        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-KA-00833-COA

JABROSKI LLOYD A/K/A GUCCI                                                  APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          08/18/2015
TRIAL JUDGE:                               HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                 BOLIVAR COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    AZKI SHAH
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                         BRENDA FAY MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF AGGRAVATED ASSAULT
                                           AND SENTENCED TO FIFTEEN YEARS IN
                                           THE CUSTODY OF THE MISSISSIPPI
                                           DEPARTMENT OF CORRECTIONS, WITH
                                           FIVE YEARS SUSPENDED AND FIVE
                                           YEARS OF POST-RELEASE SUPERVISION
DISPOSITION:                               AFFIRMED - 03/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Following a jury trial, Jabroski Lloyd was convicted of aggravated assault and

sentenced to fifteen years in prison, with five years suspended, and five years’ post-release

supervision. Lloyd argues that the jury’s verdict was against the overwhelming weight of the

evidence. It was not, so we affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.    A Bolivar County grand jury indicted Lloyd for kidnapping Kendrick Cage, Keith

Thomas, and Patrick Adams (counts I, II, and III) and aggravated assault of Touman Reed

and Torian Johnson (counts IV and V). Just prior to trial, the State asked that counts II, III,

and V be dismissed because Thomas, Adams, and Johnson were not available to testify.

¶3.    Cage testified that on the night of March 9, 2013, he went to a party at a club in

Rosedale. Shortly after midnight on March 10, he left the club with his friends, Thomas and

Adams. They got into a blue car owned by Cage’s girlfriend. Cage was in the driver’s seat,

Thomas was in the front passenger’s seat, and Adams was in the backseat. Before Cage

could start the car, he heard gunshots, and Lloyd jumped into the backseat. Cage did not

know Lloyd, but Lloyd had a gun and ordered him to “drive.” As Cage drove through town,

he bumped a red car that was stopped at a stop sign. Cage started to stop, but Lloyd “had the

gun on [him] and . . . told [him] to keep going,” so he drove on. Thomas and Adams jumped

out of the car when it slowed to make a turn. After Cage turned onto Highway 1 South, he

saw the red car he had bumped in the rearview mirror. Lloyd then jumped into the front

passenger’s seat, leaned out the window, and fired at the red car. As the cars approached the

town of Beulah, Lloyd fired his gun again and ordered Cage to “keep on driving or he was

going to kill [Cage] like he did someone else.” Lloyd used his cell phone to call someone

to pick him up, and Cage eventually parked in the town of Benoit. Cage then fled the car and

ran into the woods, leaving the key in the ignition and Lloyd in the car. Cage remained in

the woods the rest of the night because he was afraid of Lloyd. In the morning, he went to

the Bolivar County Sheriff’s Department and spoke to Investigator Michael Williams.



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¶4.    Reed, an off-duty deputy sheriff, was driving the red car. His cousin, Johnson, was

with him. Reed followed the blue car when it left the scene of the collision, and he saw

Thomas and Adams jump out of the car a few blocks later. Reed continued to follow the

blue car onto Highway 1 South. He ended his pursuit after a passenger in the blue car leaned

out the window and fired a gun at his car twice. Reed was certain that a passenger in the car,

not its driver, fired at him. One of the two shots struck Reed’s car in the front bumper. Reed

then went back and found Adams, whom he knew, and Thomas.

¶5.    Investigator Williams interviewed Thomas, Adams, and Reed around 1:30 a.m. He

then obtained a warrant and arrested Lloyd at Lloyd’s grandmother’s house in Rosedale

around 3 a.m. Williams collected a gunshot residue kit from Lloyd, which he sent to the

Mississippi Crime Lab for analysis. Particles indicative of gunshot residue were found on

Lloyd’s left palm and the back of his left hand. Crime lab analyst Jacob Burchfield testified

that a test is considered “positive” if round particles of lead, barium, and antimony are

identified. If all three elements are present but the particles are not round, or if two elements

are present and the particles are round, the test is considered “indicative of gunshot residue.”

It is considered “indicative,” rather than “positive,” because studies have found that such

particles may reflect gunshot residue or exposure to brake pads or fireworks.

¶6.    At trial, Lloyd’s attorney, Azki Shah, attempted to impeach Cage with a letter that

Shah claimed to have received in the mail in August 2014. The letter was signed by Cage

and dated August 6, 2014. In all capital letters, it stated as follows:

                                                                           06 Aug 2014
       Dear, Mr. Shah

                                               3
                My name is Kendrick Cage. I am writing for you to visit me at the
       Bolivar County Correctional Facility in reguards to the false accusations made
       against Jabroski Lloyd. I was well aware of a past felonious charge that
       Jabroski Lloyd had. So I chose to make false allegations to the officers to
       avoid my own incarseration in regards to me accidentally ramming the back
       of Touman Reed’s car. This was the act that set things in motion with
       authorities. I gladly appreciate if you could visit me here at Bolivar to follow
       the proper protocol and procedures that need to be followed upon my behalf
       to let these charges dismissed against your client Mr. Jabroski Lloyd. I do not
       want to proceed with my false accusations as well as testimonial
       circumstances. I was never kidnaped nor threatened by Jabroski Lloyd.

