        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-KA-01461-COA

ADRIAN MOORE A/K/A ADRIAN ORVILLE                                         APPELLANT
MOORE A/K/A ADRIAN O. MOORE

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                         07/25/2014
TRIAL JUDGE:                              HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: GEORGE T. HOLMES
                                              MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                        ANTHONY N. LAWRENCE III
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF COUNT I, MURDER, AND
                                          COUNT II, AGGRAVATED ASSAULT, AND
                                          SENTENCED TO LIFE IMPRISONMENT
                                          FOR COUNT I, AND TWENTY YEARS FOR
                                          COUNT II, WITH BOTH SENTENCES TO
                                          BE SERVED CONSECUTIVELY IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS
DISPOSITION:                              AFFIRMED - 03/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Adrian Moore was indicted on October 27, 2013, for Count I, murder, and Count II,

aggravated assault. After a jury trial, he was convicted in Jackson County Circuit Court on
both counts and sentenced to life imprisonment for Count I, and twenty years for Count II,

with the sentences to run consecutively in the custody of the Mississippi Department of

Corrections (MDOC). Moore’s post-trial motions were denied by the trial court, and he now

appeals. We find no error and affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On January 20, 2013, Alfred Durden and his brother, Hardy Parker, were leaving a

night club in the early morning hours. Crossing a vacant parking lot, Durden recognized

Moore standing in a wooded area nearby. Moore immediately started shooting at the two

men. The first shot narrowly missed Durden, hitting Parker, who was walking five feet

behind Durden. Parker fell to the ground. Durden, pretending to be shot, lay down on the

ground. Moore walked over and shot Parker in the head. Moore then stood over Durden,

and shot him in the back of the head. Fortunately, the bullet exited through Durden’s neck,

and he survived the shooting. Parker, however, died from his injuries.

¶3.    Moore left the scene, and Durden went to find assistance. He knocked on the door

of a nearby apartment, where his friend lived. Nathan Holmes, the friend’s brother, answered

the door. Holmes assisted Durden by calling 911. Holmes testified at trial that Durden told

him in a subsequent private conversation that Moore was the shooter. Officer Dale Gordon

testified that when he arrived and questioned Durden at the scene, Durden told him “Adrian”

had shot him.1

       1
         There was some confusion after the shooting regarding Moore’s last name. When
questioned at the scene, Durden told Officer Gordon that “Adrian Berry” shot him. Durden
said that although he knew Moore, he was not familiar with his last name. Officer Gordon,
however, knew to whom Durden was referring and confirmed with Durden that it was

                                             2
¶4.     Moore was arrested, and a search of his residence revealed several types of bullets and

a tan skull cap. Moore’s clothing was collected for DNA testing; blood found on his jeans

was a positive DNA match with a known sample of Parker’s blood.

¶5.     Moore was indicted for Count I, murder, and Count II, aggravated assault. A jury trial

was held on July 21-25, 2014. Although the jury was initially deadlocked, after further

deliberation, it reached a unanimous guilty verdict. Moore was convicted on both counts and

sentenced to life imprisonment for Count I and twenty years for Count II, with the sentences

to run consecutively in the custody of the MDOC.

¶6.     Moore filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the

alternative, a motion for a new trial. Moore also requested a hearing under Mississippi Rule

of Evidence 606, claiming the trial judge pressured the jurors to change their decision after

the jury indicated it was deadlocked. Moore subsequently filed an amended motion for a

JNOV, a motion to compel production of jury questionnaire responses, and a motion for

spoliation presumptions to apply due to intentional destruction of material evidence. A

hearing on the motions was held on September 3, 2014. Moore argued that the trial judge’s

reading of the Sharplin instruction put pressure on the jury to reach a unanimous verdict and

“scared the non-guilty jurors.”2 The trial court denied Moore’s motions on September 4,

2014.

                                        DISCUSSION



Moore.
        2
            See Sharplin v. State, 330 So. 2d 591 (Miss. 1976).

                                               3
       I.     Whether the trial court abused its discretion in denying the
              defense’s motion for a mistrial after the jury indicated it was
              deadlocked.

