CourtListener 4252531•Jerry Darnell v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-01804-COA
JERRY DARNELL A/K/A JERRY LEE APPELLANT
DARNELL
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/21/2014
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: K. ELIZABETH DAVIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF AGGRAVATED ASSAULT
AND SENTENCED TO TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
FIFTEEN YEARS TO SERVE AND FIVE
YEARS SUSPENDED, FOLLOWED BY FIVE
YEARS OF POST-RELEASE SUPERVISION
DISPOSITION: AFFIRMED – 08/30/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Jerry Darnell was convicted of the aggravated assault of Bernard Harris. The
Lowndes County Circuit Court sentenced him to twenty years in the custody of the
Mississippi Department of Corrections with fifteen years to serve and five years suspended,
followed by five years of post-release supervision. On appeal, Darnell claims: (1) the
evidence was insufficient to convict him; (2) the jury’s verdict is contrary to the
overwhelming weight of the evidence; (3) he received ineffective assistance of counsel; and
(4) his sentence is excessive. Finding no error, we affirm.
FACTS
¶2. Bernard Harris and Tekeshia Jones1 were in a relationship for approximately a decade
and had one child together, Takhia Harris. They broke up, and Jones began dating Darnell.
On May 13, 2012, Takhia,2 called Harris and told him that she was hungry. The next
morning, Harris took some snacks to Takhia at school and delivered some groceries to
Jones’s apartment. Jones’s son, Travaro Jones, let Harris into the apartment. Harris was
upset that there were only a few groceries in the apartment. Harris had Travaro call Jones,
so he could talk to her about the lack of food in the apartment.
¶3. At the time of the call, Jones was riding in a car with Darnell. According to Harris,
he was unaware of Jones’s relationship with Darnell. However, during the trial, Jones
testified that Harris did not talk to her about groceries. Rather, he lashed out at her because
she was with Darnell.
¶4. Harris and Darnell eventually spoke on the phone. Both Darnell and Jones testified
that Harris threatened them and cursed at them. After learning that Darnell had been
spending nights with Jones, Harris took some things from the apartment, including wall art
and a television. Before he left, Harris told Travaro that he would be back later that evening
1
At the time the incident occurred, Jones was engaged to Darnell. They later married.
For the sake of clarity, we use her former surname.
2
Takhia was approximately nine years old at the time.
2
to drop off Takhia.
¶5. According to Jones and Darnell, they, being concerned for their safety, contacted a
police officer and informed him that they had received threatening calls from Harris. The
officer told them to file a report. So they went to the Lowndes County Sheriff’s Department,
where they filed a report with Investigator Travis Robertson. When Darnell and Jones
returned to her apartment, they discovered the missing items that Harris had taken. They
called the sheriff’s department, and Master Sergeant Mark McGairty responded. He took
their report of the missing items.
¶6. Around 2:45 p.m., Harris was riding with his girlfriend, Kenyatta Stallings. They
picked up Takhia from the bus stop at the entrance to Jones’s apartment complex. With
Takhia in the car with him, Harris was on his way to Jones’s apartment when he encountered
Jones and Darnell, who were walking in the opposite direction. After Stallings stopped the
car at Harris’s instruction, Harris and Takhia got out. The evidence is conflicting as to what
happened next.
¶7. Harris testified that he tried to talk to Jones, but she pointed her finger in his face, so
he knocked her hand away. In response, Jones pushed Harris. He then slapped her in the
face with an open hand. According to Harris, Darnell immediately started shooting at him.
Harris said that the first shot hit him on the left side of the back of his head,3 and he fell onto
3
Dr. Jan McClanahan, the surgeon who treated Harris, later testified that Harris’s
head wound was superficial, in that it did no damage to his skull or brain. Dr. McClanahan
recorded that the head wound was sustained from behind.
3
Stallings’s car. As he was trying to get into the car, he tried to turn around to find Takhia.4
According to Harris, Darnell appeared to be walking toward him while “stead[il]y firing.”
