Moore v. State

348 So.3d 322

Baby Boy MOORE a/k/a Lavell

v.STATE of Mississippi

NO. 2021-KA-00420-SCT

Supreme Court of Mississippi.

September 29, 2022

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALEXANDRA LEBRON

EN BANC.

KING, PRESIDING JUSTICE, FOR THE COURT:

¶1. Baby Boy Moore appeals his conviction of aggravated assault and argues both that the verdict was against the overwhelming weight of the evidence and that the prosecutor erred by using Moore's past convictions as impeachment evidence. Because Moore's claims lack merit, we affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. A Newton County Grand Jury indicted Moore for aggravated assault on January 27, 2020. On March 15, 2021, the jury found Moore guilty as charged. The trial court sentenced Moore to serve a term of eight years in the custody of the Mississippi Department of Corrections, with six years suspended.¹

¶3. At trial, Edward Eugene Smith testified that, on the morning of January 28, 2019, he was at Rick Chesney's house in Union, Newton County, where he periodically stayed.² Smith had stayed at Chesney's house the night before. Around 8:00 a.m., Smith testified that he was preparing to leave to take Chesney to the doctor. He stated that he was getting in on the driver's side of Chesney's car, when Moore walked up and tried to stab him. Smith testified that he had not seen Moore until he was approximately three to five feet away and that Moore had "caught me off guard and he stabbed me." Smith stated that Moore told him he was going to kill Smith. Smith fought with Moore for a short time and did not realize that he had been stabbed until he heard his "blood gurgle" because his lung had been punctured. According to Smith, the entire altercation lasted approximately fifteen seconds. Smith averred that he did not have any type of weapon and that he had not tried to stab Moore at any point.

¶4. Smith testified that he and Moore were acquaintances. Smith stated that he did not get along with Moore and that they did not like each other but that it was "[n]othing major." He testified that the two had never fought or argued previously. Smith did not know of a reason for Moore's actions but stated that Moore "had made his own opinion about me before he knew me ...." Smith again confirmed that he did not know of anything that could have been interpreted to provoke Moore. A surveillance tape at the nearby Tobacco Mart captured the altercation. Smith confirmed that the surveillance tape accurately portrayed the events that had occurred that morning.

¶5. Smith admitted that he wrote a statement that contradicted his in-court testimony in some ways. Smith's statement read:

Myself and Ricky Chesney were in the process of about to be headed to Decatur to the court for Mr. Rick. Rick was already in the car, I was about to be getting in the car when he (Baby boy) tried to stab me from behind. I noticed a glare from the knife blade over my left shoulder, then I just reacted. I tried to defend the blade best I could but eventually he got the best of me! The blade finally went 4 ½" into my left side hitting my lung. Baby boy saying "I'm fixing to kill you now!" Then I just laid on the ground and tried to stay calm as I could because all I could hear was gurggling [sic] sounds coming from my chest and blood and air bubbles and so forth!!

¶6. Chesney resided at 406 South Decatur Street in Newton County, next door to a Tobacco Mart. Chesney testified that the morning of January 28, 2019, he and Smith were getting ready to leave to go to Philadelphia to get a car part. Chesney stated that he was in the passenger seat of the car and that Smith was sitting on the driver's side when Chesney saw Moore walking toward Smith. Chesney testified that he had seen Moore "a time or two" but did not know him personally and did not have any problems with him in the past. Chesney testified that Smith "got up and went to meet [Moore] and all. I thought he was gonna talk to him or something or another. That's when they went to fighting."

¶7. Chesney testified that he did not hear Smith or Moore say anything before fighting. Chesney stated that the two were fist-fighting and kicking when Moore pulled out a pocketknife and stabbed Smith. Chesney did not see Smith with a knife and stated that Smith had not had a weapon at any time during the altercation. Chesney also said that he did not see Smith provoke Moore into fighting. In Chesney's opinion, the altercation lasted approximately fifteen minutes.

¶8. Mike Smith, a supervisor for the City of Union Public Works, testified that he had seen the altercation while he was driving past Chesney's house and that he had called the police. Mike did not see any weapons and did not stop to watch the fight. However, Mike testified that he drove back to the scene and saw Smith lying face-up in the parking lot of the nearby Tobacco Mart. The police had already arrived at that point.

