Date: 10-28-2015

Case Style: Thomas Glynn Flynt a/k/a Thomas Flynt a/k/a Thomas G. Flynt v. State of Mississippi

Case Number: 2013-KA-01973-SCT

Judge: Robert B. Helfrich

Court: IN THE SUPREME COURT OF MISSISSIPPI

Plaintiff's Attorney: George Holmes

Defendant's Attorney: Laura Hogan Tedder and Patricia Burchell

Description: On April 11, 2009, Tommy Flynt and his family went to a cousin’s house for a large
family Easter egg hunt. Tommy arrived around noon with his wife, Melissa, and their two
children, Charee, fourteen, and Charles, ten. Samantha Crabtree, a friend of Charee’s, was
with them as well. The adults were drinking, and Tommy admits to having two beers.
¶3. At some point, Tommy’s older daughter, Krystal, arrived with her girlfriend, Teresa
Groover. According to Tommy, Krystal tried to pick a fight with him – she shoved him and
said she was grown now and could “whip his ass.” Tommy decided to leave because of
Krystal’s behavior; he does not remember what time they left, but he said it was still daylight.
Tommy, Melissa, Charles, Charee, and Samantha left the party and went to Tommy’s auto
repair shop. Tommy testified that, at the shop, Charles went out back to ride a four-wheeler,
Charee and Samantha listened to music in the car, and Tommy and Melissa went inside to
eat and watch television. Krystal and Teresa showed up at the shop some time later, and Krystal began trying
to provoke Tommy again. Tommy claims that Krystal “was in a drunken stupor state.” He
told Krystal to leave and escorted her outside. Krystal kicked the door open and came back
inside, again “leaning” on Tommy and saying things like “try me now.” Tommy claims that
he repeatedly asked Krystal to leave. Tommy testified that he was trying to ignore Krystal,
but she eventually pulled him off the barstool on which he was sitting, so he picked her up
by the waist and attempted to carry her outside. As Tommy was carrying Krystal out the
door, Teresa walked in.
¶5. Teresa separated Tommy and Krystal, pushing Krystal to the side and slamming
Tommy to the floor. Tommy admits that Teresa, a former Marine, was bigger and stronger
than he was. Tommy testified that Teresa pinned him to the ground with one hand on his
neck, strangling him. Tommy was able to get up, but Teresa took him down a second time.
Teresa choked him again, and Tommy claims that he was about to pass out when he heard
Krystal say, “Stop T, you’re killing him.” Tommy testified that Krystal pulled Teresa off
Tommy, and Tommy got to his feet. Tommy said he was choking and gasping for air when
Teresa got away from Krystal and charged him a third time. Tommy testified that he was
able to pry Teresa’s hand off his throat and roll out from under her.
¶6. After escaping Teresa for the third time, Tommy testified that he needed something
to drink because he said his Adam’s apple was stuck in the bottom of his throat and he
needed something to loosen it up. He located a beer and drank it. Tommy told his wife to
call 911, but she informed him that the phone was broken. He had another phone in his
office, so he went to the office in search of a telephone to call the police. Tommy testified
that he kept a loaded gun in plain sight in his office. Tommy maintained that he was going
to get the telephone, not his gun.
¶7. Tommy testified that Teresa charged into the office and attacked him again. He said
Teresa picked him up by the neck, lifted him off the ground, and had him against a shelf.
Tommy testified, “She was strangling me. . . . she was in a vicious mode. Slobber was
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coming out of her mouth, and she was telling me, ‘I’m going to kill you, you [expletive].’”
Tommy claimed that he does not know how the gun came into play; he does not remember
picking it up. He testified that he does not know if he picked it up or if Teresa picked it up,
but they both had their hands on the gun when it went off. He said that he does not
remember firing the gun, and he claims he did not even hear it go off. On cross-examination,
Tommy testified that Teresa was trying to point the gun at him and shoot him, and he was
trying to keep the gun away from himself. He said “it could have just as well been me shot.”
