                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2010-DP-01348-SCT

CURTIS GIOVANNI FLOWERS a/k/a CURTIS
FLOWERS a/k/a CURTIS G. FLOWERS

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:           06/19/2010
TRIAL JUDGE:                HON. JOSEPH H. LOPER, JR.
TRIAL COURT ATTORNEYS:      ALISON R. STEINER
                            ANDRE DE GRUY
                            RAY CHARLES CARTER
                            DOUG EVANS
                            CLYDE HILL
COURT FROM WHICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    OFFICE OF STATE PUBLIC DEFENDER
                            BY: ALISON R. STEINER
                            SHERI LYNN JOHNSON
                            KEIR M. WEYBLE
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:          DOUG EVANS
NATURE OF THE CASE:         CRIMINAL - DEATH PENALTY - DIRECT
                            APPEAL
DISPOSITION:                AFFIRMED - 11/13/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   The instant appeal is Curtis Giovanni Flowers’s fourth direct appeal stemming from

the 1996 murders of four employees of Tardy Furniture Store in Winona, Mississippi. A

grand jury indicted Flowers on four separate counts of capital murder, with the underlying
felony of armed robbery, for the murders of Bertha Tardy, Robert Golden, Carmen Rigby,

and Derrick Stewart. In his sixth and most recent trial, Flowers was convicted on all four

counts of capital murder and sentenced to death. Flowers appeals his convictions and death

sentence. Descrying no error, we affirm.

                     Factual Background and Procedural History

¶2.    At approximately 9:00 on the morning of July 16, 1996, Bertha Tardy, the owner of

Tardy Furniture Store, called Sam Jones and asked him to come to the store to train two new

employees. When Jones arrived at the store a short time later, he discovered the bodies of

Bertha Tardy, Robert Golden, Carmen Rigby, and Derrick Stewart. All four victims had

been shot in the head; Stewart was the only victim still alive when Jones arrived. Jones went

to a nearby business and asked an employee to call the police. Johnny Hargrove, the City

of Winona Police Chief, was the first law enforcement officer to arrive; he called for backup

and ambulance services. Shell casings from 0.380 caliber bullets were recovered from the

scene, and a bloody shoeprint was found near one of the victims.

¶3.    Shortly after officers arrived at the scene, law enforcement officers received a call

about an auto burglary at Angelica Garment Factory in Winona. Deputy Sheriff Bill

Thornburg responded, and he learned that someone had burglarized Doyle Simpson’s car and

had stolen a 0.380 caliber pistol. Katherine Snow, an Angelica employee, placed Curtis

Flowers at Simpson’s car around 7:15 that morning.

¶4.    Police interviewed Flowers around 1:30 that afternoon, and Flowers consented to a

gunshot residue test. Police interviewed Flowers again two days later on July 18, 1996.

Flowers claimed to have been babysitting his girlfriend’s children on the morning of the


                                             2
murders, but he provided inconsistent statements about his schedule. During the July 16

interview, on the day of the murders, Flowers said that he woke up around 6:30 a.m., went

to his sister’s house around 9:00 a.m., and went to a local store around 10:00 a.m. On July

18, Flowers said that, on the morning of the murders, he woke up around 9:30 a.m., went to

his sister’s house around noon, and went to the store at approximately 12:45 p.m. Flowers

told investigators that he had been employed at Tardy Furniture for a few days earlier that

month, but he had been fired on July 6 after he did not show up for a few days. Flowers

moved to Texas in September 1996. After further investigation, Flowers was arrested and

brought back to Mississippi. He was indicted on four separate counts of capital murder in

March 1997.

¶5.    Flowers was tried for the murder of Bertha Tardy in October 1997. After a change

of venue from Montgomery County to Lee County, Flowers was convicted and sentenced to

death. Flowers appealed, and we reversed and remanded for a new trial on the ground that

Flowers’s right to a fair trial had been violated by admission of evidence of the other three

murder victims. Flowers v. State, 773 So. 2d 309 (Miss. 2000) (“Flowers I”). Flowers’s

second trial was for the murder of Derrick Stewart; it was held in Harrison County in March

1999. The jury returned a guilty verdict and sentenced Flowers to death. On appeal, we

again reversed and remanded for a new trial. The Court held that Flowers’s right to a fair

trial had been violated, again, by admission of evidence of the other victims and by the

prosecution arguing facts that were not in evidence. Flowers v. State, 842 So. 2d 531 (Miss.

2003) (“Flowers II”).




                                             3
¶6.     The Montgomery County Circuit Court held Flowers’s third trial in 2004 and tried

him for all four murders. The jury found Flowers guilty and sentenced him to death. Finding

that the State had engaged in racial discrimination during jury selection, the Court once again

reversed and remanded the case for a new trial. Flowers v. State, 947 So. 2d 910 (Miss.

2007) (“Flowers III”). Flowers’s fourth and fifth trials also were on all four counts of

capital murder. Both resulted in mistrials when the jury was unable to reach a unanimous

verdict during the culpability phase. The State did not seek the death penalty in the fourth

trial but did seek it in the fifth trial.

¶7.     The circuit court conducted Flowers’s sixth trial, the subject of the instant appeal, in

June 2010 in Montgomery County. The State tried Flowers for all four murders. The State

called twenty-one witnesses in its case-in-chief. Police Chief Johnny Hargrove was the

State’s first witness. Hargrove testified that police had found a bloody shoeprint at the scene.

Hargrove had asked the District Attorney’s Office and the Highway Patrol to help investigate

the murders. Mississippi Highway Patrol Investigator Jack Matthews testified that he saw

a bloody shoeprint and shell casings scattered near the bodies. Matthews testified that cash

was taken from the store during the murders and that he found Flowers’s time sheet and a

check made out to him for $82.58 on Bertha Tardy’s desk. Matthews said that, according to

the documents on Bertha Tardy’s desk, the store would have had $300 cash on hand that

morning. However, there was only change, no bills, in the cash drawer. During his

investigation, Matthews spoke with Roxanne Ballard, Bertha Tardy’s daughter, and learned

that Flowers recently had been fired from his job at Tardy Furniture. Matthews testified that




                                               4
$235 was found hidden in Flowers’s headboard after the murders. He also testified that

Flowers wore a size ten-and-a-half shoe.

¶8.    Ballard was the bookkeeper at Tardy Furniture and had worked in the store her whole

life. Looking at the books from the morning of the murders, Ballard testified that the store

had $400 in the cash drawer that morning. However, she confirmed Matthews’s testimony

that the books showed $300, but Ballard saw a receipt for a late charge in the amount of

$100, so she knew the drawer had contained a total of $400. Ballard testified that $389 was

missing from the cash drawer after the murders. Also, looking at pictures from the crime

scene, Ballard testified that the photos showed a bank bag lying wide open on a pile of fabric

swatches. She testified that the bank bag was always closed and it should have been in a

drawer or on Carmen Rigby’s desk.

¶9.    Melissa Schoene, a crime scene expert with the Mississippi Crime Laboratory,

testified that she took impressions of the bloody shoeprint and collected the 0.380 caliber

casings. Sheriff Bill Thornburg testified that he had gone to Angelica Garment Factory on

the day of the murders to investigate Doyle Simpson’s stolen 0.380 caliber pistol. Thornburg

testified that it looked like a screwdriver or tire iron had been used to pry open the glove box

of Simpson’s car. Thornburg also went to Simpson’s mother’s home to collect spent 0.380

hulls from Simpson’s gun. A few days after the murders, Thornburg searched the home of

Connie Moore, Flowers’s girlfriend. He found a size ten-and-a-half Fila Grant Hill shoebox

in a dresser at Moore’s house.

¶10.   David Balash, a firearms identification expert, testified that the bullets collected from

Tardy Furniture either matched the bullets or were consistent with the bullets collected from


                                               5
Simpson’s mother’s house. Joe Andrews, a forensic scientist specializing in trace evidence,

testified that Flowers’s gunshot residue test revealed one particle of gunshot residue on the

back of Flowers’s right hand. Andrews also analyzed the shoeprint found at Tardy Furniture,

and he determined that the print was consistent with size ten-and-a-half Fila Grant Hill tennis

shoes. Patricia Hallmon Odom Sullivan, one of Flowers’s neighbors, testified that she saw

Flowers wearing Fila Grant Hill tennis shoes at 7:30 a.m. on the day of the murders. Elaine

Goldstein, another neighbor, testified that she had seen Flowers wear Fila Grant Hill tennis

shoes a couple of months before the murders.

¶11.   Multiple witnesses placed Flowers at or around Angelica Garment Factory and Tardy

Furniture on the morning of the murders. Katherine Snow, an Angelica Garment Factory

employee, testified that she saw Flowers leaning against Simpson’s car at 7:15 on the

morning of the murders. Snow also identified Flowers in a photographic lineup and in court.

James Kennedy testified that he saw Flowers walking toward Angelica Garment Factory at

7:15 a.m. Edward McChristian testified that he saw Flowers walking north, away from

Angelica Garment Factory, between 7:30 and 8:00 a.m. Mary Jeanette Fleming testified that

she saw Flowers walking toward Tardy Furniture at approximately 9:00 a.m. Beneva Henry

testified that she saw Flowers walking toward downtown Winona, in the direction of Tardy

Furniture, sometime between 9:00 and 9:30 a.m.1 Clemmie Fleming testified that she was




       1
         Beneva Henry’s testimony from Flowers’s 2004 trial was read to the jury. In the
nearly fifteen years between the 1996 murders and Flowers’s sixth trial, several witnesses
had died, moved out of state, or were otherwise no longer available to testify. Their
testimony from prior trials had to be read to the jury. Those witnesses were Beneva Henry,
Sam Jones, Porky Collins, Stacey Wright, and Billy Glover.

                                              6
going to Tardy Furniture to pay a bill a little after 10:00 a.m, and she saw Flowers running

away from the back of Tardy Furniture.

¶12.   Porky Collins testified that he saw two African-American men, who appeared to be

arguing, outside Tardy Furniture at around 10:00 on the morning of the murders. Collins

circled the block and returned to where he saw the men arguing; at that point, the men were

headed toward Tardy Furniture. Collins identified Flowers as one of the men he saw that

morning. Doyle Simpson testified that his 0.380 caliber pistol was in his car’s glove

compartment when he arrived at Angelica the morning of July 16, 1996. Simpson discovered

that his gun was missing at approximately 11:00 a.m. that day. Simpson, who was Flowers’s

uncle, testified that Flowers knew he had a gun and that Flowers had seen it in his car before.

Odell Hallmon, a jailhouse informant who had been in a cell next to Flowers, testified that

Flowers had confessed to killing four people at Tardy Furniture.

