                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2018-KA-01220-SCT

MARQUIS JUMARLO STEVENSON a/k/a
MARQUIS STEVENSON a/k/a MARLO

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:           05/17/2018
TRIAL JUDGE:                HON. LINDA F. COLEMAN
TRIAL COURT ATTORNEYS:      HELEN BAGWELL KELLY
                            ROSHARWIN LEMOYNE WILLIAMS
                            KENNETH RYAN WALKER
COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT      OFFICE OF STATE PUBLIC DEFENDER
                            BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:          BRENDA FAY MITCHELL
NATURE OF THE CASE:         CRIMINAL - FELONY
DISPOSITION:                AFFIRMED - 10/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE KING, P.J., COLEMAN AND BEAM, JJ.

       KING, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Marquis Stevenson was convicted of first-degree murder and possession of a firearm

by a convicted felon for shooting Marvion Leflore in the chest. On appeal, Stevenson argues

that his convictions are contrary to the weight of the evidence and that his trial counsel

rendered ineffective assistance of counsel. Because Stevenson’s convictions are not contrary

to the weight of the evidence, this Court affirms his convictions. Further, because the record
is insufficient to determine whether ineffective assistance of counsel was rendered, this Court

dismisses his ineffective-assistance-of-counsel claim without prejudice.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On December 13, 2014, Leflore was raking leaves outside his grandparents’ house,

where he lived. That evening, he was shot. He perished from his wounds shortly afterwards.

¶3.    Scorpio Hammond was visiting with Leflore while he raked and witnessed a small

silver SUV drive down the street. It drove past Leflore’s house and then turned around. The

driver called Leflore to come close to the automobile, and Leflore complied. The driver then

shot Leflore. Leflore told Hammond that “Marlo” shot him.1 Hammond testified that he saw

Marlo driving, and witnessed him reach over and shoot Leflore. Hammond twice identified

Stevenson in photograph lineups as the shooter, in July 2015 and November 2016. At trial,

however, Hammond testified that he did not see Marlo in the courtroom. Hammond further

testified that he did not personally know Marlo.

¶4.    Larry Jenkins, Leflore’s grandfather, testified that he ran outside after his daughter

heard something and that he saw Leflore lying in the street. He did not go near Leflore, but

he witnessed his daughter Tammy Leflore (Leflore’s mother) with Leflore. He saw the two

of them talking, but he did not hear what was said.

¶5.    Tammy Leflore testified that Leflore was outside raking leaves on December 13,

2014, and that Hammond was outside with Leflore. Tammy was inside the house. She heard

a gunshot and ran outside. She saw Leflore lying in the street and she ran to him. She

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       Hammond stated that Leflore’s approximate words were “this bitch ass nigga Marlo
shot me.”

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testified that Leflore told her, “Bitch ass Marlo shot me.” Tammy testified that Marlo and

Leflore had previous problems with one another. Tammy stated that, several months before

the shooting, her daughter called her and told her that Marlo had Tammy’s niece in his car

and refused to let her out. When Marlo and her niece pulled up to her house, Tammy went

to the car and demanded that Marlo let her niece out of it, and Marlo refused. When Tammy

attempted to reach inside the car to turn the car off, Marlo grabbed her by her hand. Leflore

witnessed Marlo place his hands on Tammy and Leflore then pulled Tammy back and hit

Marlo, while verbally admonishing him for placing his hands on Tammy. She testified

without objection from defense counsel that

       that’s why at the time Marlo was trying to reach down and grab a gun from
       right there off the side of the seat. And Marvion was like are you trying to
       shoot me? And he just kept trying to grab it, so Marvion was just hitting him.
       But the other time, my son had snatched Natalie out of the car and he drove
       off.

Tammy testified that Marlo was known to her and her family because he and her niece shared

a child. She identified Stevenson as Marlo.

¶6.    Officer Braxton responded to the scene and found Leflore’s body roughly six feet

from the street curb. Investigator Walsh similarly testified that Leflore’s body was in the

middle of the street and that he observed a gunshot wound to Leflore’s chest. He testified

that they put out a “BOLO” for Stevenson and for a small silver Nissan SUV identified by

eyewitnesses as being driven by the shooter. Investigator Muskin located the SUV at the

home of Stevenson’s grandparents, where he lived. The vehicle was processed for

fingerprints and gunshot residue (GSR). The GSR swabs were sent to the Mississippi Crime



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Laboratory. The crime lab positively identified gunshot residue on two of the samples and

identified particles indicative of gunshot residue on several more of the samples.

¶7.    Stevenson was indicted for murder and for felon in possession of a firearm. At trial,

the State introduced evidence that Stevenson had previously been convicted of shooting into

an unoccupied motor vehicle, to prove an element of the felon in possession charge.

Stevenson’s counsel did not ask for a stipulation to the conviction, nor did trial counsel

object to the entry of the evidence surrounding the prior conviction. The jury found

Stevenson guilty of both charges. Stevenson moved the trial court for a new trial, arguing

that the verdicts were contrary to the weight of the evidence, and the trial court denied his

motion. Stevenson appeals, arguing 1) that the verdicts were contrary to the weight of

evidence, and 2) that trial counsel was ineffective by failing to seek exclusion or limited use

of prior bad act evidence.

