                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2008-KA-00946-SCT

KENNETH MOORE, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/15/2008
TRIAL JUDGE:                              HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   LATRICE WESTBROOKS
ATTORNEY FOR APPELLEE:                    OFFICE OF ATTORNEY GENERAL
                                          BY: STEPHANIE BRELAND WOOD .
DISTRICT ATTORNEY:                        JAMES H. POWELL, III
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 11/04/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE GRAVES, P.J., LAMAR AND KITCHENS, JJ.

      GRAVES, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Kenneth Moore, Jr., was convicted of murder in the Circuit Court of Holmes County

and sentenced to life imprisonment in the custody of the Mississippi Department of

Corrections (MDOC). The record does not indicate that Moore filed any post-trial motions,

but he subsequently filed this appeal. We find that the issues raised by Moore are without

merit and that his conviction should be affirmed.

                                         FACTS
¶2.       On the night of August 19, 2007, Moore, Cordarius McChriston and numerous others

gathered at a nightclub in Holmes County called Club Greasy. During the night, some minor

verbal exchanges occurred between Moore and McChriston. The exchanges later escalated

into a brief, physical fight outside the club, during which McChriston apparently got the best

of Moore. Moore’s brother, Latravis Skinner, broke up the fight and walked Moore a

distance away from the area to try to calm him down. Junior Williams, who was the owner

of Club Greasy, Corey Johnson, and some others accompanied the pair and attempted to calm

Moore. After several minutes, Moore indicated that he was going to retrieve his baseball cap

from the ground near where the fight occurred. Instead, Moore approached McChriston and

started shooting at him. McChriston, who had been struck by a bullet to the chest, ran away

as Moore gave chase and continued firing more shots. McChriston jumped a fence and ran

to a neighboring club called the Safe House, where he collapsed. McChriston died from his

injury.

¶3.       After a jury trial in the Circuit Court of Holmes County, Moore was convicted of

murder and sentenced to life imprisonment in the custody of the MDOC. The record in this

matter does not indicate that any post-trial motions were filed. Moore then filed this appeal.

                                           ANALYSIS

I. Whether the trial court erred when it failed to grant defendant’s motion for
continuance.

¶4.       Moore asserts that the trial court abused its discretion in failing to grant the motion

for continuance he requested on the date of trial. The State asserts that Moore is procedurally




                                                 2
barred from raising this issue because it was not raised in a motion for new trial.

Alternatively, the State asserts that this issue is without merit. The State is correct.

¶5.    In Metcalf v. State, 629 So. 2d 558 (Miss. 1993), this Court said:

       On a motion for a new trial, certain errors must be brought to the attention of
       the trial judge so that he may have an opportunity to pass upon their validity
       before this Court is called upon to review them. Weyen v. Weyen, 165 Miss.
       257, 139 So. 608 (1932). For example, the denial of a continuance in the trial
       court is not reviewable unless the party whose motion for continuance was
       denied makes a motion for a new trial on this ground.

Metcalf, 620 So. 2d at 561-62.

¶6.    The record does not indicate that Moore ever filed a motion for new trial. Therefore,

this issue is procedurally barred. Notwithstanding the procedural bar, Moore’s assertion is

without merit. In Conway v. State, 915 So. 2d 521 (Miss. 2005), Conway’s attorney filed

a motion for continuance five days before trial on the grounds that he was unprepared for

trial. This Court has said:

              A circuit court judge has wide discretion in deciding whether to grant
       a continuance, and the denial of a motion for continuance will not be reversed
       absent a showing of substantial prejudice or manifest injustice. Simmons v.
       State, 805 So. 2d 452, 484 (¶ 72) (Miss. 2002). The moving party bears the
       burden of establishing prejudice. Wilson v. State, 755 So. 2d 2, 5 (¶ 11) (Miss.
       Ct. App. 1999). Conway offers no proof that his attorney at trial was
       unprepared or that he was prejudiced from his attorney’s lack of preparation.
       This issue is without merit.

Conway, 915 So. 2d at 525.

¶7.    In the instant case, Moore’s attorney moved for a continuance on the date of trial,

saying that she was not prepared because she had been busy with other cases. The trial court

denied the motion, noting that counsel had known of the trial setting for some four months.

