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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
WILLIAM MACK, JR. APPELLANT
VS. NO. 2016-KA-00035-COA
STATE OF MISSISSIPPI APPELLEE
BRIEF FOR THE APPELLEE
APPELLEE DOES NOT REQUEST ORAL ARGUMENT
JIM HOOD, ATTORNEY GENERAL
BY: KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERALMISSISSIPPI BAR NO. 105137
OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE: (601) 359-3680
E-Filed Document Dec 19 2016 17:56:37 2016-KA-00035-COA Pages: 33
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
I. The voir dire process did not prejudice the jury against Mack or denyhim a fair, impartial jury trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
II. There was probable cause to issue Mack’s arrest warrant. . . . . . . . . . . . . 14
III. A mistrial was not required because Mack’s right against self-incrimination was not violated when the State questioned him on cross-examination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
IV. The trial court did not allow improper jury instructions. . . . . . . . . . . . . . 20
V. The trial court did not err when it denied Mack’s motion for a newtrial because the guilty verdict was not against the overwhelmingweight of the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
VI. The trial court did not err when it denied Mack’s motion for JNOVbecause the evidence was sufficient to support the guilty verdict. . . . . . . . 25
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
i
TABLE OF AUTHORITIES
FEDERAL CASES
Franks v. Delaware, 438 U.S. 154 (1978). ................................................................................ 17
STATE CASES
Archer v. State, 986 So.2d 951 (Miss. 2008). ............................................................................ 11
Baskin v. State, 145 So.3d 601 (Miss. 2014). ............................................................................ 15
Bell v. State, 910 So.2d 640 (Miss. Ct. App. 2005). .................................................................. 25
Blanks v. State, 542 So.2d 222 (Miss. 1989). ............................................................................ 23
Boone v. State, 973 So.2d 237 (Miss. 2008). ....................................................................... 23, 24
Bowser v. State, 182 So.3d 425 (Miss. 2015). ........................................................................... 25
Boyd v. State, 47 So.3d 121 (Miss. 2010). ................................................................................. 21
Brown v. State, 890 So.2d 901 (Miss. 2004). ...................................................................... 12, 13
Bush v. State, 895 So.2d 836 (Miss. 2005). ............................................................................... 25
Busick v. State, 906 So.2d 846 (Miss. Ct. App. 2005)......................................................... 16, 17
Conerly v. State, 760 So.2d 737 (Miss. 2000). .................................................................... 15, 16
Crutcher v. State, 68 So.3d 724 (Miss. Ct. App. 2011). ............................................................ 19
Duncan v. State, 939 So.2d 772 (Miss. 2006). .......................................................................... 13
Duplantis v. State, 644 So.2d 1235 (Miss. 1994). ............................................................... 11, 14
Gowdy v. State, 56 So.3d 540 (Miss. 2010)............................................................................... 14
Henry v. State, 486 So.2d 1209 (Miss. 1986). ........................................................................... 16
Hentz v. State, 496 So.2d 668 (Miss. 1986)............................................................................... 19
In re Knapp, 536 So.2d 1330 (Miss. 1988)................................................................................ 19
ii
Jackson v. Daley, 739 So.2d 1031 (Miss. 1999)........................................................................ 22
Johnson v. State, 476 So.2d 1195 (Miss. 1985)......................................................................... 10
Jones v. State, 918 So.2d 1220 (Miss. 2005). ............................................................................ 23
Keller v. State, 138 So.3d 817 (Miss. 2014). ................................................................. 10, 13, 14
Ladner v. State, 584 So.2d 743 (Miss. 1991)............................................................................. 20
Lee v. State, 877 So.2d 543 (Miss. Ct. App. 2004).................................................................... 22
Leslie v. State, 171 So.3d 549 (Miss. Ct. App. 2015)................................................................ 18
McClain v. State, 625 So.2d 774 (Miss. 1993). ......................................................................... 25
Mhoon v. State, 464 So.2d 77 (Miss. 1985)......................................................................... 12, 13
Moore v. Moore, 558 So.2d 834 (Miss. 1990)........................................................................... 19
Myers v. State, 565 So.2d 554 (Miss. 1990). ............................................................................. 11
Newell v. State, 49 So.3d 66 (Miss. 2010). ................................................................................ 20
Petti v. State, 666 So.2d 754 (Miss. 1995)........................................................................... 16, 17
Pulphus v. State, 782 So.2d 1220 (Miss. 2001). ........................................................................ 17
Ross v. State, 954 So.2d 968 (Miss. 2007)........................................................................... 10, 14
Sanders v. State, 162 So.3d 868 (Miss. Ct. App. 2015)............................................................. 24
Scott v. Ball, 595 So.2d 848 (Miss. 1992). ................................................................................ 10
Shell v. State, 554 So.2d 887 (Miss. 1989). ............................................................................... 13
Shelton v. State, 853 So.2d 1171 (Miss. 2003). ......................................................................... 25
Spires v. State, 10 So.3d 477 (Miss. 2009). ............................................................................... 11
State v. Woods, 866 So.2d 422 (Miss. 2003). ............................................................................ 14
Towles v. State, 193 So. 3d 688 (Miss. Ct. App. 2016). ............................................................ 20
Wilcher v. State, 479 So.2d 710 (Miss. 1985)...................................................................... 11, 15
iii
Williams v. State, 134 So.3d 732 (Miss. 2014). ......................................................................... 22
Wilson v. State, 198 So.3d 408 (Miss. Ct. App. 2016). ............................................................. 24
Younger v. State, 931 So.2d 1289 (Miss. 2006). ................................................................. 18, 19
FEDERAL STATUTES
U.S. Const. Amend. V. .............................................................................................................. 19
U.S. Const. amend. VI. .............................................................................................................. 10
STATE STATUTES
Miss. Const. art. 3, §26. ....................................................................................................... 10, 19
Miss. Code Ann. § 13-5-79........................................................................................................ 12
Miss. Code Ann. § 97-3-7.......................................................................................................... 21
Miss. Code Ann. § 97-3-7(2)(b). ................................................................................................. 1
iv
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
WILLIAM MACK, JR. APPELLANT
VS. NO. 2016-KA-00035-COA
STATE OF MISSISSIPPI APPELLEE
BRIEF FOR THE APPELLEE
STATEMENT OF ISSUES
I. The voir dire process did not prejudice the jury against Mack or deny him a fair, impartialjury trial.
II. There was probable cause to issue Mack’s arrest warrant.
III. A mistrial was not required because Mack’s right against self-incrimination was notviolated when the State questioned Mack on cross-examination.
IV. The trial court did not allow improper jury instructions.
V. The trial court did not err when it denied Mack’s motion for a new trial because the guiltyverdict was not against the overwhelming weight of the evidence.
