Lasharis T. Alford v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-KA-00241-COA
LASHARIS T. ALFORD A/K/A POOKIE DOG A/K/A
POOKIE DOS
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
1/18/2007
HON. JAMES T. KITCHENS, JR.
CLAY COUNTY CIRCUIT COURT
THAD BUCK
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF COUNT I, MURDER, AND
SENTENCED TO LIFE IMPRISONMENT AND
COUNT II, POSSESSION OF A FIREARM BY A
FELON, AND SENTENCED TO THREE YEARS,
WITH SENTENCES IN COUNTS I AND II TO
RUN CONSECUTIVELY, ALL IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AS A
HABITUAL OFFENDER WITHOUT
ELIGIBILITY FOR PAROLE OR PROBATION
AFFIRMED - 8/26/2008
BEFORE MYERS, P.J., CHANDLER AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
In the Clay County Circuit Court, a jury found Lasharis T. Alford guilty of murder and
possession of a firearm as a previously convicted felon. The circuit court established that Alford
was a habitual offender and sentenced him to life imprisonment in the Mississippi Department of
Corrections (MDOC) without the possibility of parole for the murder conviction and to three years
in the custody of the MDOC for the possession of a firearm conviction to run consecutively to the
murder sentence.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
On the early evening of June 23, 2006, the victim, Demarcus Johnson, also known as “Sonny
Jack,” was at the Cockrell store, a local hangout, in the Mantee community of Clay County. There
was still some daylight; Johnson was speaking to friends about picking his little girl up; and the
“vibe was all good.” Alford, nicknamed “Pookie Dog,” arrived at Cockrell’s after Johnson. He
drove up “spinning . . . just driving . . . crazy” and acting very angry at someone or something. It
became apparent that Alford’s “tirade” was directed against Johnson. Alford and Johnson were
known to be former friends. Johnson and others tried to ignore Alford. Johnson eventually left
Cockrell’s with a friend and drove to another hangout, Mosley Grocery, which was just down the
road. Mosley’s contained a pool hall and a kitchen from which to order food.
¶3.
Alford followed Johnson and arrived in the parking lot at Mosley’s shortly after Johnson.
Alford was still in “angry rage mode” and was seen standing a few feet in front of Johnson’s vehicle,
while Johnson sat on the hood of his car smoking a cigarette. One witness stated the two men
“exchanged words.” Alford, who appeared very upset, was overheard making comments to the
effect that Johnson should “stay in his league.” Challenging Johnson, Alford told him that he was
“the type of dude [who would] shoot you in the face.” Johnson did not appear to be provoked by
Alford or take him seriously. Calling Alford’s supposed bluff, Johnson replied, “well, shoot me
then,” and pointed a finger to his temple. Several gunshots then rang out. Three eyewitnesses
testified they saw Alford pull a stainless steel pistol from the back of his shirt and shoot Johnson in
the face. Johnson appeared to be unarmed and did not have time to react in self-defense against
Alford. Alford walked around Johnson’s prostrate body, went into Mosley’s, ordered a beer, and
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then left the scene.
¶4.
A Clay County grand jury returned a two-count indictment against Alford. Count one
charged Alford with murder pursuant to Mississippi Code Annotated section 97-3-19 (Rev. 2006).
Count two charged Alford with unlawful possession of a firearm as a prior convicted felon pursuant
to Mississippi Code Annotated section 97-37-5 (Rev. 2006). Both counts of the indictment noted
Alford had been twice previously convicted of aggravated assault, in 1998 and 1999. For those prior
offenses, Alford had been sentenced to five years and one year, respectively, in the custody of the
MDOC.
¶5.
On January 16, 2007, the defense filed a motion to sever counts one and two of the
indictment, which was denied. Also on this day, a two-day jury trial commenced. In its case-inchief, the State called seven witnesses, three of whom were eyewitnesses in close proximity to the
shooting. All of the eyewitnesses testified to the same sequence of events, as stated above, leading
up to the shooting. Additionally, the owner of Mosley’s testified that while she was not an
eyewitness to the shooting since she was inside Mosley’s at the time, she heard the shots fired.
When Alford entered Mosley’s for a beer, she asked him what he had done. Alford responded that
he had shot “Sonny Jack.”
¶6.
Dr. Steven Hayne, who was qualified as an expert in forensic pathology, testified for the
State as to the manner and cause of Johnson’s death. An autopsy revealed four gunshot wounds to
Johnson’s body: two to the head, one to the forearm, and one to the thigh. The first gunshot wound
to the head was lethal; the wound to Johnson’s forearm was indicative of defensive posturing. Dr.
Hayne deemed the manner of death as a homicide.
¶7.
