Sims v. State

213 So.3d 90

Victor SIMS a/k/a Victor L. Sims a/k/a, Victor Lavino Sims, Appellant

v.STATE of Mississippi Appellee

NO. 2015-KA-01311-COA

Court of Appeals of Mississippi.

September 20, 2016

Rehearing Denied January 24, 2017

OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, FOR APPELLANT:

OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, FOR APPELLEE:

BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.

CARLTON, J., FOR THE COURT:

¶1. Victor Sims appeals his convictions and sentences for four separate counts of armed robbery. See Miss. Code Ann. § 97–3–79 (Rev. 2014). On appeal, Sims raises the following issues: (1) whether his trial attorneys rendered ineffective assistance of counsel; and (2) whether the verdicts were contrary to the weight of the evidence. Finding no error, we affirm.

FACTS

¶2. On October 21, 2014, a Jones County grand jury indicted Sims and his nephew, Randy Dunn, for one count of armed robbery involving four separate victims. The single-count indictment charged that, on March 16, 2014, Sims and Dunn, working in conjunction with one another:

[W]illfully, unlawfully, and feloniously attempt[ed] to take or took the personal property of Joyce McCoy, Evelyn Thomas, Dorothy Jackson, and Victoria Dean from the person and presence of [McCoy, Thomas, Jackson, and Dean], against their will, by violence to their person, by putting them in fear of immediate injury by exhibition of a handgun, a deadly weapon ....

¶3. On December 11, 2014, the circuit court appointed Patrick Pacific as Sims's public defender. On February 3, 2015, Sims filed a pro se motion to dismiss the charge against him. The next month, on March 16, 2015, Pacific filed a motion in limine to exclude from the trial the alleged victims' statements and any references to the statements. In correspondence dated March 24, 2015, Sims wrote a letter to the Mississippi Bar in which he complained about his legal representation. Then, on March 27, 2015, Sims filed a second pro se motion to dismiss the charge against him. On April 1, 2015, Pacific filed a motion to withdraw as Sims's counsel. Citing Sims's letter to the Mississippi Bar, Pacific asserted to the circuit court that he felt he could no longer represent Sims.

¶4. On April 2, 2015, the circuit court entered orders denying Sims's motion in limine and his two motions to dismiss the charge against him. Although the circuit court also denied Pacific's motion to withdraw as Sims's attorney, the court appointed Brad Thompson from the public defender's office to serve as co-counsel on Sims's case. On April 17, 2015, Pacific and Thompson filed a motion to reduce Sims's bond. However, the circuit court denied that motion as well.

¶5. The circuit court scheduled Sims's trial for May 18, 2015. However, ten days before trial, on May 8, 2015, the grand jury handed down an amended indictment against Sims and Dunn. The amended indictment still charged Sims and Dunn with armed robbery of the four victims named in the original indictment. However, instead of charging Sims and Dunn with only one count of armed robbery involving all four victims, the amended indictment now charged Sims and Dunn with four separate counts of armed robbery—one count for each of the four separate victims.

¶6. On May 14, 2015, Sims's attorneys and Dunn's attorney filed an unsuccessful joint motion to quash the amended indictment. Although the circuit court denied the motion, the court rescheduled Sims's and Dunn's trial dates to afford each of the defendants a fair opportunity to present a defense to the amended multi-count indictment. Pursuant to its ruling, the circuit court rescheduled Sims's trial date for June 23, 2015.

¶7. At Sims's trial, Lieutenant Robert Morris testified that he responded to an armed-robbery complaint at McCoy's house at 11:39 p.m. on March 16, 2014. When Lieutenant Morris arrived at the scene, McCoy informed him that she and several other ladies had been playing cards when two black males entered with guns and demanded the ladies' money. Lieutenant Morris further testified that the ladies identified Sims as one of the robbers and stated that Sims and his accomplice drove away in a black Pontiac Grand Prix.

¶8. Agent Josh Stringer with the Mississippi Bureau of Narcotics next testified. At the time of the armed robbery, Agent Stringer was employed as an officer with the Laurel Police Department. Agent Stringer also responded to the armed-robbery complaint at McCoy's house. While en route to McCoy's house, Agent Stringer learned Sims was a suspect and had allegedly fled the crime scene in a black Pontiac Grand Prix. Due to prior interactions with Sims, Agent Stringer knew Sims currently lived with his girlfriend, Sholanda Simmons, who owned a black Pontiac Grand Prix. As a result, Agent Stringer testified that he drove to Simmons's residence to try to locate Sims and the car.

