IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

WILLIAM MACK, JR. APPELLANT

VS. NO. 2016-KA-00035-COA

STATE OF MISSISSIPPI APPELLEE

BRIEF FOR THE APPELLEE

APPELLEE DOES NOT REQUEST ORAL ARGUMENT

JIM HOOD, ATTORNEY GENERAL

BY: KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERALMISSISSIPPI BAR NO. 105137

OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE: (601) 359-3680

E-Filed Document Dec 19 2016 17:56:37 2016-KA-00035-COA Pages: 33

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I. The voir dire process did not prejudice the jury against Mack or denyhim a fair, impartial jury trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. There was probable cause to issue Mack’s arrest warrant. . . . . . . . . . . . . 14

III. A mistrial was not required because Mack’s right against self-incrimination was not violated when the State questioned him on cross-examination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. The trial court did not allow improper jury instructions. . . . . . . . . . . . . . 20

V. The trial court did not err when it denied Mack’s motion for a newtrial because the guilty verdict was not against the overwhelmingweight of the evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

VI. The trial court did not err when it denied Mack’s motion for JNOVbecause the evidence was sufficient to support the guilty verdict. . . . . . . . 25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

i

TABLE OF AUTHORITIES

FEDERAL CASES

Franks v. Delaware, 438 U.S. 154 (1978). ................................................................................ 17

STATE CASES

Archer v. State, 986 So.2d 951 (Miss. 2008). ............................................................................ 11

Baskin v. State, 145 So.3d 601 (Miss. 2014). ............................................................................ 15

Bell v. State, 910 So.2d 640 (Miss. Ct. App. 2005). .................................................................. 25

Blanks v. State, 542 So.2d 222 (Miss. 1989). ............................................................................ 23

Boone v. State, 973 So.2d 237 (Miss. 2008). ....................................................................... 23, 24

Bowser v. State, 182 So.3d 425 (Miss. 2015). ........................................................................... 25

Boyd v. State, 47 So.3d 121 (Miss. 2010). ................................................................................. 21

Brown v. State, 890 So.2d 901 (Miss. 2004). ...................................................................... 12, 13

Bush v. State, 895 So.2d 836 (Miss. 2005). ............................................................................... 25

Busick v. State, 906 So.2d 846 (Miss. Ct. App. 2005)......................................................... 16, 17

Conerly v. State, 760 So.2d 737 (Miss. 2000). .................................................................... 15, 16

Crutcher v. State, 68 So.3d 724 (Miss. Ct. App. 2011). ............................................................ 19

Duncan v. State, 939 So.2d 772 (Miss. 2006). .......................................................................... 13

Duplantis v. State, 644 So.2d 1235 (Miss. 1994). ............................................................... 11, 14

Gowdy v. State, 56 So.3d 540 (Miss. 2010)............................................................................... 14

Henry v. State, 486 So.2d 1209 (Miss. 1986). ........................................................................... 16

Hentz v. State, 496 So.2d 668 (Miss. 1986)............................................................................... 19

In re Knapp, 536 So.2d 1330 (Miss. 1988)................................................................................ 19

ii

Jackson v. Daley, 739 So.2d 1031 (Miss. 1999)........................................................................ 22

Johnson v. State, 476 So.2d 1195 (Miss. 1985)......................................................................... 10

Jones v. State, 918 So.2d 1220 (Miss. 2005). ............................................................................ 23

Keller v. State, 138 So.3d 817 (Miss. 2014). ................................................................. 10, 13, 14

Ladner v. State, 584 So.2d 743 (Miss. 1991)............................................................................. 20

Lee v. State, 877 So.2d 543 (Miss. Ct. App. 2004).................................................................... 22

Leslie v. State, 171 So.3d 549 (Miss. Ct. App. 2015)................................................................ 18

McClain v. State, 625 So.2d 774 (Miss. 1993). ......................................................................... 25

Mhoon v. State, 464 So.2d 77 (Miss. 1985)......................................................................... 12, 13

Moore v. Moore, 558 So.2d 834 (Miss. 1990)........................................................................... 19

Myers v. State, 565 So.2d 554 (Miss. 1990). ............................................................................. 11

Newell v. State, 49 So.3d 66 (Miss. 2010). ................................................................................ 20

Petti v. State, 666 So.2d 754 (Miss. 1995)........................................................................... 16, 17

Pulphus v. State, 782 So.2d 1220 (Miss. 2001). ........................................................................ 17

Ross v. State, 954 So.2d 968 (Miss. 2007)........................................................................... 10, 14

Sanders v. State, 162 So.3d 868 (Miss. Ct. App. 2015)............................................................. 24

Scott v. Ball, 595 So.2d 848 (Miss. 1992). ................................................................................ 10

Shell v. State, 554 So.2d 887 (Miss. 1989). ............................................................................... 13

Shelton v. State, 853 So.2d 1171 (Miss. 2003). ......................................................................... 25

Spires v. State, 10 So.3d 477 (Miss. 2009). ............................................................................... 11

State v. Woods, 866 So.2d 422 (Miss. 2003). ............................................................................ 14

Towles v. State, 193 So. 3d 688 (Miss. Ct. App. 2016). ............................................................ 20

Wilcher v. State, 479 So.2d 710 (Miss. 1985)...................................................................... 11, 15

iii

Williams v. State, 134 So.3d 732 (Miss. 2014). ......................................................................... 22

Wilson v. State, 198 So.3d 408 (Miss. Ct. App. 2016). ............................................................. 24

Younger v. State, 931 So.2d 1289 (Miss. 2006). ................................................................. 18, 19

FEDERAL STATUTES

U.S. Const. Amend. V. .............................................................................................................. 19

U.S. Const. amend. VI. .............................................................................................................. 10

STATE STATUTES

Miss. Const. art. 3, §26. ....................................................................................................... 10, 19

Miss. Code Ann. § 13-5-79........................................................................................................ 12

Miss. Code Ann. § 97-3-7.......................................................................................................... 21

Miss. Code Ann. § 97-3-7(2)(b). ................................................................................................. 1

iv

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

WILLIAM MACK, JR. APPELLANT

VS. NO. 2016-KA-00035-COA

STATE OF MISSISSIPPI APPELLEE

BRIEF FOR THE APPELLEE

STATEMENT OF ISSUES

I. The voir dire process did not prejudice the jury against Mack or deny him a fair, impartialjury trial.

II. There was probable cause to issue Mack’s arrest warrant.

III. A mistrial was not required because Mack’s right against self-incrimination was notviolated when the State questioned Mack on cross-examination.

IV. The trial court did not allow improper jury instructions.

V. The trial court did not err when it denied Mack’s motion for a new trial because the guiltyverdict was not against the overwhelming weight of the evidence.

