Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Payne, J.,
DATE OF JUDGMENT: 07/22/1997
TRIAL JUDGE: HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: 07/22/1997: MURDER: SENTENCED TO SERVE A TERM OF LIFE IMPRISONMENT
DISPOSITION: AFFIRMED - 01/26/1999
¶1. Joseph Holiday was indicted by the Adams County Grand Jury on a charge of murder. The indictment was filed of record on March 15, 1996. A trial was held on March 27, 1997, and ended in a hung jury. A mistrial was declared. A second trial was held on July 22-23, 1997, in the Circuit Court of Adams County, Mississippi. Holiday was found guilty. Thereafter, Holiday filed a motion for a new trial. This was denied. Feeling aggrieved, Holiday appeals.
¶2. On January 13, 1996, in Natchez, Mississippi, Tommy Hawkins was shot, while in his vehicle near Martin's Lane. No one testified that they actually saw Holiday fire the shot which killed Hawkins, but several eyewitnesses testified that Holiday was standing near Hawkins's car when Hawkins was killed. One eyewitness, Anthony Chatham, testified that he saw a chrome object in Holiday's hand.
I. WHETHER THE CONVICTION OF APPELLANT HOLIDAY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE AND THE EVIDENCE PRESENTED WAS INSUFFICIENT TO SUPPORT THE VERDICT RENDERED.
¶3. Holiday challenges the legal sufficiency of the evidence and the weight of the evidence as evidenced by the citation of error. However, the thrust of this citation of error is founded upon an argument based upon the weight of the evidence. In spite of the emphasis placed upon the verdict being against the overwhelming weight of the evidence, we address the sufficiency of the evidence as well.
¶4. Since an argument on the sufficiency of the evidence requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the circuit court overruled Holiday's motion for a directed verdict (as the record is devoid of a lodged JNOV motion). See Wetz v. State, 503 So. 2d 803, 807-08 (Miss. 1987). Nevertheless, we address this argument from the perspective that a JNOV was properly lodged. The standard of review for a JNOV is the same as for a directed verdict. James v. Mabus, 574 So. 2d 596, 600 (Miss. 1990). Both motions for directed verdict and motions for a JNOV challenge the legal sufficiency of the evidence. Noe v. State, 616 So. 2d 298, 302 (Miss. 1993). Where a defendant moves for a JNOV, the trial court considers all of the credible evidence consistent with the defendant's guilt, giving the prosecution the benefit of all favorable inferences that may be reasonably drawn from the evidence. McClain v. State 625 So. 2d 774, 778 (Miss. 1993).
¶5. In the instant case several witnesses testified. Holiday testified that he was not in the area where Tommy Hawkins was killed. Holiday's mother claims that her son was at home all day with the flu and did not leave the house. The State provided numerous eyewitnesses who placed Holiday at the scene of the shooting that evening. Roosevelt Williams testified that he was visiting Martin's Lane to purchase some cocaine when Tommy Hawkins offered both Williams and Sylvester Brown a ride. Williams accepted the ride as did Brown. Williams testified that he turned his attention toward Brown to let Brown in the vehicle, and when he turned around a pistol was sticking through the driver's window. Though Williams could not see the gunman's face he heard the unidentified man state, "Well, you owe me some money." According to Williams, Hawkins started to pull away and was shot while doing so. Hawkins's foot was applied to the vehicle's accelerator, and the truck careened into a utility pole.
¶6. Corey Ashley testified that he was visiting his cousin's house in Martin's Lane that evening. Ashley states that when he left the area, Holiday was with a friend, Anthony Chatham.
¶7. Tim Belton stated that he (Belton) was standing on Martin's Lane talking to some friends when Hawkins stopped his vehicle. Belton testified that both Chatham and Holiday were standing near Hawkins's vehicle when he heard a gunshot. Belton stated that he ran from the scene.
¶8. Thelma Hoggert was also in Martin's Lane to buy cocaine when she heard a gunshot. Though she did not know the individual who she saw leave Hawkins's vehicle after she heard the gunshot, she later picked his picture from a photo line-up. This individual was Joseph Holiday. ¶9. Anthony Chatham testified that he sold a "fake" rock of cocaine to Thelma Hoggett, while Holiday walked to Hawkins's vehicle. Chatham stated that he heard Holiday arguing with the driver of the vehicle, then he testified that he heard a loud noise, thinking it was the vehicle backfiring. Chatham testified that he saw Holiday with a chrome object in his hand. Specifically, Chatam stated:
"Well, it appeared to be a gun, like from where I was standing just looking, it was the outline of a gun, the shape of a gun; it just appeared to be a gun in his hand."
¶10. Holiday further argues that the verdict was against the weight of the evidence. When contradictory testimony exists, this Court will "defer to the jury, which determines the weight and worth of testimony and credibility of the witness at trial." Odom v. Roberts, 606 So. 2d 114, 118 (Miss. 1992). The jury bears sole responsibility for determining the weight and credibility of evidence. May v. State, 460 So. 2d 778, 781 (Miss. 1984). With that in mind, a new trial is appropriate only where a verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand, would be to sanction unconscionable inJustice. Wetz, 503 So. 2d at 812. We will reverse and ...