                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-KA-01507-SCT

EVERETT MOORE a/k/a EVERETT S. MOORE
v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        10/03/2016
TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
TRIAL COURT ATTORNEYS:                   ROBERT R. MORRIS
                                         JOHN D. WATSON
                                         LUKE PATRICK WILLIAMSON
                                         STACEY ALAN SPRIGGS
COURT FROM WHICH APPEALED:               DeSOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF THE STATE PUBLIC
                                         DEFENDER
                                         BY: W. DANIEL HINCHCLIFF
                                             GEORGE T. HOLMES
ATTORNEYS FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                         BY: ABBIE E. KOONCE
                                             JOE HEMLEBEN
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             REVERSED AND REMANDED - 04/19/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.   A DeSoto County jury convicted Everett Moore of second-degree murder for shooting

and killing Norris Smith. The Circuit Court of DeSoto County, Mississippi, sentenced Moore

to thirty years’ imprisonment. We reverse Moore’s conviction and sentence and remand the
case for a new trial because the trial court committed reversible error in denying Moore’s

proposed circumstantial evidence jury instruction.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On September 29, 2015, at 12:07 p.m., Officer Walter Medford of the Olive Branch

Police Department responded to reports of an accident with injuries. Upon arrival at the

scene, Officer Medford observed a white Nissan Altima that had collided with a building.

Officer Medford testified that he “noticed a black male . . . in the driver’s seat slumped over

the arm rest” who was unresponsive and who “appeared to have a gun shot wound to his

head.” The window on the driver’s side “was broken out.” Investigator Roger Hutchins, who

is Chief Inspector of the Detective Division of the DeSoto County Sheriff’s Department,

testified that a badge was found under the driver’s seat of the vehicle which identified the

victim as Norris Smith. Investigator Hutchins interviewed Smith’s wife, who, “right off the

bat,” said that the shooter was Moore. Over defense counsel’s hearsay objection, Investigator

Hutchins testified that Smith’s wife stated that “there had been an ongoing problem with Mr.

Moore accusing Norris Smith, the victim, of having an affair with his wife.”

¶3.    Because the surrounding area where Smith’s vehicle was located is heavily

industrialized, the DeSoto County Sherriff’s Department was able to obtain video

surveillance footage from View, Inc.; Anda Pharmaceuticals; McKesson Pharmaceutical

Distribution; Syncreon Security Technology; and Williams-Sonoma.1 Detective Steve

English of the Criminal Investigations Division of the DeSoto County Sheriff’s Department



       1
           Various surveillance videos were played for the jury.

                                              2
testified that he assisted in gathering and reviewing all surveillance video footage pertinent

to the investigation. According to Detective English, the Syncreon surveillance video footage

from September 29, 2015, captured Norris Smith, who that same day had begun working at

Syncreon Security Technology, coming out of the building where he worked during the lunch

hour (some time between 11:38 p.m. and 12:00 p.m.) and getting into a Nissan Altima which

belonged to his wife. The Syncreon surveillance video footage then showed Moore’s white

SUV pulling in behind Smith’s vehicle. According to the surveillance video footage and the

testimony of Detective English, at approximately 12:00 p.m., Moore exited his SUV and

approached the driver’s side of Smith’s vehicle. Moore leaned on Smith’s vehicle and

appeared from the surveillance video to be “having some sort of conversation with [Smith].”

After their brief conversation concluded, Moore returned to his SUV and “proceeded to drive

west through the parking lot.”

¶4.    Detective English also took a number of “screen captures of the images that are shown

of the surveillance video.” That series of screen captures—still photographs of images from

various surveillance videos—was received in evidence as Exhibit 29. According to Detective

English’s interpretation, the screen captures show that Moore, driving west through the

Syncreon parking lot, stopped his vehicle briefly. Smith’s vehicle then exited Syncreon’s

parking lot onto Kirk Road. Detective English opined that, “[o]nce [Moore] sees that Mr.

Smith has left out the opposite entrance, he starts proceeding to the west exit of Syncreon’s

property.” After Smith’s vehicle had driven past, according to Detective English, Moore then

drove out of the Syncreon parking lot and onto Kirk Road.



                                              3
¶5.    Detective English testified that the screen captures from the Anda Pharmaceutical

surveillance show “both vehicles side by side on Kirk Road . . . .” According to Detective

English, the screen captures show Smith’s “vehicle . . . coming into contact with the curb

on the right and Mr. Moore . . . slowing down his actions, backing up behind the vehicle to

allow Smith’s vehicle to keep going forward . . . on Kirk Road.” The next screen capture,

Detective English testified, shows Smith’s vehicle “bounce[] off of that right curb and []

driv[e] down the roadway uncontrollably as Mr. Moore is following behind.”

¶6.    Detective English described the Anda Pharmaceutical surveillance video, which he

said showed “Mr. Smith’s vehicle slowly come into the intersection almost striking [an]

orange 18-wheeler [which] had a green light at the time. Mr. Smith’s vehicle went through

the intersection, over the curb and down the embankment where it came to a final rest at

Prime Automotive.”

¶7.    Various witnesses testified about what they had observed. Ronnie Schuldt said that,

as he was driving south on Polk Lane and approaching the intersection with Kirk Road, he

was prevented from continuing through the intersection, despite having a green light: “I

slowed down and stopped or almost stopped, and the car continued through the intersection

heading west and drove up over the curb and then started down; and there was an

embankment that goes down to the [Prime Automotive] building.” Schuldt, who got out of

his own vehicle and walked down the embankment to the driver’s side of the car, stated that

he saw an unresponsive person slumped over the console with an apparent head wound and

that the driver’s side window had been shattered. A Prime Automotive employee, Esau Fant,



                                            4
testified that he heard two gunshots and watched a white Altima drive through the

intersection and coast down to the Prime Automotive plant. He saw the broken glass and saw

that the driver had been shot.

¶8.    Jonathan Young, an employee of View, Inc., testified that he had turned left onto Polk

Road off Kirk Road and “was almost rear ended by a white SUV.” Young continued that the

SUV, which had a Benton County tag, passed his vehicle in a turn lane and then ran a red

light. Young testified that Moore, the defendant, was the person he observed driving the

SUV.

