                        IN THE SUPREME COURT OF MISSISSIPPI

                                    NO. 2002-KA-00401-SCT

DEXTER TRAMAYNE WELLS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                 12/4/2001
TRIAL JUDGE:                                      HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED:                        JACKSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                          ROSS PARKER SIMONS
                                                  THOMAS L. MUSSELMAN
ATTORNEYS FOR APPELLEE:                           OFFICE OF THE ATTORNEY GENERAL
                                                  BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                ROBERT KEITH MILLER
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      AFFIRMED-05/08/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



        BEFORE SMITH, P.J., EASLEY AND GRAVES, JJ.

        GRAVES, JUSTICE, FOR THE COURT:


¶1.     Dexter Tramayne Wells (Wells) was convicted by a jury in the Circuit Court of Jackson County

of aggravated assault and murder. He was sentenced to twenty years imprisonment on the aggravated

assault conviction and life imprisonment on the murder conviction. The sentences are concurrent. From

these convictions and sentences, Wells appeals and presents the following issues for this Court’s review:

        I.      Whether the trial court erred in admitting Chris Wells’s testimony under M.R.E.
                801(d)(1)(b), 803(1) and 803(2).
        II.     Whether the trial court erred in granting jury instructions S-7 and S-11.

        III.    Whether the trial court abused its discretion when it ruled that recross-examination
                is not allowed in Mississippi.

        IV.     Whether the verdicts were against the overwhelming weight of the evidence.

        V.      Whether Miss. Code Ann. § 47-5-139(1)(a) is unconstitutional.

                                                 FACTS

¶2.     On January 27, 1996, Willie Sampson McCorvey a/k/a Frank borrowed the truck of his nephew,

Darius Vaxter, to go to the store. He did not return.1 McCorvey was later found murdered on Freeman

Road in Jackson County, Mississippi. Cynthia Williams, the girlfriend of Vaxter, noticed that the truck had

returned, but it was parked in a different place from where McCorvey or Vaxter would normally park.

A masked perpetrator, known to us now as Victor McCoy, knocked first and when Williams would not

allow him to enter, he kicked the door in and entered the trailer. Williams was shot in the back of her left

shoulder. Williams called out to Vaxter for help. A struggle ensued between McCoy and Vaxter. During

the struggle, Vaxter unmasked McCoy, and once McCoy was identified, he called out to Train a/k/a

Dexter Wells to help him. Once Williams realized that someone was with McCoy, she hurried to lock the

front door and called 911. From the window by the front door, Williams identified Wells as the other

assailant. Wells unsuccessfully tried to break into the front door and broke out the front outdoor light.

McCoy and Wells fled the scene prior to the police’s arrival. The police retrieved a Tec 9 gun at the

scene. No latent fingerprints were retrieved because the gun was muddy. Wells and McCoy were indicted

for Count I aggravated assault against Williams, Count II aggravated assault of Vaxter and Count III



        1
         Victor McCoy’s statement in accordance with his plea agreement stated that he and Wells
encountered McCorvey driving Vaxter’s truck when they were headed to Vaxter’s trailer to talk to
him. They flagged the truck down, and an altercation ensued.

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murder of McCorvey on February 14, 1997. McCoy entered a guilty plea to both counts of aggravated

assault and to manslaughter on April 28, 1998, and May 1, 1998. Subsequently, he was sentenced to

twenty years on each count to be served concurrently in the custody of the Mississippi Department of

Corrections (MDOC).

¶3.     Wells was tried and convicted of Count I aggravated assault of Williams and Count III murder of

McCorvey on December 4, 2001. Wells was sentenced to twenty years imprisonment on Count I and

to life imprisonment on Count II in the custody of the MDOC to run concurrently. The trial court denied

Well's motion for JNOV or in the alternative a new trial. From that denial, Well’s has perfected this appeal.

