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Mootye v. State

Court of Appeals of Mississippi

June 4, 2019

GREGORY EUGENE MOOTYE, III A/K/A GREGORY MOOTYE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/28/2011

          FORREST COUNTY CIRCUIT COURT TRIAL JUDGE: HON. ROBERT B. HELFRICH

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL

         EN BANC.

          CARLTON, P.J.

         ¶1. After a jury trial in Forrest County Circuit Court, Gregory Mootye was convicted of three counts of deliberate-design murder. For each count, he was sentenced to serve life in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively.

         ¶2. Mootye now appeals and asserts the following assignments of error: (1) the trial court erred in denying his alibi instruction; (2) the trial court erred in overruling his Batson[1] objection; and (3) his trial counsel was ineffective. Finding no error, we affirm Mootye's convictions and sentences.

         FACTS

         ¶3. At approximately 4:40 a.m. on Monday, February 22, 2010, Officers Robert Sybert and Jason Pitts of the Hattiesburg Police Department were dispatched to 817 Dabbs Street in response to a 911 hangup call. Even though the door was locked, it was ajar. The officers entered the home, identifying themselves as law enforcement. Although the house was dark, Officer Sybert detected movement in a doorway and saw what appeared to be a white reflective band on the back of a person's jacket. As he moved toward the individual, Officer Sybert tripped over the body of a female covered in blood on the floor. The suspect, a tall black male wearing a dark-colored hooded jacket with what appeared to be a white shirt underneath, responded to the officers' commands and moved forward slowly. However, when Officer Pitts tried to arrest the suspect, he snatched his arm away, ran past the officers, and jumped off the porch. The officers chased the suspect but were unable to apprehend him.

         ¶4. The deceased victim on the floor was identified as Angelica Twillie. A second deceased female-Angelica's mother, Alesia Twillie-was discovered in a bedroom.[2]Autopsies of the women revealed they had both been shot and stabbed multiple times. Furthermore, Angelica was several months pregnant, and it was determined that the unborn child's cause of death was ureteral placenta insufficiency due to the homicidal death of the mother.

         ¶5. Mootye was rumored to be the father of Angelica's unborn child, and he was questioned by police. Mootye told Detective Branden McLemore that he had been at his apartment Sunday night until he left for work Monday morning, and his roommate, Deveiun Tripp, confirmed his alibi; so Mootye was released. Soon thereafter, Officer Pitts was shown a picture of Mootye and others on a digital camera, and he indicated that he was eighty percent sure that Mootye was the person he saw at the Twillies' house that night. Furthermore, two individuals-Chekeita Pittman and Taborious Lindsey-came forward with witness statements placing Mootye near the scene of the murders that morning. Before trial, when questioned further by police and charged with accessory after the fact, Tripp recanted his prior statement that supported Mootye's alibi and said Mootye confessed to him that he committed the murders. As we will discuss later in this opinion, Tripp also testified as to such at trial, stating that he picked Mootye up at an apartment complex the morning after the murders and that Mootye later asked him to move a gun.

         ¶6. Mootye was indicted on three counts of deliberate-design murder for the deaths of Angelica, Alesia, and Angelica's unborn child. A jury trial was held on January 24-26, 2011. The two officers dispatched to the 911 call testified to the facts as stated above. Denise Rupple, a senior crime-scene analyst with the Bureau of Forensic Services, stated that a fillet knife, like the ones used at Marshall Durbin where Mootye and Angelica worked, was recovered near the house, and several .22-caliber shell casings were found in the home. No gun was recovered. Rupple also testified that the arcing pattern of blood splatters on the wall indicated the person used his or her left hand. (Mootye was left-handed.) She noted a "gloved impression or fabric impression that was left in blood" and said the pattern was consistent with fabric gloves obtained from Marshall Durbin, but Rupple admitted that no glove was found at the crime scene. There were also bloody shoe prints at the scene.

