Terrance Gary v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00619-COA
TERRANCE GARY
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
02/04/2008
HON. LAMAR PICKARD
CLAIBORNE COUNTY CIRCUIT COURT
MICHAEL E. ROBINSON
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY GORE
ALEXANDER C. MARTIN
CRIMINAL - FELONY
CONVICTED OF MANSLAUGHTER BY
CULPABLE NEGLIGENCE AND
SENTENCED TO TWENTY YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
AFFIRMED - 06/16/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
A jury sitting before the Claiborne County Circuit Court found Terrance Gary guilty
of manslaughter by culpable negligence. The circuit court sentenced Gary to twenty years
in the custody of the Mississippi Department of Corrections (MDOC). Aggrieved, Gary
appeals and claims the circuit court erred when it: (1) denied his motion for a directed verdict
and (2) denied his motion for a new trial. Finding no error, we affirm the judgment of the
circuit court.
FACTS AND PROCEDURAL HISTORY
¶2.
On November 8, 2006, Louis Trevillion and Gary’s cousin, Vernon Gary (Vernon),
were involved in an altercation in the parking lot of the New Store on Highway 18 in
Hermanville, Mississippi. A crowd gathered shortly after the fight began. Gary and Louis’s
brother, John, were in the crowd. Gary wanted to break up the fight, but John wanted to let
Louis and Vernon fight. Vernon had Louis on the ground, and the two were locked up in
more of a wrestling match.
¶3.
John was near the fight wielding a stick. Gary went to Vernon’s car and armed
himself with a 9 millimeter pistol and walked back to the area of the fight. John was also
armed with a .45 caliber pistol. Gary pulled his pistol and pointed it at John. When John
drew his own pistol, Gary fired. There was other testimony, however, that John fired the first
shot. In either event, John returned fire and then ran away. Gary began shooting in John’s
direction across the parking lot. Several shots were fired. The shooting ceased when the
victim, Louis, yelled after being shot. When Vernon realized that Louis had been shot, he
got off of him and ran to his car. John and Gary both fled the scene of the shooting. Edward
Jenkins, a bystander, ran to get his truck to take Louis to the hospital. By this time, however,
Louis had collapsed in the parking lot. An autopsy determined that Louis was killed by a
bullet that entered his left shoulder and punctured both of his lungs and his heart.
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¶4.
Officers from the Claiborne County Sheriff’s Department arrived at the scene shortly
after the shooting and were notified that Gary was at the station to turn himself in. The 9
millimeter pistol that Gary shot was also recovered from one of Gary’s relatives. Later that
day, officers picked up John, and he turned the .45 caliber pistol that he had shot over to the
officers. Both Gary and John admitted that they shot their pistols that day, and both pistols
were turned in as evidence to the Mississippi Crime Laboratory.
¶5.
The bullet recovered from Louis’s body was identified by the Mississippi Crime
Laboratory as a 9 millimeter bullet. It was determined that the bullet could not have been
fired from John’s pistol. However, it was consistent with ammunition used in Gary’s pistol.
¶6.
At the close of the State’s case-in-chief, Gary filed an unsuccessful motion for a
directed verdict. The jury found Gary guilty of manslaughter by culpable negligence, and
he was sentenced to twenty years in the custody of the MDOC. Gary filed a post-trial motion
for a judgment notwithstanding the verdict or, alternatively, for a new trial, which was
denied. Aggrieved, Gary now appeals.
ANALYSIS
I.
¶7.
SUFFICIENCY OF THE EVIDENCE
Gary claims that the evidence against him was legally insufficient to find him guilty
of manslaughter by culpable negligence. The State contends that Gary is procedurally barred
from raising the issue of whether the trial court erred in denying his motion for directed
verdict because he presented evidence after the circuit court denied his motion for a directed
verdict. When a defendant files an unsuccessful motion for directed verdict, and then puts
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forth his own evidence, that motion is waived. Jordan v. State, 936 So. 2d 368, 372 (¶19)
(Miss. Ct. App. 2005). However, in his motion for a JNOV, Gary again challenged the
sufficiency of the evidence, thereby preserving the issue for review. Lambert v. State, 462
So. 2d 308, 313 (Miss. 1984).
¶8.
A motion for a JNOV in which the sufficiency of the evidence is challenged must be
specific. Jordan, 936 So. 2d at 372 (¶20). Without specificity as to how the evidence was
insufficient, the trial court will not be determined to be in error for denying the motion. Id.
Gary’s motion for a JNOV was very general in nature. It states only that (1) the “verdict is
contrary to the evidence and without sufficient evidence to support it”; (2) “the verdict is
strongly against the weight of the evidence”; (3) “the testimony of the State’s expert
witnesses contradicted each other”; (4) “the verdict is contrary to law and principles of
justice and equity”; and (5) “the interest of justice is best served by granting the defendant
a new trial.” This does not pass for specificity. However, notwithstanding Gary’s failure to
challenge the sufficiency of the evidence with specificity, we will address this issue for the
sake of discussion.
¶9.
In reviewing the sufficiency of the evidence, the standard of review dictates that: “We
give the prosecution the benefit of all favorable inferences that may reasonably be drawn
from the evidence.” Id. at 373 (¶24). In reviewing the evidence, if we find that reasonable
fair-minded men in the exercise of impartial judgment might reach different conclusions on
every element of the offense, the evidence will be deemed to be sufficient. Bush v. State, 895
So. 2d 836, 843 (¶16) (Miss. 2005) (citing Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
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We review the circuit court’s ruling on the last occasion when the sufficiency of the evidence
was challenged. Hodges v. State, 743 So. 2d 319, 325 (¶36) (Miss. 1999). Gary last
challenged the sufficiency of the evidence in his motion for a JNOV.
