Joanie Tiachella Calloway v. State of Mississippi ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00813-COA
JOANIE TIACHELLA CALLOWAY A/K/A APPELLANT
JOANIE CALLOWAY A/K/A JOANNIE
CALLOWAY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 05/09/2017
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN SUBER
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 03/05/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. A Lafayette County jury in this Forrest County Circuit Court case found Joanie
Calloway guilty of being an “attempted accessory after the fact” of capital murder, in
violation of Mississippi Code Annotated sections 97-1-5 and 97-1-7 (Rev. 2014) and of
hindering the prosecution, in violation of Mississippi Code Annotated section 97-9-103 (Rev.
2014). The trial court sentenced Calloway to consecutive sentences of twenty years for
attempted accessory after the fact and five years for hindering the prosecution, to be served
in the custody of the Mississippi Department of Corrections (MDOC). Calloway appeals,
arguing (1) the evidence was insufficient to support her conviction for attempted accessory
after the fact, (2) cumulative errors in her trial require reversal, and (3) her sentence for
attempted accessory after the fact was unconstitutionally disproportionate. We find no error
and affirm Calloway’s convictions and sentences.
FACTS
¶2. At approximately 7:30 p.m. on May 9, 2015, Hattiesburg Police Department Officer
Benjamin Deen stopped Calloway’s vehicle during a routine traffic stop, and his dash camera
automatically switched on. Calloway was traveling with three passengers in her car, who
were later identified as her boyfriend, Marvin Banks, her friend, “Loco,” and her son. Banks
sat in the front-passenger seat, and the other two passengers sat in the back of the car. After
Officer Deen made contact with Calloway, he called for backup. Officer Liquori Tate
responded.
¶3. During trial, the video from Officer Tate’s dash camera was played for the jury and
admitted into evidence. In the video, Calloway and Banks can be seen moving around in the
car. Officer Deen informed Officer Tate that Calloway’s license was suspended and that
Calloway’s front-seat passenger was putting something underneath his seat. Officers Deen
and Tate ordered Calloway and Banks out of the vehicle to get them away from whatever had
been stashed under the font seat. In a written statement later given to law enforcement and
admitted into evidence, Calloway admitted that, while inside the car, Banks retrieved a gun
from his waistline and said he was “going to kill the motherf****rs.” Calloway stated that
2
she urged Banks to put the gun away and he placed it under the passenger seat.
¶4. The dash-camera video showed that Calloway complied with Officer Deen’s request
to exit the vehicle. Banks, however, showed hesitancy in exiting. When Banks eventually
stepped outside the car, he grabbed the gun from beneath his seat and shot Officer Dean in
the temple. Calloway jumped back in the car. Banks then shot Officer Tate and attempted
to shoot Officer Deen’s dash camera. From within the car, Calloway held her foot on the
break and yelled, “Marvin, get in, Marvin, Marvin.” Banks continued shooting, and
Calloway drove off. After she did so, “Loco” jumped out of the car.
¶5. Calloway drove until she encountered several barricades blocking the street near an
outdoor festival, and then she exited her car. One of the festival goers, Marcia Goff, testified
that Calloway and her son approached her. Goff stated that Calloway seemed jittery and very
nervous. Calloway stated, “I didn’t do nothing. How could this happen to me? I gave these
two guys a ride and was going to Fat Boys, and one of them reached over and turned the
blinker a different direction, and that’s when the police pulled us over.” “I didn’t know they
were gonna shoot at the police,” Calloway added. Calloway told Goff she suffers from post-
traumatic stress disorder and needed her medication, so Goff told her to sit down. Goff told
Calloway that she was going to have to call the police; Calloway replied “yes[,] and an
ambulance.”
¶6. Goff called 9-1-1 and spoke with an emergency-services operator. During the call,
Goff told the operator, “[Calloway] was just a nice person and gave them a ride because they
needed a ride.” Goff handed Calloway the phone, and Calloway told the operator that she
3
had taken three Seroquil doses, was “f****d up,” and could not remember anything.
Calloway gave her information to the operator but handed Goff’s phone back when the
operator began asking questions. The 9-1-1 call was played for the jury and admitted into
evidence as Exhibit 10.
