        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-01527-COA

RODISE JENKINS A/K/A RODISE JENKINS, III                                  APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                        09/28/2016
TRIAL JUDGE:                             HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT,
                                         SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: SCOTT STUART
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED: 02/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

      GRIFFIS, P.J., FOR THE COURT:

¶1.   Rodise Jenkins was convicted of murder by deliberate design in violation of

Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2017). He was sentenced to life

in the custody of the Mississippi Department of Corrections. On appeal, he argues that the

jury was improperly instructed and that evidence of the victim’s criminal history was

improperly excluded. We find no error and affirm.

                                         FACTS

¶2.   Hazel Turner lived in Biloxi, Mississippi, with her boyfriend, Jenkins. Turner’s son,
Anthony Wheaton, also lived in Biloxi. On October 11, 2014, at 2 a.m., Nyra Jenkins,

Jenkins’s ex-wife, called Jenkins’s telephone, and Turner answered. Nyra proceeded to

harass Turner over the phone as she had done in the past. Once Jenkins arrived home from

work about 5 a.m., he and Turner spoke about Nyra and the possibility of filing for a

restraining order against her. Jenkins then called Nyra and spoke with her about the calls.

¶3.    Turner and Jenkins were upset over the Nyra situation and the harassing phone calls.

While Jenkins slept, Turner made three calls to different family members to talk, one of

whom was Wheaton. Shortly after 2 p.m. that same day, Turner and Jenkins were seated in

the kitchen talking when Wheaton walked into the house. Together in the kitchen, they

continued the conversation about Nyra and the possible restraining order. The conversation

grew more intense as Jenkins became agitated and no longer wished to discuss it with

Wheaton. The two stood up and faced each other. Turner sensed something was wrong and

jumped in between Jenkins and Wheaton to de-escalate the situation.

¶4.    While Wheaton and Turner moved toward the front porch, Jenkins left through the

back door of the house and headed toward his truck. Once at his truck, Jenkins realized he

had forgotten his wallet and keys inside. He grabbed his gun from the truck and walked

around to the front of the house where Wheaton and Turner were standing. Jenkins shot at

Wheaton three times, and hit him twice. Wheaton and Turner then ran into the house, and

Jenkins followed. Jenkins walked up to Wheaton and shot him two more times from close

range. Wheaton died as a result of multiple gunshot wounds.

¶5.    Turner then called 911 while Jenkins fled the scene. He was quickly apprehended and



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arrested without resistance.

                                         ANALYSIS

       I.     Whether it was error to refuse Jenkins’s proposed manslaughter
              instruction.

¶6.    Jenkins argues he was entitled to have the jury instructed on manslaughter. Jenkins

submitted proposed jury instruction D-16, which would have instructed the jury “that the

killing 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 the authority of law, and not [in]

necessary self[-]defense, shall be manslaughter.” He also submitted proposed instructions

D-15 to define “heat of passion” and D-17 to instruct the jury to proceed to consideration of

manslaughter if the jury found Jenkins not guilty of murder. All three instructions were

refused by the trial court on the ground that there was no evidence in the record to support

the assertion that Jenkins killed Wheaton in a state of violent and uncontrolled rage.

¶7.    It is well settled that jury instructions generally are within the discretion of the trial

court. Davis v. State, 18 So. 3d 842, 847 (¶15) (Miss. 2009) (citing Higgins v. State, 725 So.

2d 220, 223 (¶15) (Miss. 1998)). Further, jury instructions must be considered together:

       [i]n determining whether error lies in the granting or refusal of various
       instructions, the instructions actually given must be read as a whole. When so
       read, if the instructions fairly announce the law of the case and create no
       injustice, no reversible error will be found. There is no error if all instructions
       taken as a whole fairly, but not necessarily perfectly, announce the applicable
       rules of law.

Newell v. State, 49 So. 3d 66, 73-74 (¶20) (Miss. 2010) (quoting Rubenstein v. State, 941 So.

2d 735, 784-85 (¶224) (Miss. 2006)). Additionally, we have explained that “[a] defendant



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is entitled to have jury instructions given [that] present his theory of the case; however, this

entitlement is limited in that the court may refuse an instruction that incorrectly states the

law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.”