                                              DISCUSSION

        Admissibility of Chris Wells's Testimony

¶4.     Wells argues that the State failed to meet all the required rules for admission of the statement of his

cousin, Chris Wells under the hearsay exception M.R.E. 801(d)(1)(b) for the following reasons: (1) Victor

McCoy was not subject to cross-examination concerning the statement alleged by Chris Wells; (2) the

statement made by Chris Wells was not consistent with McCoy’s testimony; and (3) the statement was not

offered to rebut an express or implied charge against McCoy by the defense of recent fabrication or

improper influence or motive. Wells also contends that the statement allegedly made to Chris Wells by

McCoy was not made while McCoy was perceiving an event or immediately thereafter. Wells further

contends that there was no testimony concerning the lapse of time between the murder and when McCoy

entered the vehicle with Chris and Byron Wells. Wells argues that the requirement for spontaneity has not

been met. Wells also argues that there was no testimony that McCoy described or explained the event.

¶5.     There was a pre-trial motion in limine to exclude statements made by McCoy to Chris Wells. Chris

Wells stated that McCoy made statements to him after McCoy fled from Vaxter’s home on the night of


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January 27, 1996 when McCoy flagged down the car driven by McCoy’s uncle Bryon Wells. Chris Wells

was a passenger in the car. Chris Wells described McCoy as excited when he entered the car and that

he could hear it in his voice. McCoy indicated that he wanted to go to Gautier. Chris Wells testified that

McCoy stated, “Me and Train done killed Frank.” Chris Wells further stated that when Byron Wells

asked McCoy about Wells’s whereabouts, he said, “I don’t know. He left me.” However, in an earlier

statement given to police, Chris Wells apparently said after McCoy calmed down, McCoy declared that

he and Wells had killed Frank.

¶6.     The judge took the arguments of counsel under advisement and decided not to make a ruling on

the motion at the time. Before Chris Wells’s testimony, Wells renewed his objection that Chris Wells’s

testimony should be excluded on the basis of not falling under any hearsay exception. The court ruled as

follows:


        BY THE COURT: Well, this court has done a lot of research. And, as y’all know, we
        listened to the testimony of Victor McCoy during the lunch break. And although this court
        is first to admit that Mr. McCoy’s testimony was, for lack of a better way of saying it, all
        over the page, it started out he did it alone, then he went to he admitted he gave that
        statement. Repeatedly, said, if he said it, it must have been true. Then he also tried to say,
        at one point, that he didn’t really remember the details. So, he’s really all over the place
        in his testimony.

        Clearly, in the brief cross-examination done by the defense attorney, Mr. Musselman, if
        not directly, he certainly implied that he gave that statement to the Court simply to get a
        deal from the State. So, I think that puts this squarely under 801(d)(1)(b), a prior
        consistent statement made before the statement we’re referring to, is one reason that it’s
        admissible.

        I’ve also looked at the other, if in fact the - - and 801 says it’s not hearsay at all. I’ve also
        looked at the other cases concerning 803, as to hearsay exceptions, and I also find that his
        statements fall under hearsay exception 803 (1) and 803 (2). It’s my understanding that
        these are statements - - this was a statement made shortly after the incident. I have looked
        - - Mr. Musselman and I had a discussion earlier about the time span. I don’t know the
        exact time span, but I know it’s after leaving the scene, catching a ride with somebody.


                                                       4
        And, I’ll hear from the witness, I believe, the - - I don’t know how many miles that is
        eight, ten miles from Moss Point. I think you said in between Moss Point and Gautier,
        which is several miles apart, so you’re not talking about a long time span. And I can’t find
        any case law that says there is any particular time involved. It’s the circumstances of the
        statement. And I’m not convinced that because they were made immediately afterwards,
        before he had time for any reflection, that they are reliable, based upon that, which would
        fall under 803(1) and fall into, but that’s all the time the Court has had to do the research.
        So, I’m denying your motion in limine and I’m going to allow the witness to testify for the
        State.

