Durr v. State
| Decision Date | 09 May 2023 |
| Docket Number | 2021-KA-01109-COA |
| Parties | TYKEVIOUS DURR A/K/A TYKEVIOUS TYRONE DURR APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY JUSTIN T. COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY ALEXANDRA ROSENBLATT
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
BEFORE CARLTON, P.J., SMITH AND EMFINGER, JJ.
¶1. On September 8, 2020, a Forrest County grand jury indicted Tykevious Durr, a/k/a Tykevious Tyrone Durr, in Count I for conspiracy to commit armed robbery of Tomaka Jones, in Count II for the capital murder of Tomaka Jones, in Count III for the armed robbery of Marlena Owens, and in Count IV for the aggravated assault of Marlena Owens. After a jury trial from June 21 through June 24, 2021, Durr was convicted of all four counts. The circuit court sentenced Durr for Count I to five years in the custody of the Mississippi Department of Corrections (MDOC), for Count II to life imprisonment in the custody of MDOC without eligibility for parole, for Count III to twenty-five years in the custody of MDOC, and for Count IV to twenty years in the custody of MDOC. The sentences were ordered to run consecutively with one another. Durr appealed.
¶2. On November 26, 2018, Marlena Owens and her boyfriend, Tomaka Jones, were living together at 230 Oak Street in Hattiesburg. They contacted Konswaylo Durr (Konswaylo) and asked her to go with them to Prentiss to buy drugs. They knew Konswaylo was from that area and knew her way around it. So the three of them, with a male named Theo, got together and traveled to Prentiss. When they reached their destination, Jones and Konswaylo got out of the car and approached a male who was standing outside the residence. Jones bought drugs from the male and got back into the car. Konswaylo followed the unnamed male into the residence. Owens, Jones, and Theo waited for Konswaylo outside the residence for twenty to thirty minutes and then decided to return to Hattiesburg without her. On the trip back, Owens discovered Konswaylo had left her purse in the vehicle. They took the purse to Konswaylo's residence at Plantation Apartments and left it with her mother. Jones then dropped off Owens at their residence and left to take Theo home.
¶3. After discovering that the others had left, Konswaylo called her boyfriend, Andre Snell, to come get her. Snell had to leave work to drive to Prentiss and take Konswaylo back to Hattiesburg. Upon their return, they went directly to Owens's residence to retrieve Konswaylo's purse. When they arrived, Jones had not returned to the residence. Konswaylo was angry because she was left in Prentiss, and they had taken her purse. Snell was angry because he had to take off work to get Konswaylo. Owens would not open the door to the residence, and an argument occurred with Konswaylo and Snell standing outside the residence. While the argument was ongoing, Owens called Jones and told him to hurry home. When Konswaylo and Snell realized that Owens was telling them she had left the purse with Konswaylo's mother, they left the residence.
¶4. Jones arrived at the residence shortly thereafter. Owens told him what had transpired, and he called Konswaylo and Snell. Obviously disturbed by the phone call, Konswaylo and Snell returned to confront Owens and Jones. This time, inside the residence, all four became engaged in a heated argument. The women were confronting each other, and the men were confronting each other. Snell demanded gas money from Jones because he had to drive to Prentiss to get Konswaylo, but Jones refused. According to Snell, Jones pulled a knife on him, and they left. However, as they were leaving, Snell told Owens and Jones that he would be back.
¶5. When they got back to Plantation Apartments, Snell discussed the day's events with Durr, who is Konswaylo's son. Snell admitted that he was still mad because Jones had pulled a knife on him. Snell testified that he and Durr decided to go back that night and rob Jones. Durr left the apartments for a time and returned with Jordan Woods, a/k/a Jay, and Tomaz Hinton, a/k/a Bino. Later, Snell, Durr, Hinton, and Woods left Plantation Apartments together. They dropped off Woods at Eagle Flat Apartments and then, with Durr driving, proceeded to the residence of Owens and Jones. Snell, Durr, and Hinton parked around the corner from the house, raised the hood of the car, and turned on the flashers to make it appear they were having car trouble. While there is conflicting evidence as to what happened next, considering the evidence in the light most favorable to the verdict,[1] all three exited the vehicle and approached the residence. At that time, Snell had a .380-caliber handgun and Durr had a 9 mm handgun.
