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Miskell v. State

Court of Appeals of Mississippi

November 7, 2017

VERNELL DAVEN MISKELL A/K/A VERNELL MISKELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/24/2016

         COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER.

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. Vernell Miskell appeals his conviction for aggravated assault and his sentence of twenty years in the custody of the Mississippi Department of Corrections (MDOC). Miskell filed a motion for a judgment notwithstanding the verdict (JNOV), or, in the alternative, a motion for a new trial. The trial court denied Miskell's posttrial motion. Miskell now appeals to this Court. Finding no error, we affirm.

         FACTS

         ¶2. A Forrest County grand jury indicted Marquis Harris and Vernell Miskell for aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Supp. 2016) stemming from a shooting on the evening of December 21, 2004. Harris pleaded guilty to aggravated assault and then testified against Miskell at trial.

         ¶3. On December 21, 2014, Albert Pollard attended a house party in Hattiesburg, Mississippi. During the party, Pollard went outside to purchase marijuana from Harris. As Pollard pulled money out of his pocket to pay for the drugs, he heard someone say, "Freeze, don't move." Pollard testified that a man who he later identified as Miskell ran towards Pollard with a gun pointed at him. Pollard ran off, and he heard six shots fired from behind him. Pollard fell to the ground on the last shot, and then he felt someone going through his pockets. Pollard testified that he suffered three gunshot wounds, and he was in the hospital for two weeks. Pollard admitted at trial that he had been smoking marijuana and spice on the night of December 21, 2014, and he "was probably a little high," but he insisted that he "had clear vision" and could "still remember" the incidents that occurred.

         ¶4. Harris also testified against Miskell at trial. Harris stated that on December 21, 2014, he and Miskell walked to the house party. He testified that Miskell "disappeared," but then later returned to the party in a vehicle. Harris stated that while at the party, he and Pollard went outside to the vehicle Miskell returned in so Harris could sell Pollard spice and marijuana. Harris testified that he entered the vehicle to retrieve the drugs for Pollard, and when he looked up, Miskell had a gun in Pollard's face. Harris observed that Pollard tried to run away, but Miskell shot him. Harris said that after Miskell shot Pollard, Harris and Miskell "got in the car and . . . left." The record reflects that prior to Miskell's trial, Harris pleaded guilty to the aggravated assault of Pollard.

         ¶5. The jury also heard testimony from Dreylen Hurd, the DJ for the party on the night of December 21, 2014. Hurd testified that someone at the party informed him that a person had been shot in the street. Hurd said that he went outside and approached Pollard, who was lying on the ground. Hurd rolled Pollard over and asked who shot him, and Pollard replied that "N.O." shot him. Hurd explained that "N.O." is Miskell's nickname.

         ¶6. Deandre Williams testified for the defense. Williams testified that at the party, he observed Harris with a gun in the pocket of his sweatshirt, and he saw Harris waving the gun around. Williams stated that he saw Harris leave the party, and Harris seemed angry that someone had taken his money. Williams testified that he believed Harris was mad at Pollard because he had lost money to Pollard in a dice game earlier in the night.

         ¶7. Miskell also testified in his own defense. According to Miskell's testimony, he and Harris walked to the party together. Miskell walked outside of the party to smoke and saw a friend, Decario Smith, outside by his car. Miskell went to Smith's car to talk to him when Miskell saw Harris come out of the party. Miskell stated that Harris seemed irritated or agitated. Miskell called his friend Derrick to come get him, and when Derrick arrived, Miskell told Harris he was ready to go. Miskell testified that Harris went back inside the party before returning back outside with Pollard. Miskell testified that as he was walking to Derrick's car, he saw Pollard run away, and then he observed Harris shoot Pollard four times. Harris and Miskell then jumped in Derrick's car and drove off. Miskell claimed that he did not know that Harris brought a gun to the party, and he testified that Harris seemed normal that night.

         ¶8. At the close of the State's case, the defense counsel made a motion for a directed verdict, which the trial court denied. The jury ultimately found Miskell guilty of aggravated assault. The trial court sentenced Miskell to twenty years in MDOC custody.

         ¶9. Miskell's trial counsel filed a motion for a JNOV or, in the alternative, a new trial. Miskell then filed a pro se motion for a new trial as well as a pro se notice of appeal.

         ¶10. After the trial court denied Miskell's posttrial motions, Miskell's appellate counsel submitted a brief on his behalf, claiming: (1) the prosecutor improperly commented on Miskell's failure to call witnesses, and (2) the prosecutor made "send a message" comments during closing arguments. Miskell then submitted a pro se supplemental brief, claiming: (1) the trial court erred in determining that the State's reasons for striking five African American jurors were race neutral; (2) the trial court erred in denying his motion for a directed verdict; (3) the State failed to prove the elements of the crime beyond a reasonable doubt; (4) the verdict was against the overwhelming weight of the evidence; (5) the trial court erred in granting Jury Instruction S-5; (6) the trial court erred in refusing proposed Jury Instruction D-7; (7) the prosecutor misstated the law during closing arguments; (8) the cumulative effect of all errors resulted in an unfair trial; and (9) the cumulative effect of all errors resulted in plain error. For the purposes of clarity in discussion, we will combine several of Miskell's assignments of error.

