Marvin Terrell King v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2008-KA-01509-SCT

MARVIN TERRELL KING

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/23/2006
TRIAL JUDGE: HON. MARGARET CAREY-McCRAY
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS
BY: PHILLIP BROADHEAD
LESLIE S. LEE
HOWARD Q. DAVIS, JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY, JR.
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/26/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRAVES, P.J., DICKINSON AND CHANDLER, JJ.

CHANDLER, JUSTICE, FOR THE COURT:

¶1. Marvin Terrell King was convicted of the murder of Woquin Robinson, two counts

of aggravated assault, and conspiracy. The Circuit Court of Washington County sentenced

King to life in the custody of the Mississippi Department of Corrections for murder, fifteen

years for each aggravated-assault conviction, and twenty years for conspiracy, with all

sentences to run concurrently. In this appeal, King challenges the sufficiency of the evidence
of murder and the weight of the evidence. He also contends that forensic pathologist Dr.

Stephen Hayne testified outside his area of expertise, and that this constituted plain error.

Because the evidence was sufficient to permit a rational jury to find all the elements of

murder, the verdict was not against the overwhelming weight of the evidence, and the

admission of Dr. Hayne’s testimony was not plain error, this Court affirms King’s

convictions and sentences.

FACTS

¶2. At approximately 2:00 a.m. on May 9, 2004, the L&L Club in Leland, Mississippi,

closed, discharging its patrons into the night. When Byron Jones left the L&L Club, he

called Marvin King and expressed his anger at some other club patrons. King was at his

home with Ja’Quarius Wright. Wright testified that, after speaking with Jones, King

produced an SKS assault rifle and asked Wright if he wanted to check into the situation.

Wright and King, with Wright driving, left in Wright’s car, picked up Jones, and drove to the

L&L Club. On the way, King passed Jones a .38 caliber handgun. According to Wright,

Jones said he was angry and he was tired of people messing with him.

¶3. The three waited at the club and then drove to a nearby Double Quick convenience

store. There they saw Robinson, along with Nacardis Williams, Derantez Blue, and Jimmy

Lowe, whom Robinson had just picked up from the L&L Club. According to Jones, King

said “Let’s get him.” The three parked at a carwash near the Double Quick and observed

Robinson, Williams, Blue, and Lowe get into Robinson’s car. Robinson was driving;

Williams sat in the front passenger seat; Lowe sat in the back seat behind Robinson; and Blue

sat next to Lowe.

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¶4. Wright, King, and Jones followed Robinson’s car. Jones surmised that Robinson

planned to drop off Williams at his girlfriend’s house on Lewis Street. Jones testified that

he and King agreed that, when Robinson dropped off Williams, King would shoot at the car,

and Jones would shoot at Williams. Wright heard their plan. Wright dropped off King and

Jones at the street corner. According to both Jones and Wright, when they exited the car,

King had the rifle and Jones had the .38. Jones testified that he and King hid in the bushes

and waited for Robinson’s car to stop. When Williams exited the car, they opened fire.

Jones testified that he fired two shots in Williams’s direction, but with the intent to scare

Williams, not to shoot him. Jones testified that he saw King rapid-fire the rifle at the car.

Jones ran away and heard the firing continue. A bullet traveled into the car, through the

driver’s side headrest, and struck and killed Robinson. Blue and Lowe received minor bullet

wounds.

¶5. After the shooting, Jones and King met nearby. Jones called Wright, who picked them

up. King instructed Wright to drive to the home of Charles Thomas. Once there, King called

Thomas, who came outside. King handed the rifle to Thomas and asked him to hold the rifle

for him. Then, King exited the car. Wright dropped off Jones several blocks away. Later,

Thomas turned the rifle over to the police. Jones testified that he gave the .38 handgun to his

brother Derrick, and that Derrick later traded it for another firearm.