¶7.    At the close of arguments, the trial judge sent the jury out for deliberations at

approximately 11:45 a.m. Sometime before 3:45 p.m., the jury sent a note to the judge

indicating it was deadlocked. The jury was brought back into the courtroom, where the

following exchange took place:

       THE COURT:            I understand from the note that there is a division among
                             the jury. Listen very carefully to the question. I do not
                             want to know for conviction, not for conviction. I just
                             want to know the numerical break. Do you understand
                             the question?

       THE FOREMAN: Numerical; yes, sir, I do.

       THE COURT:            So tell me the numerical division, please.

       THE FOREMAN: 10 to 2. 10 guilty.

       THE COURT:            No. I don’t want to know anything other than the
                             numerical break, 10 to 2.

The judge then issued a Sharplin instruction to the jury, stating:

       The verdict of the jury must represent the considered judgment of each juror.
       In order to return a verdict in this case, it will be necessary that each juror
       agree thereto. In other words, all [twelve] jurors must agree on any verdict in
       this case. It is your duty as jurors to consult with one another and to deliberate
       in view of reaching an agreement, if you can do so without violence to your
       individual judgment. Each of you must decide the case for yourself, but do so
       only after an impartial consideration of the evidence and the instructions of
       law, and after consultation with your fellow jurors.

       In the course of your deliberations, do not hesitate to reexamine your own
       views and change your opinion if convinced that it is erroneous; but do not
       surrender your honest convictions as to the weight or effect of the evidence
       solely because of the opinion of your fellow jurors or for the mere purpose of


                                               4
       returning a verdict. I’m going to send you back to deliberate further.

Sometime prior to 6:11 p.m., the jury sent a second note to the trial judge, indicating it was

still deadlocked. The jury was brought back into the courtroom and the judge asked for the

numerical split. Again, it was noted that the split was 10 to 2, and the court asked the

following:

       THE COURT:            Do you believe further deliberation would help?

       THE FOREMAN: No, sir, I do not.

       THE COURT:            Do you believe that going home overnight and coming
                             back would help?

       THE FOREMAN: I don’t see where it could hurt.

The State agreed to release the jury for the evening, but defense counsel argued that it was

“clear that this is the jury’s sound honest judgment,” and he moved for a mistrial. The trial

judge questioned each juror if he/she thought it would help to adjourn for the night and come

back in the morning. All jurors indicated that it might help, so the court excused the jury for

the evening. The following day, after a couple of hours of further deliberation, the jury

returned a unanimous verdict of guilty.

¶8.    Moore contends that the trial court deprived him of a fair trial when it sent the jury

home, allowing them to finish deliberations the following morning. He claims that this

action “put pressure on the jurors to reach a verdict in the case,” and he requests that this

Court reverse his convictions and remand for a new trial, as the court abused its discretion

in denying defense counsel’s motion for a mistrial and “in pushing the jury to deliberate

further.”

                                              5
¶9.    We find nothing in the record to indicate that the trial court pressured or coerced the

jurors. Although the judge asked the foreman for the numerical division of the vote, a “trial

judge’s knowledge of the numerical division is not error; instead, an appellate court should

consider ‘the trial judge’s conduct and comments after he receives the division, that is,

whether the judge merely affords the jury additional time to deliberate or whether he attempts

to force a verdict by suggestive comments or coercive measures.’” Williams v. State, 40 So.

3d 630, 636 (¶22) (Miss. Ct. App. 2010) (quoting Sharplin, 330 So. 2d at 596). After

receiving the Sharplin instruction, the jury continued its deliberations until it reached a

unanimous verdict. There is no evidence that any statement from the trial judge coerced the

jury to return with a guilty verdict. In fact, when asking the jurors if they thought going

home would help, the judge reassured the jurors, “Nobody is trying to put you on the spot.”

We find no merit to Moore’s claim.

       II.    Whether the trial court erred in refusing to allow the defense to
              make a record regarding testimony the trial court ruled as
              inadmissible.

