      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2014-KA-01398-COA

MARIO HARRIS A/K/A MARIO PIERRE                      APPELLANT
HARRIS

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              02/07/2014
TRIAL JUDGE:                   HON. MARGARET CAREY-MCCRAY
COURT FROM WHICH APPEALED:     LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        OFFICE OF STATE PUBLIC DEFENDER
                               BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:             WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I, MURDER, AND
                               SENTENCED TO LIFE IMPRISONMENT,
                               AND COUNT II, DRIVE-BY SHOOTING,
                               AND SENTENCED TO THIRTY YEARS,
                               WITH THE SENTENCES IN COUNTS I AND
                               II TO RUN CONCURRENTLY, ALL IN THE
                               CUSTODY OF THE MISSISSIPPI
                               DEPARTMENT OF CORRECTIONS AS A
                               HABITUAL OFFENDER WITHOUT
                               ELIGIBILITY FOR PAROLE OR
                               PROBATION
DISPOSITION:                   AFFIRMED - 03/29/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



     BEFORE LEE, C.J., BARNES AND WILSON, JJ.

     BARNES, J., FOR THE COURT:
¶1.    A Leflore County jury convicted Mario Harris (a.k.a. “Pierre”) of the murder of

Cornelius Banks (a.k.a. “Bobblehead”) and the injuring of Jared Moore in the commission

of a drive-by shooting. Harris was sentenced to life imprisonment for the murder charge, and

thirty years for the drive-by-shooting charge, to be served concurrently in the custody of the

Mississippi Department of Corrections, as a habitual offender under Mississippi Code

Annotated section 99-19-81 (Rev. 2015) without the possibility of parole or probation.

Harris now appeals, raising three issues: gruesome photographs entered into evidence

prejudiced him, the verdict was against the overwhelming weight of the evidence, and

cumulative error. Finding no error, we affirm.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    This case arises out of an early morning drive-by shooting in Greenwood, Mississippi,

on November 8, 2011. The incident occurred on the corner of McLaurin and Roosevelt

Streets in front of Reno’s Restaurant. Due to the shooting, Banks was killed, and five other

men were injured. Eyewitness accomplices Maurice Tims and Michael Johnson testified for

the State at trial, as did police officers responding to the scene, and expert witnesses.

Another passenger involved in the incident, Alfred Lacy (a.k.a. “Cali”), did not testify.

¶3.    According to Tims, late in the evening on November 7, 2011, he was driving his 1997

grey Grand Marquis near Bishop Apartments, when he was flagged down by Harris and

Michael Johnson (a.k.a. “L.L.”) in front of an abandoned house. They wanted a ride

“uptown.” Lacy joined them. Tims, smoking a marijuana blunt, agreed to give them a ride.

Harris returned to the abandoned house “to go get something.” Johnson and Lacy sat in the



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backseat, and Harris returned with a black SKS assault rifle and sat in the front-passenger

seat. Tims claimed that when he became upset about Harris’s rifle, Johnson put a gun to his

head from the rear driver’s-side seat, and told him to drive the car. Harris said, “we going

to handle this business.” Tims claimed ignorance of what the “business” was.

¶4.    Tims testified that he drove them toward Reno’s on the corner of McLaurin and

Roosevelt Streets. After making the block twice, they stopped as a crowd of people exited

Reno’s. The restaurant was on Tims’s right side. Harris stated, “there he goes right there,”

and put his window down. Harris and Lacy, both on the passenger side of the vehicle, began

shooting into the crowd outside of Reno’s. Lacy used a handgun, and Harris used the SKS

assault rifle.

¶5.    While some of Johnson’s testimony was inconsistent with that of Tims, Johnson also

testified that Harris fired the SKS rifle out of the window of Tims’s vehicle the night of the

shooting. Johnson admitted he had a gun but denied shooting it. Someone in the crowd

returned fire as they sped off. Law enforcement began chasing them. When they reached

a dead-end, the four men ran in different directions.

¶6.    The first police officer to arrive on the scene of the shooting was Officer William

Nevels of the Greenwood Police Department (Greenwood P.D.). At approximately 1 a.m.

on November 8, he was patrolling the area near McLaurin Park and heard gunshots.

