         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-00414-COA

WELFORD LEE MCCARTY A/K/A LEVI                                               APPELLANT
MCCARTY A/K/A PORK CHOP

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          02/17/2017
TRIAL JUDGE:                               HON. DALE HARKEY
COURT FROM WHICH APPEALED:                 GREENE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 06/12/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, P.J., WILSON AND GREENLEE, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Following a jury trial in the Greene County Circuit Court, Welford Lee McCarty was

convicted of capital murder and desecration of a human corpse. The circuit court sentenced

him to life imprisonment without the possibility of parole for capital murder and three years’

imprisonment on the latter offense. On appeal, McCarty alleges that the trial judge abused

his discretion by admitting photographs of the victim’s dismembered and decomposed corpse

and bones. He also alleges that the State’s use of the photos “was part of a larger pattern of

prosecutorial misconduct.” McCarty’s claims are without merit. Therefore, his convictions

and sentences are affirmed.
                       FACTS AND PROCEDURAL HISTORY

¶2.    McCarty manufactured methamphetamine on his property in rural Greene County.

In early 2013, McCarty learned that his friend Donovan Cowart was working with law

enforcement as a confidential informant. McCarty told Cowart that he wanted to show him

a hole that he had dug on his property for use in his meth operation. McCarty, along with

Robert Stevens and David Allen, picked up Cowart and drove to the hole. As Cowart was

walking over to look at the hole, McCarty retrieved a shotgun from the trunk of his car and

shot Cowart in the back of the head. Cowart fell into the hole, and McCarty shot him again.

McCarty and Stevens then took Cowart’s cell phone, searched his wallet for money, and

buried the body in the hole.

¶3.    A few weeks later, McCarty became concerned that the police would search his

property, so he insisted that Stevens help him move the body to another location. After the

two men dug up the body, McCarty said that they had to dismember it. McCarty retrieved

an ax, and Stevens used the ax to sever the head, arms, and legs below the knees and cut the

torso in half. The two men stuffed the body parts into trash bags and then tied up the bags

and cinder blocks inside a large tarp. They threw the tarp into a nearby pond, but it would

not sink. McCarty fired his shotgun into the tarp, but it still would not sink, so Stevens

wedged it under a tree in a culvert.

¶4.    In May 2015, law enforcement found the tarp with the dismembered and decomposed

body in the culvert. One of Cowart’s shoes was also in the tarp. The ax used to dismember


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the body, which Stevens identified at trial, was found about forty feet away in the pond. The

FBI subsequently dug up the original burial site on McCarty’s property. There, the FBI

found Cowart’s other shoe, his wallet, a baseball cap with a large hole in the back, and

several teeth, which DNA tests later confirmed were Cowart’s teeth.

¶5.    In September 2015, a Greene County grand jury indicted McCarty and Stevens for

capital murder, with the underlying felony of robbery, and desecration of a human corpse.

The court appointed the State Office of Capital Defense Counsel to represent McCarty, and

McCarty’s case proceeded to a jury trial in February 2017. Stevens and Allen testified

against McCarty at trial consistent with the facts discussed above. Stevens testified that in

exchange for his testimony the State had agreed to allow him to plead guilty to second-degree

murder with a sentencing recommendation of twenty to thirty years. Allen was not charged

in connection with Cowart’s murder. He testified that he did not know in advance that

McCarty planned to kill Cowart, and he did not help McCarty and Stevens conceal the body

afterward. Allen testified that McCarty threatened to kill him and his family if he ever told

anyone about the murder. At the time of McCarty’s trial, Allen was under indictment for an

unrelated armed robbery; however, the State had not offered him any plea bargain or leniency

on that charge in exchange for his testimony.1

¶6.    In addition, Alicia Keel, a friend of McCarty, testified that McCarty confessed to the



       1
        On redirect, Allen also testified that he had testified against McCarty before the
grand jury before the alleged armed robbery occurred.

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murder. According to Keel, McCarty admitted that he killed Cowart on his property and

buried the body there; she also testified that on a later date, McCarty told her that he planned

to move the body and sink it in a pond.