VI. The trial court did not err when it denied Mack’s motion for JNOV because the evidencewas sufficient to support the guilty verdict.

STATEMENT OF THE CASE

The Grand Jury of Forrest County co-indicted William Mack, Jr., and William Mack, Sr.,

for one count of aggravated assault in violation of Mississippi Code Annotated Section 97-3-

7(2)(b). (CP 9). Several months later, the trial court severed the trial of Mack, Jr., from the trial of

Mack, Sr., upon motion by defense counsel. (CP 16-17). After a trial by jury, Circuit Judge Robert

B. Helfrich, presiding, the jury found Mack, Jr. (Mack), guilty of aggravated assault. (CP 44). The

trial court sentenced Mack to twenty (20) years in the custody of the Mississippi Department of

1

Corrections (MDOC), with seventeen (17) years to serve and three (3) years of post-release

supervision. (CP 45-49). Mack filed a Motion for Judgment Not Withstanding the Verdict (JNOV)

and Motion for New Trial, after which, Mack’s trial counsel withdrew representation, and appellate

counsel was substituted. (CP 50-54). Five months later, Mack’s appellate counsel filed a

supplement to trial counsel’s motion for JNOV and new trial. (CP 55-56). A hearing on the motion

was held on November 2, 2015. (TR 228-32). Following the trial court’s denial of both Mack’s

original motion for JNOV and new trial and his supplemental motion, this instant appeal was

timely noticed. (CP 81-84).

STATEMENT OF THE FACTS

Around 10 or 11 o’clock in the morning on January 25, 2013, Joseph Scott was shot in front

of his grandparents’ house near the corner of Tipton Street and Hall Avenue in Hattiesburg,

Mississippi, by his longtime friend, William Mack, Jr. (TR 81-82). Joseph Scott grew up in

Hattiesburg and played football at the University of Southern Mississippi. (TR 80). After Scott

graduated from Southern Mississippi, he went on to play professional football with the New York

Giants. (TR 80). Scott eventually returned to Mississippi where he works offshore as a remotely

operated vehicle pilot for an oil and gas company, Subsea 7. (TR 80).

At trial, Scott testified that he had spent the night of January 24, 2013, at his grandparents’

house near the corner of Tipton Street and Hall Avenue in Hattiesburg. (TR 81). After waking up

on the morning of January 25, 2013, Scott said he went to the track to walk with his girlfriend. (TR

95). When Scott pulled up to the Tipton/Hall area in his white Ford pickup truck, Mack, and his

father, William Mack, Sr. (Mack, Sr.), pulled up behind Scott in their gray Jeep Grand Cherokee,

and Mack, Sr. exited the vehicle. (TR 82, 89, 91, Exh. 1). Scott said Mack, Sr. was holding a

baseball bat in his left hand and a gun in his right hand. (TR 82). The men exchanged words and

2

Mack, Sr. swung the bat at Scott. (TR 83). Scott testified that he caught the bat in his left hand and

Mack, Sr. got back in the Jeep and drove away. (TR 83). Scott said he got back in his vehicle, too.

(TR 82).

After driving a block or so around the neighborhood, Mack, Sr. and Mack pulled back up

and stopped in front of Scott’s vehicle. (TR 91). Scott testified that Mack hopped out of the Jeep,

thirty to forty feet away, and started running toward him and shooting at him (TR 83-84). Scott had

to drive his car in reverse to get away from Mack, Sr. and Mack. (TR 91). Scott’s truck was shot

four times and Scott sustained a bullet wound to the leg. (TR 84, 88, Exh. 14). Scott drove himself

straight to the Hattiesburg Police Department and told them he had been shot. (TR 88).

At trial, Scott identified the defendant, Mack, as the man who shot him on January 25,

2013, and said he was “a thousand percent positive” in his identification. (TR 88). Scott also

identified the gray Jeep Grand Cherokee used in the shooting and said he’s positive it was the

vehicle the Macks drove, “They’re still driving it now. It’s at his house now.” (TR 89, Exh. 1).

With the help of photos taken of the area, Scott depicted for the jury where he was parked, where

the Macks stopped their Jeep the first and second time, and where Mack jumped out of the Jeep

to shoot him. (TR 90-92, Exh. 2).

Scott told the jury that he and Mack grew up next door to each other; Scott’s grandparents

and Mack’s grandmother are next door neighbors. (TR 85). Scott said he considered Mack to be

like his little brother, “I considered his dad like my uncle . . . I loved them to death . . . Would

never think that these people would do something like this to me.” (TR 85). When asked what may

have led to the shooting, Scott speculated that the cause may have been a disagreement that he had

the day before with Mack’s uncle, Steven Mack. (TR 86-87). Scott testified that Steven ran a small

store in his house and said something to Scott on January 24, 2013, about some Snickers candy bars

3

that had gone missing. (TR 86). During that incident, Scott said Steven threw a brick at him and

threw a can of paint on him. (TR 86-87). Scott said he walked away from Steven because he didn’t

want to fight. (TR 86-87). On cross-examination, Scott testified, “I walk away from stuff like that.

It’s petty. I don’t have time to get in trouble. I’ve got a good job. I don’t have time to get in

trouble.” (TR 96).

Following the paint incident, Scott’s friend, Warren Randle, also a member of the

neighborhood, got in an argument with Steven. (TR 99). Scott said he had nothing to do with that

incident. (TR 99). Scott said he stayed at his grandparents’ house on Tipton/Hill on the evening of

January 24, 2013, and did not leave until the next morning because he thought the Macks would

try to harm him. (TR 100). In fact, Mack, Sr. and Mack went to Scott’s grandparents’ house with

a gun that very night. (TR 100). The next day, January 25, 2013, Mack shot Scott in the leg. (TR

87-88). On cross-examination, the defense attempted to introduce several theories, however, Scott

refuted each one. (TR 92-102).

Officer Demetrius Breland, a patrol officer with the Hattiesburg Police Department was the

State’s second witness. (TR 109). Officer Breland testified that he was patrolling the area of Hall

Avenue on January 25, 2013. (TR 110). He was parked at the intersection of Lincoln Street and

Hall Avenue when he saw a gray Jeep Grand Cherokee with a flat tire drive through at a high rate

of speed. (TR 110). Officer Breland said he saw the vehicle was operated by a black male driver.

(TR 110). He stated that he recorded the vehicle’s path through the intersection on his patrol car’s

dashboard camera. (TR 111-112, Exh. 3). Because of the vehicle’s speed and flat tire, Officer

Breland attempted to try and follow the car to see if the driver needed help. (TR 110). He said he

drove around a few blocks and eventually found the Jeep parked at a residence, but there was no

one in the car and no one around to ask about it. (TR 110). At trial, Officer Breland identified

4

Mack’s Jeep as the vehicle he saw in the intersection and recorded on his dash cam. (TR 116, Exh.

