Andrew C. Cruse, Jr. v. State of Mississippi , 270 So. 3d 179 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-00314-COA
ANDREW C. CRUSE, JR. A/K/A ANDREW APPELLANT
CLINTON CRUSE, JR. A/K/A ANDREW
CLINTON CRUSE A/K/A ANDREW C. CRUSE
A/K/A ANDREW CRUSE A/K/A SPARKY A/K/A
CLINT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/26/2017
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN ALLEN SUBER
GEORGE T. HOLMES
ERIN E. BRIGGS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/14/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Andrew Clinton Cruse Jr. was indicted as a violent habitual offender by the Harrison
County Grand Jury for kidnapping, aggravated assault, forcible sexual intercourse, and sexual
battery. After a jury trial, Cruse was found guilty of kidnapping, aggravated assault, and
forcible sexual intercourse but was acquitted of sexual battery. Cruse was sentenced to life
without parole in the custody of the Mississippi Department of Corrections (MDOC) for each
of the convictions, with the sentences to run concurrently. Cruse filed a motion for a
judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial, which the
trial court denied. Cruse timely appeals. After review of the record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On February 23, 2015, Tina Ivy was spotted naked running from a nearby wooded
area1 to a Lowe’s parking lot in Gulfport, Mississippi. Ivy was naked, her head was covered
in blood, and her arms were bound behind her back with duct tape and zip ties. Witnesses
at trial testified that Ivy stated that she had been held against her will in a tent and raped. Ivy
also stated that Cruse tried to drug her, but she refused to swallow the pills. Ivy named her
assailant as “Clint.” However, the assailant was later identified as Andrew Clinton Cruse Jr.,
whose nickname is “Clint.”
¶3. Sergeant Christopher Werner, a detective with the Gulfport Police Department,
testified that he arrived at the campsite in the wooded area that Ivy had described and noticed
two open tents. Sergeant Werner stated that he found paperwork with both Cruse’s and Ivy’s
names inside one of the tents. Cruse was later arrested approximately one-half of a mile
away from the campsite on an unrelated bench warrant. Ivy picked out Cruse’s photo and
identified him as her attacker, and Cruse was arrested for kidnapping, aggravated assault,
forcible sexual intercourse, and sexual battery.
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Cruse testified that he was homeless due to hard times he endured after the death of
his wife, and that he had set up two tents in a wooded area close to Lowe’s. Ivy testified that
she lived in Alabama, but she ended up in Gulfport, Mississippi, after spending the night
with a friend.
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¶4. At trial, Cruse testified that he and Ivy had consensual sex, and bruises she sustained
were the result of an altercation Ivy had with her boyfriend. However, Cruse admitted to
slapping Ivy with an open hand and tying her up with duct tape during their sexual encounter.
However, Cruse stated that Ivy asked to be bound while they engaged in sexual intercourse,
and that his girlfriend was also with them during their sexual encounter.
¶5. The jury did not find Cruse’s testimony persuasive as to three of the four indicted
offenses, and Cruse was convicted of kidnapping, aggravated assault, and forcible sexual
intercourse. After the denial of Cruse’s JNOV motion, or in the alternative, a new trial,
Cruse timely appeals.
STANDARD OF REVIEW
¶6. “A denial of a judgment notwithstanding the verdict is subject to de novo review on
appeal.” Kirk v. State, 160 So. 3d 685, 695 (¶24) (Miss. 2015). “[The reviewing] Court will
affirm the denial of a motion for [a] JNOV if there is substantial evidence to support the
verdict.” Id. at (¶25).
DISCUSSION
I. Denial of Davis’s Motion to Withdraw
¶7. Cruse asserts that the trial court erred in refusing to allow his attorney, James “Jim”
Davis, to withdraw. We disagree.
¶8. The trial court noted that Cruse filed complaints against his previous attorney
appointed to his case.2 Cruse also filed complaints against Davis alleging that he was trying
2
Prior to trial, an attorney with the Harrison County Public Defender’s Office was
was appointed as Cruse’s trial counsel. However, Cruse filed a number of bar complaints
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to sabotage his case. As a result, Davis filed a motion to withdraw as Cruse’s counsel. The
trial court found that Cruse was trying to manipulate the legal system and reasoned that Cruse
would likely file a complaint against his next attorney if Davis was allowed to withdraw.
Moreover, at the hearing regarding Davis’s motion to withdraw, Cruse acknowledged that
there was no longer a conflict with Davis. The following is an excerpt of Cruse’s statement
during the hearing:
THE COURT: Do you think there is an actual conflict between you and
he? I understand you said some pretty scandalous things
about him.
CRUSE: Possibly later. At this time it is not really no conflict
between me and Mr. Davis. It depends on I guess that
judgment whether he wants to proceed as my attorney or
not.
¶9. Cruse also acknowledged that he would not pursue the bar complaint he filed against
Davis during that hearing. As a result, the trial court denied Davis’s motion to withdraw.
