Everett Moore a/k/a Everett S. Moore a/k/a Eric Moore v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: June 23, 2020
• Docket: NO. 2019-KA-00725-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KA-00725-COA

EVERETT MOORE A/K/A EVERETT S. MOORE APPELLANT A/K/A ERIC MOORE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/28/2019 TRIAL JUDGE: HON. CELESTE EMBREY WILSON COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW WYATT WALTON ASHLEY SULSER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/23/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., LAWRENCE AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. A DeSoto County Circuit Court jury convicted Everett Moore of second-degree

murder. The circuit court sentenced Moore to a term of forty years, with thirty years to serve

in the custody of the Mississippi Department of Corrections (MDOC) followed by ten years

of post-release supervision. Moore appealed. Moore v. State, 247 So. 3d 1198 (Miss. 2018).

The Mississippi Supreme Court reversed Moore’s conviction and remanded for a new trial,

finding that the circuit court erred by refusing Moore’s requested circumstantial-evidence

jury instruction. Id. at 1205 (¶31). ¶2. On remand, Moore was re-tried on February 19-21, 2019. After receiving a

circumstantial-evidence jury instruction, the jury in his second trial found Moore guilty of

second-degree murder. The circuit court sentenced Moore to serve thirty years in the

MDOC’s custody followed by five years of reporting post-release supervision and five years

of non-reporting supervision. Moore again appeals. Finding no error, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶3. On September 29, 2015, Moore drove to Syncreon Industries, located on Kirk Road

in DeSoto County, Mississippi. Moore parked his vehicle and waited for Syncreon employee

Norris Smith to come to his car in the parking lot. When Smith came out of the building at

midday, Moore moved his vehicle to block Smith’s exit and confronted Smith over an

alleged affair between Smith and Moore’s wife. Once the conversation ended, Moore

moved, Smith pulled out of the parking lot, and Moore quickly followed, driving erratically

to catch up with Smith. Moore eventually pulled alongside Smith’s car. Shortly thereafter,

Moore made an abrupt turn onto Polk Lane, and Smith’s car proceeded straight through a red

light at the intersection of Polk Lane and Kirk Road before crashing into the premises of a

nearby business. Witnesses to the crash found Smith’s driver’s side window shattered and

Smith dead in his vehicle, having suffered two gunshot wounds.

¶4. Officer Walter Medford of the Olive Branch Police Department was the first to

1 The facts are taken from the record of Moore’s second trial. Although the facts largely mirror those developed in the record of Moore’s first trial, as described by the supreme court on appeal, see Moore, 247 So. 3d at 1199-1021 (¶¶1-12), the second trial featured some differences in testimony and evidence. Those differences are not relevant to the issues before us.

2 respond to the scene. Officer Medford testified that he found a white Nissan Altima with a

shattered driver’s side window near the Prime Automotive building located on Kirk Road.

Officer Medford stated that there was an unresponsive male slumped over in the driver’s

seat, who appeared to have suffered a gunshot wound to the head. Officer Medford further

testified that the male had no pulse.

¶5. The investigation was transferred to the DeSoto County Sheriff’s Office because the

incident did not occur within Olive Branch’s city limits. Detective Roger Hutchins of the

sheriff’s office responded to the scene. He testified during Moore’s trial that he found bullet

fragments and a Syncreon Industries employee’s badge in the vehicle. The badge identified

the deceased driver as Norris Smith. A few hours later, Detective Hutchins interviewed

Smith’s wife, who, “right off the bat,” knew that Moore was the shooter. Smith’s wife

explained to Investigator Hutchins that there had been an ongoing problem between Moore

and Smith because Moore accused Smith of having an affair with his wife.

¶6. Detective Steve English testified that he assisted in gathering and reviewing

surveillance video footage from surrounding businesses for the investigation. Detective

English testified that video footage obtained from Syncreon Industries depicted Moore’s

parked vehicle—a white SUV—in the Syncreon parking lot around 11:30 a.m. on September

29, 2015. Thirty minutes later, Smith entered the parking lot and walked to his car. Once

Smith reached his vehicle, Moore pulled out of his parking spot a few spaces down from

Smith’s and maneuvered his SUV to block Smith’s vehicle from exiting its parking space.

Moore then exited his SUV, approached Smith’s vehicle, and engaged Smith in a brief

3 conversation. After this conversation, Moore returned to his vehicle and moved it. Smith

then pulled out of Syncreon’s parking lot, made a right-hand turn on Kirk Road, and

proceeded westbound toward Polk Lane. Shortly thereafter, Moore sped out of the parking

lot and followed Smith.

¶7. Surveillance footage obtained from nearby Anda Pharmaceuticals showed Moore’s

vehicle following closely behind Smith on Kirk Road, eventually becoming side-by-side.

Smith’s vehicle then hit a curb and bounced back into the roadway, causing Moore to slow

down. A different camera angle from Anda Pharmaceuticals’s premises captured Smith’s

vehicle running through a red light at the intersection of Polk Lane and Kirk Road, nearly

hitting an orange 18-wheeler, before continuing on Kirk Road toward the Prime Automotive

building. The same camera showed Moore following Smith through the stoplight before

making a sudden, sharp left turn onto Polk Lane.

¶8. Moore quickly became a person of interest. That same evening, Moore turned himself

in to the Benton County Sheriff’s Office, and Detective Hutchins traveled to Benton County

to interview Moore. After Moore waived his Miranda2 rights, Moore admitted that he was

present in Olive Branch earlier that day and that he spoke to Smith in the parking lot. Moore

stated that after the conversation concluded, he got back in his vehicle and never saw Smith

again. Subsequently, Moore’s vehicle was searched. Detective Hutchins testified that he

found a bucket of cleaning materials in the vehicle and noted that Moore’s vehicle was

“immaculate” and smelled like it had recently been cleaned.

2 Miranda v. Arizona, 384 U.S. 436 (1966).

4 ¶9. A DeSoto County grand jury indicted Moore for first-degree murder on March 10,

2016. After a trial, the jury found Moore guilty of second-degree murder. The DeSoto

County Circuit Court sentenced Moore to a term of forty years, with thirty years to serve in

the MDOC’s custody followed by ten years of post-release supervision. Moore, 247 So. 3d

at 1201 (¶12). Moore appealed his conviction. Id. The supreme court addressed only “the

dispositive question of whether the trial court erred in refusing Moore’s tendered

circumstantial evidence instruction.” Id. The supreme court held that Moore was entitled

to a circumstantial-evidence jury instruction and concluded that the circuit court erred by

denying Moore’s proffered instruction. Id. at 1205 (¶31). The supreme court therefore

reversed Moore’s conviction and remanded his case for a new trial. Id.

¶10. Moore’s second trial began on February 19, 2019. Officer Medford testified again

concerning the initial crime scene and investigation. The State also introduced the

surveillance video footage collected during the investigation. Detective English described

the contents of the footage as the videos were played for the jury, beginning with Moore and

Smith’s encounter3 in the Syncreon parking lot through Moore’s pursuit of Smith on Kirk

Road. The State read Detective Hutchins’s prior sworn testimony concerning his

conversation with Smith’s wife to the jury as well.

¶11. Several witnesses testified about what they observed on September 29, 2015. Esau

Fant, a former employee at Prime Automotive, testified that during his lunch break, he heard

two gunshots as he entered the Prime Automotive parking lot. Fant stated that “[not] even

3 The video played for the jury showed Moore and Smith having a conversation but did not capture audio of their conversation.

5 ten minutes” after hearing the gunshots, a vehicle rolled through the intersection of Polk and

Kirk. Fant testified that he initially “thought that whoever was in the car was having a

seizure.” But when Fant approached the vehicle, he noticed that the driver’s window was

shattered and that the driver “appeared dead.” Fant testified that he “was too nervous” to

dial 911, so his coworker called to report the incident.

¶12. Jonathan Young testified that he was traveling southbound on Polk Lane during his

lunch break that day and was nearly rear-ended by a “white or silver SUV.” Young stated

that the driver of the SUV then “jerked [the] vehicle into the turn lane in the middle” of the

road. Young stated that the driver appeared “distracted” and was “digging over in the

passenger seat.” Young testified that he made eye contact with the driver as the SUV passed

his vehicle. Young “thought something was strange about the whole situation,” so he “took

a memory note” of the SUV’s Benton County license plate. Young stated that when he

returned to work that day, he noticed officers at the crime scene. Young approached one of

the officers and informed him that Young “had seen a guy leaving that area at a high rate of

speed, and [he] gave them the . . . tag information that [he] saw.” Young also identified

Moore in court as the driver of the SUV.

¶13. Dr. Brent Davis, a forensic pathologist, assisted in the review process of Smith’s

autopsy. Dr. Davis concluded that Smith’s death was a homicide and testified that Smith had

suffered a gunshot wound to the head and to the chest. Dr. Davis explained to the jury that

Smith was shot from “less than a few feet away” because of the abrasions and burns found

on Smith’s skin.

6 ¶14. After the proof in Moore’s second trial, the court gave instructions to the jury on

circumstantial evidence, second-degree murder, and manslaughter. The jury found Moore

guilty of second-degree murder. The circuit court sentenced Moore to thirty years in the

custody of the MDOC followed by five years of post-release reporting supervision and five

years of non-reporting supervision. On March 1, 2019, Moore filed a motion for judgment

notwithstanding the verdict or, alternatively, a new trial, which the circuit court denied.

¶15. Moore now appeals, contending that the State’s evidence was insufficient for

conviction, that the verdict was against the weight of the evidence, and that the circuit court

abused its discretion by sua sponte striking a prospective juror for cause. Additionally,

Moore’s trial attorneys (who are not counsel of record on appeal) filed a motion pursuant

to Rule 29(a)(2) of the Mississippi Rules of Appellate Procedure for leave to file an amicus

brief to assert an additional issue, double jeopardy, based on the supreme court’s recent

decision in Nickson v. State, 293 So. 3d 231 (Miss. 2020).4 We address each of these issues

in turn. Finding no error, we affirm.

DISCUSSION

I. Sufficiency and Weight of the Evidence

4 Moore’s trial attorneys filed their motion on May 5, 2020, attaching the proposed amicus brief to the motion. According to Rule 29(b), “[a] motion for leave to file an amicus brief shall be filed no later than seven (7) days after filing of the initial brief of the party whose position the amicus brief will support.” M.R.A.P. 29(b). Moore filed his initial brief on September 5, 2019. The amicus motion was thus filed eight months after Moore filed his initial brief. Moore’s trial attorneys offer no explanation as to why the amicus motion was untimely. However, because the amicus brief is grounded on Nickson, which was issued after briefing in Moore’s appeal was complete, and because neither Moore’s appellate counsel nor the State objected to the motion, we grant the motion for leave to file the amicus brief and consider the merits raised therein.

7 ¶16. Moore first asserts that the evidence introduced at trial was insufficient to convict him

of second-degree murder. “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.’”

Haynes v. State, 250 So. 3d 1241, 1244 (¶6) (Miss. 2018) (quoting Burrows v. State, 961 So.

2d 701, 705 (¶9) (Miss. 2007)). We must affirm the conviction if “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.” Id. (internal quotation mark

omitted) (quoting Shelton v. State, 214 So. 3d 250, 256 (¶29) (Miss. 2017)).

¶17. In Moore’s first appeal, the supreme court found that the evidence presented at trial

was purely circumstantial because “the State [had] neither a confession from [Moore] nor an

eyewitnesses to the gravamen of the offense charged[.]” Moore, 247 So. 3d at 1204 (¶28);

but see id. at 1210 (¶53) (Maxwell, J. dissenting) (cataloguing “overwhelming” “evidence

supporting the verdict”). Because Moore was not granted an appropriate circumstantial-

evidence jury instruction, the supreme court reversed Moore’s conviction and remanded for

a new trial. Id. at 1205 (¶31). The jury received such an instruction during Moore’s second

trial, and Moore does not challenge the jury instructions in the instant appeal. Instead, Moore

argues that the circumstantial evidence in his case “does no more than create a suspicion of

his involvement in Smith’s death” and was insufficient to convict him of second-degree

murder. We disagree.

¶18. Just because “the only evidence supporting a conviction is circumstantial does not

8 mean the evidence is insufficient.” Walton v. State, 642 So. 2d 930, 932 (Miss. 1994). The

supreme court has “consistently held that the State may prove a crime solely by

circumstantial evidence.” Id. In such cases, the circumstantial evidence must be “sufficient

to prove the defendant’s guilt beyond a reasonable doubt, and to the exclusion of every

reasonable hypothesis consistent with innocence.” Id. (citing Fleming v. State, 604 So. 2d

280, 288 (Miss. 1992)).

¶19. Here, the record reveals more than ample evidence to support Moore’s conviction for

second-degree murder. Detective Hutchins’s prior sworn testimony substantiated Moore’s

motive to kill Smith. He testified that shortly after officers identified Smith as the deceased,

Hutchins had a conversation with Smith’s wife, and she knew “right off the bat” that Moore

was the shooter because “there had been an ongoing problem with [Moore] accusing [Smith]

of having an affair with his wife.” The surveillance video footage introduced by the State

captured Moore and Smith’s initial encounter in the Syncreon Industries parking lot and

Moore’s pursuit of Smith that ensued thereafter. The video footage showed Moore’s erratic

driving, which was corroborated by eyewitness Young. He testified that he was almost rear-

ended by the driver of a “white or silver SUV” and identified Moore in court as the driver.

The jury also watched video footage of Moore and Smith’s vehicles side-by-side before both

vehicles ran the red light at the intersection of Polk and Kirk and Smith’s vehicle “rolled

down” Kirk Road onto the campus of Prime Automotive. Further, eyewitness Fant testified

that he heard two gunshots “[not] even ten minutes” before he saw Smith’s vehicle “roll

down” Kirk Road and found the deceased driver behind the wheel. Lastly, Dr. Davis

9 established the manner of death, testifying that Smith “died from multiple gunshot wounds

and was shot from less than a few feet away” based on the abrasions and burns surrounding

Smith’s wounds.

¶20. Viewing this evidence in the light most favorable to the prosecution, a reasonable jury

could find Moore guilty of second-degree murder beyond a reasonable doubt and to the

exclusion of every reasonable hypothesis consistent with innocence. Therefore, the evidence

was sufficient and Moore’s contention to the contrary lacks merit.

¶21. Moore also asserts that the verdict is against the overwhelming weight of the

evidence. In reviewing such an argument, we do not “assume[] the role of juror on appeal.

We do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not

resolve conflicts between evidence. Those decisions belong solely to the jury.” Little v.

State, 233 So. 3d 288, 289 (¶1) (Miss. 2017). Instead, we “weigh the evidence in the light

most favorable to the verdict” and “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.” Id. at 292 (¶21).

¶22. Moore fails to support his position with any argument or authority. Cf. McClain v.

State, 625 So. 2d 774, 781 (Miss. 1993) (noting that a “failure to cite authority may be treated

as a procedural bar, and we are under no obligation to consider the assignment”).

Regardless, Moore’s assertion lacks merit for the same reason his challenge to the sufficiency

of the evidence fails. Based on the substantial proof detailed above, Moore’s guilty verdict

is not against the overwhelming weight of the evidence and does not “sanction an

10 unconscionable injustice.” Accordingly, we find no error in the circuit court’s denial of

Moore’s motion for a new trial based on the weight of the evidence.

II. Sua Sponte Juror Strike

¶23. Moore also contends that the circuit court abused its discretion by striking Juror 52

for cause. During voir dire, the circuit court asked prospective jurors whether any of them

or their family members had been represented by any of the attorneys representing the State

or Moore. Juror 172 identified Luke Williamson, one of the assistant district attorneys on

the case, as representing her in the past. The trial court proceeded to ask Juror 172 whether

she could be fair and impartial in this case, and she replied, “[a]bsolutely.” Similarly, Juror

52 stated that John Watson, one of Moore’s attorneys, had represented her in her divorce.

The trial court did not question Juror 52 about her ability to remain fair and impartial.

However, after voir dire was complete, the court, sua sponte, struck both Juror 52 and Juror

172 for cause because of their prior affiliations with attorneys on the respective sides of

Moore’s case.

¶24. Moore contends that the circuit court abused its discretion by striking Juror 52 for

cause without further inquiring about her ability to remain fair and impartial. Citing Martin

v. State, 592 So. 2d 987, 988 (Miss. 1991), Moore argues that to justify a strike for cause,

there must be “a clear showing that the prospective juror would be unable to follow the

court’s instructions and obey his oath.”

¶25. “Generally, a juror removed on a challenge for cause is one against whom a cause for

challenge exists that would likely affect his competency or his impartiality at trial.” Berry

11 v. State, 703 So. 2d 269, 292 (¶85) (Miss. 1997). A trial judge’s decision on juror selection

is only subject to reversal if there is “a clear abuse of discretion.” Adkins v. Sanders, 871 So.

