David Jones a/k/a David Bernard Jones v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01747-COA

DAVID JONES A/K/A DAVID BERNARD JONES APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/17/2019
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: THOMAS P. WELCH JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/16/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. A Forrest County Circuit Court jury convicted David Jones of armed robbery. The

trial court sentenced David to twenty-five years in the custody of the Mississippi Department

of Corrections (MDOC), with five years suspended and twenty years to serve, and placed him

on five years of post-release supervision.

¶2. David now appeals his conviction and sentence. On appeal, David asserts the

following assignments of error: (1) the State failed to produce exculpatory evidence prior to

trial; (2) the State made improper statements during closing arguments; (3) the verdict was

against the overwhelming weight of the evidence; and (4) the cumulative errors warrant
reversal. After our review, we find no error. We therefore affirm David’s conviction and

sentence.

FACTS

¶3. On November 21, 2016, David agreed to drive Aaron Jones,1 Virgil Luckett, and

Carlos Sibley to an apartment complex called “The Flats.” Upon arriving at The Flats, three

of the men exited David’s vehicle, wearing bandanas over their faces. They came to Irene

Martin’s apartment and knocked. Believing it was someone bringing her granddaughter’s

seizure medication, Martin opened the door. Martin testified that three men wearing

bandanas over their faces burst in, throwing Martin to the floor. Martin testified that one of

the men held a gun to her head and ordered to her to get on the floor. According to Martin,

the men started kicking her and asking her “where’s the money?” and “where’s the dope?”.

Martin replied that she had neither. The men threatened to kill Martin and her infant

granddaughter, so Martin told them to take what money she had in a drawer. The men took

$250 as well as her prescription medication. Martin and her seventeen-year-old

granddaughter, Delixis Page, and her college-aged daughter, Taliyah Martin, all testified at

trial that they could not identify any of the men because the men had covered their faces with

bandanas.

¶4. Several days after the robbery, Aaron, Sibley, and Luckett were arrested. Thereafter

David turned himself in. David, Aaron, Sibley, and Luckett were indicted for armed robbery

and conspiracy to commit armed robbery. David pleaded not guilty to both charges and was

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Aaron has no relation to David.

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granted a severance to have his case tried separately from Aaron, Luckett, and Sibley. At

trial, the State elected not to pursue the conspiracy count.

¶5. The record reflects that Sibley pleaded guilty for his role in the robbery. As part of

his plea bargain, Sibley agreed to testify against David. At trial, Sibley testified that on

November 21, 2016, he overheard Aaron call David and ask him to drive Aaron, Sibley, and

Luckett to commit a robbery. Sibley stated that David agreed and picked up the three men

in his vehicle. The men instructed David to drive them to a location for the purpose of

robbing a man known as “Big 60.” According to Sibley, David was aware that he was

driving the men to the location for the purposes of committing a robbery. Sibley testified that

David responded that he would participate by driving them “as long as he gets some of the

money.”

¶6. Sibley testified that upon arriving at Big 60’s house, he, Aaron, and Luckett exited the

vehicle while David remained inside. The men knocked on the door. When they realized

that Big 60 was not home, the three men returned to David’s vehicle. According to Sibley,

David asked, “[W]hat’s next, . . . is this over?” The men replied “no,” so David asked,

“[W]here we going?” Aaron instructed David to drive to The Flats. Sibley testified that the

men intended to rob a man known as “Big Joe,” who lived at The Flats.

¶7. Sibley testified that upon arriving at The Flats, he remained in the car, and David,

Aaron, and Luckett exited the vehicle. Sibley stated that he did not know where the men

went after they exited the vehicle. When asked during cross-examination why he stayed in

the car, Sibley testified that the only person he agreed to rob that evening was Big 60. Sibley

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also stated that none of the men were being held at gunpoint or forced to participate in the

robbery.

¶8. Sibley stated that when the men returned to the vehicle, Aaron gave David $12 for gas

money. The men went to the Junior Food Mart, and David exited the vehicle to get gas and

pay for it. Sibley testified that after David got gas, he drove the men home.

