IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-KA-00116-COA
CONNELL GRAY A/K/A CONNELL GRAY, JR. APPELLANT A/K/A CORNELL GRAY, JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/16/2019 TRIAL JUDGE: HON. ALBERT B. SMITH III COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON KAY HARTMAN DISTRICT ATTORNEY: BRENDA FAY MITCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/25/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND SMITH, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Connell Gray was convicted of first-degree murder in violation of Mississippi Code
Annotated section 97-3-19(1)(a) (Rev. 2014) and sentenced to life in the custody of the
Mississippi Department of Corrections (MDOC). Gray filed a motion for judgment
notwithstanding the verdict or, in the alternative, a new trial. The Coahoma County Circuit
Court denied Gray’s motion. Gray appeals, challenging the sufficiency and the weight of the
evidence. Finding no error, we affirm.
FACTS ¶2. The events leading up to the murder of Myrtle Messenger on March 14, 2015, involve
two distinct groups of friends. Michael Messenger Jr.,1 James “Scoop” Bryant, Roger Grace,
Cornelius Magee, and Britney King (Scoop’s girlfriend) had been riding around together on
the day Myrtle was shot. A separate group consisting of Gray, Dantrail “Pole” Jackson, and
Jamaal Stafford had been hanging out together before Myrtle was shot. Two separate
altercations involving members of each group occurred on the day of Myrtle’s death. The
second altercation stemmed from the first one.
¶3. The day Myrtle was killed, Michael, Scoop, Grace, and Magee were drinking and
riding around in Clarksdale when they pulled over so Michael could talk to a girl. Pole
appeared on the scene and threatened to shoot and kill Michael because Michael was talking
to his girlfriend. Gray was not present at that time.
¶4. Michael and his friends drove away and continued riding around. They eventually
ended up at the Benny Gooden Estates apartments where there was another altercation with
Pole. It became physical when Pole pushed Michael, who left the apartments with Shun
Sykes and had no other interaction with anyone from either of the two groups that evening.
Scoop then left King waiting in the parking lot with Grace and went back into the apartment
with Pole. Upon his return to the parking lot, Scoop told King that he knocked Pole out and
took his gun. King testified that all of the men then came out to the parking lot. She said she
saw Gray get out of a car before Scoop’s cousin hit him in the face. King left, dropped
Scoop off a gas station, and went to Grace’s house. Later that night, King agreed to drive
1 Michael is Myrtle’s grandson. He also lived with her.
2 Grace to see his girlfriend in Jonestown, Mississippi. While they were on the way, sometime
between 10 p.m. and 12 a.m. they passed Gray and Pole in a vehicle.
¶5. Gray did not testify, but the jury heard a taped interview of him at the Clarksdale
Police Department. Gray admitted to officers that he was at the apartment, but he stated that
he was not involved in the fight and did not get hit. He said that someone told him about
Pole’s fight with Scoop and that he heard Scoop say he had taken Pole’s gun. Gray said he
knew about the altercation between Michael and Pole earlier in the day and he knew Pole
was angry, but he did not know what the fight was about.
¶6. After the altercation at the apartments, Pole acquired another gun. Gray denied
knowledge of Pole’s gun, but Gray admitted that he also obtained a gun sometime that day.
Gray said that he and Pole walked to Myrtle and Michael’s house between 10 and 11 p.m.
Gray stated that he had no idea that Pole planned to kill anyone. Gray claimed that he stood
on the street while Pole knocked on the door. According to Gray, Pole shot Myrtle when she
opened the door. Gray admitted fleeing the scene, running through an alley, and throwing
his gun in the brush after hearing the shot. Gray also admitted meeting up with Pole again
after the shooting, but he said that Pole got in a car and left by himself.
