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Thompson v. State

Court of Appeals of Mississippi

March 21, 2017

DENNIS THOMPSON A/K/A NUCY A/K/A RAY RAY A/K/A DENNIS RAY THOMPSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

         DATE OF JUDGMENT: 11/6/2014

         COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT HON. LEE SORRELS COLEMAN TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: CHOKWE ANTAR LUMUMBA CHARLES EDWARD LAWRENCE III.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN.

         EN BANC.

          WILSON, J.

         ¶1. Dennis Thompson was found guilty of murder and three counts of aggravated assault following a jury trial in the Oktibbeha County Circuit Court. On appeal, Thompson argues that the trial court (1) "improperly allow[ed] the State to introduce rebuttal testimony" and (2) erred "in refusing all . . . [j]ury [i]nstruction[s] offered by the defense, " including certain proposed instructions on the concept of reasonable doubt. We conclude that the trial court did not abuse its discretion by allowing a rebuttal witness or by denying the requested instructions. Therefore, we affirm Thompson's convictions and sentences.

         FACTS AND PROCEDURAL HISTORY

         ¶2. Around 1 a.m. on May 22, 2010, a large number of people had gathered near the intersection of Highway 182 and North Washington Street in Starkville. Groups were milling about and talking on both sides of Highway 182, primarily near a Texaco on the south side of the street and around Club 124, where a high school graduation party was just ending, on the north side of the street. Following a physical altercation near the intersection, gunshots were fired that resulted in the death of C.K. Randle and injuries to three others.

         ¶3. Thompson was arrested in connection with the shooting and was indicted for depraved heart murder, Miss. Code Ann.§ 97-3-19(1)(b) (Rev. 2006), and three counts of aggravated assault, Miss. Code Ann. § 97-3-7(2). Thompson's case proceeded to trial on October 27-31, 2014. At trial, the jury heard from eight witnesses to the shooting and/or the events leading up to it.

         ¶4. Lavsha King testified that she was standing in the Texaco parking lot when she heard a commotion and saw a crowd of at least ten to fifteen people walking toward Highway 182. The crowd was walking toward a man who was standing in the street. King did not know the man, but she said he was wearing a white shirt and had dreadlocks.[1] King testified that a Chevrolet Avalanche drove up near the man, and the man spoke briefly to the driver and then "reached into the back seat" of the vehicle. When the man turned back toward the approaching crowd, he had a gun and "came out shooting." According to King, the man fired more than five shots as the crowd scattered. The man then dove through the back window of the Avalanche, which sped off west on Highway 182. King then realized that Randle, who was a friend of her brother, had been shot. King immediately called 911.

         ¶5. Azaria Ross testified that she was standing in the Texaco parking lot when her brother, Tavion Pegues, saw Thompson and said, "Let's get this n****r." Mike Smith then walked up to Thompson, who was standing in the street, and punched him. Ross testified that Thompson stumbled back, and a group of five to ten people advanced toward him, but Thompson then regained his balance and pulled a gun from his pants. Ross did not actually see Thompson fire the gun, but she testified that she heard multiple gunshots immediately after she saw him pull the gun. Ross was struck by one of the bullets. Her brother and his friends took her to the hospital.

         ¶6. Smith's brother, Tony Harris, was also in the Texaco parking lot prior to the shooting. Harris testified that Smith and Thompson argued, Thompson approached Smith, and then Smith punched Thompson. Harris testified that Thompson then pulled out a gun and began shooting. Harris was struck by one of the bullets and was taken to the hospital.

         ¶7. Devierre Outlaw was standing a short distance down the street when the shooting occurred. He testified that he saw Smith punch Thompson in the face, and then Thompson pulled out a gun and started shooting. Outlaw testified that, because it was dark outside, he could not see the gun, but he saw the gunfire and heard the shots. Outlaw was shot in the elbow and in the abdomen, and an ambulance took him to the hospital.

         ¶8. McKenzie Rogers testified that he was across the street when he saw thirty to forty people approaching Thompson in the Texaco parking lot. Rogers testified that the group appeared to be "preparing to fight." According to Rogers, an SUV then pulled up near the Texaco in the middle of Highway 182, which blocked his view of Thompson. Rogers next heard five or six gunshots, and then the SUV sped off. Rogers saw that Randle had been shot and tried to perform CPR on him until law enforcement arrived.