¶9. Detective Jeremy Dunaway with the Hattiesburg Police Department testified that his

investigation of the robbery first led him to the other suspects. Detective Dunaway stated

that David later voluntarily turned himself in to the police. Detective Dunaway testified that

David told him that he feared Aaron, so he waited until Aaron and Luckett had been arrested

before coming forward. Detective Dunaway stated that David provided a written statement

to the police. Detective Dunaway read the written statement for the jury.

¶10. In his written statement to police, David admitted he drove Aaron and the others to

The Flats on November 21, 2016. According to the written statement, David said that Aaron

called him and asked David to pick him up, telling David that he would give him gas money.

David agreed. When he arrived to pick up Aaron, David stated that Luckett and Sibley also

entered David’s vehicle. David proceeded to drive where Aaron instructed, first to the house

of a man known as “Big 60” and then to The Flats apartments. David stated that before they

turned into the apartment complex, Aaron showed David his gun. David expressed in his

statement that after Aaron showed him the gun, he was afraid and therefore did everything

Aaron asked.

¶11. Upon arriving at The Flats, Aaron told David to park and wait; David complied.

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David stated that when Aaron returned, he gave David $12. David told Aaron that he wanted

to go home, but according to the statement, Aaron was “still waving the [gun] around.”

David stated that Aaron gave him some gas money, and he stopped at a Junior Food Mart to

get gas. David later dropped the others off and went home.

¶12. Detective Dunaway also interviewed David at the police department. Detective

Dunaway testified that David told him that during the entire incident, he stayed in the vehicle

the whole time and that he was being held at gunpoint against his will. Detective Dunaway

commented that if David “stayed with the vehicle [during the robbery at The Flats], he had

ample opportunity to leave that location.”

¶13. Detective Dunaway also testified that in the course of investigating the robbery, he

collected surveillance video from the Junior Food Mart and spoke to a clerk who was

working the register that evening. According to Detective Dunaway, the clerk stated that

although David entered the Junior Food Mart that evening, at no time did David ask for help

or advise the clerk that he was in trouble.

¶14. At trial, David testified in his own defense. David informed the jury that he did not

know Aaron well, but that for a month before the robbery he would occasionally give Aaron

rides in exchange for money. David testified that on November 21, 2016, Aaron called him,

and David agreed to give him a ride. When David arrived at Aaron’s location, Aaron and

two other men entered his vehicle. Aaron told David that he needed a ride to the other side

of town. David then drove him to a blue house; Aaron got out and came back with a large

gun. David asked him what was going on, and Aaron replied, “Just drive.”

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¶15. David testified that upon seeing the gun, he was scared, and he stated that Aaron

“actually held me at gunpoint the whole time he was in my car.” David drove the men to The

Flats and parked where Aaron instructed. David testified that the men exited his vehicle and

that he remained in the car with the ignition on and waited for them. David testified that

when the men returned to his vehicle, they gave him some money. David admitted that he

accepted the money. When asked, “Where do you think the money came from?” he

responded, “From the place they went to.”

¶16. David testified that later that evening, he drove the men to a gas station. Upon

Aaron’s orders, David exited the vehicle, got gas, and then entered the gas station to pay for

the gas. David testified that he then returned to his vehicle, and Aaron ordered him to return

to the gas station to buy some beer. David returned to the gas station and bought beer. David

testified that he then dropped the men off and returned to his home. David further testified

that while dropping the men off, Aaron threatened David and instructed him not to call the

police.

¶17. David explained that after the robbery, he waited until Aaron and Luckett were

arrested before turning himself in. David testified that he was scared of Aaron, and he

described Aaron and Luckett as violent. David also testified that Aaron knew where David

lived as well as where his mom lived.

¶18. The jury returned a verdict finding David guilty of armed robbery. David filed a

motion for judgment notwithstanding the verdict or, in the alternative, a new trial, in which

he argued the same issues he raises on appeal. The trial court denied David’s motion. David

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now appeals.

DISCUSSION

I. Brady2 Violation

¶19. David argues that the State committed a Brady violation by withholding exculpatory

evidence; namely, that Aaron was indicted for intimidating David by making threats. David

maintains that the witness-tampering indictment against Aaron was material and exculpatory

and that the State’s failure to produce it in discovery violated his due process rights as

established by law.