¶10.
Gary admitted that he shot his 9 millimeter pistol during the fight. John fired a .45
caliber pistol. Although Gary argues that the State’s expert witnesses contradicted each
other, there was no such contradiction. The autopsy report prepared by Dr. Steven Hayne
indicated that the bullet found lodged in the victim’s rib cage was “consistent with a .380
caliber projectile.” Dr. Hayne testified at trial that he indeed reported that the bullet was
consistent with a .380 caliber projectile, but that he always defers to the Mississippi Crime
Laboratory to make the final determination on the caliber of the bullet and any other
examination of the weapon. Dr. Hayne stated that he is not a firearms expert. Starks
Hathcock, a forensic scientist specializing in firearm examination at the Mississippi Crime
Laboratory, testified that the bullet was, in fact, a 9 millimeter bullet. He explained that a
9 millimeter bullet is very similar to the .380 caliber bullet and that the only difference is that
the .380 caliber bullet is slightly shorter and, therefore, weighs less. The testimony of the
two expert witnesses is not contradictory.
¶11.
Several witnesses testified that they saw two people firing their weapons in the
parking lot that day. Only one witness, Jenkins, testified that there was a third handgun at
the scene. He testified that when Gary went to Vernon’s vehicle to arm himself, that David,1
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When Jenkins testified, he did not give David’s last name, and he was not asked to
elaborate further.
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a passenger in that vehicle, also had a pistol. Jenkins could not identify that pistol and
testified that “[i]t could have been fake.” Where the evidence is conflicting, the jury will be
the sole judge of the credibility of the witnesses and the weight and credibility of their
testimonies. Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980). In a criminal
prosecution, the jury may accept the testimony of some witnesses and reject that of others,
and the jury may accept in part and reject in part the evidence on behalf of the State or on
behalf of the accused. Id. The credibility of the witnesses is not for the reviewing court to
decide. Id.
¶12.
Culpable-negligence manslaughter is provided for in Mississippi Code Annotated
section 97-3-47 (Rev. 2006), which states that “[e]very other killing of a human being, by
the act, procurement, or culpable negligence of another, and without authority of law, not
provided for in this title shall be manslaughter.” Culpable negligence has been defined as
“negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter
indifference to, the safety of human life.” Staten v. State, 989 So. 2d 938, 944 (¶13) (Miss.
Ct. App. 2008) (citing Clayton v. State, 652 So. 2d 720, 726 (Miss. 1995)).
¶13.
Testimony shows that there were two guns fired, a .45 caliber pistol and a 9 millimeter
pistol. The wounds caused by a 9 millimeter bullet were determined to be the cause of
Louis’s death. Gary argues that since the State’s experts could not positively include or
exclude Gary’s gun as the one that fired the fatal bullet, the evidence is not sufficient to
convict. Hathcock testified that the fatal bullet featured class characteristics of having been
fired from a 9 millimeter pistol, and he positively ruled out the bullet having been fired from
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the .45 caliber pistol. Gary testified and admitted that he fired a 9 millimeter pistol when
Louis and Vernon were fighting.
¶14.
Reviewing the evidence in the light most favorable to the State and “giv[ing] the State
the benefit of all favorable inferences that may reasonably be drawn from the evidence” we
find that fair-minded jurors could have found that Gary, having fired the 9 millimeter pistol,
was the one who fired the fatal bullet. Jordan, 936 So. 2d at 373 (¶24). In firing his pistol
across a crowded parking lot, the jury found that Gary possessed “the conscious and wanton
or reckless disregard of the probabilities of fatal consequences to others as the result of the
willful creation of an unreasonable risk” required to convict him of manslaughter by culpable
negligence. Campbell v. State, 285 So. 2d 891, 893 (Miss. 1973). We find that there was
sufficient evidence to support that conclusion.
II.
¶15.
WEIGHT OF THE EVIDENCE
Gary argues the same facts in this assignment of error that he did in his challenge of
the sufficiency of the evidence. Gary claims that the bullet which killed Louis was not fired
from his pistol and that there is no causal connection between Louis’s death and the fact that
he fired his pistol during the fight.
¶16.
“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) (citing Herring v. State, 691 So.
2d 948, 957 (Miss. 1997)). On a motion for new trial, the circuit court sits as a thirteenth
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juror and only in exceptional cases in which the evidence preponderates heavily against the
verdict will a new trial be granted. Id. (citing Amiker v. Drugs For Less, Inc., 796 So. 2d
942, 947 (¶18) (Miss. 2000)). Our review requires that we weigh the evidence in the light
most favorable to the verdict. Id.
¶17.
Looking at the evidence as a limited “thirteenth juror” in this case and viewing the
evidence in the light most favorable to the verdict, we cannot say that the guilty verdict
would sanction an unconscionable injustice. We find that the evidence does not preponderate
heavily against the verdict, and the trial court did not abuse its discretion in denying Gary’s
motion for a new trial. This issue is without merit.
¶18. THE JUDGMENT OF THE CLAIBORNE COUNTY CIRCUIT COURT OF
CONVICTION OF MANSLAUGHTER BY CULPABLE NEGLIGENCE AND
SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
CARLTON AND MAXWELL, JJ., CONCUR.
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