Montreal Brown v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-00648-COA

MONTREAL BROWN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/12/2022
TRIAL JUDGE: HON. DEBRA W. BLACKWELL
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ALISON O’NEAL McMINN
AUTUMN TAYLOR BREEDEN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: SHAMECA SHANTE’ COLLINS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART; VACATED IN PART -
09/17/2024
MOTION FOR REHEARING FILED:

BEFORE CARLTON, P.J., SMITH AND EMFINGER, JJ.

CARLTON, P.J., FOR THE COURT:

¶1. Montreal Brown appeals his convictions in the Adams County Circuit Court of

second-degree murder and aggravated assault. On appeal, Brown asserts the following

assignments of error: (1) the trial court erred by increasing Brown’s sentence by five years

on each count pursuant to Mississippi Code Annotated section 97-37-37(1) (Rev. 2014) for

the use of a firearm during the commission of a felony; (2) the State committed prosecutorial

misconduct; (3) Brown’s trial counsel was ineffective; (4) the trial court erred in admitting

evidence of a bullet “shell casing” recovered from outside Brown’s house; and (3) the

convictions were against the sufficiency and weight of the evidence.
¶2. After our review, we find that the firearm enhancement portion of Brown’s second-

degree murder conviction should be vacated; however, we affirm Brown’s convictions and

sentences in all other respects.

FACTS

¶3. In the early morning hours on July 22, 2018, officers with the Natchez Police

Department responded to a call regarding a shooting at The Holiday Apartments, also known

as The Oaks.1 At the scene, police officers discovered Shakeria King and J’Landrick Davis

suffering from gunshot wounds. King ultimately died as a result of her injuries. During the

course of their investigation into the shooting, police officers developed the following

suspects: Brown, Curtavious Knight, Nicholas McGrew, and Carianta Allen.

¶4. Brown was eventually indicted for the first-degree murder of King, the aggravated

assault of Davis, and the drive-by shooting of Davis. Knight, McGrew, and Allen all pleaded

guilty to various charges related to King’s murder and Davis’s assault.

¶5. At Brown’s trial, the jury heard testimony from Knight and McGrew, as well as

Commander Scott Frye and Detective Joseph Belling of the Natchez Police Department;

Felicia McIntire, section chief of the firearm and toolmark division of the Mississippi

Forensics Laboratory; Jacob Burchfield, a forensic scientist at the Mississippi Forensics

Laboratory; and James Lee, the Adams County Coroner.

¶6. After the State concluded its case-in-chief, Brown moved for a directed verdict on all

counts. The trial court granted Brown’s motion on the drive-by-shooting charge; however,

1
For continuity and clarity, we will refer to the apartments as The Oaks throughout
this opinion.

2
the trial court denied the motion as to the other counts.

¶7. The jury ultimately found Brown guilty of second-degree murder for King’s death and

guilty of the aggravated assault on Davis. The trial court sentenced Brown to serve forty

years in the custody of the Mississippi Department of Corrections (MDOC) for

second-degree murder and twenty years in the custody of the MDOC for aggravated assault.

The trial court also sentenced Brown to an additional five years of incarceration on each

conviction for the firearm enhancement, resulting in a total of seventy years in the custody

of the MDOC, with each sentence set to be served consecutively.

¶8. Brown filed a motion for a new trial, which the trial court denied. More than a year

after his conviction and sentence, Brown filed a postconviction petition for an out-of-time

appeal. The trial court granted his petition and appointed appellate counsel. Brown then

filed the present appeal.

DISCUSSION

I. Firearm Enhancement for Second-Degree Murder Conviction

¶9. Brown’s first argument on appeal is that the trial court erred by applying the firearm

enhancement to his sentence for second-degree murder.2 Brown argues that the jury’s verdict

for the second-degree murder charge does not reflect a finding that Brown used a firearm

during the offense, and therefore no factual basis existed for the trial court to apply the

firearm enhancement to his second-degree murder charge.

2
Although Brown is not challenging the trial court’s application of the firearm
enhancement to his aggravated assault sentence, we find that pursuant to Davis, the trial
court did not err in applying the firearm enhancement to Brown’s aggravated assault
sentence.

3
¶10. Brown acknowledges that his trial counsel did not object to the firearm enhancement

before the trial court, and he therefore asks this Court to review the issue for plain error. The

Mississippi Supreme Court has held that “the plain error doctrine applies to illegal sentencing

because an accused has a fundamental right to be free of an illegal sentence.” Davis v. State,

379 So. 3d 312, 317 (¶14) (Miss. 2024) (internal quotation mark omitted). “An illegal

sentence is one that exceeds the maximum statutory penalty for the crime.” Id. (internal

quotation mark omitted).

¶11. Here, the trial court sentenced Brown to forty years in the custody of the MDOC for

his second-degree murder conviction. Brown was also sentenced under section 97-37-37(1),

which added five years to each conviction (second-degree murder and aggravated assault).

Section 97-37-37(1) provides:

Except to the extent that a greater minimum sentence is otherwise provided by
any other provision of law, any person who uses or displays a firearm during
the commission of any felony shall, in addition to the punishment provided for
such felony, be sentenced to an additional term of imprisonment in the custody
of the Department of Corrections of five (5) years, which sentence shall not be
reduced or suspended.

Miss. Code Ann. § 97-37-37(1) (emphasis added). Brown was ultimately sentenced to a total

of forty-five years in the custody of the MDOC for his second-degree murder conviction with

this enhancement.

