Tillis v. State

• Decision Date: 19 August 2014
• Docket Number: No. 2012–KA–00854–COA.,2012–KA–00854–COA.
• Citation: 176 So.3d 37
• Court: Mississippi Court of Appeals
• Parties: Darrell TILLIS, Appellant v. STATE of Mississippi, Appellee.

176 So.3d 37

Darrell TILLIS, Appellant v. STATE of Mississippi, Appellee.

No. 2012–KA–00854–COA.

Court of Appeals of Mississippi.

Aug. 19, 2014.

Rehearing Denied June 23, 2015.

Certiorari Denied Oct. 15, 2015.

Jane E. Tucker, Jackson, attorney for appellant.

Office of the Attorney General by Lisa L. Blount, attorney for appellee.

Before LEE, C.J., CARLTON and MAXWELL, JJ.

Opinion

CARLTON, J., for the Court:

¶ 1. A Hinds County grand jury indicted Darrell Tillis for the murder of Michael Olowo–Ake. After hearing all the testimony presented at Tillis's trial, a jury found Tillis guilty of manslaughter pursuant to Mississippi Code Annotated section 97–3–35 (Rev. 2006). On appeal, Tillis raises the following issues: (1) whether the circuit court erred by allowing the coroner to testify and the State to admit the coroner's report; (2) whether the circuit court erred by overruling Tillis's objection to an improper comment made by the State during closing argument; (3) whether Tillis was denied due process and a fair trial; (4) whether the circuit court erred by denying Tillis's request for Olowo–Ake's National Crime Information Center (NCIC) report;¹ (5) whether Tillis should have been acquitted as a matter of law pursuant to the Weathersby rule;² (6) whether there was sufficient evidence to support Tillis's conviction; (7) whether the verdict was against the overwhelming weight of the evidence; (8) whether the circuit court erred by refusing to allow Tillis to physically demonstrate how the shooting occurred; (9) whether the State committed prosecutorial misconduct by eliciting improper witness testimony; and (10) whether cumulative error requires the reversal of Tillis's conviction and sentence. Finding no error, we affirm.

FACTS

¶ 2. On Sunday, April 11, 2010, Tillis and Olowo–Ake met at a Texaco in Jackson, Mississippi, so Tillis could purchase two pounds of marijuana from Olowo–Ake. According to the testimony given by Nathaniel Singleton, Olowo–Ake picked Singleton up the morning of the shooting, and the two men headed to the Texaco. Singleton testified that Olowo–Ake parked his truck by a gas pump, and then Tillis³ drove up and parked on the other side of the pump. Tillis took Singleton's seat in the front of Olowo–Ake's truck and began looking through a bag filled with marijuana that Olowo–Ake had in his truck. Tillis asked whether the marijuana in the bag was all that Olowo–Ake had with him, and Olowo–Ake answered affirmatively. Because Singleton did not want to be involved in the drug transaction, Olowo–Ake gave him some money to purchase a cigar inside the store.

¶ 3. When Singleton exited the store, he testified that Tillis had Olowo–Ake “on the back tire of the truck between the pump and the truck” and was hitting Olowo–Ake. Singleton testified that he ran up to hit Tillis when Tillis “pulled the pistol out on me and told me—he cursed at me and told me to get back.” At that point, according to Singleton's testimony, Olowo–Ake stood up from his position on the ground, and Tillis grabbed Olowo–Ake by his shirt and threw him inside the truck. Singleton claimed that Tillis then pointed the gun at Olowo–Ake and said, “You better give it to me. You better give it to me.” Singleton further testified that Tillis then shot Olowo–Ake once. Singleton stated that, at the time the gun fired, Tillis was on top of Olowo–Ake in the truck. Singleton testified that he could see clearly inside the truck because he was standing right beside the vehicle.

¶ 4. Once he heard the gunshot, Singleton ran into the Texaco and asked for help. He testified that, when he exited the Texaco, Tillis again pointed the gun at him, then at Olowo–Ake, and said, “You better give it to me.” Singleton testified that Tillis then fired another shot, which did not hit Olowo–Ake. Singleton further testified that Tillis grabbed the bag containing the marijuana and some money from Olowo–Ake's left pocket, and then Tillis drove away from the Texaco. Singleton testified that Olowo–Ake was not known to carry a gun and that he did not see Olowo–Ake with any kind of weapon during the fight.

¶ 5. Scottie Morton, who lived in a nearby apartment complex, pulled into the Texaco just after the shooting. Testimony in the record reflects that Morton knew Singleton and Olowo–Ake, and when Singleton told Morton about the shooting, Morton called Olowo–Ake's brother, Anthony. Like Singleton, Morton testified that Olowo–Ake was not known to carry a gun, and Morton testified that he did not see a gun or a knife in Olowo–Ake's truck when he arrived at the Texaco. When Olowo–Ake's brother, Anthony, arrived at the Texaco, he drove Olowo–Ake's truck to a nearby Citgo gas station, where he had seen an ambulance in the parking lot. After police arrived at the Citgo, paramedics rendered first aid to Olowo–Ake. They then transported Olowo–Ake to the hospital, where he was pronounced dead.

