Thompson v. State
| Decision Date | 21 March 2017 |
| Docket Number | NO. 2015–KA–00623–COA,2015–KA–00623–COA |
| Citation | 230 So.3d 1044 |
| Parties | Dennis THOMPSON a/k/a Nucy a/k/a Ray Ray a/k/a Dennis Ray Thompson, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: CHOKWE ANTAR LUMUMBA, CHARLES EDWARD LAWRENCE III
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOSEPH SCOTT HEMLEBEN
EN BANC.
WILSON, J., FOR THE COURT:
¶ 1. Dennis Thompson was found guilty of murder and three counts of aggravated assault following a jury trial in the Oktibbeha County Circuit Court. On appeal, Thompson argues that the trial court (1) "improperly allow [ed] the State to introduce rebuttal testimony" and (2) erred "in refusing all ... [j]ury [i]nstruction[s] offered by the defense," including certain proposed instructions on the concept of reasonable doubt. We conclude that the trial court did not abuse its discretion by allowing a rebuttal witness or by denying the requested instructions. Therefore, we affirm Thompson's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶ 2. Around 1 a.m. on May 22, 2010, a large number of people had gathered near the intersection of Highway 182 and North Washington Street in Starkville. Groups were milling about and talking on both sides of Highway 182, primarily near a Texaco on the south side of the street and around Club 124, where a high school graduation party was just ending, on the north side of the street. Following a physical altercation near the intersection, gunshots were fired that resulted in the death of C.K. Randle and injuries to three others.
¶ 3. Thompson was arrested in connection with the shooting and was indicted for depraved heart murder, Miss. Code Ann.§ 97–3–19(1)(b) (Rev. 2006), and three counts of aggravated assault, Miss. Code Ann. § 97–3–7(2). Thompson's case proceeded to trial on October 27–31, 2014. At trial, the jury heard from eight witnesses to the shooting and/or the events leading up to it.
¶ 4. Lavsha King testified that she was standing in the Texaco parking lot when she heard a commotion and saw a crowd of at least ten to fifteen people walking toward Highway 182. The crowd was walking toward a man who was standing in the street. King did not know the man, but she said he was wearing a white shirt and had dreadlocks.1 King testified that a Chevrolet Avalanche drove up near the man, and the man spoke briefly to the driver and then "reached into the back seat" of the vehicle. When the man turned back toward the approaching crowd, he had a gun and "came out shooting." According to King, the man fired more than five shots as the crowd scattered. The man then dove through the back window of the Avalanche, which sped off west on Highway 182. King then realized that Randle, who was a friend of her brother, had been shot. King immediately called 911.
¶ 5. Azaria Ross testified that she was standing in the Texaco parking lot when her brother, Tavion Pegues, saw Thompson and said, "Let's get this n**** r." Mike Smith then walked up to Thompson, who was standing in the street, and punched him. Ross testified that Thompson stumbled back, and a group of five to ten people advanced toward him, but Thompson then regained his balance and pulled a gun from his pants. Ross did not actually see Thompson fire the gun, but she testified that she heard multiple gunshots immediately after she saw him pull the gun. Ross was struck by one of the bullets. Her brother and his friends took her to the hospital.
¶ 6. Smith's brother, Tony Harris, was also in the Texaco parking lot prior to the shooting. Harris testified that Smith and Thompson argued, Thompson approached Smith, and then Smith punched Thompson. Harris testified that Thompson then pulled out a gun and began shooting. Harris was struck by one of the bullets and was taken to the hospital.
¶ 7. Devierre Outlaw was standing a short distance down the street when the shooting occurred. He testified that he saw Smith punch Thompson in the face, and then Thompson pulled out a gun and started shooting. Outlaw testified that, because it was dark outside, he could not see the gun, but he saw the gunfire and heard the shots. Outlaw was shot in the elbow and in the abdomen, and an ambulance took him to the hospital.