¶7.    The jury returned a verdict finding McCarty guilty of capital murder, with the

underlying felony of robbery, and desecration of a human corpse. The court sentenced

McCarty to life imprisonment without the possibility of parole for capital murder and three

years’ imprisonment for desecration of a human corpse. McCarty filed a motion for a new

trial, which was denied, and a notice of appeal. On appeal, McCarty raises the two issues

noted above.2 We find no error and affirm.

                                         ANALYSIS

       I.     Photographs

¶8.    McCarty argues that the trial judge abused his discretion by admitting into evidence

nineteen photographs. Six of these photos show parts of the decomposed and dismembered

corpse as it was found in the tarp. The other thirteen photos show the victim’s dry bones as

they were examined during the autopsy performed by Dr. Mark LeVaughn, Chief Medical

Examiner for the State of Mississippi. McCarty argues that these photos were unfairly

prejudicial and should have been excluded under Mississippi Rule of Evidence 403.



       2
        Phillip W. Broadhead, clinical professor and director of the University of Mississippi
School of Law Criminal Appeals Clinic, was appointed as McCarty’s appellate counsel.
Third-year law students under Professor Broadhead’s supervision were appointed as special
counsel pursuant to the Mississippi Law Student Limited Practice Rule.

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However, we find no abuse of discretion in the trial judge’s rulings.

¶9.    “On appeal, this Court will give great deference to trial judges in the sound exercise

of their discretion in the admission of photographs. Though this discretion is not unlimited,

it is considerable, and we will reverse a trial judge’s decision to admit a photograph only if

he abused that discretion.” Hutto v. State, 227 So. 3d 963, 982 (¶55) (Miss. 2017) (citations,

internal quotation marks, and brackets omitted), cert. denied, 138 S. Ct. 983 (2018). The

Supreme Court has held that “photographs of a victim have evidentiary value when they aid

in describing the circumstances of the killing, describe the location of the body and cause of

death, or supplement or clarify witness testimony.” Id. (citations omitted) (quoting Keller

v. State, 138 So. 3d 817, 857 (¶101) (Miss. 2014)). “Reversal based on the admission of

cumulative and/or gruesome photographs is rare.” Cowart v. State, 178 So. 3d 651, 663

(¶31) (Miss. 2015).

¶10.   Here, at least one legitimate evidentiary purpose of the photos is obvious: the State

had to meet its burden of proving, beyond a reasonable doubt, that McCarty was guilty of the

crime of desecration of a human corpse. “[T]he familiar, standard rule [is] that the

prosecution is entitled to prove its case by evidence of its own choice . . . .” Old Chief v.

United States, 519 U.S. 172, 186 (1997). Here, the prosecution understandably sought to

establish the desecration of a human corpse by showing the desecrated human corpse. In

addition, Dr. LeVaughn used the photos to explain the path of the fatal gunshot wound to

Cowart’s head and the manner of the dismemberment. The photos also corroborated the


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details of Stevens’s testimony, which was central to the State’s case against McCarty.

¶11.   Because the photos were relevant, they were admissible under Mississippi Rules of

Evidence 401 and 402. Relevant evidence should be excluded under Rule 403 only “if its

probative value is substantially outweighed by a danger of,” inter alia, “unfair prejudice.”

M.R.E. 403 (emphasis added). “Rule 403’s scope is narrow, as it is an extraordinary measure

that should be used very sparingly.” Curry v. State, 202 So. 3d 294, 298 (¶13) (Miss. Ct.

App. 2016) (internal quotation marks omitted). The decision whether to exclude evidence

under Rule 403 “is committed to the broad discretion of the trial judge, and our standard of

review is highly deferential.” Id. at 298-99 (¶13).