¶13.   After the State’s case-in-chief, the defense moved for a directed verdict, which the

trial court denied. The first witness to testify in the defense’s case-in-chief was Mike

McSparrin, a fingerprint expert. McSparrin testified that the fingerprints found at the crime

scene, as well as on the Fila shoebox, did not match Flowers’s fingerprints. The defense also

called Steve Byrd, a firearms forensic analyst. Byrd testified that he could not definitively

determine whether all of the bullets recovered from the crime scene were fired from the same

gun. James Williams, a law enforcement investigator, testified that he did not see a bloody

footprint when he first arrived at Tardy Furniture. Billy Glover testified that, on the day of

the murders, he saw Flowers around 9:00 a.m. at a friend’s house and that they talked for




                                              7
fifteen or twenty minutes. Connie Moore, Flowers’s girlfriend at the time, testified that she

had purchased a pair of size ten-and-a-half Fila Grant Hill tennis shoes for her son.

¶14.   Stacey Wright testified that Clemmie Flemming had admitted to her that she had lied

about seeing Flowers running away from Tardy Furniture on the morning of the murders.

Wright testified that Clemmie had said she would get money or have her bill paid at Tardy

Furniture in return for her statement against Flowers. Clemmie’s sister, Mary Flemming,

testified that she was with Clemmie the morning of the murders and that Clemmie did not go

to Tardy Furniture to pay her bill that morning. Latarsha Blissett also testified that Clemmie

had told her that if she made a statement against Flowers, she would get money or have her

account at Tardy Furniture paid. Further, Blissett testified that investigators had asked her

if she knew Flowers’s shoe size and had implied that she would receive reward money for

providing a statement. Kittery Jones, Flowers’s cousin, also testified that investigators had

implied that he would receive reward money in return for providing a statement linking

Flowers to the murders.

¶15.   On June 18, 2010, the jury returned a guilty verdict for all four murders. Following

the sentencing hearing, the jury sentenced Flowers to death. The jury found the following

aggravating circumstances beyond a reasonable doubt: (1) the defendant knowingly created

a great risk of death to many persons; (2) the capital offenses were committed while the

defendant was engaged in the commission of an armed robbery for pecuniary gain; and (3)

the capital offenses were committed for the purpose of avoiding or preventing lawful arrest

or effecting an escape from custody. Flowers filed a motion for judgment notwithstanding




                                              8
the verdict (JNOV) or, in the alternative, for a new trial, which was denied. Flowers timely

filed a notice of appeal.

                                            Issues

¶16.   Flowers raises the following thirteen assignments of error on appeal:

       1.   The evidence presented at Flowers’s trial was constitutionally insufficient
            to support a finding of guilt beyond a reasonable doubt, as mandated by
            the Fifth and Fourteenth Amendments to the United States Constitution
            and Section Fourteen of the Mississippi Constitution.

       2.   Flowers’s right to a fair trial, as guaranteed by Mississippi law and the
            Fourteenth Amendment to the United States Constitution, was violated
            when the prosecution repeatedly argued material facts not in evidence
            during its culpability phase closing argument.

       3.   The in-court and out-of-court eyewitness identifications of Flowers by
            Porky Collins were constitutionally unreliable and the trial court erred in
            overruling Flowers’s objections to their admission.

       4.   The trial court’s exclusion of expert testimony explaining the deficiencies
            in law enforcement’s investigation, and the defects in the composition of
            the photo lineups shown to Porky Collins, violated Mississippi law and
            Flowers’s right to present a defense as guaranteed by the Sixth and
            Fourteenth Amendments to the United States Constitution.

       5.   The trial court erred in refusing to exclude prosecution testimony that a
            single particle of gunshot residue had been detected on Flowers’s hand.

       6.   The jury selection process, the composition of the venire and the jury
            seated, and pervasive racial and other bias surrounding this matter violated
            Flowers’s fundamental constitutional rights protected by the Sixth and
            Fourteenth Amendments.

              a. The prosecutor violated the Equal Protection Clause of the
                 Fourteenth Amendment when he struck five African
                 American jurors after utilizing disparate questioning and
                 citing pretextual reasons.




                                               9
              b. The jury failed to adequately deliberate because it was
                 influenced by racial bias in violation of the Due Process and
                 Equal Protection Clauses of the Fourteenth Amendment.

              c. Pervasive racial bias in the venire infected the fairness of the
                 proceedings, and requires reversal and remand for a new
                 trial.

       7.   The State’s six attempts to convict Flowers of the same offense violated
            the Double Jeopardy Clause of the Fifth Amendment and the Due Process
            Clause of the Fourteenth Amendment.

       8.   The trial court reversibly erred in refusing Flowers’s requested
            circumstantial evidence instructions at the culpability phase.

       9.   The trial court reversibly erred in the penalty phase instructions to the
            jury.

       10. The convictions and death sentences in this matter were obtained in
           violation of the Sixth, Eighth, and Fourteenth Amendments to the United
           States Constitution and the counterparts in the Mississippi Constitution.

       11. This Court should set aside its prior order denying Flowers’s Motion for
           Remand and Leave to File Supplemental Motion for New Trial.

       12. The death sentence in this matter is constitutionally and statutorily
           disproportionate.

       13. The cumulative effect of the errors mandates reversal of the verdict of
           guilt and/or the sentence of death entered pursuant to it.

We address each of Flowers’s issues but have summarized and reorganized several issues for

the purpose of discussion.

                                         Discussion

¶17.   Heightened scrutiny is applied to review of capital murder convictions where the

death sentence has been imposed. Fulgham v. State, 46 So. 3d 315, 322 (¶ 16) (Miss. 2010)

(citing Bishop v. State, 812 So. 2d 934, 938 (¶ 7) (Miss. 2002)). “What may be harmless



                                              10
error in a case with less at stake [may become] reversible error when the penalty is death.”

Id. The standard of review for each issue will discussed throughout.

   I. Whether the in-court and out-of-court identifications of Flowers by Porky
      Collins were constitutionally unreliable, and whether the trial court erred in
      overruling Flowers’s objections to their admission.

¶18.   Flowers claims that the trial court erred in admitting evidence of Porky Collins’s out-

of-court and in-court identifications of Flowers. Collins died in 2002, so his testimony from

the 1999 trial was read to the jury. Collins’s testimony was that, on the morning of the

murders, he had seen two African-American men who appeared to be arguing outside Tardy

Furniture. Collins thought the men were about to fight, so he circled the block and returned

to see what was going on. The second time Collins saw the men, they were walking toward

Tardy Furniture. Collins saw only one man’s face when he drove past them.

¶19.   After hearing about the murders at Tardy Furniture, Collins went to police the same

day, reported what he had seen that morning, and gave a description of the men. On August

24, 1996, police showed Collins two photo arrays with six photos each – the first group

included Doyle Simpson’s photograph; the second group included Flowers’s photograph.

Collins testified that he was not expected to identify the man whose face he did not see.

According to police department notes, in response to the first photo array, Collins pointed

to Simpson and said that he “looked like” the man he had seen, but he was unable to be

positive. The entirety of the officer’s handwritten notes were as follows:

       Porky Collins
       Picture Line-up      11:10 a.m.

       #1 and #3 resembles, but hairline was further back
       #6 Pointed to Simpson said hairline like this, may have appeared a little darker.

                                             11
       “But it looks like him.”
       “Face was also same shape, round like this.”
       “Unable to be positive.”

Collins then was shown the second photo array, and he identified Flowers as the man he had

seen in front of Tardy Furniture. The officer administering the photo array made the

following notes:

       2nd Line Up

       11:16 a.m.
       Pointed to Curtis Flowers #4
       “I think that’s him.”
       “He was about my height.”
       “I’m 5'10"”
       “The complexion is also right.”

       “I believe that’s him, it look[s] like him.”

       Identified #4

       I asked Porky if he knew Curtis Flowers, he said, “No. But I know the person
       I just identified is the person I saw in front of Tardy’s 7-16-96.”

During the 1999 trial, Collins identified Flowers in court as the man whose face he had seen

outside Tardy Furniture. Flowers filed a pretrial motion to suppress Collins’s out-of-court

and in-court identifications, which the trial court denied. On appeal, Flowers claims that the

trial court erred in admitting Collins’s identifications into evidence.

¶20.   The standard of review for a trial court’s suppression hearing findings regarding

pretrial identifications is whether “substantial credible evidence supports the trial court’s

findings that, considering the totality of the circumstances, in-court identification testimony

was not impermissibly tainted.” Butler v. State, 102 So. 3d 260, 264 (¶ 8) (Miss. 2012)

(quoting Gray v. State, 728 So. 2d 36, 68 (¶ 159) (Miss. 1998)). For an out-of-court or in-


                                              12
court identification to be excluded, “it must be the result of an impermissibly suggestive

lineup and the identification must be unreliable.” Butler, 102 So. 3d at 264 (¶ 8) (citing York

v. State, 413 So. 2d 1372, 1383 (Miss. 1982)). First, the court must “determine whether the

identification process was unduly suggestive.” Latiker v. State, 918 So. 2d 68, 74 (¶15)

(Miss. 2005) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)). Second, even if the

identification process was unduly suggestive, the identification still can be admitted if “the

out-of-court identification was nevertheless so reliable that no substantial likelihood of

misidentification existed.” Id.

       A. Collins’s Out-of-Court Identification

¶21.   Flowers claims that the out-of-court photo lineup was unduly suggestive because the

photo array was skewed toward Flowers in several ways. He claims that his head was larger

than the others and that the other men had lighter complexions, were younger than him, and

had varying hairstyles and facial features. We have summarized the standard applied to out-

of-court identifications as follows:

       A lineup or series of photographs is impermissibly suggestive if “the accused,
       when compared with the others, is conspicuously singled out in some manner
       from the others, either from appearance or statements by an officer.” . . . To be
       excluded, an out-of-court identification must have resulted from an
       identification procedure that was so impermissibly suggestive as to give rise
       to “a very substantial likelihood of misidentification.” . . . Where the defendant
       is “the only one depicted with a distinctive feature,” courts usually will find
       the lineup to be impermissibly suggestive. . . . On the other hand, “minor
       differences” with the suspects or differences in the photograph backgrounds
       will not render a lineup impermissibly suggestive. . . .

Butler, 102 So. 3d at 264-65 (¶¶ 9-11) (citations omitted). Applying the standard articulated

in Butler, we recently held that a photo lineup was not impermissibly suggestive even though



                                              13
the defendant was the only person in the lineup with facial tattoos. Stewart v. State, 131 So.

