IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00594-COA FRED HILL, III APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/17/2016 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: LINCOLN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: M.A. BASS JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN DISTRICT ATTORNEY: DEE BATES NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/12/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE AND FAIR, JJ. LEE, C.J., FOR THE COURT:

PROCEDURAL HISTORY ¶1. A j ury in the L incoln County Circuit Court convicted Fred H ill of f irst-degree m

urder, shooting into a dwelling, and f el o n i n p o s s ession o f a f

irearm

. Hill was sentenced to lif e im p risonm ent f

or the m urder conviction, and f

ive y e a rs each f

or t he other two convictions. All three sentences were ordered to be served c onsecutively i n the custody of the Mississippi Departm ent of Corrections, a nd H ill was o rdered t o p ay an $8,000 f ine and $6,000 restitution

to the Crim e Victim s’ Com pensation Fund. Hill’s posttrial m otions were denied, and he now appeals, asserting the f

ollowing issues: ( 1) the e v idence was legally insuf f icient; (2) the juryverdict is against the overwhelm i ng weight of the evidence; and (3) t he t rial c ourt erred in

deny ing his two m otions to suppress. FACTS ¶2. O n A p r i l 1 , 2 0 1 5 , a round 11:30 p.m ., Hill drove up t o Ezzard a nd Gwendo l y n Cam pbell’s trailer located on S pur Road in Lincoln County

. According to both Ezzard and Gwendoly

n, a car horn woke them up and, u pon looking outside, t h e y s aw Hill standing beside the car holding a rif le. Both Ezzard and Gwendoly n testif ied that Hill a sked where Tim othy Green w a s , t h e n s a id, “I’m going to kill him .” Green is E zzard’s son and Gwendoly

n’s stepson. H ill t hen got back in the car and drove hom e, which was approxim a tely 400 y ards f rom the Cam

p bells’ hom e. E zzard testif ied that he f

ollowed Hill hom e to determ ine why Hill w as angry with Green. Ezzard said Hill told him that Green was try ing to s teal Hill’s g i r l f riend, Keirra Magee. 1 Ezzard then returned hom e. Ezzard heard Hill return som e tim e later. Both E zzard and Gwendoly n saw Hill run between their trailer and their daughter’s trailer next door. They then heard t wo gunshots and s aw Hill run back

to h is car carry ing a rif

le. Green’s body w as discovered in the area between the Cam pbells’ trailer and their daughter’s trailer. ¶3. Green had two bullet wounds; one entered the u pper- l e f t c h e s t area, a nd the other entered the back of his lef t shoulder. Dr. Lisa Fuente, f rom the state me d i c a l e x a miner’s of f ice, p erf orm ed an autopsy on Green and noted t hat either bullet wound c o uld have resulted in Green’s death.

1 B y th e tim e o f

H ill’s trial, h e an d M ag ee w ere m arried

.

2¶4. One of the Cam pbells’ neighb o r s , J e s s i c a M a t l o c k , h a d a lso s een Hill at the Cam pbells’ trailer that n ight. Matlock, watching f r om a window in her t railer, s aw Hill drive up and exit the car. She saw him carry ing a gun and a f

lashlight. Hill then walked toward the Cam pbells’ t railer. Matlock testif ied that she heard two gunshots, t hen saw Hill running back toward the car. ¶5. Several m em

bers of the Lincoln County Sherif f ’s Departm ent responded to the scene, including Deputy Patrick Hardy , Chief Deputy Johnny Hall, Investigator Dam ian Gatlin, and Investigator By

ron C atchings. Two .223-caliber shell casings were recovered f rom the area

near Green’s b ody , and a .223-caliber bullet was recovered f rom a bullet hole in the side of the Cam pbells’ trailer. Af

t er Hill becam e a suspect and his house was searched, the police f o und several .223-caliber shell casings in his house a nd in the y ard. H owever, la b t e s t s could n ot determ ine if all of t he .223-caliber shell c asings r ecovered f rom both Hill’s house and the crim e scene had been f ired f rom t he s am e gun. The m

urder weapon was never f ound. ¶6. H i l l was f

i rst interviewed by Deputy Hall and Investigator Gatlin, and h e d e n i e d i n v o l v em e nt i n Green’s death. Deputy Hall testif i ed that af

ter he had walked H il l t o t h e booking area, Hill conf

essed to the crim e, but r e c a n t ed a f ew m inutes later. Hill was also interviewed by Investigator Catchings. Investigator Catchings, who recorded the interview with Hill, testif

ied that he was try ing to determ ine if Magee was involved in Green’s m urder. Investigator Catchings stated t hat Hill said he shot Green, but Magee was not involved and

was not with H ill when he disposed of the g un. I nvestigator C a t c h ings then spoke with Magee, a nd she told him where Hill disp o s e d of the gun. Hill also told Investigator

