IN THE SUPREME COURT OF MISSISSIPPI

NO. 2003-KA-02720-SCT

LATANYA LESHAWN DUBOSE

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 10/17/2003

TRIAL JUDGE: HON. ROBERT P. KREBS

COURT FROM WHICH APPEALED:

ATTORNEY FOR APPELLANT: JACKSON COUNTY CIRCUIT COURT ROSS

PARKER SIMONS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:

JEFFREY A. KLINGFUSS

DISTRICT ATTORNEY:

NATURE OF THE CASE:

DISPOSITION: ANTHONY LAWRENCE

CRIMINAL - FELONY

AFFIRMED - 06/02/2005

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.

EASLEY, JUSTICE, FOR THE COURT:

PROCEDURAL HISTORY

¶1. Latanya Leshawn Dubose was ind icted for the murder of her former boyfriend Leonard

Ray Harris pursuant to Miss. Code Ann. § 97-3-19(1)(a). On August 6-8, 2003, Dubose was

tried by a

jury in the Circuit Court of Jackson County, Mississippi, the Honorable Robert P.

Krebs, presiding, for the crime of murder. Dubose was convicted of manslaughter by the jury

and sentenced to serve a term o f 20 years in the custody of the Mississippi Department of

Corrections, with 13 years to serve, 7 years suspended, and 5 years on post-release2

supervision. The trial court also ordered Dubose to send a letter to the children of Harris

apologizing for her actions. The trial court denied all of Dubose’s post-trial motions. Dubose

appealed to this Court.

FACTS

¶2. Dubose met Harris about six months prior to his death. Dubose had been dating Harris

since January 2002. On July 21, 2002, Dubose told Harris that she no longer wanted to see

him. Harris did not want to end the relationship. He arrived at Dubose’s home in the morning

and want ed to talk about the situation. Dubose told Harris that she did not want to work things

out. Harris then grabbed Dubose by the head and dragged her to the floor. He got on top of

her, put his hand around her neck and repeatedly told her that he would kill her.

¶3. Then, Harris pulled off her underwear, touched her inappropriately and stated that her

private bod y parts belonged to him. She stated that his actions made her feel very bad and

degraded. Dubose pushed Harris off her and went into the living room. Harris pleaded that

they stay together, but Dubose refused again. Harris then slapped Dubose, got on top of her,

began choking her and to ld her a second time that he would kill her. As Dubose was wrestling

with Harris the telephone fell to the ground. A few of the telephone buttons made a noise and

Dubose told Harris “they’re coming, they’re coming.” Harris left the house shortly thereafter.

¶4. Dubose l

eft her house to go to the police station. However, she stopped by Doug

Cherry’s house. Cherry was Harris’s roommate and lived only two houses from Dubose’s

house. Dubose went to the house to tell Doug what had occurred and not to see Harris. At the

time sh e went to Doug’s house, Dubose was carrying a gun so that Harris could not hurt her.3

She told Cherry

to tell Harris that if he ever hurt her again then she was going to kill Harris.

Dubose then left to go to the police station to press charges against Harris.

¶5. Dubose testified to numerous incidents in which Harris beat her and threatened her life.

She had never called the police prior to th is incident because she was afraid that Harris would

beat her.

¶6. On her way to the police station, Dubose was wearing only a t-shirt and a robe. She

stated that she was hysterical. However, as she drove to the station, she saw Harris’s car at a

Chevron station. Dubose parked her car behind Harris’s car. At this point, Harris walked out

of the store. Dubose yelled at Harris to look at what he had done to her face. After a few

exchanges, in wh

ich Dubose exited her vehicle holding a gun, she told Harris that she was on

her way to the police station to press charg es against him. Dubose stated “I seen the look in

his eyes, and I saw his face clinch, like he was going to co me at me and hit me, and I just closed

my eyes and I just shot.” She stated that something had come over her, and she was scared.