On appeal, Moore’s counsel asserts that the trial court erred in not granting the continuance

                                               3
because the State had not yet propounded discovery. Specifically, counsel is referring to

audiotapes of statements. The record shows that counsel was provided copies of the tapes

and the accompanying transcript, but that the tapes were blank. However, counsel was not

certain that the tapes were blank until she attempted to listen to the tapes enroute to the

courthouse on the date of trial. Further, counsel did not notify the District Attorney’s office

of the problem until the date of trial. Moreover, the trial court recessed the proceeding so

counsel could listen to the tape in question, Moore’s statement, which was approximately

fifteen minutes in length, and compare it to the previously provided transcript. Finally,

counsel was given an opportunity to cross-examine Holmes County Sheriff’s Deputy Chief

Roosevelt March regarding the content of the tape and the accompanying transcript.

¶8.    We find that Moore has failed to establish that the trial court abused its discretion in

denying the motion for continuance. Further, Moore has failed to establish any showing of

substantial prejudice.

II. Whether the trial court erred when it allowed a prejudicial photograph to be
admitted for identification purposes when the defendant did not contest identification
of the deceased.

¶9.    Moore asserts that the trial court abused its discretion in allowing an autopsy

photograph of McChriston to be admitted for identification purposes.

¶10.   In Noe v. State, 616 So. 2d 298 (Miss. 1993), this Court said:

               It is well settled in this state that the admission of photographs is a
       matter left to the sound discretion of the trial judge and that his decision
       favoring admissibility will not be disturbed absent a clear abuse of that judicial
       discretion. . . . “A review of our case law indicates that the discretion of the
       trial judge runs toward almost unlimited admissibility regardless of the
       gruesomeness, repetitiveness, and the extenuation of probative value.” . . .
       A photograph, even if gruesome, grisly, unpleasant, or even inflammatory,

                                               4
       may still be admissible if it has probative value and its introduction into
       evidence serves a meaningful evidentiary purpose.

Id. at 303 (citations omitted). Further, this Court has said that photographs have an

evidentiary purpose “when they: (1) ‘aid in describing the circumstances of the killing; (2)

describe the location of the body and cause of death; (3) supplement or clarify witness

testimony.’” Jordan v. State, 995 So. 2d 94, 110 (Miss. 2008).

¶11.   In the instant case, the photograph depicts the head and neck area of McChriston and

is neither gruesome nor inflammatory.       Further, the photograph was introduced for

identification purposes during the testimony of Dr. Steven Hayne. Accordingly, we find that

this issue is without merit.

III. Whether a mistrial should have been declared in light of juror misconduct.

¶12.   Moore asserts that the trial court should have sua sponte granted a mistrial because

juror Sarah Wade was related to potential witness Dewan McGee and had traveled to the

courthouse with him. Moore asserts that Wade did not acknowledge this during voir dire.

However, Moore’s assertion mischaracterizes what occurred. During voir dire by the State,

the following exchange occurred:

       Q.    Dewan Magee, who lives on Wade Road? Anybody know Mr. Magee?
       Mr. Newman? Okay, Mr. Newman and Ms. Wade. Anything about, Ms.
       Wade, anything about your knowledge of Mr. Magee, if he was called as a
       witness, you could not be fair and impartial?
       A.    No.

¶13.   Wade was never asked whether she was related to Magee. Further, Moore’s counsel

did not follow up on Wade’s response during the State’s voir dire that she knew Magee.

More importantly, Moore’s counsel did not object to Wade being seated on the jury. During



                                             5
the State’s case-in-chief, Moore’s counsel then provided the trial court information that Wade

and Magee had ridden to court together because Magee did not have transportation. The trial

court then held a conference with Wade in which Wade reiterated that nobody had asked if

she was related to Magee, but that she had informed the State that she knew him. Wade also

explicitly stated that she had never discussed the case with Magee. Moore’s counsel later

informed the trial court that she had heard through a relative of Moore that Wade and another

juror knew McChriston’s family. The trial court ultimately removed Wade because of the

possible appearance of impropriety of her riding with Magee. Moore’s counsel did not move

for a mistrial on this ground.

¶14.   In Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 418-19 (Miss. 1993), this

Court said:

              Once an allegation of juror misconduct arises, then the next step is to
       consider whether an investigation is warranted. In order for the duty to
       investigate to arise, the party contending there is misconduct must make an
       adequate showing to overcome the presumption in this state of jury
       impartiality. Juror polling shall only be permitted by an attorney, outside the
       supervision of the court, upon written request.
              At the very minimum, it must be shown that there is sufficient evidence
       to conclude that good cause exists to believe that there was in fact an improper
       outside influence or extraneous prejudicial information.

Gladney v. Clarksdale Beverage Co., 625 So. 2d 407, 418-19 (Miss. 1993). Further, the

“Uniform Rules of Circuit and County Court Practice, Rule 3.12 allows the judge to declare

a mistrial only when the harm done would render the defendant without hope of receiving

a fair trial.” Reed v. State, 764 So. 2d 511, 513 (Miss. 2000) (quoting Roundtree v. State,

568 So. 2d 1173, 1178 (Miss. 1990)).




                                              6
¶15.   Moore’s counsel failed to inquire during voir dire into Wade’s relationship with

Magee. Moore’s counsel failed to object to Wade being seated on the jury. Moore’s counsel

failed to inform the trial court of any relationship between Wade and Magee until the trial

had already begun. Moore’s counsel failed to move for a mistrial. The trial court thoroughly

investigated the allegations and found that there had been no inappropriate communication.

The trial court removed Wade prior to any deliberations to avoid the appearance of any

impropriety. Further, Magee indicated he did not know anything about the case, and he did

not testify. Moore has failed to establish that good cause exists to believe that improper

outside influence occurred or prejudicial information was exchanged. Accordingly, we find

that this issue is without merit.

IV. Whether the trial court erred in allowing speculative testimony.

¶16.   Moore asserts that, during the testimony of Skinner, Moore’s brother, that speculative

testimony was elicited regarding the body weight of McChriston. Moore cites two cases,

Edmonds v. State, 955 So. 2d 787 (Miss. 2007),1 and Balouch v. State, 938 So. 2d 253

(Miss. 2006). However, Edmonds involved speculative testimony of an expert witness.

Edmonds, 955 So. 2d at 791. In Balouch, the Court found that the assignment of error

involving speculative testimony was without merit and that there was no need for discussion.

Balouch, 938 So. 2d at 260. Further, in the instant case, the testimony complained of was

merely an attempt to find out whether Skinner knew if Moore was larger or smaller in

physical size than McChriston. We find that this issue is without merit.



       1
         Appellate counsel for Moore provided an incorrect citation for this case. We supply the
correct citation.

                                               7
V. Whether the evidence supports a verdict of manslaughter rather than murder.

¶17.   Moore asserts that the evidence was insufficient to support a verdict of murder.

Specifically, Moore asserts that the evidence showed that the killing was done in the heat of

passion, thereby mitigating the killing to manslaughter. The State asserts that Moore is

procedurally barred from challenging the sufficiency of the evidence because he did not

renew his motion for directed verdict at the close of his case in chief. The State also asserts

that Moore did not present a peremptory instruction to the trial court or file a motion for

judgment notwithstanding the verdict.

¶18.   This Court, in Wright v. State, 540 So. 2d 1, 3 (Miss. 1989), said:

              In Harris v. State, 413 So.2d 1016, 1018 (Miss.1982), we held:

              It is elemental that after a motion for directed verdict is
              overruled at the conclusion of the State's evidence, and the
              appellant proceeds to introduce evidence in his own behalf, the
              point is waived. In order to preserve it, the appellant must renew
              his motion for a directed verdict at the conclusion of all the
              evidence. Ross v. State, 234 Miss. 309, 106 So. 2d 56 (1958);
              Fields v. State, 293 So. 2d 430 (Miss.1974). Also see State v.
              Russell, 358 So. 2d 409, 413 (Miss.1978).

               The appellants waived error, if any, in the court's refusal to grant them
       a directed verdict at the close of the State's case-in-chief when they proceeded
       to present evidence in their behalf. Because they did not renew this motion by
       way of a motion for a directed verdict at the conclusion of the evidence or via
       a motion for a peremptory instruction, any objection they may have had to the
       sufficiency of the evidence is waived. Harris v. State, 413 So. 2d 1016, 1018
       (Miss.1982).

Wright v. State, 540 So. 2d 1, 3 (Miss. 1989). See also Turner v. State, 721 So. 2d 642, 647

(Miss. 1998); and Green v. State, 631 So. 2d 167, 171 (Miss. 1994).




                                              8
¶19.   Moore did move for a directed verdict at the close of the State’s case-in-chief.

However, Moore did not renew this motion at the conclusion of all of the evidence.

Therefore, any objection Moore has to the sufficiency of the evidence has been waived.

Notwithstanding that Moore is procedurally barred from objecting to the sufficiency of the

evidence, we find that this issue is without merit.

¶20.   The jury received a manslaughter instruction. Moore agreed to the use of the State’s

manslaughter instruction, S-2, because the proposed defense instruction did not include the

elements of manslaughter. The State’s instruction said, in relevant part:

               Therefore, if you should find the State has failed to prove all of the
       essential elements of Murder beyond a reasonable doubt, you will then proceed
       with your deliberations to decide whether the State has proved beyond a
       reasonable doubt all of the essential elements of the lesser crime of
       Manslaughter.
               If you find from the evidence in this Cause, beyond a reasonable doubt,
       that the Defendant, KENNETH MOORE, JR., on or about August 19, 2007,
       in Holmes County, Mississippi, did willfully, unlawfully, feloniously and
       without authority of law, kill Cordarius McChriston, without malice, in the
       heat of passion, by the use of a deadly weapon, then you shall find the
       Defendant guilty of Manslaughter.
               If the State has failed to prove any essential element of the lesser
       included offense of Manslaughter beyond a reasonable doubt, you shall find
       the Defendant, KENNETH MOORE, JR., not guilty.