VI. The trial court did not err when it denied Mack’s motion for JNOV because the evidencewas sufficient to support the guilty verdict.
STATEMENT OF THE CASE
The Grand Jury of Forrest County co-indicted William Mack, Jr., and William Mack, Sr.,
for one count of aggravated assault in violation of Mississippi Code Annotated Section 97-3-
7(2)(b). (CP 9). Several months later, the trial court severed the trial of Mack, Jr., from the trial of
Mack, Sr., upon motion by defense counsel. (CP 16-17). After a trial by jury, Circuit Judge Robert
B. Helfrich, presiding, the jury found Mack, Jr. (Mack), guilty of aggravated assault. (CP 44). The
trial court sentenced Mack to twenty (20) years in the custody of the Mississippi Department of
1
Corrections (MDOC), with seventeen (17) years to serve and three (3) years of post-release
supervision. (CP 45-49). Mack filed a Motion for Judgment Not Withstanding the Verdict (JNOV)
and Motion for New Trial, after which, Mack’s trial counsel withdrew representation, and appellate
counsel was substituted. (CP 50-54). Five months later, Mack’s appellate counsel filed a
supplement to trial counsel’s motion for JNOV and new trial. (CP 55-56). A hearing on the motion
was held on November 2, 2015. (TR 228-32). Following the trial court’s denial of both Mack’s
original motion for JNOV and new trial and his supplemental motion, this instant appeal was
timely noticed. (CP 81-84).
STATEMENT OF THE FACTS
Around 10 or 11 o’clock in the morning on January 25, 2013, Joseph Scott was shot in front
of his grandparents’ house near the corner of Tipton Street and Hall Avenue in Hattiesburg,
Mississippi, by his longtime friend, William Mack, Jr. (TR 81-82). Joseph Scott grew up in
Hattiesburg and played football at the University of Southern Mississippi. (TR 80). After Scott
graduated from Southern Mississippi, he went on to play professional football with the New York
Giants. (TR 80). Scott eventually returned to Mississippi where he works offshore as a remotely
operated vehicle pilot for an oil and gas company, Subsea 7. (TR 80).
At trial, Scott testified that he had spent the night of January 24, 2013, at his grandparents’
house near the corner of Tipton Street and Hall Avenue in Hattiesburg. (TR 81). After waking up
on the morning of January 25, 2013, Scott said he went to the track to walk with his girlfriend. (TR
95). When Scott pulled up to the Tipton/Hall area in his white Ford pickup truck, Mack, and his
father, William Mack, Sr. (Mack, Sr.), pulled up behind Scott in their gray Jeep Grand Cherokee,
and Mack, Sr. exited the vehicle. (TR 82, 89, 91, Exh. 1). Scott said Mack, Sr. was holding a
baseball bat in his left hand and a gun in his right hand. (TR 82). The men exchanged words and
2
Mack, Sr. swung the bat at Scott. (TR 83). Scott testified that he caught the bat in his left hand and
Mack, Sr. got back in the Jeep and drove away. (TR 83). Scott said he got back in his vehicle, too.
(TR 82).
After driving a block or so around the neighborhood, Mack, Sr. and Mack pulled back up
and stopped in front of Scott’s vehicle. (TR 91). Scott testified that Mack hopped out of the Jeep,
thirty to forty feet away, and started running toward him and shooting at him (TR 83-84). Scott had
to drive his car in reverse to get away from Mack, Sr. and Mack. (TR 91). Scott’s truck was shot
four times and Scott sustained a bullet wound to the leg. (TR 84, 88, Exh. 14). Scott drove himself
straight to the Hattiesburg Police Department and told them he had been shot. (TR 88).
At trial, Scott identified the defendant, Mack, as the man who shot him on January 25,
2013, and said he was “a thousand percent positive” in his identification. (TR 88). Scott also
identified the gray Jeep Grand Cherokee used in the shooting and said he’s positive it was the
vehicle the Macks drove, “They’re still driving it now. It’s at his house now.” (TR 89, Exh. 1).
With the help of photos taken of the area, Scott depicted for the jury where he was parked, where
the Macks stopped their Jeep the first and second time, and where Mack jumped out of the Jeep
to shoot him. (TR 90-92, Exh. 2).
Scott told the jury that he and Mack grew up next door to each other; Scott’s grandparents
and Mack’s grandmother are next door neighbors. (TR 85). Scott said he considered Mack to be
like his little brother, “I considered his dad like my uncle . . . I loved them to death . . . Would
never think that these people would do something like this to me.” (TR 85). When asked what may
have led to the shooting, Scott speculated that the cause may have been a disagreement that he had
the day before with Mack’s uncle, Steven Mack. (TR 86-87). Scott testified that Steven ran a small
store in his house and said something to Scott on January 24, 2013, about some Snickers candy bars
3
that had gone missing. (TR 86). During that incident, Scott said Steven threw a brick at him and
threw a can of paint on him. (TR 86-87). Scott said he walked away from Steven because he didn’t
want to fight. (TR 86-87). On cross-examination, Scott testified, “I walk away from stuff like that.
It’s petty. I don’t have time to get in trouble. I’ve got a good job. I don’t have time to get in
trouble.” (TR 96).
Following the paint incident, Scott’s friend, Warren Randle, also a member of the
neighborhood, got in an argument with Steven. (TR 99). Scott said he had nothing to do with that
incident. (TR 99). Scott said he stayed at his grandparents’ house on Tipton/Hill on the evening of
January 24, 2013, and did not leave until the next morning because he thought the Macks would
try to harm him. (TR 100). In fact, Mack, Sr. and Mack went to Scott’s grandparents’ house with
a gun that very night. (TR 100). The next day, January 25, 2013, Mack shot Scott in the leg. (TR
87-88). On cross-examination, the defense attempted to introduce several theories, however, Scott
refuted each one. (TR 92-102).
Officer Demetrius Breland, a patrol officer with the Hattiesburg Police Department was the
State’s second witness. (TR 109). Officer Breland testified that he was patrolling the area of Hall
Avenue on January 25, 2013. (TR 110). He was parked at the intersection of Lincoln Street and
Hall Avenue when he saw a gray Jeep Grand Cherokee with a flat tire drive through at a high rate
of speed. (TR 110). Officer Breland said he saw the vehicle was operated by a black male driver.
(TR 110). He stated that he recorded the vehicle’s path through the intersection on his patrol car’s
dashboard camera. (TR 111-112, Exh. 3). Because of the vehicle’s speed and flat tire, Officer
Breland attempted to try and follow the car to see if the driver needed help. (TR 110). He said he
drove around a few blocks and eventually found the Jeep parked at a residence, but there was no
one in the car and no one around to ask about it. (TR 110). At trial, Officer Breland identified
4
Mack’s Jeep as the vehicle he saw in the intersection and recorded on his dash cam. (TR 116, Exh.