¶12. The State concedes that the trial court erred in applying the firearm enhancement to

Brown’s second-degree murder conviction, citing Davis, 379 So. 3d at 318 (¶18). In Davis,

the appellants were convicted of two counts of first-degree murder and sentenced to serve

life in prison. Id. at 316 (¶10). The trial court added a firearm enhancement to both

4
sentences under section 97-37-37(1), resulting in an additional five years for each count of

first-degree murder. Id. at 316-17 (¶10).

¶13. On appeal, the supreme court determined that “a firearm enhancement under [s]ection

97-37-37(1) is prohibited [in this case] because ‘a greater minimum sentence is otherwise

provided by’ [s]ection 97-3-21(1).” Id. at 318 (¶18). The court explained that the minimum

(and maximum) sentence for first-degree murder is life imprisonment, and “[a] life sentence

is greater than the five years provided for in [s]ection 97-37-37(1).” Id.; see also Harris v.

State, 99 So. 3d 169, 172 (¶14) (Miss. 2012) (vacating firearm enhancement imposed under

section 97-37-37(2) because the minimum sentence the defendant could have received was

greater than the ten-year sentence provided in section 97-37-37(2)). The supreme court

therefore vacated the firearm enhancement portion of both appellants’ sentences. Id. at 318

(¶18).

¶14. In the case before us, Brown was convicted of second-degree murder, and the

minimum sentence he could have received was twenty years—fifteen years greater than the

five-year sentence provided for in the firearm enhancement statute. See Miss. Code Ann.

§ 97-3-21(1)(b) (Rev. 2014). Based on the supreme court’s ruling in Davis, we find that the

firearm enhancement portion of Brown’s second-degree murder sentence should be vacated.3

II. Prosecutorial Misconduct

¶15. Brown next argues that the State committed prosecutorial misconduct in its closing

3
Because we are vacating the firearm enhancement portion of Brown’s
second-degree murder sentence on other grounds, we decline to address Brown’s argument
as to whether a factual basis existed for the firearm enhancement. See Davis, 379 So. 3d at
317-18 (¶¶16-18).

5
arguments. Brown acknowledges that he failed to object during the State’s closing

arguments and that his arguments are procedurally barred on appeal. Evans v. State, 226 So.

3d 1, 31 (¶78) (Miss. 2017). However, Brown asks this Court to review the issue for plain

error. “[T]he plain error doctrine will be applied to closing arguments when the substance

of the statement is out of bounds for closing arguments.” Spiers v. State, 361 So. 3d 643, 662

(¶70) (Miss. 2023) (internal quotation marks omitted); see also Ambrose v. State, 254 So. 3d

77, 129 (¶161) (Miss. 2018). We will find that a prosecutor’s statement was out of bounds

if the statement “was so inflammatory that the trial judge should have objected on his own

motion.” Spiers, 361 So. 3d at 662 (¶70) (internal quotation marks omitted). Additionally,

we must consider “[a]ny allegedly improper prosecutorial comment . . . in context,

considering the circumstances of the case, when deciding on their propriety.” Ronk v. State,

172 So. 3d 1112, 1137 (¶60) (Miss. 2015).

¶16. In reviewing Brown’s claims of prosecutorial misconduct, we must also keep in mind

that “[a]ttorneys are to be given wide latitude in making their closing arguments.” Spiers,

361 So. 3d at 662 (¶71). Even so, prosecutors are prohibited from using “tactics which are

inflammatory, highly prejudicial, or reasonably calculated to unduly influence the jury.” Id.

The trial court should intervene when a prosecutor “departs entirely from the evidence in his

arguments or makes statements intended solely to excite the passions or prejudices of the

jury, or makes inflammatory and damaging statements of fact not found in the evidence[.]”

Id. at 662-63 (¶71). Reversible error occurs when “the natural and probable effect of the

improper argument of the prosecuting attorney is to create such an unjust prejudice against

6
the accused as to result in a decision influenced by the prejudice so created.” Murry v. State,

359 So. 3d 1104, 1113 (¶27) (Miss. Ct. App. 2022).

¶17. During the State’s rebuttal closing argument, the prosecutor made the following

statement:

And if you recall from the opening statement made by Counsel Opposite, he
told you were gonna hear all of this from [Brown]. But remember the
instruction says, you can’t hold that against him that he didn’t testify. But
somebody has to tell you the truth. I would hope that the lawyer would. But
even he says I’m just making all this up. This is what I think happened. It’s
not supported evidence.

Brown asserts that the State improperly commented on his decision not to testify and

insinuated that Brown did not testify because he is guilty. “The Fifth Amendment, in its

direct application to the Federal Government and in its bearing on the States by reason of the

Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence

or instructions by the court that such silence is evidence of guilt.” Evans, 226 So. 3d at 32

(¶81) (quoting Griffin v. California, 380 U.S. 609, 615 (1965)). Our supreme court has

specifically held that “any reference to the defendant’s failure to testify implying that such

failure is improper, or that it indicates the defendant’s guilt” is prohibited. Wright v. State,

958 So. 2d 158, 161 (¶8) (Miss. 2007).

¶18. As stated, we must consider any allegedly improper comment in context. Ronk, 172

So. 3d at 1137 (¶60). Our review of the trial transcript shows that during opening statements,

defense counsel informed the jury that they would hear testimony from both McGrew and

Brown regarding their versions of the events leading up to the shooting:

[Brown is] gonna be up here and he plans to testify. I have advised him of his

7
rights, but he plans to testify and . . . . He’ll say, I was wrong. I did not call the
police. We just went back and then I lied when the police came to see me.

