IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-02103-COA DARRELL ROSS BROOKS A/K/A DARRELL BROOKS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/11/2011 TRIAL JUDGE: HON. JOHN C. GARGIULO COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W ILLIAM ALEX BRADY II ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED AS A HABITUAL OFFENDER TO LIFE W I THOUT PAROLE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 03/31/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. LEE, C.J., FOR THE COURT: ¶1. D a r r e ll Ross Brooks was convicted of m urder and sentenced as a habitual o f f e n d e r to lif e without parole in the c ustody of the Mississippi Departm e nt of C o rrections. Brooks f iled post-trial m otions, which t he trial court denied. Brooks now a ppeals, asserting that the trial court erred by : (1) f

ailing t o grant his m o tion f or a judgm ent notwithstanding the verdict (JNOV); (2) d e n y i n g h i s m otion f or a directed v erdict and request f or a perem

ptory juryinstruction; and (3) deny ing his m otion f or a new trial. FACTS ¶2. On Decem

b e r 7, 2009, shortly

af ter 10:00 p.m ., David S hivers was shot in the back of the head and died. Shivers’s body was f ound on the f

l oor of the kitchen in his m other’s house in Gulf

port, Mississippi, b y his m other, Patricia Shivers; his brother, Jim m y Shivers; and J im m y ’s live-in girlf

riend, Kari Parker. All three were in the house when t hey heard a gunshot, but none of t hem witnessed the shooting. The kitchen window above the sink was broken, and glass shards were f ound i n t he wound in Shivers’s head, l eading investigators

to the determ ination that the perpetrator s ho t Shivers through the kitchen window. The f orensic p athologist e stim ated Shivers was shot with a shotgun f rom approxim ately six f

eet away . ¶3. Dustin Cottrell, a neighbor who was outside s m oking at the tim e of Shivers’s m urder, testif i ed that he heard a gunshot around 10:00 p.m . , then saw som eone run f rom the alley

way behind Patricia’s house. T his person, who Cottrell said “ appeared to be black,” was wearing dark c lothes and had a hood pulled over his f ace. Cottrell live d across the street and two houses down f

rom Patricia. Cottrell lost sight of the m a n but heard the rattle of a chain-link f ence, which m ade him

think the m an was jum

ping over the f

ences as he escaped. ¶4. Investigators with the Gulf port Police Departme n t l e a r n e d t h at Shivers had been dating Am y Brooks, Brooks’s estranged wif e. G abrielle Ledet, a f

riend of both Am y and Brooks, testif

i ed Brooks had b ecom e depressed a f ter his s eparation f

rom Am y . L edet stated Brooks had begun f

ollowing Am y and s howing up at her w ork. Af ter f ighting with Am y at

2her work, Brooks was told t o stay of f the prem ises. Ledet testif ied Brooks told her he would kill any m an who was dating Am y . Ledet and Brooks texted back and f orth m o st of the day of Shivers’s m

urder. Ledet stated B r o o k s t exted her around 9:00 p.m . on the night of the

m urder, say ing he had a gun and was going to kill him self

. ¶5. Brooks had been working at McDonalds. His m anager, Heather Lee, testif i ed Brooks

was a n g r y a b o u t t he state of his m arriage. Lee said B rooks h ad been f ollowing Am y and knew about her relationship with Shivers. ¶6. Charles Oatis, S h i v e r s ’s coworker at M cDonalds, t estif ied Brooks s poke with him about his problem s with Am y . O atis stated B rooks knew Am y was seeing S h i v e r s , and Brooks showed Oatis a picture of Shivers and told him , “I’m going to kill that m an.” This occurred a f

ew day s p rior t o Shiver s ’ s mu r der. O a t is said that on t he day of Shivers’s

m urder, Brooks a sked him m ore than once if Oatis could h elp him buy a gun f o r f if ty dollars. Brooks told Oa t i s t h a t h e only needed to use the g un one tim e. Oatis d id not help Brooks f ind a gun. ¶7. Michael Thom

pson testif

ied that he f

irst m et Brooks at Jennif

er Diaz’s house a f

ew day s prior to Decem

ber 7, 2009. Thom

pson s tated he received a call f r om Brooks d

uring the af ternoon of Decem

ber 7. Brooks told him t hat h e “had som e business to take care of ” and asked to rent Thom

pson’s gun f

or f if ty dollars. T hom

pson declined. Thom

pson said Brooks called again between 6:00 and 7:00 p.m . that night asking if Thom p son knew where he could f ind a gun. Brooks told Thom pson “he had som e problem s to take care of a nd he needed to get them handled.” Thom pson testif

ied that B rooks m entioned the problem concerned Am y

3and another guy

.

