V'NELL L. MISKELL A/K/A V'NELL MISKELL A/K/A V'NELL LEE MISKELL APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 12/09/2016
FORREST COUNTY CIRCUIT COURT HON. JON MARK WEATHERS TRIAL
ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
LEE, C.J., CARLTON AND WESTBROOKS, JJ.
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 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
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.
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.
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.
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.
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.
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
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. 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.
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 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.
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.
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.
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.
"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
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
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).
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 ...