FREDRICK SMITH JR. A/K/A FREDERICK J. SMITH A/K/A FREDERICK SMITH A/K/A FREDRICK SMITH A/K/A FREDERICK SMITH JR. v. STATE OF MISSISSIPPI
NO. 2016-KA-00309-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
01/02/2018
HON. WILLIAM A. GOWAN JR.
DATE OF JUDGMENT: 04/17/2015; COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT;
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. Frederick Smith appeals his conviction from Hinds County Circuit Court, First Judicial District, of two counts of aggravated assault with a deadly weapon. More specifically, the jury found him guilty of shooting two people. On appeal, his аsserted errors are that: (1) the trial court did not allow an alibi witness to testify; (2) the trial court allowed impermissible hearsay testimony in violation of Crawford v. Washington;1 and (3) the evidence was insufficient as to one of the counts. Upon review, we find the circuit court erred by disallowing Smith’s alibi witness to testify. We reverse Smith’s conviction and remand for a new trial.
BACKGROUND
¶2. On July 13, 2013, at approximately 1:30 a.m., Jessica Keys and Cameron Conner were both shot at a gas station in Jackson, Mississipрi. Keys was riding passenger in a car operated by her coworker when they pulled into the gas station, and parked facing the station, with the gas pump on the driver’s side. Conner was inside the station, and when he exited, Keys recognized him. Keys opened her car door and stood up outside the car but from behind the door, calling out to Connor. Connor then came over to Keys, almost reaching her door.
¶3. Earlier, while Keys’s vehicle was pаrked and Conner was inside, a car had pulled in and parked on the opposite side of the same stall, also facing the station. No occupants exited until approximately two minutes later, when Conner reaсhed Keys’s door. At that time, three individuals exited the car and opened fire on Keys and Conner. Both Keys and Conner dropped to the ground for cover. Keys attempted to wedge herself under the car, lying along the car’s length with her head toward the rear, while Conner used the outside of the still-open car door for protection. One of the three shooters pivoted around the rear of Keys’s vehicle, firing his weapon as he moved along the rear-passenger side. Conner crawled from the car door to the front of the vehicle, attempting to seek better cover. As Conner moved, the same shooter continued to fire, pivoting to get а better angle at Conner.
¶4. Keys was shot three times and remained alongside the car until she was transported by ambulance to University of Mississippi Medical Center. Conner left the scene prior to the first responders’ arrivаl, when other individuals helped him inside their vehicle.2
¶5. Keys viewed a photo lineup and identified Fredrick Smith as one of the shooters. Smith was indicted on January 29, 2014, on two counts of aggravated assault with a weapon in violation оf
¶7. On the second day of trial, Smith’s trial counsel, Darla Palmer, notified the court that there was a witness, Kenzoro Williams, who would state he was with Smith at the time of the shooting. Palmer further stated that, although she had spoken with Smith on numerous occasions about the upcоming trial, Smith’s first mention of the potential alibi witness was on the second day of trial. Outside the presence of the jury, the court allowed a proffer of Williams’s testimony. In his proffer, Williams stated that on the night of the shooting, he saw Smith at a local club. He further stated that Smith did not leave until he did, at approximately 2 a.m. on Saturday morning. Following Williams’s proffer, Smith testified for the limited purpose of explaining the timing of his alibi-witness disclosure. The State objected tо Williams’s testimony, and the trial court sustained the objection, disallowing Williams from testifying.
¶8. Following trial, the jury found Smith guilty on both counts. Smith was subsequently sentenced on each count to a term of twenty years in the custody of the Mississippi Department of Corrections, with five years suspended and fifteen to serve, followed by five years of probation. The sentences were ordered to run concurrently with one another. Smith appeals.
DISCUSSION
I. Denial of Smith’s Alibi Witness
¶9. On appeal, Smith challenges the court’s exclusion of his proposed alibi witness. “In reviewing rulings of a trial court regarding matters of evidence, relevancy and discovery violations, the standard of review is abuse of discretion.” Sims v. State, 928 So. 2d 984, 986 (¶8) (Miss. Ct. App. 2006).