¶8. Tommy testified that Teresa was still choking him and they were still struggling for
the gun when the police came in. He testified that the police pulled Teresa off him and took
the gun. Tommy said the police officers handcuffed both him and Teresa and made them lie
on the floor. He said Teresa was still trying get up and she was looking at him saying “I’m
going to kill you, you [expletive]” while she was handcuffed and lying on the floor.
¶9. Others who were present that day recall the events somewhat differently. Charee
Flynt and Samantha Crabtree, both fourteen years old at the time, were the only eyewitnesses
to the altercation who testified. However, numerous police officers testified about what they
saw when they arrived at the scene after the shooting.
¶10. Charee testified that all of the adults had been drinking that day; she would not say
that her father was intoxicated, just that he had consumed a couple of beers. However, in her
original statement, made after the incident when she was fourteen years old, she wrote that
Tommy was “very intoxicated.” She also wrote that Krystal was intoxicated. At trial, Charee
maintained that Krystal was drunk, saying she was slurring her words and staggering, but she
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said her father was not drunk. Charee agreed that her impression about being intoxicated had
changed since she was fourteen and made the statement. Charee said Teresa had been
drinking as well, but she was not acting drunk.
¶11. Charee testified that Krystal and Teresa arrived at the shop, and Krystal started
arguing with Tommy and shoving him, and Tommy asked her to leave. At trial, Charee said
that Tommy was trying to push or pull Krystal toward the door. When presented with her
written statement, she admitted that Tommy had grabbed and pushed Krystal. Charee also
had written that Tommy choked Krystal, but she would not admit that at trial. Charee
testified that Tommy and Krystal started tussling, and Teresa walked in and separated them.
Charee testified that Teresa grabbed Tommy “by his throat and took him to the ground.”
¶12. Charee testified that while Teresa had Tommy pinned down she was telling him to
“stay down and calm down.” Charee testified that Teresa let Tommy get up, but then she
“took him right back down.” However, in her original statement, Charee indicated only that
Tommy had been pinned down one time. Charee testified that, after Teresa released Tommy
the second time, Tommy asked for something to drink, then he went into his office. Charee
testified that Tommy was in the office for two or three minutes before Teresa went in; in her
written statement, she wrote that Tommy was in the office for five minutes before Teresa
followed him. Charee testified that Teresa walked into the office calmly. She heard someone
yell “gun.” Charee knew that Tommy kept a gun in his office, but she said it was unloaded
because she and her little brother were at the shop often. Charee testified that she could not
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see Tommy and Teresa after they went into the office, but, in her statement, Charee wrote
that Tommy did not appear to be in danger.
¶13. At some point during the altercation, Krystal’s shirt and bra came off. Samantha
testified that Tommy tore them off when they were fighting, but Tommy said they came off
when Teresa pulled Krystal and Tommy apart. Samantha said Teresa came in and split up
Tommy and Krystal, putting Tommy in a chokehold until he agreed to stop fighting.
Samantha said Teresa was trying to get Tommy to calm down. Samantha testified that, when
Teresa let Tommy up, he went into his office. She said Teresa followed Tommy into his
office a few seconds later; she was not right behind him. Someone yelled, “He’s getting a
gun.” After they had been in the office a few seconds; the gun went off. Samantha testified
that she could see Tommy and Teresa standing in Tommy’s office; she could not hear what
they were saying, but Teresa did not seem to pose a threat to Tommy.
¶14. According to the 911 call log, a call came in at 8:06 and the caller reported that her
husband had just shot her daughter. However, the call log indicated that the caller’s name
was Teresa Groover. When asked who called 911, Charee testified, “We did.” Officer
Blaine Stansell was one of the first officers to arrive at the scene. When he arrived, a lady
in the parking lot was talking on the telephone, and he assumed she was talking to 911.
Stansell entered the building, followed by three other officers. When he approached the
office, he saw a female sitting on top of a male. She was straddling him, and they were
struggling over a gun. Stansell identified the male as Tommy. He testified that they were
sitting on the right side of the couch, and Tommy’s back was against a shelf. Stansell
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testified that he took the gun away from Tommy, and then he noticed a second female on the
couch who was “unconscious and bleeding from the abdomen.”
