Lee v. State
| Docket Number | 2022-KA-00078-COA |
| Decision Date | 29 August 2023 |
| Parties | KEDRICK TEVON LEE A/K/A KEDRICK LEE APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
1
KEDRICK TEVON LEE A/K/A KEDRICK LEE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
No. 2022-KA-00078-COA
Court of Appeals of Mississippi
August 29, 2023
DATE OF JUDGMENT: 11/09/2021
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DANIELLE LOVE BURKS DISTRICT
ATTORNEY: PATRICIA A. THOMAS BURCHELL
BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J.
¶1. On November 3, 2021, Kedrick Tevon Lee was convicted of first-degree murder, two counts of felon in possession of a firearm, and one count of tampering with physical evidence. He was sentenced as a habitual offender to serve life in prison for first-degree murder, two ten-year terms in custody for possession, set to run consecutively to each other and the life term, and ten years in custody for tampering with evidence, set to run concurrently with the other three sentences, without eligibility for parole, probation, or early release. Lee now appeals, arguing that his two convictions for felon in possession of a firearm are unlawful, his indictment was defective, there was insufficient evidence to convict
him of tampering with evidence, and, thus, retroactive misjoinder should be applied. Upon review, this Court affirms Lee's conviction and sentence for first-degree murder, merges the two counts of felon in possession of a firearm and remands for sentencing on that one count, and reverses and remands for a new trial on the charge of tampering with physical evidence.
FACTUAL BACKGROUND
¶2. On May 27, 2020, authorities questioned a man named TeDarron Price regarding the murder of Lee's brother Rhakim James, which had occurred approximately one week earlier. Price was eliminated as a suspect and returned home. Later that night, Price and several others gathered in the parking lot of Fat Boys, a store located in Hattiesburg, Mississippi. At approximately 9:12 p.m., a black Dodge Avenger pulled over near the store and let out a single passenger before pulling away and parking on the opposite side of the store. The passenger who was dropped off was dressed in all black and wearing a face mask. He walked down the street and joined the crowd gathered in the parking lot. The passenger was later identified as Lee.
¶3. Shortly after Lee arrived, an argument began within the crowd. At approximately 9:14 p.m., the verbal altercation became physical when Micharlos James, the brother of Lee and the deceased Rhakim James, punched Price. The two struggled briefly before Price was able to escape the confrontation. As Price stepped away from the crowd, Lee drew two firearms, one in each hand, and shot Price in the back multiple times. Lee immediately fled the scene on foot. When authorities arrived at the scene, Price was found lying in the parking lot
suffering from multiple gunshot wounds. He was transported to Forrest General Hospital but ultimately died from his injuries. The coroner counted a total of thirteen gunshot wounds on Price's body.
¶4. Three days later, Lee was interviewed by Detective Jeremy Dunaway at the Hattiesburg Police Department. After being informed of his Miranda[1] rights, Lee positively identified himself in the parking-lot surveillance footage and admitted to shooting Price. He also disclosed that the two firearms he had used in the shooting were his own .380-caliber handgun and a 9mm handgun that belonged to his deceased brother. Lee stated that he "fled the scene toward Duke Avenue" and was picked up by his friend "T-West."[2] T-West drove Lee to Kamper Park and dropped him off. Lee left both firearms in T-West's car because "he didn't want to get caught riding around with them." At some point, Lee also discarded the black sweatshirt he was wearing that night. Neither of the guns nor the sweatshirt was ever recovered by authorities.
