McCray v. State, 2016-KA-01592-COA

• Decision Date: 17 July 2018
• Docket Number: NO. 2016-KA-01592-COA,2016-KA-01592-COA
• Citation: 263 So.3d 1021
• Parties: La'Darrian MCCRAY a/k/a Ladarrian A. McCray a/k/a Ladarrian McCray a/k/a D.J., Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

263 So.3d 1021

La'Darrian MCCRAY a/k/a Ladarrian A. McCray a/k/a Ladarrian McCray a/k/a D.J., Appellant

v.STATE of Mississippi, Appellee

NO. 2016-KA-01592-COA

Court of Appeals of Mississippi.

July 17, 2018

Rehearing Denied October 23, 2018

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN ELIZABETH BRIGGS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, JACKSON

BEFORE LEE, C.J., BARNES AND TINDELL, JJ.

LEE, C.J., FOR THE COURT:

¶ 1. Following a jury trial in the Hinds County Circuit Court, La'Darrian "D.J." McCray was convicted of first-degree murder and attempted aggravated assault. McCray was sentenced to life imprisonment for the murder conviction and twenty years for the aggravated-assault conviction, with the sentences ordered to run concurrently in the Mississippi Departmentof Corrections. In this direct appeal, McCray argues that he (1) received ineffective assistance of counsel, and (2) the trial court erred by denying his motion for a judgment notwithstanding the verdict (JNOV) with respect to the aggravated-assault conviction. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of October 17, 2014, Glentez Brown was shot several times and killed at his apartment complex in Jackson, Mississippi. At trial, Brown's wife, Ashley, testified that on the evening of the shooting, Brown was driving his cousin, Wesley Gray, home and then driving around their three-month-old infant son, trying to calm his crying and help him fall asleep. Ashley spoke to Brown on the phone and told him to come home because the baby was not falling asleep. A few minutes later, Ashley heard gunshots and went and looked out the window where she saw a man wearing a gray hoodie and dark jeans walk past her window with a gun in his right hand. She testified that she was able to see his face clearly, but she did not recognize or know him. Ashley saw that the couple's vehicle was present, indicating that Brown had returned with the baby. She also saw a silver truck fleeing the apartments.

¶ 3. Ashley opened her apartment door, which was located on the second floor, and heard her son screaming. She looked down the stairs and saw her husband and son lying on the ground covered in blood. Ashley went down to them, but went back upstairs to the apartment to let her daughter know her father had been shot, and to get her phone. She went back downstairs again to her husband and son and called 911. Ashley picked up her baby and checked Brown's pulse and then returned upstairs to call family members and friends. Ashley's neighbor, Latricia Dent, came out and offered to take the baby for her, and so Dent took the baby back to her own apartment.

¶ 4. Ashley called Brown's brother, Joseph, several times trying to get in touch with him. After five calls, she finally reached him by phone and told him that Brown was dead. Joseph, along with two of his friends, and his ex-girlfriend, Lezert "Pumpkin" Edwards, arrived at the apartment. At some point after Joseph and Edwards arrived, Ashley was in the ambulance while her son was being checked for injuries. The baby was not injured.

¶ 5. While in the ambulance with the baby, Ashley saw a man pass by outside the ambulance, and she asked Edwards, who was standing outside the doors of the ambulance, who the man was. Ashley testified that she asked who the man was because he was the same man she had seen pass by her apartment window with a gun immediately after hearing gunshots. The man was no longer wearing a hoodie and now had on glasses. Edwards replied that the man was "D.J." (McCray). Ashley later learned that McCray was friends with Joseph. Ashley admitted both during the investigation and at trial that Brown was a drug dealer, but denied that he was fighting or at odds with anyone. She also testified that she did not immediately report McCray as the man with a gun to the police at the scene for fear of her and her children's safety.

¶ 6. Dent, Ashley's neighbor, also testified at trial that she heard gunshots and went outside where she saw a man and a baby on the ground. She went back inside and awoke her brother, and he called 911. When Dent went back outside, she saw Ashley holding the baby and vomiting. Ashley handed Dent the baby, and Dent took the baby back into her apartment and kept him for Ashley. She examined the baby and described that he was covered with blood and a white meaty substance on his face, in his hair, mouth, and clothes, but that she saw no physical marks or injury to his body. She also testified that the baby screamed continuously from the time she took him from Ashley to the time he was examined in the ambulance—approximately two-and-a-half hours.

