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Herrington v. State

Court of Appeals of Mississippi

October 10, 2017


          DATE OF JUDGMENT: 08/08/2016






          CARLTON, J.

         ¶1. A Neshoba County grand jury indicted Jonathan Herrington for the deliberate-design murder of Billy Scott Bishop. See Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). Following Herrington's trial, a jury convicted him of manslaughter. See Miss. Code Ann. § 97-3-35 (Rev. 2014). The Neshoba County Circuit Court then sentenced Herrington to twenty years in the custody of the Mississippi Department of Corrections (MDOC). See Miss. Code Ann. § 97-3-25(1) (Rev. 2014).

         ¶2. On appeal from his conviction and sentence, Herrington raises the following issues: (1) whether the circuit court erred by admitting improper opinion testimony; (2) whether the circuit court erred by admitting Kimberly Gentry's four written pretrial statements; (3) whether insufficient evidence supported the verdict; (4) whether the verdict was against the overwhelming weight of the evidence; and (5) whether resentencing or sentence clarification is needed.[1]

         ¶3. Finding no error, we affirm Herrington's conviction and sentence.


         ¶4. Around 4 a.m. on October 16, 2014, Deputy Jessie Hamilton with the Neshoba County Sheriff's Department responded to a call about a disturbance and a shooting that had occurred at Herrington's residence almost two hours earlier around 2 a.m. Upon arriving at Herrington's mobile home, Deputy Hamilton encountered Herrington, who was sitting on his back porch and bleeding from a cut under his eye. At trial, Deputy Hamilton testified as to what Herrington said occurred prior to, during, and after Bishop's shooting.

         ¶5. According to Deputy Hamilton's testimony, Herrington stated he was lying in his bed when Bishop walked into his bedroom and attacked him. Herrington claimed that Bishop entered his bedroom holding a cell phone and told Herrington the caller wanted to speak to him. After taking the phone, Herrington reported that Bishop jumped on top of him and began hitting him. Herrington said he tried to push Bishop away and then noticed Bishop reaching for a pistol. Herrington told Deputy Hamilton that he then reached for his own pistol, which he kept under his pillow. Herrington stated that he fired at Bishop twice and that Bishop fell over but kept trying to come toward him. As a result, Herrington said he shot Bishop a third time. Herrington further told Deputy Hamilton that he placed all the guns involved in the incident on the kitchen table.

         ¶6. Upon entering Herrington's residence, Deputy Hamilton saw Gentry sitting in the living room. As Herrington had stated, Deputy Hamilton found three guns on the kitchen table: Herrington's .38 revolver, Gentry's .380 pistol, and the .357 revolver that Herrington claimed was in Bishop's possession. Consistent with what Herrington had told him, Deputy Hamilton removed three spent rounds from Herrington's .38 revolver. Deputy Hamilton removed one spent round from the .357 revolver, and he unloaded the magazine and one bullet from the chamber of Gentry's .380 pistol.

         ¶7. When he entered Herrington's bedroom, Deputy Hamilton observed Bishop lying on his back halfway across the bottom corner of the bed. Deputy Hamilton also noted blood stains in the center of the mattress. Deputy Hamilton testified that "[m]ost of the blood that was on . . . Bishop was in the facial area[, a]nd the spot in the middle of the bed was coagulated blood." After overruling the defense's objection, the circuit court allowed Deputy Hamilton to testify that, based on his observations, he believed Bishop had lain face down in the center of the mattress at one point but that his body had later been rolled over and moved to the edge of the bed.

         ¶8. As further trial testimony reflected, Herrington had met both Bishop and Gentry only recently before the shooting. Gentry testified that Herrington and Bishop had just started hanging out the week before the shooting and that the two appeared to get along with each other. Although Herrington's house was about fifteen minutes from hers, Gentry stated that both Herrington and Bishop had been staying with her for almost a week while they all used crystal methamphetamine and marijuana. Gentry's then-boyfriend, Jamey Johnson, testified that he had also been hanging out and using drugs with the group during this time period. Johnson corroborated Gentry's testimony that Herrington and Bishop appeared to get along well with each other.

         ¶9. Gentry further testified at trial that Herrington left her house the morning of the shooting and returned to his own home. Gentry stated that Bishop grew angry when he learned Herrington had left. According to Gentry, Herrington took a stolen gun, a .357 revolver, with him when he left her house, and Bishop was upset because the two men "were supposed to split whatever came out of [the sale of the gun.]" Gentry also testified that she received a strange phone call the day of the shooting from an unknown caller. The caller allegedly threatened "to blow [Gentry's] brains out" if Gentry did not stop mentioning Herrington's name and hanging out with him. Gentry testified that Bishop called the person back and warned him or her against threatening Gentry.