¶5. On November 30, 2020, Lee was indicted[3] by a grand jury on four counts-one count of first-degree murder, two counts of felon in possession of a firearm, and one count of
tampering with physical evidence.[4] Lee entered a plea of not guilty to all four counts. His trial began on November 2, 2021. The State opened by introducing into evidence Lee's previous guilty plea to possession of a stolen firearm to support the State's categorization of Lee as a prior felon and habitual offender.[5]
¶6. In addition, the State called ten witnesses to testify about the shooting, including Price's mother, medical officials who examined Price's wounds, and multiple investigators who were involved in the case. Of note, Detective Dunaway testified about his recorded interview with Lee in which he admitted to being dropped off, carrying two firearms on the night of the murder, and shooting Price. A recording of the interview was subsequently played for the jury. The State additionally presented a projectile recovered from Price's neck, eleven shell casings, three projectiles found on the scene, and multiple photographs of Price's injuries. The jury also was able to view the video surveillance footage taken from the four surveillance cameras at Fat Boys. One of the angles showed the figure identified as Lee arriving, and another angle showed the entire shooting unfolding. Lee did not call any witnesses in his defense. The trial concluded on November 3, 2021, and Lee was convicted
and sentenced as a habitual offender for all four charges.[6]
ANALYSIS
¶7. Lee now appeals, alleging that (1) multiple convictions of felon in possession of a firearm are not permitted by Mississippi law; (2) his indictment was defective, and the jury received improper instructions; (3) there was insufficient evidence for a conviction of tampering with physical evidence; and (4) the doctrine of retroactive misjoinder applies. We address these arguments in three parts.
I. Multiple Convictions of Felon in Possession of a Firearm
¶8. Lee first argues that his two convictions of felon in possession of a firearm were unlawful. This argument is based upon a case of first impression from the Mississippi Supreme Court in an opinion that issued the day after Lee's sentencing, McGlasten v. State, 328 So.3d 101 (Miss. 2021). In McGlasten, a felon was "caught with four guns in a small residence" and consequently "charged with and convicted of four separate violations" of Mississippi's felon in possession of a firearm statute. Id. at 102 (¶1). On appeal, McGlasten argued that the four convictions violated his constitutional protection against double jeopardy. Id. at 103 (¶10). The supreme court agreed, holding "the simultaneous possession of multiple firearms generally constitutes only one offense under Section 97-37-5(1) unless there is evidence that the weapons were stored in different places or acquired at different
times." Id. at 107 (¶27) (internal quotation marks omitted) (quoting United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996)).
¶9. The instant case presents a similar scenario: Lee was charged with and convicted of two counts of felon in possession of a firearm. This result is permitted only if the State presented evidence that Lee stored the weapons in different locations or acquired them at different times. See id. There is no evidence in the record to suggest Lee stored the two firearms in different places. He admitted in his interview with Detective Dunaway that he had been carrying two firearms that night, a .380-caliber handgun and a 9mm handgun, with one in each pocket. The surveillance footage of the shooting confirms that Lee fired two guns, one in each hand, at Price on the night of his murder. Further, the State did not present any evidence suggesting that the guns were acquired at different times. While the record is clear that one firearm was Lee's and that the other was his brother's, the State never addressed the timing of Lee's acquisition of the firearms. With no evidence to suggest that the case before us fits one of the two exceptions in McGlasten, this Court agrees with Lee-his two separate convictions for the same crime were unlawful pursuant to Mississippi Supreme Court precedent. See id.
¶10. While the State concedes this point, the State disagrees with Lee on the appropriate recourse. Lee asserts that he is entitled to a reversal and rendering of acquittal, while the State argues that this Court should merge the two counts and remand that singular count for sentencing. We agree with the remedy the State proposes. "The correct and widely followed
approach to dealing with multiplicitous counts is to merge the wrongly charged multiplicitous counts into one single count of conviction." Id. at 108 (¶29). McGlasten determined that the proper redress would be "vacating all but one of McGlasten's four convictions and resentencing him on the remaining count of conviction." Id. (citing United States v. Barrett, 496 F.3d 1079, 1095 (10th Cir. 2007)). Accordingly, we merge Counts II and III into a single count of possession of a firearm by a felon and remand this conviction for sentencing.
II. Tampering with Physical Evidence
¶11. Lee next asserts several errors involving his conviction of tampering with physical evidence, including the language in the indictment, the instructions given to the jury, and the sufficiency of the evidence presented.
A. Indictment
¶12. Lee claims that his conviction of tampering with evidence should be reversed and rendered because the indictment failed to track the language of its corresponding statute.[7]This Court utilizes "a de novo standard of review when a defendant challenges the legal sufficiency of an indictment." Lewis v. State, 295 So.3d 521, 531 (¶26) (Miss. Ct. App. 2019) (citing Beal v. State, 86 So.3d 887, 891 (¶9) (Miss. 2012)). When addressing the legal
sufficiency of an indictment,...
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