¶7. Dubose left the scene to return home. On her way home, Cherry called her on a cell

phone, and she told him that she had sho t Harris. Dubose went to a neighbor’s house, Doris

Rich, and told h

er what had happened. She went back to her house, and Lacricia Gardner,

Dubose’s cousin, called the police in her presence. Two police cars later arrived at the home.

The police arrested Dubose and took her to the station.

¶8. At trial Dr. Paul McGarry, a forensic pathologist, testified that he found that Harris

received a gunshot wound tha t went in the back of the head, about three quarters of an inch to

the right of the midline of the back of the head. The bullet angled upward, hit the inside of his4

skull and ricoch

eted into the front of the head. The bullet then came to a rest at the front of

the brain causing massive damage to the brain and death.

¶9. On appeal, Dubose raises the following issues:

I. Whe ther the verdict was against the weight and credibility of the

evidence.

II. Whet

her Dubose’s jury was properly sworn as required for capital

petit jury.

III. W hether the trial court’s written order in response to the

Mississippi Supreme Court’s inquiry concerning whether the jury

was properly sworn is sufficient to show that the jurors properly

swore an oath for the case.

IV. Whether the trial court erred by admitting S tate’s Exhibit 3, a

photograph of the deceased.

DISCUSSION

I. Weight of the evidence.

¶10. Dubose claims that she was convi cted despite the State’s inability to overcome her

theory of self-defense. Even though the jury was properly instructed, Dubose claims that the

trial court should not have submitted the issue to the jury and, in the alternative, the trial court

abused its discretion by denying her motion for a direct e d verdict, peremptory instruction and

he r motion for acquittal notwithstanding the verdict. She requests that the Court reverse and

render her conviction or grant her a new trial.

¶11. In Wade v. State , 748 So.2d 771, 774 (Miss. 2000), this Court held:

T he issue of justifiable self-defense presents a question of the weig ht and

credibilit y of the evidence rather than sufficiency and is to be decided by the

jury. Meshell v. State

, 506 So.2d 989, 991- 92 (Miss.1987). The jury verdict in

this case should not be over turned unless this Court is "convinced that the

verdict is so contrary to the overwhelming weight of the evidence that to allow5

it to stand would sanction an u nconscionable injustice." G ossett

, 660 So.2d

[1285, 1294 (Miss. 1995).].

The Court in Wade further held “[t]he apprehension or fear that will justify ki lling another in

self-defense must appear obje ctively real to a reasonable person of average prudence.” 748 So.

2d. at 775 (citing Hart v. State , 637 So.2d 1329, 1339 (Miss. 1994)).

¶12. This Court set out the standard for overwhelming weight of the ev idence in D unn v.

State, 891 So. 2d 822, 826 (Miss. 2005). This Court held:

A motion for new trial challenges the weight of the evidence. Sheffield v. State,

749 So.2d 123, 127 (Miss. 1999). A reversal is warranted only if t he trial court

abused its discretion in denying a motion for new trial. Id.

This C ourt held in M

cFee v. State, 511 So.2d 130, 133 (Miss. 1987), that it has

limited authority to interfere with a jury verdict. The Court looks at all the

evidence in the light that is most consistent to the jury verdict. Id.

[I]f there is in the record substantial evidence of such quality and weigh t that,

having in mind the beyond a reasonable doubt burden of proof standard,

reasonable and fair-minded jurors in the exercise of impartial judgement might

have reached different conclusions, the verdict of guilty is thus placed beyond

our authority to disturb.

Id. at 133-34. See also Edwards v. State, 800 So.2d 454, 464-65 (Miss. 2001).

This Court has held that a new trial will not be given unless the verdict is so

contrary to the overwhelming weight of the evidence that an unconscionable

i njustice would occur by allowing the verdict to stand. G roseclose v. State, 44 0

So.2d 297, 300 (Miss. 1983). However, if a jury verdict convicting a defendant

is against the overwhelming weight of the evidence, then the r emedy is to grant

a new trial. Collier v. State, 711 So.2d 458, 461 (Miss. 1998).