3Catchings where h e threw away the gun. Investigator Catchings, another deputy , and Magee

then went to search f

o r the gun, but it was never recovered. ¶7. A gunshot-residue t est was conducted on sam ples taken f

rom Hill’s hands a nd the car he was d r i v ing, which belonged to Magee. Particles indicative of g unshot residue were f ound o n the car’s steering wheel and door handle, but no gunshot residue w as f ound on Hill’s hands. ¶8. Hill adm itted that he drove to the Cam p bells’ house that night and honked the horn, but did not exit the car or threaten to kill Green. Hill denied involvem e nt in Green’s death. Hill testif ied t hat h e a nd Magee had gone to her m other’s house to avoid Green. According

to Hill, Green had tried to break into their house w hile Magee a nd their children were hom e. Hill also testif

ied that while he was in custody , the deputies threatened to arrest Magee f or Green’s m

urder. They also handcuf f ed Magee and led h e r p a s t H ill while h e was in a holding area in order to provoke him into conf essing to Green’s m

urder. ¶9. According to Deputy Hall, Magee was in the booking area when Hill w as in a holding cell nearby

. B u t Deputy Hall testif ied that Magee had not been arrested and w as not in handcuf f s. DISCUSSION I. Insufficient Evidence ¶10. In h is f

i rst issue, Hill argues that the evidence was legally insuf f icient; t hus, the trial

court erred in deny ing h i s m otion f or a d irected verdict, h i s r e q uest f or a perem

ptory instruction, and his m otion f or a judgm ent notwithstanding the verdict (JNOV).

4¶11. “The standard of review f or a denial of a directed verdict, perem p tory instruction, and

a JNOV are i d e n t i c al.” Hawthorne v. State , 8 35 So. 2 d 14, 21 (¶31) (Miss. 2003). All challenge the l egal suf

f i ciency of t he evidence. McClain v. State , 625 So. 2d 774, 778 (Miss. 1993). “[ T]he relevant q u e s t i o n is whether, af ter viewing the evidence in the light m ost f avorable to the p r osecution, any rational trier of f act c ould have f

o und the essential elem ents of t h e c r i me bey ond a r easonable doubt.” Bush v. State , 895 So. 2d 836, 8 43 (¶16) (Miss. 2005). “W e review a challenge to the suf f iciency of the evidence on the last occasion that the trial court ruled on the suf f iciency of the evidence.” Henley v. State , 136 So. 3d 413, 416 (¶8) (Miss. 2015). In this case, the last occasion on whi c h t h e t r i a l court ruled on the suf f i ciency of the evidence was in its denial of Hill’s m otion f

or a JNOV. ¶12. Mississippi Code Annotated section 97-3-19(1)(a) ( Supp. 2016) def ines f irst-degree

m urder as “[ t]he killing of a hum an being without the authority o f law by any m eans or in any

m anner . . . when done with deliberate design to ef f ect the death of

the person killed, or of
any hum an being[ .]” The State m ust p rove bey ond a reasonable doubt that: “(1) the def endant k i l l e d t h e v ictim ; (2) without authority of l aw; and ( 3) with deliberate design to ef f ect his death.” Brown v. State , 965 S o . 2d 1023, 1030 (¶27) (Miss. 2007) ( quotations

om itted). Mississippi C ode Annotated section 97-37-29 (Rev. 2014) states: “If any person shall willf ully and unlawf

ully shoot or discharge any . . . f irearm of any nature or description into a ny dwelling house or any other building usually occupied b y p ersons, whether actually occupied or not, he shall be guilty of a f elony whether or not any

body be injured . . . .” ¶13. Hill claim s that insuf f i cient lighting in the ar e a c r e a t e d r e asonable d oubt as to the

5shooter’s identity

. However, there was tes t i m o n y fr o m E z z ard, Gwendoly n, and Matlock that

even though it w as dark outside, s e veral outdoor l ights illum inated the a rea. Although no one

saw Hill s h oot Green, these three w itnesses saw Hill carry ing a gun to the area where Green’s body was f

ound, h eard two shots, and then saw Hill f lee the area. Furtherm ore, both Ezzard and Gwendoly

n testif ied that Hill told t hem he was looking f o r Green and wanted to kill him

