White v. State
| Docket Number | 2021-KA-00818-COA |
| Decision Date | 08 August 2023 |
| Parties | JOE WHITE AND JUSTIN WHITE APPELLANTS v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY: DOUG EVANS
BEFORE WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
¶1. Joe White and Justin White were jointly tried and convicted by a jury of drive-by shooting and shooting into a dwelling house. They were each sentenced to serve twenty-five years for drive-by shooting and ten years for shooting into a dwelling, with the sentences set to run consecutively in the custody of the Mississippi Department of Corrections. The trial court denied their motion for judgment notwithstanding the verdict or, in the alternative, a new trial. The Whites now appeal and assert two issues: the evidence was insufficient to support the convictions, and the verdicts were contrary to the overwhelming weight of the evidence. Finding no error, we affirm.
¶2. On August 22, 2019, a twelve-year-old boy named Eric and his brother TyShawn rode a motorcycle to their aunt Sonja's home on 427 Goss Road in Winston County, Mississippi, for the purpose of visiting with family members. On the way to the home, Eric realized they were being followed by a white SUV. When they arrived, the SUV passed the home but turned around and then on the second pass, individuals in the vehicle began shooting into the home. Eric was shot three times, and another twelve-year-old boy, Sonja's son Kellon, was also shot. Family members called 911 immediately and loaded the injured boys in a vehicle to drive toward and meet the ambulance.
¶3. The police responded to the scene and began an investigation. That investigation led them to three individuals, Joe White, his brother Justin White, and LaKelvin Hughes. The police took statements from Joe and LaKelvin and charged all three men with two crimes: drive-by shooting and shooting into a dwelling house.
¶4. On May 18, 2020, Joe, Justin, and LaKelvin were each indicted by a Winston County grand jury for drive-by shooting (Count I) in violation of Mississippi Code Annotated section 97-3-109(1) (Rev. 2014) and shooting in a dwelling house (Count II) in violation of Mississippi Code Annotated section 97-37-29 (Rev. 2014).
¶5. The trial began on May 6, 2021. The State called Eric, now fourteen years old, as its first witness. Eric testified that he lived with his mother on Thompson Road, but his aunt Sonja and cousins lived on Goss Road. On August 22, 2019, his older brother TyShawn had a new motorcycle, and Eric was going to ride it with him. They put on their helmets to ride the motorcycle from Eric's mother's home to his aunt's home. During the ride, Eric testified, "[W]e realized we was getting followed." As they drove, Eric "kept looking back" and "kept seeing" a "white SUV" following them. Eric explained as they would "speed up," the driver of the SUV would "speed up." Eric identified a photograph of the white SUV as similar to the one that had followed them. After they arrived at his aunt's home on Goss Road, he saw the white SUV pass the house but then turn around and come back toward them. As the SUV passed this time, "they started shooting." Eric was shot three times, and his cousin Kellon was also shot. Eric passed out from his injuries but would wake up at different times. He remembered his family members carrying him from the house to a vehicle so they could get to the ambulance faster. He also remembered arriving at a medical facility but then being "life flighted" to Jackson for surgeries. Eric testified that he knew Joe and Justin because they used to ride the bus with him and "his brothers."
¶6. During cross-examination, Eric was repeatedly asked why he named Joe and Justin as the shooters when he never saw who was driving the white SUV, who the passengers were in the white SUV, and never saw who actually shot them. The following exchange occurred:
¶7. During redirect examination, Eric was asked about a past problem between his brother and Joe. The defense objected as to relevance and the questions being "outside the scope of cross-examination." The court overruled the objection and allowed the testimony as potential evidence of motive. Eric indicated he knew that his brother TyShawn had some kind of problem with Joe: "they wasn't always as cool." He did not know the exact nature of the problem between them.
¶8. The State called Kellon as its next witness. Kellon testified he was twelve years old at the time of the shooting. He indicated he lived on Goss Road with his mom, Sonja. Kellon testified he had just arrived home from visiting a relative when he "noticed that Eric and TyShawn had pulled up." He stated he was "greeting one of them" when he heard a "shot." "I got hit in the neck," he said. He explained how family members loaded him and Eric into a car in an effort to "go to the hospital," but they "met the ambulance on our way there." He testified he was inside when he was shot and did not see any vehicle or who did the shooting.
¶9. The State called Keith Alexander as its next witness. On August 22, 2019, Alexander was the chief deputy for the Winston County Sheriff's Department and had been dispatched to the Goss Road address in response to the shooting. On the way, he stopped at a Chevron station where the ambulance workers were loading the victims. He learned there had been two twelve-year-old victims of the shooting: Eric and Kellon. He took photographs of the "kids" in the ambulance in an effort to document their gunshot wounds. Without objection, the photographs were admitted into evidence. Alexander testified he spoke to both victims and asked each of them who shot them. He indicated "one of the kids" at first said, "I'm not sure," but then said, "I think it was Joe White." The "one . . . on the stretcher" indicated it was "Joe White." Alexander testified he received an anonymous tip from a caller on his cell phone, which allowed him to locate the white Tahoe (which had been impounded). Finally, he identified his body-camera footage from meeting the victims at the ambulance. That footage was admitted into evidence and played for the jury. Alexander was questioned extensively on cross-examination about whether the video confirmed that the victims indicated Joe or another person as the individual who had shot them.
¶10. The next witness called was Jimmy Lovern, an investigator with the Winston County Sheriff's Department. He first went to the Winston County hospital where he saw both victims and asked each boy one question: who shot you? Afterward, he went to the crime scene on Goss Road and noticed a 9mm shell casing in the driveway, which was collected that night and put into evidence without objection from the defense. It was dark at the time, so he left. "[B]ased on the statement" he received from the "two children," Joe was identified as a suspect. Joe was then interviewed at the station. Lovern testified that he continued to receive calls about the shooting. He "actually talked" with the owner of the white Tahoe, Chancie Ware, along with Justin and LaKelvin. Lovern was involved in the impoundment of the white Tahoe and noticed and collected a 9mm shell casing on the front dash. It was introduced into evidence without objection. Next, Lovern testified that after he obtained a search warrant, he went to Justin's residence and collected a 9mm pistol from a box located in his vehicle. It, too, was introduced into evidence without objection. Finally, Lovern explained that he returned to the crime scene the following morning and noticed bullet holes in the front of the house. He collected spent projectiles from a cinder block from under the home and another one from inside a wooden cabinet inside the home. Both of those projectiles were introduced into evidence without objection. He explained he took all the items he collected to the Mississippi Crime Laboratory for examination.
¶11. The State called Sonja as its next witness. On the day of the shooting, she was sitting on her couch when she heard her two nephews arrive at her house by motorcycle. Her two sons and other family members (including a three-year-old and a one-year-old) were at her house, too. She screamed for everyone to get down when she first heard the shooting but did not realize it was her house being shot toward. She looked up and saw her son Kellon "gushing blood from his neck." They then discovered her nephew Eric had been hit. He had run and was on the floor in the bathroom. One of her sons "grabbed" the babies and took them to the back of the house. Sonja described the scene. The babies were "crying," and everyone was "hollering" and "hysterical." They got Kellon outside and realized Eric was not outside. Someone...
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