¶8. Diaz testif

ied she had only been f

r iends with B rooks f

or approxim ately one week prior

to Shivers’s m

urder. Diaz stated Brooks told her a b o u t h i s s eparation f rom Am y , how dif f icult the situation was, and how upset he was t hat Am y w as dating Shivers. On the day of S hivers’s m

u r der, Diaz received a call f rom Brooks asking f

o r Thom pson’s p hone num

ber. Diaz testif

ied that later she w ent to a local bar and got back hom e around 9:30 o r 10:00 p .m . She stated that s he and her boy f ri e n d , M ichael Odom , were watching the end of the NFL f ootball gam e o n t elevision w hen Brooks knocked on the door. Diaz t hought this happened

a round 10:00 or 10:30 p.m . but was clear that t he f ootball gam e was ending when Bro o k s arrived. Brooks asked Diaz to tell any one who a sked that he had been at h er house since 8:00 p.m . that night. Diaz said Brooks only stay ed a f

ew m inutes bef

ore leaving. ¶9. Odom testif

i ed t h a t B r o o k s c a me o v e r c l o s e r t o 10:30 or 11:00 p.m . Odom

rem em b ered that they

were watching the Monday night f ootball g am e, and the gam e clock showed three m i nutes lef

t in the gam e. Odom

stated Brooks was wearing blue jeans and a top with a hood. Odom testif ied that when he saw Brooks the next day , Brooks asked Odom

to tell any one who a sked that Brooks w as with Odom at Diaz’s house the n ight b ef ore, and they were watching the f

ootball gam e. ¶10. Detective Hugh Frazier with the Gulf port Police Departm ent testif ied that t he f

ootball gam e t hat night e n ded at 11:01 p.m . Detective Frazier noted that Brooks w as seen in the surveillance video of

a nearby convenience store buy ing beer at 11:30 p.m . that night. ¶11. Brooks’s theory of def en s e w a s t h at several recent burglaries in the neighborhood

4could have been related to Shivers’s m urder. DISCUSSION I. JNOV II. DIRECTED VERDICT AND PEREMPTORY INSTRUCTION ¶12. As Brooks’s f

irst t wo issues are related, we will address them t ogether. O ur standards of review f

or the denial of a m otion f

or a JNOV, directed verdict, and perem ptory i nstruction

are the sam e. Jefferson v . State , 818 So. 2d 109 9 , 1 1 1 0

- 1 1 ( ¶ 3 0) (Miss. 2002). All three challenge the legal suf

f iciency of t h e e v i d ence presented at trial. Id

. In reviewing the suf f i ciency of the evidence, “the critical inquiry is w hether the evidence shows bey ond a reasonable doubt that [ the] accused com m itted the act c h arged, and that he did so under such circum stances that every elem ent of the of f ense existed[ .]” Bush v . State , 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citation and internal quotation m arks om itted). If , viewing the evidence in the light m ost f avorable to the State, any rational trier of f a ct c ould have f

ound, bey ond a reasonable doubt, that the essential elem ents of the crim e e xisted, this Court will af f irm the conviction. Id

. F urtherm ore, it i s w el l

- s ettled law t hat the jury d eterm ines the credibility of the w itnesses and r esolves conf licts in the evidence. D avis v. State , 866 So. 2d 1107, 1112 (¶17) (Miss. Ct. App. 2003). ¶13. The e vidence a gainst Brooks was circum stantial. No phy s i c a l evidence linked him

to the crim e, and no ey ewitness saw him shoot S hivers. Brooks a rgues because the case was circum stantial, the S tate was required to p rove his guilt not only bey o nd a reasonable doubt, but a lso to the exclusion of every reasonable hy pothesis consistent with innocence. He

