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Miskell v. State

Court of Appeals of Mississippi

July 17, 2018

V'NELL L. MISKELL A/K/A V'NELL MISKELL A/K/A V'NELL LEE MISKELL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/09/2016

          FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL JUDGE

          ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

          BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

          LEE, C.J.

         ¶1. Following a jury trial in the Forrest County Circuit Court, V'Nell L. Miskell was convicted of first-degree murder and sentenced as a habitual offender to life imprisonment in the custody of the Mississippi Department of Corrections without eligibility for parole or early release. Miskell now appeals his conviction, arguing that: (1) the trial court erred in its application of Batson[1] during jury selection; (2) the trial court erred by denying his request for a confession instruction; and (3) the State made improper remarks during its closing argument. Finding no error, we affirm.

         FACTS

         ¶2. On September 11, 2014, Johnny Cooper's body was discovered at Timberton Park in Hattiesburg, Mississippi. His body was found submerged in water in the ditch/creek near the softball fields. An autopsy revealed he had been shot six times, and the manner of death was determined to be homicide.

         ¶3. Miskell's brother, Vernell Miskell, provided a sworn statement to police that the morning after Cooper had been murdered, Miskell came to his house and admitted to Vernell he had murdered Cooper. According to Vernell's statement and trial testimony, Miskell was with Cooper smoking weed at the park the evening before the body was discovered. While Cooper, a known drug dealer, was counting his money, Miskell shot him once. Cooper ran and Miskell continued to shoot him until he fell into the ditch, where Miskell shot him again. Vernell also testified at trial that he found in Miskell's clothes a nine-millimeter firearm and later sold it. Later, while in jail on an aggravated-assault charge, Vernell wrote another statement which stated that Miskell had not told Vernell anything regarding Cooper. At trial, Vernell admitted he wrote the latter statement at Miskell's request, because he did not want to get his brother in trouble. He further admitted that his initial statement was true.

         ¶4. Jeff Byrd, a crime-scene investigator with the Metro Crime Scene Unit, testified at trial that he was called to collect evidence at the scene where Cooper's body was found. Investigator Byrd testified that he observed blood around the edges of the creek and other spots of blood he believed to be the path Cooper traveled as he was bleeding. He also recovered several nine-millimeter shell casings in a pathway leading to a nine-millimeter bullet that he found near the edge of the creek. Photographs of the scene and evidence were shown to the jury. Cooper's car was found nearby at Kamper Park. Investigator Byrd attempted to collect DNA and fingerprints from the car, but he was unable to do so due to dew or rain from the night before and an unidentified sticky substance that prevented any fingerprint collection. Investigator Byrd also swabbed the car's steering wheel, but testified he was unaware of any DNA evidence connecting Miskell to the crime.

         ¶5. Cooper's sister, Patience Williams, also testified. Williams stated that on the day Cooper's body was found, she read online that the body of a young man had been found in the park. She became concerned when she attempted to call Cooper several times, but he never answered or returned her call. Williams called her mother, Theresa Cooper, and asked her if she had seen or heard from Cooper. Theresa answered that she had not heard from Cooper and that he may have stayed with his girlfriend the night before. Williams called Cooper's girlfriend, but she had not seen or heard from Cooper either. Worried that Cooper was arrested or something else was wrong, Williams went to the police station to check. Williams inquired about Cooper at the police station, but the police did not reveal anything to her. Williams testified that the officers asked her a lot of questions and told her to hang around, to which she became alarmed that something was wrong and they were not telling her, so she called her mother, Theresa, to come to the station.

         ¶6. While Williams was at the police station, she saw Miskell and his brother, Pedro Alvarez. At that time, she did not know the identity of the body that was found in the park. When Theresa arrived at the police station, she saw Alvarez but did not see Miskell. Theresa testified that Alvarez came up to her, hugged her neck, and said "I'm so sorry for your loss." At this point, the police still had not informed Theresa or Williams of the identity of the body found, and Theresa testified that at no point while she was at the police station did the officers inform her of the identity of the body.

         ¶7. Neal Rockhold, a detective with the Hattiesburg Police Department, also testified. Detective Rockhold stated that on the day Cooper's body was discovered, Alvarez came to the police station and indicated he believed his friend, Cooper, had been killed. At some point later, Cooper's girlfriend provided the police with a photograph of Cooper, and the body was identified to be Cooper. Detective Rockhold then interviewed Alvarez who stated that he and Miskell had been with Cooper the day before the body was found. When Detective Rockhold indicated he wanted to interview Miskell also, Alvarez attempted to reach him on the phone to come in. Alvarez then stated he would be able to get Miskell to come talk to the police if they would release him. The police released Alvarez, but Miskell did not come in for questioning that day. After attempting to contact Alvarez several times, he gave multiple excuses as to why he could not come back for continued questioning.

