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Johnson v. State

Supreme Court of Mississippi

February 21, 2019

JAYVIOUS JOHNSON
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 03/03/2017

          BOLIVAR COUNTY CIRCUIT COURT, HON. ALBERT B. SMITH, III JUDGE.

          TRIAL COURT ATTORNEYS: ALISON LESLIE FLINT WILBERT LEVON JOHNSON WILLIAM R. LABARRE JAMIE MARIE BANKS BRENDA FAY MITCHELL KELLIE WILLIAMSON KOENIG.

          ATTORNEY FOR APPELLANT: BOLIVAR COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER.

          DISTRICT ATTORNEY: BRENDA FAY MITCHELL

          BEFORE KITCHENS AND KING, P.JJ., AND COLEMAN, J.

          KING, PRESIDING JUSTICE.

         ¶1. Jayvious Johnson was convicted of two counts of capital murder with firearm enhancement, one count of kidnapping with firearm enhancement, and one count of conspiracy. The verdicts are not against the overwhelming weight of the evidence, and the trial court did not commit reversible error on the evidentiary issues Johnson raises. This Court therefore affirms Johnson's convictions.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In the early morning of November 12, 2013, Tavoris Marshall (Marshall) and Kevion Gorman were shot and killed. Jayvious Johnson (Johnson), Dbryus Story, Jamario Hodges, and Favian Vaughn were indicted for conspiracy to commit robbery, capital murder with firearm enhancement, and kidnapping with firearm enhancement. A joint trial for Johnson, Story, and Hodges was held in December 2016. Vaughn pled guilty to accessory after the fact prior to trial.

         ¶3. At trial, Herdicine Marshall (Herdicine), Tavoris Marshall's grandmother with whom he had lived at the time of his murder, testified that when she went to bed on November 11, 2013, Marshall, Gorman, Corderro Walker, Stanley Self, and her then-seven-year-old grandson Kenny were all in her house. A loud noise woke Herdicine up at approximately 2:00 a.m. on November 12, 2013. She ran to her bedroom door and into the living room where she witnessed three individuals exiting Marshall's bedroom, two of whom she could not identify. The third individual was Self. She asked him what was going on, and he responded, "I don't know, Grandma; I don't know." One of the other individuals then pushed her down, and all three of them ran out the front door. She testified that she did not witness any struggle between Self and the other two individuals, nor did she see any gun pointed at Self. She did not witness any force used to remove Self from the house.

         ¶4. Investigator Robert Graham responded to the scene and testified that he found two .22 shell casings, one near the door and one near the bed where Marshall lay, and one .25 bullet near the loveseat where Gorman lay. He testified that he found Marshall lying on the bed on his back, face up. Gorman was lying on a loveseat wrapped in a comforter. A video game was frozen on the television, and a video game controller was on a beanbag chair in front of the television. Photographs depicting the scene described by Investigator Graham, as well as of the home and the path next to it, were also entered into evidence.

         ¶5. Self, who was fourteen years old at the time of the murders, testified that he visited Marshall's home daily to "chill" and play video games. He testified that he was at Marshall's home playing video games around 1:00 or 2:00 a.m. on November 12, 2013, when Marshall was killed. He stated that he, Marshall, and Gorman were in Marshall's small bedroom, and that Gorman was sleeping while Marshall was watching Self play the video game. Self was sitting on the bed near Marshall. Story knocked on the window, and Marshall told Self to go open the front door; Self complied. Story came in and purchased some pills from Marshall. He left, and Marshall told Self to lock the door behind him. When Self went to the door, the knob was twisting, so he let Story, along with Johnson, back in. They all went back to the room, Self sat back down, and then saw that Johnson had a .22 rifle in his hand. Johnson asked Marshall, "where's the check?"[1] Marshall asked where Johnson got the gun. Johnson again asked where the check was, and Marshall responded, asking if Johnson wanted the check. Then Johnson shot Marshall. He also shot Gorman twice with the .22 rifle. Johnson turned toward Self, and pointed the gun at him, but, according to Self, the gun jammed. At that point, Self rushed Johnson, grabbed the gun, and they tussled over it. After the tussle, Self balled himself up on the bed, and Johnson grabbed a pistol from Story. Self ran out of the room. He saw Herdicine coming out of her room, and she asked Self what happened, and he responded, "I don't know," because he was scared. Johnson then pushed Herdicine down, and Self ran out the front door.

         ¶6. When Self got outside the house, Johnson grabbed him and told Self that he was coming with them. Self started screaming, "don't kill me," and Johnson told him he was not going to kill Self because Self was Johnson's cousin. Johnson grabbed Self by the shoulder and took him to the car, while Story followed behind them with a shoebox[2] in his hands. Johnson put Self into the car, a brown Chevrolet Malibu; Vaughn was sitting in the driver's seat and Hodges, who was standing outside the car, got into the front passenger's seat. Johnson started yelling that he needed two more shells because two people were not dead, specifically requesting that Hodges give him more shells. Vaughn drove the group to Eastgate, where Vaughn and Hodges got out of the car and starting walking away. Johnson then took the rifle and put it over a fence, and then Story gave Self two pistols and instructed him to put them by the fence; Self complied. Johnson and Story told Self to get back into the car and drive it. Self drove to another house nearby. There, Johnson and Story offered Self marijuana to stay quiet, then Johnson told Self that if he said anything, he would have a friend kill Self. Self told them he would not say anything, and then ran home to find the police waiting in his yard to arrest him.

         ¶7. At the police station, Self gave a statement that he testified was a lie, and at trial he testified that he had lied in his first statement because he was scared. He was then taken into custody and held in the youth detention center. He later wrote a second statement, then gave two more statements, which he testified were the truth. Self also led the police to the disposed guns. During cross-examination, Self was thoroughly questioned regarding his role with Marshall as an alleged "door worker" for Marshall's drug business, his motivation to lie to protect himself, and his familiarity with ...


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