Moss v. State

190 So.3d 9

Joseph MOSS a/k/a Joseph Deshawn Moss, Appellant

v.STATE of Mississippi, Appellee.

No. 2014–KA–00919–COA.

Court of Appeals of Mississippi.

Dec. 8, 2015.

Rehearing Denied May 3, 2016.

Office of State Public Defender by George T. Holmes, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before LEE, C.J., CARLTON and FAIR, JJ.

LEE, C.J., for the Court:

¶ 1. Joseph Moss was convicted in the Wayne County Circuit Court of two counts of manslaughter. He was sentenced to twenty years on each count, with the sentences to be served consecutively, for a total of forty years in the custody of the Mississippi Department of Corrections. In his appeal, Moss argues the trial court erred by: (1) denying his motion for a directed verdict and motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial; (2) overruling his objection pursuant to Mississippi Rule of Evidence 404(b) ; (3) overruling his objection pursuant to Mississippi Rules of Evidence 106 and 1002 ; and (4) admitting evidence of his involuntary confession. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On January 18, 2013, Moss awakened to his sister requesting that Moss and her boyfriend, named True, leave her residence at the Highrise Apartments in Waynesboro, Mississippi. With no transportation, Moss contacted his mother to pick him up. True contacted Tyrone Clemons and Fredrick Hammock to pick him up.

¶ 3. While waiting for Moss's mother, Moss, True, Clemons, and Hammock went to the store in Hammock's car for alcohol and cigarettes. During the trip, Moss noticed a gun in the armrest of the car. When Moss, True, Clemons, and Hammock returned from the store, they remained in the parking lot at the Highrise Apartments. Throughout the day, Clemons and Hammock were verbally aggressive towards Moss. In a few separate instances, Clemons and Hammock uttered profanities; engaged in name-calling; and made verbal threats towards Moss, his sister, and his brother.¹

¶ 4. That evening, Moss returned to the car and obtained the gun he noticed earlier. While in the car, Moss kicked what he thought was another gun but was actually a knife. After concealing the gun under his jacket and in his waistband, Moss walked toward the back of the car. At this point, either Clemons or Hammock moved towards Moss and, with his hands in his pockets, yelled: “Man, f* * * this s* * *. Man, come here!” At that point, Moss shot the man while the other man ran and jumped in the car.² From a distance of greater than three feet, Moss shot Clemons six times (five of which were in Clemons's back) and shot Hammock seven times (four of which were in Hammock's back) before he fled from the Highrise Apartments. At approximately 7:30 p.m., the Waynesboro police arrived at the scene. No weapons were found on either Clemons or Hammock. The only weapon found at the scene was the knife, which was found in the car's console.

¶ 5. Around 10:30 p.m., Moss called his ex-girlfriend's mother, Dawn Young, and stated that he had “nothing to lose” and was coming to “teach her [daughter] a lesson” for breaking up with him. According to Young, Moss indicated he had nothing to live for.

¶ 6. Moss later called his ex-girlfriend, Kaylee Burden, and told her “he had shot two people and ... was coming for [her].” At this point, Moss became a person of interest in the shooting of Clemons and Hammock. However, an attempt by the police to locate Moss was unsuccessful.

¶ 7. Two days later, on January 20, 2013, Moss turned himself in to the Waynesboro Police Department. Sergeant Brian Everett and Officer Chris Harris conducted a video-recorded interview of Moss.³ Before the interview, Moss was advised of his Miranda rights, signed a waiver of those rights, and agreed to talk to the officers. Initially, Moss repeatedly denied any involvement in the shooting of Clemons and Hammock. Because Officer Harris did not think Moss was being truthful, Officer Harris lied to Moss by stating that there were three witnesses who identified Moss as the shooter. Sergeant Everett also told Moss that there were three witnesses and further stated: “We want to help you out.” Moss continued to deny involvement but eventually claimed he felt threatened by Clemons and Hammock and shot them in self-defense.

¶ 8. At trial, Moss objected under Mississippi Rules of Evidence 106 and 1002 to Officer Harris's testimony of the interview. Moss later renewed the objection, which was overruled again. The video of the interview was then admitted into evidence without objection. The State noted that the video was not watched in open court due to the jurors' ability to hear. However, the trial court, the State, and Moss encouraged the jurors to watch the video during jury deliberations.

¶ 9. At the conclusion of the State's case, Moss moved for a directed verdict, which was denied. Without producing any evidence, the defense rested. After deliberations, the jury convicted Moss of two counts of manslaughter. Moss filed his motion for a JNOV or, in the alternative, a new trial, which was denied.

