Perry L. Mask v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01014-COA
PERRY L. MASK
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/14/2005
HON. PAUL S. FUNDERBURK
ALCORN COUNTY CIRCUIT COURT
CLAY SPENCER NAILS
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
JOHN RICHARD YOUNG
CRIMINAL - FELONY
CONVICTED OF MURDER AND SENTENCED
TO SERVE A TERM OF LIFE IMPRISONMENT
WITHOUT PAROLE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 06/24/2008
BEFORE KING, C.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Perry L. Mask was convicted of murder and sentenced to serve a term of life without parole
in the custody of the Mississippi Department of Corrections. On appeal, Mask argues that the trial
court erred in: (1) granting jury instruction C-18, (2) not granting a mistrial due to the prosecutor’s
improper closing argument, (3) denying his motion for a directed verdict, and (4) denying his motion
for a new trial. We find no error and affirm.
FACTS
¶2.
On February 29, 2004, Charles Bascomb and his son, Jason Zubke, were parked in a car on
County Road 306 in Alcorn County, Mississippi. Mask approached the car and shot Bascomb in
the back. Bascomb died five days later. For twenty days, Mask evaded numerous attempts for his
arrest. Mask was eventually arrested in Alcorn County.
¶3.
At trial, Zubke testified that on the day in question, he and his father, Bascomb, were
traveling to Reagon Moss’s house. They went to see Moss because Moss and Bascomb had gotten
into a fight the night before. Zubke testified that Christy Moss was outside of the house when
Bascomb and Zubke arrived. She told them that Mask had a gun.
¶4.
Zubke testified that Mask approached the car and asked them to meet him on a dirt road.
Zubke stated that he left with Bascomb, but Mask followed them. Zubke testified that Mask
signaled for them to pull over, so they pulled the car over near a cemetery on County Road 306.
According to Zubke, Mask then walked up to the driver’s side window of Bascomb’s car, pulled out
a gun, and said, “[y]ou ripped us off . . . . You don’t think I will shoot you. I will.” Zubke testified
that after this statement Mask shot Bascomb in the back and stated, “I didn’t mean to shoot your dad.
I just meant to scare him . . . . If my name gets out to the cops, I am coming back for you and the
rest of your family.” After Mask fled in his maroon truck, Zubke waived down a truck driver for
help. Another truck driver arrived and called 9-1-1.
¶5.
During cross-examination, Mask’s attorney attempted to impeach Zubke with a prior
statement that he gave to an investigator with the Alcorn County Sheriff’s Department. In that
statement, Zubke said that he went to Moss’s house with Bascomb to see Mask and not to see Moss.
Furthermore, in his statement, Zubke claimed that Mask told them to meet him on County Road 306
and that they went to County Road 306 and waited on Mask. This statement is slightly different
from Zubke’s testimony because at trial Zubke testified that Mask pulled him and Bascomb over.
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Zubke’s testimony regarding the events of the shooting, however, were consistent with his
statement. Zubke also admitted that he had smoked marijuana on the morning of the shooting and
that Bascomb borrowed money from Moss before the shooting.
¶6.
Anthony Luttrel, the first truck driver to arrive after the shooting, testified next for the State.
Luttrel testified that Zubke said Mask shot his father over some money. Luttrel also stated that
before he got to the scene of the shooting he was almost hit by a maroon truck that was being driven
recklessly.
¶7.
Next, Michael Beckner, an investigator with the Alcorn County Sheriff’s Department,
testified. Investigator Beckner arrived at the scene of the shooting when Bascomb was being
airlifted to the hospital. Investigator Beckner interviewed Zubke. Zubke told Investigator Beckner
that Mask shot his father.
¶8.
Investigator Beckner also interrogated Mask twice after Mask was captured. Investigator
Beckner testified that during one interrogation, Mask said that he shot Bascomb when he and
Bascomb were fighting over a gun. During the other interrogation, Mask said that he had to shoot
Bascomb or Bascomb would shoot him.
¶9.
Dr. Steven T. Hayne, the pathologist who performed the autopsy, opined that Bascomb’s
death was caused by a bullet that lacerated Bascomb’s spinal cord.
ANALYSIS
I.
¶10.
Whether the trial court erred in giving jury instruction C-18.
Mask argues that the trial court erred when it accepted the State’s jury instruction C-18,
which is a flight instruction. Instruction C-18 reads as follows:
The Court instructs the Jury that flight is a circumstance from which guilty
knowledge and fear may be inferred. If you find from the evidence in this case,
beyond a reasonable doubt, that the defendant, PERRY L. MASK, did flee from the
scene of the death of Charles A. Bascomb, then the flight of Perry L. Mask is to be
considered with all other evidence in this case. You will determine from all of the
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facts whether the flight was from a conscious sense of guilt or whether it was caused
by other things, and give it such weight as you think it is entitled to in determining
the guilt or innocence of PERRY L. MASK.