1). The dash cam recording was played for the jury. (TR 119, Exh. 3).
Officer Breland said he drove around a few more blocks to look for anyone suspicious who
might have been driving the Jeep. (TR 113). At that time, he was flagged down by a woman who
said he was looking for a gray Jeep1. (TR 113). Officer Breland turned around to go back to the
residence where he saw the Jeep, however, when he arrived, the Jeep was gone. (TR 113). Shortly
thereafter, Officer Breland received a dispatch call about a shooting on Hall Avenue involving a
gray Jeep Cherokee. (TR 111, 114). He attempted to locate the Jeep for about five more minutes
before returning to the police department to take Scott’s report. (TR 114).
Upon his return to the police department, Officer Breland said he saw Scott’s white Ford
pickup truck and noted that one of the windows was shattered. (TR 114). He testified that the
ambulance and EMTs had arrived and were treating Scott’s bullet wound on his upper left leg. (TR
114-115). Officer Breland spoke with Scott, who told him about the shooting and the wound on
his leg. (TR 114-115). Officer Breland recalled that Scott was hysterical and in pain, “pretty much
like after a person has been shot.” (TR 115).
The State’s third witness, Warren Randle, testified that he grew up in the same
neighborhood as Scott and Mack. (TR 123). On the morning of January 25, 2013, Randle was
looking out his front porch when Mack, Sr. and Mack drove by in their gray Jeep Grand Cherokee.
(TR 123-25). The driver, Mack, Sr., stopped the vehicle at the stop sign directly in front of
Randle’s home. (TR 125). Three to five minutes later, Randle heard tires squealing and saw Scott’s
white Ford driving in reverse down Tipton Street while the Mack’s pursued him in the gray Jeep.
1 During his testimony, Officer Breland first said the woman flagged him down and saidhe was looking for a white Ford, but later said it was a gray Jeep. (TR 110-111, 113).
5
(TR 124). Ten to fifteen minutes later, a neighbor called Randle and said Scott had been shot. (TR
124).
Randle admitted that he had gotten into an argument with Steven Mack the day before, but
insisted that no physical violence occurred. (TR 127-28). Randle also corroborated Scott’s
testimony about Steven throwing paint on him on January 24, 2013. (TR 137-38). Randle said he
spoke to the district attorney’s office about the case but did not speak to Officer Joel Scott, the
officer who drafted the affidavit for Mack’s warrant, about the events. (TR 130). Randle testified
that the shooting had nothing to do with the disagreement that took place the day before. (TR 139).
Lastly, Randle testified that he knew the shooting was going to happen because the word was out
in the neighborhood that the Macks were out go get Scott. (TR 139).
Crime Scene Investigator Jeff Byrd is a civilian employee with the Hattiesburg Police
Department and responded to the crime scene in this case on January 25, 2013. (TR 142-44, 151).
Mr. Byrd collected evidence, took photographs, and completed a report for the incident. (TR 143-
44, Exh. 5-12). Mr. Byrd collected a number of shell casings in the road at Tipton and Hall as well
as a live round. (TR 145, Exh. 6, 8-10, 15-17). He photographed Tipton Street and the erratic tire
marks on the road. (TR 145-46, Exh. 11-12). Mr. Byrd also photographed the gray Jeep, found at
an abandoned house, and photographed the vehicle’s tag number. (TR 145, 147, Exh. 5, 7). Exhibit
18 depicts the Jeep’s interior when it was found; two baseball bats were photographed on the Jeep’s
backseat floorboards. (TR 150, Exh. 18).
Mr. Byrd determined the shell casings he collected on Tipton Street are .45 caliber casings.
(TR 146, Exh. 6). He also testified that a bullet recovered from Scott’s white Ford truck is a .45
caliber bullet. (TR 148, Exh. 14). Mr. Byrd explained that although the recovered shell casings
were tested for fingerprints, none were found because the metal becomes so hot once the gun is
6
fired that any fingerprints on the casings would have burned off. (TR 152-53).
The State’s final witness, Detective Joel Scott, was a detective with the Hattiesburg Police
Department in January 2013. (TR 154). On January 25, 2013, he responded to a dispatch call about
a drive-by shooting in the area of Tipton Street and Hall Avenue. (TR 155). He testified that he ran
the gray Jeep Grand Cherokee’s tag number and learned it was registered to Ms. Evelyn Mack,
Mack’s grandmother. (TR 155-56, Exh. 5, 7). Detective Scott issued Mack’s arrest warrant and
picked him up one month later in DeKalb County, Georgia. (TR 156-57).
On cross-examination, Detective Scott said he briefly spoke with Warren Randle about the
events and recalled Randle told him he had seen Mack hanging out of the gray Jeep, saying, “I’m
going to get you next.” (TR 157-58). The defense asked Detective Scott, “If Mr. Warren was to
come in here and said that he never gave any statements like that beforehand, you have a different
recollection of that, correct?” (TR 158). Detective Scott said he would have a different recollection.
(TR 158). Then, the defense asked, “In your speaking with Mr. Warren, did he tell you anything
about what happened the day before?” to which the State objected to as hearsay. (TR 158). The
defense explained to the court that he was asking the question in response to Randle’s testimony
that he had not spoken to law enforcement. (TR 158).
The defense rephrased the question and the State again objected to hearsay. (TR 159). The
court cautioned defense counsel that he was getting into hearsay. (TR 159). In response, the defense
said, “Your Honor, I’m not introducing it for fact. It’s for impeachment purposes. It’s for Mr.
Randle. He gave an inconsistent statement, and I believe the rules say if I ask him about the
statement and he deny it, I can bring on the strength in evidence to – as far as the statement goes.”
(TR 159).
The court excused the jury, listened to Detective Scott’s testimony, which briefly addressed
7
Randle’s statements to him about the paint incident causing the shooting, and determined that line
of questioning would be allowed. (TR 159-60). The State said, “My only objection would be if he’s
trying to impeach him, he can ask him did he speak to him. Getting into what he told you is
hearsay.” (TR 161). The judge said he would allow it. (TR 161). The jury was brought back in and
heard Detective Scott testify that Randle told him he was sitting on his porch when the Macks rode
by and threatened him. (TR 162-63).
On redirect, Detective Scott clarified that he never physically interviewed Randle and never
got an official statement from him. (TR 163-64). He also testified that the underlying facts and
circumstances he used in support of the affidavit to obtain a warrant for Mack’s arrest came from
the cumulative facts of the case, “what everybody has heard about this case to get warrants.” (TR
164). The defense had Detective Scott’s signed affidavit admitted for identification purposes only.