                                        ANALYSIS

1.     Whether the verdicts are contrary to the weight of the evidence.

¶8.    This Court reviews the trial court’s decision to deny a new trial for abuse of

discretion. Little v. State, 233 So. 3d 288, 292 (Miss. 2017). In doing so, this Court weighs

the evidence in the light most favorable to the verdict. Id. This Court will disturb a verdict

only when it is so contrary to the overwhelming weight of the evidence that it would be an

unconscionable injustice to allow the verdict to stand. Id.

¶9.    Stevenson argues that Hammond’s failure to identify him at trial renders the

convictions unsupported by the evidence, given that Hammond was the only living



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eyewitness to the crime. Yet, ample other evidence connected Stevenson to the crime. The

State entered two photograph lineups into evidence in which Hammond had identified

Stevenson as the shooter. Stevenson’s appearance was different in each of the two

photograph lineups. Both Hammond and Tammy testified that Leflore made a dying

declaration that Stevenson shot him. The vehicle described as being involved in the crime

was located at Stevenson’s home, and gunshot residue was found in the vehicle. The jury

is the arbiter of both the weight of the evidence and the credibility of witnesses. Renfro v.

State, 118 So. 3d 560, 564 (Miss. 2013). Further, the jury may draw reasonable inferences

from the evidence. Id. Given the other evidence admitted in this case, and given that the

jury viewed both photograph lineups, as well as Stevenson’s appearance at trial, the jury’s

decision regarding how to weigh Hammond’s failure to identify Stevenson in court was not

unreasonable. The lack of an in-court identification does not undermine the verdict to the

extent that allowing Stevenson’s convictions to stand would constitute an unconscionable

injustice. This Court affirms Stevenson’s convictions.

2.     Ineffective Assistance of Counsel

¶10.   Stevenson argues that counsel was ineffective for failing to offer a stipulation for

Stevenson’s prior felony conviction, for not objecting to the testimony about the prior fight

between Stevenson and Leflore, and for not requesting limiting instructions regarding this

evidence. To prevail on an ineffective-assistance-of-counsel claim, a defendant must prove

that counsel’s performance was both deficient and prejudicial. Hawkins v. State, 255 So.

3d 1264, 1270 (Miss. 2018). Ineffective-assistance-of-counsel claims should generally be



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brought during post-conviction proceedings. Id. “If insufficient evidence and/or information

exists in the trial record for the appellate court to adequately address the claim, this Court

should deny relief while preserving the defendant’s right to argue ineffective assistance of

counsel through a petition for post-conviction relief (PCR).” Id. This Court may only

address such claims on direct appeal if the facts regarding the issues raised are fully apparent

from the record. Id. The State does not stipulate to the sufficiency of the record to

adequately address this issue on direct appeal, but argues that the record on direct appeal is

insufficient to determine the issue. See Read v. State, 430 So. 2d 832, 841 (Miss. 1983) (the

Court may also address ineffectiveness issues when “the parties stipulate that the record is

adequate and the Court determines that findings of fact by a trial judge able to consider the

demeanor of witnesses, etc. are not needed.”).

¶11.   In a case involving a prior conviction as an element of the crime, specifically, a felon

in possession of a firearm crime, the United States Supreme Court held that the failure to

accept a defendant’s stipulation regarding the crime, and the consequent admission of the full

record of the prior judgment, was error. Old Chief v. United States, 519 U.S. 172, 117 S. Ct.

644, 136 L. Ed. 2d 574 (1997). “Where a prior conviction was for a gun crime or one similar

to other charges in a pending case the risk of unfair prejudice would be especially obvious

. . . .” Id. at 185. The Mississippi Court of Appeals agreed that the failure to accept a

stipulation was unfairly prejudicial, in a case in which the prior convictions were entered

only to establish the element of the crime of possession of a firearm as a convicted felon, and

were not offered as an exception under Rule 404(b) of the Mississippi Rules of Evidence.



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Sawyer v. State, 2 So. 3d 655, 660 (Miss. Ct. App. 2008). As the State points out, the record

is devoid of any reason why Stevenson’s counsel would not request a stipulation. It is also

devoid of any Mississippi Rule of Evidence 403 balancing analysis; nor does any argument

regarding Rule 404(b) exceptions appear in the record. The record is further devoid of

reasons for failure to object, arguments regarding Rule 404(b), and/or a Rule 403 balancing

analysis regarding the testimony about the prior fight between Stevenson and Leflore. Nor

does the record contain any indication of defense counsel’s reasoning for not requesting

limiting instructions. This issue is therefore inappropriate to address on direct appeal, and

this Court dismisses the issue without prejudice to Stevenson’s ability to raise these issues

in a PCR proceeding.

                                     CONCLUSION

¶12.   The jury verdicts are not contrary to the weight of the evidence, as ample evidence

supports the convictions, despite Hammond’s failure to identify Stevenson as the shooter at

trial. The record is insufficient to determine whether ineffective assistance of counsel was

rendered.   This Court therefore affirms Stevenson’s convictions and dismisses his

ineffective-assistance-of-counsel claim without prejudice.

¶13.   AFFIRMED.

    KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE
AND GRIFFIS, JJ., CONCUR. RANDOLPH, C.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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