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Thompson v. State

Court of Appeals of Mississippi

April 10, 2018

DENNIS THOMPSON A/K/A NUCY A/K/A RAY RAY A/K/A DENNIS RAY THOMPSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/31/2014

          COAHOMA COUNTY CIRCUIT COURT, HON. CHARLES E. WEBSTER, TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DANIEL CHRISTOPHER JONES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, KAYLYN HAVRILLA MCCLINTON

          DISTRICT ATTORNEY: BRENDA FAY MITCHELL

         EN BANC.

          GREENLEE, J.

         ¶1. Dennis Thompson appeals his conviction for murder; finding no reversible error, we affirm.

         ¶2. On December 8, 2009, Thompson was indicted for one count of conspiracy to commit robbery and one count of capital murder. On February 24, 2014, a jury trial commenced in the Circuit Court of Coahoma County. During trial, Thompson requested that the jury be instructed to consider simple murder in the event they found him not guilty of conspiracy to commit robbery. On the morning of February 27, 2014, the jury retired to deliberate. Following deliberations, the jury unanimously found Thompson not guilty for conspiracy to commit robbery. However, the jury was unable to reach a verdict regarding capital murder. While the jury was unanimous that Thompson was not guilty of the underlying felony of robbery, the jury was deadlocked on the lesser-included offense of murder, for which it was instructed to consider per Thompson's request. After ascertaining that the jury was hopelessly deadlocked, the trial court ordered a mistrial on count two and held that Thompson's retrial be limited to the lesser-included offense of murder.

         ¶3. Thompson's retrial commenced on July 29, 2014. After deliberating, the jury unanimously found Thompson guilty of murder. Thompson now appeals, asserting the weight and sufficiency of the evidence do not support his conviction; the trial court erred by admitting unreliable witness testimony; his retrial violated his protection against double jeopardy; and his indictment for capital murder was insufficient for the purpose of retrying him for murder.

         FACTS AND PROCEDURAL HISTORY

         ¶4. On December 8, 2009, a Coahoma grand jury indicted Thompson for count one, conspiracy to commit robbery in violation of Mississippi Code Annotated section 97-3-73 (Rev. 2006), and count two, capital murder in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2006). During his first trial, Thompson requested that, "if the [c]ourt rules on behalf of [Thompson] that conspiracy has not been established by the State, then [he] would move that Count II, as far as capital murder, be downgraded to simple murder. Because the underlying felony is conspiracy to commit robbery." The jury was accordingly instructed that in the event they found Thompson not guilty of capital murder, they were to consider simple murder.

         ¶5. The jury found Thompson not guilty on count one, conspiracy to conspiracy to commit robbery. However, the jury was unable to reach an agreement on count two, capital murder. Although the jury was unanimous that Thompson was not guilty of the underlying felony of robbery, the jury was deadlocked on the lesser-included offense of murder. The trial court ordered a mistrial and held that the State "not be permitted to retry the [D]efendant on a charge of capital murder, but will be limited to the charge of murder."

         ¶6. On July 29, 2014, Thompson's retrial for the lesser-included offense of murder commenced. Shemeka Palmer was the State's first witness. Palmer testified that on November 30, 2008, she was visiting Clarksdale for work and had reserved a hotel room at the Comfort Inn. She stated that on that evening, Carlos Buford, with whom she was a childhood friend, was driving to meet her at the hotel. Palmer said Buford called her at approximately 7:00 or 8:00 p.m. from a Double Quick store in Clarksdale to ask her for directions to the hotel, but he never arrived at the hotel.

         ¶7. Next, Stephen Poer, a former Clarksdale Police Department patrolmen testified. Poer testified that while he was on duty on November 30, 2008, he was called to investigate a person sitting in a parked car near the Hicks Motel. Poer said that he arrived at the scene sometime between 8:00 and 9:00 p.m. and that upon his arrival, he found the body of a deceased man, later identified as Buford, sitting in the driver's seat. Buford's head was against the headrest of the seat, and blood was coming from the back of his head. The driver's door was open, and the engine was still running. Poer testified he secured the scene without disturbing any evidence.

         ¶8. Captain Ulyda Johnson of the Clarksdale Police Department was the next State's witness to testify. Captain Johnson stated that in November 2008, she was a detective with the Clarksdale Police Department and was the chief investigator in Buford's case. She said that on November 30, 2008, at approximately 9:20 p.m., she responded to a dispatcher call in the area near the Hicks Motel. When she arrived, Captain Johnson said she saw Buford's body in the driver's seat of a parked vehicle. She photographed the scene and accompanied the Coahoma County Coroner to the morgue to photograph Buford's body. While at the morgue, the coroner gave Captain Johnson a phone number collected off Buford's body. Captain Johnson called the number and discovered it belonged to Palmer. She then met Palmer at the Comfort Inn, where Palmer was staying. Captain Johnson obtained a statement from Palmer and was headed back to the office when she received a call from an informant. The informant provided the names of several people: Isaiah Johnson, Eddie Johnson, and Cheesy Hollins. Isaiah, Eddie, and Cheesy gave Captain Johnson statements and information about a person of interest, Danny Starks. Cheesy provided a recorded phone call, from which Captain Johnson developed two suspects: David McLymont and Thompson. Captain Johnson also brought Starks in for questioning and asked him to look at two photo lineups she had prepared. Starks viewed the lineups and identified McLymont and Thompson as people he recognized. Under McLymont's photo, Starks wrote "front seat, " and under Thompson's, he wrote "this is the guy I saw with the gun." As a result, warrants were issued for both McLymont and Thompson. Both men were arrested, and their fingerprints were sent to the crime lab.

