        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-01554-COA

MARCELLOS COLEMAN A/K/A MOOSE                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         07/27/2015
TRIAL JUDGE:                              HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: MOLLIE M. MCMILLIN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF COUNT I, MURDER, AND
                                          SENTENCED TO LIFE; AND COUNT II,
                                          KIDNAPPING, AND SENTENCED TO
                                          THIRTY YEARS, WITH THE SENTENCES
                                          TO RUN CONCURRENTLY IN THE
                                          CUSTODY OF THE MISSISSIPPI
                                          DEPARTMENT OF CORRECTIONS
DISPOSITION:                              AFFIRMED - 04/25/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    On June 11, 2015, Marcellos Coleman was convicted in Hinds County Circuit Court

for the kidnapping and murder of Duan Penn. On the murder conviction, Coleman was

sentenced to life imprisonment, and on the kidnapping conviction, he was sentenced to thirty
years’ imprisonment, with the sentences to run concurrently. Coleman timely appeals and

asserts that the circuit court erred in allowing the State to make improper prejudicial

comments during its closing argument and, as such, denied him his constitutional right to a

fair trial. We disagree. We find that the circuit court did not err, and we affirm Coleman’s

convictions.

                                         FACTS

¶2.    On April 11, 2012, at approximately 1:20 a.m., officers with the Jackson Police

Department responded to an emergency call regarding a fire.           The fire department

extinguished the burning object, and the officers discovered that the burning object was the

human body of an unidentified male. The body was too badly burned to determine the race

of the victim. Fragments of a blue tarpaulin were found near the body, and rope was

recovered from the lower right leg of the victim. The body was found near a marshy area,

and it appeared the tarpaulin was dragged across the grass to where the body was discovered.

Additionally recovered at the crime scene were duct tape around the victim’s mouth, rope

around the victim’s ankles, fragments of what was likely a t-shirt around the victim’s neck,

and charred socks on each foot.

¶3.    The victim’s body was not identified until approximately one month after its

discovery, when the victim was reported missing by his brother. After using dental records,

it was determined that the victim was the man’s missing brother, Duan Penn.

¶4.    While investigating Penn as a missing person, officers were informed that Coleman,

Marcus Shelby, and Janice Pittman were involved in killing Penn. Officers drove to



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Coleman’s house to speak with him and saw a blue tarp in Coleman’s yard. They then

obtained and executed a search warrant for Coleman’s house, where they discovered a blue

tarp and a “burn pile” where debris was burned. The officers interviewed Pittman,

Coleman’s next-door neighbor, and she explained both her and Coleman’s involvement in

Penn’s death.

¶5.    Pittman testified that on April 10, 2012, she was asleep with her boyfriend in her

house. She explained that she was jarred awake by screaming outside of her window. She

testified that she got out bed, walked to her front porch to investigate, and saw four men

standing over a man—who was later identified as Penn—on the ground. She said Coleman

demanded to know where his stuff was and then kicked Penn. She testified that she saw fire

rising from where Penn was on the ground, and that it looked like the men were trying to

stomp out the fire. Of the four men, Pittman was only able to identify Coleman and Shelby.

She testified that one of the unidentified men approached her and told her that Penn

implicated Pittman’s daughter in a burglary that had occurred at Coleman’s house a few days

earlier.1 The unidentified man asked Pittman if she was going to confront Penn for his

allegations, to which she responded affirmatively by hitting Penn approximately four times.

After beating Penn, Pittman went back inside her house to change her bloody shirt. She gave

the shirt to the unidentified man to put in the burn pile at Coleman’s house, and noted that

it appeared that Penn’s genitals had been burned.

¶6.    Pittman said she then saw two men carry Penn into Coleman’s back yard. A few

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         A few days prior to the murder, Coleman’s house was burglarized while he was in
jail overnight. Neighbors implicated Penn in the burglary.

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minutes later, she saw two of the men come from the back yard carrying something that was

wrapped up and loaded it into the trunk of one of the cars. Coleman then handed her a small

gas can from his house and asked her to go get a gallon of gas. She returned with the gas,

and the men drove off.

¶7.    On cross-examination, Pittman told the jury that a few days earlier, Coleman and Penn

had an argument that resulted in Coleman shooting the ground next to Penn’s feet. This story

was confirmed by another neighbor, Earnest Hendricks, who testified that the argument

began when Coleman asked Penn about burglarizing his house. Hendricks testified that on

the night of the murder, Penn attended a barbeque at Coleman’s house, where Coleman

accused Penn of burglarizing his house.

¶8.    Sacquana Collins, Pittman’s roommate, testified similarly to Pittman. However,

Collins said she saw Coleman set a man on fire, and said when the man’s body was being

carried to the backyard, Coleman gave orders directing the others.

¶9.    Coleman testified in his own defense and said that he and Penn had been good friends

for several years and that he never suspected Penn of burglarizing his home. He said Pittman

told him Penn broke into his home, but he said he did not believe her. Coleman testified that

he accidentally shot the gun near Penn and that he was actually telling Penn he would protect

him. When he testified at trial, it was clear that Coleman’s version of the events differed

substantially from Pittman’s and the other witnesses’.