¶7. Laron Smith testified that he was a sergeant with the Hattiesburg Police Department
in May 2015 and reported to Calloway’s location on a dispatch call. Smith said that he
encountered Calloway in an outdoor parking lot. She seemed calm and appeared to be
crying, but she was not shedding any tears. Smith testified that Calloway told him two black
males had jumped inside of her car somewhere on Main Street. Smith identified several
locations on Main Street and asked Calloway where she had been near, but she said she did
not know. As Smith questioned Calloway further, Calloway looked down as she answered.
Smith suspected that Calloway was not being truthful. He read Calloway her Miranda1 rights
and placed her in his vehicle in order to take her to the police department for an interview.
¶8. Smith testified that later, after Calloway indicated that she was willing to talk to him,
he again read Calloway her Miranda2 rights and asked if she understood. Initially Calloway
did not say yes; instead, she stated, “I told that motherf****r not to do that s**t.” Smith read
Calloway her Miranda3 rights for a third time, and Calloway said she understood her rights.
Calloway then told Smith that she and a man named “Cuz” had been driving around the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Id.3
Id.4
Mobile Street area looking to buy marijuana. Calloway claimed she did not know “Cuz’s”
real name. Calloway said that while they were driving, “Cuz” offered her some cocaine, and
she declined because she had taken Seroquel for her bipolar disorder. Smith asked if anyone
else had been in the car with Calloway, and she told him that her son and a man named
“Loco” had also been with her.
¶9. Smith further testified that Calloway told him she had been pulled over by a police
officer. Calloway said that “Cuz” pulled out a gun, she told him to put it away, and he put
the gun under his seat. Calloway said that the officer asked for her driver’s license and went
back to his vehicle to run the identification Calloway gave him. When the officer left,
Calloway and “Cuz” began talking. Calloway said “Cuz” pulled the gun back out and said
“I’m about to f*****g do this s**t.” Calloway told him not to. When the officer returned
to Calloway’s car, he asked her to step outside. Calloway told Smith that “Cuz” then exited
the passenger side of the vehicle and shot the police officer. She also told Smith that she
jumped back in her car and fled the scene because she was scared. When Smith asked
Calloway to describe “Cuz’s” attire, she said that he had been wearing a white shirt, blue jean
shorts, and some plaid shoes. In the video from Officer Tate’s dash camera, Banks is
wearing a dark shirt with colorful designs of blue, pink, and orange. Smith said when he
viewed the dash-camera video, he immediately recognized Banks.
¶10. Lieutenant Lotosha Myers-Mitchell of the Hattiesburg Police Department testified that
she interviewed Calloway at the police department. Lieutenant Myers-Mitchell stated that
5
she read Calloway her Miranda4 rights, and Calloway agreed to speak with her. Calloway
also signed a waiver form, which was admitted into evidence as Exhibit 11. Lieutenant
Myers-Mitchell testified that in describing the shooting, Calloway maintained that she did
not know the two individuals whom she gave a ride to but had purchased weed from them
before. Calloway gave a written statement describing the traffic stop and shooting, which
was published to the jury and admitted into evidence as Exhibit 12. At 10:30 p.m.,
Lieutenant Myers-Mitchell showed Calloway a photo lineup, and Calloway identified one
of the men as “Cuz” and wrote “looked like the passenger in my car” on an accompanying
form. The lineup and identification form were admitted into evidence as Exhibits 13 and 14.
¶11. Master Sergeant Trent Weeks of the Mississippi Bureau of Investigations also
interviewed Calloway. Master Sergeant Weeks testified that Calloway was “very calm”
during the interview. He said that Calloway told him she had smoked some marijuana and
had taken some bipolar medication prior to the interview. Master Sergeant Weeks said he
went over Calloway’s Miranda5 rights with her, and Calloway signed and initialed a waiver
of her rights. The signed waiver, executed at 12:16 a.m., was admitted into evidence as
Exhibit 16. Master Sergeant Weeks explained that the interview was video and audio
recorded. The video of Calloway’s interview was subsequently received into evidence as
Exhibit 17 and published to the jury.