¶15. Sergeant Laron Smith arrived at the scene as well. When he arrived, several officers
were there already and several people were standing outside. Contrary to Officer Stansell’s
testimony, Sergeant Smith testified that he saw Tommy standing over Krystal and Teresa,
and he heard Tommy tell Krystal to move so he could “shoot the bitch again.” Sergeant
Smith said Tommy was pointing the gun at the two females and that Krystal was lying on top
of Teresa so Tommy would not be able to shoot her again. He testified that Tommy was
irate. After the officers got the gun away from Tommy, Krystal became more irate and tried
to attack Tommy, so Sergeant Smith restrained Krystal.
¶16. Lieutenant Dale Bounds also responded to the scene. He initially went around to the
side of building, where the air conditioning window unit from the office was located. He
could not see into the office, but he could hear a male and a female screaming. Lieutenant
Bounds testified that the female said, “Why did you shoot her?” And the male responded,
“Move. I was going to shoot and kill her.” Lieutenant Bounds then followed Officer Stansell
and the others into the building and approached an interior window that looked into the
office. He saw a male and a female struggling over a gun and a second female lying on the
couch with a gunshot wound to the abdomen.
¶17. Lieutenant Bounds testified that the male, whom he identified as Tommy, “had a gun
in his hand, and the female had her hands on his hands trying to keep him from shooting the
female again.” Lieutenant Bounds said Tommy had full control over the gun and it was
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pointed toward the female on the couch; when Tommy saw the officers come in, he rotated
the gun toward the officers. Lieutenant Bounds had his weapon drawn and was prepared to
shoot Tommy when Officer Stansell grabbed the gun from Tommy. Lieutenant Bounds
testified that Teresa was not handcuffed, as it is not normal to handcuff someone who is
critically injured. He said Teresa was just moaning when they came in. Teresa died from
the gunshot wound two days later.
¶18. Photographs from the crime scene were entered into evidence through the testimony
of the crime scene investigator, Jeff Byrd. Byrd testified that a photograph of Teresa’s
gunshot wound showed stippling, indicating that the gun was fired at close range.
Investigator Byrd’s report indicated that, when officers arrived, Tommy was lying on top of
Teresa and Krystal was on top of both of them, and both Tommy and Teresa had their hands
on the gun. Byrd swabbed Tommy’s hands for gunshot residue. Testing revealed gunshot
residue on the front and back of both of Tommy’s hands.
¶19. Forensic scientists from the Mississippi Crime Laboratory testified that Teresa did not
have drugs or alcohol in her system. However, the alcohol test was performed two days after
the incident, and the toxicologist testified that any alcohol that was in her system on the day
of the shooting would have been gone by then. The samples for the drug tests were drawn
on April 15, four days after the incident, and the toxicologist testified that samples taken
postmortem would indicate what was in the body at the time of death, but not two days
before death, which was the day of the shooting.
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¶20. A firearms analyst testified that the bullet that was taken from the scene was fired
from the gun that was taken from the scene. A box of cartridges also was taken from the
scene, and it was consistent with the bullet that was fired. The gun in question, a Rossi .38
revolver, holds five rounds. The box of ammunition taken from the scene was open and
sitting on a table near the couch; it was missing five bullets. However, one shot had been
fired, and only three bullets remained in the gun. Tommy testified that he kept the gun at the
shop because he had a lot of cash on hand and it was a deterrent to robbers, but he testified
that he had not had to use the gun before. Based on Charee’s testimony that Tommy kept the
gun unloaded, as well as her testimony that he was in the office for two to five minutes
before Teresa went in, the State’s theory is that Tommy went into the office and hurriedly
loaded the gun, without loading it to capacity, with the intent to shoot Teresa.
¶21. Dr. Thomas Deering performed the autopsy on Teresa. He testified that the bullet
entered her upper left abdomen and exited out the right flank. Based on the tight stipple
pattern and soot that was present, he testified that there would have been six inches or less
between the barrel of the gun and Teresa’s skin. Dr. Deering testified that Teresa also had
blunt trauma – scrapes and bruises that resulted from falling or getting hit with something
– on her knees, chin, and eyebrow. Dr. Deering concluded that the cause of death was
gunshot wound to the abdomen and the manner of death was homicide.
