Bertrue Jackson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-KA-01549-COA
BERTRUE JACKSON
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
08/20/2009
HON. ALBERT B. SMITH III
COAHOMA COUNTY CIRCUIT COURT
JOHNNIE E. WALLS JR.
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
BRENDA FAY MITCHELL
CRIMINAL - FELONY
CONVICTED OF COUNT I, AGGRAVATED
ASSAULT, AND COUNT II, POSSESSION
OF A FIREARM BY A CONVICTED
FELON, AND SENTENCED TO TEN
YEARS, WITH FIVE YEARS OF POSTRELEASE SUPERVISION FOR COUNT I,
AND TEN YEARS FOR COUNT II, WITH
THE SENTENCES TO RUN
CONCURRENTLY, ALL IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED – 03/01/2011
BEFORE MYERS, P.J., IRVING AND MAXWELL, JJ.
IRVING, J., FOR THE COURT:
¶1.
On July 13, 2009, Bertrue Jackson was convicted of Count I, aggravated assault, and
Count II, possession of a firearm by a convicted felon. The Coahoma County Circuit Court
sentenced Jackson to ten years for each count, with the sentences to run concurrently, all in
the custody of the Mississippi Department of Corrections, and five years of post-release
supervision on Count I.
On July 17, 2009, Jackson filed a motion for a judgment
notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which the circuit court
denied. Feeling aggrieved, Jackson appeals and argues that the circuit court erred in denying
his post-trial motion and in refusing to permit a self-defense jury instruction.
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
Jackson worked as a security guard at a night club in Friars Point, Mississippi. In the
early morning hours of January 1, 2008, a fight broke out at the club. Frederick Magsby and
his wife, Ken’Shaundra Davis, were both involved in the fight. Magsby testified that
sometime during the altercation, he was struck in the head by an unidentified object. Magsby
turned around and saw Jackson behind him. Assuming Jackson had hit him, Magsby began
to walk toward Jackson. Magsby claimed that Jackson then pulled a gun from his pants and
shot Magsby. Magsby fled, and Jackson shot Magsby a second time.
¶4.
Officer Oliver Mitchell, a police officer on patrol in the area, heard the gunshots and
headed toward the club. When he arrived, he spoke to Officer Kenneth Davis,1 who was
already at the scene and had witnessed the shooting. Based on his conversation with Officer
Davis, Officer Mitchell approached Jackson and asked if he had a gun. Jackson stated that
he did. Officer Mitchell removed the gun from Jackson’s pants and arrested Jackson.
1
Officer Davis died prior to Jackson’s trial.
2
¶5.
Jackson later gave a written statement to the police.2 In his statement, Jackson
explained:
Two gentleman [sic] got into it–got into a fight. I was breaking the fight up
but they jumped me . . . . The officer pulled his shot gun [sic] and shot into the
air. But they didn’t stop . . . . So I was pulling them apart. Another gentlemen
[sic] went for his gun and then I shot my gun[,] but the officer didn’t see the
gentleman with the gun.
Jackson told the police that the man he saw reach for a gun was Jamarro Foster. According
to Jackson, Foster and Magsby were standing side by side. When Foster reached for his gun,
Jackson fired, intending to hit Foster, but the bullet hit Magsby.
¶6.
Tim Pollard, the club’s manager, testified that the club’s surveillance camera captured
the shooting; however, the video had been inadvertently erased. Pollard and the club’s
owner, Sherman Tyler, viewed the video before it was erased and testified that it showed that
Jackson picked a gun up off the ground and pointed it at Magsby, who appeared to be
reaching for a gun.
¶7.
Additional facts, as necessary, will be related during our analysis and discussion of
the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶8.
“A motion for [a] J.N.O.V. challenges the legal sufficiency of the evidence.” Wilkins
v. State, 1 So. 3d 850, 852-53 (¶9) (Miss. 2009) (quoting Ivy v. State, 949 So. 2d 748, 751
(¶14) (Miss. 2007)). When reviewing the legal sufficiency of evidence, an appellate court
considers “whether the evidence shows ‘beyond a reasonable doubt that [the] accused
committed the act charged, and that he did so under such circumstances that every element
2
Jackson invoked his right not to testify at trial.