         ¶9. Jason Zuber, a defense witness, testified that he was standing across the street from the Texaco when he saw Thompson arguing with a group of ten to fifteen men. Zuber testified that Thompson tried to walk away, but one of the men followed Thompson into Highway 182 and punched him in the face. According to Zuber, the rest of the group then rushed toward Thompson, blocking his view. Zuber then heard gunshots, but he could not see the shooter. Zuber claimed that he heard more than one set of gunshots and that the shots were coming from different locations and directions.

         ¶10. Christopher Harris, a close friend of Thompson, testified that he had been with Thompson since approximately 6 p.m. that evening and that he did not see Thompson with a gun at any time that night. On their way to the party at Club 124, Thompson and Harris stopped at the Texaco, and Thompson went inside to buy a drink and some chips. Harris testified that as Thompson exited the Texaco, Smith and several others outside began harassing Thompson. Harris testified that he stepped between Thompson and the group to try to avoid trouble. Then one of Thompson's "kin" pulled up in the street in a "truck, " and Harris encouraged Thompson to get in the truck and leave. Harris testified that as Thompson walked toward the truck, Smith ran forward and hit Thompson. According to Harris, a crowd of twenty or thirty people then ran toward Thompson so that he could not see Thompson. Harris then heard gunshots, and the crowd took off running in different directions. Harris testified that he heard approximately six gunshots, but he believed that the shots came from different guns and from different directions.

         ¶11. Justin Yarbrough testified that Smith and several others had jumped him outside of Club 124 a short time before the shooting. According to Yarbrough, the group attacked him and kicked and beat him severely. Yarbrough never reported the incident to the police. He testified that he was sitting in a car nearby when shots were fired and that he did not see the shooting.

         ¶12. Officers from the Starkville Police Department were on the scene within minutes of the shooting. They recovered six shell casings within twenty feet of Randle's body. All were Smith & Wesson .40 caliber shells. No other type of shell casing was recovered.

         ¶13. After the defense rested, the State announced that it would call Landon Stamps, a former Starkville Police Department detective, as a rebuttal witness. Stamps had interviewed Thompson shortly after the shooting, and the State intended to introduce the approximately thirty-minute video of the interview through Stamps. Thompson objected that Stamps's testimony and the recorded interview were improper rebuttal and should have been offered in the State's case-in-chief. However, the State responded that the interview, in which Thompson admitted to firing a .40 caliber handgun about six times, was admissible to rebut the testimony of Harris and Zuber. The State explained that it did not introduce the interview in its case-in-chief because it considered it a self-serving claim of self-defense. However, once Harris suggested that Thompson did not have a gun, and Harris and Zuber suggested that there were other shooters, the video was proper rebuttal evidence. The trial judge overruled Thompson's objection but also ruled that Thompson would be allowed to offer appropriate surrebuttal evidence.

         ¶14. At Thompson's request, the trial judge agreed to view Thompson's recorded statement outside the presence of the jury before making a final ruling on its admissibility. While the video was being played for the judge, co-counsel for the defense-Mr. Lumumba and Mr. Lawrence-made the following statements:

BY MR. LUMUMBA: (Speaking over audio) Let it in, Your Honor.
BY MR. LAWRENCE: (Speaking over audio) Please let it in. Please. We can stop now.
BY THE COURT: (Speaking over audio) All right. All right, we can turn that off.
(Whereupon the video playing in open court was paused.)
BY MR. LAWRENCE: Innocent.
BY THE COURT: Now, you've withdrawn your objection to the admission of the statement; is that correct?
BY MR. LUMUMBA: (Nods head affirmatively).
BY THE COURT: All right. Would that -- there's nothing left for the Court to rule on. However, I do believe you mentioned earlier that there was a statement at the 29th minute --
BY MR. LUMUMBA: Yes.
BY THE COURT: -- and that you wanted that portion redacted; is that correct?
BY MR. LUMUMBA: Yeah, I'd ask the State how far do y'all want to go? Y'all want the whole thing to be -- be heard?
BY MR. LAWRENCE: I want the whole thing to be heard.

         Following a brief recess, the court asked counsel to again confirm that Thompson had "withdrawn his objections" to the recorded statement on the ground that it was improper rebuttal. Mr. Lawrence answered, "Yes, Your Honor, we have at this time."