¶20. In Brady v. Maryland, 373 U.S. 83, 87 (1963), the United States Supreme Court held

“that the suppression by the prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” In Manning v. State, 929 So.

2d 885, 891 (¶15) (Miss. 2006), the Mississippi Supreme Court established a four-part test

to assess whether a Brady violation had occurred, thus mandating a new trial:

The defendant must prove: (a) that the State possessed evidence favorable to
the defendant (including impeachment evidence); (b) that the defendant does
not possess the evidence nor could he obtain it himself with any reasonable
diligence; (c) that the prosecution suppressed the favorable evidence; and (d)
that had the evidence been disclosed to the defense, a reasonable probability
exists that the outcome of the proceedings would have been different.

¶21. The supreme court has emphasized that when examining whether a Brady violation

occurred, “the question is whether there is a ‘reasonable probability’ that the verdict would

have been different but for governmental evidentiary suppression which ‘undermines

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Brady v. Maryland, 373 U.S. 83 (1963).

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confidence in the outcome of the trial.’” Carr v. State, 873 So. 2d 991, 1000 (¶12) (Miss.

2004) (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).

¶22. The record reflects that on February 23, 2018, Aaron was indicted for witness

tampering. The indictment charged that “between November 26, 2016 and December 31,

2016, Aaron did unlawfully . . . attempt by use of a threat directed at [David and Luckett],

who were a witness or who may have been called as a witness in an official proceeding, to

influence the testimony of [David, Luckett, and Sibley] . . . .” During cross-examination at

trial, Detective Dunaway testified that he investigated the threats Aaron had made against

David.

¶23. At trial, David testified that Aaron threatened him during the commission of the

November 21, 2016 robbery and that he was afraid of Aaron. However, the dates listed for

Aaron’s indictment state that the intimidation and threats occurred “between the dates of

November 26, 2016, and December 31, 2016”—after the November 21, 2016 robbery. In

his appellate reply brief, David “concedes that the date range in the indictment was after the

[a]rmed [r]obbery” that occurred on November 21, 2016. We therefore find that the

indictment is immaterial as to whether Aaron threatened David during the commission of the

robbery.

¶24. Furthermore, after our review, we find that David failed to demonstrate that a

reasonable probability exists that the outcome of his trial would have been different if the

State had provided the indictment during discovery. Our supreme court has acknowledged

that “strictly speaking, there is never a real ‘Brady violation’ unless the nondisclosure was

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so serious that there is a reasonable probability that the suppressed evidence would have

produced a different verdict.” Minor v. State, 89 So. 3d 710, 714 (¶11) (Miss. Ct. App. 2012)

(citation omitted). David has not met this burden.

¶25. After our review, we find that David failed to meet his burden of proving that the

State committed a Brady violation. See Manning, 929 So. 2d at 891 (¶15).

II. Prosecutorial Misconduct

¶26. David next argues that he is entitled to a new trial based on comments made by the

State during closing argument. David asserts the State committed prosecutorial misconduct

in its closing arguments by improperly making send-a-message statements and

burden-shifting arguments.

¶27. The record reflects that during the State’s closing argument, David objected to several

comments made by the State:

STATE: . . . He [David] can’t take that defense ’cause he’s not in
danger. Drive off. Help the Martins out.

DEFENSE: Objection, Your Honor. That’s a send-a-message
argument.

THE COURT: Sustained.

STATE: No, if—

THE COURT: The jury will disregard that

STATE: —he lets me finish.

THE COURT: —last comment.

STATE: The defendant had the opportunity to call the police after
he left to care about the victims that he know [sic] just

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got robbed.

The State also asked the jury, “Can a defendant confess, . . . and then say I shouldn’t be held

accountable. ’Cause if that’s so, what’s the Martins gonna do? Can they ever walk in their

apartment and feel safe?”

¶28. David later objected to a different “send a message” remark:

STATE: The terror is not deserved. There has to be some level of
accountability.

[DEFENSE]: Your Honor, again, I’m gonna object. That’s yet another
send-a-message argument.

THE COURT: You’re getting mighty close, Mr. Hood. The jury will
disregard that last remark. Let’s move along.

