Moore v. State

300 So.3d 1092

Everett MOORE a/k/a Everett S. Moore a/k/a Eric Moore, Appellant

v.STATE of Mississippi, Appellee

NO. 2019-KA-00725-COA

Court of Appeals of Mississippi.

June 23, 2020

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW WYATT WALTON ASHLEY SULSER

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 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 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.

¶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 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.

¶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...