¶7. After the murder, Deputy Stephen James of the Coahoma County Sheriff’s
Department encountered four men in the alley near Myrtle and Michael’s house. They were
detained and released after a call to dispatch to see if there were outstanding warrants. Gray
was not one of these four men, although Pole was. Officers also recovered two guns in the
same alley. Gray told officers that the semiautomatic pistol was his, but King testified that
3 she had seen him with a revolver earlier in the day. A ballistics expert determined that the
revolver was the murder weapon. Two shots had been fired from the revolver and none from
the semiautomatic pistol.
¶8. On December 9, 2015, Gray was indicted and charged with one count of first-degree
murder with an added firearm enhancement. After a jury trial in December 2019, Gray was
convicted of first-degree murder and sentenced to life in the custody of the MDOC. The
circuit court denied Gray’s motion for judgment notwithstanding the verdict or, in the
alternative, a new trial, and he now appeals.
STANDARD OF REVIEW
¶9. “In reviewing a challenge to the legal sufficiency of the evidence, we consider all of
the evidence in the light most favorable to the prosecution and accept all evidence supporting
the verdict as true.” Dampeer v. State, 989 So. 2d 462, 464 (¶7) (Miss. Ct. App. 2008). We
will not disturb a conviction based upon circumstantial evidence “unless it is opposed by a
decided preponderance of the evidence.” Leflore v. State, 535 So. 2d 68, 70 (Miss. 1988).
“When reviewing a denial of a motion for a new trial based on an objection to the weight of
the evidence, we will only disturb a verdict when it is so contrary to the overwhelming
weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”
Anderson v. State, 62 So. 3d 927, 944 (¶60) (Miss. 2011).
DISCUSSION
I. Whether there was sufficient evidence to find Gray guilty of first- degree murder.
¶10. Gray argues that there was insufficient evidence to prove that he committed any act
4 in furtherance of the murder. He submits that there is no evidence to show that he had prior
knowledge of Pole’s criminal intent, that he participated in the crime in any way, or that he
committed the homicide. Gray asserts that he was merely present near the scene.
¶11. Gray was convicted pursuant to section 97-3-19(1)(a). “To prove first-degree murder,
the State must show that a person was killed ‘without the authority of law’ and that the
killing was ‘done with the deliberate design to effect the death of the person killed[.]’”
Adams v. State, 291 So. 3d 405, 409 (¶11) (Miss. Ct. App. 2020) (quoting section 97-3-
19(1)(a)). Gray did not have to pull the trigger to be found guilty. “When two people act in
concert or when one person aids another in committing . . . a crime, both are equally guilty
as principals in the eyes of the law.” Lipsey v. State, 756 So. 2d 823, 825 (¶4) (Miss. Ct.
App. 2000); see also Malone v. State, 486 So. 2d 360, 364 (Miss. 1986) (holding that “an
accessory before the fact or one who aids and abets . . . participates in the design of the
felony”).
¶12. Gray argues that the State produced no evidence sufficient to sustain his conviction.
Indeed, there is no direct evidence linking Gray to the crime for which he was convicted. But
“direct evidence is unnecessary to support a conviction so long as sufficient circumstantial
evidence exists to establish guilt beyond a reasonable doubt.” Campbell v. State, 798 So. 2d
524, 528 (¶12) (Miss. 2001) (quoting Underwood v. State, 708 So. 2d 18, 35 (¶49) (Miss.
1998). “[C]ircumstantial evidence is evidence which, without going directly to prove the
existence of a fact, gives rise to a logical inference that such fact does exist.” Keys v. State,
478 So. 2d 266, 268 (Miss. 1985). We note that a jury may also infer participation based on
5 one’s presence, companionship, and conduct before and after the offense. Hubbard v. State,
187 So. 2d 885, 886 (Miss. 1966).
¶13. In support of his argument Gray cites Steele v. State, 544 So. 2d 802, 809 (Miss.
