Donte Shepard v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-KA-01567-COA

DONTE SHEPARD A/K/A DONTE MEVALONE APPELLANT
SHEPARD A/K/A DONTE M. SHEPARD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/22/2016
TRIAL JUDGE: HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA M. AINSWORTH
DISTRICT ATTORNEY: ROBERT SHULER SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 01/16/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. Shepard appeals his capital-murder conviction and life sentence. We find no error and

affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On November 17, 2013, at 9:33 p.m., Jackson police were dispatched to a residence

on Randall Street about a possible shooting. The responding officer found the front door of

the residence open and Tony Brown lying just inside on the floor of the living room bleeding,

mortally wounded, and unable to speak. Brown had called 911 himself and was holding
money in one hand and a cell phone in the other.

¶3. Brown passed away while ambulance attendants were preparing him for transport.

He had suffered nine gunshot wounds. One projectile was recovered from Brown’s abdomen

during the autopsy.

¶4. There was evidence of forced entry into Brown’s house. Burglar bars on one of the

windows had been tampered with, and the window was forced open. Additionally, a crowbar

was found on the hood of a car parked near the opened window, and there were footprints

on the hood of the car. The foot impressions were insufficient for forensic comparison, and

no usable fingerprints were found on the crowbar.

¶5. Investigators found multiple spent .40-caliber shell casings inside Brown’s house in

various rooms and bullet holes throughout the house. Brown’s bedroom was in disarray, and

drawers appeared to have been rifled through, indicating a burglary.

¶6. On November 20, 2013, detectives with the Jackson Police Department interviewed

Willie Thomas, who was thirteen years old at the time of the incident. In his recorded

interview, Thomas told the police that he was walking home from the barbershop and was

right by the pathway in front of Brown’s house when he heard gunshots. Thomas stated he

saw three guys, later identified as Shepard, Jordan Johnson, and Lucious Perkins, running

from the house.

¶7. Thomas stated that Johnson and Perkins ran through a field and jumped a fence.

Thomas heard the man identified as Perkins say something about having to “get that money.”

¶8. According to Thomas, Shepard initially ran, but then returned to the scene. Thomas

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stated that before the police arrived, Shepard was hiding near an abandoned house. Thomas

explained that Shepard was in the “cut” or “look[-]through pathway” and was on the phone.

Thomas agreed that Shepard was “looking out” for the other guys. After the police arrived

on the scene, Shepard came out.

¶9. Additionally, Thomas explained that Shepard knew Brown and that Shepard had

previously broken into Brown’s house. When Brown confronted Shepard about it, Brown

and Shepard exchanged verbal death threats. Thomas advised that the confrontation occurred

on the day of the shooting at 6:05 p.m.

¶10. During the interview, Thomas was given photo lineups and identified Shepard,

Johnson, and Perkins as the three men he saw the night of the shooting. Thomas advised that

Johnson and Perkins were in Brown’s house, but Shepard was outside, on the phone,

“looking out.” Thomas wrote on the photo lineups and identified which man was the shooter.

Specifically, Thomas wrote, “this man was sho[o]ting at him,” and “this man was sho[o]ting

the man [in] the back.”

¶11. Based on Thomas’s recorded statement, Shepard, Johnson, and Perkins were arrested.

Two .40-caliber semiautomatic pistols were recovered from Johnson’s house. A ballistics

comparison was conducted, which showed that projectiles recovered from Brown’s house

and the autopsy were fired from one of the pistols in Johnson’s possession.

¶12. Shepard, Johnson, and Perkins were subsequently indicted on the charge of capital

murder. The indictment charged Shepard as follows:

[O]n or about November 17, 2013[,] while acting in concert with and/or
aiding, abetting, assisting[,] or encouraging another or others, [Shepard] did

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willfully, unlawfully, and feloniously kill Tony Brown, a human being, without
the authority of law, with or without any design to effect death while and when
engaged in the commission of the crime of burglary of a dwelling, or any
attempt to commit such felony, by shooting the said[] Tony Brown with a
firearm, in violation of Mississippi Code Annotated [section] 97-3-19(2)(e)
(1972).

¶13. At trial, the State’s key witness was Thomas. Thomas testified that he was on the

corner of Randall Street and Martin Luther King Jr. Drive when he heard gunshots. He saw

three guys, including Shepard, who “was standing outside watching out.” Thomas stated that

at the time of the gunshots, Shepard was standing in the front of Brown’s house. The other

two guys, Johnson and Perkins, ran out of the house and went through the pathway near

Brown’s house.

¶14. On cross-examination, Thomas was asked to clarify whether he saw Shepard hiding

in an abandoned house close to the scene of the crime. Thomas explained that it was not an

abandoned house, but two abandoned buildings that were close together with “a little space

open.” Thomas stated he saw Shepard on the street between the abandoned buildings and

that Shepard was on the phone. Thomas further stated no one could see Shepard because the

buildings were so close together. Thomas testified that when the police arrived, Shepard

walked past the police, spoke to one of the officers, and then left.

¶15. During Thomas’s cross-examination, defense counsel played portions of Thomas’s

recorded interview with the police. Thomas acknowledged that it was his cousin who told

him that Shepard had previously broken into Brown’s house and had exchanged death threats

with Brown. Thomas admitted that he did not actually hear Brown and Shepard exchange

threats.

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¶16. Regarding the photo lineups, Thomas testified that despite his notations, he did not

see who shot Brown. Thomas acknowledged that what he wrote on the photo lineups

“wasn’t exactly the truth.” Defense counsel then asked whether there was anything else that

Thomas needed to clarify, to which Thomas replied, “no, sir.”

¶17. On redirect, Thomas was adamant that at the time he heard gunshots, he saw Shepard

standing by the abandoned buildings, “looking out.” Thomas testified that following the

shooting, Shepard “stayed, then he left, then he came back to the scene.”

¶18. Detective Daryl Owens with the Jackson Police Department testified that he observed

Shepard at the scene of the crime, standing around after the shooting. Detective Owens

explained that in his experience as a detective, he had seen defendants return to the scene of

the crime.

¶19. Shepard did not testify at trial, but called four witnesses on his behalf. Rosalind

Howard testified that Shepard was with her on the day of the shooting. Howard explained

that she and Shepard went to the grocery store. Shortly after they returned from the grocery

store, Shepard, Howard’s niece, Hazel, and Tommie Lewis went to the store for snacks.

Howard testified that when Shepard, Hazel, and Lewis returned to her house, they were

talking about an encounter Shepard had had with Brown “a couple [of] days before.”

According to Howard, Shepard said that Brown had confronted him and had heard that he

had been in Brown’s house. Shepard told Brown that he did not know what Brown was

talking about. However, Howard testified that Shepard admitted to her that he had broken

into Brown’s house in the past.

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¶20. At some point, Shepard spilled hot sauce on his pants and left Howard’s house to

change clothes. Although Howard did not recall what time that occurred, she testified that

it was dark outside. Howard stated Shepard left by himself and was gone no more than ten

or fifteen minutes. Howard acknowledged that Shepard could have committed the crime

during the time that he had left her house.

¶21. Lewis testified that around 9:38 to 9:40 p.m., he, Hazel, and Shepard were walking

out of the door to go to the store when they heard two or three gunshots. They proceeded to

the store to get there before it closed at 10:00 p.m. When they returned to Howard’s house,

they saw a news report about a shooting on Randall Street.

¶22. On cross-examination, Lewis initially stated that Shepard was with him the whole

night. However, upon further examination, Lewis acknowledged that Shepard left Howard’s

house to get some clothes, but was gone “no longer than five minutes.”

¶23. Codefendant Johnson, who pled guilty to the murder of Brown,1 testified that on

November 17, 2013, he and a man named “Little John” got a crowbar from Perkins’s house

and used the crowbar to pry open the window to Brown’s house. Little John entered the

house first, followed by Johnson. After Johnson took items from Brown’s house, he climbed

back out the window. At that time, Brown pulled up in his vehicle, ran straight toward the

front door, and started yelling, “I got you MF now.” Johnson stated he then heard eight or

nine gunshots and “jumped back across the fence and ran back through the pathway.”

¶24. Johnson stated he was familiar with the pathway near Brown’s house. Johnson

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At trial, Johnson testified he did not shoot or kill Brown.

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described the pathway as “a little grass field” and said it was close to Brown’s house, on the

side of the house. Johnson testified that he used the pathway to get to Brown’s house.

¶25. Additionally, Johnson testified that he did not see or speak to Shepard on the day of

the crime, and did not plan or conspire with Shepard prior to the crime. However, Johnson

admitted that following his arrest, he lied to the police and told them he did know what had

happened. Moreover, Johnson admitted he never told the police about Little John.

¶26. Codefendant Perkins pled guilty to accessory before the fact to burglary. Perkins

testified that on November 17, 2013, around 8:30 or 9:00 p.m., Johnson and Little John came

to his house and asked for a crowbar. Perkins stated he heard gunshots approximately twenty

to thirty minutes later. Perkins further testified he did not see Shepard on the day of the

shooting.

¶27. On cross-examination, Perkins acknowledged that during his plea hearing, he never

mentioned Little John. Instead, during his plea, Perkins advised the circuit court, under oath,

that he gave the crowbar to Johnson. When asked to explain, Perkins responded that at the

time he pled guilty, he simply did not remember Little John. Perkins agreed that he did not

tell the same “truth” at trial as he told during his plea hearing.

¶28. In rebuttal, the State presented Detective Owens, who interviewed Shepard after his

arrest.2 During the recorded interview, Shepard advised Detective Owens that he was at

Howard’s house on November 17, 2013. Shepard further advised that he, Hazel, and Lewis

2
Shepard was read his Miranda rights and signed a waiver of those rights. See
Miranda v. Arizona, 384 U.S. 436 (1966). Additionally, his counsel was present during the
interview.

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went to the store around 7:00 p.m. Shepard denied going to the grocery store with Howard.

¶29. Shepard stated he did not hear gunshots on the night of the shooting. Shepard learned

of the shooting from a phone call he received when he returned from the store, which,

according to Shepard, was around 8:00 p.m. However, as Detective Owens noted, the

evidence showed the shooting did not occur until 9:33 p.m.

¶30. Shepard further stated that although he knew of Brown, he had never spoken to him.

Shepard advised he did not have any involvement with Brown’s house, Johnson, or Perkins

on November 17, 2013.

¶31. Following a jury trial, Shepard was found guilty of capital murder. He was sentenced

to serve life in the custody of the Mississippi Department of Corrections, without the

possibility of parole. Shepard subsequently filed a motion for a judgment notwithstanding

the verdict or, in the alternative, a motion for a new trial, which the circuit court denied.

¶32. Shepard now appeals and raises five assignments of error: (1) the evidence was

insufficient to support his conviction, (2) the verdict was contrary to the weight of the

evidence, (3) the circuit court erred in refusing his circumstantial-evidence jury instruction,

(4) the circuit court erred in sustaining the State’s reverse-Batson challenge,3 and (5) he

received ineffective assistance of counsel.

ANALYSIS

I. Sufficiency of the Evidence

¶33. Shepard first argues the evidence was insufficient to support his conviction. Shepard

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See Batson v. Kentucky, 476 U.S. 79 (1986).

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claims Thomas’s testimony “created nothing more than an inference that [he] was merely

present near the scene of the crime and does not support any rational conclusion beyond a

reasonable doubt that [he] was an accomplice, before or after the fact, to the burglary or

homicide.”

¶34. In considering whether the evidence is sufficient to sustain a conviction, “the relevant

question 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 crime beyond a

reasonable doubt.” Williams v. State, 35 So. 3d 480, 485 (¶16) (Miss. 2010) (citation

omitted). Where the facts and inferences “point in favor of the defendant on any element of

the offense with sufficient force that reasonable [jurors] could not have found beyond a

reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court

to reverse and render.” Id. (citations omitted). However, if “reasonable fair-minded [jurors]

in the exercise of impartial judgment might reach different conclusions on every element of

the offense, the evidence will be deemed to have been sufficient.” Id. (citations omitted).

¶35. The indictment alleged that Shepard, “while acting in concert with and/or aiding,

abetting, assisting[,] or encouraging another or others, did willfully, unlawfully, and

feloniously kill Brown . . . while and when engaged in the commission of the crime of

burglary of a dwelling.” “One who aids and abets another in the commission of a crime is

guilty as a principal.” Hughes v. State, 983 So. 2d 270, 276 (¶14) (Miss. 2008). “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

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felony.’” Id. (quoting Vaughn v. State, 712 So. 2d 721, 724 (¶11) (Miss. 1998)). “[S]ome

degree of participation in the criminal act must be shown in order to establish any criminal

liability.” Id. at 277 (¶16).

¶36. Here, in his statement to the police, Thomas stated Shepard was standing in the

pathway or cut-through near Brown’s house and was on the phone. Thomas agreed that

Shepard was “looking out” for the other guys in the house.

¶37. At trial, Thomas again testified that he saw three guys at Brown’s house, including

Shepard, who was standing outside, on the phone, “watching out.” Thomas further testified

that Shepard left the scene after gunshots were fired, but subsequently returned. This

testimony was confirmed by Detective Owens, who testified that he too saw Shepard at the

scene following the shooting.

¶38. Regarding Johnson’s involvement, Thomas testified that following the shooting, he

saw Johnson run through a field and jump a fence. This testimony was consistent with

Johnson’s testimony, who said that following the gunshots, he jumped the fence and ran

through the pathway, which he described as a “grass field.”

¶39. Although Johnson testified that Shepard was not involved in the crimes, he confirmed

the existence of the pathway and its proximity to Brown’s house. Moreover, Johnson

testified that he utilized the pathway to break into Brown’s house. Importantly, it was this

pathway where Thomas stated he saw Shepard standing, watching out.

¶40. While Shepard denied any involvement in the crimes, he advised the police that he

returned to Howard’s house around 8:00 p.m. According to Howard, Shepard subsequently

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left her house to change clothes. Detective Owens testified that Shepard would have had

sufficient time to get from Howard’s house to Brown’s house prior to the shooting at 9:33

p.m.

¶41. Overall, considering the evidence in the light most favorable to the State, we find

sufficient evidence existed to support Shepard’s conviction. Indeed, sufficient evidence was

presented to show that Shepard assisted or participated in the commission of the felony. Id.

Thus, Shepard’s motion for a judgment notwithstanding the verdict was properly denied.

II. Weight of the Evidence

¶42. “In reviewing the denial of a motion for a new trial ‘based on an objection to the

weight of the evidence,’ this Court ‘will only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.’” Kirk v. State, 160 So. 3d 685, 697 (¶31) (Miss. 2015) (citation

omitted). The evidence is weighed in the light most favorable to the verdict. Id. “A new

trial should be granted on the basis of the weight of the evidence ‘only in exceptional

circumstances, when the evidence weighs heavily against the jury’s verdict.’” Hughes, 983

So. 2d at 277 (¶22) (quoting Wilson v. State, 936 So. 2d 357, 363 (¶16) (Miss. 2006)).

¶43. Shepard argues the verdict was contrary to the weight of the evidence since Thomas’s

testimony was inconsistent, unreasonable, and substantially impeached. “Conflicts in the

evidence are for the jury to resolve.” Williams v. State, 64 So. 3d 1029, 1033 (¶13) (Miss.

Ct. App. 2011). “Any factual disputes are properly resolved by the jury and do not mandate

a new trial.” Sneed v. State, 31 So. 3d 33, 43 (¶33) (Miss. Ct. App. 2009) (quoting Moore

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v. State, 859 So. 2d 379, 385 (¶26) (Miss. 2003)).

¶44. Although Thomas’s statement to the police and his subsequent trial testimony differed

at times, the testimony was not substantially inconsistent. Thomas maintained throughout

litigation that at the time of the gunshots, he saw Shepard standing outside of Brown’s house,

on the phone, “watching out.” While Thomas acknowledged certain lies during his

testimony, it was for the jury, not this Court, to weigh the evidence and the credibility of the

witnesses and to resolve the issues. See Williams, 64 So. 3d at 1033 (¶13).

¶45. Overall, we do not find Thomas’s testimony was so inconsistent and implausible that,

“when considered together, it [was] an exceedingly improbable and unreasonable story.”

Ross v. State, 954 So. 2d 968, 1017-18 (¶135) (Miss. 2007). Moreover, having considered

the evidence presented, we do not find the verdict to be so contrary to the overwhelming

weight of the evidence that to allow the verdict to stand would sanction an unconscionable

injustice. Accordingly, the circuit court did not err in denying Shepard’s motion for a new

trial.

III. Circumstantial-Evidence Jury Instruction

¶46. Shepard next argues the circuit court erred in refusing his requested circumstantial-

evidence jury instruction. “This court reviews a grant or denial of a jury instruction under

an abuse-of-discretion standard.” McInnis v. State, 61 So. 3d 872, 875 (¶10) (Miss. 2011).

¶47. “Circumstantial evidence is ‘evidence which, without going directly to prove the

existence of a fact, gives rise to a logical inference that such fact does exist.’” Id. at (¶11)

(quoting Keys v. State, 478 So. 2d 266, 268 (Miss. 1985)). Where all evidence tending to

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prove guilt is circumstantial, the circuit court “must grant a jury instruction that every

reasonable hypothesis other than that of guilt must be excluded in order to convict.”

Kirkwood v. State, 52 So. 3d 1184, 1186 (¶10) (Miss. 2011). “While evidence does not

always fall neatly into one category, examples of direct evidence include . . . eyewitness

testimony ‘to the gravamen of the offense charged.’” Id. at 1187 (¶10) (quoting Mack v.

State, 481 So. 2d 793, 795 (Miss. 1985)).

¶48. Here, Thomas testified that at the time he heard gunshots, he saw Shepard outside of

Brown’s house, on the phone, “watching out.” He had previously told the police that he saw

Shepard in the pathway on the phone, and agreed that Shepard was looking out for the other

guys.

¶49. Thomas’s eyewitness testimony is direct evidence of Shepard’s involvement in the

crime. Thus, this case is not based solely on circumstantial evidence. Accordingly, the

circuit court did not abuse its discretion in refusing Shepard’s circumstantial-evidence jury

instruction.

IV. Reverse-Batson Challenge

¶50. In Batson v. Kentucky, 476 U.S. 79, 82-84 (1986), the United States Supreme Court

held that the prosecution may not use peremptory strikes in a discriminatory manner. The

Court subsequently found that Batson applies to both prosecutors and defendants. Georgia

v. McCollum, 505 U.S. 42, 59 (1992). “[W]hen the Batson analysis is used against the

defense, this Court has referred to it as a reverse-Batson challenge.” Hardison v. State, 94

So. 3d 1092, 1097 (¶17) (Miss. 2012).

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¶51. During jury selection, the State raised a reverse-Batson challenge after the defense

struck four white males from the jury.4 On appeal, Shepard takes issue with only one of the

individuals, William Barber, and argues the circuit court failed to conduct the proper Batson

analysis.

¶52. Circuit courts are afforded great deference in their determination of Batson issues.

Hatten v. State, 628 So. 2d 294, 298 (Miss. 1993). A circuit court’s determination of a

Batson issue will not be reversed on appeal unless its findings are clearly erroneous. Id.

¶53. A Batson challenge is analyzed using a three-part test:

First, the party objecting to the peremptory strike of a potential juror must
make a prima facie showing that race was the criterion for the strike. Second,
upon such a showing, the burden shifts to the [opposing party] to articulate a
race-neutral reason for excluding that particular juror. Finally, after a race-
neutral explanation has been offered . . . , the [circuit] court must determine
whether the objecting party has met its burden to prove that there has been
purposeful discrimination in the exercise of the peremptory strike, i.e., that the
reason given was a pretext for discrimination.

Hardison, 94 So. 3d at 1097-98 (¶17) (citation and emphasis omitted).

A. Prima Facie Showing

¶54. To establish a prima facie case, the opponent of a peremptory strike must establish

that:

(1) the opponent is a member of a cognizable class, such as a racial group; (2)
the proponent has used peremptory strikes to remove venire members in that
class; and (3) the facts and circumstances give rise to an inference that the
proponent used peremptory strikes to purposefully remove individuals of that
class.

Id. at 1098 (¶18).

4
Shepard is an African American male.

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¶55. Based on this Court’s highly deferential standard, we cannot say that the circuit court

erred in finding a prima facie case of racial discrimination. The record shows that while

Shepard accepted as a juror the only white venire member on the first panel, he exercised

peremptory strikes against all but one white venire member on the second panel.

Specifically, of the four viable white venire members on the second panel, Shepard exercised

peremptory strikes against three. Additionally, of the eight viable venire members on the

third panel, only one was white, and was struck by Shepard.5

B. Race-Neutral Reasons

¶56. In his initial response to the State’s challenge of Barber, defense counsel stated that

Barber did not respond to any questions during voir dire and “laughed too many times at [the

prosecutor’s] jokes and did not like [his] jokes at all.” Additionally, defense counsel

explained that Barber had a master’s degree and may not be able to “conceptualize or even

give proper context to what’s going on [in Brown’s neighborhood].”

¶57. Demeanor, educational background, and employment history are sufficient race-

neutral reasons for striking venire members. Davis v. State, 660 So. 2d 1228, 1242 (Miss.

1995). When a party offers a valid race-neutral reason, the circuit court “must allow the

strike unless the other party demonstrates that the valid race-neutral reason was a pretext for

discrimination.” Hardison, 94 So. 3d at 1100 (¶28).

¶58. Here, although the circuit court did not specifically find that Shepard’s reasons for the

peremptory strike were race-neutral, the record shows the court continued to the third part

5
The record shows that the first panel was Panel 9, the second panel was Panel 10,
and the third panel was Panel 11.

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of the Batson analysis and required the State to respond in an effort to determine whether the

reasons were pretextual. We do not find the circuit court’s conduct to be improper.

C. Pretext

¶59. In response to Shepard’s race-neutral reasons, the prosecutor stated he did not recall

Barber “liking [his] material any more so than counsel opposite’s” and noted that Barber was

attentive, “paying attention to the questions, responding with a nod or a head shake as

asked.” Additionally, in response to defense counsel’s statement that Barber failed to

respond to any questions during voir dire, the prosecutor noted that defense counsel had

accepted other individuals as jurors who did not respond to questions or participate during

voir dire, including at least one black male.

¶60. As far as Barber’s master’s degree and his alleged inability to relate to or understand

the neighborhood in which the crime occurred, the prosecutor noted that at no time did

defense counsel ask Barber what type of work he did or question the field in which Barber

had his degree. Moreover, when asked whether he knew where Barber lived, defense

counsel stated he did not recall, but thought Barber lived in Clinton. However, Barber was

in fact a resident of Jackson.

¶61. The circuit court found Shepard’s reasons for striking Barber were pretextual and an

effort to engage in purposeful discrimination. Based on our review of the record and given

the great deference afforded to the circuit court, we do not find the circuit court’s

determination was clearly erroneous. The record indicates Shepard’s reasons for striking

Barber were a thinly veiled way of saying that Barber, an educated white male, would be

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unable to relate to or understand a black neighborhood. However, simply because Barber has

a master’s degree in some unknown field does not make him incapable of understanding a

neighborhood such as Brown’s. Thus, the circuit court’s conclusion that such an explanation

was a pretext for discrimination is not reversible error.

V. Ineffective Assistance of Counsel

¶62. Shepard last argues he received ineffective assistance of counsel. Specifically,

Shepard claims his counsel was ineffective for: (1) “eliciting testimony [through Thomas and

Howard] that he had been accused of and possibl[y] admitted to burglarizing Brown’s house

at a previous time” and (2) failing to request an alibi instruction. To prove ineffective

assistance of counsel, Shepard must show: (1) his counsel’s performance was deficient, and

(2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S.

668, 687 (1984). There is “a strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Id. at 689. To overcome this presumption,

Shepard “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶63. “[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought

during post-conviction proceedings.” Dartez v. State, 177 So. 3d 420, 422-23 (¶18) (Miss.

2015) (citation omitted). “We may, however, address an ineffectiveness claim on appeal if

the presented issues are based on facts fully apparent from the record.” Id. at 423 (¶18).

¶64. Here, Shepard’s ineffective-assistance-of-counsel claim is based on facts not fully

apparent from the record. Accordingly, we are unable to adequately and properly address the

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claim on direct appeal. As a result, we affirm the circuit court’s judgment and deny relief

preserving Shepard’s right to pursue his claim through a petition for post-conviction

collateral relief.

CONCLUSION

¶65. We find Shepard’s assignments of error on appeal are without merit. Accordingly,

we affirm.

¶66. AFFIRMED.

LEE, C.J., BARNES, CARLTON, FAIR, GREENLEE AND TINDELL, JJ.,
CONCUR. WILSON, J., CONCURS IN PART AND IN THE RESULT WITHOUT
SEPARATE WRITTEN OPINION. IRVING, P.J., AND WESTBROOKS, J.,
CONCUR IN PART AND DISSENT IN PART WITHOUT SEPARATE WRITTEN
OPINION.

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