¶22. The State paints the relationship between Tommy and Krystal as a tumultuous one,
also implying that Tommy had issues with Krystal’s and Teresa’s relationship. Tommy
admitted that Krystal had drug and alcohol problems and said that he had told her she needed
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to get help. But he said she was his daughter, he loved her, and he did not have anything
against her. Tommy also testified that he liked Teresa, he did not have any problems with
her, and she was a friend. He said Krystal was “a drughead and an alcoholic,” and Teresa
made sure that his grandchildren (presumably Krystal’s children) were taken care of.
¶23. Tommy was indicted for murder in September 2009. Trial was held in October 2013,
more than four years after the shooting. The jury convicted Tommy of manslaughter. He
was sentenced to twenty years, with five years suspended and fifteen to serve. After the
trial, Tommy filed a motion for judgment notwithstanding the verdict (JNOV) or, in the
alternative, for a new trial. The motion was denied and Tommy appealed.
Discussion
¶24. On appeal, Tommy asserts that the trial court erred by denying his motion for JNOV
or for a new trial, because the evidence was legally insufficient to support the jury’s verdict
and the verdict was against the overwhelming weight of the evidence. He also asserts that
the jury could not have fully considered his self-defense claim. We apply an abuse-of
discretion standard of review to post-trial motions, such as motions for JNOV or for a new
trial. Beasley v. State, 136 So. 3d 393, 401 (¶ 28) (Miss. 2014).
I. Whether the trial court erred by denying the motion for JNOV.
¶25. A motion for JNOV “challenges the legal sufficiency of the evidence.” Beasley, 136
So. 3d at 401 (¶ 29) (quoting Ivy v. State, 949 So. 2d 748, 751 (Miss. 2007)). The Court has
summarized the standard of review for the denial of a motion for JNOV as follows:
“[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under
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such circumstances that every element of the offense existed[.]’” Id. (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). In reviewing the sufficiency of the evidence, this Court will view all evidence in the light most favorable to the verdict. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). If this Court determines that “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” this Court will hold that the evidence was legally sufficient to support the jury’s verdict. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985).
Beasley, 136 So. 3d at 402 (¶ 29). Tommy claims that the State’s evidence was not legally
sufficient to support the jury’s verdict.
¶26. Tommy was charged with deliberate-design murder under Mississippi Code Section
97-3-19(1)(a), which provides: “The killing of a human being without the authority of law
by any means or in any manner . . . [w]hen done with deliberate design to effect the death of
the person killed, or of any human being, shall be first-degree murder[.]” Miss. Code Ann.
§ 97-3-19(1)(a) (Rev. 2014). The jury instruction on murder read:
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about April 11, 2009[,] in Forrest County, Mississippi; 2. That Teresa Groover was a human being; 3. That Thomas Flynt without authority of law did willfully and with malice aforethought kill Teresa Groover by shooting her with a gun, all with the deliberate design to effect the death of Teresa Groover; 4. And not in self defense;
then you shall find the defendant guilty as charged.
If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Thomas Flynt not guilty of murder.
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The jury was instructed that if it found the defendant did not have the mental requirement to
commit murder, he could be guilty of the lesser-included offense of manslaughter. The
manslaughter instruction read:
If the defendant killed another person with an actual, genuine belief that the killing was necessary in order to protect himself from great bodily harm or death, even though that belief was not reasonable under the circumstances, then the defendant did not have the mental requirement to commit murder. However, the killing may be manslaughter.
If you find from the evidence that:
1. On or about April 11, 2009, Thomas Flynt shot and killed Teresa Groover; 2. Acting with an actual, genuine belief that the killing was necessary in order to protect himself from great bodily injury or death; but 3. That belief was not reasonable under the circumstances;
then you may find Thomas Flynt guilty of the lesser included offense of Manslaughter.
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The jury also was instructed as to manslaughter in the heat of passion1 and manslaughter
while the victim was engaged in trespass. Tommy asserted a theory of self-defense, and the
jury was given a self-defense instruction. He also argued that he was protected by the Castle
Doctrine because he was in his place of business, and the jury was instructed accordingly.
The jury found Tommy guilty of manslaughter.
¶27. Tommy claims that no rational trier of fact could have found every element of murder
or manslaughter. We disagree. Mississippi Code Section 97-3-35 provides that the “killing
1 The jury instruction for manslaughter in the heat of passion read:
If you find that the State has failed to prove any one or more of the essential elements of the crime charged, you must find the defendant not guilty of the charge. You will then proceed with your deliberation to decide whether the State has proved beyond a reasonable doubt all the elements of the lesser crime of Manslaughter while in the heat of passion.
If you find from all the evidence in this case beyond a reasonable doubt that:
1. Thomas Flynt on or about April 11, 2009, in Forrest County, Mississippi; 2. That Teresa Groover was a human being; and 3. That Thomas Flynt did kill Teresa Groover, without malice, but in the heat of passion by the use of a deadly weapon; and without authority of law and not necessary in self defense;
then you shall find the defendant guilty of the lesser included offense of Manslaughter.
If the State has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find Thomas Flynt not guilty.
If you find beyond a reasonable doubt from the evidence in this case that the defendant is guilty of the crime charged or a lesser crime as defined, but you have a reasonable doubt as to the crime of which the defendant is guilty, you must resolve the doubt in favor of the defendant and find him guilty of the lesser crime which is manslaughter. 13
of a human being, without malice, in the heat of passion, but in a cruel or unusual manner,
or by the use of a dangerous weapon, without authority of law, and not in necessary self
defense, shall be manslaughter.” Miss. Code Ann. § 97-3-35 (Rev. 2014) (emphasis added).
Section 97-3-35 “contemplates alternative theories to sustain a manslaughter conviction in
that the crime may be charged as a killing in ‘a cruel or unusual manner’ or ‘by use of a
deadly weapon.’” Booker v. State, 64 So. 3d 965, 971 (¶ 19) (Miss. 2011) (citations
omitted). In the instant case, “a cruel and unusual manner” has not been asserted, but
certainly a gun is a “dangerous weapon” and it is undisputed that Teresa died from a gunshot
wound. Thus, to convict Tommy of manslaughter, the State was required to prove that
Tommy: (1) killed Teresa; (2) with a dangerous weapon; (3) without authority of law; and
(4) not in necessary self-defense.
¶28. The jury heard testimony from Tommy Flynt, Charee Flynt, Samantha Crabtree,
several officers who responded to the scene, the medical examiner, toxicologists, and a
firearms expert. Those who testified presented some contradictory testimony in their
accounts of the events that had occurred four years before the trial. However, although an
eyewitness did not see Tommy pull the trigger, sufficient evidence pointed to Tommy as the
shooter: Tommy admits to fighting with Teresa; testimony indicated that Teresa pinned
Tommy down at least twice; Tommy was able to escape from Teresa at least twice and walk
to his office; Tommy kept a gun in his office; Teresa was shot in Tommy’s office by
Tommy’s gun; Tommy had gunshot residue on both hands; Tommy had his hands on the gun
when police arrived; and two police officers testified that they heard Tommy say something
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about shooting Teresa and/or wanting to shoot her again.
¶29. When reviewing a challenge to the sufficiency of the evidence, the Court must
determine “whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Byrd v. State, 158 So. 3d 1146, 1151 (¶ 14) (Miss. 2015) (quoting Bush
v. State, 895 So. 2d 836, 843 (Miss. 2005)). We hold that the evidence presented by the State
was legally sufficient to allow the jury to conclude, beyond a reasonable doubt, that Tommy
was guilty of manslaughter. The trial court’s denial of Tommy’s motion for JNOV was not
an abuse of discretion.
II. Whether the trial court erred by denying the motion for a new trial.
¶30. “A motion for a new trial challenges the weight of the evidence.” Beasley, 136 So.
