Pope v. State

330 So.3d 409

J'Var Vontou POPE and Robert Emil Hart, Appellants,

v.STATE of Mississippi, Appellee.

No. 2020-KA-00025-COA

Court of Appeals of Mississippi.

June 29, 2021

Rehearing Denied October 19, 2021

ATTORNEYS FOR APPELLANTS: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES, Jackson FRANK PHILLIP WITTMANN IV, Waveland, Hancock County JIM L. DAVIS III

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

BEFORE McDONALD, P.J., McCARTY AND EMFINGER, JJ.

McCARTY, J., FOR THE COURT:

¶1. Two co-defendants were accused and convicted of robbing a trio of men—shooting two and killing another. Finding no reversible error, we affirm.

FACTS

¶2. Three men sat outside playing dominos one Spring evening. As the sky grew dim, and it became too dark to continue, Jerry Lee Lewis, Eugene Weathersby, and Mitchell Weathersby packed up their game. The trio then stood around Mitchell's car, talking and drinking beer, when two men approached them with a shotgun.

¶3. One of the men said, "You know what this is" and "give it up." Understanding that they were being robbed, Mitchell and Eugene threw their hands in the air. Eugene tossed all of the cash he had—around forty to fifty dollars—on the ground. The robbers collected the money and turned to Jerry. After rifling through Jerry's pockets and stealing his wallet and cash, one of the men said "f - - - it" and shot him. Jerry then fled, the sounds of gunshots continuing as he hid in a ditch around the corner.

¶4. Eugene also heard the gunshots and jumped into Mitchell's car. As he was getting in, Eugene saw Mitchell running and falling as though he had been shot. Eugene was unsure if he had been shot himself, but he could feel something "hanging" out of him. He tried to drive to the hospital but crashed into a pole only half a block away. He remained there until paramedics arrived.

¶5. Eugene was taken to the hospital where he realized that he had indeed been shot. What he had felt "hanging" out of him was the "tissue from his abdomen protruding." Eugene sustained injuries to his stomach, spleen, diaphragm, colon, and pancreas. He survived but was hospitalized for over five weeks.

¶6. Jerry and Mitchell had also been shot. Jerry sustained a "fist-sized" hole in his chest. His lung and "the air blowing out of the cavity" were clearly visible from the wound. Jerry remained hospitalized for two weeks. Mitchell was not as fortunate. Officers found him lying still with his pockets pulled out of his pants. He had bled to death.

¶7. During the investigation, police officers found one unfired shotgun shell and three fired shotgun shells at the scene. The investigators began to receive tips about suspects. The first tip led them to J'Var Pope. As police investigate Pope, they learned his grandmother's home was near the scene of the crime. During a search of the house, shell casings were found that matched those found at the crime scene.

¶8. Police also received a tip directing them to Robert Hart. They soon learned that Hart had been fitted with a GPS ankle monitor by the Mississippi Department of Corrections. The ankle monitor pinned Hart near the scene at the time of the crime.

¶9. The surviving witnesses, Jerry and Eugene, were separately interviewed by the police. During each interview, the witnesses were shown photo lineups containing pictures of Pope and Hart. Neither witness identified Pope or Hart. They said it had been too dark to properly identify their assailants.

COURSE OF PROCEEDINGS

¶10. Eventually, Pope and Hart were arrested and charged with one count of capital murder, two counts of aggravated assault, and two counts of armed robbery. The State originally sought the death penalty, and so separate trials were ordered.¹ Later on, the State waived the death penalty and filed a motion to consolidate the two trials. The trial court granted the motion. Pope and Hart each subsequently filed a motion to sever, but their requests were denied.

¶11. The State later moved to amend the indictment to charge Pope and Hart as habitual offenders. A separate hearing was held on the motion where the State submitted certified copies of their previous convictions to justify the habitual charge. The trial court granted the motion, and the indictment was amended.

¶12. The initial sixty-eight member jury venire consisted of thirteen black potential jurors and fifty-five white potential jurors. During the peremptory-challenge phase, the defense raised two Batson allegations against the State. Both times the trial court determined that the defense had failed to show a prima facie case of discrimination and overruled the objections.

¶13. Marcus Peterson, Pope's cousin, testified that the day after the shooting, Pope "wanted to hide a gun down by my mom's under the trailer, and I told him, no, he couldn't do it because of the simple fact that she don't like guns around her house and I was a convicted felon." Pope told him that the gun was located "down at his grandmother's house behind the house."