¶10.   Moore argues that on two occasions during the trial, the trial court erroneously

prevented him from making a record of testimony that the court had excluded. In the first

instance, during defense counsel’s questioning of Officer Darren Versiga regarding the

events of the murder, counsel referenced a prior incident involving Moore. In the motions

hearing prior to trial, the State had noted that there was “an issue regarding the manner in

which [Moore] was identified.” Moore had confessed to shooting Jackie Davis in 2010,

claiming it was self-defense and that Davis was trespassing on his property. When police



                                              6
questioned Durden, a victim in this case, he identified Moore as the shooter, telling police

that it was the same man who shot Davis.

¶11.   However, when defense counsel attempted to ask Officer Versiga if he was familiar

with the Davis case, the State objected, stating the facts of that case were not relevant, except

with respect to the fact that Moore admitted to shooting Davis. The court sustained the

objection. Out of the presence of the jury, defense counsel moved to allow the evidence, as

it could involve motive.

       [DEFENSE COUNSEL]: Your Honor, this witness interviewed the
                          defendant, he interviewed the victim. He was one
                          of the investigators involved in the Jackie Davis
                          case. . . . It remains an unresolved case. There
                          was evidence that was misplaced in that case, and
                          it very well could go to the motive – any kind of
                          motive or thing that touches on the character or
                          credibility of the witness goes into play. If this
                          witness is involved in the Jackie Davis case, and
                          there’s some kind of perceiving problem as to
                          whether or not justice has been circumvented, at
                          least in the mind of the witness, and that witness
                          collected evidence, that witness has given
                          opinions about the statement, both in direct and
                          on cross, and this is the same defendant in both
                          cases. If he feels, or if there’s a reasonable belief
                          that the witness could feel[,] that there is some
                          injustice in that case, and that maybe [Moore] got
                          away with something he shouldn’t have, then it
                          would go to the credibility of the witness and
                          affect him, and then that would make it relevant.

                                     ....

                                     But if this witness was the investigator on that
                                     case, if he was involved in the handling of the
                                     evidence, the evidence has now disappeared. . . If
                                     that loss of evidence somehow impacts the ability

                                               7
                                   of law enforcement to solve that case, . . . maybe
                                   they feel that there’s some kind of, in their minds,
                                   an injustice that exists, because of an unsolved
                                   case, or inability to solve the case[.] . . . . And
                                   maybe there’s a willingness or a desire to solve,
                                   or to put somebody in jail and keep somebody in
                                   jail who they may think got away with another
                                   case[.]

The trial court determined that since nothing had been ruled upon in the Davis case, he would

not allow any questioning regarding that issue. Defense counsel asked once more during

cross-examination “to go into that area that we talked about,” but the trial judge refused to

allow it.

¶12.    The second instance that Moore contends was reversible error occurred during the

cross-examination of Officer Kim Stevens. Defense counsel asked the trial court to allow

him to introduce evidence of a recording of Durden’s statement to police, and play it for

witness Stevens. The trial court allowed him to make a proffer outside the presence of the

jury.

        THE COURT:                 You said you wanted to make a proffer. Please
                                   make it. Let me know when you begin and when
                                   you end.

        [DEFENSE COUNSEL]: Yes, sir. Your Honor, with respect to the proffer,
                           one of the many CDs that we have, has
                           Investigator Versiga talking to – Your Honor,
                           instead of doing it this way, if I may, can I just
                           play the tape for the witness while she’s here?

        THE COURT:                 For what purpose?

        [DEFENSE COUNSEL]: I want to establish that in her presence of her
                           investigation, that Investigator Versiga was – that
                           both of them were at the bedside, and Investigator

                                             8
                                   Versiga says, we are not against you. Whatever
                                   happened in your past with respect to the police
                                   department and the police officers, regardless of
                                   anything that you were arrested for, whether I
                                   arrested you in the past, that does not matter now.
                                   Now, you are the witness in this case, and we
                                   want you to help us – we want you to help us
                                   solve the crime. Now, those are his words in her
                                   presence.

                                   And immediately prior to that, they made a point
                                   out of everything that came out of the mouth of
                                   the witness, especially Investigator Versiga, tried
                                   to tie it into [Moore]. If he said that [Eddie]
                                   Dupre had dope, he would make the point that,
                                   well, did he sell – is he a supplier to [Moore], or
                                   did [Moore] sell to him; or as far as the guys
                                   coming out to kill, did Dupre tell [Moore] to kill
                                   you, or did he tell you [sic] not to kill you? Was
                                   he a member of the gang? And he said [Moore]
                                   was going – he’s going to trial in a few days, and
                                   he’s going to get 20 years. And basically it was
                                   clear – unequivocally clear that Versiga wanted to
                                   convict [Moore].