3d at 403 (¶ 35). The Court has summarized the standard of review for the denial of a motion
for new trial as follows:
In reviewing a challenge to the weight of the evidence, this Court will overturn a verdict only “when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844. See also Amiker v. Drugs for Less, Inc., 796 So. 2d 942, 947 (Miss. 2000) (holding that a motion for a new trial is addressed to the discretion of the court and should be granted only “in exceptional cases in which the evidence preponderates heavily against the verdict.”). As with challenges to the sufficiency of the evidence, this Court views all evidence in the light most favorable to the verdict. Id. Factual disputes are properly resolved by a jury and do not mandate a new trial. Temple v. State, 498 So. 2d 379, 382 (Miss. 1986).
Beasley, 136 So. 3d at 403 (¶ 35).
A. Weight of the Evidence
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¶31. Tommy asserts that the overwhelming weight of the evidence does not support the
jury verdict, because no eyewitness testified that Tommy fired the shots, forensic evidence
did not tie Tommy to the shooting, and the police officers’ testimony was contradictory.
Tommy is correct that no one testified to seeing him fire the shot that killed Teresa.
However, as discussed above, sufficient evidence pointed to Tommy as the shooter.
Forensic evidence did, in fact, tie Tommy to the shooting – he had gunshot residue on the
front and back of both hands and the bullet was fired from his gun. There was no evidence
to indicate that Teresa fired the gun. Although Tommy is correct that some of the witness
testimony was contradictory, that is a challenge to the witnesses’ credibility, and determining
credibility of witnesses is a jury function. Id.
¶32. The Beasley Court discussed a similar situation:
While Beasley claims that the evidence presented by the State is “unsubstantiated” or “unconvincing,” his specific arguments merely challenge the credibility of the State’s witnesses. It is not for this Court to pass on the credibility of witnesses, for that is a jury function. Bond v. State, 249 Miss. 352, 162 So. 2d 510, 512 (1964) (citation omitted). The jury in this case was presented with two opposing versions of the circumstances surrounding Wilkinson’s death. The State presented significant circumstantial evidence portraying Beasley as Wilkinson’s murderer. In response, Beasley took the stand in an attempt to rationalize the State’s damning evidence, and his testimony is the only evidence inconsistent with the jury’s verdict. The jury was free to accept the testimony of some witnesses and reject that of others, and this Court “need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict.” Brown v. State, 796 So. 2d 223, 227 (Miss. 2001) (citations omitted). In this case, it is clear that the jury accepted the State’s witnesses and evidence and rejected Beasley’s testimony. Allowing the jury’s verdict to stand in this case would not “sanction an unconscionable injustice,” as the evidence does not “preponderate heavily against the verdict.” Bush, 895 So. 2d at 844. Accordingly, we find that the trial court did not err in denying Beasley’s motion for a new trial.
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Beasley, 136 So. 3d at 403-404 (¶ 36). The same is true in the instant case. While some
witness testimony was inconsistent as to specific details, Tommy’s testimony was the most
different from all the others. The jury has the job of weighing witness testimony and
determining credibility. The jury did so, and the evidence does not “preponderate heavily
against the verdict” such that allowing the verdict to stand would “sanction an
unconscionable injustice.” Id.
B. Defense Theories
¶33. Tommy also asserts that the jury could not have fully considered his theory of self
defense or the Castle Doctrine. The jury was given instructions on both self-defense and the
Castle Doctrine. “It is presumed that jurors follow the instructions of the court. To presume
otherwise would be to render the jury system inoperable.” Gray v. State, 728 So. 2d 36, 63
(¶ 127) (Miss. 1998) (quoting Chase v. State, 645 So. 2d 829, 853 (Miss. 1994)). Thus, the
Court presumes that the jury considered the instructions on self-defense and the Castle
Doctrine, as well as any related evidence.