3d 569, 574 (¶ 16) (Miss. 2014). In Stewart, we concluded:

       We find that the case sub judice is similar to the cases of White, Foster, and
       Jones, in which this Court upheld similar identifications. In White, the witness
       noticed the defendant’s plaited hair and forehead tattoo during the commission
       of the crime. White v. State, 507 So. 2d 98, 99 (Miss. 1987). This Court upheld
       the out-of-court and in-court identifications of the defendant even though the
       defendant was the only suspect in the lineup with plaited hair. Id. at 99-101.
       The defendant also had a forehead tattoo, which the witness identified at trial.
       BI at 99-100. In Foster, this Court upheld the out-of-court and in-court
       identifications of the defendant even though he was the only person in the
       lineup wearing a fishing hat, where the defendant had worn a fishing hat
       during the robbery. Foster v. State, 493 So. 2d 1304, 1305-06 (Miss. 1986).
       Likewise, in Jones, this Court upheld the out-of-court and in-court
       identifications of the defendant even though he was the only suspect in the
       photo lineup wearing a hat similar to the one worn by the attacker. Jones v.
       State, 504 So. 2d 1196, 1199-1200 (Miss. 1987). This Court found that, even
       though the hat may have played a significant part in the identification, it was
       not impermissibly suggestive, because the witness had given an accurate
       description and identified the defendant with great conviction at trial. Id. at
       1200.

Id. at 573 (¶ 12).

¶22.   In the photo array that included Flowers’s photograph, Flowers’s head is slightly

larger than the others, as it appears his photo was taken from a closer angle than the others.

However, the use of a different photographic technique creates only a minor difference, and

that is not enough to render the photo lineup impermissibly suggestive. Batiste v. State, 121

So. 3d 808, 856 (¶ 116) (Miss. 2013). The other characteristics Flowers claims caused the

array to be suggestive are not present – three other men have complexions similar to

Flowers’s complexion; Flowers appears to be the same age or only slightly older than the

other men; two of the other men have hair styles similar to Flowers’s; and three of the other

men have facial hair similar to his. Accordingly, Flowers fails to show that the lineup was

                                             14
unduly suggestive. Further, Collins provided a description to police on the day of the

murders, and he was confident in his identification of the man he saw in front of Tardy

Furniture. The trial court did not err in admitting Collins’s out-of-court identification.

Because the lineup was not impermissibly suggestive, we need not consider the Biggers

factors for reliability.

       B. Collins’s In-Court Identification

¶23.   Although Flowers’s issue heading asserts that Collins’s in-court identification was

“constitutionally unreliable,” he provides no substantive argument or support for that claim.

The extent of his argument is in a footnote, which provides: “there is no issue of the

admissibility of the in-court identification, given that Collins could not positively identify

Flowers in the courtroom at the second trial, and was deceased by the time of this, the sixth

trial.” His assertion is incorrect. Collins unequivocally identified Flowers at the second trial.

Flowers also implies that the typical jury consideration of determining Collins’s credibility

is not applicable in the case sub judice because his testimony was read to the jury, as opposed

to live testimony. Although the jury did not personally observe Collins testifying, defense

counsel’s cross-examination of Collins adequately addressed credibility. For example,

defense counsel asked Collins about his memory, any medication he was taking that could

affect his memory, and whether he wore glasses. The characteristics of trial itself – trial by

jury, an impartial judge, representation by counsel, and witnesses subject to an oath and

cross-examination – adequately protects against any suggestiveness of in-court identifications

at trial. Galloway v. State, 122 So. 3d 614, 663 (¶ 164) (Miss. 2013).




                                               15
¶24.   Although Flowers does not claim that Collins’s in-court identification was tainted by

the alleged suggestiveness of the out-of-court identification, that is often the argument made

by defendants. See Butler, 102 So. 3d at 266-67. We have held that “an impermissibly

suggestive pretrial identification does not preclude in-court identification by an eyewitness

who viewed the suspect at the procedure, unless: (1) from the totality of the circumstances

surrounding it, (2) the identification was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Id. at 267 (¶ 17) (quoting York, 413

So. 2d at 1383). Collins’s out-of-court identification was not impermissibly suggestive,

therefore, it could not give rise to the likelihood of an irreparable misidentification. For the

reasons given above, the issue is without merit.

   II. Whether the trial court’s exclusion of expert testimony violated Mississippi
       law and Flowers’s right to present a defense as guaranteed by the Sixth and
       Fourteenth Amendments to the United States Constitution.

¶25.   Flowers contends that the trial court erred by excluding the testimony of two experts

– Robert Johnson and Dr. Jeffrey Neuschatz. Flowers tendered Johnson as an expert in

criminal investigation procedures, but the trial court did not permit Johnson to testify. In

Flowers’s fourth trial, he filed a motion to determine the admissibility of Dr. Neuschatz’s

testimony on the reliability of eyewitness identification evidence. Flowers renewed the

motion in the present case, and the trial court denied the motion.

¶26.   We apply an abuse of discretion standard when reviewing the exclusion of expert

testimony. Gillett v. State, 56 So. 3d 469, 494 (¶ 61) (Miss. 2010). Analysis of the

admissibility of expert testimony begins with Mississippi Rule of Evidence 702:




                                              16
          If scientific, technical, or other specialized knowledge will assist the trier of
          fact to understand the evidence or to determine a fact in issue, a witness
          qualified as an expert by knowledge, skill, experience, training, or education
          may testify thereto in the form of an opinion or otherwise, if (1) the testimony
          is based upon sufficient facts or data, (2) the testimony is the product of
          reliable principles and methods, and (3) the witness has applied the principles
          and methods reliably to the facts of the case.

Miss. R. Evid. 702.        The expert testimony must be both relevant and reliable to be

admissible. Gillett, 56 So. 3d at 495 (¶ 63). “Expert testimony is relevant if it will ‘assist

the trier of fact in understanding or determining a fact at issue.’” Galloway, 122 So. 3d at

632 (¶ 27) (quoting Ross v. State, 954 So. 2d 968, 996 (¶ 57) (Miss. 2007)). To determine

reliability, the following nonexhaustive list of factors may be considered: whether the

expert’s theory can be or has been tested; whether the theory has been the subject of peer

review and publication; the known or potential rate of error of the technique or theory when

applied; the existence of standards to control the technique’s operation; and the general

acceptance the theory has garnered in the relevant expert community. Gillett, 56 So. 3d at

495 (¶ 64) (citing Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 37 (Miss. 2003);

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-94 (1993)). “The applicability of

these factors varies depending on the nature of the issue, the expert’s particular expertise, and

the subject of the testimony.” Gillett, 56 So. 3d at 495 (¶ 64) (citing McLemore, 863 So. 2d

at 37).

          A. Robert Johnson

¶27.      Flowers attempted to call Robert Johnson as an expert in criminal investigation

procedures, and the State objected.          Johnson would have testified that the criminal

investigation was flawed in various ways. After a lengthy voir dire, the trial court held that

                                                 17
Johnson could not testify because “there is no valid way of testing the field of police

investigatory techniques.” The trial court also found that, even if Johnson’s testimony met

the reliability prong of Daubert, the testimony was cumulative because the law enforcement

officers who already had testified at trial were throughly cross-examined and had admitted

that there were flaws in the investigation. Flowers also attempted to have Johnson give an

expert opinion relating to the photographic array shown to Collins. The trial court excluded

the testimony because Johnson stated during his voir dire that he did not have sufficient

information about the lineup.

                            1. Johnson’s Proffered Testimony

¶28.   During the voir dire, Johnson testified at length about his law enforcement experience.

Johnson is currently a law enforcement consultant and previously served as police chief in

Jackson, Mississippi; Jackson, Michigan; and Lansing, Michigan. He was Commissioner of

the Mississippi Department of Corrections from 2000 to 2002. Johnson has a master’s

degree in public administration, and he graduated from the FBI National Academy and the

FBI Law Enforcement Executive Development program.              During his career, Johnson

performed homicide investigations as a detective and directly supervised homicide

investigations. Johnson also developed protocols for criminal investigations.

¶29.   Johnson testified that generally accepted standards for homicide investigations exist,

and he opined that the investigation in today’s case failed to meet them in various ways.

First, Johnson said the investigation lacked management and organization. In support of his

contention, Johnson referred to the testimony of law enforcement officers who said the

investigation was a “shared responsibility.” Johnson also said the investigation lacked an in-

                                             18
depth case file, which should have included all original notes and reports. Johnson testified:

“There has to be somebody who is the recipient of all the information coming from a variety

of sources and is able to correlate that information and further direct the direction that the

investigation needs to develop.” He said that the investigation also lacked written reports of

events.

¶30.   Johnson next criticized the crime scene integrity. Johnson said that the integrity of

the crime scene could have been compromised by law enforcement officers and investigators

meeting within the crime scene to discuss and organize the investigation. According to

Johnson, a crime scene log should have been maintained of who came and went from the

crime scene to ensure that it was not contaminated. Next, Johnson testified that he was

“concerned” about the investigation’s early focus on one suspect – Flowers – to the exclusion

of any other suspects. Johnson said early focus can result in lost evidence: “It’s okay to very

quickly focus on one suspect; that happens all the time, you know. But to the exclusion of

all else and all others is where it becomes problematic, and you sometimes lose vital evidence

that may be had because you haven’t included and kept them in as a potential suspect or

person of interest.”

¶31.   On cross-examination, Johnson admitted that Mississippi has no minimum standards

for criminal investigations. He also admitted that the Justice Department guidelines he

mentioned in direct examination were not requirements and that there are no national

minimum standards for criminal investigations. Johnson stated that, rather than minimum

standards, he based his opinions on generally accepted practices in police work. Further,

when asked if he could provide an opinion on whether investigations that lack written reports


                                              19
lead to incorrect results, Johnson said investigations with written reports are “more

complete.” He did not, however, state that an investigation without a written report would

lead to an incorrect result.

                         2. Admissibility of Johnson’s Testimony

¶32.   The Daubert factors apply to expert testimony relating to police investigatory

techniques. See Ross v. State, 954 So. 2d 968, 996-97 (Miss. 2007) (“Ross I”). In Ross I,

the defendant proffered an expert who opined that the securing of the crime scene and

evidence collection were deficient. Id. at 997 (¶ 61). Although the Court held the testimony

did not meet the reliability standards of Daubert and McLemore, the opinion did not discuss

why the testimony was unreliable. Id. The case was reversed and remanded for other

reasons. Id. at 1019-20 (¶¶ 138-41). The defendant was convicted again and appealed, and

the case was assigned to the Court of Appeals. Ross v. State, 22 So. 3d 400 (Miss. Ct. App.