¶29. The record reflects that David also objected to the State’s comment regarding the

burden of the defense:

STATE: . . . Defense counsel stood up and said he was in fear for
his life. You remember that. I wrote that down on a
sheet of paper. That’s what he said. He was in fear for
his life. Where’s the fear if you stay in the car while the
person gets out? Where’s the fear when you pump your
gas? And when you don’t get all your gas, you pump you
go back in there until you get all your gas. Where’s the
fear when you take this woman’s money? Where’s the
fear when you don’t call police? That’s his words. Have
him prove what fear is.

DEFENSE: Objection, Your Honor. That’s absolutely shifting the
burden.

STATE: He has to put up evidence. Come on.

THE COURT: Let’s move along.

¶30. On appeal, the State correctly asserts that although David’s counsel objected to

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remarks made by counsel in the State’s closing argument, David did not ask for a mistrial or

mention the matter until he raised it in his motion for judgment notwithstanding the verdict.

We recognize that “in order to take advantage of improper argument on the part of a

prosecuting attorney, objection must be interposed at the time the statement is made, and the

point will not be considered on appeal unless motion for a mistrial is timely made.” Logan

v. State, 773 So. 2d 338, 349 (¶45) (Miss. 2000) (quoting Austin v. State, 384 So. 2d 600, 601

(Miss. 1980)). In Keller, the supreme court explained that:

[I]t is the duty of a trial counsel, if he deems opposing counsel overstepping
the wide range of authorized argument, to promptly make objections and insist
upon a ruling by the trial court. The trial judge first determines if the objection
should be sustained or overruled. If the argument is improper, and the
objection is sustained, it is the further duty of trial counsel to move for a
mistrial. The circuit judge is in the best position to weigh the consequences
of the objectionable argument, and unless serious and irreparable damage has
been done, admonish the jury then and there to disregard the improper
comment.

Keller v. State, 138 So. 3d 817, 864 (¶127) (Miss. 2014) (quoting Flowers v. State, 842 So.

2d 531, 550-51 (¶52) (Miss. 2003)).

¶31. The record before us reflects that David’s counsel failed to request a mistrial in

addition to raising his objection to the comments. We therefore must hold that David is

procedurally barred from raising this issue on appeal. See also Smith v. State, 258 So. 3d

292, 307 (¶¶42-44) (Miss. Ct. App. 2018).

III. Weight of the Evidence

¶32. David argues that the jury’s verdict is against the overwhelming weight of the

evidence and that, as a result, the trial court erred in denying his motion for a new trial. In

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support of his argument, David claims that the State “failed to produce a single credible

witness to contradict [his] statement and testimony regarding his being under duress.” David

also argues that Sibley was the only witness for the State who attempted to contradict

David’s trial testimony. David maintains that Sibley’s testimony was not credible.

¶33. We recognize that a defendant may challenge the weight of the evidence in a motion

for a new trial. Woods v. State, 242 So. 3d 47, 59 (¶51) (Miss. 2018). In reviewing a

challenge to the weight of the evidence, the reviewing court must “weigh the evidence in the

light most favorable to the verdict” and “only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Little v. State, 233 So. 3d 288, 292 (¶21) (Miss. 2017).

¶34. The transcript before us reflects that the jury heard conflicting testimony regarding

what happened during the robbery. David testified that he agreed to drive Aaron, Luckett,

and Sibley to The Flats. However, David testified that once they arrived at The Flats, he

stayed inside the car and waited for the men to return.

¶35. The jury also heard Sibley’s testimony that David agreed to drive the men to commit

a robbery. However, Sibley testified that upon arriving at The Flats, he remained in the car

and that David, Aaron, and Luckett exited the car. In either situation, the testimony shows

that David participated in the robbery. Additionally, David admitted that he accepted money

that he knew was obtained during the robbery. The supreme court has held that “when the

evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the

weight and worth of their testimony.” Robinson v. State, 247 So. 3d 1212, 1227 (¶31) (Miss.

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2018). Further, the jury may draw reasonable inferences from the evidence as it deems

justified. Jones v. State, 149 So. 3d 1060, 1066 (¶26) (Miss. Ct. App. 2014).

¶36. After our review, we find that the jury’s verdict was not contrary to the overwhelming

weight of the evidence, and therefore the trial court did not err in denying David’s motion

for a new trial.