¶9.    Nine to ten hours after the shooting, Moore turned himself in to the police. After

reading Moore’s Miranda2 rights to him and obtaining a written waiver, Investigator

Hutchins interviewed Moore. The audio recorded interview was played for the jury. In the

interview, Moore admitted having been in the Syncreon parking lot. Moore referenced a text

message between his wife and Smith.

¶10.   Dr. Brent Davis, a deputy chief medical examiner with the office of the Mississippi

State Medical Examiner, who was tendered by the State and accepted by the trial court as an

expert in forensic pathology, testified that his colleague, Dr. Lisa Funte, actually performed

the autopsy but she was unavailable to testify. Dr. Davis testified that he had reviewed and

concurred with Dr. Funte’s conclusions following Smith’s autopsy. He stated that, “[i]n our

office, currently all homicides are reviewed and signed off on by each pathologist in the

office.” Dr. Davis testified that the cause of Smith’s death was “[m]ultiple gunshot wounds”



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

                                              5
and that the manner of Smith’s death was “homicide.” Moore did not object to any of Dr.

Davis’s testimony or evidence except for photographs the State offered through him that

Moore argued were gruesome and would inflame the jury. The court admitted them,

overruling Moore’s objection.

¶11.   A DeSoto County grand jury had indicted Moore for murder but the jury found Moore

guilty of second-degree murder. Moore sought a judgment notwithstanding the verdict

(JNOV) or, in the alternative, a new trial, which the trial court denied. Moore was sentenced

to a term of forty years, thirty years to be served in the custody of the Mississippi Department

of Corrections and the remaining ten years to be served on post-release supervision. Moore

timely filed a notice of appeal.

¶12.   Moore argues on appeal that: (1) the trial court erred by giving a second-degree

murder instruction that was not supported by the evidence; (2) the trial court erred in refusing

the circumstantial evidence jury instruction Moore had sought; (3) the trial court committed

plain error by allowing a forensic pathologist to testify about an expert opinion which was

not his own; and (4) the trial court erred by admitting hearsay evidence. We address only the

dispositive question of whether the trial court erred in refusing Moore’s tendered

circumstantial evidence instruction.

                                         ANALYSIS

¶13.   The State produced no confession or eyewitness to the shooting. Moore proposed a

circumstantial evidence jury instruction, but the trial court declined to give it. Moore argues

on appeal that he was entitled to a circumstantial evidence instruction.



                                               6
¶14.   This Court reviews a grant or denial of jury instructions for abuse of discretion.

McInnis v. State, 61 So. 3d 872, 875 (Miss. 2011). Further, jury instructions “must be read

as a whole to determine [whether] they fairly announce the law, and they must be supported

by evidence.” Id. (internal citations omitted).

¶15.   Moore contends that, under Stringfellow v. State, a circumstantial evidence instruction

“‘should be given only when the prosecution can produce neither eyewitnesses [nor] a

confession to the offense charged.’” See Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss.

1992). The State responds that Moore was not entitled to a circumstantial evidence jury

instruction because it had adduced direct evidence of Moore’s guilt:

       The video tape shows Moore’s car and its relation to the victim’s car at the
       exact place where the shots were fired as evidenced by the glass fragments and
       shell casings found at that location. An eye witness identified Moore as the one
       fleeing the scene and another eye witness described how the victim’s car
       appeared to lose control and go off road until it came to rest against the side
       of a building.

¶16.   But in Burleson v. State, this Court held that, “[w]here the State ‘is without a

confession and wholly without eyewitness testimony to the gravamen of the offense charged,’

the defendant is entitled to an instruction requiring the jury to ‘exclude every other

reasonable hypothesis other than that of guilt before a conviction can be had.’” Burleson v.

State, 166 So. 3d 499, 509 (Miss. 2015) (quoting Mack v. State, 481 So. 2d 793, 795 (Miss.

1985); Pettus v. State, 200 Miss. 397, 411, 27 So. 2d 536, 540 (1946)). This Court defined

“gravamen” as the “‘substantial point or essence of a claim, grievance, or complaint.’”

Burleson, 166 So. 3d at 509 (quoting McInnis, 61 So. 3d at 876). Further, the Court

recognized that “[d]irect evidence . . . ‘must directly and not by inference implicate the

                                              7
accused and not just show that there has been a crime.’” Burleson, 166 So. 3d at 509

(quoting Price v. State, 749 So. 2d 1188, 1194 (Miss. Ct. App. 1999)).

¶17.   In the present case, the State has produced neither Moore’s confession nor an

eyewitness to the gravamen of the offense charged. Here, the gravamen of the crime is the

actual shooting of Smith. To remove this case from the circumstantial evidence realm, the

State bore the burden of adducing evidence to show directly, and not merely by inference,

that Moore shot and killed Smith. This is true, no matter how compelling the inference may

be. The State claims that Moore’s fingerprints on Smith’s car, the video evidence of the

vehicles, the broken glass and shell casing, the witness who observed Moore driving past him

at a high rate of speed, and the other videos amount to direct evidence that Moore shot Smith.

An inference that Moore shot Smith does arise from the evidence. But evidence that

implicates the defendant by inference is circumstantial evidence, without regard to how

persuasive the inference appears to be. Moreover, the sum of circumstantial evidence,

however great it may be—and although often it is sufficient to sustain a conviction—never

becomes direct evidence.

¶18.   The State argues that video evidence can constitute direct evidence of the crime, citing

Golden v. State. Golden was a cashier at a casino. Golden v. State, 860 So. 2d 820, 821

(Miss. Ct. App. 2003). One evening, after Golden had left her post and exited the casino,

“casino officials discovered that her cash drawer was short over $19,000.” Id. At trial, the

State presented video footage showing her taking the money from her drawer and delivering

it to her sister. Id. at 823. The Mississippi Court of Appeals upheld her conviction:



                                              8
“[v]ideotape evidence submitted to the jury of an accused’s unlawful acts constitutes direct

evidence.” Id. In concluding that the videotape evidence was direct evidence, the Court of

Appeals relied on Haynes v. State, in which this Court had affirmed a conviction for burglary

where the defendant had hidden in the restroom of a Junior Food Mart in Aberdeen,

Mississippi, “with the express purpose of stealing from the store once it closed.” Haynes v.

