OF JUDGMENT: 05/24/2016
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.
IRVING, P.J., CARLTON AND GREENLEE, JJ.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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
Corrothers, 148 So. 3d at 305 (¶62).
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).
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.
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).
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
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
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
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,