1989), where the Supreme Court reversed a conviction based solely upon circumstantial
evidence. Steele was caring for a small child who died from massive head injuries. The
State’s theory was that Steele physically abused the child, causing his death; Steele’s theory
was that the injuries were caused when the child fell out of the bed. Physical evidence did
not support either theory. Testimony from physicians regarding the cause of death was
inconsistent. The Supreme Court held that the State proved only that the child’s injuries were
probably not caused by a fall from a bed, and that the State failed to prove Steele’s guilt
because it did not exclude the possibility that the injuries were caused by a fall. The Supreme
Court in Steele held that “the State’s proof of criminal agency was so deficient that no
reasonable hypothetical juror could have found, beyond a reasonable doubt and to the
exclusion of every reasonable hypothesis consistent with innocence, that Steele killed [the
victim].” Id. (emphasis added).
¶14. Gray’s situation differs somewhat from that in Steele. The issue is whether Gray
intended to commit a crime instead of whether he fired the shot that killed Myrtle. Prior
Supreme Court rulings are instructive regarding “intent” in the context of circumstantial
evidence and first-degree murder. In Holliman, the Supreme Court held that despite
Holliman’s statement that the shooting was accidental, there were sufficient facts based on
circumstantial evidence (including that his wife had asked for a divorce the morning of her
6 death and that Holliman moved the body and reported the death as a suicide) to uphold the
jury’s finding that he intended to kill his wife and was guilty of first-degree murder.
Holliman v. State, 178 So. 3d 689, 699-700 (¶23) (Miss. 2015). In its ruling the Supreme
Court stated: “This Court has held that unless one expresses his intent, the only method by
which intent may be proven is by showing the acts of the person involved at the time, and by
showing the circumstances surrounding the incident.” Id. at 698 (¶19) (quoting Boyd v.
State, 977 So. 2d 329, 335 (¶23) (Miss. 2008) (internal quotation marks omitted)). In Ware,
there were no witnesses to the victim’s shooting, but there was testimony about an altercation
earlier in the day and Ware admitted to being at the location of the shooting on the night in
question. Ware v. State, 301 So. 3d 605, 612 (¶¶26, 30) (Miss. 2020). Ware claimed that
gunshot residue discovered on his hands was from fireworks, and he said that there was
another man with him at the time of the shooting. Id. at 613 (¶¶31-33). The jury found Ware
guilty of first-degree murder and the finding was upheld by the Supreme Court. Id. at (¶35).
The Court pointed out that Ware presented his theory of the case and just because “the only
evidence supporting a conviction is circumstantial does not mean the evidence is
insufficient.” Id. at 612-13 (¶¶24, 34).
¶15. In reviewing the legal sufficiency of the evidence, our authority to disturb the jury’s
verdict is quite limited. Clayton v. State, 652 So. 2d 720, 724 (Miss. 1995). Intent to commit
a crime is a question of fact to be determined by a jury based on the facts presented in the
case. Walker v. State, 913 So. 2d 198, 224 (¶82) (Miss. 2005) (citing Knox v. State, 805 So.
2d 527, 531 (¶14) (Miss. 2002)). This Court has held that “[t]he jury is charged with the
7 responsibility of weighing and considering conflicting evidence, evaluating the credibility
of witnesses, and determining whose testimony should be believed. The jury has the duty to
determine the impeachment value of inconsistencies or contradictions as well as testimonial
defects of perception, memory, and sincerity.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss.
Ct. App. 1999) (citation omitted). “Circumstantial evidence need not exclude every ‘possible
doubt,’ but only every other ‘reasonable’ hypothesis of innocence.” Campbell, 798 So. 2d
at 529 (¶13) (quoting Tolbert v. State, 407 So. 2d 815, 820 (Miss. 1981)). Additionally, as
this Court stated in James, although the State has the burden of providing evidence “to refute
all reasonable hypotheses consistent with innocence[,]” the ultimate decision should not be
taken away from the jury. James v. State, 777 So. 2d 682, 697 (¶46) (Miss. Ct. App. 2000).
