Assigned on Briefs August 2, 2016
from the Circuit Court for Madison County No. 15-41 Donald H.
December 2014, the Madison County Grand Jury indicted Jakeil
Malik Waller ("the Defendant") and the
Defendant's brother, Jernigal Blackwell, for second
degree murder and aggravated assault. Following a trial, a
jury convicted the Defendant of second degree murder and
felony reckless endangerment, as a lesser included offense of
aggravated assault, and the trial court sentenced the
Defendant to an effective sentence of twenty-seven years'
incarceration. On appeal, the Defendant contends that: (1)
the evidence was insufficient to support his conviction for
second degree murder; (2) the prosecutor committed misconduct
during closing argument; and (3) the trial court abused its
discretion by admitting two photographs of the victim that
were not relevant to any issue at trial. Upon review, we
affirm the judgments of the trial court.
R. App. P. 3 Appeal as of Right; Judgments of the Circuit
Morton Googe, District Public Defender, and Gregory D.
Gookin, Assistant District Public Defender, for the
appellant, Jakeil Malik Waller.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Jerry Woodall,
District Attorney General; and Aaron J. Chaplin, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which John Everett Williams and Camille R. Mcmullen, JJ.,
L. HOLLOWAY, JR., JUDGE
Factual and Procedural Background
case arises out of a fight between two young men, which ended
when the Defendant and his brother fired multiple shots into
a crowd of people who were watching the fight-killing Shomari
Peterson and injuring Thomas Reid, Jr. At trial, Jessica
Spencer testified that she was living at Parkway East
Apartments in Jackson on July 27, 2014. On that day, Ms.
Spencer saw a crowd gathering in a grassy area behind one of
the apartment buildings, and she heard someone say,
"[T]hey [sic] fixing to fight[.]" Ms. Spencer went
to where the crowd had gathered and began recording the scene
with her cell phone. She explained that a fight broke out
between Tristan Cook and another young man. According to Ms.
Spencer, the other man "was whupping Tristan, " and
several people stepped in to help Tristan and break up the
fight. Then, Ms. Spencer's boyfriend, Quantavious
Anderson, started to fight with the man who had beaten up
Tristan. At that time, Ms. Spencer saw the Defendant come
from behind one of the nearby buildings to stand at the edge
of the crowd. Ms. Spencer recalled that the Defendant was
wearing gray and black clothing and a hat. She noticed that
the Defendant was "fidget[ing]" with something and
then pulled out a black handgun and shot into the crowd of
people. Ms. Spencer stated that she saw the Defendant shoot
the gun one time, but she heard additional gunshots as she
ran from the scene. She said that she saw someone with a bat
but did not see anyone else with a gun.
Spencer testified that, several days after the shooting, she
dropped her cell phone and cracked the screen. She then sold
her phone at a machine at a mall. Ms. Spencer testified that,
before her phone was damaged, she showed the cell phone video
of the incident to the mother of one of the shooting victims.
She explained that she did not initially turn it over to
police because she did not want to get involved. However, an
investigator with the Jackson Police Department
("JPD") subsequently asked her about the cell phone
video and the location of her phone. Ms. Spencer identified the
Defendant in the video. She then reviewed several screenshots
from the cell phone video. She identified the Defendant in
one of the screenshots and stated that it showed the
Defendant holding up a gun and "getting ready to
Snipes testified that, on the day of the shooting, he and his
best friend, Shomari Peterson, were at a restaurant when Mr.
Peterson received a phone call. Mr. Peterson said that they
needed to go back to Parkway East because some people were
"fixing to jump on Tristan[.]" Jamarion explained
that Tristan had intervened in a fight between his girlfriend
and another woman a few days earlier and the other
woman's boyfriend, Martel Majors,  wanted to fight
Tristan. Jamarion said that he and Mr. Peterson returned to
the apartment complex around 5:00 p.m. As they were walking
through the parking lot, Jamarion noticed four men sitting on
the hood of a car. He knew two of the men-the Defendant and
the Defendant's brother, Jernigal Blackwell. He recalled
that the Defendant had on a backwards ball cap and gray sweat
pants and that Mr. Blackwell had on orange shorts. Jamarion
testified that, as he and Mr. Peterson approached Tristan, he
heard someone say that they needed to wait until
Tristan's uncle arrived. While they waited for
Tristan's uncle, about thirty to forty people gathered
outside. Eventually, Tristan and Mr. Majors began arguing and
then started to fight.
recalled that, at the beginning of the fight, the Defendant
announced, "I'm going to sit back in the breezeway
and make sure nobody just jump[s] in. You ain't go[t] to
worry about nothing." At that time, he noticed Mr.
Blackwell reaching in his pockets. Mr. Peterson pointed a
baseball bat at Mr. Blackwell and said, "Keep your hands
out [of] your pocket. You don't need to do that."
Jamarion stated that, when another man jumped into the fight,
he heard gunshots. When the shooting began, Jamarion and Mr.
Peterson "tried to take off running, " but Mr.
Peterson was hit with a bullet and fell down. Two men picked
up Mr. Peterson and carried him into a nearby apartment.
Jamarion testified that he looked back when Mr. Peterson fell
and saw the Defendant and Mr. Blackwell shooting at them. He
estimated that Mr. Peterson was five or six feet away from
the Defendant and Mr. Blackwell when they began shooting. He
stated that he heard about twenty gunshots in total. After
the shooting, Jamarion learned that Mr. Peterson had been
shot. He stated that he went to the apartment where Mr.
