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Shelby v. State

Court of Appeals of Mississippi

September 12, 2017

MARCUS SHELBY A/K/A SHELBY MARCUS DEMOND A/K/A SHELBY M. DEMOND APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/26/2015

         COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER.

          BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.

          IRVING, P.J.

         ¶1. A jury in the Hinds County Circuit Court, First Judicial District, convicted Marcus Shelby of the murder of Duan Penn, and the circuit court sentenced him, as a habitual offender, to life imprisonment in the custody of the Mississippi Department of Corrections, without the possibility of parole. Shelby now appeals, arguing that the trial court erred in denying his motion for a new trial because the verdict is against the overwhelming weight of the evidence. We affirm.

         FACTS

         ¶2. On April 11, 2012, the Jackson Fire Department and the Jackson Police Department were dispatched to a fire near Forest Avenue and Methodist Home Road in Jackson, Mississippi. Officer Clarence Gibson, one of the police officers dispatched to the scene, testified at trial that he observed a body burning in the fire, amidst fragments of blue tarpaulin and woven rope. The body was burned beyond recognition; it was mostly naked, with duct tape wrapped around the face and head.

         ¶3. Shortly after the body was found, Officer Delanio Sanders of the Jackson Police Department reported his brother Penn missing. Officer Sanders began searching for his brother in areas where Penn was known to frequent, including Marcellos Coleman's residence at 512 Huron Street. Officer Sanders told his superiors that he suspected something had happened to Penn at that location. Around this time, dental records confirmed that the burned body was Penn's.

         ¶4. On May 18, 2012, pursuant to a search warrant, Officer Robert Bufkin and detectives with the Jackson Police Department conducted a search of 512 Huron Street. Their search led to the discovery of blue tarpaulin fragments and woven rope consistent with that recovered from the burn scene, a roll of duct tape, and evidence of a burn pile where more blue tarpaulin fragments were found.

         ¶5. Earnest Kendricks, who lived across the street from the Huron Street address, later provided a statement to the police, in which he stated that he had seen Shelby and Penn at the Huron Street address on April 11, 2012, and further that "[he knew] that someone hit [Penn]."

         ¶6. On October 2, 2012, a Hinds County grand jury indicted Shelby, Coleman, and Janice Pittman for one count of murder and one count of kidnapping. All three defendants were tried separately.

         ¶7. During Shelby's trial, jurors heard testimony from Kendricks and Pittman, both of whom lived near 512 Huron Street. Kendricks and Pittman both testified that they had had previous interactions with Shelby, Penn, and Coleman, and were able to identify them.

         ¶8. Kendricks testified that, on April 11, 2012, Coleman hosted a barbeque at Coleman's residence. Kendricks witnessed the activities at Coleman's residence from where he stood in the yard across the street. He testified that both Shelby and Penn were in attendance. Kendricks further testified that he left the yard shortly after Penn arrived, so he did not see what else happened; however, Kendricks maintained that he overheard Penn say at one point that "he didn't have nothing to do with the break-in." Kendricks continued: "I [saw Pittman] jump over the fence, and I couldn't tell you where she hit him. I couldn't see because of the bushes. [It looked] like something was going on, but I wasn't sure because they [were] all getting loud over there." Then, the following exchange occurred:

[THE PROSECUTOR]: Now, Mr. Kendricks, in the statement that you wrote - -
[KENDRICKS]: Yeah.
[THE PROSECUTOR]: - - back in 2012, you say you know that someone hit him?
[KENDRICKS]: Yeah, it looked like, but I couldn't tell, though.
[THE PROSECUTOR]: And Marcus - - Marcus Shelby was there at ...

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