(TR 165, Exh. 13). Following Detective Scott’s testimony, the State rested. (TR 165). The defense
moved for a directed verdict, and the court denied the motion. (TR 166).
Mack took the stand as the defense’s first and only witness. (TR 168). He testified that he
had been threatened by Scott and an unknown man on the evening of January 24, 2013, and said
Scott and the man stalked him and threatened him with a gun while he rode his bike home that
night. (TR 173-78). Mack claimed to have been frightened by the alleged event, so he went to his
friend Curtis’s house and asked Curtis to drive him to the bus station in Jackson, Mississippi, so
he could go hide out at his mom and stepdad’s house in DeKalb, Georgia. (TR 179-181). He said
he took a bus that night to Georgia and therefore, was not involved in the shooting on January 25,
2013, as he was already out of the state. (TR 181).
On cross-examination, Mack testified that he told Detective Scott about his alibi. (TR 183).
The State said, “So wait a minute. ‘Cause my file said you refused to give a statement.” (TR 183).
8
Mack replied, “He probably did it off the record . . .” (TR 184). The State asked, “Did your [sic]
refuse to give a statement?” to which Mack said, “Yes, sir, I did.” (TR 184). Next, the State asked
Mack about his friend Curtis and whether Mack had given his attorney Curtis’s information to get
Curtis to support his alibi claim. (TR 184). Mack eventually said he did not want Curtis to testify.
(TR 187). Mack provided a number of reasons as to why his stepdad, his mom, his uncle, his
cousins, his sisters, and his friends could not testify to support his alibi theory. (TR 187-89). Mack
went so far as to say that he did not even want his family members and friends to give statements
to law enforcement in support of his alibi claim. (TR 189).
Mack admitted he knew that a warrant for his arrest had been issued, but chose not to call
the police or make a statement about his alibi claim. (TR 194). Mack also agreed that with an
abundance of witnesses, it would have been very easy for him to verify his alibi claim. (TR 194).
Following this line of questioning, defense counsel objected “to this whole line of questioning
because he’s commenting on his right to remain silent.” (TR 194). The court determined that
because Mack had already testified, “that’s no longer a right.” (TR 194). Again, Mack repeated that
it would not be hard to support his alibi theory. (TR 195).
Following Mack’s testimony, the defense rested. (TR 200). After closing arguments, the
jury was released to deliberate. (TR 224). Ultimately, the jury found Mack guilty of one count of
aggravated assault. (TR 225).
SUMMARY OF THE ARGUMENT
The trial court properly handled voir dire and ensured Mack received a fair and impartial
jury trial by an unbiased jury. There was probable cause to support Mack’s arrest warrant. The trial
court was not required to sua sponte declare a mistrial when the State asked Mack about his defense
because it did not violate his right against self-incrimination. The court properly instructed the jury.
9
Mack’s motion for new trial was properly rejected because the jury’s guilty verdict was supported
by the weight of the evidence. Similarly, the trial court correctly denied Mack’s motion for JNOV
because the guilty verdict was supported by the sufficiency of the evidence.
ARGUMENT
I. The voir dire process did not prejudice the jury against Mack or deny him a fair,impartial jury trial.
Standard of Review
Jury selection is a judgment call peculiarly within the providence of the circuit judge, whose
decision will not be disturbed on appeal unless the record shows a clear abuse of discretion. Scott
v. Ball, 595 So.2d 848, 850 (Miss. 1992).
Argument
Mack argues that the trial court was partial in dismissing members of the venire and
therefore denied him of his right to due process and trial by a fair and impartial jury. Specifically,
Mack alleges that the trial court improperly removed a potential juror from the venire panel without
motion by the State or defense, and allowed potential jurors who might have been favorable to the
prosecution to remain on the venire panel.
The right to a fair trial by an impartial jury is guaranteed by both the federal and state
constitutions. Johnson v. State, 476 So.2d 1195, 1209 (Miss. 1985). See U.S. Const. amend. VI;
Miss. Const. art. 3, §26. On appeal, voir dire is presumed sufficient to ensure the impanelment of
a fair and impartial jury. Keller v. State, 138 So.3d 817, 843 (Miss. 2014). To overcome this
presumption, the appellant must present evidence that demonstrates: (1) the jury was partial and
not fair, and (2) the jury’s prejudice resulted from the circuit court’s handling of voir dire. Id.
(citing Ross v. State, 954 So.2d 968, 988 (Miss. 2007)).
10
To begin, this issue is procedurally barred on appeal. “Issues not brought before the trial
court are deemed waived and may not be raised for the first time on appeal.” Wilcher v. State, 479
So.2d 710, 712 (Miss. 1985). The record clearly shows that Mack failed to challenge both the
court’s dismissal of Juror No. 26 and the court’s handling of voir dire in regards to the remaining
potential jurors on the venire (Jurors No. 7, 15, 19, 20, 21, 23, 25, 28, 29, and 32). (TR 13-15, 51,
63-64). As a result of the procedural bar, this issue is without merit. “Moreover, ‘a party who fails
to object to the jury's composition before it is empaneled waives any right to complain thereafter.’”
Duplantis v. State, 644 So.2d 1235, 1245 (Miss. 1994) (quoting Myers v. State, 565 So.2d 554, 557
(Miss. 1990)).
Procedural bar notwithstanding, Mack did not provide any evidence to prove that the jury
was partial and not fair. The Mississippi Supreme Court has consistently held that a trial judge will
not be held in error when an appellant only offers a conclusory statement that the trial court erred.
Spires v. State, 10 So.3d 477, 483 (Miss. 2009) (citing Archer v. State, 986 So.2d 951, 957 (Miss.
2008)).
Juror No. 26
In regards to Juror No. 26, Mack claims the court’s dismissal of that potential juror was
improper because it did not ask her if she could be impartial, and because it did so sua sponte.
During voir dire, the court learned that Juror No. 26 was neighborhood friends with both the
defendant and the victim, and presumably lived in the same neighborhood as the two men. (TR 13-
15, 61). The judge told Juror No. 26, “I’m going to go ahead and let you go, ma’am. Okay. There’s
no reason for you to stay around. Okay. Thank you though.” (TR 15).
Mack did not object to the court’s dismissal of Juror No. 26. (TR 15). Outside the presence
of the venire, the court explained, “It should be noted that Juror No. 26 was excused by the
11
agreement of the parties and the fact that she lived in the neighborhood and knew both the
defendant and the victim.” (TR 61). Again, Mack failed to challenge the court’s decision to release
Juror No. 26. (TR 61). In fact, according to the court, Mack agreed to excuse Juror No. 26. (TR 61).