¶ 8. McKenzie Rogers testified that he was across the street when he saw thirty to forty people approaching Thompson in the Texaco parking lot. Rogers testified that the group appeared to be "preparing to fight." According to Rogers, an SUV then pulled up near the Texaco in the middle of Highway 182, which blocked his view of Thompson. Rogers next heard five or six gunshots, and then the SUV sped off. Rogers saw that Randle had been shot and tried to perform CPR on him until law enforcement arrived.
¶ 9. Jason Zuber, a defense witness, testified that he was standing across the street from the Texaco when he saw Thompson arguing with a group of ten to fifteen men. Zuber testified that Thompson tried to walk away, but one of the men followed Thompson into Highway 182 and punched him in the face. According to Zuber, the rest of the group then rushed toward Thompson, blocking his view. Zuber then heard gunshots, but he could not see the shooter. Zuber claimed that he heard more than one set of gunshots and that the shots were coming from different locations and directions.
¶ 10. Christopher Harris, a close friend of Thompson, testified that he had been with Thompson since approximately 6 p.m. that evening and that he did not see Thompson with a gun at any time that night. On their way to the party at Club 124, Thompson and Harris stopped at the Texaco, and Thompson went inside to buy a drink and some chips. Harris testified that as Thompson exited the Texaco, Smith and several others outside began harassing Thompson. Harris testified that he stepped between Thompson and the group to try to avoid trouble. Then one of Thompson's "kin" pulled up in the street in a "truck," and Harris encouraged Thompson to get in the truck and leave. Harris testified that as Thompson walked toward the truck, Smith ran forward and hit Thompson. According to Harris, a crowd of twenty or thirty people then ran toward Thompson so that he could not see Thompson. Harris then heard gunshots, and the crowd took off running in different directions. Harris testified that he heard approximately six gunshots, but he believed that the shots came from different guns and from different directions.
¶ 11. Justin Yarbrough testified that Smith and several others had jumped him outside of Club 124 a short time before the shooting. According to Yarbrough, the group attacked him and kicked and beat him severely. Yarbrough never reported the incident to the police. He testified that he was sitting in a car nearby when shots were fired and that he did not see the shooting.
¶ 12. Officers from the Starkville Police Department were on the scene within minutes of the shooting. They recovered six shell casings within twenty feet of Randle's body. All were Smith & Wesson .40 caliber shells. No other type of shell casing was recovered.
¶ 13. After the defense rested, the State announced that it would call Landon Stamps, a former Starkville Police Department detective, as a rebuttal witness. Stamps had interviewed Thompson shortly after the shooting, and the State intended to introduce the approximately thirty-minute video of the interview through Stamps. Thompson objected that Stamps's testimony and the recorded interview were improper rebuttal and should have been offered in the State's case-in-chief. However, the State responded that the interview, in which Thompson admitted to firing a .40 caliber handgun about six times, was admissible to rebut the testimony of Harris and Zuber. The State explained that it did not introduce the interview in its case-in-chief because it considered it a self-serving claim of self-defense. However, once Harris suggested that Thompson did not have a gun, and Harris and Zuber suggested that there were other shooters, the video was proper rebuttal evidence. The trial judge overruled Thompson's objection but also ruled that Thompson would be allowed to offer appropriate surrebuttal evidence.
¶ 14. At Thompson's request, the trial judge agreed to view Thompson's recorded statement outside the presence of the jury before making a final ruling on its admissibility. While the video was being played for the judge, co-counsel for the defense—Mr. Lumumba and Mr. Lawrence—made the following statements:
Following a brief recess, the court asked counsel to again confirm that Thompson had "withdrawn his objections" to the recorded statement on the ground that it was improper rebuttal. Mr. Lawrence answered, "Yes, Your Honor, we have at this time."
¶ 15. Stamps then testified, and Thompson's recorded interview was played for the jury. During the interview, Thompson admitted that he had fired "about six" shots with a .40 caliber handgun. Thompson told Stamps that he had dropped the handgun at the scene before jumping into his cousin's vehicle. During the interview, Thompson did not...
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