IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Nov :20: KA COA Pages: 26 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MARCUS SHELBY APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LAURA TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE ISSUES iii STATEMENT OF THE CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES ii

4 STATEMENT OF THE ISSUE ISSUE: Marcus Shelby s conviction was supported by the overwhelming weight of the evidence. iii

5 STATEMENT OF THE CASE On October 2, 2012, a Hinds County Grand Jury, First Judicial District, indicted Marcus Shelby, Marcellos Coleman and Janice Pittman for the murder and kidnaping of Duan Penn. C.P. 6. On December 17, 2013, Shelby was tried before a jury of his peers in Hinds County Circuit Court, the Honorable Jeff Weill, Circuit Judge, presiding. Shelby was convicted of depraved heart murder and found not guilty of kidnaping. Tr Shelby was sentenced as a habitual offender pursuant to Mississippi Code Annotated (1972, as amended). He was sentenced to life imprisonment without parole. Tr Aggrieved of his conviction, Shelby filed the instant appeal. C.P

6 STATEMENT OF THE FACTS Testimony of Clarence Gibson Officer Clarence Gibson testified that he was an officer with the Jackson Police Department and that on April 11, 2012, he was dispatched to Forest Avenue and Methodist Home Road to investigate a burning. Tr Gibson testified that when he arrived he observed the Jackson Fire Department on the scene putting out a fire. Tr Once they walked away from it, it began burning again. Tr Officer Gibson testified that he walked over and that he observed that there was a body burning. Tr The area was wooded and marshy. Tr Other officials were on the scene, including Detective Carlotta Bacon. Tr Officer Gibson created a crime log. Tr There were no suspects at that time. Tr Testimony of Delanio Sanders Delanio Sanders testified that he had been employed by the Jackson Police Department for ten years. Tr He testified that Duan Penn was his older brother. Tr During 2012, Sanders got a call from Penn s boss. Tr Sanders had not seen Penn for a week and it was very unlikely for his brother to miss work and not call or show up for a week. Tr Sanders went out looking for Duan Penn. Tr He went to the area where Penn lived and was known to be. Tr No one had seen Penn. Sanders investigation led him 512 Huron Street. Tr He informed the assistant chief that something had happened at 512 Huron Street than involved Penn. Tr Testimony of Officer Robert Bufkin Officer Bufkin testified that on April 11, 2012, he was a crime scene investigator for the Jackson Police Department. Tr On that day, he responded to a crime scene on Forest 2

7 Avenue. Tr Dispatch called Officer Bufkin and told him there was a burning body and that location and Officer Bufkin went to that location and photographed the area. Tr Photographs of the location, the partially burned body of Duan Penn, along with partially burned and intact pieces of tarp, duct tape and rope, as well as other evidence were admitted through the testimony of Officer Bufkin. Officer Bufkin testified that fragments of blue tarp material were found with the body. A piece of melted orange plastic was found in the ashes with the body. The plastic contained remnants of the blue tarp and burned rope or cord. Tr There was orange plastic as well as blue tarp under the body and a piece of rope of cord under the body. A piece of rope or cord was recovered from the victim s right leg. There were remnants of a blue tarp around the left leg of the victim. Bufkin also testified that the remnants of burned cloth, possibly a shirt were found around the victim s neck. The fire was within a 3 to 6 foot perimeter of the body. Tr The body was too badly burned to make a determination of the race of the victim while at the scene. Tr The head and face of the body had been duct taped. Tr Officer Bufkin testified that on May 18, 2012, responded to 512 Huron Street in respect to the case. Tr The crime scene unit was contacted by detectives who were serving a search warrant at that address. Tr Bufkin identified photographs of evidence obtained from the execution of that search warrant. Tr Bufkin testified that there was a single story dwelling on the north side of the street which was serviced by a driveway located on the east side of the house. Tr The driveway extended into the backyard area. Tr The backyard was enclosed by a cyclone fence. Tr The residence belonged to Marcellos Coleman. Tr In the back yard, detectives found blue tarp fragments. There was a boat in the back yard and from the boat they found a rope or cord that had been cut from the bow of the boat. There 3