¶6. King, Wright, and Jones were indicted for murder, two counts of aggravated assault,

and conspiracy. Jones testified that the State had offered him a plea deal of twenty years for

manslaughter. He testified that his testimony was the truth and that he had not been promised

a lighter sentence in exchange for it. Wright testified that he had not pleaded guilty; there

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had been no plea offer from the State; and his testimony was motivated by a desire to do the

right thing. Both Jones and Wright testified that they had lied in their prior statements to the

police.

¶7. Robinson’s car had been riddled with bullet holes, and the police recovered seventeen

shell casings at the scene. Starks Hathcock, of the Mississippi Crime Laboratory, matched

sixteen of these shell casings to the rifle. He testified that the projectile that killed Robinson

could not positively be included or excluded as having been fired by the rifle. But Dr. Hayne

testified that, given the distance of the shooters in relation to the car, the fact that the fatal

bullet had traveled through the car and the headrest, and the condition of Robinson’s wound,

the murder weapon was most probably a high-velocity weapon such as a rifle, not a .38

handgun.

¶8. The defense attempted to create reasonable doubt by highlighting inconsistencies in

the testimony, especially the fact that Williams had identified Jones’s brother, Derrick Jones,

as the second shooter. Williams gave a statement to the police identifying the “Jones Boys”

as the shooters; he stated that he was sure that Jones and Derrick were the shooters.

However, Williams stated that he had not seen the shooters until after the gunfire had begun.

Lowe testified that Derrick had been with Jones, King, and Wright in Wright’s car when it

had circled the Double Quick. Lieutenant Juan Overton testified that he had seen Derrick

and Jones leave the L&L Club separately at approximately 2:00 a.m. When Jones left, he

had burst angrily out of the club and cursed. Shortly thereafter, Derrick had left with his

girlfriend and others. Lieutenant Overton testified that, when he investigated Derrick’s

whereabouts at the time of the shooting, he discovered that Derrick had checked into a motel

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in Greenville with his girlfriend shortly after 2:00. a.m. The motel clerk identified Derrick

from a photo line-up, and Derrick had filled out a card upon check-in. Lieutenant Overton

testified that, based on this information, Derrick was excluded as a suspect.

¶9. A cautionary jury instruction was given concerning the accomplice testimony of Jones

and Wright. The jury found King guilty of the murder of Robinson, the aggravated assault

of Lowe and Blue, and conspiracy.

DISCUSSION

I. WHETHER THE EVIDENCE SUPPORTING THE MURDER
CONVICTION WAS SUFFICIENT TO SUPPORT THE VERDICT.

¶10. King filed a motion for a judgment notwithstanding the verdict (JNOV), which was

denied by the trial court. King argues that the State’s evidence consisted of accomplice

testimony from Jones and Wright that was substantially impeached on cross-examination,

and that the evidence evinced an incomplete police investigation. Therefore, he argues, the

evidence was not sufficient to support the verdict of guilty of murder. In King’s brief, he

limits his sufficiency arguments to the murder conviction. Accordingly, this Court confines

the sufficiency analysis to the evidence supporting King’s murder conviction.

¶11. In reviewing the sufficiency of the evidence, the relevant question is whether,

considering the evidence in the light most favorable to the verdict, a rational jury could have

found every essential element of the offense beyond a reasonable doubt. Bush v. State, 895

So. 2d 836, 843 (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979)). We will affirm if the evidence is of “such quality and weight

that, ‘having in mind the beyond a reasonable doubt burden of proof standard, reasonable

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fair-minded men in the exercise of impartial judgment might reach different conclusions on

every element of the offense.’” Id. (quoting Edwards v. State, 469 So. 2d 68, 70

(Miss.1985)). We will reverse and render the conviction if the facts and inferences, although

considered in the light most favorable to the verdict, “point in favor of the defendant on any

element of the offense with sufficient force that reasonable men could not have found beyond

a reasonable doubt that the defendant was guilty.” Id.

