         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2016-KA-00594-COA

FRED HILL, III                                                                APPELLANT

v.

STATE OF MISSISSIPPI                                                            APPELLEE

DATE OF JUDGMENT:                           02/17/2016
TRIAL JUDGE:                                HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:                  LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     M.A. BASS JR.
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JOSEPH SCOTT HEMLEBEN
DISTRICT ATTORNEY:                          DEE BATES
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 09/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

       LEE, C.J., FOR THE COURT:

                                PROCEDURAL HISTORY

¶1.    A jury in the Lincoln County Circuit Court convicted Fred Hill of first-degree murder,

shooting into a dwelling, and felon in possession of a firearm. Hill was sentenced to life

imprisonment for the murder conviction, and five years each for the other two convictions.

All three sentences were ordered to be served consecutively in the custody of the Mississippi

Department of Corrections, and Hill was ordered to pay an $8,000 fine and $6,000 restitution

to the Crime Victims’ Compensation Fund. Hill’s posttrial motions were denied, and he now

appeals, asserting the following issues: (1) the evidence was legally insufficient; (2) the jury
verdict is against the overwhelming weight of the evidence; and (3) the trial court erred in

denying his two motions to suppress.

                                           FACTS

¶2.    On April 1, 2015, around 11:30 p.m., Hill drove up to Ezzard and Gwendolyn

Campbell’s trailer located on Spur Road in Lincoln County. According to both Ezzard and

Gwendolyn, a car horn woke them up and, upon looking outside, they saw Hill standing

beside the car holding a rifle. Both Ezzard and Gwendolyn testified that Hill asked where

Timothy Green was, then said, “I’m going to kill him.” Green is Ezzard’s son and

Gwendolyn’s stepson.        Hill then got back in the car and drove home, which was

approximately 400 yards from the Campbells’ home. Ezzard testified that he followed Hill

home to determine why Hill was angry with Green. Ezzard said Hill told him that Green was

trying to steal Hill’s girlfriend, Keirra Magee.1 Ezzard then returned home. Ezzard heard

Hill return sometime later. Both Ezzard and Gwendolyn saw Hill run between their trailer

and their daughter’s trailer next door. They then heard two gunshots and saw Hill run back

to his car carrying a rifle. Green’s body was discovered in the area between the Campbells’

trailer and their daughter’s trailer.

¶3.    Green had two bullet wounds; one entered the upper-left chest area, and the other

entered the back of his left shoulder. Dr. Lisa Fuente, from the state medical examiner’s

office, performed an autopsy on Green and noted that either bullet wound could have resulted

in Green’s death.



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           By the time of Hill’s trial, he and Magee were married.

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¶4.    One of the Campbells’ neighbors, Jessica Matlock, had also seen Hill at the

Campbells’ trailer that night. Matlock, watching from a window in her trailer, saw Hill drive

up and exit the car. She saw him carrying a gun and a flashlight. Hill then walked toward

the Campbells’ trailer. Matlock testified that she heard two gunshots, then saw Hill running

back toward the car.

¶5.    Several members of the Lincoln County Sheriff’s Department responded to the scene,

including Deputy Patrick Hardy, Chief Deputy Johnny Hall, Investigator Damian Gatlin, and

Investigator Byron Catchings. Two .223-caliber shell casings were recovered from the area

near Green’s body, and a .223-caliber bullet was recovered from a bullet hole in the side of

the Campbells’ trailer. After Hill became a suspect and his house was searched, the police

found several .223-caliber shell casings in his house and in the yard. However, lab tests

could not determine if all of the .223-caliber shell casings recovered from both Hill’s house

and the crime scene had been fired from the same gun. The murder weapon was never found.

¶6.    Hill was first interviewed by Deputy Hall and Investigator Gatlin, and he denied

involvement in Green’s death. Deputy Hall testified that after he had walked Hill to the

booking area, Hill confessed to the crime, but recanted a few minutes later. Hill was also

interviewed by Investigator Catchings. Investigator Catchings, who recorded the interview

with Hill, testified that he was trying to determine if Magee was involved in Green’s murder.

Investigator Catchings stated that Hill said he shot Green, but Magee was not involved and

was not with Hill when he disposed of the gun. Investigator Catchings then spoke with

Magee, and she told him where Hill disposed of the gun. Hill also told Investigator



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Catchings where he threw away the gun. Investigator Catchings, another deputy, and Magee

then went to search for the gun, but it was never recovered.

¶7.    A gunshot-residue test was conducted on samples taken from Hill’s hands and the car

he was driving, which belonged to Magee. Particles indicative of gunshot residue were

found on the car’s steering wheel and door handle, but no gunshot residue was found on

Hill’s hands.

¶8.    Hill admitted that he drove to the Campbells’ house that night and honked the horn,

but did not exit the car or threaten to kill Green. Hill denied involvement in Green’s death.

Hill testified that he and Magee had gone to her mother’s house to avoid Green. According

to Hill, Green had tried to break into their house while Magee and their children were home.