¶7.     M.R.E. 801(d)(1)(b) states in pertinent part:

        (d) Statements Which Are Not Hearsay. A statement is not hearsay if: (1) Prior
        Statement by Witness. The declarant testifies at the trial or hearing and is subject to
        cross-examination concerning the statement, and the statement is . . . (B) consistent with
        his testimony and is offered to rebut an express or implied charge against him of recent
        fabrication or improper influence or motive

The prior consistent statement of McCoy was properly admitted. McCoy, the declarant, admitted at trial

that the statement which he gave to police in accordance with his plea agreement was a true statement. In

that statement, he said that he and Wells were together when McCorvey was murdered and that they both

shot the weapon used to commit the murder at the time McCorvey was shot. He also admitted that Wells

was with him at Darius Vaxter’s trailer because he called out to him for help. However, while on the stand

McCoy stated that he was alone when he murdered McCorvey, when he shot Williams and when he pistol-

whipped Vaxter. Also during his testimony, McCoy stated on numerous occasions that he could not

remember what happened that night. McCoy was not a cooperative witness which is evidenced by the

trial judge’s statement that “Mr. McCoy’s testimony was, for lack of a better way of saying it, all over the

page, it started out he did it alone, then he went to he admitted he gave that statement. Repeatedly, McCoy

said, if he said it, it must have been true. Then he also tried to say, at one point, that he didn’t really

remember the details. So, he’s really all over the place in his testimony.”




                                                      5
¶8.     The statement made by Chris Wells is consistent with McCoy’s written statement and was offered

to rebut an express or implied charge against McCoy for fabricating a previous statement by later stating

on the witness stand that he was alone when the crimes took place. A prior inconsistent statement may be

used to rebut the testimony of a witness whose memory fails him to prevent “an unwilling witness from

seeking refuge in a lack of recollection.” Bush v. State, 667 So.2d 26, 28 (Miss. 1996).

¶9.     Chris Wells stated that McCoy said that he and Wells killed McCorvey and that Wells had left

McCoy at Vaxter’s house. This is consistent with McCoy’s earlier written statement that he and Wells

were together on the night of January 27, 1996, and that they acted together to commit the crimes. For

these reasons, we find that the trial judge properly admitted the statement McCoy made to Chris Wells

into evidence.

¶10.    The statement is also admissible in under Rule 803 (1) & (2) which states:

         The following are not excluded by the hearsay rule, even though the declarant is available
        as a witness:
        (1) Present Sense Impression. A statement describing or explaining an event or
        condition made while the declarant was perceiving the event or condition or immediately
        thereafter.
        (2) Excited Utterance. A statement relating to a startling event or condition made while
        the declarant was under the stress of excitement caused by the event or condition.

¶11.    The statement made to Chris Wells by McCoy falls under Rule 803(1) because McCoy explained

that he and Wells had killed McCorvey to Chris Wells, the first person he encountered after leaving

Vaxter’s trailer. “To be admissible under this exception, the statement must be spontaneous. The

determination of spontaneity "is a question for the trial judge, whose action should not be overturned unless

this Court would be justified in concluding that under all and any reasonable interpretation of the facts, the

exclamation could not have been spontaneous.”’Clark v. State, 693 So.2d 927, 932 (Miss. 1997) (citing

Evans v. State, 547 So.2d 38, 41 (Miss. 1989)).

                                                      6
¶12.    Upon killing McCorvey, McCoy immediately drove in Vaxter’s truck to Vaxter’s home and

assaulted both Williams and Vaxter. After his fight with Vaxter, McCoy managed to run away and flagged

down a car. In the car on the way to Gautier, McCoy told Chris Wells about the murder. In a previous

statement given to the police, Chris Wells stated that once they got around Gautier, McCoy calmed down

enough to tell him that he and Wells had killed McCorvey.

¶13.    Since Gautier and the Three Rivers Community in Jackson County are only several miles apart, we

agree with the trial court that it is inconsequential whether the statement “Me and Train done killed Frank”

was made as soon as McCoy entered the car or whether it was made in route to Gautier. In either event,

not very much time passed between the time McCoy entered the car and his statement. Therefore, we

conclude that the statement was sufficiently contemporaneous to fit within the exception and that the trial

court did not err in admitting McCoy’s statement into evidence under the M.R.E. 803(1).