¶9. As he drove toward Simmons's house, Agent Stringer encountered a crowd of people gathered outside a nearby residence. Members of the crowd flagged down Agent Stringer's marked patrol car, and he pulled over to speak to them. Agent Stringer testified that one of the individuals, Octavia Jackson, said she had heard that Sims was a suspect in the armed robbery. Octavia further told Agent Stringer that she was not present at the time of the robbery but that she had been at McCoy's residence earlier in the evening when Sims had also been present. Agent Stringer testified that Octavia stated Sims had appeared to be under the influence of something and had caused a disturbance. Octavia told Agent Stringer that, due to Sims's behavior, McCoy had forced Sims to leave, and Octavia had left shortly after Sims.

¶10. Agent Stringer further testified that he spoke to Kimberly Ransom, who was present at the time of the armed robbery and had her wallet and some cash stolen. Agent Stringer said Ransom told him that she knew without a doubt that Sims and Dunn were the two suspects involved in the crime. Agent Stringer testified that Ransom informed him that Sims wore sunglasses and concealed the lower part of his face and that he held a small silver revolver. Ransom also told Agent Stringer that, even though Dunn wore what appeared to be a pair of stockings over his face, she still recognized him.

¶11. The jury next heard from McCoy, the victim who owned the house where the armed robbery occurred. McCoy stated that both Sims and his girlfriend, Simmons, had been at her home earlier in the evening prior to the robbery. McCoy testified that Sims wore a brown shirt and black pants during his initial visit and that he told Octavia, who was playing cards, that "[h]e should take her money out of her wallet."

¶12. McCoy further testified that, around 1 a.m., she was cleaning up the mess from the party in her bathroom when Sims returned. Even though Sims wore a black stocking cap over his face to hide his identity, McCoy stated that she could still see his complexion. McCoy also testified that Sims wore the same clothes from earlier and that she heard one of the other ladies refer to Sims by name when Sims entered the house. McCoy testified that Dunn accompanied Sims and pointed a silver gun at her while Sims pointed a black gun at the other ladies in the kitchen. McCoy said that, before leaving, Sims asked whether McCoy had anything on her. McCoy testified that she pointed to the couch, where her purse was lying. According to McCoy, Sims stole her wallet, Social Security card, debit cards, and about $700 in cash from her purse.

¶13. The State next called McCoy's mother, Dorothy, as a witness. Dorothy also testified that Sims was at McCoy's house prior to the robbery and that he told Octavia he ought to take Octavia's money. Dorothy testified that one of the other ladies, Dean, then had some words with Sims following his comment to Octavia. Dorothy stated that Dean "told [Sims] to get out from behind her[,] talking about taking somebody's money, and he said a few words." Dorothy characterized the exchange between Dean and Sims as slightly hostile, and she testified that Sims left after the exchange. However, Dorothy further stated that Sims returned later with another man and that Sims wore the same brown shirt and black pants that he wore earlier. Dorothy testified that Sims pointed a silver pistol at her and the other ladies in the kitchen while his partner held a silver gun on her daughter, McCoy, in the bathroom. Although Sims wore something over his face, Dorothy testified that she recognized Sims and that Dean even called Sims by name after he entered. Dorothy further testified that Sims stole about $300 from her.

¶14. Thomas, another of the armed-robbery victims, testified that Sims and another man entered McCoy's house holding guns. Thomas stated that Sims held a silver revolver on her and the other ladies in the kitchen while his accomplice pointed a black gun at McCoy. Thomas testified that she recognized Sims because he wore the same clothes that he had on earlier in the day. According to Thomas, when Sims robbed her, he was wearing a brown shirt, black pants, and a black baseball hat with a gold symbol on it. Thomas also testified that she had known Sims for about fifteen years and had worked with his mother. Thomas stated that Sims stole about $300 from her.

¶15. The final armed-robbery victim, Dean, testified next. Dean stated that, the first time Sims entered McCoy's home, he stood behind Dean's chair at the kitchen table. Dean further testified that Sims told Octavia that he needed to take Octavia's purse, and Dean said she was unsure whether Sims was joking when he made the statement. Regardless of whether Sims intended the comment as a joke, Dean told him to not stand behind her chair. Dean also stated that Sims, who was wearing a brown shirt and black pants, left McCoy's house soon after the exchange.

¶16. Dean further testified that, around 1 a.m., McCoy was tidying the house when someone entered the doorway directly behind Dean's chair and said, "Give up the...