. Gw e n d o l y

n also h eard a “ ding” that she thought w as a bullet hitting their trailer. And a bullet was rem oved f

rom a bullet hole in the side of the Cam pbells’ trailer. ¶14. Hill claim s that the Cam pbells’ testim ony was b iased due to their f am ilial relationship with Green. However, the jury determ ines the credibility of witnesses a nd resolves conf licts in the evidence. D avis v. State , 866 So. 2d 1107, 1112 (¶17) (Miss. Ct. App. 2003). Here, the jury f ound t he Cam

pbells’ testimo n y m ore c redible. Viewing the evidence in the light

m ost f avorable to the S tate, a rational juror c ould have f ound bey ond a reasonable doubt that Hill was guilty

of m urder and shooting into a dwelling. 2 This issue is without m erit. II. Overw helm ing Weight of the Evidence ¶15. A m otion f

or a new trial challenges the weight of the e v idence. Hawthorne , 835 So. 2d at 21 (¶31). W hen reviewing a denial of a mo t i o n f o r a new t rial, this C ourt “will only disturb a verdict w hen it is so contrary to t he overwhelm ing w eight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush , 895 So. 2d a t 8 44 (¶18) (citation om itted). Hill’s a rgum ents a re identica l to those expressed in the previous issue. From the evidence previo u s l y d escribed, we cannot f ind that allowing the v erdict to stand

2 H ill’s arg u m en t d o es n o t ad d ress h is co n v ictio n f o r p o ssessio n o f

a f i rearm . 6would sanction an unconscionable injustice. This issue is without m erit.

III. Motions to Suppress ¶16. Hill argues t hat t he trial court erred in d eny ing his m otion to suppress statem ents he

m ade to the p olice and h is m otion to suppress evidence obtained f rom t he search of Magee’s

car. “This Court will reverse a trial court’s denial of a m otion to suppress o nly if the ruling is m anif est error or contrary to the overwhelm i ng w eight of evidence.” Barnes v. State , 158 So. 3d 1127, 1134 (¶22) (Miss. 2015) (em phasis om i tted). A. Statem ents to Police ¶17. H i l l claim s that any incrim inating statem ents he m ade to the police w e r e c o e r c e d because the police threatened t o arrest Magee. During the suppression h earing, Deputy Hall testif i ed that at the f

orm al interview Hill denied shooting G reen. But w hile Hill w as being booked into the j ail, Hill said M atlock (the Cam pbells’ neighbor) lured G r e e n f r om the woods and he then s hot Green twice. Deputy Hall stated that he asked Hill where he disposed of the gun, and Hill responded by deny ing involvem ent. On c r o s s-exam ination, Deputy H all was asked whether he inf or me d H i l l that Magee would be arrested unless he cooperated. Deputy Hall responded that he told Hill that Magee could i n f act be arrested, but

n o t t o c o e rce H ill into conf essing. Deputy Hall stated that Magee was being questioned about her role in Green’s m urder, but it was determ ined that s he was n ot a suspect. Deputy Hall d enied handcuf

f ing Magee and m arching h er in f ront of Hill and stated tha t s h e was never in the sam e area of the police station as Hill. ¶18. Investigator Catchings testif ied he had inf

orm ation at the tim e i ndicating that Magee

7was in the car with Hill im m ediately af ter the shooting; thus, it was possible that Magee was involved in Green’s m

urder. Investigator Catchings f urther stated that Hill’s incrim inating

statem ents to him were voluntary and no threats or prom ises were m ade to coerce him into conf essing. ¶19. Magee testif

ied t hat she w as handcuf

f ed and walked past Hill. O nce H ill s aw Magee, she heard him say , “ no, no, y ou [ are] not going to jail.” M agee f urther denied knowledge of the gun’s location. ¶20. In deny ing Hill’s m otion to suppress, the trial court stated,
I have no d oubt t hat it was param ount in [ Hill’s] m ind that [ Magee]

. . . not be charged with any

t hing. And there i s som e evidence that t hreats were m ade against [ Magee]

. . . that she m ay be charged with a crim e. H o wever, I haven’t heard any evidence that those threats were m ade objectively

. I think that the threats perceived by [ Hill] were j ust that, p erceived by him