....

The whole thing is it’s gonna be a question of who do you believe. Do you
believe Mr. Knight? Or do you believe Mr. Brown and/or Mr. McGrew [who
is] gonna be testifying? It’s up to y’all to weigh it. Figure it out. Look at
them. Find out from their demeanor. Figure out . . . what’s logically the best.

¶19. After considering the State’s comments during his rebuttal of closing arguments in

context, we find that the State was simply referencing defense counsel’s opening statement

that the jury would hear the same version of events from Brown and McGrew, and the jury

would have to decide if they believed Brown and McGrew’s version or if they believed

Knight’s version. Because we have held that “in closing argument the State may comment

upon the defense’s opening statement[,]” we find that the State’s comments were not

improper. Slaughter v. State, 752 So. 2d 1092, 1095 (¶10) (Miss. Ct. App. 1999).

¶20. Additionally, we find that the State was not implying that Brown’s failure to testify

indicated Brown’s guilt. Rather, by telling the jury that “somebody has to tell you the

truth[,]” the State was responding to the assertions defense counsel made in his closing

argument and commenting on the weakness of the defense’s case. During rebuttal, the State

asked the jury, “Why is [defense counsel] telling you things that did not come from that

witness stand? If his client is so innocent, why does he have to make up stuff?” The State

then referenced testimony from McGrew as well as statements made by defense counsel in

his closing argument that the State alleged were not supported by the evidence. Our caselaw

is clear that “[t]he [S]tate is entitled to comment on the lack of any defense, and such

8
comment will not be construed as a reference to a defendant’s failure to testify by innuendo

and insinuation.” Shook v. State, 552 So. 2d 841, 851 (Miss. 1989) (internal quotation marks

omitted). In fact, “it is proper to comment on the lack of a successful defense.” Evans, 226

So. 3d at 32 (¶81).

¶21. Finally, the trial court gave the jury an instruction that cured any potential prejudicial

effect the State’s comment may have had on the jury. See Birkhead v. State, 57 So. 3d 1223,

1238 (¶53) (Miss. 2011); Strahan v. State, 729 So. 2d 800, 807 (¶29) (Miss. 1998); Hall v.

State, 785 So. 2d 302, 305 (¶10) (Miss. Ct. App. 2001). Specifically, the trial court granted

jury instruction D-5, Brown’s proposed instruction regarding his right to testify, which stated:

The Court instructs the Jury that [the] Defendant in a criminal prosecution has
the privilege of taking the stand if he desires to do so. Such is his privilege, but
it is not an obligation which is imposed upon him. He may or may not take the
stand. It makes no difference in the case if he decides not to take the stand for
whatever reasons he may have for not taking the stand, because the law gives
the Defendant the right to choose whether or not he will take the stand to
testify in his own behalf. If the Defendant does not take the stand, you must
not consider that fact against the Defendant in deciding this case, because it is
no evidence against him, nor does it raise any presumption whatsoever against
the Defendant. You must decide this case entirely aside from that fact, and you
must not let the question of whether or not the Defendant took the witness
stand influence your decision in any way, because the Defendant does not have
to testify unless he wants to.

“[We] presume[] that jurors have followed the instructions of the court, because to presume

otherwise would render the judicial system inoperable.” Evans, 226 So. 3d at 26 (¶60).

¶22. After reviewing the prosecutor’s comments in context and considering the

circumstances of the case before us, we find that the comments did not rise to the level of

plain error. See Ambrose, 254 So. 3d at 130 (¶165).

9
III. Ineffective Assistance of Counsel

¶23. Brown argues that his trial attorney provided ineffective assistance of counsel failing

to object to improper and damaging testimony. “[T]o prevail on a claim of ineffective

assistance of counsel, a defendant must prove that his attorney's performance was deficient,

and that the deficiency was so substantial as to deprive the defendant of a fair trial.” Morrow

v. State, 275 So. 3d 77, 83 (¶24) (Miss. 2019) (quoting Holly v. State, 716 So. 2d 979, 989

(¶37) (Miss. 1998)) (applying the two-pronged test for ineffective-assistance-of-counsel

claims announced in Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).

¶24. Here, Brown asserts that his trial counsel failed to object in the following

circumstances: (1) when Commander Frye testified multiple times that Knight, the State’s

witness, was telling the “truth” and that McGrew, the defense witness, was lying; (2) when

the State “badgered” McGrew during cross-examination; and (3) when the State commented

on the fact that Brown did not testify at trial. Brown asserts that his conviction hinged on the

credibility the jury assigned to the competing witnesses, Knight and McGrew; therefore, his

trial counsel’s failure to object to the inadmissible testimony from Commander Frye and to

the State’s improper badgering of McGrew gave greater credibility to Knight’s testimony.

Brown submits that his trial counsel’s failure to properly object to this testimony, combined

with the failure to object to the State’s comments regarding Brown not testifying, clearly

shows that his counsel’s deficient performance substantially prejudiced Brown’s defense.