DISCUSSION

I. Weight and Sufficiency of the Evidence

¶ 10. In his first issue, Moss claims the trial court erred in denying his motion for a directed verdict and motion for a JNOV or, in the alternative, a new trial.⁴ Specifically, in his brief, Moss argues the evidence shows that he killed Clemons and Hammock in self-defense, and therefore, the evidence is not sufficient to support his manslaughter convictions. Moss also argues that the verdict is against the overwhelming weight of the evidence.

¶ 11. As a preliminary matter, we note that Moss did not state the specific grounds for his motion for a directed verdict. See Jordan v. State, 936 So.2d 368, 372 (¶ 20) (Miss.Ct.App.2005). Furthermore, aside from the issues later addressed in this opinion, Moss's motion for a JNOV or, in the alternative, a new trial is vague and general at best. See id. at (¶ 22). Therefore, this issue is procedurally barred. See id. at 372–73 (¶ 22). Procedural bar notwithstanding, we find this issue is without merit.

A. Directed Verdict or JNOV

¶ 12. “Motions for a directed verdict and a [JNOV] challenge the legal sufficiency of the evidence, and the standard[s] of review ... are identical.” Tucker v. State, 62 So.3d 397, 407 (¶ 37) (Miss.Ct.App.2010) (quoting Nelson v. State, 10 So.3d 898, 905 (¶ 29) (Miss.2009) ). “Because each challenge requires consideration of the evidence before the trial court when made, an appellate court reviews the ruling on the last occasion the challenge was made in the trial court.” Id. (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993) ). Here, this occurred when the trial court denied Moss's motion for a JNOV. “Reversal of the trial court's ruling can occur only when, ‘after viewing all the evidence in the light most favorable to the verdict, one or more of the elements of the charged offense is such that reasonable and fair-minded jurors could only find the accused not guilty.’ ” Id. (quoting Croft v. State, 992 So.2d 1151, 1157 (¶ 24) (Miss.2008) ).

¶ 13. “Once a defendant claims self-defense, the State bears the burden to prove beyond a reasonable doubt that the defendant did not act in self-defense.” Franklin v. State, 72 So.3d 1129, 1136 (¶ 29) (Miss.Ct.App.2011) (citing McIntosh v. State, 749 So.2d 1235, 1240 (¶ 17) (Miss.Ct.App.1999) ). “A successful self-defense argument requires that the jury believe that it was objectively reasonable for the defendant to believe he was in danger of imminent death or serious bodily harm.” Id. (quoting Livingston v. State, 943 So.2d 66, 71 (¶ 13) (Miss.Ct.App.2006) ). “Thus, the question of whether a defendant acted in self-defense or in defense of others is a question for the jury to resolve.” Id. (citing White v. State, 976 So.2d 415, 420 (¶ 23) (Miss.Ct.App.2008) ).

¶ 14. Although Moss claims that he acted in self-defense, the State presented contradictory evidence to show: Moss shot Clemons six times (five of which were in the back) and shot Hammock seven times (four of which were in the back) at a distance of greater than three feet; Moss fled the scene after the shooting; no weapons were found on either Clemons or Hammock; Moss said to Young that he had “nothing to lose” and was going to “teach her [daughter] a lesson”; and Moss stated to his ex-girlfriend “he had shot two people, and ... was coming for [her].”

¶ 15. As the fact-finder, it was within the jury's province to consider this evidence and determine whether or not Moss acted in self-defense. See id. at 1137 (¶ 31). Viewing the evidence in the light most favorable to the State, and giving the State the benefit of all favorable inferences that may be reasonably drawn from the evidence, we find that the record reflects that sufficient evidence was presented for a competent jury to find beyond a reasonable doubt that Moss was guilty of manslaughter and was not acting in reasonable self-defense. See Howell v. State, 144 So.3d 211, 218 (¶ 23) (Miss.Ct.App.2014). Therefore, we find no error in the trial court's denial of Moss's motion for a JNOV. See id.

B. New Trial

¶ 16. “Unlike a motion for a directed verdict or JNOV, a motion for a new trial challenges the weight of the evidence.” Jones v. State, 991 So.2d 629, 634 (¶ 12) (Miss.Ct.App.2008) (citing Sheffield v. State, 749 So.2d 123, 127 (¶ 16) (Miss.1999) ). “A new trial will not be awarded unless ‘the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice.’ ” Id. (quoting Esparaza v. State, 595 So.2d 418, 426 (Miss.1992) ).

¶ 17. Moss contends that the evidence shows that he acted in self-defense. As previously mentioned, whether Moss acted in reasonable self-defense was a question for the jury to decide. See Franklin, 72 So.3d at 1137 (¶ 33). The jury resolved this issue in favor of Moss's conviction. See id. We find that...