         ¶10. Gentry also testified that, later the same day, she made plans with Herrington to go to his house. Johnson picked up Gentry and Bishop, and the three drove to Herrington's residence. Both Gentry and Johnson testified that Herrington knew they were headed to his house. When they arrived at Herrington's residence, Herrington was already there with Billy Withers and Josh Henley. Although neither Gentry nor Johnson were acquainted with Withers, they knew Henley. Gentry and Johnson testified that they and Bishop gave Henley a ride elsewhere and then returned to Herrington's residence. Upon returning to Herrington's residence, Gentry testified that she, Johnson, and Bishop joined Herrington in his bedroom.

         ¶11. According to Gentry, she received a call from the same number as earlier in the day when the caller had threatened her. Gentry said that this time the caller asked for Bishop. Gentry stated that she handed the phone to Bishop, who then tried to give the phone to Herrington. Although Gentry testified that Herrington refused to take the phone, Johnson testified that Herrington took the phone and put it on speaker phone. However, both Gentry and Johnson agreed that a fight ensued between Herrington and Bishop. Gentry and Johnson testified that Bishop jumped on top of Herrington, who was sitting on his bed. According to Gentry's and Johnson's testimony, Bishop then began to hit Herrington.

         ¶12. Gentry stated that she wanted to stop the fight. She testified that she went into the kitchen, grabbed her .380 pistol from her purse, and fired a single shot in the air away from Herrington's bedroom. Upon hearing the shot, Johnson ran from the bedroom to check on Gentry. Johnson corroborated that he heard Gentry fire only one shot. After seeing that Gentry was unharmed, Johnson immediately returned to the bedroom, where he saw Bishop "jumping over the bed" toward Herrington. Johnson testified that Herrington was now sitting on the floor and that Bishop was "[a]lmost touching" Herrington when Herrington fired two shots toward Bishop's head. Gentry, who was still in the kitchen, testified that she also heard two shots but that she did not witness the actual shooting. After the shooting, Johnson stated that Bishop lay face down in the middle of Herrington's bed. Johnson testified that he grabbed Gentry, and the two drove away in his vehicle.

         ¶13. While Johnson and Gentry were driving, Herrington called Gentry. Gentry agreed to meet Herrington at his mother's house. After Johnson dropped her off, Gentry returned with Herrington to his residence. Gentry testified that Johnson and Herrington were both members of the Simon City Royals gang. On the drive back to Herrington's residence, Gentry testified that Herrington said he had "earned his teardrop, " which meant he had killed someone. Gentry further claimed that Herrington told her "[h]e did what he had to do."

         ¶14. Gentry testified that she saw no gun in Bishop's possession the day of the shooting, and she stated that she saw neither Bishop nor Herrington in possession of a weapon just before the shooting. Johnson also saw no gun in Bishop's possession and testified that the only weapons he saw were those fired by Gentry and Herrington. Although Gentry testified that she, Bishop, and Herrington were not doing drugs the night of the shooting, she stated that, at the time of the shooting, they were all still under the influence of the drugs they had taken the previous day.

         ¶15. According to Gentry, about three hours elapsed between the shooting and when she and Herrington arrived back at his residence from his mother's house. Gentry said that Herrington began gathering up items as soon as they entered his home. Gentry stated that Herrington went into his bedroom, took a picture of Bishop's body, and sent the picture to someone. Gentry further said she overheard a phone conversation Herrington had in which he stated, "[N]o, we'd have to burn my whole trailer down[] if we did that." Based on the context of the conversation, Gentry assumed Herrington and the person on the other end of the call were talking about trying to get rid of Bishop's body. Gentry further testified that, upon returning to Herrington's residence, she laid her .380 pistol on the kitchen table and that Herrington laid his .38 revolver and a .357 revolver on the table. Gentry stated that Herrington retrieved a fourth gun, the stolen .357 revolver, and then left the house to dispose of the weapon. According to Gentry, Herrington gave her a phone to call 911 and instructed her as to what to tell the operator.

         ¶16. During Gentry's cross-examination, Herrington's attorney questioned her about four written pretrial statements she gave to law enforcement. Gentry gave two statements the day of the shooting on October 16, one statement the day after the shooting on October 17, and one statement several days later on October 28. The defense cross-examined Gentry about portions of each individual pretrial statement and about any perceived differences between her pretrial statements and her trial testimony. On redirect, the State moved to admit Gentry's pretrial statements into evidence. Over the defense's objection, the circuit court admitted all four statements. When asked on redirect about the number of pretrial statements she gave, Gentry explained that she was in custody following the shooting and was therefore no longer taking drugs. Gentry testified that the law-enforcement officers "knew [her] clarity would become better after . . . [she] had more time to calm down from the event." Gentry further testified that her memory was still impaired from her drug use when she gave her statements on October 16 and 17. However, she stated that she was no longer impaired when she gave her final statement on October 28.