¶12. In order to establish King’s guilt of murder, the State was required to prove beyond

a reasonable doubt that King killed Robinson without the authority of law and with deliberate

design to effect his death. See Miss. Code Ann. § 97-3-19 (Rev. 2006). In addition to a

murder instruction, the trial court also gave jury instructions on accomplice liability that

allowed the jury to find King guilty of murder if it found that another person who acted in

concert with King killed Robinson. Mississippi Code Section 97-1-3 provides: “Every

person who shall be an accessory to any felony, before the fact, shall be deemed and

considered a principal, and shall be indicted and punished as such; and this whether the

principal have been previously convicted or not.” Miss. Code Ann. § 97-1-3 (Rev. 2006).

This Court has defined aiding and abetting as “the offense committed by those persons who,

although not the direct perpetrators of a crime, are yet present at its commission, doing some

act to render aid to the actual perpetrator.” Smith v. State, 237 Miss. 498, 506, 115 So. 2d

318, 322 (1959) (quoting Wynn v. State, 63 Miss. 260 (1885)). The State must prove that

the defendant was “present, consenting, aiding, and abetting such person in the commission

of the crime charged.” Brooks v. State, 763 So. 2d 859, 861 (Miss. 2000) (quoting Van

Buren v. State, 498 So. 2d 1224, 1227 (Miss. 1986) (overruled on other grounds)). “Aiding

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and abetting in the commission of a crime involves a community of unlawful purpose at the

time the act was committed.” Shedd v. State, 228 Miss. 381, 386, 87 So. 2d 898, 900 (1956).

¶13. King points to certain discrepancies brought out during the testimony of accomplices

Jones and Wright. The following are the most glaring discrepancies identified by King.

Both Jones and Wright gave prior statements to the police that were inconsistent with their

trial testimony. In Jones’s initial statement, he denied his own involvement in the shooting.

During Jones’s testimony, he initially said that King had made the comment that he was

“tired of these weak-a-- n-----s and this b-------t.” But when pressed, Jones admitted that he,

not King, had made that statement. Wright gave two statements to the police that conflicted

with his trial testimony. In the first statement, Wright said he and King had been driving

around that night and they had not seen Jones at all. In the second statement, he said King

had no weapon when he exited the car at the scene of the shooting, and that neither Jones nor

King had weapons when he picked them up. Also, Wright previously had claimed that Jones

had admitted having fired shots at the car, while at trial, Wright testified that Jones had said

he had hidden in the bushes during the shooting. King also points to discrepancies in the

testimony concerning who passed the rifle out of the car window to Thomas. On direct

examination, Wright said King had passed Thomas the rifle, but on cross-examination

admitted he had told police that both King and Jones had passed Thomas the rifle. King

argues that the testimony established a motive for Jones, not King. King asserts that, from

Jones’s and Wright’s testimony, it was impossible for the jury to determine what happened

the night of the shooting.

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¶14. The Court finds that, viewing the evidence and all reasonable inferences to be drawn

from the evidence in the light most favorable to the verdict, the evidence was sufficient to

enable a rational jury to find beyond a reasonable doubt that King committed all the elements

of murder. Generally, the resolution of conflicts in the witness testimony is a matter for the

jury, not the court. Christmas v. State, 10 So. 3d 413, 423 (Miss. 2009). Concerning the

sufficiency of the evidence when a conviction rests upon accomplice testimony, the

uncorroborated testimony of an accomplice may be sufficient to convict the accused.

Williams v. State, 32 So. 3d 486, 490 (Miss. 2010). But if the accomplice testimony is

uncorroborated and is unreasonable, self-contradictory, or substantially impeached, then

accomplice testimony is insufficient, and the trial court must direct a verdict of not guilty.

Id. (quoting Ballenger v. State, 667 So. 2d 1242, 1253 (Miss. 1995)).

¶15. The Court finds that the testimony of accomplices Jones and Wright was not

unreasonable, self-contradictory, or substantially impeached. Thomas testified that he was

with Wright and King at King’s house that night. Wright testified that, after getting a call

from Jones, King got a rifle and they drove to pick up Jones. Thomas testified that King had

shown him this rifle months before. Jones testified he was picked up by King and Wright.

