Augustine v. State

Decision Date15 December 2020
Docket NumberNO. 2019-KA-01467-COA,2019-KA-01467-COA
PartiesKOBE AUGUSTINE A/K/A KOBE JAQUAN AUGUSTINE A/K/A KOBE J. AUGUSTINE APPELLANT v. STATE OF MISSISSIPPI APPELLEE
CourtMississippi Court of Appeals

DATE OF JUDGMENT: 09/16/2019

TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

DISTRICT ATTORNEY: JOEL SMITH

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 12/15/2020

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

BARNES, C.J., FOR THE COURT:

¶1. A Harrison County grand jury indicted Kobe Augustine for first-degree murder. After a jury trial, Augustine was acquitted of first-degree murder but convicted of second-degree murder. The trial court sentenced Augustine to serve thirty-five years in the custody of the Mississippi Department of Corrections (MDOC). After the court denied his posttrial motion, Augustine appealed, claiming that the trial court erred by (1) denying his motion to suppress his statement to law enforcement and (2) admitting hearsay evidence through Officer Nicholas Keyhoe's testimony. Finding the admission of Officer Keyhoe's hearsay testimony constitutes error, we reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶2. On January 23, 2016, Sergeant Bradley Walker of the Gulfport Police Department responded to a shooting and found sixteen-year-old Nigel Poole lying in a grassy area with a gunshot wound to his head. Poole was unresponsive and later died at a hospital. Fifteen-year-old Augustine became a suspect and was arrested after police discovered him hiding under his bed. Augustine provided a statement to the police, claiming he and Poole had gotten into a confrontation. Augustine claimed that he wrestled his gun away from Poole and fired the gun into the air. Augustine was indicted for first-degree murder, and a jury trial was held on August 13, 2019.

¶3. Nilah Hands testified at trial that she was "hanging out" with Augustine, Poole, Clarence Clay, and Ladarious Thompson at her house on the day of the shooting. She had seen Augustine with a .38-caliber revolver earlier that day. According to Hands, Augustine left her house later that evening. Poole went with him but indicated to the others that he would be right back. Minutes later, Hands "heard two gunshots going off" and saw Augustine "running down the street by himself." When she asked where Poole was, Augustine hesitantly said that Poole had gone to "Cam's house." Hands asked about the gunshots, and Augustine said someone in a white car had shot at him and Poole three times and that he shot back once. Hands testified that this did not make sense to her because she only heard two gunshots and never saw a white car. Thompson also averred at trial that he told law enforcement he knew Augustine was lying because Thompson only heard three gunshots. Thompson said that he saw Augustine give a gun to Clay, and Hands testified that she overheard Augustine tell Clay, "I shot him."

¶4. Hands, Thompson, and Clay went to Cam's house. No one answered when they knocked on the door, but they saw Andre Jefferson. Jefferson testified that while he was walking back from the store, he heard "[l]ike two" gunshots.1 Jefferson kept walking and found Poole on the ground trying to breathe; so he went to Hands's house and called the police.

¶5. Sergeant Walker testified that he responded to the scene and discovered Poole lying in a grassy area. Poole appeared to have a gunshot wound to the head; he was still breathing but unresponsive. Sergeant Walker noticed one of Poole's pockets was inside out, and there were two cell phone chargers on the ground next to him.

¶6. Detective Christopher Werner with the Gulfport Police Department testified that Officer Keyhoe provided Augustine's name over the radio; so he and a crime scene technician went to Augustine's residence. Detective Werner found Augustine hiding under his bed and took him into custody. Augustine was advised of his Miranda2 rights. He appeared to understand his rights, and he waived his rights and provided a statement. Over defense counsel's objections, the recording of the interview with police was played for the jury. According to Detective Werner, Augustine initially stated that "he wasn't even there." Then Augustine said that someone in a car shot at them. Detective Werner testified there was no evidence to corroborate Augustine's statement. Then Augustine confessed to Detective Werner that he and Poole had a confrontation, and Poole hit him on the left side of the face. But Detective Werner did not find any indication of a struggle, and Augustine never said that Poole threatened to kill or hurt him.3

¶7. Jessica Kendziorek, a crime scene technician with the Gulfport Police Department, testified that during the search of Augustine's bedroom, they found a .380 shell casing and a .38-caliber bullet; however, a gun was not found at the crime scene or Augustine's residence. She also testified that when they discovered Augustine hiding under the bed, Augustine stated, "I don't have the gun, I don't have the gun." He then said, "[D]on't shoot, I don't have a gun, don't shoot, I don't have a gun."