         ¶7. During a search of Mootye's apartment, police retrieved an empty .22-caliber shell cartridge box from Tripp's bedroom. Two pairs of Nike high-top sneakers were also taken from the apartment for testing. Rupple testified that one pair's size and class "was consistent with the stains that were left - those shoe impressions that were left at the scene."

         ¶8. Pittman testified that she spent the evening with Mootye that Sunday night. Pittman stated that Mootye and Tripp watched a basketball game on television. She and Mootye went to bed somewhat early, but at approximately 4 a.m., he asked her "to take him to get some money from some dude" before he had to go to work that morning. Pittman was unfamiliar with the area, so Mootye directed her where to go. Pittman testified that Mootye realized he forgot his cell phone and he told her to come back for him later. Pittman turned the car around to leave and noticed Mootye standing on the porch of a home, later identified by her as the Twillies' house. She drove away and soon thereafter saw the police cars drive by. Worried, Pittman went to the apartment to get Tripp, saying they needed to check on Mootye. After looking for Mootye, they decided to go back to the apartment and wait. According to Pittman, Tripp woke her up about 7 a.m. saying Mootye had called and requested that she pick him up at her cousin's house. Pittman observed that Mootye was wearing a white "dingy-like shirt," and he told her "he had been running from the police." She noted "a little speck of blood, like, on his forehead." Pittman claimed that she met Mootye at his uncle's house the following day and that he pulled a gun out of the trunk of her car.[3] Pittman acknowledged she only told police what happened after she was arrested for accessory after the fact.

         ¶9. Lindsey testified that he was staying at a friend's apartment and leaving for work at approximately 6:45 a.m. on February 22 when he heard someone call his name. He turned to see Mootye, whom he recognized from playing basketball at the YMCA. Mootye asked to use his phone. Lindsey testified that Mootye was wearing a white t-shirt, jeans, and black Nike tennis shoes, and he was holding a dark shirt in his hand. When Lindsey discovered Mootye had been arrested for the murders, he informed the police that Mootye had used his phone that morning. Lindsey's phone records reveal that the phone number called that morning was Tripp's number.

         ¶10. Tripp testified that he moved in with Mootye in November 2009 but had known him for many years. According to Tripp, Mootye was concerned that he had gotten a coworker pregnant.[4] The night Pittman came over, he and Mootye watched television and played video games. Mootye went to bed early because he had to work, but Tripp stayed up watching television with his nephew, Mario Smith. The two men went to get some fast food around 2 a.m. then came back to watch television until almost 4 a.m. When Tripp went to bed, he heard some movement coming from Mootye's room. Tripp testified that shortly after 5 a.m., Pittman knocked on his door and "panicked" because she could not find Mootye. Tripp and Pittman left in her car, but they quickly returned to the apartment because Tripp "had a bad feeling."[5] An hour or so later, Tripp got a call from an unknown number; it was Mootye asking for Pittman to come get him. Pittman asked Tripp to go with her. They picked up Mootye at an apartment complex where Pittman's cousin lived and returned to Mootye and Tripp's apartment.[6] Tripp stated that he heard Pittman say something about blood on Mootye's forehead, but Tripp testified that he never saw any blood. At the apartment, Mootye took a shower and got ready for work. Before leaving, he asked Tripp to take out the trash. Mootye called Tripp an hour later, informing him of Angelica's death, and asking Tripp to take a gun from Mootye's nightstand (a .45-caliber handgun) and put it in the trunk of Pittman's car. Tripp testified that Mootye also owned a .22-caliber gun, which he had let Tripp borrow, but Tripp claimed that he gave the gun back "a month before all this happened." Tripp testified that Mootye confessed to him later that afternoon that he killed the victims. Tripp admitted that when police initially questioned him, he told the police that Mootye had been home all evening. Tripp stated that he changed his statement to the police when he was arrested for accessory after the fact.