. I f ind that [ Hill] was properly M irandized, t hat he waived his M iranda 3 rights, and

. . . whatever statem ent he g a ve, the Court f i nds w as f

r e e l y , voluntarily given, without coercions o r t hreats or under d uress. A nd that those s tatem ents will be adm issible at a trial of

this m atter. ¶21. The Mississippi Suprem e Court has held that “ [ t ]hreats to arrest a def endant’s f am ily

m em ber(s) d o not render a conf ession i nvoluntary so long as probable cause exists to arrest such persons.” Armstead v. State , 978 So. 2d 642, 648 (¶26) (Miss. 2008). At t he tim e Hill

was interviewed, t he police had inf orm ation t hat the car used in the crim e was registered to Magee, and Magee m ight have been in t he car with Hill im m ediately af ter the shooting. W e f ind that the t rial court did not m anif estly e rr b y holding, f

rom the totality of the circum stances, that any statem e nts regarding M agee did not induce Hill’s i ncrim inatory

3 M ira n d a v. A rizo n a , 3 8 4 U

. S . 4 3 6 (1 9 6 6 ). 8statem ents. B. Search of Magee’s Car

¶22. Hill argues that the p o lice needed to p roduce the c onsent-to-search f orm or s how that exigent circum stances existed to search Magee’s car. Although M agee d id not testif y regarding the c onsent-to-search i ssue, a stipulation was entered stating she would testif y that she did not consent to the search. ¶23. Consent to search is recognized as an e xception to the requirem ents of a w arrant and probable cause. Moore v. S tate , 933 So. 2 d 910, 916 (¶18) (Miss. 2006). “ W h ether a person

v o l u n tarily consents t o a search is a question of f act to be determ ined b y t h e t o t a l circum stances.” Id. at ( ¶20) (internal quotation m arks and citation om itted). “The proponent of a m otion to suppress has the burden of establishing that his own Fourth Am e ndm ent rights

were violated by the challenged search o r seizure.” Rakas v. Illinois , 4 39 U.S. 128, 132 n.1 (1978); s ee also W

hite v. State , 571 So. 2d 956, 958-59 (Miss. 1990). ¶24. The State argues that Hill does not have standing to object since he did not own the

car. See W

alker v. State , 9 6 2 So. 2d 39, 41 (¶7) (Miss. Ct. App. 2006) (a passenger who does

not own the car being searched cannot com plain about the legality of t he search); Head v. State , 246 Miss. 203, 207, 1 3 6 S o . 2 d 619, 621 (1962) (“Since the def endants were not in possession of the autom obile, either in the control or ownership of the car, they have no right

to raise the constitutional question of [ the] search.”). However, i n Powell v
. State , 824 So. 2d 66 1 , 6 6 4

- 6 5 ( ¶15) ( Miss. Ct. A pp. 2002), this Court f o und that a def

endant did have a reasonable expectation of privacy in his girlf riend’s car; thus, the def

endant had s tanding to

9challenge the search of the car. There w as e vidence t hat: the car was the def endant’s principal an d usual m ode o f t ransportation; the def endant had the im

plicit right t o exclude others f rom using the car; and the def e ndant had a possessory

interest in the car. Id

. ¶25. Although the trial court determ ined that Hill d id have s tanding t o object to the legality of the search, we note that, unlike Powell , Hill did not of f e r any testim ony showing that he had a possessory interest in Magee’s car or that the car was his principal and usual m ode of transportation. Even if Hill had standing, t he trial court f ound that, based on the t otality of the circum stances, the t estim ony of Investigator Catchings and Deputy W hitaker that Magee consented to the search was credible. Investigator Catchings testif ied that Magee told h im that Hill was driving her car the night of April 1, 2015. Investigator Catchings then asked Magee f or perm ission to search her car , w hich M agee had driven to the police station. Magee consented and the g unshot-residue test was conducted on sam ples taken f

rom the car. Investigator Catchings adm itted that the consent-to-search f orm had been m isplaced, but that Magee had verbally consented to the searc h

. Another sherif f ’s deputy , John W hitaker, testif i ed that he was present when Magee verbally consented to the search a n d s igned the f orm . From the totality of t h e circum stances, we f ind the trial court did not err in deny ing Hill’s m otion to suppress. ¶26. AFFIRMED. IRVING AND GRIFF I S , P . J J . , B A R N E S , I S H E E , C A R

L T O N , F A I R , WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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