¶14. Peterson's sister, Regina Addison, also testified. She overheard Pope tell another witness "we just need Marcus to be quiet because he telling on his people." Later in the same conversation, Pope reiterated that "Marcus just need to be quiet" and added "we got the gun put up, and nobody going to find it."

¶15. Dewayne Bowie testified that he had a conversation with Pope and Hart the day before the crime. During the conversation, Hart told Bowie about his plans to "hit a lick" (i.e., commit a robbery) at "the blowhouse." Bowie testified that Hart did most of the talking during the conversation, but Pope said he knew where to get a gun.

¶16. The surviving victims also testified at trial. Both Jerry and Eugene stated that they were unable to identify their assailants. Eugene testified that he was unable to identify Pope or Hart from the photo lineups he was shown during his interview with the police.

¶17. At this time the defense objected. They argued that this information had not previously been disclosed and that such a discovery violation warranted a mistrial. The trial court determined that the audio recordings of the police interviews, copies of the photo lineups, and the police narratives had been turned over to the defense during discovery. The defendants’ motion for a mistrial was overruled.

¶18. During the objection to jury instructions, the defense opposed the elements instructions submitted by the State. Because the State conceded the evidence was circumstantial, the defense argued each elements instruction should include the words "and to the exclusion of all reasonable hypotheses consistent with innocence." The trial court overruled the objection because the circumstantial nature of the case would be addressed elsewhere in the instructions. However, the court granted a general circumstantial-evidence instruction, a two-theory instruction, and a one-continuous-transaction instruction.

¶19. A unanimous jury found both Pope and Hart guilty of all counts. Pope was sentenced as a habitual offender to life for Count I, the capital murder of Mitchell Weathersby, and 49 years each for Counts II-V, the aggravated assaults and armed robberies of Eugene Weathersby and Jerry Lee Lewis, with all sentences to run concurrently. Hart was also sentenced as a habitual offender. He received life for Count I, the capital murder of Mitchell Weathersby, 20 years each for Counts II and IV, the aggravated assaults of Eugene Weathersby and Jerry Lee Lewis, and 49 years each for Counts III and V, the armed robberies of Eugene Weathersby and Jerry Lee Lewis, with all sentences to run concurrently.

ANALYSIS

¶20. Pope and Hart raise eight assignments of error. Each will be addressed in turn.

I. The defendants failed to make a prima facie showing of discrimination.

¶21. Pope and Hart argue that the State violated their Constitutional rights when it used three of its peremptory challenges to exclude black jurors from the jury panel. See Batson v. Kentucky , 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Specifically, they contend the trial court erred by failing to proceed to the second and third steps of a Batson analysis. This failure, they argue, warrants remand for an in-depth Batson hearing.

¶22. The Equal Protection Clause protects criminal defendants from purposeful racial discrimination in the jury selection process during a State's use of peremptory challenges against prospective jurors. Batson , 476 U.S. at 79-80, 106 S.Ct. 1712. "The [ Batson ] Court stressed a basic equal protection point: In the eyes of the Constitution, one racially discriminatory peremptory strike is one too many." Flowers v. Mississippi , ––– U.S. ––––, 139 S. Ct. 2228, 2241, 204 L.Ed.2d 638 (2019). "A single invidiously discriminatory governmental act is not immunized by the absence of such discrimination in the making of other comparable decisions." Batson , 476 U.S. at 95, 106 S.Ct. 1712. "For evidentiary requirements to dictate that several must suffer discrimination before one could object, would be inconsistent with the promise of equal protection to all." Id . at 95-96, 106 S.Ct. 1712 (citations and internal quotation marks omitted).

¶23. There is a three-step process to safeguard this constitutional protection. Id . First, the party challenging a peremptory strike must make a prima facie showing of purposeful discrimination. Id . at 93-94, 106 S.Ct. 1712. Second, if "the defendant makes a prima facie showing, the burden shifts to the State to come forward with a neutral explanation for challenging black jurors." Id . at 97, 106 S.Ct. 1712. Finally, "[t]he trial court then will have the duty to determine if the defendant has established purposeful discrimination." Id . at 98, 106 S.Ct. 1712. Only the first step is applicable in the case at hand.

A. The burden to make a prima facie showing.

¶24. Our Supreme Court has explained that "the pivotal inquiry to determine a prima facie case ... is whether the opponent of the strike...