¶ 6. The jury also heard testimony from Gregory Lott and Jack Evern, who pulled into the Texaco just before the shooting. Lott parked his truck by the front door of the Texaco and entered the store while Evern remained in the truck. Lott testified that he saw two men, later identified as Tillis and Olowo–Ake, fighting by the gas pump as he exited the Texaco and walked back to his truck. According to Lott's testimony, Tillis appeared to be waving a gun, and Olowo–Ake appeared to be defending himself from Tillis. Lott got back into his truck, and he testified that, as he and Evern drove away, he heard two gunshots.

¶ 7. Another witness, Evern, also testified to seeing the altercation at the Texaco. Evern testified that he saw three men in the area of the gas pumps as he and Lott pulled into the Texaco. Evern saw Olowo–Ake pumping gas and Tillis in the passenger seat of Olowo–Ake's truck “fumbling with something.” Evern testified that Olowo–Ake and Tillis exchanged a few words, and then Olowo–Ake walked over to Tillis and took several swings at Tillis. According to Evern's testimony, Olowo–Ake and Tillis began to fight, and Evern saw Tillis with a pistol. Evern testified that Tillis shot Olowo–Ake once, then shot Olowo–Ake again, and then Evern and Lott left the Texaco. Evern further testified that he never saw a weapon of any kind in Olowo–Ake's possession.

¶ 8. The jury also heard testimony from the Defendant, Tillis, who stated that he brought no gun with him to the Texaco the day of the shooting. Tillis testified that, after inspecting the marijuana in Olowo–Ake's truck, he decided not to purchase any. He exited the truck and approached Olowo–Ake, who was still pumping gas. Tillis testified that Olowo–Ake became very upset when he learned that Tillis did not want to purchase any of the marijuana. According to Tillis's testimony, a heated exchange followed, and then Olowo–Ake reached for a gun. Tillis testified that he was able to snatch the gun from Olowo–Ake's grasp and that he held the gun in one hand as he tried to hold Olowo–Ake back with his other hand.

¶ 9. Tillis testified that he told Olowo–Ake, “Man, get back, man, before you make me shoot you.” Tillis testified that Olowo–Ake tried to regain possession of the gun, but Tillis pushed him away and told him to “stop” and to “get back.” According to Tillis's testimony, he was scared and terrified by the situation. He further testified that Olowo–Ake fell to the ground at one point during the altercation, but Tillis maintained that he never hit Olowo–Ake. Tillis claimed that he only wanted to keep Olowo–Ake from regaining possession of the gun. He also claimed that he had no memory of consciously pointing the gun at Singleton.

¶ 10. Tillis further testified that Olowo–Ake got up from the ground and dove back into his truck. Thinking that Olowo–Ake might be reaching for another weapon, Tillis testified that he tried to grab Olowo–Ake, and the gun “just went off.” Tillis stated that he leaned over to check on Olowo–Ake when the gun accidentally fired again into the truck's seat. Tillis maintained at trial that the gun was not pointed at Olowo–Ake and that he was not trying to shoot Olowo–Ake for a second time. Following the shooting, Tillis got into his vehicle and left the Texaco. At trial, he stated that he left the Texaco because he feared retaliation from Singleton. He further testified that, when he learned Olowo–Ake's family was looking for him, he headed to New Orleans, Louisiana. Although police later found no weapon or marijuana in Olowo–Ake's truck, Tillis testified that he left both the gun and the marijuana on the truck's floorboard.

¶ 11. In their investigation, police found no physical evidence at the Texaco. When they searched Olowo–Ake's truck at the Citgo, they failed to find a weapon or any marijuana. However, the police discovered two 9mm-caliber spent cartridge casings in the driver's seat of Olowo–Ake's truck, and Olowo–Ake's autopsy led to the recovery of a projectile from his body.

¶ 12. Detective Kimberly Brown, who responded to the shooting, testified that she spoke with the clerk at the Texaco. Although the Texaco's surveillance recorder was not working the day of the shooting, Detective Brown was able to view surveillance video from an adjacent business.

The business's recording could not be converted and was only viewable on the store's own equipment. Detective Brown testified that the images from the video were fuzzy, but she observed a scuffle between two people at Olowo–Ake's truck. However, due to the video's poor quality, Detective Brown was unable to clearly identify anyone in the video or to see a gun.

¶ 13. Detective Brown attempted to obtain a copy of the surveillance video, but each attempt proved unsuccessful. On her third attempt to convert the video to a readable format, she learned that the business's recording system had “rolled over” and recorded over the footage from the day of Olowo–Ake's shooting. Detective Brown further testified that during her investigation she showed Singleton a photo lineup...