IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-00294-SCT DEXTER POWELL

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 02/22/2017 TRIAL JUDGE: HON. MARGARET CAREY-McCRAY TRIAL COURT ATTORNEYS: TAKIYAH HERMIONE PERKINS KAYLON ALEXANDER McCOU MICHAEL ANTHONY W ILLIAMS COURT FROM W HICH APPEALED: W A SHINGTON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: W I LLIE DEW AYNE RICHARDSON NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 07/26/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KITCHENS, P.J., KING AND BEAM, JJ. BEAM, JUSTICE, FOR THE COURT: ¶1. Dexter Powell w as convicted of agg r a v a t e d a s s a u l t and f e l on in p ossession of

a f irearm f o llowing a jury trial in the W a shington County Circuit C ourt. He a p peals f rom those convictions, claim ing: (1) i nef f e ctive assistance of counsel, and ( 2) insuf f icient evidence ins u p p o r t o f the v erdicts, both of which also were against the overwhelm ing weight of t h e

evidence. Finding no reversible error, we af f i rm the trial court’s judgm ent of convictions. FACTS ¶2. O n M a y 3 , 2015, Jam arcus Barton, Darry Buck, Marcus Jones, Larry Ross, Ad r i a n Pam , and Eddie Brisco went to Club Fountain af ter a day of

drinking and play ing dom inos at Barton’s house. Buck drove the group to the club in a Chevrolet Tahoe. ¶3. At the club, the group encountered P o w e l l

. A t s o m e p o int, a dispute b roke out between Barton and Powell about an incident that had happened in the past. The two went outside t he c lub, where the argum ent turned p hy sical af ter Powell poked Barton in the ey e. At that p oi n t , B a r t o n struck Powell and Powell f e l l to the ground and urinated on him self

. According to Barton, he then helped Powell up because “[ w ]e’ r e h o me b o y s. I m ean, hom eboy s f

ight. It was over with.” ¶4. Af terward, o t h e r s f

r om t he group cam e outside to see what was happening. W hen
Pam saw Powell, he said, “Man, y ou peed on y o urself

. ” Pam , Buck, and Barton then walked to the corner of the street. ¶5. According to Pam , he was unaware t hat a phy sical altercation had occurred. Pam said that while he was standing with Pow e l l , h e h eard Powell on h is cellular telephone asking

som eone nam ed “D” to bring Powell a “strap.” ¶6. According to Buck, Powell’s childhood f riend, when he saw that Powell had urinated

o n h i ms e l f

, he insisted that he take Powell hom e. Buck pulled t he Tahoe around a n d t h e group got into the truck. Buck was d riving; J ones sat in t he in t he f ront p assenger seat;

2B a r t o n sat behind Buck; Powell sat behind Jones, and Pam sat i n t he m iddle seat betwe e n

Barton a nd P owell. Brisco s at in the third row b ehind Barton, Pam , and Powell. Ross was lef t behind at the club. ¶7. Buck drove t o Powell’s house. According t o Pam , when Powell opened the door to get out, the vehicle’s interior light cam e on, revealing t hat P owell was holding a gun. P am grabbed the barrel of

the gun and the two m en struggled over the gun, then Powell f ell out of the vehicle with the gun. ¶8. W h en Powell stood up, he pointed t he gun and f ired, s triking Barton in t he upper-right side of his back. B a r t o n got out of the vehicle on the other side and ran to the f ront of vehicle, where he collapsed. Pam got out of the vehicle and helped Barton to his f eet. ¶9. According to Barton, Powell cam e a r ound the back of the vehicle still h olding the gun, and “another s hot w ent of f .” Barton then took o f

f running. Powell r an of f i n another direction. ¶10. The group got b a c k i n t o the vehicle and d rove down the street looking f or Barton. Barton f lagged t h e m d o w n. They realized t hat Barton had been shot and drove him to the Delta Regional Medical Center. B arton was then airlif ted to the University of Mississippi Medical Center in Jackson. ¶11. In February 2 016, Powell w as indicted f or a g gravated assault a nd f elon in possession of a f irearm

. A ccording to Barton, at som e point prior to t rial, Powell contacted him and of f ered Barton $2,500 to drop the charges.

