Case Number: 2017-KA-00205-COA

Judge: Kenneth Griffis

Court: COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON

Defendant's Attorney: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN A. SUBER
GEORGE T. HOLMES

Description: Sanders first argues the evidence is insufficient to support his convictions. “A motion
for [a JNOV] implicates the sufficiency of the evidence.” Lenoir v. State, 224 So. 3d 85, 90
(¶18) (Miss. 2017). When reviewing a case for sufficiency of the evidence, “[t]his Court
considers each element of the offense and reviews all of the evidence in the light most
favorable to the verdict.” Id. “[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. at 90-91 (¶18) (internal quotation mark omitted). “[We] may
reverse only when, with respect to one or more of the elements of the offense charged, the
evidence so considered is such that reasonable and fair-minded jurors could only find the
accused not guilty.” Id. at 91 (¶18) (internal quotation mark omitted). “Thus, if any rational
trier of fact could have found each and every one of the elements of the crime beyond a
reasonable doubt, when viewing the evidence in the light most favorable to the prosecution,
the verdict must stand.” Id.
a. First-degree Murder
¶4. Sanders was convicted of the first-degree murder of Timothy Butler. First-degree
murder is defined as “[t]he killing of a human being without the authority of law by any
means or in any manner . . . [w]hen done with deliberate design to effect the death of the
person killed, or of any human being.” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2017).
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¶5. Sanders claims “the State failed to prove that [his] actions . . . cause[d] [Butler’s]
death.” However, the trial testimony shows that two people, Andrew Barnes and Kevin
Brown, witnessed Sanders shoot and kill Butler. Barnes testified that he heard multiple
gunshots and saw Sanders shoot Butler. According to Barnes, prior to the shooting, Butler
was outside of Sanders’s house, leaning against a car, facing Sanders and talking to him.
Barnes explained that Butler put his hands up defensively to shield himself from the bullets,
but “was steady going down.” Additionally, Brown testified that he heard multiple gunshots
and saw Butler “scrambling for his life . . . trying to get away from [Sanders].” However,
according to Brown, “[Sanders] was pursuing [Butler], [trying] to kill him.” Brown testified
that even as Sanders jogged away, Sanders continued to look at Butler as if “to make sure
[Butler] wasn’t moving.”
¶6. Dr. John Davis, a forensic pathologist and deputy chief medical examiner, confirmed
that Butler’s death was caused by multiple gunshot wounds. Dr. Davis opined that Butler’s
death was a homicide. Specifically, Dr. Davis testified that Butler received two gunshot
wounds to his head, one to the left side and one to the back of his head. Additionally, there
was a gunshot wound to Butler’s left chest that proceeded upward into his neck and severed
his spinal cord, and a “more superficial gunshot wound involving his left index and thick
finger and thumb.”
¶7. Dr. Davis’s testimony that one of the bullets entered through the back of Butler’s head
supports the testimony of Barnes and Brown that Butler was trying to get away from Sanders.
Also, Dr. Davis’s testimony regarding Butler’s superficial gunshot wound to his fingers is
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consistent with the testimony that Butler acted defensively in response to the gunshots. Thus,
the testimonies of Barnes, Brown, and Dr. Davis support a finding that Sanders did
unlawfully kill and murder Butler in the first degree.
¶8. Sanders asserts Brown’s testimony conflicts with the testimony of Olga Bell.
Specifically, Sanders asserts, “[t]he fact that the State’s witness . . . Bell testified that there
was no one at the body of the victim when she arrived does not corroborate . . . Brown’s
testimony that he went to the body after hearing the gunshots.” Sanders argues “[t]his
conflicting testimony . . . weakens the sufficiency of the State’s argument as to what actually
happened during the incident, resulting in . . . a reasonable doubt that [Sanders] did in fact
fatally wound [Butler].” We disagree.
¶9. Bell testified that on the night of the shooting, she and her brother were at her parents’
house when she heard three to four gunshots. Bell and her brother went outside and saw
Sanders standing in the yard. They subsequently proceeded to check on Butler, who was
lying in the street near Sanders’s house. Bell, who is in the medical field, checked Butler’s
pulse and realized he was dead. Bell explained that, at that time, she and her brother were
the only ones at the scene with Butler’s body. However, Bell saw Brown walking up towards
them, crying. Bell stated Brown was walking from an area where Barnes’s mother lives.
¶10. Brown testified that after the shooting, he went to help Butler, but got scared and ran
to Barnes’s mother’s house. However, shortly thereafter, Brown returned to the scene.
Brown recalled seeing Bell and her brother, but could not “recall whether it was when [he]
returned or before [he] left that [he] saw them.” Thus, despite Sanders’s assertion, Bell’s and
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Brown’s testimonies do not appear to conflict. Regardless, any “[c]onflicts in the evidence
are for the jury to resolve.” Williams v. State, 64 So. 3d 1029, 1033 (¶13) (Miss. Ct. App.
2011).
¶11. Sanders further asserts Brown’s testimony is inconsistent with the testimony of Dr.
Davis. Specifically, Sanders claims Brown’s testimony that Sanders was “close” to Butler
at the time of the shooting conflicts with Dr. Davis’s testimony that Butler’s injuries “were
indeterminate range or distant range gunshot wounds.” However, it is undisputed that Butler
