Kale Scott v. State of Mississippi , 2017 Miss. LEXIS 268 ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-KA-01623-SCT
KALE SCOTT a/k/a KALE RASHAUD SCOTT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/27/2015
TRIAL JUDGE: HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS: FORREST ALLGOOD
SCOTT WINSTON COLOM
RODNEY A. RAY
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RODNEY A. RAY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. Kale Scott was indicted for one count of aggravated assault, in violation of Section
97-3-7 of the Mississippi Code, and one count of murder, in violation of Section 97-3-19.
Scott appeals the verdict of a Lowndes County jury, which found him guilty on both counts.
Finding no error, we affirm his convictions and sentences.
STATEMENT OF THE FACTS AND PROCEDURE BELOW
¶2. On the evening of May 22, 2014, Scott attended a high school graduation party at the
Lowndes County fairgrounds in Columbus, Mississippi. Approximately two hundred guests
were in attendance. During the party, Frederick Smith was shot in the leg, and Devin
Montgomery, who was shot five times in the back to the posterior of his body, succumbed
to his injuries and died. Scott admitted he was the shooter.
¶3. During the trial, Jomoco “Ken” Harriston testified that he was working as a security
guard for Robinson Security the night of the graduation party. Harriston witnessed a fight
break out near the stage between Scott and Montgomery. Harriston broke up the fight1 and
then began escorting Scott toward the entrance of the building. Before he could get Scott out
of the building, Harriston heard another fight break out behind him. Harriston let Scott go
and went back to the same area where the original fight had occurred. Montgomery was
involved in the second fight, so Harriston began to walk Montgomery to the entrance of the
building. As Harriston was escorting Montgomery, Scott stepped out of a nearby crowd.
Harriston estimated that Scott was about eight feet in front of Montgomery. Harriston
testified that Montgomery was not attacking or threatening Scott in any way. Scott spoke to
Montgomery, but Harriston testified that he and Montgomery continued walking, paying
Scott no attention. Harriston then heard a “pow” and saw Montgomery jump, run away, and
collide with a table. Harriston testified that it was extremely loud in the building because the
speakers were still blaring. He heard only one shot. After Montgomery hit the table,
Harriston saw him get up and run toward the exit, before Montgomery finally stopped, leaned
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He testified that neither Scott nor Montgomery looked seriously injured.
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against a wall, and slid down, leaving a trail of blood. Harriston ran out of the building to call
911.
¶4. Harriston testified that he never saw Scott with a gun, but he did see Scott tuck
something into his front waistband after the shots were fired. Harriston never saw
Montgomery or anyone else with a weapon.
¶5. Diesha Walker testified that she was on the staircase of the stage when the first fight
broke out. Montgomery was standing on the floor, leaning up against the stage. Scott was
standing on the stage behind Montgomery below. Scott accidentally spilled his beer on
Montgomery while he was dancing on stage. Montgomery told Scott to “chill out.” Scott
spilled his beer again before Montgomery grabbed Scott off the stage. Walker saw Harriston
break up the fight and walk off with Scott. Walker testified that another man, Deandra Buck,
hit Montgomery, and the two started fighting. Walker testified that she saw Scott reappear
and pull out a gun and shoot. Walker stated that Scott appeared to hesitate after the first shot,
but he continued shooting. Walker testified that at the time of the shooting, Montgomery was
not a threat to Scott. Walker never saw Montgomery or anyone else with a weapon.
¶6. Fredrick Smith, Montgomery’s cousin, testified that he saw both fights involving
Montgomery. When the security guard came to break up the second fight and take
Montgomery away, Smith stayed behind and confronted the person who had been fighting
Montgomery (Buck). As Smith was questioning Buck, he saw a man with a gun in his hand
approaching him from the right. Smith then saw the man fire the gun. Smith testified that he
heard four or five gunshots.
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As I hear the first shot, I took off running. As I took off running on the side of
me, I noticed Devin [Montgomery]. He’s running on side of me as well. I hear
another shot. That’s when I noticed – well, that’s when I noticed I was hit in
the leg. I noticed I had got shot.
As I got shot, I seen Devin fall. Well, I picked him up by his pants’ leg. And
we proceeding to run. As we’re proceeding to running, I’m steady hearing
gunshots go off. And I’m pushing people behind me or what not. But I’m
steady hearing gunshots the whole time I was running.
Smith testified that he was shot in the back of his right thigh. Smith identified Scott as the
shooter.
¶7. Dr. Erin Barnhardt, deputy chief medical examiner at the Mississippi State medical
Examiner’s Office, was accepted as an expert in the field of forensic pathology. She testified
that Montgomery had suffered five gunshot wounds2 and had died as a result of his injuries.
Barnhardt testified that Montgomery had been at least three feet away from the shooter when
he was shot.
¶8. Kevin McCrary, a law enforcement officer with the Columbus Police Department,
testified that the weapon used in the shooting was never recovered. After interviewing
Harriston and Walker, who both identified Scott as the shooter, McCrary began looking for
Scott but was unsuccessful. Two days after the shooting, Scott turned himself in to the police.
McCrary testified that Scott neither had any noticeable injuries nor complained of any
injuries and was not in need of medical attention.
¶9. After the State rested, Scott moved for a directed verdict, which was denied.
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Montgomery was shot in the right forearm, the back of his right upper arm, the right
side of his back, his right and left buttocks, and the back of his left arm.
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¶10. Bernice Willis, Scott’s grandmother, testified that she had noticed several knots and
bruises on Scott’s head immediately before he turned himself in to the police. She testified
she did not notice these bruises on the afternoon of the graduation party. Willis agreed that
she had not seen him between the party and when he turned himself in and that she did not
know when he may have received the knots and bruises.
¶11. Shareka Tillman, a chaperone at the party, testified that when she first saw Scott at
the party he appeared normal and she did not see him with a gun. After she heard commotion
from the fight and then gunshots, she saw Scott standing in the middle of the floor. When she
approached him, she saw he had knots on his head and appeared in a daze. He would not
answer any of her questions about what had happened.
¶12. Scott testified on his own behalf. He said he was at the graduation party with Buck
and another friend. After Scott had entered the party, a friend of his told him he needed to
get his cigarettes out of Scott’s car. Scott left the party, got the cigarettes, and came back
inside. Scott testified that, while he was on the stage with two girls, Montgomery grabbed
his leg and wanted to talk to him. Scott pushed away from Montgomery, but Montgomery
pulled him off the stage, and the two began fighting. Montgomery then hit Scott on the
shoulder, grabbed him by the pockets, and started going through his pockets. Scott testified
that Montgomery pulled his shirt over his head and was hitting him in the head. Other people
also started hitting Scott in the head. Scott said at that point “[he] lost it” and started
shooting.
Q. So, you said you lost it. Describe what happened then?
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A. I lost it where really from the lick – from the hits of my head, I was
really dazed like. I didn’t know – I didn’t know what I was doing. I
didn’t know what I was doing, sir.
Q. Did you in fact start shooting the gun?
A. Yes, sir.
Q. Do you know how many times you shot it?
A. I don’t know how many times I shot, sir. I couldn’t say.
Scott testified that, after the shooting, one of his friends had to drive him to his cousin’s
house, because he “wasn’t 100 percent able to drive.” Buck gave the gun to Scott’s cousin.
Scott did not call any of his family to let them know where he was until Sunday, when his
family told him to meet them at the police station.
¶13. Scott testified that he brought a gun to the party because he had been picked on for
many years, but he did not intend to harm anyone. He testified that he never intentionally
aimed the gun at either Montgomery or Smith. Scott said that he was scared of Montgomery
because he had experienced several bad encounters with Montgomery.
¶14. On cross-examination, Scott testified that he did not know why the two girls on the
stage with him the night of the shooting were not at the trial to corroborate his story. He
agreed that it was irresponsible to shoot a gun in a crowded room. Scott testified that he did
not remember being removed from the fight by Harriston or that there was a subsequent fight
between Buck and Montgomery.
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¶15. The State also introduced a number of tweets that had originated from Scott’s account.
Most of the tweets were about shooting people and homicide. Scott testified that many of the
tweets were song lyrics but that he did mean some of them.
¶16. The State called several rebuttal witnesses. Buck testified that when he heard
gunshots, he ran to Scott’s car. Buck testified that Scott drove and that he was acting
normally and was not dazed. Scott dropped Buck off at his house, and then Scott drove away.
¶17. Angela Williams testified that both Scott and Montgomery were at her house almost
every day. However, she said, Montgomery never picked on Scott while at Williams’s house.
¶18. Cortney Williams, Montgomery’s best friend and Scott’s cousin, testified that he did
not see the fights, but he talked to Montgomery immediately after they occurred. Williams
recalled that he was approximately five feet away from Montgomery when he first heard the
gunshots. Both men started running to exit.
Q. . . .What did you see while you were running?
A. Kale and D [Montgomery] – well D was saying – I asked D like –
because at first he was walking like he was saying he got hit in the arm.
And I was like who shot you? He was like Kale.
Q. All right. What did you see? Did you see Kale at all?
A. Yes, sir.
Q. Where was Kale Scott?
A. In the middle of the floor.
Q. What was he doing when you saw him?
A. Holding the gun.
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Williams testified he never saw anyone else with a weapon that night.
¶19. The State finally rested, and the Lowndes County jury found Scott guilty of both
aggravated assault and murder. As to Count I, Scott was sentenced to a term of twenty years,
with ten suspended, and five years’ post-release supervision. As to Count II, he was
sentenced to a term of life imprisonment. The sentences are to be served consecutively.
¶20. Scott filed separate motions for Judgment Notwithstanding the Verdict of the Jury
(JNOV) as to each count, alleging that the jury verdict was against the overwhelming weight
of the evidence, inter alia. Both motions were denied. Scott timely filed his appeal.
STATEMENT OF THE ISSUES
I. WHETHER THERE WAS SUFFICIENT EVIDENCE TO
SUSTAIN THE CONVICTION OF THE JURY.
II. WHETHER THE VERDICT WAS AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE.
ANALYSIS
I. There was sufficient evidence to sustain the conviction of the jury.
¶21. The standard of review for the legal sufficiency of the evidence is as follows:
this Court will reverse and render only if the facts and inferences “‘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,’ . . . .” The evidence will be deemed sufficient if
“‘having in mind the beyond a reasonable doubt burden of proof standard,
reasonable fair-minded men in the exercise of impartial judgment might reach
different conclusions on every element of the offense,’ . . . .” The relevant
question is whether “‘any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’”
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This Court considers the evidence in the light most favorable to the state. The
state receives the benefit of all favorable inferences that may reasonably be
drawn from the evidence.
Hardy v. State, 137 So. 3d 289, 303-04 (Miss. 2014) (quoting Hughes v. State, 983 So. 2d
270, 275-76 (Miss. 2008) (internal citations omitted)).
¶22. Scott argues that the evidence presented was insufficient to support the guilty verdicts
because the State failed to establish that he was not acting in self-defense. Scott contends that
his testimony proved that he had been struck in the head several times and began firing his
gun to stop the attack.
¶23. When the evidence was viewed in the light most favorable to the State, there was
more than sufficient evidence to support the jury’s guilty verdict. Scott was indicted for
murder pursuant to Section 97-3-19 of the Mississippi Code, which reads that “[t]he killing
of a human being without the authority of law . . . when done with deliberate design to effect
the death of the person killed, or of any human being, shall be first-degree murder. . . .” Miss.
Code Ann. § 97-3-19 (Rev. 2014).
Deliberate has been defined as “full awareness of what one is doing, and
generally implies careful and unhurried consideration of the consequences.”
Design has been defined as “to calculate, plan, contemplate.” Deliberate
design “may be formed very quickly, and perhaps only moments before the act
of consummating the intent.”
Bowser v. State, 182 So. 3d 425, 430 (Miss. 2015), reh’g denied (Jan. 28, 2016) (quoting
Jones v. State, 39 So. 3d 860, 865-66 (Miss. 2010)). Scott also was indicted for one count
of aggravated assault pursuant to Section 97-3-7, which reads that “[a] person is guilty of
aggravated assault if he . . . (ii) attempts to cause or purposely or knowingly causes bodily
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injury to another with a deadly weapon or other means likely to produce death or serious
bodily harm. . . .” Miss. Code Ann. § 97-3-7(2)(a)(ii) (Rev. 2014)
¶24. Testimony from several witnesses evinced that Montgomery was trying to run away
from Scott and posed no threat when he was shot from behind. Although Scott’s testimony
contradicts this version of events, his testimony was not sufficient to convince the jury that
he was acting in self-defense.
¶25. The jury is allowed “to draw reasonable inferences from facts based on experience and
common sense.” Howell v. State, 860 So. 2d 704, 739 (Miss. 2003). Further, “the jury is the
sole judge of the credibility of witnesses, and the jury’s decision based on conflicting
evidence will not be set aside where there is substantial and believable evidence supporting
the verdict.” Nicholson v. State, 523 So. 2d 68, 70 (Miss. 1988). In this case, the evidence
supported the State’s theory that Montgomery was trying to leave the venue and did not
engage with Scott when Scott shot Montgomery five times and shot Smith once.
Furthermore, there was testimony that Scott was not as severely beaten as he testified, nor
was he so dazed and confused that he could not drive his car after the shooting. Ultimately,
the jury decided that there was sufficient evidence to support both guilty verdicts and refute
Scott’s claim of self-defense. This issue is void of merit.
II. Whether the verdict was against the overwhelming weight of the evidence.
¶26. When considering a challenge to the weight of the evidence, we review the evidence
in the light most favorable to the verdict. Herring v. State, 691 So. 2d 948, 957 (Miss.
1997). “[W]e will only disturb a verdict when it is so contrary to the overwhelming weight
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of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush
v. State, 895 So. 2d 836 (Miss. 2005) (citations omitted).
¶27. Scott argues that allowing his conviction to stand would sanction an unconscionable
injustice because the evidence shows that he did not have the intent required for murder. He
claims that he did not initiate any confrontation, he tried to remove himself from the fight,
and Montgomery struck him first. He also argues that two witnesses testified that,
immediately before the shooting, Scott had no injuries, and immediately after, he had several
bruises and knots on his head.
¶28. No witness corroborated Scott’s testimony that he was severely beaten and shot his
gun only to stop the attack. All other witnesses testified that Montgomery was unarmed and
on his way to the exit when he was approached by Scott. Several witnesses watched Scott
return to the area of the fight after he had been escorted away by Harriston. Montgomery’s
injuries prove that he was shot in the back from a distance of at least three feet.
¶29. Scott testified that he waited two days to turn himself in to the police, choosing to
remain at a cousin’s house without alerting even his family as to where he was staying. Scott
also testified he gave his cousin the weapon after the shooting. The jury, tasked with
determining witness credibility, found Scott guilty, and its guilty verdict is supported by the
overwhelming weight of the evidence. This issue is void of merit.
CONCLUSION
¶30. Scott’s conviction and sentence are affirmed, as both were supported by convincingly
sufficient evidence and were not contrary to the overwhelming weight of the evidence.
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¶31. AFFIRMED.
WALLER, C.J., DICKINSON, P.J., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
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