¶10. Mississippi Uniform Rule of Circuit and County Court Practice 9.054 states:
Upon the written demand of the prosecuting attorney stating the time, date, and place at which the alleged offense was committed, the defendant shall serve within ten days, or at such other time as the court may direct, upon the prosecuting attorney a written notice of the intention to offer a defense of alibi . . . .
(Emphasis added).
¶11. “The rule clearly states that the requirement to disclose an alibi witness
II. Detective Camel’s Testimony
¶12. Smith next argues testimony of Detective Rozerrio Camel was admitted in violation of the Confrontation Clause of the
¶13. Smith failed to make a
III. Sufficiency of the Evidence
¶14. In his third assignment of error, Smith asserts the State presented insuffiсient evidence to convict him of aggravated assault, as to the charge concerning Conner. Smith argues that: (1) Connor did not testify; (2) no witnesses testified that Smith shot Conner; and (3) Keys’s testimony was unreliable.
¶15. In considering whether the evidence is legally sufficient to sustain Smith’s conviction, the critical inquiry is whether the evidence shows beyond a reasonable doubt that Smith committed the act charged, and that he did so under such circumstances that every element of the offense existed. Russell v. State, 924 So. 2d 604, 608 (¶8) (Miss. Ct. App. 2006). “The key question in this analysis is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crimе beyond a reasonable doubt.” Id. (quotation marks omitted) (quoting Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (abrogated on other grounds)). If the evidence against Smith is such that “reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,” we will deem the evidence sufficient. Id. We will only reverse the jury’s verdict when evidence of one or more of the elements of the charged offense are such that reasonable and fair-minded jurors could only find the accused not guilty. Wilson v. State, 936 So. 2d 357, 362 (¶16) (Miss. 2006). In analyzing such a claim of error, we are required to view the evidence in the light most favorable to the State and consistent with the verdict. Id. The State receives the benefit of all favorable inferences that may be reasonably drawn from the evidence. Id.
¶16. For the jury to find Smith guilty of aggravated assault, the State was required to prove beyond a reasonable doubt that Smith: (1) attempted to cause or purposely or knowingly (2) caused bodily injury to another (3) with a deadly weapon or other means likely to produce death or serious bodily harm.
¶17. Looking to the record, we find the evidence such that a rational trier of fact could have found beyond a reasonable doubt that Smith attempted to cause or purposefully or knowingly caused bodily injury to Conner with a deadly weapon. Keys picked Smith out of a lineup, and identified him as one of the three shooters. She testified that she was able to identify Smith because she recognized his eyes. Keys also identified Smith during trial, and stated that during the shooting, while she was underneath her car, Smith came close to where shе was, and shot over the car at Conner. Keys stated that when she was under the car, she was on her stomach, but had her head up, and her eyes open.
¶18. Smith’s assertion that Keys’s testimony was unreliable is an attempt to attaсk her credibility, and we have consistently held that the jury determines a witness’s credibility at trial, and the weight and worth of her testimony. See, e.g., Odom v. Roberts, 606 So. 2d 114, 118 (Miss. 1992); Burge v. Spiers, 856 So. 2d 577, 580 (¶9) (Miss. Ct. App. 2003). Smith’s assignment of error regarding the sufficiency of the evidence is without merit.
CONCLUSION
¶19. The State did not issue a writtеn demand that Smith disclose his intent to offer an alibi, and therefore, Smith was not required to disclose his intention to call Williams. Thus, the trial court erred when it denied Smith the opportunity to present his alibi witness. Smith’s second assignment of error is procedurally barred, and we find that Smith’s third assignment concerning the sufficiency of the evidence is without merit.
¶20. REVERSED AND REMANDED.
LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. GRIFFIS, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.