OF JUDGMENT: 03/02/2017
COUNTY CIRCUIT COURT HON. JEFF WEILL, SR. JUDGE
ATTORNEYS FOR APPELLANT: JACOB W. HOWARD PHILLIP W. BROADHEAD
OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JOE HEMLEBEN KATY TAYLOR GERBER
DISTRICT ATTORNEY: ROBERT SHULER SMITH
A Hinds County grand jury indicted Gerome Moore for the
capital murder of Carolyn Temple during the commission of a
robbery. After a trial in the Circuit Court of the First
Judicial District of Hinds County, a jury convicted Moore of
capital murder. The trial court conducted a sentencing
hearing as provided in Miller v.
Alabama and sentenced Moore to life imprisonment
without parole. Moore now appeals both his conviction and his
We affirm Moore's conviction of capital murder. Moore,
though, had a statutory right to be sentenced by a jury.
Thus, we vacate his sentence and remand the case for Moore to
be resentenced by a jury.
AND PROCEDURAL HISTORY
On January 7, 2015, Moore, Antreal Jones and Antwain Dukes
traveled in a maroon Impala to North Jackson in order to
commit a robbery. Moore drove the group into Jackson, near
downtown. They spotted Carolyn Temple exit a store, get in
her white Mercedes and pull out onto the road. Moore decided
to tail the Mercedes so that they could rob Temple. Moore
followed Temple into the Belhaven neighborhood to the corner
of Euclid Street and Pine Street. As Temple pulled into a
driveway on Pine Street, Moore slowed the Impala for Dukes
and Jones to get out.
As Dukes got out of the car, Moore handed him his loaded .380
handgun. Dukes and Jones then robbed Temple at gunpoint and
shot her in the stomach.
After letting Dukes and Jones out, Moore turned the Impala
around and idled on the street during the shooting. After the
robbery, Dukes and Jones ran back to the car with
Temple's purse. Once Dukes got back in the car, he handed
the gun back to Moore and exclaimed, "She would not give
up the purse, so I blasted the bitch." Moore drove the
group away from the crime scene. As they drove away, someone
threw Temple's purse out of the window.
Lance Tennyson, Temple's neighbor, had heard the gunshot
and saw the "dark burgundy-maroonish" car drive
away, down Euclid Street. Tennyson heard the gunshot while he
was watching television in his living room; he went to his
front porch and looked toward the sound. He saw a car idling
on Euclid Street. Just then, two black males ran up Pine
Street. One got in the front passenger seat of the car, and
the other entered the rear passenger seat of the car. The car
then drove away. According to Tennyson, someone had already
been sitting in the driver's seat of the car.
As Moore drove away, Temple lay in the driveway clutching her
stomach. She also had a wound to her head that was consistent
with being struck with a blunt object. Soon after the
shooting, neighbors-including Tennyson-ran to the scene and
notified law enforcement. Once law enforcement arrived,
Temple described her attackers as two black males in a maroon
Impala. Temple was transported to the hospital and later died
as a result of the gunshot wound.
Police recovered a single shell casing in the driveway.
During the autopsy, a bullet was recovered from Temple's
spinal canal. The bullet was determined to have been fired
from a .380 handgun.
Detective Daryl Owens led the investigation into Temple's
murder. Moore developed as a person of interest in the crime.
Detectives Jermaine Magee and Rozerrio Camel interviewed
Moore on January 13, 2015. Before questioning, Detective
Magee informed Moore of his Miranda rights. Moore
indicated that he understood his rights and initialed beside
a list of each one of them on a waiver form. Moore also
signed and dated the form under the list of rights.
Detective Magee then recited the waiver paragraph from the
form and encouraged Moore to read along with him. He asked
Moore if he understood the waiver. Moore lifted his head in
acknowledgment, mouthed an unintelligible response (that was
affirmative in nature) and began to reach for his pen. Before
he picked up the pen, Detective Magee asked him, "Okay.
You wanna tell us, give us a statement?" Moore answered,
"No, sir. I ain't, I ain't do nothin'."
Magee followed up, "Do you want to give us a statement
and tell us?" Moore did not verbally answer Detective
Magee's second question. After a pause, he shook his head
twice, negatively. Detective Camel then asked him,
"Honest, do you want to talk to us?" Moore
responded, "No, sir. I'll talk to y'all, but . .
. ." Detective Magee then stated, "Okay.
Sign it. Sign it right here." Next, Moore picked up the
pen and signed the waiver form.
After Moore signed the waiver, Detectives Magee and Camel
questioned him, and Moore did not indicate any desire to stop
answering questions. He also did not invoke his right to
counsel. In the end, Moore confessed to participating in the
planning and execution of the robbery that resulted in
On February 19, 2015, a grand jury indicted Moore for the
capital murder of Temple. Moore filed a pretrial motion to
suppress his interview with law enforcement. In his motion,
he argued that the statement was given under duress and that
he did not waive his constitutional rights voluntarily and
knowingly. At the suppression hearing, both detectives
testified that nothing about Moore's demeanor indicated
that he did not understand his rights. They also claimed that
Moore was not coerced, threatened or offered anything in
return for his statement. Further, both detectives did not
notice anything in the interview that would have indicated
that Moore was under the influence of any narcotics or
illegal drugs. Detective Magee also maintained that nothing
about Moore's demeanor or interactions gave him any
reason to believe that Moore-in light of his youth-did not
understand his rights.