Additionally, under Mississippi Code Annotated Section 13-5-79, a juror “shall be excluded . . .
if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be
assignable for error.” Miss. Code Ann. §13-5-79. Therefore, the judge was statutorily permitted to
exclude Juror No. 26 and the issue cannot be assigned as error. Accordingly, the argument
regarding Juror No. 26 is without merit.
Law Enforcement Connection
Mack argues that Jurors No. 19, 20, 21, and 28 were erroneously permitted to remain in the
venire in spite of their connections to the law enforcement witnesses in this case, Detective Scott
or Mr. Byrd. Specifically, Mack claims their association with law enforcement prevented him from
receiving a fair and impartial jury and trial, regardless of the juror’s promises of impartiality.
To begin, the connection between the jurors in this case and the law enforcement witnesses
is very weak. Juror. No. 19 worked with Detective Scott “years ago,” Jurors No. 20 and 21 were
casually acquainted with Detective Scott and Mr. Byrd, respectively, and Juror No. 28's children
went to high school with Detective Scott. (TR 15-18, 20-22, 34).
Mack repeatedly attempts to compare the alleged undue influence of law enforcement in
this case to the 1985 case, Mhoon v. State. 464 So.2d 77, 82 (Miss. 1985). However, the supreme
court has explained, “The concern of undue influence on the jury in Mhoon is unique, and we
refuse to assume that simply because a person is in law enforcement or connected to those who are
that they cannot apply the law fairly and honestly as described in their oath.” Brown v. State, 890
So.2d 901, 908 (Miss. 2004) (distinguished from Mhoon v. State, 464 So.2d 77, 82 (Miss. 1985)).
12
In Mhoon, there was an inordinate percentage of jurors who were either members of law
enforcement or closely connected to law enforcement. Id. Here, there were only four members on
the jury that were loosely associated with law enforcement. Therefore, the unique circumstances
in Mhoon render its holding inapplicable to the present facts.
Nothing presented by Mack demonstrates that the trial court erred in taking these jurors at
their word that they could be impartial and fair. See Duncan v. State, 939 So.2d 772, 779 (Miss.
2006). Moreover, Mack has not proven any resulting prejudice from the court’s handling of these
jurors. Keller, 138 So.3d at 438 (Miss. 2014). Accordingly, this assignment of error is without
merit.
Victim or Family Members as Victims
Mack also challenges the court’s decision to allow Jurors No. 15, 19, 23, and 28 to remain
on the venire because they or one of their family members had been the victim of aggravated
assault. Mack implies that this connection rendered these potential jurors incapable of being fair
and impartial. In Shell v. State, the Supreme Court of Mississippi declined to establish a per se rule
of disqualification where a juror is related to a victim of a similar crime. Brown v. State, 890 So.2d
901, 909 (Miss. 2004) (citing Shell v. State, 554 So.2d 887, 892 (Miss. 1989)).
Accordingly, there is no reason why the potential jurors in this instance should have been
dismissed because of a similar victim experience. Additionally, Mack has neither provided any
evidence to support his claim nor proven any resulting prejudice. Keller, 138 So.3d at 843 (Miss.
2014). This assignment of error is without merit.
Served on Jury
Mack argues the trial court erroneously allowed Jurors No. 7, 20, 21, 25, 29, and 32, all of
whom had served on juries that found criminal defendants guilty, to remain on the venire. A similar
13
argument was raised in Gowdy v. State, in which the appellant assigned error to the trial court for
having allowed the State to ask venire members about prior jury service. 56 So.3d 540, 544 (Miss.
2010). There, the Court found the issue to be without merit. Id. “We are not aware of any case
which condemns or finds fault with this common practice, and Gowdy does not provide one. Such
questions often are posed by both sides in criminal and civil cases alike, and are patently legitimate
as voir dire questions.” Id. As such, the trial court’s decision to allow the potential jurors to remain
on the venire in this case was not an abuse of discretion. Lastly, Mack failed to support his claim
and to demonstrate the requisite prejudice.
Conclusion
This issue is procedurally barred on appeal. Duplantis, 644 So.2d at 1245 (Miss. 1994).
Procedural bar notwithstanding, Mack has not met his burden of proof to overcome the
presumption of a fair and impartial jury because he did not present evidence that demonstrates: (1)
the jury was partial and not fair, and (2) the jury’s prejudice resulted from the circuit court’s
handling of voir dire. Keller, 138 So.3d at 843 (Miss. 2014) (citing Ross v. State, 954 So.2d 968,
988 (Miss. 2007)).
II. There was probable cause to issue Mack’s arrest warrant.
Standard of Review
When determining the existence of probable cause, the court must consider the totality of
the circumstances. State v. Woods, 866 So.2d 422, 425 (Miss. 2003). “The task of the issuing
[judge] is simply to make a practical, common-sense decision based on all the circumstances set
forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons
supplying hearsay information.” Id.
14
Argument
Mack argues that his arrest was unconstitutional and not based on probable cause because
the information provided in the affidavit by Detective Scott about Warren Randle was allegedly
fraudulent. He further asserts that when the allegedly false information from Randle is removed,
the remaining information, provided by the victim, Joseph Scott, is insufficient to rise to the
requisite level of probable cause.
Procedural Bar
First, this issue is procedurally barred because Mack failed to raise the issue at trial.
Wilcher, 479 So.2d at 712 (Miss. 1985). In Baskin v. State, the Supreme Court of Mississippi held
that the appellant was procedurally barred from challenging the validity of his arrest warrant for
the first time on appeal where he failed to raise the issue at trial. 145 So.3d 601, 603 (Miss. 2014).
Here, Mack did not challenge the validity of his arrest warrant at trial. In fact, Mack failed to
challenge its validity when he waived extradition from Georgia and returned to Forrest County, and
he failed to raise any pretrial motions to challenge its validity. As such, this issue is procedurally
barred on appeal.
Probable Cause
Procedural bar notwithstanding, Mack’s argument lacks merit because the warrant for his
arrest was amply supported by an abundance of probable cause. Mack claims that Detective Scott
falsified the information provided in the affidavit used to obtain Mack’s arrest warrant. As such,
Mack asserts that the affidavit and warrant should be stricken and the trial voided.
To obtain a felony arrest warrant, a police officer must have (1) reasonable cause to believe
that a felony has been committed; and (2) reasonable cause to believe that the person proposed to
be arrested is the one who committed it. Conerly v. State, 760 So.2d 737, 740 (Miss. 2000) (citing
15
Henry v. State, 486 So.2d 1209, 1212 (Miss. 1986)). An arrest warrant will only be issued after a
judicial determination that there is probable cause based upon the affidavit or other evidence before
the court. Miss. Unif. R.P.J.C. 3.03. Probable cause is “a practical, nontechnical concept, based
upon the conventional considerations of every day life on which reasonable and prudent men, not
legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or
of which he has reasonably trustworthy information, are sufficient in themselves to justify a man
of average caution in the belief that a crime has been committed and that a particular individual
committed it.” Busick v. State, 906 So.2d 846, 852 (Miss. Ct. App. 2005) (citing Conerly, 760
So.2d at 740 (Miss. 2000)).
