                        IN THE SUPREME COURT OF MISSISSIPPI

                                   NO. 2005-KA-01676-SCT

LORENZO ROBINSON a/k/a TYMOOCHIE

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                            08/03/2005
TRIAL JUDGE:                                 HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED:                   COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      ALLAN D. SHACKELFORD
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: W. GLENN WATTS
DISTRICT ATTORNEY:                           LAURENCE Y. MELLEN
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED -10/19/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED




       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This case comes to this Court on appeal from the Circuit Court of Coahoma County,

by Lorenzo Robinson.     Robinson seeks review of the trial court’s decision allowing testimony

by witness Norman Starks concerning Robinson’s alleged gang connection and the admission

of a prior inconsistent statement by witness Tiffany Marion, also concerning Robinson’s

alleged connection to gang activity.   Further, Robinson seeks review of the trial court’s denial

of his motion for judgment not withstanding the verdict or in the alternative a new trial,

asserting the verdict was against the overwhelming weight of the evidence.     We hold that the
circuit court did not abuse its discretion in denying Robinson’s motion for J.N.O.V. or a new

trial.

                            FACTS AND PROCEDURAL HISTORY

¶2.       This appeal arises from two separate shootings of the victim Andrew Hampton.

Robinson was indicted for aggravated assault of Hampton on June 3, 2003 following the initial

shooting of Hampton which occurred on October 2, 2002. This case was set to go to trial on

July 28, 2003.       However, on July 19, 2003, Hampton was shot and killed on Garfield Street

in Clarksdale. On November 30, 2004, Robinson was indicted by a grand jury for aggravated

assault and two counts of conspiracy to commit murder. Robinson was subsequently tried for

aggravated assault and conspiracy to commit the murder of Hampton and witness Peppie Deon

Wright.

¶3.       At trial, Wright testified that he saw defendant Robinson shoot Hampton in the buttocks

in the first shooting incident.   It was stipulated for the record that a bullet was removed from

Hampton’s buttocks during the autopsy.        Witness Michael Ingram testified that he was a

member of the “Mafia Insane Vice Lord Gang” (hereinafter referred to as “the Mafia gang”)

along with Robinson, Kenyon Evans and George Johnson.            Ingram testified that he witnessed

a conversation in which Robinson told Evans he was going to pay Hampton $5,000 to avoid

being tried for aggravated assault on July 18, 2003.     Ingram testified that Evans said “I’ll take

care of that,” to which Robinson responded “all right.” Ingram further testified that he agreed

to ride with Evans and Johnson, after some protest, to the crime scene where         Hampton was

murdered in the second shooting.       Ingram testified that he was behind a building at the crime

scene when he heard about thirteen shots. When he saw Hampton lying on the street, he ran


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home without returning to the car with the other members.      He further testified that Robinson

called him shortly after the shooting and told him “don’t run your mouth.” Evans also admitted

that he was a member of the Mafia gang along with Robinson and Ingram. Although he testified

that Robinson had not been in the Mafia gang for approximately the past four years. Evans also

testified that he shot and killed Hampton and plead guilty to Hampton’s murder and conspiracy

to commit murder.

¶4.      Sergeant Norman Starks, an investigator with the Clarksdale Police Department,

testified about his investigation of the initial shooting (aggravated assault) of Hampton. He

testified to interviewing Robinson, Evans and Johnson, as well as others associated with the

incident.   Based on these interviews and other evidence, he believed all men were members of

the Mafia gang, which had been in existence in Clarksdale for approximately eight years.

Starks testified that in addition to the information gained through interviewing these men and

others in the local community who knew them, he had observed the similar dress and manner

in which these men hung out together.     He testified that the Mafia gang had specific tattoos,

distinctive dress and hung out together in a certain area of town referred to as “Forty-Seven

Beat”.

¶5.      Witness Tiffany Marion, who was at the crime scene when Hampton was murdered,

testified that Robinson contacted her after the murder and told her to tell investigators that he

did not have anything to do with the shooting.       At trial, Marion testified that she had no

knowledge of whether Johnson, Evans and Robinson were in a gang.             However, the State

questioned her about a previous statement in which she said “the word on the street” was that

these men were all members of the Mafia gang.        She then testified, over defense’s objection,


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that she previously stated that these men were involved in gang activity.              Defense counsel

objected and requested a limiting instruction that the statement be considered for impeachment

purposes only, which was denied.

¶6.     The jury convicted Robinson of aggravated assault and conspiracy to murder Hampton.

Finding Robinson had previously been convicted and sentenced to terms of one year or more

in the custody of the Mississippi Department of Corrections (MDOC), the court sentenced

him to two life sentences as a habitual offender pursuant to Miss. Code Ann. Section 99- 19-

83.   Robinson’s motion for judgment not withstanding the verdict or a new trial was denied,

from which he appeals, presenting the following issues for review:

        I.      Whether the Trial Court Committed Error in Allowing Improper
                Testimony Concerning Defendant’s Alleged Connection to Gang Activity
                by State’s Witness Norman Starks.