                                                                 Respectfully submitted
              [signature]

(Misspellings and other errors in original).

¶7.    At trial, Cage testified that in September 2014 he was being held in the Bolivar

County Correctional Facility on a domestic violence charge, and a guard told him that his

lawyer was there to see him. He was then taken to meet with Shah, whom he had never met

before. Shah said, “Hey, Mr. Cage,” and asked him to sign the letter. Cage testified that he

signed the document without reading it because he thought that Shah was his lawyer and that

the document was related to his release on bond. According to Cage, he and Shah discussed

his domestic violence charge for five or six minutes, and then Shah left. Cage testified that

Shah never mentioned Lloyd or this case. Cage admitted that Shah never stated to him that

he was his lawyer. Rather, Cage thought that Shah was his lawyer because a guard told him

that. This was consistent with the facility’s visitor log, which showed that Shah visited Cage

on September 23, 2014, and wrote “client visit” as the purpose of his visit.1 At trial, Cage



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        The visitor log was attached to a pretrial motion in limine filed by the State but was
not offered or admitted into evidence at trial.

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admitted that he signed the letter; however, he unequivocally denied that he wrote the letter,

that its contents were true, or that he mailed it to Shah.2 He testified that he did not even

know what the letter meant by “testimonial circumstances” or “protocol.”

¶8.    The jury found Lloyd guilty of aggravated assault but could not reach a verdict on the

charge of kidnapping, so a mistrial was declared on that count. The court denied Lloyd’s

motion for judgment notwithstanding the verdict or a new trial and sentenced him to fifteen

years in prison, with five years suspended, and five years’ post-release supervision. Lloyd

filed a timely notice of appeal and argues that the jury’s verdict was against the

overwhelming weight of the evidence.

                                        DISCUSSION

¶9.    “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 (¶18) (Miss. 2005). We must

“view the evidence in the light most favorable to the verdict,” and we must affirm unless

“[t]he trial court . . . abuse[d] its discretion in denying a new trial[.]” Id. at 845 (¶19).

¶10.   Lloyd’s sole argument on appeal is that the verdict is against the overwhelming weight

of the evidence because Cage is a “liar” and was impeached by the letter he signed. We



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          Shah attempted to introduce what he represented to be the envelope in which he
received the letter. According to Shah, the envelope would show that the letter was mailed
to him from the facility. However, even assuming that the letter was mailed from the
facility, Lloyd was being held there too. The trial judge excluded the envelope, which was
not marked for identification or made a part of the record on appeal.

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disagree. Lloyd presented no evidence tending to prove his innocence after the State rested,

and the letter was used for impeachment only and was not admitted into evidence. Thus,

there was no substantive evidence of innocence to “weigh” against the evidence of Lloyd’s

guilt. See Moffett v. State, 456 So. 2d 714, 719 (Miss. 1984) (“The prior inconsistent

out-of-court statements made by one not a party may not be used as substantive evidence.”).

Accordingly, it cannot be said that the verdict is “contrary” to any evidence, much less

“contrary to the overwhelming weight of the evidence.”

¶11.   Moreover, even if it were clear that Cage had recanted at some stage, that alone would

not require a new trial. See Turner v. State, 771 So. 2d 973, 976 (¶9) (Miss. Ct. App. 2000)

(“Afficionados of television lawyer dramas may be under the impression that a new trial is

automatically required when the sole eyewitness to a crime recants condemning testimony.

Under Mississippi law, however, this is not so and for good reason.”). “[T]his Court will not

‘pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be

accepted as having been found worthy of belief.’” Jones v. State, 95 So. 3d 641, 647 (¶20)

(Miss. 2012) (quoting Massey v. State, 992 So. 2d 1161, 1163 (¶12) (Miss. 2008)). “When

a criminal case is tried to a jury, the members of the jury act as the finders of fact.” Brown

v. State, 764 So. 2d 463, 467 (¶9) (Miss. Ct. App. 2000). “They are charged to listen to the

evidence, observe the demeanor of the witnesses, and decide the issue of the credibility of

the witnesses and what weight to give to any particular piece of evidence.” Id. This is true

even with witnesses who have given prior inconsistent statements. Id. at (¶10).

¶12.   In this case, Cage testified unequivocally that Lloyd was the person who shot at



                                              6
Reed’s car. His testimony is sufficient to uphold the verdict regardless of any alleged prior

inconsistent statement. It is certainly sufficient here given the unanswered questions

surrounding the purported recantation and the suspicious circumstances under which it was

obtained. The verdict is not against the overwhelming weight of the evidence. Therefore,

the trial judge did not abuse his discretion in denying the motion for a new trial.

¶13. THE JUDGMENT OF THE BOLIVAR COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, OF CONVICTION OF AGGRAVATED ASSAULT AND
SENTENCE OF FIFTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH FIVE YEARS SUSPENDED AND FIVE
YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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