1). The dash cam recording was played for the jury. (TR 119, Exh. 3).

Officer Breland said he drove around a few more blocks to look for anyone suspicious who

might have been driving the Jeep. (TR 113). At that time, he was flagged down by a woman who

said he was looking for a gray Jeep1. (TR 113). Officer Breland turned around to go back to the

residence where he saw the Jeep, however, when he arrived, the Jeep was gone. (TR 113). Shortly

thereafter, Officer Breland received a dispatch call about a shooting on Hall Avenue involving a

gray Jeep Cherokee. (TR 111, 114). He attempted to locate the Jeep for about five more minutes

before returning to the police department to take Scott’s report. (TR 114).

Upon his return to the police department, Officer Breland said he saw Scott’s white Ford

pickup truck and noted that one of the windows was shattered. (TR 114). He testified that the

ambulance and EMTs had arrived and were treating Scott’s bullet wound on his upper left leg. (TR

114-115). Officer Breland spoke with Scott, who told him about the shooting and the wound on

his leg. (TR 114-115). Officer Breland recalled that Scott was hysterical and in pain, “pretty much

like after a person has been shot.” (TR 115).

The State’s third witness, Warren Randle, testified that he grew up in the same

neighborhood as Scott and Mack. (TR 123). On the morning of January 25, 2013, Randle was

looking out his front porch when Mack, Sr. and Mack drove by in their gray Jeep Grand Cherokee.

(TR 123-25). The driver, Mack, Sr., stopped the vehicle at the stop sign directly in front of

Randle’s home. (TR 125). Three to five minutes later, Randle heard tires squealing and saw Scott’s

white Ford driving in reverse down Tipton Street while the Mack’s pursued him in the gray Jeep.

1 During his testimony, Officer Breland first said the woman flagged him down and saidhe was looking for a white Ford, but later said it was a gray Jeep. (TR 110-111, 113).

5

(TR 124). Ten to fifteen minutes later, a neighbor called Randle and said Scott had been shot. (TR

124).

Randle admitted that he had gotten into an argument with Steven Mack the day before, but

insisted that no physical violence occurred. (TR 127-28). Randle also corroborated Scott’s

testimony about Steven throwing paint on him on January 24, 2013. (TR 137-38). Randle said he

spoke to the district attorney’s office about the case but did not speak to Officer Joel Scott, the

officer who drafted the affidavit for Mack’s warrant, about the events. (TR 130). Randle testified

that the shooting had nothing to do with the disagreement that took place the day before. (TR 139).

Lastly, Randle testified that he knew the shooting was going to happen because the word was out

in the neighborhood that the Macks were out go get Scott. (TR 139).

Crime Scene Investigator Jeff Byrd is a civilian employee with the Hattiesburg Police

Department and responded to the crime scene in this case on January 25, 2013. (TR 142-44, 151).

Mr. Byrd collected evidence, took photographs, and completed a report for the incident. (TR 143-

44, Exh. 5-12). Mr. Byrd collected a number of shell casings in the road at Tipton and Hall as well

as a live round. (TR 145, Exh. 6, 8-10, 15-17). He photographed Tipton Street and the erratic tire

marks on the road. (TR 145-46, Exh. 11-12). Mr. Byrd also photographed the gray Jeep, found at

an abandoned house, and photographed the vehicle’s tag number. (TR 145, 147, Exh. 5, 7). Exhibit

18 depicts the Jeep’s interior when it was found; two baseball bats were photographed on the Jeep’s

backseat floorboards. (TR 150, Exh. 18).

Mr. Byrd determined the shell casings he collected on Tipton Street are .45 caliber casings.

(TR 146, Exh. 6). He also testified that a bullet recovered from Scott’s white Ford truck is a .45

caliber bullet. (TR 148, Exh. 14). Mr. Byrd explained that although the recovered shell casings

were tested for fingerprints, none were found because the metal becomes so hot once the gun is

6

fired that any fingerprints on the casings would have burned off. (TR 152-53).

The State’s final witness, Detective Joel Scott, was a detective with the Hattiesburg Police

Department in January 2013. (TR 154). On January 25, 2013, he responded to a dispatch call about

a drive-by shooting in the area of Tipton Street and Hall Avenue. (TR 155). He testified that he ran

the gray Jeep Grand Cherokee’s tag number and learned it was registered to Ms. Evelyn Mack,

Mack’s grandmother. (TR 155-56, Exh. 5, 7). Detective Scott issued Mack’s arrest warrant and

picked him up one month later in DeKalb County, Georgia. (TR 156-57).

On cross-examination, Detective Scott said he briefly spoke with Warren Randle about the

events and recalled Randle told him he had seen Mack hanging out of the gray Jeep, saying, “I’m

going to get you next.” (TR 157-58). The defense asked Detective Scott, “If Mr. Warren was to

come in here and said that he never gave any statements like that beforehand, you have a different

recollection of that, correct?” (TR 158). Detective Scott said he would have a different recollection.

(TR 158). Then, the defense asked, “In your speaking with Mr. Warren, did he tell you anything

about what happened the day before?” to which the State objected to as hearsay. (TR 158). The

defense explained to the court that he was asking the question in response to Randle’s testimony

that he had not spoken to law enforcement. (TR 158).

The defense rephrased the question and the State again objected to hearsay. (TR 159). The

court cautioned defense counsel that he was getting into hearsay. (TR 159). In response, the defense

said, “Your Honor, I’m not introducing it for fact. It’s for impeachment purposes. It’s for Mr.

Randle. He gave an inconsistent statement, and I believe the rules say if I ask him about the

statement and he deny it, I can bring on the strength in evidence to – as far as the statement goes.”

(TR 159).

The court excused the jury, listened to Detective Scott’s testimony, which briefly addressed

7

Randle’s statements to him about the paint incident causing the shooting, and determined that line

of questioning would be allowed. (TR 159-60). The State said, “My only objection would be if he’s

trying to impeach him, he can ask him did he speak to him. Getting into what he told you is

hearsay.” (TR 161). The judge said he would allow it. (TR 161). The jury was brought back in and

heard Detective Scott testify that Randle told him he was sitting on his porch when the Macks rode

by and threatened him. (TR 162-63).

On redirect, Detective Scott clarified that he never physically interviewed Randle and never

got an official statement from him. (TR 163-64). He also testified that the underlying facts and

circumstances he used in support of the affidavit to obtain a warrant for Mack’s arrest came from

the cumulative facts of the case, “what everybody has heard about this case to get warrants.” (TR

164). The defense had Detective Scott’s signed affidavit admitted for identification purposes only.

