OF JUDGMENT: 01/28/2011
FORREST COUNTY CIRCUIT COURT TRIAL JUDGE: HON. ROBERT B.
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
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.
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 objection; and (3) his trial counsel was
ineffective. Finding no error, we affirm Mootye's
convictions and sentences.
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.
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.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.
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
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.
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."
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. Pittman acknowledged she
only told police what happened after she was arrested for
accessory after the fact.
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.
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. 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." 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. 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.
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
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
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.
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,
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 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
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
"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).
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.
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
At the time of Mootye's trial, Uniform Circuit and County
Court Practice Rule 9.05 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.
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.
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
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
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.").
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
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, ...