¶11.
In Shaw v. State, 915 So. 2d 442, 447 (¶18) (Miss. 2005), the Mississippi Supreme Court
considered a similar instruction. The supreme court stated:
We have consistently held that a defendant's flight is admissible as evidence of
consciousness of guilt. However, a flight instruction is appropriate only where the
flight is unexplained and somehow probative of guilt or guilty knowledge.
Therefore, evidence of flight is inadmissible where there is an independent reason
for the flight. Also, it is well settled that evidence of flight or escape is admissible
as an exception to M.R.E. 404(b) in order to show guilty knowledge. While
evidence of flight is admissible under Rule 404(b), it must be filtered through M.R.E.
403.
Id. (citations omitted). The supreme court held that “[i]n determining whether to admit evidence of
flight under Rule 403, the trial court is afforded great discretion.” Id.
¶12.
Here, the trial judge decided to give the flight instruction after he found that Mask had not
put forward any evidence that explained the flight, and he found that the evidence of flight was
admissible under Mississippi Rule of Evidence 403. Mask now argues that this finding was in error
because Investigator Beckner testified that Mask said he shot Bascomb in self-defense.
¶13.
Mask argues that Tran v. State, 681 So. 2d 514, 519 (Miss. 1996) is instructive on this issue.
In Tran, the supreme court found that the defendant and the co-defendant fled the scene of the
murder “to avoid retribution from the friends of [the victim].” Id. The supreme court held that:
where the defendant is arguing self-defense, a flight instruction should be
automatically ruled out and found to be of no probative value. A flight instruction
will have particular prejudicial effect in a case where self-defense is argued. Where
the person against whom self-defense has been exercised . . . flight seems logical and
necessary. . . . To suggest and highlight, through the sanction of a court granted
instruction, that the defendant's flight was possibly an indication of guilt suggests
that the court does not accept the self-defense argument.
Id. (quoting Banks v. State, 631 So. 2d 748, 751 (Miss. 1994)).
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¶14.
Tran is readily distinguishable. First, the defendant in Tran actively pursued the defense of
self-defense. Here, the only evidence of the possibility of self-defense came from Investigator
Beckner’s testimony regarding what Mask told him during the two interrogations. Neither of these
hearsay statements rise to the level of actively asserting the defense of self-defense. Second, the
defendants in Tran explained that they fled because they were trying to avoid retribution. In the
present case, there was no evidence that Mask fled because he feared retribution.
¶15.
We find that Mask did not offer any evidence of an alternative explanation for why he fled
the scene of the shooting, and the trial judge properly applied the test in Shaw. Therefore, we find
no merit to this issue.
II.
¶16.
Whether the trial court erred in not declaring a mistrial due to an alleged
improper closing argument.
Mask argues that the trial court erred by not declaring a mistrial because the State, during
its closing argument, commented on his right not to testify. During Mask’s closing argument, one
of Mask’s attorneys stated:
Now, when Mr. Beckner was on the witness stand, he testified he investigated and
gathered information . . . from the witnesses. Even in his investigation, he . . . just
took Mr. Zubke’s statement and went on . . . . Something more should have been
done. Something more should have been presented on that witness stand as far as
witnesses are concerned, as far as documents are concerned, to make you feel
comfortable as to what decision you are going to make.
(Emphasis added). During rebuttal, the prosecutor responded that Mask’s attorney “also alludes to
these other witnesses. They put witnesses on the stand that testified. They can call those witnesses
also if there is pertinent evidence.” After this statement was made, Mask objected.
¶17.
“The standard of review that appellate courts must apply to lawyer misconduct during
opening statements or closing arguments is whether the natural and probable effect of the improper
argument is to create unjust prejudice against the accused so as to result in a decision influenced by
the prejudice so created." Slaughter v. State, 815 So. 2d 1122, 1130 (¶45) (Miss. 2002). “Given the
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latitude afforded an attorney during closing argument, any allegedly improper prosecutorial
comment must be considered in context, considering the circumstances of the case, when deciding
on their propriety.” Ballenger v. State, 667 So. 2d 1242, 1270 (Miss. 1995) (quoting Ahmad v. State,
603 So. 2d 843, 846 (Miss. 1992)).
¶18.