¶6. According to Hinton, once the three approached the residence, he picked up a cinder block and tried to break the glass on the sliding-glass back door. Although the glass did not break, it made a loud noise, and he heard a lady scream. He then joined the other two on the side of the residence. He heard a man come to the door and tell the female to get his gun. According to Hinton, that is when Durr started shooting at Jones, who was standing outside the residence on the porch. Hinton testified that Jones then ran back into the house, with Durr and Snell following him inside. Jones ran into the bathroom area and was in the bathtub when Hinton saw Durr stand over him and shoot him several more times. Hinton says that Owens was also in the bathroom and got shot a few times as well. Hinton never saw Snell shoot his gun, but Hinton did see Snell hit Owens "upside the head with the gun." Hinton said they grabbed the cell phones and ran out of the house. After they left, Owens was able to contact law enforcement for help.
¶7. Owens testified at trial and described the events of the day and the attack she endured that evening inside her residence. Although she could not identify the shooter, she was able to state that the shooter had on Adidas pants.
¶8. Testimony from law enforcement and the State's experts showed that five 9 mm caliber shell casings were found at the residence and that all these casings were fired from the same weapon. Four bullets were also recovered: two from the body of Jones, one from the body of Owens, and one from the bathroom floor. All four were identified as 9 mm caliber and found to have been fired from the same weapon. Jones died as a result of two lethal gunshot wounds.
¶9. The testimony and video evidence admitted at trial showed that Durr was wearing Adidas pants on the night of the murder. Further, a video interview of Durr was admitted into evidence. This lengthy interview took place at the police station soon after the shootings. Durr repeatedly denied knowing anything about the shootings and denied having ever been to Owens's residence. Ultimately, however, Durr gave a written statement during the interview and explained that he did in fact go to Owens's residence with Snell and Hinton to rob Jones. He admitted that he was present when the shootings began but contended he neither had nor fired a weapon.
¶10. Durr was indicted, tried, and convicted for conspiracy to commit the armed robbery of Tomaka Jones, for the capital murder of Tomaka Jones, for the armed robbery of Marlena Owens, and for the aggravated assault of Marlena Owens. Durr appeals and raises two assignments of error, which we will address separately below.
¶11. At trial, Durr was represented by appointed counsel Alex Ignatiev from the Forrest County Public Defender's Office. Even though the State had elected not to seek the death penalty, Ignatiev filed a motion for the appointment of an additional attorney to represent Durr. Durr was still facing a possible sentence of life imprisonment without eligibility for parole for the charge of capital murder, and Ignatiev argued that due to the complexity of the case, an additional attorney was needed to assist in Durr's defense. Ignatiev explained that ordinarily another attorney in the public defender's office would assist him, but all the other attorneys in the office had been appointed to represent Durr's co-defendants. Further, Ignatiev advised the court that Hinton and Snell had both pled guilty and that they were expected to testify against Durr at trial. At that time, Ignatiev was not sure as to the status of Konswaylo's case. Ignatiev advised the circuit court that he had spoken with Joshua Stiglet, a former Forrest County Public Defender, who indicated that he would be ready, willing, and able to assist in Durr's defense. On February 1, 2021, the circuit court entered an order appointing Stiglet as additional counsel for Durr. Stiglet appeared as counsel for Durr and participated in Durr's trial on June 21-24, 2021.
¶12. At no point was an issue raised by the circuit judge, Durr or either of his counsel as to whether Ignatiev could effectively represent Durr. It is clear that they all knew well in advance of trial that other attorneys from the public defender's office were representing Durr's co-defendants and that at least two of the co-defendants would likely appear at trial to testify against him. For the first time on appeal, new appellate counsel from the Office of State Public Defender, Indigent Appeals Division, contends that because Ignatiev had an "actual" conflict of interest, his representation of Durr under these...
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