Gardner v. State
| Docket Number | 2021-KA-00886-COA |
| Decision Date | 08 August 2023 |
| Parties | MARCUS GARDNER APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY CASEY B. FARMER
DISTRICT ATTORNEY: SCOTT COLOM
BEFORE BARNES, C.J., WESTBROOKS AND McDONALD, JJ.
¶1. This appeal stems from Marcus Gardner's convictions for first-degree murder and attempted murder in the Noxubee County Circuit Court, which resulted in his sentence to life imprisonment for first-degree murder and to serve twenty years for attempted murder set to run consecutively in the custody of the Mississippi Department of Corrections. Gardner appeals his convictions based on the trial court's failure to strike a juror for cause, failure to exclude the testimony of the child victim, allegedly erroneous limitation of his cross-examination of a witness, and failure to refuse the State's allegedly improper jury instruction. Finding no reversible error, we affirm Gardner's convictions and sentences.
¶2. Years ago, Gardner was living at his mother's blue house in a small rural area known as Cockrell Quarters located in Brooksville, Mississippi. In this neighborhood, practically everyone on Cockrell Quarters Road had familial ties. The neighborhood's size was so small that the county coroner was moonlighting as a police officer, and if trouble was afoot, some residents would even fire a gun in the air to alarm others.
¶3. On August 1, 2017, trouble came knocking at Andrew Perry's door. The distance between Gardner's house and Andrew's house was about fifty yards. Thus, a person standing inside Andrew's home could, perhaps, be able to hear the comings and goings of anyone shuffling about near Gardner's home. Yet no one testified to be able to hear see, or account for Gardner's movements on the day of the crimes until he appeared at Andrew's house around 3:00 in the morning.
¶4. Andrew's daughter LaChristian ("Shantae") was the one who opened the door for Gardner. She immediately saw that Gardner did not have a shirt and that he held a handgun in his right pants pocket. Shantae knew that Gardner was not living by himself at the time. His wife Chelsea Pace and her four-year-old child Jayceon Yarbrough ("Jay") lived with him. Gardner told Shantae that someone had tried to rob him. Shantae called for her mother, Linda Perry, who came to the front door and let Gardner inside. Then, Shantae immediately left to go and retrieve her rifle to shoot in the air as an alert.
¶5. Linda and Gardner are cousins, and he told her that someone tried to break into his house. Linda asked about Pace and Jay. Gardner told Linda that they were asleep. This prompted Linda to wake up Andrew. When Andrew came into the living room to see what all the commotion was about, Gardner repeated that someone had broken into his house. Andrew went with Gardner to scope out Gardner's house. Before going, Gardner asked Andrew if he had any spare bullets for a .380-caliber firearm in his home. Andrew told Gardner he did not possess any .380-caliber bullets.
¶6. Andrew and Gardner searched the outside perimeter of the home and looked through windows to see if an intruder remained inside. Andrew saw no sign of breaking and entering. Andrew then crept inside the house, going through the front door. To his dismay, he saw a trail of blood in the hallway.
¶7. Andrew then stepped into Gardner's bedroom and saw that Pace was lying on her back with blood all over the floor. Andrew proceeded to check Jay's bedroom. He noticed that Jay was lying on the bed and that he felt "cold as ice." Andrew asked Gardner, "What have you done?" Gardner said, "Man, somebody broke in my house." Andrew began easing out of the bedroom. Gardner said, "You ain't gonna tell nobody, is you?" Andrew, observing that Gardner had what he believed to be a pistol in his pocket, responded,
¶8. Andrew returned to his house, with Gardner following. Linda and Shantae were awake in the kitchen. Gardner asked Andrew and Linda for a shirt and a pair of shoes. Gardner found a bottle of Clorox, opened it, and began washing his arms. Quickly, Andrew pulled Linda to the side and relayed everything he had seen. Andrew also alerted Deputy Terry Grassaree and then-Chief Deputy Eddie Franklin of the Noxubee County Sheriff's Department, by text message, that there had been two murders. Chief Deputy Franklin later confirmed he received Andrew's text messages.