Also testifying for the State was Eddie Scott, an investigator with the Clay County Sheriff’s
Department. Scott secured the crime scene after the shooting and retrieved three empty shell casings
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from a .9 millimeter automatic weapon. Later that evening, law enforcement officials were able to
locate Alford’s vehicle in nearby Pheba, Mississippi. A search of the vehicle resulted in finding a
stainless steel weapon on the floorboard. The weapon, which held a total of ten rounds, contained
six bullets. Byron McIntire, an expert in the field of firearm identification and comparison, testified
that he performed a comparison test of some of the shell casings found at the scene and determined
they were fired from the weapon found in Alford’s vehicle. Additionally, McIntire testified that a
comparison test of two of the bullets retrieved from Johnson’s body, which were relatively intact
and not mutilated, also resulted in the conclusion that they were fired from the weapon found in
Alford’s vehicle.
¶8.
After the State’s case-in-chief concluded, the defense moved for a directed verdict, which
was denied. The defense then rested without calling any witnesses to the stand. The jury returned
a verdict of guilty as to both counts one and two of the indictment. Alford was deemed a habitual
offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007), having been twice
convicted and sentenced for one year or more for aggravated assault stemming from two separate
shooting incidents. The circuit court judge sentenced Alford to life imprisonment without the
possibility of parole for the murder charge and three years without the possibility of parole for the
possession of a firearm by felon charge, with the sentences to run consecutively. Alford filed a posttrial motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, which was
denied. Alford now appeals his conviction, raising two issues.
DISCUSSION OF THE ISSUES
I.
¶9.
Whether the circuit court erred in denying Alford’s motion for severance.
Alford contends that the circuit court judge improperly denied his motion for a severance of
the two counts in his indictment. Alford claims that count two was a separate and distinct offense
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from the murder charge. Further, because count two was a possession of a firearm by a prior
convicted felon charge, Alford argues he was prejudiced, and his right to a fair trial was violated
because the jury heard evidence he was a prior convicted felon.
¶10.
The Mississippi Code provides for multi-count indictments and trials in the following
situations:
(1) Two (2) or more offenses which are triable in the same court may be charged in
the same indictment with a separate count for each offense if: (a) the offenses are
based on the same act or transaction; or (b) the offenses are based on two (2) or more
acts or transactions connected together or constituting parts of a common scheme or
plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a
single indictment, all such charges may be tried in a single proceeding.
Miss. Code Ann. § 99-7-2 (1) and (2) (Rev. 2007). The Mississippi Supreme Court has delineated
the following procedure for motions to sever offenses: “[W]e recommend that a trial court hold a
hearing on the issue. The State, then, has the burden of making a prima facie case showing that the
offenses charged fall within the language of the statute allowing multi-count indictments. If the
State meets its burden, a defendant may rebut by showing that the offenses were separate and
distinct acts or transactions.” Corley v. State, 584 So. 2d 769, 772 (Miss. 1991). Factors the trial
court should analyze in making its decision on whether a multi-count trial is proper are: (1) the time
period between the offenses, (2) whether the evidence proving each count would be admissible to
prove each of the other counts, and (3) whether the crimes are interwoven. If the correct procedure
is followed, this Court gives deference to the trial court’s findings, utilizing an abuse of discretion
standard of review. Id. (citing McCarty v. State, 554 So. 2d 909, 916 (Miss. 1989)).
¶11.
Reviewing the transcript on the motion to sever, we find the circuit court utilized the correct
procedure and properly analyzed the Corley factors. The day of the trial, after the jury was
empaneled, the circuit court judge held a hearing on the defense’s motion to sever. The circuit court
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judge applied the three Corley factors and found the State met its burden of showing that the charged
offenses fell within the language of section 99-7-2. Specifically, the judge stated:
Looking at the three requirements that I must look at under Corley versus State . . .
the two alleged felonies occurred essentially at or around the same time. So, that
factor favors that they be tried together.
The evidence proving each count would be admissible to prove each of the
other counts. Well, once again, it looks like the same evidence to show that he had
the gun with the exception of probably one additional witness to show that he had
a prior felony conviction also would come in.
And whether the crimes are interwoven. Well, the State alleges that the
firearm that he’s indicted for is the one that he used to kill Mr. Johnson. Accordingly
. . . the Court finds that they are capable of being tried together and should be tried
together.
We find this analysis clearly sufficient under Corley.
¶12.
We are not persuaded by Alford’s argument that he was prejudiced by the admission of his
prior conviction and, therefore, denied a fair trial. At trial, one of Alford’s prior felony convictions
for aggravated assault was entered into evidence only to prove the charge of possession of a firearm
by a convicted felon, not to prove a propensity for murder. At the end of trial, the jury was clearly
instructed of the singular purpose of the evidence of Alford’s prior felony conviction.
¶13.
Accordingly, for the above reasons, we find the circuit court did not abuse its discretion in
denying the defense’s motion to sever.
II.
¶14.
Whether the circuit court erred in refusing Alford’s manslaughter instructions.