IV. Cumulative Error

¶37. Finally, David argues that the cumulative errors of the trial court warrant a judgment

of acquittal in his favor or, in the alternative, a new trial.

¶38. “The cumulative error doctrine stems from the doctrine of harmless error, which holds

that individual errors, which are not reversible in themselves, may combine with other errors

to make up reversible error, where the cumulative effect of all errors deprives the defendant

of a fundamentally fair trial.” Lyons v. State, 237 So. 3d 763, 774 (¶46) (Miss. Ct. App.

2017). “However, reversal based upon cumulative error requires a finding or findings of

error.” Id. Furthermore, “prejudicial rulings or events that do not even rise to the level of

harmless error will not be aggregated to find reversible error.” Mouton v. State, 227 So. 3d

1079, 1086 (¶28) (Miss. 2017). The supreme court has held that “one potential harmless

error does not amount to cumulative error.” Id.

¶39. Because this Court finds no error in any of David’s reviewable issues on appeal, the

cumulative-error doctrine does not apply. See Morrow v. State, 275 So. 3d 77, 85 (¶31)

(Miss. 2019) (“Because no cumulative harmless errors require reversal, the cumulative error

doctrine is inapplicable.”); see also Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007)

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(“However, where there is no error in part, there can be no reversible error to the whole.”).

This issue is without merit.

¶40. Based on the foregoing analysis, we affirm David’s conviction and sentence.

¶41. AFFIRMED.

BARNES, C.J., J. WILSON, P.J., GREENLEE, LAWRENCE AND C. WILSON,
JJ., CONCUR. McDONALD, J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS AND McCARTY, JJ.

McDONALD, J., DISSENTING:

¶42. I respectfully dissent from the majority opinion. I believe David Jones is entitled to

a new trial because of the Brady violation, namely, the State’s failure to produce Aaron

Jones’s witness-tampering indictment, which goes to the very heart of David’s defense that

Aaron threatened him into participating in the Martin robbery. Additionally, because the

evidence did not include the material that the State failed to provide, we cannot and should

not find that the overwhelming weight of what was presented to the jury was sufficient to

support a guilty verdict that resulted in a young working man, with a negligible criminal past,

to be incarcerated for twenty years. Accordingly, I would reverse and remand this case for

correction of the errors and a new trial.

Facts and Procedural History

¶43. The majority opinion has outlined many of the salient facts, but there are a few that

I feel are important to add. David testified that prior to this incident, he had been working

at Pace Auto Sales for the past five years. To supplement his income, David would give

people rides for money to pay for gas and to have something in his pocket. He lived with his

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girlfriend and their eight-month-old baby. David said that he had seen Aaron around the

neighborhood but did not really “know” him. For about a month prior, he had driven Aaron

places, such as Aaron’s mother’s house, for money.

¶44. There was no testimony that David was involved in any other crime with Aaron or

Sibley prior to the robbery that day. Sibley, on whose testimony the State relies, did not even

know David except from having seen him around the apartments where he lived. Sibley

testified that he and Aaron planned the robbery and that they planned to use someone else to

drive them. But that person’s car would not start, so Aaron called David.

¶45. David testified that on the night in question, Aaron called him, and David agreed to

give him a ride. When he arrived, David was surprised when others got in the truck as well.

Aaron said he needed a ride to the other side of town. David drove him to a blue house;

Aaron got out and came back with a large gun. David asked what was going on, and Aaron

just pointed the gun at him and told him to drive. David testified he was frightened and that

Aaron literally held a gun on him during this time. Contrary to Detective Dunaway’s

speculative opinion that David could have driven away while the others were committing the

robbery, David testified that he did not leave because Aaron knew where David and David’s

mother lived. Nor did David take any action at the gas station for the same reason. Before

dropping everyone off, Aaron threatened David one more time. Because he feared Aaron,

David said he did not tell anyone right away but waited until Aaron was incarcerated. At that

point, he voluntarily turned himself in. When he presented himself to the police, David gave

a statement consistent with his testimony later at trial.

