McDowell v. State

• Decision Date: 22 February 2021
• Docket Number: No. 2019-KA-01260-COA,2019-KA-01260-COA
• Parties: James Wilson MCDOWELL a/k/a James McDowell, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

311 So.3d 1252

James Wilson MCDOWELL a/k/a James McDowell, Appellant

v.STATE of Mississippi, Appellee

No. 2019-KA-01260-COA

Court of Appeals of Mississippi.

February 22, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL

BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Harrison County Circuit Court jury found James Wilson McDowell guilty of first-degree murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev. 2014) and unlawful possession of a firearm by a felon pursuant to Mississippi Code Annotated section 97-37-5 (Rev. 2014) on November 9, 2018. The circuit court sentenced McDowell as a habitual offender to life imprisonment for both counts, to be served concurrently, without eligibility for parole in the custody of the Mississippi Department of Corrections (MDOC). On November 20, 2018, McDowell moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied McDowell's motion on February 4, 2019. After the circuit court denied the motion, McDowell appealed on August 12, 2019.¹ Finding no reversible error, we affirm.

Statement of the Facts

¶2. McDowell worked in Corpus Christi, Texas, as a construction worker while also pursuing a music career. He came to Biloxi, Mississippi, to finalize a record deal and receive advanced payment. When McDowell arrived, on February 21, 2017, his adopted sister, Charity Roxanne McDowell and her boyfriend, Michael "Mike" Taylor, picked him up at the bus station. McDowell was carrying a gun, a "Hi-Point .45," that he hid under the passenger seat in Charity's car. That night, McDowell stayed at Dennis Caldwell's house,² where Charity was also staying temporarily.

¶3. On the morning of February 27, 2017, Charity and Mike picked up their friend, Deverick Johnson. Ultimately, Mike dropped Deverick off near Lang Avenue. Later that day, Charity and Mike picked up McDowell from Dennis's house. McDowell immediately looked for his gun that he had left in Charity's car, but he could not find it. Charity informed McDowell that Deverick was the only other person who had been in the backseat of her car that day. They tried unsuccessfully to reach Deverick—by phone and by going to his house. Figuring that Deverick would be at his cousin, Devin Johnson's house, McDowell, Charity, and Mike decided to go to Devin's house located at 109 North Lang Avenue in Long Beach, Mississippi.³ McDowell planned to question Deverick about the missing gun.

¶4. Mike parked the car across the street from Devin's house. Deverick's car was not there, but Deverick was, sitting with his girlfriend, Jacqueline "Jackie" Waizenegger, in her silver Kia Optima.

¶5. According to McDowell, Mike exited Charity's car to speak to Deverick. Mike returned and told McDowell that Deverick stated that he did not have the missing gun.⁴ At that point, McDowell walked over to Jackie's vehicle and got into the backseat behind Deverick. McDowell said that he asked Deverick about the gun, but Jackie interrupted, stating that they did not know anything about a gun.

¶6. What happened next was in dispute. McDowell claimed that when he opened the door to leave the vehicle, Deverick stated, "I ain't got to steal nothing. I will take your shit," meaning that he was the type of person who robs people face-to-face. McDowell claimed he got out and saw Deverick reach under his seat. Thinking that Deverick was about to shoot him, McDowell then leaned back into the car and shot Deverick first. Jackie disputed this, claiming that after McDowell and Deverick had a conversation, McDowell shook Deverick's hand, and suddenly and without provocation, McDowell shot Deverick multiple times before running away from the vehicle.

¶7. McDowell ran back to Charity's car, firing gunshots at other people in the area as he was running, and they drove off. Charity, Mike, and McDowell fled to Dennis's house. All went into the house for a few minutes, and then Mike and Charity left. Although Mike wanted to call the police, Charity did not because she was afraid and wanted to protect her brother. Neither Mike nor Charity called the police.

¶8. Meanwhile, Officer James Balius and Battalion Chief Pete McGoey responded to a 911 call from the site of the shooting. Upon their arrival, they found a black male, later identified as Deverick, seated in the front passenger seat of Jackie's car. They checked to see if Deverick was responsive; he was not, and he died at the scene.⁵ Karenza Denson, the Gulfport Police Department's crime scene technician, collected three .45-caliber Hornady shell casings from Jackie's car. She also found a Hi-Point pistol under Deverick's seat.