¶21.   The trial court also granted an amended heat-of-passion instruction offered by the

defense, which said:

              The term heat of passion is defined as a state of violent and
       uncontrollable rage engendered by a blow or certain other provocation given,
       which will reduce a homicide from the grade of murder to that of
       manslaughter. Passion or anger suddenly aroused at the time by some
       immediate and reasonable provocation, by words or acts of one at the time.
       The term includes an emotional state of mind characterized by anger, rage,
       hatred, furious resentment or terror.



                                              9
¶22.   The jury found the defendant guilty of murder, pursuant to instruction S-1, which said:

              Kenneth Moore, Jr., has been charged in the indictment with the offense
       of murder. If you find from all the evidence in this case beyond a reasonable
       doubt that:
       1.     Kenneth Moore, Jr. on or about August 19, 2007, in Holmes County
              Mississippi;
       2.     did wilfully, unlawfully, feloniously and without authority of law;
       3.     kill and murder Cordarius McChriston, a human being;
       4.     with malice aforethought or the deliberate design to kill said Cordarius
              McChriston;
       5.     by shooting him with a gun;
       then, you shall find the defendant, Kenneth Moore, Jr., guilty of murder as
       charged in the indictment.
              If the state has failed to prove any one or more of the above listed
       elements beyond a reasonable doubt, then you shall find the defendant,
       Kenneth Moore, Jr., not guilty of murder.

¶23.   As summarized by the Court of Appeals:

              When presented with a claim that the evidence is insufficient to sustain
       a conviction, we review the record in “a light most favorable to the State.”
       Robinson v. State, 940 So. 2d 235, 239-40 (¶ 13) (Miss. 2006) (citing
       McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)). This Court “must accept
       as true all evidence consistent with [the defendant's] guilt, together with all
       favorable inferences that may be reasonably drawn from the evidence, and
       disregard the evidence favorable to the defendant.” Id. at 240 (¶ 13). If the
       evidence is “of such quality and weight that, ‘having in mind the beyond a
       reasonable doubt burden of proof standard, reasonable fair-minded [persons]
       in the exercise of impartial judgment might reach different conclusions on
       every element of the offense,’ the evidence will be deemed to have been
       sufficient.” Bush v. State, 895 So. 2d 836, 843 (¶ 16) (Miss. 2005) (quoting
       Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).

Fair v. State, 25 So. 3d 380, 382-83 (Miss. Ct. App. 2009).

¶24.   Murder is “(1) The killing of a human being without the authority of law by any

means” or “(a) When 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. 2006). Manslaughter is

“[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or

                                             10
unusual manner, or by the use of a dangerous weapon, without authority of law, and not in

necessary self-defense . . . .” Miss. Code Ann. § 97-3-35 (Rev. 2006).

¶25.    Moore asserts that the evidence shows he killed McChriston in the heat of passion,

mitigating the killing to manslaughter. Moore’s assertion is not supported by the record in

this matter. Witnesses for both the State and the prosecution testified consistently as to what

occurred on the night in question. Witnesses testified that the fight lasted only a couple of

minutes. Although there was testimony, as mentioned above, that Moore was losing the

fight, the only evidence of injury sustained by Moore was a scrape on his elbow and a bloody

nose.

¶26.    Junior Williams, the owner of Club Greasy, specifically said:

        Q.    And tell us what you saw when you got outside the club?
        A.    There was a group of guys standing down there at the end of the
              driveway.
        Q.    What were they doing?
        A.    They wasn’t doing nothing right then. By the time I got to them, they
              went to fighting.
        ...
        Q.    And how long did this fight last?
        A.    Probably about three minutes, if that long.

Williams also testified that Moore previously had been told that he was not to be at the club.

¶27.    Moore’s brother, Latravis Skinner, broke up the fight, and McChriston and Moore

separated, with McChriston walking back toward the building and Moore walking toward

the end of the driveway. Williams, Skinner, Corey Johnson, and some others talked to

Moore and attempted to calm him down. Williams testified as follows:

        Q.    [Prosecutor] Tell me what you said to [Moore].
        A.    I said, “Man, the police are coming now, and you just go and we’ll
              forget all of this.” He was like, “All right. I’m through with it.” He


                                              11
              walked down and broke to the right and went back up there and went
              to shooting.

