Case Number: 2016-KA-01734-SCT
Judge: Josiah D. Coleman
Court: SUPREME COURT OF MISSISSIPPI
Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON
Defendant's Attorney: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES
Description: 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
¶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
¶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
¶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
¶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 (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).
¶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). 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). “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, 2017 WL 2181149, at *8 (¶ 41) (Miss. May 18, 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.
¶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),
(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).1 Given no duty to retreat, the
1 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 21
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 (“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).
¶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.
Outcome: 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 or 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.