Michael Gene Ray v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00401-COA
MICHAEL GENE RAY A/K/A MIKE
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
2/22/2008
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
JUSTIN TAYLOR COOK
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED - 6/23/2009
BEFORE LEE, P.J., GRIFFIS AND CARLTON, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
A jury in the Lowndes County Circuit Court found Michael Gene Ray guilty of
murder.
Ray was sentenced to life imprisonment in the custody of the Mississippi
Department of Corrections. Ray subsequently filed a motion for a judgment notwithstanding
the verdict or, in the alternative, a new trial. The motion was denied, and Ray filed this
appeal. In his appeal, Ray raises several issues, which we state verbatim:
(1) Whether the trial court erred when it overruled the appellant’s motion for
JNOV because the actions of the appellant were clearly in line with
Mississippi statutory law allowing for excusable homicide in cases of selfdefense.
(2) Whether the trial court erred when it overruled the appellant’s motion for
a new trial because the overwhelming weight of the evidence pointed towards
excusable homicide in self-defense and not murder.
(3) In the alternative, whether the trial court erred when it failed to grant [the]
appellant his motion for a new trial on the grounds that [the] overwhelming
weight of the evidence pointed towards manslaughter rather than murder.
(4) In the alternative, whether the trial court erred when it denied the
appellant’s motion for a JNOV because the evidence was insufficient to
support a verdict of murder, and instead, support a verdict of manslaughter.
(5) Whether the circuit court erred in failing to properly consider the
appellant’s motion to dismiss for a violation of his statutory right to a speedy
trial.
(6) Whether the circuit court erred in failing to properly consider the
appellant’s motion to dismiss for a violation of his constitutional right to a
speedy trial.
(7) Whether trial counsel’s ineffectiveness deprived [the] appellant of his
constitutionally mandated right to a fair trial.
FACTS
¶2.
On June 17, 2005, Danny Hudson (Hudson) was drinking alcohol at the Slab House,
a bar in Caledonia, Mississippi. Ray and his mother, Doris Ray, lived in a trailer diagonally
across the road from the Slab House. Ray’s sister, Sheila Ray (Sheila), was Hudson’s
girlfriend at the time of his death, and Sheila, along with Alicia, her daughter with Hudson,
also lived in the trailer with Ray and Doris.
¶3.
Doris was the bartender at the Slab House and began her shift that day at
2
approximately 4:00 p.m. Doris testified that Hudson and Sheila came into the bar sometime
after her shift started. At one point, Sheila became angry with Hudson for speaking with
another woman and left the bar. Renee Taylor, a patron at the Slab House, testified that she
saw Sheila slap Hudson. Hudson eventually followed Sheila home, and she testified that he
kicked in the trailer door. Sheila testified that she failed to notify the police of this during
the investigation of Hudson’s death. The two talked for a while, began fighting again, left
the trailer, and headed to the bar. Sheila testified that Hudson tried to prevent her from
entering the bar by grabbing her hair. However, Doris testified that Hudson had Sheila by
the arm, not her hair. Thresa Sorrells, a Slab House patron, also testified that Hudson was
holding Sheila by her shirt and not her hair.
¶4.
Sheila eventually went home and told Ray about her altercation with Hudson. Sheila
went inside the trailer. Ray testified that he went to confront Hudson and carried a piece of
pipe with him. Ray stated that he carried the pipe to let Hudson know “I was coming after
him.” According to Ray, Hudson tackled him, kicked him twice, and busted his lip. James
Wright, the owner of the Slab House, broke up the fight. Wright took the pipe away from
Ray and threw it in a dumpster. Wright testified that Hudson was not holding a weapon.
Mark Boch, a patron at the Slab House, assisted Wright in breaking up the fight. Boch
testified that he never saw any blows; it looked like Hudson and Ray were wrestling. Wright
and Boch testified that Hudson and Ray left the scene without any further incident.
¶5.
At one point, Hudson came back to the Slab House looking for Sheila and Alicia.
Doris testified that she told him they were at the house, but he should leave them alone. At
trial, Doris stated that she heard Hudson say to Wright, “I’m gonna kill that son-of-a-bitch.”
3
Doris failed to mention this statement to the police, and Wright stated that he did not see
Hudson again after he broke up the fight.
¶6.