3¶12. At trial, Barton, Pam , Brisco, Buck, and Jones t estif ied to the events t hat had occurred

on May 3 , including witnessing the shooting. Each testif ied th a t Powell had gotten into Buck’s vehicle v o l u n t a r ily , a nd each testif ied that no one had attem pted to rob Powell, as Powell would claim . Each identif ied Powell as the person who shot Barton. ¶13. O f f i c er Angie Rushing a nd I nvestigator Dennis Buckner of the Gree n v i l l e P o l i c e Departm ent testif

ied as to their investigation in the m atter. O f f icer Rushing interviewed Barton at the hospital and passed her inf orm ation to Investigator Buckner. ¶14. A c c o rding to Buckner, Powell developed as a suspect i n t h e s h o o t i n g b a s e d o n inf orm ation he had r eceived f r om Barton and P am . Investigator Buckner p e r f orm ed a gunshot residue (GSR) kit on Powell and subm itted the kit to the Mississippi Crime Laboratory f

or testing. Jacob Burchf ield , a f o rensic scientist with t hat c rim e laboratory , testif i ed a s an expert i n GSR analy sis. According to Burchf ield, a single particle indicative of GSR was present on Powell’s right palm

. ¶15. At the conc l u s i o n o f the State’s case-in-chief , Powell m o ved f

or a directed verdict, which the trial court denied. Powell then proceeded with his case-in-chief

. ¶16. Powell’s sister, Allison Gilm ore, testif ied t h a t o n t he n ight in question, Powell had showed up at her h ouse between 2:00 and 4:00 a.m . She s aid Powell was d runk and had been beaten u p, and he told her “they tried to kill m e.” She said she called the police to report the incident, a nd when the police responded to her house, they searched the house, im pounded Powell’s girlf

r iend’s car, and l ef

t. O n cross-exam ination, G i l mo r e could n ot rem em ber whose telephone she used to call the police. T here w as n o record of a call m ade to the police

4on her p hone. Gilm ore f urther testif

ied th a t s he did not f

ile a police report or give any
statem ent regarding her claim that Powell was the victim of an attem pted robbery

. ¶17. Tavarus W alker testif ied that h e was outside Club Fountain on the night in question and s aw a group of m en f orcing Powell into a t ruck. W a lker said he did not call the police or report the incident to any one. ¶18. Christopher O’Neal, Powell’s brother, testif i ed t hat he had a conversation with Buck

on April 5, 2015, and Buck stated that “it wasn’t supposed to go down l ike that. They got
to f ighting about som e m oney . . . and [ Powell] had [ taken] the gun f rom Jig. Because f

irst they thought J i g had [ given] the gun to [ Powell] but [ Powell] had [ taken] the gun f rom Jig.” O’Neal testif

ied he did not know Jig’s real nam e. ¶19. Powell testif

ied in his own def

ense. According to P owel l , o n M a y 1 , 2 015, he had between $2,000 and $2,500 in c ash, and he had posted a picture on Facebook showing the

m oney in his lap. On the night of May 3, Powell w as at t he club, and h e h ad about $600 on him , which he pulled out when he went to the bar t o buy drinks. P o w e l l s a i d Barton approached him and asked him to com e outside. Once outside, they saw Pam a n d b egan

w a lking toward him

. As they w alked t oward Pam , Barton punched Powell, knocking h i m
to th e ground. W hile he was on the ground, Powell f elt Barton reaching i nside Powell’s pockets. W hen Powell t r i e d t o g e t u p , Barton hit him again, knocking Powell back to the ground. Powell said they then f orced him into Buck’s vehicle. Inside the vehicle , P am pulled a gun on Powell and asked him where the rest of

Powell’s m o ney was. Powell said the group knew about Powell’s m oney f rom Powell’s Facebook posting.