¶9. The police went to Dennis's house looking for Mike and Charity. Dennis was there along with McDowell who gave police a false name, "Raul McDowell." Police informed them that there had been a murder in Long Beach and that Mike and Charity were suspects. Dennis called Charity to tell her that the police were at the house. When Charity and Mike returned, they were arrested for being accessories after-the-fact to murder.⁶ Investigator Patrick Craig interviewed Charity and Mike who identified James McDowell as the shooter. The police also learned that "Raul McDowell" was actually James McDowell and that they returned to Dennis's house only to find that McDowell had fled. The police, however, did find McDowell's gun hidden underneath the steps of Dennis's back porch.⁷ At trial, McDowell testified that he hid the gun under the steps. Thereafter, Detective Quinnelly received a SWAT text that McDowell was located at Carl Tate's house, where the SWAT team arrested him.

¶10. During his interview with the police, McDowell said that on February 27, 2017, the day of the shooting, he had been babysitting Dennis's children all day. At trial, McDowell subsequently admitted that he shot Deverick.

Procedural History

¶11. On June 11, 2018, a Harrison County grand jury indicted McDowell for one count of first-degree murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a)⁸ and one count of unlawful possession of a firearm by a felon pursuant to Mississippi Code Annotated section 97-37-5.⁹ On September 27, 2018, the State moved to amend McDowell's indictment to add a habitual offender charge pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015)¹⁰ based on the following three crimes: (1) on April 29, 2008, McDowell was convicted of possession of a controlled substance (a felony) and was sentenced to a term of fifteen years in the custody of the MDOC; (2) on April 29, 2008, McDowell was convicted of shooting into a dwelling and was sentenced to a term of ten years in the custody of the MDOC; and (3) on December 2, 2013, McDowell was convicted of unlawful possession of a firearm by a felon and was sentenced to a term of ten years in the MDOC. The court granted the amendment on November 6, 2018.

¶12. The trial took place on November 6, 2018, through November 9, 2018. The State presented seventeen witnesses, including key witnesses Charity, Mike, and Jackie, who all testified that McDowell shot Deverick without provocation and ran away from the car while shooting at other people. Charity and Mike testified that McDowell pointed the gun at Mike to force him to drive away from the scene. The other witnesses were persons at the scene of the crime, law enforcement, and expert witnesses. After the State rested its case-in-chief, McDowell's counsel moved for a directed verdict on first-degree murder and possession of a firearm by a felon because the State failed to meet its burden to prove the elements for each count. The court, considering the evidence before it, denied McDowell's motion. McDowell testified, as the only witness in his defense, that he did shoot Deverick but that he did so in self-defense. After the four-day trial, the jury found McDowell guilty of first-degree murder and unlawful possession of a firearm by a felon. McDowell was sentenced to life imprisonment for both counts, to run concurrently, without eligibility for parole or early release in the custody of the MDOC. The final judgment was entered on November 21, 2018.

¶13. McDowell filed a motion for judgment notwithstanding the verdict (JNOV) or a new trial on November 20, 2018, arguing (1) that the evidence was insufficient to support the jury verdicts;¹¹ (2) that the guilty verdicts were against the weight of the evidence; (3) that all of McDowell's pretrial motions that were denied in whole or in part should have been granted; (4) that the court admitted inadmissible evidence; (5) that the court erred in refusing McDowell's jury instructions; (6) that the court erred in all of its evidentiary rulings and rulings on matters of law that McDowell opposed; (7) that the court erred in overruling all of McDowell's objections made at pretrial hearings and the trial; and (8) that the court erred in sustaining all the objections made by the State at pretrial hearings and the trial. On February 4, 2019, after a hearing on the matter, the court denied McDowell's motion.

¶14. McDowell moved to file an out-of-time appeal on May 29, 2019. On August 8, 2019, the circuit court granted McDowell's motion to proceed out of time, stating that McDowell was unaware that the order denying his new trial had been entered and was under the mistaken impression that his court-appointed counsel had filed the necessary pleadings to perfect his direct appeal.¹²

¶15. McDowell appealed on August 12, 2019,¹³ raising the following issues: (1) whether the court erred when it failed to sustain McDowell's motion for a directed verdict based on the insufficiency of the evidence to support the State's case regarding first-degree murder; (2) whether the circuit court committed reversible error when the court refused a jury instruction of self-defense; (3) whether the...