OF JUDGMENT: 03/03/2017
BOLIVAR COUNTY CIRCUIT COURT, HON. ALBERT B. SMITH, III
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
KITCHENS AND KING, P.JJ., AND COLEMAN, J.
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.
AND PROCEDURAL HISTORY
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.
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.
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.
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?" 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.
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 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.
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 ...