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    Jermaine CRUMP, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01828-COA
    Court of Appeals of Mississippi.
    June 27, 2017 Rehearing Denied October 31, 2017 Certiorari Denied March 1, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE
    BEFORE IRVING, P.J., BARNES, CARLTON AND WESTBROOKS, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. A jury found Jermaine Crump guilty of deliberate-design murder. Crump's appellate counsel claims the Yalobusha County Circuit Court, First Judicial District, erred when it: (1) held that Crump could not repeat what the victim allegedly said shortly before Crump killed her; (2) allowed two law-enforcement officers to provide lay opinions as to whether the victim would have been a threat to Crump; and (3) held that the jury's verdict was not contrary to the overwhelming weight of the evidence. Crump has also filed a pro se supplemental brief. He argues that: (4) the prosecution should not have been allowed to introduce his recorded statement into evidence; (5) his retained trial counsel was ineffective; and (6) the prosecution engaged in various forms of misconduct. Finding no reversible error, we affirm the circuit court's judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. As of late 2012, Crump and his mother, Mary Crump, were the joint owners of their three-bedroom house near Coffeeville, Mississippi. Four other people were temporarily living with them: Crump's younger brother, Richard Crump Jr.; Richard's wife, Crystal Redmond Crump; and Richard and Crystal's two young children. Crump believed that Crystal had been intentionally damaging his clothes and computer. The record suggests that he retaliated by pouring water on Crystal's computer. Crump's problems with Crystal continued to escalate as he unsuccessfully tried to have her evicted or prosecuted multiple times.

¶ 3. It is undisputed that on November 2, 2012, Crump killed Crystal. Among other law-enforcement officers, Chief Deputy Jerry Ferguson of the Yalobusha County Sheriff's Department was dispatched to Crump's house. Crystal's body was lying prone on the front porch. She had been shot numerous times, including three gunshot wounds to the head. Deputy Ferguson arrested Crump, who directed him to the pistol that he had hidden inside a "black makeup-type bag" that "was under a bunch of stuff inside [Mary's] closet." Crump also showed Deputy Ferguson a knife on the floor in the hall, and said it "was the knife [Crystal] had." Deputy Thomas West found two loaded pistol magazines in Crump's pocket, and two boxes of pistol ammunition in Crump's car.

¶ 4. Investigator Bryan Sullivant of the Mississippi Bureau of Investigations also responded to the scene. He noticed that Crystal had been wearing bright green latex gloves when she died. Investigator Sullivant later tested Crump's hands for gunshot residue, but Crump had washed his hands. However, Investigator Sullivant took samples from the knife in the hallway. Those samples later tested positive for gunshot residue. That evening, Crump declined to give a statement to Investigator Sullivant.

¶ 5. By the next morning, Crump had changed his mind. After detailing the problems he had been having with Crystal, Crump said that Crystal had been standing outside his bedroom immediately before he chased her and killed her. He said Crystal had been holding a knife, but he could not remember which of her hands it was in. He also could not remember what she said before he killed her. Investigator Sullivant asked Crump several times if there were anything strange about Crystal's hands, but Crump never mentioned the bright green latex gloves that Crystal had been wearing.

¶ 6. Crump admitted that he shot Crystal as she ran from him. He said that he shot at Crystal once as she was running through the hall, and again as she was near the front door. By then, he did not know whether Crystal still had a knife. When she opened the front door and fell onto the porch, he stood over her and shot her a few more times. Crump said that he had been aiming at Crystal's back, but his shots were hitting her in the head. Crump denied that he had picked up the knife in the hall, but he said that he kicked it after he killed Crystal.

¶ 7. During February 2013, Crump was indicted and charged with murder. His trial was substantially delayed by the question of his mental competency. Following a May 2013 motion by Crump's lawyer, Crump was evaluated by Dr. John Hutson, a clinical psychologist. In May 2014, Dr. Hutson recommended further evaluation at the Mississippi State Hospital at Whitfield.

¶ 8. After Crump's July 2014 initial evaluation at Whitfield, psychiatrist Dr. Reb McMichael and clinical and forensic psychologist Dr. Amanda Gugliano opined that Crump was not competent to proceed to trial. Crump was admitted to Whitfield for further evaluation. During September 2014, Dr. Gugliano again reported that Crump was not competent to proceed to trial. She explained that Crump appeared "to have a personality disorder with paranoid and schizotypal features." Crump's evaluation and treatment continued at Whitfield.

¶ 9. In January 2015, Dr. McMichael submitted a follow-up report that Crump was able to consult with his lawyer. Dr. McMichael further opined that Crump would have understood "the nature and quality of his alleged acts" and "he would have known [they were] ... wrong." After conducting a competency hearing, the circuit court held that Crump was competent to stand trial.

¶ 10. Crump's three-day trial began on April 13, 2015. The prosecution called six witnesses during its case-in-chief. Asia Gunn testified that she was nine years old when Crump killed Crystal. Asia was in the home that day, because Crystal had been giving her a perm. While sitting in the living room, Asia saw Crump shooting at Crystal as he chased her down the hall, and again as he stood over her on the porch. Asia never saw Crystal with a knife, and she never saw a knife in the hallway.

¶ 11. Deputy Ferguson, Deputy West, and Investigator Sullivant all testified regarding their participation in the investigation. Dr. Erin Barnhart, a forensic pathologist, testified that she performed Crystal's autopsy, and Crystal had three gunshot wounds to the back of her head, one to the side of her torso, one in her right hip, and one in her right arm. Jacob Burchfield, an expert witness employed by the Mississippi Crime Laboratory, testified that gunshot residue was on the sample that Investigator Sullivant collected from the knife.

¶ 12. Crump participated significantly during his case. He vigorously disagreed with his lawyer's desire to present an insanity defense. Instead, Crump insisted that he had acted in self-defense.

¶ 13. Crump demanded that his lawyer call David Earl Hoop as a witness. Initially, Hoop did not know anything about the case. When Crump re-called him later, Hoop remembered that Crystal had taken her vehicle to his shop, and he found sugar in Crystal's gas tank. Hoop testified that Crystal was "real mad" when she left his shop. At Crump's insistence, his lawyer also called Crump's aunt, Ebonie Gunn, and his father, Richard Crump Sr., as witnesses. Neither of them knew anything about the shooting.

¶ 14. Crump's mother, Mary, testified about the living arrangements and Crump's problems with Crystal, but Mary was not at home when Crump killed Crystal. During a phone conversation on the day of the shooting, Crystal told Mary that she thought Crump had put sugar in her gas tank. Mary asked Crystal to "let it go" because Crystal and Crump's brother planned to move out of the house soon. Mary also testified that Crump "got more intense" every time he unsuccessfully tried to get Crystal out of the house.

¶ 15. Against his lawyer's advice, Crump chose to testify. He said that on the day of the shooting, he heard Crystal talking on the phone with someone. "[F]rom that conversation, [he] felt like [his] life was in danger"; so he "got the [pistol] magazine and ... prepared [him]self for any bad altercation or whatever the case may be." According to Crump, Crystal said "[g]uess what" as she stood outside his door. Because of the prosecution's hearsay objection, Crump was not allowed to elaborate about what Crystal had said. Although Crump became frustrated by the circuit court's decision, he was able to testify that Crystal was "highly upset," angry, and "hitting stuff." He said that Crystal had a knife in her hand while she was standing outside his door, and he felt like his life was in danger. According to Crump, Crystal "was talking about what she was going to do."

¶ 16. Crump testified that Crystal ran from him, and he "ran behind her." Crump said that Crystal "was just getting in the den" when he "shot her in the leg[.]" He did not know whether Crystal still had the knife, but he did not see "[any]thing drop[.]" He testified that he was not thinking rationally, and he could not control his response because of his paranoid schizophrenia. He added that he "couldn't stop shooting." However, he maintained that he acted in self-defense. While Crystal was lying on the porch, Crump "just stood over her ... like a crazy man and just kept on shooting, and [he] was fixing to go and reload and shoot some more until [he] caught [him]self ...." During cross-examination, Crump said that he did not know right from wrong, and he could not stop himself. He added that he acted in the heat of the moment, but after he started to think clearly, he realized that what he had done was "very wrong, very bad."

¶ 17. The prosecution called Investigator Sullivant during its rebuttal. During Investigator Sullivant's rebuttal testimony, the prosecution introduced Crump's recorded interview into evidence. As mentioned above, the jury found Crump guilty of murder. The circuit court sentenced Crump to life in the custody of the Mississippi Department of Corrections. Following his unsuccessful posttrial motions for a judgment notwithstanding the verdict or a new trial, Crump appeals.

¶ 18. As a preliminary matter, we note that Crump's appellate counsel seeks to preserve any issue regarding Crump's competence to stand trial. After the competency hearing, and a few days before the trial, Crump's trial counsel produced a number of letters that Crump had given to his father. The letters were addressed to the circuit judge. Crump's lawyer unsuccessfully sought a continuance on the basis that the content of the letters might change Dr. Gugliano's and Dr. McMichael's opinions that Crump was competent. The record is silent regarding whether Dr. Gugliano or Dr. McMichael ever reviewed the letters.

¶ 19. Crump's appellate counsel states that the record is inadequate for him to argue that the circuit judge abused his discretion by denying the request for a continuance, which could also be construed as a motion to reconsider Crump's competency. However, counsel notes that Crump "participated extensively in his trial[,] ... there were numerous exchanges between Crump and the [circuit] judge [that] appear consistent with the finding of competency [,]" and Crump was apparently able to communicate with his prior attorney. Thus, while counsel does not concede that Crump was competent, "[he] has determined that the record before the court does not justify raising an issue about Crump's competency to stand trial." He requests "that the competency issue remain viable to raise if necessary" through a motion for postconviction relief. Crump would have to obtain the Mississippi Supreme Court's leave to raise the issue in a motion for postconviction relief. See Miss. Code Ann. § 99-39-7 (Rev. 2015). As such, we decline to comment on the subject beyond stating counsel's desire to preserve the issue.