8 was a burn pile in the driveway. The arson K-9 dog reacted positively to the handicapped ramp on the driveway side of the house and the burn pile in the driveway. Tr In executing the search warrant officers found a small strip of gray duct tape which was inside the south east room of the house. A roll of silver or gray duct tape was found in a shoe box in the kitchen. Tr Officers also recovered fragments of blue tarp from the burn pile. Tr Investigator Bufkin testified that he found a longer cut section of rope from the backyard year the rear door, fragments of blue tarp that were scattered around the yard and a silver or gray tarp found in the backyard. Tr It appeared the that boat in the back yard had been covered with a silver tarp and blue tarp at one time. Tr Some of the tarp recovered from the boat area had red stains on it. Tr Investigator Bukin testified that a loaded shotgun was found inside the house in the bedroom closet. Tr A search warrant was also executed on a red or maroon 1992 Mercury. Tr A red gasoline can was found in the trunk of the car. Tr Investigator Bufkin testified that he ran the tag and VIN numbers and determined that the vehicle was owned by a Thomas Bennett. Tr Testimony of Earnest Kendricks Kendricks testified that on April 11, 2012, he saw Marcellos Coleman and Marcus Shelby and others barbequing at Marcellos Coleman s house. Tr The barbeque happened that evening after it had gotten dark. Tr Kendricks testified that he was in the yard across the street from Coleman s house. Tr Duan Penn stopped and spoke to Kendricks. Tr Just before Kendricks left that night, Penn walked across the street to Coleman s house. Tr Kendricks testified that he did not see what happened to Duan Penn after Penn went to 4

9 Coleman s house. Tr However, he wrote in his statement to police, I know someone hit him. He testified that he saw a white girl jump over the fence, but that he could not tell where she hit Penn and that he could not see because of the bushes. Kendricks testified that he could hear people at Coleman s house getting loud. Tr Kendricks testified that Marcus Shelby and Marcellos Coleman were at Coleman s house when it appeared that someone hit Duan Penn. He testified that he saw Marcus Shelby beside the street. He testified that Janice Pitmann was also there. Hendricks testified that while Duan Penn was at Coleman s house, he heard Penn say that he did not know who broke into the house. Tr Hendricks testified that it looked like Coleman and the others were cooking ribs. Tr Hendricks testified that while he was in the yard across the street that Marcellos came over and shot down at Duan Penn. Tr Hendricks testified that he had known Duan Penn for four or five years. He had known Marcus Shelby a couple of years. Tr Hendricks testified that there were nine or ten people at the barbeque at Marcellos Coleman s house. Testimony of Detective Carlotta Taylor Detective Taylor testified that she was involved in the investigation of the death of Duan Penn. At about 1:00 a.m. on April 11, 2012, she received a phone call from dispatch regarding a burned body that was still afire. She responded to a grassy area at Methodist Home Road and Forest Avenue. Tr Once the fire was extinguished, she could she that it was the body of a person with a small frame. There was duct tape around the lower part of the face near the mouth area and there was duct tape at the top of the face around the eyes. There was a melted black sock on one foot and a piece of rope of the left side of the lower leg. The body was wrapped in a 5

