Kedarious Dezwuan Willis a/k/a Kedarious D. Willis a/k/a Kendarious Willis v. State of Mississippi; ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-KA-01317-COA
KEDARIOUS DEZWUAN WILLIS A/K/A APPELLANT
KEDARIOUS D. WILLIS A/K/A KENDARIOUS
WILLIS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/13/2018
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: ALEXANDER C. MARTIN
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED -10/29/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Kedarious Dezwuan Willis (Willis)1 and his uncle Michael Shantez Willis (Michael)2
were jointly indicted on one count of aggravated assault in violation of Mississippi Code
Annotated section 97-3-7(2)(a) (Rev. 2014) and one count of conspiracy to commit
aggravated assault in violation of Mississippi Code Annotated section 97-1-1 (Rev. 2014)
1
Willis is sometimes referred to by the nickname “Day Day” in the record.
2
Michael is sometimes referred to by the nickname “Little Mike” in the record.
by the grand jury of Copiah County. During trial, the circuit court granted the defendants’
motion for a directed verdict on the charge of conspiracy to commit aggravated assault.
However, the jury later found Willis and Michael guilty of aggravated assault. Willis was
sentenced to fourteen years in the custody of the Mississippi Department of Corrections, with
eight years to serve, followed by six years of post-release supervision with three years
reporting. Willis filed a motion for judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial, which the circuit court denied. Willis appeals. After review of the
record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On December 2, 2017, Travell Moore3 was shot following a confrontation he had with
Willis and Michael. Patricia Ford was the first of two eyewitnesses to testify. At trial,
Patricia testified that she saw Moore and Michael arguing and walking down the street
toward her house. Patricia testified that as they approached her house, she saw Willis, who
was standing in the next yard, pull a gun and shoot Moore as he turned away and tried to run.
Moore fell in her driveway after being shot, and Patricia testified that she applied a towel to
the bleeding and waited for the ambulance. Patricia also stated that she was certain that
Moore did not have a gun. Paul Ford, Patricia’s husband, also testified that Moore did not
have a gun, although Moore was known as a “little brawler.”
¶3. Moore testified that he was involved in a physical confrontation with Willis at the
3
Moore is sometimes referred to by the nickname “Fat” in the record.
2
barbershop earlier in the day. Moore stated that he went to his brother’s house following the
confrontation. Willis testified that after the confrontation, he went to his brother’s house to
clean up the blood. Willis also stated that he picked up Michael to take Michael to Willis’s
grandmother’s house. Moore stated that Michael and Willis were outside of his brother-in-
law’s house; however, Willis maintained that he and Michael were outside on the same street
trying to turn around and find a parking spot before entering Willis’s grandmother’s house.
¶4. Testimony reflects that at some point, Michael got out of the car and exchanged words
with Moore. The confrontation continued as Moore and Michael walked down the street.
Moore stated that he heard Michael say “shoot, shoot,” and that he saw Willis pull a gun. As
he turned to run, Willis shot him twice from behind. Tushima Young testified that she saw
Moore’s uncle Jeffrey remove a gun from Moore’s left pocket after he was shot; however,
Jeffrey testified that he did not retrieve a gun from Moore’s pocket.
¶5. Chief Palmer arrested Willis within minutes of the shooting. Willis first denied
shooting Moore; however, his story changed shortly thereafter. Willis claimed that Moore
approached him with a gun but that he was able to disarm Moore and that he shot Moore with
Moore’s gun. Finally, Willis admitted that he thought that Moore had a gun, so Willis shot
Moore with a gun that he already had in his possession.
¶6. Following a jury trial, both Michael and Willis were convicted on one count of
aggravated assault. The circuit court granted the motion for a directed verdict on the charge
of conspiracy. Willis filed a motion for JNOV or to alter or amend the judgment, to vacate
3
the judgment, or for a new trial. The circuit court denied Willis’s motion, and he appeals.
¶7. Willis’s counsel filed a brief pursuant to Lindsey v. State, 939 So. 2d 743 (Miss.
2005), asserting that he diligently searched the procedural and factual history of this action
and found no arguable issues for review. Willis’s trial counsel also requested that the Court
grant Willis forty days of additional time to file a pro se brief if Willis desired to do so. In
January 2016, this Court entered an order giving Willis an additional forty days to file a pro
se supplemental brief. No such brief has been filed to date.
¶8. The State agrees that there are no arguable issues before this Court. Finding no error,
we affirm the judgment of the circuit court.
DISCUSSION
¶9. “In Lindsey, th[e Mississippi Supreme] Court outlined a procedure that appellate
counsel must follow when they determine that there are no appealable issues in the record.”
Allred v. State, 130 So. 3d 504, 506 (¶6) (Miss. 2014) (citing Lindsey, 939 So. 2d at 748
(¶18)). The Court stated as follows:
(1) Counsel must file and serve a brief in compliance with Mississippi Rule of
Appellate Procedure 28(a)(1)-[(5)-(8)]; see also Smith v. Robbins, 528 U.S.
259, 280-81 (2000) (stating that “counsel’s summary of the case’s procedural
and factual history, with citations of the record, both ensures that a trained
legal eye has searched the record for arguable issues and assists the reviewing
court in its own evaluation of the case”).
(2) As a part of the brief filed in compliance with Rule 28, counsel must certify
that there are no arguable issues supporting the client's appeal, and he or she
has reached this conclusion after scouring the record thoroughly, specifically
examining: (a) the reason for the arrest and the circumstances surrounding
arrest; (b) any possible violations of the client's right to counsel; (c) the entire
4
trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial
misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into
evidence or not; and (h) possible misapplication of the law in sentencing.
(3) Counsel must then send a copy of the appellate brief to the defendant,
inform the client that counsel could find no arguable issues in the record, and
advise the client of his or her right to file a pro se brief.
(4) Should the defendant then raise any arguable issue or should the appellate
court discover any arguable issue in its review of the record, the court must,
if circumstances warrant, require appellate counsel to submit supplemental
briefing on the issue, regardless of the probability of the defendant’s success
on appeal.
(5) Once briefing is complete, the appellate court must consider the case on its
merits and render a decision.
¶10. We find that Willis’s attorney complied with all of the requirements set forth in
Lindsey. Counsel’s brief states that he “diligently searched the procedural and factual history
of this criminal action and scoured the record searching for any arguable issues which could
be presented to the Court on Willis’s behalf in good faith for appellate review.” Counsel
asserts that he reviewed: (a) the reason for the arrest and the circumstances surrounding
Willis’s arrest; (b) any possible violation of Willis’s right to counsel; (c) the entire trial
transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury
instructions including the right to an instruction on Willis’s theory of the case; (g) all
exhibits, whether admitted into evidence or not; (h) possible misapplication of the law in
sentencing; (i) the indictment and all pleadings in the record; (j) any possible ineffective-
assistance-of-counsel issues; (k) any speedy trial issues; (l) any 14th Amendment due process
issues; (m) any evidence of other bad acts and hearsay testimony; and (n) any other possible
5
reviewable issues. Counsel also states that he mailed Willis a copy of the brief and
correspondence informing Willis that he had found no arguable issues. Counsel also
informed Willis that he had a right to file a pro se brief and requested that this Court grant
Willis forty days of additional time to file a pro se brief if he desired to do so. The Court
granted the time but did not receive a pro se brief from Willis.
¶11. After our review of the record, we find that there is sufficient evidence to support
Willis’s conviction. Willis was convicted of aggravated assault in violation of Mississippi
Code Annotated section 97-3-7(2)(a). This Code section states:
A person is guilty of aggravated assault if he or she (i) attempts to cause
serious bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life; (ii) attempts to cause or purposely or knowingly causes bodily
injury to another with a deadly weapon or other means likely to produce death
or serious bodily harm; or (iii) causes any injury to a child who is in the
process of boarding or exiting a school bus in the course of a violation of
Section 63-3-615; and, upon conviction, he or she shall be punished by
imprisonment in the county jail for not more than one (1) year or sentenced to
the custody of the Department of Corrections for not more than twenty (20)
years.
¶12. The State had to demonstrate that Willis attempted to cause or caused serious bodily
harm to Moore with a deadly weapon. Patricia testified that she saw Willis pull a gun and
shoot Moore. Paul testified that Willis shot Moore several times after Moore “broke and
ran.” Willis testified that he shot Moore in self-defense; however, several witnesses testified
that Moore did not have a gun. Furthermore, Moore identified Willis as the man who shot
him, and Willis admitted to shooting Moore following a confrontation.
6
¶13. Accordingly, we find that Willis’s conviction should be affirmed and that Willis’s
counsel complied with the Supreme Court’s holding in Lindsey in submitting his brief.
¶14. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
7