McVay v. State

385 So.3d 1280

Karon MCVAY a/k/a Karon Deshawn McVay, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-KA-00523-COA

Court of Appeals of Mississippi.

05/21/2024

LAUDERDALE COUNTY CIRCUIT COURT, HON. CHARLES W. WRIGHT JR., JUDGE

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY; GEORGE T. HOLMES, Jackson, W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

BEFORE WILSON, P.J., LAWRENCE AND McCARTY, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Karon McVay was convicted by a Lauderdale County Circuit Court jury of four counts of capital murder and one count of possession of a firearm by a felon. The court sentenced McVay to life imprisonment without eligibility for parole for each capital murder conviction and ten years to serve in custody for the possession of a firearm, with each sentence set to run consecutively to the other. McVay appeals his convictions claiming the State improperly introduced prior bad-acts evidence during its cross-examination of him without an evidentiary basis. McVay also argues his trial counsel was constitutionally ineffective by failing to object to the State’s questions. Finding no error, we affirm.

FACTUAL BACKGROUND

¶2. On February 21, 2017, deputies with the Lauderdale County Sheriff's Department conducted a welfare cheek at 4009 Butts Road in Toomsuba, Mississippi. Officer Trey Fox arrived and found Edna Durr, her daughters Tomecca Pickett and Kiearra Durr, and her grandchild Owen Pickett deceased. Deputies found three-year-old B.D.¹ alive, trapped underneath the body of her mother, Kiearra. The officers called an ambulance and removed B.D. from the home. The Mississippi Bureau of Investigations assisted in the collection of evidence at the scene of the crimes.

¶3. The police learned that the day before the killings, McVay had visited his girlfriend, Tomecca, at her place of employment, Rush Hospital in Meridian.² Tomecca was having lunch with her brother Demetrius in the hospital cafeteria when McVay arrived. Tomecca and McVay got into an altercation and security was called to escort McVay out of the hospital. McVay testified that Tomecca told him she was going to have him banned from the hospital. McVay admitted that during the argument at the hospital, he told Tomecca she would "never disrespect" him "like that again" and that if she did, he would put her jaw "on the other side of her lip."

¶4. The next day, Demetrius called McVay to tell him that the family was murdered. McVay lied to Demetrius and said he was out of town for a construction project. The record indicated he was really at Meridian City Hall for a job interview. McVay left city hall and went straight to the crime scene and, in fact, beat Demetrius to the scene. At the crime scene, Deputy Karey Williams asked McVay and To- mecca’s brother Tievo Durr to go to the sheriff’s department so they could take a statement. McVay was not an immediate suspect but became one after giving suspicious responses to initial police questions.

¶5. McVay was given his Miranda³ warnings and he allowed police to search his phone. Text messages revealed that the day before the murders, Tomecca had indicated to McVay that she was "done with it." McVay responded that she would not curse at him again and continued to call Tomecca numerous times that day. During the interview, Williams learned that McVay resided in the home located at 4009 Butts Road. He also learned that McVay had a felony conviction.⁴ Additionally, McVay admitted that he had a gun and that this gun was located at the scene of the crime.⁵ On this information, McVay was arrested for the charge of possession of a firearm by a felon. McVay continued denying any involvement in the murders. As the deputies were walking McVay to jail after completion of the interview, McVay asked Investigator Everett McSheppard how much time he was "looking at" for the "four murders[.]" McVay indicated that he wanted to tell the truth and was returned to the interview room where he was read his Miranda rights a second time. McVay gave a verbal statement admitting he killed the four victims. He claimed he brought Tomecca a gift and an argument ensued, which became physical and escalated to the point that he fired "two shots at Tomecca." Tomecca’s five-year-old son Owen "walked out, and [McVay] fired at him." He then shot at Edna, and as "Kiearra moved on the couch" he fired shots at her too. He then fired more shots at Tomecca. Based on the information McVay provided during the second interview, the detective typed a statement, which McVay signed and fingerprinted.