Darnell shot Harris again. The second gunshot wound passed through Harris’ hip and lodged
in his abdomen.
¶8. Jones and Darnell presented a distinctly different version of events. They said that
Harris punched Jones with a closed fist. According to Darnell, Harris never said anything
before he “jump[ed] out of the car and haul[ed] off and hit [Jones] dead between the eyes.”
Darnell added that Harris was “still hitting her” as she was falling down. At trial, Jones
testified that Harris knocked her unconscious. Darnell testified that Harris kept hitting Jones
as she was falling. According to Darnell, he shot Harris in the leg, and “that got him off”
Jones. Darnell said that Harris then started moving toward him, so he closed his eyes and
shot Harris again.
¶9. Stallings drove Harris to the emergency room, where medical providers tended to his
non-fatal wounds. Darnell said he helped Jones to get up and that he walked her to her
apartment. Darnell then left. He was subsequently arrested without incident, although he
had changed shirts and refused to submit to a gunshot-residue test. Jones testified that she
did not know what had happened during the shooting, but prior to trial she gave two
statements to the contrary. That is, on the day of the shooting, she told Investigator James
Ferris that she heard gunfire. The next day, she went to the Lowndes County Sheriff’s
4
Although Jones and Darnell later disputed it, Harris testified that Takhia was in the
area during the shooting. Other witnesses later testified that numerous other children were
nearby.
4
Department and gave another statement to Investigator Ferris. In her second statement, Jones
said she saw Darnell shoot Harris as Harris was trying to get into the car.
¶10. Darnell was indicted and charged with aggravated assault. He pleaded not guilty and
opted to go to trial. During its case-in-chief, the State called Harris, four eyewitnesses, and
two law-enforcement officers. Briefly summarized, the State presented evidence that after
Darnell shot Harris the first time, Harris fell onto or in the direction of Stallings’s car. And
as Harris was trying to get into the car, Darnell continued to shoot at him. There was also
testimony that Jones was not knocked unconscious by Harris. Instead, she “was crawling
around on the ground . . . like she was searching for something.”
¶11. Darnell called four witnesses. In general, Darnell’s theory of the case was that he
initially acted to defend Jones and that he shot Harris again in self-defense. Darnell and
Jones testified that Harris had been threatening them since the morning of the shooting, so
they filed two reports: the first with Investigator Robertson and the second with Master
Sergeant McGairty after they found things missing from the apartment. Darnell testified that
Master Sergeant McGairty told him to do “whatever he needed to do” to protect himself and
Jones; however, Master Sergeant McGairty disputed that.
¶12. During rebuttal, the State called witnesses who testified that Jones did not have any
marks or bruises on her face after the shooting. The State also presented evidence that after
Darnell shot Harris the first time, Harris “ran towards the car[,]” and Darnell continued
shooting at him.” As stated, there was also testimony that Jones was not knocked
unconscious. Instead, she was following Darnell’s instructions to pick up the shell casings,
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and Darnell told her not to call authorities until after he left. The State also called
Investigator Ferris, who testified that he took both of Jones’s statements. Although Jones had
testified that the information in her statements was untrue, Investigator Ferris noted that he
read each statement back to Jones before she signed them. Ultimately, the jury found Darnell
guilty of aggravated assault. Darnell appeals.
DISCUSSION
I. Sufficiency of the Evidence
¶13. Darnell claims that the evidence is insufficient to support the jury’s verdict. However,
as discussed below, he is procedurally barred from raising this issue on appeal. After the
State rested its case-in-chief, Darnell moved for a directed verdict, and the circuit court
denied his motion. Darnell then presented his own case. “When the defendant proceeds with
his case after the state rests and the court overrules the defendant’s motion for a directed
verdict, the defendant [waives] the appeal of [the denial of his motion for a] directed verdict”
unless he renews his motion for a directed verdict at the conclusion of all of the evidence.