Here, Detective Scott obtained Mack’s arrest warrant. Detective Scott had probable cause
to seek a warrant for Mack’s arrest because of the evidence provided to him by law enforcement,
Joseph Scott, Warren Randle, and the physical evidence, it is apparent that there was probable
cause to believe that a felony had been committed and that Mack was the person who had
committed it. Conerly, 760 So.2d at 740 (Miss. 2000).
However, even if Mack had made a preliminary showing that the evidence provided by
Randle in the affidavit was fraudulent, the remaining evidence is of such veracity that it is still
sufficient to establish probable cause. Busick, 906 So.2d at 853–54 (Miss. Ct. App. 2005) (citing
Petti v. State, 666 So.2d 754, 758 (Miss. 1995)). In Busick, the appellant moved in a preliminary
suppression hearing to suppress a video statement and other evidence which resulted from his arrest
because the arrest warrant was allegedly issued without probable cause. Id. at 852. At the
suppression hearing, instead of arguing that probable cause could not have arisen from the facts
alleged in the investigator’s affidavit, Busick tried to show that most of the information in the
affidavit was the result of false swearing by the investigator. Id. at 853. Ultimately, the court found
16
that there was no misrepresentation on the affidavit where the officer’s testimony did not
sufficiently demonstrate that he acted with deliberate or reckless disregard for the truth in order to
overcome an arrest warrant’s presumption of validity. Id. (citing Franks v. Delaware, 438 U.S. 154,
171 (1978)).
Much like the appellant in Busick, Mack attempts to show that the information provided
in Detective Scott’s affidavit was fraudulent. Yet, Mack does not present any evidence that
Detective Scott made statements in the affidavit knowingly or intentionally or with reckless
disregard for the truth. Moreover, even if the allegedly falsified information in the affidavit were
stricken, there is still sufficient evidence to establish probable cause.2 This issue is without merit.
Conclusion
The procedural bar prevents this error from being addressed on appeal. However,
procedural bar notwithstanding, Mack has made no showing of intentional or knowing
misrepresentation by Detective Scott. That being said, even if the allegedly contradictory portion
of Detective Scott’s affidavit were removed, there was still sufficient evidence to establish probable
cause in issuing a warrant for Mack’s arrest.
III. A mistrial was not required because Mack’s right against self-incrimination was notviolated when the State questioned him on cross-examination.
Standard of Review
Whether to grant a mistrial is within the sole discretion of the trial court. Pulphus v. State,
782 So.2d 1220, 1223 (Miss. 2001). The decision will be reviewed for abuse of discretion. Ross
2 “If the remaining content provides insufficient support for a finding of probable cause, thearrest warrant ‘must be voided and the fruits of the [arrest] excluded to the same extent as ifprobable cause was lacking on the face of the affidavit.’” Busick v. State, 906 So.2d 846, 853–54(Miss. Ct. App. 2005) (citing Petti v. State, 666 So.2d 754, 758 (Miss. 1995)).
17
v. State, 16 So.3d 47, 57 (Miss. Ct. App. 2009). Mistrials should only be declared sua sponte under
the “manifest necessity” rule. Younger v. State, 931 So.2d 1289, 1291 (Miss. 2006).
“There is no simple rule or formula defining the standard of ‘manifest necessity’ or when
exceptional circumstances exist justifying a declaration of mistrial by the trial court. The question
is not easily answered. For this reason, appellate courts must defer to ‘a trial judge's considered
determination that manifest necessity for a mistrial exists in a particular case.’” Leslie v. State, 171
So.3d 549, 556 (Miss. Ct. App. 2015) (citations omitted).
Argument
Mack argues that the trial court violated his right against self-incrimination when it allowed
the State to ask him on cross-examination why he did not give a statement to the police department
regarding his alibi. According to Mack, the jury was tainted by this portion of his testimony and
as such, the trial court should have declared a mistrial as soon as the State asked Mack the
questions. The line of questioning, in pertinent part:
Q. This story that you just said that I wasn’t in town, did you ever tell police this?
A. Oh, yes, sir, yes, sir. Officer Joel Scott to be exact.
Q. So wait a minute. ‘Cause my file said you refused to give astatement.
A. He probably did it off the record . . .
Q. Did you refuse to give a statement?
A. Yes, sir, I did.
(TR 183-184).
Under the federal and state constitutions, the privilege against self-incrimination provides
that an individual may not be required to take the witness stand. In re Knapp, 536 So.2d 1330, 1334
18
(Miss. 1988) 0(citing U.S. Const. Amend. V; Miss. Const. Art. 3 §26). A defendant can waive their
right against self-incrimination by voluntarily and knowingly taking the witness stand and
responding to questions. Hentz v. State, 496 So.2d 668, 673 (Miss. 1986). No waiver occurs if the
defendant’s counsel timely objects to questions that would elicit incriminating information. Moore
v. Moore, 558 So.2d 834, 838 (Miss. 1990).
Here, Mack waived his right against self-incrimination when he voluntarily and knowingly
took the witness stand. Prior to taking the witness stand, the court explained to Mack what his
constitutional rights were and that he had the choice to testify or not testify. (TR 166-67). Mack
said he understood his rights and wished to testify. (TR 167). Mack also waived his right by
responding to the questions asked by the defense and the State.
Additionally, Mack’s attorney failed to object to the State’s line of questioning in this
instance, although he raised several objections to other questions. (TR 183). In spite of this failure,
Mack seems to assert that the trial court was required to sua sponte declare a mistrial. Under these
facts, Mack has failed to demonstrate the manifest necessity of a sua sponte mistrial. Younger, 931
So.2d at 1291 (Miss. 2006). As such, the trial court’s initial refusal to declare a mistrial sua sponte
should be upheld.
Furthermore, the State’s line of questioning was not an impermissible comment on Mack’s
right against self-incrimination. Rather, it was a comment on the lack of defense put forth by
Mack.“The State is entitled to comment on the lack of any defense, and such comment will not be
construed as a reference to the defendant’s failure to testify by innuendo and insinuation.” Crutcher
v. State, 68 So.3d 724, 728 (Miss. Ct. App. 2011). Seeing as the defense proposed an alibi theory
of defense, agreed that it would be easy to prove, yet chose not to present a single supporting
witness, it is obvious that the State’s question was a comment on the lack of defense. “The question
19
is whether the prosecutor’s statement can be construed as commenting upon the failure of the
defendant to take the stand.” Ladner v. State, 584 So.2d 743, 754 (Miss. 1991). Here, the State’s
question was clearly not a comment upon Mack’s failure to take the stand, as Mack was testifying.
