DENNIS THOMPSON A/K/A NUCY A/K/A RAY RAY A/K/A DENNIS RAY THOMPSON APPELLANT
STATE OF MISSISSIPPI APPELLEE
FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT HON. LEE
SORRELS COLEMAN TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: CHOKWE ANTAR LUMUMBA CHARLES EDWARD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JOSEPH SCOTT HEMLEBEN.
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.
AND PROCEDURAL HISTORY
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.
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.
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. 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.
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
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.
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.
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.
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.
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.
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
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.
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
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
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
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 --
BY MR. LAWRENCE: I want the whole thing to be heard.
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."
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.
The case was submitted to the jury, and the jury found
Thompson guilty of depraved heart murder 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. 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.
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.
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
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)).
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.
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, ...