State, 744 So. 2d 751 (Miss.1999). This Court affirmed Haynes’s conviction and sentence

because, “[i]n addition to the testimony of the officers who arrested Haynes, the jury was also

presented with a videotape of Haynes dragging a garbage bag full of stolen goods around the

store.” Id. at 753.

¶19.   But, in both Golden and Haynes, surveillance video had captured the nefarious

misdeeds of the parties. In those cases, the video footage captured the gravamen of the

crimes as they were being committed. The circumstantial evidence in the present case, albeit

copious, does not reach beyond the realm of the inferential. The surveillance videos here

showed only Moore’s encounter with Smith in the Syncreon parking lot and the close

proximity of Moore’s vehicle to Smith’s just before Smith’s vehicle careened out of control.

An inference arises from this circumstantial evidence that Smith did, in fact, shoot Moore.

But inferences do not amount to direct evidence.

¶20.   Because the State adduced no direct evidence of Moore’s guilt, the trial court’s refusal

of Moore’s sought circumstantial evidence jury instruction was an abuse of discretion.

Accordingly, we reverse Moore’s conviction and sentence and remand the case to the Circuit

Court of DeSoto County for a new trial.



                                              9
¶21.   The dissent calls for the abolition of the circumstantial evidence jury instruction. But

as the dissent recognizes, that view has been rejected by a majority of this Court no fewer

than five times. See Burleson v. State, 166 So. 3d 499, 514 (Miss. 2015) (Pierce, J.,

dissenting); Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss. 1992) (Pittman, J.,

concurring); King v. State, 580 So. 2d 1182, 1192 (Miss. 1991) (Banks, J., concurring)

Montgomery v. State, 515 So. 2d 845, 849 (Miss. 1987) (Robertson, J., concurring); Mack

v. State, 481 So. 2d 793, 796 (Miss. 1985) (Robertson, J., concurring). And “‘[a] former

decision of this court should not be departed from[] unless the rule therein announced is not

only manifestly wrong, but mischievous.’” McDaniel v. Cochran, 158 So. 3d 992, 1000

(Miss. 2014) (quoting Caves v. Yarbrough, 991 So. 2d 142, 151 (Miss. 2008)). See Stone

v. Reichman-Crosby Co., 43 So. 2d 184, (Miss. 1949) (“‘[I]t is the manifest policy of our

courts to hold the doctrines of stare decisis subordinate to legal reason and to depart

therefrom when such departure is necessary to avoid the perpetuation of pernicious error.’”)

(quoting 14 Am. Jur. 2d § 124).

¶22.   This Court long has stood by the precept that, “[w]here the State ‘is without a

confession and wholly without eyewitness testimony to the gravamen of the offense charged,’

the defendant is entitled to an instruction requiring the jury to ‘exclude every other

reasonable hypothesis other than that of guilt before a conviction can be had.’” Burleson v.

State, 166 So. 3d 499, 509 (Miss. 2015) (quoting Mack v. State, 481 So. 2d 793, 795 (Miss.

1985); Pettus v. State, 200 Miss. 397, 411, 27 So. 2d 536, 540 (1946)). Nevertheless, the

dissent calls for its abolition and argues that the rule’s application is mischievous. It



                                             10
undergirds this claim by opining that the trial court’s failure to give a circumstantial evidence

instruction is subject to a harmless error analysis.

¶23.   The dissent argues that, “the United States Supreme Court says mandatory reversal

applies only to a very limited class of fundamental constitutional errors—not one of which

is in play here.” Diss. Op. ¶ 47 (citing Neder v. United States, 527 U.S. 1, 7, 119 S. Ct. 1827,

144 L. Ed. 2d 35 (1999) (holding that the failure to instruct the jury on every element of the

crime charged is subject to harmless error analysis). But in Neder, the United States Supreme

Court “held it to be harmless error when the defendant was found guilty of tax crimes despite

the fact that the jury was not instructed on one element of the offense—the materiality of

false statements made by the defendant.” Harrell v. State, 134 So. 3d 266, 271 (Miss. 2014)

(citing Neder, 527, U.S. at 6-7, 10). The Neder Court was not asked whether failure of the

trial court to give a circumstantial evidence instruction in a circumstantial evidence case

could be subject to harmless error analysis.

¶24.   In Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss. 1992), this Court declined to

abolish the circumstantial evidence instruction, holding that, while “[a] number of other

jurisdictions have abolished the circumstantial evidence instruction, [] we are of the opinion

that there are still times and cases where, to secure protection of the accused’s right to a fair

trial, the instruction should be given.” The dissent’s statement that the Stringfellow majority

“dodged the issue” of harmless error misrepresents that Court’s holding. Diss. Op. ¶ 49.

¶25.   The Stringfellow Court declined to apply harmless error and held that the

circumstantial evidence instruction should have been given “to secure protection of the



                                               11
accused’s right to a fair trial . . . .” Stringfellow, 595 So. 2d at 1322. So it is not accurate, as

the dissent avers, that our cases apply “circular reasoning” and they deduce that “the failure

to give a circumstantial-evidence instruction must be harmful because a majority of this

Court insists circumstantial-evidence instructions are required.” Diss. Op. ¶ 49.

¶26.   Circumstantial evidence instructions exist to ensure that, in cases in which the

prosecution is without either a confession from the defendant or an eyewitness to the

gravamen of the offense charged, a fair trial is had. A set of facts could arise in which this

Court finds the trial court’s failure to give a circumstantial evidence jury instruction in a

circumstantial evidence case to have been harmless error. But today’s case does not present

such a fact pattern and we decline to speculate about a hypothetical scenario.

¶27.   The dissent continues: “[T]he [United States] Supreme Court says circumstantial-

evidence instructions are unnecessary if the jury is appropriately instructed on the State’s

burden of proof—‘If the jury is convinced beyond a reasonable doubt, we can require no

more.’” Diss. Op. ¶ 55. (quoting Holland v. United States, 348 U.S. 121, 140, 75 S. Ct. 127,

99 L. Ed. 150 (1954)). But it does not follow that United States Supreme Court precedent

compels state courts “to follow the minimum standard that the federal government has set

for itself. We are empowered by our state constitution to exceed federal minimum standards

of constitutionality . . . .” Downey v. State, 144 So. 3d 146, 151 (Miss. 2014) (holding that

“[b]ecause . . . Downey invoked her right to counsel . . . and . . . her Miranda rights were

violated when the interrogating officer continued his questioning without having her attorney




                                                12
present, the trial judge abused his discretion by denying Downey’s motion to suppress . . .

