Before Bridges, C.j., Herring, Payne, And Southwick, JJ.
The opinion of the court was delivered by: Payne, J.
JERMAINE NASH A/K/A JERMAINE DONT'E NASH, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 01/24/96
TRIAL JUDGE: HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: MURDER: SENTENCED TO SERVE A PERIOD OF LIFE IN THE CUSTODY OF THE MDOC
DISPOSITION AFFIRMED - 4/21/98
MOTION FOR REHEARING FILED:
Jermaine Nash was convicted under Miss. Code Ann. § 97-3-19(1) (Rev. 1994) for the murder of Samuel Davis. Nash was sentenced to serve a term of life in the custody of the Mississippi Department of Corrections. Nash's motion for JNOV or, in the alternative, a new trial was denied. Finding no error, we affirm.
On August 23, 1994, Samuel Davis (hereinafter Samuel) sustained a.38 caliber gunshot wound to the back of the head while walking home from the grocery store. Samuel died as result of this injury on the following day. The State's case consisted of the theory that Samuel received the fatal shot intended for Terrell Davis (hereinafter Davis), who is not related to the victim, which was fired by Jermaine Nash. The State presented testimony that Davis had been dating Nash's cousin, Juanita, and that the relationship had ended badly with Davis continuing to harass Juanita. The evidence indicated that Nash and Juanita's new boyfriend, Alphonse Plainer, set out on August 23 to confront Davis. Davis testified that as he was walking toward Williams and Sons Grocery, Nash and Plainer pulled up in Plainer's black and gray truck, and that Nash exited the vehicle with a gun and stuck it in Davis's face telling him to leave Juanita alone. Davis indicated that Plainer also had a gun. Davis testified that he ran from Nash and shortly thereafter hid behind an air conditioning unit at a nearby church. Davis testified that he remained at the church until he heard four gunshots at which time he saw a police car which he flagged down.
Nash was later apprehended in California where he gave a statement to the Los Angeles Police. Nash admitted that he and Plainer set out to confront Davis on August 23 and that he (Nash) carried a gun along for protection. Nash indicated that while chasing Davis, Davis suddenly stopped and turned to face Nash. Nash stated that he heard and felt a gunshot go by close to his head. Nash stated that he thought Davis was shooting at him and he (Nash) then took his gun from his waistband and fired two shots in Davis's direction. Nash indicated that he fled the scene where shortly thereafter he threw his gun into the woods after seeing an ambulance arrive in the neighborhood.
A.38 revolver was subsequently recovered by a resident in the neighborhood near a vacant house in the area. The revolver contained five bullets that had been fired and one bullet that had not been fired. The crime lab determined that the bullet killing Samuel had been fired from the.38 revolver. The crime lab also checked the gun for fingerprints but the test came back inconclusive. Nash contends that he did not have a revolver but was carrying a.357 automatic on the day of the shooting.
In all, the State presented thirteen witnesses, many of whom either saw Nash on August 23 with a gun or heard four gunshots fired in the neighborhood around the time of Nash's confrontation with Davis. Nash presented no evidence in his own behalf. Nash, however, maintains that at least two other individuals had guns on the night of August 23 with each having ample opportunity and being in the necessary location to have fired the shot that killed Samuel. After hearing the evidence, the jury found Nash guilty of murder. Feeling aggrieved, Nash filed this appeal asserting four issues.
I. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
Nash contends that the killing of Samuel Davis was unintentional and accidental. Nash argues that his case was presented to the jury under two basic theories: (1) that Nash went to the scene intending to find and inflict grievous bodily injury on Terrell Davis or to kill Terrell Davis and unintentionally killed Samuel Davis and (2) that Nash committed depraved heart murder in that he acted in a manner eminently dangerous to Samuel Davis.
As to the deliberate design theory, Nash argues that there was no evidence presented by the State that Nash intended to harm Davis. Nash argues that the testimony indicated that he had ample opportunity to harm Davis in the weeks prior to August 23 and that he had the opportunity to harm Davis on August 23 when he initially confronted Davis. Nash contends that the only reason he had a gun with him on the day of the shooting was to protect himself. Nash argues that he went looking for Davis merely to tell him to stay away from Juanita. Nash argues that the deliberate design theory must ...