¶34. Although it is not disputed that Tommy and Teresa had been fighting, no evidence
was presented that Tommy had any bruises, cuts, or scrapes. The photographs entered into
evidence showed Tommy’s gold chain intact, no readily apparent bruises or cuts, and no hand
prints on his neck. Regarding self-defense, the Court has written:
In order for a homicide to be justified as self-defense, the actor’s apprehension of danger must appear objectively real to a reasonable person of average prudence. Hart v. State, 637 So. 2d 1329, 1339 (Miss. 1994). This Court, in Wade v. State, 748 So. 2d 771, 775 (Miss. 1999), held that the issue of justifiable self-defense presents a question of the weight and credibility of the evidence, rather than sufficiency, and is to be determined by jury. This Court
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further stated that “any factual disputes are properly resolved by the jury and do not mandate a new trial.” McNeal v. State, 617 So. 2d 999, 1009 (Miss. 1993).
Jones v. State, 39 So. 3d 860, 865 (¶ 28) (Miss. 2010). The Court presumes that the jury
considered all of the evidence and theories of defense and concluded that Tommy did not act
out of “necessary self defense.”
¶35. Tommy failed to cite any authority pertaining to the Castle Doctrine or how it should
be applied to the facts of his case. Therefore, the issue is procedurally barred. Rubenstein
v. State, 941 So. 2d 735, 780 (¶ 196) (Miss. 2006) (citing Bell v. State, 879 So. 2d 423, 434
(Miss. 2004) (“Failure to cite relevant authority obviates the appellate court’s obligation to
review such issues.”). Procedural bar notwithstanding, the claim is without merit.
¶36. Under the Castle Doctrine, “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.” Newell v. State, 49 So. 3d 66, 74 (¶ 22)
(Miss. 2010) (discussing Miss. Code Ann. § 97-3-15(4)). The Castle Doctrine is codified
under the justifiable homicide statute at Mississippi Code Section 97-3-15(3) and (4) as
follows:
(3) A person who uses defensive force shall be presumed to have reasonably feared imminent death or great bodily harm, or the commission of a felony upon him or another or upon his dwelling, or against a vehicle which he was occupying, or against his business or place of employment or the immediate premises of such business or place of employment, if the person against whom the defensive force was used, was in the process of unlawfully and forcibly entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle, business, place of employment or the immediate premises thereof or if that person had unlawfully removed or was attempting to unlawfully remove another against the other person’s will from that dwelling, occupied vehicle,
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business, place of employment or the immediate premises thereof and the person who used defensive force knew or had reason to believe that the forcible entry or unlawful and forcible act was occurring or had occurred. 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 or if the person is a law enforcement officer engaged in the performance of his official duties;
(4) A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
Miss. Code Ann. § 97-3-15(3), (4) (Rev. 2014). Subsections (1)(e) and (f), referenced in
subsection (3), provide:
(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). To summarize, the Castle Doctrine
includes two prongs:
First, under subsection (4), if the defendant is in a place where he had a right
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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. § 97-315(3) (Rev. 2006).
Newell v. State, 49 So. 3d 66, 74 (Miss. 2010). 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.
Miss. Code Ann. § 97-3-15(3) (Rev. 2014).
¶37. As to the first prong, Tommy certainly had a right to be at his auto shop and there was
no evidence that he was engaged in any unlawful activity. The testimony points to Krystal
as the initial aggressor, with Teresa pinning down Tommy after he tried to remove Krystal
from the auto shop. The evidence does not point to Tommy as the “immediate provoker and
aggressor.” Therefore, he did not have a duty to retreat before using defensive force.
¶38. For the second prong, the jury must find one of the circumstances in subsection (3)
for the presumption to apply. There is no evidence that Teresa was attempting to remove
another person from the garage, so that situation is not relevant. Regarding unlawful or
forcible entry, the record indicates that Teresa was a family friend who would have been
welcome in Tommy’s garage under most circumstances. Tommy had asked Krystal to leave
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and was attempting to escort her outside when Teresa came in. There was no testimony that
Teresa was not welcome when she arrived or that she had entered unlawfully or forcibly.
Once Teresa and Tommy began fighting, her presence may have become unwelcome, but the
standard requires that “the person against whom the defensive force was used, was in the
process of unlawfully and forcibly entering, or had unlawfully and forcibly entered[.]” Miss.