(TR 165, Exh. 13). Following Detective Scott’s testimony, the State rested. (TR 165). The defense

moved for a directed verdict, and the court denied the motion. (TR 166).

Mack took the stand as the defense’s first and only witness. (TR 168). He testified that he

had been threatened by Scott and an unknown man on the evening of January 24, 2013, and said

Scott and the man stalked him and threatened him with a gun while he rode his bike home that

night. (TR 173-78). Mack claimed to have been frightened by the alleged event, so he went to his

friend Curtis’s house and asked Curtis to drive him to the bus station in Jackson, Mississippi, so

he could go hide out at his mom and stepdad’s house in DeKalb, Georgia. (TR 179-181). He said

he took a bus that night to Georgia and therefore, was not involved in the shooting on January 25,

2013, as he was already out of the state. (TR 181).

On cross-examination, Mack testified that he told Detective Scott about his alibi. (TR 183).

The State said, “So wait a minute. ‘Cause my file said you refused to give a statement.” (TR 183).

8

Mack replied, “He probably did it off the record . . .” (TR 184). The State asked, “Did your [sic]

refuse to give a statement?” to which Mack said, “Yes, sir, I did.” (TR 184). Next, the State asked

Mack about his friend Curtis and whether Mack had given his attorney Curtis’s information to get

Curtis to support his alibi claim. (TR 184). Mack eventually said he did not want Curtis to testify.

(TR 187). Mack provided a number of reasons as to why his stepdad, his mom, his uncle, his

cousins, his sisters, and his friends could not testify to support his alibi theory. (TR 187-89). Mack

went so far as to say that he did not even want his family members and friends to give statements

to law enforcement in support of his alibi claim. (TR 189).

Mack admitted he knew that a warrant for his arrest had been issued, but chose not to call

the police or make a statement about his alibi claim. (TR 194). Mack also agreed that with an

abundance of witnesses, it would have been very easy for him to verify his alibi claim. (TR 194).

Following this line of questioning, defense counsel objected “to this whole line of questioning

because he’s commenting on his right to remain silent.” (TR 194). The court determined that

because Mack had already testified, “that’s no longer a right.” (TR 194). Again, Mack repeated that

it would not be hard to support his alibi theory. (TR 195).

Following Mack’s testimony, the defense rested. (TR 200). After closing arguments, the

jury was released to deliberate. (TR 224). Ultimately, the jury found Mack guilty of one count of

aggravated assault. (TR 225).

SUMMARY OF THE ARGUMENT

The trial court properly handled voir dire and ensured Mack received a fair and impartial

jury trial by an unbiased jury. There was probable cause to support Mack’s arrest warrant. The trial

court was not required to sua sponte declare a mistrial when the State asked Mack about his defense

because it did not violate his right against self-incrimination. The court properly instructed the jury.

9

Mack’s motion for new trial was properly rejected because the jury’s guilty verdict was supported

by the weight of the evidence. Similarly, the trial court correctly denied Mack’s motion for JNOV

because the guilty verdict was supported by the sufficiency of the evidence.

ARGUMENT

I. The voir dire process did not prejudice the jury against Mack or deny him a fair,impartial jury trial.

Standard of Review

Jury selection is a judgment call peculiarly within the providence of the circuit judge, whose

decision will not be disturbed on appeal unless the record shows a clear abuse of discretion. Scott

v. Ball, 595 So.2d 848, 850 (Miss. 1992).

Argument

Mack argues that the trial court was partial in dismissing members of the venire and

therefore denied him of his right to due process and trial by a fair and impartial jury. Specifically,

Mack alleges that the trial court improperly removed a potential juror from the venire panel without

motion by the State or defense, and allowed potential jurors who might have been favorable to the

prosecution to remain on the venire panel.

The right to a fair trial by an impartial jury is guaranteed by both the federal and state

constitutions. Johnson v. State, 476 So.2d 1195, 1209 (Miss. 1985). See U.S. Const. amend. VI;

Miss. Const. art. 3, §26. On appeal, voir dire is presumed sufficient to ensure the impanelment of

a fair and impartial jury. Keller v. State, 138 So.3d 817, 843 (Miss. 2014). To overcome this

presumption, the appellant must present evidence that demonstrates: (1) the jury was partial and

not fair, and (2) the jury’s prejudice resulted from the circuit court’s handling of voir dire. Id.

(citing Ross v. State, 954 So.2d 968, 988 (Miss. 2007)).

10

To begin, this issue is procedurally barred on appeal. “Issues not brought before the trial

court are deemed waived and may not be raised for the first time on appeal.” Wilcher v. State, 479

So.2d 710, 712 (Miss. 1985). The record clearly shows that Mack failed to challenge both the

court’s dismissal of Juror No. 26 and the court’s handling of voir dire in regards to the remaining

potential jurors on the venire (Jurors No. 7, 15, 19, 20, 21, 23, 25, 28, 29, and 32). (TR 13-15, 51,

63-64). As a result of the procedural bar, this issue is without merit. “Moreover, ‘a party who fails

to object to the jury's composition before it is empaneled waives any right to complain thereafter.’”

Duplantis v. State, 644 So.2d 1235, 1245 (Miss. 1994) (quoting Myers v. State, 565 So.2d 554, 557

(Miss. 1990)).

Procedural bar notwithstanding, Mack did not provide any evidence to prove that the jury

was partial and not fair. The Mississippi Supreme Court has consistently held that a trial judge will

not be held in error when an appellant only offers a conclusory statement that the trial court erred.

Spires v. State, 10 So.3d 477, 483 (Miss. 2009) (citing Archer v. State, 986 So.2d 951, 957 (Miss.

2008)).

Juror No. 26

In regards to Juror No. 26, Mack claims the court’s dismissal of that potential juror was

improper because it did not ask her if she could be impartial, and because it did so sua sponte.

During voir dire, the court learned that Juror No. 26 was neighborhood friends with both the

defendant and the victim, and presumably lived in the same neighborhood as the two men. (TR 13-

15, 61). The judge told Juror No. 26, “I’m going to go ahead and let you go, ma’am. Okay. There’s

no reason for you to stay around. Okay. Thank you though.” (TR 15).

Mack did not object to the court’s dismissal of Juror No. 26. (TR 15). Outside the presence

of the venire, the court explained, “It should be noted that Juror No. 26 was excused by the

11

agreement of the parties and the fact that she lived in the neighborhood and knew both the

defendant and the victim.” (TR 61). Again, Mack failed to challenge the court’s decision to release

Juror No. 26. (TR 61). In fact, according to the court, Mack agreed to excuse Juror No. 26. (TR 61).