       THE COURT:                  Did you just read that verbatim what Officer
                                   Versiga just said?    Is that what he said
                                   specifically?

       [DEFENSE COUNSEL]: The words I used are pretty – I mean, it may be a
                          –

       THE COURT:                  You’ve made your record. I’m going to excuse
                                   this lady.

       [DEFENSE COUNSEL]: Could I – I’d like to make the CD as an exhibit.

       THE COURT:                  You can make it for purposes of ID only.

       [DEFENSE COUNSEL]: Yes, sir. That’s what I wanted.

Thus, as in the first instance, defense counsel stated that his purpose was to show motive on

                                             9
the part of law enforcement to implicate Moore in the present crime. Although Moore

acknowledges that the trial court allowed defense counsel to make a proffer of the evidence

outside the jury’s presence, he claims it was error for the court not to allow defense counsel

to question Stevens regarding the recording.

¶13.    To support his claims of error, Moore cites Kidd v. State, 258 So. 2d 423, 428 (Miss.

1972), a case in which the Mississippi Supreme Court held:

        The failure of the trial judge to permit counsel for the appellant to make his
        record in this cause is a grievous error. Regardless of whether or not the
        testimony is irrelevant, immaterial and unnecessary, the defendant and the state
        have the sacred right of appeal to this Court. The corollary thereof is the right
        to make their respective records and no court should deny a litigant the right
        to make his record so that we will have before us all issues of fact as well as
        issues of law for review. This in itself is error sufficient to justify a reversal
        of this case. Hitt v. State, 217 Miss. 61, 63 So. 2d 665 (1955).

¶14.    Subsequently, in Priest v. State, 275 So. 2d 79, 82 (Miss. 1973), the supreme court

held:

        [T]he rule is that when a party would seek a reversal because of excluded
        testimony, he must either place the witness on the stand, ask the questions, and
        have the answers made of record, or else the witness must be presented, and
        there must be a specific statement of what the answers or testimony of the
        witness would be, if allowed, so that the court may see from the record itself
        whether the offered evidence would be material and of benefit to the merits of
        the case, and whether its exclusion was actually harmful and prejudicial to the
        offerer.

(Emphasis added) (quoting Martin v. Gill, 182 Miss. 810, 181 So. 849 (1938)). Counsel has

a right “to show in the record by appropriate means the nature and conduct of the excluded

testimony, and when the offer is properly made to preserve the record of such testimony and

that offer is refused, then it is reversible error.” Id. “The right to preserve testimony through



                                               10
an appropriate offer of proof is essential to insure justice and fairness.” Jones v. State, 306

So. 2d 57, 59 (Miss. 1975).

¶15.   However, none of these cases state that the trial court must allow the witness to testify

in order to preserve the record. Rather, the supreme court has held that when a trial court

does not permit counsel to present a witness’s testimony, he “must by some manner or means

cause the record to show precisely what he intended to prove by the witness.” Bell v. State,

443 So. 2d 16, 20 (Miss. 1983). In Pennington v. State, 437 So. 2d 37, 39 (Miss. 1983), the

supreme court concluded no reversible error had occurred because counsel was permitted to

state “the purpose of the evidence” he sought to introduce.

¶16.   The record indicates that the trial court afforded Moore an opportunity to make his

record. In the first instance, defense counsel was permitted to state what he thought his

questioning of Officer Versiga regarding the Davis case might demonstrate. In the second

instance, he stated what the recording would show. He was also allowed to enter the CD into

evidence for identification purposes. Accordingly, we find this issue is without merit.

¶17. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, MURDER, AND COUNT II, AGGRAVATED
ASSAULT, AND SENTENCE OF LIFE IMPRISONMENT FOR COUNT I, AND
TWENTY YEARS FOR COUNT II, WITH BOTH SENTENCES TO BE SERVED
CONSECUTIVELY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO JACKSON COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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