¶13. The trial court granted Jury Instruction D-6 concerning self-defense which stated:

The Court instructs the jury that the Defendant having raised the claim of selfdefense, the burden is on the State to prove beyond a reasonable doubt that the

Defendant did not act in necessa ry self-defense, and unless the State meets this

burden of pr oof and proves to you beyond a reasonable doubt that Latanya6

Dubose was not acting

in necessary self-defense, then it is your sworn duty to

find the Defendant not guilty.

In addition, the trial court instructed the jury on two other self-defense instructions, D-6a and

D-7. Jury instruction D-6a stated in part:

...[I]f you believe that und er those circumstances it reasonably appeared to the

Defendant that she had rea sonable grounds to apprehend a design on the part of

Leonard Ray Harris to kill the Defendant or do her some great personal injury,

and that there reasonably appeared to the Defendant to be imminent danger of

such des igns being accomplished, then you may find the Defendant was justified

in anticipating

an attack by Leonard Ray Harris, and in such case you shall find

the Defendant Not Guilty of the crime charges based on Self-Defense.

Jury Instruction D-7 stated:

The Court instructs the jury that to make the kill ing of another person justifiable

on the ground of self-defense, the danger of the defendant must be either: actual,

present and urgent; or the defendant must have reasonable grounds to apprehend

a design on the part of the victim to ki ll him or to do him some great bodily

harm, and in addition to this he must have r easonable grounds to apprehend that

there is imminent danger of such design being accomplished. It is for the jury

to determine that reaso nableness of the ground upon which the defendant acts.

In your inquiry as to whether the Defendant, Latanya Dubose, had reasonable

grounds to apprehend a design on the part of Leonard Harris, to kill her or to do

some great bodily harm, yo ur inquiry is not limited to a consideration of the

Defendant’s actions at the time the shooting occurred.

The issue of guilt was a

jury question. Despite the above jury instructions, the jury still found

Dubose guilty of manslaughter based on the evidence.

¶14. The testimony showed that Harris went to Dubose’s house wanting to make the

relationship work. When Dubose refused, Harris began to beat and threaten Dubose. Harris

left Dubose’s home. Then Dubose went to the home of Harris and Cherry, Harris’s roommate.

Cherry testified that Dubose “came in, and she was waiving a gun, and she said that when you

see your boy, you tell hi

m I’m going to shoot him.” On the way to the police station, Dubose7

saw Harris at a gas station. After a verbal exchange Dubose shot and killed Harris. Dubose

testified that she thought that Harris was going to come after her once she told him that she

was on the way to the police station to report his actions. Wanda Jones, the gas station

attendant, knew Harris and saw him turn his back on Dubose outside. Dubose left her vehicle,

Harr is began to whirl around and then Jones heard a pop. Jones saw Dubose calmly return to

her vehicle and drive away. Following the shooting, patrolman Danny Patrick arrived at the

sce ne and took a picture of Harris’s body. Patrick then went to Dubose’s home with other

officers. He saw a gun in the passenger seat of Dubose’s vehicle. When he knocked on the

door, he requested to see Dubose, who left with the police without incident.

¶15. Even with all the testimony, inclu ding references to alleged past abuse by Harris against

Dubose, the jury found Dubose guilty of manslaughter. We find that the trial court did not

abuse its discreti

on in denying Dubose’s motions and there was enough evidence to overcome

her theory of self-defense. Accordingly, we find that this issue is without merit.