¶25. “Ineffective-assistance-of-counsel claims generally are reserved for post-conviction

relief [(PCR)].” Ford v. State, 333 So. 3d 896, 912-13 (¶41) (Miss. Ct. App. 2022) (citing

10
Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss. 2020)). However, we will address

ineffective-assistance-of-counsel claims on direct appeal when “[1] the record affirmatively

shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record

is adequate and the Court determines that the finding of facts by a trial judge able to consider

the demeanor of the witnesses, etc., are not needed.” Id. We will also review

ineffective-assistance-of-counsel claims on direct appeal “when the record affirmatively

shows the claims are without merit.” Id. at 912-13.

¶26. Brown argues that his ineffective-assistance-of-counsel claims are based on his trial

counsel’s failure to object in three different contexts, and he contends the trial transcript is

the only record that is necessary to review Brown’s claims. As a result, Brown submits that

this Court’s review of his ineffective-assistance-of-counsel claims are appropriate on direct

appeal. However, the State did not stipulate that the record is adequate to allow this Court

to make a finding on the merits. Instead, the State argues that Brown’s claim is not ripe for

appeal, and therefore this Court should “dismiss this issue without prejudice to Brown’s right

to raise the claim in a properly filed motion for post[]conviction relief.” See Murray v. State,

345 So. 3d 610, 624 (¶39) (Miss. Ct. App. 2022).

¶27. Upon review, we find that the record does not affirmatively show ineffectiveness of

constitutional dimensions. Furthermore, “the issue of whether [Brown’s] counsel was

ineffective by failing to make certain objections is not fully apparent from the record.”

Brady v. State, 337 So. 3d 218, 229 (¶38) (Miss. 2022). The supreme court has held that

“[c]omplaints concerning counsel’s failure to file certain motions, call certain witnesses, ask

11
certain questions, and make certain objections fall within the ambit of trial strategy.” Id. at

(¶39). Such claims “require a consideration of facts beyond the contents and face of the

record.” Id. We therefore find that Brown’s claim would be better developed through a PCR

motion. Accordingly, we deny Brown’s ineffective-assistance-of-counsel claim without

prejudice to his right to raise the issue in a PCR motion. Id.

IV. Admission of Evidence

¶28. Brown next argues that the trial court abused its discretion when it admitted the

9-millimeter shell casing recovered from his brother’s murder scene into evidence. Brown

maintains that the shell casing was not relevant and that it was prejudicial to his case.

¶29. We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Roberson v. State, 199 So. 3d 660, 668 (¶32) (Miss. 2016). Mississippi Rule of

Evidence 402 provides that “[r]elevant evidence is admissible unless” the Constitution of the

United States, the Constitution of the State of Mississippi, or the Mississippi Rules of

Evidence provide otherwise. Evidence is considered relevant if “it has any tendency to make

a fact more or less probable than it would be without the evidence” and if “the fact is of

consequence in determining the case.” MRE 401. However, relevant evidence may be

excluded “if its probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.” MRE 403. This Court has clarified that

the exclusion of relevant evidence under Rule 403 is “permissive, not mandatory.” Wallace

v. State, 369 So. 3d 83, 89 (¶19) (Miss. Ct. App. 2023). The decision of whether to exclude

12
relevant evidence under Rule 403 “is committed to the broad discretion of the trial judge, and

our standard of review is highly deferential.” Id.

¶30. At trial, Commander Frye testified that Brown’s brother Martez was shot and killed

two weeks before the July 18, 2022, drive-by shooting at The Oaks. At the time of his

murder, Martez was sitting outside in front of the home that he shared with Brown.

Commander Frye testified that during the investigation into Martez’s murder, police officers

recovered a 9-millimeter shell casing and a .45-millimeter shell casing in the front yard of

Martez and Brown’s home. During Commander Frye’s testimony, the State moved to admit

into evidence the 9-millimeter shell casing recovered from Martez and Brown’s home.

Defense counsel objected to the relevancy of the shell casing, arguing that it was relevant to

Martez’s murder and not the drive-by shooting at issue. The State responded that it was

introducing the shell casing for the purpose of showing motive. The trial court overruled

defense counsel’s objection and admitted the shell casing into evidence.

¶31. On appeal, Brown argues that Martez’s murder was unrelated to the drive-by shooting

at The Oaks; as a result, the shell casing was not relevant and was more prejudicial to Brown

than probative. Brown argues that the State failed to present any evidence showing that

Brown owned a 9-millimeter gun. Commander Frye testified that although the 9-millimeter

shell casing was recovered from Martez and Brown’s front yard, there was no indication of

who fired it or when it was fired. Detective Belling also testified that police officers did not

recover a 9-millimeter gun when they searched Brown’s home. Brown further asserts that

13
the testimony at trial shows he was not outside the house at the time Martez was shot.4

Brown disputes the State’s assertion that it introduced the shell casing to show motive, and

he argues that the State intended to mislead the jury and bolster Knight’s credibility as a

witness.

¶32. The State argues, however, that the shell casing was relevant and admissible because

it made the State’s theory that the shooting at The Oaks was in retaliation for Martez’s

murder more probable. The State also maintains that the probative value was not outweighed

by any prejudice because the State did not introduce the shell casing to imply that Brown was

involved in Martez’s murder but, rather, to show a connection and motive to the drive-by

shooting.

¶33. In Ronk, 172 So. 3d at 1124 (¶14), the defendant, Ronk, was charged with capital

murder and armed robbery. On the day of his arrest, police officers found a knife in Ronk’s

vehicle. Id. at 1133 (¶45). Police officers sent the knife to the crime lab to be tested for

DNA or other genetic material, but the results were negative. Id. at (¶47). At trial, Ronk’s

girlfriend testified that Ronk admitted to stabbing the murder victim with a knife, and the

forensic pathologist opined that the victim’s multiple stab wounds were likely the cause of

her death. Id. at (¶¶45-46). The State moved to introduce the knife into evidence for

identification purposes only. Id. at (¶45).