Peterson was located and that Mr. Peterson was "in the
house bleeding to death and then my cousin took off his shirt
and wiped his face." Mr. Peterson said, "Please
don't let me die. Please don't let me die[.]"
recalled that, when the police arrived on the scene, the
Defendant and Mr. Blackwell avoided the officers and left the
apartment complex. Jamarion testified that Mr. Blackwell
fired the first shot but that he also saw the Defendant
shooting from the side of the building. He stated that he
knew Mr. Blackwell had a gun before the shooting because it
had an extended clip that was "hanging out of his
cross-examination, Jamarion said that Tristan initially did
not want to fight and that someone called Tristan's uncle
over "just to make him fight[.]" Jamarion recalled
that Tristan's uncle arrived with four other people
before the fight. Jamarion said that Mr. Blackwell fired the
first shot and that he believed the first shot hit Mr.
Peterson. He stated that Mr. Peterson fell down before the
Defendant fired a shot. He said that Mr. Peterson was
attempting to run away when he was shot. He stated that,
after the Defendant started shooting, "They was [sic]
all shooting back at each other."
Cook testified that he was at Parkway East with his brother,
Tristan, when a group of people began gathering in a parking
lot. He recalled that the Defendant and Mr. Blackwell were
standing with the group of people with "their hands in
their pocket[s] the whole time." Averyion explained that
the crowd was there to watch Tristan fight Mr. Majors because
the day prior the mother of Tristan's child got into a
fight with Mr. Major's girlfriend and Tristan stepped in.
recalled that the crowd began to get "rowdy" after
the fight was over. At that time, he noticed the Defendant
and Mr. Blackwell backing away from the crowd. As Mr. Majors
ran behind the apartment building, Averyion heard gunshots.
Averyion stated that the Defendant shot up into the air one
time and, at first, no one moved. Then Mr. Blackwell started
shooting, and "everybody started running." As he
fled, Averyion saw the Defendant and Mr. Blackwell shooting
towards the crowd. Although he did not see Mr. Peterson get
shot, Averyion saw Mr. Peterson lying on the ground holding
his chest. Averyion identified the Defendant in the cell
phone video of the fight and described the Defendant's
clothing as a dark gray shirt and gray jogging pants. He also
identified Mr. Blackwell, who was wearing orange shorts in
cross-examination, Averyion testified that he did not see his
and Tristan's uncle at the fight. Averyion further
testified that he did not see anyone with a baseball bat at
the scene. He agreed, however, that the cell phone video
showed a man in the crowd holding a bat. Averyion recalled
hearing "[a] bunch" of shots, and he stated that he
only saw the Defendant and Mr. Blackwell firing a weapon.
Snipes testified that he was at Parkway East at the time of
the shooting. Jacobe explained that he saw the Defendant and
Mr. Blackwell sitting on the hood of a car before the fight.
During the fight, Jacobe noticed that "[t]he dude in the
orange [shorts] kept like touching his pocket[.]" He
realized that the man had a gun in his pocket. He stated
that, when the fight stopped, the Defendant and Mr. Blackwell
started shooting towards the crowd. Jacobe said that Mr.
Blackwell fired first and that both men were standing between
two apartment buildings. As he ran from the area, Jacobe
heard several more gunshots. Jacobe testified that he only
saw the Defendant and Mr. Blackwell firing a gun and that he
did not see anyone else with a gun that day. Jacobe recalled
that he helped Mr. Peterson to a nearby apartment after Mr.
Peterson was shot. Once inside, Mr. Peterson fell to the
floor in the kitchen and began to cough up blood.
cross-examination, Jacobe explained that he was at the gates
of the apartment complex when he heard there was going to be
a fight. He saw a crowd of people and went over to the group
right before the fight began. Jacobe could tell that the
Defendant and Mr. Blackwell had guns because their
"pocket[s] [were] like shaped in a gun[.]" Jacobe
said that he did not see anyone with a baseball bat. He
stated that he first saw Mr. Blackwell shoot towards the
crowd of people, and he saw Mr. Peterson get shot in the
chest. Jacobe said that Mr. Peterson was shot immediately
when the shooting started, and he saw both the Defendant and
Mr. Blackwell shooting at the crowd where Mr. Peterson was
standing. Jacobe estimated that he heard more than ten
Reid, Jr. testified that, on the day of the shooting, he
pulled into the parking lot at Parkway East and saw a
"big crowd of people" watching Tristan and Mr.
Majors. Mr. Reid attempted to break up the fight by pulling
Mr. Majors off of Tristan. When Mr. Anderson began fighting
with Mr. Majors, Mr. Reid heard a gunshot which he thought
was meant to "scatter the crowd." Mr. Reid stated
that the man who fired the first shot was wearing
"dark-colored clothing." Then, he heard additional
gunshots, and he ran from the area. As he was running, Mr.
Reid realized that he had been shot and saw blood
"gushing out" from his chest. He stated that he
looked back and saw the Defendant and Mr. Blackwell, who were
standing in between two of the apartment buildings, shooting
at him. Mr. Reid ran across the street, lay down in the
grass, and told people around him that he had been shot. He
stated that he did not see anyone other than the Defendant
and Mr. Blackwell shooting a gun that day.
Officer Kevin Livingston testified that, on July 27, 2014, he
responded to a report of "multiple shots being fired and
possible multiple victims" at Parkway East. When he got
to the scene, he found Mr. Reid lying on the ground between
two apartment buildings. Officer Livingston attempted to calm
Mr. Reid and to assess Mr. Reid's injuries. He testified
that Mr. Reid was shot in the upper body, and he rendered aid
until an ambulance arrived. Officer Livingston stated that he
was one of the first ...