ANALYSIS

I. Exclusion of Crump's Hearsay Testimony

¶ 20. During direct examination, Crump attempted to testify regarding what Crystal said to him as she was standing outside his door. Specifically, Crump said, "I heard a conversation between ... my mom and Crystal; and when I got in the house, Crystal was at the bookshelf and then she moved all the way-she moved to the door, and the conversation was, '[g]uess what[.]' " The prosecution objected that Crump's testimony was hearsay. The circuit court sustained the objection because Crump was "repeating an out-of-court statement." Crump claims the circuit court erred. An appellate court "reviews the trial court's admission or exclusion of evidence for abuse of discretion." Pauley v. State , 113 So.3d 557, 560 (¶ 3) (Miss. 2013). Additionally, "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected." Id . (quoting M.R.E. 103(a) ).

¶ 21. Hearsay is "a statement that ... (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." M.R.E. 801(c). Unless Mississippi law provides otherwise, hearsay is not admissible. M.R.E. 802. According to Crump, his excluded testimony would not have been hearsay, because it would not have been offered to prove the truth of the matter asserted.

¶ 22. First and foremost, there was no proffer of Crump's testimony as to what Crystal had said to him beyond "[g]uess what[.]" "When testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal." McKenzie v. State , 119 So.3d 1145, 1149 (¶ 9) (Miss. Ct. App. 2013) (quoting Green v. State , 89 So.3d 543, 554 (¶ 28) (Miss. 2012) ). Consequently, this issue is procedurally barred.

¶ 23. Procedural bar notwithstanding, we find that Crump's excluded testimony would not have resulted in reversible error. It is true that "if the significance of a statement is simply that it was made and there is no issue about the truth of the matter asserted, then the statement is not hearsay." Harrell v. State , 179 So.3d 16, 20 (¶ 11) (Miss. Ct. App. 2014). In Pauley , 113 So.3d at 560 (¶ 3), a trial court sustained an objection when a defense witness was asked whether the witness knew that the defendant had said that someone had stolen some of his tools. On appeal, the Mississippi Supreme Court held that trial court had erred because the statement was not hearsay. Id. at (¶ 4). The Supreme Court explained that the testimony at issue in that case was not offered to prove that someone had stolen the defendant's tools, "but rather that [the defendant] had harbored the belief that [the person] had stolen his tools." Id . However, the Supreme Court went on to hold that the error was harmless because the excluded testimony was cumulative. Id .

¶ 24. As in Pauley , Crump's excluded testimony was offered to prove that he felt threatened by Crystal. It was not offered to prove that she said "[g]uess what[.]" Consequently, Crump's excluded testimony was not hearsay. However, Crump was not prejudiced by the exclusion of the testimony at issue. Crump testified that he thought his "life was in danger." He also testified that Crystal had been "screaming at [him] about what she [was] going to do." The jury also heard his testimony that Crystal "was angry and talking about [how] she [was] tired of this stuff and what she [was] ... going to do ...." It is also significant that, according to Crump, he ultimately reacted because Crystal had a knife, and not based on what she said to him. That is, Crump testified that Crystal had "the knife up, but she didn't say nothing at that moment. I reacted off of her holding the knife." The jury also heard the recording of Crump's interview. Crump said that he heard Crystal tell his mother that he had put sugar in her gas tank. He also said that Crystal was standing outside of his door when she confronted him with a knife, but he did not remember exactly what she had said when she was standing outside his door.

¶ 25. "A party must do more than simply show some technical error has occurred before he will be entitled to a reversal on the exclusion or admission of evidence; there must be some showing of prejudice." Pham v. State , 716 So.2d 1100, 1102 (¶ 12) (Miss. 1998). As the State correctly notes, in Gilbert v. State , 934 So.2d 330, 336 (¶ 18) (Miss. Ct. App. 2006), this Court held that harmless error resulted when a trial court improperly excluded testimony that did not qualify as hearsay, but the witness still informed the jury that the victim was the initial aggressor. The same is true in this case. It was not necessary for Crump to quote Crystal in order for the jury to understand his claim that he killed her in self-defense. Accordingly, even if this issue were not procedurally barred, we would find that the circuit court's error was harmless.

II. Lay-Opinion Testimony

¶ 26. Over Crump's objection, Deputy Ferguson testified that based on his experience as a law-enforcement officer, nothing at the scene indicated that Crystal had been assaulting Crump. He also testified over objection that nothing at the scene suggested that Crystal could have harmed Crump or that she was an imminent threat to him. When asked to elaborate on cross-examination, Deputy Ferguson explained that Crump's body "was l[ying] outside the house and apparently had been shot outside the house[, and] there was no weapon around the body."

¶ 27. Later during cross-examination, Deputy Ferguson was asked whether his testimony would be different if Crystal had been attempting to attack Crump with the knife recovered in the hallway. Deputy Ferguson responded: "She was found outside the house, and that's where she was shot. The knife was found in the hallway." Crump's lawyer then asked the following question:

Well, let's take this for instance a step further. Let's say that before she left the house or whatever reason she left immediately, that she did have the knife and that she was approaching him or threatening him, wouldn't that explain something as to possibly why she was shot if that w[ere] the case?

Deputy Ferguson answered, "If that w[ere] the case." During redirect, Deputy Ferguson testified over objection that because the knife was approximately thirty feet from Crystal's body, she could not have been threatening Crump with the knife while she was lying on the porch.

¶ 28. When Agent Sullivant testified, the prosecution asked him if, based on his training, experience, personal observations, and Crump's statement, there was "anything to indicate that Crystal ... was assaulting Crump[.]" Crump's lawyer did not object, and Agent Sullivant responded, "No." His response was the same when asked without objection whether anything indicated that Crystal had been a threat to Crump.

¶ 29. On appeal, Crump claims that the testimonies discussed above were improper lay opinions. He notes that neither witness was tendered as an expert in crime-scene reconstruction, and the questions at issue called for opinions based on their experience. He further argues that there was no testimony that their experience afforded them any ability to discern what had happened by observing a crime scene after the fact. Finally, Crump asserts that the testimonies at issue were impermissible because the witnesses expressed opinions about the ultimate issue in the case-whether Crump acted in reasonable self-defense. Crump did not object to Agent Sullivant's testimony. He is procedurally barred from raising an issue about it for the first time on appeal. Willie v. State , 204 So.3d 1268, 1274 (¶ 13) (Miss. 2016) (citing M.R.E. 103(a)(1) ).

¶ 30. Deputy Ferguson did not testify as an expert witness. That does not necessarily mean he was prohibited from offering opinion testimony, because his unique qualification as a law-enforcement officer does not prevent him from expressing certain opinions. See Heflin v. Merrill , 154 So.3d 857, 863 (¶ 25) (Miss. 2014). As a lay witness, he could express any opinion that was rationally based on his perception, but only if it helped the jury understand his testimony or determine a fact in issue. See M.R.E. 701(a)-(b). However, as a lay witness, he could not express an opinion that would require calling upon "experience or expertise beyond that of [an] average, randomly selected adult[.]" See Collins v. State , 172 So.3d 724, 739 (¶ 16) (Miss. 2015). A lay witness's opinion testimony cannot be "based on scientific, technical, or other specialized knowledge ...." M.R.E. 701(c).

¶ 31. Viewed in full context, Deputy Ferguson testified that Crystal had not been a threat to Crump when she was lying prone on the porch, and the nearest weapon-the knife in the hall-was approximately thirty feet away. The prosecution would not have been required to qualify Deputy Ferguson as an expert witness before he could have testified regarding the distance between the knife and Crystal's body. It is necessary to note that Deputy Ferguson did not opine that Crystal had never been a threat to Crump. Likewise, he did not testify that Crump did not act in reasonably necessary self-defense when he began shooting at Crystal. See M.R.E. 704 ("An opinion is not objectionable just because it embraces an ultimate issue.").

¶ 32. Even so, there is no question that the prosecutor phrased direct-examination questions as though Deputy Ferguson would have to rely on his experience as a law-enforcement officer to express an opinion. By definition, such a question does not call for a lay opinion. Seal v. Miller , 605 So.2d 240, 244 (Miss. 1992). We must conclude that the circuit court erred when it allowed Deputy Ferguson to offer opinion testimony in response to a question that called for him to respond based on his experience as a law-enforcement officer.

¶ 33. The Mississippi Supreme Court has recently reiterated that "because the public hold police officers in great trust, the potential harm to the objecting party requires reversal where a police officer gives expert testimony without first being qualified as such." Kirk v. State , 160 So.3d 685, 693 (¶ 19) (Miss. 2015) (quoting Roberts v. Grafe Auto Co. , 701 So.2d 1093, 1099 (Miss. 1997) ). But in Kirk , the Supreme Court held that the issue had been waived due to the lack of an objection and at least in part because "defense counsel interrogated [the deputy] not only in an effort to call into question [the deputy's] expertise regarding strangulation, but also to adduce one of the defense's theories of the case, that the marks on [the victim's] neck had been self-inflicted." Id . at 694 (¶ 21). As discussed above, Crump's lawyer cross-examined Deputy Ferguson and asked him if his opinion would be different if immediately before Crump shot Crystal, she had been threatening Crump with the knife while she was standing outside his door.

¶ 34. More significantly, in Kirk , the Supreme Court did not reverse its prior decisions holding that harmless error resulted where a lay witness offered improper testimony that was cumulative because an expert witness testified to the same effect. See Le v. State , 913 So.2d 913, 937 (¶ 80) (Miss. 2005) (overruled on other grounds by Bonds v. State , 138 So.3d 914, 919 (¶ 13) (Miss. 2014) ); Walker v. State , 740 So.2d 873, 882-83 (¶¶ 34-35) (Miss. 1999) (disagreed with on other grounds by Dilworth v. State , 909 So.2d 731, 735 n.4 (Miss. 2005) ); Whittington v. State , 523 So.2d 966, 974-75 (Miss. 1988). As mentioned above, Crump objected to Deputy Ferguson's testimony that Crystal was not a threat to Crump while she was lying prone on the porch, and the knife was approximately thirty feet away. Dr. Barnhart testified that aside from a "right[-]to[-]left" gunshot wound to Crystal's torso, all of Crystal's other five gunshot wounds traveled from "back to front." She also testified that none of Crystal's wounds traveled from front to back, and that Crystal would not have been a threat to Crump after the first of three gunshot wounds to the back of the head. What is more, any prejudicial effect of Deputy Ferguson's opinion testimony was substantially mitigated by Crump's subsequent testimony that he acted irrationally when he killed Crystal. For the foregoing reasons, we find that any error in allowing the testimony at issue is harmless.