The circuit court denied Moore's motion to suppress. It
found that the State had proved its prima facie case that the
statement was given voluntarily, intelligently and knowingly.
The circuit court noted that Moore did not offer any evidence
to counter the State's witnesses.
A jury trial was held on September 12, 2016. Once the state
rested, Moore moved for a directed verdict, and the trial
court denied the motion. At the close of the three-day trial,
the jury convicted Moore of capital murder. Moore filed a
motion for judgment notwithstanding the verdict or, in the
alternative, a new trial.
Before sentencing, Moore filed a motion for funds for expert
assistance in the field of mitigation and a motion to bar a
sentence of life without parole or, in the alternative, for
sentencing before a jury. The trial court denied Moore's
sentencing motions and held a Miller sentencing
hearing on March 2, 2017. The trial court sentenced Moore to
life imprisonment without the possibility of parole. The
trial court also denied Moore's motion for judgment not
withstanding the verdict or, in the alternative, a new trial.
Moore timely appealed.
On appeal, Moore contends (1) that the trial court erred in
denying his motion to suppress, (2) that his counsel provided
ineffective assistance of counsel, (3) that he had a
statutory right to be sentenced by a jury and (4) that the
trial court erred in denying his motion for funds. We will
address each in turn. While Moore raises other issues, these
four issues are dispositive.
Given the distinct standards of review applicable on appeal,
we will address each standard as it arises. Of course,
"[w]here an appeal raises a question of law, the
applicable standard of review is de novo." Jones v.
State, 122 So.3d 698, 700 (Miss. 2013) (citing
Lambert v. State, 941 So.2d 804, 807 (Miss. 2006)).
Denial of the Motion to Suppress
Moore argues that the recording of his interview with law
enforcement is inadmissable because Moore failed to
voluntarily, knowingly and intelligently waive his
Miranda rights. Also, on appeal Moore alleges-for
the first time-that law enforcement violated his right to
Moore argues that Detectives Magee and Camel's questions
about whether he wanted to give a statement or talk to them
overrode his will, rendering his waiver ineffective. Moore
also argues that his age, mental capabilities and drug use
rendered his waiver ineffective.
We will only reverse a trial court's denial of a motion
to suppress "if the ruling is manifest error or contrary
to the overwhelming weight of the evidence." Barnes
v. State, 30 So.3d 313, 316 (Miss. 2010) (citing
Ruffin v. State, 992 So.2d 1165, 1169 (Miss. 2008)).
"[T]he Fifth and Fourteenth Amendments' prohibition
against compelled self-incrimination requires that the
accused be advised of his right to remain silent and his
right to counsel before any custodial interrogation. Once
advised of his Miranda rights, an accused may waive
these rights and respond to interrogation." Jordan
v. State, 995 So.2d 94, 106 (Miss. 2008) (citations
Waiver of the constitutional rights to remain silent and to
counsel must be voluntary, knowing and intelligent.
Miranda, 384 U.S. at 444. Whether a defendant
voluntarily, knowingly and intelligently waives his rights is
a factual question to be determined by the trial court under
the totality of the circumstances. McGowan v. State,
706 So.2d 231, 235 (Miss. 1997). "Waiver is considered
voluntary if it is the result of a 'free and deliberate
choice rather than intimidation, coercion or
deception.'" Roberts v. State, 234 So.3d
1251, 1260 (Miss. 2017) (quoting Jordan, 995 So.2d
at 106). "[T]he prosecution shoulders the burden of
proving beyond a reasonable doubt that the confession was
voluntary." Dancer v. State, 721 So.2d 583, 587
(Miss. 1998) (internal quotation marks omitted) (quoting
Morgan v. State, 681 So.2d 82, 86 (Miss. 1996)).
Further, "the mental abilities of an accused are but one
factor to be considered in determining whether the confession
was knowingly, intelligently and voluntarily made."
Id. (internal quotation marks omitted) (quoting
McGowan, 706 So.2d at 235).
Moore voluntarily, knowingly and intelligently waived his
constitutional rights. Moore was clearly informed of his
right to remain silent. As a subset of this right, Detective
Magee informed Moore that anything he said could and would be
used against him in a court of law. Moore was also informed
of his right to have a lawyer, appointed or otherwise,
present during his questioning. Further, Moore was told that
he could decide to exercise his rights at any point during
the interview. With this last statement to Moore, Detective
Magee actually went above and beyond Miranda's
requirements. See Brown v. State, 130 So.3d 1074,
1078-79 (Miss. 2013) (affirming "the four-fold warning
required by Miranda" that did not include an
explicit notice of the suspect's right to cease
interrogation at any time).
Throughout the waiver exchange, Moore repeatedly indicated
that he understood his rights and waiver of them. There was
no indication that the detectives were rushing Moore at any
point during the explanation of Moore's rights and his
waiving them. Further, there was no indication by either
detective that Moore ...