Hill also testified that while he was in custody, the deputies threatened to arrest Magee for

Green’s murder. They also handcuffed Magee and led her past Hill while he was in a

holding area in order to provoke him into confessing to Green’s murder.

¶9.    According to Deputy Hall, Magee was in the booking area when Hill was in a holding

cell nearby. But Deputy Hall testified that Magee had not been arrested and was not in

handcuffs.

                                        DISCUSSION

       I.       Insufficient Evidence

¶10.   In his first issue, Hill argues that the evidence was legally insufficient; thus, the trial

court erred in denying his motion for a directed verdict, his request for a peremptory

instruction, and his motion for a judgment notwithstanding the verdict (JNOV).



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¶11.   “The standard of review for a denial of a directed verdict, peremptory instruction, and

a JNOV are identical.” Hawthorne v. State, 835 So. 2d 14, 21 (¶31) (Miss. 2003). All

challenge the legal sufficiency of the evidence. McClain v. State, 625 So. 2d 774, 778 (Miss.

1993). “[T]he relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss.

2005). “We review a challenge to the sufficiency of the evidence on the last occasion that

the trial court ruled on the sufficiency of the evidence.” Henley v. State, 136 So. 3d 413, 416

(¶8) (Miss. 2015). In this case, the last occasion on which the trial court ruled on the

sufficiency of the evidence was in its denial of Hill’s motion for a JNOV.

¶12.   Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2016) defines first-degree

murder as “[t]he killing of a human being without the authority of law by any means or in any

manner . . . when done with deliberate design to effect the death of the person killed, or of

any human being[.]” The State must prove beyond a reasonable doubt that: “(1) the

defendant killed the victim; (2) without authority of law; and (3) with deliberate design to

effect his death.” Brown v. State, 965 So. 2d 1023, 1030 (¶27) (Miss. 2007) (quotations

omitted). Mississippi Code Annotated section 97-37-29 (Rev. 2014) states: “If any person

shall willfully and unlawfully shoot or discharge any . . . firearm of any nature or description

into any dwelling house or any other building usually occupied by persons, whether actually

occupied or not, he shall be guilty of a felony whether or not anybody be injured . . . .”

¶13.   Hill claims that insufficient lighting in the area created reasonable doubt as to the



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shooter’s identity. However, there was testimony from Ezzard, Gwendolyn, and Matlock that

even though it was dark outside, several outdoor lights illuminated the area. Although no one

saw Hill shoot Green, these three witnesses saw Hill carrying a gun to the area where Green’s

body was found, heard two shots, and then saw Hill flee the area. Furthermore, both Ezzard

and Gwendolyn testified that Hill told them he was looking for Green and wanted to kill him.

Gwendolyn also heard a “ding” that she thought was a bullet hitting their trailer. And a

bullet was removed from a bullet hole in the side of the Campbells’ trailer.

¶14.   Hill claims that the Campbells’ testimony was biased due to their familial relationship

with Green. However, the jury determines the credibility of witnesses and resolves conflicts

in the evidence. Davis v. State, 866 So. 2d 1107, 1112 (¶17) (Miss. Ct. App. 2003). Here,

the jury found the Campbells’ testimony more credible. Viewing the evidence in the light

most favorable to the State, a rational juror could have found beyond a reasonable doubt that

Hill was guilty of murder and shooting into a dwelling.2 This issue is without merit.

       II.      Overwhelming Weight of the Evidence

¶15.   A motion for a new trial challenges the weight of the evidence. Hawthorne, 835 So.

2d at 21 (¶31). When reviewing a denial of a motion for a new trial, this Court “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, 895 So. 2d at 844 (¶18)

(citation omitted). Hill’s arguments are identical to those expressed in the previous issue.

From the evidence previously described, we cannot find that allowing the verdict to stand



       2
           Hill’s argument does not address his conviction for possession of a firearm.

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would sanction an unconscionable injustice. This issue is without merit.

       III.   Motions to Suppress

¶16.   Hill argues that the trial court erred in denying his motion to suppress statements he

made to the police and his motion to suppress evidence obtained from the search of Magee’s

car. “This Court will reverse a trial court’s denial of a motion to suppress only if the ruling

is manifest error or contrary to the overwhelming weight of evidence.” Barnes v. State, 158

So. 3d 1127, 1134 (¶22) (Miss. 2015) (emphasis omitted).

              A.     Statements to Police

¶17.   Hill claims that any incriminating statements he made to the police were coerced

because the police threatened to arrest Magee. During the suppression hearing, Deputy Hall

testified that at the formal interview Hill denied shooting Green. But while Hill was being

booked into the jail, Hill said Matlock (the Campbells’ neighbor) lured Green from the

woods and he then shot Green twice. Deputy Hall stated that he asked Hill where he

disposed of the gun, and Hill responded by denying involvement. On cross-examination,

Deputy Hall was asked whether he informed Hill that Magee would be arrested unless he

cooperated. Deputy Hall responded that he told Hill that Magee could in fact be arrested, but

not to coerce Hill into confessing. Deputy Hall stated that Magee was being questioned

about her role in Green’s murder, but it was determined that she was not a suspect. Deputy

Hall denied handcuffing Magee and marching her in front of Hill and stated that she was

never in the same area of the police station as Hill.