         ¶15. Stamps then testified, and Thompson's recorded interview was played for the jury. During the interview, Thompson admitted that he had fired "about six" shots with a .40 caliber handgun. Thompson told Stamps that he had dropped the handgun at the scene before jumping into his cousin's vehicle. During the interview, Thompson did not claim that anyone else had fired a gun. After a brief surrebuttal witness, the defense finally rested.

         ¶16. The case was submitted to the jury, and the jury found Thompson guilty of depraved heart murder[2] and on all three counts of aggravated assault. The court sentenced Thompson to thirty years in the custody of the Mississippi Department of Corrections (MDOC) for murder.[3] The court also sentenced Thompson to five years in MDOC custody on each count of aggravated assault, with two of the five-year sentences to run consecutively to one another and to the murder sentence, and one five-year sentence to run concurrently to the murder sentence. Thompson subsequently filed a motion for judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal. As noted above, Thompson argues that the trial court erred by allowing the State to introduce rebuttal testimony and by refusing all of his proposed jury instructions.

         DISCUSSION

         I. Rebuttal Witness

         ¶17. As discussed above, Thompson's counsel expressly withdrew his objection to the introduction of his recorded interview. In fact, both of his attorneys expressly stated that they wanted the jury to hear the interview. Accordingly, Thompson waived any objection to the videotaped interview. Baxter v. State, 177 So.3d 423, 441 (¶47) (Miss. Ct. App. 2014), aff'd, 177 So.3d 394, 398 n.2 (Miss. 2015). Aside from Stamps's role as the sponsoring witness for the recorded interview, his testimony had little significance, and Thompson identifies no specific testimony that prejudiced him. Therefore, we conclude that Thompson waived any objection to Stamps's testimony or the introduction of his recorded interview.

         ¶18. In any event, the trial judge did not abuse his discretion by allowing Stamps to testify in rebuttal. The decision whether to allow rebuttal testimony is committed to the discretion of the trial judge, and we will reverse only for an abuse of discretion. Armstrong v. State, 771 So.2d 988, 999 (¶48) (Miss. Ct. App. 2000). In general, the State "must offer all substantive evidence in its case-in-chief." Id. However, the State is entitled to present "rebuttal testimony . . . to explain, repel, counteract or disprove evidence" offered by the defense. Williams v. State, 539 So.2d 1049, 1051 (Miss. 1989). Moreover,

the court should resolve [any] doubt in favor of the reception in rebuttal [if] (1) its reception will not consume so much additional time as to give an undue weight in practical probative force to the evidence so received in rebuttal, . . . (2) the opposite party would be substantially as well prepared to meet it by surrebuttal as if the testimony had been offered in chief, and (3) the opposite party upon request therefor is given the opportunity to reply by surrebuttal.

Riley v. State, 248 Miss. 177, 186, 157 So.2d 381, 385 (1963) (quoting Roney v. State, 167 Miss. 827, 150 So. 774, 775-76 (1933)). "[The Mississippi Supreme] Court has advocated a liberal application of the rebuttal evidence rule." McGaughy v. State, 742 So.2d 1091, 1094 (¶19) (Miss. 1999) (quoting Powell v. State, 662 So.2d 1095, 1098 (Miss. 1995)).

         ¶19. Thompson's counsel argued in his opening statement that this was "a clear case of self-defense." The State then presented its case-in-chief directed to rebutting Thompson's claim of self-defense. After the State rested, the defense called Harris, who had been with Thompson throughout the evening leading up to the shooting. On direct-examination and again on redirect, defense counsel elicited testimony from Harris that he had not seen Thompson with a gun at any point during the evening. The apparent purpose of this testimony was to suggest to the jury that Thompson did not even have a gun, much less fire one. In addition, Harris and Zuber both testified that they believed that shots were fired from multiple guns, from different locations, and in different directions.

         ¶20. It was not an abuse of discretion to permit the State to counteract Harris's testimony by introducing Thompson's recorded interview, in which he clearly admitted to firing a gun. Williams, 539 So.2d at 1051. It is understandable that the State did not use the interview in its case-in-chief, as Thompson did not confess to murder but rather claimed self-defense based on his own version of events. Once the defense introduced evidence suggesting that Thompson did not have a gun, the trial judge was within his discretion to allow the State to introduce the recorded interview in rebuttal. See Armstrong, ...


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