                 IN THE SUPREME COURT OF MISSISSIPPI

                            NO. 2017-KA-00534-SCT

JAYVIOUS JOHNSON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                    03/03/2017
TRIAL JUDGE:                         HON. ALBERT B. SMITH, III
TRIAL COURT ATTORNEYS:               ALISON LESLIE FLINT
                                     WILBERT LEVON JOHNSON
                                     WILLIAM R. LABARRE
                                     JAMIE MARIE BANKS
                                     BRENDA FAY MITCHELL
                                     KELLIE WILLIAMSON KOENIG
COURT FROM WHICH APPEALED:           BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:              OFFICE OF THE STATE PUBLIC
                                     DEFENDER
                                     BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:               OFFICE OF THE ATTORNEY GENERAL
                                     BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                   BRENDA FAY MITCHELL
NATURE OF THE CASE:                  CRIMINAL - FELONY
DISPOSITION:                         AFFIRMED - 02/21/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




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

      KING, PRESIDING JUSTICE, FOR THE COURT:

¶1.   Jayvious Johnson was convicted of two counts of capital murder with firearm

enhancement, one count of kidnapping with firearm enhancement, and one count of
conspiracy. The verdicts are not against the overwhelming weight of the evidence, and the

trial court did not commit reversible error on the evidentiary issues Johnson raises. This

Court therefore affirms Johnson’s convictions.

                       FACTS AND PROCEDURAL HISTORY

¶2.     In the early morning of November 12, 2013, Tavoris Marshall (Marshall) and Kevion

Gorman were shot and killed. Jayvious Johnson (Johnson), Dbryus Story, Jamario Hodges,

and Favian Vaughn were indicted for conspiracy to commit robbery, capital murder with

firearm enhancement, and kidnapping with firearm enhancement. A joint trial for Johnson,

Story, and Hodges was held in December 2016. Vaughn pled guilty to accessory after the

fact prior to trial.

¶3.     At trial, Herdicine Marshall (Herdicine), Tavoris Marshall’s grandmother with whom

he had lived at the time of his murder, testified that when she went to bed on November 11,

2013, Marshall, Gorman, Corderro Walker, Stanley Self, and her then-seven-year-old

grandson Kenny were all in her house. A loud noise woke Herdicine up at approximately

2:00 a.m. on November 12, 2013. She ran to her bedroom door and into the living room

where she witnessed three individuals exiting Marshall’s bedroom, two of whom she could

not identify. The third individual was Self. She asked him what was going on, and he

responded, “I don’t know, Grandma; I don’t know.” One of the other individuals then

pushed her down, and all three of them ran out the front door. She testified that she did not

witness any struggle between Self and the other two individuals, nor did she see any gun

pointed at Self. She did not witness any force used to remove Self from the house.



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¶4.    Investigator Robert Graham responded to the scene and testified that he found two .22

shell casings, one near the door and one near the bed where Marshall lay, and one .25 bullet

near the loveseat where Gorman lay. He testified that he found Marshall lying on the bed on

his back, face up. Gorman was lying on a loveseat wrapped in a comforter. A video game

was frozen on the television, and a video game controller was on a beanbag chair in front of

the television. Photographs depicting the scene described by Investigator Graham, as well

as of the home and the path next to it, were also entered into evidence.

¶5.    Self, who was fourteen years old at the time of the murders, testified that he visited

Marshall’s home daily to “chill” and play video games. He testified that he was at Marshall’s

home playing video games around 1:00 or 2:00 a.m. on November 12, 2013, when Marshall

was killed. He stated that he, Marshall, and Gorman were in Marshall’s small bedroom, and

that Gorman was sleeping while Marshall was watching Self play the video game. Self was

sitting on the bed near Marshall. Story knocked on the window, and Marshall told Self to

go open the front door; Self complied. Story came in and purchased some pills from

Marshall. He left, and Marshall told Self to lock the door behind him. When Self went to

the door, the knob was twisting, so he let Story, along with Johnson, back in. They all went

back to the room, Self sat back down, and then saw that Johnson had a .22 rifle in his hand.