¶18.   Investigator Catchings testified he had information at the time indicating that Magee



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was in the car with Hill immediately after the shooting; thus, it was possible that Magee was

involved in Green’s murder. Investigator Catchings further stated that Hill’s incriminating

statements to him were voluntary and no threats or promises were made to coerce him into

confessing.

¶19.   Magee testified that she was handcuffed and walked past Hill. Once Hill saw Magee,

she heard him say, “no, no, you [are] not going to jail.” Magee further denied knowledge of

the gun’s location.

¶20.   In denying Hill’s motion to suppress, the trial court stated,

       I have no doubt that it was paramount in [Hill’s] mind that [Magee] . . . not be
       charged with anything. And there is some evidence that threats were made
       against [Magee] . . . that she may be charged with a crime. However, I haven’t
       heard any evidence that those threats were made objectively. I think that the
       threats perceived by [Hill] were just that, perceived by him. I find that [Hill]
       was properly Mirandized, that he waived his Miranda3 rights, and . . . whatever
       statement he gave, the Court finds was freely, voluntarily given, without
       coercions or threats or under duress. And that those statements will be
       admissible at a trial of this matter.

¶21.   The Mississippi Supreme Court has held that “[t]hreats to arrest a defendant’s family

member(s) do not render a confession involuntary so long as probable cause exists to arrest

such persons.” Armstead v. State, 978 So. 2d 642, 648 (¶26) (Miss. 2008). At the time Hill

was interviewed, the police had information that the car used in the crime was registered to

Magee, and Magee might have been in the car with Hill immediately after the shooting. We

find that the trial court did not manifestly err by holding, from the totality of the

circumstances, that any statements regarding Magee did not induce Hill’s incriminatory



       3
           Miranda v. Arizona, 384 U.S. 436 (1966).

                                              8
statements.

              B.     Search of Magee’s Car

¶22.   Hill argues that the police needed to produce the consent-to-search form or show that

exigent circumstances existed to search Magee’s car. Although Magee did not testify

regarding the consent-to-search issue, a stipulation was entered stating she would testify that

she did not consent to the search.

¶23.   Consent to search is recognized as an exception to the requirements of a warrant and

probable cause. Moore v. State, 933 So. 2d 910, 916 (¶18) (Miss. 2006). “Whether a person

voluntarily consents to a search is a question of fact to be determined by the total

circumstances.” Id. at (¶20) (internal quotation marks and citation omitted). “The proponent

of a motion to suppress has the burden of establishing that his own Fourth Amendment rights

were violated by the challenged search or seizure.” Rakas v. Illinois, 439 U.S. 128, 132 n.1

(1978); see also White v. State, 571 So. 2d 956, 958-59 (Miss. 1990).

¶24.   The State argues that Hill does not have standing to object since he did not own the

car. See Walker v. State, 962 So. 2d 39, 41 (¶7) (Miss. Ct. App. 2006) (a passenger who does

not own the car being searched cannot complain about the legality of the search); Head v.

State, 246 Miss. 203, 207, 136 So. 2d 619, 621 (1962) (“Since the defendants were not in

possession of the automobile, either in the control or ownership of the car, they have no right

to raise the constitutional question of [the] search.”). However, in Powell v. State, 824 So.

2d 661, 664-65 (¶15) (Miss. Ct. App. 2002), this Court found that a defendant did have a

reasonable expectation of privacy in his girlfriend’s car; thus, the defendant had standing to



                                              9
challenge the search of the car. There was evidence that: the car was the defendant’s

principal and usual mode of transportation; the defendant had the implicit right to exclude

others from using the car; and the defendant had a possessory interest in the car. Id.

¶25.   Although the trial court determined that Hill did have standing to object to the legality

of the search, we note that, unlike Powell, Hill did not offer any testimony showing that he

had a possessory interest in Magee’s car or that the car was his principal and usual mode of

transportation. Even if Hill had standing, the trial court found that, based on the totality of

the circumstances, the testimony of Investigator Catchings and Deputy Whitaker that Magee

consented to the search was credible. Investigator Catchings testified that Magee told him

that Hill was driving her car the night of April 1, 2015. Investigator Catchings then asked

Magee for permission to search her car, which Magee had driven to the police station.

Magee consented and the gunshot-residue test was conducted on samples taken from the car.

Investigator Catchings admitted that the consent-to-search form had been misplaced, but that

Magee had verbally consented to the search. Another sheriff’s deputy, John Whitaker,

testified that he was present when Magee verbally consented to the search and signed the

form. From the totality of the circumstances, we find the trial court did not err in denying

Hill’s motion to suppress.

¶26.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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