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¶46. Jeremy Dunaway, a detective with the Hattiesburg Police Department, testified that

he undertook an investigation of these threats to David which included follow up at the

Forrest County Jail. David and his defense counsel were unaware of the results of that

investigation, despite requesting any potentially exculpatory material through a motion for

discovery and a motion to compel thereafter. Only after the trial was over did they learn that

on February 23, 2018, Aaron had been indicted for witness tampering based on, among other

things, threats to David. Specifically, the indictment read that

between November 26, 2016 and December 31, 2016 Aaron did unlawfully
. . . attempt by use of a threat directed at David Bernard Jones, Virgil
Stephen’Lee Luckett, who were a witness or who may have been called as a
witness in an official proceeding, to influence the testimony of David Bernard
Jones, Virgil Stephen’Lee Luckett and Carlos Akeem Sibley . . . .

Analysis

I. Discovery Violation

¶47. “It is well established that the State has a duty to turn over all exculpatory material

relevant to a defendant’s case.” Hall v. State, No. 2017-KA-00924-COA, 2019 WL

6875360, at *5 (¶25) (Miss. Ct. App. Dec. 17, 2019). This mandate has been the law for over

fifty years since Brady v. Maryland, 373 U.S. 83 (1963), where the United States Supreme

Court held that due process requires the government to disclose favorable, material evidence

not otherwise discoverable through due diligence. Brady, 373 U.S. at 87. A Brady violation

occurs when prosecutors fail to turn over evidence known to the government or police

investigators. Youngblood v. West Virginia, 547 U.S. 867, 869-70 (2006) (citing Kyles v.

Whitley, 514 U.S. 419, 437 (1995)). The good or bad faith of the prosecution is irrelevant.

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Keyes v. State, 281 So. 3d 40, 42 (¶14) (Miss. Ct. App. 2019).

¶48. To establish a Brady violation, a defendant must prove the following: (1) that the

government possessed evidence favorable to the defendant (including impeachment

evidence); (2) that the defendant did not possess the evidence nor could he obtain it himself

with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence;

and (4) that had the evidence been disclosed to the defense, a reasonable probability exists

that the outcome of the proceedings would have been different. Malik v. State, 249 So. 3d

416, 421 (¶13) (Miss. Ct. App. 2017). However,

[t]he question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of
confidence. A “reasonable probability” of a different result is accordingly
shown when the government's evidentiary suppression “undermines
confidence in the outcome of the trial.”

Kyles, 514 U.S. at 434.

¶49. In this case, David’s sole defense was that he was coerced into participating in the

robbery by Aaron’s threats. Therefore, anything related to threats of David by Aaron is

obviously relevant and probative. The State possessed and failed to produce the witness-

tampering indictment against Aaron, which included these threats made to David. But the

majority opinion concludes that it was immaterial to David’s guilt on the robbery conviction

because of the dates of the alleged threats stated in the indictment, i.e., between November

26 and December 31, 2016. The robbery and threats to David occurred on November 21,

2016. The majority opinion says that because of those dates, the indictment was immaterial

as to whether Aaron threatened David during the robbery. I believe the evidence shows

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otherwise.

¶50. After the robbery, David hid until Aaron was arrested. David then came forward and

gave his statement on November 25, 2016, after which Investigator Dunaway began to

investigate the threats to David and found that Aaron had made threats to others as well.

These formed the bases for the ultimate indictment against Aaron. There was no proof that

Aaron and David had any contact between November 26 and December 31, 2016.3 Yet the

indictment includes threats to David, which could have been the threats that David reported

during the robbery. Therefore the dates of the indictment are not as important as the fact that

it includes threats to David during the robbery, which are clearly material.

¶51. The majority opinion also concludes that David failed to demonstrate a reasonable

probability that the outcome of the trial would have been different. But the indictment itself

and its ramifications create such a reasonable probability. If the evidence of these threats

was strong enough to convince a grand jury to indict Aaron, this indictment should have been

provided to David to enable him to develop further proof through at least the cross-

examination of Sibley and Investigator Dunaway. “Favorable evidence includes that which

is either directly exculpatory or items which can be used for impeachment purposes.”

Roberson v. State, 287 So. 3d 219, 246 (¶97) (Miss. Ct. App. 2017). Who knows what other

direct evidence the defense may have uncovered had he had Aaron’s indictment before the

trial. Additionally, it is undisputed that Aaron and Sibley planned the robbery and first called

someone else to be their driver. None of the victims identified David. The only proof that

3
During this time Aaron was incarcerated but David was not. David was not indicted
until over a year later in February of 2018 and not arrested until February 26, 2018.

