CORTAVIUS FERGUSON A/K/A CORTAVIUS MONTA FERGUSON A/K/A TAY TAY A/K/A CORTAVIUS M. FERGUSON APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 03/21/2017
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.
GRIFFIS, P.J., FAIR AND TINDELL, JJ.
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.
AND PROCEDURAL HISTORY
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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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 ...