2009) (“Ross II”). In Ross II, the Court of Appeals addressed the proffered expert testimony

and found that the trial court did not err in excluding the testimony. Id. at 420-21 (¶¶ 99-

104). First, the expert testimony was cumulative because the investigating officers had been

cross-examined about their investigative techniques and had admitted that “things could have

been handled better.” Id. at 421 (¶ 102). Second, the trial court did not abuse its discretion

by finding that the testimony failed to meet the Daubert reliability prong because the expert’s

“memberships and associations were voluntary and fee based, not peer reviewed or tested”

and “the trial court was unable to evaluate the value of [the expert’s] certifications because

the trial court was unaware of the requirements for certification.” Id. at 421 (¶¶ 103-104).




                                              20
¶33.   Under Rule 702, the first prong of the inquiry for determining whether expert

testimony should be admitted is whether the witness is “qualified by virtue of his or her

knowledge, skill, experience[,] or education.” Galloway, 122 So. 3d at 632 (¶ 28) (quoting

McLemore, 863 So. 2d at 35). Johnson certainly is qualified through his knowledge,

experience, and training in the field of criminal investigations. Further, there is no question

that Johnson’s testimony is relevant. Johnson’s testimony addressed facts relating to the

criminal investigation that eventually led to Flowers’s arrest; thus, his testimony had a

“tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence.” Miss. R.

Evid. 401.

¶34.   The critical inquiry, however, is whether Johnson’s testimony is reliable. The trial

court focused on the inability to test Johnson’s theories as a basis for excluding the

testimony, holding: “Because there is no valid way of testing the field of police investigatory

techniques, this Court finds the proposed testimony in the field fails to meet the reliability

standards required under Rule 702.” Whether the expert’s theory can be tested is one factor

to be considered under Daubert, but it is not conclusive. Johnson’s proffered testimony is

not the typical expert testimony contemplated by the testing factor – for example, one cannot

test what effect the lack of organization and leadership would have on a murder investigation.

As such, reliance on the testing factor alone would have been error. However, the trial court

cited other reasons for excluding the testimony.

¶35.   The trial court also found that, although Johnson testified that the investigation fell

below generally accepted standards and practices in law enforcement, Johnson did not

                                              21
sufficiently articulate the standards. See McGee v. River Region Med. Ctr., 59 So. 3d 575,

579 (¶ 13) (Miss. 2011) (An expert testifying about a failure to meet generally accepted

standards must “identify and articulate the requisite standard that was not complied with.”)

A review of the proffered testimony reveals that Johnson did articulate standards relating to

some – but not all – of his opinions. Johnson offered four opinions: (1) that the investigation

lacked organization and management; (2) that the integrity of the crime scene was

compromised; (3) that the investigation focused on one suspect too quickly; and (4) that the

photo lineup used during Collins’s identification was flawed. Johnson did not articulate a

standard for his opinion relating to the investigation’s early focus on Flowers as a suspect.

And Johnson said that he was not familiar with the procedures used during Collins’s

identification. Thus, the trial court did not err in excluding his testimony. See Dedaux Util.

Co., Inc. v. City of Gulfport, 938 So. 2d 838, 841 (Miss. 2006) (expert testimony must be

based on sufficient facts and data).

¶36.   Johnson did provide applicable standards for his opinions related to the investigation’s

organization and management and crime scene integrity. Regarding the investigation’s

organization and management, Johnson testified that, based on his experience and

knowledge, the investigation should have had centralized leadership that collected

information, maintained the case file, and directed the investigation. Johnson said, “There

has to be somebody who is the recipient of all the information coming from a variety of

sources and is able to correlate that information and further direct the direction that the

investigation needs to develop.” Regarding crime scene integrity, Johnson said a crime scene

log should have been maintained at the crime scene. He explained that the crime scene can

                                              22
be contaminated, evidence can be overlooked, and evidence can be deposited after the crime.

He said, “There may be a number of issues related to the presence of people at the crime

scene, so you want to have a record of when they were there, how long they stayed and when

they left.”

¶37.   Although Johnson provided some standards on which he based his opinions, we

cannot say that the trial judge abused his discretion when he held the standards insufficient.

Johnson testified that the standards he applied in forming his theories were “generally

accepted practices in police work.” Certainly, expert testimony can be based on experience,

and one factor that may be considered in determining reliability is general acceptance in the

relevant expert community. See Gillett, 56 So. 3d at 495 (¶ 64); Daubert, 509 U.S. at 593-

94. But Johnson did not provide support for his statement that the practices he referenced

were, in fact, generally accepted. Allowing an expert to simply state that his opinions are

based on “generally accepted practices,” without support for the assertion, could lead to

essentially permitting experts to qualify themselves. While Johnson’s opinions and standards

seem sensible, we cannot say that he presented enough evidence that his opinions were

sufficiently reliable such that the trial court abused its discretion by not allowing the

testimony.

¶38.   Further, the trial court was correct that Johnson’s testimony was cumulative. Law

enforcement officers who participated in the investigation were thoroughly questioned about

the investigation and admitted that there were flaws in the investigation. Specifically,

officers admitted that a crime scene log was not maintained, and the police chief testified that

one should have been maintained. The officers also admitted that there was not a lead


                                              23
investigator, and the police chief testified that responsibilities should have been assigned, an

investigative plan should have been developed, and information should have been shared

with investigators and first responders. The trial court did not commit an abuse of discretion

in not allowing Johnson’s testimony.

       B. Dr. Jeffery Neuschatz

¶39.   During Flowers’s fourth trial, he filed a motion to determine the admissibility of Dr.

Neuschatz’s testimony on the reliability of eyewitness identification evidence.             Dr.

Neuschatz’s affidavit and curriculum vitae were attached to the motion. Dr. Neuschatz’s

affidavit essentially provided two opinions: (1) that Collins’s identification of Flowers could

have been affected by a number of different circumstances; and (2) that the identification

procedure was flawed. Before the fourth trial commenced, the State announced that it would

not seek the death penalty, and Flowers withdrew his motion regarding Dr. Neuschatz’s

testimony.2

¶40.   At Flowers’s fifth trial, the State sought the death penalty, and Flowers renewed his

motion to determine the admissibility of Dr. Neuschatz’s testimony. The court held a hearing

on the motion, but Flowers did not provide a proffer of Dr. Neuschatz’s testimony other than

the affidavit previously submitted. The trial court denied the motion, holding that, because

Collins was extensively cross-examined, the expert testimony would not assist the jury:

       And he was extensively cross-examined, even into the most minute detail
       about issues concerning what path he took driving around town that morning.




       2
        Flowers’s counsel apparently believed that eyewitness identification expert
testimony was not admissible in noncapital cases.

                                              24
       He stated in his testimony that he had a brief glimpse of who he believed to be
       Mr. Flowers.

       There was – he was cross-examined about his ability to remember things. He
       was cross-examined about whether he had had difficulty with memory
       problems in the past. I mean I do not think there could be a more thorough
       cross-examination of a witness than was done with Mr. Collins.

       So I think given the extensive cross-examination of Mr. Collins and because
       all other witnesses knew Mr. Flowers on sight, I do not believe an expert on
       witness identification would assist the jury in the least bit in this case.

The court also found that Flowers did not demonstrate that Dr. Neuschatz’s testimony was

reliable based on the Daubert factors. In the present case, Flowers renewed his motion on

the admissibility of Dr. Neuschatz’s testimony. The trial court denied the motion, adopting

its ruling from the fifth trial.

¶41.   Again, in determining whether expert testimony is reliable, the court may consider the

following factors: whether the expert’s theory can be or has been tested; whether the theory

has been the subject of peer review and publication; the known or potential rate of error of

the technique or theory when applied; the existence of standards to control the technique’s

operation; and the general acceptance that the theory has garnered in the relevant expert

community. Gillett, 56 So. 3d at 495 (¶ 64) (citing McLemore, 863 So. 2d at 37, and

Daubert, 509 U.S. at 592-94). The admissibility of Dr. Neuschatz’s testimony was addressed

recently in Corrothers v. State, ___ So. 3d ___, 2014 WL 2894310 (Miss. June 26, 2014),

reh’g denied (Oct. 23, 2014). In Corrothers, the Court applied Rule 702 and Daubert to Dr.

Neuschatz’s testimony concerning the reliability of eyewitness identification procedures, and

found that Dr. Neuschatz’s testimony was unreliable:




                                             25
       Dr. Neuschatz attempted to apply the principles and methodologies underlying
       his expertise in eyewitness identification to opine that [the eyewitness’s]
       identification “could” be unreliable. But Dr. Neuschatz’s opinions were
       undermined by his inaccurate and incomplete understanding of the facts on
       which he based his opinions and his complete lack of expertise on [the
       eyewitness’s] brain injury. These deficiencies rendered his opinions so
       fundamentally unsupported that they could offer no assistance to the jury and
       amounted to nothing more than unsupported speculation. His testimony was
       unreliable, and there was no abuse of discretion in excluding it. We further
       note that Dr. Neuschatz’s testimony was inconclusive and speculative because
       he did not offer his opinions to a reasonable degree of scientific certainty, but
       testified only that Josh’s lineup identification “could” be unreliable and that
       in-court identifications “probably” are suggestive. Nor did Dr. Neuschatz
       submit any peer-reviewed publications supporting his principles and
       methodologies; the trial court had only the benefit of Dr. Neuschatz’s
       curriculum vitae and his testimony that his studies had been subjected to peer
       review and publication and were generally accepted in the relevant scientific
       community. These facts further support the exclusion of Dr. Neuschatz’s
       testimony.

Corrothers, 2014 WL 2894310, at *10 (¶ 35).

¶42.    In the instant case, the trial court applied the Daubert factors and held that Dr.

Neuschatz’s theories were not generally accepted and that he did not provide information

about the rate of error or the principles and methods used. As to the first factor, Dr.

Neuschatz’s affidavit cited several tests that support his theory that exposure time,

appearance change/disguise, and post-identification feedback may affect eyewitness

identifications. However, he did not submit documentation of the tests. Regarding peer

review and publication, Dr. Neuschatz’s affidavit stated that he has “published several

articles in peer reviewed journals, written peer invited chapters, and presented [his] research

findings at regional and national conferences.” Again, however, he did not provide the

articles. The same was true in Corrothers. Corrothers, 2014 WL 2894310, at *10 (¶ 35).

Dr. Neuschatz’s affidavit did not mention anything relevant to the third or fourth factors –

                                              26
the known or potential rate of error of the applied theory and the existence of standards and

controls – therefore, the factors were not satisfied. Finally, Dr. Neuschatz cited several

articles and studies supporting his theories to show that his theory is accepted in the scientific

community but, again, the articles were not submitted.

¶43.   Because Flowers did not provide an additional proffer of Dr. Neuschatz’s testimony,

we have no way of knowing whether Dr. Neuschatz could have offered further support for

the Daubert factors if he had provided live testimony. We do not hold that every expert is

required to submit every article or report on which he or she relies. However, here, the trial

judge – in exercising his considerable discretion – found that the defense did not present

sufficient evidence in support of Dr. Neuschatz’s opinions. The trial judge did not abuse his

discretion in concluding that the affidavit alone was insufficient to withstand the Daubert

analysis and in denying Dr. Neuschatz’s testimony.