died from multiple gunshot wounds. Brown testified that after the shooting began, Butler
tried to get away from Sanders. Indeed, one of Butler’s gunshot wounds was to the back of
his head. Thus, the record shows that Sanders’s proximity to Butler at the time each shot was
fired varied. Nevertheless, the alleged conflicting testimony was considered and resolved
by the jury. Thus, Sanders’s claim fails.
¶12. Considering the evidence in the light most favorable to the State, we find sufficient
evidence exists to support Sanders’s conviction of first-degree murder. Thus, the circuit
court properly denied Sanders’s motion for a JNOV on this issue.
b. Possession of a Firearm by a Convicted Felon
¶13. “In order to prove the crime of possession of a firearm by a convicted felon, the State
must simply prove two things: (1) the defendant was in possession of a firearm, and (2) the
defendant had been convicted of a felony crime.” Cooley v. State, 14 So. 3d 63, 66 (¶13)
(Miss. Ct. App. 2008). Here, the record shows Sanders had been convicted of a felony crime,
specifically, the distribution of a controlled substance. The record further shows both Barnes
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and Brown saw Sanders shoot Butler. Moreover, Johnnie Young testified that shortly after
the shooting, he saw Sanders carrying a black revolver.
¶14. According to Young, Sanders approached him and asked for his cell phone. Young
stated he gave Sanders his cell phone because Sanders was holding a gun. Sanders claims
Young’s testimony is insufficient to establish the element of possession since Young had
consumed alcohol prior to observing Sanders with a revolver.
¶15. Young testified that he, along with his cousin, Bell’s brother, and Sanders rode around
earlier that morning and drank beer, but split up “before 12:00 [noon].” Although Young
admitted to drinking one, twenty-four ounce Budweiser earlier in the day, the shooting
occurred that night around 9:00 p.m. Thus, it is unlikely that alcohol consumed prior to noon
would have affected Young’s memory and judgment that night. Nevertheless, “[i]t is the role
of the jury to evaluate the veracity of [the] witnesses.” Montana v. State, 822 So. 2d 954,
965 (¶51) (Miss. 2002). The jury heard testimony from three men who saw Sanders with a
gun. It was the jury’s province to determine the credibility of those witnesses and to resolve
any conflicts in the evidence. Id.
¶16. We find sufficient evidence exists to support Sanders’s conviction of possession of
a firearm by a convicted felon. As such, we do not find the circuit court erred in denying the
motion for a JNOV.
II. Ineffective Assistance of Counsel
¶17. Sanders further argues he received ineffective assistance of counsel. Sanders asserts
his trial counsel failed to comply with Uniform Circuit Court Rule 9.04, which caused his
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expert witness’s testimony to be excluded. According to Sanders, his expert witness was
going to testify that he did not kill Butler and did not stand over Butler and shoot him.
Sanders claims that had his expert witness been permitted to testify, such testimony would
have established reasonable doubt such that a jury would not have convicted him.
¶18. To prove ineffective assistance of counsel, Sanders must show: (1) his counsel’s
performance was deficient, and (2) the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). “We look at the totality of the
circumstances to determine whether counsel’s [performance was] both deficient and
prejudicial.” Dartez v. State, 177 So. 3d 420, 423 (¶19) (Miss. 2015). “[A] presumption
exists that an attorney’s performance falls within the wide range of reasonable professional
assistance and that the decisions made by trial counsel are strategic.” Braggs v. State, 121
So. 3d 269, 273 (¶11) (Miss. Ct. App. 2013). “Only where it is reasonably probable that, but
for the attorney’s errors, the outcome would have been different, will we find that counsel’s
performance was deficient.” Dartez, 177 So. 3d at 423 (¶19).
¶19. “[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought
during post-conviction proceedings.” Bell v. State, 202 So. 3d 1239, 1242 (¶12) (Miss. Ct.
App. 2016). This Court may address “ineffective-assistance-of-counsel claims on direct
appeal only where (1) the record affirmatively shows ineffectiveness of constitutional
dimensions, or (2) the parties stipulate that the record is adequate and the Court determines
that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not
needed.” Id.
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¶20. The record does not affirmatively show ineffectiveness of constitutional dimensions.
Additionally, there is no stipulation by the parties that the record is adequate to address this
claim. In fact, the State asserts that “this issue would best be reviewed in a motion for post
conviction relief rather than on direct appeal.” Thus, we are unable to adequately and
properly address Sanders’s ineffective-assistance-of-counsel claim on direct appeal. We
therefore deny this issue without prejudice to afford Sanders the option to pursue his claim
in a post-conviction proceeding. See Williams v. State, 228 So. 3d 949, 952-53 (¶14) (Miss.
Ct. App. 2017) (“[Appellant]’s ineffective-assistance-of-counsel claim is more appropriately
brought during postconviction proceedings, and we therefore deny relief without prejudice
as to [his] right to pursue this claim during postconviction proceedings.”).

Outcome: We find sufficient evidence to support Sanders’s convictions of first-degree murder and possession of a firearm by a convicted felon. Sanders’s ineffective-assistance-of-counsel claim is denied without prejudice. The judgment of the Pike County Circuit Court is affirmed.

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