        II.     Whether the Trial Court Committed Error in Allowing a Prior
                Inconsistent Statement to Be Admitted Without a Limiting Instruction
                When Said Statement Was Also Improper Hearsay Testimony by State’s
                Witness Tiffany Marion.

        III.    Whether the Trial Court Erred by Failing to Sustain the Defendant’s
                Motion for a New Trial as the Jury’s Verdict Was Against the
                Overwhelming Weight of the Evidence.

                                             ANALYSIS

¶7.     The Court has held “a trial judge enjoys a great deal of discretion as to the relevancy and

admissibility of evidence. Unless the judge abuses this discretion so as to be prejudicial to the

accused, the Court will not reverse this ruling." Turner v. State, 732 So. 2d 937, 946 (Miss.

1999). The standard of review in motions for a new trial is whether the circuit court abused

its discretion in failing to grant the motion. Dudley v. State, 719 So. 2d 180 (Miss. 1998).



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                                                   I.

¶8.     The first issue        Robinson asserts on appeal is that certain testimony regarding

Robinson’s connection to gang activity was inadmissible.           Robinson argues this testimony

given by the State’s witness, Sergeant Sparks, constituted hearsay and did not meet Mississippi

Rule of Evidence 602's requirement that Sparks have “personal knowledge” of the matter. The

State counters that Sergeant Sparks does indeed have personal knowledge of his testimony, in

that he interviewed alleged members of the Mafia gang, as well as observed their distinctive

dress, tattoos and behavior.

¶9.     Under M.R.E. 602, a witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that he has personal knowledge of the matter. Miss. R. Evid. 602.

Evidence to prove personal knowledge            need not consist of the testimony of the witness

himself. Hoops v. State, 681 So. 2d 521, 531 (Miss. 1996). As long as any evidence is

introduced to sufficiently prove the witness's personal knowledge, the witness may testify to

that matter. Id.   In Hoops, the Court found that “personal knowledge” could include evidence

used as a basis for inferring gang affiliation. Id. at 532.    There, a witness testified that at the

time of the shooting he had known defendant Hoops for a over a month and knew that Hoops

was a Blood. Id. at 531.          The witness testified that he was familiar with some of the people

who hung with the Bloods and the G's and knew that the "colors" of the Bloods was red and that

the "colors" of the G's was black. Id.      He testified that while at Hoops’s house, he saw Hoops

with a red bandana and scarf, which were worn to show affiliation with a particular gang. Id.

The Court found that his testimony was manifestly sufficient to indicate that the witness had

some personal knowledge of Hoops's involvement with the             Bloods. Id.   Sergeant Starks’s

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testimony, like the witness’s testimony in Hoops, sufficiently met the “personal knowledge”

requirement of M.R.E. 602 as he testified to knowledge he received through personal

interviews with the parties involved in the shooting incident and others in the local community,

as well as knowledge gained through his personal observations during his many years in law

enforcement.     Therefore, the trial court did not abuse its discretion in allowing this testimony.

                                                  II.

¶10.   Similarly, the second issue Robinson asserts on appeal is that he was entitled to a

limiting instruction with regard to the testimony of the State’s witness Marion.       After Marion

testified she knew nothing of Robinson’s involvement with a local gang, the State asked Marion

whether she had previously stated that she was familiar with Robinson’s gang connections.

Robinson argues Marion’s answer constituted a prior inconsistent statement and could be used

only for impeachment purposes; however, the trial judge denied a limiting instruction for this

purpose.       Robinson asserts that Marion’s           testimony as to Robinson’s gang relations

constituted hearsay and that the State improperly used this testimony as substantive evidence

in its closing argument when counsel for the State asked the jury, “Are you going to allow

somebody, Tymoochie [Robinson] and his, and his gang members to tell Clarksdale what to

do?”   Relying on Martindale v. Wilbanks, 744 So. 2d 252, 255 (Miss. 1999), Robinson

asserts that the use of Marion’s prior inconsistent statement as substantive evidence in the

State’s closing argument was reversible error.           However, the State argues that Marion’s

statements were not hearsay because she had knowledge of the gang activity as she was an

eyewitness to the murder of which Robinson is charged with conspiring to commit.            Further,

the State asserts it did not use impeachment evidence as substantive evidence in its closing


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argument.      Notwithstanding, the State argues its witnesses, who were purportedly gang

members, did not deny membership in the gang, therefore any errors under this issue constitute

harmless error.