¶ 7. Edwards testified that on the evening of the shooting she was at a local nightclub and later saw Joseph there too. Edwards testified that she had broken up with Joseph earlier that day due to his drug use and behavior. Within five to ten minutes of seeing Joseph at the nightclub, he told her that they had to leave because Brown had been killed. Edwards rode separately to Ashley's apartment. She stated that when she arrived, Joseph was already there, along with his friends, "Red" and McCray. She stated that later on at the scene, while she was standing at the ambulance with Ashley, Ashley asked her who the man was near the ambulance. Edwards corroborated that Ashley told her he looked like the man she had seen earlier leaving the scene. Edwards stated that she told McCray what Ashley had said and that McCray left the scene shortly thereafter.

¶ 8. Detective Jermaine Magee with the Jackson Police Department testified that he was dispatched to the scene in the early morning hours where he discovered Brown's "lifeless motionless body lying on floor on the ground near a stairwell." He stated that there were baby items and shell casings next to Brown. Shortly after receiving the call about the shooting, a call came in reporting a silver truck burning in a nearby area.¹ Detective Magee briefly interviewed Ashley at the scene, and she described what had transpired, including seeing an individual running from the scene with a gun in his hand, but she did not report the identity of the man. Detective Magee then spoke with Ashley on the phone the next day and she told him she knew who had killed Brown, but she would not reveal the identity over the phone because she was in fear for her life. They spoke again by phone on October 19, 2013, and Ashley disclosed McCray's identity to Detective Magee. On October 20, 2013, after Ashley was able to move herself and her children out of her apartment, Detective Magee interviewed her in person, and she again gave an account of what happened on the night of the shooting. She was then given an opportunity to view a six-person photographic lineup where she selected the person she saw running from the scene with a gun. The person she identified was McCray.

¶ 9. Dr. Lisa Funte, Deputy Chief Medical Examiner for the State of Mississippi, conducted an autopsy on Brown. She testified that Brown suffered several gunshot wounds

and died as a result.

¶ 10. Following a jury trial, McCray was convicted of first-degree murder of Brown and of attempted aggravated assault of the baby. McCray now appeals.

DISCUSSION

I. Ineffective Assistance of Counsel

¶ 11. In his first issue, McCray argues that he received ineffective assistance of counsel denying his right to a fair trial because his attorney failed to request a circumstantial-evidence jury instruction. McCray contends the evidence presented by the State was purely circumstantial and the jury was not properly instructed. "A circumstantial-evidence case is one where the State is ‘without a confession and wholly without eyewitnesses to the gravamen of the offense charged.’ " Carson v. State , 125 So.3d 104, 106 (¶ 5) (Miss. Ct. App. 2013) (quoting Garrett v. State , 921 So.2d 288, 291 (¶ 17) (Miss. 2006) ). "The term ‘gravamen’ is defined as the ‘substantial point or essence of a claim, grievance, or complaint.’ " Id. (quoting McInnis v. State , 61 So.3d 872, 876 (¶ 13) (Miss. 2011) ). McCray argues that because there was no confession and no eyewitnesses to Brown's shooting, he was entitled to a circumstantial-evidence jury instruction to instruct the jury that it could not render a guilty verdict unless the State proved his guilt "beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence." (Citing Keys v. State , 478 So.2d 266, 267 (Miss. 1985) ).

¶ 12. McCray also argues that his defense attorney rendered ineffective assistance of counsel by withdrawing his motion for a new trial. At trial, McCray's attorney filed a motion for JNOV, or in the alternative, a new trial. His attorney withdrew the motion for a new trial and stated the defense would proceed on the motion for a JNOV. McCray argues that the withdrawal of the motion deprived the trial court the opportunity to review the weight of the evidence. "The contention that the verdict is against the overwhelming weight of the evidence must first be raised in the defendant's motion for a new trial." Hunter v. State , 187 So.3d 674, 678 (¶ 13) (Miss. Ct. App. 2016) (quoting Beckum v. State , 917 So.2d 808, 813 (¶ 14) (Miss. Ct. App. 2005) ). "A claim that the verdict was against the weight of the evidence must be first presented to the trial court since that court is best positioned to make an informed decision as to such issue, having had the benefit of hearing the evidence first-hand." Id. (quoting Collins v. State , 858 So.2d 217, 218-19 (¶ 5) (Miss. Ct. App. 2003) ).

¶ 13. A claim for ineffective assistance of counsel should only be addressed on direct appeal where "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact...