The Mississippi Supreme Court has denied the rehearing of the appeal of Connell Gray who was convicted of First Degree Murder of a Clarksdale woman by a Coahoma County jury in December 2019.
Gray was sentenced to life in the custody of the Mississippi Department of Corrections (MDOC).
Gray filed a motion for judgment notwithstanding the verdict and asked for a new trial. The Coahoma County Circuit Court denied Gray’s motion. Gray appeals, challenged the sufficiency and the weight of the evidence.
The state’s highest court said it found no error in the case and affirmed or upheld the ruling in Coahoma County Circuit Court in 2019. Gray will now serve his sentence.
THE CASE FILE READS AS FOLLOWS:
IN THE SUPREME COURT OF MISSISSIPPI NO. 2020-KA-00116
CONNELL GRAY PETITIONER
a//k/a Connell Gray, Jr.
STATE OF MISSISSIPPI RESPONDENT
APPENDIX II COPY OF THE APPELLANT’S PETITION FOR REHEARING AND ORDER DENYING SAME IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2020-KA-00116-COA
CONNELL GRAY APPELLANT
a//k/a Connell Gray, Jr.
STATE OF MISSISSIPPI APPELLEE
MOTION FOR REHEARING
COMES NOW Connell Gray, by and through counsel, pursuant to MRAP Rule 40, and files this Motion for Rehearing, and in support thereof, would most respectfully show unto the Court the following, to-wit:
1. On May 25, 2021, the Court of Appeals (COA) rendered its opinion in this case affirming Grays’s conviction for first-degree murder.
2. Gray respectfully requests rehearing based on misapprehension of law and facts.
Issue No. 1: Whether the evidence was sufficient for conviction?
3. The COA majority ruled that there was sufficient circumstantial evidence for a jury to find Gray guilty, as a principal, of first-degree murder, but in doing so, the majority relied on distinguishable cases rather than case law applicable in accomplice liability cases.
4. The majority relied on Hubbard v. State, 187 So. 2d 885 (Miss. 1996) to conclude that, in a circumstantial evidence case such as Gray’s, “a jury may … infer participation based on one’s presence, companionship, and conduct before and after the offense.” (Op. ¶ 12).
5. The Hubbard opinion does not mention the words “presence,” “companionship,” or “conduct” or any synonyms of those words. Companionship or presence were not even relevant in Hubbard where the defendant was convicted of manslaughter in an automobile accident he caused. Id.
6. Hubbard is clearly distinguishable and inapplicable to the circumstantial facts in Gray’s case for two other reasons. First, the evidence in Hubbard did not involve accomplice liability. Secondly, the Court in Hubbard did not address the issue of sufficiency of evidence, which is the gravamen in Gray’s case.
7. The majority’s very liberal interpretation of Hubbard is apparently taken from the Hubbard Court’s ruling on an issue of relevance, finding that it was not error to introduce evidence of Hubbard pushing his automobile into a lake following the fatal automobile accident trying to conceal evidence. Id. at 886. The Hubbard Court held the evidence was relevant saying, “flight is a circumstance from which an inference of guilt may be drawn and considered along with all the other facts and circumstances connected with the case.” Id. (Cites omitted).
8. There was evidence in Gray’s case of his flight after the shooting incident. But any flight by Gray was equally inferential of his fleeing the scene because he was startled and frightened by Jackson shooting the victim because Gray had no foreknowledge of Jackson’s (Pole’s) intent. Contrarily in Hubbard, there was no exculpatory inference available from Hubbard pushing his car into a lake after killing someone in a wreck. So, the authoritative value of Hubbard here is nil, and it is respectfully suggested that the COA majority erred in relying on such dissimilar facts and legal issues.
9. The COA majority sought to distinguish Gray’s case from Steele v. State, 544 So. 2d 802, 809 (Miss. 1989), cited in Gray’s brief, by observing that the issue in Steele was one of criminal agency, where here in Gray’s case, the central issue was whether there was circumstantial evidence that Gray had an intent to commit a crime when he walked with Jackson towards the victim’s house. (Op. ¶¶ 13-14).