¶44.   Dr. Neuschatz’s affidavit included two opinions: that Collins’s identification could

have been affected by several factors and that the photo identification process was flawed.

Regarding the photo array, the same issue was addressed in Corrothers, and we held that Dr.

Neuschatz’s testimony may have been more prejudicial than probative due to the risk of

confusion. Corrothers, 2014 WL 2894310, at *11 (¶ 36). Allowing testimony from Dr.

Neuschatz that the photo identification process was flawed, while also admitting evidence

of the identification because the court determined that it was not impermissibly suggestive,




                                               27
could result in confusing the jury.3 Thus, the trial court did not err in excluding Dr.

Neuschatz’s testimony about the photo-identification process.

¶45.   As to Collins’s identification, discussed at length supra, the judge held: “[G]iven the

extensive cross-examination of Mr. Collins and because all other witnesses knew Mr.

Flowers on sight, I do not believe an expert on witness identification would assist the jury

in the least bit in this case.” The quoted finding represents precisely the type of finding the

trial judge is called upon to make. In determining the admissibility of expert testimony, the

trial judge must determine whether the testimony will “assist the trier of fact” in

understanding the evidence or issues, and the judge must be satisfied that the testimony is

“more probative than prejudicial.” Corrothers, 2014 WL 2894310, at **7, 8 (¶¶ 24, 27)

(citations omitted).

¶46.   We recognize that many courts admit expert testimony regarding eyewitness

identification, and we do not hold that such expert testimony is per se inadmissible. Rather,

we recognize that the decision of “whether to admit this testimony is squarely within the

discretion of the trial judge[.]” United States v. Moore, 786 F.2d 1308, 1312 (5th Cir. 1986).


       3
        In Corrothers, Presiding Justice Randolph wrote the following about the admission
of Dr. Neuschatz’s testimony on a photo lineup after the judge determined that the lineup
was admissible:

       Neuschatz also proffered a criticism of the photo lineups presented to Josh,
       previously ruled admissible by the trial judge. Such generalized expert
       testimony in limited circumstances may be pertinent at a hearing on a motion
       to suppress, but once the court has ruled photo-lineup evidence is admissible,
       offering such testimony at trial encroaches upon a legal issue already
       determined and usurps the trial judge’s discretionary authority.

Corrothers, 2014 WL 2894310, at *55 (¶ 184) (Randolph, P.J., specially concurring).

                                              28
In Moore, the Fifth Circuit explained that “the trial court should exercise its discretion in

deciding whether or not to admit it and should balance the reliability of the testimony against

the likelihood that the testimony would overwhelm or mislead the jury.” Id. (discussing

United States v. Downing, 753 F.2d 1224 (3d Cir. 1985)). The Moore Court recognized that

a trial judge’s exclusion of expert eyewitness testimony was not harmful where “there was

evidence indicating guilt apart from the eyewitness identification.” Id. (citing United States

v. Smith, 736 F.2d 1103, 1108 (6th Cir. 1984)). The Moore court wrote:

       [I]n the present case we do not find that the district court abused its discretion
       in refusing to admit this evidence. We have earlier held and we now affirm that
       the decision whether to admit this testimony is squarely within the discretion
       of the trial judge and properly so. . . . Although admission of expert eyewitness
       testimony is proper, there is no federal authority for the proposition that such
       testimony must be admitted. The district judge has wide discretion in
       determining the admissibility of this evidence, and we hold that the district
       judge did not abuse his discretion in this case.

       In some cases casual eyewitness testimony may make the entire difference
       between a finding of guilt or innocence. In such a case expert eyewitness
       identification testimony may be critical. But this is not at all the situation in the
       case before us. Even if the eyewitness identifications of Lamberth and Holder
       are completely disregarded, the other evidence of guilt is overwhelming. . . .

       We emphasize that in a case in which the sole testimony is casual eyewitness
       identification, expert testimony regarding the accuracy of that identification is
       admissible and properly may be encouraged. In the present case, we find no
       abuse of discretion in not admitting such evidence. This was not a case where
       casual eyewitness identifications were at all critical.

Moore, 786 F.2d at 1312-13 (internal citations omitted).

¶47.   Like the eyewitnesses in Moore, Collins’s identification was far from the only

evidence of guilt in the instant case, and it cannot be labeled “critical.” No fewer than seven

other witnesses placed Flowers near Angelica Garment Factory, where Simpson’s gun was



                                                29
stolen, and near Tardy Furniture on the morning of the murders. Collins’s testimony was no

different. He identified Flowers as a man he saw outside of Tardy Furniture. Out of all of

the witnesses, Collins was the only witness placing Flowers near the scene who did not know

Flowers. The other witnesses provided even more credible testimony as they recognized

Flowers by sight, having known him previously.              If the case hinged on Collins’s

identification of Flowers, expert testimony on eyewitness identification may have been

helpful to the jury. However, as in Moore, that was not the situation.

¶48.   The trial judge made a rational and reasoned decision regarding the admissibility of

Dr. Neuschatz’s testimony based on the totality of the facts before him. We afford “the

widest possible discretion” to a trial judge’s determination on the admissibility of expert

testimony, and “that decision will only be disturbed when there has been a clear abuse of

discretion.” Smith v. State, 925 So. 2d 825, 834 (¶ 23) (Miss. 2006) (quoting Logan v. State,

773 So. 2d 338, 346-47 (¶ 31) (Miss. 2000)). The trial judge’s ruling on Dr. Neuschatz’s

testimony was not an abuse of discretion. The issue is without merit.

  III. Whether the trial court erred in not excluding evidence of a single particle of
       gunshot residue found on Flowers’s hand.

¶49.   Investigator Jack Matthews interviewed Flowers on the day of the murders and asked

him to submit to a gunshot residue test. Flowers agreed to the test. A single particle of

gunshot residue was found on the back of Flowers’s right hand. Joe Andrews, a forensic

scientist who analyzed the gunshot residue test, testified that three scenarios can result in the

presence of gunshot residue on a person’s hands: (1) the person actually fired a gun; (2) the

person was in close proximity to a discharged gun; or (3) the person handled an object that



                                               30
had gunshot residue on it. At trial, Flowers moved to exclude the evidence concerning the

gunshot residue, and the trial court denied the motion. Flowers contends that the trial court

erred in admitting evidence that a particle of gunshot residue was found on his hand

approximately three hours after the murders were reported.         Flowers claims that the

prejudicial effect of the evidence greatly outweighed the probative value, so it was

inadmissible under Mississippi Rule of Evidence 403.

¶50.   Rule 403 provides: “Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Miss. R. Evid. 403. Applying Rule 403, the trial

judge must conduct a balancing test to determine if the probative value of the evidence is

“substantially outweighed by the danger of unfair prejudice[.]” McGowen v. State, 859 So.

2d 320, 329 (¶ 29) (Miss. 2003). On appeal, we review a trial court’s decision for abuse of

discretion. Stone v. State, 94 So. 3d 1078, 1085 (¶ 20) (Miss. 2012); Baldwin v. State, 784

So. 2d 148, 156 (¶ 27) (Miss. 2001). We do not reweigh the evidence and conduct a new

balancing test. “The question on review is not whether this Court would have admitted the

evidence, but whether the trial court abused its discretion in doing so[.]” Stone, 94 So. 3d

at 1085 (¶ 20). See also Baldwin, 784 So. 2d at 156 (¶ 27) (on appeal we “must simply

determine whether the trial court abused its discretion in weighing the factors and admitting

or excluding the evidence”).

¶51.   Flowers cites Foster v. State, 508 So. 2d 1111 (Miss. 1987), in support of his

argument. In Foster, the prosecution presented testimony that paint chips found on the

                                             31
victim’s clothing were similar to paint chips found in the defendant’s car. Id. at 1117. A

chemist testified that the paint chips were “indistinguishable in color, texture, and inorganic

chemical composition; and that they therefore could have had a common origin.” Id. The

State also presented evidence that the victim’s stab wound was caused by a knife found in

the defendant’s car or one similar to it. Id. The Court characterized the testimony in Foster

as “could have” testimony, which could easily mislead a jury, and held that the testimony

was too speculative to be admissible. Id. at 1118. Thus, the Court held that the probative

value of the testimony was substantially outweighed by the danger of misleading the jury.

Id. at 1117-18.

¶52.   We have distinguished Foster in other cases when the risks associated with “could

have” testimony did not outweigh the probative value. In McGowen v. State, the Court held

testimony that a victim’s physical condition likely was caused by sexual assault did not result

in unfair prejudice or jury confusion. McGowen, 859 So. 2d at 334 (¶ 46). McGowen was

distinguishable from Foster because the testimony in McGowen “did not employ or rely on

phrases such as ‘could have’ or ‘possible.’ Rather, [the witness] merely testified as to the

condition of [the victim’s] body.” Id. at 331 (¶ 36).

¶53.   In the instant case, Andrews testified that the presence of gunshot residue could result

from three scenarios, and Andrews’s testimony was clear that the residue did not

unequivocally prove that Flowers had fired a gun:

       Q:     Now, you are not telling the jury, are you, that finding a single particle
              of gunshot residue says that any individual actually pulled the trigger
              on a firearm, are you?




                                              32
         A:    No, ma’am. The conclusions you can draw from finding and identifying
               the gunshot residue on the hands of the person are one of three
               conclusions: That person has discharged a weapon. That person has
               been in close proximity to a discharged weapon or that person has
               handled an object that has gunshot residue on it. Those are the three
               conclusions you can draw from a positive gunshot residue
               identification.

               ...

         Q:    The fact that you found that single particle does not bring this jury or
               us one step closer to knowing [by] which one of these three means that
               gunshot residue particle got on Mr. Flowers’s hand; is that correct?

         A:    Yes, ma’am, that’s correct.

Andrews’s testimony is distinguishable from the testimony contemplated in Foster. Andrews

set out three events that could result in a person having gunshot residue on his hands. He

clearly explained that the gunshot residue did not unequivocally show that Flowers had fired

a gun. Because Andrews’s testimony was clearly explained, there is little risk that the jury

was confused or misled by the testimony. As such, the testimony was admissible under Rule

403, and the trial judge did not abuse his discretion in admitting it. The issue is without

merit.

 IV. Whether the evidence presented at trial was insufficient to support a finding
     of guilt beyond a reasonable doubt, as mandated by the Fifth and Fourteenth
     Amendments to the United States Constitution and Section Fourteen of the
     Mississippi Constitution.