         ¶9. Several experts testified for the State. Dr. Feng Li, an expert physician in the field of anatomical, clinical, and forensic pathology, testified that he performed Buford's autopsy and recovered a bullet from Buford's head. Dr. Li stated that Buford died of a penetrative gunshot wound to the head. Kristopher Wingert, an expert crime scene analyst with the Mississippi Bureau of Investigation, processed the finger prints and contents of the vehicle. Wingert stated that a copper jacket[1] was found on the floorboards of Buford's car. Starks Hathcock, an expert forensic scientist specializing in firearms identification and examination, identified the copper jacket as bearing similar characteristics to a .40-caliber bullet. Hathcock also analyzed the bullet recovered from Buford's brain and determined it bore similar characteristics to a .38-caliber bullet. Mike Hood, an expert forensic scientist specializing in latent fingerprints, testified that McLymont's fingerprints were found on the front passenger's door of Buford's car.

         ¶10. Derrick Noah, a Coahoma County Jail inmate, also testified for the State. Noah testified that he was acquainted with Thompson prior to his imprisonment and had the opportunity to speak to Thompson while they were both housed in the Coahoma County Jail. Noah stated that in one conversation, Thompson told him he was in jail because of a gun he bought from a mutual acquaintance. Noah recalled that the gun Thompson bought from the acquaintance was a .38-caliber revolver. Noah said that in another conversation, Thompson told him that he, McLymont, and Starks were at a Double Quick and came across a man wearing a chain-link necklace with a medallion. Thompson told Noah he wanted the medallion and started talking to the man, who allegedly asked about purchasing some marijuana. Thompson responded that they could get the marijuana, but they needed a ride from the Hicks Motel to get it. Thompson, McLymont, and Starks got into the man's car. Thompson sat in the rear passenger seat, McLymont was in the front passenger seat, and Starks was seated behind the man. According to Thompson, as McLymont got out of the car, he reached for the man's necklace, and the man shot McLymont in the leg with a .40-caliber gun. Thompson told Noah that after the man shot McLymont, he shot the man in the back of the head. Thompson also told Noah that he was wearing gloves so as to not leave fingerprints at the scene. Thompson said that he hid in the bushes behind the Hicks Motel "until the coast was clear."

         ¶11. Following these conversations with Thompson, Noah wrote the district attorney's office. Noah said he decided to share the information with the State because Thompson had threatened him and his family.

         ¶12. Starks was the State's last witness. Starks testified that he met Thompson and McLymont (Thompson's cousin), while he was living in Clarksdale. He stated that on the evening of November 30, 2008, McLymont and Thompson met him at his house, and the three of them left to walk to a club together. On the way to the club, they came across a Double Quick. Thompson went into the store while Starks and McLymont waited outside. Thompson engaged in a conversation with another man (later determined to be Buford) inside the store. Starks said he heard Thompson ask Buford about a ride. Starks testified that he, Thompson, and McLymont got in Buford's car, and that as they were driving by the Hicks Motel, McLymont, who was seated in the front passenger seat, began wrestling with Buford. Starks said he was seated in the backseat, behind Buford, and Thompson was seated next to him. Starks stated that a shot rang off, and then he saw Thompson reach for his leg, pull out a gun, and shoot Buford in the back of the head. Starks confirmed he later spoke to law enforcement and that he identified McLymont as the front seat passenger, and Thompson as the man with the gun.

         ¶13. After Starks's testimony, the State rested, and Thompson moved for a directed verdict of acquittal, which the court denied. Next, Thompson's first witness, Andrinis Foster (Thompson's cousin), testified. Foster testified that in November 2008, she was in a romantic relationship with Starks, and that on the evening of November 30, 2008, Starks visited her home and told her he had "somebody else's blood" on him. Foster said she did not ask whose blood it was. Thompson's second witness was his sister, Denetria Thompson. Denetria testified that on the night of November 30, 2008, Thompson was with her and their father all night and therefore did not commit the charged crime. Thompson's final witness, Raechele Scott, was a jail administrator at the Coahoma County Sheriff's Department. Scott testified that Thompson and Noah were housed in separate parts of the jail. However, she also stated that during certain times, inmates are able to move around within their shared pod and speak with other inmates and that it was possible for an inmate assigned to a specific cell to visit another cell.

         ¶14. After Thompson presented his witnesses, he renewed his motion for a directed verdict, which the trial court denied. Following closing arguments, the jury deliberated and unanimously found Thompson guilty of murder in violation of Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2006). Thompson was sentenced to life imprisonment in the custody of the Mississippi Department of Corrections. Thompson timely appealed.

         DISCUSSION

         I. Denial of Thompson's Motion for a Judgment of Acquittal Notwithstanding the Verdict, or in the Alternative, Motion for a New Trial

         ¶15. On appeal, Thompson argues that the jury's verdict should not have been allowed to stand and that the trial judge should have granted either Thompson's judgment notwithstanding the verdict, or his motion for a new trial.

         ¶16. The denial of a motion for a judgment notwithstanding the verdict (JNOV) challenges the legal sufficiency of the evidence, while the denial of a motion for a new trial challenges the weight of the evidence. Brown v. State, 796 So.2d 223, 225 (¶5) (Miss. 2001).

         a. Sufficiency of the evidence

         ¶17. In considering whether the evidence is legally sufficient to sustain a conviction, "the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Russell v. State, 924 So.2d 604, 608 (ΒΆ8) (Miss. Ct. App. 2006). "The key question in this analysis is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime ...


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