¶12. Early in her interview with Master Sergeant Weeks, Calloway again claimed that she
4
Id.5
Id.6
picked up “Cuz” and his friend, “Loco,” maintaining that she did not know either man’s real
name. She said that after an officer stopped her vehicle, “Cuz” pulled a gun from his
waistline and stated, “we ain’t going to jail.” Calloway also gave a written statement to
Master Sergeant Weeks, in which she claimed that “Cuz” said “he was going to kill the
motherf****rs.” Her written statement was admitted into evidence as Exhibit 18. Master
Sergeant Weeks testified that Calloway only began referring to “Cuz” by his real name after
Banks’s name was broadcasted over the radio.
¶13. Aaron Thomas, a friend of Banks’s also testified for the State. Thomas said that he
had known Banks since 1995 or 1996 and grew up across the street from Banks in
Hattiesburg. Thomas testified that in May 2015 he and Banks still lived across the street
from each other. Thomas said that during that time, Banks and Calloway were in a
relationship and had been dating for roughly six months. Thomas said that Calloway knew
Banks’s real name, knew where he lived, and visited him roughly three to four times a week.
Thomas testified that on the day of the shooting, Calloway and Banks had spent time together
at his mother’s house.
¶14. After the State rested its case, Calloway moved for a directed verdict as to attempted
accessory after the fact and hindering the prosecution. The motion was denied. Calloway
did not present any witness testimony in her defense. Following jury deliberations, the jury
found Calloway guilty of being an attempted accessory after the fact of capital murder and
guilty of hindering the prosecution in the first degree. Calloway subsequently filed a motion
for a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court
7
denied Calloway’s motion, and she has timely appealed.
DISCUSSION
I. Sufficiency of the Evidence
¶15. On appeal, Calloway argues the evidence was insufficient to support her conviction
for Count One (attempted accessory after the fact of capital murder) and Count Two
(hindering the prosecution in the first degree).
¶16. When reviewing the sufficiency of the evidence, “[t]he relevant question is whether
‘any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Green v. State, 2017-KA-00770-SCT, 2018 WL 5076318, at *3 (¶12)
(Miss. 2018) (quoting Hearn v. State, 3 So. 3d 722, 740 (¶54) (Miss. 2008)). “Under this
inquiry, all evidence supporting the guilty verdict is accepted as true, and the State must be
given the benefit of all reasonable inferences that can be drawn from the evidence.” Id.(quoting Galloway v. State, 122 So. 3d 614, 665 (¶168) (Miss. 2013)). “[I]f any rational trier
of fact could have found each and every elements of the crime beyond a reasonable doubt,
when viewing the evidence in the light most favorable to the prosecution, the verdict must
stand.” Smith v. State, 250 So. 3d 421, 424 (¶12) (Miss. 2018) (quoting Cowart v. State, 178
So. 3d 651, 666 (¶41) (Miss. 2015)).
A. Attempted Accessory After the Fact for Capital Murder
¶17. Under Mississippi Code Annotated section 97-1-5, “[t]he elements of accessory after
the fact are that (1) a completed felony has been committed; (2) the accused concealed,
received, relieved, aided or assisted a felon, knowing that such person had committed a
8
felony; and (3) such assistance or aid was rendered with the intent to enable such felon to
escape or avoid arrest, trial, conviction or punishment after the commission of such felony.”
Mangum v. State, 762 So. 2d 337, 342-43 (¶16) (Miss. 2000). Section 97-1-7(1) provides
for the punishment of attempt:
Every person who shall design and endeavor to commit an offense, and shall
do any overt act toward the commission thereof, but shall fail therein, or shall
be prevented from committing the same, on conviction thereof, shall where no
other specific provision is made by law for the punishment of the attempt, be
punished by imprisonment and fine for a period and for an amount not greater
than is prescribed for the actual commission of the offense so attempted.
“Hence, courts interpret ‘attempt’ to mean the intent to do something, and some actual effort
to put the intent into effect.” Carter v. State, 932 So. 2d 850, 853 (¶6) (Miss. Ct. App. 2006)
(quoting Murray v. State, 403 So. 2d 149, 152 (Miss. 1981)). “The ‘gravamen’ of the offense
of an attempt to commit a crime is found in the statutory requirement that an overt act toward
the crime be committed and the defendant be prevented from its consummation.” Id.(quoting State v. Lindsey, 202 Miss. 896, 899, 32 So. 2d 876, 877 (1947)). Although each
case must stand on its own particular facts, it is well-recognized that “whenever the design
of a person to commit crime is clearly shown, slight acts done in furtherance of this design
will constitute an attempt.” Williams v. State, 48 So. 2d 598, 599-600 (Miss. 1950).