         ¶11. Detective McLemore testified that he had been called to the Twillies' residence in the past for domestic issues between Angelica and Curtis Price, the father of her other child; so after the discovery of Angelica and Alesia's bodies, police issued a "be on the lookout" (BOLO) for Price. Upon learning Mootye was the suspected father of Angelica's unborn child, the police also issued a BOLO for Mootye.

         ¶12. Detective McLemore stated that Price gave him an alibi, which was later confirmed. Upon Detective McLemore's request, Mootye came to the police station that afternoon. Both Price and Mootye submitted to a gunshot-residue test and a DNA test. Mootye also provided an alibi-that he was home the entire evening-and Detective McLemore confirmed Mootye's alibi with Tripp. As a result, Mootye was released. However, Detective McLemore said that the one thing that "stuck out" to him during the investigation was Rupple's indication that the person using the knife was left-handed, and Mootye was the only left-handed suspect. During his second interview with police, Mootye again asserted that he had been at his apartment Sunday evening until he went to work Monday.

         ¶13. With regard to DNA testing of the sneakers confiscated from Mootye's apartment, a forensic DNA analyst with Scales Biolab, Katherine Moyse, concluded that neither Mootye nor Tripp could be excluded as contributors. Tripp acknowledged that he had borrowed Mootye's shoes on prior occasions. Moyse testified that Mootye's DNA also could not be excluded as a contributor to the Y chromosome mixture on the handle of the knife that was recovered.

         ¶14. Mootye was convicted on all three counts of murder and sentenced to consecutive life sentences in the custody of the MDOC on each count. On February 7, 2011, Mootye filed a motion for a judgment notwithstanding the verdict, or alternatively, for a new trial, which the trial court denied. Four years later, on May 18, 2015, Mootye filed a petition for an out-of-time appeal and an affidavit, asserting that his trial counsel had failed to file an appeal after his convictions or to advise Mootye of his right to appeal. The trial court granted Mootye's petition on July 13, 2016.[7]

         ¶15. Mootye is represented on appeal by the Office of Indigent Appeals, which argues that the circuit court's refusal to grant Mootye's alibi instruction and failure to perform a complete Batson[8] analysis constitutes reversible error. Mootye filed a supplemental pro se brief, reasserting as error the trial court's refusal to grant his alibi instruction and additionally claiming that his trial counsel was ineffective for failing to object to a lack of instruction on venue and failing to request a Daubert[9] hearing.

         DISCUSSION

         I. Alibi Instruction

         ¶16. Mootye argues that the trial court committed reversible error by refusing his proposed alibi instruction. Mootye maintains that Detective McLemore established the evidentiary basis for his alibi defense that he was at home on the night of the murders.

         ¶17. "We review a trial court's rulings on jury instructions for an abuse of discretion." Wilson v. State, 198 So.3d 408, 410 (¶5) (Miss. Ct. App. 2016). "It is fundamental in Mississippi jurisprudence that jury instructions must be supported by evidence." Morris v. State, 777 So.2d 16, 29 (¶63) (Miss. 2000). A defendant is entitled to a jury instruction supporting his alibi defense theory where the "defendant asserts the defense of alibi[] and presents testimony in support of that defense . . ." Roper v. State, 981 So.2d 1021, 1023 (¶12) (Miss. Ct. App. 2008); see also Morris v. State, 777 So.2d 16, 29 (¶63) (Miss. 2000). Conversely, if the evidence presented at trial "does not support an alibi defense, the instruction should not be granted." Roper, 981 So.2d at 1023 (¶12).

         ¶18. At trial, Mootye offered Jury Instruction D-5 as an alibi instruction. Jury Instruction D-5 stated:

"Alibi" means elsewhere or in another place. In this case, the Defendant is asserting the defense of alibi by saying that he was at his apartment at the time of the crime.
"Alibi" is a legal and proper defense in law. The defendant is not required to establish the truth of the alibi to your satisfaction, but if the evidence or lack of evidence in this case raises in the minds of the jury a reasonable doubt as to whether the Defendant was present and committed the crime, then you must give the Defendant the benefit of any reasonable doubt and find the Defendant not guilty.