¶8. Irby Jules testified that he had known Augustine "from the neighborhood." Yet he would not identify Augustine in the courtroom. Jules also could not recall giving a statement to law enforcement. The prosecutor attempted to impeach Jules with the specifics of a prior statement that he had given to Officer Keyhoe over defense counsel's objections, but the court did not let the prosecutor proceed; so the State tendered the witness.

¶9. Later, outside the jury's presence, the State indicated that it intended to call Officer Keyhoe to impeach Jules with a prior statement. Defense counsel argued that this testimony was hearsay and "highly prejudicial." During a proffer, Officer Keyhoe testified that Jules had told him that "[he] heard [Augustine] in the neighborhood stating that he was going to get a teardrop tattoo . . . and also that he was going to catch a body," which meant that he was going to kill someone. Officer Keyhoe subsequently clarified that Jules had heard this information directly from Augustine. Jules also told the officer that he thought Augustine and Poole were having relations with the same girl. Jules said that Augustine attempted to sell him a black .38-caliber revolver for $150 approximately one week before the shooting. After the proffer, defense counsel stated that he had no problem with the State's asking Officer Keyhoe if Jules provided a statement, but he objected to the contents of Jules's statement being presented to the jury. Ultimately, the trial court held that the testimony about catching a body and selling a gun would be admissible for purposes of impeachment.

¶10. The State then called Officer Keyhoe to testify in front of the jury. He testified that Jules told him that he heard Augustine talking about catching a body, which meant to kill someone, and that Augustine and Poole had relations with the same girl. Finally, Officer Keyhoe stated that Jules said Augustine attempted to sell him a .38-caliber revolver one week prior to the shooting.

¶11. Dr. Mark LeVaughn, the Chief Medical Examiner with the State Medical Examiner's Office, testified that Poole died as a result of his injuries. Dr. LeVaughn testified Poole had sustained two gunshot wounds to the head, and he was able to determine the distance between the barrel of the gun and Poole's head was beyond three to four feet. He did not know Poole's position when he was shot. According to Dr. LeVaughn, one of the shots would have rendered Poole "instantly incapacitated." Dr. LeVaughn did not observe any defensive wounds on Poole's body.

¶12. After the State rested its case-in-chief, Augustine's mother, Jackie Augustine, testified on behalf of the defense. Jackie said that she worked on January 23, 2016, and did not see Augustine until around 7:30 p.m. According to Jackie, he was acting normally at the time, and she never knew him to have a gun in the house. However, she admitted that she did not know if he had a gun earlier that day.

¶13. Finally, Augustine testified. He said he had purchased a gun from Clay a day or two before the shooting. Augustine did not know how Clay got the gun or if he stole it, but he knew the gun had previously belonged to Poole. Augustine never discussed the fact that he had the gun while he was with Poole because he "knew it was going to be problems." He said on January 23, 2016, he left to go to a girlfriend's house, and Poole followed him. Acknowledging that Augustine had the gun, Poole asked to shoot it. Augustine said that when he pulled out the gun, Poole "hit [him] in the face," and the gun fell to the ground. Wrestling over the gun, Augustine "pushed off, . . . grab[bed] the gun, and . . . fired a warning." Augustine testified that Poole was bigger than he was and would shoot him if he got the gun. According to Augustine, Poole was still coming toward him after the first shot; so he shot again. However, Augustine admitted that he had previously told Detective Werner that Poole fell after the first shot. Augustine went back to Hands's house and gave the gun to Clay because he did not "want nothing to do with the gun." Augustine admitted to lying to his friends about what happened because he was "scared" and did not "want to go to jail." He also admitted to lying to Detective Werner because Augustine "felt like [the detective] was going to feel like I'm a criminal when that's not me." Finally, Augustine admitted that he had lied about what happened during a phone call to his brother the Thursday before trial.

¶14. The jury found Augustine guilty of second-degree murder, and he was sentenced to serve thirty-five years in the custody of the...

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