5requested a perem ptory instruction based on this argum e nt, but it was denied. ¶14. C i r c u ms t a n t i a l e v i d e n c e i s evidence that, “without going directly to prove th e existence o f a f

act, gives rise to a logical inf erence that such [ a] f

act does exist.” McInnis

v. S tate , 61 So. 3 d 872, 875 ( ¶11) (Miss. 2011) (citation om itted). It is entitled to the sam e weight and e f

f ect as direct evidence. Sherrell v. State , 622 So. 2d 1233, 1238 (Miss. 1993). “Circum stantial evidence need not exclude every p ossible doubt, b u t o n l y every other reasonable hy

pothesis of innocence.” Campbell v. State , 798 So. 2d 524, 529 (¶13) (Miss. 2001) (citation and i nternal quotation m arks om itted). Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014) provides that m urder is “[ t]he k i l l i ng of a hum an b eing without the authority of law by any m eans or i n any m anner . . . [ w]hen done with deliberate design

to ef f ect t h e d e a t h o f the p erson killed

. . . .” The State was required to prove that Brooks killed Shivers, without the authority of law, and with deliberate design. Id

. ¶15. Upon review o f t he r ecord, we f ind there was suf

f icient evi d e n c e f

o r a jury to f

ind bey ond a reasonable doubt t hat Brooks m urdered Shivers. In the day s leading up to Shivers’s death, Brooks told two p eople that he was going to kill S hivers. There was t estim ony that Brooks h a d b een f

ollowing A m y and knew what Shivers looked l ike. On the day of Shivers’s death, B rooks t ried to obtain a g un f r om two people in order t o handle a problem

c o n c e r n i n g his wif

e and her boy f

riend. Brooks s tated he only needed to use the gun one tim e. There was a lso testim ony that Brooks had a gun in his possession at 9:00 p.m . on the night of the m

urder. Furtherm ore, two w itnesses testif ied that Brooks attem

pted to use t hem as an alibi f

o r the night of

Shivers’s m

urder.

6¶16. Although Broo k s ’ s t h e o ry of def

ense was that several burglaries in the area could have been related to Shivers’s death, the evidence he produced to prove this theory was vague at best. The jury clearly f

ound this theory was not reasonable or credible. W e a l so f ind no error with the trial court’s denial of his perem

ptory instruction. This issue is without m erit. III. NEW

TRIAL ¶17. In his other issue on appeal, Brooks argues the trial court e rred in d eny ing his m otion f or a new trial. “W hen reviewing a denial of a m otion f or a new trial based on an objection

t o t h e w e i g h t of the evidence, we will only disturb a v erdict when it is so contrary to the overwhelm ing w eight of the eviden c e t h a t to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 8 4 4 ( ¶ 1 8 )

. W e review the evidence in the light m ost f

avorable to the verdict, and we will not overturn the v erdict unless we f ind that the trial court abused its discretion in deny ing the m otion f or a new trial. W

oodard v. State , 765 S o. 2d 573, 576 (¶16) (Miss. Ct. App. 2000) (citing Veal v. State, 585 So. 2d 693, 695 (Miss. 1991)). ¶18. Based upon our review of th e e v i dence a bove, we cannot say that the w eight of the evidence overwhelm ingly supports s etting aside the jury ’s verdict. This issue is without

m erit. ¶19. T H E J U D GMENT OF THE HARRISON COUNTY CIRCU I T C O U R T O F CONVICTION OF M URDER AND SENTENCE AS A HABITUAL OFFENDER OF LIFE WITHOUT PAROLE IN T HE CUST O D Y OF THE MISSISSIPPI D E P A R TMENT O F CORRECTIONS IS A FFIRMED. ALL COSTS O F THI S APPEAL ARE ASSESSED TO THE APPELLANT. IRVING A ND GRIFFIS, P.JJ., BARNES , I SHEE, ROBERTS, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

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