¶9. Simultaneously, Shantae engaged in conversation with Gardner. Shantae asked Gardner where Jay was in the midst of all this. Specifically, Shantae said, "I'm surprised [Jay] ain't run out the house." Gardner told her, "[A]in't no more running," and then began to laugh. Shantae said Gardner believed that Pace had "set him up." Gardner also told her that it was going to be a "hot, rainy summer." Shantae explained that she knew that "hot, rainy summer" referred to "death" because when people die in their area, everyone says that the rain "wash[es] away the footsteps."
¶10. At that moment, Gardner received a phone call and walked over to the living room where Shantae's sister Jerilyn ("Sharee") was. After he hung up the phone, he told Sharee that he was going to go to see his grandmother Stella Hopkins, who lived down the street. ¶11. Five minutes later, Shantae heard a gunshot. Linda barricaded the front door, and Andrew went shuffling for bullets. He found two inside his son-in-law's gun. Linda and Andrew had every intention to shoot Gardner should he return. They pushed their daughters to go to Deputy Grassaree's house.
¶12. At approximately 5:00 in the morning, Shantae and Sharee left in Shantae's Tahoe and ran across Gardner's aunt Katina Hopkins at Tenn-Tom, the town gas station. Shantae told Katina, "I think [Gardner] done killed them people over there." Shantae's conversation with Katina then triggered another set of events.
¶13. Instead of going to Deputy Grassaree's house, Shantae followed Katina back to Cockrell Quarters. Shantae saw Katina go to Stella's house to tell her mother and everyone else in the house what had been told to her. Everyone came out of Stella's house and began walking up to Gardner's house. Linda said that her second cousin Kanesha asked for her to come outside because there was some smoke in Gardner's backyard. Linda also said that when she stepped outside, she saw fire go up "about the length of a body" at the back of Gardner's house.
¶14. Kanesha, Linda, Shantae, Sharee, and Kennedy Hopkins (Gardner's uncle) went inside Gardner's house. Shantae said that when they walked in, everyone saw a trail of blood coming from Pace's bedroom. None of them found Pace's body. They then went to Jay's room. There, they found Jay lying in a ball with "holes" in his body. Each of them believed Jay was dead-that is, until Jay lifted his hand in the air.
¶15. The family focused on getting Jay to the hospital. Shantae grabbed Jay and began applying pressure to his bullet holes. Someone grabbed a dry towel to wrap around him and then Shantae carried him outside. Kennedy, Sharee, and Shantae hopped into Shantae's Tahoe to take Jay to the Baptist Memorial Hospital in Columbus. Kanesha called 911 and requested an ambulance to meet Shantae en route because a boy had been shot, and his mother was presumed dead. After placing Jay in the ambulance, Shantae followed behind the ambulance and then stayed with Jay until he entered the emergency room.
¶16. Jay was later transported by helicopter to the University of Mississippi Medical Center (UMMC). Although Jay was stable at the time, his assigned medical professional Melissa Frascogna said that he was in critical condition. Dr. Frascogna observed that Jay, weighing under thirty-six pounds, had been shot five times: three times in the chest, once in his left shoulder, and once in his left thigh. Dr. Frascogna treated Jay for his injuries. Later, Dr. Frascogna concluded that if Jay had not come to the hospital, then he would have died.
¶17. On a second phone call with a 911 dispatcher, Kanesha told the dispatcher that there was a "blaze" behind Gardner's house. Dispatcher Naketta Bland's incident report summarized the information she received from the phone call: (1) Pace's body was no longer inside the house, (2) a minor child had been shot, (3) others were on their way to the hospital, (4) and Kanesha believed Pace had been dragged out the door and that her body was on fire. In response, Dispatcher Bland alerted the Brooksville Fire Department. Within fifteen minutes, the firefighters were at Gardner's house. They were the first to arrive. The two firefighters extinguished the fire without complication.
¶18. Deputy Dontavious Smith arrived next. As the night patrolman, his job was to clear the residence. He walked through each room and ensured that no living person or thing remained in the house with the potential to contaminate the crime scene. And he followed the trail of blood leading out the back door. At first glance, he did not see Pace's body. The deputy initially thought Pace's body was a burned doll. According to Smith, this may have been because the grass in the backyard had not been cut, appeared to be a woody area, and was filled with weeds and branches. But eventually Deputy Smith found Pace in some brush behind the residence. He also found a burned comforter and purse inside the brush, too, which prompted him to call the sheriff's office.
¶19. Police Officer and Chief Coroner R.L. Calhoun came to investigate Pace's death and to perform a postmortem...
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