¶54.     Flowers claims that the evidence produced at trial was insufficient to support the

verdict. He attacks the sufficiency of the evidence from multiple angles: (1) lack of motive;

(2) lack of evidence that Flowers knew Simpson kept a gun in his car; (3) lack of evidence

that one person, acting alone, committed the murders; (4) the eyewitnesses were not credible;



                                              33
and (5) the physical evidence lacked probative value. Flowers contends that the instant case

is one of circumstantial evidence rather than direct evidence; therefore, he argues that the

State was required to meet a higher burden of proof.

¶55.   At the end of the State’s rebuttal, Flowers moved for JNOV. The trial court denied

the motion. “A motion for JNOV challenges the legal sufficiency of the evidence.” Taylor

v. State, 110 So. 3d 776, 782 (¶ 19) (Miss. 2013) (citing Knight v. State, 72 So. 3d 1056,

1063 (¶ 24) (Miss. 2011)). We apply the following standard when reviewing the sufficiency

of the evidence:

       When ruling on a motion for JNOV, the trial court must view all credible
       evidence consistent with the defendant’s guilt in the light most favorable to the
       State. The Court will not disturb the trial court’s ruling if the evidence shows
       beyond a reasonable doubt that [the] accused committed the act charged, and
       that he did so under such circumstances that every element of the offense
       existed; and where the evidence fails to meet this test it is insufficient to
       support a conviction, and reversal is required. Thus, the Court must determine
       whether, after viewing the evidence in the light most favorable to the State,
       any rational trier of fact could have found the essential elements of the crime
       beyond a reasonable doubt.

Taylor, 110 So. 3d at 782 (¶ 19) (internal citations and quotations omitted). Flowers was

charged with four counts of capital murder with the underlying felony of armed robbery.

Thus, the State was required to prove that Flowers killed each of the victims “without the

authority of law by any means or any manner . . . [w]hen done with or without any design

to effect death, [while] engaged in the commission of the crime of . . . robbery . . . .” Miss.

Code Ann. § 97-3-19(2)(e) (Rev. 2014).

       A. Burden of Proof




                                              34
¶56.   Because Flowers claims that the burden of proof – and, consequently, the sufficiency

of the evidence analysis – depends on whether the evidence is direct or circumstantial, we

address burden of proof first. Flowers claims that the case is based on circumstantial

evidence, not direct evidence. Therefore, he claims that the State must meet the following

burden of proof:

       It is fundamental that convictions of crime cannot be sustained on proof which
       amounts to no more than a possibility or even when it amounts to a probability,
       but it must rise to the height which will exclude every reasonable doubt; that
       when in any essential respect the State relies on circumstantial evidence, it
       must be such as to exclude every other reasonable hypothesis than that the
       contention of the State is true, and that throughout the burden of proof is on the
       State.

Westbrook v. State, 32 So. 2d 251, 252 (Miss. 1947).

¶57.   Flowers’s case, however, is not a case of circumstantial evidence. If an eyewitness

is produced or a statement from the defendant is admitted, the case is not circumstantial.

Rubenstein v. State, 941 So. 2d 735, 785 (¶ 225) (Miss. 2006); Ladner v. State, 584 So. 2d

743, 750 (Miss. 1991). Further, a defendant’s “admission of culpability . . . to a third party

who is not a law enforcement officer constitutes direct evidence of a crime.” Minor v. State,

831 So. 2d 1116, 1119 (¶ 9) (Miss. 2002) (citing Ladner, 584 So. 2d at 750). In Ladner, the

Court held that a case is not based only on circumstantial evidence even if the only direct

evidence is a “jailhouse confession.” Ladner, 584 So. 2d at 750. See also Foster, 508 So.

2d at 1115 (Court held that, without the jailhouse confession, the prosecution’s case would

have been entirely circumstantial), overruled on other grounds by Powell v. State, 806 So.

2d 1069 (Miss. 2001).




                                              35
¶58.   Odell Hallmon, a jailhouse informant, testified that Flowers had told him that he had

committed the murders.      According to Ladner, a jailhouse informant’s testimony is

considered direct evidence, and when a jailhouse informant’s testimony is present, the case

is not circumstantial. See Moore v. State, 787 So. 2d 1282, 1288 (¶ 18) (Miss. 2001)

(discussing Ladner, 584 So. 2d at 750). Following the Court’s holdings in Ladner and

Moore, the trial judge found that Hallmon’s testimony provided direct evidence of the

crimes. We hold that the trial judge did not err in applying the Court’s precedent. Under

Ladner, the case sub judice is not one of circumstantial evidence, and the Westbrook

standard suggested by Flowers does not apply.

       B. Sufficiency of the Evidence

¶59.   Flowers claims that the evidence presented at trial was insufficient to support a finding

of guilt beyond a reasonable doubt. Flowers asserts that the State failed to prove motive; that

there was a lack of evidence that Flowers knew Simpson kept a gun in his car; that the

evidence does not support the State’s theory that the murders were committed by a single

gunman; that the eyewitnesses were not credible; and that the physical evidence lacked

probative value. First, although Flowers vehemently argues on appeal his theory that the

number of victims and the placement of the gunshot wounds demonstrate that the murders

were “almost certainly not a one-man crime,” that theory was not presented at trial.

Therefore, Flowers cannot raise it on appeal. Lyons v. State, 766 So. 2d 38, 40 (¶ 7) (Miss.

Ct. App. 2000) (“Failure to raise this defense waives the right of the appellant to raise it

here.”).




                                              36
¶60.   Regarding motive, Flowers claims that the State failed to prove that he was so

aggrieved about being firing from Tardy Furniture that the firing resulted in his murdering

four people. To support his contention, Flowers cites his statement given to the police

shortly after the murders. Flowers told investigators that he had worked at Tardy Furniture

for about three days at the beginning of July 1996. On his last day, Flowers improperly

loaded large tractor batteries, and they fell off the truck and were damaged. Bertha Tardy

told Flowers that the cost of the damaged batteries would be deducted from his paycheck.

Flowers failed to return to work after the incident. After not reporting to work for several

days, Flowers called Bertha Tardy and asked if he still had a job. Bertha Tardy told Flowers

that he no longer had a job and that the majority of his paycheck was “covered up with [the]

batteries.” Flowers never stated that he was angry with Bertha Tardy for losing his job.

¶61.   Flowers is correct that the State did not provide direct evidence of any anger toward

the Tardy Furniture employees, but the State did provide evidence that Flowers had lost his

job at Tardy Furniture and had his paycheck reduced as a result of the damaged batteries.

A reasonable juror could conclude from that evidence – and it is in the jury’s province to

draw such inferences if reasonable – that Flowers had a motive to rob Tardy Furniture and

kill four employees. See Howell v. State, 860 So. 2d 704, 739 (¶ 125) (Miss. 2003) (“It is

within the jury’s province to draw reasonable inferences from facts based on experience and

common sense.”) (citing Lewis v. State, 573 So. 2d 719, 723 (Miss. 1990)). The State’s

evidence supported the contention that Flowers had a motive.

¶62.   Next, Flowers contends that the State’s theory hinged on proving that Flowers knew

he would find a gun in Simpson’s car the morning of the murders, and he claims the State

                                            37
failed to prove that. He cites Simpson’s testimony that Flowers did not know Simpson’s gun

was in his car on the morning of the murders:

       Q.     Your testimony was you did not recall agreeing and saying there was
              no way that Curtis Flowers would have known that gun was in the car
              that particular morning.

       A.     No. He, he didn’t know it.

       Q.     He did not know it.

       A.     He did not know it.

Although Simpson stated at that point in his testimony that Flowers did not know the gun

was in his car on the morning of the murders, Simpson had first testified that Flowers had

seen the gun in Simpson’s car previously. In a followup question regarding whether Flowers

knew the gun was in his car that morning, Simpson confirmed that Flowers had seen the gun

in his car before.

       Q.     So you had known [Flowers] pretty much forever.

       A.     Yes, sir. Yes, sir.

       Q.     Did he know that you had this pistol?

       A.     Yes, he did.

       Q.     Had he seen it in your car before?

       A.     Yes, sir.

       ...

       Q.     You were asked . . . whether or not there was any way he knew the gun
              was in there that morning and your answer was that it wasn’t; is that
              right?

       A.     That’s right.


                                            38
       Q.     But you were also asked how [Flowers] knew you kept a gun in your
              car, I believe. How did [Flowers] know you had had a gun in your car?
              Had he seen it in there before?

       A.     Yes, sir, he had.

¶63.   Because Flowers previously had seen Simpson’s gun in his car, the evidence supports

the contention that Flowers knew he would find the gun in Simpson’s car the morning of the

murders. The jury, as “the ultimate finder of fact,” is responsible for considering the

evidence and weighing the credibility of witnesses, and the Court will not reweigh the

evidence on appeal. Conley v. State, 790 So. 2d 773, 807 (¶ 13) (Miss. 2001) (“We do not

have the task of re-weighing the facts in each case and going behind the verdict of the jury

to detect whether the testimony and evidence they chose to believe was or was not the most

credible.”). Whether the jury believed that Flowers knew Simpson kept a gun in his car was

one piece of evidence for the jury to consider.

¶64.   Flowers also attacks the credibility of the witnesses who placed him walking between

his home, Angelica Garment Factory, and Tardy Furniture the morning of the murder. He

asserts that the $30,000 reward for information lured the witnesses to testify. Several

witnesses testified that they were aware a reward was being offered for information.4 Some

witnesses were not asked about the reward. Two of Flowers’s fact witnesses, Latarsha

Blissett and Kittery Jones, testified that investigators had implied that they would receive the

reward if they provided statements implicating Flowers. The reward was never given. The

jury heard testimony related to the reward, and Flowers’s counsel argued during closing



       4
      The State’s witnesses who testified that they knew about the reward were: Patricia
Odom, Katherine Snow, James Kennedy, Mary Fleming, and Clemmie Fleming.

                                              39
argument that investigators allegedly had tried to entice witness statements by offering the

reward. The issue was within the jury’s province of determining credibility. See Taylor, 110

So. 3d at 784 (¶ 29).

¶65.   Flowers also claims that testimony from people who saw him on the morning of the

murders is not credible because the witnesses’ testimony contains “irreconcilable

differences.” One difference Flowers cites is the witnesses’ descriptions of his clothing. One

witness testified that Flowers was wearing black windsuit pants; another said Flowers had

on brown pants; and another thought Flowers wore white shorts. Flowers also points out that

the times at which the witnesses claimed to have seen him at various locations in Winona

overlap. For example, James Kennedy testified that he saw Flowers in front of his home at

7:15 a.m., but Katherine Snow said that she saw Flowers at Angelica at 7:15. Inconsistency

in witness testimony is an issue of credibility for the jury. “It is within the jury’s province

to determine the weight and credibility to give to the evidence, resolving all conflicts in the

evidence.” Taylor, 110 So. 3d at 784 (¶ 29).