Johnson asked Marshall, “where’s the check?”1 Marshall asked where Johnson got the gun.

Johnson again asked where the check was, and Marshall responded, asking if Johnson

wanted the check. Then Johnson shot Marshall. He also shot Gorman twice with the .22



       1
       Self testified that “check” meant Johnson wanted money.

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rifle. Johnson turned toward Self, and pointed the gun at him, but, according to Self, the gun

jammed. At that point, Self rushed Johnson, grabbed the gun, and they tussled over it. After

the tussle, Self balled himself up on the bed, and Johnson grabbed a pistol from Story. Self

ran out of the room. He saw Herdicine coming out of her room, and she asked Self what

happened, and he responded, “I don’t know,” because he was scared. Johnson then pushed

Herdicine down, and Self ran out the front door.

¶6.    When Self got outside the house, Johnson grabbed him and told Self that he was

coming with them. Self started screaming, “don’t kill me,” and Johnson told him he was not

going to kill Self because Self was Johnson’s cousin. Johnson grabbed Self by the shoulder

and took him to the car, while Story followed behind them with a shoebox2 in his hands.

Johnson put Self into the car, a brown Chevrolet Malibu; Vaughn was sitting in the driver’s

seat and Hodges, who was standing outside the car, got into the front passenger’s seat.

Johnson started yelling that he needed two more shells because two people were not dead,

specifically requesting that Hodges give him more shells. Vaughn drove the group to

Eastgate, where Vaughn and Hodges got out of the car and starting walking away. Johnson

then took the rifle and put it over a fence, and then Story gave Self two pistols and instructed

him to put them by the fence; Self complied. Johnson and Story told Self to get back into the

car and drive it. Self drove to another house nearby. There, Johnson and Story offered Self

marijuana to stay quiet, then Johnson told Self that if he said anything, he would have a

friend kill Self. Self told them he would not say anything, and then ran home to find the



       2
        The shoebox contained drugs and money belonging to Marshall.

                                               4
police waiting in his yard to arrest him.

¶7.    At the police station, Self gave a statement that he testified was a lie, and at trial he

testified that he had lied in his first statement because he was scared. He was then taken into

custody and held in the youth detention center. He later wrote a second statement, then gave

two more statements, which he testified were the truth. Self also led the police to the

disposed guns. During cross-examination, Self was thoroughly questioned regarding his role

with Marshall as an alleged “door worker” for Marshall’s drug business, his motivation to

lie to protect himself, and his familiarity with the Marshall home and Marshall’s personal

effects, among other things, congruent with the defense theory that Self and Vaughn

committed the murders.

¶8.    Vaughn testified that he was at his house on the afternoon of November 11, 2013,

when Johnson called him. Johnson and Vaughn went to the store in Johnson’s car, where

Johnson told him that he was “hurting” and needed to “hit a lick,” meaning to rob someone.

They smoked marijauna, rode around, and went to Marshall’s house to purchase drugs.

Gorman, Self, and a few other people were at Marshall’s house. After purchasing drugs,

Vaughn began driving Johnson’s car, while they rode around “smoking and on Xanax.”

They went to another store and ran into Hodges, who joined them. They then picked up

Story, who was walking. When they ran out of drugs, they went back to Marshall’s house,

where Vaughn went in and purchased more drugs. They then drove around more, until they

parked at Shamrock Apartments, where they stayed in the car to do more drugs and to avoid

the police.