Ray testified that he was sitting on a picnic bench near the trailer when he saw Hudson
walking across the street toward him. Ray stated that Hudson picked up a rock and threw it
at him, hitting him in the head and arm. Ray testified that he then picked up a knife, and as
Hudson was attempting to throw another rock at him, he stabbed Hudson in the side. Ray
then turned, entered the trailer, washed up, and left the scene. Alicia testified that she saw
Hudson throw a rock at Ray, but Ray had a knife in his hand before Hudson picked up the
rock. Taylor testified that she saw Ray with a large steak knife. Taylor testified that she
attempted to stop the fight, but Ray turned to her with the knife and told her to shut her
mouth. Taylor stated that Ray then turned to Hudson and stabbed him in the side. Taylor
said that Hudson then grabbed his side, took a couple of steps, and fell to one knee. Taylor
testified that Hudson was not holding anything in his hands nor was he advancing upon Ray.
Ray stated that Hudson had backed him up to the trailer steps, but Taylor testified that the
stabbing occurred in the gravel area near the road. There was blood spatter on the gravel
near the road close to the area where Taylor said the stabbing had occurred.
¶7.
Sheila testified that Hudson kept advancing on Ray. Sheila also stated that Hudson
was holding a rock, but she failed to include this in her statement to the police. Sheila stated
that she was not aware at first that Hudson had been stabbed. When Hudson fell to the
ground, Sheila attempted to retrieve his wallet because she had been told it contained
marijuana. Hudson was taken to the hospital where he died the next morning.
¶8.
The knife used by Ray was never found. Dr. Steven Hayne, a pathologist, testified
4
that Hudson had died from a massive intra-abdominal hemorrhage. Dr. Hayne stated that the
knife penetrated Hudson’s spleen, kidney, and pancreas, and the blade was approximately
five and one-half to six inches long. Ray turned himself in at the Lowndes County Sheriff’s
Department the next morning.
DISCUSSION
I. DID THE TRIAL COURT ERR IN FAILING TO GRANT RAY’S
MOTION FOR A JNOV BECAUSE THE EVIDENCE WAS INSUFFICIENT
TO SUPPORT THE MURDER CONVICTION?
II. DID THE TRIAL COURT ERR IN FAILING TO GRANT RAY’S
MOTION FOR A JNOV BECAUSE THE EVIDENCE ONLY SUPPORTED
A CONVICTION FOR MANSLAUGHTER?
¶9.
Ray contends that the trial court erred in failing to grant his motion for a JNOV
because the evidence was insufficient to support his murder conviction and because the
evidence only supported a manslaughter conviction. A motion for a JNOV challenges the
sufficiency of the evidence. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he
critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that accused
committed the act charged, and that he did so under such circumstances that every element
of the offense existed.’” Id. (citation omitted). If, viewing the evidence in the light most
favorable to the State, any rational trier of fact could have found, beyond a reasonable doubt,
the essential elements of the crime existed, this Court will affirm the denial of a motion for
a JNOV. Id. If we find that reasonable, fair-minded jurors could have concluded that the
defendant was guilty of the accused crime, the evidence will be deemed sufficient. Id.
¶10.
Ray specifically contends that the State failed to prove that his actions were not in
necessary self-defense or that he acted with deliberate design to commit the murder. Ray
5
was indicted pursuant to Mississippi Code Annotated section 97-3-19 (Rev. 2006), which
states, in pertinent part, that “(1) [t]he killing of a human being without the authority of law
by any means or in any manner shall be murder . . . (a) [w]hen done with deliberate design
to effect the death of the person killed . . . .” The indictment tracked the statutory language
adding the following phrase: “and not in necessary self[-]defense.”
¶11.
Ray cites to two specific statutes to support his argument.
Mississippi Code
Annotated section 97-3-17 (Rev. 2006) provides that a homicide “shall be excusable: (a)
[w]hen committed by accident and misfortune in doing any lawful act by lawful means, with
usual and ordinary caution, and without any unlawful intent[.]” Mississippi Code Annotated
section 97-3-15 (Rev. 2006) states, in pertinent part, the following:
(1) The killing of a human being by the act, procurement or omission of
another shall be justifiable in the following cases:
....
(e) When committed by any person in resisting any
attempt unlawfully to kill such person or to commit any felony
upon him, or upon or in any dwelling, in any occupied vehicle,
in any place of business, in any place of employment or in the
immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one’s own
person or any other human being, where there shall be
reasonable ground to apprehend a design to commit a felony or
to do some great personal injury, and there shall be imminent
danger of such design being accomplished . . . .
¶12.
Manslaughter is defined 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.
6
2006).
¶13.
