source: Caselaw Access Project

author: ISHEE, JUSTICE, FOR THE COURT:

license: Public Domain

text:
    John Norman COLE a/k/a Bo Cole a/k/a John Cole v. STATE of Mississippi
    NO. 2016-KA-01441-SCT
    Supreme Court of Mississippi.
    February 1, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE KITCHENS, P.J., MAXWELL AND ISHEE, JJ.
   ISHEE, JUSTICE, FOR THE COURT:

¶ 1. John Cole was adjudged guilty by a jury in the Lincoln County Circuit Court for the unlawful possession of less than thirty grams of marijuana with the intent to distribute, and the illegal possession of a firearm by a convicted felon. He was sentenced as a habitual offender. As a result, Cole was sentenced to serve three years for the marijuana-related charge, and ten years for the possession of the firearm; the sentences were ordered to run consecutively. Cole filed posttrial motions, all of which were denied. This direct appeal followed, wherein Cole attacks the admission of certain evidence. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 6, 2015, Agent Hunter Huff of the Mississippi Bureau of Narcotics (MBN) received information from an anonymous tipster that several unidentified individuals were outside a private residence selling drugs. The tipster conveyed to Huff that the house was located on, or around, Dr. Martin Luther King Jr. Drive, and had a chiminea (or fire pit) out front. In response, Huff, along with Captain Billy Ray Warner, Agent Jesse Leggett, and other officers arrived simultaneously at the location approximately described by the tipster to investigate the claim. They parked along the public roadway and found six men sitting near the street. Cole was one of the six, seated to the far right. The scene aligned roughly with that described by the tipster, according to Huff.

¶ 3. At that time, the agents immediately observed one of the individuals hide something under his shirt. Huff, Leggett, and the other agents then approached the men while Huff began explaining why they were present. When asked to produce the hidden object, the individual revealed a marijuana joint. The same individual had his foot on top of a CD case located on the ground, which was found to contain additional marijuana. A second individual produced from his pocket a bottle housing marijuana. The agents then found marijuana and a pistol on another individual, Lattrick Williams. Having found narcotics on at least three of the individuals present, as well as a gun, the agents continued the investigation and chose to frisk Cole for weapons. But when the agents either attempted, or initially began, to frisk Cole, he stood, then fled along the roadway.

¶ 4. Agents on the scene testified that Cole discarded what appeared to be a white hand towel while running. While pursuing Cole, Officer Barlow of the Brookhaven Police Department stated that he heard what sounded like metallic clinking along the pavement-when he looked down, he observed a revolver and alerted the other agents to its presence. When inspected by Leggett, the towel was found near a firearm. In close proximity to the pistol was marijuana. Cole subsequently was restrained by the agents, placed under arrest, and searched. Additional marijuana was found on his person. He was then taken to jail.

¶ 5. Once at jail, Cole was Mirandized , waived his rights, and spoke with Huff and Leggett. According to Huff's and Leggett's testimony, Cole provided a statement, in which he allegedly admitted selling the bags of marijuana for $10 each, and that he recently had purchased the pistol found at the scene for $120. Huff stated on cross-examination, however, that Cole's statement was not recorded in any fashion, and that no written report was constructed by either himself or Leggett detailing Cole's statement. But Huff also stated that, as a general practice, MBN does not record every statement of a suspect.

¶ 6. During pretrial proceedings, Cole moved to suppress evidence related to the marijuana and pistol, claiming that the search and seizure were unlawful and, therefore, those items were "fruit of the poisonous tree." Cole also sought to have any alleged statements by him suppressed.

¶ 7. During the suppression hearing, Cole chose to testify. Cole admitted that he had waived his Miranda rights and that he had "talked with" the agents, but he denied making any statements regarding the sale of marijuana. As a result, his testimony varied in some respects from that to which Huff and Leggett had testified. Even so, Cole admitted that he had fled because he did not want to go to jail, and that he was in possession of the marijuana and the pistol before he fled. Following the suppression hearing, the circuit court denied Cole's motion to suppress.

¶ 8. As a result, Cole proceeded to trial on September 22, 2016. Upon conclusion of trial, the jury found Cole guilty of both counts charged, and he was sentenced as a habitual offender. As such, he received a three-year sentence for his possession of less than thirty grams of marijuana with the intent to distribute, and ten years for being a felon in possession of a firearm; the sentences were ordered to run consecutively, the entirety of which was to be served in the custody of the Mississippi Department of Corrections (MDOC).

¶ 9. Displeased, Cole moved for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial-neither motion, however, specifically attacked the circuit court's admission of the firearm or marijuana. The circuit court ultimately denied all of Cole's posttrial motions. Aggrieved, Cole timely filed this direct appeal.

STANDARD OF REVIEW

¶ 10. "This Court applies a mixed standard of review when considering Fourth-Amendment issues." Cook v. State , 159 So.3d 534, 537 (Miss. 2015) (citing Eaddy v. State , 63 So.3d 1209, 1213 (Miss. 2011) ). "We apply de novo review when determining whether probable cause or reasonable suspicion exists." Cook , 159 So.3d at 537. Our de novo review, however, is "limited to the trial court's 'decision based on historical facts reviewed under the substantial evidence and clearly erroneous standards.' " Id. (quoting Dies v. State , 926 So.2d 910, 917 (Miss. 2006) ).

DISCUSSION

¶ 11. In seeking relief from this Court, Cole raises but one error: the circuit court's denial of his motion to suppress. Subsumed within this issue, however, is whether Cole's right to be free from unreasonable searches and seizures was violated.

¶ 12. "Both the Fourth Amendment to the United States Constitution and Article III, Section 23 of the Mississippi Constitution protect an individual's right to be free from unreasonable searches and seizures." Eaddy , 63 So.3d at 1212 (citing Dies , 926 So.2d at 917-918 ); see also U.S. Const. amend. IV ; Miss. Const. art. 3, § 23. "To determine whether the search and seizure were unreasonable, the inquiry is two-fold: (1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Gonzales v. State , 963 So.2d 1138, 1141 (Miss. 2007).

¶ 13. "As a general rule, the state and federal constitutions prohibit warrantless searches unless an exception applies." Eaddy , 63 So.3d at 1213. Therefore, "[u]nless the State proves that a warrantless search comes within an exception, all evidence seized from the search is inadmissible." Id. A noncustodial investigatory stop, commonly referred to as a Terry stop, is a recognized exception. See Gonzales , 963 So.2d at 1141.

I. Investigatory Stops

¶ 14. Before this Court may address the merits of whether the circuit court erred in denying Cole's motion to suppress, we first must determine the lawfulness of the investigatory stop, as any evidence derived from an illegal search or seizure will be deemed tainted as "fruit of the poisonous tree." United States v. Maberry , 193 F.Supp.3d 724, 731 (S.D. Miss. 2016).

¶ 15. With that in mind, it is well-settled that "[p]olice officers may detain a person for a brief, investigatory stop consistent with the Fourth Amendment when the officers have 'reasonable suspicion, grounded in specific and articulable facts[,]' [which] allows the officers to conclude the suspect is wanted in connection with criminal behavior." Eaddy , 63 So.3d at 1213 ; see also Terry , 392 U.S. at 21, 88 S.Ct. 1868.

A. Reasonable Suspicion

¶ 16. Generally, there are two sources from which grounds for reasonable suspicion may be established: "either the officers' 'personal observation' or an informant's tip." Eaddy , 63 So.3d at 1213 (citing Florida v. J.L. , 529 U.S. 266, 270, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) ). "The officer's personal observation includes information from other law-enforcement personnel." Eaddy , 63 So.3d at 1213. "And an informant's tip may provide reasonable suspicion if accompanied by some indication of reliability; for example, reliability may be shown from the officer's independent investigation of the informant's information." Id. (citing J.L. , 529 U.S. at 270, 120 S.Ct. 1375 ).

¶ 17. That said, the scope of an investigatory stop is not unlimited. Eaddy , 63 So.3d at 1213. Rather, "[t]he scope of a search or seizure must relate to the initial circumstances that called for police action." Id. at 1214. And "[w]hen police detention exceeds the scope of the stop, the stop becomes a 'seizure,' and the State must show probable cause." Id.

¶ 18. Applied here, Cole argues that the agents' actions were not justified at the inception of the stop because "they did not possess a reasonable belief that Cole was armed," and therefore, "lacked authority to conduct a Terry pat-down for weapons." Unclear, however, is whether Cole is arguing that the inception of the stop began with the agents' initial approach of the group, or when Huff attempted to frisk Cole's person. Regardless, to assess whether the agents' stop was justified at its inception-be it the overall group or of Cole himself-we must review which facts, including any rational inferences drawn therefrom, were known to the agents beforehand. Terry , 392 U.S. at 21, 88 S.Ct. 1868.

¶ 19. From the record, testimony reveals the following:

(1) Agent Huff received an anonymous tip regarding "narcotics activity in a certain location on or about, near Martin Luther King Street ... [at] a certain house on the street, [perhaps] the third or fourth on the left;"
(2) The tip, as relayed by Huff to the other agents, conveyed "information about some subjects who were sitting outside of a residence, at or near a residence with a chiminea out front on Martin Luther King, [and that] said subjects would pull up in vehicles and purchase drugs from people at that residence;"
(3) MBN's "[s]tandard procedure" for tips implicating "a location that may have drug activity" is to "generally try to get multiple agents, at least three [to] four, [and] go to that residence" to investigate;
(4) The agents arrived at a location "where a chiminea was right next to it in a driveway," which had "individuals sitting outside[;]"
(5) The agents "parked on the shoulder of the road," and "could see several subjects there at the end of the driveway [of] the residence, maybe five or six sitting down." As the agents exited their vehicles, Warner observed the first individual "stuffing something under his shirt," which "raised suspicion[.]" The agents then "started to walk across the street" toward the individuals;
(6) Having already observed one of the individuals hide something under his shirt, the agents approached the individuals and informed the individuals that they had received a "complaint that there might be narcotics activity" at that location, and that they "were there to investigate it;" and
(7) Huff then began to question the individual who was observed stuffing something under his shirt about "why or what he was putting under his shirt."