After reviewing the comments made by Mask’s attorney and the State, we find that the State
did not infringe on Mask’s right not to testify. We find that the prosecutor merely attempted to rebut
the accusations made by Mask’s attorney in his closing argument that the State did not call enough
witnesses or present all the evidence that was available to them. See Turner v. State, 953 So. 2d
1063, 1072 (¶30) (Miss. 2007) (finding a prosecutor’s comment to be “a fair response to the
defense's claim that the State failed to call some witnesses who could have been helpful to the jury”).
Thus, we find no merit to this issue.
III.
¶19.
Whether the trial court erred in denying Mask’s motion for a directed
verdict.
When reviewing a motion for a directed verdict, the Court looks to the sufficiency of the
evidence. Gleeton v. State, 716 So. 2d 1083, 1087 (¶14) (Miss. 1998). All of the evidence must be
construed in the light most favorable to the verdict. Id.
Should the facts and inferences considered in a challenge to the sufficiency of the
evidence "point in favor of the defendant on any element of the offense with
sufficient force that reasonable men could not have found beyond a reasonable doubt
that the defendant was guilty," the proper remedy is for the appellate court to reverse
and render.
Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citing Edwards v. State, 469 So. 2d 68, 70
(Miss. 1985)). However, if reasonable jurors could have reached different conclusions with respect
to every element of the offense, the evidence will be considered sufficient. Id. The prosecution
receives the benefit of all “favorable inferences that may be reasonably drawn from the evidence”
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when determining if the evidence presented was sufficient to support the verdict. Smith v. State, 839
So. 2d 489, 495 (¶12) (Miss. 2003).
¶20.
Mask was charged with murder. Mississippi Code Annotated section 97-3-19(1)(a)-(b)
(Rev. 2006) defines murder as:
(1) The killing of a human being without the authority of law by any means or in
any manner shall be murder in the following cases: (a) When done with deliberate
design to effect the death of the person killed, or of any human being; (b) When done
in the commission of an act eminently dangerous to others and evincing a depraved
heart, regardless of human life, although without any premeditated design to effect
the death of any particular individual . . . .
¶21.
To support Mask’s conviction, the State presented the following evidence. Zubke testified
that Mask approached his father, pointed a gun at his father, and shot his father. Zubke also testified
that Mask said it was an accident right after he shot Bascomb. Even if it was an accident, a
reasonable juror could still find Mask guilty of depraved-heart murder under section 97-3-19(1)(b).
¶22.
Mask, however, argues that there was not sufficient evidence because Investigator Beckner
testified that Mask claimed that he shot Bascomb in self-defense. A reasonable juror could reject
this argument because Bascomb was shot in the back. A disputed issue of fact does not mean that
there is insufficient evidence. This is merely a question of fact that should be resolved by the jury.
Hales v. State, 933 So. 2d 962, 968 (¶24) (Miss. 2006).
¶23.
After reviewing the evidence in the light most favorable to the verdict, we find that there was
sufficient evidence for the trial judge to deny Mask’s motion for a directed verdict.
IV.
¶24.
Whether the trial court erred in denying Mask’s motion for a new trial.
“When reviewing a denial of a motion for a new trial based on an objection to the weight of
the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of
the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.
2d at 844 (¶18). The evidence is weighed in the light most favorable to the verdict. Id. “[T]he
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power to grant a new trial should be invoked only in exceptional cases in which the evidence
preponderates heavily against the verdict.” Id. (citation omitted).
If the verdict is against the
overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id.
¶25.
There were only two witnesses to the shooting: Mask, the defendant, and Zubke, the victim’s
son. Zubke was the only witness who testified. Mask argues that this Court should consider
Investigator Beckner’s testimony that Mask stated the shooting was in self-defense. Mask also
argues that little weight should be placed on Zubke’s testimony because Zubke was under the
influence of illegal drugs, and Zubke was impeached several times during the trial.
¶26.
The verdict was not against the overwhelming weight of the evidence because Zubke made
consistent statements in court and to other individuals after the shooting about what Mask did and
said right before he shot Bascomb. Furthermore, the attempted impeachment involved insignificant
details that happened prior to the shooting. “We have routinely held that the jury is the judge of the
credibility of a witness.” Price v. State, 898 So. 2d 641, 652 (¶25) (Miss. 2005). We refuse to
overturn the factual determinations of the jury in this case. Therefore, we find no merit to this issue.
¶27.
We affirm Mask’s conviction and sentence.
¶28. THE JUDGMENT OF THE CIRCUIT COURT OF ALCORN COUNTY OF
CONVICTION OF MURDER AND SENTENCE OF LIFE WITHOUT PAROLE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO ALCORN COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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