¶12.   The photos at issue in this case were not unfairly prejudicial. They are unlike the

photo that led to the rare reversal in Bonds v. State, 138 So. 3d 914 (Miss. 2014)—“a full-

color, close-up, frontal photograph of [the victim’s] maggot-infested skull and facial area,”

id. at 918 (¶10), which the Supreme Court found to be “gruesome in the extreme,” id. at 920

(¶15).3 There were no maggots in the photos in this case, and the dismembered corpse was

in such an advanced state of decomposition that it is not even obvious what most of the

photos of the corpse depict without the benefit of Dr. LeVaughn’s testimony. The remaining

photos show only dry bones, not blood, flesh, or gore. The photos are not “gruesome in the

extreme,” they were introduced for legitimate evidentiary purposes, and the prosecution did


       3
         Bonds followed McNeal v. State, 551 So. 2d 151 (Miss. 1989), which similarly
reversed and remanded for a new trial based on the admission of a “full-color, close-up view
of the [victim’s] decomposed, maggot-infested skull.” Id. at 159.

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not make excessive or prolonged use of them at trial. The trial judge considered the photos

and found that they were probative and would not be prejudicial. On the facts of this case,

we cannot say that the danger of unfair prejudice, if any, “substantially outweighed” the

photos’ probative value. M.R.E. 403. Nor can we say that the trial judge abused his

discretion by admitting the photos.

¶13.   On appeal, McCarty relies heavily on Bonds’s “two-part test” for the admission of

photos of a crime victim: “First, the trial court must determine whether the proof is absolute

or in doubt as to identity of the guilty party. Secondly, it must be determined whether the

photographs are necessary evidence or simply a ploy by the prosecutor to arouse the passion

and prejudice of the jury.” Bonds, 136 So. 3d at 918 (¶8) (quoting Manix v. State, 895 So.

2d 167, 178 (¶33) (Miss. 2005)). McCarty now contends that the photos should have been

excluded because the proof was “absolute” and there was no “doubt as to the identity of the

guilty party”—i.e., McCarty. However, this argument directly conflicts with the position that

McCarty took at trial. McCarty’s able trial counsel absolutely contested the “identity of the

guilty party,” arguing forcefully that the State had failed to prove beyond a reasonable doubt

that McCarty killed Cowart.4 Moreover, for the reasons discussed above, the photos were

offered for legitimate evidentiary purposes, not as a “ploy by the prosecutor to arouse the



       4
        We note that there was no evidence or argument that McCarty killed Cowart by
accident or in self-defense, and the jury was not instructed on any lesser offenses.
Accordingly, if there really was no “doubt as to the identity of the guilty party,” then
McCarty could not possibly have been prejudiced by the admission of the photographs.

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passion and prejudice of the jury.” Accordingly, the trial judge’s discretionary ruling to

admit the photos did not run afoul of Bonds’s holding.

       II.    Alleged Prosecutorial Misconduct

¶14.   In his second issue on appeal, McCarty argues that he “suffered the injustice of a

fundamentally unfair trial . . . due to multiple incidents of . . . prosecutorial misconduct,”

including but not limited to the prosecution’s use of the photos discussed above. The litany

of issues that McCarty raises under this heading do not warrant the very serious charge of

“prosecutorial misconduct.” Nor do any of these issues warrant a new trial.

¶15.   First, McCarty argues that “[t]he prosecution needlessly presented cumulative

evidence in violation of [Mississippi Rule of Evidence] 403.” This assertion relates in part

to the photos of the corpse and bones; however, as discussed above, those photos were

admissible and legitimate evidence. Aside from those photos, McCarty simply argues that

the State called more witnesses and introduced more exhibits than were necessary to prove

the State’s case. McCarty cites no objections that he made to any of this other evidence, nor

does he explain how any of it was unfairly prejudicial. The district attorney and assistant

district attorney simply met their constitutional obligation to prove guilt beyond a reasonable

doubt. That is their job, not “prosecutorial misconduct.”

¶16.   Second, McCarty argues that “[t]he prosecution violated [his] constitutional right to

a fundamentally fair trial by calling or attempting to call clearly biased witnesses whose

testimony was not necessary to prove [the] case.” McCarty first cites the State’s pretrial


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motion to call his wife as a witness. However, the trial judge excluded her testimony, and

there was no mention of the issue in the presence of the jury. The State handled this legal

issue appropriately and ethically, and McCarty cannot possibly show that he was prejudiced

in any way. McCarty also criticizes the State’s use of Stevens’s testimony pursuant to a plea

bargain, which McCarty calls a “deal with the devil.” However, the jury was made aware

of the plea agreement, which required Stevens to testify truthfully. Offering testimony based

on a plea bargain is not “prosecutorial misconduct” either—not even close.