¶66.   Finally, Flowers claims that the physical evidence linking him to the murders lacks

probative value. First, he argues that the bloody shoeprint found at the scene does not

connect him to the crime, because another person could have come into the store after the

murders and stepped on the bloody floor. His assertion lacks merit. The shoeprint was a size

ten-and-a-half Fila Grant Hill tennis shoe. Flowers wore a size ten-and-a-half shoe. A

shoebox for size ten-and-a-half Fila Grant Hill tennis shoes was found in Flowers’s

girlfriend’s home. Witnesses testified that they had seen Flowers wearing Fila Grant Hill

shoes. Second, Flowers contends that the gunshot residue particle found on his hand has no

                                              40
probative value, claiming that it could have come from another source. As discussed above,

Joe Andrews, a forensic scientist, testified that the gunshot residue found on Flowers’s hand

could prove one of three things: (1) he had discharged a weapon; (2) he had been in close

proximity to a discharged weapon; or (3) he had handled an object that had gunshot residue

on it. Although the gunshot residue could have come from another source (for example,

coming in contact with an item at the police station), one alternative was that Flowers

actually fired a weapon. Thus, the evidence does have some probative value.

¶67.   The State responds to Flowers’s claim that the evidence was insufficient by citing the

following evidence linking Flowers to the murders: Flowers was fired from Tardy Furniture

and was told he would not receive pay for his days worked. Flowers was seen standing next

to Simpson’s car – where the gun used in the murders was located – on the morning of the

murders. Numerous witnesses saw Flowers walking to and from Tardy Furniture on the

morning of the murders. The shoeprint found at the crime scene matched Flowers’s shoe size

and matched a pair of shoes he had been seen wearing. Flowers tested positive for gunshot

residue. The only paperwork that had been disturbed at Tardy Furniture was Flowers’s

paycheck and timecard. Cash was found hidden in Flowers’s headboard after the murders.

Hallmon testified that Flowers confessed to committing the murders. When the evidence is

viewed as a whole and in the light most favorable to the State, we conclude that any rational

trier of fact could have found that the State proved the essential elements of capital murder

beyond a reasonable doubt. Accordingly, the issue is without merit.

   V. Whether Flowers’s right to a fair trial, as guaranteed by Mississippi law and
      the Fourteenth Amendment to the United States Constitution, was violated



                                             41
       by the prosecution referencing facts not in evidence during the culpability
       phase closing argument.

¶68.   Flowers claims that the prosecution improperly argued facts not in evidence during

its culpability phase closing argument. During closing arguments, attorneys may “fairly sum

up the evidence,” comment on facts in evidence, and “draw whatever deductions and

inferences” seem proper from the facts. Rogers v. State, 796 So. 2d 1022, 1027 (¶15) (Miss.

2001); Bell v. State, 725 So. 2d 836, 851 (¶ 40) (Miss. 1998) (citations omitted). We apply

the following standard of review to attorney misconduct during opening statements and

closing arguments: “whether the natural and probable effect of the improper argument is to

create unjust prejudice against the accused so as to result in a decision influenced by the

prejudice so created.” Sheppard v. State, 777 So. 2d 659, 661 (¶ 7) (Miss. 2001) (citing

Ormond v. State, 599 So. 2d 951, 961 (Miss. 1992)).

¶69.   “Where prosecutorial misconduct endangers the fairness of a trial and the impartial

administration of justice, reversal must follow.” Goodin v. State, 787 So. 2d 639, 645 (¶ 18)

(Miss. 2001) (citing Acevedo v. State, 467 So. 2d 220, 226 (Miss. 1985)). However, we have

held that, even if a prosecutor’s statements during closing arguments are inconsistent with

the facts, reversal is not warranted if the statements do not rise to the level necessary to

endanger the impartial administration of justice and the fairness of the trial. Pitchford v.

State, 45 So. 3d 216, 233 (¶ 62) (Miss. 2010) (quoting Goodin, 787 So. 2d at 645 (¶ 18)).

In Pitchford, the prosecutor said that the defendant “went to the sheriff’s department the

same morning of the murder and he admitted it.” Pitchford, 45 So. 3d at 233 (¶ 62). The




                                             42
testimony, however, was that the defendant “talked to” an investigator. Id. Despite the

inconsistency, the Court held that the statement did not result in an unfair trial. Id.

¶70.   Flowers claims that, during closing argument, the prosecution misstated facts about:

(1) the time Sam Jones discovered the victims at Tardy Furniture; (2) Flowers’s motive; (3)

Porky Collins’s response to the photo arrays; and (4) the location of the victims at the crime

scene. The State correctly asserts that Flowers did not object contemporaneously to the

statements during closing argument. Generally, even in death penalty cases, “the failure to

object to the prosecution’s statements in closing argument constitutes a procedural bar.”

Ross I, 954 So. 2d at 1001 (¶ 71) (citing Spicer v. State, 921 So. 2d 292, 309 (Miss. 2006);

Williams v. State, 684 So. 2d 1179, 1203 (Miss. 1996)). However, in some cases, we have

considered the merits of the argument even where the defendant failed to object

contemporaneously. See Ross I, 954 So. 2d at 1002 (¶ 71) (citing cases).

¶71.   In Flowers II, we recognized plain error for misstatements by the prosecution in

closing arguments. Flowers II, 842 So. 2d at 550-56 (¶¶ 52-74). Therefore, because we

found plain error on a similar issue in Flowers II, we proceed under a plain error analysis for

the purpose of a thorough analysis. Foster v. State, 639 So. 2d 1263, 1289 (Miss. 1994)

(“defendant who fails to make a contemporaneous objection must rely on plain error to raise

the assignment on appeal”) (citing Gray v. State, 487 So. 2d 1304, 1312 (Miss. 1986)). To

reverse under the plain error doctrine, an error must have occurred and that error must have

“resulted in a manifest miscarriage of justice” or “seriously affect[ed] the fairness, integrity[,]

or public reputation of judicial proceedings.” Conners v. State, 92 So. 3d 676, 682 (¶ 15)

(Miss. 2012) (quoting Brown v. State, 995 So. 2d 698, 703 (¶ 21) (Miss. 2008)).

                                                43
       A. Sam Jones’s Arrival at Tardy Furniture

¶72.   Flowers claims that, during closing argument, the State misrepresented Sam Jones’s

testimony regarding the timeline of events on the morning of the murders. Jones died prior

to Flowers’s 2010 trial, so his testimony from the 2007 trial was read into evidence. Jones

initially testified that he arrived at Tardy Furniture between 9:15 and 9:30 a.m. When the

State questioned Jones about the timeline, the State’s attorney misstated Jones’s arrival time

as being closer to 10:00 a.m. The State’s attorney asked, “. . . when you got to the store, that

was going to be closer on up to 10 o’clock, wasn’t it?” Flowers’s counsel objected to

leading, but the judge overruled the objection. However, Jones never responded to the

question. During closing argument, the State discussed the timeline and the attorney said:

“Mr. Sam Jones came into the store slightly after 10:00 on the morning of the 16th and

discovered the bodies.” Flowers claims the statement was prejudicial because it skewed the

timeline in the State’s favor. Both Porky Collins and Clemmie Flemming testified that they

had seen Flowers near Tardy Furniture around 10:00 a.m. Flowers claims that, if Jones’s

testimony that he arrived at the store between 9:15 and 9:30 had been described accurately,

it would have raised a question in the jurors’ minds about what Flowers was doing near the

murder scene thirty to forty-five minutes after the murders could have occurred.

¶73.   The State responds that, although Jones did not testify to arriving at the store at 10:00

a.m., other evidence presented at trial supported that position. For example, the 911 call

reporting the murders was placed at 10:20 a.m., and Jones testified that he was in Tardy

Furniture for ten to fifteen minutes before going to a nearby business to call for help. So,

working backwards, the conclusion could be drawn that Jones arrived at Tardy Furniture


                                              44
closer to 10:00 a.m., rather than 9:15 or 9:30. Further, the State claims that any misstatement

relating to the time Jones arrived was harmless error, and the error was cured with the

following comments by defense counsel in their closing statement:

       [Sam Jones] came in and you know, his testimony, I looked it up as they were
       saying that. His original testimony was he might have gotten there, started his
       voyage to go in to – as early as 9:00. He, he thought maybe he got there closer
       to 9:30. But we know from the police that the call came in at 10:20. And if you
       will remember, Mr. Jones also told you he thought it might have been 15
       minutes before he recovered himself enough to go and actually make the
       report. So there is a bunch of time in there.

Sam Jones did not testify that he arrived at Tardy Furniture at 10:00 a.m. However, a

reasonable inference could be drawn from the other evidence, including the 911 call, that

Jones may have arrived closer to 10:00. Defense counsel’s summary of the timeline in

closing and the reasonable inference that could be drawn from the evidence as a whole

preclude a finding of plain error on the issue.

       B. Flowers’s Motive

¶74.   Next, Flowers claims that the following statement by the prosecutor about Flowers’s

alleged motive was not based on facts in evidence:

       The investigators learned pretty quickly when they asked who in the world
       could have had some reason, some motive, some anything to attack four people
       like this.

       Have you had anybody that’s had beef with the store? Just one. Well, that
       doesn’t mean he did this though, does it? No. But you check that out. You look
       at him. And in the course of deciding what, if anything, Curtis Flowers had to
       do with this crime.

In his brief, Flowers claims that no evidence was presented to support the State’s theory that

Flowers was angry about being fired. To the contrary, the State identified several facts that



                                              45
supported the contention that Flowers “had beef” with Tardy Furniture: Flowers lost his job

days before the murders. Bertha Tardy deducted the cost of damaged inventory from

Flowers’s paycheck. Police Chief John Johnson testified that the Tardy family considered

Flowers a threat and that “they were concerned about their safety dealing with him.”

Investigator Jack Matthews testified Flowers was the only employee who had been fired from

Tardy Furniture in the last few years and was the only person they had had any problems

with. Doyle Simpson testified that he had heard that Flowers had “problems” with Tardy

Furniture. A reasonable inference could be drawn from the evidence that Flowers had ill will

toward Tardy Furniture. We cannot say that the State’s comment during closing rose to the

level of plain error.

       C. Porky Collins’s Response to the Photo Lineups

¶75.   In his third assignment of error, regarding alleged misstatements by the prosecution,

Flowers claims that the prosecutor misrepresented Porky Collins’s response to the photo

lineup that included Doyle Simpson’s photograph. The misrepresentation was prejudicial

to Flowers’s defense, he claims, because his defense was based partially on the theory that

Simpson committed the murders. Collins testified that he did not remember if he had

identified Simpson as one of the men he had seen arguing outside Tardy Furniture. Notes

taken by an investigator during the photo arrays provided that Collins had said that two of

the individuals resembled one of the men but that the “hairline was further back.”

