OF JUDGMENT: 06/15/2018
FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT TRIAL JUDGE:
HON. PAUL S. FUNDERBURK
COURT ATTORNEYS: CHRISTOPHER EDWIN BAUER LUANNE STARK
THOMPSON TIMOTHY BAXTER TUCKER NEBRA EVANS PORTER KYLE DAVID
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.
KITCHENS, PRESIDING JUSTICE
Deionta Ivory was convicted by the Monroe County Circuit
Court on counts of armed robbery and kidnaping. Ivory's
trial attorney moved ore tenus for judgment
notwithstanding the verdict (JNOV), but he did not make a
post-trial motion for a new trial.
On appeal, Ivory argues that the verdicts were contrary to
the overwhelming weight of the evidence, and he requests a
new trial. He contends that his ore tenus motion for
JNOV should be construed as a motion for a new trial because
the motion challenged the weight of the evidence. In the
alternative, Ivory argues that, if the issue was not
preserved, his trial court attorney's failure to move for
a new trial constitutes ineffective assistance of counsel.
This Court finds that the trial attorney's ore
tenus motion was not a motion for a new trial.
Respecting Ivory's ineffective-assistance-of-counsel
claim, a new trial is not warranted. While the trial
attorney's omission did constitute deficient performance,
Ivory suffered no prejudice because his convictions were
supported by the overwhelming weight of the evidence.
Accordingly, Ivory's request for a new trial is denied,
and we affirm his convictions and sentences.
On December 18, 2016, the Amory Police Department received a
911 call at approximately 7:40 p.m. from a Chevron gas
station located on Highway 278 in Amory, Mississippi. The gas
station clerk reported that a man with a handgun had accosted
two people who were sitting in an idling car by entering the
vehicle's back seat and demanding their money. At the
time of the 911 call, the two individuals-fourteen-year old
Emilee Slade and sixteen-year-old Evan Burks-had exited the
vehicle and entered the station. The clerk had locked the
door to await the arrival of law-enforcement officers.
Chevron surveillance video depicts the alleged assailant
leaving the vehicle moments after Slade and Burks had entered
the Chevron gas station; the man, after leaving the car,
disappears from the surveillance video.
Amory police responded to the call within minutes and
immediately began to search the area. The teenagers
identified the suspect as a tall, black male wearing dark
clothes, including a "hoodie," a dark
"puffy" jacket, and a toboggan. Shortly after
their arrival, officers stopped a black man near the Chevron
station who appeared to match the description provided, but
they released him after that man was found not to be the
suspect. Don Meredith, an Amory police investigator,
interviewed the victims, reviewed the Chevron surveillance
video, and took DNA samples from the vehicle the suspect had
exited. Officers did not acquire latent
fingerprints from the vehicle. According to Amory Police
Officer Josh Bennett, another man who was stopped for
questioning stated that he had seen someone matching the
suspect's description walking to a nearby grocery store.
Upon learning the location of a potential suspect, Amory
police officers proceeded to Food Giant, a supermarket near
the Chevron gas station. Officer Bennett testified that, as the
officers entered the store, "at one of the first [cash]
registers there on the left there was a black male facing
away from us with the clothing description, [and] about the
same height." That man was Deionta Ivory.
As the officers approached and searched him, Ivory, according
to multiple officers present, stated, "I didn't rob
anybody." Bennett testified, along with other officers,
that Ivory was wearing "a black hoodie" with
"black sweatpants that were pulled down a little below
his waist, revealing what looked like to be [a] navy blue . .
. undergarment." After stopping and questioning Ivory,
the officers took him into police custody. Officers searched
Ivory and found no weapons. Ivory's vehicle was parked
and running in the Food Giant parking lot. Ivory consented to
a search of his vehicle; the search did not reveal anything.
After Ivory's arrest, Investigator Meredith found and
interviewed another person of interest and met with Burks and
Slade to narrow their identification of the suspect.