4
Commander Frye testified that Brown was not outside the house when Martez was
shot; rather, he came outside after Martez had been shot. Commander Frye explained that
a camera located on a building near Brown’s house contained footage of Martez’s shooting,
but the footage was “very grainy and very distorted.” Commander Frye testified that the
footage showed that no one returned fire after Martez was shot, explaining “Martez’s
[shooting] was not a drive-by.”

14
¶34. During the forensic pathologist’s testimony, the State presented the knife to him, and

the forensic pathologist opined that the knife was consistent with the type of knife used to

inflict the wounds suffered by the victim. Id. at (¶46). On cross-examination, Ronk pointed

out that the knife at issue had features that did not fully match the forensic pathologist’s

description of the knife used to inflict the victim’s wounds. Id. However, the forensic

pathologist maintained his opinion that the knife presented to him at trial was consistent with

the type of knife used to stab the victim. Id.

¶35. During testimony from an investigator, the State finally moved to enter the knife into

evidence. Id. at (¶47). Ronk objected, arguing that the knife was irrelevant to the crime

because it did not match the forensic pathologist’s description of the murder weapon. Id.

The trial court denied Ronk’s objection and admitted the knife into evidence. Id.

¶36. Ronk appealed, arguing that the trial court abused its discretion in admitting the knife

into evidence. Id. Ronk claimed that the knife lacked relevance and also prejudiced his

defense. Id. Upon review, the supreme court held that the trial court did not abuse its

discretion in admitting the knife into evidence. Id. at 1134 (¶49). The supreme court

acknowledged that no forensic evidence linked the knife to the victim’s murder, but the court

explained that “when there is evidence that a weapon could have caused an injury and some

connection between the defendant and the weapon exists, the weapon will be deemed

relevant and admissible.” Id. (quoting Ross v. State, 954 So. 2d 968, 993 (¶46) (Miss.

2007)). The supreme court found that the testimony at trial supported the knife’s

admissibility. Id.

15
¶37. In the case before us, we find that the testimony from the witnesses, as well as the

shell casings recovered from The Oaks, demonstrated a connection between Brown and the

9-millimeter shell casing. McIntire, who works for the Mississippi Forensic Laboratory,

testified that after examining the shell casing recovered from Martez and Brown’s home and

the shell casings recovered from The Oaks, she determined that the shell casings were fired

through the same gun. See Ross, 954 So. 2d at 993 (¶46). Detective Belling testified that

Brown was the only one of the suspects who was present in both of the locations where the

shell casings were found. See id. Commander Frye testified that although no one had been

charged in connection to Martez’s murder, Jack Lawrence Jackson was one of the names

mentioned “on the streets” as being involved. Commander Frye confirmed that Jackson was

present at The Oaks during the drive-by shooting. We therefore find that the 9-millimeter

shell casing was relevant to show motive. Additionally, because the State introduced the

shell casing to show motive and a connection between Martez’s murder and the drive-by

shooting—and not to imply that Brown was involved in Martez’s murder—we find that the

probative value was not substantially outweighed by the danger of any unfair prejudice.

¶38. Based on these facts, we find that the trial court did not abuse its discretion in

admitting the shell casing into evidence.

V. Sufficiency of the Evidence

¶39. Brown argues that the evidence at trial was insufficient to prove that he was guilty on

all counts. “The sufficiency of the evidence is challenged with a motion for a directed

verdict, a request for a peremptory instruction, or a motion for judgment notwithstanding the

16
verdict (JNOV).” Pace v. State, 242 So. 3d 107, 117 (¶24) (Miss. 2018).

¶40. After the State rested its case, Brown moved for a directed verdict, challenging the

sufficiency of the evidence. The trial court granted Brown’s motion as to the drive-by

shooting charge, but the trial court denied the motion as to Brown’s murder and aggravated

assault charges. Brown then proceeded to present his case, with McGrew testifying for the

defense.

¶41. Because Brown’s motion for directed verdict was denied, and he then proceeded to

introduce evidence on his own behalf, Brown was required to “renew his motion for directed

verdict at the close of all evidence” to preserve his challenge to the sufficiency of the

evidence on appeal. Woods v. State, 242 So. 3d 47, 54 (¶26) (Miss. 2018). The transcript

reflects that Brown failed to renew his motion for a directed verdict at the close of evidence.

Brown also failed to request a peremptory instruction or file a post-trial motion for JNOV.

¶42. Our supreme court has held that “[i]n the absence of a renewal of the directed verdict,

a request for a peremptory instruction, or a motion for a judgment notwithstanding the

verdict, [a defendant] has waived the sufficiency error on appeal.” Holland v. State, 656 So.

2d 1192, 1197 (Miss. 1995). We therefore find that “[Brown] did not preserve his challenge

to the sufficiency of the evidence for appeal because he did not renew his motion for a

directed verdict at the close of evidence, request a peremptory instruction, or file a motion

for JNOV.” Pace, 242 So. 3d at 117 (¶25). Therefore, Brown has waived his challenge to

the sufficiency of the evidence on appeal.