.”).

¶28.   In cases in which the State has neither a confession from the defendant nor an

eyewitness to the gravamen of the offense charged, it can hardly be said that requiring the

State to exclude every reasonable hypothesis consistent with innocence is a more onerous

burden. Circumstantial evidence benefits the State by allowing the jury to find the defendant

guilty beyond a reasonable doubt by inference, as long as the State’s evidence excludes every

reasonable hypothesis consistent with innocence. Able prosecutors know that a solid

circumstantial evidence case is to be preferred over one with an abundance of inebriated, or

otherwise dubious, eyewitnesses, or one in which there is a shaky confession of questionable

veracity or uncertain admissibility.

¶29.   The dissent argues that the failure to instruct the jury in this case amounted to

harmless error because the evidence against Moore was overwhelming. Diss. Op. ¶ 56. The

dissent goes on to accuse the Court of ignoring the harmless error standard: “To completely

duck these facts and the overwhelming evidence of Moore’s guilt, giving absolutely no

analysis of any resulting harm from excluding the instruction, rings hollow and very

dismissive.” Diss. Op. ¶ 36.

¶30.   The jury was instructed on first degree murder, second degree murder, and

manslaughter. The jury did not find Moore guilty beyond a reasonable doubt of first degree

murder.3 Instead, the jury found Moore guilty beyond a reasonable doubt of second degree

       3
         Mississippi Code Section 97-3-19(1)(a) defines “first-degree murder” as: “[t]he
killing of a human being without the authority of law by any means or in any manner . . .

                                             13
murder.4 We decline to hypothesize whether the failure of the trial court to give a

circumstantial evidence instruction contributed to the jury’s finding Moore guilty of a lesser

crime than that charged in the indictment, first degree murder. Clearly, the jury was not

convinced that the State had proven, beyond a reasonable doubt, that the shooting was “done

with deliberate design to effect” Smith’s death.

                                      CONCLUSION

¶31.   Because the trial court erred by denying Moore the circumstantial evidence jury

instruction to which he was entitled, we reverse his conviction and remand the case to the

Circuit Court of DeSoto County for a new trial.

¶32.   REVERSED AND REMANDED.

       WALLER, C.J., KING, COLEMAN AND ISHEE, JJ., CONCUR. MAXWELL,
J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH,
P.J., AND BEAM, J. CHAMBERLIN, J., NOT PARTICIPATING.

       MAXWELL, JUSTICE, DISSENTING:

¶33.   The majority throws out the jury’s guilty verdict and renders what is tantamount to an

automatic reversal of Moore’s second degree murder conviction based solely on a harmless


[w]hen done with deliberate design to effect the death of the person killed, or of any human
being . . . .” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014).
       4
           Mississippi Code Section 97-3-19(1)(b) defines “second-degree murder” as:

       The killing of a human being without the authority of law by any means or in
       any manner . . . [w]hen 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 . . . .

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

                                             14
instructional error. With respect for the majority, I find this approach is flawed, manifestly

wrong, and results in a mischievous outcome.5 Because there is no reversible error, I

respectfully dissent.

¶34.   First, the majority acts on a completely false premise—that there is an “arguably

stricter burden of proof placed upon the state in circumstantial evidence cases.”6 This is

simply untrue. In reality, as hopefully we can all agree, the State’s constitutionally required

burden of proof in all criminal cases is the same—beyond a reasonable doubt.7

¶35.   Second, mandating what is essentially automatic reversal for an instructional error,

which has zero effect on a jury’s verdict is illogical and impractical. Until today, this Court

has consistently and very clearly “rejected the proposition that the failure to give [a

circumstantial evidence] instruction can be harmless error.”8 But the majority now concedes

this stringent view was incorrect. It now admits that failure to give a circumstantial-evidence

instruction—just like any other nonstructural trial error—can be subject to harmless-error

analysis.9 While I do commend the majority for recognizing our precedent requiring

automatic reversal was wrong, it appears the majority’s newfound appreciation of the


       5
           See Forest Prod. & Mfg. Co. v. Buckley, 107 Miss. 897, 899, 66 So. 279, 280
(1914).
       6
           Fisher v. State, 481 So. 2d 203, 214 (Miss. 1985) (emphasis added).
       7
       E.g., Burleson v. State, 166 So. 3d 499, 511-12 (Miss. 2015) (applying beyond-a-
reasonable-doubt standard to a circumstantial-evidence case).
       8
        Id., 166 So. 3d at 511 (citing McInnis v. State, 61 So. 3d 872, 875 n.5 (Miss. 2011);
Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss. 1992)).
       9
           Maj. Op. ¶ 24.

                                              15
harmless error doctrine is, in application, little more than lip service. I say this because

instead of explaining why and to what extent Moore was harmed by the lack of a

circumstantial-evidence instruction, the majority simply decrees “today’s case does not

present such a fact pattern.”10 As the majority puts it, “we decline to speculate about a

hypothetical scenario.”11

¶36.   But with respect for the majority—this Court is not facing a hypothetical scenario.

This is a real murder case. And a unanimous, twelve-member jury found Moore guilty of

murdering Smith—a real person. To completely duck these facts and the overwhelming

evidence of Moore’s guilt, giving absolutely no analysis of any resulting harm from

excluding the instruction, rings hollow and very dismissive. It is not the way this Court or

any other American appellate court applies harmless-error review. And I do not join in this

approach. I would instead apply our traditional harmless-error standard, under which we

examine whether the defendant was harmed sufficiently to overturn the jury’s verdict.

¶37.   A third truth is that the United States Supreme Court, every single federal court, and

the vast majority of State courts, agree that refusal to give a circumstantial-evidence

instruction is not even error at all. And numerous Justices on this Court have heavily




       10
            Id. at ¶ 26.
       11
            Id.

                                             16
criticized and called for the abolishment of circumstantial-evidence instructions12—for good

reason.