Hearn v. State, 3 So. 3d 722, 738 (¶45) (Miss. 2008) (quoting Chandler v. State, 946 So. 2d

355, 360 (¶21) (Miss. 2006)).

¶8.    A lesser-included-offense instruction should be denied only when the court finds that

“no reasonable jury could find the defendant guilty of the lesser[-]included offense,” and,

conversely, “not guilty of at least one essential element of the principal charge.” Harper v.

State, 478 So. 2d 1017, 1021 (Miss. 1985). In other words, “a lesser-included[-]offense

instruction is authorized if a rational or reasonable jury could find the defendant not guilty

of the principal offense in the indictment, but guilty of the lesser-included offense.” White

v. State, 842 So. 2d 565, 575 (¶30) (Miss. 2003). Therefore, “[o]nly in cases where the

evidence could only justify a verdict of murder, should a requested manslaughter instruction

be refused.” Ruffin v. State, 444 So. 2d 839, 840 (Miss. 1984).

¶9.    In his brief, Jenkins repeatedly relies on Turner’s trial testimony to show how she

observed Jenkins to be feeling. Turner—not Jenkins—testified that Jenkins seemed angry,

agitated, frustrated, mad, and even “beyond rage.” In fact, Jenkins repeatedly denied that he

was angry at all, much less “beyond rage.” Jenkins testified that he was afraid, terrified, in

fear for his life, and frightened, and that he acted to defend himself. This testimony was

inconsistent with the requirements for manslaughter.

¶10.   Jury instruction D-15 defined “heat of passion” as “a state of violent and



                                               4
uncontrollable rage engendered by a blow or certain other provocation given, but the passion

must be the result of immediate and reasonable provocation arising from words or acts of the

victim.” Wheaton confronted Jenkins at the home Jenkins shared with Turner. That fact is

not in dispute. After the confrontation in the kitchen, Jenkins fled the house and went to his

truck. He then realized he had forgotten his wallet and keys, but instead of returning through

the back door he had just exited in order to retrieve them, he grabbed a loaded gun and

headed to the front of the house in Wheaton’s direction.

¶11.   Jenkins then shot Wheaton. This act was not an immediate response to anything

Wheaton did. Jenkins testified that he was reacting out of fear to an action by Wheaton.

However, after the first three shots were fired at Wheaton, Jenkins did not gather his keys

and leave; instead, he followed Wheaton back into the house. Jenkins saw Wheaton on the

floor and shot him again, this time from close range, in the head.

¶12.   A significant amount of time passed between Jenkins’ and Wheaton’s interaction in

the kitchen and when Jenkins shot Wheaton. “[A] heat-of-passion jury instruction is not

warranted where a cooling-off period exists between the provocation and the killing.”

Sanders v. State, 103 So. 3d 775, 779 (¶13) (Miss. Ct. App. 2012). Although “[a] defendant

is entitled to have jury instructions given [that] present his theory of the case . . . ,” the court

may refuse the instruction if it “is without foundation in the evidence.” Hearn, 3 So. 3d at

738 (¶45). Because of the lack of an evidentiary foundation and the fact that no reasonable

jury could find the defendant guilty of the lesser-included offense of manslaughter, the trial

judge did not err when he refused the proposed jury instructions on manslaughter. Harper,



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478 So. 2d at 1021.

       II.    Whether the trial court erred in granting jury instruction S-9, an
              instruction on the use of deadly force.

¶13.   After the trial judge gave jury instruction S-9, Jenkins made a general objection to the

use of the instruction without any further explanation. There remains a question as to

whether the point was effectively preserved for appeal:

       [T]he rule of this Court [is] that no assignment of error based on the giving of
       an instruction to the jury will be considered on appeal unless specific objection
       was made to the instruction in the trial court stating the particular ground or
       grounds for such objection. However, in extreme cases, this Court may raise
       an objection to a jury instruction in order to prevent manifest injustice.

Watson v. State, 483 So. 2d 1326, 1329 (Miss. 1986). “A corollary of this is that a general

objection to a jury instruction does not suffice to preserve the issue for appeal.” Id. (citing

Holifield v. State, 431 So. 2d 929, 930 (Miss. 1983)). Therefore, since Jenkins failed to

adequately preserve this issue for appeal, it can only be analyzed under the plain-error

doctrine to determine if there was an error resulting in a manifest miscarriage of justice.

