IN THE SUPREME COURT OF MISSISSIPPI

NO. 1998-KA-01033-SCT

BRUCE HILLIARD a/k/a BRUCE M. HILLIARD a/k/a "ROOSTER"

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/01/1998

TRIAL JUDGE: HON. R. I. PRICHARD, III

COURT FROM WHICH APPEALED: LAWRENCE COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: JOSEPH A. FERNALD, JR.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS, JR.

DISTRICT ATTORNEY: RICHARD LAWRENCE DOUGLASS

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: AFFIRMED - 11/18/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 12/09/99

BEFORE PITTMAN, P.J., McRAE AND SMITH, JJ.

McRAE, JUSTICE, FOR THE COURT:

¶1. On November 18, 1996, the Grand Jury for Lawrence County issued an indictment in which it alleged

that Bruce M. Hilliard murdered Clarence ("Beater") L. Johnson in violation of Miss. Code Ann. § 97-3-19

while in the process of robbing Johnson by putting Johnson in fear of immediate injury to or by violence to

his person in violation of Miss. Code Ann. § 97-3-73 (1994). Hilliard was offered, but rejected, a deal to

plead to manslaughter. The prosecution did, however, reduce the charge against Hilliard from capital

murder to murder.

¶2. On May 1, 1998, a jury found Hilliard guilty of murder. The court sentenced Hilliard to life

imprisonment in the custody of the Mississippi Department of Corrections.

¶3. On appeal, Hilliard challenges the sufficiency of the evidence arguing that the verdict of the jury was

against the weight of the evidence, the result of bias, passion and prejudice, and that there was reasonable

doubt as to the defendant's guilt. Finding no reversible error, we affirm.

STATEMENT OF THE FACTS

¶4. This was a circumstantial evidence case in yet another appeal involving a senseless killing and a

nonexistent defense. On the afternoon of September 15, 1996, Calvin Johnson was found in his home dead

from two bullet wounds. The evidence adduced at trial showed that Hilliard was seen by several witnesses

in the company of the Calvin Johnson in the hours prior to the victim's death. On the morning of the 15th,
Hilliard had accompanied Calvin to a convenience store where Calvin purchased a can of motor oil. The

clerk noticed that Calvin Johnson not only paid with a $100 bill but that he had several other $100 bills in

his wallet.

¶5. Jessie Mae Bennett Stovall testified that on the afternoon of Johnson's death, Hilliard asked if he could

leave a gun at her house. She stated that he later told her that he had killed Calvin Johnson. The gun left at

Stovall's house produced bullets similar to those found in Johnson's body but "could not be positively

included or excluded as having been fired in the gun."

¶6. Other witnesses testified that Hilliard was looking for someone to give him a ride to Brookhaven in the

hours after Johnson was killed. One such witness, Willie Grinstead, was accosted by Hilliard around 12:30

p.m. that day. Hilliard was driving Johnson's car and asked Grinstead if Grinstead could drive him to

Brookhaven. Hilliard also told Grinstead that he had several hundred dollars

¶7. At the close of the prosecution's case, defense counsel for Bruce Hillard announced that their client did

not wish to testify despite the fact that he contended the killing was done in self defense.(1) The defense

rested without presenting any witnesses or evidence.

I. THE VERDICT OF THE JURY WAS AGAINST AND CONTRARY TO THE

OVERWHELMING WEIGHT OF EVIDENCE AND THE RESULT OF BIAS, PASSION

AND PREJUDICE.

A. THE JURY VERDICT RESTED ON INSUFFICIENT EVIDENCE OF MR.

HILLIARD'S GUILT.

B. THERE WAS REASONABLE DOUBT OF MR. HILLIARD'S GUILT.

¶8. Hilliard argues there were no eyewitnesses to the crime; nor was there any forensic evidence linking

Hilliard to the gun. In fact, Hilliard contends that the evidence is more incriminating against Ms. Stovall than

against him.

¶9. The State contends that Hilliard's argument is, in essence, an argument that the jury should not have

believed the prosecution's witnesses. "We submit, however, that it is the job of the jury - not counsel, not

the trial court, and not this Court - to judge the credibility of witnesses."

¶10. A motion for a new trial tests the weight of the evidence rather than its sufficiency. Butler v. State,

544 So.2d 816, 819 (Miss.1989). "Only when the verdict is so contrary to the overwhelming weight of the

evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on

appeal." Roberts v. State, 582 So.2d 423, 424 (Miss. 1991). In determining whether a jury verdict is

against the overwhelming weight of the evidence, the Court accepts as true the evidence favorable to the

State. Wetz v. State, 503 So.2d 803, 812 (Miss. 1987). "[W]here there is conflicting testimony, the jury is

the judge of the credibility of the witnesses." Id.; Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979).

¶11. This standard is not as great as that challenging the sufficiency of the evidence. Pharr v. State, 465

So.2d 294, 302 (Miss. 1984); May v. State, 460 So.2d 778, 781 (Miss. 1984). This Court has held that

while the evidence may be sufficient to warrant presentation to a jury it nonetheless may be so inadequate

as to create sufficient doubt regarding the defendant's guilt. Quarles v. State, 199 So.2d 58, 61

(Miss.1967).
¶12. "[D]irect evidence is unnecessary to support a conviction so long as sufficient circumstantial evidence

exists to establish guilt beyond a reasonable doubt." Underwood v. State, 708 So. 2d 18, 35 (Miss. 1998)

(quoting Conner v. State, 632 So. 2d 1239, 1252 (Miss. 1993)).

¶13. In circumstantial evidence cases, the State is required to prove the defendant's guilt not only beyond a

reasonable doubt but to the exclusion of every reasonable hypothesis consistent with innocence. Fisher v.

State, 481 So.2d 203, 212 (Miss.1985). However, circumstantial evidence need not exclude every

"possible doubt" but only every other "reasonable" hypothesis of innocence. Tolbert v. State, 407 So.2d

815, 820 (Miss.1981). Each case must be determined from the circumstances shown in the testimony and

the facts must consistently point to but one conclusion--guilt. Hester v. State, 463 So.2d 1087, 1091

(Miss.1985) (quoting Sanders v. State, 286 So.2d 825, 828 (Miss.1973)).

¶14. An examination of the evidence in this case demonstrates that there was sufficient evidence to support

the jury's verdict. This Court has no choice but to uphold the conviction and sentence. The judgment of the

Lawrence County Circuit Court is affirmed.

¶15. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT, WITH

CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS AFFIRMED.

PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, SMITH,

MILLS, WALLER AND COBB, JJ., CONCUR.

1. Apparently, Hilliard indicated to counsel as well as the psychiatric experts that this was a case of self

defense. The psychiatric evaluations explain that Hilliard had a history of alcohol and drug (cocaine, both

powder and crack) use and was impaired at the time of the offense. Hilliard told Psychologist Mark Leach

that Johnson had "attempted to engage him in a sexual act for money. According to Mr. Hilliard, he refused

to have sex that day, an argument ensued, and [Johnson] moved toward a gun. At that point, Mr. Hilliard

shot [Johnson] from a gun that he had been carrying." Hilliard did not testify and the self defense theory was

never presented to the jury.