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Ferguson v. State

Court of Appeals of Mississippi

September 18, 2018

CORTAVIUS FERGUSON A/K/A CORTAVIUS MONTA FERGUSON A/K/A TAY TAY A/K/A CORTAVIUS M. FERGUSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/21/2017

          ATTALA COUNTY CIRCUIT COURT, HON. JOSEPH H. LOPER JR. JUDGE.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE M. MCMILLIN.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH S. HEMLEBEN.

          DISTRICT ATTORNEY: DOUG EVANS.

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

          GRIFFIS, P.J.

         ¶1. Cortavius Ferguson appeals his conviction of two counts of armed robbery and argues that text messages recovered from his cell phone were erroneously admitted into evidence. We find no error and affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On May 22, 2016, at approximately 9:40 p.m., Michael Fedrick entered the Dollar General located on Highway 35 in Attala County. While Michael was paying for his items, a man, dressed in all black, entered the store and pointed a gun at his head, ordered him to the ground, and demanded his wallet. The man, who was later identified as Ferguson, removed approximately $700 in cash from Michael's wallet and threw the wallet back at Michael.

         ¶3. Additionally, Ferguson pointed the gun at the store cashier, Tissy Hall, and demanded money from the cash register. After he got money out of the cash register, Ferguson demanded that Hall open the store's safe. When Hall advised that she did not have access to the safe, Ferguson ran out of the store.

         ¶4. Beverly Fedrick, Michael's wife, was waiting outside the Dollar General in their truck. She observed a man with a gun enter the store. As a result, she called 9-1-1. According to Beverly, the man was wearing all black "from head to toe," including a black hooded sweatshirt, and "green and navy blue or black . . . tennis shoes" that had a "swoosh" on them. The man ran out of the store headed in the same direction from which he entered.

         ¶5. Shortly thereafter, Sue Carter, who lives across the street from the Dollar General, heard a knock at her door and discovered Ferguson sitting on her doorstep. Carter knew Ferguson from her employment as a substitute teacher. Carter noticed Ferguson was not wearing shoes and asked him what was wrong. Ferguson advised that he had had an argument with his girlfriend and ran to her house in order to avoid an altercation. Carter then went inside, called 9-1-1, and remained on the phone until the police arrived at her house.

         ¶6. Carter's adult son, Wesley Goodman, also spoke to Ferguson. According to Goodman, Ferguson was wearing a black t-shirt and black shorts but did not have on socks or shoes. Ferguson asked Goodman for some shorts because he had "messed his clothes up" running from his girlfriend's house.

         ¶7. Deputy Sheriff Scott Walters arrived at the Dollar General in response to the 9-1-1 call. He was subsequently advised that the possible suspect was across the street. Deputy Walters then proceeded to Carter's house and apprehended Ferguson. At the time of his arrest, Ferguson had $837 in his pocket, as well as a cell phone.

         ¶8. Following Ferguson's arrest, Deputy Walters "backtracked" and searched the area between Carter's house and the Dollar General. Deputy Walters located a black handgun on the ground in Carter's backyard. The gun was loaded with a round in the chamber.

         ¶9. Additionally, Deputy Scott Chunn discovered a pair of Nike tennis shoes, a pair of socks, a black hooded sweatshirt, and some black pants, all located in Carter's backyard. The black clothing was piled on top of each other.

         ¶10. Investigator Zelie Shaw obtained a search warrant for the cell phone found in Ferguson's pocket and sent the phone to the Cyber Crimes Unit of the Attorney General's Office for processing and data extraction. She further obtained a search warrant for DNA swabbing. After she received a DNA swab from Ferguson, Investigator Shaw sent the DNA sample, the handgun, and the clothing to Scales Biological Laboratory for testing.

         ¶11. Prior to trial, Ferguson moved in limine to exclude the text messages recovered from the cell phone. Following a hearing, the circuit court denied the motion.

         ¶12. At trial, video surveillance of the armed robberies was admitted into evidence and published to the jury. Video footage from Deputy Walters's body camera was also admitted and published to the jury.

         ¶13. Kathryn Rogers, a forensic DNA analyst employed by Scales Biological Laboratory, testified as an expert in DNA analysis. Rogers conducted a DNA analysis on the handgun and was able to exclude Ferguson as the source of the DNA on that item. However, she agreed that if someone was wearing gloves while holding an item, it would be unlikely for her to find DNA on that item. Rogers further tested two gloves found in the pocket of the hooded sweatshirt. She explained that a mixture of DNA was obtained from the gloves and, as a result, she was unable to include or exclude Ferguson as a contributor. Rogers last tested the hooded sweatshirt and could not exclude Ferguson as a contributor to the DNA found on that item.

         ¶14. Investigator Charlie Rubisoff with the Attorney General's Cyber Crimes Unit, testified as an expert in forensic computer examination. Rubisoff testified that he was able to recover data from the cell phone found on Ferguson at the time of his arrest. The recovered data included text messages sent and received in the hours prior to the ...


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