Ray claims that the facts support either excusable or justifiable homicide or
manslaughter, namely because of the prior altercation between him and Hudson and because
of the testimony that two landscaping rocks had been moved, thus proving that Hudson
intended to harm him. However, we find that the facts were conflicting and, at best, created
a question for the jury. Ray admitted that, prior to the stabbing, he went to confront Hudson
and was carrying a pipe to get Hudson’s attention. Doris’s statement that she heard Hudson
tell Wright that he was going to kill Ray was not supported by Wright’s testimony. Taylor
consistently testified that Ray and Hudson were each standing his ground and not advancing
upon each other. Taylor, as well as the physical evidence, contradict Ray’s testimony that
Hudson backed him up to the trailer steps, implying that Ray had no choice but to stab
Hudson. Taylor stated that as she attempted to talk to Ray and Hudson, Ray turned to her,
told her to be quiet, then turned back to Hudson and stabbed him. Alicia testified that Ray
had picked up the knife before Hudson picked up a rock. Taylor testified that Hudson was
not holding anything at the time of the stabbing.
Furthermore, Ray left the scene
immediately after the stabbing, creating the impression for the jury that he knew Hudson was
no longer a threat. The jury was instructed to consider whether the killing of Hudson was
murder, manslaughter, or committed in self-defense. We find that the jury had sufficient
evidence to convict Ray of murder. This issue is without merit.
III. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT
OF THE EVIDENCE BECAUSE THE EVIDENCE PROVED SELFDEFENSE AND NOT MURDER?
IV. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT
7
OF THE EVIDENCE BECAUSE THE EVIDENCE SUPPORTED A
MANSLAUGHTER CONVICTION?
¶14.
Ray next argues that the overwhelming weight of the evidence did not support a
murder conviction. Specifically, Ray contends that the evidence supported his claim of selfdefense. In the alternative, Ray contends that the evidence supports imperfect-self-defense
manslaughter or heat-of-passion manslaughter. “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). “[T]he
evidence should be weighed in the light most favorable to the verdict.” Id.
¶15.
“A reversal on the grounds that the verdict was against the overwhelming weight of
the evidence, ‘unlike a reversal based on insufficient evidence, does not mean that acquittal
was the only proper verdict.’” Id. (quoting McQueen v. State, 423 So. 2d 800, 803 (Miss.
1982)). Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees
with the jury’s resolution of the conflicting testimony. Id.
¶16.
Viewing the evidence in the light most favorable to the verdict, we find that the
verdict was not against the overwhelming weight of the evidence. As previously stated, the
testimony at trial presented a factual dispute for the jury’s resolution. The jury found
Taylor’s testimony to be credible and Ray’s attempts to establish a self-defense theory to be
contradictory.
¶17.
Ray cites to Mississippi Code Annotated section 97-3-31 (Rev. 2006), which provides
for a manslaughter conviction when an individual unnecessarily kills another while resisting
8
an effort by the other to commit a felony. However, weighing the evidence in the light most
favorable to the verdict, there was conflicting testimony as to whether Hudson was
attempting to commit a felony. There was testimony that: Hudson was walking to Ray’s
house; he was unarmed; and he was not making any aggressive gestures or remarks to
suggest to Ray that he was planning to harm Ray.
¶18.
Ray also claims that the evidence overwhelmingly supported a “heat-of-passion”
manslaughter conviction. Our case law has defined heat of passion as follows:
A state of violent and uncontrollable rage engendered by a blow or certain
other provocation given, which will reduce a homicide from the grade of
murder to that of manslaughter. 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.
Clemons v. State, 952 So. 2d 314, 319 (¶14) (Miss. Ct. App. 2007). There was no evidence
that Ray was acting in a state of violent and uncontrollable rage. Ray only attempted to show
that he was afraid of Hudson and acted in self-defense. We find that this issue is without
merit.
V. DID THE TRIAL COURT ERR IN DENYING RAY’S MOTION TO
DISMISS FOR A VIOLATION OF HIS STATUTORY RIGHT TO A
SPEEDY TRIAL?
¶19.
Ray contends that the trial court erred in denying his motion to dismiss for a violation
of his statutory right to a speedy trial. Our standard of review in claims of speedy trial
violations is as follows:
Review of a speedy trial claim encompasses the fact question of whether the
trial delay rose from good cause. Under [the appellate court’s] standard of
review, [the appellate court] will uphold a decision based on substantial,
credible evidence. If no probative evidence supports the trial court’s finding
9
of good cause, [the appellate court] will ordinarily reverse. The [S]tate bears
the burden of proving good cause for a speedy trial delay, and thus bears the
risk of non-persuasion.