Next, Alford argues the circuit court should have granted his jury instructions on
manslaughter. At trial, Alford offered two jury instructions, D-5 and D-6, on the lesser-included
offense of heat-of-passion manslaughter as an alternative to murder. The circuit court judge refused
to grant the instructions.
¶15.
In reviewing jury instructions, this Court must read them as a whole; no one instruction
should be taken out of context. Agnew v. State, 783 So. 2d 699, 702 (¶6) (Miss. 2001) (citing
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Humphrey v. State, 759 So. 2d 368, 380 (¶33) (Miss. 2000)). It is well established that regarding
lesser-included offense instructions, they “should be given if there is an evidentiary basis in the
record that would permit a jury rationally to find the defendant guilty of the lesser offense and to
acquit him of the greater offense.” Sanders v. State, 781 So. 2d 114, 119 (¶16) (Miss. 2001)
(quoting Welch v. State, 566 So. 2d 680, 684 (Miss. 1990)). The test for determining whether a
lesser-included-offense instruction should be submitted to the jury is as follows:
A lesser-included-offense instruction should be granted unless the trial judge and
ultimately this Court can say, taking the evidence in the light most favorable to the
accused and considering all the reasonable inferences which may be drawn in favor
of the accused from the evidence, that no reasonable jury could find the defendant
guilty of the lesser-included offense (conversely, not guilty of at least one element
of the principal charge).
Id. (citing McGowan v. State, 541 So. 2d 1027, 1028 (Miss. 1989)). However, the supreme court
has repeatedly maintained that jury instructions on lesser-included offenses should not be
indiscriminately granted but should be submitted to the jury only when there is an evidentiary basis
in the record. Id. (citing Lee v. State, 469 So. 2d 1225, 1230 (Miss. 1985)).
¶16.
Regarding the elements that must be present in the evidence to warrant the instruction, the
Mississippi Code defines manslaughter as: “[t]he killing of a human being, without malice, in the
heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without
authority of law, and not in necessary self-defense. . . .” Miss. Code Ann. § 97-3-35 (Rev. 2006).
“Heat of passion” has been defined as “[a] state of violent and uncontrollable rage engendered by
a blow or certain other provocation given. . . . Passion or anger suddenly aroused at the time by
some immediate and reasonable provocation, by words or acts of one at the time. The term includes
an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror” and
“would produce in the minds of ordinary men ‘the highest degree of exasperation.’” Phillips v.
State, 794 So. 2d 1034, 1037 (¶¶9-10) (Miss. 2001) (citations omitted). Importantly, words alone,
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even if provocative, or disagreements between people are insufficient to satisfy the “heat of passion”
requirement and, thus, “reduce an intentional and unjustifiable homicide from murder to
manslaughter.” Id. at (¶10) (quoting Gates v. State, 484 So. 2d 1002, 1005 (Miss. 1986)).
¶17.
Alford contends that while testimony shows he and Johnson merely had “words” with one
another, the jury could infer that there was an earlier altercation between the two men which aroused
“heat of passion” in Alford. However, our examination of the record presents no evidence of sudden
provocation between Alford and Johnson on the night at issue. According to all of the eyewitnesses,
Alford was the angry person, and Johnson initially tried to remove himself from a confrontation with
Alford by driving with a friend from Cockrell’s to Mosley’s. In the parking lot of Mosley’s, there
was, at the most, evidence of mere “words” exchanged, but no heated argument or blows. However,
even if there were provocative words exchanged, of which we find no evidence, such words are
insufficient evidence of heat of passion. Furthermore, even if a past argument could be inferred
between the two men to explain Alford’s animosity toward Johnson, as the defense suggests, this
is also insufficient to satisfy the heat-of-passion element of manslaughter, as the provocation must
be immediate – that is, occurring at the time of the killing. Even considering this possibility, none
of Johnson’s friends could speculate on what might have caused the animosity, as the two men were
formerly friends.
¶18.
Consequently, we find no evidence in the record from which the jury could have determined
the killing occurred during heat of passion. Accordingly, we conclude the trial court did not err in
refusing to give a manslaughter jury instruction.
CONCLUSION
¶19.
The circuit court did not err in denying Alford’s motion to sever the two counts of his
indictment at trial. The court followed the correct procedure to determine the propriety of severance
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according to Corley. We find Alford was not prejudiced by the admission of his prior convictions
as they were used for the limited purpose of proving he was a twice-prior convicted felon.
Additionally, the circuit court did not err in its denial of Alford’s manslaughter jury instructions, as
there was insufficient evidence in the record to support the elements of manslaughter. Alford’s
convictions and sentences are affirmed.
¶20. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF THE
CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE IMPRISONMENT
AND COUNT II, POSSESSION OF A FIREARM BY A FELON, AND SENTENCE OF
THREE YEARS, WITH SENTENCES IN COUNTS I AND II TO RUN CONSECUTIVELY,
ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS
A HABITUAL OFFENDER WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION,
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAY COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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