Additionally, under Mississippi Code Annotated Section 13-5-79, a juror “shall be excluded . . .

if the court be of the opinion that he cannot try the case impartially, and the exclusion shall not be

assignable for error.” Miss. Code Ann. §13-5-79. Therefore, the judge was statutorily permitted to

exclude Juror No. 26 and the issue cannot be assigned as error. Accordingly, the argument

regarding Juror No. 26 is without merit.

Law Enforcement Connection

Mack argues that Jurors No. 19, 20, 21, and 28 were erroneously permitted to remain in the

venire in spite of their connections to the law enforcement witnesses in this case, Detective Scott

or Mr. Byrd. Specifically, Mack claims their association with law enforcement prevented him from

receiving a fair and impartial jury and trial, regardless of the juror’s promises of impartiality.

To begin, the connection between the jurors in this case and the law enforcement witnesses

is very weak. Juror. No. 19 worked with Detective Scott “years ago,” Jurors No. 20 and 21 were

casually acquainted with Detective Scott and Mr. Byrd, respectively, and Juror No. 28's children

went to high school with Detective Scott. (TR 15-18, 20-22, 34).

Mack repeatedly attempts to compare the alleged undue influence of law enforcement in

this case to the 1985 case, Mhoon v. State. 464 So.2d 77, 82 (Miss. 1985). However, the supreme

court has explained, “The concern of undue influence on the jury in Mhoon is unique, and we

refuse to assume that simply because a person is in law enforcement or connected to those who are

that they cannot apply the law fairly and honestly as described in their oath.” Brown v. State, 890

So.2d 901, 908 (Miss. 2004) (distinguished from Mhoon v. State, 464 So.2d 77, 82 (Miss. 1985)).

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In Mhoon, there was an inordinate percentage of jurors who were either members of law

enforcement or closely connected to law enforcement. Id. Here, there were only four members on

the jury that were loosely associated with law enforcement. Therefore, the unique circumstances

in Mhoon render its holding inapplicable to the present facts.

Nothing presented by Mack demonstrates that the trial court erred in taking these jurors at

their word that they could be impartial and fair. See Duncan v. State, 939 So.2d 772, 779 (Miss.

2006). Moreover, Mack has not proven any resulting prejudice from the court’s handling of these

jurors. Keller, 138 So.3d at 438 (Miss. 2014). Accordingly, this assignment of error is without

merit.

Victim or Family Members as Victims

Mack also challenges the court’s decision to allow Jurors No. 15, 19, 23, and 28 to remain

on the venire because they or one of their family members had been the victim of aggravated

assault. Mack implies that this connection rendered these potential jurors incapable of being fair

and impartial. In Shell v. State, the Supreme Court of Mississippi declined to establish a per se rule

of disqualification where a juror is related to a victim of a similar crime. Brown v. State, 890 So.2d

901, 909 (Miss. 2004) (citing Shell v. State, 554 So.2d 887, 892 (Miss. 1989)).

Accordingly, there is no reason why the potential jurors in this instance should have been

dismissed because of a similar victim experience. Additionally, Mack has neither provided any

evidence to support his claim nor proven any resulting prejudice. Keller, 138 So.3d at 843 (Miss.

2014). This assignment of error is without merit.

Served on Jury

Mack argues the trial court erroneously allowed Jurors No. 7, 20, 21, 25, 29, and 32, all of

whom had served on juries that found criminal defendants guilty, to remain on the venire. A similar

13

argument was raised in Gowdy v. State, in which the appellant assigned error to the trial court for

having allowed the State to ask venire members about prior jury service. 56 So.3d 540, 544 (Miss.

2010). There, the Court found the issue to be without merit. Id. “We are not aware of any case

which condemns or finds fault with this common practice, and Gowdy does not provide one. Such

questions often are posed by both sides in criminal and civil cases alike, and are patently legitimate

as voir dire questions.” Id. As such, the trial court’s decision to allow the potential jurors to remain

on the venire in this case was not an abuse of discretion. Lastly, Mack failed to support his claim

and to demonstrate the requisite prejudice.

Conclusion

This issue is procedurally barred on appeal. Duplantis, 644 So.2d at 1245 (Miss. 1994).

Procedural bar notwithstanding, Mack has not met his burden of proof to overcome the

presumption of a fair and impartial jury because he did not present evidence that demonstrates: (1)

the jury was partial and not fair, and (2) the jury’s prejudice resulted from the circuit court’s

handling of voir dire. Keller, 138 So.3d at 843 (Miss. 2014) (citing Ross v. State, 954 So.2d 968,

988 (Miss. 2007)).

II. There was probable cause to issue Mack’s arrest warrant.

Standard of Review

When determining the existence of probable cause, the court must consider the totality of

the circumstances. State v. Woods, 866 So.2d 422, 425 (Miss. 2003). “The task of the issuing

[judge] is simply to make a practical, common-sense decision based on all the circumstances set

forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons

supplying hearsay information.” Id.

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Argument

Mack argues that his arrest was unconstitutional and not based on probable cause because

the information provided in the affidavit by Detective Scott about Warren Randle was allegedly

fraudulent. He further asserts that when the allegedly false information from Randle is removed,

the remaining information, provided by the victim, Joseph Scott, is insufficient to rise to the

requisite level of probable cause.

Procedural Bar

First, this issue is procedurally barred because Mack failed to raise the issue at trial.

Wilcher, 479 So.2d at 712 (Miss. 1985). In Baskin v. State, the Supreme Court of Mississippi held

that the appellant was procedurally barred from challenging the validity of his arrest warrant for

the first time on appeal where he failed to raise the issue at trial. 145 So.3d 601, 603 (Miss. 2014).

Here, Mack did not challenge the validity of his arrest warrant at trial. In fact, Mack failed to

challenge its validity when he waived extradition from Georgia and returned to Forrest County, and

he failed to raise any pretrial motions to challenge its validity. As such, this issue is procedurally

barred on appeal.

Probable Cause

Procedural bar notwithstanding, Mack’s argument lacks merit because the warrant for his

arrest was amply supported by an abundance of probable cause. Mack claims that Detective Scott

falsified the information provided in the affidavit used to obtain Mack’s arrest warrant. As such,

Mack asserts that the affidavit and warrant should be stricken and the trial voided.

To obtain a felony arrest warrant, a police officer must have (1) reasonable cause to believe

that a felony has been committed; and (2) reasonable cause to believe that the person proposed to

be arrested is the one who committed it. Conerly v. State, 760 So.2d 737, 740 (Miss. 2000) (citing

15

Henry v. State, 486 So.2d 1209, 1212 (Miss. 1986)). An arrest warrant will only be issued after a

judicial determination that there is probable cause based upon the affidavit or other evidence before

the court. Miss. Unif. R.P.J.C. 3.03. Probable cause is “a practical, nontechnical concept, based

upon the conventional considerations of every day life on which reasonable and prudent men, not

legal technicians, act. It arises when the facts and circumstances within an officer's knowledge, or

of which he has reasonably trustworthy information, are sufficient in themselves to justify a man

of average caution in the belief that a crime has been committed and that a particular individual

committed it.” Busick v. State, 906 So.2d 846, 852 (Miss. Ct. App. 2005) (citing Conerly, 760

So.2d at 740 (Miss. 2000)).

