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IN THE COURT OF APPEALS 09/17/96 OF THE STATE OF MISSISSIPPI
NO. 92-KA-00842 COA

LEMARIO BELL APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. WILLIAM F. COLEMAN COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: A. RANDALL HARRIS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIDRE MCCRORY DISTRICT ATTORNEY: BOBBY DELAUGHTER NATURE OF THE CASE: MURDER TRIAL COURT DISPOSITION: GUILTY OF MURDER, SENTENCED TO SERVE A TERM OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS

BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ. DIAZ, J., FOR THE COURT: Lemario Bell (Bell) was indicted, tried, and convicted of murder by the Hinds County Circuit Court and sentenced to serve a life term in the custody of the Mississippi Department of Corrections. On appeal, Bell asserts three errors: (1) sufficient proof does not exist to support a conviction for murder as the perpetrator or accessory; (2) the lower court erred in refusing Bell's requested circumstantial evidence instruction, and (3) the lower court erred by excluding black jurors in violation of the Batson rule. Finding his arguments without merit, we affirm.

FACTS In the morning hours of May 2, 1991, Bell arrived at J.R.'s Lounge (J.R.'s) in Jackson, Mississippi. After entering J.R.'s, Bell began talking with Anthony Bailey (Bailey) and a few other men he knew. At some point, Knight arrived at J.R.'s and began socializing with Brenda Thomas (Brenda), Jackie Riley (Jackie) and Frankie Thomas (Frankie). After speaking for a few minutes, Brenda, Jackie and Frankie walked outside. Bailey and Bell followed the trio onto the patio and began questioning Frankie about Knight's gang affiliation. Bell and Bailey were members of a local gang called the Vice Lords, and were asking whether Knight had changed his allegiance from the Vice Lords to the rival Folks gang. Frankie encouraged Bell and Bailey to leave Knight alone and everyone returned inside. Bailey approached Knight inside the club and accused him of changing his affiliation from the Vice Lords to the Folks. Knight, Jackie and Brenda walked away and attempted to leave J.R's. When Knight walked out the door, he was pursued by approximately seven men, including Bell and Bailey. Bell, Bailey and several more unknown men proceeded to attack Knight in the parking lot. Suddenly, the attack on Knight ceased, and he got up and began to walk toward the door of J.R.'s Lounge with Brenda. As they neared the door, they heard a gunshot. Brenda turned and saw Bailey pointing a gun towards her and Knight. Knight said, "They're shooting," and he pushed Brenda toward the door. The bullet had scraped Brenda's ear and lodged in the wall behind her. Brenda and Knight began running toward the doorway when a second shot was fired. Brenda turned to look behind her and testified that Bell was holding the gun and Knight was shot in the abdomen. Knight managed to get inside the club and laid on the floor, bleeding heavily. Witnesses testified that Knight said, "I'm going to get Lemario. I can't believe he shot me." Shortly thereafter, Knight died.

DISCUSSION 1. Sufficient Proof Does Not Exist to Support a Conviction for Murder as the Perpetrator or Accessory

Bell contends that the evidence presented at trial was not sufficient to support his conviction either as the person who fired the fatal shot which killed Knight or as an accessory before the fact. At trial, the State's primary theory was that Bell actually fired the shot that killed Knight. The State prosecuted alternatively that Bell was an accessory before the fact. This is permissible because Bell could be indicted as the principal whether he fired the shots or whether he aided and abetted the individual who actually fired the shots. Miss. Code Ann.

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