10 blue tarp and there was a fragment of the rope under the body. There was also gray plastic that had melted on the body as well. She could not tell the race of the deceased person, but could tell that the body was male since the genital area was intact. Tr The area was grassy, wet and mushy. Tr The area was known as a dump site. Tr The items recovered from the scene were the body, duct tape, rope and tarp. Tr Detective Taylor continued to follow up on the deat investigation. The body was identified using dental records. The case began to come together when Duan Penn s brother came forward on May 1 st with a letter and information that his brother was missing. Tr Based on that information, Detective Taylore and other detectives went to Huron Street to look for witnesses, possibly Marcellos Coleman. They went to 512 Huron Street, but no one was home. They then went to 508 Huron and came in contact with three subjects. The subjects gave Detective Taylor permission to search the house. Then they were taken to police headquarters to be interviewed and questioned. Tr They were transported separately by police units and then interviewed at police headquarters. Tr Detective Taylor testified that she interviewed a codefendant named Janet Pittman. Det. Taylor testified that she learned that Pitmann was at 508 Huron and then went to 512 Huron where a beating, burning and torture of Duan Penn was taking place. She punched Duan Penn during the process. The other people who were involved were Marcus Shelby, Marcellos Colemen and some other unidentified black males. They carried the body to the rear of the residence. The initial beating took place in the front yard of 512 Huron Street. Detective Taylor testified that Detective Hodge looked over in the yard at 512 Huron while Detective Taylor was speaking with the three individuals at 508 Huron. He saw blue tarp 6

11 in the yard that was identical to the blue tarp in which the body had been wrapped. They immediately got a search warrant for 512 Huron and executed it. They went to 512 Huron with crime scene and arson investigators. Tr They recovered the blue tarp, including a blue tarp stuffed under a boat in the backyard and several fragments of blue tarp that were in the backyard alongside the house. They also found rope that appeared to be identical to the rope that was found at the other location with the body. Those items were collected. Tr They found a pile of debris where evidence was burned. There was also a burned spot in a grassy area in the front yard. Tr They recovered a shotgun that was taken into evidence. Tr Photo lineups were introduced into evidence through Detective Taylor. Detective Taylor testified that she asked Janice Pittman to identify the men in the lineups who were involved in Duan Penn s death. Tr She testified Pittman had identified Marcus Shelby and Marcellos Coleman in the lineups. Tr Janice Pittman had written on the pages that Marcus Shelby was standing around and was also hitting Duan Penn. Tr She had written that Moose (Marcellos Coleman) was beating the man Duan Penn and that Moose asked her (Janice Pittman) to get the gas. Tr Pittman identified Marcellos Coleman in a lineup as the man who told her to get the gas. Pittman knew Marcellos Coleman as Moose. Tr Detective Taylor testified that the beating of Duan Penn occurred in the front yard of 512 Huron Street, in a residential area. It was done in public display. Detective Taylor testified that people were reluctant to come forward and testify because they were afraid for their lives. Tr Through her investigation, Detective Taylor learned that Janice Pittman participated in the beating of Duan Penn. Tr She learned that Marcus Shelby and Marcellos Coleman were friends. Tr

12 Testimony of Janice Pittman follows: Janice Pittman testified that she was charged with murder. Tr Pittman testified as Okay. I was woke I was awakened one night. I m not quite sure exactly what the time would be, but I got woke up by somebody screaming telling somebody to shut the fuck up. I woke up. Didn t see anything when I looked out the window so I laid back down and I heard it again though this time my boyfriend and I went outside and stood on the porch and was looking around. Didn t see anybody until I looked over to the right side over to Moose s house.... And when I looked over at Moose s house, that s when I had seen four gentlemen stand up from I guess in the crouched position on the ground. And they had noticed my noticed my me standing at the porch. They were he was getting evidently he was being beaten and kicked around. I knew who he was. I didn t know at the time, but when I heard Moose holler, Tell the man that to tell him where his shit went, who he sold his shit to. I had looked at my boyfriend. I told him then I said, He s talking about D.P. I said, That s who was over there that they re beating up is D.P. I had well, I was confronted by one of the gentlemen that were there. I don t know what his name is. He was just a skinny guy. I was confronted by him stating that he they had just been informed that me and my daughter were had something to do with Moose s house being broke into. And I was trying in the process of telling the boy no, we hadn t anything to do with it. He hollered out he just told me he said, Don t you think you need to go confront this man? You re I m looking at y all breaking into Moose s house over there. Don t you think you need to get this shit straight? So I walked over there. And when I walked I had to walk around because the car was in the drive way and the truck was parked on the corner by a bush toward the as you almost in the driveway. And when I And when I went over there, I was I was standing like you know, I had got down as close to on my knees because I was standing I was right there at his head. And I had one of the guys that was he was kind of on my left side over here and then Shelby was on the right side. 8

