Vernell Daven Miskell v. State of Mississippi

230 So. 3d 345
CourtCourt of Appeals of Mississippi
DecidedNovember 7, 2017
DocketNO. 2016-KA-01306-COA
StatusPublished
Cited by3 cases

This text of 230 So. 3d 345 (Vernell Daven Miskell v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vernell Daven Miskell v. State of Mississippi, 230 So. 3d 345 (Mich. Ct. App. 2017).

Opinion

CARLTON, J.,

FOR THE COURT:

¶ 1. .Vernell Miskell appeals his conviction for aggravated assault .and his sentence of twenty years in the custody of the Mississippi Department of Corrections (MDOC). Miskell filed a motion for a judgment notwithstanding the verdict (JNOV), or, in tlie alternative, a motion for a new trial. The trial court denied Miskell’s post-trial motion. Miskell now appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. A Forrest County grand jury indicted Marquis Harris and Vernell Miskell for aggravated., assault in violation of Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Supp. 2016) stemming from a shooting on the evening of December 21, 2004. Harris pleaded guilty to aggravated assault and then testified against Miskell at trial.

¶3, On , December 21, 2014, Albert Pollard attended a house party -in Hatties-burg, Mississippi. During the party, Pollard went outside to purchase marijuana from Harris. As Pollard pulled money out of his pocket to pay for the drugs, he heard someone say, “Freeze, don’t move.” Pollard testified that a man who he later identified as Miskell ran towards Pollard with a gun pointed at him. Pollard ran off, and he heard six shots fired from behind him. Pollard fell to the ground on the last shot, and then he felt someone going through his pockets. Pollard testified that he suffered three gunshot wounds, and he was in the hospital for two weeks. Pollard admitted at trial that he had been smoking marijuana and spice on the night of December 21, 2014, and he “was probably a little high,” but he insisted that he “had clear vision” and could “still remember” the incidents that occurred.

¶ 4. Harris also testified against Miskell at trial. Harris stated that on December 21, 2014, he and Miskell walked to the house party. He testified that Miskell “disappeared,” but then later returned to the party in a vehicle. Harris stated that while at the party, he and Pollard went outside to the vehicle Miskell returned in so Harris could sell Pollard spice and marijuana. Harris testified that he entered the vehicle to retrieve the drugs for Pollard, and when he looked up, Miskell had a gun in Pollard’s face. Harris observed that Pollard tried to run away, but Miskell shot him. Harris said that after Miskell shot Pollard, Harris and Miskell “got in the car and '... left.” The record reflects that prior to Mis-kell’s trial, Harris pleaded guilty to the aggravated assault of Pollard.

¶ 5. The’jury also heard testimony from Dreylen Hurd, the DJ for the party on the night of December 21, 2014. Hurd testified that someone at the party informed him that a person had been shot in the street. Hurd said that he went outside and approached Pollard, who was lying on the ground. Hurd rolled Pollard over and asked who shot him, and Pollard replied that “N.O.” shot him. Hurd explained that “N.O.” is Miskell’s nickname.

¶ 6. Deandre Williams testified for the defense. Williams testified that at the party, he observed Harris with a gun in the pocket of his sweatshirt, and he saw Harris waving the gun around. Williams stated that he saw Harris leave the party, and Harris seemed angry that someone had taken his money. Williams testified that he believed Harris was mad at Pollard because he had lost money to Pollard in a dice game earlier in the night.

¶ 7. Miskell also testified in his own defense. According to Miskell’s testimony, he and Harris walked to the party together. Miskell walked outside of the party to smoke.and saw a friend, Decario Smith, outside by his car. Miskell went to Smith’s car to talk to him when Miskell saw Harris come out of the party. Miskell stated that Harris seemed irritated 'or agitated. Mis-kell called his friend Derrick to come get him, and when Derrick arrived, Miskell told Harris he was ready to go. Miskell testified that Harris went back inside the party before returning back outside with Pollard. Miskell testified that as he was walking to Derrick’s car, he saw Pollard run away, and then he observed Harris shoot Pollard four times. Harris and Mis-kell then jumped in Derrick’s car and drove off. Miskell claimed that he did not know that Harris brought a gun to the party, and he testified that Harris seemed normal that night.

¶ 8. At the close of the State’s case, the defense counsel made a. motion for a directed verdict, which the trial court denied. The jury ultimately found Miskell guilty of aggravated assault. The trial court sentenced Miskell to twenty years in MDOC custody.

¶ 9. Miskell’s trial counsel filed a motion for a JNOV or, in the alternative, a new trial. Miskell then filed a pro se motion for a new trial as well as a pro se notice of appeal.

¶ 10. After the trial court denied Mis-kell’s posttrial motions, Miskell’s appellate counsel submitted a brief on his behalf, claiming: (1) the prosecutor improperly commented on Miskell’s failure to call witnesses, and (2) the prosecutor made “send a message” comments during closing arguments. Miskell then submitted a pro se supplemental brief, claiming: (1) the trial court erred in determining that the State’s reasons for striking five African American jurors were race neutral; (2) the trial court erred in denying his motion for a directed verdict; (3) the State failed to prove the elements of the crime beyond a reasonable doubt; (4) the verdict -was against the overwhelming weight of the evidence; (5) the trial court erred in granting Jury Instruction S-5; (6) the trial court erred in refusing proposed Jury Instruction D-7; (7) the prosecutor misstated the law during closing arguments; (8) the cumulative effect of all errors resulted in an unfair trial; and (9) the cumulative effect of all errors resulted in plain error. For the purposes of clarity in discussion, we will combine several of Miskell’s assignments of error.

DISCUSSION

I. Batson 1 Challenges

¶ 11. Miskell asserts that the trial court erred in determining that the State’s reasons for striking African American jurors were race neutral. “Peremptory strikes alleged to be racially discriminatory are analyzed under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 ... (1986).” Corrothers v. State, 148 So.3d 278, 304 (¶ 61) (Miss. 2014).

¶ 12. When reviewing Batson determinations, this Court will only reverse if the trial court’s factual findings “appear to be clearly erroneous or against the overwhelming weight of the evidence.” Cox v. State, 183 So.3d 36, 52 (¶ 54) (Miss. 2015). Upon review of a trial court’s determinations under Batson, appellate courts grant “great deference” to a trial court “because [the determinations] are based, in a large part, on credibility.” Id. We additionally recognize that “[o]n appeal, a trial court’s ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous.” Id.

¶ 13. Our supreme court has explained that when objecting to a peremptory challenge, the.. defendant must first “make a prima facie showing that race was the criteria for the exercise of the peremptory challenge^]” Id. at 54 (¶ 64). A defendant can establish a prima facie case of discrimination by showing the following:

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230 So. 3d 345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vernell-daven-miskell-v-state-of-mississippi-missctapp-2017.