Lowe testified that he saw King in Wright’s car as it circled the Double Quick. Jones and

Wright testified that King and Jones had formulated a plan in which King would shoot at the

car and Jones would shoot at Williams. Jones testified that he saw King fire numerous shots

at the car, and heard more shots fired as he ran away. Thomas, who cooperated with the

police and was not an accessory before the fact, testified that, after the shooting, King had

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arrived in a car with Wright and Jones, had given him the rifle, and had asked him to hold

it for him. This testimony corroborated that of Wright and Jones.

¶16. King also asserts that the State’s evidence rested upon an incomplete police

investigation into the possibility that Derrick was the second shooter. He points out that

Sergeant Byron Vaughn testified that his conversation with Williams led him to suspect King

and Jones. On cross-examination, Sergeant Vaughn admitted that Williams had identified

Derrick as a shooter, but that he had been excluded on the basis of alibi. The police records

included no information about the investigation of Derrick’s alibi. King argues that the

investigation was incomplete and that the evidence established Derrick should not have been

excluded as a suspect because Williams had identified him as the second shooter, and the

exact time that Derrick had checked into the hotel had not been established.

¶17. Although Williams stated that he was sure Derrick was the second shooter, the police

determined that Derrick had checked into a hotel in Greenville at approximately the same

time as the shooting. The determination that Derrick was not the second shooter additionally

was supported by: (1) the motel check-in card, (2) the motel clerk’s identification of Derrick,

(3) the fact that Lieutenant Overton had seen Derrick leave the L&L Club separately from

Jones, (4) the inference that Williams may not have seen clearly the second shooter during

the gunfire, and (5) the evidence that King was the second shooter.

¶18. The evidence and all reasonable inferences to be drawn therefrom, taken in the light

most favorable to the verdict, were sufficient to enable the jury to find King guilty of the

essential elements of murder. Moreover, even if the jury believed that Jones, not King, fired

the fatal bullet, the above evidence was sufficient to find King guilty as a principal under an

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accomplice-liability theory. This is because the evidence, taken in the light most favorable

to the verdict, sufficiently established that King was “present, consenting, aiding, and

abetting [Jones] in the commission of the crime charged,” and that King and Jones had shared

a community of unlawful purpose. Brooks, 763 So. 2d at 861 (Miss. 2000) (quoting Van

Buren, 498 So. 2d at 1227); Shedd, 228 Miss. at 386, 87 So. 2d at 900. This issue is without

merit.

II. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.

¶19. A challenge to the weight of the evidence is raised in a motion for a new trial, and is

addressed to the trial court’s discretion. Bush, 895 So. 2d at 844. On review, this Court will

disturb a verdict only when it is so contrary to the overwhelming weight of the evidence that

to allow it to stand would sanction an unconscionable injustice. Id. Unlike a reversal based

on the sufficiency of the evidence, a reversal based on the weight of the evidence does not

indicate that acquittal was the only proper verdict. “Rather, as the ‘thirteenth juror,’ the court

simply disagrees with the jury’s resolution of the conflicting testimony.” Id. Nonetheless,

the power to grant a new trial should be exercised only where the evidence preponderates

heavily against the verdict. Id.

¶20. King argues that inconsistencies in the testimony, the evidence of inadequate police

investigation, and the fact that Williams had identified Derrick as the second shooter

rendered the verdict against the overwhelming weight of the evidence. King argues that

Jones was not credible because he had a plea recommendation from the State of twenty years

for manslaughter, which motivated him to lie to implicate King. King also points out that

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Derrick was Jones’s brother and Wright’s cousin, which King posits, shows that Jones and

Wright had a motive for framing King to exculpate Derrick.