Holland v. State, 656 So. 2d 1192, 1197 (Miss. 1995) (internal citations omitted). Darnell
never challenged the sufficiency of the evidence again. He did not renew his motion for a
directed verdict, request a peremptory instruction, or file a posttrial motion for a judgment
notwithstanding the verdict (JNOV). “In the absence of a renewal of the directed[-]verdict
[motion], a request for a peremptory instruction, or a motion for a [JNOV, an appellant] has
waived the sufficiency error on appeal.” Id. Consequently, Darnell is procedurally barred
from challenging the sufficiency of the evidence on appeal.
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II. Weight of the Evidence
¶14. Next, Darnell claims the jury’s verdict is contrary to the overwhelming weight of the
evidence. But Darnell did not file a motion for a new trial. As a result, Darnell is also
procedurally barred from challenging the weight of the evidence on appeal. See Price v.
State, 749 So. 2d 1188, 1199 (¶38) (Miss. Ct. App. 1999) (“The matter of evidentiary weight
is waived by the failure to move for a new trial.”).
III. Ineffective Assistance of Counsel
¶15. Darnell argues that his trial counsel was ineffective because he failed preserve the
issues regarding the sufficiency and weight of the evidence on appeal. The State suggests
that Darnell’s claim is premature, and it is better suited for a motion for post-conviction relief
(PCR). The State is correct that “generally, ineffective-assistance-of-counsel claims are more
appropriately brought during post-conviction proceedings.” Dartez v. State, 177 So. 3d 420,
422-23 (¶18) (Miss. 2015). As an appellate court, our review is limited to the record, which
may be inadequate to fully determine such claims. Id. at 423 (¶18). Under those
circumstances, “the appropriate procedure is to deny relief, preserving the defendant’s right
to argue the issue” in a PCR motion. Id. But an appellate court may “address an
ineffectiveness claim on direct appeal if the presented issues are based on facts fully apparent
from the record.” Id.
¶16. An appellant asserting ineffective assistance of counsel must demonstrate two
components:
First, the [appellant] must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was not
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functioning as the “counsel” guaranteed . . . by the Sixth Amendment. Second,
the [appellant] must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so serious as to
deprive the [appellant] of a fair trial, a trial whose result is reliable. Unless a[n
appellant] makes both showings, it cannot be said that the conviction . . .
resulted from a breakdown in the adversary process that renders the result
unreliable.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Stated more succinctly, an appellant
“must prove that his attorney’s performance was deficient, and that the deficiency was so
substantial as to deprive [him] of a fair trial.” Dartez, 177 So. 3d at 423 (¶19). An appellate
court examines “the totality of the circumstances to determine whether counsel’s efforts were
both deficient and prejudicial.” Id. “There is a strong but rebuttable presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. An
appellate court will find that counsel’s performance was deficient “[o]nly where it is
reasonably probable that, but for the attorney’s errors, the outcome would have been
different.” Id.
¶17. Essentially, Darnell argues that the circuit court would have granted a motion for
JNOV if only his trial counsel had filed such a motion. Alternatively, Darnell suggests that
the circuit court would have granted a new trial if his trial counsel would have filed a
posttrial motion challenging the weight of the evidence. The Mississippi Supreme Court has
reviewed such ineffective-assistance claims on direct appeal, and the record here is adequate
for us to review Darnell’s claims. In Holland, 656 So. 2d at 1198, the Mississippi Supreme
Court found that an attorney’s performance was deficient when the attorney failed to raise
posttrial challenges to the weight or sufficiency of the evidence. The attorney’s failure to
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raise such challenges was prejudicial to the defendant, because there was insufficient
evidence to support the jury’s verdict, and there was a reasonable probability that the trial
judge would have granted a motion for JNOV. Id. In Parker v. State, 30 So. 3d 1222, 1235
(¶49) (Miss. 2010), the supreme court also held that an attorney’s performance was deficient
for failing to raise similar post-trial motions. But based on the evidence presented at trial,
there was no indication that the outcome would have been different but for the attorney’s
deficient performance. Id.; see also Price, 749 So. 2d at 1199 (¶¶37-38).