¶16. Here, the State presented facts to the jury establishing motive and opportunity. Gray
was able to present his version of the facts and alternate hypotheses to refute the State’s
theories. The jury in this case had the opportunity to evaluate King’s testimony and hear
Gray’s interview with the police. After hearing that Gray hung out with Pole on the day of
the shooting, and that he admitted that he was aware that Pole was angry with Michael, it was
reasonable for the jury to conclude that Gray was part of Pole’s deliberate design for revenge
against Michael. It was also reasonable for the jury to determine that by obtaining a gun the
day of the shooting and walking to the Messengers’ home with Pole between 10 and 11 p.m.,
Gray indicated a willingness to participate in the murder. Although denied by Gray, the jury
heard testimony that Gray was seen with a revolver (the same type of gun as the murder
weapon) on the day of the shooting. The fact that Gray and Pole hid their weapons in the
8 same place as they fled the scene and met up after the murder could also have reasonably
been interpreted by the jury as a part of the plan to commit a crime. There was sufficient
evidence to find Gray guilty of first-degree murder.
II. Whether the verdict was contrary to the weight of the evidence.
¶17. Even when the evidence is sufficient to support a conviction, a defendant may be
entitled to a new trial if the trial court determines that the guilty verdict returned by the jury
was against the weight of the more credible evidence presented at trial. Fleming v. State, 732
So. 2d 172, 183 (¶¶37-38) (Miss. 1999). In this instance, our review of the evidence leaves
us unpersuaded that the State’s case was so weak or the defendant’s proof was so persuasive
that the jury’s decision to convict amounts to a manifest injustice. We decline to overturn
the trial court’s decision to deny Gray’s motion for a new trial.
CONCLUSION
¶18. We find that the State presented sufficient evidence that Gray acted in concert with
Pole to commit murder and that reasonable jurors could have found Gray guilty based on the
evidence presented at trial. Furthermore, the jury’s verdict was not contrary to the
overwhelming weight of the evidence, and no new trial is warranted. Finding no error, we
affirm.
¶19. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD, SMITH AND EMFINGER, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
9 WILSON, P.J., DISSENTING:
¶20. Connell Gray’s conviction must be reversed and rendered because the State presented
insufficient evidence that Gray actually incited, encouraged, or assisted in the murder or
participated in the planning of the murder. Accordingly, I respectfully dissent.
FACTS
¶21. Michael Messenger Jr. (Michael) testified that around 3 or 4 p.m. on March 14, 2015,
he was “riding around” Clarksdale and “drinking” with James “Scoop” Bryant (Scoop),
Roger Grace, and Cornelius Magee. They stopped on Madison Street for Michael to talk to
a woman. Dantrail “Pole” Jackson (Pole) saw Michael talking to the woman. The woman
was Pole’s girlfriend, and Pole became angry. According to Michael, Pole threatened to
“kill” him, so Michael and his friends “pulled off” and “went to the store” and then continued
to ride around drinking. Later, Michael and his friends went to the Bennie Gooden Estates
apartments. Pole and Jamaal “Stack” Stafford (Stack) were there. Pole walked up to
Michael and his friends, started “talking crazy,” and pushed Michael. So Michael got in a
car with Shun Sykes, and they left the apartments and went “riding around.” Michael
testified, “I am not too sure if [Gray] was . . . with [Pole and Stack at the apartments]. I just
can’t say if [Gray] was [with them].”
¶22. Scoop’s girlfriend, Britney King, testified that sometime between 3 and 5 p.m. on
March 14, 2015, she saw Scoop “in the middle of the street” on Madison Avenue “arguing
with . . . Pole.” King persuaded Scoop to get in the car with her, she took him to get some
liquor, and then she dropped him off at Gas Mart with Grace and Michael. It is not clear
10 when exactly this incident occurred in relation to the events described by Michael.
¶23. Sometime between 7 and 9 p.m., King went to the Bennie Gooden Estates apartments
to meet Scoop to go to a casino. Scoop met King in the parking lot and told her to wait for
him while he went back inside the apartments to talk to Pole about the incident earlier in the
day. Scoop later came back outside and said that he had “knocked out” Pole and taken Pole’s
gun. Scoop had the gun with him. Pole then came outside. Pole was angry and “talking
smack.” Others began trying to separate Pole and Scoop. King stated that she noticed Gray
sitting in a car and that Gray got out of the car and tried to get Pole into the car. King
testified that Gray was actually “trying to . . . stop the altercation, but it looked like [Gray and
others] were trying to jump Scoop.” At that point, Scoop’s cousin, “Bardo,” punched Gray
in the face. Surveillance video from the apartment complex captured the argument between
Pole and Scoop, but Gray cannot be seen anywhere on the video.