¶18. Here, Banks committed the felony of capital murder by shooting and killing two
police officers. Thus, we ask whether any rational juror could find that Calloway committed
an overt act intended to help Banks escape. In her indictment, Calloway was charged with
the overt act of yelling repeatedly for Banks to get in her vehicle.
¶19. The jury observed and listened to the videos from Officer Tate’s dash camera and
9
Calloway’s interview with Master Sergeant Weeks. In Calloway’s interview with Master
Sergeant Weeks, she admitted that after Officer Tate stopped her vehicle, Banks stated “we
ain’t going to jail.” And in her written statement given during her interview with Master
Sergeant Weeks, Calloway, referring to Banks as “Cuz,” stated that Banks “display[ed] a gun
from his waistline” and voiced that “he was going to kill the motherf*****rs.” The jury
observed that after Banks shot at Officer Tate, Calloway jumped in her car, paused
momentarily while her car’s break lights lit up, and yelled, “Marvin, get in, Marvin, Marvin,”
before driving away.
¶20. The jury was appropriately instructed on the law concerning this issue. Jury
Instruction S-1 instructed the jury to find Calloway guilty if it found, in addition to the other
elements of attempted accessory after the fact, that Calloway committed an overt act toward
an attempt to aid Banks. Conversely, Instruction S-8 told the jury to find Calloway not guilty
if it found Calloway “freely and voluntarily abandoned her intent to commit the crime of
Accessory After the Fact to Capital Murder before . . . perform[ing] any overt act toward the
commission of [the] crime . . . .” With these instructions before it, the jury found Calloway’s
actions and statement to Banks satisfied the overt act required for her conviction.6 We find,
giving the State the benefit of all inferences reasonably drawn from the evidence, a rational
6
The separate opinion cites White v. State, 851 So. 2d 400, 404 (¶10) (Miss. Ct. App.
2003), for the proposition that the existence of an overt act in this case is an issue of law.
We disagree given there was conflicting evidence as to whether Calloway voluntarily
abandoned her attempt to aid Banks. Thus, the evidence sufficiently raised a factual issue
for the jury’s determination. See Ross v. State, 601 So. 2d 872, 875 (Miss. 1992) (finding
the evidence did not sufficiently establish a question of fact where the evidence
uncontrovertibly showed the defendant abandoned the attempt).
10
juror could have found Calloway intentionally attempted to help Banks escape, but failed in
her attempt when Banks did not respond to her urging.
¶21. Notably, Calloway knew that Banks had a gun; she heard Banks express wanting to
avoid jail; and she heard him say that he planned on killing the officers. When Banks
followed through on his intentions, Calloway—rather than immediately leaving the
scene—stayed to offer Banks a means of escape. Thereafter, Calloway gave a false
description of Banks to law enforcement and maintained that she did know Banks’s name or
whereabouts. The jury could infer from this evidence that Calloway was intent on helping
Banks resist apprehension and only drove away from the scene of the shooting when Banks
did not respond. Calloway’s pause for Banks was brief, but the evidence is such that, when
considered under our familiar standard of review, we have no authority to disturb the jury’s
finding that the prosecution proved each and every element of the offense of attempted
accessory after the fact to capital murder.
B. Hindering the Prosecution in the First Degree
¶22. Under Mississippi Code Annotated section 97-9-103(1), “[a] person commits the
crime of hindering prosecution in the first degree if, with the intent to hinder the
apprehension, prosecution, conviction or punishment of another for conduct constituting a
felony, he renders criminal assistance to the other person.”
¶23. Here, the evidence reflects that Calloway misrepresented the nature of her relationship
with Banks during her interview with Master Sergeant Weeks. As Thomas’s testimony
reflected, Calloway was dating Banks, knew his name, and had stayed with him three to four
11
days each week over a period of six months. Nevertheless, during her multiple interviews
with law enforcement officers, Calloway identified Banks only as “Cuz,” claiming that he
was a friend of her friend, “Loco,” whom she bought marijuana from. Calloway explicitly
told the officers that she did not know either man’s real name. When Smith asked what
Banks was wearing, Calloway misidentified his attire. And when Lieutenant Myers-Mitchell
showed Calloway a photo lineup of suspects, Calloway identified Banks by nickname only,
writing that he “looked like the passenger in [her] car.” Calloway finally began using
Banks’s name after Master Sergeant Weeks disclosed that law enforcement knew of
him—she did so after five hours had passed since Officer Dean’s and Tate’s murders.
