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Shepard v. State

Court of Appeals of Mississippi

January 16, 2018

DONTE SHEPARD A/K/A DONTE MEVALONE SHEPARD A/K/A DONTE M. SHEPARD APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 09/22/2016

         HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. JEFF WEILL SR., TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, ALICIA M. AINSWORTH

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          GRIFFIS, P.J.

         ¶1. Shepard appeals his capital-murder conviction and life sentence. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On November 17, 2013, at 9:33 p.m., Jackson police were dispatched to a residence on Randall Street about a possible shooting. The responding officer found the front door of the residence open and Tony Brown lying just inside on the floor of the living room bleeding, mortally wounded, and unable to speak. Brown had called 911 himself and was holding money in one hand and a cell phone in the other.

         ¶3. Brown passed away while ambulance attendants were preparing him for transport. He had suffered nine gunshot wounds. One projectile was recovered from Brown's abdomen during the autopsy.

         ¶4. There was evidence of forced entry into Brown's house. Burglar bars on one of the windows had been tampered with, and the window was forced open. Additionally, a crowbar was found on the hood of a car parked near the opened window, and there were footprints on the hood of the car. The foot impressions were insufficient for forensic comparison, and no usable fingerprints were found on the crowbar.

         ¶5. Investigators found multiple spent .40-caliber shell casings inside Brown's house in various rooms and bullet holes throughout the house. Brown's bedroom was in disarray, and drawers appeared to have been rifled through, indicating a burglary.

         ¶6. On November 20, 2013, detectives with the Jackson Police Department interviewed Willie Thomas, who was thirteen years old at the time of the incident. In his recorded interview, Thomas told the police that he was walking home from the barbershop and was right by the pathway in front of Brown's house when he heard gunshots. Thomas stated he saw three guys, later identified as Shepard, Jordan Johnson, and Lucious Perkins, running from the house.

         ¶7. Thomas stated that Johnson and Perkins ran through a field and jumped a fence. Thomas heard the man identified as Perkins say something about having to "get that money."

         ¶8. According to Thomas, Shepard initially ran, but then returned to the scene. Thomas stated that before the police arrived, Shepard was hiding near an abandoned house. Thomas explained that Shepard was in the "cut" or "look[-]through pathway" and was on the phone. Thomas agreed that Shepard was "looking out" for the other guys. After the police arrived on the scene, Shepard came out.

         ¶9. Additionally, Thomas explained that Shepard knew Brown and that Shepard had previously broken into Brown's house. When Brown confronted Shepard about it, Brown and Shepard exchanged verbal death threats. Thomas advised that the confrontation occurred on the day of the shooting at 6:05 p.m.

         ¶10. During the interview, Thomas was given photo lineups and identified Shepard, Johnson, and Perkins as the three men he saw the night of the shooting. Thomas advised that Johnson and Perkins were in Brown's house, but Shepard was outside, on the phone, "looking out." Thomas wrote on the photo lineups and identified which man was the shooter. Specifically, Thomas wrote, "this man was sho[o]ting at him, " and "this man was sho[o]ting the man [in] the back."

         ¶11. Based on Thomas's recorded statement, Shepard, Johnson, and Perkins were arrested. Two .40-caliber semiautomatic pistols were recovered from Johnson's house. A ballistics comparison was conducted, which showed that projectiles recovered from Brown's house and the autopsy were fired from one of the pistols in Johnson's possession.

         ¶12. Shepard, Johnson, and Perkins were subsequently indicted on the charge of capital murder. The indictment charged Shepard as follows:

[O]n or about November 17, 2013[, ] while acting in concert with and/or aiding, abetting, assisting[, ] or encouraging another or others, [Shepard] did willfully, unlawfully, and feloniously kill Tony Brown, a human being, without the authority of law, with or without any design to effect death while and when engaged in the commission of the crime of burglary of a dwelling, or any attempt to commit such felony, by shooting the said[] Tony Brown with a firearm, in violation of Mississippi Code Annotated [section] 97-3-19(2)(e) (1972).

         ¶13. At trial, the State's key witness was Thomas. Thomas testified that he was on the corner of Randall Street and Martin Luther King Jr. Drive when he heard gunshots. He saw three guys, including Shepard, who "was standing outside watching out." Thomas stated that at the time of the gunshots, Shepard was standing in the front of Brown's house. The other two guys, Johnson and Perkins, ran out of the house and went through the pathway near Brown's house.

         ¶14. On cross-examination, Thomas was asked to clarify whether he saw Shepard hiding in an abandoned house close to the scene of the crime. Thomas explained that it was not an abandoned house, but two abandoned buildings that were close together with "a little space open." Thomas stated he saw Shepard on the street between the abandoned buildings and that Shepard was on the phone. Thomas further stated no one could see Shepard because the buildings were so close together. Thomas testified that when the police arrived, Shepard walked past the police, spoke to one of the officers, and then left.

         ¶15. During Thomas's cross-examination, defense counsel played portions of Thomas's recorded interview with the police. Thomas acknowledged that it was his cousin who told him that Shepard had previously broken into Brown's house and had exchanged death threats with Brown. Thomas admitted that he did not actually hear Brown and Shepard exchange threats.

         ¶16. Regarding the photo lineups, Thomas testified that despite his notations, he did not see who shot Brown. Thomas acknowledged that what he wrote on the photo lineups "wasn't exactly the truth." Defense counsel then asked whether there was anything else that Thomas needed to clarify, to which Thomas replied, "no, sir."

         ¶17. On redirect, Thomas was adamant that at the time he heard gunshots, he saw Shepard standing by the abandoned buildings, "looking out." Thomas testified that following the shooting, Shepard "stayed, then he left, then he came back to the scene."

         ¶18. Detective Daryl Owens with the Jackson Police Department testified that he observed Shepard at the scene of the crime, standing around after the shooting. Detective Owens explained that in his experience as a ...


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