Meredith prepared photograph lineups for Burks and Slade; the
lineup presented to Burks exhibited eighteen photographs,
including Ivory and the other person of interest. Burks
testified that he had identified Ivory when the lineup was
shown to him. The lineup presented to Slade contained
twenty-four photographs, including Ivory. Slade testified
that she had also identified Ivory when the lineup was shown
Meredith also collected and reviewed Food Giant surveillance
video from December 18. The video footage revealed that Ivory
was present at Food Giant at least twice that evening: once
at approximately 7:00 p.m. and again at approximately 8:14
p.m., shortly before his arrest. According to Meredith, the
Food Giant videos depict Ivory wearing "[a] dark hoodie
sweatshirt with a camo toboggan on . . . a black rim around
the end of it, and  dark-colored sweatpants on."
Meredith testified that Ivory did not have on a black
"puffy" jacket during his trips to Food Giant; but,
according to Meredith, Ivory may have "changed
tops." Meredith acknowledged that the Chevron video of
the suspect depicted the alleged assailant "wearing a
vest with a light-colored jacket
Meredith interviewed Ivory on December 21, 2016, after
Slade's and Burks's identifications. Ivory waived his
Miranda rights and denied involvement in the alleged
incident. Ivory claimed that he had traveled to his
residence-located at Pope Apartments in Amory-between his two
Sunday evening trips to Food Giant.
Ivory gave written consent for Meredith to search his
residence. During the search later that day, Amory police
officers took possession of a replica pistol from Ivory's
night stand. The officers also seized "a large, black
down puffy jacket, and also collected a toboggan that [Ivory]
had with a bunch of other toboggans that were there."
Meredith testified that he "picked . . . [what] most
closely resembled what I thought was worn in the video from
A Monroe County grand jury indicted Ivory on one count of
attempted armed robbery of Evan Burks under Mississippi Code
Section 97-3-79 (Rev. 2014), and one count of kidnaping of
Burks and Emilee Slade under Mississippi Code Section 97-3-53
Burks and Slade testified at trial. Slade recounted that she
had sat with Burks in his car after leaving an Amory Subway
sandwich shop. While the vehicle idled in the Subway parking
lot, a man tapped on the car's passenger window and asked
the two for food. Slade testified that the man then exhibited
a firearm and said "this is a robbery."
According to Slade, the man entered the back seat of the car
and asked Burks to drive to a bank to "get $300."
Slade testified that "I could see his face" from
light from the Subway's windows and from another adjacent
restaurant. Burks drove the car to a bank near a local
Wal-Mart store, but he did not withdraw money. Burks
continued to drive on Highway 278 in Amory until he proceeded
to the Chevron gas station; Slade testified that the man
asked Burks to enter the Chevron station and buy him a pack
Burks exited the vehicle first at the Chevron while Slade
remained in the car with the man. According to Slade, the man
continued a conversation with her until he asked Slade to
enter the Chevron station and "hurry [Burks] up."
Slade left the vehicle and entered the Chevron, after which
the store clerk called 911. Slade identified the man as
"about 6'2 . . . [b]etween 170 and 190 [pounds]. . .
. [and] in his twenties." She testified that she saw the
Chevron surveillance video of the man leaving the vehicle
shortly after she entered the Chevron station. At trial,
Slade identified Ivory as the perpetrator.
Burks testified that he was sitting in an idling car
preparing to leave the Subway restaurant with Slade when a
man approached the vehicle and asked for food. At trial,
Burks identified Ivory as the man. According to Burks, when
Slade and Burks communicated that they had no food the man
displayed a gun. Burks described the gun as a black,
semiautomatic pistol "like a [G]lock" and
"[n]ot a revolver."
According to Burks, the man entered the back seat and asked
Burks to "give me your money." Burks testified that
he gave the man all of the money he had: $6. Burks also
testified that the man told him to drive to a bank to
withdraw money; Burks drove to a nearby bank but did not exit
Burks testified that he continued driving briefly until the
man told him to stop at the Chevron station to buy a pack of
cigarettes. Burks exited the vehicle, entered the gas
station, and told the store clerk to call the police. Burks
testified that the suspect "dipped" from the