DONTE SHEPARD A/K/A DONTE MEVALONE SHEPARD A/K/A DONTE M. SHEPARD Appellant
STATE OF MISSISSIPPI Appellee
D. MAXWELL II, JUSTICE.
matter is before the Court, en banc, on the Petition for Writ
of Certiorari filed by Donte Shepard. The petition was
granted by order of the Court on August 9, 2018. Upon further
consideration, the Court finds that there is no need for
further review and that the writ of certiorari should be
THEREFORE ORDERED that the writ of certiorari is hereby
dismissed on the Court's own motion.
DISMISS: RANDOLPH, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN
AND ISHEE, JJ.
JUSTICE, DISAGREEING WITH THE ORDER WITH SEPARATE WRITTEN
After unanimously granting Donte Shepard's petition for
certiorari review of his capital-murder conviction, this
Court now summarily dismisses his case by order. Because
Shepard's sufficiency-of-the-evidence argument has merit
and because the trial court erred in denying Shepard's
circumstantial-evidence instruction, I disagree with
dismissing Shepard's case.
Sufficiency of the Evidence
The State contended that Shepard had been acting as a lookout
for two men who, while in the commission of a burglary,
allegedly had shot Tony Brown. Shepard argues that the
evidence was insufficient to support his conviction. When
considering a motion for acquittal or judgment
notwithstanding the verdict (JNOV), the circuit court must
"view all of the credible evidence which is consistent
with the defendant's guilt in the light most favorable to
the State." Knight v. State, 72 So.3d 1056,
1063 (Miss. 2011). If 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," this Court will
not disturb the circuit court's ruling. Id.
Shepard was found guilty of capital murder after the State
alleged that Shepard had aided and abetted two men who had
committed a burglary resulting in Brown's death. This
Court previously has defined aiding and abetting as follows:
Any person who is present at the commission of a criminal
offense and aids, counsels, or encourages another in the
commission of that offense is an 'aider and abettor'
and is equally guilty with the principal offender. However,
the defendant's mere presence when another person
suggests possible future criminal activity does not create
criminal liability as an aider and abettor.
Pace v. State, 242 So.3d 107, 119 (Miss. 2018)
(internal citations omitted). Thirteen-year-old Willie
Thomas, the State's key witness, identified both Lucious
Perkins and Jordan Johnson as having been in Brown's
house, and Thomas identified Perkins as the one who had shot
Brown. Thomas stated that he had seen Shepard on November 17,
2013, the night of the burglary, and that Shepard had been
standing across the street in a pathway by an abandoned
house. Thomas said that Shepard had started running after the
gunshots sounded. He did not, however, state that Shepard had
been running with or toward Johnson or Perkins, the men who
had committed the burglary and the murder. Thomas
affirmatively testified at trial that when Perkins and
Johnson ran out of the victim's house, Shepard had not
run with them.
When the police asked what Thomas had seen Shepard doing that
night, Thomas responded that after hearing gunshots, Shepard
at first ran and then came back to the pathway. When he
returned to the pathway, Thomas stated that Shepard had been
on the phone. The police asked, "so, he was pretty much
looking out for the other guys that was in the house?"
Thomas at first gave no verbal response and then stated yes.
Therefore, the interviewing detective was the first person to
suggest that Shepard had been "looking out" for
Perkins and Johnson.
Had Shepard been the "look-out" for Johnson and
Perkins, testimony that he had been on the phone
after Johnson and Perkins had committed a crime does
not further that theory. Both Johnson and Perkins testified
at trial that they were not friends with Shepard and that he
was not involved in the crime. Johnson testified that he had
committed the burglary with someone named "Little
John" and stated that Shepard did not participate in the
commission of the crime in any way. Perkins additionally
testified that he did not see or speak to Shepard that day.
In addition, the night that the crime was committed, Shepard