13 Tr There were four men out there, including Marcus Shelby. One of the men who was present was a skinny guy. Moose was not a part of the process when Pittman was there. Tr Janice Pittman continued her testimony.... And that process I was standing there because he had like I said, they had just he had just come and confronted me about D.P. saying that I had involvement in breaking of the house. Well, I was down on my knees and I looked. I was I had asked I said, Man, why did you say that? Why did you lie? Me and my kids didn t have nothing to do with this. And the only thing he said to me well, the only thing he said was no. And then the gentleman behind me said, Well, that ain t what he just told us. And then so I took it upon myself and I just I was angry but I was also scared. And I punched him four times in around four times in his face. And when I I got up, that s when I when I got up and went to the driveway I mean to the corner street is where I noticed Moose because Moose had come around from the back side of from the back side of his truck and was telling showing me his cell phone, telling me that he said, I know you didn t have anything to do with breaking into my house. Here s all y all s text messages from when I was locked up. And then when he said that, just it was just knew it was over. I had just put myself in the wrong situation.... Tr I mean, I m living in a neighborhood this man, well, Moose had already taken a gun and shot at the man, and I m the only one that s out there besides my boyfriend and my daughter s girlfriend. And there was nobody else Pittman testified that Earnest Kendricks (Snake) was passed out in the front yard. Kendricks eventually came over to Pittman s house and sat on the porch. Tr Pittman 9

14 testified that she went home and that her boyfriend was standing on the porch. She told him that Moose had shown her the cell phone records to show that he knew that she didn t have anything to do with the breaking in of his house. Tr Pittman went inside the house and changed her shirt because she had gotten some blood on her shirt from when she had hit D.P. When she came back out on the porch, a big guy with dreadlocks who came up the street from Marcus Shelby s house was there. Tr She told him that she had blood on her shirt. The man asked Pittman to give him the shirt. She gave it to him and the man put Pittman s bloody shirt in the burn barrel. Tr Pittman stayed on her porch. Marcus Shelby and two other men were still kicking and cussing D.P. The skinny guy who had been beside Pittman when she hit D.P. went up the Street to Shelby s house and got in the car. Tr Marcus Shelby was still at Marcellos Coleman s (Moose) house. The skinny guy brought the car to the driveway. Moose backed up his Magnum backed to the burn barrel. The skinny guy backed in the other car in front of the Magnum. Tr He caught the driver s side door on some railroad ties along the driveway. It took him about 15 minutes to get the door to go back into place. Tr Pittman was still watching from her porch. Tr Kendricks (Snake) had left by this time. The skinny man fixed the door and popped the trunk to the car he had driven over. Tr The skinny man and Marcus Shelby both went to the backyard. Tr Pittman remained on the front porch with her boyfriend and her daughter s girlfriend. About twenty minutes later, the skinny guy and the big guy toted something wrapped in a tarp and put it in the trunk of the car. Tr The big guy called Pittman over and gave her a drink of his whiskey. Tr He told her, You put in your work, didn t you? Pittman started 10