5¶20. According to Powell, when the Tahoe stopped on Moore Street, Pam told Powell to get out, and Pam got o ut behind Powell, holding a gun on him

. P owell g rabbed the gun f rom Pam , and as they w restled f or control of the gun, the gun discharged. Powell said: “W hen
I grabbed it, I pointed i t towards him where if he shot, he wouldn’t sho[ o]t m e. And I kept it like that til w e got it around. And so I twist i t, and as I ’m w restling with him , I can see the other guy try ing to hop out of the car, and the gun went of f .” Powell said he never gained possession of t he gun. “I didn’t take the gun. It was a struggle. The gun w ent o f f

. I never did possess the gun, period. W hen [ the] gun went of f , I ran.” ¶21. Powell said he hid under a nearby h ouse until he f elt it was saf

e to com e out. Then he walked to his house n earby

. Because he f eared Barton and Pam m ight com e back, Powell and his girlf

riend went to Powell’s sister’s house. Powell said he had “a couple of lum ps or

som ething” on his head, and his ey e was a little swollen, but he w asn’t h u r t t h a t badly

. Powell t o l d h i s s i s t e r he had b een robbed and asked her to call the p olice. Powell said he

never f iled a police r e p o r t b e cause when the p olice arrived at his sister’s house, they im m ediately

arrested him . Powell denied ever of f ering Barton m oney

to drop the charges. ¶22. Af ter the def

ense rested, the State called Of f i cer Malcolm D a v i s o f t h e G reenville Police Departm ent. Davis testif ied that on M a y 3, 2015, h e w as dispatched t o a house located on Belf

ast S treet about an individual involved in a shooting. W hen h e arrived, he apprehended Powell. H e said Po w e l l did not show any phy sical signs that he had been beaten up or otherwise involved in a p hy sical altercation. Davis said he w as not inf orm ed by any one there that a robbery had taken place.

6¶23. The j ury was instructed on the law of aggravated assault a n d f elon in possession of

a f irearm

. T he def

ense requested and was granted a j ury instruction o n the d ef ense of necessity

. ¶24. The j ury f

o und P o w e l l g u i l t y o f a g gravated assault and f e l on in p ossession of

a f irearm

. Powell w as sentenced to ten y ears in the custody of the Mississippi Departm ent of Corrections (MDOC) f

or aggravated a s s a u l t , and t en y ears f o r f elon in possession of a f irearm , t he sentences t o run concurrently

. Powell was sentenced to ten y ears in the custody of the M DOC f

or f irearm e nhancem ent, said sentence t o be served consecu t i v e l y t o the sentences im

posed f or Counts I and II. ¶25. Powell thereaf

ter f iled a m otion f

or judgm e n t n o t w i thstanding the verdict (JNOV),

or, in the alternative, f

or a new trial. The trial court denied the m otion, and t his tim ely appeal f ollowed. DISCUSSION
I. Ineffective Assistance of Counsel ¶26. P o w e l l c l a i m s h i s trial counsel was constitutionally i nef f ective f or ( 1) f a i l i n g t o request a jury instruction on the law of accident, and ( 2) f ailing to object t o the prosecutor’s Doyle 1 violation when cross-exam ining Powell. ¶27. W e decline to address Powell’s inef f ective-assistance-of

-counsel claim (s) on direct appeal. “Ordinarily , inef

f ective-assistance-of

- counse l c l a i m s a

r e m o r e a p p r o p r i a t e l y brought during po s t

- c o n v i ction proceedings.” Archer v. State , 9 86 So. 2d 951, 955 (Miss. 2008).