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¶9.    At Shamrock Apartments, Johnson said that he was “ready to hit a lick,” and stated

that he wanted to rob Marshall. Vaughn said he was not “with him,” and Hodges also

declined to join the robbery. Story said, “Let’s go.” At that point, Johnson and Story exited

the car and went down a pathway that led to Marshall’s home. Johnson had a long black gun

with him, and Story had a silver gun on his waist. The next thing Vaughn witnessed was

Johnson and Story running back to the car with Self. Story was carrying a shoebox. Story

and Johnson put Self in the car, and Self was “hollering,” “don’t kill me.” Commotion

occurred in the car, and Johnson told Vaughn to go, because something bad had happened.

Vaughn started the car and drove to Eastgate, because he knew no police would be there.

While he was driving, he heard Story ask Hodges if he had any bullets to kill Self, and

Hodges said he did not. Meanwhile, Johnson stated that they should kill Self, but Johnson

also stated that he was not going to kill his little cousin. Once they got to Eastgate, Vaughn

and Hodges jumped out of the car and left. Shortly thereafter, Vaughn witnessed Johnson,

Story, and Self speeding by, with Self driving. Vaughn and Hodges then called Corderro

Walker, who Hercidine testified had been at her home when she went to bed, to come pick

them up. Walker took Vaughn home, where his father let him in the house.

¶10.   The next day, Vaughn learned that the police were looking for him, and he turned

himself in. Vaughn gave four statements to the police. He admitted that he was not truthful

in all of these statements because he was scared. He was “locked up” the entire time when

he gave all of his statements to the police. During cross-examination, the defense thoroughly

questioned Vaughn regarding his inconsistent statements to the police and his motivation to



                                              6
lie to protect himself, among other things.

¶11.   Investigator George Serio testified that Self was taken to juvenile detention after he

was arrested in the early morning of November 12, 2013, and that Vaughn, Hodges, Story,

and Johnson were taken to the Bolivar County Sheriff’s Department when they were arrested.

The two facilities were in different locations. Investigator Serio performed a gunshot residue

(GSR) kit on Self.3 After Self disclosed the location of the guns, Investigator Serio went to

the location identified and recovered a .25 and a .380 by a fence and a .22 Ruger rifle on the

other side of the fence in the field. He also testified that during the two statements that he

took, Vaughn was basically begging to clear his name.

¶12.   Several forensics experts testified. A gunshot residue expert testified that Self’s GSR

kit found “particles indicative of gunshot residue” on the back of Self’s right hand, on the

back of his left hand, and on his left palm. No GSR was found on Self’s right palm.

However, while the residue found was consistent with GSR, it did not meet each and every

factor needed to exclude the residue as coming from another environmental source. He also

testified that three scenarios explain how GSR could get on a person’s hands: 1) the person

discharged a firearm; 2) the person was in close proximity (approximately two feet) to a

discharged firearm; or 3) the person handled something with GSR on it.

¶13.   The medical examiner testified that Marshall had one gunshot wound to the head and

classified the wound as consistent with a distant wound, meaning that the gun would have

been at least three feet away from Marshall. She testified that Gorman had two gunshot

       3
       GSR kits were not performed on Johnson, Story, Hodges, and Vaughn, because they
were arrested beyond the time GSR testing would be reliable.

                                              7
wounds, one to the head and one to the chest, both consistent with a distant gunshot wound.

¶14.   A firearms expert testified that she received a .25 pistol, a .380 pistol, a .22 Ruger

rifle, nineteen live rounds for the .22 rifle that were not in the rifle when received, three

cartridge casings, and several bullet fragments recovered from the autopsies of Marshall and

Gorman. She found that two of the casings had “class characteristics” consistent with the

.22 rifle, meaning that the caliber and shape of the firing pin were the same. She found that

the third casing had the same class characteristics as the .25 pistol. However, the casings

contained insufficient individual markings to determine whether they were fired from those

particular weapons. The bullet fragments recovered from Marshall’s autopsy had class

characteristics consistent with the .22 rifle, but had insufficient individual markings to

determine whether they were fired from the recovered .22 rifle. The bullet fragments

recovered from Gorman’s lung had class characteristics consistent with the .22 rifle, but had

insufficient individual markings to determine whether they were fired from the recovered .22

rifle. The remaining bullet fragments recovered were too small to make any comparisons.