Thus, up to the point that the agents arrived at the location and parked their vehicles, they were merely acting upon information provided through an anonymous tip.

¶ 20. Where an anonymous tip is involved, the "tipster's 'veracity,' 'reliability,' and 'basis of knowledge' are relevant considerations in establishing reasonable suspicion." Cooper v. State , 145 So.3d 1164, 1168 (Miss. 2014) (citing Alabama v. White , 496 U.S. 325, 328-329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) ). The Supreme Court has held, however, that "an anonymous tip alone seldom demonstrates the informant's basis of knowledge or veracity[.]" White , 496 U.S. at 328-329, 110 S.Ct. 2412. But even so, "there are situations in which an anonymous tip, suitably corroborated, exhibits 'sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.' " J.L. , 529 U.S. at 270, 120 S.Ct. 1375 (quoting White , 496 U.S. at 327, 110 S.Ct. 2412 ). Therefore, "[r]easonable suspicion is dependent upon the content of the information possessed by the detaining officer as well as its degree of reliability." Cooper , 145 So.3d at 1168. And as this Court has reiterated, "[b]oth factors-quantity and quality-are considered in the 'totality of the circumstances.' " Id. (citing Williamson v. State , 876 So.2d 353, 355 (Miss. 2004) ).

¶ 21. As to the anonymous tipster in this case, the circuit court specifically found:

[K]nowing the source of [the tip], the agents had maybe a basis of a history, track record of reliability, [but] what the agents lacked at that point ... was any demonstration that the tipster was in a position to know and had knowledge and-although it may have been a reliable person, it was a reliable person communicating second, third, fourth-hand hearsay ... and it's not at all clear from the tip or from any of the subsequent testimony that the tipster was in a position to have firsthand or reliable knowledge of any of the things about which he communicated to the officer.

Therefore, reviewing this finding by the circuit court, in light of the previous holdings by the Supreme Court and this Court, we find the tip here, alone , did not possess sufficient "indicia of reliability" to provide the agents with reasonable suspicion to stop the group, or any of its individual members. Cooper , 145 So.3d at 1168.

¶ 22. But in this case, the tip was not the sole basis for the agents' actions-here, the agents personally observed what they deemed "suspicious" behavior as soon as they arrived on the scene, thereby establishing an independent ground for reasonable suspicion. See Eaddy , 63 So.3d at 1213. Therefore, based upon the agents' personal observation of suspicious activity (an individual within the group of interest hiding something under his shirt), as well as their corroboration of certain (albeit, vague) details provided in the tip (approximate location and existence of the group), we hold that, objectively speaking, the agents possessed specific, articulable facts constituting a reasonable suspicion that criminal activity was afoot. See Terry , 392 U.S. at 21, 88 S.Ct. 1868.

¶ 23. As a result, then, we find that, at minimum, the agents were justified in their stop of at least the first individual observed acting suspiciously. See id. We acknowledge, however, that "[t]he Supreme Court has never viewed Terry as a general license to detain everyone within arm's reach of the individual whose conduct gives rise to reasonable suspicion," which here, would be the individual first observed stuffing something under his shirt. United States v. Hill , 752 F.3d 1029, 1037 (5th Cir. 2014) (quoting United States v. Navedo , 694 F.3d 463, 468 (3d Cir. 2012) ). Therefore, we must review the remaining details of the stop in order to ascertain whether a "seizure" of Cole took place, thus implicating the Fourth Amendment.

B. Seizure

¶ 24. Having established that the agents possessed reasonable suspicion to initiate a Terry stop, we must now determine if and when Cole was "seized" within the meaning of the Fourth Amendment.

¶ 25. "A seizure begins when 'all the circumstances surrounding the incident' are such that 'a reasonable person would have believed that he was not free to leave.' " Hill , 752 F.3d at 1033 (quoting INS v. Delgado , 466 U.S. 210, 215, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984) ). And as the Supreme Court stated in Terry , "[o]nly when the officer[s], by means of physical force or show of authority, [have] in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry , 392 U.S. at 19, n.16, 88 S.Ct. 1868. But, because "[t]he constitutional requirements for an investigative stop are less stringent than those for a full arrest," "a person may be detained short of a full arrest for investigatory purposes." Dies , 926 So.2d at 918. Therefore, "[Cole] must have been 'seized' or 'temporarily detained' by [the agents] before his flight ... to trigger Fourth Amendment protection." Cooper , 145 So.3d at 1171.

¶ 26. Here, the record reflects that, after observing the first individual stuffing something under his shirt, the agents approached the group, explaining the purpose for their presence. Huff then began to question the individual who was observed stuffing something under his shirt about "why or what he was putting under his shirt." The individual revealed that he had concealed a marijuana joint. The same individual was concealing additional marijuana located on the ground. The discovery of marijuana on the first individual was treated by the agents as an initial verification of the information received in the tip (i.e. , possible distribution of narcotics). Warner testified that once they discovered contraband on the first individual, "everybody else [was] starting to get a little nervous," so they asked generally whether the remaining individuals were in possession of any narcotics.

¶ 27. In response, a second individual produced from his pocket a bottle housing marijuana, which the agents found to further verify the information they had received. The agents stated that, during this entire time, Cole remained seated, had not asked to leave, was not under arrest, and had not been placed in handcuffs. The agents then found marijuana and a pistol on the third individual, Williams. Having found narcotics on at least three of the individuals present, as well as a gun, the agents continued their investigation and determined that Cole needed to be frisked for weapons as well. Leggett and Warner stated that it was only after the gun was found on Williams that Cole was no longer free to leave-that is, he was temporarily detained.

¶ 28. In his brief, however, Cole asserts that "once the officers arrived on the scene and questioned the first individual, [he] was under arrest and not allowed to leave." We disagree that Cole was under arrest, as this Court, in Jackson v. State , 335 So.2d 116, 118-19 (Miss. 1976), defined what constitutes an arrest:

An arrest is not consummated until there has been a taking or possession of a person by manual caption, or submission on demand; and although a manual touching is unnecessary unless there is resistance to an arrest, there must be restraint of a person to establish an arrest.

See also California v. Hodari D. , 499 U.S. 621, 626, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991) (holding that "[a]n arrest requires either physical force ... or, where that is absent, submission to the assertion of authority."). Thus, in light of Jackson and Hodari , we cannot conclude that Cole was under arrest, as Cole points to nothing in the record showing that when the agents arrived he was physically placed under arrest, or that he personally submitted to any show of authority. Instead, testimony from the agents reveals that Cole did nothing but remain sitting until it was determined that he needed to be frisked for weapons. And from his own testimony given at the suppression hearing, Cole stated that, prior to fleeing, he "hadn't made any attempt to leave," and that "[n]o one told [him he] was under arrest."

¶ 29. Still, viewing "all of the circumstances surrounding the incident," we must determine whether a "reasonable person" in Cole's position would have felt free "to disregard the police and go about his business" prior to the agents' discovery of a weapon and their subsequent decision to frisk him. United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) ; Florida v. Bostick , 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). Under the facts of this case, we cannot find that a reasonable person would have felt such freedom.

¶ 30. And so, though not placed under arrest at the moment the agents began questioning the first individual, we nonetheless agree with Cole that he was temporarily detained once that initial questioning began. Even so, we still hold that both the inception of the stop-and its accompanying detention-were lawful under Terry . This is because the anonymous tip implicated a group of individuals possibly distributing narcotics. The agents, when approaching the group of interest, then personally observed an individual within the group of interest acting suspicious. When investigated further, the agents discovered marijuana on at least three individuals. Treating those discoveries as verification of the information received in the tip, and coupled with their independent observations, we hold that the agents were justified in their temporary detention of the remaining individuals comprising the group "for purposes of investigating possibl[e] criminal behavior[.]" Terry , 392 U.S. at 22, 88 S.Ct. 1868.

¶ 31. That said, we know that Cole definitively was detained after the discovery of the weapon because Warner articulated to the other agents, and in Cole's presence, that Cole then needed to be frisked for weapons. In light of what the agents had discovered up to that point in their investigation (narcotics and a firearm), we also find that the agents were justified in their decision to frisk Cole. This is because "[t]he officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." Terry , 392 U.S at 27, 88 S.Ct. 1868. Based upon the facts of this case, we find that a reasonably prudent man would be justified in that belief.

¶ 32. To that end, the Supreme Court in Terry further held:

When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm.

Terry , 392 U.S. at 24, 88 S.Ct. 1868. Therefore, we hold that the agents were entitled "to conduct a carefully limited search of the outer clothing of [Cole] in an attempt to discover weapons which might be used to assault [the agents]." Id. at 30, 88 S.Ct. 1868. And as the Terry Court stated, "[s]uch a search is a reasonable search under the Fourth Amendment[.]"

Id. at 31, 88 S.Ct. 1868. And so, this Court holds that the agents' investigatory stop was lawful under Terry , both at its inception, and in its scope. For purposes of thoroughness, however, we choose to further address the "scope" of the stop, as it implicates a subissue raised by Cole.