¶24. Eventually, Scoop returned to King’s car, and King, Scoop, Bardo, and Grace all left
the apartments. King “took Scoop to Gas Mart to get in another vehicle with one of his
friends to talk about the issue.” Bardo also went with Scoop. Then King and Grace went to
Grace’s house.
¶25. Around 11 p.m., Michael’s grandmother, Myrtle Messenger, was shot and killed by
a single gunshot wound to the neck when she answered a knock on the door of her house on
Poplar Street. King and Grace heard the gunshot from Grace’s house. They got in King’s
car and drove to the corner of Jefferson Avenue and Poplar Street, where other cars had
11 stopped. They saw Michael drop to his knees and start crying.2 King and Grace then drove
back to Grace’s house. Grace asked King to drive him to his girlfriend’s house in Jonestown,
and King agreed. King testified that on Highway 61, they passed a green Honda that was
“going slow.” King testified that Gray was driving the Honda and that Pole was in the
passenger’s seat. She testified that this occurred sometime before midnight.
¶26. Around 1:30 a.m., Coahoma County Deputy Sheriff Stephen James encountered four
men in an alley across the street from the Messengers’ house. One of the men was Pole.
James and another deputy searched the men but “didn’t find anything.” They allowed the
men to leave after determining that there were no warrants for their arrest. There is no
evidence that Gray was one of the men. James testified that he was “not sure” if Gray was
in the alley and that he did “not recall [Gray’s] name.”
¶27. When James returned to the Messengers’ home, someone told him that “Pole was a
person of interest that they were looking for.” James then searched the alley again and found
two guns—a revolver and a semiautomatic pistol—that had been discarded in a brush pile
about 50 or 60 yards from the Messengers’ house. The police later determined that the
revolver had been used to kill Myrtle Messenger.
¶28. Detectives with the Clarksdale Police Department located Pole at the Bennie Gooden
Estates apartments around 3 a.m. Gray was not with Pole at the time.
¶29. Eleven days after the murder, Gray gave a voluntary statement to Detectives Charles
Sledge and Frederick Burton of the Clarksdale Police Department. Gray’s interview was
2 Michael lived with his grandmother and grandfather on Poplar Street.
12 recorded. Gray told the detectives that he went to the Bennie Gooden Estates around 7 or
8 p.m. on the day of the murder. He arrived after Scoop had taken Pole’s gun, and he only
witnessed the subsequent argument between Scoop and Pole in the parking lot outside the
apartments. Contrary to King’s testimony, Gray said that no one punched him.
¶30. Gray told the detectives that Pole apparently obtained a new gun after his altercation
with Scoop, but Gray did not know how Pole obtained the gun. Gray also had a gun, a
semiautomatic pistol. Gray told the detectives that he obtained the gun from Cedric Dukes
on the day of the murder because he had previously loaned his usual gun to a friend. It is not
clear when exactly Gray obtained the gun from Dukes.
¶31. Pole and Gray later left the Bennie Gooden Estates and walked to Madison Avenue.
While they were hanging out near the corner of Madison Avenue and Magnolia Street, Gray
overheard Pole tell his girlfriend that “it was because of” her or that “it was [her] fault.” Pole
then walked up Madison Avenue and turned on Poplar Street, and Gray walked with him.