Alternatively, even if the State's question was improper, it would constitute harmless error,
as nothing indicates the jury relied on the prosecution's comments in arriving at its guilty verdict.
Towles v. State, 193 So. 3d 688, 702 (Miss. Ct. App. 2016).
IV. The trial court did not allow improper jury instructions.
Standard of Review
On appeal, the grant or denial of jury instructions is reviewed for abuse of discretion.
Newell v. State, 49 So.3d 66, 73 (Miss. 2010). The circuit court has sole discretion whether to grant
or deny proposed jury instructions. Id. The instructions should be reviewed as a whole to determine
whether an error has occurred and no one instruction should be singled out. Id.
Argument
Mack asserts that the trial court improperly granted instructions S-1, S-4, and S-5, and
erroneously excluded instruction D-1.
S-1
Jury instruction S-1 set forth the elements of aggravated assault. (CP 37). Instruction S-1
stated in pertinent part: “If you find from the evidence beyond a reasonable doubt that: (1) William
Mack, Jr., on or about January 25, 3013, in Forrest County, Mississippi; (2) knowingly caused
bodily injury to Joseph Scott, with a deadly weapon, to wit: gun, by shooting Mr. Scott with a gun;
and (3) that such behavior was not done in necessary self defense, accident, or misfortune; then you
shall find William Mack, Jr. guilty of Aggravated Assault.” (CP 37). At the jury instruction
conference, Mack’s attorney objected to the instruction because it did not follow the statutory
20
language; counsel indicated his preference for D-1 instead. (TR 202). The State pointed out that
while D-1 tracked the statute, it did not include the facts of the case. (TR 202). The elements in
instruction D-1 stated, “You must find WILLIAM MACK not guilty unless the state proves beyond
a reasonable doubt that he: (1) attempts to cause or purposely or knowingly causes; (2) bodily
injury to Joseph Scott; (3) with a deadly weapon or other means likely to produce death or serious
bodily harm.” (CP 42). Following the defense’s objection to S-1, the court determined that S-1 was
a proper statement of the law and would be given. (TR 202).
On appeal, Mack argues that instruction S-1 was an improper instruction because it
needlessly included the kind of deadly weapon used, a gun, and because of the limited physical
evidence connecting Mack to the use of a gun. A similar jury instruction argument was raised by
the appellant in Boyd v. State, where he asserted that the jury was incorrectly instructed on
aggravated assault because the instruction stated he used a knife, but failed to include language
classifying a knife as a “deadly weapon.” 47 So.3d 121, 124 (Miss. 2010). The court determined
that under Mississippi Code Annotated Section 97-3-7, “with a deadly weapon or other means
likely to produce death or serious bodily harm,” is an essential element of the statute. Id. As such,
the court held that the jury was improperly instructed because in order to convict Boyd, it had to
be instructed that the knife he used was a “deadly weapon.” Id. at 125. Nevertheless, the court
reasoned that the jury would have reached the same verdict regardless of the inclusion of the
phrase, “deadly weapon.” Id.
Here, instruction S-1 complies with the Supreme Court’s holding in Boyd because it
identified the weapon used, a gun, and classified it as a “deadly weapon.” The instruction was a
correct statement of law; therefore, the trial court’s granting of the instruction was not an abuse of
discretion.
21
D-1
The trial court correctly denied instruction D-1 because it was repetitive. Before it denied
the instruction, it asked the defense if there was any need for the instruction since he had granted
S-1. (TR 204). In response, Mack said, “I understand this will be repetitive. We would actually like
this one in lieu of S-1, but if the Court keeps S-1, you know, it is repetitive.” (TR 204-05). As a
result, D-1 was refused. (TR 205). Refusal to grant a repetitive jury instruction is not error. Lee v.
State, 877 So.2d 543, 545 (Miss. Ct. App. 2004) (citing Jackson v. Daley, 739 So.2d 1031, 1037
(Miss. 1999)). Therefore, the court’s refusal to grant D-1 was neither in error nor an abuse of
discretion.
S-4
Mack asserts instruction S-4 was repetitive and erroneous and only served to bias the jury
against him. Instruction S-4 defined “deadly weapon” as it applies to Mississippi’s aggravated
assault statute. (CP 39). The defense objected to its inclusion at the jury instruction conference
because it was an “unnecessary . . . repetitive” instruction. (TR 203). The State proffered that it was
necessary to define “deadly weapon,” an essential element listed in the statute. (TR 203). The judge
decided to give the instruction over the defense’s objection. (TR 203).
There is no evidence that instruction S-4 was unnecessary or repetitive. In fact, in a similar
armed robbery case, Williams v. State, the supreme court held that the kind of instruction that
defines what legally constitutes a “deadly weapon” better informs the jury as to whether a particular
instrument constitutes a deadly weapon. 134 So. 3d 732, 737 (Miss. 2014). Because “deadly
weapon” is an essential element of both armed robbery and aggravated assault, as it occurs here,
the court’s holding supports the trial court’s inclusion of instruction S-4. Id. Therefore, Mack’s
argument is without merit.
22
S-5
Mack also asserts jury instruction S-5 was unnecessary, repetitive, and served to bias the
jury against him. Instruction S-5 read, “A person charged with aggravated assault does not have
to possess ill-will toward his victim(s) . . . In this trial this Rule of Law means that William Mack,
Jr. did not have to possess ill-will toward Joseph Scott.” (CP 40). Mack further claims this
instruction was unsupported because there was no testimony that Mack possessed any ill-will
toward Scott and that Mack’s state of mind was never at issue in this case.
At the jury instruction conference, the defense objected to Instruction S-5 and argued that
Mack’s state of mind was not at issue in the case and the instruction would only serve to confuse
the jury. (TR 203). The trial court rejected Mack’s argument and gave the instruction because “it’s
a correct statement of law.” (TR 204). The Supreme Court of Mississippi has held that a person
does not have to have ill-will to commit aggravated assault on someone. Blanks v. State, 542 So.2d
222, 226 (Miss. 1989). Therefore, the court’s ruling on S-5 was a correct statement of law and not
an abuse of discretion.
V. The trial court did not err when it denied Mack’s motion for a new trial because theguilty verdict was not against the overwhelming weight of the evidence.