10. The majority also relied on Ware v. State, 301 So. 3d 605 (Miss. 2020) which is also factually distinguishable from Gray’s case. In Ware the Court found the evidence sufficient to support a murder conviction. Even though witnesses did not actually see Ware shoot the victim, Ware was the only person seen talking to victim immediately before the shooting. Id. at 612-13. Within a few seconds after shooting, witnesses saw Ware running to his car. Id. Indicative gunshot residue was recovered from Ware’s hands. Id. For the same reasons the Court distinguished Steele supra, Ware is likewise distinguishable. The issue in Ware was not whether there was proof of intent, but whether there was sufficient proof to show that Ware actually killed the victim. So, neither Steele nor Ware involved proof of criminal intent. Yet the COA majority rejected Steele and chose to apply Ware. As with Hubbard, supra, Ware did not involve an issue of accomplice liability.
11. After rejecting Steele, supra, the COA majority offered instead Holliman v. State, 178 So. 3d 689 (Miss. 2015), in which Holliman admitted pointing a shotgun at his wife, point-blank, but said the gun’s discharge was unintentional. The Holliman Court found that circumstantial evidence of marital problems between Holliman and his wife and Holliman’s admitting to moving her body supported an inference of deliberate design murder. Holliman is not supportive of the COA’s ruling, primarily, because Holliman does not involve the question of accomplice liability. The only question in Holliman was whether there was sufficient evidence of deliberate design to kill. Id.
12. The issue of deliberate design is treated in the law very differently from one of accomplice liability. It is well-established that “malice, or deliberate design, may be inferred from the use of a deadly weapon … [or] through the intentional use of any instrument which based on its manner of use, is calculated to produce death or serious bodily injury.” Id. (Cites omitted). There is no parallel application of a deliberate design inference from use of a deadly weapon in a question of accomplice liability unless the accomplice himself uses a deadly weapon in furtherance of his accomplice’s crime or has prior knowledge that his principal is so armed. There is no evidence here in Gray’s case that he used a weapon or knew the Jackson had a weapon or intended to use a deadly weapon. So, Holliman is not an applicable authority here.
13. In addition to the above cases not being applicable in Gray’s case, the majority relied on a misapprehension of the facts. The majority’s recitation of the facts is incorrect in saying that Britney King “testified that she had seen [Gray] with a revolver earlier in the day.” (Op. ¶7). Britney King did not testify that she saw Gray with any kind of weapon on the day of the shooting. [T. 197-227]. The majority obviously misapprehended the testimony of Clarksdale Police Investigator Charles Sledge who had interviewed King and testified that he “kind of recalled” that King said Gray had a revolver at the apartment complex before the shooting. [T. 158].
14. Instead of relying on distinguishable case law, the majority should have applied case law applicable to accomplice liability such as Hughes v. State, 983 So. 2d 270, 276-77 (Miss. 2008). The COA accurately recognized that the State’s theory was that Gray and Jackson acted in concert with a mutual intent to commit a crime. (Op. ¶¶ 11, 14). So, Gray’s guilt as a principal depended on proof that he was an accessory before the fact. Id.
15. “One who aids and abets another in the commission of a crime is guilty as a principal.” Id. at 276 (cites omitted). “To aid and abet the commission of a felony, one must do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime or participate in the design of the felony.” Id. (Cites and punctuation omitted). “Mere presence, even with the intent of assisting in the crime, is insufficient unless the intention to assist was in some way communicated to [the principal, and] proof that one has stood by at the commission of a crime without taking any steps to prevent it does not alone indicate such participation or combination in the wrong done as to show criminal liability, although he approve of the act.” Id. (Cites and punctuation omitted).
16. Not only must there be proof of intent to assist in the commission of a crime, but the intent must “in some way communicated to [the principal].” Id. Such proof is lacking here in Gray’s case in both regards. At a minimum, “some degree of participation in the criminal act must be shown in order to establish any criminal liability.” Id. at 277. Under the standards set out in Hughes, the evidence in this case does create or support any inference that Gray participated in the subject homicide as a principal or accessory before the fact.
17. Even though the communication of intent is a vital component of the State’s burden to prove accomplice liability as a matter of law, the COA majority here makes no mention of such burden nor does the majority opinion reference any evidence supporting an inference that there was communication from Gray that he intended to aid or abet Jackson in a known criminal venture. Rehearing is necessary to address this missing component in the majority’s analysis.
18. The Hughes case demonstrates the degree of concerted effort and communication of intent to join in a criminal conduct justifying the conviction of an aider or abettor. Hughes was convicted of armed robbery and aggravated assault. Id. at 274-76. Hughes and his co-defendant Webster had been “riding around talking about ways to make money” and, “robbing.” Id. After this discussion, Hughes accompanied Webster to the victim’s home after parking over 150 yards away and walking up to the victim’s home where Webster knocked on the door and told the victim a lie about running out of gas before bluffing an exit and shooting and robbing the victim. Id.
19. The Hughes Court found that, with the benefit of all reasonable inferences to the State, “Hughes knew what was about to transpire and acted, along with Webster ... [and] communicated his intent to assist ... in the commission of the crimes by accompanying Webster some 150 to 200 yards to [the victim’s] home, and acting, along” before the shooting began. Id.
20. Comparing Hughes to the present case, here there was no evidence of prior communication between Gray and Jackson about Jackson’s intent before, during or after the subject crime. There is no evidence that Gray accompanied Jackson to Ms. Messenger’s door as in Hughes or that Gray knew what Jackson’s intents were.
21. The key differentiating factors in Hughes was that there was evidence of a communication between Hughes and his co-defendant Webster before and after the shooting to support inferences that Hughes “knew what was about to transpire” and that a robbery had been “their mutual intent beforehand.” Id. at 276-77, 279. This evidence also inferred that Hughes was more than merely present, which would have been insufficient, and communicated to Webster, the principal, an intent to assist. Id.
22. Contrary to Hughes, here, there was no proof of any communication about a crime before the shooting, plus Gray and Jackson did not leave together.
23. Because some communication or evidence of an agreement is necessary for accomplice liability, the burden on the State is similar to a conspiracy charge. “One who aids and abets necessarily enters into an agreement that an unlawful act will be done. He participates in the design of the felony.” King v. State, 857 So. 2d 702, 728 (¶ 91) (Miss.2003).
24. Conspiracy can be and is often proved by circumstantial evidence, but “there must also be sufficient evidence to establish what the parties acting in concert conspired to do.” McCray v. State, 486 So. 2d 1247, 1251 (Miss. 1986). The evidence offered against Gray supports nothing more than a suspicion of conspiracy, far short of proof of a conspiracy or accomplice culpability beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence. Lynch v. State, 174 So. 62, 62–63 (Miss. 1937).
25. Criminal law does not recognize guilt by association. Davis v. State, 586 So. 2d 817, 821 (Miss. 1991) (Cites omitted).
26. In Sands v. State, 62 So. 3d 374 (Miss. 2011), Sands was convicted of two counts of manslaughter and one count of aggravated assault. The State’s evidence included testimony that Sands was in his vehicle, armed, during a discussion with several men in another vehicle who were being accused by Sands’ co-defendant, in a third vehicle of committing a burglary. 62 So. 3d at 376. Sands remained in his vehicle while the discussion became heated. Id. When Sands’ co-defendant retrieved a pistol from his vehicle, multiple shots were exchanged with two men being killed and one injured. Id.
27. After the shooting started, Sands was seen holding his weapon crouched behind a vehicle. Id. No one testified that Sands fired at all. Id. Even though Sands was seen holding a pistol as he crouched behind his vehicle, there was no testimony that Sands even pointed his weapon towards the victims. Id. The Court found that the State’s evidence against Sands was “wholly insufficient” when considering that no ballistic evidence was associated with Sands’ pistol. Id. Sands’ convictions were reversed and rendered. Id. at 379.
28. Applying Sands here, the State was required to offer proof that Gray committed some act in furtherance of the crime. Merely being present is insufficient even if Gray was armed as in Sands. That Gray’s presence created an inference that Gray acted in furtherance of the crime is nothing more than speculation.