III. Weight of the Evidence

¶ 35. Crump argues that the jury's verdict is contrary to the overwhelming weight of the evidence. He claims that "[t]he only conviction supported by the evidence in this case is one for manslaughter, either in the heat of passion ... or for what is referred to as imperfect self-defense." "When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we 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." Shaheed v. State , 205 So.3d 1105, 1109 (¶ 12) (Miss. Ct. App. 2016) (quoting Bush v. State , 895 So.2d 836, 843 (¶ 18) (Miss. 2005) ). "The evidence should be viewed in the light most favorable to the verdict, and we will affirm unless the trial court abused its discretion in denying a new trial." Id .

¶ 36. "An unjustified and unexcused taking of life is presumed to be murder unless there is evidence upon which a jury can rationally justify mitigation down to manslaughter." Neal v. State , 805 So.2d 520, 525 (¶ 16) (Miss. 2002). Heat-of-passion manslaughter and what is known as "imperfect self-defense" both derive from Mississippi Code Annotated section 97-3-35 (Rev. 2014). Cook v. State , 467 So.2d 203, 207 (Miss. 1985) (citing Williams v. State , 127 Miss. 851, 854, 90 So. 705, 706 (1922) ). Heat of passion is "[a] state of violent and uncontrollable rage engendered by a blow or certain other provocation." Wade v. State , 748 So.2d 771, 776 (¶ 16) (Miss. 1999). It also "requires the absence of malice." Id . at (¶ 15). Likewise, one must act without malice for a jury to find that he or she acted in "imperfect self-defense." Ronk v. State , 172 So.3d 1112, 1126 (¶ 22) (Miss. 2015) ("[U]nder the theory of imperfect self-defense, 'an intentional killing may be considered manslaughter if done without malice but under a bona fide (but unfounded) belief that it was necessary to prevent death or great bodily harm.' ").

¶ 37. Malice is the equivalent of "deliberate design"-the "careful and unhurried consideration of the consequences." Wade , 748 So.2d at 776 (¶ 15). A person can quickly form the deliberate design to kill a person; "perhaps only moments before the act." Wilson v. State , 936 So.2d 357, 364 (¶ 18) (Miss. 2006). Deliberate design "may be inferred through the intentional use of any instrument which, based on its manner of use, is calculated to produce death or serious bodily injury." Brown v. State , 965 So.2d 1023, 1030 (¶ 28) (Miss. 2007). Furthermore, "intent may be proven ... by showing the acts of the person involved at the time, and ... the circumstances surrounding the incident." Boyd v. State , 977 So.2d 329, 335 (¶ 23) (Miss. 2008) (citation omitted). Ultimately, intent is "a question of fact gleaned by the jury." Id . (quoting Wheat v. State , 420 So.2d 229, 238 (Miss. 1982) ).

¶ 38. The jury heard testimony that Crump had unsuccessfully tried to have Crystal evicted or prosecuted, and he became "more intense" each time he failed to have her removed from the home. Crump bought a pistol not long before he killed Crystal. Crump testified that after he heard Crystal talking to his mother, he loaded the pistol because he was preparing for a confrontation with Crystal. The jury certainly could have found that Crystal's anger due to the vandalism of her car is not sufficient provocation that will reduce murder to heat-of-passion manslaughter.

¶ 39. There was conflicting testimony about whether Crystal had a knife. But Crump never testified that Crystal advanced on him with a weapon or even threatened him. Instead, the undisputed proof was that Crystal fled from him, and he pursued her. It was reasonable for the jury to conclude that Crump could not have had a good-faith belief that Crystal was a threat to him. Moreover, the jury could have held that once Crystal turned and fled from Crump, she was certainly not a threat. Crump testified that he did not know whether Crystal had a knife while she was running from him. After Crystal fell on the porch with one or more gunshot wounds, Crump stood over her and continued to shoot her. None of Crystal's wounds traveled front to back. Viewed in the light most favorable to the jury's verdict, there was evidence that Crump acted with malice. This conclusion defeats Crump's claim that the weight of the evidence supports a manslaughter conviction based on either heat of passion or imperfect self-defense. Because upholding the jury's verdict would not sanction an unconscionable injustice, we find no merit to this issue.

CRUMP'S PRO SE SUPPLEMENTAL BRIEF

IV. Crump's Confession

¶ 40. According to Crump, his confession was involuntary. He claims that it was the product of harassment and coercion. He also claims that authorities ignored his request to speak to a lawyer. This issue is procedurally barred because Crump did not raise it and give the circuit judge an opportunity to rule on it. See Glasper v. State , 914 So.2d 708, 721 (¶ 30) (Miss. 2005).

V. Effective Trial Counsel

¶ 41. Next, Crump claims that his trial counsel was ineffective. The precise nature of Crump's allegations under this heading are somewhat difficult to discern. He initially contends that his lawyer was ineffective because of "abuse of discovery, a contract[,] and other violations under due process [.]" But he does not elaborate regarding his "abuse of discovery" claim. Nor does he explain how his trial counsel supposedly infringed on his right to due process. Crump's allegation about a contract is only slightly more developed. Crump's father retained Crump's trial counsel. Sometime prior to the trial, Crump's father apparently gave him the impression that his lawyer entered some kind of an agreement with the district attorney. Some of the letters that Crump wrote to the circuit judge contained similar allegations. During a hearing on a motion for a continuance, Crump briefly mentioned his belief that his lawyer and the district attorney had some type of contract. Beyond the vague allegation of its existence, Crump never explained what the contract supposedly concerned. His supplemental pro se brief provides no greater clarity. That is, we are unable to determine what contract Crump references.

¶ 42. Crump also argues that his trial counsel failed to present "letters and evidence of other defenses." Crump does not explain what letters he references, or why his lawyer should have attempted to introduce them into evidence. Nor does Crump explain what "other defenses" his trial counsel should have presented. We note that the circuit judge repeatedly told Crump he was responsible for deciding what defense to present. Crump's trial counsel sought to raise an insanity defense, but Crump vehemently disagreed.

While this Court may consider the merits of a claim of ineffective assistance of counsel raised for the first time on direct appeal, it is unusual to do so because "we are limited to the trial court record in our review of the claim and there is usually insufficient evidence within the record to evaluate the claim."

Ragland v. State , 50 So.3d 1041, 1044 (¶ 8) (Miss. Ct. App. 2010) (quoting Wilcher v. State , 863 So. 2d 776, 825 (¶ 171) (Miss. 2003) ). The appropriate conclusion is usually "to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2003) (citing Read v. State , 430 So.2d 832, 837 (Miss. 1983) ). We will reach the merits on an ineffective-assistance claim only in instances where "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Wilcher , 863 So.2d at 825 (¶ 171). The State does not stipulate that the record is adequate to review this issue. And we do not find that the record affirmatively shows ineffectiveness of constitutional dimensions. If he chooses to do so, Crump may request the Supreme Court's leave to raise these claims in a motion for postconviction relief. See Miss. Code Ann. § 99-39-7.

VI. Alleged Prosecutorial Misconduct

¶ 43. Finally, Crump makes several prosecutorial-misconduct allegations. Some of them are so undeveloped that we are unable to review them. For example, Crump's allegations include claims listed only as "change of venue" and "conspiring." Crump withdrew his motion for a change of venue. He does not explain how the prosecution could have influenced that decision. Nor does he explain his allegation of "conspiring." Consequently, we focus on his more developed assertions that the prosecution maliciously contested his request for a bond reduction, selected all of the jurors, coached Asia's testimony, withheld evidence during discovery, falsified evidence through an unauthentic transcript of his confession, and made improper comments during its opening statement and closing argument.

¶ 44. Crump cites no authority suggesting that the prosecution was required to consent to his request to reduce his pretrial bond from $100,000 to $10,000. And although the circuit court denied Crump's motion for a bond reduction, that did not prevent Crump from bonding out. On March 17, 2014, Crump's lawyer noted that Crump's family was "in a position to post a bond for him[,] but because of fear for his safety and the safety of others they've elected not to" post his bond.

¶ 45. As for jury selection, it is unclear why Crump thinks the prosecution selected the entire jury. At his insistence, he participated extensively in voir dire and jury selection. He and his lawyer exercised numerous peremptory strikes of potential jurors. At times, his lawyer deferred to Crump's demands to strike or keep a particular member of the venire panel. There is simply no merit to his claim that the prosecution selected all of the jurors.

¶ 46. Regarding Asia's testimony, there is no support for the concept that the prosecution influenced or coached her. Asia testified that she and the prosecutor had discussed her testimony. She answered, "Yes" when Crump's lawyer asked if they had discussed it "more than one time[.]" But nothing in the record suggests that Asia's testimony was the product of coercion. And Crump cites no authority suggesting that the prosecution cannot interview its witnesses before they testify.

¶ 47. There is also no support for Crump's claim that the prosecution withheld evidence during discovery or somehow falsified the transcript of his recorded statement. Both allegations appear to be related. The prosecution gave Crump's lawyer a transcript of Crump's statement, but Crump's lawyer never requested a copy of the actual recording. During the trial, there was an issue about Crump's demeanor or emotional state during the interview. The prosecution could not have withheld something that Crump's lawyer never requested. As for Crump's claim that the transcript was falsified, he does not explain his claim. That is, he does not specify how the transcript was inaccurate or how that inaccuracy was intentional. Furthermore, Crump had an opportunity to review the record and identify any inaccuracies.

¶ 48. Finally, Crump claims that the prosecution made improper comments during its opening statement and closing argument. However, there were no contemporaneous objections to those comments. As a result, he is procedurally barred from complaining about them on appeal. Johnson v. State , 204 So.3d 763, 771 (¶ 24) (Miss. 2016). We find that none of the conduct Crump discusses under this heading qualifies as prosecutorial misconduct, or that it somehow endangered the fairness of his trial or the impartial administration of justice. This issue is meritless.

¶ 49. THE JUDGMENT OF THE YALOBUSHA COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      According to Mary, Crystal suspected that "two or three" people could have poured sugar in her gas tank. Crystal thought Crump was responsible for it "because of some more incidences that had occurred in the house."

      Crump bought the pistol approximately a week before he killed Crystal.

      Presumably, Crump was referencing what Dr. Barnhart described as the gunshot wound to Crystal's "right hip/thigh area." There was no evidence that Crystal sustained a gunshot wound to either leg.

      During Crump's competency hearing, Dr. Gugliano opined that Crump did "not have schizophrenia... [or] any kind of major mental disorder or defect." Dr. McMichael said that Crump sometimes chose not to communicate rationally, and communication was difficult because of Crump's "personality organization."

      The Mississippi Rules of Evidence were restyled in 2016 "to make them more easily understood and to make style and terminology consistent throughout the rules." M.R.E. 801 advisory committee's note. Although we quote the most recent version of Rule 801(c) and other rules of evidence throughout this opinion, the rules remain substantially the same.

      During a hearing on September 5, 2013, Crump's lawyer announced that Crump was waiving "any hearing" on his motion for a change of venue. He clarified that he was withdrawing the motion for a change of venue "subject to the examination of the jury pool[,] and he reserved the right to renew the motion if "something is revealed by voir dire ...." Crump never renewed the motion. The prosecution could not have maliciously opposed something that Crump never asserted.

      Crump claims that the prosecution repeatedly said that Crystal "was somehow innocen[t]" because of her gender. The single portion of the record that he cites does not support his interpretation. Instead, the prosecutor said that "[a] young woman's life was taken in the home she was staying [in] by the actions of this Defendant."

      Crump complains about the prosecutor's comments that Asia was an eyewitness, and that Crystal "fell out of her house as she was running away ...." (Emphasis added). Crump claims that both statements were false. However, Asia was an eyewitness, so that statement was accurate. The fact that Crystal was technically a guest in the house that belonged to Crump and his mother is trivial at best.


source: Caselaw Access Project

author: WILSON, J., FOR THE COURT:

license: Public Domain

text:
    Akeem RASHEED a/k/a Akeem Muwakkil Rasheed a/k/a Akeem Abdullah Rasheed a/k/a Lee Morris Sharp a/k/a Lamar Sharp, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-00630-COA
    Court of Appeals of Mississippi.
    August 1, 2017 Certiorari Denied February 15, 2017
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Following a jury trial in the Oktibbeha County Circuit Court, Akeem Rasheed was convicted of aggravated assault and burglary of a dwelling based on evidence that he kicked down the door of Renee Childs's apartment in Starkville and stabbed Michael Randle in the back with a knife. Rasheed and Childs had been in a romantic relationship, while Randle was the father of Childs's daughter. A short time after Randle was stabbed, Rasheed was arrested a few blocks from the apartment carrying a knife. At trial, the jury heard testimony from Randle, Childs, and Rasheed, as well as 911 calls placed by Randle and Childs and other evidence. Following his conviction, Rasheed was sentenced as a habitual offender to two concurrent terms of life in the custody of the Mississippi Department of Corrections without eligibility for parole or probation.

¶ 2. On appeal, Rasheed's appointed counsel argues that the trial judge abused his discretion by refusing Rasheed's requested jury instructions on self-defense. However, because Rasheed testified at trial and denied that he stabbed Randle, and because the evidence did not support a self-defense claim, the trial judge did not abuse his discretion by declining to instruct the jury on self-defense. Rasheed's appointed counsel also argues that Rasheed was denied a fair trial as a result of various allegedly prejudicial comments by the prosecutors during voir dire and closing argument. However, Rasheed did not object to any of these comments, most if not all of the comments were entirely proper and innocuous, and none of the comments were so inflammatory or prejudicial as to require a new trial. Finally, in a pro se supplemental brief, Rasheed alleges a series of additional errors. However, most of the issues raised in Rasheed's pro se brief are procedurally barred because they were not raised in the trial court, and all are without merit. Accordingly, for the reasons discussed in more detail below, we affirm Rasheed's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶3. Around 9 p.m. on July 29, 2014, Randle was visiting Childs and their five-year-old daughter at Childs's apartment in Starkville. Rasheed knocked on the door and identified himself to Childs. Without opening the door, Childs asked Rasheed to leave, and he did.

¶ 4. Rasheed and Childs had been in a romantic relationship. Although Rasheed believed that the relationship was "exclusive," Childs testified that it was not. Childs testified that Rasheed had called her earlier that day, and she had asked him not to come to her apartment because Randle would be there to visit. Randle and Rasheed did not know one another.

¶ 5. Rasheed returned to the apartment ten to twenty minutes later and kicked in the door. Rasheed then entered the apartment and attacked Randle. Childs ran from the apartment and went to a neighbor's apartment to call 911. After a short struggle with Randle, Rasheed pulled a knife from his back pocket and stabbed Randle in the back. Rasheed then fled, and Randle called 911.

¶ 6. Recordings of the 911 calls from Childs and Randle were admitted into evidence at trial. Childs told the dispatcher that Akeem Abdullah had broken into her apartment and "had a knife." Randle told the dispatcher that a black man in a red shirt had stabbed him in the back with a knife and then fled.

¶ 7. Officers from the Starkville Police Department responded to Childs's apartment. Childs and Randle told the officers that Rasheed had stabbed Randle and then fled wearing a red shirt. Randle showed the officers the stab wound to his back. Officers also observed that the apartment door had been knocked off its hinges from the outside into the apartment.

¶ 8. Officers arrested Rasheed on Jackson Street a few blocks from Childs's apartment. Rasheed was wearing a brown shirt, but he was carrying a plastic bag with a red shirt in it. After the officers returned to the police station, they also found a filet knife with a seven-inch blade in the bag. No blood was apparent on the knife or the shirt. At the time of his arrest, Rasheed denied that he knew Childs. At the police station, Rasheed signed a waiver of his Miranda rights and gave a recorded statement to Detective Stephanie Perkins.

¶ 9. An Oktibbeha County grand jury indicted Rasheed for aggravated assault and burglary of a dwelling. The indictment was later amended to charge Rasheed as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015). The case proceeded to a jury trial on April 19, 2016.

¶ 10. At trial, Rasheed testified that when he first went to Childs's apartment, she asked him to leave and come back later. Rasheed claimed that when he returned thirty or forty-five minutes later, he knocked on the door, and Childs invited him into the apartment. He testified that Randle then became angry and attacked him. Rasheed claimed that as he and Randle were "tussling" in the kitchen, Randle picked up a knife and attempted to stab him, but he was able to wrestle the knife away from Randle. Rasheed then testified that, after he took the knife from Randle, "I just-I laid the knife on the table, and I just backed on out of the door." Rasheed clearly and repeatedly denied that he ever stabbed Randle during the altercation. Rasheed claimed that the knife that the police later discovered in his plastic bag was a different knife. Rasheed also claimed that he was under the influence of drugs and alcohol during his post-arrest interview with Detective Perkins.

¶ 11. After Rasheed testified, the State called Detective Perkins as a rebuttal witness, and a video of her interview of Rasheed was admitted into evidence. In the interview, Rasheed told Perkins that he went to Childs's apartment that evening, but Childs told him that "she had company," so he left. Rasheed said that he went to his aunt's apartment across the street but returned to Childs's apartment when she called and told him that she needed to talk to him. Rasheed said that when he returned to Childs's apartment, he and Randle tussled, Randle pulled out a knife, and he took the knife from Randle. Perkins then asked whether he stabbed Randle with the knife. At one point, Rasheed answered, "apparently." Rasheed later said that he did not remember stabbing Randle but that it "was possible" "because it happened so fast." Rasheed said that whatever had occurred was "not intentional" and that he was "remorseful." Near the end of the interview, Perkins asked Rasheed whether he stabbed Randle after taking the knife from him, and Rasheed answered, "Yes, ma'am."

¶ 12. The jury found Rasheed guilty of both aggravated assault and burglary of a dwelling. A separate hearing was held on Rasheed's status as a habitual offender under section 99-19-83. The State presented certified pen-packs showing Rasheed's prior convictions, and the trial judge found that the State had met its burden of proof that Rasheed was a habitual offender under section 99-19-83. Rasheed subsequently filed a timely motion for a judgment notwithstanding the verdict or a new trial, which was denied, and a timely notice of appeal.

DISCUSSION

¶ 13. Rasheed's appointed counsel from the Office of State Public Defender, Indigent Appeals Division, filed a brief raising four issues: (1) whether the trial court erred by denying a self-defense instruction that Rasheed requested; (2) whether the trial court erroneously instructed the jury on the elements of aggravated assault; (3) whether the trial court should have declared a mistrial sua sponte because "multiple instances of prosecutorial misconduct denied [Rasheed] a fair trial"; and (4) whether trial counsel's failure to object to the alleged prosecutorial misconduct constituted ineffective assistance of counsel. Rasheed then filed a pro se supplemental brief raising eight additional issues. We address the issues raised by appointed counsel first and then turn to Rasheed's additional issues.

I. Jury Instructions

A. Self-Defense Instruction

¶ 14. Rasheed first argues that the trial judge erred by refusing his proposed self-defense instruction. During the charge conference, the trial judge stated that he saw no evidence of self-defense given that Rasheed denied that he stabbed Randle. In response, Rasheed's trial counsel twice stated that he agreed with the judge's assessment of the evidence, although counsel did not withdraw the self-defense instruction that he had submitted prior to trial. The judge refused the instruction.

¶ 15. "The trial court enjoys considerable discretion regarding the form and substance of jury instructions." Higgins v. State , 725 So.2d 220, 223 (¶ 15) (Miss. 1998). Therefore, we review the grant or denial of jury instructions for an abuse of discretion. Newell v. State , 49 So.3d 66, 73 (¶ 20) (Miss. 2010). The instructions must be read as a whole and "must fairly announce the law of the case and not create an injustice against the defendant." Davis v. State , 18 So.3d 842, 847 (¶ 14) (Miss. 2009). "In other words, if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error results." Milano v. State , 790 So.2d 179, 184 (¶ 14) (Miss. 2001). Moreover, a defendant's "right to jury instructions that present his theory of the case ... is not absolute." Davis , 18 So.3d at 847 (¶ 15). A defendant is not entitled to an instruction that is "without foundation in the evidence." Morgan v. State , 117 So.3d 619, 623 (¶ 14) (Miss. 2013) (quoting Bailey v. State , 78 So.3d 308, 315 (¶ 20) (Miss. 2012) ).

¶ 16. In Oatis v. State , 726 So.2d 1230 (Miss. Ct. App. 1998), the defendant was charged with assaulting a police officer and requested a self-defense instruction even though he "denied ever kneeing or otherwise hitting the officer." Id. at 1233 (¶¶ 6-7). He contended that the jury could infer from "the evidence from other witnesses" that he struck the officer because the officer "elbowed him and otherwise started hurting him." Id. "The trial judge remained unconvinced" and refused the instruction, and this Court affirmed. Id. at (¶¶ 7-9). This Court reasoned: "Without [the defendant] saying that he hit the officer in necessary self-defense, there [was] no basis to instruct the jury as to that possibility. Quite simply, self-defense was not [the defendant's] explanation for what happened." Id. at (¶ 8) ; accord Osborne v. State , 843 So.2d 99, 101-02 (¶¶ 7-9) (Miss. Ct. App. 2003) (holding that the trial court did not abuse its discretion in denying a self-defense instruction where the defendant denied any contact with the victim); cf. Morgan , 117 So.3d at 622-24 (¶¶ 13-17) (holding that the trial court did not abuse its discretion by denying the defendant's requested instruction on imperfect self-defense because "the only theory presented through witnesses called by the defense was that [the defendant] was not the shooter").

¶ 17. The same reasoning applies in this case. Rasheed denied that he stabbed Randle. According to Rasheed's version of events, he "just ... laid the knife on the table," and then "just backed on out of the door." Indeed, during the charge conference, even Rasheed's trial counsel felt obliged to acknowledge that the evidence did not seem to support a claim of self-defense. The trial judge did not abuse his discretion by refusing the instruction proffered by Rasheed.

B. Aggravated-Assault Instruction

¶ 18. Rasheed also makes a related argument that the jury was improperly instructed on the elements of aggravated assault. The trial court instructed the jury that the State was required to prove beyond a reasonable doubt that "Rasheed knowingly and unlawfully caused bodily injury to ... Randle by using a deadly weapon, a knife, to stab ... Randle." However, the trial judge refused Rasheed's proposed instruction, which would have also required the jury to find that Rasheed did not act "in necessary self-defense."

¶ 19. For the reasons discussed in the immediately preceding section, the trial judge did not abuse his discretion by denying Rasheed's requested instruction. Because Rasheed denied that he stabbed Randle, he was not entitled to instructions on self-defense or on the State's burden to disprove a properly raised claim of self-defense. Shelton v. State , 728 So.2d 105, 116-17 (¶ 62) (Miss. Ct. App. 1998). "Generally, to prove aggravated assault, in the manner charged here, the State has to prove two elements-that the defendant (1) attempted to cause or purposely or knowingly caused bodily injury to another (2) with a deadly weapon." Duke v. State , 146 So.3d 401, 405 (¶ 16) (Miss. Ct. App. 2014). The State's "additional burden" of proving "a third required element-that the [assault] was 'not in necessary self-defense' "-arises only if the evidence is sufficient to support a self-defense claim. Id. at 405-06 (¶ 16) ; see also McIntosh v. State , 749 So.2d 1235, 1240 (¶ 17) (Miss. Ct. App. 1999) ("Once a defendant properly raises self-defense , the burden of proof rests with the prosecution to disprove that a defendant acted in necessary self-defense." (Emphasis added)). Because the evidence in this case did not support a claim of self-defense, the trial judge did not abuse his discretion by refusing to instruct the jury on this additional burden. Shelton , 728 So.2d at 116-17 (¶ 62).

II. Alleged Prosecutorial Misconduct

¶ 20. Rasheed next argues that statements by the district attorney (DA) and assistant district attorney (ADA) prejudiced his right to a fair trial. Rasheed contends that, beginning in voir dire and continuing through closing arguments, the prosecutors made a litany of improper comments. Although Rasheed's trial counsel did not object to any of these comments, Rasheed now insists that the trial judge should have ordered a mistrial sua sponte and that his trial counsel's failure to object constituted ineffective assistance of counsel.

¶ 21. Rasheed's "failure to object to the prosecutor's comments during voir dire renders this issue procedurally barred." Neal v. State , 15 So.3d 388, 401 (¶ 27) (Miss. 2009). Likewise, "[c]ontemporaneous objections to allegedly erroneous comments of the prosecuting attorney in closing arguments must be made or the point is waived." Gray v. State , 487 So.2d 1304, 1312 (Miss. 1986). If no contemporaneous objection is made, "the point may be considered" on appeal only "if the argument [was] so 'inflammatory' that the trial judge should have objected on his own motion." Id. (quoting Griffin v. State , 292 So.2d 159, 163 (Miss. 1974) ). However, "[w]ide latitude is generally available to counsel to argue his case on closing argument." Williams v. State , 684 So.2d 1179, 1205 (Miss. 1996).

¶ 22. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must show both (1) "that counsel's performance was deficient"-i.e., "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment"-and (2) that he was prejudiced as a result-i.e., "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. 2052. As to Strickland 's first prong, our Supreme Court has held that, in general, " 'counsel's choice of whether or not to ... make certain objections fall[s] within the ambit of trial strategy' and cannot give rise to an ineffective assistance of counsel claim." Carr v. State , 873 So.2d 991, 1003 (¶ 27) (Miss. 2004) (quoting Cole v. State , 666 So.2d 767, 777 (Miss. 1995) ). As to the second prong, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland , 466 U.S. at 694, 104 S.Ct. 2052.

¶ 23. With these principles in mind, we consider the various comments that Rasheed alleges were improper. First, near the beginning of voir dire, the ADA stated as follows:

This is a hugely important case to the parties, ... Akeem Rasheed and also the State of Mississippi. I represent the State of Mississippi. It's an important case because one of the government[']s most important role[s] is to maintain law and order on behalf of the whole society, to hold people accountable for the crimes that they commit, and to ensure that justice is done; not held accountable for the crimes they don't commit. And it carries with it a grave responsibility to be a juror, okay? Because convicting someone of a crime and potentially taking away their liberty would be one of the most serious things that a government could ever do. And so this is about making sure that Mr. Rasheed and the State of Mississippi get a fair trial, okay? Does everybody agree here that justice can only be done with a fair trial, with a fair and impartial jury; is that right?

Rasheed selectively quotes from these comments and argues that the ADA inappropriately asked jurors to "act on behalf of the whole society." However, that was neither stated nor implied. The ADA stated that it was the role of the government to act on behalf of society; the ADA emphasized that it was the jury's role to be "fair and impartial."

¶ 24. Rasheed next complains that, during voir dire, the ADA asked the jurors a brief series of questions such as whether they thought it was "important to be able to feel safe and secure in [their] own home[s]" and "to defend their child[ren] from danger," and whether they had ever "been jealous" or taken any "sort of violent action" out of jealousy. Although he did not object at trial, Rasheed now argues that these were improper "Golden Rule" arguments and improperly asked the jurors to place themselves in the position of the victim. These open-ended voir dire questions were not improper. In addition, the issue is procedurally barred, and the comments certainly were not so inflammatory as to mandate sua sponte intervention by the trial judge or to establish prejudice under Strickland .

¶ 25. Rasheed next asserts that the ADA improperly sought to elicit sympathy during voir dire by mentioning that he had some difficulty hearing and that he had once injured his back. This argument is without merit. The ADA simply told jurors that he sometimes talked too loud because of his hearing issue. He mentioned his back injury only in the course of explaining that voir dire was intended in part to identify any potential juror who might not be "the right person to be a juror on a particular case"-to illustrate the point, he said that he probably should not serve as a juror on a case about a serious back injury. The ADA's comments were neither improper nor prejudicial.

¶ 26. Rasheed also argues that the prosecutors made several improper comments during opening and closing arguments. During his opening argument, the DA stated as follows:

Well, that begs the question if the case is that simple what are we doing here? Well, I'll tell you. I'm sure the defendant will come up with some sort of defense. He's got a smart lawyer. He'll find some reason to claim that he shouldn't be found guilty of these crimes. He may say that he didn't break into the apartment. That Ms. Childs let him in. Thankfully the police officers took pictures of the scene. And so you'll get to look at the pictures of that door and decide for yourself whether that picture shows a door that's been kicked in or a door where somebody was let in. ... He may also try to claim ... that this is somehow self-defense; that Mr. Randle initiated the confrontation or some other reason to justify his actions. The problem with this story is there are no facts to support it.

¶ 27. Rasheed argues that the DA's rhetorical question-"[W]hat are we doing here?"-was an improper suggestion that his defense was "a fraud or scam." However, in context, there was nothing improper about the comment. The DA was simply addressing the lack of evidence to support potential defenses. In addition, while a prosecutor should refrain from personal attacks on defense counsel, see, e.g. , Edwards v. State , 737 So.2d 275, 300-01 (¶¶ 54-56) (Miss. 1999), and should not comment on the defendant's right to a trial by jury, see, e.g. , Payne v. State , 207 So.3d 1282, 1287-88 (¶¶ 19-22) (Miss. Ct. App. 2016), the above-quoted comments were neither of these things. The DA's comments were not improper, prejudicial, or grounds for the trial judge to order a mistrial sua sponte.

¶ 28. Finally, Rasheed asserts that during closing argument the ADA "repeatedly vouched for the truthfulness of the [State's] witnesses." Rasheed cites a handful of instances in which the prosecutor argued that a witness told "the truth" or testified "honestly." Once again, Rasheed did not object to any of the alleged improper vouching. "While a prosecutor is prohibited from stating his personal opinion as to the veracity of a witness, objections must be made so that the trial judge may take corrective action." Palmer v. State , 878 So.2d 1009, 1012 (¶ 9) (Miss. Ct. App. 2004). Furthermore, "the prosecution is entitled to argue the credibility of its witnesses after it has been challenged," Brown v. State , 798 So.2d 481, 492 (¶ 10) (Miss. 2001), and Rasheed plainly challenged Childs's and Randle's credibility at trial. In any event, the comments that Rasheed now cites were not so inflammatory as to compel the trial judge to act sua sponte, and trial counsel's decision not to object was not an error of such seriousness as to implicate Rasheed's Sixth Amendment right to counsel.

¶ 29. In summary, Rasheed did not object to any of the statements that he now says deprived him of a fair trial. Most of the statements he now cites were innocuous and entirely proper, and none were so inflammatory or prejudicial as to warrant a new trial.

III. Rasheed's Pro Se Briefs

¶ 30. Rasheed filed a pro se supplemental brief and reply brief that raise eight additional issues. For the reasons that follow, none of these issues warrants reversal or a new trial.

¶ 31. First, Rasheed argues that the arresting police officer and a Starkville municipal judge "conspired" to arrest him and that it was improper for the arresting officer to sign documents in the capacity of the deputy clerk of the municipal court. Rasheed cites no authority that supports this claim, and it is without merit.

¶ 32. Second, Rasheed argues that he should not have been sentenced as a habitual offender because the State failed to prove his habitual offender status under section 99-19-83. This issue is without merit. Rasheed's indictment was properly amended to reflect his habitual offender status, and at Rasheed's sentencing hearing, certified pen-packs were admitted without objection that proved that Rasheed had been convicted of multiple felonies, that he had served separate terms of one or more year in prison, and that he had been convicted of at least one crime of violence (armed robbery).

¶ 33. Third, Rasheed argues that the trial judge erred by allowing the Oktibbeha County Emergency Management Agency/E-911 director to testify and by admitting recordings of the 911 calls from Randle and Childs. He argues that his rights under the Confrontation Clause were violated because the 911 dispatchers were not subject to cross-examination. These issues are procedurally barred because they were not raised at trial. Also, the arguments are without merit. The recordings were plainly relevant and were properly authenticated. The dispatchers' questions and Randle's and Childs's answers were not "testimonial" in nature and thus did not implicate the Confrontation Clause. See Davis v. Washington , 547 U.S. 813, 826-29, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (concluding that the usual purpose of a 911 call is "to describe current circumstances requiring police assistance" in connection with "an ongoing emergency," not to prove the facts of a past crime). Moreover, there could be no Confrontation Clause objection to Randle's or Childs's out-of-court statements because both testified at trial and were subject to cross-examination. See Crawford v. Washington , 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

¶ 34. Fourth, Rasheed argues that the State should not have been permitted to amend his indictment to correct an error, namely, that the apartment was Childs's "dwelling," not Randle's dwelling. The issue is procedurally barred because Rasheed did not object to the amendment in the circuit court. Graham v. State , 935 So.2d 1119, 1120-21 (¶ 7) (Miss. Ct. App. 2006). In addition, the amendment was proper because the correction of the name of the apartment's owner was an amendment as to form, not substance. Furthermore, Rasheed fails to articulate how the amendment prejudiced his defense in the slightest. See Odom v. State , 73 So.3d 550, 552-53 (¶¶ 8-15) (Miss. Ct. App. 2011) ; Tubby v. State , 65 So.3d 846, 849-51 (¶¶ 9-15) (Miss. Ct. App. 2010). Thus, procedural bar notwithstanding, this issue is without merit.

¶ 35. Fifth, Rasheed argues that his convictions for aggravated assault and burglary of a dwelling (i.e., breaking and entering with the intent to assault) violated the constitutional prohibition against double jeopardy. However, materially indistinguishable claims have been rejected in prior cases. See generally Smith v. State , 429 So.2d 252, 257 (Miss. 1983) (holding that conviction for both rape and burglary of a dwelling with the intent to commit the offense of rape therein does not violate double jeopardy because the essential elements of the two offenses are different); see also, e.g. , Washington v. State , 800 So.2d 1140, 1147 (¶ 26) (Miss. 2001) (same as to burglary and armed robbery). The crime of burglary was complete the moment Rasheed forcibly entered the apartment with the intent to cause bodily injury to Randle; in contrast, the crime of aggravated assault was not complete until Rasheed stabbed Randle, but that offense did not require proof that Rasheed entered the apartment with any particular intent. Rasheed committed and was convicted of two different offenses with different essential elements. The issue is without merit.

¶ 36. Sixth, Rasheed argues that his trial counsel provided ineffective assistance because he failed to subpoena potential witnesses and failed to "properly investigate" the case. Rasheed's claim is not "based on facts fully apparent from the record." Sandlin v. State , 156 So.3d 813, 819 (¶ 20) (Miss. 2013). Therefore, we decline to address the claim without prejudice to its assertion in a properly filed motion for post-conviction relief. Id.

¶ 37. Seventh, Rasheed argues that the knife that was in his possession at the time of his arrest should not have been admitted into evidence because (he says) it was not the knife used to stab Randle, because it was unduly prejudicial, and because the State failed to test the knife or establish a proper chain of custody. At trial, the knife was admitted into evidence without objection, so these issues are all waived. Rasheed's arguments are also without merit. Corporal Charlie Jones of the Starkville Police Department testified that he found the knife in the same plastic bag that Sergeant Kenny Watkins took from Rasheed at the time of his arrest. Jones also testified to the chain of custody, that he sealed the knife in a container and placed it in the evidence locker, and that there were no signs of tampering. The State was not required to submit the knife for forensic testing. See Flaggs v. State , 999 So.2d 393, 399 (¶ 18) (Miss. Ct. App. 2008) ("[T]he State [is not required] to test every item of evidence collected."). And even without such testing, the jury reasonably could infer that the knife in Rasheed's possession was the same knife used to stab Randle a few blocks away a few minutes earlier. See Ronk v. State , 172 So.3d 1112, 1134 (¶ 49) (Miss. 2015) ("This Court has held that 'when there is evidence that a weapon could have caused an injury and some connection between the defendant and the weapon exists, the weapon will be deemed relevant and admissible.' " (Quoting Ross v. State , 954 So.2d 968, 993 (¶ 46) (Miss. 2007) )). In summary, the trial court properly admitted the knife into evidence without objection.

¶ 38. Eighth, Rasheed argues that the evidence was insufficient to sustain his convictions. However, considering all of "the evidence in the light most favorable to the prosecution," a "rational trier of fact" could have believed Randle's and Childs's accounts of what occurred and "found the essential elements" of burglary of the dwelling and aggravated assault "beyond a reasonable doubt." Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quoting Jackson v. Virginia , 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). Therefore, the evidence was sufficient to sustain both convictions. Id.

CONCLUSION

¶ 39. Given that Rasheed testified at trial and denied that he stabbed Randle, the trial judge did not abuse his discretion by refusing to instruct the jury on self-defense. In addition, there is ample evidence to support the convictions, and none of the other issues raised by Rasheed, either through appointed appellate counsel or in his pro se supplemental briefs, warrants reversal, a new trial, or resentencing.

¶ 40. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      Rasheed is also known as Akeem Abdullah Rasheed.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      Rasheed claimed that Childs previously told him that Randle had kicked the door in on another occasion.


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Ralph Edward LLOYD a/k/a Dirt a/k/a Ralph Lloyd, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01136-COA
    Court of Appeals of Mississippi.
    August 1, 2017 Rehearing Denied November 28, 2017 Certiorari Denied February 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Ralph Edward Lloyd a/k/a "Dirt" was convicted of armed robbery and conspiracy to commit armed robbery, in violation of Mississippi Code Annotated sections 97-3-79 and 97-1-1 (Rev. 2014). For armed robbery, Lloyd was sentenced to forty-five years, with ten years suspended and an additional five-year sentence enhancement under Mississippi Code Annotated section 97-37-37(1) (Rev. 2014) for the use of the firearm. He was sentenced to five years for conspiracy. The sentences for armed robbery and conspiracy, as well as the firearm enhancement, were ordered to run concurrently. He filed a motion for a new trial or a judgment notwithstanding the verdict (JNOV). The circuit judge denied the motion, and Lloyd appealed. We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around noon on October 15, 2015, Canton police officers responded to a radio call for a robbery. The victim, Arthur James Luckett, reported that he was robbed at gunpoint by four men wearing Halloween masks. Luckett owned a lawn-maintenance company and had been working in the area of Mary Court in Canton. He informed police that he was approached from behind and heard a voice tell him that he was being robbed. Luckett turned around and found that he was being held at gunpoint. While one man held the gun, a second person reached into his pockets and removed his money. He reported that the men took $500 in cash and one money order. After the robbery, the men ran off.

¶ 3. The police searched the area but were unable to locate the suspects or any evidence from the crime. During their search, an investigator came upon Kendoirus Hobson sitting on a porch. Hobson was known to police as a former criminal informant and also for his prior criminal convictions. When asked about the robbery, Hobson named "Willow," "Collier," "Dirt," and "Dick" as the perpetrators. Dirt is Lloyd's nickname.

¶ 4. In his statement, Luckett told police that two of the men wore ghost-like Halloween masks and one man wore a gorilla mask. He was unable to identify the fourth mask. Luckett also told police that he was familiar with the voice of the robber. He identified the speaker as Willie Louis ("Willow"). He reported that he had known Willow and his family for years and that Willow had previously worked for him.

¶ 5. Based on these statements, the police questioned Willow. Willow, who was fourteen years old at the time, initially denied his involvement. But he provided the names of two potential suspects. In a subsequent interview, Willow changed his story. He continued to deny his involvement, but he told police that Lloyd, Dick, and Collier had participated. At trial, he testified that just before the robbery he had been with Lloyd, Dick, Collier, and "Mane Mane" at Lloyd's house. He further testified that Lloyd handed out masks and participated in the robbery. In exchange for his testimony, Willow entered a guilty plea to simple robbery, and the district attorney's office recommended a sentence of fifteen years' imprisonment.