The firearms expert further testified that she did not have any difficulty test firing the .22

rifle, but that once a jam is cleared, a gun should be able to be fired normally. She noted that

GSR exits from any opening in a gun, but for the .22 rifle, GSR would mostly come out of

two spots: the muzzle and above the trigger.

¶15.   A latent print examiner testified that she found no latent prints of value on any of the

three guns or two submitted magazines.

¶16.   Story and Johnson both produced alibis. Johnson’s wife, Jasmine Johnson (Jasmine),



                                               8
testified that Johnson was home with her and his son all night on November 11, 2013, from

4:00 p.m. until 7:00 or 8:00 a.m. on November 12, 2013. She stated that they both went to

sleep around 9:00 or 10:00 p.m. on November 11, 2013. She further testified that she would

have known had Johnson gotten out of bed after she went to sleep. The State called Bobby

Harper, Vaughn’s father, as a rebuttal witness. He testified that at 8:30 or 9:00 p.m. on

November 11, 2013, he saw Vaughn, Story, Johnson, and Hodges sitting in Johnson’s gold

Malibu outside a house. On cross-examination, Harper admitted that he only gave the

prosecutors this information a few days before trial. He also admitted that shortly after

Vaughn was arrested, Harper told a local television station that Vaughn had been home with

him at the time Marshall and Gorman were murdered.

¶17.   During Self’s cross-examination, the defense attempted to introduce photographs of

Self with guns, as well as several juvenile adjudications involving Self. The photographs

were undated,4 and appear to be printed screenshots of photographs from an unknown

Facebook profile. The court questioned whether the photographs had been authenticated,

especially considering the absence of a date, and further questioned whether they were

relevant and whether they were more prejudicial than probative. The court ultimately found

that the photographs were irrelevant. The court did, however, allow the defense to cross-

examine Self regarding whether he had taken photographs with guns. The defense argued

that it was entitled to use juvenile adjudications that occurred after this incident to impeach

Self’s credibility. The court found that the adjudications were inadmissible under Rule 609.



       4
        The defense admitted that “we don’t know when he posted these.”

                                              9
¶18.   The jury instructions included an instruction that a witness’s testimony may be

discredited or impeached with prior inconsistent statements. It also included an instruction

that the law regards alleged accomplice testimony with suspicion and distrust. The jury

ultimately found Johnson guilty of conspiracy, two counts of capital murder with firearm

enhancement, and kidnapping with firearm enhancement.5 Johnson appeals his convictions,

arguing that 1) the verdicts are contrary to the weight of the evidence, and 2) the court erred

in excluding the photographs of Self and his juvenile adjudications.

                                        ANALYSIS

1.     Whether the verdicts are against the overwhelming weight of the evidence.

                In considering whether a verdict is contrary to the overwhelming weight
       of the evidence, this Court reviews the evidence in the light most favorable to
       the verdict to determine whether the verdict is so contrary to the overwhelming
       weight of the evidence that allowing it to stand would amount to an
       unconscionable injustice. Little v. State, 233 So. 3d 288, 2017 WL 4546740
       (Miss. Oct. 12, 2017). In reviewing the evidence in the light most favorable
       to the verdict, the Court must accept the evidence supporting the verdict as
       true. Gillett v. State, 56 So. 3d 469, 504 (Miss. 2010). This Court will reverse
       a trial court’s denial of a motion for new trial only when the trial court abused
       its discretion. Id.

Cyrus v. State, 248 So. 3d 760, 761-62 (Miss. 2018). Johnson argues that the testimonies of

Self and Vaughn cannot support his convictions because each witness’s testimony was

improbable, self-contradictory, and unreasonable.