         DISCUSSION

         I. Batson[1] Challenges

         ¶11. Miskell asserts that the trial court erred in determining that the State's reasons for striking African American jurors were race neutral. "Peremptory strikes alleged to be racially discriminatory are analyzed under Batson v. Kentucky, 476 U.S. 79 . . . (1986)." Corrothers v. State, 148 So. 3d 278');">148 So. 3d 278, 304 (¶61) (Miss. 2014).

         ¶12. When reviewing Batson determinations, this Court will only reverse if the trial court's factual findings "appear to be clearly erroneous or against the overwhelming weight of the evidence." Cox v. State, 183 So. 3d 36');">183 So. 3d 36, 52 (¶54) (Miss. 2015). Upon review of a trial court's determinations under Batson, appellate courts grant "great deference" to a trial court "because [the determinations] are based, in a large part, on credibility." Id. We additionally recognize that "[o]n appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." Id.

         ¶13. Our supreme court has explained that when objecting to a peremptory challenge, the defendant must first "make a prima facie showing that race was the criteria for the exercise of the peremptory challenge[.]" Id. at 54 (¶64). A defendant can establish a prima facie case of discrimination by showing the following:

(1) that he is a member of cognizable racial group; (2) that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race; (3) and the facts and circumstances raised an inference that the prosecutor used his peremptory challenges for the purpose of striking minorities.

Corrothers, 148 So. 3d at 305 (¶62).

         ¶14. Once the defendant has established a prima facie case of discrimination, the prosecution "has the burden to offer a race-neutral explanation for striking the potential juror[.]" Cox, 183 So. 3d at 54 (¶64). The explanation provided by the prosecution for striking the potential juror "need not be persuasive, or even plausible; so long as the reasons are not inherently discriminatory, they will be deemed race-neutral." Corrothers, 148 So. 3d at 305 (¶62). After the prosecution provides its race-neutral explanation, "the trial court must then determine whether the objecting party has met [its] burden to prove there has been purposeful discrimination in the exercise of peremptory challenges." Cox, 183 So. 3d at 54-55 (¶64) (internal quotation marks omitted).

         ¶15. The record herein reflects that following voir dire, the State challenged prospective jurors 6, 21, 25, and 32 for cause. The record reflects that prospective juror 6 was an African American man who informed the court during voir dire that he suffered from narcolepsy.

         ¶16. After the State made its challenges for cause, defense counsel commented that he was concerned about a low percentage of African American prospective jurors, observing that twelve out of thirty-nine prospective jurors were African American. However, defense counsel never actually objected to the prosecutor's challenges for cause as to these jurors, thus waiving this issue on appeal. See Easter v. State, 878 So. 2d 10, 24-25 (¶¶42-43) (Miss. 2004).

         ¶17. The record reflects the trial court then asked the State to tender the first twelve jurors, and the State struck prospective jurors 5, 6, and 10. (As stated, the State previously challenged prospective juror 6, an African American man, for cause.) The transcript reflects that prospective juror 5 was African American, but the transcript does not reflect the race of prospective juror 10.[2]

         ¶18. During the State's peremptory strikes, defense counsel only objected to the State striking prospective juror 5, an African American woman, based on the belief that a peremptory strike was being used as a result of discrimination. After defense counsel requested a race-neutral reason for striking prospective jurors, the trial court determined that defense counsel had not established a prima facie case of discrimination. However, the State still provided race-neutral reasons for striking the prospective juror. The transcript reflects the following exchange during the jury-selection conference:

MR. THORNTON: Judge, I think we have to-the State's reasoning . . . for Number 5, Ms. Council. She is a black female. I would ask for a race[-]neutral reason for striking Ms. Council.
MR. HOOD: You haven't made the-
THE COURT: You haven't-you haven't[.]
MR. HOOD: -Batson challenge yet, but just for the record purpose, I'll give a race[-]neutral reason. She was fidgety when she was doing the panel. She was [in]attentive. She seemed like she didn't want to be here. She was angry. Wouldn't make eye contact. Wouldn't sit still. I think she-I forgot her work history. Number 5. But that's the race[-]neutral reasons. But, again, a Batson procedure hasn't been met.
THE COURT: Well, the Court's opinion, the Defense has not established the prima facie showing that the State is exercising its peremptory challenges on the basis of discrimination. The Court will accept the State's race[-] neutral reasons for eliminating or using the peremptory challenge on Erica Council. Ms. Council is the individual [who] just happened to be on my right just to the right of the podium, so if I'm looking at the podium, I'm looking at her. And the notes that I wrote down-she wasn't paying attention and that she worked the late shift and got off late. She was one of the ones, I think, that ...

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