Standard of Review
A motion for new trial challenges the weight of the evidence. Jones v. State, 918 So.2d
1220, 1235 (Miss. 2005). In determining whether a jury verdict is against the overwhelming weight
of the evidence, the reviewing court must accept the evidence which supports the verdict as true
and may only reverse when it is convinced that the circuit court has abused its discretion in failing
to grant a new trial. Boone v. State, 973 So.2d 237, 243 (Miss. 2008). Only when the verdict is so
contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
23
unconscionable injustice will this Court disturb it on appeal. Id.
Argument
Mack argues that the trial court erred when it denied his motion for new trial because the
jury’s guilty verdict is contrary to the overwhelming weight of the evidence. Upon review, it is
evident that the trial court properly denied Mack’s motion for new trial because the evidence amply
supports the jury’s guilty verdict.
Warren Randle testified that on the morning of January 25, 2013, he saw Mack and Mack’s
father stop the gray Jeep Grand Cherokee they were driving at the sign in front of his house; he said
minutes later, he heard tires squealing and learned Scott had been shot. (TR 217). Mack was
identified by Scott as the person who shot him. (TR 218). Officer Breland testified that he saw a
black male drive a gray Jeep Grand Cherokee with a flat tire through an intersection near the crime
scene at a high rate of speed. (TR 218). The dash cam video shows the vehicle going through the
intersection. (TR 218). Moments later, Officer Breland received a dispatch call about a shooting in
the area. (TR 218). The evidence showed the gray Jeep was registered to Mack’s grandmother. (TR
220). Numerous shell casings were found in the middle of the street where the shooting occurred.
(TR 220).
Mack’s testimony on direct examination suggested an alibi defense, however, the State was
never notified of his intent to present an alibi. (TR 220). Mack did not present any physical
evidence, witnesses, or statements to support his claim. (TR 220). On cross-examination, Mack
admitted that his alibi would be easy to support at trial but he and his attorney chose not to do. (TR
194). Ultimately, “the jury determines the weight and credibility to give witness testimony and
other evidence and is not required to believe alibi testimony.” Wilson v. State, 198 So.3d 408, 413
(Miss. Ct. App. 2016) (citing Sanders v. State, 162 So.3d 868, 871 (Miss. Ct. App. 2015).
24
In light of the evidence supporting Scott’s version of the incident, when coupled with
Mack’s unsupported alibi claim, make it obvious that allowing Mack’s conviction to stand would
not sanction an unconscionable injustice. As a result, the trial court properly denied Mack’s motion
for new trial because the weight of the evidence amply supports his conviction.
VI. The trial court did not err when it denied Mack’s motion for JNOV because theevidence was sufficient to support the guilty verdict.
Standard of Review
A motion for a judgment notwithstanding the verdict (JNOV) challenges the legal
sufficiency of the evidence presented at trial. Shelton v. State, 853 So.2d 1171, 1186 (Miss. 2003).
The evidence is viewed by the court in the light most favorable to the State and the State must be
given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.
McClain v. State, 625 So.2d 774, 778 (Miss. 1993); Bell v. State, 910 So.2d 640, 646 (Miss. Ct.
App. 2005). This Court has stated that the critical inquiry in considering whether the evidence is
sufficient to sustain a conviction in the face of a motion for JNOV is whether the evidence shows
“beyond a reasonable doubt that accused committed the act charged, and that he did so under such
circumstances that every element of the offense existed...” Bowser v. State, 182 So.3d 425, 430
(Miss. 2015) (citing Bush v. State, 895 So.2d 836, 843 (Miss. 2005)).
Argument
Mack argues the trial court erred when it denied his motion for JNOV because the elements
of the crime of aggravated assault were not met. However, when viewing the evidence in the light
most favorable to the prosecution, any rational juror could have concluded that all the elements of
aggravated assault were satisfied. Therefore, there was ample sufficient evidence to support the
guilty conviction and the trial court correctly denied Mack’s motion for JNOV.
25
The State first proved the first element of aggravated assault, that the incident occurred on
January 25, 2013, in Forrest County, through the testimony of the victim, Joseph Scott, Officer
Breland, Detective Scott, Mr. Byrd, and Warren Randle. (TR 209). It is not disputed that the
shooting occurred on that date in Forrest County, Mississippi. (TR 209).
The State proved the second element of aggravated assault, that Mack, the defendant,
knowingly caused injury to the victim, Joseph Scott, with a deadly weapon by shooting him with
a gun. (TR 209). It is not disputed that Joseph Scott was shot in the leg with a .45 caliber handgun.
(TR 210). Mack was implicated in this crime through the testimony of Joseph Scott, a longtime
friend and neighbor. (TR 210). Scott testified at trial that Mack got out of a gray Jeep Grand
Cherokee and ran towards him, firing a gun in broad daylight. (TR 210). Scott had a clear view of
Mack and told police minutes later that Mack was the person who shot him. (TR 210).
Lastly, the State proved the final element of aggravated assault, that the shooting was not
done in necessary self-defense or by accident or misfortune. (TR 210). This was not a case of
necessary self-defense because Scott did not threaten Mack. (TR 210). Scott testified that he does
not even own a gun. (TR 210). The evidence shows that Mack was the aggressor in this situation
and jumped out of the car and began firing at Scott as he pulled up to his grandparents’ house. (TR
210). This incident was not an accident or misfortune because Mack’s actions display intent to harm
because he was running towards Scott pulling the trigger of the handgun. (TR 210-11).
It is abundantly clear that based on this evidence, a rational juror could have concluded that
the State satisfied all the elements of aggravated assault. Therefore, there was sufficient evidence
to support the jury’s guilty verdict and the trial court did not err when it denied Mack’s motion for
JNOV.
26
CONCLUSION
For the foregoing reasons, the State asks this honorable Court to affirm Mack’s conviction
and sentence.
Respectfully submitted,
JIM HOOD, ATTORNEY GENERAL
BY: /s/ Kaylyn McClinton KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERALMISSISSIPPI BAR NO. 105137
OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE: (601) 359-3680
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CERTIFICATE OF SERVICE
I, KAYLYN MCCLINTON, hereby certify that on this day I electronically filed the
foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent
notification of such filing to the following:
Seth M. Hunter, Esq.Dukes Dukes & Hunter
P.O. Box 2055Hattiesburg, MS 39403
Further, I hereby certify that I have mailed by United States Postal Service the document
to the following non-MEC participants:
Honorable Robert P. HelfrichCircuit Court Judge
P.O. Box 309Hattiesburg, MS 39403
Honorable Patricia BurchellDistrict Attorney
P.O. Box 166Hattiesburg, MS 39403-0166
This the 19th day of December, 2016.
/s/ Kaylyn McClinton KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERAL
OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE NO. 602-359-3680FAX NO. 601-576-2420
28