Following the sound, he drove to the scene at Reno’s, where he found a black male, later

identified as Rodera Hunt, lying face down, bleeding from his back. Jared Moore was

standing near a vehicle, yelling “I’m hit.” There was an unresponsive black male, later



                                              3
identified as Banks, lying next to some garbage cans near a wall, with a gunshot wound to

his head. Three other injured men were identified as Carlos Jones, Marquazy Gray, and

Artez Gray. During Officer Nevels’s testimony at trial, a photograph of Banks’s body at the

scene was allowed into evidence, over the objection of the defense.

¶7.    Officer Rodney Spencer of the Greenwood P.D. was also on patrol that evening. He

testified that he heard multiple gunshots fired and headed toward the area near Reno’s, where

he noticed either a gray “Crown Vic” or a Grand Marquis traveling at a high speed. Officer

Spencer pursued the vehicle, which disregarded all traffic signals and his own blue lights.

At a dead-end, “four or five guys” wearing dark clothes jumped out of the vehicle and fled

on foot. Upon searching the abandoned vehicle, Officer Spencer found two guns lying on

the seat – a Norinco SKS assault rifle and a Jimenez .380 pistol.         Johnson was later

identified as the owner of the pistol.

¶8.    At the scene of the abandoned vehicle, Captain Talisa Lewis of the Greenwood P.D.

noticed a black male dressed in dark clothing running into a residence at approximately 1

a.m. on November 8. She called other officers, including Officer Spencer, to investigate the

apartment. The man who answered the door consented to a search of the dwelling. Inside,

officers discovered a small child sitting straight up in bed and “a body-like object” hiding

under the covers. Lacy was discovered hiding in the bed, naked and sweating.

¶9.    Investigator Toby Meredith of the Greenwood P.D. arrived at the scene of the

abandoned vehicle, which he testified was a 1997 Mercury Grand Marquis. He photographed

the vehicle’s tag, which was later found to be registered to Tims, and placed the two firearms



                                              4
into evidence. The pistol’s magazine was fully loaded. Inside the vehicle, Investigator

Meredith found four SKS shell casings.

¶10.   Later that morning, Tims found out the abandoned vehicle had been traced back to

him. He went to the police station and talked to Investigator Meredith. Initially, he denied

any involvement in the shooting, claiming he had been out of town and someone had

borrowed his vehicle. Later in the interview, however, he changed his story and identified

Harris, Lacy, and Johnson as being in the vehicle with him during the shooting. Of the three

other suspects, Lacy was already in custody, Johnson was apprehended three to four days

later in Greenwood, and Harris was captured ten days later in Memphis, Tennessee, by

United States Marshals.

¶11.   In June 2012, Harris, Johnson, Lacy, and Tims were co-indicted for one count (Count

I) of murder and five counts of injuring an individual during the commission of a drive-by

shooting (Counts II through VI). Later, the State moved to amend Harris’s indictment to

charge him as a violent habitual offender under Mississippi Code Annotated section 99-19-83

(Rev. 2015).1 Due to lack of cooperation from all but one of the surviving drive-by-shooting

victims, the State moved to dismiss Counts III through VI. The court granted the dismissals,

leaving the jury to consider only Count I for the murder of Banks and Count II for the injury



       1
          After Harris was convicted, an amended sentencing order was issued, sentencing
him to the maximum sentence as a habitual offender under section 99-19-81, as his two prior
felonies of burglary of a dwelling and possession of a firearm by a convicted felon did not
meet the requirements for the violent-habitual-offender statute, section 99-19-83. See
Brown v. State, 102 So. 3d 1087, 1092 (¶21) (Miss. 2012) (holding burglary of a dwelling
is not a per se “crime of violence” under section 99-19-83 absent proof of an act of violence
during the commission of the burglary).

                                             5
of Moore during a drive-by shooting.2

¶12.   During the three-day trial, testifying for the State were five Greenwood police

officers, three expert witnesses, as well as Johnson and Tims. As previously stated,

Johnson’s testimony varied from that of Tims on some matters. Johnson stated Lacy had

called him asking to borrow his vehicle to go shoot Artez Gray, but Johnson refused. He

then drove toward Bishop Apartments, where he got in the vehicle with Harris, Lacy, and

Tims. Johnson confirmed Tims’s testimony that Harris directed Tims on where to drive, and

claimed that after Harris said “there’s Artez,” Harris and Lacy opened fire.

¶13.   A letter Johnson later wrote, while out on bond, to Harris in prison was admitted into

evidence. In the letter, Johnson claimed that he just went along with a story Greenwood

police officers coerced him into telling, implicating Harris in exchange for lenient treatment

regarding his own charges. On the stand, however, Johnson said the letter “was a fake”

because he did not want to be a “snitch,” and he was just trying to help Harris. Johnson also

stated that he never put a gun to Tims’s head to make him drive.