Code Ann. § 97-3-15(3) (Rev. 2014). The evidence does not support, and Tommy does not
argue, that Teresa entered the garage unlawfully or forcibly.
¶39. A question arises however, as to whether Teresa unlawfully or forcibly entered
Tommy’s inner office, where the shooting occurred. The testimony indicated that Tommy
walked into his office to get the phone – according to Tommy, Teresa entered his office after
he stopped to drink a beer – and that he did not shut the door behind himself. Teresa then
followed him into the office. According to Tommy, Teresa charged after him, only seconds
behind him, and he did not have time to close the door. However, Samantha and Charee
testified that Teresa walked calmly into the office after Tommy had been in the office for at
least a few seconds. No one testified that Tommy told Teresa to leave, or that Tommy fled
the office to escape from Teresa, or that Tommy tried to keep Teresa out of the office.
Whether Teresa entered the office “unlawfully and forcibly” certainly is unclear. The only
testimony that she followed him quickly into the office and that he did not have time to shut
the door was from Tommy, but Tommy also testified that he stopped and drank a beer before
going into his office.
¶40. Again, “[f]actual disputes are properly resolved by a jury and do not mandate a new
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trial.” Beasley, 136 So. 3d at 403 (¶ 35) (citing Temple, 498 So. 2d at 382). As in most
cases, the instant case is not without factual disputes and discrepancies among witness
testimony. However, those issues are for the jury.
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)).
Barfield v. State, 22 So. 3d 1175, 1187-88 (¶ 46) (Miss. 2009). The Court must presume that
the jury considered the jury instructions – including the Castle Doctrine instruction and the
related evidence and testimony. See Gray, 728 So. 2d at 63 (¶ 127); Chase, 645 So. 2d at
853. The evidence presented supports the jury verdict, and the trial court did not err in
denying Tommy’s motion for a new trial.
C. The Dissent
¶41. The dissent would reverse Flynt’s conviction for a violation of his right to a speedy
trial, despite the fact that never during the pendency of the litigation – either now on appeal
or below in the trial court – has Flynt raised the issue. Two long-held principles direct us
not to consider the issue. First, this Court has long held that issues not raised on appeal are
procedurally barred from consideration. Hood ex rel. State Tobacco Litigation, 958 So. 2d
790, 815 (¶ 86) n.17 (Miss. 2007); Glover v. Jackson State Univ., 755 So. 2d 395, 398 (¶ 7)
n.1 (Miss. 2000). Second, the Court will not hold a trial court in error for issues not
presented to it for consideration. Moffett v. State, 49 So. 3d 1073, 1101 (¶ 91) (Miss. 2010).
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¶42. Thus, the only avenue available for review of a speedy-trial issue is through the use
of the plain-error doctrine. According to the dissent, the Court is “obligated to grant relief
on the basis of plain error”; however, Mississippi Rule of Appellate Procedure 28(a)(3)
(emphasis added), which provides the basis for the plain-error doctrine, states that the Court
“may, at its option, notice a plain error not identified or distinctly specified.” Accordingly,
the Court’s decision to utilize plain error is discretionary, not obligatory. “It is the immutable
obligation of a court to sit, and to sit only, as an objective and indifferent arbiter of the rights
of the litigants.” Browning v. Shackelford, 196 So. 2d 365, 373 (Miss. 1967). To place
upon ourselves as justices and judges a duty to scour the record in order to discover potential
error where none was suggested at any point by any party would be to put the Court in a
position too closely resembling that of a interested litigant, and that we shall not do.
¶43. Flynt failed to raise a speedy-trial issue at any time during his trial or appeal, and we
now decline to address it utilizing plain error.

Outcome: The evidence presented by the State was legally sufficient to allow the jury to
conclude, beyond a reasonable doubt, that Tommy was guilty of manslaughter. The jury determined the credibility of the witness testimony, and the evidence does not “preponderate heavily against the verdict” such that allowing the verdict to stand would “sanction an unconscionable injustice.” Thus, it was not an abuse of discretion for the trial court to deny Tommy’s motion for JNOV or for a new trial, and we affirm the judgment of the Forrest County Circuit Court.

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