¶24. In viewing the evidence in the light most favorable to the State, a rational juror could
conclude that Calloway misrepresented her knowledge concerning Banks with the intent to
delay Banks’s apprehension, thereby rendering him criminal assistance. We thus hold that
the evidence was sufficient to support Calloway’s conviction for hindering the prosecution
in the first degree.
II. Cumulative Error
¶25. Calloway argues that reversal is warranted under our cumulative error doctrine, which
holds that “while harmless error in and of itself is not reversible, where more than one
harmless error occurs at the trial level, those errors may have the cumulative effect of
depriving a defendant of a fair trial.” Wilson v. State, 21 So. 3d 572, 591 (¶58) (Miss. 2009).
Calloway claims that the prosecution repeatedly misquoted her statement, “Marvin, get in,
Marvin, Marvin,” which prejudiced the jury and wrongfully impacted the trial. Calloway
12
contends that the trial judge should have declared a mistrial sua sponte because the
prosecution’s continued use of her statement prejudiced the jury and wrongfully impacted
the trial.
¶26. In reviewing the record, we note that Calloway did not object each time that the
prosecution and the State’s witnesses misquoted her statement. See Havard v. State, 928 So.
2d 771, 791 (¶34) (Miss. 2006) (holding that the failure to object operates as a waiver on
appeal). Nevertheless, we do not find that the misquotes were so prejudicial as to warrant
reversal. Calloway’s complaint hinges on the State’s representations that she said “get in the
car,” as opposed to “get in.” The jury watched Officer Tate’s dash-camera video and heard
the correct version of Calloway’s statement. We find the State’s misquotes harmless under
the circumstances and find no cumulative error.
III. Sentence for Attempted Accessory After the Fact
¶27. Calloway also claims that her sentence for attempted accessory after the fact of capital
murder is unconstitutionally disproportionate and excessive. Because Calloway failed to
attack the constitutionality of her sentence at her sentencing hearing and in her motion for
a JNOV or new trial, it is procedurally barred from our consideration. Sims v. State, 928 So.
2d 984, 988 (¶21) (Miss. Ct. App. 2006). Notwithstanding the procedural bar, we will
review this issue.
¶28. Prison sentences are within the trial court’s sole discretion, and generally we will not
disturb a prisoner’s sentence on appeal when it falls within statutory guidelines. Moseley v.
State, 104 So. 3d 839, 841 (¶8) (Miss. 2012). “However, if the sentence is grossly
13
disproportionate to the crime committed, the sentence triggers the Eighth Amendment’s
protection against cruel and unusual punishment.” Moody v. State, 964 So. 2d 564, 567 (¶13)
(Miss. Ct. App. 2007).
¶29. In Solem v. Helm, 463 U.S. 277, 290-92 (1983), the United States Supreme Court
established a three-prong analysis to objectively identify a disproportionate sentence. These
prongs include: (1) the gravity of the crimes and harshness of the penalties, (2) other
criminals’ sentences in the same jurisdiction for the same crimes, and (3) sentences other
jurisdictions impose for commission of the same crime. This analysis, however, is only
applicable “where a threshold comparison of the crime committed to the sentence imposed
leads to an inference of gross disproportionality.” Moody, 964 So. 2d at 567 (¶15).
¶30. Here, Calloway failed to make a threshold comparison of the crime committed to the
sentence imposed. She refers to multiple cases in which the defendants were sentenced for
forgery, stealing steaks, false pretenses, and transfer of a controlled substance. See Rummel
v. Estelle, 445 U.S. 263, 267 (1980); see also Bell v. State, 724 So. 2d 342 (Miss. 1998);
Clowers v. State, 522 So. 2d 762, 764 (Miss. 1988); Presley v. State, 474 So. 2d 612 (Miss.
