IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00053-COA DANNY WILSON A/K/A DANNY MARTEZ WILSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/16/2015 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CYNTHIA ANN STEW ART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: ALEXANDER C. MARTIN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/13/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. BARNES, J., FOR THE COURT: ¶1. D a n n y Wi lson was convicted of f irst-degree m

u rder and sentenced t o l i f e i n t h e custody of the Mississippi D epartm ent of Corrections (MDOC). He f iled a m o tion f

or a new trial, claim ing newly discovered evidence shows he acted i n self

- def ense. Following the trial court’s denial of

his m otion, W ilson appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On Decem

ber 27, 2014, W ilson s h o t a n d mu r d ered R oviel May s in Port Gibson, Mississippi. H e was indicted f or f irst-degree m

urder, and a jury trial w as h eld on Septem ber 15, 2015, in Claiborne C ounty Circuit Court. A t trial, three e y e witnesses testif ied to sim ilarversions of what occurred th a t e v e n i n g. C ly de Johnson said that he, May s, and Jerem y

Bailey h ad gone to W est S ide Theater, a nightclub, and stay ed t here u ntil approxim ately 2:00

a.m . The three m en, along w ith J akarla Young and another f em ale, got into Johnson’s car and proceeded to the hom e of Marquis and Natasha Shaw. W ilson, d riving a white car, cam e up behind Johnson’s car and passed him at a l ight. W hen Johnson and the others arrived at the Shaws’ h om e, W ilson w as there, sitting in his car. According to Johnson, May s got out, walked toward the hom e, but “all of a sudden, h e turned a r o u n d and looked like h[ e] and Danny W i lson [ were] talking, and

. . . the interior light [ o f t he car] cam e on, a nd then Danny shot. W hen he s h ot, he lef t.” Af ter May s wa s s h o t, Marquis “ s hot t oward Danny ’s car a

c ouple of tim es.” On cross-exam ination, def e nse counsel asked J ohnson i f May s wa s carry ing a gun. He replied: “I k now f or sure he didn’t have no gun in m y car. . . . I didn’t search him , but I know he didn’t have no gun. . . . Didn’t nobody have no gun.” ¶3. Young testif

ied she accepted a ride f

r om Johnson to the Shaws’ hom e that evening, and she observed that W ilson “popped up at a l ight” next to them and that he passed them

. W h en she and the others reached the hom e , W ilson was there. Af ter May s walked over to
W i lson’s car, Young heard a shot and saw May s f all to the ground. She also corroborated Johnson’s testim ony that Marquis cam e out of the house at that point and began shooting at W i lson’s car. ¶4. N a t a s ha S haw testif ied t hat she was hom e that evening a t approxim ately 2 : 4 5 a . m. when she heard a “loud noise.” W hen she went o utside t o i nvestigate, she s aw W ilson pull

2up in a white car. S hortly thereaf ter, Joh n s o n “ p u l led up,” and May s got out of Johnson’s

car and started walking toward the house. But af t er May s got t o h er driveway , he stopped and walked over t o W i lson’s car. May s “leaned into the c a r ” ; s o N a t a sha thought the two

m en were just talking. T hen she heard the gunshot and saw May s f all “ back on the ground.” ¶5. The f

orensic pathologist testif

ied that May s died f

rom a gunshot wound to his head, specif ically his right ey e, and the range of the s h ot was f rom “around three inches out to three f eet.” A f irearm s expert with the Mississippi Fo r e n s ic Science Laboratory s tated that the projectile retrieved f

rom May s ’s body “b[ ore] dif f erent characteristics than any of the others that [ s he] was able to classif y ” a nd that “it c ould not h ave been f ired f r om the sam e gun” as the other projectiles that were f ound. ¶6. Af ter the State rested, the d ef ense m oved f

o r a directed verdict, which the trial judge denied. Def

ense counsel then called two witnesses who w ere a t the W est Side Theater that evening. Kordell Bates s aid he saw Johnson, May s, a nd Bailey a t t h e c l u b with guns. On

cross, he acknowledged that the three m en had been “tal k i n g t r a s h” to W ilson that night.
W h en questioned whether May s had com m itted a ny p rior v iolence against W ilson, another witness, Lee Hedrick, responded af f irm a tively : “Yes, m a’am

. . . he cam e to P attison several tim es shooting up . . . I done seen him do it m y self plenty of tim es. [ W ilson is] the one that talk[ ed] about leav[ ing] i t alone[ .]” He a lso c l aim ed the o ther m en were carry ing weapons
at the nightclu b , b u t h e a dm itted that h e n ever saw W ilson at the W est Side Theater that night. He also said that he w as not at the S haws’ h om e a nd was not a witness to the shooting.

