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Ivory v. State

Supreme Court of Mississippi

September 19, 2019

DEIONTA IVORY a/k/a DEIONTA JONTEL IVORY
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 06/15/2018

          COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT TRIAL JUDGE: HON. PAUL S. FUNDERBURK

          TRIAL COURT ATTORNEYS: CHRISTOPHER EDWIN BAUER LUANNE STARK THOMPSON TIMOTHY BAXTER TUCKER NEBRA EVANS PORTER KYLE DAVID ROBBINS

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES

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

          BEFORE KITCHENS, P.J., MAXWELL AND CHAMBERLIN, JJ.

          KITCHENS, PRESIDING JUSTICE

         ¶1. 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.

         ¶2. 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.

         ¶3. 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.

         ¶4. Accordingly, Ivory's request for a new trial is denied, and we affirm his convictions and sentences.

         FACTS

         ¶5. 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.

         ¶6. 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.[1] 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.[2] 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.

         ¶7. Upon learning the location of a potential suspect, Amory police officers proceeded to Food Giant, a supermarket near the Chevron gas station.[3] 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.

         ¶8. 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.

         ¶9. 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.

         ¶10. 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 to her.

         ¶11. 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.[4] 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 underneath."[5]

         ¶12. 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.[6]

         ¶13. 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 Chevron."[7]

         ¶14. 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 (Rev. 2014).

         ¶15. 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."

         ¶16. 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 of cigarettes.

         ¶17. 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.

         ¶18. 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.[8] 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."

         ¶19. 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 the vehicle.

         ¶20. 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 ...


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