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D'Bryus Story v. State

Court of Appeals of Mississippi

November 5, 2019

D'BRYUS STORY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/28/2018

          BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT TRIAL JUDGE: HON. ALBERT B. SMITH III

          ATTORNEYS FOR APPELLANT: VICKI L. GILLIAM BRANDI DENTON GATEWOOD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW WYATT WALTON

          DISTRICT ATTORNEY: BRENDA FAY MITCHELL

          BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

          BARNES, C.J.

         ¶1. A Bolivar County jury convicted D'Bryus Story of one count of conspiracy to commit robbery, two counts of capital murder with a firearm enhancement, and one count of kidnapping with a firearm enhancement. The trial court sentenced Story to serve five years for the conspiracy offense, two life sentences with eligibility for parole[1] for the capital murder charges, and twenty-five years for the kidnapping charge with five years suspended. The trial court ordered all sentences to be served consecutively in the custody of the Mississippi Department of Corrections.

         ¶2. On appeal, Story argues that his trial counsel was ineffective for failing to file post- trial motions regarding the sufficiency and weight of the evidence, failing to object or preserve reversible error on those matters; and cumulative error. Finding no error, we affirm Story's convictions and sentences.

         STATEMENT OF FACTS

         ¶3. In the early morning hours of November 12, 2013, Tavoris Marshall (Marshall) and Kevion Gorman were shot and killed in the home of Marshall's grandmother, Herdicine Marshall (Herdicine) in Cleveland, Mississippi. Suspects in the murders were Story, Jayvious Johnson, Jamario Hodges, Favian Vaughn, and Stanley Self. After an investigation, Self was released, and the other four individuals were indicted for conspiracy to commit robbery, capital murder with a firearm enhancement, and kidnapping with a firearm enhancement. Story was tried with Johnson and Hodges, while Vaughn pleaded guilty before trial to the lesser charge of accessory after the fact.[2]

         ¶4. At trial, Officer Frank Caswell testified he was the first police officer on the scene at approximately 2:00 a.m. He interviewed Herdicine, who pointed him to a back bedroom where he found the two male victims' bodies. Marshall had a gunshot wound to the forehead and was lying on his back on a bed. Gorman was shot on the side of his chest. His body was lying on a nearby love-seat wrapped in a comforter. It was later discovered during his autopsy that Gorman was also shot in the back of the head. There was no sign of a struggle. A video game was on a television screen in the bedroom.

         ¶5. Herdicine testified that she lived in her house with Marshall, her twenty-six-year-old grandson, and her seven-year-old grandson. Occasionally, Gorman lived there too. Self was also a regular visitor to Herdicine's home; Herdicine told the jury she believed Self came to play video games in Marshall's bedroom. Even though there was a lot of "traffic" that came in and out of her house, Herdicine never questioned Marshall about it. Marshall had not had a job in six months. Herdicine testified that on the evening of November 11, 2013, when she went to bed, Marshall, Gorman, Self, an individual named Corderro Walker, and her younger grandson, were present in her house. Self and Walker were in Marshall's bedroom.

         ¶6. At approximately 2:00 a.m., a loud noise awoke Herdicine. She ran into the living room where she saw three individuals exiting Marshall's bedroom. She could not recognize two of the individuals, but she knew the third individual was Self. She claimed Walker was not one of the unidentified individuals. Herdicine asked Self what was going on, and he responded, "I don't know, Grandma; I don't know." Then, one of the men coming from Marshall's bedroom pushed Herdicine down forcefully and said, "Come on. Let's go." All three individuals, including Self, ran out of the front door. Herdicine, proceeding to Marshall's bedroom, saw that Marshall and Gorman had been shot. She locked her front door and called 911. She claimed not to see anyone point a gun at Self nor force Self to leave her house, and she did not witness any struggle between Self and the other individuals.

         ¶7. Investigator Robert Graham responded to the scene and canvassed the bedroom, which was "a mess." He found two .22-caliber shell casings-one on the top of a stack of car tire rims and one on the bed next to Marshall's body, as well as a dusty .25-caliber bullet on the floor near the love seat where Gorman's body lay. The shell casings and bullet were collected as evidence and sent to the Mississippi Crime Lab. Photographs of the scene were entered into evidence. During the investigation, three firearms were recovered and sent to the crime lab for testing: one long .22-caliber black rifle with a banana clip, one .380-caliber handgun, and one .25-caliber handgun.