¶43. Notwithstanding Brown’s waiver, we find that the State presented sufficient evidence

17
to support Brown’s convictions. “In reviewing the sufficiency of the evidence on appeal, we

view the evidence in the light most favorable to the State and decide if rational jurors could

have found the State proved each element of the crime.” Boyd v. State, 383 So. 3d 1280,

1286 (¶31) (Miss. Ct. App. 2024). In so doing, we “must accept as true all credible evidence

consistent with guilt and give the State the benefit of all favorable inferences that may

reasonably be drawn from the evidence.” Id.

¶44. Brown was convicted of the second-degree murder of King and the aggravated assault

of Davis. Second-degree murder is defined as the “killing of a human being without the

authority of law” by “an act eminently dangerous to others and evincing a depraved heart,

regardless of human life, although without any premeditated design to effect the death of any

particular individual.” Miss. Code Ann. § 97-3-19(1)(b) (Supp. 2017). Aggravated assault

requires the jury to find that a defendant “attempt[ed] to cause or purposely or knowingly

cause[d] bodily injury to another with a deadly weapon or other means likely to produce

death or serious bodily harm[.]” Miss. Code Ann. § 97-3-7(2)(a)(ii) (Supp. 2016). As we

will discuss below, we find that a rational juror in this case could find the State proved that

Brown committed the elements of second-degree murder and aggravated assault beyond a

reasonable doubt.

¶45. Brown’s main argument is that the entirety of the State’s case against him is based on

circumstantial evidence. “A circumstantial-evidence case is one where the State is ‘without

a confession and wholly without eyewitnesses to the gravamen of the offense charged.’”

Chism v. State, 253 So. 3d 343, 349 (¶29) (Miss. Ct. App. 2018) (quoting Garrett v. State,

18
921 So. 2d 288, 291 (¶17) (Miss. 2006)). Direct evidence, on the other hand, “includes a

confession, the testimony of an eyewitness to the gravamen of the offense, or surveillance

video of the gravamen of the offense.” Morris v. State, 303 So. 3d 9, 18 (¶28) (Miss. Ct.

App. 2020). In the case before us, Knight and McGrew were eyewitnesses to the shooting,

and both Knight and McGrew testified at trial. Accordingly, the State’s case against Brown

was not based solely on circumstantial evidence. See Mangum v. State, 762 So. 2d 337, 344

(¶21) (Miss. 2000) (finding that where accomplices to the crime provided eyewitness

testimony, the case against the defendant was not based solely on circumstantial evidence);

accord Nevels v. State, 325 So. 3d 627, 634 (¶20) (Miss. 2021) (“[T]he law makes no

distinction between direct and circumstantial evidence . . . .”).

¶46. Turning to examine the evidence presented at trial, the transcript reflects that Brown’s

brother Martez was shot and killed approximately two weeks before the drive-by shooting

at The Oaks. As discussed, police officers discovered a 9-millimeter shell casing and

.45-millimeter shell casings in Martez and Brown’s front yard.

¶47. Martez’s funeral was held on July 21, 2018. At approximately 1:00 a.m. on July 22,

2018, Natchez police officers responded to a call regarding a drive-by shooting at The Oaks.

Police officers discovered that King and Davis were suffering from gunshot wounds. King

ultimately died as a result of her injuries.

¶48. While on the scene after the shooting on July 22, 2018, officers interviewed witnesses

and developed the following suspects as involved in the shooting: McGrew, Knight, Allen,

and Brown. The officers immediately began locating the suspects and interviewing them.

19
¶49. Officers located Knight first and interviewed him within a few hours of the shooting.

Commander Frye testified that Knight initially claimed that he was not present during the

shooting. However, Commander Frye explained that police officers had already interviewed

some of Knight’s family members, and Knight’s initial statements to the police conflicted

with the statements from his family. Officers interviewed Knight a second time, and he again

denied any involvement in the shooting. Officers then allowed Knight’s grandmother into

the interview room to speak with Knight. After talking with his grandmother, Knight asked

police officers how he would be protected if he came forward with the truth about what

occurred during the shooting.

¶50. During Knight’s third interview, Knight told the officers that he, Allen, McGrew, and

Brown were involved in the shooting and that the purpose of the shooting was to retaliate for

Martez’s murder. According to Knight, McGrew was driving the car,5 and Knight was in the

front passenger seat. Allen and Brown were in the backseat of the car, with Allen sitting

behind the driver and Brown in the rear passenger side seat. Knight told officers that Allen

and Brown both had 9-millimeter guns. Commander Frye testified that Knight’s final

statement to the police officers, including the suspects involved and the type of guns used,

was consistent with the evidentiary findings from the police investigation.

¶51. Commander Frye testified that at the scene of the drive-by shooting, officers observed

numerous shell casings on the ground. Detective Belling testified that police officers also

recovered two shell casings from inside the car used during the shooting, and the location of

5
The record shows that the vehicle belonged to Chris Combs, who was not present
during the shooting.

20
the shell casings was consistent with Knight’s statement that Allen and Brown were sitting

in the backseat of the car when they fired their weapons.

¶52. The officers sent the shell casings to the Mississippi Forensics Laboratory for testing,

and the results showed that all of the shell casings recovered from The Oaks were

9-millimeter shell casings. Officers also determined that the shell casings were fired from

two different guns.

¶53. Felicia McIntire from the Mississippi Forensics Laboratory testified that the

9-millimeter shell casing recovered from Martez and Brown’s yard after Martez’s murder

was fired from the same firearm as some of the 9-millimeter shell casings recovered from the

drive-by shooting at The Oaks. Commander Frye also confirmed that “the firearm that was

used to shoot that single round at the Brown’s residence was also the same firearm that was

used in the King murder.” Detective Belling testified that Brown was the only one of the

suspects who had been present at the location of Martez’s shooting and the drive-by shooting

at The Oaks.