1 D o yle v. O h i o , 4 2 6 U .S . 6 1 0 , 6 1 8 , 9 6 S . C t . 2 2 4 0 , 2 2 4 5 , 4 9 L . E d . 2 d 9 1 (1 9 7 6 ). 7On direct a

ppeal, this Court “ is lim ited to the trial court record in its review of the claim , and there m ay be instances in w hich insuf f icient evidence exists w ithin the record t o address the claim ade q u a t e ly

. ” Id

. “In s uch a case, the appropriate procedure is to deny relief , p r e s e r v i n g the def

endant’s right to argue the issue through a petition f o r post-conviction

r e l i e f

. ” I

d

. T h i s C o u r t m a y , h o w e v e r , a d d r e s s t h e m e r i t s o f a n inef f ective-assistance-of

-counsel claim

on direct appeal “if

the record af

f irm atively shows inef f ectiveness o f constitutional dim ensions.” Q uinn v. State , 191 So. 3d 1227, 1234 (Miss. 2016). ¶28. Here, Powell’s c laim that a Doyle violation occurred at trial concerns m atters outside the record now bef

o re the Court. Doyle holds that u se of a crim inal def endant’s silence to im p each the def

endant’s exculpatory story , told f or the f irst tim e a t trial, by cross-exam ining the def endant about his or h er f ailure to h ave t old the story a f ter receiving M

i r a n d a 2 warnings a t the tim e of the def endant’s arrest, violates the d ef endant’s right to due process. Doyle , 426 U.S. at 619. ¶29. But, as Powell acknowledges on a ppeal, the record does not show when Powell was read (or invo k e d ) his Miranda rights. This would h ave to be established f or this Court to consider whether a Doyle violation occurred. See McGrone v. State , 807 So. 2d 1 232, 1235 (Miss. 2002) (holding that, in the absence of evidence that M iranda warnings were given, it does not violate d

ue p r o cess of law to perm i t cross-exam ination as to post-arrest silence

2 M ira n d a v. A r izo n a , 3 8 4 U .S

. 4 3 6 , 8 6 S . C t. 1 6 0 2 , 1 6 L . E d . 2 d 6 9 4 (1 9 6 6 ). 8when a crim inal def endant cho o ses to testif

y at trial); see also F

letcher v . Weir , 455 U.S. 603, 607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490 (1982) (sam e). ¶30. Accordingly , we dism iss Powell’s inef f ective-assistance-of

-counsel claim (s) without prejudice to allow Powell to raise the claim (s) in a post-conviction relief (PCR) proceeding, if Powell so chooses.
II. Whether Pow e l l ’s convictions are supported by sufficient evidence, or w hether t h e j ury ’s verdicts are against the w eight of t he evidence. ¶31. Powell contends the S tate f ailed to prove b ey ond a reasonable doubt that Powell w as
not acting in self

-def ense w hen the gun discharged a nd i n j u r e d B arton. Powell subm i ts it

was undisputed t hat Powell and Pam f ought over the g un when the Tahoe s topped and Barton was shot. Powell m aintains that he had $600 on him at the club and had pulled the m oney
out to buy drinks. And the day b ef ore the shooting incident, Powell had posted a picture on Facebook showing m ore than one thousand dollars sitting in his lap. ¶32. Powell a lso points to Buck ’ s t r i a l t e s tim ony i n which Buck was asked on crossexam ination by the def

e nse about Buck a ccusing P am of having given the gun to Powell, and
Pam responding to Buck say ing, “I didn’t g i v e him the gun. He t ook t he gun f rom m e.” Powell subm its this f

urther underm ines the State’s attemp t t o s h o w that Powell had called a f riend and later received the gun f rom him

. ¶33. Powell f

urther contends the evidence was insuf f icient to prove bey ond a reasonable doubt that Powell possessed a f irearm , or if

he did, that he did not do so out of necessity

.

9¶34. Alternatively , Powell subm its the jury ’s verdict a s to bot h c h a r g e s was against the

overwhelm ing weight of

the evidence. ¶35. W h en assess i n g t h e l egal suf f iciency of a conviction, a reviewing court determ ines “whether af

ter viewing the evidence in the light m ost f avorable to the prosecution, any rational trier of f

a ct c ould h ave f

ound the e ssential elem ents of t he crim e b ey ond a r easonable doubt.” Cotton v. S

tate , 144 S o . 3 d 137, 142 (Miss. 2014). This Court will reverse and render a conviction “[ i]f f a cts and inf

erences considered b y the Court p oint in f avor of the def endant on any elem ent of the of f ense with s uf