The Messengers’ house was on Poplar Street about two blocks from Madison Avenue. When
they reached the Messengers’ house, Pole turned into the Messengers’ yard and knocked on
the door, but Gray continued walking down Poplar. Gray then heard a gunshot. Gray told
detectives that he panicked, ran down the alley across the street from the Messengers’ house,
and discarded the semiautomatic pistol3 in a brush pile in the alley. At the end of the alley,
3 Sledge testified that he “kind of recalled that [King] stated that [Gray] had a revolver at that apartment complex.” However, King did not testify that she saw Gray with any kind of gun on the day of the murder. As noted above, King only saw Gray briefly when he stepped out of his vehicle at the Bennie Gooden Estates. Thus, the majority opinion is incorrect in stating that “King testified that she had seen [Gray] with a revolver earlier in the day.” Ante at ¶7.
13 Gray turned on Magnolia Street and ran back to Madison Avenue. Pole ran down the alley
after Gray and “popped up on Madison” “two or three minutes” later. Gray told detectives
that Pole did not say anything about the shooting. According to Gray, Pole made a call on
his phone and then got in a “silver car” and left. Gray did not know who else was in the
silver car.
¶32. In December 2015, Pole and Gray were jointly indicted for first-degree murder.4
Gray’s case went to trial in December 2019.5 At trial, Detective Sledge acknowledged that
there was no evidence that Gray killed Myrtle Messenger. He testified that Gray was arrested
and charged with murder because Gray and Pole were “together when [Mrs. Messenger] got
murdered.” In its closing argument, the State asserted that Gray’s “role” in the crime “was
to keep watch” while Pole committed the murder.
ANALYSIS
¶33. “This Court reviews de novo a trial court’s ruling on the legal sufficiency of the
evidence.” Buchanan v. State, No. 2017-CT-01082-SCT, 2021 WL 1310276, at *8 (¶49)
(Miss. Apr. 8, 2021) (quoting Haynes v. State, 250 So. 3d 1241, 1244 (¶6) (Miss. 2018)).
“When reviewing a case for sufficiency of the evidence, ‘all credible evidence that is
consistent with guilt must be accepted as true, and the State is given the benefit of all
favorable inferences that may be reasonably drawn from the evidence.’” Id. (brackets
4 Pole later filed a motion to sever their cases, which the trial court granted. 5 Gray’s case went to trial first.
14 omitted) (quoting Haynes, 250 So. 3d at 1244 (¶6)).6 “We examine the evidence in the light
most favorable to the State, while keeping in mind the beyond-a-reasonable-doubt burden of
proof standard.” Buchanan, 2021 WL 1310276, at *8 (¶49) (quoting Haynes, 250 So. 3d at
1244 (¶6)). “This burden must be satisfied with evidence, not speculation or conjecture.”
Id. (citing Edwards v. State, 469 So. 2d 68, 69-70 (Miss. 1985); Sisk v. State, 294 So. 2d 472,
475 (Miss. 1974)). We will reverse and render if “the facts and inferences ‘point in favor of
the defendant on any element of the offense with sufficient force that reasonable [jurors]
could not have found beyond a reasonable doubt that the defendant was guilty[.]’” Id.
(ellipsis omitted) (quoting Haynes, 250 So. 3d at 1244 (¶6)). However, we will affirm the
conviction if “any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Haynes, 250 So. 3d at 1244 (¶6) (quoting Shelton v. State, 214
So. 3d 250, 256 (¶29) (Miss. 2017)).
¶34. In this case, the State does not argue that Gray actually murdered Myrtle Messenger
but rather that he aided and abetted the actual murderer, Pole. “One who aids and abets
another in the commission of a crime is guilty as a principal.” Buchanan, 2021 WL 1310276,
at *9 (¶51) (quoting Hughes v. State, 983 So. 2d 270, 276 (¶14) (Miss. 2008)). “To aid and
abet the commission of a felony, one must do something that will incite, encourage, or assist
the actual perpetrator in the commission of the crime or participate in the design of the
felony.” Id. (quotation marks, ellipsis, and brackets omitted) (quoting Hughes, 983 So. 2d
6 In addition, because this was a circumstantial evidence case, “the State had the burden to prove [Gray’s] guilt not only beyond a reasonable doubt, but to the exclusion of every reasonable hypothesis consistent with innocence.” Johnson v. State, 224 So. 3d 66, 68 (¶5) (Miss. 2016) (quotation marks omitted).