¶54. As for the motive for the shooting, Commander Frye testified that the investigation

revealed that the suspects intended to retaliate for Martez’s murder. Commander Frye

explained that during the investigation into Martez’s murder, Jack Lawrence Jackson’s name

had come up “in the streets” as a possible suspect, but officers did not have any solid

evidence tying Jackson to the murder. Commander Frye confirmed that Jackson was present

at The Oaks during the drive-by shooting on July 22, 2018, but the gunshots missed him.

¶55. Knight testified at trial regarding the events that occurred on the evening of July 21,

21
2018, and the early morning hours of July 22, 2018. Knight stated that on the evening of July

21, he and McGrew were at a party. After Knight and McGrew left the party, they drove to

pick up Allen and Brown, who are cousins. When Allen and Brown entered the car, they

revealed to Knight and McGrew that they were each carrying a 9-millimeter gun. Knight

testified that he was in the front passenger seat, and McGrew was driving the car. Allen and

Brown were in the back seat, with Allen sitting behind McGrew and Brown sitting in the rear

passenger side seat behind Knight.

¶56. After Brown and Allen entered the car, McGrew drove to The Oaks. According to

Knight, McGrew announced, “We put Martez . . . in the grave today so we gotta put one of

them in the grave,” meaning that the purpose of driving to The Oaks was to retaliate for

Martez’s murder. Upon arriving at The Oaks, they saw a group of people standing around

outside. McGrew pulled the car up until the passenger side was facing the group of people.

Knight testified that Allen and Brown rolled down the car windows and began shooting into

the group of people. Knight stated that Brown and Allen remained inside the car during the

shooting—Brown, who was seated in the rear passenger seat, was shooting out of the car

window, while Allen, who was in the back seat on the driver’s side, stuck his upper body out

of the car window and shot over the top of the car. Knight testified that the car was stopped

during the shooting, and then McGrew drove off after the shooting stopped.

¶57. Knight testified regarding Brown’s appearance and demeanor on the night of the

shooting, describing his behavior as “normal.” Knight stated that Brown did not appear

sleepy and that he remained awake in the vehicle the entire time. Knight recalled hearing

22
Brown talking, as well as rapping to the music playing inside the vehicle.

¶58. Knight also admitted to lying to the police during his first and second interviews.

Knight testified that he lied during the interviews because he was afraid of what Brown and

Allen would do to him if he “snitched,” explaining, “I had just seen those two individuals . . .

discharge firearms into a crowd without any remorse and I [live] two houses [away] from

them.” Knight testified that due to the fear of retaliation, police officers housed him in

different jails located outside Adams County.

¶59. Officers conducted a gunshot residue test on Knight. Commander Frye testified that

the officers only tested Knight, and not the other suspects, because police officers picked up

Knight within four hours of the drive-by shooting, and the other three suspects were

interviewed much later. Results from the test showed the presence of gunshot residue on the

back of Knight’s right hand. Commander Frye testified that if someone had gunshot residue

on their hands, “[i]t would indicate that he was in the presence of where a gun was fired

anywhere in the vehicle.”

¶60. Commander Frye testified that when the police interviewed Brown, he denied any

involvement in the shooting. Brown told officers that on the day before the shooting, July

21, 2018, he attended his brother’s funeral and then went home and took a nap. Brown

claimed that he woke up at 5:00 p.m., and then his girlfriend came and picked him up at

10:00 p.m. However, Commander Frye said that Brown’s girlfriend told the officers that she

actually picked him up around 3:00 a.m. on July 22, roughly two hours after the shooting.

Commander Frye recalled that during the interview, Brown denied taking Xanax on the

23
evening before the shooting or the morning of the shooting, but Brown admitted to the

officers that he had smoked marijuana.

¶61. Commander Frye testified that he also conducted two different interviews with

Nicholas McGrew. During both interviews, McGrew denied any involvement in the

shooting.

¶62. McGrew testified at trial that on the evening of July 21, 2018, he and Knight drove

to pick up Brown and Allen. McGrew described Brown as “on Xanax,” explaining that

“[y]ou c[ould] look at him and tell he was on drugs.” However, McGrew admitted that

Brown never told him that he had taken any type of drugs or medication. According to

McGrew, Knight informed Brown that they were driving to The Oaks to fight. Brown

responded, “Okay,” and then went back into the house to take a shower. Brown then exited

the house a few minutes later and got into the back seat of the car. McGrew testified that he

was driving the car, Knight was sitting in the front passenger seat, and Brown and Allen were

in the backseat. Unlike Knight’s testimony, McGrew recalled that Brown was sitting behind

the driver’s seat and that Allen was in the rear passenger side seat. According to McGrew,

only Knight and Allen had guns.

¶63. McGrew testified that on the way to The Oaks, Brown fell asleep in the back seat.

McGrew pulled the car up next to a group of people who were standing outside. McGrew

testified that Knight and Jack Lawrence Jackson “exchanged words with each other,” and

Knight started shooting. McGrew testified that Allen opened the door of the vehicle and also

began shooting. McGrew stated that during the shooting, Brown woke up and asked what

24
was going on and why were they at The Oaks. McGrew explained to the jury that Brown was

not supposed to be at The Oaks and that if certain people saw him there, “they might shoot

at him or kill him.”