         The State objected to the instruction, asserting that it had not "received any notice of an alibi defense, and there certainly has not been any witnesses to indicate an alibi defense."

         ¶19. At the time of Mootye's trial, Uniform Circuit and County Court Practice Rule 9.05[10] required:

Upon the written demand of the prosecuting attorney . . . the defendant shall serve within ten days . . . upon the prosecuting attorney a written notice of the intention to offer a defense of alibi, which notice shall state the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon which the defendant intends to rely to establish such alibi.

         As Mootye observes, "[t]he rule clearly states that the requirement to disclose an alibi witness is triggered by the prosecution." Hall v. State, 925 So.2d 856, 857 (¶4) (Miss. Ct. App. 2005). "Only after the prosecuting attorney makes a written demand is the defendant then required to provide a written notice of his intent to offer a defense of alibi." Id. (quoting Ford v. State, 862 So.2d 554 (¶11) (Miss. Ct. App. 2003)). Moreover, "[t]he specific purpose of alibi defense discovery is to allow the state an opportunity of investigation and discovery of evidence, if any, which may rebut the anticipated alibi defense." Robinson v. State, 247 So.3d 1212, 1227 (¶30) (Miss. 2018) (quoting Coleman v. State, 749 So.2d 1003, 1009 (¶14) (Miss. 1999)). In this instance, the State made no such demand, and it concedes that Mootye was not required to provide notice under the Rule.

         ¶20. The trial court ultimately refused the jury instruction. The record reflects that the trial court did not base his refusal of the alibi instruction on the issue of notice; instead, he found that the evidence was insufficient to support the giving of the instruction. The trial court explained: "I'm not addressing whether you gave the notice, but I do think it takes something affirmative to show. You can't base it on a detective's testimony to say, well that's his alibi and have an alibi instruction submitted."

         ¶21. Mootye argues that the testimony from Detective McLemore established Mootye's alibi that he was at home on the night of the murders. The record reflects that Detective McLemore testified during both of his interviews, Mootye informed him that he was at home all night on the night of the murders and that he did not leave. Detective McLemore testified Mootye stated he went to sleep between 11:00 p.m. and 11:30 p.m. that evening and left for work at 7:30 a.m. the next morning. Mootye argues that this testimony by Detective McLemore established the evidentiary basis for his alibi defense.

         ¶22. The State maintains that Detective McLemore's testimony did not support Mootye's alibi that he was home at the time of the murders; instead, Detective McLemore's testimony merely established that Mootye told him he was at home at the time. As a result, the State argues that Mootye only presented evidence that he told someone he was at home; he failed to present any evidence to show that he was actually at home or that his statement to Detective McLemore was truthful. The State contends that because Detective McLemore's testimony is not sufficient to establish Mootye's alibi that he was home when the murders occurred, Mootye's "defense is nothing more than a simple denial of guilt." See Owens v. State, 809 So.2d 744, 746 (¶7) (Miss. Ct. App. 2002) (An alibi defense involves "more than a simple denial by the defendant that he was present at the precise time the crime was committed.").

         ¶23. At trial, Detective McLemore testified that he conducted a phone call with Tripp and verified Mootye's alibi. Detective McLemore stated that after he verified Mootye's alibi, he released Mootye. Detective McLemore explained as follows:

A. I verified his - what [Mootye's] alibi was. . . . He told me that the night before that him, himself, Deveiun Tripp, and Mario, which is [Tripp's] nephew, were at the apartment at 200 Foxgate. They w[ere] there all night. They had watched the basketball game, I believe. The Lakers - he stated to me - and he couldn't remember the other team, but he said he watched it till around 7 or 8, and he remembers going to bed about 11 or 11:30. At that time[, ] he said the next morning he woke up and went straight to work.
Q. Did he indicate if he had ever left his house during the night of February 21 from 11 p.m. until he went to work?
A. No, ...

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