C. Scope of Stop

¶ 33. As to the scope of the stop, Cole argues that, even if the agents possessed a reasonable suspicion justifying a brief investigatory stop, "their conduct was not reasonably related to the reason that justified the stop[.]" He reasons, then, that their conduct exceeded the permissible scope of the investigatory stop. As noted above, "[t]he scope of a search or seizure must relate to the initial circumstances that called for police action." Eaddy , 63 So.3d at 1214. And "[w]hen police detention exceeds the scope of the stop, the stop becomes a 'seizure,' and the State must show probable cause." Id. On these facts, then, the initial circumstance calling for police action was an anonymous tip conveying possible narcotics activity, and the permissible scope of that detention was to investigate and determine whether narcotics activity was taking place.

¶ 34. As to this subissue, Cole attempts to analogize his case with that of Carr v. State , 770 So.2d 1025 (Miss. Ct. App. 2000). In Carr , officers received a report of an auto burglary. Id. at 1027. While patrolling the area where the crime reportedly occurred, officers observed Carr riding a bike along the roadway, with a cordless telephone in hand and a flashlight protruding from his pants pocket. Id. One of the officers asked Carr to stop. Id. Carr apparently complied with the request initially, but then fled on foot as the officer approached. Id. In response, the officers gave chase, captured Carr, searched his person, and detained him upon finding gold jewelry and another person's checkbook. Id. It was determined that the phone, flashlight, jewelry, and checkbook all were taken from a burglarized residence. Id. As a result, Carr was convicted for burglary of a dwelling. Id.

¶ 35. On appeal, Carr argued that the items seized from his person should have been suppressed, as he was searched without having given consent, and his arrest was undertaken without a warrant or probable cause. Id. In reviewing the evidence, the Court of Appeals agreed and held:

The evident problem in this case is that the search of Carr's person that produced much of contraband was, beyond question, substantially more intrusive than a Terry patdown for weapons .... The fact, standing alone, that Carr fled rather than voluntarily submit to the officer's verbal command to stop justified further investigatory work by the officer, but it did not give rise to reasonable cause to arrest. Absent a lawful arrest, there could, of course, be no search incident to arrest.

Id. at 1028. Therefore, the Court of Appeals held that Carr's motion to suppress the evidence should have been granted. Id.

¶ 36. In applying Carr to his case, Cole argues that "[t]he [agents] inquiring with the individuals outside of a house on Martin Luther King, Jr. Drive and finding marijuana on one person [did] not give the [agents] reasonable cause to search or arrest [him]." Comparing Carr to Cole's case, however, we find the present matter is distinguishable.

¶ 37. First, Cole seemingly ignores all the events that transpired between the moment that marijuana was discovered on the first individual and the ultimate decision that he needed to be frisked. Thus, Cole's contention that marijuana being found on "one person [did] not give the [agents] reasonable cause to search or arrest [him]" is inaccurate-the record reveals that at least three individuals were found to be in possession of marijuana prior to the decision to frisk him. Secondly, having discovered contraband and a weapon on other individuals in the group of interest, reasonable suspicion was further established by the agents to lawfully detain Cole, in accord with Terry . See Terry , 392 U.S. at 30, 88 S.Ct. 1868. And lastly, unlike Carr , Cole temporarily was detained prior to fleeing from the agents. See Carr , 770 So.2d at 1027.

¶ 38. As such, we hold that Carr is not analogous to Cole's case, as Carr did not involve an anonymous tip, implicate a group rather than an individual, or involve independent police investigation before a suspect was placed into custody. See generally Carr , 770 So.2d 1025. Thus, while Carr involved an arrest and search without independent investigation or probable cause, such is not the case here.

¶ 39. Therefore, we cannot hold here that the scope of the investigatory stop was exceeded by the agents' conduct. The agents were there to investigate possible narcotics activity. Through their investigation, they discovered marijuana and a firearm. Having discovered a firearm, the agents were justified in their decision to conduct a Terry frisk of Cole's person in order to determine whether he possessed a weapon that could be used to assault the agents. See Terry , 392 U.S. at 30, 88 S.Ct. 1868. So, again, we find that the agents' stop was lawful both at its inception and in its scope.

D. Unprovoked Flight

¶ 40. Cole further maintains that Carr affirms that the agents' conduct here exceeded the permissible scope of the stop, notwithstanding his "alleged flight."

¶ 41. To begin, we acknowledge that the record testimony is unclear as to whether Cole actually was frisked prior to his flight, but whether a frisk occurred is not dispositive to our analysis. That said, from all of the agents' testimony in the record, it appears that as the agents-or at the least, Huff-attempted to approach Cole to frisk him, Cole, who was acting nervously at that time, stood and then fled. It is also unclear from the record whether Cole was instructed to stand, or if he did so under his own volition-regardless, Cole stated that as he stood, Huff instructed him to place his hands behind his back. Cole then testified that Huff grabbed one of his hands and placed his other hand on Cole's waist. According to Cole, that is "when the pistol fell down [his] leg." The Court can only presume that after the pistol "fell down [Cole's] leg," he chose to flee. When asked why he fled, Cole stated that he felt like he was "about to be placed under arrest," and that he "didn't want to [go] to jail." Id. at 50-51.

¶ 42. To this end, Cole asserts that his "refusal to cooperate, without more, [did] not furnish the minimum level of objective justification needed for a detention or seizure." See Illinois v. Wardlow , 528 U.S. 119, 125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000). The Supreme Court in Wardlow went further, however, and articulated the differences between a suspect's refusal to cooperate and his unprovoked flight. Wardlow , 528 U.S. at 124-25, 120 S.Ct. 673. Specifically, the Court stated:

Headlong flight-wherever it occurs-is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such .... But unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not "going about one's business[;]" in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning.

Id. (emphasis added). Thus, whether Cole had been frisked prior to his flight, he was up to that point lawfully detained under Terry and temporarily not free to leave. See generally Terry , 392 U.S. 1, 88 S.Ct. 1868. His unprovoked flight, however, was without question a "consummate act of evasion," designed to prevent his further detention and carried out by his desire to avoid jail. Wardlow , 528 U.S. at 125, 120 S.Ct. 673.

¶ 43. Therefore, we find that Cole's flight-having been lawfully detained on grounds of reasonable suspicion-provided the agents with further justification to pursue him for purposes of completing their Terry stop. See Cooper , 145 So.3d at 1173.

II. Probable Cause to Arrest

¶ 44. Despite compounding the circumstances of the investigatory stop with Cole's flight, Cole still maintains that the agents lacked probable cause to arrest him, and then search for, and later seize, the marijuana and firearm. In Cole's view, he had "the right to resist an unlawful arrest." We can only assume that Cole's reference to an "unlawful arrest" is based upon his belief that he was "about to be placed under arrest" following the determination that he needed to be frisked. For a variety of reasons, however, we find this argument unpersuasive.

¶ 45. First, as noted above, Cole admitted that he had not been placed in handcuffs, and that no one had told him that he was under arrest. See Jackson , 335 So.2d at 118-19. Rather, up to the point that he fled, the agents merely were trying to conduct a Terry frisk of Cole's person, which we have held was justified under the circumstances. Second, this Court has found that where a Terry stop has not been completed due to a suspect's flight, the officers are provided with further reasonable suspicion to justify pursuit. See Cooper , 145 So.3d at 1173 ; see also Carr , 770 So.2d at 1028. But third-and most important, however-is that this Court ultimately has held "that if a suspect flees from the police when he has been detained on reasonable suspicion, the officers acquire probable cause to effectuate an arrest ." Dies , 926 So.2d at 920 (citing Mitchell v. State , 792 So.2d 192, 204 (Miss. 2001) ) (emphasis added); see also Sibron v. New York , 392 U.S. 40, 66-67, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968).

¶ 46. Therefore, based upon the totality of the circumstances surrounding the stop, we find that the agents' decision to conduct a Terry frisk of Cole's person was justified. And so, Cole's subsequent, unprovoked flight from his lawful, temporary detention provided the agents with further reasonable suspicion to pursue him-and ultimately-the probable cause necessary to effectuate an arrest. See Dies , 926 So.2d at 920. Thus, we find Cole's arguments as to this subissue without merit-but our analysis does not end there.

A. Abandoned Contraband

¶ 47. Having determined that the agents possessed probable cause lawfully to arrest Cole, we find it necessary to address the contraband abandoned by Cole while fleeing, as he sought to have those abandoned items suppressed.

¶ 48. We reiterate, however, that at the moment Cole fled, he was temporarily detained-that is, he was being frisked, or about to be frisked. As such, Cole was neither under arrest nor in custody when he discarded the contraband in his possession. Jackson , 335 So.2d at 118-19.

¶ 49. As to abandoned contraband, we find controlling this Court's previous holding in Harper v. State , 635 So.2d 864 (Miss. 1994). In Harper , this Court held that abandonment of objects during flight removes any protection of the law as to unreasonable searches and seizures. See id. Specifically, this Could stated: "[Harper] was not restrained or stopped at the time he threw down the [contraband], and the [contraband], therefore was abandoned and not the fruit of an unlawful seizure or arrest." Id. at 867. The Harper Court's reasoning, however, was guided by the principle set forth in Hodari , which held that evidence seized after being abandoned by a fleeing suspect is not tainted as fruit of an illegal seizure. Id. (citing Hodari , 499 U.S. at 629, 111 S.Ct. 1547 ).