¶14.   The State’s forensic pathologist testified that twenty-one-year-old Banks died from

two gunshot wounds, to the head and foot, respectively. The trajectory of both bullets went

from left to right. The bullet to his head entered behind his left ear and existed at the right

ear. The State’s expert forensic scientist specializing in latent-print examinations testified

that a fingerprint lifted from the front-passenger door of Tims’s vehicle matched a print

belonging to Harris. No prints were able to be lifted from the SKS assault rifle found in the



       2
           Moore was later killed in January 2013 during an unrelated shooting.

                                              6
front seat of Tims’s vehicle. The State’s firearms expert testified that three shell casings

found on the street at the scene of the shootout had been fired from the SKS assault rifle. A

bullet fragment, recovered from the seat of a vehicle at the scene, which had been shot

numerous times, was also fired from the SKS firearm. Finally, several shell casings found

in Tims’s vehicle were fired from the SKS rifle.

¶15.    Joe Ann Harris, the defendant’s mother, was the only witness to testify on his behalf.

She claimed that Harris knocked on her window at approximately 1:20 a.m. He was

intoxicated, and she helped calm him down after he became sick in her bathroom. She

claimed he was dressed in white with no jacket.

¶16.    The jury deliberated approximately fifty minutes before returning a guilty verdict on

both counts.

                               ANALYSIS OF THE ISSUES

        I.     Photograph

¶17.    Harris claims the trial court erred in admitting, over the objection of defense counsel,

a photograph of Banks’s body at the crime scene. Harris argues the photograph was more

prejudicial than probative, and introduced by the State primarily to inflame the passion of the

jury.

¶18.    Admissibility of photographs of the victim lies within the sound discretion of the trial

court, whose decision will be upheld unless there is an abuse of discretion. Manix v. State,

895 So. 2d 167, 177-78 (¶30) (Miss. 2005) (citing Brawner v. State, 872 So. 2d 1, 14 (¶37)

(Miss. 2004)). The exclusion of relevant evidence is governed by Mississippi Rule of



                                               7
Evidence 403, which states: “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury . . . .” Our supreme court has stated: “The mere fact that photographs

depict an unpleasant or gruesome scene is no bar to their admission if they are relevant.”

Walker v. State, 913 So. 2d 198, 231 (¶118) (Miss. 2005) (quoting Lanier v. State, 533 So.

2d 473, 484 (Miss. 1988)). Photographs have evidentiary value when they: “(1) aid in

describing the circumstances of the killing; (2) describe the location of the body and cause

of death; and (3) supplement or clarify witness testimony.” Id. at 232 (¶119) (quoting Spann

v. State, 771 So. 2d 883, 895 (¶31) (Miss. 2000)). “Some ‘probative value’ is the only

requirement needed to buttress a trial judge’s decision to allow photographs into evidence.”

Id. at 231 (¶118) (quoting Parker v. State, 514 So. 2d 767, 771 (Miss. 1986)).

¶19.   At trial, during Officer Nevels’s testimony describing the appearance of the crime

scene, the victims’ condition, and the bullet damage, the State offered into evidence several

photographs, including one of Banks’s body (Exhibit 11-V) to supplement Officer Nevels’s

testimony. The State responded to the defense objection by stating there were several

photographs taken of Banks’s body and head, but the State chose the least offensive one.

The photograph depicts Banks’s body and the scene around his body. His eyes and mouth

are partially open, and his ear is bloody. His head is lying in a pool of blood, and his body

is lying next to several trash cans.

¶20.   The defense offered to stipulate that Banks was found shot in the head lying by some

garbage cans instead of showing the photograph to the jury, but the State maintained the



                                             8
photograph was not unduly gruesome, stating: “[A] murder case is a murder case, and some

of it is going to be shocking. But it’s not unduly shocking, and it’s not unduly gruesome.”

The trial court ruled the photograph was admissible.

¶21.   On appeal, Harris argues the photograph is irrelevant. We fail to comprehend how

the murder victim and the scene of the crime would not be relevant to this trial where Harris

was convicted of the murder. Further, as the State notes, Harris did not make the argument

that the photograph was irrelevant at trial, just that it was gruesome and should be excluded.