15 crying. The skinny guy and Shelby got in the front of the car. Marcellos Coleman and the big guy got into the car in the back. About 20 minutes later, Coleman and the big guy came back in the Magnum. They called Pittman over to the car. Coleman told Pittman he needed some gas but that all he had was his credit card. Tr Pittman got a couple of dollars and a jug and went to the store and got a couple of dollars of gas in the jug. Tr As she came back to turn on Huron Street, someone flashed their lights at her. Tr Pittman came to a stop and saw that it was Coleman s car. Tr He was parked in front to Marcus Shelby s house. Coleman got out of his car. Pittman turned around and left because she had to pick up her daughter by 2:00. Pittman testified that Coleman and Shelby were having a barbecue that night in Coleman s yard. Tr She testified that the grill was going and there were just the four men there. Tr Pittman testified that when she initially went outside to see what was going on, Pittman was lying naked on the ground in front of a bush in Marcellos Coleman s front yard. Tr Pittman testified that she was afraid to go to the police because of what might happen to her and her kids. She was the only one who saw what they were doing and, if the police came around, they would know that she told what had happened. She testified that she was taking a risk by testifying at Shelby s trial. She testified that she saw Marcellos Coleman shoot at D.P., so she was afraid that she might be next. Tr The police came to Pittman s house on May 11, She was interviewed by the police and shown lineups. Tr Pittman testified that she was testifying at trial because it was the right thing to do. She testified that she had not made a deal with the State in exchange for her testimony. Tr Pittman testified that Marcus 11

16 Shelby was a participant in the beating and torturing of Duan Penn. Tr Testimony of Jacob Burchfield Jacob Burchfield testified that he was employed by the Mississippi Crime Laboratory and assigned to the trace evidence section which includes gunshot residue analysis, glass, fibers, hairs, fire debris analysis and infracture matching. Tr Burchfield testified that he examined rope samples and tarp material submitted from the crime scenes. The ropes taken from the two scenes had the same physical characteristics such as braid pattern, construction and design. Burchfield was unable to infracture match them due to the degradation, unraveling, charring and burning of the pieces of rope. Tr Burchfield testified that all of the pieces of the tarp from the two scenes matched as to characteristics such as design, construction and braid pattern. Tr Testimony of Dr. Mark LeVaughn, M.D. Dr. LeVaughn testified that he was employed by the Mississippi Department of Public Safety as the chief medical examiner at the medical examiner s office. Tr Dr. LeVaughn testified that he conducted the autopsy of the body of Duan Penn. Tr He identified that body by using dental records. Tr Penn s body was severely burned from head to toe. His skin was burned. There was only a remnant of clothing, a shirt, around his neck. There were two areas of duct tape encircling his head just above his eyes and the other portions was around the lower portion of his mouth. Penn s body had three different types of injuries, including blunt injury, strangulation-type injury and mechanical asphyxia. Tr The blunt injuries consisted of multiple impact-type injuries to the head and face. There 12

17 were cuts on the eyebrows. There was bruising under the scalp on both sides of the head and the back of the head. There were contusions of the lips and tongue. Inside the cranial cavity, there was hemorrhage of the brain. There were blunt injuries, impact injuries to the chest the right and left side of the chest. On the left side, there were two rib fractures. Tr The strangulation-type injuries consisted of bruising in the muscles around and behind the voice box. The mechanical asphyxia was evidence by the partially charred duct tape encircling the upper part of the head. The other portion of the duct tape was encircling the lower part of the face. The upper part of the tape was at his lower lip. However it appeared to have been around his mouth and nose because the tissue around his upper lip and the center of his nose was not burned. Tr Dr. LeVaughn testified that the blunt force injuries were consistent with being beaten. The injuries to Penn s body were consistent with being beaten multiple times by blunt objects. Tr Penn s left fourth and seventh ribs were broken and his sternum was fractured. Tr The sternum is a hard bone and is difficult to break. The injury was consistent with being stomped on. Tr Dr. LeVaughn testified that a strangulation-type injury occurs when someone grabs someone by the neck, usually from the front and there s squeezing pressure. The forces actually are to the sides and the back of the neck and throat. Penn s body had bruising of the tissue under the sking and around the voice box. Dr. LeVaughn opined that was because there was motion of Penn and his assailant. Tr Dr. LeVaughn testified that the compression of the neck can compress airways. Tr In the majority of cases, it compresses the blood vessels that go to and from the brain, which are on both sides of the neck, and are the carotid arteries and the 13