29. When the proof shows only that the defendant was present at the scene and did nothing to encourage the principal or participate in the crime, he cannot be convicted for aiding and abetting the principal. Bruce v. State, 138 Miss. 402, 35 So. 572 (1904). In the absence of a conspiracy to commit the crime charged, mere presence at the scene and knowledge of the crime are not sufficient to sustain a conviction for aiding and abetting. Griffin v. State, 293 So. 2d 810, (Miss. 1974).
30. Here in Gray’s case, the State and COA majority relied on the unreasonable inference that, since Gray was present near the scene, he must have been a participant. There was no evidence which negated other reasonable inferences consistent with innocence such as Gray was merely walking with Jackson before the shooting, and in a panic discarded the weapon he had. Gray knew that a shooting occurred, and being in the area, would have anticipated the likelihood of being stopped by police.
31. With nothing more than the circumstantial evidence presented against Gray, no reasonable hypothetical juror could have found, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with innocence, that Gray killed the victim in this case nor aided and abetted Jackson or anyone else in the homicide. Steele, supra, 544 So. 2d 809.
32. The majority observed that the State presented sufficient circumstantial proof of “motive and opportunity,” neither of which are elements of the crime charged. (¶ 16). Just as the majority opinion is silent on any proof of communication, it is likewise silent on what Gray’s speculated motive was. To that extent, the majority’s opinion about a motive is conjecture. In fact, the evidence shows to the contrary that Gray did not have a motive. Gray was not part of the ongoing dispute between Jackson and the others.
33. Gray respectfully requests the Court to reconsider its opinion in this case and upon such careful review, reverse and render his conviction.
Issue No. 2: Whether the verdict was contrary to the weight of evidence?
34. The State’s case depended entirely on King’s testimony and Gray’s statement. The only inference, short of suspicion, supported by this evidence is that Gray was merely present near the scene of the homicide. There was no evidence that Gray communicated or expressed any intent to commit or to join in any criminal offense with Jackson, and no evidence that Gray committed the homicide.
35. Therefore, the jury’s verdict was contrary to the overwhelming weight of evidence and an unconscionable injustice has occurred. Little v. State, 233 So. 3d 288, 292 (Miss. 2017).
36. Rehearing is warranted and respectfully requested and, Gray further requests a new trial in the alternative to a rendering of acquittal. Id.
37. Rehearing is respectfully requested because the evidence was insufficient for conviction, and Gray respectfully requests that upon rehearing, his conviction in this case be reversed and rendered. Alternatively, since the verdict was contrary to the weight of evidence, Gray respectfully requests that the Court reverse his convictions and order a new trial.
Respectfully submitted, CONNELL GRAY
By: /s/ George T. Holmes George T. Holmes, His Attorney
I, George T. Holmes, do hereby certify that I have this the 27th day of May 2021, electronically filed the foregoing motion with the Clerk of the Court using the MEC system which issued electronic notification of such filing to Hon. Allison Kay Hartman, Assistant Mississippi Attorney General.
/s/ George T. Holmes George T. Holmes
George T. Holmes, MSB No. 2565
Indigent Appeals Division Office of State Public Defender P. O. Box 3510
Jackson MS 39207-3510
601 576-4290 firstname.lastname@example.org
Electronic Document Aug-24-2021 13:27:32. 2020-KA-00116-COA Pages: 1
Supreme Court of Mississippi
Court of Appeals of the State of Mississippi
Office of the Clerk
D. Jeremy Whitmire (Street Address)
Post Office Box 249 450 High Street
Jackson, Mississippi 39205-0249 Jackson, Mississippi 39201-1082
Telephone: (601) 359-3694
Facsimile: (601) 359-2407 e-mail:email@example.com
August 24, 2021
This is to advise you that the Mississippi Court of Appeals rendered the following decision on the 24th day of August, 2021.
Court of Appeals Case # 2020-KA-00116-COA Trial Court Case # 2015-0045
Connell Gray a/k/a Connell Gray, Jr. a/k/a Cornell Gray, Jr. v. State of Mississippi
Current Location: MDOC #227007
10641 Hwy 80 East
Meridian, MS 39307
The motion for rehearing is denied. Wilson, P.J., would grant.
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