¶21. We find that the evidence did not preponderate so heavily against the verdict that the

failure to grant a new trial would sanction an unconscionable injustice. The basic evidence

supporting the verdict was that King and Jones had entered into a conspiracy to shoot at

Robinson’s car and its occupants, that they were armed with guns when Wright dropped them

off, that Jones saw and heard King shoot at the car, that King gave the rifle to Thomas, and

that Robinson was killed and two occupants injured in the shooting. It is true that there were

some inconsistencies in the testimony and that the accomplices’ trial testimony varied from

their prior statements to the police. However, the testimony of Jones and Wright was

identical in material particulars. The nature of Jones’s plea offer and the familial

relationships were explored thoroughly at trial. Nothing about this evidence so erodes the

credibility of the accomplice testimony as to compel this Court’s reversal of the jury verdict.

The verdict of guilty of murder, conspiracy, and two counts of aggravated assault was not

against the overwhelming weight of the evidence.

III. WHETHER DR. HAYNE’S OPINION THAT A RIFLE WAS THE
MURDER WEAPON EXCEEDED THE SCOPE OF HIS EXPERTISE AND
CONSTITUTED PLAIN ERROR.

¶22. Dr. Hayne was qualified to render expert testimony in the area of forensic pathology.

Accordingly, he testified about his autopsy findings as to the cause of death and the manner

of death. Dr. Hayne testified that Robinson was killed by a bullet that struck him in the back

of the head. The prosecution also elicited testimony from Dr. Hayne concerning the probable

velocity of the fatal bullet, given the characteristics of the wound, the distance of the

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shooters, and the opinion that, because the bullet had traveled through the car and through

the headrest before striking Robinson, the bullet was fired from a high-velocity weapon such

as an SKS rifle. Dr. Hayne also gave the following detailed information about bullet

velocity:

Q. Are you familiar with the, as far as projectiles or shots being fired from a
.38 caliber handgun, as far as what manner or what speed they travel?

A. They travel, for lead ball ammunition, wide cutter ammunition, they would
be traveling out of a .38 at about 750, 800 feet per second.

Q. Are you familiar with it as from an SKS?

A. Yes.

Q. What is that?

A. The velocity at the muzzle of an SKS would be approximately 2650 feet per
second.

Q. How does that affect your determination?

A. Well, the velocities, counselor, correspond significantly to the amount of
kinetic energy. As you increase the velocity, the amount of force goes up to
the square. You multiply the velocity times the velocity.
The velocity becomes a critical issue in determining amount of force in
a bullet when it strikes a target. If you increase the mass of the bullet by
doubling it, it increases the kinetic energy by a factor of two. If you double the
velocity, the speed of the bullet, it increases the force by a factor of four. So,
you can see that velocity is more important than mass, the weight of the bullet.
Speed becomes a critical issue. The faster the bullet is going, the more
the striking power, the more the kinetic energy, the more force that the bullet
has. That’s why bullets are made with high velocity capability. Military
rounds have high velocity weapons because of the injuries that they can inflict
with them.

Q. So, Dr. Hayne, in your opinion, what type of weapon caused the injuries
to Woquin Robinson?

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 A. Given the scenario you gave me, the distances, two intermediate targets,
and the injuries observed, I would favor a long barreled weapon, a rifle
weapon.

¶23. King argues that Dr. Hayne went beyond his expertise as a forensic pathologist by

testifying in the field of weaponry and ballistics. “Counsel must object contemporaneously

to inadmissible evidence in order to preserve the error for appeal.” Boyd v. State, 977 So.

2d 329, 337 (Miss. 2008). King admits that he did not object contemporaneously to Dr.

Hayne’s testimony. He urges our consideration of his argument under the plain-error

doctrine, which permits this Court to review an “obvious error which was not properly raised

by the defendant on appeal, and which affects a defendant’s ‘fundamental, substantive

right.’” Smith v. State, 986 So. 2d 290 (Miss. 2008). “It has been established that where

fundamental rights are violated, procedural rules give way to prevent a miscarriage of

justice.” Gray v. State, 549 So. 2d 1316, 1321 (Miss. 1989).