18 jugular veins. In the majority of cases, death is the result of the compression of the airway, which is mechanical asphyxiation, but both do occur. Tr Dr. LeVaughn testified that he believed that the duct tape was over the mouth and the nose at the time of the fire. Tr Dr. LeVaughn testified that while mechanical asphyxiation was a cause of death, all three categories of injuries contributed to Penn s death. Tr Each set of injuries alone could have resulted in Penn s death. However, since the three sets of potentially lethal injuries were all present together, Dr. LeVaughn declined to determine which had been the precise cause of Penn s death. Tr At the time of autopsy, Duan Penn was five feet and three inches tall and weighed 114 pounds. Tr Conclusion After all the testimony was concluded, the jury found Marcus Shelby guilty of depraved heart murder in Count I and not guilty of kidnaping in Count II. Tr

19 SUMMARY OF THE ARGUMENT Shelby argues that the verdict is against the overwhelming weight of the evidence. He contends that the State's case only consists of Janice Pittman s uncorroborated testimony. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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. Bush v. State, 895 So.2d 836, 844 (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id. Where an appellant challenges a jury verdict as being against the overwhelming weight of the evidence or the product of bias, prejudice or improper passion, reviewing courts will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee's favor. Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Ass'n, 560 So.2d 129, 131 (Miss.1989). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Herrington v. Spell, 692 So.2d 93, (Miss.1997). Ample evidence was presented at trial to prove that Marcus Shelby actively participated in the murder of Duan Penn and the sad, ineffective disposal of his body. Taking the evidence in the light most favorable to the verdict and giving the State the benefit of every permissible inference, the evidence in this case overwhelmingly supported Marcus Shelby s conviction for 15

20 depraved heart murder of Duan Penn. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. 16

21 ARGUMENT ISSUE: MARCUS SHELBY S CONVICTION WAS SUPPORTED BY THE OVERWHELMING WEIGHT OF THE EVIDENCE. Shelby argues that the verdict is against the overwhelming weight of the evidence. He contends that the State's case only consists of Janice Pittman s uncorroborated testimony. When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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. Bush v. State, 895 So.2d 836, 844 (Miss.2005). The evidence is weighed in the light most favorable to the verdict. Id. The power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Id. If the verdict is against the overwhelming weight of the evidence, the proper remedy is to grant a new trial. Id. Where an appellant challenges a jury verdict as being against the overwhelming weight of the evidence or the product of bias, prejudice or improper passion, reviewing courts will show great deference to the jury verdict by resolving all conflicts in the evidence and every permissible inference from the evidence in the appellee's favor. Bobby Kitchens, Inc. v. Mississippi Ins. Guar. Ass'n, 560 So.2d 129, 131 (Miss.1989). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal. Herrington v. Spell, 692 So.2d 93, (Miss.1997). Id. at Both Earnest Kendricks and Janice Pittman testified that on the night of April 11, 2012, 17

22 they saw Marcus Shelby barbequing at Marcellos Coleman s house. Kendricks observed from the yard across the street from Coleman s house. He saw the victim Duan Penn walk over to Coleman s house. Tr Kendricks wrote in his statement to police, I know someone hit him. Tr He saw a white woman go to Coleman s house and testified that the woman hit Penn. Kendricks testified that it got loud at Coleman s house. He saw Marcus Shelby and Janice Pittman at Coleman s house. He heard Duan Penn say that he did not know who broke into the house. Tr Hendricks testified that he saw Marcellos Coleman come over and shoot down at Duan Penn. Hendricks knew both Penn and Shelby. Detective Carlotta Taylor testified that after finding the partially burned body of Duan Penn, her investigation led her to Huron Street to look for witnesses, including Marcellos Coleman. Detective Taylor interviewed Coleman s neighbor, Janice Pittman. She stated that she showed Pittman a lineup and Pittman identified Marcus Shelby and Marcellos Coleman in the lineups. Pittman had noted on the lineup pages that Marcus Shelby was standing with the group around Penn and that he participated in hitting Penn. Pittman identified Coleman as having asked her to get some gas. Tr Coleman believed that Penn had broken into his house. Pittman was told that Penn had accused her and her children of robbing Coleman s house. Pittman, due to the fear of the men involved and out of anger at the accusation, participated in beating Penn. When she walked over to Coleman s house, she saw Penn lying naked on the ground beside a bush. She hit him four times. She got blood on her shirt when she hit him, and one of the four men in the group took her shirt to burn it. Coleman later told her that he knew that she had not participated in breaking into his house. Tr , 271. She saw Kendricks across the street that night. 18