¶ 50. And so, taken together, Hodari and Harper conclusively demonstrate that the abandoned contraband in this case was seized lawfully by the agents. Again, the record testimony reveals that Cole discarded what appeared to be a white hand towel while running along the roadway. While pursuing Cole, Barlow stated that he heard what sounded like metallic clinking along the pavement, and that when he looked down, he observed a revolver and alerted the other agents to its presence. When inspected by Leggett, the towel was found near a firearm. In close proximity to the pistol was said to be marijuana. The firearm and the marijuana were said to be "in the street."

¶ 51. Therefore, in light of these facts, we conclude that Cole was not considered arrested under the Fourth Amendment until he was captured by the chasing agents and placed into custody. See Jackson , 335 So.2d at 118-19 ; see also Hodari , 499 U.S. at 626, 111 S.Ct. 1547. This is because Cole was in no way restrained during his flight, and therefore, "no arrest occurred within the confines of the Fourth Amendment." Harper , 635 So.2d at 866 (citing Hodari , 499 U.S. at 626, 111 S.Ct. 1547 ). Furthermore, because "a person relinquishes any privacy rights" as to property that is abandoned or discarded when fleeing from police, Cole cannot rely upon the Fourth Amendment for protection. Johnson v. State , 22 So.3d 1229, 1234 (Miss. Ct. App. 2009). What is more, by abandoning this contraband on a roadway, Cole "placed his items on public property, which also diminishe[d] his Fourth Amendment protections against unreasonable searches and seizures." Id. at 1235 (citing Katz v. United States , 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) ).

¶ 52. As such, we hold that the circuit court did not err in admitting into evidence the firearm and marijuana found in the street because Cole surrendered his Fourth Amendment protections as to those items.

B. Search Incident to Arrest

¶ 53. Lastly, because we find that the pursuit, seizure, and ultimate arrest of Cole were legal, it necessarily follows that the additional marijuana found on his person was lawfully obtained-therefore, it was not fruit of the poisonous tree. That is because a "custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment[.]" Riley v. California , --- U.S. ----, 134 S.Ct. 2473, 2483, 189 L.Ed.2d 430 (2014). "[T]hat intrusion being lawful, [then,] a search incident to the arrest requires no additional justification." Id. As such, we can find no error by the circuit court.

CONCLUSION

¶ 54. In sum, we hold that, under Terry , the agents possessed a valid, reasonable suspicion that Cole was engaged in criminal activity and possibly armed. We base this conclusion upon the information contained in the anonymous tip and the agents' independent observation and investigation. Therefore, it follows that Cole was lawfully and temporarily detained for the purpose of the agents to complete their Terry stop. That being so, we also hold that the agents acquired the probable cause necessary to arrest Cole when he fled. And because Cole abandoned the contested contraband in a public street, Cole had no reasonable expectation of privacy in those items. Moreover, once Cole was captured and placed into custody, the additional marijuana found on his person was lawfully seized. Therefore, evidence of the seized contraband was admissible against Cole, and not the fruit of an illegal search or seizure.

¶ 55. For those reasons, the circuit court did not err in denying Cole's motion to suppress-therefore, we affirm the judgment of the circuit court.

¶ 56. AFFIRMED.

WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., KING, COLEMAN, MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

      The circuit court held that, although the anonymous tipster's identity was revealed during the suppression hearing, and that the tipster had in fact provided reliable information to officers in the past, the State was barred from subsequently using the anonymous tipster's known identity to bolster its position after having proceeded on a theory that the tip derived from an anonymous source.

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

      For reasons unknown, the circuit court never issued a written order denying Cole's motion to suppress-as a result, no such order is found in the record. The circuit court, however, acknowledged this omission during its in camera proceedings. The circuit court articulated on the record its denial of the motion, as well its rationale in reaching that conclusion.

      We note that Cole attacks broadly the denial of his motion to suppress; however, conspicuously absent from Cole's brief to this Court is any argument as to the nonsuppression of his alleged statement to MBN agents. Because "this Court has long held that issues not raised on appeal are procedurally barred from consideration," we decline to address the merits of the circuit court's ruling as to whether Cole's alleged statement should have been suppressed. Flynt v. State , 183 So.3d 1, 14 (Miss. 2015).

      See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

      See supra, n.1.

      See, e.g. , McClellan v. State , 34 So.3d 548, 552 (Miss. 2010) (valid investigatory stop where officers further investigated "vague" information received from informant before making the stop); Burchfield v. State , 892 So.2d 191, 194-95 (Miss. 2004) (reasonable suspicion for investigatory stop supported by store clerk's tip that described defendants who had purchased precursors and by officer's personal observation of defendants' purchases in vehicle described by clerk); Williamson , 876 So.2d at 356 (reasonable suspicion for investigatory stop supported by tip from unnamed informant who described, in relevant part, the defendant and his vehicle and tag number, and by officer's subsequent verification of number). Eaddy , 63 So.3d at 1213.

      For purposes of a Terry frisk, an officer is entitled "to conduct a carefully limited search of the outer clothing of [a suspect] in an attempt to discover weapons which might be used to assault [the agents]." Terry , 392 U.S. at 30, 88 S.Ct. 1868. As such, because it is unclear whether a frisk occurred in part, or at all, we conclude that the Terry frisk was not completed. Therefore, because Cole fled before the Terry frisk presumably was completed, we find that the agents were "justified in [their] pursuit of [Cole] for the purpose of completing [their] Terry stop." Cooper , 145 So.3d at 1173.

      See generally , Hodari , 499 U.S. 621, 111 S.Ct. 1547 ; Harper , 635 So.2d 864.


author: COLEMAN, JUSTICE, FOR THE COURT: CHAMBERLIN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

text:
    Casey Sheldon WOODS a/k/a Casey Woods v. STATE of Mississippi
    NO. 2016-KA-01734-SCT
    Supreme Court of Mississippi.
    March 1, 2018 Rehearing Denied May 17, 2018
    ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON, JACKSON
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶ 1. On August 25, 2015, Casey Woods was indicted on one count of first degree murder, stemming from the shooting of his girlfriend's estranged husband. Woods also was indicted on one count of possession of a firearm by a convicted felon. The counts were severed and the case proceeded to trial solely on the murder charge on September 22, 2016.

¶ 2. An Adams County jury found Woods guilty of second degree murder in violation of Mississippi Code Section 97-3-19(1)(b). The trial court sentenced Woods as a habitual offender under Mississippi Code Section 99-19-83 to life in prison without the possibility of parole. Woods's trial counsel did not file any post-trial motions. Woods appeals, arguing that (1) the evidence presented at trial was insufficient to overcome the presumption afforded by the Castle Doctrine that he acted reasonably when he killed Pierre Tenner, and (2) he received constitutionally ineffective assistance of counsel.

¶ 3. Woods waived his insufficient evidence argument; however, we reverse the judgment and remand for a new trial based on ineffective assistance of counsel with regard to Woods's trial counsel's failure to file a post trial motion for a new trial challenging the weight of the evidence.

FACTUAL BACKGROUND

¶ 4. Doris Tenner and Pierre Tenner were married and lived at Fourteen Hampton Court in Natchez, Mississippi. Doris's and Pierre's marriage became volatile over time and eventually deteriorated. Some time after Doris and Pierre separated, Doris began dating Woods in April 2015.

¶ 5. On May 4, 2015, Pierre called Doris, but she did not answer the phone. Later, Pierre came home from work and saw Woods's truck parked in the yard. Angered, Pierre kicked in the locked door and went into the house with a twelve gauge shotgun. Pierre saw Doris with a man in the house. Doris retreated down the hallway and locked herself in a bedroom. Pierre fired the shotgun through the door, hitting the wall and a television in the bedroom. Doris came out of the bedroom and she and Pierre tussled for the shotgun. Pierre claimed the shotgun went off while he and Doris were tussling for the shotgun. After tussling for a while, Pierre left the scene.

¶ 6. After the incident, Doris called the police and filed charges. Pierre was arrested and charged with domestic violence. Pierre was released on bond subject to certain conditions set by the municipal court. The municipal court ordered Pierre to have no contact with Doris, including telephone contact and physical contact, either at Doris's residence, place of employment, or any other place. The municipal court also ordered that Doris "shall have the exclusive use and possession of the residence ... to the exclusion of [Pierre]."

¶ 7. Three weeks later, on the morning of May 24, 2015, Pierre called Doris. Doris could tell Pierre had been drinking. Pierre was at a nearby street, and Doris told Pierre not to come to her house. Doris left her house to get groceries. On her way home, Pierre called her again and they argued. Pierre told Doris that he was coming to her house, but Doris told him he did not need to be there. Doris arrived home and Woods was outside getting ready to wash his truck. While Doris was in the process of moving her vehicle so Woods could wash his truck, she saw Pierre's truck coming down the street.

¶ 8. Doris went inside and called 911 at 12:15 p.m. Doris requested that the police patrol Hampton Court because her husband was prohibited from being there. Doris told dispatch that she recently had filed charges against her husband Pierre for shooting in her house. Doris also told dispatch that Pierre had been drinking.

¶ 9. Pierre pulled up and parked at Willie Thomas's house across the street from Doris's house. Thomas and Paul Armstead, who lived next door to Thomas, were outside Thomas's house socializing. Pierre got out of his truck and began talking with Thomas and Armstead. Meanwhile, Woods was outside Doris's house getting ready to wash his truck.

¶ 10. Armstead explained that Pierre was a friend and former neighbor before he and Doris had separated. Armstead did not believe it was odd for another man to be at Doris's house. Armstead also was a friend of Woods. After only a few minutes, Pierre and Woods began arguing from opposite sides of the street. Armstead testified that Woods was not enticing Pierre to say anything, but he could not say who started the argument. No evidence was presented as to the actual content of the argument.

¶ 11. From inside, Doris heard Pierre and Woods arguing. Doris went outside and saw Pierre across the street and Woods in the yard by his truck. Doris told them to be quiet, and the argument subsided. Doris went back inside and again heard Woods and Pierre arguing. Doris called 911 at 12:20 p.m. Doris urged dispatch that the police needed to hurry to the scene.

¶ 12. Doris went back outside and told the two men to be quiet, but they continued to argue. Doris told Woods that the police were coming. The argument escalated to the point that Pierre got frustrated and jumped out of his chair. Pierre took his leg brace off, threw it to the ground, and began to walk in the direction of Doris's house.

¶ 13. Before crossing the street, Doris saw Pierre stop at his truck and roll the window down. Pierre put his hand in the truck. Pierre said to Woods, "I missed you the first time but I won't miss you this time." Pierre then put his hand behind his back and proceeded to cross the street toward Doris's yard.

¶ 14. Armstead did not see Pierre stop at his truck or see whether he had a gun. Armstead testified that Pierre did not act like he had a gun. Armstead also testified that Pierre did not have a weapon of any sort. Armstead could tell that Pierre was angry and assumed he went across the street to fight Woods. Armstead heard Doris tell Pierre not to come over to her house.

¶ 15. Doris went to the edge of her yard to stop Pierre from coming over and began pushing him. Pierre grabbed Doris and threw her to the ground. Doris said she was going to call the police, to which Pierre responded, "Go ahead and call them." Doris went back inside to call the police. Doris provided a statement to the police saying that Woods had followed her in the house and had gotten the shotgun because Pierre was threatening Woods. Doris explained that there were two doors under the carport, a door to the laundry room and a separate door to go inside the house. Doris had clarified in another statement that when her first statement said Woods had followed her in the house, she meant that Woods had gone into the laundry room and she had gone inside the house.

¶ 16. While Pierre was approaching, Armstead saw Woods go inside the house or through a door under the carport, attached to the house. Woods came back out the door with a shotgun as Pierre was walking toward Doris's driveway. Doris did not know that there was a gun on her property, and she assumed Woods had gotten the shotgun from the laundry room.

¶ 17. Woods remained under the carport. Initially, Armstead testified that when Woods came out with the shotgun, Pierre was not advancing toward Woods, but "he was walking that way[.]" Armstead then testified that when Woods came out with the shotgun, Pierre was advancing toward Woods. Woods, who was standing under the carport, shot Pierre, who was halfway up the driveway, in the leg. Armstead testified that Pierre got no closer than halfway up the driveway before Woods shot him.

¶ 18. Doris heard a gunshot while she was in the house. She did not know if Woods had shot Pierre or Pierre had shot Woods. She went outside to find that Pierre had been shot and Woods was holding a shotgun. Pierre fell to the ground and Woods left the scene.

¶ 19. Doris called 911 a third time at 12:33 p.m. Doris frantically told police that there had been a shooting. She urged police and an ambulance to hurry to the scene. Doris explained that her husband had come across the street, pulled a gun on a "man" and the "man" had shot him. Doris repeatedly said that she had told Pierre not to come over there. When dispatch asked Doris to explain again exactly what had happened, she responded that Pierre had been across the street and she told had him not to come over to her house. Doris said Pierre came over and "fooled" with "this man" and the "man" shot him. Doris said the "man" left, and her husband was lying wounded in the yard.

¶ 20. Armstead and another neighbor put Pierre in the back of a truck and took him to the hospital, where he was pronounced dead on arrival. At trial, the parties stipulated that Pierre died as a result of the gunshot wound to his right thigh and that the manner of death was homicide. Pierre's blood alcohol content was .242, showing that he was heavily intoxicated at the time of the shooting.

¶ 21. Police responded to the scene and found no weapons at the residence. Investigator Joe Belling of the Natchez Police Department testified that the closest blood spot to the carport was found on the driveway just over seven and a half feet from the brick support of the carport. Belling did not know whether the blood was Pierre's. Belling repeatedly testified that he did not know where Pierre had been located when he was shot, however, Belling testified that it appeared he was shot somewhere around the carport.

¶ 22. The trial court instructed the jury on first degree murder, second degree murder, and heat of passion manslaughter. The court also instructed the jury on self defense and the Castle Doctrine. The jury found Woods guilty of second degree murder. On September 28, 2016, the circuit court sentenced Woods as a habitual offender to life without the possibility of parole. Woods's trial counsel failed to file any post-trial motions. Woods was appointed appellate counsel, who proceeded with the instant appeal.

DISCUSSION

I. Sufficiency of the Evidence

¶ 23. At trial, Woods's defense theory was justifiable homicide, specifically, self defense and the statutory protections of the Castle Doctrine. The trial court instructed the jury on justifiable homicide under Section 97-3-15(e)-(f) and the specific provisions of the Castle Doctrine, codified at Mississippi Code Section 97-3-15(3) - (4). See Miss. Code Ann. § 97-3-15 (Rev. 2014). The Castle Doctrine creates a presumption of fear and abridges a duty to retreat in certain prescribed circumstances. Newell v. State , 49 So.3d 66, 74 (¶ 22) (Miss. 2010). Woods argues that the State presented insufficient evidence to overcome the presumption that he reasonably had feared imminent death or great bodily harm when he shot and killed Pierre.

¶ 24. "A directed verdict, judgment notwithstanding a verdict and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial." Easter v. State , 878 So.2d 10, 21 (¶ 36) (Miss. 2004). "To preserve the issue of denial of a directed verdict, the defense must move for directed verdict at the close of the State's case-in-chief." Page v. State , 990 So.2d 760, 762 (¶ 9) (Miss. 2008). "When the defendant proceeds with his case after the state rests and the court overrules the defendant's motion for a directed verdict, the defendant has waived the appeal of that directed verdict." Holland v. State , 656 So.2d 1192, 1197 (Miss. 1995). Stated another way, "[i]f a defendant puts on evidence in his own defense after the denial of his motion for directed verdict, he waives his challenge to the sufficiency of the State's evidence up to that point." Robinson v. State , 749 So.2d 1054, 1058-59 (Miss. 1999).

¶ 25. At the close of the State's case-in-chief, Woods moved for a directed verdict, challenging the sufficiency of the evidence presented in the State's case-in-chief. The trial court denied the motion, and Woods proceeded with his case-in-chief, in which he called witnesses and introduced evidence. Consequently, Woods waived his challenge to the sufficiency of the State's evidence presented during its case-in-chief. See id.

¶ 26. "If a motion for directed verdict is denied and the defendant introduces evidence on his own behalf, the defendant must renew his motion for directed verdict at the close of all evidence." Page , 990 So.2d at 762 (¶ 9). "In the absence of a renewal of the directed verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding the verdict, [a defendant] has waived the sufficiency error on appeal." Holland , 656 So.2d at 1197.

¶ 27. At the close of all evidence, Woods did not renew his motion for a directed verdict, request a peremptory instruction, or file a post-trial motion for a judgment notwithstanding the verdict (JNOV). Therefore, Woods's challenge to the sufficiency of the evidence on appeal is waived. See Wright v. State , 540 So.2d 1, 3-4 (Miss. 1989). Because Woods did not preserve his sufficiency of the evidence argument, the assignment of error lacks merit.

II. Ineffective Assistance of Counsel

¶ 28. However, Woods also contends that his trial counsel was constitutionally ineffective because trial counsel (1) failed to request lesser included manslaughter jury instructions; and (2) failed to file any post-trial motion on his behalf. We address only Woods's trial counsel's failure to file any post-trial motion, as the claim is dispositive.

¶ 29. "A defendant's right to the effective assistance of counsel in a criminal case is guaranteed by the United States and Mississippi Constitutions." Giles v. State , 187 So.3d 116, 120 (¶ 12) (Miss. 2016) (citing U.S. Const. amends. VI, XIV ; Miss. Const. art. 3, § 26 ). The United States Supreme Court articulated the two pronged test to be applied when considering a constitutional claim of ineffective assistance of counsel in Strickland v. Washington , 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate an ineffective assistance of counsel claim, a defendant must prove his counsel's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial. Dartez v. State , 177 So.3d 420, 423 (¶ 19) (Miss. 2015) (applying Strickland , 466 U.S. at 687-96, 104 S.Ct. 2052 ).

¶ 30. "There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance and that the challenged action might be considered sound trial strategy." Giles , 187 So.3d at 120 (¶ 12) (citing Strickland , 466 U.S. at 687-88, 104 S.Ct. 2052 ). The Court considers "the totality of the circumstances to determine whether counsel's efforts were both deficient and prejudicial." Dartez , 177 So.3d at 423 (¶ 19). "The burden is on the [defendant] to rebut the presumption by showing that counsel's performance did not meet the Strickland standard." Wilson v. State , 194 So.3d 855, 862 (¶ 19) (Miss. 2016). "If the Court determines that the defendant did not receive reasonably effective assistance of counsel, it must then determine whether the deficiency had a 'reasonable probability' of affecting the outcome of the case." Giles , 187 So.3d at 120-21 (¶ 13) (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

¶ 31. Generally, ineffective assistance claims are raised during post-conviction proceedings; however, a claim may be raised on direct appeal if such issues are based on facts fully apparent from the record. Giles , 187 So.3d at 121 (¶ 14). If the record cannot support an ineffective assistance of counsel claim on direct appeal, then the appropriate action is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief. Id. Whether a defendant has received ineffective assistance of counsel is a question of law reviewed de novo. Wilson , 194 So.3d at 862 (¶ 19).

A. Jury Instructions

¶ 32. Woods claims that his counsel provided ineffective assistance by not requesting culpable negligence manslaughter and imperfect-self-defense manslaughter jury instructions. Woods claims that the inaction deprived him of the right to have the jury fully instructed on manslaughter theories, which were supported by evidence at trial.

¶ 33. "When claiming ineffective assistance of trial counsel because of jury instructions, it is the duty of the appellant to demonstrate both error in failing to receive the instruction and the prejudice to the defense." Havard v. State , 928 So.2d 771, 789 (¶ 28) (Miss. 2006).

¶ 34. In Smiley v. State , 815 So.2d 1140, 1148 (¶¶ 30-33) (Miss. 2002), the Court held that trial counsel's decision not to request a jury instruction regarding the defendant's right not to testify did not amount to ineffective assistance. The Court said it was "conceivable that [trial counsel] withdrew the jury instruction as part of his trial strategy in the hope of not highlighting [the defendant's] decision not to testify." Id. at 1148 (¶ 33). The Court noted that whatever reason trial counsel had for withdrawing the instruction, there is a presumption that decisions made are strategic. Id. The Court concluded that the defendant's claim was without merit because he failed to show that trial counsel "was deficient, much less that [trial counsel's] decision deprived him of a fair trial, which, but for the withdrawal of the jury instruction, would have likely resulted in a different outcome." Id.

¶ 35. The Court has held that "trial counsel's decision to not request a jury instruction falls under the category of trial tactics, which are not subject to review." Neal v. State , 15 So.3d 388, 406 (¶ 43) (Miss. 2009) (holding trial counsel's decision not to request the lesser offense manslaughter and mutilation jury instructions did not constitute ineffective of assistance of counsel); see also Sea v. State , 49 So.3d 614, 619 (¶ 22) (Miss. 2010) (same).

1. Culpable Negligence Manslaughter

¶ 36. Woods maintains that the facts of the case are "close, and there can be no strategic advantage from not requesting the manslaughter instruction, especially in light of the fact that the [trial c]ourt granted the State's heat of passion manslaughter instruction without objection from Woods's trial counsel."

¶ 37. Manslaughter is described as follows: "every other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter." Miss. Code Ann. § 97-3-47 (Rev. 2014). Culpable negligence has been defined as negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life. Hawkins v. State , 101 So.3d 638, 643 (¶ 17) (Miss. 2012). Second degree murder, murder, and culpable negligence manslaughter are distinguishable simply by degree of mental state of culpability. Id. In short, second degree murder involves a higher degree of recklessness from which malice may be implied. Id. "Culpable-negligence instructions are most commonly found in DUI and other automobile cases, which address negligent or grossly negligent conduct." Swanagan v. State , 229 So.3d 698, 708 (¶ 41) (Miss. 2017).

¶ 38. Woods argues the failure to request the instruction on a lesser included offense theory "that coincided with [his] defense at trial was constitutionally defective, and it could have changed the outcome of [the] trial." However, a culpable negligence manslaughter theory did not coincide with his defense at trial. Woods's defense theory at trial was not negligence; rather Woods contended the shooting constituted a justifiable homicide, more narrowly, self defense and the Castle Doctrine. The State never claimed Woods acted negligently. At best, the State claimed Woods committed heat of passion manslaughter, which is defined as:

A state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Bowser v. State , 182 So.3d 425, 432 (Miss. 2015).

¶ 39. "A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would support a jury's finding on that theory." Thomas v. State , 48 So.3d 460, 469 (¶ 23) (Miss. 2010). "To be entitled to a lesser-included-offense instruction, a defendant must point to some evidence in the record from which a jury reasonably could find him not guilty of the crime with which he was charged and at the same time find him guilty of a lesser-included offense." Gilmore v. State , 119 So.3d 278, 286 (Miss. 2013).

¶ 40. We hold that trial counsel's decision was not deficient because it is conceivable that Woods's trial counsel did not request a culpable negligence manslaughter instruction as part of his and her strategy. See Smiley , 815 So.2d at 1148 (¶¶ 30-33).

¶ 41. Moreover, Woods does not point to any evidence in the record from which a jury reasonably could find him not guilty of murder and at the same time find him guilty of culpable negligence manslaughter. Indeed, no suggestion was made by either party at trial that Woods negligently had shot Pierre. Although the jury was instructed on heat of passion manslaughter, the jury chose to find Woods guilty of second degree murder. Trial counsel's decision not to request a culpable negligence manslaughter instruction did not prejudice Woods's defense because the evidence did not support a jury's finding on the theory, and the jury rejected a heat of passion manslaughter theory based on the evidence presented. The issue is without merit.

2. Imperfect Self Defense

¶ 42. Woods argues that there was "ample evidence" for imperfect self defense manslaughter, which would have allowed the jury to find him guilty of manslaughter. "[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." Brown v. State , 222 So.3d 302, 307 (Miss. 2017).

¶ 43. Unlike Woods's failure to point to any evidence which would have supported a culpable negligence manslaughter instruction, Woods references the following evidence that would have supported an imperfect-self-defense manslaughter instruction: Woods asserted self-defense as his defense at trial; Doris testified that she saw Pierre get something out of his truck that she believed was a gun; Woods knew of Pierre's history of violence with Doris; Doris called 911 twice for help before the shooting; and an argument immediately preceded Pierre's unlawful entrance onto the property. Woods also points out that no gun was found on Pierre after the shooting, indicating that Woods had a bona fide but unfounded belief that it was necessary to prevent death or great bodily harm.

¶ 44. While the evidence may have supported an imperfect self defense instruction, it is not apparent from the record that trial counsel's decision not to request the instruction constituted ineffective assistance of counsel. Certainly, it is conceivable that trial counsel decided to rely solely on the defense of justifiable homicide by way of true self defense and the Castle Doctrine. Trial counsel's strategy very well could have been not to request an imperfect self defense instruction in the hope of an acquittal rather than having the jury settle on the lesser included offense of imperfect self defense.

¶ 45. It is uncertain whether Woods's trial counsel even considered an imperfect self defense theory, or what his and her reasons were for not requesting an instruction on the theory. Generally, we would deny Woods's claim without prejudice so that it might be pursued in post-conviction proceedings. See Ambrose v. State , 133 So.3d 786, 794 (Miss. 2013) (foregoing consideration of a claim for ineffective assistance of counsel on direct appeal where it was unclear whether the defendant's counsel considered an imperfect self defense theory or his reasons for not requesting an instruction on the theory). However, we proceed to address Woods's additional ineffective assistance claim on direct appeal based on the failure to file a post-trial motion for a new trial, because the record supports an ineffective assistance claim based on facts fully apparent from the record. See Giles , 187 So.3d at 121 (¶ 14).

B. Post-trial Motion for a New Trial

¶ 46. Woods argues his trial counsel's failure to file a post-trial motion for a new trial waived his right to argue on appeal that the verdict is against the overwhelming weight of the evidence. Woods contends that, by not filing a motion for a new trial, counsel deprived him of having the trial court, and ultimately the appellate court, consider the weight of the evidence and order a new trial. Woods relies on Giles v. State , 187 So.3d 116 (Miss. 2016), and Holland v. State , 656 So.2d 1192 (Miss. 1995), in support of his argument.

¶ 47. In Holland , the Court held that an attorney's complete failure to make post-trial challenges to the weight or sufficiency of the evidence constituted deficient performance. Holland , 656 So.2d at 1198. The Court held the failure was prejudicial to the defendant because the evidence was insufficient to support the guilty verdict and a reasonable probability existed that the trial court would have granted the motion challenging the sufficiency of the evidence, had one been made. Id.

¶ 48. In Giles , the Court held that the defendant's counsel rendered deficient performance by failing to make any post-trial challenges to the weight or sufficiency of the evidence. Giles , 187 So.3d at 125 (¶ 33) (citing Holland , 656 So.2d 1192 ). However, Defendant Patrick Giles made no argument that he was prejudiced by his counsel's deficiency. Id. The Court was unable to find prejudice. Id. The Court held that there was no reasonable probability that a trial court would have granted a motion for a directed verdict, a peremptory instruction, or a judgment notwithstanding the verdict. Id. at 126 (¶ 33). Moreover, the Court held that there was no reasonable probability that a trial court would have found that the evidence preponderated so heavily against the verdict that a new trial was required to avoid sanctioning an unconscionable injustice. Id.

¶ 49. Likewise, in Parker v. State , 30 So.3d 1222, 1235 (Miss. 2010), the defendant's counsel failed to challenge the weight of the evidence with a motion for a new trial. The Court held that the failure was deficient performance, but that the defendant failed to show how the deficiency had prejudiced him because there was no reasonable probability that the trial court would have granted the motion. Id.

¶ 50. No strategic reason exists for Woods's trial counsel's not filing a motion for a new trial, arguing that the verdict was contrary to the overwhelming weight of the evidence. Under the Court's holdings in Holland , Giles , and Parker , we hold Woods's failure to file any post-trial motion, namely, a motion for a new trial, constituted deficient performance. Having determined that the failure to file a motion for a new trial constitutes deficient performance, the Court must consider whether a reasonable probability exists that the trial court would have granted the motion.

¶ 51. "A motion for a new trial challenges the weight of the evidence." Flynt v. State , 183 So.3d 1, 10 (¶ 30) (Miss. 2015). In Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005), the Court summarized the role of the trial court in reviewing a motion for a new trial:

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. Herring v. State , 691 So.2d 948, 957 (Miss. 1997). We have stated that on a motion for new trial, the [trial] court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the [trial] court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc. , 796 So.2d 942, 947 (Miss. 2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring , 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, "unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict." McQueen v. State , 423 So.2d 800, 803 (Miss. 1982). Rather, as the "thirteenth juror," the [trial] court simply disagrees with the jury's resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

Bush v. State , 895 So.2d 836, 844 (Miss. 2005).

¶ 52. Woods was convicted of second degree murder in violation of Section 97-3-19(1)(b), which provides:

(1) The killing of a human being without the authority of law by any means or in any manner shall be murder in the following cases:
...
(b) When done in the commission of an act eminently dangerous to others and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death of any particular individual, shall be second-degree murder;

Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014).

¶ 53. Woods raised the justifiable homicide statute in his defense at trial. Mississippi Code Section 97-3-15(1)(e)-(f) provides:

(1) The killing of a human being by the act, procurement or omission of another shall be justifiable in the following cases:
...
(e) When committed by any person in resisting any attempt unlawfully to kill such person or to commit any felony upon him, or upon or in any dwelling, in any occupied vehicle, in any place of business, in any place of employment or in the immediate premises thereof in which such person shall be;
(f) When committed in the lawful defense of one's own person or any other human being, where there shall be reasonable ground to apprehend a design to commit a felony or to do some great personal injury, and there shall be imminent danger of such design being accomplished;

Miss. Code Ann. § 97-3-15(1)(e)-(f) (Rev. 2014).

¶ 54. The jury was instructed on justifiable homicide. See Miss. Code Ann. § 97-3-15 (Rev. 2014). The jury also was instructed on the Castle Doctrine. The Castle Doctrine, codified at Section 97-3-15(3) - (4), curtails the duty to retreat and creates a presumption that the defendant reasonably feared imminent death, great bodily harm, or the commission of a felony upon him from a person who has unlawfully and forcibly entered the immediate premises of a dwelling. Newell , 49 So.3d at 74 (¶ 22) (citing Miss. Code Ann. § 97-3-15(3) - (4) ). The Castle Doctrine includes two prongs:

First, under subsection (4), if the defendant is in a place where he had a right to be, is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has no duty to retreat before using defensive force. Miss. Code Ann. § 97-3-15(4) (Rev. 2006). And second, if the jury finds that any of the circumstances in subsection (3) are satisfied, the defendant who uses such defensive force is presumed to have reasonably feared imminent death or great bodily harm or the commission of a felony upon him. Miss. Code Ann. § 97-3-15(3) (Rev. 2006).

Newell , 49 So.3d at 74 (¶ 22) (citing Miss. Code Ann. § 97-3-15 ).

¶ 55. "The circumstances in subsection (3) are that the person against whom the defensive force was used (1) had unlawfully and forcibly entered 'a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof' or (2) had unlawfully removed another person 'against the other person's will from that dwelling, occupied vehicle, business, place of employment or the immediate premises thereof'-or he or she was in the process of doing one of the enumerated things." Flynt v. State , 183 So.3d 1, 13 (¶ 37) (Miss. 2015) (quoting Miss. Code Ann. § 97-3-15(3) (Rev. 2014) ).

¶ 56. In a criminal case, the burden of proof remains always with the prosecution on each element of the offense. Heidel v. State , 587 So.2d 835, 843 (Miss. 1991). "The defendant is not required to prove he acted in self-defense, and, if a reasonable doubt of his guilt arises from the evidence, he must be acquitted." Ambrose v. State , 133 So.3d 786, 791 (Miss. 2013) (citing Heidel , 587 So.2d at 843 ). Thus, the State had the burden of disproving justifiable homicide, i.e. , self defense and the elements of the Castle Doctrine.

¶ 57. Woods argues the evidence presented at trial weighed heavily in his favor and supported his defense of justifiable homicide. Specifically, the evidence showed that Doris informed Woods about the domestic violence incident, in which Pierre had kicked in the door and had fired a shotgun inside her house, just three weeks prior to the day of the subject shooting. After Doris informed Woods about the incident, Woods asked if she had called the police. On the day of the shooting, Woods was a guest of Doris at her home. Evidence showed that Woods was the aggressor, as Pierre came across the street onto Doris's property toward Woods. An eyewitness confirmed that Woods was not enticing Pierre, and it was not unusual for Woods to be at Doris's house.

¶ 58. Pierre was warned several times not to come to Doris's residence. Undeterred, Pierre continued to violate the conditions of his bond. Pierre, who was heavily intoxicated, took off his leg brace to fight Woods, crossed the street, and threw Doris down to the ground at the edge of her yard and advanced toward Woods. Evidence showed that Doris saw Pierre retrieve what she believed to be a gun before crossing the street. Doris testified that Pierre told Woods that "I missed you the first time but I won't miss you this time." Woods retrieved a shotgun but remained under the carport of Doris's home, where he had a right to be, as Pierre approached. Woods shot Pierre in the leg as he approached him. Doris said in the last 911 call that Pierre had pulled a gun, and Woods had shot him. Doris testified that Woods was defending himself.

¶ 59. Had the trial court been presented with a motion for a new trial, it would have evaluated the evidence and the applicability of the Castle Doctrine. Based on the evidence presented at trial, a reasonable probability exists that the trial court would have found that the overwhelming weight of the evidence showed that Woods was in a place where he had a right to be; Pierre was the immediate provoker and aggressor; and Woods was not engaged in unlawful activity. As a result, Woods had no duty to retreat under the Castle Doctrine. See Miss. Code Ann. § 97-3-15(4) (Rev. 2014). Moreover, the Castle Doctrine forecloses the jury from considering Woods's lack of retreat as evidence that Woods's use of force was unnecessary, excessive, or unreasonable. See Id.

¶ 60. The Castle Doctrine also afforded Woods a presumption that he reasonably feared imminent death or great bodily harm or the commission of a felony upon him because evidence showed that Pierre had "unlawfully and forcibly entered a dwelling ... or the immediate premises thereof." Miss. Code Ann. § 97-3-15(3). Given no duty to retreat, the foreclosure of the fact finder from considering the lack of a retreat as evidence that Woods's use of force was unnecessary, excessive, or unreasonable, as well as the presumption afforded by the Castle Doctrine, a reasonable probability exists that the trial court would have found that the verdict was contrary to the overwhelming weight of the evidence.

¶ 61. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Strickland , 466 U.S. at 693, 104 S.Ct. 2052 ("We believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case."). In light of the aforementioned evidence preponderating against the verdict, a reasonable probability exists that the trial court would have granted a new trial. See Holland , 656 So.2d at 1198. We can say with confidence that the probability is sufficient to undermine confidence in the outcome. See Giles , 187 So.3d at 120-21 (¶ 13) (citing Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ).

¶ 62. To be clear, we do not hold that the verdict was against the overwhelming weight of the evidence; rather, we hold that a reasonable probability exists that the trial court would have granted a motion for a new trial, finding that the evidence preponderated so heavily against the verdict that a new trial was required to avoid sanctioning an unconscionable injustice. Accordingly, we reverse and remand for a new trial.

CONCLUSION

¶ 63. Woods's argument that insufficient evidence supported the verdict was waived and is not properly before the Court. However, we reverse the judgment and remand the case to the Circuit Court of Adams County for a new trial due to ineffective assistance of counsel for the failure to file a motion for a new trial based on the evidence presented. A reasonable probability exists that the trial court would have granted a motion for a new trial had it been given the opportunity.

¶ 64. REVERSED AND REMANDED.

WALLER, C.J., KITCHENS, P.J., KING AND ISHEE, JJ., CONCUR. CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., MAXWELL AND BEAM, JJ.

RANDOLPH, P.J., MAXWELL AND BEAM, JJ., JOIN THIS OPINION.

CHAMBERLIN, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶ 65. Because I disagree with the majority's conclusion that "there is a reasonable probability that the trial court would have granted a motion for a new trial," I respectfully dissent. As Woods's conviction was not against the overwhelming weight of the evidence, his counsel's ineffective assistance did not prejudice him. The jury, after being properly instructed on the law-including Woods's defense of justifiable homicide and the application of the Castle-Doctrine presumption-weighed the evidence and found Woods guilty of murder. See Flynt v. State , 183 So.3d 1, 11-14 (Miss. 2015) (finding that the verdict was not against the overwhelming weight of the evidence despite the defendant's theory of self-defense and the application of the Castle Doctrine). While I agree that the failure to make any post-trial motions was ineffective assistance, I would not disturb Woods's conviction, as he cannot demonstrate prejudice.

¶ 66. In order to prevail on an ineffective-assistance claim, "[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 v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674 (1984). In other words, Woods must show a reasonable probability that the trial court would have granted a motion for a new trial had one been made. Given the record before us, Woods cannot meet his burden of proof. See Id. at 693, 104 S.Ct. 2052 (noting the "general requirement that the defendant affirmatively prove prejudice.").