¶38.   The bottom line is that Mississippi law says “[c]ircumstantial evidence is entitled to

the same weight and effect as direct evidence[.]”13 So if a jury is properly instructed on the

State’s burden of proof, as it was here, no more stringent instruction is required.14

¶39.   For these reasons, I would affirm Moore’s conviction and sentence.

       I.       The Justification for Mandating a Circumstantial-Evidence
                Instruction is Based on a False Premise

¶40.   Without question, this Court’s current view of circumstantial-evidence instructions

is based on a completely false premise—that there is an “arguably stricter burden of proof

placed upon the state in circumstantial evidence cases.” Fisher v. State, 481 So. 2d 203, 214

(1985) (emphasis added) (citing Flanagin v. State, 473 So. 2d 482, 485 (Miss. 1985); Hester

v. State, 463 So. 2d 1087, 1093-94 (Miss. 1985)). This notion is manifestly wrong.

¶41.   In truth, there is just one burden of proof in all criminal cases. The State’s burden is

to prove the defendant guilty beyond a reasonable doubt. More than twenty-five years ago,


       12
         Justice Pierce noted “previous members of this Court have recognized and
expressed[] this instruction is a mere restatement of the reasonable-doubt burden of proof
and serves no real purpose, and I am in accord with those who have called for its abolition.”
Burleson, 166 So. 3d at 514 (Pierce, J., dissenting) (citing Mack v. State, 481 So. 2d 793,
796 (Miss. 1985) (Robertson, J., concurring); Montgomery v. State, 515 So. 2d 845, 849
(Miss. 1987) (Robertson, J., concurring); King v. State, 580 So. 2d 1182, 1192 (Miss. 1991)
(Banks, J., concurring); Stringfellow, 595 So. 2d at 1322 (Pittman, J., concurring)).
       13
            Cardwell v. State, 461 So. 2d 754, 760 (Miss. 1984).
       14
          Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 137, 99 L. Ed. 150
(1954). Cf. Stringfellow, 595 So. 2d at 1322 (acknowledging beyond-a-reasonable-doubt
instruction is no less stringent than a circumstantial-evidence instruction).

                                             17
Justice Banks pointed out the flawed logic of claiming a stricter, more enhanced burden of

proof in circumstantial-evidence cases:

       The concept of proof beyond a reasonable doubt is fully embodied in our U.S.
       Constitution. In Re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368
       (1970). In Winship, the Supreme Court held that the reasonable doubt
       standard was constitutionally required under the Due Process Clause. In
       making this holding, the Court reviewed: the acceptance of the practice in
       common law jurisdictions, the long use of the standard by the Court, and the
       need to reduce the risk of convicting the innocent. 397 U.S. at 361-64, 90 S.
       Ct. at 1071-73, 25 L. Ed. 2d at 373-75.

       No court, however, has found a constitutional basis for a heightened burden
       of proof in circumstantial evidence cases. Whether proof is made by
       circumstantial or by direct evidence, the state must show guilt beyond a
       reasonable doubt.

King v. State, 580 So. 2d 1182, 1193 (Miss. 1991) (Banks, J concurring) (emphasis added).

Justice Pierce also noted this fallacy, lamenting that “the most problematic aspect of the

[circumstantial-evidence] instruction is that the additional ‘reasonable hypothesis’ language

suggests to the jury that the State is held to a distinct and higher burden of proof in cases

lacking a confession from the defendant or eyewitness testimony to the gravamen of the

offense.” Burleson v. State, 166 So. 3d 499, 517 (Miss. 2015) (Pierce, J., dissenting).

¶42.   Again, it is without question that the State’s burden of proof is not raised when

circumstantial evidence is admitted against the accused. See Jackson v. Virginia, 443 U.S.

307, 315, 99 S. Ct. 2781, 2787, 61 L. Ed. 560 (1979). As “long as the court instructs the jury

on the necessity that the defendant’s guilt be established beyond a reasonable doubt, the

Constitution does not require that any particular form of words be used in advising the jury

of the government’s burden of proof.” Burleson, 166 So. 3d at 517 (Pierce, J., dissenting)



                                             18
(quoting Victor v. Nebraska, 511 U.S. 1, 5, 114 S. Ct. 1239, 1243, 127 L. Ed. 2d 583

(1993)).

¶43.   While the majority of this court apparently prefers and demands a higher burden of

proof in circumstantial-evidence-based criminal cases—I cannot join them. Because the

Constitution does not recognize and no American court utilizes a “beyond, beyond a

reasonable doubt” standard in criminal cases, this false premise should be departed from.15

       II.    Any Instructional Error Was at Most Harmless

              A.      Harmless-Error Review Applies to Nonstructural Errors

¶44.   Furthermore, in the majority’s view, the trial judge’s failure to correctly sift through

the eighteen different tests16 for discerning if a circumstantial-evidence instruction is needed

was not just error but requires reversal. The majority reaches this conclusion—undoing the

jury’s guilty verdict—without even asking if the purported error had any effect whatsoever

on the verdict.

¶45.   Instead, it says “[a] set of facts could arise in which this Court finds the trial court’s

failure to give a circumstantial evidence jury instruction in a circumstantial evidence case to



       15
          I do not take this position lightly. I wholeheartedly agree with and abide by the
doctrine of stare decisis, under which, “[a] former decision of this court should not be
departed from, unless the rule therein announced is not only manifestly wrong, but
mischievous.” Forest Prod. & Mfg. Co., 107 Miss. at 899, 66 So. at 280.
       16
         Justice Robertsons’s “[c]areful, but not exhaustive, research reveal[ed] . . . no less
than eighteen articulations of the test for determining whether and when the circumstantial
evidence burden of proof rule should apply.” Montgomery, 515 So. 2d at 849-850
(Robertson, J., concurring). Apparently, the majority adds a nineteenth articulation in this
case—any inference, no matter how compelling, makes the evidence merely circumstantial.


                                              19
have been harmless error. But today’s case does not present such a fact pattern and we

decline to speculate about a hypothetical scenario.” Maj. Op. ¶ 26. Again, this is not a

hypothetical. And merely saying harmless-error review may be appropriate in some

circumstantial-evidence cases, but not this one, is not engaging in harmless-error review. It

is conceding our past standard is wrong, but still employing it.