1985). Yet the crime Calloway committed was far more grave—she attempted to help Banks
escape after he shot and killed two police officers. Calloway’s sentence of twenty years
clearly falls within the statutory limit. See Miss. Code Ann. §§ 97-1-5 & -7(1). We find that
Calloway has failed to establish the requisite inference of gross disproportionality that would
lead to a Solem analysis. Therefore, we find that the trial court did not abuse its discretion
in sentencing Calloway to twenty years in the custody of the MDOC for attempted accessory
14
after the fact.
CONCLUSION
¶31. We find the evidence sufficient to support Calloway’s convictions for attempted
accessory after the fact of capital murder and hindering the prosecution in the first degree.
Further, Calloway’s sentence for attempted accessory after the fact does not create an
inference of gross disproportionality that would merit a Solem analysis under the Eighth
Amendment. We affirm Calloway’s convictions and sentences, finding no cumulative error
at the trial level.
¶32. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., LAWRENCE AND
C. WILSON, JJ., CONCUR. WESTSBROOKS, TINDELL AND McDONALD, JJ.,
CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN
OPINION. McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY WESTBROOKS, TINDELL AND
McDONALD, JJ.
McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:
¶33. I concur with the majority’s affirmance of Calloway’s conviction and sentence for
hindering Banks’s prosecution. Based upon Mississippi precedent and the video evidence
in this case, as a matter of law there was insufficient evidence to convict Calloway of
attempted accessory after the fact. As a result, I believe that we should reverse and render
Calloway’s conviction and sentence for being an “attempted accessory after the fact.” I
therefore respectfully concur in part and dissent in part from the majority’s opinion.
¶34. I have found only one other Mississippi case where our appellate courts have
considered a conviction for attempted accessory after the fact. See White v. State, 851 So.
152d 400, 404-05 (¶10) (Miss. Ct. App. 2003) (reversing the defendant’s conviction and
sentence and remanding the case based upon the indictment’s failure to state the required
“overt act” the defendant committed in furtherance of the attempted crime). In White’s split
decision, the dissent cited a Florida case, Bush v. State, 359 So. 2d 556 (Fla. Dist. Ct. App.
1978), to support its position that, based upon both the attempt and accessory statutes’
requirement of an overt act, no such crime as attempted accessory after the fact exists.7
White, 851 So. 2d at 407-08 (¶¶21, 23) (King, P.J., dissenting). While the majority in White
reached a different conclusion as to that issue, it held back on determining whether the crime
even existed as a matter of law. Id. at 404-05 (¶10).
¶35. As the majority recounts, on May 9, 2015, at approximately 7:40 p.m., police stopped
Calloway’s vehicle during a routine traffic stop. In addition to Calloway, the car held three
passengers: Calloway’s boyfriend, Banks, who sat in the front passenger seat; a friend
named “Loco”; and Calloway’s toddler son. The dash camera footage from one of the police
cruisers showed that two officers ordered Calloway and Banks to exit the car. Although
Calloway and Banks complied with the order, Banks then reached back into the car and
pulled out a gun. He fatally shot both officers offscreen. During the shooting, Calloway
jumped back into the car. She held her foot on the break and yelled, “Marvin, get in, Marvin,
Marvin.” She then drove away, leaving Banks behind.
¶36. Beginning 7 minutes and 44 seconds into the video, the sequence and timing of events
7
While the accessory statute does not specifically state that an overt act is required,
the dissent in White nevertheless stated that the “statute clearly requires the commission of
an overt act for conviction as an accessory-after-the-fact.” White, 851 So. 2d at 407 (¶18)
(King, P.J., dissenting).
16
occurred as follows:
7 min. 44 sec.: Banks fires the first shot at approximately 7:46 p.m.
7 min. 47 sec.: Calloway gets back into the driver’s seat; 5 shots have
been fired.
7 min. 48 sec.: The brake light on Calloway’s car engages.
7 min. 49 sec.: Calloway can be heard yelling, “Marvin, get in, Marvin,
Marvin.”
7 min. 52 sec.: Banks fires a sixth shot, and Calloway drives away
without him.
8 min. 06 sec.: Banks fires his seventh and final shot.
8 min. 09 sec.: Banks departs in one of the police cruisers.