¶14.   To prevail under the plain-error doctrine, an appellant must show that an error

occurred that resulted in a “manifest miscarriage of justice.” Flora v. State, 925 So. 2d 797,

811 (¶42) (Miss. 2006). Jenkins failed to adequately preserve the issue for appeal with a

specific objection. However, notwithstanding the waiver, we still cannot conclude based

upon our review of the record that there was an error that caused manifest injustice.

¶15.   Jenkins alleges jury instruction S-9 contained an incorrect statement of the law and

subsequently diluted Jenkins’s evidence that he acted in self-defense. The instruction was

one of deadly force, which stated that when a person defends himself from an assault with

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a deadly weapon, he “acts at his peril.” Courts have condemned the phrase “acts at his own

peril” from future jury instructions as a confusing, incorrect statement of the law. Scott v.

State, 446 So. 2d 580, 583-84 (Miss. 1984). If a person is acting reasonably under the belief

his life is in danger, there is no peril. Id.

¶16.   Jenkins cites Flowers v. State, 473 So. 2d 164 (Miss. 1985), Johnson v. State, 908 So.

2d 758 (Miss. 2005), and Blunt v. State, 55 So. 3d 207 (Miss. Ct. App. 2011). “Flowers,

Johnson, and Blunt make it clear that the ‘at peril’ phrase is incorrect. That does not end the

inquiry, however. No supreme court decision holds that use of the ‘he acts at his own peril’

language in a self-defense jury instruction is ‘per se’ reversible error.” Rodgers v. State, 166

So. 3d 537, 547 (¶30) (Miss. Ct. App. 2014).

¶17.   In Flowers, unlike in the present case, “the State’s evidence was fraught with

inconsistencies”; the supreme court noted that “it [was] especially important in a factually

close case that the jury be properly instructed.” Flowers, 473 So. 2d at 166. The facts in the

present case are undisputed. The trial court instructed the jury numerous times on Jenkins’s

right to self-defense through instructions other than S-9. These instructions included

Jenkins’s right to stand his ground; his right to use a deadly weapon if the victim was larger

and stronger than Jenkins, even if the victim was without a weapon; as well as additional

general laws on self-defense.

¶18.   “In reviewing challenges to jury instructions, the instructions actually given must be

read as a whole. When so read, if the instructions fairly announce the law of the case and

create no injustice, no reversible error will be found.” Rodgers, 166 So. 3d at 544 (¶16)



                                                7
(quoting Johnson, 908 So. 2d at 764 (¶20)). “When considering the numerous and detailed

instructions on self-defense given the jury, the jurors could not have been in hopeless conflict

over the instructions.” Id. at 547 (¶30). We can find no evidence of a “manifest miscarriage

of justice” that seriously affects the fairness, integrity, or public reputation of the judicial

proceeding. Accordingly, we find no plain error.1

       III.     Whether the trial court erred in excluding evidence of Wheaton’s prior
                convictions.

¶19.   Jenkins argues that evidence of Wheaton’s prior convictions should have been

allowed into evidence in order to show Wheaton’s violent nature. Jenkins wished to lay the

basis for his self-defense claim using these prior convictions. “The standard of review

regarding admission or exclusion of evidence is abuse of discretion. We will not reverse the

trial court’s evidentiary ruling unless the error adversely affects a substantial right of a

party.” Mingo v. State, 944 So. 2d 18, 28 (¶27) (Miss. 2006) (citing Parks v. State, 884 So.

2d 738, 742 (¶9) (Miss. 2004)). See also M.R.E. 103(a).

¶20.   In 2010, Wheaton was convicted of carrying a concealed weapon. In 2012 and 2013,

Wheaton was convicted of domestic violence. During the State’s case-in-chief, Jenkins

offered authenticated court abstracts of these criminal judgments to prove Wheaton’s violent

       1
           As the supreme court has stated:

       We do not condone what we can only assume was the careless submission of
       the challenged jury instruction. The prosecution certainly acted at its peril in
       submitting an instruction containing language as strongly condemned as the
       “at peril” language in the challenged instruction. That it did not rise to the
       level of plain error in this case does not mean that it will not in a future case.

Rodgers, 166 So. 3d at 547 n. 2.