¶19.   While uncorroborated accomplice testimony may be sufficient to convict an accused,

such uncorroborated testimony is insufficient to support a conviction when the testimony is

       5
        The jury also found Story guilty of conspiracy, two counts of capital murder with
firearm enhancement, and kidnapping with firearm enhancement. It found Hodges guilty
of conspiracy, and not guilty of capital murder and kidnapping.

                                              10
unreasonable, self-contradictory, or substantially impeached. Osborne v. State, 54 So. 3d

841, 846 (Miss. 2011). “Only slight corroboration of an accomplice’s testimony is required

to sustain a conviction.” Id. at 847. The corroborated testimony must be that portion of the

testimony that connects the defendant to the crime. Id. The same rule is relevant to the

uncorroborated testimony of a witness who, while not an accomplice, is “manifestly

interested in absolving himself from guilt and putting blame on defendant.” Mister v. State,

190 So. 2d 869, 870 (Miss. 1966).

¶20.   Weighing witness testimony and determining credibility is the province of the jury.

Osborne, 54 So. 3d at 846. If the evidence justifies a verdict, this Court must accept that the

jury found it worthy of belief. Gillett v. State, 56 So. 3d 469, 504 (Miss. 2010). Even

assuming that Self’s and Vaughn’s testimony was inconsistent and arguably substantially

impeached,6 the testimony connecting Johnson and Story to the crimes was not

uncorroborated. Testimony must be uncorroborated and unreasonable, self-contradictory,

or substantially impeached to be insufficient to uphold a conviction. Self’s testimony



       6
         Johnson argues that Self’s testimony is unreasonable or improbable because “it is
highly unlikely that Stanley did not see the rifle allegedly held by Johnson when Stanley said
he let Story and Johnson in Tavoris’s house[,]” “it is highly unlikely that the alleged robbers
would have shot Kavion Gorman, who was asleep, before they shot Stanley[,]” and it was
improbable that Johnson would ask for more ammunition when he had live rounds in each
gun. The State counters that, from Johnson asking for ammunition, the jury could
reasonably infer that Johnson was attempting to scare Self into silence. It is also a
reasonable inference that Self did not see the rifle until he was in the bedroom. It was dark,
Story may have entered the residence in front of Johnson, and Self’s testimony implies that
he walked in front of Story and Johnson into the bedroom, meaning they were behind him
and out of his sight. It is also reasonable to infer that Johnson killed Gorman to eliminate
any potential witnesses to the crime. While Self’s testimony is certainly subject to different
inferences and interpretations, it is not unreasonable or implausible.

                                              11
connecting Johnson to the crimes corroborated Vaughn’s testimony, and Vaughn’s testimony

corroborated Self’s testimony. Moreover, Vaughn and Self both explained to some extent

why they gave prior inconsistent accounts to the police, both testifying that they were scared.

See Osborne, 54 So. 3d at 846-47 (An accomplice provided inconsistent accounts, but he

explained his actions at trial, stating that he was scared for the safety of a family member

whom the defendant threatened, and his testimony was reasonable, not substantially

impeached, and corroborated.).       A cautionary jury instruction was given regarding

accomplice testimony. Accordingly, it was for the jury to determine what weight and

credibility to give the testimony, because the testimony at issue was sufficient to support the

verdicts.

2.     Whether the court erred by excluding photographs and juvenile adjudications.

¶21.   This Court reviews the admission or exclusion of evidence for abuse of discretion.

Newell v. State, 49 So. 3d 66, 71 (Miss. 2010). Moreover, this Court only reverses a trial

court’s evidentiary ruling when the error adversely affects a party’s substantial right. Id.

Johnson argues that the exclusion of the photographs showing Self holding guns and of

Self’s juvenile adjudications was detrimental to Johnson’s theory of defense.

       a.     Photographs

¶22.   Johnson argues that undated photographs, which appear to be printouts of screenshots

from websites, allegedly of Self holding guns are relevant to Self’s “lifestyle.” The trial

court, noting that the photographs were not authenticated, ultimately found that the

photographs were not relevant, and were more prejudicial than probative under Rule 403.