23 Pittman testified that she watched from her porch as the men, including Marcus Shelby, loaded something wrapped in a tarp into one of their cars. The men left in two cars. Coleman came back a few minutes later, parked in front of Shelby s house, and had Pittman go to the store and purchase two dollars in gas for him. Pittman s body was found in a vacant, marshy area. He had been burned beyond recognition, but remnants of the tarp, rope and duct tape remained. He had been badly beaten and suffered multiple, deadly, blunt force injuries. He had been strangled and asphyxiated. His injuries were such that the coroner was unable to point to a single cause of death. The evidence established that Shelby was present when Duan Penn was beaten to death, that he participated in the beating, and that he participated in the disposal of Penn s body. The murder was particularly brutal. Any conflicts in testimony were an issue for the jury to resolve. Further, it is the function of the jury to determine the credibility of witnesses. In criminal cases generally, Mississippi appellate courts have repeatedly described of the role and function of the jury. Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983) [citations omitted]. Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. Id. They may believe or disbelieve, accept or reject the utterances of any witness. Id. No formula dictates the manner in which jurors resolve conflicting testimony into finding of fact sufficient to support their verdict. Id. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. Id. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. Id. It is enough that the conflicting 19

24 evidence presented a factual dispute for jury resolution. Id. In Bond v. State, 249 Miss. 352, 357, 162 So.2d 510, 512 (1964), this Mississippi Supreme Court stated: Bond at 512. It is the function of the jury to pass upon the credibility of the evidence. Scott v. State, 185 Miss. 454, 188 So Only two witnesses testified for the state as to what happened at the scene of the homicide, while many more testified for the defense. However, the strength or weakness of testimony is not measured by the number of witnesses. Spiers v. State, 231 Miss. 307, 94 So.2d 803. In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the state and part of that for the accused, and the credibility of such witnesses is not for the reviewing court, but only for the jury. Ivey v. State, 206 Miss. 734, 40 So.2d 609; Cobb v. State, 235 Miss. 57, 108 So.2d 719; Matthews v. State, 243 Miss. 568, 139 So.2d 386, 249 Miss. at 357, 162 So.2d at 512. Ample evidence was presented at trial to prove that Marcus Shelby actively participated in the murder of Duan Penn and the sad, ineffective disposal of his body. Taking the evidence in the light most favorable to the verdict and giving the State the benefit of every permissible inference, the evidence in this case overwhelmingly supported Marcus Shelby s conviction for depraved heart murder of Duan Penn. This issue is without merit and the jury s verdict and the rulings of the trial court should be affirmed. 20

25 CONCLUSION The assignments of error presented by the Appellant are without merit and the jury s verdict and the rulings of the trial court should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL STATE OF MISSISSIPPI BY: s/ Laura H. Tedder Laura H. Tedder, MSB # 9530 Special Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601)

26 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Jeff Weill, Sr. Circuit Court Judge Post Office Box Jackson, MS Honorable Robert Shuler Smith District Attorney Post Office Box Jackson, MS Benjamin A. Suber, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS This the 29 th day of November, s/laura Tedder LAURA TEDDER SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601)