¶46.   This methodology runs afoul of how this Court, and all other American appellate

courts, typically review nonstructural, preserved trial errors. In fact, it is totally opposite.

The United States Supreme Court has long recognized that “‘[a] defendant is entitled to a fair

trial but not a perfect one,’ for there are no perfect trials.” Brown v. United States, 411 U.S.

223, 231, 93 S. Ct. 1565, 1570, 36 L. Ed. 2d 208 (1973) (quoting Bruton v. United States,

391 U.S. 123, 135, 88 S. Ct. 1620, 1627, 20 L. Ed. 2d 476 (1968)). Any lawyer who has ever

tried a jury trial, and any judge who has ever presided over one, will agree with this notion.

That is why this Court refuses to “set[] aside convictions for small errors or defects that have

little, if any, likelihood of having changed the result of the trial.” Smith v. State, 136 So. 3d

424, 435 (Miss. 2014) (quoting Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827,

17 L. Ed. 2d 705 (1967)). For nonstructural errors, like the one before us, we employ

harmless-error analysis. Brown v. State, 995 So. 2d 698, 704 (Miss. 2008) (citing

Washington v. Recuenco, 548 U.S. 212, 218, 126 S. Ct. 2546, 2551, 165 L. Ed. 2d 466

(2006)). See also Williams v. State, 991 So. 2d 593, 599 (Miss. 2008) (quoting Tran v.

State, 962 So. 2d 1237, 1247 (Miss. 2007)) (“Harmless-errors are those which in the setting

of a particular case are so unimportant and insignificant that they may, consistent with the



                                               20
Federal Constitution, be deemed harmless, not requiring the automatic reversal of the

conviction.”).

¶47.   This method of appellate review is not novel. Nor is it of recent vintage. Rather,

“[p]erforming harmless-error review is commonplace in appellate courts . . . .” Gillett v.

State, 148 So. 3d 260, 266 (Miss. 2014). It is widely utilized by all appellate courts, state

and federal, and is even codified in Mississippi’s procedural rules.17 And in addition to

typical trial errors, the United States Supreme Court, and all appellate courts, including this

one, even apply harmless-error review to a host of Constitutional-rights violations.18 Indeed,

the United States Supreme Court says mandatory reversal applies only to a very limited class




       17
          Under Rule 30.1(c) of the Mississippi Rules of Criminal Procedure, to be
reversible, a trial-court error must be prejudicial. See M.R.Cr.P. 30.1(c) (“If no prejudicial
error be found, the circuit court [sitting as appellate court] shall affirm and enter judgment
in like manner as affirmances in the Supreme Court.”). Similarly, in civil trials:

       No error in either the admission or the exclusion of evidence and no error in
       any ruling or order or in anything done or omitted by the court or by any of the
       parties is ground for granting a new trial or for setting aside a verdict or for
       vacating, modifying, or otherwise disturbing a judgment or order, unless
       refusal to take such action appears to the court inconsistent with substantial
       justice. The court at every stage of the proceeding must disregard any error or
       defect in the proceeding which does not affect the substantial rights of the
       parties.

M.R.Civ.P. 61.
       18
          While “there are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error,” Chapman, 386 U.S. at 23, 87 S. Ct. at
827-28, “most constitutional errors can be harmless.” Neder v. United States, 527 U.S. 1,
8, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (citing Arizona v. Fulminante, 499 U.S.
279, 306, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991)).

                                              21
of fundamental constitutional errors—not one of which is in play here.19 Neder v. United

States, 527 U.S. 1, 7, 119 S. Ct. 1827, 1833, 144 L. Ed. 2d 35 (1999) (citing Arizona v.

Fulminante, 499 U.S. 279, 309, 111 S. Ct. 1246, 1265, 113 L. Ed. 2d 302 (1991)).

¶48.   Because here there is no structural error, the only logical standard of review is

harmless-error review. This was our approach in States v. State, 88 So. 3d 749, 758 (Miss.

2012), where we held an erroneous jury instruction (flight instruction) was harmless error.

And we have applied the harmless-error doctrine to a slew of other trial errors and

constitutional violations.20




       19
          Such “structural errors”—as they are called—implicate basic protections, without
which “a criminal trial cannot reliably serve its function as a vehicle for determination of
guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.”
Fulminante, 499 U.S. at 310, 111 S. Ct. at 1265 (quoting Rose v. Clark, 478 U.S. 570, 577-
78, 106 S. Ct. 3101, 3106, 92 L. Ed. 2d 460 (1986)). The United States Supreme Court has
found structural errors, however, only in a very limited class of cases: Sullivan v. Louisiana,
508 U.S. 275, 113 S. Ct. 2078, 124 L. Ed. 2d 182 (1993) (an erroneous reasonable-doubt
instruction); Vasquez v. Hillery, 474 U.S. 254, 106 S. Ct. 617, 88 L. Ed. 2d 598 (1986)
(unlawful exclusion of members of the defendant’s race from a grand jury); Waller v.
Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984) (denial of the right to a
public trial); McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)
(denial of the right to self-representation at trial); Gideon v. Wainwright, 372 U.S. 335, 83
S. Ct. 792, 9 L. Ed. 2d 799 (1963) (the total deprivation of the right to counsel at trial); and
Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927) (a biased judge).
       20
         Harmless-error review was applied in the following cases: Avery v. State, 119 So.
3d 317, 320 (Miss. 2013) (failure to sequester a witness); Young v. State, 99 So. 3d 159, 163
(Miss. 2012) (denial of impeachment of a hostile witness); Conners v. State, 92 So. 3d 676,
684 (Miss. 2012) (Confrontation-Clause violation); White v. State, 48 So. 3d 454, 458
(Miss. 2010) (admission of hearsay); Pitchford v. State, 45 So. 3d 216, 235 (Miss. 2010)
(prosecutorial misconduct); Walton v. State, 998 So. 2d 971, 976 (Miss. 2008) (admission
of statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.
2d 694 (1966)).

                                              22
¶49.   I do recognize the Stringfellow majority refused to find harmless error. Stringfellow

v. State, 595 So. 2d 1320, 1322 (Miss. 1992). But their refusal is as puzzling as the

majority’s here. In Stringfellow, there was zero discussion of how the error substantially

affected the verdict.21 The Stringfellow majority simply dodged the issue. See id.