¶24. For his argument that the admission of Dr. Hayne’s testimony constituted plain error,

he cites Edmonds v. State, 955 So. 2d 787 (Miss. 2007). In Edmonds, Dr. Hayne had

testified that, from his examination of the murder victim, the fatal wound was consistent with

two people having held the gun when it was fired. Id. at 791. The Court found that this

opinion was scientifically unfounded. Id. at 792. We stated:

While Dr. Hayne is qualified to proffer expert opinions in forensic pathology,
a court should not give such an expert carte blanche to proffer any opinion he
chooses. There was no showing that Dr. Hayne's testimony was based, not on
opinion or speculation, but rather on scientific methods and procedures. The
State made no proffer of any scientific testing performed to support Dr.
Hayne's two-shooter theory. Therefore, the testimony pertaining to the
two-shooter theory should not have been admitted under our standards.

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Id. (citation omitted). This Court further found that Edmonds had been substantially

prejudiced by the admission of the testimony. Id. This was because Dr. Hayne’s testimony

had the imprimatur of scientific expertise and because it was the only evidence other than

Edmonds’s contested confession that supported the State’s theory. Id. Edmonds had

preserved the issue for appellate review. Id.

¶25. King also cites Wilson v. State, 21 So. 3d 572, 588 (Miss. 2009), for the proposition

that this Court affords plain-error review to the improper admission of testimony by Dr.

Hayne. King’s argument is misplaced, because that was not the holding of Wilson. Wilson

argued that, based upon Edmonds, Dr. Hayne’s credibility in the area of forensic pathology

and the reliability of his testimony was objectively questionable in every case, and also that

its admission violated his due-process rights. Id. at 588. This Court held that the argument

was procedurally barred for lack of an objection. Id. However, in the alternative to the

procedural bar, this Court addressed Wilson’s arguments and found them to be without merit.

Id. at 589. We found that Edmonds did not hold that Dr. Hayne was not qualified to testify

as an expert witness in the area of forensic pathology. Id. In its analysis in Wilson, this

Court did not invoke plain-error review.

¶26. This issue is procedurally barred for lack of an objection. Boyd, 977 So. 2d at 337.

But even if Dr. Hayne’s testimony exceeded the scope of his expertise in forensic pathology,

its admission does not implicate plain-error review. Because Hathcock, the ballistics expert,

was unable to match the bullet retrieved at the autopsy with the SKS rifle, Dr. Hayne’s

testimony was the only evidence that purported to link the fatal bullet with the SKS rifle. But

even without the testimony that the wound was consistent with having been fired by the SKS

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rifle, the evidence was sufficient to enable the jury to find King guilty of murder. Wright

saw King exit the car with the rifle, and he saw Jones exit the car with the .38. Jones testified

that King had fired the rifle at the car, and he had fired at Williams with the .38. From this

evidence, it is reasonable to infer that the fatal bullet came from the SKS rifle fired by King.

Even if the jury believed that the fatal bullet came from the .38 fired by Jones, the evidence

sufficiently established King’s guilt as an aider and abetter. Therefore, plain-error review

is not implicated by the admission of Dr. Hayne’s testimony.

CONCLUSION

¶27. The evidence was sufficient to support the murder conviction, and the verdict of guilt

of murder, two counts of aggravated assault, and conspiracy was not against the

overwhelming weight of the evidence. The admission of Dr. Hayne’s testimony did not

constitute plain error. Therefore, we affirm King’s convictions and sentences.

¶28. COUNT I: CONVICTION OF CONSPIRACY AND SENTENCE OF TWENTY
(20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CONDITIONS, AFFIRMED. COUNT II: CONVICTION
OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS,
AFFIRMED. COUNT III: CONVICTION OF AGGRAVATED ASSAULT AND
SENTENCE OF FIFTEEN (15) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED. COUNT
IV: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF FIFTEEN
(15) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH CONDITIONS, AFFIRMED. SENTENCES IN COUNTS I,
II, III AND IV SHALL RUN CONCURRENTLY WITH EACH OTHER.

WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH,
LAMAR, KITCHENS AND PIERCE, JJ., CONCUR.

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