15 at 276 (¶14)). “We do ‘not recognize guilt by association.’” Id. (quoting Hughes, 983 So.
2d at 276 (¶14)). “Mere presence, even with the intent of assisting in the crime, is
insufficient unless the intention to assist was in some way communicated to the principal.”
Hughes, 983 So. 2d at 276 (¶14) (quotation marks and brackets omitted). Likewise, mere
presence “at the commission of a crime without taking any steps to prevent it does not alone
indicate such participation or combination in the wrong done as to show criminal liability.”
Id. (quoting Harper v. State, 83 Miss. 402, 415, 35 So. 572, 573 (1903)). This is true even
if the defendant actually “approve[d] of the [criminal] act.” Id. (quoting Harper, 83 Miss.
at 415, 35 So. at 573).
¶35. Viewed in the light most favorable to the State, the evidence in this case shows, at
most, that Gray was aware of the prior altercation between Pole and Scoop and perhaps also
the earlier argument between Pole and Michael Messenger; that Gray walked down Poplar
Street with Pole but did not go with him to the door of the Messengers’ house; that Gray and
Pole were carrying guns;7 that Gray and Pole fled after the shooting and discarded their guns
in the same location; and that Gray and Pole were later seen together in a car on Highway 61
north of Clarksdale. Such evidence does not establish beyond a reasonable doubt that Gray
actually encouraged, assisted in, or helped to plan the shooting. In particular, there is no
evidence to support the State’s assertion that Gray acted as a lookout for Pole.
¶36. In addition, although King’s disputed testimony that she saw Gray driving Pole later
7 It was not unusual for Gray or Pole to carry guns. Gray told the detectives that he had borrowed a gun from Cedric Dukes only because someone else had his usual gun. He also told the detectives that he had “seen [Pole] with plenty of guns.”
16 that night might have supported charging Gray as an accessory after the fact,8 Gray was not
charged as an accessory after the fact. He was indicted and tried only as a principal/aider and
abettor. See Hall v. State, 127 So. 3d 202, 204 (¶7) (Miss. 2013) (“[A]ccessory after the fact
is a distinct crime for which a person cannot be punished unless indicted.” (quotation marks
omitted)). Evidence of such after-the-fact assistance does not prove that Gray provided
encouragement or assistance prior to or during the crime. Cf. Gangl v. State, 612 So. 2d 333,
337 (Miss. 1992) (holding that evidence that would have “support[ed] a conviction of
accessory after the fact” was insufficient to support the defendant’s conviction as a
principal).
¶37. Gray’s conduct following the shooting is certainly suspicious, but a conviction may
not be based on suspicion alone. “Mere suspicion, no matter how well grounded, is an
insufficient basis upon which to base a criminal conviction.” Oswalt v. State, 885 So. 2d
720, 723 (¶14) (Miss. Ct. App. 2004).9 Because there was insufficient evidence to prove
beyond a reasonable doubt that Gray encouraged, assisted, or otherwise planned or
participated in the shooting, I respectfully dissent.
8 See Miss. Code Ann. § 97-1-5 (Rev. 2020); Harris v. State, 290 So. 2d 924, 925-26 (Miss. 1974). 9 See also, e.g., McRee v. State, 732 So. 2d 246, 249 (Miss. 1999) (stating that evidence that “could justify no more than suspicion” was insufficient because “a conviction must be based on more than mere suspicion”); Gangl, 612 So. 2d at 337 (holding that although the defendant’s “actions after the commission of the crime [were] certainly suspicious” and would have “support[ed] a conviction for accessory after the fact,” they were insufficient to support his conviction as a principal); Lewis v. State, 573 So. 2d 719, 723-24 (Miss. 1990) (holding that the defendant’s conduct after the crime was enough to “cast[] strong suspicion upon him” but still insufficient to convict him as a principal).