2d 732, 740 (¶31) (Miss. 2004). “The Mississippi Supreme Court has noted that ‘a defendant

does not have a vested right to any particular juror but only the right to be tried by a fair and

impartial jury.’” Ward v. State, 283 So. 3d 258 262 (¶12) (Miss. Ct. App. 2019) (quoting

Smith v. State, 724 So. 2d 280, 328 (¶193) (Miss. 1998)).

¶26. The record reflects that the circuit court struck Jurors 172 and 52 for cause after they

each indicated that they had been represented by counsel in Moore’s case. “The decision to

strike one, neither, or both of the prospective jurors [is] within the purview of the circuit

court’s decision-making duties.” Id. at (¶13). While Moore undoubtedly has the “right to

be tried by an impartial jury,” he does not have the right to have a particular juror, namely

Juror 52, on the jury. Id. at (¶12). Moore fails to make any showing that his right to a fair

and impartial jury was violated in this case, whether because of the circuit court’s sua sponte

for-cause strike of Juror 52, or otherwise. If anything, the record indicates that the circuit

court treated both sides fairly, by striking both Jurors 172 and 52 for cause. We therefore

find no abuse of discretion by the circuit court.

III. Double Jeopardy

¶27. In their amicus brief, Moore’s trial attorneys raise an additional issue on appeal:

whether Moore’s second trial under the original indictment for first-degree murder was a

double-jeopardy violation. Relying on a recent supreme court decision, Nickson, 293 So. 3d

at 237 (¶22), they contend that because Moore was not convicted on the charged offense of

12 first-degree murder during his first trial, he could not be re-tried on remand under the original

indictment. We disagree and conclude that, if anything, Nickson actually undermines

Moore’s counsel’s argument.

¶28. In Nickson, the defendant was charged with two counts of first-degree murder and one

count of possession of a firearm by a felon. Id. at 233 (¶3). The jury acquitted Nickson on

both first-degree murder counts, but after further deliberations, the jury deadlocked on the

lesser-included offense of second-degree murder and the felon-in-possession charge. Id. at

234 (¶¶5-6). Despite the jury’s announced verdict of acquittal on the charged first-degree

murder counts, the trial court declared a mistrial on all counts. Id. at (¶6). On appeal,

Nickson argued that he could not “be retried for first-degree murder because the jury

acquitted him of that offense. He claim[ed] that because the jury returned a unanimous

verdict as to first degree murder, ‘a retrial on first-degree murder would violate the double

jeopardy clause.’” Id. at 236 (¶14). The supreme court agreed, holding that “a retrial for

first-degree murder would violate Nickson’s constitutional right against double jeopardy.”

Id. at 237 (¶22). However, the supreme court expressly held:

Because the jury was unable to agree on the lesser-included offense of second-degree murder and the offense of possession of a firearm as a convicted felon, the trial court properly declared a mistrial on those offenses, and that portion of the trial court’s order is affirmed. Consequently, the Double Jeopardy Clause does not prohibit a second trial on those offenses.

Id. at 238 (¶25) (emphasis added).

¶29. Here, unlike Nickson, Moore was never acquitted of any charge, and he was convicted

of second-degree murder during his first trial. The supreme court reversed Moore’s initial

13 second-degree murder conviction—and remanded for a new trial—because the circuit court

erred in failing to give a circumstantial-evidence jury instruction. In Nickson, the supreme

court expressly held that as to the charges against Nickson on which the jury deadlocked

(including the lesser-included offense of second-degree murder), Nickson could properly be

re-tried on remand. The same result obtains here. It was not a violation of double jeopardy

for the State to proceed with a new trial for second-degree murder under the original

indictment after Moore’s initial conviction for second-degree murder was reversed. This

issue is without merit.

CONCLUSION

¶30. In sum, we find that the evidence was sufficient to support the jury’s conviction of

Moore. Indeed, the witness testimony, surveillance video footage, and forensic evidence

adduced at trial fairly thoroughly reconstructed Moore and Smith’s deadly encounter on

September 29, 2015. In light of that evidence, we likewise find that the verdict was not

against the overwhelming weight of the evidence. We also find no merit to Moore’s

contention that the circuit court abused its discretion in its for-cause strikes of two jurors

because Moore offers no evidence that his right to a fair and impartial jury was thereby

violated. Lastly, we find that Moore was not subjected to double jeopardy during his second

trial.

¶31. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.