Here, Detective Scott obtained Mack’s arrest warrant. Detective Scott had probable cause

to seek a warrant for Mack’s arrest because of the evidence provided to him by law enforcement,

Joseph Scott, Warren Randle, and the physical evidence, it is apparent that there was probable

cause to believe that a felony had been committed and that Mack was the person who had

committed it. Conerly, 760 So.2d at 740 (Miss. 2000).

However, even if Mack had made a preliminary showing that the evidence provided by

Randle in the affidavit was fraudulent, the remaining evidence is of such veracity that it is still

sufficient to establish probable cause. Busick, 906 So.2d at 853–54 (Miss. Ct. App. 2005) (citing

Petti v. State, 666 So.2d 754, 758 (Miss. 1995)). In Busick, the appellant moved in a preliminary

suppression hearing to suppress a video statement and other evidence which resulted from his arrest

because the arrest warrant was allegedly issued without probable cause. Id. at 852. At the

suppression hearing, instead of arguing that probable cause could not have arisen from the facts

alleged in the investigator’s affidavit, Busick tried to show that most of the information in the

affidavit was the result of false swearing by the investigator. Id. at 853. Ultimately, the court found

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that there was no misrepresentation on the affidavit where the officer’s testimony did not

sufficiently demonstrate that he acted with deliberate or reckless disregard for the truth in order to

overcome an arrest warrant’s presumption of validity. Id. (citing Franks v. Delaware, 438 U.S. 154,

171 (1978)).

Much like the appellant in Busick, Mack attempts to show that the information provided

in Detective Scott’s affidavit was fraudulent. Yet, Mack does not present any evidence that

Detective Scott made statements in the affidavit knowingly or intentionally or with reckless

disregard for the truth. Moreover, even if the allegedly falsified information in the affidavit were

stricken, there is still sufficient evidence to establish probable cause.2 This issue is without merit.

Conclusion

The procedural bar prevents this error from being addressed on appeal. However,

procedural bar notwithstanding, Mack has made no showing of intentional or knowing

misrepresentation by Detective Scott. That being said, even if the allegedly contradictory portion

of Detective Scott’s affidavit were removed, there was still sufficient evidence to establish probable

cause in issuing a warrant for Mack’s arrest.

III. A mistrial was not required because Mack’s right against self-incrimination was notviolated when the State questioned him on cross-examination.

Standard of Review

Whether to grant a mistrial is within the sole discretion of the trial court. Pulphus v. State,

782 So.2d 1220, 1223 (Miss. 2001). The decision will be reviewed for abuse of discretion. Ross

2 “If the remaining content provides insufficient support for a finding of probable cause, thearrest warrant ‘must be voided and the fruits of the [arrest] excluded to the same extent as ifprobable cause was lacking on the face of the affidavit.’” Busick v. State, 906 So.2d 846, 853–54(Miss. Ct. App. 2005) (citing Petti v. State, 666 So.2d 754, 758 (Miss. 1995)).

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v. State, 16 So.3d 47, 57 (Miss. Ct. App. 2009). Mistrials should only be declared sua sponte under

the “manifest necessity” rule. Younger v. State, 931 So.2d 1289, 1291 (Miss. 2006).

“There is no simple rule or formula defining the standard of ‘manifest necessity’ or when

exceptional circumstances exist justifying a declaration of mistrial by the trial court. The question

is not easily answered. For this reason, appellate courts must defer to ‘a trial judge's considered

determination that manifest necessity for a mistrial exists in a particular case.’” Leslie v. State, 171

So.3d 549, 556 (Miss. Ct. App. 2015) (citations omitted).

Argument

Mack argues that the trial court violated his right against self-incrimination when it allowed

the State to ask him on cross-examination why he did not give a statement to the police department

regarding his alibi. According to Mack, the jury was tainted by this portion of his testimony and

as such, the trial court should have declared a mistrial as soon as the State asked Mack the

questions. The line of questioning, in pertinent part:

Q. This story that you just said that I wasn’t in town, did you ever tell police this?

A. Oh, yes, sir, yes, sir. Officer Joel Scott to be exact.

Q. So wait a minute. ‘Cause my file said you refused to give astatement.

A. He probably did it off the record . . .

Q. Did you refuse to give a statement?

A. Yes, sir, I did.

(TR 183-184).

Under the federal and state constitutions, the privilege against self-incrimination provides

that an individual may not be required to take the witness stand. In re Knapp, 536 So.2d 1330, 1334

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(Miss. 1988) 0(citing U.S. Const. Amend. V; Miss. Const. Art. 3 §26). A defendant can waive their

right against self-incrimination by voluntarily and knowingly taking the witness stand and

responding to questions. Hentz v. State, 496 So.2d 668, 673 (Miss. 1986). No waiver occurs if the

defendant’s counsel timely objects to questions that would elicit incriminating information. Moore

v. Moore, 558 So.2d 834, 838 (Miss. 1990).

Here, Mack waived his right against self-incrimination when he voluntarily and knowingly

took the witness stand. Prior to taking the witness stand, the court explained to Mack what his

constitutional rights were and that he had the choice to testify or not testify. (TR 166-67). Mack

said he understood his rights and wished to testify. (TR 167). Mack also waived his right by

responding to the questions asked by the defense and the State.

Additionally, Mack’s attorney failed to object to the State’s line of questioning in this

instance, although he raised several objections to other questions. (TR 183). In spite of this failure,

Mack seems to assert that the trial court was required to sua sponte declare a mistrial. Under these

facts, Mack has failed to demonstrate the manifest necessity of a sua sponte mistrial. Younger, 931

So.2d at 1291 (Miss. 2006). As such, the trial court’s initial refusal to declare a mistrial sua sponte

should be upheld.

Furthermore, the State’s line of questioning was not an impermissible comment on Mack’s

right against self-incrimination. Rather, it was a comment on the lack of defense put forth by

Mack.“The State is entitled to comment on the lack of any defense, and such comment will not be

construed as a reference to the defendant’s failure to testify by innuendo and insinuation.” Crutcher

v. State, 68 So.3d 724, 728 (Miss. Ct. App. 2011). Seeing as the defense proposed an alibi theory

of defense, agreed that it would be easy to prove, yet chose not to present a single supporting

witness, it is obvious that the State’s question was a comment on the lack of defense. “The question

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is whether the prosecutor’s statement can be construed as commenting upon the failure of the

defendant to take the stand.” Ladner v. State, 584 So.2d 743, 754 (Miss. 1991). Here, the State’s

question was clearly not a comment upon Mack’s failure to take the stand, as Mack was testifying.