¶14.    The statement made to Chris Wells by McCoy is also admissible as an excited utterance under

M.R.E. 803(2). McCoy made the statement to Chris Wells while still under the stress of startling events.

“The reliability of an excited utterance is based on the premise that circumstances may place the declarant

in such an excited state as to temporarily impede the capacity for reflection. This exception is broader in

scope than the ‘present sense impression’ exception in that the statement need only ‘relate’ to the startling

event as opposed to ‘describing’ it.” Clark v. State, 693 So.2d at 932.

¶15.    When Chris and Byron Wells picked McCoy up, he was running from the scene of a crime to

evade the police. Surely, he was still under the stress of the incident. McCoy never had time to calm down

after the murder. McCoy committed one violent attack and went on to Vaxter’s home and committed

another. Furthermore, Chris Wells testified that McCoy was excited when they picked him up and that

he could hear it in McCoy’s voice. Additionally, in an earlier statement that Chris Wells had made to the

                                                     7
police, he described McCoy as visibly upset when he got into the car. The statement made by McCoy

related to the event and was made within hours of it. In addition, the statement was made while he was

excited. Therefore, the trial court committed no error in admitting the statement into evidence under the

excited utterance exception.

         Jury Instructions

¶16.     Wells argues that jury instructions S-7 and S-11 are Hornburger instructions on aiding and

abetting and were condemned by the Supreme Court in Milano v. State, 790 So.2d 179, 184-85 (Miss.

2001).

¶17.     Jury Instruction S-7 states:

         The Court instructs the jury that each person present at the time, and consenting to and
         encouraging the commission of a crime, and knowingly, wilfully and feloniously doing any
         act which is an element of the crime, or immediately connected with it or leading to its
         commission, is as much a principal as if he had, with his own hand, committed the whole
         offense.

         Therefore, if you believe from the evidence, beyond a reasonable doubt, that the
         defendant, Dexter Tramayne Wells, was present at the time of the murder of Willie
         Sampson McCorvey, and consented and encouraged the commission of that crime, and
         did knowingly, wilfully, unlawfully, and feloniously do any act which is an element of that
         crime, or immediately connected with that crime, or leading to its commission, then you
         shall find defendant, Dexter Tramayne Wells, guilty of the crime of murder.

¶18.     Jury Instruction S-11 states:

         The Court instructs the jury that each person present at the time, and consenting to and
         encouraging the commission of a crime, or immediately connected with it or leading to its
         commission, is as much a principal as if he had, with his own hand, committed the whole
         offense.

         Therefore, if you believe from the evidence, beyond a reasonable doubt, that the
         defendant, Dexter Tramayne Wells, was present at time of the aggravated assault of
         Cynthia Williams, and consented to and encouraged the commission of that crime, and did
         knowingly, wilfully, unlawfully, and feloniously do any act which is an element of that crime,



                                                       8
        or immediately connected with that crime, or leading to its commission, then you shall find
        defendant, Dexter Tramayne Wells, guilty of the crime of aggravated assault.

Wells objected to S-11 as duplicative of jury instruction S-5.        Wells also objected to S-7 and S-11

because the court had given S-5, a general statement of the law on aiding and abetting. The attorney for

Wells made the following objection: “Judge, for the record, we object to both. The only change - - it’s a

different instruction and the only thing they added was a half sentence, to obviously, to try and get it before

the jury three times, the same principle.” Both instructions were given.

¶19.    The State correctly asserted that Wells did not preserve this issue for the purposes of appeal. The

failure of an offended party to properly object to a jury instruction bars the issue on appeal. Jones v.

State, 776 So.2d 643, 653 (Miss. 2000).