DeLoach v. State, 722 So. 2d 512, 516 (¶12) (Miss. 1998) (citations omitted). Ray states that
his statutory right to a speedy trial was violated pursuant to Mississippi Code Annotated
section 99-17-1 (Rev. 2007), which states as follows:
Unless good cause be shown, and a continuance duly granted by the court, all
offenses for which indictments are presented to the court shall be tried no later
than two hundred seventy (270) days after the accused has been arraigned.
Ray’s arraignment hearing was on August 18, 2005. Due to various continuances by Ray,
including an almost two-year wait for a mental examination, and other matters, Ray was not
tried until February 21, 2008, well past the 270-day deadline. However, we have held that
if a defendant fails to raise the statutory right to a speedy trial within 270 days of his
arraignment, he acquiesces to the delay. Mims v. State, 856 So. 2d 518, 522 (¶11) (Miss. Ct.
App. 2003); Malone v. State, 829 So. 2d 1253, 1257 (¶11) (Miss. Ct. App. 2002). See also
Walton v. State, 678 So. 2d 645, 649-50 (Miss. 1996). Ray filed his first motion to dismiss
for failure to provide a speedy trial on September 24, 2007. This argument is without merit.
VI. DID THE TRIAL COURT ERR IN DENYING RAY’S MOTION TO
DISMISS FOR A VIOLATION OF HIS CONSTITUTIONAL RIGHT TO A
SPEEDY TRIAL?
¶20.
Ray argues that his constitutional right to a speedy trial was violated under the factors
set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972). Since
there is no set amount of time within which a defendant must be brought to trial, the United
States Supreme Court has developed a balancing test to determine whether a defendant’s
constitutional rights to a speedy trial have been violated. See Barker, 407 U.S. at 530. The
10
four factors to be considered together and balanced are: (1) the length of delay, (2) the reason
for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.
Id. at 530-32; Stark v. State, 911 So. 2d 447, 450 (¶7) (Miss. 2005).
A. Length of the delay
¶21.
Under Barker, “[t]he length of the delay is to some extent a triggering mechanism.
Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance.” Barker, 407 U.S. at 530. In Mississippi, any
delay from the date of arrest, indictment, or information until trial exceeding eight months
is presumptively prejudicial. Stark, 911 So. 2d at 449-50 (¶7); Smith v. State, 550 So. 2d
406, 408 (Miss. 1989). Ray was arraigned on August 18, 2005, and his trial finally occurred
on February 21, 2008. Since the delay exceeds eight months, it is presumptively prejudicial,
and the cause of the delay must be analyzed under the remaining Barker factors.
B. Reason for the delay
¶22.
“Once a delay is found to be presumptively prejudicial, the burden of proof shifts to
the State to show cause for the delay.” Stark, 911 So. 2d at 450 (¶11). The appellate court
must determine whether the delay should be charged to the State or the defendant. Id. Since
the burden is on the State to provide a defendant with a speedy trial, this factor is weighed
against the State unless it can show either that the delay was caused by the defendant or that
the delay was for a good cause. Id.; Wiley v. State, 582 So. 2d 1008, 1012 (Miss. 1991).
¶23.
The majority of the delay was the result of an agreed order for Ray to have a mental
examination conducted by the Mississippi State Hospital. The agreed order granting the
continuance for the examination was filed on September 2, 2005, and the authorities at the
11
hospital notified the trial court on October 4, 2007, that Ray was competent to stand trial.
The examination was delayed during that time due to the hospital’s assertion that they had
not received certain information necessary to conduct the examination. Some of the
information needed was to be provided by Ray and/or his attorney. While waiting for the
mental examination, there were several “master orders of continuance” in the record as well
as another agreed order of continuance filed on November 19, 2007, after the examination
was completed. “Several occurrences may justify a delay in a criminal case, one of these
being ‘well-taken’ motions for continuance.” Flora v. State, 925 So. 2d 797, 815 (¶63)
(Miss. 2006). Although it took approximately two years for the competency examination to
be completed, we cannot count that time against the State because Ray requested the
examination. Ray also requested the November 19, 2007, continuance. We find that the
delays were for good cause or mainly caused by Ray.
C. Assertion of the right to speedy trial
¶24.
