Shumpert v. State, No. 2004-KA-02533-SCT.

• Decision Date: 29 June 2006
• Docket Number: No. 2004-KA-02533-SCT.
• Parties: Jamarcus D. SHUMPERT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

935 So.2d 962

Jamarcus D. SHUMPERT v. STATE of Mississippi.

No. 2004-KA-02533-SCT.

Supreme Court of Mississippi.

June 29, 2006.

Rehearing Denied August 24, 2006.

COPYRIGHT MATERIAL OMITTED

John Carl Helmert, Jr., Clarksdale, attorney for appellant.

Office of the Attorney General by Jose Benjamin Simo, attorney for appellee.

Before COBB, P.J., DICKINSON and RANDOLPH, JJ.

COBB, Presiding Justice, for the Court.

¶ 1. Jamarcus D. Shumpert, Conigan Judon, and Quatero Middlebrooks were indicted for the depraved heart murder of Jimmy Collier. Judon and Middlebrooks pleaded guilty to a reduced charge, and a jury found Shumpert guilty of manslaughter by culpable negligence. Aggrieved by the outcome of the trial, Shumpert appeals to this Court. We affirm the trial court.

FACTS

¶ 2. On the evening of September 26, 2003, Shumpert, Judon and Alex Dean were sitting on Lisa Southward's porch in Tupelo, Mississippi. Collier arrived in front of the house, in a car driven by Stephen Tucker, then walked up to the porch and asked to purchase cocaine. Shumpert said there were too many police officers around and asked Collier to leave.

¶ 3. As Collier was leaving, a vehicle driven by Southward approached with Middlebrooks in the passenger seat. Collier approached the driver's side door of the vehicle to speak to Southward, and Shumpert shouted from the porch to Middlebrooks, telling him to hit Collier. Middlebrooks stepped out of the vehicle and struck the side of Collier's head or his neck.

¶ 4. At this point, the witnesses' testimony begins to diverge. Shumpert and Tucker said they saw Collier reach for something in his pants, and Shumpert said he hit Collier because he perceived this movement as threatening to Middlebrooks' safety. However, according to Dr. Stephen Hayne, a physician practicing in the fields of forensic and anatomic pathology, no weapon was found on Collier's person during examination. Tommy Morris, another witness, testified that Middlebrooks drove away after hitting Collier. Middlebrooks and Southward said Middlebrooks got back into the car after hitting Collier. Middlebrooks said he was not threatened by Collier.

¶ 5. After Shumpert struck Collier, causing him to fall to the pavement, there was testimony that Judon stomped or kicked the victim in the head, although Judon himself testified that he merely placed his foot on Collier's face. Morris testified that Shumpert participated in kicking Collier in the head, but no other witnesses saw this happen, and Judon testified that Shumpert said nothing that motivated him to attack Collier. After the attack, Shumpert and Judon then turned and ran because, according to Shumpert, they thought Collier had some sort of weapon. Shumpert testified later that Collier never did anything to threaten, insult, or attack him. Shumpert was seen running across some railroad tracks with Judon after this incident, but he later returned to the porch and was told to leave. The next day Collier died from trauma to the head.

¶ 6. Judon and Middlebrook pleaded guilty to reduced charges. A jury found Shumpert guilty of manslaughter by culpable negligence, and he was sentenced to 20 years in the custody of the Mississippi Department of Corrections with five years suspended. The trial court subsequently rejected Shumpert's motion for a judgment notwithstanding the verdict or for a new trial. He now appeals to this Court, raising numerous issues which we have consolidated into the following categories: (1) sufficiency of the evidence; (2) errors pertaining to the jury instructions; (3) exclusion of "theft" evidence; (4) prosecutorial misconduct; and (5) cumulative error.