        It is . . . the rule of this Court that no assignment of error based on the giving of an
        instruction to the jury will be considered on appeal unless a specific objection was made
        to the instruction in the trial court stating the particular ground or grounds for such
        objection. However, in extreme cases, this Court may raise an objection to a jury
        instruction in order to prevent manifest injustice.

Watson v. State, 483 So.2d 1326, 1329 (Miss. 1986). “A general objection [or one different from the

one argued on appeal] to a jury instruction does not suffice to preserve the issue for appeal.” Wells made

no specific objection to jury instructions S-7 and S-11 based on the issues he has raised on appeal. For

this reason, this issue is waived. Id.



        Recross-examination

¶20.    At the conclusion of redirect examination of Officer Robert Mabens, an investigator for the Jackson

County Sheriff’s Department, the following colloquy transpired:

        BY MR. MUSSELMAN: Judge, I have one follow-up question.
        By MR. MUSSELMAN (continuing):

                                                      9
        Q. Mr. Lawrence wanted you to read a little but . I want you to read - -
        BY THE COURT:              Wait a minute. Approach the bench.
                 (At the bench.)
        BY THE COURT: We don't have recross.
        BY MR. LAWRENCE: I'd object.
        BY MR. MUSSELMAN: Judge, we want to go into the next part, about her saying
        something - -
        BY THE COURT: Which part?
        BY MR. LAWRENCE: I object, Judge.
        BY MR. MUSSELMAN: Where she says , " I'mnot trying to tell you all no story. I told
        the lady on the 911 tape." I think I can get into that.
        BY THE COURT: We don't have recross.
        BY MR. MUSSELMAN: Okay, I want to put this on the record, though, Judge.
        BY THE COURT: Go ahead.
        BY MR. MUSSELMAN: Okay. I'd proffer my recross-examination to you that I would
        have officer Mabens go through the next couple of lines, after Mr. Lawrence had him stop
        reading, where she said, "If you get that 911 tape, I told the lady," and then she said, "I'm
        not trying to tell you all no story."


¶21.    Wells contends that the trial court erred in refusing to allow him to recross-examine the investigator

in order to raise the issue of spoliation of evidence. Wells directs us to Hubbard v. State, 437 So.2d

430, 434 (Miss. 1983), for the proposition that recross- examination is allowed under Mississippi law and

that the trial judge's refusal was a violation of his constitutional rights.

¶22.    Wells correctly asserts that recross-examination is allowed. However, "recross examination may

be limited by the trial judge in his sound discretion." Id. "Denial of recross examination is appropriate

where there is no claim of oversight and no reason stated why the matter was not inquired into on the cross-

examination.” Wells did not raise a claim of oversight in his objection nor did he state a reason why he did

not inquire into to the issue during his opportunity for cross-examination. Id. A review of the record reveals

that the trial judge allowed full cross-examination and if counsel did not take advantage of that opportunity,

the error should not be imputed to the trial judge. For the reasons stated, this issue is meritless.

        Sufficiency of the Evidence

                                                        10
¶23.    Wells argues that the jury's verdict convicting him of aggravated assault and murder was not based

on legally sufficient evidence. Wells asserts that there is no testimony on any action by Wells that will satisfy

the State’s burden of proving beyond a reasonable doubt that Wells committed the elements of the crime

of aggravated assault. Well also argues that the evidence against him for the murder of McCorvey is

insufficient because the sole witness to the murder, McCoy, testified that he was alone when the crime

occurred. Wells maintains that the only testimony which linked him to the murder was the hearsay

testimony of Chris Wells.

¶24.    When reviewing the sufficiency of evidence “all evidence and inferences derived therefrom, tending

to support the verdict, must be accepted as true, while all evidence favoring the defendant must be

disregarded.” Ballenger v. State, 667 So.2d 1242, 1252-53 (Miss. 1995). A jury verdict cannot be

reversed “unless it is found that no reasonable and fairminded hypothetical juror could find beyond a

reasonable doubt that the defendant was guilty.” Id.