Williams further testified:

       Q.     Okay. Well, let me ask you this: When the fight was broken up, was
              there any indication that it would continue at some point?
       A.     After we talked to them, I thought it was through with.

¶28.   Gregory Malone testified that, after the fight, Moore stayed down the road talking to

Skinner and the others for approximately fifteen to twenty minutes before he returned and

shot McChriston. Jennifer Grant testified, in relevant part:

       Q.     Okay. And while you were at this club, did you have an occasion to see
              anything that you thought was unusual?
       A.     Yes.
       Q.     Tell us what it was.
       A.     They had an altercation like a fight was going on between Kenny
              Moore and [McChriston], and once the fight and everything was over
              with, people tried to talk to Kenny Moore.
       Q.     Who did you see try to talk to Kenny Moore.
       A.     Corey Johnson and Jamario Johnson and his brother, Travis Skinner.
       Q.     And how do you know they were trying to talk to Kenny Moore?
       A.     Because they had broke them up, and they took him to the side.
       Q.     Okay. And after they – well, did, in fact, you saw them together?
       A.     Yes.
       Q.     All right. Did it appear that they did talk to him?
       A.     Yes.
       Q.     Okay. Without telling us what they said, what happened after that
              conversation with him?
       A.     Well, after they got through talking to him, he walked back. I thought
              he was like going back to his car or something to sit down.
       Q.     Okay, now, who is this “he” you’re talking about?
       A.     Kenny Moore.
       Q.     Okay.
       A.     So he just pulled out a gun and shot.

Grant further testified:

       Q.     Okay. What happened after that?



                                            12
       A.     [McChriston] ran and jumped off the fence, and he shot at him again.
              He fell, and he shot him again. So [McChriston] ran into the Safe
              House, and Kenny Moore ran behind him. But he stayed on the Greasy
              side and ran down behind him.

¶29.   Marilyn Skinner testified that she walked outside the club and saw Moore and

McChriston fighting. She said:

              And they was fighting, so it was by my truck. So I said, “Get off my
       GD truck.” But they still fighting. They got back, you know, they moved
       back from my truck, and then they were just still fighting, and along, and
       Travis [Skinner] came, which is Kenny Moore’s brother, and said, “That’s
       enough,” picked him up by the arm, and they walked towards the end of the
       road. I don’t know how far they went, but that’s what I saw.

Marilyn Skinner further testified:

       Q.     Okay. Did you see Kenny come back at some time?
       A.     Yes, I did.
       Q.     What happened when he came back?
       A.     I was standing next to the front door of my car, and Lucious, as they
              called him, his nickname, and he was standing right beside me, and he
              said, “They usually say Kenny Moore carries a gun.” So when he said
              that –
       Q.     Do you know Lucious’ real name?
       A.     James Griffin, I think.
       Q.     Okay.
       A.     And when he said that, I looked around, I seen Kenny Moore coming
              back up with his right arm up like this right here with a gun in his hand,
              and I took off running from the front of my truck, and I ran into my
              sister, and we hit the ground.

¶30.   Jermaine Young testified that he had seen a “little argument” between Moore and

McChriston. Young also testified:

               After they started arguing, they started fighting. After they got through
       fighting, Kenny Moore’s brother comes out of the club and picked him up and
       tell him to leave him alone, that it was over with. It was like three or four
       more other guys telling them to leave it alone, so like five or ten minutes later,
       he come back up and start shooting [McChriston].



                                              13
Young further testified that, after shooting and chasing McChriston, Moore sat on a car in

the parking lot of the Safe House, as McChriston lay dying at the door of the Safe House.

¶31.   Corey Johnson testified that Moore said he was going to retrieve his hat after the fight

and that was when Moore shot McChriston.

¶32.   This Court previously has said: “Whether a homicide is classified as a murder or

manslaughter is ordinarily an inquiry to be made by the jury.” Hodge v. State, 823 So. 2d

1162 (Miss. 2002). In the instant case, the jury was instructed on both manslaughter and

murder. The jury considered the evidence and concluded that Moore committed murder.

That conclusion is supported by the record in this case. Therefore, this issue is without merit.

                                       CONCLUSION

¶33.   We find that no reversible error was committed by the trial court, and that the

evidence supports the verdict of guilty. Therefore, Moore’s judgment of conviction and

sentence of life imprisonment in the custody of the Mississippi Department of Corrections

is affirmed.

¶34. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISIONMENT
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

    WALLER, C.J., CARLSON, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




                                              14