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of the offense existed; and where the evidence fails to meet this test it is insufficient to
support a conviction.’” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Carr
v. State, 208 So. 2d 886, 889 (Miss. 1968)).
¶9.
“A motion for a new trial challenges the weight of the evidence.” Wilkins, 1 So. 3d
at 854 (¶11) (quoting Ivy, 949 So. 2d at 753 (¶21)). An appellate court will not reverse a trial
court’s decision to deny a motion for a new trial absent a finding that the trial court abused
its discretion. Id. When reviewing a trial court’s decision to deny a motion for a new trial,
the evidence is considered “in the light most favorable to the verdict.” Williams v. State, 35
So. 3d 480, 491 (¶41) (Miss. 2010) (citing Bush, 895 So. 2d at 844 (¶18)). Therefore, we
will only order a new trial when the verdict “is so contrary to the overwhelming weight of
the evidence that to allow it to stand would sanction [an] unconscionable injustice.” Id.
(quoting Bush, 895 So. 2d at 844 (¶18)).
1. Post-Trial Motion
¶10.
Jackson argues that because he allegedly acted in self-defense, the State failed to
establish every element of aggravated assault, and the trial court erred in denying his motion
for a JNOV or a new trial. The elements of aggravated assault were set forth in jury
instruction S-2:
If you find from the evidence in this case beyond a reasonable doubt that:
(1) on or about January 1, 2008, in Coahoma County,
Mississippi the defendant, BERTRUE JACKSON, did
unlawfully, willfully, and feloniously and purposefully or
knowingly,
(2) cause bodily injury to Fredrick [sic] Magsby,
(3) with a deadly weapon, to-wit: a gun, by shooting Fredrick
[sic] Magsby,
4
(4) and not in necessary self-defense . . .
then you shall find the defendant[,] BERTRUE JACKSON[,] guilty of Count
I of the indictment. If the State has failed to prove any one or more of the
above elements beyond a reasonable doubt, then you shall find the defendant
not guilty in Count I.
¶11.
We find that the State sufficiently proved the elements of aggravated assault,
including that Jackson was not acting in self-defense when he shot Magsby. Magsby
testified that he was not armed on the night of the shooting and that he did not threaten or
provoke Jackson. Davis also testified that Magbsy was unarmed. Davis further testified that
she saw Jackson hit Magsby on the head and pull a gun from his pants and shoot Magsby.
The only testimony that Jackson offered in support of his claim of self-defense was that of
Pollard and Tyler, both of whom admitted that they were not present at the time of the
shooting. Instead, their testimonies that Magsby appeared to be reaching for a gun was based
on the surveillance video that had been inadvertently erased. Viewing the evidence in the
light most favorable to the verdict, we find that it supports Jackson’s aggravated-assault
conviction. Therefore, the circuit court did not err in denying Jackson’s motion for a JNOV
or a new trial.
2. Jury Instruction
¶12.
Jackson also argues that the circuit court erred in denying a jury instruction that
contemplated the use of a firearm by a convicted felon for the purpose of self-defense.
However, Jackson cites no authority in support of his assignment of error. The Mississippi
Supreme Court has long held that “an argument unsupported by cited authority need not be
considered[.]” Alexander v. Womack, 857 So. 2d 59, 62 (¶12) (Miss. 2003) (quoting Dowdle
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Butane Gas Co. v. Moore, 831 So. 2d 1124, 1136 (¶34) (Miss. 2002)). Unsupported
assertions are deemed abandoned and procedurally barred from our consideration. Id.
¶13. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF COUNT I, AGGRAVATED ASSAULT, AND COUNT II,
POSSESSION OF A FIREARM BY A CONVICTED FELON, AND SENTENCE OF
TEN YEARS, WITH FIVE YEARS OF POST-RELEASE SUPERVISION FOR
COUNT I, AND TEN YEARS FOR COUNT II, WITH THE SENTENCES TO RUN
CONCURRENTLY, ALL 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., GRIFFIS, BARNES, ISHEE, ROBERTS
AND MAXWELL, JJ., CONCUR.
CARLTON, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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