                                               8
nature. Jenkins first attempted to question Turner about the convictions in a proffer of the

evidence outside the jury’s presence, but the trial court sustained the State’s objection and

excluded the evidence. The trial court determined that because Turner was unaware of

exactly what Wheaton had been convicted of, did not press charges herself, was not certain

who did press charges, and never told Jenkins about the convictions, there was no evidence

to suggest that Jenkins knew of Wheaton’s prior convictions.

¶21.   It was not until after Jenkins testified and stepped down from the witness stand that

he offered the court abstracts of Wheaton’s convictions as a composite exhibit. The State

objected, and the trial court sustained the objection on the grounds that the convictions

occurred before Jenkins and Turner moved in together, they did not involve Jenkins as either

a party or a witness, and Jenkins did not have knowledge of the actual convictions.

¶22.   Ordinarily, specific instances of conduct may be used on both direct and cross-

examination when the pertinent trait of character being examined is an “essential element of

a charge, claim, or defense.” M.R.E. 405(b). Wheaton’s violent nature would be relevant

to Jenkins’s charge of murder and claim of self-defense. However, Jenkins failed to

introduce these specific instances during direct or cross-examination.

¶23.   Notwithstanding the procedural bar, we cannot find that Wheaton’s prior convictions

had any impact on Jenkins’s defense. Jenkins cites Heidel v. State, 587 So. 2d 835 (Miss.

1991), Green v. State, 614 So. 2d 926 (Miss. 1992), and Jordan v. State 211 So. 3d 713

(Miss. Ct. App. 2016), as examples of violent-crime convictions that have been overturned

because evidence of the victims’ violent nature was not admitted into evidence. However,



                                             9
each of these cases differs from the present case. In each Heidel, Green, and Jordan, the

defendant and the victim had a close, private relationship in which violence between the two

had occurred prior to their respective crimes. Here, the record does not support Jenkins’s

allegations of previous violent encounters with Wheaton, nor is there any evidence that

Jenkins had personal knowledge of previous violent encounters between Wheaton and

anyone else.

¶24.   In Heidel, Green, and Jordan, the defendants’ verdicts were reversed because they

were denied the opportunity to submit evidence of instances they personally experienced and

had personal knowledge of. Because Jenkins was unaware of Wheaton’s prior convictions,

he could not have considered Wheaton’s violent past when he decided to shoot Wheaton.

The convictions were irrelevant to Jenkins’s state of mind at the time he shot Wheaton and

his subsequent self-defense theory. Therefore, the trial court did not err when it excluded

evidence of Wheaton’s prior convictions.

       IV.     Whether Jenkins received ineffective assistance of counsel.

¶25.   Jenkins argues that he received ineffective assistance of counsel due to his trial

counsel’s failure to request and procure a manslaughter instruction on the theory of imperfect

self-defense. To prove ineffective assistance of counsel, Jenkins must show: (1) his

counsel’s performance was deficient, and (2) the deficient performance prejudiced his

defense.     Strickland v. Washington, 466 U.S. 668, 687 (1984).         There is “a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. To overcome this presumption, Jenkins “must show that there is a



                                             10
reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

¶26.   However, the Mississippi Supreme Court has stated:

       It is unusual for this court to consider a claim of ineffective assistance of
       counsel when the claim is made on direct appeal. This is because we are
       limited to the trial court record in our review of the claim[,] and there is
       usually insufficient evidence within the record to evaluate the claim. . . .
       [W]here the record cannot support an ineffective[-]assistance[-]of[-]counsel
       claim on direct appeal, the appropriate conclusion is to deny relief, preserving
       the defendant’s right to argue the same issue through a petition for
       post-conviction relief. This [c]ourt will rule on the merits on the rare occasions
       where (1) the record affirmatively shows ineffectiveness of constitutional
       dimensions, or (2) the parties stipulate that the record is adequate to allow the
       appellate court to make the finding without consideration of the findings of
       fact of the trial judge.

Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003) (internal citations and quotation

marks omitted). Since neither situation is present here, we decline to address this issue and

dismiss Jenkins’s ineffective-assistance-of-counsel claim without prejudice, so that he may

seek permission from the Mississippi Supreme Court to raise this issue in a

post-conviction-relief petition, if he so chooses. Jenkins’s conviction is affirmed.

¶27.   AFFIRMED.

    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.




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