3¶7. W i lson was convicted of f i rst-degree m

urder and sentenced to lif e i n the custody

of the MDOC. In his m o t ion f o r a new trial, W ilson asserted num erous assignm ents of error, including that there was new evidence in the case. H e attached an af f idavit f rom Young that stated May s had a gun in his p ants when he walked up to W ilson, and May s hit W ilson “on the s ide of his head.” A hearing was held on Novem ber 24, 2015. Young testif i ed that af ter the trial, she approached def ense counsel to say that she had n ot given a com plete account of what had happened a t the shooti n g . She claim ed that when May s approached W ilson’s

car, “ he had his h ands in h i s pants as if he had a gun.” She said: “You just know how y oung boy s[ ,] when t hey ’re ready to pull out and shoot, so he walked to the car and h e hit [ W ilson], and that’s when the

. . . gunshot w as f ired f rom Danny W ilson’s car.” S he averred that May s used the gun to hit W ilson. W i lson’s grandm other, Theresa W i lson, testif ied that May s had threatened W i l son’s lif

e on several occasions prior to the shooting. T he def ense prof f ered

an af f idavit f rom W ilson’s girlf

r iend, which sim

ply s tated the two w ere in a relationship, and

a statem ent by Jason Curtis that said he had seen May s carry i ng a weapon “ a t all t im es that he had run into him .” ¶8. The trial court denied W ilson’s m otion, and he now appeals. DISCUSSION ¶9. W i lson a r g u e s t h a t t h e trial court should have granted him a new t rial based on the newly d i s c o v ered evidence, specif ically Young’s testim ony that May s was carry ing a

4weapon, and t his e vidence established a basis to show that he s hot May s in self -def ense. 1 A trial court’s decision to grant or deny a new t r i a l b a s e d on n ewly discovered evidence is discretionary , “and w e will n o t reverse a trial court’s f inding unless [ it] abused that discretion.” W

itherspoon v. S

t ate , 767 So. 2d 1065, 1067 (¶7) (Miss. C t. App. 2 000) (citing
W illiams v. State , 669 So. 2d 44, 55 (Miss. 1996)). A m ovant seeking a n ew trial based on newly discovered evidence m

ust show: (1) the new e vidence was di s c o v e red af ter the trial; (2) it could not b y due diligence have been discovered prior to trial; (3) it i s m aterial to the issue and not m erely cum

ulative or im

peaching; and (4) the new evidence w ill probably produce a dif

f e rent result or verdict in the new trial.
Van Norman v. State , 114 So. 3d 799, 80 1 (¶11) (Miss. C t. App. 2013). “Relief m ust be denied if the m ovant f

ails to m eet any

one of these f our elem ents.” Id

. ¶10. W e f

ind t h a t t h e e v i d e n ce presented at the h earing was either known prior to trial, “reasonably discoverable” at the t im e o f trial, or “m erely cum ulative.” Regarding the

t e s tim ony of W ilson’s grandm other–that May s had threatened W ilson on prior occasion s

– def ense counsel stipulated at the hearing that she “was a ware of all this prior to the trial” and “it was [ counsel’s] decision not to call her” as a witness. Counsel explained that she elected

