296 So.3d 104
Miss. Ct. App.2019Background
- Early morning Nov. 12, 2013: Tavoris Marshall and Kevion Gorman were shot dead inside Marshall’s grandmother Herdicine’s home in Cleveland, MS.
- Participants charged: D’Bryus Story (appellant), Jayvious Johnson, Jamario Hodges; Favian Vaughn later pled guilty to accessory after the fact; Stanley Self (14) was the surviving eyewitness.
- Self testified Story knocked to buy pills, left, then returned with Johnson; Johnson fired a .22 rifle killing Marshall and Gorman while Story stood behind him armed, took a shoe box containing drugs/money, and later aided in forcing Self into a car and transporting him (kidnapping). GSR and firearms evidence were collected; Self and Vaughn gave inculpatory testimony (both had made inconsistent earlier statements).
- Jury convicted Story of conspiracy to commit robbery, two counts of capital murder (felony-murder/robbery) with firearm enhancements, and kidnapping with a firearm enhancement; court imposed consecutive sentences (including life with parole eligibility due to youth).
- On appeal Story argued trial counsel was ineffective for failing to file post-trial motions (JNOV/new trial) challenging sufficiency and weight of the evidence, and raised cumulative-error and preservation arguments. The Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for failure to file post-trial motions | Story: counsel erred by not filing JNOV/new-trial, waiving challenges to sufficiency/weight | State: even if deficient, no Strickland prejudice because no reasonable probability motions would succeed; co-defendant’s similar post-trial motion was denied | Failure to file post-trial motions was deficient performance but not prejudicial; ineffectiveness claim fails |
| Sufficiency — conspiracy to commit robbery | Story: evidence only shows presence, not an agreement or participation | State: testimony ("let’s go," armed approach, prior casing, possession/sorting of shoe box) permits inference of agreement and participation | Sufficient evidence of conspiracy (circumstantial proof of association and conduct) |
| Sufficiency — capital murder (felony-murder) | Story: he did not shoot victims and did not agree to kill them | State: felony-murder under robbery requires only that defendant was engaged in the felony or aided/abetted the perpetrator | Conviction upheld under aiding/abetting/felony-murder—proof defendant acted in concert during robbery sufficed |
| Sufficiency — kidnapping | Story: only Johnson actually kidnapped Self | State: Story aided and abetted kidnapping (gave pistol, accompanied Johnson, confined Self in car) | Sufficient evidence to convict Story as aider/abettor of kidnapping |
| Weight of the evidence & cumulative error | Story: verdicts are against overwhelming weight; cumulative errors require new trial | State: credibility and weight are jury province; no individual errors shown, so no cumulative prejudice | Weight challenge denied; no cumulative error found |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance test: deficient performance and prejudice)
- Holland v. State, 656 So. 2d 1192 (Miss. 1995) (failure to renew directed verdict/JNOV and to move for new trial can be ineffective when it deprives judge of review)
- Parker v. State, 30 So. 3d 1222 (Miss. 2010) (ineffective-assistance claims generally for post-conviction relief; may be addressed on direct appeal if record is complete)
- Woods v. State, 242 So. 3d 47 (Miss. 2018) (trial counsel’s unexplained failure to seek new trial was deficient where there was a reasonable probability the trial court would have granted relief)
- Pace v. State, 242 So. 3d 107 (Miss. 2018) (failure to file post-trial motions may be deficient but lack of prejudice can defeat ineffectiveness claim)
- Layne v. State, 542 So. 2d 237 (Miss. 1989) (felony-murder provision requires proof the killing occurred while accused was engaged in the felony)
- Milano v. State, 790 So. 2d 179 (Miss. 2001) (pattern aider-and-abettor jury instruction adopted)
- Jones v. State, 710 So. 2d 870 (Miss. 1998) (aider and abettor liability explained)
- Giles v. State, 187 So. 3d 116 (Miss. 2016) (failure to challenge sufficiency/weight can be deficient; prejudice analysis required)