Alternatively, even if the State's question was improper, it would constitute harmless error,

as nothing indicates the jury relied on the prosecution's comments in arriving at its guilty verdict.

Towles v. State, 193 So. 3d 688, 702 (Miss. Ct. App. 2016).

IV. The trial court did not allow improper jury instructions.

Standard of Review

On appeal, the grant or denial of jury instructions is reviewed for abuse of discretion.

Newell v. State, 49 So.3d 66, 73 (Miss. 2010). The circuit court has sole discretion whether to grant

or deny proposed jury instructions. Id. The instructions should be reviewed as a whole to determine

whether an error has occurred and no one instruction should be singled out. Id.

Argument

Mack asserts that the trial court improperly granted instructions S-1, S-4, and S-5, and

erroneously excluded instruction D-1.

S-1

Jury instruction S-1 set forth the elements of aggravated assault. (CP 37). Instruction S-1

stated in pertinent part: “If you find from the evidence beyond a reasonable doubt that: (1) William

Mack, Jr., on or about January 25, 3013, in Forrest County, Mississippi; (2) knowingly caused

bodily injury to Joseph Scott, with a deadly weapon, to wit: gun, by shooting Mr. Scott with a gun;

and (3) that such behavior was not done in necessary self defense, accident, or misfortune; then you

shall find William Mack, Jr. guilty of Aggravated Assault.” (CP 37). At the jury instruction

conference, Mack’s attorney objected to the instruction because it did not follow the statutory

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language; counsel indicated his preference for D-1 instead. (TR 202). The State pointed out that

while D-1 tracked the statute, it did not include the facts of the case. (TR 202). The elements in

instruction D-1 stated, “You must find WILLIAM MACK not guilty unless the state proves beyond

a reasonable doubt that he: (1) attempts to cause or purposely or knowingly causes; (2) bodily

injury to Joseph Scott; (3) with a deadly weapon or other means likely to produce death or serious

bodily harm.” (CP 42). Following the defense’s objection to S-1, the court determined that S-1 was

a proper statement of the law and would be given. (TR 202).

On appeal, Mack argues that instruction S-1 was an improper instruction because it

needlessly included the kind of deadly weapon used, a gun, and because of the limited physical

evidence connecting Mack to the use of a gun. A similar jury instruction argument was raised by

the appellant in Boyd v. State, where he asserted that the jury was incorrectly instructed on

aggravated assault because the instruction stated he used a knife, but failed to include language

classifying a knife as a “deadly weapon.” 47 So.3d 121, 124 (Miss. 2010). The court determined

that under Mississippi Code Annotated Section 97-3-7, “with a deadly weapon or other means

likely to produce death or serious bodily harm,” is an essential element of the statute. Id. As such,

the court held that the jury was improperly instructed because in order to convict Boyd, it had to

be instructed that the knife he used was a “deadly weapon.” Id. at 125. Nevertheless, the court

reasoned that the jury would have reached the same verdict regardless of the inclusion of the

phrase, “deadly weapon.” Id.

Here, instruction S-1 complies with the Supreme Court’s holding in Boyd because it

identified the weapon used, a gun, and classified it as a “deadly weapon.” The instruction was a

correct statement of law; therefore, the trial court’s granting of the instruction was not an abuse of

discretion.

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D-1

The trial court correctly denied instruction D-1 because it was repetitive. Before it denied

the instruction, it asked the defense if there was any need for the instruction since he had granted

S-1. (TR 204). In response, Mack said, “I understand this will be repetitive. We would actually like

this one in lieu of S-1, but if the Court keeps S-1, you know, it is repetitive.” (TR 204-05). As a

result, D-1 was refused. (TR 205). Refusal to grant a repetitive jury instruction is not error. Lee v.

State, 877 So.2d 543, 545 (Miss. Ct. App. 2004) (citing Jackson v. Daley, 739 So.2d 1031, 1037

(Miss. 1999)). Therefore, the court’s refusal to grant D-1 was neither in error nor an abuse of

discretion.

S-4

Mack asserts instruction S-4 was repetitive and erroneous and only served to bias the jury

against him. Instruction S-4 defined “deadly weapon” as it applies to Mississippi’s aggravated

assault statute. (CP 39). The defense objected to its inclusion at the jury instruction conference

because it was an “unnecessary . . . repetitive” instruction. (TR 203). The State proffered that it was

necessary to define “deadly weapon,” an essential element listed in the statute. (TR 203). The judge

decided to give the instruction over the defense’s objection. (TR 203).

There is no evidence that instruction S-4 was unnecessary or repetitive. In fact, in a similar

armed robbery case, Williams v. State, the supreme court held that the kind of instruction that

defines what legally constitutes a “deadly weapon” better informs the jury as to whether a particular

instrument constitutes a deadly weapon. 134 So. 3d 732, 737 (Miss. 2014). Because “deadly

weapon” is an essential element of both armed robbery and aggravated assault, as it occurs here,

the court’s holding supports the trial court’s inclusion of instruction S-4. Id. Therefore, Mack’s

argument is without merit.

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S-5

Mack also asserts jury instruction S-5 was unnecessary, repetitive, and served to bias the

jury against him. Instruction S-5 read, “A person charged with aggravated assault does not have

to possess ill-will toward his victim(s) . . . In this trial this Rule of Law means that William Mack,

Jr. did not have to possess ill-will toward Joseph Scott.” (CP 40). Mack further claims this

instruction was unsupported because there was no testimony that Mack possessed any ill-will

toward Scott and that Mack’s state of mind was never at issue in this case.

At the jury instruction conference, the defense objected to Instruction S-5 and argued that

Mack’s state of mind was not at issue in the case and the instruction would only serve to confuse

the jury. (TR 203). The trial court rejected Mack’s argument and gave the instruction because “it’s

a correct statement of law.” (TR 204). The Supreme Court of Mississippi has held that a person

does not have to have ill-will to commit aggravated assault on someone. Blanks v. State, 542 So.2d

222, 226 (Miss. 1989). Therefore, the court’s ruling on S-5 was a correct statement of law and not

an abuse of discretion.

V. The trial court did not err when it denied Mack’s motion for a new trial because theguilty verdict was not against the overwhelming weight of the evidence.