                                              12
¶23.   This Court need not examine whether the trial court erred in finding the photographs

were not relevant and were more prejudicial than probative. The undated photographs were

not authenticated, nor did Johnson attempt any proffer to authenticate them. See Miss. R.

Evid. 901. “Authentication is a condition precedent to admissibility.” Smith v. State, 136

So. 3d 424, 432 (Miss. 2014). Johnson was required to make a prima facie showing of

authenticity. Id. He did not do so. Thus, because the photographs were not authenticated,

the trial court did not err in excluding them. Id. at 432-35.

       b.     Juvenile Adjudications

¶24.   The trial court refused to allow the defense to cross-examine Self regarding his

juvenile adjudications, all of which occurred after November 12, 2013. It found that, since

the adjudications occurred after the murders, the adjudications were not necessary to fairly

determine the guilt or innocence of the defendants. Johnson argues that he should have been

allowed to impeach Self’s credibility using these juvenile adjudications. He asserts that the

adjudications should have been admitted because Self “was a suspect and had a motive to

fabricate.” At trial and in its earlier motion to admit the adjudications, the defense merely

asserted that the adjudications went to Self’s “credibility.”

¶25.   Rule 609 prohibits the use of juvenile adjudications to impeach a witness (other than

the defendant) in a criminal case unless “an adult’s conviction for that offense would be

admissible to attack the adult’s credibility” and “admitting the evidence is necessary to fairly

determine guilt or innocence.” Miss. R. Evid. 609(d). Impeachment based on juvenile

adjudications is generally prohibited due to “the wish to free an adult from bearing the



                                              13
burden of a youthful mistake, the informality of youth court proceedings, and the confidential

nature of those proceedings.” Miss. R. Evid. 609 cmt. The pre-rules practice regarding using

juvenile adjudications for impeachment purposes was provided by Mississippi Code Section

43-21-561, which states that “[e]xcept for the right of a defendant or prosecutor in criminal

proceedings . . . to cross-examine a witness . . . to show bias or interest, no adjudication shall

be used for impeachment purposes in any court.” Miss. Code Ann. § 43-21-561(5) (Rev.

2015). This Court has held that Section 43-21-561(5) and Rule 609(d) “serve the same

purpose, have the same objective, and although worded differently, provide the same general

criterion for a trial judge in exercising his discretion to determine” admissibility of juvenile

adjudications. Bass v. State, 597 So. 2d 182, 188 (Miss. 1992). Thus, juvenile adjudications

may not be used for general impeachment purposes, but may be admissible if they tend to

show bias or interest on the part of the witness. Johnson admits that he wanted to use these

juvenile adjudications for general impeachment purposes, noting only that the adjudications

go to Self’s “credibility.” This is exactly the type of usage that Rule 609 prohibits. Johnson

failed to offer any explanation of what he expected the juvenile adjudications to show, or

how the juvenile adjudications would show any bias or interest on the part of Self. See Bass,

597 So. 2d at 190-91 (Defense counsel failed to make “any profert of what they expected to

show by cross-examining Thompson as to his youth court record, except a generalized

statement to show ‘bias or interest.’ Did they expect to show he had been promised anything

to testify? Did they expect to show he wanted to return home from the training school, and

thought if he testified for the state he would be shown leniency? None of this was brought



                                               14
to the attention of the circuit judge.”). The trial court did not abuse its discretion by

excluding Self’s juvenile adjudications.

                                      CONCLUSION

¶26.   Because the verdicts were not against the overwhelming weight of the evidence, and

because the trial court did not abuse its discretion in excluding the photographs and juvenile

adjudications, this Court affirms Johnson’s convictions.

¶27.   AFFIRMED.

    RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM,
CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.




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