A defendant’s failure to raise an issue at trial creates a procedural bar that prohibits review

of the issue on appeal. Glasper v. State, 914 So. 2d 708, 721 (¶30) (Miss. 2005). On appeal,

Harris’s relevancy argument is barred.

¶22.   Regardless of the procedural bar, the argument is also without merit. The photograph

aids in describing the circumstances in which Banks was killed, and corroborates Officer

Nevels’s testimony about where Banks’s body was found – outside of Reno’s lying near a

wall. It is also relevant as to who made the fatal shot due to the trajectory of the bullet in

relation to where the accomplices testified that Harris was sitting in the vehicle – on the

right-passenger side shooting into the crowd. The photograph also supplements the forensic

pathologist’s testimony that Harris died from a gunshot wound to the head, but since the

photograph is from a distance, and not a close-up of the victim’s head, it is not overly

gruesome. The photograph aided and clarified many witnesses’ testimony, thereby having

probative value to show how Banks was murdered by Harris. This value outweighed any

prejudicial effect.



                                              9
       II.     Weight of the Evidence

¶23.   Harris claims that the weight of the evidence was insufficient to support his conviction

because of the lack of physical evidence and because two of the State’s witnesses – Tims and

Johnson – were not credible. “When reviewing a denial of a motion for a new trial based on

an objection to the weight of the evidence, we will only disturb a verdict when it is so

contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). The

evidence will be viewed in the light most favorable to the verdict. Id. Regarding

inconsistent or contradictory testimony, “[j]urors are permitted, and indeed have the duty[,]

to resolve the conflicts in the testimony they hear.” Stephens v. State, 911 So. 2d 424, 436

(¶38) (Miss. 2005) (citation omitted). “Who the jury believes and what conclusions it

reaches are solely for its determination.” Id. “Finally, a limited amount of physical evidence,

in itself, does not mean that a guilty verdict was against the weight of the evidence.”

Blanchard v. State, 55 So. 3d 1074, 1079 (¶25) (Miss. 2011) (citation omitted).

¶24.   Tims’s and Johnson’s testimony was key to Harris’s conviction. Both men placed

Harris in the vehicle, with an SKS assault rifle, shooting into a crowd of people outside of

Reno’s. After the shooting, the four men fled in Tims’s vehicle, attempting to evade law

enforcement.    They abandoned the vehicle and fled on foot.            Their testimony also

corroborated other testimony, including Officer Spencer and Captain Lewis’s recount of the

chase, and their finding Lacy hiding in an apartment. Additionally, Tims’s testimony that

Harris was shooting out of the vehicle’s window was confirmed by the ballistic expert’s



                                              10
testimony that shell casings were found in the front of Tims’s vehicle and had been

discharged from the assault rifle. Further, Harris’s fingerprints were found on the front-

passenger door of Tims’s vehicle.

¶25.   Their testimony differed only on such points as how the four men initially came

together that evening, whether Johnson placed a gun to Tims’s head and ordered him to

drive, and whether the men were aware they were driving to the McLaurin Park area to shoot

Artez Gray. However, it was the jury’s province to weigh these inconsistencies and

determine credibility. Finally, the jury found Johnson’s testimony discounting his letter to

Harris more credible than the letter itself, which claimed a police conspiracy to convict

Harris. The jury verdict was not contrary to the weight of the evidence.

       III.   Cumulative Error

¶26.   Harris claims his conviction should be reversed due to the cumulative effect of any

errors. “[I]ndividual errors, which are not reversible in themselves, may combine with other

errors to make up reversible error, where the cumulative effect of all errors deprives the

defendant of a fundamentally fair trial.” Ross v. State, 954 So. 2d 968, 1018 (¶138) (Miss.

2007) (citation omitted). However, when there is no error found in the alleged errors, there

can be no cumulative error. Hughes v. State, 892 So. 2d 203, 213 (¶29) (Miss. 2004)

(citation omitted). Here, there were no individual errors, thus no cumulative error.

¶27.   For the above reasons, we affirm Harris’s conviction and sentence.

¶28. THE JUDGMENT OF THE CIRCUIT COURT OF LEFLORE COUNTY OF
CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE, AND COUNT
II, DRIVE-BY SHOOTING, AND SENTENCE OF THIRTY YEARS, WITH THE
SENTENCES TO RUN CONCURRENTLY, ALL IN THE CUSTODY OF THE

                                            11
MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER
WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LEFLORE COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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