Standard of Review

A motion for new trial challenges the weight of the evidence. Jones v. State, 918 So.2d

1220, 1235 (Miss. 2005). In determining whether a jury verdict is against the overwhelming weight

of the evidence, the reviewing court must accept the evidence which supports the verdict as true

and may only reverse when it is convinced that the circuit court has abused its discretion in failing

to grant a new trial. Boone v. State, 973 So.2d 237, 243 (Miss. 2008). Only when the verdict is so

contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an

23

unconscionable injustice will this Court disturb it on appeal. Id.

Argument

Mack argues that the trial court erred when it denied his motion for new trial because the

jury’s guilty verdict is contrary to the overwhelming weight of the evidence. Upon review, it is

evident that the trial court properly denied Mack’s motion for new trial because the evidence amply

supports the jury’s guilty verdict.

Warren Randle testified that on the morning of January 25, 2013, he saw Mack and Mack’s

father stop the gray Jeep Grand Cherokee they were driving at the sign in front of his house; he said

minutes later, he heard tires squealing and learned Scott had been shot. (TR 217). Mack was

identified by Scott as the person who shot him. (TR 218). Officer Breland testified that he saw a

black male drive a gray Jeep Grand Cherokee with a flat tire through an intersection near the crime

scene at a high rate of speed. (TR 218). The dash cam video shows the vehicle going through the

intersection. (TR 218). Moments later, Officer Breland received a dispatch call about a shooting in

the area. (TR 218). The evidence showed the gray Jeep was registered to Mack’s grandmother. (TR

220). Numerous shell casings were found in the middle of the street where the shooting occurred.

(TR 220).

Mack’s testimony on direct examination suggested an alibi defense, however, the State was

never notified of his intent to present an alibi. (TR 220). Mack did not present any physical

evidence, witnesses, or statements to support his claim. (TR 220). On cross-examination, Mack

admitted that his alibi would be easy to support at trial but he and his attorney chose not to do. (TR

194). Ultimately, “the jury determines the weight and credibility to give witness testimony and

other evidence and is not required to believe alibi testimony.” Wilson v. State, 198 So.3d 408, 413

(Miss. Ct. App. 2016) (citing Sanders v. State, 162 So.3d 868, 871 (Miss. Ct. App. 2015).

24

In light of the evidence supporting Scott’s version of the incident, when coupled with

Mack’s unsupported alibi claim, make it obvious that allowing Mack’s conviction to stand would

not sanction an unconscionable injustice. As a result, the trial court properly denied Mack’s motion

for new trial because the weight of the evidence amply supports his conviction.

VI. The trial court did not err when it denied Mack’s motion for JNOV because theevidence was sufficient to support the guilty verdict.

Standard of Review

A motion for a judgment notwithstanding the verdict (JNOV) challenges the legal

sufficiency of the evidence presented at trial. Shelton v. State, 853 So.2d 1171, 1186 (Miss. 2003).

The evidence is viewed by the court in the light most favorable to the State and the State must be

given the benefit of all reasonable inferences that can be reasonably drawn from the evidence.

McClain v. State, 625 So.2d 774, 778 (Miss. 1993); Bell v. State, 910 So.2d 640, 646 (Miss. Ct.

App. 2005). This Court has stated that the critical inquiry in considering whether the evidence is

sufficient to sustain a conviction in the face of a motion for JNOV 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...” Bowser v. State, 182 So.3d 425, 430

(Miss. 2015) (citing Bush v. State, 895 So.2d 836, 843 (Miss. 2005)).

Argument

Mack argues the trial court erred when it denied his motion for JNOV because the elements

of the crime of aggravated assault were not met. However, when viewing the evidence in the light

most favorable to the prosecution, any rational juror could have concluded that all the elements of

aggravated assault were satisfied. Therefore, there was ample sufficient evidence to support the

guilty conviction and the trial court correctly denied Mack’s motion for JNOV.

25

The State first proved the first element of aggravated assault, that the incident occurred on

January 25, 2013, in Forrest County, through the testimony of the victim, Joseph Scott, Officer

Breland, Detective Scott, Mr. Byrd, and Warren Randle. (TR 209). It is not disputed that the

shooting occurred on that date in Forrest County, Mississippi. (TR 209).

The State proved the second element of aggravated assault, that Mack, the defendant,

knowingly caused injury to the victim, Joseph Scott, with a deadly weapon by shooting him with

a gun. (TR 209). It is not disputed that Joseph Scott was shot in the leg with a .45 caliber handgun.

(TR 210). Mack was implicated in this crime through the testimony of Joseph Scott, a longtime

friend and neighbor. (TR 210). Scott testified at trial that Mack got out of a gray Jeep Grand

Cherokee and ran towards him, firing a gun in broad daylight. (TR 210). Scott had a clear view of

Mack and told police minutes later that Mack was the person who shot him. (TR 210).

Lastly, the State proved the final element of aggravated assault, that the shooting was not

done in necessary self-defense or by accident or misfortune. (TR 210). This was not a case of

necessary self-defense because Scott did not threaten Mack. (TR 210). Scott testified that he does

not even own a gun. (TR 210). The evidence shows that Mack was the aggressor in this situation

and jumped out of the car and began firing at Scott as he pulled up to his grandparents’ house. (TR

210). This incident was not an accident or misfortune because Mack’s actions display intent to harm

because he was running towards Scott pulling the trigger of the handgun. (TR 210-11).

It is abundantly clear that based on this evidence, a rational juror could have concluded that

the State satisfied all the elements of aggravated assault. Therefore, there was sufficient evidence

to support the jury’s guilty verdict and the trial court did not err when it denied Mack’s motion for

JNOV.

26

CONCLUSION

For the foregoing reasons, the State asks this honorable Court to affirm Mack’s conviction

and sentence.

Respectfully submitted,

JIM HOOD, ATTORNEY GENERAL

BY: /s/ Kaylyn McClinton KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERALMISSISSIPPI BAR NO. 105137

OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE: (601) 359-3680

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CERTIFICATE OF SERVICE

I, KAYLYN MCCLINTON, hereby certify that on this day I electronically filed the

foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent

notification of such filing to the following:

Seth M. Hunter, Esq.Dukes Dukes & Hunter

P.O. Box 2055Hattiesburg, MS 39403

Further, I hereby certify that I have mailed by United States Postal Service the document

to the following non-MEC participants:

Honorable Robert P. HelfrichCircuit Court Judge

P.O. Box 309Hattiesburg, MS 39403

Honorable Patricia BurchellDistrict Attorney

P.O. Box 166Hattiesburg, MS 39403-0166

This the 19th day of December, 2016.

/s/ Kaylyn McClinton KAYLYN MCCLINTONSPECIAL ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERALPOST OFFICE BOX 220JACKSON, MS 39205-0220TELEPHONE NO. 602-359-3680FAX NO. 601-576-2420

28