¶18. Darnell was convicted of aggravated assault under Mississippi Code Annotated
section 97-3-7(2)(a)(ii) (Supp. 2015). The indictment charged Darnell with “unlawfully,
willfully, feloniously, purposely[,] and knowingly caus[ing] bodily injury to . . . Harris . . .
with a deadly weapon, to-wit: a pistol, by shooting . . . Harris with [the] pistol; without
authority of law[,] and not in necessary self[-]defense.” Assuming Darnell’s counsel had
filed a motion for JNOV, the circuit court would have viewed all credible evidence of guilty
in the light most favorable to the State. Stringer v. State, 131 So. 3d 1182, 1190 (¶32) (Miss.
2014). Viewed in that light, there was ample evidence of Darnell’s guilt.
¶19. Harris and other witnesses testified that he fell toward or in the direction of Stallings’s
car after Darnell shot him the first time, resulting in a superficial head wound. Numerous
witnesses said that Darnell was moving toward Harris while shooting at him, and Harris was
trying to get away from him. Although Jones later testified differently, the day after the
shooting she gave a statement and said that Darnell was still shooting at Harris while Harris
was trying to get into Stallings’s car. In the light most favorable to the State, there was
9
evidence that Harris was no longer a threat to Jones or Darnell when Darnell shot Harris a
second time. In Cooper v. State, 911 So. 2d 665, 672 (¶28) (Miss. Ct. App. 2005), this Court
upheld a manslaughter conviction where “testimony indicated that [the defendant] acted in
self-defense and defense of others, [but other] testimony also indicated that [he] acted
unreasonably.” Ultimately, “[m]atters regarding the weight and credibility to be accorded
the evidence are to be resolved by the jury.” Id. Thus, there is no reasonable probability that
the outcome would have been different even if Darnell’s trial counsel would have filed a
posttrial motion for JNOV. The same is true regarding a hypothetical motion for a new trial,
which would require viewing the evidence in the light most favorable to the verdict. See
Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). Because there is no reasonable
probability that the outcome would have been different, Darnell’s arguments under this
heading fail. Accordingly, we find no merit to this issue.
IV. Length of the Sentence
¶20. Finally, Darnell argues that his sentence is excessive. His argument is based on his
claim that he was acting in self-defense and/or defense of Jones, and Harris was the
aggressor. It is well established that “sentencing lies within the sole discretion of the trial
court and, generally, will not be disturbed on appeal ‘so long as it does not exceed the
maximum term allowed by statute.’” Mosley v. State, 104 So. 3d 839, 841 (¶10) (Miss. 2012)
(quoting Gibson v. State, 731 So. 2d 1087, 1097 (¶28) (Miss. 1998)). “However, a sentence
that is grossly disproportionate to the crime committed may be reviewed on Eighth
Amendment grounds.” Ford v. State, 975 So. 2d 859, 869 (¶39) (Miss. 2008).
10
¶21. The maximum sentence for aggravated assault is twenty years in the custody of the
MDOC. Miss. Code Ann. § 97-3-2(a). The circuit court sentenced Darnell to twenty years
with five years suspended, followed by five years of post-release supervision. Darnell’s
sentence does not exceed the statutory maximum. Furthermore, “[a]ggravated assault with
a deadly weapon is a serious, violent crime.” Ford, 975 So. 2d at 870 (¶40). A seventeen-
year sentence for aggravated assault “does not lead to an inference of ‘gross
disproportionality.’” Id. Likewise, Darnell’s sentence is not grossly disproportionate to his
crime. We find no merit to this issue.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY OF
CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIFTEEN YEARS TO SERVE AND FIVE YEARS
SUSPENDED, FOLLOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION,
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
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