         ¶8. Detective Rockhold used Cooper's cell-phone records to determine who had made calls to him. From those records, Detective Rockhold determined that Jeremy Waters was the last person to speak to Cooper on the phone prior to his death. Waters gave a statement to the police the day after Cooper was murdered. He also testified at trial. Waters stated that on September 10, 2014, he met Cooper at Timberton Park around 10:00 p.m. to buy some weed. Waters parked between Cooper's BMW and a silver or white Ford SUV that he did not recognize.[2] When Waters arrived at the park, he saw Cooper smoking with some friends in the dugout area. Waters did not know who Cooper's friends were. After Waters purchased the weed, he left and went to his grandmother's house, which was a block or two from the park. Waters sat in his car for about ten minutes and then he heard five or six gunshots. He ran inside to tell his grandmother, but he did not call the police.

         ¶9. On September 12, 2014, Detectives Jeremy Dunaway and Brandon McLemore were able to interview Miskell. Both detectives testified at trial. Detective Dunaway testified that he advised Miskell of his Miranda[3] rights, but Miskell waived them. During the portion of the interview conducted by Detective Dunaway, Miskell initially denied that he knew Cooper. Eventually, however, Miskell admitted that he knew Cooper and had met him through his brother, but did not indicate which brother-Alvarez or Vernell. On the evening before Cooper's body was found, Miskell stated he was with Alvarez and Vernell at Shoemaker Apartments, and while they were there, Cooper showed up because they were all supposed to smoke together. According to Miskell, Cooper left to make a stop before they were supposed to meet up again. Miskell stated he went with Vernell to Tony Drive where Alvarez had an apartment, but Cooper never showed up. Detective Dunaway testified that Tony Drive was across the street from where Cooper's body was found. Miskell stated that he left Alvarez's apartment on Tony Drive, went back to Shoemaker apartments, and then to Broadway Inn where he had a room. Miskell told Detective Dunaway he arrived back at his hotel room at 10:00 p.m.

         ¶10. Detective McLemore also testified regarding his portion of the interview with Miskell. During the interview, Miskell initially denied he had been in the area near the park where Cooper's body was found. However, later in the interview he admitted that he and his brother Alvarez had been at the park and in the dugout where the bullet casings were recovered. Miskell used a map to explain where he was in the park and signed the map. He also admitted that he was at the park with Cooper when Waters came to buy weed. Miskell did not admit to shooting Cooper.

         ¶11. The State rested, and the defense did not put on any witnesses. The jury found Miskell guilty of first-degree murder, and he was sentenced as a habitual offender to life imprisonment without the possibility of parole. Miskell now appeals his conviction.

         DISCUSSION

         I. Jury Selection

         ¶12. Miskell argues that the trial court failed to correctly follow Batson, 476 U.S. at 89, when Miskell challenged the State's use of five out of its six peremptory strikes on African-American jurors. Specifically, Miskell argues that the trial court collapsed the first two Batson steps; ruled that only a "pattern" of discrimination mattered; and failed to rule on striking one of the jurors. Miskell further argues that these errors require reversal and remand for a new trial because Miskell was denied a jury of his peers. We do not agree.

         ¶13. "The trial judge acts as finder of fact when a Batson issue arises." Allen v. State, 235 So.3d 168, 171 (¶7) (Miss. Ct. App. 2017). "We will not overrule a trial court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or against the overwhelming weight of the evidence." Id.

         ¶14. The use of peremptory strikes "is subject to the commands of the Equal Protection Clause[, ]" which "prohibits using peremptory strikes to engage in racial discrimination." H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co., 232 So.3d 117, 122-23 (¶13) (Miss. 2016) (citing Batson, 476 U.S. at 89). "To safeguard against racial discrimination in jury selection, the United States Supreme Court in Batson established a three-step process." Id. at 123 (¶14).

First, the party objecting to the use of a peremptory strike has the burden to make a prima facie case that race was the criterion for the strike. Second, if the objecting party makes such a showing, the burden shifts to the striking party to state a race-neutral reason for the strike. Third, after the striking party offers its race-neutral explanation, the court must determine if the objecting party met its burden to prove purposeful discrimination in the exercise of the peremptory strike-that the stated reason for the strike was merely a pretext for discrimination.

Id. (footnote omitted).

         A. Step 1

         ¶15. The records shows that when Miskell's counsel objected to the State's use of five peremptory strikes on African-American jurors, the trial court first noted there were four African-American jurors already empaneled. The trial court then stated, "Let me have your reasons. I don't think ...


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