¶9. Mitch Kennedy, assistant chief at the Union Police Department, testified that on January 28, 2019, he had been dispatched at approximately 8:00 a.m. regarding a disturbance on 406 South Decatur Street behind the Tobacco Mart. Assistant Chief Kennedy testified that when he arrived, Smith was lying on his back behind the Tobacco Mart bleeding from a stab wound in his abdomen. Smith informed Assistant Chief Kennedy that Moore had stabbed him. Assistant Chief Kennedy was not familiar with Moore at that time. Assistant Chief Kennedy testified that he checked Smith for weapons and found a pocketknife in his pocket. No other weapons were recovered in the area.

¶10. Assistant Chief Kennedy testified that when Investigator Lawrence Card, with the Union Police Department, arrived, the two began looking for Moore. Approximately fifteen to twenty minutes later, Assistant Chief Kennedy and Investigator Card located Moore at the Chevron at the junction of Highways 15 and 492 and took him into custody. Assistant Chief Kennedy stated that Moore had a knife in his hand at that time. Assistant Chief Kennedy did not observe any injuries on Moore, and he was not taken for medical treatment.

¶11. Investigator Card testified that, on the morning of the incident, he responded to Mike's call regarding an altercation on South Decatur Street. When Investigator Card arrived, he observed Assistant Chief Kennedy standing near Smith, who was lying on the ground in the parking lot of the Tobacco Mart. Investigator Card did not find any weapons on Smith. Investigator Card testified that it was his understanding that Smith and Chesney had intended to go to a court appearance that morning.

¶12. Investigator Card stated that he and Assistant Chief Kennedy were informed that Moore's pastor, who also lived on South Decatur Street, had taken Moore to the Chevron. When they arrived Moore presented the knife and laid it on the ground. Moore then was taken into custody without incident. Investigator Card also testified that Moore did not have any apparent injuries.

¶13. Investigator Card obtained a surveillance video from the Tobacco Mart that showed a "very grainy video" of the incident. That evening, Investigator Card spoke with Smith at the hospital. In addition to Smith's puncture wound, Investigator Card noticed "lacerations on his neck" and "what appeared to be a wound of some type around his navel." Smith also had "some type of skin irritating mark under his left eye and what appear[ed] to be a scratch on his nose."

¶14. Investigator Card testified that Smith had admitted during an interview that he had a pocketknife in his pocket. However, Investigator Card's police report stated, "Mr. Smith stated that he had several kni[v]es in his pocket, none of which he attempted to use on the accused."

¶15. Moore testified that the morning of the altercation, he had been walking down Decatur Street to go to his pastor's house when Smith "called me an N word and said my mama was a whore ...." Moore stated that Smith did this often and that Smith "starts something with me all the time." Moore crossed the street "to fistfight" Smith. Moore testified that Smith ran to meet him, pulled out a knife, and tried to use the knife on him. Moore testified that Smith was trying to kill him. He stated that he pulled his knife out only after Smith pulled out a knife.

¶16. Moore stated that, after the altercation, he left the scene to go to his pastor's house. Moore and his pastor then left to go to the Chevron to get gas. Moore stated that while they were at the gas station, the pastor's wife called to say that the police were at her house. Moore then waited at the Chevron for the police to arrive.

¶17. Moore testified that Smith did not like him because Smith had been shoplifting from the church store where Moore worked and because Moore had stopped him from stealing. Moore said that he had previously witnessed Smith display a knife at church. He stated that on another occasion, Smith had threatened him with a knife and a stick but that Moore was able to get away. Moore also testified that Smith had tried to run him over at one point and that he had reported the incident to the police, but nothing further had happened in relation to that incident.

ISSUES

I. Whether the verdict was against the overwhelming weight of the evidence.

II. Whether the prosecutor's impeachment using Moore's prior convictions warranted a new trial.

ANALYSIS

I. Whether the verdict was against the overwhelming weight of the evidence.

¶18. "When reviewing challenges to the weight of the evidence, this Court views the evidence ‘in the light most favorable to the verdict.’ " Pulliam v. State , 328 So. 3d 93, 97 (Miss. 2021) (quoting Little v. State , 233 So. 3d 288, 292 (Miss. 2017) ). "This Court will not disturb a jury verdict on a weight-of-the-evidence challenge, unless we find that the verdict ‘is so contrary to the overwhelming weight of the...