1 Wh ile th ere is also d iscu ssio n in Wilso n ’s rep l y b ri e f ab o u t th e ad m issib ility o f a v ictim ’s p ro p en sity f

o r v io len ce, n o th in g in th e r eco rd in d icates t h is w as ev er an issu e at trial. In f act, th e co u rt allo w ed th e d ef en se to p resen t testim o n y as to M a y s ’s p rio r acts o f v io len ce th ro u g h H ed rick ’s testim o n y . A n d th e testim o n y b y Wilso n ’s g ran d m o th er at th e p o sttrial h earin g reg ard in g p ast in cid en ts in v o lv in g M ay s an d Wilso n w as n o t c h allen g ed b y th e S tate. A s Wilso n h as n o t m ad e an y c laim o f e rro r o n th is issu e, an d seem s to in clu d e it m e rely to su p p o rt h is claim

o f self -d ef en se, w e co n sid er it o n l y

in th at co n tex t. 5not to present such evidence at trial b ecause she was worried it would “ s t r engthened the

State’s m otive f

or m y client having shot Mr. May s .” As to the af f i davits/statem ents by the other two witnesses, Curtis and R obinson, those wer e “m erely cum u lative” of evidence presented at trial and would not have changed the result. ¶11. W e f

u rther f ind Young’s testim o ny t hat May s possessed a g un , b y d u e diligence, could have be en discovered prior to trial. Y oung argued at the hearing that the S tate did not ask her the right question at trial to elicit her testim ony that May s had a gun. [ STATE]: And I gave y ou a chance to tell what happened, didn’t I? [ YOUNG]: Yes, sir. [ STATE]: And y ou didn’t m e ntion what y o u’re say ing today , did y ou? [ YOUNG]: I did, but it was in a d if f erent p hrase, so b a s i c a l ly , y eah, I did, b u t what I’m telling y ou now is how the story happene d f r o m the b eginning.

. . . You didn’t ask the question that [ def ense] just asked m e. The extra question she just asked m e w hat happened on t he scene with May s. You didn’t ask m e that. That’s the f irst tim e that’s been asked.

. . . . [ STATE]: So I asked y ou about what happened on t he s cene and y ou didn’t

– y o u had every

opportunity

to tell m e that prior to trial, didn’t y ou? [ YOUNG]: Right, but like she got m ore into detail than y ou. However, the trial transcript shows that during its case-in-chief at trial, the State openly inquired of Young: “ W hen [ May s] got to Danny ’ s car, w h a t h a p p e n e d? ” Young sim ply replied: “Gunshots w ent of f

. ” Young was f

ree to respond to the State’s questioning with her
6com

plete version of the shooting and to convey any details she wished t o the jury

. Yet, she

m ade no m en t i o n o f M a y s’s p ossessing a gun or hitting W ilson with a gun. T here was no testim o ny b y any witness at trial that May s w as carry ing a gun when he went to talk to W i lson at his c ar; def

e nse witnesses only stated that they s aw May s with a gun earlier at the club. W e also note that def ense counsel acknowledged she “did not talk to [ Young] prior to trial.” As the State argues: “Had def ense counsel exercised d u e d i ligence and questioned Young prior to trial, this evidence would have b een d iscovered.” Theref o re, we f i nd no m erit

to W ilson’s contention t h a t Young’s testim o ny could not have been obtained earlier. Furtherm o re, although W ilson argues that Young “testif i ed f alsely at trial,” [ t]he f

act that a witness changes [ her] testim ony a f ter the trial is not alone an adequate ground f or granting

a new t rial.” W

oods v. State , 141 So. 3d 14, 16 (¶10) (Miss. Ct. App. 2014) (quoting Russell v. State, 8 49 So. 2d 95, 107 (¶15) (Miss. 2003)). ¶12. Additionally , w e conclude that Young’s f ailure to provide t his testim ony at trial did

not prevent W i lson f

rom presenting a theory o f self -def ense. D ef ense counsel a rgued at trial that W i lson was a mb u s h e d , gunshots were f i red f rom several directions, and who actually shot May s was u n cle a r . Wi lson presented w itnesses who s aid May s had possessed a gun earlier that evening. A self

- def ense jury instruction also was given. ¶13. Accordingly , we f ind the trial court did n ot a buse its discretion i n deny ing W ilson’s

m otion f or a new trial, and we af

f irm the court’s judgm ent. ¶14. AFFIRMED.

7LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON , F AIR, WILSON,

GREENL E E AND WESTBROOKS, JJ., CONCUR. TINDELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

8