(rationalizing that, because “it is the conclusion of the majority that if the instruction is to be

retained, it should have been given in this case”). The same analytical hole also is found in

later cases that rely on Stringfellow’s no-harmless-error holding, specifically Burleson and

McInnis, which both apply the same circular reasoning—that the failure to give a

circumstantial-evidence instruction must be harmful because a majority of this Court insists

circumstantial-evidence instructions are required. Burleson, 166 So. 3d at 511; McInnis v.

State, 61 So. 3d 872, 875 n.5 (Miss. 2011).             The majority here repeats this same

chorus—generally insisting the instruction is necessary “to secure protection of the accused’s

right to a fair trial . . . .” Maj. Op. ¶ 24 (quoting Stringfellow, 595 So. 2d at 1322).

¶50.   But if a fair trial is really the majority’s goal, how can it say the trial was unfair when

Mississippi courts recognize “[c]ircumstantial evidence is entitled to the same weight and

effect as direct evidence”? Cardwell v. State, 461 So. 2d 754, 760 (Miss. 1984). Surely its

answer is not by raising the bar and imposing a “stricter” burden of proof than the

constitutionally mandated reasonable-doubt standard? Or creating a new “because we say

so” take on harmless-error review?



       21
         In fact, the opinion suggests the opposite—there was no harm. See Stringfellow,
595 So. 2d at 1332 (recognizing that a beyond-a-reasonable-doubt instruction is “practically
speaking, no less stringent than a circumstantial[-evidence] instruction”).

                                                23
¶51.   Because the majority’s approach is not legally sound and is not how this Court, or any

appellate court, analyzes nonstructural errors, we should instead apply traditional harmless-

error analysis.

              B.     Harmless-Error Review and the Evidence

¶52.   Utilizing harmless-error review, it cannot reasonably be argued that giving a

circumstantial-evidence instruction would have, in “any[] likelihood . . . changed the result

of the trial.” Smith, 136 So. 3d at 435 (quoting Chapman, 386 U.S. at 22).

¶53.   First, the evidence supporting the verdict was overwhelming. Video evidence,

eyewitness testimony, forensic evidence, and Moore’s own damning actions doomed him.

The day of the shooting, Moore had accused Smith of having an affair with his wife. Moore

traveled to Smith’s workplace. And a business surveillance video captured Moore sitting in

his SUV in the parking lot awaiting Smith. It showed the confrontation between Moore and

Smith, then caught Moore climbing into his vehicle and Smith his. It shows Moore’s SUV

rapidly following Smith’s out of the parking lot. Eyewitnesses saw Moore’s vehicle pull next

to Smith’s, then Smith’s vehicle careen out of control. Another witness heard the fatal

gunshots ring out. After the shooting, Moore “picked up speed and ran the red light.” In

doing so, he almost crashed into another vehicle. Once Smith’s vehicle stopped, Smith’s

dead body confirmed what everyone had just seen and heard—Moore had pulled alongside

Smith and shot him to death. Additionally, when Moore turned himself in, eight hours later,

he was driving a different vehicle and had changed into different clothes. Officers

determined the interior and exterior of the SUV Moore had driven in the video had just been



                                             24
wiped down with cleaning agents. Officers also found large jugs of cleaning materials in

Moore’s SUV.

¶54.   Simply put, in light of this overwhelming evidence of guilt, the lack of a

circumstantial-evidence instruction was insignificant. Still, the majority chides this writer

for conducting harmless-error review, analyzing the overwhelming evidence of Moore’s

guilt, and considering the jury instructions as a whole. But that is exactly how this Court

reviews nonstructural errors, even where juries have found defendants guilty of lesser

offenses. See, e.g., Porter v. State, 551 So. 2d 104, 105 (Miss. 1989) (holding evidentiary

error was harmless in light of overwhelming evidence of guilt, which was sufficient to

convict of lesser-included offense of manslaughter); Kelly v. State, 463 So. 2d 1070, 1074

(Miss. 1985) (applying harmless-error review to a clearly erroneous manslaughter instruction

and holding omission was harmless based on the evidence). See also Newell v. State, 49 So.

3d 66, 73-74 (Miss. 2010) (holding there is no reversible error if all “all instructions taken

as a whole fairly, but not necessarily perfectly,” announce the applicable law).

¶55.   Furthermore, the jury was properly instructed on the burden of proof. And the

Supreme Court says circumstantial-evidence instructions are unnecessary if the jury is

appropriately instructed on the State’s burden of proof—“If the jury is convinced beyond a

reasonable doubt, we can require no more.” Holland v. United States, 348 U.S. 121, 140,

75 S. Ct. 127, 138, 99 L. Ed. 150 (1954). This Court has long recognized that a beyond-a-

reasonable-doubt instruction meets the same stringent constitutional bar as a circumstantial-

evidence instruction. Stringfellow, 595 So. 2d at 1322 (acknowledging that “an instruction



                                             25
to a jury that it must find an accused guilty beyond reasonable doubt is, practically speaking,

no less stringent than a circumstantial instruction requiring the jury to find the accused’s guilt

beyond a reasonable doubt and ‘to the exclusion of every reasonable hypothesis other than

that of guilt’”). So there is no negative impact on a jury’s verdict when a beyond-a-

reasonable-doubt instruction is given, as it was here.

¶56.   For these reasons, based on the giving of a reasonable-doubt instruction and the

overwhelming evidence of Moore’s guilt, there was no substantive harm.

       III.    Because the Law Makes No Distinction Between “Direct” and
               “Circumstantial” Evidence, a Separate Circumstantial-Evidence
               Instruction Should Not Be Required

¶57.   As already mentioned, another reality under Mississippi law is that “circumstantial

evidence is not inferior to direct evidence when all the facts are considered.” Bogard v.

State, 233 So. 2d 102, 105 (Miss. 1970) (emphasis added). To the contrary, in the eyes of

our law, “[c]ircumstantial evidence is entitled to the same weight and effect as direct

evidence.” Cardwell, 461 So. 2d at 760. And “this Court has upheld convictions based

solely on circumstantial evidence.” Id.