         ¶8. Self, who was fourteen years old at the time of the murders, testified for the State. He visited the Marshall residence daily to "chill" and play video games. Gorman was often there as well. On November 12 around 1:00 or 2:00 a.m., Self was in Marshall's small bedroom sitting on the bed playing a video game when Marshall and Gorman were shot and killed. Gorman was sleeping on the love seat while Marshall was watching Self play video games.

         ¶9. Self, the only eyewitness to the robbery and shootings, testified that the following events occurred. While he was playing video games, Story knocked on the bedroom window. Marshall told Self to open the front door and let Story in the house. Self complied and then returned to Marshall's bedroom to continue playing video games. Story came into the bedroom, bought some pills from Marshall, and then left. Marshall instructed Self to lock the front door behind Self. When he tried, the knob twisted. Story, now with Johnson, was at the door; so Self let them in. They walked back to the bedroom where Self sat down and saw that Johnson had a .22-caliber rifle in his hand. Johnson then asked Marshall, "Where's the check?" Self explained to the jury that "check" meant "money." Marshall asked Johnson where he got the gun, but Johnson did not respond. Instead, Johnson again asked, "Where's the check?" Marshall looked up and responded, "You so want the check?" Johnson then shot Marshall in the forehead, turned, and shot Gorman, who was asleep on the love seat, twice. Story was standing behind Johnson during the shootings.

         ¶10. According to Self, Johnson then turned and pointed the .22-caliber rifle at Self and "clicked the trigger," but it jammed. At that point, Self rushed Johnson, and they tussled over the gun. Self fell back on the bed and balled up, thinking Johnson was going to shoot him. Johnson set down the rifle and grabbed a pistol from Story. Self then ran out of the bedroom toward the front door. He ran into Herdicine coming out of her room, who asked what happened. Self responded, "I don't know." At that time, Johnson and Story were coming out of the bedroom into the hallway. Johnson pushed Herdicine down, and Self ran outside the house, where Johnson grabbed him by the collar and said, "You're coming with us." Self started screaming, "Don't kill me." Johnson responded that he would not kill Self because Self was his cousin. Self stated that Johnson dragged him by the shoulders to the vehicle with Story following behind them with a "Jordan" shoe box in his hands. Since Self hung out at the house daily, he knew that Marshall kept drugs and money in the shoe box. Johnson put Self in the backseat of a brown Chevrolet Malibu. Vaughn was in the driver's seat, and Hodges, who was standing outside of the vehicle, got in the front passenger's seat. Johnson yelled for Hodges to give him more shells because "two people ain't dead." Self took this statement to mean Herdicine and himself. Hodges refused to give Johnson more shells.

         ¶11. Vaughn drove the five men to the Eastgate area, where Vaughn and Hodges exited the vehicle and walked away. Johnson threw the rifle over a fence. Story gave Self the two pistols and told him to put them by the fence, and Self complied. Johnson and Story told Self to get back in the vehicle and drive to a nearby friend's house, where Johnson and Story offered Self marijuana to keep quiet. Story and Johnson then sorted out the money and drugs that were in the shoe box at the back of the vehicle. Johnson threatened that if Self told anyone about the crimes, Johnson would have Self killed. Self agreed he would not say anything and ran home, where police were waiting to arrest him. Self reiterated to the jury that Story and Johnson took him by force at gunpoint from Marshall's home.

         ¶12. Self was brought in for questioning by Officer George Serio, who performed a gunshot residue test on Self which came back positive. During cross-examination, the defense questioned Self on matters consistent with their theory that Self and Vaughn committed the murders. Self testified that he handled both pistols in the palm of his hands before he put them by the fence, and when he tussled with Johnson over the .22-caliber rifle. He admitted to hanging out at the "drug house" (Herdicine's home) but denied being the "doorkeeper," even though he locked and unlocked the door "a few times" for people coming to buy drugs. Self explained that individuals wanting to buy drugs would call Marshall ahead of time. In exchange for cash or marijuana, Self performed various chores around the house. At the police station, Self gave his first of three statements, which was discovered to be a lie. At trial, Self explained that he lied because he had been threatened and was scared. Self also told police where the guns were located.