¶6. The autopsies of each victim indicated that Edna (sixty-five years old' died from multiple gunshot wounds to her back, left, and upper-right chest area, abdomen, right arm, and left arm. There was no stippling on any of the many gunshot wounds, and only one projectile was recovered. Tomecca (forty-two years old) died from three distant gunshot wounds: one to her head, one to her upper left arm, and one to her right breast. Projectiles were recovered from Tomecca’s body. Kiearra (twenty-seven years old) died from four gunshot wounds and three sharp-force injuries to the neck. One gunshot wound entered her upper left shoulder, one entered her left chest, one entered her abdomen, and one entered her right chest. Two projectiles were recovered from Kiearra’s chest. Owen (five years old) died from a total of four stab and slash wounds to his neck; two were superficial, one severed his jugular vein, and the last one severed his trachea. The wounds caused him to bleed into his lungs, and according to Dr. Levaughn, he basically drowned "in his own blood."

¶7. On November 8, 2018, a Lauderdale County grand jury indicted McVay and charged him with Count I, capital murder of Owen Pickett, Count II, capital murder of Kiearra Durr, Count III, capital murder of Tomecca Pickett, Count IV, capital murder of Edna Durr, Count V, possession of a weapon by a felon, and Count VI. posses- sion of a stolen firearm. All the murders were alleged to have occurred during the commission of the murder of three or more persons "who are killed incident to one (1) act, scheme, course of conduct or criminal episode" pursuant to Mississippi Code Annotated section 97-3-19(2)(i) (Supp. 2015).

¶8. Before trial, the State filed a motion in limine to introduce evidence of McVay’s prior bad acts pursuant to Mississippi Rule of Evidence 404(b). Specifically, the State sought to introduce the testimony of (1)Tomecca’s brother Demetrius Durr, who would testify about the incident at Rush Hospital; (2) Justin Boykin, a security guard at Rush Hospital; (3) Tony Furline, a second security officer at Rush Hospital; (4) Officer Heather Luebbers, a Meridian police officer who made a 2014 report of a domestic violence incident between McVay and Tomecca; (5) Tomecca’s sister Tamaria Durr Hudson, who would testify about the "history of domestic violence" between Tomecca and McVay; and (6) Tomecca’s husband Raymen Pickett, who would also testify to the violent history between Tomecca and McVay.⁶ The State claimed the information was "essential for the jury to have a full understanding of [the] victim’s death at the hands of the Defendant." The State attached police reports that included statements from Tomecca describing an incident on December 22, 2014. The police report indicated that Tomecca and McVay had gotten into an argument. The report included statements from Tomecca indicating that McVay had threatened to "blow [Tomecca’s] f****** head off," told her they were going to "play Russian roulette," and said, "If I can’t have you nobody else will." Tomecca’s statement provided that McVay "slapped [Tomecca] with [a] cuffed hand, bit [her] nipples, pressed [his] elbow in [her] … chest, choked [her] … [and] covered up [her] nose [and] mouth."

¶9. On January 11, 2022, the trial court considered the admissibility of the evidence concerning the December 22, 2014 incident and found that "the potential prejudicial effect on [McVay] [did] not substantially outweigh the probative value of such evidence under Miss. R. Evid. 403; and rather than confuse the issues, will help the jury understand the events which occurred leading up to [McVay]’s arrest and subsequent indictment." Accordingly, the trial court ordered that this evidence was admissible "under Rule 404(b), to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but not for character evidence."⁷

¶10. The State filed a motion to dismiss Count VI, possession of a stolen firearm, on the first day of trial.⁸ McVay was tried on the five remaining counts beginning on February 1, 2022. The State called nine witnesses to testify, and the defense called only McVay. During the trial, the parties stipulated that McVay had been previously convicted of a "felony in the circuit court of the City of Alexandria, Virginia on July 31, 1998." The stipulation did not specify the particular felony of which McVay had been convicted.

¶11. During trial, the State introduced text messages between McVay and Tomec- ca. The texts were sent on February 19-21, 2017, and were depicted by a photograph of the text messages. On February 19, 2017, between 12:30 and 12:43 a.m., the following text message exchange occurred:

TOMECCA: U know what, its good.

I’m done with it. I done gave u 2 much time. Enough. Enjoy what u got left. Gn[.]

McVAY: I been callin u …. That is your last time that u will ever … say that [I] am a got dam lie…. That your last time that you will ever[ ] curse a[t] me[.]

¶12. Demetrius Durr, Tomecca’s brother, also testified at trial. Pertinent to the issues on appeal, he testified that B.D., the only survivor, was between two and three years old and could not "talk or hear." He explained that McVay lived "on and off" at the house with all the victims, and he knew about B.D.’s health issues. Demetrius also confirmed the incident...