn't know what was going to happen after that. So I went to the sheriff's department." He also admitted that he did not call the police but instead went to the sheriff's department to tell the police about the shooting. He claimed that he was already on the way to the sheriff's department when his supervisor called and told him to turn himself...