This Court has held that “[t]he trial court has complete discretion when considering a motion
to withdraw as counsel.” Strickland v. State, 220 So. 3d 1027, 1037 (¶35) (Miss. Ct. App.
2016) (citing Hill v. State, 134 So. 3d 721, 725 (¶15) (Miss. 2014)).
¶10. Cruse maintains that the facts of his case are somewhat analogous to the facts in Hill
v. State, 134 So. 3d 721 (Miss. 2014). In Hill, “[the attorney] was granted her request to
withdraw as counsel because of a conflict of interest but simultaneously was assigned to
against the attorneys in the Public Defender’s Office and submitted a letter indicating that
he did not want anyone from the Public Defender’s Office to represent him. As a result, the
trial court appointed Davis as Cruse’s counsel. Cruse also filed a motion accusing the judge
presiding over his trial of conspiring against him with the District Attorney’s Office and
requested that he recuse. However, the motion for recusal was denied.
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remain in an advisory-counsel capacity.” Id. at 725 (¶16). The Mississippi Supreme Court
held that “the trial court erred by assigning [an attorney] as Hill’s advisory counsel while, at
the same time, allowing her to withdraw as his counsel because of a conflict of interest.” Id.
at 726-27 (¶24). The Supreme Court also held that “the trial court again erred when [the
attorney] was required to remain as advisory counsel once a conflict arose between her duty
to the court and her duty to Hill.” Id. at 727 (¶24).
¶11. Here, Cruse reported to the trial court that he would keep Davis as his attorney, and
he explained that the supposed reason why he filed a bar complaint against Davis was due
primarily to their communication issues. Furthermore, Davis did not have a conflict with the
trial court. Also during the hearing, the following exchange took place between Cruse and
the trial court:
THE COURT: Is it a communication thing or do you really, truly,
honestly under your oath right now believe that he is
trying to sabotage your defense?
CRUSE: I think it might be more of a communication thing. I do
realize that Mr. Davis has got an extremely high caseload
and been doing a lot of trials lately.
THE COURT: And being successful. You know Mr. Davis has been a
practicing attorney for, I think, over 30 years.
CRUSE: I know he has a very good reputation as a trial attorney.
Moreover, “[l]imitations must be enforced when considering appointing new counsel to
circumvent any maneuvers that interfere with the ‘orderly procedure in the courts or the fair
administration of justice.’” Id. at 725 (¶15). As a result, Davis’s motion to withdraw was
denied.
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¶12. The record reflects that Davis filed timely motions, cross examined witnesses, and
adequately represented Cruse; as well, this Court notes that Cruse was also acquitted of
sexual battery. After review of the record in its entirety, we find no abuse of discretion, and
this issue is without merit.
II. Sufficiency of the Evidence
¶13. Cruse challenged the sufficiency of the evidence in his motion for a directed verdict
at the end of the State’s case, and later in his posttrial JNOV motion. “On review of the
sufficiency of the evidence, this Court considers the trial court’s ruling at the last time the
sufficiency of the evidence was challenged.” Warren, 187 So. 3d at 627 (¶29). Further, “[i]n
reviewing the denial of a motion for JNOV, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. (internal
quotation mark omitted).
¶14. Ivy testified that Cruse hit her in the head with a hammer, bound her with duct tape,
held her against her will, and engaged in sexual intercourse with her without her consent.
Dr. Levin, an expert in emergency room medicine, testified that Ivy’s skull fracture was
consistent with being hit in the head with an object, such as a hammer. Johnathon Bowles,
a witness at Lowe’s, testified that Ivy informed him that she met a man in the Walmart
parking lot who offered her shelter, then struck her with a hammer. Russell Jones also
testified that Ivy stated that she had been kept in the woods in a tent that was either blue or
had blue tarp over it against her will.
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¶15. Ivy testified that no one else other than Cruse was present inside the tent and that she
never consented to sexual intercourse with him. Furthermore, Ivy’s blood was found on the
pair of jeans Cruse was wearing shortly after he was apprehended. Other witnesses from the
parking lot testified that they also encountered Ivy while she was naked, bloody, and bound
with zip ties and duct tape. Cruse, nevertheless, maintains that Ivy was not a credible witness
because of certain inconsistencies within her testimony. However, “the jury is the final
arbiter of a witness’s credibility . . . [and] the jury weighs the weight and worth of any
conflicting testimony.” Robinson v. State, 227 So. 3d 423, 426 (¶14) (Miss. Ct. App. 2017)
(citation omitted).
¶16. Considering the evidence in the light most favorable to the verdict, the evidence was
sufficient to enable a reasonable jury to find Cruse guilty of the indicted offenses.
III. Overwhelming Weight of the Evidence
¶17. Cruse asserts that the verdict was against the overwhelming weight of the evidence.
“When reviewing a denial of a motion for a new trial based on an objection to the weight of
the evidence, this Court will only disturb a verdict when it is so contrary to the overwhelming
weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”
Id. at 425 (¶10). “In determining whether a jury verdict is against the overwhelming weight
of the evidence, this Court must accept as true the evidence presented as supportive of the
verdict, and we will disturb a jury verdict only when convinced that the circuit court has
abused its discretion in failing to grant a new trial or if the final result will constitute an
unconscionable injustice.” Id.