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David acquiesced and joined in the plan is Sibley’s testimony and the only proof David had

to rebut this was his own statement and testimony. However, if David had known of the

indictment and been able to present it to a jury, or discovered other evidence through it, at

least the jury would have heard all the evidence pertinent to this case and may well have

reached a different verdict. “If a reasonable probability exists that the outcome of a case

would have been different had the evidence been disclosed, reversal is warranted.” Crawford

v. State, 218 So. 3d 1142, 1164 (¶78) (Miss. 2016). Without it, in my opinion, confidence

in the outcome of David’s trial is undermined. Aaron’s indictment was favorable and

material to David’s defense and qualifies as Brady material. Accordingly, I would find that

the State’s failure to provide the witness-tampering indictment was a Brady violation that

warrants reversal of David’s conviction.

II. Overwhelming Weight of the Evidence

¶52. In considering a challenge to the weight of the evidence, we “view the evidence in the

light most favorable to the verdict and will only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Johnson v. State, 234 So. 3d 1248, 1250 (¶11) (Miss. 2017)

(internal quotation marks omitted). We must determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Id. It is the

jury’s role, not ours, to assess the weight and credibility of the evidence, Pruitt v. State, 122

So. 3d 806, 809 (¶8) (Miss. Ct. App. 2013), and it may draw such reasonable inferences from

the evidence as it deems justified, Jones v. State, 149 So. 3d 1060, 1066 (¶26) (Miss. Ct.

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App. 2014).

¶53. We have not disturbed verdicts where numerous witnesses were called to corroborate

the victim’s testimony which was also supported with forensic evidence, as in Jones. Nor

did the supreme court reverse a conviction when an eye witness failed to identify a defendant

in court because it found other evidence, including two witnesses who testified that the

deceased’s dying declaration was that the defendant had shot him. Stevenson v. State, 283

So. 3d 697, 700 (¶9) (Miss. 2019). In a recent case, Story v. State, No. 2018-KA-

00464-COA, 2019 WL 5704135, (Miss. Ct. App. Nov. 5, 2019), cert. denied, Order,

No. 2018-CT-00464-SCT (Miss. May 5, 2020), Story claimed that there was insufficient

evidence to prove his guilt on capital murder, kidnapping and conspiracy to commit robbery

charges where he was merely present with the shooter at the time. Id. at *7 (¶32). However,

there was eyewitness testimony that Story was with the shooter, when the victim was killed.

Id. at *2 (¶9). The eyewitness also testified that Story and the shooter kidnapped him. Id.

at (¶10). The driver of the vehicle Story and others who rode with Storey testified

extensively on Story’s role. Id. at *3 (¶13). We found that it was abundantly clear that Story

intended to associate himself with the shooter, id. at *7 (¶34), fully participated in the events,

id. at *8 (¶35), and had move involvement that a “mere presence,” id. at *1 (¶3).

¶54. But in the case here, unlike the proof in Story, the only evidence the State presented

that tied David into the robbery in a culpable way was the testimony of the convicted co-

defendant, Sibley. Even he admitted that David did not plan to rob anyone; it was he (Sibley)

and Aaron that planned it. Aaron only called David because their driver could not deliver.

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Sibley’s testimony breaks down completely when he testified that David, not he, exited the

vehicle at The Flats. The only other physical evidence entered was David’s statement that

is consistent with David’s testimony that he was not one of the robbers and the innocuous

Sonic’s video of David purchasing gas. Other than that, there is merely suggestion and

innuendo by the State.

¶55. Because the jury is the arbiter of the evidence, it is important that all evidence be

presented to them. In this case, because of the Brady violation and the State’s withholding

critical evidence that supports David’s testimony, it is impossible to conclude that the weight

of the evidence supports a guilty verdict. When we know that there is more critical evidence

that the jury did not see or hear, we cannot simply conclude that the verdict was or was not

contrary to the evidence. Accordingly, I am of the opinion that there was a basis for David’s

post-trial motion, and I would reverse and remand for a new trial.

WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION.

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