¶58.   That is why the Supreme Court has explained, when compared to direct evidence,

“[c]ircumstantial evidence in this respect is intrinsically no different[.]” Holland, 348 U.S.

121 at 140, 75 S. Ct. at 137. Because the burden of proof in a circumstantial-evidence case

is the same as in any criminal case—guilty beyond a reasonable doubt—“where the jury is

properly instructed on the standards for reasonable doubt, such an additional instruction on

circumstantial evidence is confusing and incorrect[.]” Id. at 139-40, 75 S. Ct. at 137. And



                                               26
I see no rational reason this Court should not join all federal courts and a majority of state

courts that have abolished the circumstantial-evidence instruction requirement.22


       22
          I am not the first justice on this Court to point out that no federal court and most
state courts have abolished the circumstantial-evidence instruction. Thirty years ago, Justice
Robertson cited not only the United States Supreme Court’s Holland opinion but also listed
eleven states’ cases as examples of the abolishment trend. Mack, 481 So. 2d at 797
(Robertson, J., concurring) (citing Holland, 348 U.S. at 139-140, 75 S. Ct. at 137-138;
Rumph v. State, 687 S.W.2d 489, 493 (Tex. Ct. App. 1985); State v. Brown, 100 N.M. 726,
676 P.2d 253, 255 (1984); State v. Lerch, 296 Or. 377, 677 P.2d 678, 683-90 (1984); State
v. Bush, 58 Hawaii 340, 569 P.2d 349 (1977); State v. Bell, 90 N.M. 134, 560 P.2d 925, 928
(1977); State v. Gosby, 85 Wash. 2d 758, 539 P.2d 680 (1975); Blakely v. State, 542 P.2d
857 (Wyo. 1975); State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974); People v. Bennett,
183 Colo. 125, 131 n.1, 515 P.2d 466, 469 n.1 (1973); State v. Harvill, 106 Ariz. 386, 476
P.2d 841, 844 (1970); Allen v. State, 420 P.2d 465 (Alaska 1966); Holland v.
Commonwealth, 323 S.W.2d 411, 413 (Ky. 1959)).
        And in 2014, Justice Piece added twenty-one more states and even more cases to that
list. Burleson, 166 So. 3d at 515 n.4 & 5 (Pierce, J., dissenting) (citing federal cases United
States v. Johnson, 713 F.2d 633, 653 (11th Cir. 1983); United States v. Atnip, 374 F.2d
720, 722 (7th Cir. 1967); Wood v. United States, 361 F.2d 802, 806 (8th Cir. 1966); Dirring
v. United States, 328 F.2d 512, 515 (1st Cir. 1964); Strangway v. United States, 312 F. 2d
283, 285 (9th Cir.1963); Hunt v. United States, 316 F.2d 652, 654 (D.C. Cir. 1963); United
States v. Thomas, 303 F.2d 561, 563 (6th Cir. 1962); United States v. Moia, 251 F.2d 255,
258 (2d Cir. 1958); Corbin v. United States, 253 F.2d 646, 649 (10th Cir. 1958); United
States v. Allard, 240 F.2d 840, 841 (3d Cir. 1957); Brewer v. United States, 224 F.2d 189,
191 (5th Cir. 1955); and state cases State v. Logan, 747 S.E.2d 444, 452 (S.C. 2013); State
v. Dorantes, 331 S.W.3d 370 (Tenn. 2011); Ex parte Carter, 889 So. 2d 528 (Ala. 2004);
State v. Humpherys, 8 P.3d 652 (Idaho 2000); State v. Guthrie, 461 S.E.2d 163 (W. Va.
1995); State v. Grim, 854 S.W.2d 403 (Mo.1993); State v. Jenks, 574 N.E.2d 492, 503
(Ohio 1991), superseded by constitutional amendment on other grounds as stated in State
v. Smith, 684 N.E.2d 668 (Ohio 1997); Commonwealth v. Sanders, 551 A.2d 239 (Pa.
1988); People v. Bryant, 499 N.E.2d 413 (Ill. 1986); State v. Adcock, 310 S.E.2d 587 (N.C.
1984); Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1983); State v. Smith, 434 A.2d
664, 668 (Conn. 1981); State v. Derouchie, 440 A.2d 146 (Vt. 1981); Matter of Use by
Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So. 2d 594 (Fla. 1981);
State v. Eagle, 611 P.2d 1211 (Utah 1980); State v. Turnipseed, 297 N.W.2d 308 (Minn.
1980); State v. O’Connell, 275 N.W.2d 197 (Iowa 1979); State v. Roddy, 401 A.2d 23 (R.I.
1979); State v. Bell, 560 P.2d 925 (N.M. 1977); State v. Bush, 569 P.2d 349 (Haw. 1977);
State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Bails v. State, 545 P.2d 1155 (Nev.
1976); State v. Gosby, 539 P.2d 680 (Wash. 1975); Blakely v. State, 542 P.2d 857 (Wyo.

                                              27
¶59.   As Justice Robertson aptly put it, “the law should not impose a distinction between

direct and circumstantial evidence where, at least in the present context, none rationally

exists.” Mack v. State, 481 So. 2d 793, 797 (Miss. 1985) (Robertson, J., concurring).

Instead, the jury should be “instructed that the law makes no distinction between direct and

circumstantial evidence but simply requires that, before convicting a defendant, the jury be

satisfied of the defendant’s guilt beyond a reasonable doubt from all the evidence in the

case.” Id. In short, jurors should not be concerned about whether evidence is “direct

evidence” or “circumstantial evidence.” They should consider and weigh all of the evidence

presented.

¶60.   Here, the jury was instructed that, to convict Moore, it had to be satisfied that Moore

was guilty beyond a reasonable doubt. Thus, the jury was properly instructed, eliminating

the need for a new trial. Instead of reversing Moore’s second-degree murder conviction and

remanding for a new trial, this Court should affirm.

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




1975); People v. Austin, 523 P.2d 989 (Colo. 1974); State v. Draves, 524 P.2d 1225 (Or.
Ct. App. 1974); State v. Wilkins, 523 P.2d 728 (Kan. 1974); Henry v. State, 298 A.2d 327
(Del. 1972); Murray v. State, 658 S.W.2d 438, 442-43 (Ark. 1971)).

                                             28