         ¶17. The jury also heard testimony from Investigator Kevin Baysinger with the Neshoba County Sheriff's Department. Investigator Baysinger stated that he responded to a call on October 16 about someone being shot after breaking into a house. After arriving at Herrington's residence, Investigator Baysinger photographed the scene and collected evidence. Investigator Baysinger testified that he recovered a spent shell casing from Gentry's .380 pistol by the kitchen garbage can. Consistent with Deputy Hamilton's testimony, Investigator Baysinger noted that Herrington's .38 revolver had three spent shell casings. Investigator Baysinger found one spent projectile from Herrington's .38 revolver on the bedroom floor close to Bishop's body. As later testimony revealed, two more spent projectiles from Herrington's .38 revolver were recovered from Bishop's body during the autopsy. In addition to the shell casings and projectiles, Investigator Baysinger collected a hat with a hole in the back of it from near the foot of the bed.

         ¶18. Investigator Baysinger testified that after waiving his rights, Herrington gave a written statement to law enforcement on October 20. In his statement, Herrington said that he was lying in his bed when Bishop attacked him without warning. Herrington wrote that Bishop "handed me the phone with some unknown person yelling[, ]" and then Bishop "began to hit me in my face constantly[.]" Herrington's statement said he felt he had no choice other than to defend himself against Bishop's attack. According to the statement, Bishop was on top of Herrington when Herrington saw Bishop reach for a .357 revolver. Herrington wrote that he pulled his own gun, a .38 revolver, from beneath his pillow and "fired twice directly toward[] [Bishop's] facial area." Herrington further stated that Bishop was still on his legs and moving when he "fired the third and final shot to the direct center of the back of [Bishop's] head."

         ¶19. Although both Herrington and Gentry admitted handling the guns found on the kitchen table, and although Herrington told law enforcement that Bishop had the .357 revolver in his possession, Investigator Baysinger testified that no prints were recovered from any of the weapons. Investigator Baysinger further testified that, in his experience, this was odd for a crime scene. In addition, Investigator Baysinger stated that, other than Herrington's pretrial statement, no evidence linked the .357 revolver to Bishop or indicated that Bishop had ever had the weapon in his possession.

         ¶20. During his testimony, Investigator Baysinger confirmed that law enforcement recovered a fourth gun, another .357 revolver, from the home of Herrington's mother and stepfather. Investigator Baysinger testified that Gentry told law enforcement the gun belonged to her father and had been stolen from her residence. Investigator Baysinger also testified that the list of items removed from Bishop's body and returned to his family included a black-handled knife with a sheath and two pocket knives.

         ¶21. Dr. John Davis, who performed Bishop's autopsy, testified that he observed two shots to the back of Bishop's head and one shot to his chest. Dr. Davis stated that the shot fired at Bishop's torso traveled from front to back at a downward angle. Dr. Davis recovered the bullet that caused the torso wound. As for the two shots to the back of Bishop's head, Dr. Davis testified they were so close in proximity they entered Bishop's skull through one common defect and then traveled on inseparable wound paths. Although he recovered one of the bullets fired at the back of Bishop's head, Dr. Davis stated that the second bullet exited Bishop's body. Dr. Davis further said that any of the three shots, taken individually, would have been fatal to Bishop. Depending on Bishop's overall health and fitness, however, Dr. Davis testified that it could have taken several seconds to a few minutes for Bishop to succumb to his injuries. Dr. Davis also stated that Bishop was alive when all three shots were fired, and he opined that all three shots were fired close together in a relatively short amount of time.

         ¶22. According to the forensics expert who conducted a ballistics test on the two bullets recovered from Bishop's body, both were fired from Herrington's .38 revolver. The jury also heard testimony that an alcohol and drug screen revealed the presence of methamphetamine, amphetamine, diazepam, and nordiazepam in Bishop's blood. Although Bishop was under the influence of these drugs at the time he died, the expert who conducted the analysis could not say to what extent the drugs affected Bishop.

         ¶23. During the defense's case-in-chief, Withers, who was also present at Herrington's residence at the time of the shooting, testified on Herrington's behalf. Withers stated that he, Henley, and Herrington were at Herrington's residence when the others arrived. Withers corroborated that Gentry, Bishop, and Johnson gave Henley a ride elsewhere. After they left, Withers testified that he locked the front and back doors of Herrington's residence. Withers then fell asleep in Herrington's living room while Herrington remained in his bedroom talking on his phone.

         ¶24. According to Withers, he later awoke to a scuffle and saw two people beating Herrington. Withers stated that he got up to help Herrington when a woman fired a gun at him twice. Withers stated that he then ran out the front door of Herrington's residence and hid in the woods. After hiding in the woods about five minutes, Withers testified that he heard two more shots in quick succession, and then he heard a truck drive away. About three minutes later, Withers exited the woods and saw Herrington walking out of his residence. Withers testified that Herrington had a gash on his head and was holding what appeared to be a .38 revolver. Withers rode with Herrington to ...

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