¶ 67. "It is presumed that jurors follow the instructions of the court. To presume otherwise would be to render the jury system inoperable." Flynt v. State , 183 So.3d 1, 11 (Miss. 2015) (quoting Gray v. State , 728 So.2d 36, 63 (Miss.1998) ). "[F]actual disputes are properly resolved by a jury and do not mandate a new trial." Id. at 14 (quoting Beasley v. State , 136 So.3d 393, 403 (Miss. 2014) ). Further,

On questions of witness testimony, this Court has held that "[t]he jury determines the weight and credibility to give witness testimony and other evidence."
Moore v. State , 933 So.2d 910, 922 (Miss. 2006) (citing Johnson v. State , 904 So.2d 162, 167 (Miss. 2005) ). This Court "may not 'pass upon the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted as having been found worthy of belief.' " Id. (quoting Davis v. State , 568 So.2d 277, 281 (Miss. 1990) ).

Id. (alteration in original) ( Barfield v. State , 22 So.3d 1175, 1187-88 (Miss. 2009) ).

¶ 68. While I recognize that the ineffective assistance in this case leaves this Court without a ruling to review under an abuse-of-discretion standard, as recognized by the majority, this is not an unfamiliar procedural posture for this Court. See Giles v. State , 187 So.3d 116, 125-26 (Miss. 2016) (affirming conviction despite no post-trial motions); Parker v. State , 30 So.3d 1222, 1234-35 (Miss. 2010) (same). Clearly, a remand is not automatic.

¶ 69. For a remand to be merited, "[t]he defendant must ... demonstrate a reasonable probability that the result of the trial would have been different but for counsel's deficiencies." Holland v. State , 656 So.2d 1192, 1198 (Miss. 1995). In Holland v. State , Holland admitted to simple possession but denied any intent to distribute. Id. at 1197. Defense counsel, however, failed to make a motion for directed verdict or enter any post-trial motions. Id. This "deprived the trial judge of the opportunity to review the evidence and reexamine possible errors at trial." Id. In light of Holland's defense strategy and his counsel's failure to have the trial judge examine the sufficiency of the evidence, the Holland Court detailed the prejudice:

There was more than a reasonable probability in this instance.... [T]he evidence was insufficient as a matter of law to support the charge and there was a reasonable probability that the trial judge would have granted the renewed motion for a judgment notwithstanding the verdict or a peremptory instruction had he been afforded a second chance to review the evidence produced at trial. In addition, a reversal would have definitely followed if the error had been properly preserved for appeal.

Id. at 1198.

¶ 70. In contrast, a remand is not appropriate where the defendant is not prejudiced by counsel's deficiency. Giles , 187 So.3d at 125-26. When the evidence is legally sufficient to support the verdict and the verdict is not against the overwhelming weight of the evidence, there is no reasonable probability that the outcome would have been different and the defendant is not entitled to a new trial. See Id.

¶ 71. Thus, the question before this Court is whether-with "the evidence ... weighed in the light most favorable to the verdict"-is this such an "exceptional case[ ] in which the evidence preponderates heavily against the verdict" that there is a reasonable probability that a trial court would have granted the motion? Bush v. State , 895 So.2d 836, 844 (Miss. 2005), overruled on other grounds by Little v. State , 233 So.3d 288, 291-93 (Miss. 2017). I would say no. As noted, this Court presumes that jurors follow the instructions provided to them. Flynt , 183 So.3d at 11. Woods in his appeal fails to offer any proof of prejudice that would foreclose this Court from relying on this bedrock principle. Here, the jury considered the evidence in the record, applied the governing law, and concluded that Woods murdered Pierre. Therefore, as long as the evidence in the record is legally sufficient to support the conviction and the conviction is not against the overwhelming weight of the evidence, there is no prejudice to Woods. This is the case here.

¶ 72. The State offered sufficient evidence to demonstrate that Woods killed Pierre with the intent necessary to commit second-degree murder without the authority of law and not in necessary self-defense. See Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). The parties stipulated to the fact that the State Medical Examiner had determined that Pierre Tenner "died as a result of a gunshot wound, and the manner of death was homicide." Doris also testified that she came back out of her house after hearing the shot and saw Woods with a shotgun. Further, Paul Armstead maintained that he saw Woods retrieve the shotgun and saw Pierre fall to the ground after being shot. Woods also shot Pierre after having entered the house twice during the argument with the knowledge that Doris had contacted law enforcement multiple times. The evidence further demonstrated that Pierre was intoxicated during the argument, with a blood alcohol count of .24. While none of these facts barred Woods's Castle-Doctrine defense and self-defense theory, the facts in this record do support the jury's conclusion that the Castle Doctrine did not apply, that Woods did not act in self-defense and that Woods did in fact murder Pierre. After review of the record, I would find that the evidence was legally sufficient to support Woods's conviction.

¶ 73. In light of this evidence, the verdict was not against the overwhelming weight of the evidence. Pierre was heavily intoxicated at the time and some distance from Woods when Woods shot him. Further, Woods had entered the house multiple times and voluntarily chose to come back outside during the encounter. Woods also knew that Doris had called law enforcement and had asked them to respond to Pierre. Moreover, Pierre was unarmed when Woods shot him and left him to die in the driveway.

¶ 74. Concerning the Castle Doctrine, the Majority assumes that Woods was entitled to the presumption. See Maj. Op. at ¶ 60. Under Mississippi law, though, whether Woods is entitled to the Castle-Doctrine presumption or not is a question to be resolved by a jury. Newell v. State , 49 So.3d 66, 73-78 (Miss. 2010). "In a homicide prosecution where the defendant asserts that the castle doctrine applies, and there are discrepancies in witness testimony, the issue is properly left to the jury." Bryant v. State , 232 So.3d 174, 179 (Miss. Ct. App. 2017), reh'g denied (Sept. 12, 2017) (citing Flynt , 183 So.3d at 14 ). This principle was reflected in Jury Instruction D-19, which required the jury to determine that the necessary elements under Section 97-3-15(3) were satisfied by the evidence in the record before applying the presumption to Woods.

¶ 75. It is not a foregone conclusion that the circumstances described in Section 97-3-15(3) were supported by the evidence. "[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness."

Meshell v. State , 506 So.2d 989, 992 (Miss. 1987) (citing Arteigapiloto v. State , 496 So.2d 681, 686 (Miss.1986) ).

¶ 76. Much of the evidence that the jury would have considered concerning the application of the presumption was testimony from Doris, a witness whose credibility was attacked a number of times at trial. During cross-examination, Doris admitted that her three written statements (two to law enforcement) each contradicted her testimony on direct examination. Also during cross-examination, Doris claimed that she had told Woods's defense attorney that Pierre had told Woods that he did not get him the other day but was going to get him this time. Doris conceded, though, that none of her prior written statements included Pierre's threat to Woods. From the record evidence, Doris recalls three different accounts of when and where she saw Pierre after he was shot. Further, her testimony and statements differ with one another over whether Woods followed her into the actual house or merely went into the attached laundry room.

¶ 77. Again, "the jury is ... is free to accept or reject all or some of the testimony given by each witness." Meshell , 506 So.2d at 992. At the end of Doris's cross-examination, the following exchange took place:

Q. Which one of these stories are we supposed to believe, Ms. Tenner?
A. The story I told.
Q. Which time?
A. Today.
Q. So the one that you said on the day that it happened, the day that it happened, you want us to believe that what you're telling us today is the truth and that's not?
A. Today is the truth.

Of course, the jury was not under any requirement to believe that Doris had testified to the truth.

¶ 78. In fact, beyond the contradiction in Doris's own testimony and statements, the jury could also have chosen to find Paul Armstead's testimony more credible. Armstead testified that it did not seem odd for Pierre to be across the street that day. According to Armstead, he did not see Doris intervene between Woods and Pierre. He also maintained that he had not been at 14 Hampton Court that day with Woods-contrary to Doris's claim that Armstead had been drinking with Woods in the carport. Further, Armstead stated that he did not see Pierre with a gun, that Pierre did not act as if he had a gun and that Pierre did not lean into his truck before crossing the street toward Woods. The jury is the ultimate fact-finder and properly weighed the conflicting evidence and arrived at a verdict which the evidence supports.

¶ 79. Because there is not a reasonable probability that the trial court would have granted a motion for a new trial had one been made, I would affirm Woods's conviction. Sufficient evidence supports the verdict, and the verdict is not against the overwhelming weight of the evidence.

      Mississippi Code Section 97-3-15(3) provides, in part: "This presumption shall not apply if the person against whom defensive force was used has a right to be in or is a lawful resident or owner of the dwelling , vehicle, business, place of employment or the immediate premises thereof or is the lawful resident or owner of the dwelling, vehicle, business, place of employment or the immediate premises thereof or if the person who uses defensive force is engaged in unlawful activity ." Miss. Code Ann. § 97-3-15(3) (emphasis added). The parties do not brief the issue of whether the presumption should not apply because Pierre may have been an "owner of the dwelling." While evidence showed that Pierre once had resided at Fourteen Hampton Court, the evidence does not show whether he was an "owner of the dwelling" at the time of the shooting. Moreover, no evidence was presented at trial showing that Woods's possession of the shotgun constituted "unlawful activity."

      See Beasley , 136 So.3d at 401 ("The standard of review for a post-trial motion is abuse of discretion.").

      This case differs from Holland or Giles . Here, the trial court took the opportunity to test the sufficiency of the State's evidence. After the State rested, Woods's counsel moved for a directed verdict. Citing the Castle Doctrine, Woods's counsel argued, "[T]he State has the burden to prove that my client did not act in self defense, and the State has utterly failed to prove that my client did not have that reasonable fear." The trial court determined otherwise: "[T]he State has submitted sufficient evidence and testimony to join the issue of whether or not the defendant acted in self defense."