II. and III. Jury properly sworn.

¶16. Issues II and III are combined into one issue for purposes of th is opinion. Dubose next

argues that the jury was not pro perly sworn with the required capital petit jury oath as required

by Mississippi statute and the Mississippi Cons titution. This Court made an inquiry into

whether the jur y was sworn. The trial court’s order was filed June 23, 2004, in response to this

Court’s inquiry. Despite the trial court’s order, Dubose maintains that the order is insufficient

to show that the jury was pr operly and legally sworn with the capital petit jurors oath or any

type of petit jurors oath. Furthermore, Dubose claims that to allow a reconstruction of the8

record from memory which benefits the State and is unfavorable to the defendant violates due

process.

¶17. In Jones v. State

, 798 So.2 d 1241, 1249 (Miss. 2001), this Court set forth the standard

of review when swearing jurors is in issue:

Jones next contends that the trial court failed to properly sw ear in the jury

members, and therefore, the verdict is null and void. This assignment of error

is almost identical to that found in McFarland v. State

, 707 So.2d 166

(Miss.1997) . "[T]he presumption is that the trial judge properly performed his

duties...." Bell v. State

, 360 So.2d 1206, 1215 (Miss.1978). As in M cFarland

,

the verdict and sentencing orders contai n ed language that the jury had been duly

sworn and performed their duties accordingly. In his argument, Jones has failed

to overcome the presumption of propriety. As such, we find this assignment

without merit.

¶18. In Stewart v. State

, 881 So.2d 919, 923-24 (Miss. Ct. Ap p. 2004), the Court of Appeals

held:

Stewart asserts that h is conviction should be reversed because he was tried and

convicted of capital murder by an unsworn jury. Stewart argues that the jurors

in his case should have been sworn according to Mississippi Code Annotated

Section 13-5-71 (Rev.2002), the petit juror oath, and Section 13-5-73

(Rev.2002), the jurors' oath for capital murder cases. A review of the record

does not reveal that an oath was given to the jury; however, the sentenci ng order

states that the jury was duly sworn. In B ell v. State

, 360 So.2d 1206, 1 215

(Miss.1978), the supreme court found no reversible error where the record did

not reflect that the jury was spe c ially sworn. The court held, in such a situation,

there exists a rebuttable presumption that the trial judge properly performed his

duties. Id

. Also, when the judgment states that the jury was properly sworn it is

presumed that the trial judge performed his duties. Wou lard v. State , 832 So.2d

561, 567 (¶ 24) (Miss.Ct.App.2002 ). The failure of the court to specifically

swear the jury in a capital case is waived where no o bjection is made by the

defendant until the verdict is rendered. This issue cannot be raised for the first

time on appeal. M

cMillan v. State , 191 Miss. 59, 61, 2 So.2d 823, 824 (1941)

(citing Hill v. State , 112 Miss. 375, 383, 73 So. 66, 67 (1916)).

Stewart did not object to the issue of the u nsworn jury until his trial was

completed and a verdict was rendered. Therefore, Stewart has procedurally

waived his claim. His claim also fails on the merits b e cause the sentencing order9

clearly states that the jury was duly sworn. Stewart did not present sufficient

evidence to overcome the presumption that the tr ial judge properly performed

his duties.

Stewart , 881 So.2d at 923-24.

¶19. The record reflects that the August 8, 2003, sentencing order from the circuit court

references the fact th

at the jury was duly sworn according to the law. This Court also

remanded to the trial court ordering it to make de termination of whether Dubose’s jury had

been sworn. In response, the trial court entered an order dated June 23, 2004. The trial court

order confirmed that

the jury was sworn and stated in part “the jury panels in the Dubose case

were pro perly sworn and the sentencing order of August 11, 2003, although a form order,

accura tely reflects that the jury panels were properly sworn.” Following the submittal of the

trial court’s order to this Court, counsel for Dubose filed a motion to strike the trial court

order of June 23, 2004, and to remand for an evidentiary hearing on the jury swearing issue.

This Court denied Dubose’s motion. In addition, the record reflects a number of instances in

which either the attorneys or the trial court acknowledged that the jury had been sworn.

¶20. We find that Dubose has not over come the presumption that the trial court properly

performed its duty to have the jury sworn. Accordingly, we find that this issue is without merit.