¶64. McGrew admitted that in both of his interview with police officers, he denied any

knowledge of the shooting. At trial, Knight and McGrew’s police interviews were admitted

into evidence and played for the jury.

¶65. The transcript reflects that Knight and McGrew provided conflicting accounts of the

shooting, as well as conflicting accounts of whether Brown was under the influence of

prescription medication. However, “Mississippi’s caselaw is clear: when the evidence

conflicts, the jury determines the facts in dispute.” Beasley v. State, 362 So. 3d 112, 125

(¶45) (Miss. Ct. App. 2023). Indeed, “[t]he jury is the sole judge of the credibility of

witnesses and the weight and worth of their testimony.” Id. (quotation omitted).

¶66. Keeping in mind that the jury is the sole judge of the credibility of the witnesses and

the weight and worth of their testimony, and viewing the evidence in the light most favorable

to the State, we find that a rational juror could have reasonably found that the State proved

that Brown was guilty of the second-degree murder of King and the aggravated assault of

Davis. Both Knight and McGrew testified that Brown was present in the car during the

shooting at The Oaks, and Commander Frye testified that upon arriving on the scene and

interviewing witnesses, police officers developed Brown as a suspect. Knight also testified

that Brown shot a 9-millimeter gun into a crowd of people at The Oaks. King was hit by

gunfire and ultimately died as a result of her injuries, and Davis suffered gunshot wounds to

25
his leg. Testimony from Commander Frye and crime lab testing corroborated Knight’s

testimony that Brown used a 9-millimeter gun. Crime lab testing also revealed that

9-millimeter shell casings found in the front yard of Brown’s house after Martez’s murder

were shot from the same gun used in the drive-by shooting that killed King and injured

Davis. Detective Belling testified at trial that Brown was the only one of the suspects who

had been present at the location of Martez’s shooting and the drive-by shooting at The Oaks.

Additionally, Knight testified that the purpose of driving to The Oaks was to retaliate for

Martez’s murder. Commander Frye corroborated this statement, testifying that the

investigation revealed that the suspects drove to The Oaks to retaliate for Martez’s murder.

Commander Frye also stated that Jack Lawrence Jackson was a possible suspect in Martez’s

murder, and he confirmed that Jackson was present at The Oaks during the shooting on July

22, 2018.

¶67. Moreover, the jury was instructed that it could find Brown guilty if it found that he

acted in concert with Knight, McGrew, and Allen. This Court has held that “[w]hen two

people act in concert or when one person aids another in committing a crime, both are

equally guilty as principals in the eyes of the law.” Gray v. State, 328 So. 3d 194, 198 (¶11)

(Miss. Ct. App. 2021). Therefore, “[Brown] did not have to pull the trigger to be found

guilty.” Id.

¶68. After our review, we find that the evidence was sufficient to prove each statutory

element for second-degree murder and aggravated assault.

VI. Weight of the Evidence

26
¶69. Brown also argues that the jury’s verdicts were contrary to the overwhelming weight

of the evidence.

¶70. The record reflects that the trial court denied Brown’s post-trial motion for a new trial

in which Brown challenged the weight of the evidence. When considering a challenge to the

weight of the evidence, our role “is to review the trial court’s decision to grant or deny a new

trial for an abuse of discretion.” Little v. State, 233 So. 3d 288, 292 (¶21) (Miss. 2017). In

doing so, the Court “weigh[s] the evidence in the light most favorable to the verdict, only

disturbing 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.” Id.

¶71. Brown asserts that for the same reasons he raised in his challenge to the sufficiency

of the evidence, the jury’s verdict is against the overwhelming weight of the evidence. This

Court has recognized that “[e]ven when the evidence is sufficient to support a conviction, a

defendant may be entitled to a new trial if the trial court determines that the guilty verdict

returned by the jury was against the weight of the more credible evidence presented at trial.”

Gray, 328 So. 3d at 199 (¶17).

¶72. Based on the same evidence and testimony discussed above, we find that Brown’s

challenge to the weight of the evidence is without merit. After weighing the evidence in the

light most favorable to the verdict, we find that allowing the verdict to stand in this case

would not sanction an unconscionable injustice. We therefore find that the trial court did not

abuse its discretion by denying Brown’s motion for a new trial.

VII. Cumulative Error

27
¶73. Finally, Brown argues that he is entitled to a new trial based on “cumulative error.”

Under the cumulative error doctrine, “reversible error” may be established when “the

cumulative effect of all errors deprives the defendant of a fundamentally fair trial.” Ross,

954 So. 2d at 1018 (¶138). However, “[w]here there is no error in part, there can be no

reversible error to the whole.” Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007). The

only error found by this Court relates to Brown’s sentencing, which occurred after his trial.

After our review of Brown’s assignments of error relating to his trial, we find no errors in

part; accordingly, we find no cumulative error.

CONCLUSION

¶74. Based on the supreme court’s ruling in Davis, the firearm enhancement portion of

Brown’s second-degree murder sentence is prohibited. Accordingly, we affirm Brown’s

convictions and sentences, except we vacate the five-year firearm enhancement added to

Brown’s sentence for his second-degree murder conviction.

¶75. AFFIRMED IN PART; VACATED IN PART.

BARNES, C.J., WILSON, P.J., McDONALD, LAWRENCE, McCARTY,
SMITH AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., CONCURS IN PART
AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

28