         ¶13. At trial, Vaughn testified for the State and related the following version of events. On the afternoon of November 11, 2013, Johnson called Vaughn, and they went to a convenience store in Johnson's Malibu. Johnson told him he was "hurting" and needed to "hit a lick," meaning rob someone. They rode around Cleveland smoking marijuana, and then decided to go to Marshall's house to buy some Xanax. At that time, Gorman, Self, and a few other individuals were at Marshall's house. After the drug purchase, Vaughn began driving Johnson's car, and they continued riding around town, smoking marijuana and taking Xanax until after dark. They ran into Hodges at another convenience store. He joined them, and they later picked up Story. The group proceeded to drive around and take drugs until they ran out. They decided to return to Marshall's house, where Vaughn went in to purchase more drugs. Then they parked at the Shamrock Apartments "to chill" and avoid police. Johnson declared he was "ready to hit a lick" and wanted to rob Marshall, whose house was nearby. Vaughn and Hodges said they were not interested. Story, however, responded, "Let's go."

         ¶14. Johnson and Story then exited the vehicle, armed. Vaughn stated Johnson had a long black gun with him, while Story had a silver gun on his waist. They walked down a path that led to Marshall's home. Vaughn testified that the next time he saw Johnson and Story they were running back to the Malibu with Self. Story was carrying a shoe box, and Johnson had the long gun. Story and Johnson put Self in the backseat of the car, with Self "hollering 'don't kill me.'" Johnson instructed Vaughn to start driving because "something bad happened." Vaughn drove to Eastgate because he knew no police would be there. As Vaughn drove, he heard Story ask Hodges if he had any more bullets in order to kill Self. Hodges responded that he did not. Once in Eastgate, Vaughn and Hodges jumped out of the vehicle and left. Soon after, Vaughn saw Johnson, Story, and Self speeding by with Self driving. The next day, Vaughn turned himself in after he discovered from his father that the police were looking for him. While in custody at the county jail, Vaughn gave four statements to the police but admitted at trial that he was not truthful in all of them because he was scared. During cross-examination, Vaughn agreed that he struck a deal with prosecutors, pleading guilty to a lesser charge than capital murder in order to prevent going to prison for life.

         ¶15. Chief Investigator George Serio testified that after his arrest, Self was taken to juvenile detention while Story, Johnson, Hodges, and Vaughn were taken to the county jail. Officer Serio performed a gunshot residue test only on Self because too much time had passed to test the others reliably. Self told Officer Serio where the guns were located. A .25-caliber automatic handgun and a .380-caliber automatic handgun were recovered near a fence, as well as a .22-caliber rifle in a field near the fence. As part of his investigation, Officer Serio interviewed Self, Herdicine, and Vaughn at the police station.

         ¶16. Several forensic experts testified for the State, including a gunshot-residue expert, a fingerprint expert, and a medical examiner. The gunshot-residue expert testified that Self's test results showed "particles indicative of gunshot residue" on the backs of both hands and the palm of his left hand. While these findings were "consistent with particles present in gunshot residue," the results could not exclude the possibility that the particles were from "other environmental sources." The expert testified that if a person were to tussle with another person who had recently fired a gun, gunshot residue could be transferred to the other person. Ultimately, he could not say how gunshot residue was on Self's hands.

         ¶17. The medical examiner who performed the autopsy on Marshall and Gorman testified that Marshall's gunshot wound to the head was consistent with a distant wound of at least three or four feet away, as were Gorman's gunshot wounds to the head and chest. A firearms expert testified that the three cartridge casings had similar "class characteristics" to the .22-caliber rifle and the .25-caliber pistol; however, she could not say that the shells were fired from the specific guns recovered. The expert also testified that while the bullet fragments retrieved from Marshall's brain and Gorman's lung had the same class characteristics as the .22-caliber rifle, there were insufficient markings to conclude they came from ...


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