¶37. Shortly after departing the scene, Calloway stopped a half mile away at a local
festival. Melissa Chambliss provided a statement to police that a woman “came running into
the crowd screaming that her boyfriend had just killed two cops.” Goff, who was also
present at the festival, told Calloway that she was going to call the police, to which Calloway
responded, “[Y]es[,] and an ambulance.” Goff made a 911 call at 7:57 p.m. Later, when
police questioned Calloway, she initially denied knowing Banks and claimed that she just
picked up two random individuals while looking to purchase weed. After several hours, she
advised police that the shooter was in fact Banks.
¶38. Mississippi Code Annotated section 97-1-5 (Rev. 2014) requires the following
elements for an accessory-after-the-fact offense:
(1) a completed felony has been committed; (2) the accused concealed,
received, relieved, aided, or assisted a felon, knowing that such person had
committed a felony; and (3) such assistance or aid was rendered with the intent
17
to enable such felon to escape or avoid arrest, trial, conviction[,] or
punishment after the commission of such felony.
Mangum v. State, 762 So. 2d 337, 342-43 (¶16) (Miss. 2000).
¶39. With regard to attempt, Mississippi Code Annotated section 97-1-7(1) (Rev. 2014)
states:
Every person who shall design and endeavor to commit an offense, and shall
do any overt act toward the commission thereof, but shall fail therein, or shall
be prevented from committing the same, on conviction thereof, shall where no
other specific provision is made by law for the punishment of the attempt, be
punished by imprisonment and fine for a period and for an amount not greater
than is prescribed for the actual commission of the offense so attempted.
¶40. “[T]he mere intention to commit a crime is not punishable” because the intention must
“be coupled with an overt act” in furtherance of the result. Bucklew v. State, 206 So. 2d 200,
202 (Miss. 1968). In addition, to constitute an attempt, the act in question must go beyond
mere preparation or planning such that the act gives the defendant the “power to commit the
offense[,] and nothing but an interruption [would] prevent[] the commission of the offense
. . . .” Id. at 202-03. “[A] defendant’s voluntary abandonment may negate a crime of
attempt.” Ross v. State, 601 So. 2d 872, 874 (Miss. 1992). This especially holds true where
the defendant freely and voluntarily abandons an attempt to commit a crime before reaching
the final action in the process. Bucklew, 206 So. 2d at 204.
¶41. In Ross, the Mississippi Supreme Court reversed the defendant’s conviction for
attempted rape after finding the defendant freely and voluntarily abandoned the attempt. Id.
at 875. According to the supreme court, the “key inquiry” focused on the subjective question
of “what made Ross leave?” Id. In answer to this inquiry, the Ross court found the
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undisputed evidence showed that Ross did not fail in his attack due to some outside
interference but that he voluntarily left “because he responded sympathetically to the victim’s
statement that she had a little girl.” Id.
¶42. In light of cases such as White, Bucklew, and Ross, I find that, as a matter of law,
Calloway’s statement, “Marvin, get in, Marvin, Marvin[,]” and her three-second wait before
leaving the scene failed to constitute the overt acts required in furtherance of a definitely
formed intention to aid Banks in escaping arrest.8 The undisputed evidence instead shows
that Calloway, due to no external intervention, voluntarily left the scene as Banks continued
to fire his weapon rather than continuing to wait for him to re-enter her vehicle. She freely
abandoned any conduct that, at most, might have constituted mere preparation or planning.
In addition, she did so well before reaching any final act of completion in the process. And
as our caselaw firmly establishes, such conduct fails to constitute an attempt.
¶43. In Bucklew, the supreme court noted “that the law, like religion, holds out a promise
to those who would commit crime and sin that[,] if they voluntarily resist temptation so as
to recant and desist before attempting to carry into effect their evil purpose, they will not be
held accountable for mere evil intent.” Bucklew, 206 So. 2d at 204. Arguably, Calloway
momentarily contemplated assisting Banks. The undisputed evidence establishes, however,
that she voluntarily abandoned any such thought after a three-second period. In light of
relevant caselaw, I find such evidence insufficient to sustain Calloway’s conviction and
8
Cf. Smith v. State, 279 So. 2d 652, 653 (Miss. 1973) (finding that, without more, the
defendant’s statement to a third party, which directed the third party to tell a juror there
might be a future reward, failed to constitute an overt act necessary for attempt to commit
bribery).
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sentence for attempted accessory after the fact. Accordingly, I concur in part and dissent in
part from the majority.
WESTBROOKS, TINDELL AND McDONALD, JJ., JOIN THIS OPINION.
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