ANALYSIS

I. SUFFICIENCY OF THE EVIDENCE

¶ 7. Shumpert argues the evidence is insufficient because he committed an intentional act, which cannot form the basis for a conviction of manslaughter by culpable negligence. In other words, if the jury was going to convict him of anything, it should have been depraved heart murder; therefore, the jury verdict was irrational. Hence, Shumpert argues the trial court erred when it refused to grant his motion for a directed verdict, a peremptory instruction, or a judgment notwithstanding the verdict. On the issue of jury irrationality, the United States Supreme Court has said:

inconsistent verdicts ... should not necessarily be interpreted as a windfall to the Government at the defendant's expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury's error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution's Double Jeopardy Clause.

Inconsistent verdicts therefore present a situation where "error," in the sense that the jury has not followed the court's instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.

... there is no reason to vacate respondent's conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.

United States v. Powell, 469 U.S. 57, 65, 69, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (citations omitted).

¶ 8. This Court has adopted the rule that review of the sufficiency of the evidence is adequate protection from jury irrationality. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). Further, a motion for J.N.O.V., peremptory instruction, and directed verdict all challenge the legal sufficiency of the evidence. Hawthorne v. State, 835 So.2d 14, 21 (Miss. 2003). When reviewing the sufficiency of the evidence, this Court must ask whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Bush v. State, 895 So.2d 836, 843 (Miss.2005). The proper remedy for a verdict based on insufficient evidence is for this Court to reverse and render. Id.

¶ 9. In support of his argument Shumpert first cites Hurns v. State, 616 So.2d 313, 315 (Miss.1993), in which the defendant was convicted for beating a fellow inmate to death in jail. The medical examiner determined the cause of death to be massive trauma to the brain as a result of multiple blows to the head with a blunt object in a short period of time, and Hurns was found guilty of murder after the trial court denied his request that the jury be given an instruction for manslaughter by culpable negligence. Id. at 320. This Court rejected his argument on appeal, holding that the murder instruction was proper because his acts were intentional, not reflecting culpable negligence, defined as a flagrant and reckless disregard for the safety of others, or willful indifference to the injury liable to follow. Id. ¶ 10. Shumpert also cites Goff v. State, 778 So.2d 779 (Miss.Ct.App.2000). The defendant in that case was convicted for hitting a bar patron and kicking him twice. Id. at 781. The jury was instructed on both murder and manslaughter, and the defendant requested an instruction on manslaughter by culpable negligence. Id. at 782. The court held he was not entitled to a culpable negligence instruction because his acts were intentional, rather than evidencing culpable negligence. Id.

¶ 11. The third case cited by Shumpert is Sanders v. State, 781 So.2d 114 (Miss. 2001). This case concerned a defendant found guilty of deliberate design murder. Id. at 116. He argued that the trial court erred by not instructing the jury on manslaughter by culpable negligence. Id. at 119. This Court rejected that argument, pointing out that all the testimony revealed that the defendant intentionally hit the victim with a hammer, making an instruction on manslaughter by culpable negligence inappropriate. Id.

¶ 12. Shumpert argues that these cases require this Court to reverse and render. He claims that the State failed to prove a prima facie case for depraved heart murder, and should not have been allowed to fall back on manslaughter by culpable negligence when that instruction does not fit the facts of this case. The State made a general argument that the evidence was sufficient to sustain the verdict.

¶ 13. All three cases cited by Shumpert are distinguishable. In each, the defendant requested the instruction of manslaughter by culpable negligence, but that instruction was not given to the jury. In the current case, the jury was instructed on both depraved heart murder and culpable negligence manslaughter, and decided that manslaughter was more appropriate. In addition, there was conflicting evidence at trial, which makes it implausible on appeal to ascertain what version of the story the jury believed. Shumpert is asking this Court to make the broad declaration that intentional acts cannot form the basis for culpable negligence. However, "[c]ulpable negligence must be ascertained from the facts of each case, and no ironclad statement can be set forth as applicable to all classes of cases." Sims v. State, 149 Miss. 171, 115 So. 217, 219 (1928).

¶ 14. Shumpert also seeks to make a distinction between an intentional act leading to death and a negligent, or accidental act leading to death, arguing that because he intended to deliver the blow to Collier, he cannot be guilty of manslaughter by culpable negligence. This attempted distinction is flawed because manslaughter by culpable negligence is "such gross negligence ......