¶ 6. At the trial, Hobson testified that he was with several of the suspects at Lloyd's house when the others planned the robbery. According to Hobson, Lloyd was among the group and had gone into his house to retrieve a backpack that contained ski masks. Hobson further testified that he stood at the edge of the driveway and observed the men as they went around Lloyd's house, put on the masks, and went down the street to rob the victim.

¶ 7. A jury convicted Lloyd of armed robbery and conspiracy to commit armed robbery. The circuit judge sentenced him to forty-five years, with ten years suspended and an additional five years for the use a firearm in the commission of an armed robbery. He was sentenced to five years for conspiracy to commit armed robbery. The sentences were ordered to be served concurrently in the custody of Mississippi Department of Corrections. Aggrieved, Lloyd filed a posttrial motion for a new trial or JNOV. The circuit judge denied the motion.

STANDARD OF REVIEW

¶ 8. "[A] motion for a new trial challenges the weight of the evidence." Goldsmith v. State , 195 So.3d 207, 212 (¶ 17) (Miss. Ct. App. 2016) (citation omitted). "This Court's standard of review of a trial court's denial of a motion for a new trial is abuse of discretion." Id. (citation omitted). "A new trial will not be awarded unless the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Id. (citation and internal quotation marks omitted).

ANALYSIS

¶ 9. Lloyd claims his trial counsel was ineffective because he failed to request a cautionary jury instruction. He argues that his conviction cannot stand because it was based solely on the testimony of an accomplice. He asserts that when the only evidence against a defendant is the testimony of an accomplice, the trial judge must accede the accused's request and grant a cautionary jury instruction. He contends that but for his trial counsel's failure to make the request, the result of the proceeding would have been different.

¶ 10. "A defendant in a criminal case is entitled, under both the United States and Mississippi Constitutions, to effective assistance of counsel." Carson v. State , 212 So.3d 22, 27 (¶ 17) (Miss. 2016) (citation omitted). "In order to establish ineffective assistance of counsel, [Lloyd] must satisfy the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State , 454 So.2d 468, 476-77 (Miss. 1984)." Goldsmith , 195 So.3d at 215 (¶ 43). "[Lloyd] must demonstrate: (1) counsel's performance was deficient and (2) that the deficiency prejudiced the defense." Id. at 215-16 (¶ 43) (citation omitted). "The Strickland test is applied with deference to counsel's performance, considering the totality of the circumstances to determine whether counsel's actions were both deficient and prejudicial." Id. at 216 (¶ 43) (citation omitted).

¶ 11. "Generally, ineffective-assistance claims are raised during postconviction proceedings." Id. at (¶ 44) (citation omitted). "However, a claim of ineffectiveness may be raised on direct appeal 'if such issues are based on facts fully apparent from the record.' " Id. (quoting M.R.A.P. 22(b) ). "If the record cannot support a claim of ineffectiveness, then the appropriate action is to deny relief, preserving the defendant's right to argue the same issue through a petition for postconviction relief." Id. (citation omitted).

¶ 12. Our supreme court has held "[t]he clear law in the State of Mississippi is that the jury is to regard the testimony of co-conspirators [and accomplices] alike with great caution and suspicion." Carson , 212 So.3d at 27 (¶ 19) (citation and internal quotation marks omitted). "When determining whether a defendant is entitled to a cautionary instruction to this effect, the trial judge considers: (1) whether the witness was in fact an accomplice and (2) whether the witness's testimony was corroborated." Id. "Although the decision to grant a cautionary instruction about the testimony of an accomplice ordinarily is within the trial judge's discretion, this instruction is mandatory when the accomplice's testimony is the sole basis for the conviction and when the defendant's guilt is otherwise not clearly proven." Id. at 27-28 (¶ 19).

¶ 13. Lloyd argues there was no physical evidence that connected him to the crime. He contends that the uncorroborated testimony of Willow and Hobson was the only evidence against him. He argues that both Willow and Hobson were accomplices in this case. He first asserts that Willow was an accomplice by virtue of being indicted as a codefendant. He next asserts that Hobson was an accomplice because Willow implicated Hobson as being involved in the robbery plot.

¶ 14. The State argues that the trial counsel's failure to request a cautionary accomplice jury instruction did not constitute deficient representation because no cautionary instruction was required. The State asserts that Willow's testimony regarding Lloyd's involvement was corroborated by Hobson, who was not an accomplice.

¶ 15. The supreme court has held that "[a] defendant is entitled to a cautionary instruction if the trial court finds that the testimony of the accomplice is uncorroborated." Jones v. State , 203 So.3d 600, 611(¶ 33) (Miss. 2016). The supreme court has defined "accomplice" as 'a person who is implicated in the commission of a crime." Brewer v. State , 725 So.2d 106, 124 (¶ 84) (Miss. 1998) (citation omitted). We find that Lloyd's trial counsel provided a constitutionally deficient performance by failing to request an accomplice-testimony jury instruction.

¶ 16. No physical evidence connected Lloyd to the armed robbery. The State relied on Willow's testimony to assert Lloyd's involvement in the robbery. Willow testified against Lloyd in exchange for a plea deal of a lesser sentence. During trial, Willow admitted that he lied about his involvement and changed his story several times. We find "no strategic explanation for forgoing a jury instruction that would have discredited [Willow's] testimony." Carson , 212 So.3d at 28 (¶ 20).

¶ 17. Despite the foregoing finding, we do not hold that Lloyd has shown that his counsel's deficient performance prejudiced his defense. "Under Strickland , to establish constitutionally ineffective assistance, 'the defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Id. at (¶ 21) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

¶ 18. Here, the jury also heard testimony from Hobson. In his testimony, Hobson placed himself among the men while the robbery plot was being hatched. An investigator testified that Hobson was questioned, and the police declined to charge him in connection with the crime. The State contends that he was therefore not an accomplice and, thus, his testimony was permissible to corroborate Willow's testimony. In his initial statement to police, Willow identified Hobson as one of the perpetrators of the robbery. However, in a subsequent statement and during his testimony, he stated that Hobson was not involved. Notably, Willow did not change his story as to Lloyd. He remained adamant that Lloyd participated in the robbery.

¶ 19. "Certainly, the jury could deduce that [Willow] had an incentive to lie. We do not conclude that a reasonable probability exists that the result would have been different with an accomplice-testimony [jury] instruction." Id. Therefore, we find no error and affirm.

¶ 20. AFFIRMED.

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


author: GREENLEE, J., FOR THE COURT:

text:
    Khavaris HILL, Appellant v. HINDS COUNTY, Mississippi, Sheriff Tyrone Lewis, in his official capacity and Deputy Bracey Coleman, in his official capacity, Appellees
    NO. 2016-CA-00249-COA
    Court of Appeals of Mississippi.
    August 8, 2017 Rehearing Denied December 12, 2017 Certiorari Denied March 8, 2018
    ATTORNEYS FOR APPELLANT: CHUCK MCRAE, JHASMINE EUNIQUE ANDREWS
    ATTORNEYS FOR APPELLEES: JASON EDWARD DARE, STEVEN JAMES GRIFFIN, J. LAWSON HESTER, ROY A. SMITH JR.
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   GREENLEE, J., FOR THE COURT:

¶ 1. This is an appeal from a grant of summary judgment by the Circuit Court of Hinds County. Finding error, we reverse and remand for further proceedings consistent with this opinion.

FACTUAL BACKGROUND

¶ 2. This action arises out of events from Sunday evening, January 1, 2012, in Jackson, Mississippi. Deputy Ogden Wilburn and Deputy Bracey Coleman, both of the Hinds County Sheriff's Office, were off-duty, working a private security detail at a private apartment complex while in uniform and operating a county owned, unmarked, black Nissan Pathfinder with lights concealed inside the vehicle and possibly a siren. While the two were in the vehicle at or near the intersection of Northside Drive and Medgar Evers Boulevard, Khavaris Hill purportedly approached from behind and passed their vehicle and another while the light was green. Hill continued onto Interstate 220.

¶ 3. After Hill passed, the deputies followed. At some point after Hill's passing the deputies, they activated their blue lights and possibly their siren. Rather than yielding to the Pathfinder, Hill continued on I-220 for approximately three miles and exited at Watkins Drive. After exiting, Hill traveled approximately three-quarters of a mile on Watkins Drive before his vehicle collided with another.

¶ 4. After the collision, the deputies approached Hill's vehicle and, after Hill failed to heed their commands to exit the vehicle, the deputies pulled him from his vehicle, placed him face down on the ground, and handcuffed him. Subsequently, emergency medical services arrived along with the Jackson Police Department, which rendered aid to those involved in the crash, including Hill, and documented the scene. Hill was ultimately taken to the hospital, where he was diagnosed with a fracture in his neck. Hill was never charged with a moving violation or any other crime.

PROCEDURAL HISTORY

¶ 5. In December 2012, Hill filed suit in the United States District Court for the Southern District of Mississippi against the individual deputies, the sheriff, and Hinds County alleging both federal claims brought under 42 U.S.C. § 1983 (2012) and state claims brought under the Mississippi Tort Claims Act (MTCA). His federal claims included alleged constitutional violations, conspiracy to violate constitutional rights, and supervisory liability for constitutional violations. His state claims included alleged negligence, gross negligence, and reckless disregard for his safety.

¶ 6. On February 26, 2014, a hearing was held in that court on the individual deputies' motion for summary judgment premised upon qualified immunity. The court orally granted summary judgment on that ground, concluding that the deputies did not violate Hill's constitutional rights. The defendants moved for summary judgment on all remaining theories of liability. On March 9, 2015, the court issued a written order granting summary judgment as to Hill's federal claims. The court went on to state that "Hill's state law claims are dismissed without prejudice to their refiling in a state court of competent jurisdiction." (Emphasis added).

¶ 7. On March 18, 2015, Hill refiled his state-law claims with the Circuit Court of Hinds County, and the defendants subsequently moved for summary judgment. On February 4, 2016, the circuit court granted summary judgment for the defendants.

DISCUSSION

¶ 8. The court reviews grants of summary judgment de novo. Thrash v. Deutsch, Kerrigan, & Stiles, LLP , 183 So.3d 838, 841-42 (¶ 10) (Miss. 2016). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. M.R.C.P. 56(c). "The [movant] bears the burden to show that no genuine issue of material fact exists, and the evidence must be viewed in the light most favorable to the nonmovant." Thrash , 183 So.3d at 842 (¶ 10) (citing Monsanto Co. v. Hall , 912 So.2d 134, 136 (¶ 5) (Miss. 2005) ). If any triable issues of fact exist, we will reverse summary judgment. Conley v. Warren , 797 So.2d 881, 882 (¶ 6) (Miss. 2001).

¶ 9. The circuit court's summary judgment was based on two conclusions: (1) that the deputies were immune from Hill's claims under the MTCA for their police-protection activities, and (2) that res judicata barred Hill's "claims against Deputy Coleman in his individual capacity."

I. Immunity

¶ 10. The MTCA states:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... arising out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury .

Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012) (emphasis added).

a. Reckless Disregard

¶ 11. The circuit court found there was "no genuine issue of material fact or evidentiary basis to support a claim of reckless disregard as a result of the police pursuit and apprehension of [Hill] in this case." "To be entitled to immunity, the [deputies] must not have acted with reckless disregard for the safety of others." Miss. Dep't. of Pub. Safety v. Durn , 861 So.2d 990, 994 (¶ 10) (Miss. 2003). "Reckless disregard is more than mere negligence, but less than an intentional act." Id. "Our caselaw indicates reckless disregard embraces willful or wanton conduct which requires knowingly and intentionally doing a thing or wrongful act." Id. at 995 (¶ 10).

¶ 12. The Mississippi Supreme Court upheld a finding of reckless disregard in City of Jackson v. Brister , 838 So.2d 274 (Miss. 2003), when officers gave chase to a person suspected of passing a forged check at a bank where the officers traveled more than twenty miles over the posted speed limit and the suspect drove in excess of seventy miles per hour, resulting in the suspect colliding with a third party.

¶ 13. The Brister court cited with approval the factors listed in District of Columbia v. Hawkins , 782 A.2d 293, 300 (D.C. 2001), to determine whether an officer acted in reckless disregard of others while pursuing a third party: (1) the length of the chase; (2) the type of neighborhood; (3) the characteristics of the streets; (4) the presence of vehicular or pedestrian traffic; (5) the weather conditions and visibility; and (6) the seriousness of the offense for which the police are pursuing the vehicle. Brister , 838 So.2d at 280 (¶ 22). Here, the chase spanned approximately four miles and five minutes, through residential areas, on both Interstate and surface streets, through highly congested traffic according to the deputies, at night, and for either careless or reckless driving on account of Hill almost hitting the deputies at the light.

¶ 14. In Brister , the court also anchored its decision on the fact that the officers involved in the chase were violating a departmental order that a pursuit may only be initiated when a suspect's escape is more dangerous to the community than the risk posed by the pursuit. Brister , 838 So.2d at 280 (¶ 21). Here, as in Brister , both deputies stated that they were aware of the department's "standing order" on pursuits at the time of the pertinent events. Specifically, they were aware of (1) the need for a felony or suspicion of a felony to initiate a pursuit, and (2) that if pursuing in an unmarked vehicle, the unit is to call for a marked vehicle to take over pursuit immediately. Both deputies stated that the reason they pursued Hill was because he "almost hit" them when he passed their vehicle and another at a green light and Wilburn wanted to see what the driver's (Hill's) "problem" was. Coleman testified that, at the time that Hill passed them, he had committed a violation of a traffic ordinance, which he admitted was not a felony. Further, both deputies stated that they communicated with dispatch, but never called for a marked unit to take over the pursuit.

¶ 15. Other factual disputes persist. The deputies also stated that they terminated the pursuit as they exited Interstate 220 and never saw Hill's vehicle again until they arrived at the crash scene, yet Hill asserts the deputies continued their pursuit with blue lights staying "right on" Hill until the deputies purportedly "bumped" his vehicle, causing it to collide with another vehicle.

¶ 16. These differing versions give rise to disputed factual issues. We conclude that genuine issues of material fact exist as to whether the deputies "acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury." Miss. Code Ann. § 11-46-9(1)(c).

b. Hill's "Criminal Activity"

¶ 17. The circuit court also held that the defendants were immune from Hill's claims because he, "by fleeing law enforcement, was engaged in criminal activity at the time of the accident."

¶ 18. "If the victim is engaged in an illegal activity that is a cause of the harm, the government is immune from liability." Durn , 861 So.2d at 997 (¶ 20). But "[i]t must be shown that the victim was engaged in criminal activity that has a causal nexus to the wrongdoing of the tortfeasor." Id. "Where an officer has probable cause to arrest and proceeds to do so, there is the requisite nexus between criminal activity and the action causing injury." Id. "The criminal activity supporting the exemption must be more than fortuitous, but it applies to misdemeanors as well as felonies." Id. "Misdemeanor traffic offenses are criminal activities" within the meaning of the exemption. Id.

¶ 19. Here, the circuit court held that Hill was engaged in criminal activity by fleeing law enforcement, which is a crime under Mississippi Code Annotated section 97-9-72 (Rev. 2014). The circuit court ruled as such even though section 97-9-72(5) provides a defense to prosecution if "no law enforcement vehicle used in the attempted stop was clearly marked as a law enforcement vehicle." Here, all parties stipulate that the deputies were driving an unmarked vehicle at all pertinent times. As it appears that Hill possessed an affirmative defense to the crime of fleeing a law enforcement officer, whether or not Hill's failure to stop for the deputies in their unmarked vehicle constituted criminal activity is at least a disputed question of fact.

¶ 20. Notwithstanding the legal defense afforded Hill for his failure to stop, that was not the "criminal activity" that provided the "causal nexus" for the deputies to give chase. That purported activity was Hill's alleged either careless or reckless driving (allegedly nearly hitting the deputies' vehicle and another), which Hill disputes ever happened, and for which he was never charged with a crime. Admittedly, Brister and Durn are both cases in which the plaintiff was not the purported wrongdoer. In Brister , the driver of the third vehicle died, and her heirs brought the action. In Durn , the trooper was in pursuit of another speeding motorist when Durn made a left-hand turn in front of the trooper. However, this Court has held that the critical moment to gauge whether the individual is engaged in criminal activity is "at the time of injury." City of Jackson v. Calcote , 910 So.2d 1103, 1111-12 (¶¶ 25-26) (Miss. Ct. App. 2005). Here, according to the officers' version of events, they were no longer in pursuit when Hill's collision occurred and Hill was injured.

II. Res Judicata

¶ 21. The written order from the federal court states that the "motion for summary judgment is granted as to Hill's federal claims. Hill's state-law claims are dismissed without prejudice to their refiling in a state court of competent jurisdiction." The circuit court agreed with the assertion of the officers that the oral ruling of the federal court controlled. We note that the federal court issued an oral decision prior to its written decision; however, Mississippi's longstanding rule is that a court's written decision trumps its oral one. Banks v. Banks , 511 So.2d 933, 934-35 (Miss. 1987). Mississippi's rule is in accord with the federal law, that a trial court's written findings of fact and conclusions of law are its judgment. In its written ruling, the federal court dismissed all state-law claims without prejudice. The circuit court stated that the federal court dismissed all state-law claims with prejudice against Deputy Coleman in his individual capacity arising out of the pursuit and apprehension of Hill. In that assessment, the circuit court was in error.

¶ 22. Therefore, the trial court erroneously granted the Appellees summary judgment. Based on the contested facts, triable issues of material fact exist. "The summary judgment procedure ... cannot be used to deprive a litigant of a full trial of genuine fact issues." Conley v. Warren , 797 So.2d 881, 884 (¶ 13) (Miss. 2001). Furthermore, the circuit court's reliance on res judicata, argued by the Appellees, was error as res judicata was not applicable to the posture of this case.

CONCLUSION

¶ 23. For the foregoing reasons, we reverse the circuit court's grant of summary judgment for the Appellees and remand for further proceedings consistent with this opinion.

¶ 24. REVERSED AND REMANDED.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, FAIR AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      Wilburn stated in his deposition that he was a captain with the sheriff's office and assigned as commander of the Raymond, Mississippi detention center. His "day-to-day duties were to ... maintain[ ] all records dealing with inmates, officers, inmate grievances, officer grievances[,] [m]aintain security and safety of the facility[,] [m]ake sure the inmates were taken of [sic][,] [m]ake sure my officers were safe. I also oversaw transportation ... of the inmates from there to court, back and forth."

      Coleman stated in his deposition that he was a part-time detention officer with the sheriff's office and served as the "pod control officer." In that role, he "operated the control system for opening and closing doors, inmates going out to-for medical reason [sic] or any other reasons, things like that. Anytime they had to leave the cell block, then I was responsible for opening the doors for them and closing the doors and making sure they were secure."

      Whether or not the deputies utilized a siren during their pursuit appears to be a disputed fact based on our review of the record.

      The circuit court also held that it was "uncontested that the Hinds County officers were engaged in police protection at the time of the subject accident." To the best we can ascertain from the record, the circuit court appears correct in this holding. In reviewing Hill's complaint and the Appellees' answer, Hill asserted that the deputies were police officers employed by Hinds County and the Hinds County Sheriff's Office at all times relevant to the events involved. The Appellees stipulated that the deputies were employees of Hinds County.

      Though no formal charge was made or citation given, that the deputies gave chase to Hill for either careless driving, Miss. Code Ann. § 63-3-1213 (Rev. 2013), or reckless driving, Miss. Code Ann. § 63-3-1201 (Rev. 2013), could be asserted by the officers.

      We acknowledge the Appellees' assertion that Wilburn would have filed the paperwork for Hill's arrest warrant but for his being terminated in the interim.

      See Duffer v. Am. Home Assurance Co. , 512 F.2d 793, 799 (5th Cir. 1975) (federal trial court's oral expression of the judgment it intended to enter was not itself a judgment, but rather the trial court's written findings of fact and conclusions of law were its judgment). A federal-court judgment is "rendered when it is set forth in writing on a separate document and entered on the civil docket, in compliance with [Federal] Rule [of Civil Procedure] 58." Atl. Richfield Co. v. Monarch Leasing Co. , 84 F.3d 204, 208 (6th Cir. 1996).