¶17.   Third, McCarty argues that “[t]he prosecution repeatedly and needlessly attempted to

introduce evidence of gang affiliation and a conspiracy in an attempt to unfairly bias the jury

against [him].” McCarty cites two instances in which the State sought to introduce evidence

of gang affiliation or a conspiracy on the theory that McCarty’s gang had ordered Cowart’s

murder. The prosecution, again, handled these issues appropriately and ethically in a pretrial

motion and, later, outside the presence of the jury. McCarty admits that “the State was

ultimately unsuccessful,” as the trial judge excluded the evidence after finding that there was

insufficient corroboration. McCarty shows no prejudice, since the jury was never informed

of any gang affiliation, and it is clear that the State proceeded in good faith. Again, this was

not “prosecutorial misconduct.”

¶18.   Fourth, McCarty argues that “[t]he prosecution violated [his] constitutional right to

a fundamentally fair trial by overtly, repeatedly, and excessively soliciting sympathy from

the jury for [two witnesses, Cowart’s sister and the mother of Cowart’s children].” In



                                               9
support of this allegation, McCarty cites only three brief comments from the State’s opening

and closing statements and a few lines of unexceptional testimony from witnesses who were

understandably upset by Cowart’s murder. McCarty’s very capable trial counsel did not

object to any of the cited argument or testimony—and for good reason. There was nothing

improper or out-of-bounds about the argument or testimony. It certainly does not raise any

issue of “prosecutorial misconduct.”

¶19.   Fifth, McCarty asserts that “[i]n closing argument, the prosecution attempted to

unfairly [place] a ‘burden’ to convict [him] on the jury and also made a ‘send the message’

argument to the jury.” On its face, this particular argument raises a serious issue. Our

Supreme Court has “repeatedly condemned the ‘send a message’ argument and warned

prosecutors accordingly.” Payton v. State, 785 So. 2d 267, 270 (¶11) (Miss. 1999). “A ‘send

the message’ argument is one that encourages ‘juries to use their verdict to ‘send-a-message’

to the public or to other potential criminals,’ instead of ‘render[ing] a verdict based solely on

the evidence introduced at the trial of that case.’” Terrell v. State, 237 So. 3d 717, 734 (¶67)

(Miss. 2018) (quoting Brown v. State, 986 So. 2d 270, 275 (¶11) (Miss. 2008)).

¶20.   However, the record does not support McCarty’s claim. In the cited portion of the

transcript, the district attorney simply concluded his argument as follows:

       The burden of this case is now y’alls. For four years the community has
       waited to hear what happened. That family has waited. It’s time. The burden
       is y’alls. I ask you to do what you told us you would do. Look at the evidence.
       Listen to the testimony. You told us, you agreed with when I said evidence is
       oral and physical and we’ve given you both. We told the story of what
       happened to Donovan Cowart. I ask you to find [McCarty] guilty of capital

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       murder and guilty of desecration of a corpse. Thank you.

The district attorney did not ask the jurors to “send a message” to anyone. Rather, he

reinforced their obligation to render a verdict based on the evidence presented. McCarty’s

able trial counsel did not object to these comments, and there was nothing improper about

the argument.

¶21.   In summary, McCarty’s “prosecutorial misconduct” argument fails to identify any

instance of misconduct or reversible error. The argument should not have been phrased in

terms of “prosecutorial misconduct” because the prosecutors in this case did absolutely

nothing to warrant such an accusation.

                                      CONCLUSION

¶22.   McCarty received a fair trial, there is substantial evidence to support the jury’s guilty

verdict, and the issues raised on appeal are without merit. Accordingly, McCarty’s

convictions and sentences are affirmed.

¶23.   AFFIRMED.

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




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