¶25.    One who acts with others in the commission of a crime and aids and abets is responsible as a

principal in the offense. Bass v. State, 231 So.2d 495, 496 (Miss. 1970). Miss. Code Ann § 97-3-7

(2)(a) & (b) (Rev. 2000) states:

        (2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury
        to another, or causes such injury purposely, knowingly or recklessly under circumstances
        manifesting extreme indifference to the value of human life; or (b) attempts to cause or
        purposely or knowingly causes bodily injury to another with a deadly weapon or other
        means likely to produce death or serious bodily harm;

Miss. Code Ann.§ 97-3-19(1) (a) & (b) (Rev. 2000) states:

        (1) The killing of a human being without the authority of law by any means or in any manner
        shall be murder in the following cases: (a) When done with deliberate design to effect the
        death of the person killed, or of any human being; (b) When done in the commission of an
        act eminently dangerous to others and evincing a depraved heart, regardless of human life,


                                                      11
        although without any premeditated design to effect the death of any particular individual;

¶26.    McCoy pleaded guilty to murdering McCorvey, to shooting Williams and to pistol- whipping

Vaxter. McCoy also admitted in his statement for his plea agreement that Wells shot at McCorvey and

that he called to Wells to assist him while he was fighting with Vaxter at Vaxter’s home. Furthermore,

Chris Wells testified that McCoy stated that he and Wells killed McCorvey and that Wells had left McCoy

at Vaxter’s home. Additionally, Williams testified that when McCoy called out, “Train help me. Help me.

They got me" They got me,” she realized that there was someone with McCoy. She stated that she quickly

ran to lock the door to call the police and she could see Train a/k/a Wells through the window as he tried

unsuccessfully to enter the trailer. Additionally, she identified Wells in court as the man she saw from in the

window of the trailer on the night in question. She further testified that Wells knocked the front light out

by the door and ran off when he heard her talking to the 911 operator.

¶27.     The evidence reveals that Wells acted with McCoy in the commission of the crimes of aggravated

assault against Williams and the murder of McCorvey. The jury is the finder of facts, and its duty is to

weigh the credibility and veracity of each witness. Groseclose v. State, 440 So.2d 297, 300 (Miss.

1983). The jury also had the opportunity to observe the demeanor of the witnesses. Upon hearing all of

the testimony, the jury convicted Wells of aggravated assault and murder. The evidence is sufficient that

a reasonable fair-minded juror could have found Wells guilty; therefore, no reversible error was committed.

        Sentencing

¶28.    Wells argues that Miss. Code Ann. § 47-5-139(1)(a) is unconstitutional because it makes an age-

based distinction which lengthens a criminal sentence simply because of the age of the inmate. Miss. Code

Ann. § 47-5-139(1)(a) (Rev. 2000) states in pertinent part:




                                                      12
        (1) An inmate shall not be eligible for the earned time allowance if: (a) The inmate was
        sentenced to life imprisonment; but an inmate, except an inmate sentenced to life
        imprisonment for capital murder, who has reached the age of sixty-five (65) or older and
        who has served at least fifteen (15) years may petition the sentencing court for conditional
        release;

Wells furthers contends that it is improper for the court to impose a harsher sentence for a like crime

conditioned on the age of the offender.

¶29.    Wells never raised this argument in the trial court or in his motion for JNOV or in the alternative

a new trial. This Court continues to adhere to the rule that when a party fails to raise a constitutional issue

in the trial court, that issue will not be decided on appeal. Colburn v. State, 431 So.2d 1111, 1114

(Miss. 1983). “Only matters of jurisdiction may be raised for the first time on appeal.” Id. Because this

issue was not preserved for the purposes of appeal, it is also waived.


                                             CONCLUSION

¶30.     We hold that all issues in this matter are without merit or are procedurally barred, and we affirm

the trial court's judgment.

¶31. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
(20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED COUNT II: CONVICTION OF MURDER AND
SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES SHALL RUN
CONCURRENTLY.


    PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY
AND CARLSON, JJ., CONCUR.




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