IV. Victim photograph.

¶21. Dubose argues that State Exhibit-3, a photograph depicting t he gunshot wound to the

back of Harris’s hea d, was not relevant pursuant to M.R.E. 401 because there was no dispute

as to Harris’s death nor that Dubose shot him. Even if the photograph is deemed relevant by

this Court, Dubose contends that pursuant to M.R.E. 403 the probative value is outweighed by

the prejudicial effect.10

¶22. The argument in Randolph v. State

, 852 So.2d 5 47, 566 (Miss. 2002), is similar to

Dubose’s claim that there was no dispute as to the identity of the victim. Nevertheless, this

Court upheld the adm

ission of the photograph in R andolph

. This Court set out the standard

of review for admission of pictures of a gruesome crime scene in Randolph :

This Court held that the admissibi l ity of pictures of gruesome crime

scenes is within the sound discretion of the tr ial court. C

hatman v. State

, 761

S o .2d 851, 854 (Miss.2000). Reversal of the trial court will occur only where

there is a clea

r abuse of discretion. I

d .; Davis v. State

, 551 So.2d [169, 173

(Miss. 1989)]. "The discretion of the trial judge 'runs toward almost unlimited

admissibility regardless of the gruesomeness, repetitiveness, and the

extenuation of probative value.' " Spann v. State, 771 So.2d 883, 895

(Miss.2000)(quoting Williams v. State

, 544 So.2d 782, 785 (Miss.1987 )).

Photographs are considered to have evidentiary value in the following instances:

1. "aid in describing the circumstances of the killing;

2. describe the location of the body and cause of death;

3. supplement or clarify witness testimony."

Spann v. State

, 771 So.2d at 895 (quoting Westbroo k v. State , 658 So.2d

847(Miss.1995)).

In Davis v. State

, 551 So.2d at 173, this Court held that "phot ographs of the

victim should not ordinarily be admitted into evidence where the killing is not

contradicted or denied, and the corpus delicti and the id entity of the deceased

have been establis hed." However, this Court stated that photographs of bodies

may be a dmitted into evidence if they have probative value, are not too gruesome

and are not used i

n an overly prejudicial or inflammatory way in a criminal case.

Id

. In Davis, this Court recognized that the defendant kil led the victim and as

such there was no need to establish the identity of the kil ler or victim. Id

. The

Court did find

that the photographs had probative value and were properly

admitted into evidence. Id

.

Randolph , 852 So.2d at 566.

¶23. Here, the trial

court admitted the photograph after an on-the-record discussion with

counsel. The photograph depicted the bullet wound Harris received in the back of his head.

Patrolman Patrick testified that the photograph was taken by him at the scene of the crime. The11

officer testif

ied that the photograph depicted a close-up of Harris’s head and represented his

body as Patrolman Patrick found the victim lying on th e ground at the scene. In addition, the

pho tograph was probative of Harris’s means of death. The pathologist, Dr. McGarry, testified

and used the photograph to explain to the jury the trajectory of the bullet and how Harris died

of the bullet wound. Also, as the State argued at trial, the fact that Harris was shot in the back

of his head has relevance to Dubose’s claim th at she acted in self-defense. Clearly, the

photograph had probative value and was not unfairly prejudicial. The photograph showed the

position and location of the body at the time of death and assisted the jury in understanding the

cause of death. Accordingly, this issue is without merit.

CONCLUSION

¶24. We affirm the judgment of the Circuit Court of Jackson County, Mississippi.

¶25. CONVICTION OF MANSLAUGHTER AND SEN TENCE OF TWENTY (20)

YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT

OF CORRECTIONS, WITH THIRTEEN (13) YEARS TO SERVE, SEVEN (7) YEARS

SUSPENDED AND FIVE (5) YEARS ON POST RELEASE SUPERVISION, AFFIRMED.

SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON

AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.