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¶18. Based on the evidence presented, we find that the State adequately proved that Cruse
bound Ivy against her will, assaulted her with a hammer, and had sexual intercourse with Ivy
against her will. Accordingly, we cannot find that the verdict was so contrary to the
overwhelming weight of the evidence that to allow Cruse’s conviction to stand would
sanction an unconscionable injustice. Therefore, we find this issue is without merit.
IV. Cumulative Error
¶19. Cruse argues that he is entitled to relief based on cumulative error. “The cumulative
error doctrine stems from the doctrine of harmless error, which holds that individual errors,
which are not reversible in themselves, may combine with other errors to make up reversible
error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair
trial.” Rogers v. State, 205 So. 3d 660, 664-65 (¶17) (Miss. Ct. App. 2015). Here, Cruse
alleges that the crime-lab report and the denial of his motion for continuance created
cumulative error.
A. Crime-Lab Report
¶20. Cruse contends that the DNA results within the crime-lab report were “arguably”
withheld from him until later at trial. However, he concedes that there was no actual proof
that the evidence was withheld, but it appears to be a huge coincidence. Further, Cruse
asserts that this report would not have impacted the case one way or another. Accordingly,
we find this issue without merit.
B. Motion for a Continuance
¶21. Cruse argues that the trial court erred in denying his motion for continuance. Cruse
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requested that the trial court allow time to investigate Ivy’s other allegations of sexual
assaults. “The decision to grant or deny a motion for a continuance is within the sound
discretion of the trial court and will not be grounds for reversal unless shown to have resulted
in manifest injustice.” Pilgrim v. State, 19 So. 3d 148, 152 (¶13) (Miss. Ct. App. 2009).
¶22. Here, the trial court found that Cruse failed to demonstrate that he was prejudiced by
the denial of his motion for a continuance. Accordingly, we find no error.
V. Cruse’s Additional Claims
¶23. Cruse filed a twenty-two page pro se brief, which Cruse refers to as an “amendment”
to his principal brief, in January 2018. In this brief, Cruse alleged eighteen different
violations of his rights.3 While several of these alleged violations listed were mere
recitations of the issues in his principal brief, we note that Cruse mentioned a claim for
ineffective assistance of counsel.
¶24. In Johnson v. State, 196 So. 3d 973, 975 (¶7) (Miss. Ct. App. 2015), this Court held
that:
A claim of ineffective assistance of counsel on direct appeal “should be
addressed only when (1) the record affirmatively shows ineffectiveness of
constitutional dimensions, or (2) the parties stipulate that the record is
adequate to allow the appellate court to make the finding without consideration
of the findings of fact of the trial judge. Therefore, ineffective assistance
claims are more appropriately brought during post-conviction proceedings . . .
because, during direct appeals, the Court is limited to the trial court record in
its review of the claim, and there may be instances in which insufficient
evidence exists within the record to address the claim adequately. However,
3
Cruse alleged that Ivy perjured herself, the trial judge refused to recuse himself
although a conflict of interest arose, a mistrial should have been declared after Dr. Levin’s
testimony, malicious prosecution, there should have been a change in venue, and a number
of other allegations against his attorney, the judge, and the police department.
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a claim may be brought on direct appeal if such issues are based on facts fully
apparent from the record.
(Citations and internal quotation marks omitted).
¶25. Moreover, “[w]here the record cannot support an ineffective assistance of counsel
claim on direct appeal, the appropriate conclusion is to deny relief, preserving the
defendant’s right to argue the same issue through a petition for post-conviction relief.” Id.at (¶8). Here, the State did not stipulate that the record was adequate enough to address
Cruse’s claim that his trial counsel was ineffective. Additionally, the record does not
affirmatively show ineffectiveness of constitutional dimensions. Therefore, we decline to
address this issue, leaving Cruse free to seek relief through a post-conviction relief motion
if he desires to do so.
¶26. Also in the January 2018 brief, Cruse raised two new issues: (1) the legality of the
search of his tent, and (2) venue. Additionally, Cruse filed a pro se reply brief in February
2018, reiterating several issues listed in his brief in January 2018.
¶27. But, Cruse did not raise these new issues in his principal brief before this Court, and
“[w]e will not consider issues raised for the first time in an appellant’s reply brief.” Nelson
v. State, 69 So. 3d 50, 52 (¶8) (Miss. Ct. App. 2011). Therefore, we decline to address any
new issues submitted in Cruse’s reply briefs.4 Accordingly, we find no error in the circuit
court’s denial of Cruse JNOV motion, or in the alternative, a new trial.
4
We acknowledge that Cruse filed an addendum in this matter. We find, however,
that the addendum is a mere recitation of his other claims before this Court. Accordingly,
we have already addressed Cruse’s claims. The State’s motion to strike the new issues in
Cruse’s pro se reply brief is dismissed as moot.
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¶28. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND TINDELL, JJ., CONCUR.
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