f icient f orce that reasonable m en could not have f ound bey ond a r easonable doubt that the def endant was guilty .” Edwards v. State , 469 So. 2d 68, 70 (Miss. 1985). ¶36. W h en reviewin g a t r i a l c o u r t ’ s d e n i a l o f a d e f e ndant’s m otion f

or a new trial challenging the weight of t he evidence, we will not disturb the jury ’s g u i l t y v e r d ict unless the record dem onstrates that the verdict is “ so contrar y t o t h e overwhelm ing weight of the evi d e n c e that to allow it to stand would sanction an u nconscionable injustice.” Miller v. State , 980 So. 2d 927, 929 (Miss. 2008). “In determ ining whether a jury verdict is against the overwhelm ing weight of the evidence, this Court m ust a ccept as t rue the e vidence which supports the verdict and w ill r everse only w hen convinced that the c ircuit court has abused its discretion i n f

a i l i n g t o g r ant a new trial.” Id

. (quoting Boone v. State , 973 So. 2d 237, 243 (Miss. 2008)).

1 0¶37. Here, the evi dence shows that Buck, Pam , Brisco, Jones, and Barton each testif ied that Powell got into B uck’s vehicle v oluntarily

. And each testif ied that no one attem

p ted to rob Powell. ¶38. W h ile Powell did testif y that the gun went of

f while he and Pam were tussling f or the
gun, that testim ony w as contradi cted b y Pam ’s testim ony . P am testif ied that w hen the vehicle’s interior light cam e on, he saw Powell holding a gun. Pam grabbed t he gun, and the
two m en struggled o ver i t. A ccording to Pam , Powell “y a n k e d d o w n ” and “f ell out of the truck” with the g un. Powell then stood up and pointed the gun into t he vehicle and said, “I don’t k n o w w h a t y ’all [ expletive] putting down.” Barton then pounded the seat and said, “Man, put the gun down,” at which point Powell f ired the gun, striking Barton. ¶39. As the State points o ut, this was consistent w ith Barton’s t estim o ny . Barton testif ied that at t he tim e of the sho o t i n g , h e was “leaning up on the s eat.” Barton t old t he jury that when he saw the gun, “I was like, ‘ get the gun f rom that m an.’ And by the tim e I hit the back of the seat, that’s when he shot.” ¶40. If b elieved by the jury , this is m o re than suf f icient evidence to prove the charges of aggravated assault and f

e lon in possession of a f

irearm , as charged in Powell’s indictm ent,
to wit: that Powell d id “unlawf ully , willf ully and f eloniously , p urposely , or knowingly cause

or attem pt to cause serious bodily injury to Jam arcus B arton, b y s h o o t i n g h im , thereby

m anif esting e xtrem e indif

f erence to the value of hum an lif e[ ,]” and that Powell “did willf ully , unlawf

ully and f eloniously use or display a f irearm , while being a convicted f elon, at the tim e of

the com m i ssion of

the of f ense of [ a]ggravated [ a]ssault . . . .”

1 1¶41. Nor do we f ind that the evidence preponderates against the verdicts so heavily as to sanction an unconscionable injustice. “The jury is the judge of the weight and credibility of the witnesses’ testim ony , and i t i s f r ee to reject all o r som e of e a ch witness’s t estim ony .” Ragland v. State , 235 So. 3d 1387, 1394 (Miss. 2017). ¶42. On this record, we can say only that the j ury rejected P owell’s version of e vents and accepted a ll, o r at least part, of the State’s v ersion. Accordingly , t his issue is without m erit. CONCLUSION ¶43. The W ashington County Circuit C ourt’s judgm ent of con v i c t i o n s f o r a g g r a v ated assault and f

elon in possession of

a f irearm is af f irm ed. ¶44. AFFIRMED

. WALLER, C.J., RANDOLP H A ND KITCHENS, P.JJ., KING, COLEMAN, MAX W ELL, CHAMBERLIN AND ISHEE, JJ., CONCUR.

1 2