On September 24, 2007, Ray filed a pro se motion to dismiss charges for failure to
provide a speedy trial. On November 9, 2007, Ray’s attorney filed a motion for a speedy
trial. On December 12, 2007, Ray filed a motion for a speedy trial. We note that Ray filed
this last motion after his continuance had been granted and a trial date had been set for
February 19, 2008. In Adams v. State, 583 So. 2d 165, 169-70 (Miss. 1991), the supreme
court held that a demand for dismissal coupled with a demand for instant trial was
insufficient to weigh the third Barker prong in defendant’s favor where the motion came after
the bulk of the delay had elapsed. Ray’s first motion to dismiss was filed over two years
after he was indicted. Ray’s motion for a speedy trial was first filed ten days prior to seeking
12
a continuance and next filed after a trial date had been set. We find this factor weighs against
Ray.
D. Prejudice to the Defendant
¶25.
The supreme court has identified three main considerations in determining whether
the accused has been prejudiced by a lengthy delay: “(1) preventing oppressive pretrial
incarceration; (2) minimizing anxiety and concern of the accused; and (3) limiting the
possibility that the defense will be impaired.” Jefferson v. State, 818 So. 2d 1099, 1108 (¶21)
(Miss. 2002) (internal quotations omitted). “Generally, proof of prejudice entails the loss of
evidence, death of witnesses, or staleness of an investigation.” Sharp v. State, 786 So. 2d
372, 381 (¶19) (Miss. 2001). Ray’s chief argument is that the delay of the competency
examination amounts to oppressive pretrial incarceration. Ray contends that the letters he
wrote complaining about his lengthy incarceration prove his anxiety and concern. Ray was
incarcerated for a lengthy time, but it was a result of his request for a mental exam and the
various requests for continuances. Ray also fails to point to any specific injury to his ability
to prepare his defense.
¶26.
While not considering lightly that a delay did exist, we recognize that: most of the
delay was attributable to Ray; Ray filed his motions for a speedy trial after the bulk of time
had elapsed; and Ray has failed to show he suffered any actual prejudice due to the delay.
Thus, we cannot find that Ray’s constitutional right to a speedy trial was violated. This issue
is without merit.
VII. WAS RAY’S TRIAL COUNSEL INEFFECTIVE?
¶27.
In his final issue on appeal, Ray contends that his trial counsel was ineffective. For
13
a defendant to successfully prove ineffective assistance of counsel, the defendant must show
that the counsel’s performance was deficient and that the deficient performance prejudiced
the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When a defendant raises
an ineffective assistance of counsel claim on direct appeal, the question before this Court is
whether the judge, as a matter of law, had a duty to declare a mistrial or order a new trial sua
sponte on the basis of trial counsel’s performance. Colenburg v. State, 735 So. 2d 1099,
1102 (¶8) (Miss. Ct. App. 1999).
¶28.
Ray claims that his trial counsel had never tried a murder case before being appointed
to represent him and that the trial court should have appointed co-counsel to assist with the
trial. The docket sheet shows that Donna Smith was appointed as co-counsel on October 13,
2005. Smith signed part of Ray’s patient information that was sent to the hospital and filed
in the trial court on March 2, 2006. There is no other mention of Smith in the record or in
the trial transcripts. Ray concedes that this objection on its face does not prove ineffective
assistance of counsel, but that this fact is relevant to his other concerns.
¶29.
Ray states that his trial counsel was ineffective in asking for a continuance on
November 19, 2007. We fail to see how asking for a continuance in this instance constitutes
a deficient performance. Even so, Ray fails to show how this prejudiced his defense.
¶30.
Ray contends that his trial counsel was ineffective by conceding that Ray killed
Hudson. However, since Ray’s defense was that he killed Hudson in self-defense, we find
trial counsel’s statement to be a tactical decision. Ray finally contends that his trial counsel
vouched for the credibility of Dr. Hayne’s testimony when trial counsel asked Dr. Hayne the
following:
14
I’m a country lawyer. And you’re a - - if I might say - - brilliant medical
technologist or expert. Could you put this in language that Mama can
understand? Can you tell me precisely – or where I can understand it and
hopefully the ladies and gentlemen of the jury, did he just stick him?
Ray’s trial counsel was asking Dr. Hayne to discuss the type of wound inflicted upon
Hudson. We fail to see how this question to Dr. Hayne, the State’s expert who was accepted
by the defense, shows a deficient performance by Ray’s trial counsel, much less any
prejudice resulting therefrom. This issue is without merit.
¶31. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
15
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.