328 So.3d 173
Miss. Ct. App.2021Background
- McLemore Arms store owners Jason and Melanie McLemore got into a dispute with customers Michael McCool and his father Audy over a $25 service fee for a gun repair; an altercation ensued and gunfire followed.
- Jason (father) and Jacob (son) McLemore were killed; Michael and Audy McCool were wounded. Ballistics showed Michael’s Glock was fired five times and bullets recovered were consistent with that gun.
- Melanie was the principal eyewitness but testified she did not know who shot first; her emotional 911 call was played for the jury. Both McCools made statements at the scene admitting aspects of the events.
- Audy admitted to officers that he removed Michael’s Glock after the shooting and placed it on the passenger-floorboard of their car, covering it with a plastic bag. Crime-scene photos corroborated the placement and concealment.
- Indictments: Michael charged with two counts of second-degree murder; Audy charged with accessory after the fact. Jury convicted Michael of two counts of second-degree murder (two consecutive 40-year terms) and Audy of accessory after the fact (20 years).
- On appeal the McCools raised sufficiency/weight of evidence, jury-instruction errors (self-defense, depraved-heart, heat-of-passion), Eighth Amendment proportionality, ineffective assistance of counsel, and cumulative error; the Court of Appeals affirmed.
Issues
| Issue | McCools' Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for Michael's second-degree murder convictions | It was impossible Michael shot first; Melanie lacked credibility/personal knowledge; physical evidence supports McCools' version | Ballistics, Michael's admissions, and Melanie's statements supported intentional firing and depraved-heart murder | Evidence sufficient to convict Michael of second-degree murder; jury could reject self-defense theory |
| Sufficiency of evidence for Audy's accessory-after-the-fact conviction | Audy took gun for safety, not to aid escape; insufficient proof of knowledge/intent | Audy's admission, concealment of the gun, photos, and conduct supported knowledge and intent to aid | Evidence sufficient; jury could find Audy knowingly concealed gun to enable avoidance of arrest/punishment |
| Weight of the evidence (new trial claim) | Verdicts are against overwhelming weight because objective evidence supports McCools' account | Jury weighed credibility and evidence; significant evidence contradicted McCools' theory | No unconscionable injustice; verdicts not against overwhelming weight |
| Jury instructions — self-defense burden and definitions of depraved-heart/heat-of-passion | Instruction 23 failed to place burden on State; needed explicit definitions of depraved-heart and heat of passion | Instructions tracked statute and governing law; defense withdrew its proposed self-defense instruction | Instructions, read as whole, were proper; no plain error found |
| Eighth Amendment — disproportionality of sentences | Sentences (effective life given ages) are grossly disproportionate | Sentences within statutory ranges; trial judge considered evidence and mitigation | Sentences not grossly disproportionate; affirmed |
| Ineffective assistance of counsel | Counsel failed to obtain/introduce forensic/medical evidence and declined opening statement | Record does not affirmatively show constitutional ineffectiveness | Claim not appropriate on direct appeal; should be raised in post-conviction relief |
| Cumulative error | Combined trial errors deprived them of fair trial | No reversible error in any part; cumulative claim fails | No cumulative error; conviction affirmed |
Key Cases Cited
- Weathersby v. State, 147 So. 481 (Miss. 1933) (defendant’s version accepted when only eyewitnesses are defendant’s party unless contradicted)
- Thames v. State, 310 So. 3d 1163 (Miss. 2021) (removal/concealment of weapons can support accessory-after-the-fact conviction)
- Swanagan v. State, 229 So. 3d 698 (Miss. 2017) (malice not required for depraved-heart murder)
- Galloway v. State, 122 So. 3d 614 (Miss. 2013) (standard for reviewing sufficiency of the evidence)
- Smith v. State, 250 So. 3d 421 (Miss. 2018) (appellate sufficiency review: evidence viewed in light most favorable to prosecution)
- McFee v. State, 511 So. 2d 130 (Miss. 1987) (appellate courts limited in second-guessing jury on factual impossibility claims)
- Ewing v. California, 538 U.S. 11 (2003) (Eighth Amendment permits only sentences grossly disproportionate to the crime to be unconstitutional)
- Nash v. State, 293 So. 3d 265 (Miss. 2020) (rare exceptions to disturbing statutory sentences for disproportionality)