¶10.   Coleman testified that on the day of the murder, he had friends over for a barbeque

to celebrate his birthday. Penn approached him and said that he had information regarding



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the burglary that had occurred at Coleman’s house a few days prior. He testified that Pittman

then confronted Penn and alleged that Penn was spreading rumors about her daughter’s

involvement in the burglary. The pair exchanged tense language, before Pittman attacked

Penn and knocked him down. Coleman testified that this occurred while he was tending to

the flaming grill and that he tried to break up the fight, but Pittman’s boyfriend was

ultimately the one who ended it.

¶11.   Coleman told the jury that after the fight, he went inside his house and fell asleep with

his girlfriend, Quinyetta Billups, at approximately 10:15 p.m. He testified that his girlfriend

woke him up at midnight, complaining of a noise outside, but the pair fell back asleep until

she left the house around 2:00 a.m. Coleman said he then talked on the phone from roughly

2:30 a.m. until 6:00 a.m. with his other girlfriend. Coleman denied that Penn was kidnapped

and murdered at his house.

¶12.   Prior to trial, the circuit court declared Billups unavailable under Mississippi Rule of

Evidence 804(b)(1).2 Billups previously testified at an earlier habeas corpus proceeding, and

defense counsel read the prior statement into evidence. In the statement, Billups testified that

she was with Coleman from approximately 10:00 p.m. until around 2:00 a.m. She said she

noticed “a little bit of commotion going on next door,” but that nothing occurred at

Coleman’s house. She testified that Coleman’s two sons were the only other people at the

house besides her and Coleman.

¶13.   After deliberations, the jury returned guilty verdicts on both counts. Coleman timely

       2
        After a diligent search, neither the sheriff’s office nor a private investigator could
locate Billups.

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appeals and asserts that the State made improper comments in its closing argument, thus

rendering his trial unfair.

                                      DISCUSSION

¶14.   “The standard of review which this Court must apply to lawyer misconduct during

opening statements or closing arguments is ‘whether the natural and probable effect of the

improper argument is to create unjust prejudice against the accused so as to result in a

decision influenced by the prejudice so created.’” Wilson v. State, 194 So. 3d 855, 864 (¶30)

(Miss. 2016). “The purpose of a closing argument is to fairly sum up the evidence.” Id.

Prosecutors “are not allowed to employ tactics which are ‘inflammatory, highly prejudicial,

or reasonably calculated to unduly influence the jury.’” Id. “The prosecutor may comment

upon any facts introduced into evidence, and he may draw whatever deductions and

inferences that seem proper to him from the facts.” Id. “[I]mproper remarks made during

closing arguments can be harmless error where the evidence of guilt is overwhelming.”

Moffett v. State, 156 So. 3d 835, 858 (¶65) (Miss. 2014).

¶15.   During closing argument, the State discussed Billups’s absence from the trial and

commented: “Recall this little statement that was read today by a witness who wasn’t here.

And you’re able to use your good common sense and sound, honest judgment. Maybe she

didn’t—.” At that point, defense counsel objected that the State’s comment was an improper

argument; however, the circuit court overruled the objection saying, “this is closing

argument. I’ll allow it. I believe the jury can make reasonable inferences from the evidence

presented. So I am going to allow it.” The State continued its argument asserting that



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Billups was absent because “maybe she [did not] want to perjure herself. Maybe somebody

told her about, that was a crime. I don’t know. What I do know is an alibi witness who

allegedly was there with [Coleman], didn’t face y’all.” Defense counsel failed to object at

this point.

¶16.   Coleman further argues that the State made improper comments when it noted that

Coleman had multiple girlfriends and that “to be a cheater you know you got to be extra

slick.” The prosecutor went further to say that when somebody has multiple girlfriends,

“you[’re] talking about manipulation [and] [h]ow much more manipulative can you get.”

Additionally, Coleman asserts that the prosecutor improperly commented that Coleman

“hoodwinked our government” because he drew military disability checks. The prosecutor

argued that when he had seen Coleman the previous day, nothing appeared to be physically

or mentally wrong with him. Defense counsel failed to object to these statements as well.

¶17.   “In general, the failure to object to the prosecution’s statements in closing argument

constitutes a procedural bar.” Ross v. State, 954 So. 2d 968, 1001 (¶71) (Miss. 2007).

Despite the procedural bar, this Court may address the statements if they were “so

inflammatory that the trial judge should have objected on his own motion.” O’Connor v.

State, 120 So. 3d 390, 399 (¶23) (Miss. 2013). We find that the prosecutor’s statements were

not so inflammatory that the circuit judge should have objected on his own motion. Nor do

we find that the natural and probable effect of the improper arguments created unjust

prejudice against Coleman. The case presented by the State provided overwhelming

evidence of Coleman’s guilt, and any error that may have occurred was harmless error.



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Therefore, we find that these arguments are without merit, and as such, we affirm.

¶18. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, OF CONVICTION OF COUNT I, MURDER, AND
SENTENCE OF LIFE; AND COUNT II, KIDNAPPING, AND SENTENCE OF
THIRTY YEARS, WITH THE SENTENCES TO RUN CONCURRENTLY IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS
COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.




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