¶11.    In Whitehurst v. State, 540 So. 2d 1319, 1324 (Miss. 1989), the Court found that it was

harmless error for the trial court to admit the results of blood tests on the deceased.       The

Court stated “assuming, without deciding, that this evidence was irrelevant, and therefore,

inadmissible pursuant to Mississippi Rules of Evidence 402, it is clear that error, if any, by the

trial judge in admitting this evidence did not affect a substantial right of Whitehurst. M.R.E.

103(a).” Id.      Similarly, the admission of Marion’s previous statement did not affect a

substantial right of Robinson to a fair trial as the record shows this statement was not the only

evidence of his gang involvement.       Evans and Ingram, who both admitted to being active

members on the Mafia gang, testified to Robinson’s affiliation with the gang.         Further, the

prosecution did not mention Marion’s testimony in its closing argument, therefore there was

no attempt by the prosecution to use impeachment evidence as substantive evidence during its

closing as argued by Robinson.      Therefore, even assuming this statement should have been

admitted for impeachment purposes only, the trial court’s error in denying the limiting

instruction was harmless.

                                               III.

¶12.    Finally, Robinson asserts on appeal that the trial court erred by failing to grant his

motion for a new trial because the jury’s verdict was not supported by the weight of the

evidence.   The State argues the record presents credible and substantial eye witness testimony

to support the jury’s verdict.   Specifically, the State argues based on testimony from Wright,


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who testified he saw Robinson shoot the victim (aggravated assault), as well as Ingram, who

testified he was present to hear Evans tell Robinson that he will “take care of that” (conspiracy

to commit murder), constitutes sufficient evidence in support of the trial court’s denial of

Robinson’s motion for a new trial.

¶13.    In an appeal of a denied motion for judgment notwithstanding the verdict, the

sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to

the State. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). The Court must accept as true

all evidence consistent with Robinson’s guilt, together with all favorable inferences that may

be reasonably drawn from the evidence, and disregard the evidence favorable to the defendant.

Id., Whitehurst, 540 So. 2d at 1327. If this evidence would support a verdict of guilty beyond

reasonable doubt, the trial court's denial of the motion must be affirmed. Id. Further, a motion

for a new trial should    not be granted except to prevent “an unconscionable injustice.” Jones

v. State, 635 So. 2d 884, 887 (Miss. 1994).

¶14.    The record shows that Wright testified to seeing Robinson shoot Hampton in the

buttocks on October 2, 2002, in Clarksdale and identified him in court as the shooter. A bullet

was removed from Hampton’s buttocks during the autopsy, which supports Wright’s

eyewitness account.      This account suffices as credible eyewitness evidence in support of

Robinson’s aggravated assault conviction.     Ingram testified that Robinson was a member of the

Mafia gang with no objection from defense counsel.        Ingram’s testimony described the details

of a conversation on July 18, 2003, in which Robinson told Evans he was going to pay Hampton

$5,000 to avoid being tried for the aggravated assault of Hampton, to which Evans responded

“I’ll take care of that.” Ingram further testified that Robinson said “all right”, which according

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to him indicated approval of Evans’s suggested actions.            Ingram also testified that he rode to

the crime scene with Evans and Johnson, where he heard approximately thirteen shots fired.

Ingram further testified that after Hampton’s murder, Robinson threatened him, “don’t run your

mouth.”     Marion testified as to seeing Evans shoot his weapon toward Hampton on July 19,

2003, which serves as credible eyewitness testimony to Hampton’s murder and corroborates

Ingram’s testimony regarding the agreement between Evans and Robinson to “take care” of

Robinson’s upcoming trial for the assault of Hampton.                 Together, this testimony supports

Robinson’s conviction for conspiracy to murder Hampton.

¶15.        As the Court stated in McClain, the evidence challenged by Robinson in this appeal

must be accepted as true with all reasonable inferences arising therefrom.                    Therefore,

accepting as true the evidence favorable to the verdict, we are not convinced that the verdict

is outweighed by the evidence or that the denial of Robinson’s motion for a new trial

constitutes “an unconscionable injustice.”        We find the trial court did not abuse its discretion

in denying Robinson’s motion for judgment notwithstanding the verdict or a new trial.

                                          CONCLUSION

¶16.      Based on the foregoing reasons, the circuit court’s judgment is affirmed.

¶17. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE OF LIFE IMPRISONMENT SHALL NOT
BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR
PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCE. COUNT II:
 CONVICTION OF CONSPIRACY TO COMMIT MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. SENTENCE OF LIFE IMPRISONMENT SHALL NOT
BE REDUCED OR SUSPENDED NOR SHALL THE APPELLANT BE ELIGIBLE FOR
PAROLE OR PROBATION DURING THE TERM OF SAID SENTENCE. THE
SENTENCE IM POSED IN COUNT II SHALL RUN CONSECUTIVE TO ANY AND ALL


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SENTENCES PREVIOUSLY        IM POSED   BY   THE   FEDERAL    OR   STATE
GOVERNMENT.

       WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. COBB,
P.J., NOT PARTICIPATING.




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