Investigator Wayne Miller testified that Collins pointed to Simpson during the photo array

and said he looked like the person, but he could not be positive. Collins was shown a second

array of photos, and he definitively identified Flowers.


                                            46
¶76.   During closing argument, the State’s attorney said the following about Collins’s

identification: “He said the guy ain’t there. They took another six photographs and said look

at this second set. He said that’s him right there. . . . You know, see if he is in there. No, he

is not. Is he in the second group? Yeah. That’s him right there.” The State correctly

reiterated that Collins had identified Flowers in the second photo array as one of the men he

had seen arguing outside Tardy Furniture. While the State’s statement that Collins said “the

guy ain’t there” was not an accurate representation of Collins’s response to the first photo

array, the reality is that Collins did not identify Simpson. He said he could not be sure. He

pointed to Simpson’s photograph in the first array and said he “looked like” the man he saw

but he “unable to be positive.” However, when Collins saw Flowers in the second array, he

was positive. The prosecutor’s statement was slightly inconsistent with the facts, but we

cannot say that the comment rose to the level of plain error.

       D. Location of the Victims at the Crime Scene

¶77.   Flowers contends that the prosecutor incorrectly described the location of the victims

at the crime scene. The prosecutor stated during closing argument that Sam Jones discovered

“all four victims basically laying in a pile, in a group right at the front counter in Tardy

Furniture Store.” The evidence presented at trial, however, showed that three of the victims

were lying a few feet apart from one another, while the fourth victim was a considerable

distance away. Flowers argues that the prosecutor’s statement was prejudicial because it

aided in undercutting the theory that the murders were committed by more than one person.

Essentially, Flowers claims that the idea of four victims “piled together” aligns with a one-

person crime, whereas victims spread across a larger area paints the picture of a two-man


                                               47
crime. The State admits that the “lying in a pile” statement was incorrect, but the State points

out that three of the four victims were lying close to one another. The State asserts that the

statement did not prejudice Flowers. As previously mentioned, Flowers did not present the

“two-man crime” theory to the jury. And Flowers does not claim that the prosecutor’s

statement prejudiced him in any other way. Applying the plain error doctrine, the statement

may have been an error, but we cannot say that it resulted in a manifest miscarriage of justice

or resulted in an unfair trial. See Conners, 92 So. 3d at 682 (¶ 15).

       E. Conclusion

¶78.   We recognize that, in Flowers II, the prosecution’s misstatement of facts during

closing argument was one basis for reversal. Flowers II, 842 So. 2d at 556 (¶ 74). In that

appeal, Flowers cited approximately fourteen alleged misstatements. Id. at 555 (¶ 68). Taken

together, the cumulative effect of the misstatements, along with several other errors,

warranted reversal. Id. at 556, 564 (¶¶ 74, 104). In today’s case, Flowers cites four

statements made during closing argument that he claims were not supported by the evidence.

The prosecutor’s comments regarding Jones’s arrival time, Flowers’s having “beef” with the

store, and Collins’s identification were supported by the evidence and/or were proper

“deductions and inferences” drawn from the facts. Rogers, 796 So. 2d at 1027 (¶15); Bell,

725 So. 2d at 851 (¶ 40). The statement about the bodies being piled up was a misstatement,

but it does not satisfy the standard for plain error. We reiterate that Flowers failed to object

to the statements during closing, therefore, we apply the plain error doctrine on appeal. Plain

error is not present, as we have only one misstatement, which did not result in a manifest




                                              48
miscarriage of justice or adversely affect the fairness of the proceedings. Conners, 92 So.

3d at 682 (¶ 15). The issue is without merit.

 VI. Whether the jury selection process violated Flowers’s fundamental
     constitutional rights protected by the Sixth and Fourteenth Amendments, and
     whether the trial court erred in denying Flowers’s Batson claims.

¶79.   Flowers claims that the State exercised its peremptory strikes in a racially

discriminatory way by striking five African-American venire members after employing

disparate questioning and citing pretextual reasons for the strikes. “[T]he State’s privilege

to strike individual jurors through peremptory challenges is subject to the commands of the

Equal Protection Clause.” Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson established

a three-part test for determining whether peremptory challenges are discriminatory and, thus,

should be disallowed. Id. at 96-98.

¶80.   When a defendant challenges a peremptory strike under Batson, the defendant must

first “establish a prima facie case of discrimination in the selection of jury members.”

Thorson v. State, 721 So. 2d 590, 593 (¶ 2) (Miss. 1998) (citing Berry v. State, 703 So. 2d

269, 294 (¶¶ 94-96) (Miss. 1997) (citing Batson, 476 U.S. at 96-98)). Then, the burden shifts

to the State to demonstrate that the juror was struck for a nondiscriminatory, or race-neutral,

reason. Thorson, 721 So. 2d at 593 (¶ 2). The defendant then has the opportunity to rebut

the State’s reason. Id. Finally, considering all of the evidence, the trial court must determine

if the State “engaged in purposeful discrimination” or if the strike was made for a race-

neutral reason. Id. In other words, the trial court must determine whether the race-neutral

reasons given by the State were credible or merely a pretext for discrimination. Five indicia




                                              49
of pretext should be considered when analyzing the race-neutral reasons for a peremptory

strike:

          (1) disparate treatment, that is, the presence of unchallenged jurors of the
          opposite race who share the characteristic given as the basis for the challenge;
          (2) the failure to voir dire as to the challenged characteristic cited; (3) the
          characteristic cited is unrelated to the facts of the case; (4) lack of record
          support for the stated reason; and (5) group-based traits.

Manning v. State, 765 So. 2d 516, 519 (¶ 9) (Miss. 2000) (quoting Mack v. State, 650 So.

2d 1289, 1298 (Miss. 1994)).

¶81.      We give great deference to the trial court’s determinations under Batson and will

reverse only if the trial court’s decision is clearly erroneous or against the overwhelming

weight of the evidence. Berry v. State, 802 So. 2d 1033, 1037 (¶ 9) (Miss. 2001); Thorson,

721 So. 2d at 593 (¶ 4). We have expounded on the standard of review afforded to trial

judges regarding Batson findings as follows:

          When a Batson issue arises, the trial judge acts as the finder of fact. Berry v.
          State, 703 So. 2d 269, 295 (Miss. 1997). . . . The race neutral explanations
          must be viewed in the light most favorable to the trial court’s findings. Id.
          Trust is placed in a trial judge to determine whether a discriminatory motive
          drives the reasons given for striking a potential juror. See Webster v. State, 754
          So. 2d 1232, 1236 (Miss. 2000). The determination of discriminatory intent
          will likely turn on a trial judge’s evaluation of a presenter’s credibility and
          whether an explanation should be believed. Batson, 476 U.S. at 98[.] Thus,
          trial courts are given great deference in their findings of fact surrounding a
          Batson challenge. Lockett v. State, 517 So. 2d 1346, 1350 (Miss. 1987). . . .

Walker v. State, 815 So. 2d 1209, 1215 (¶ 12) (Miss. 2002).

¶82.      The Montgomery County clerk summoned a special venire of 600 potential jurors for

Flowers’s sixth trial. The initial venire consisted of forty-two percent African-Americans




                                                 50
and fifty-five percent whites.5 After for-cause challenges, the venire consisted of twenty-

eight percent African-Americans and seventy-two percent whites. During jury selection, the

State accepted the first African-American juror, then exercised six peremptory strikes, five

of which were against African-American venire members. At the point when five African-

Americans were struck by the State, the trial court found that a prima facie case of

discrimination existed. The State then provided race-neutral reasons for the five strikes, and

Flowers’s counsel offered rebuttals for the State’s reasons. Ultimately, the trial court found

that the State’s reasons were credible. On appeal, Flowers claims that the State exercised its

peremptory strikes in a racially discriminatory way by: (1) disparately questioning African-

American jurors as compared to white jurors; (2) responding differently to African-American

jurors’ voir dire answers as compared to answers of white venire members; and (3)

mischaracterizing the voir dire responses of African-American jurors.

       A. Disparate Questioning

¶83.   Flowers claims that the questioning of African-American and white jurors was so

“starkly different” that the questioning lead to purposeful discrimination. First, Flowers

asserts that the State asked potential African-American jurors more questions during

individual voir dire than potential white jurors. Flowers claims that all African-Americans

who were struck by the State were asked more than ten questions. That statement is not

supported by the record. For example, the State asked Carolyn Wright, an African-American

against whom the State exercised a peremptory strike, only three questions. However,

overall, the State did ask more questions of African-American jurors than of potential white

       5
           The remaining venire members did not identify their race on the juror questionnaire.

                                               51
jurors. The State responds that more questions were asked only when a potential juror’s

answers to voir dire questions were unclear or needed further elaboration. Disparate

questioning is evidence of purposeful discrimination. Miller-el v. Cockrell, 537 U.S. 322,

344 (2003); Manning, 765 So. 2d at 520 (¶ 15). However, evidence of disparate questioning,

alone, is not dispositive of racial discrimination. Hughes v. State, 90 So. 3d 613, 626 (¶ 37)

(Miss. 2012); Manning, 765 So. 2d at 520 (¶ 15); Berry, 802 So. 2d at 1039 (¶ 20).

¶84.    Second, Flowers claims that the State did not question white venire members about

their relationships with defense witnesses even though African-American jurors were

extensively questioned about similar relationships. To support his argument, Flowers claims

that during voir dire examination by the trial court, four white venire members – Larry

Blaylock, Harold Waller, Marcus Fielder, and Bobby Lester – stated that they knew defense

witnesses. The record reveals that the potential jurors knew members of law enforcement,

the Tardy family, and the victims; but they did not know members of the Flowers family.

Of the white jurors who survived for-cause challenges, five knew members of Flowers’s

family. Four of them knew only one member of Flowers’s family; the State did not follow

up with them. Pamela Chesteen knew Flowers’s father, mother, sisters, and a cousin. The

State did not question Chesteen about the relationships during voir dire; however, the trial

court asked Chesteen whether the relationships would affect her ability to serve as a juror,

and she said they would not. Several African-American venire members were questioned

about their relationships with Flowers’s family, as will be discussed in detail in the following

section. However, the State did not question all potential African-American jurors about

their relationships with persons involved in the case. For example, Alexander Robinson, an

                                              52
African-American who was selected to be a juror, stated that he knew Flowers’s brother, but

the State did not question Robinson about that relationship.

¶85.   The State’s assertion that elaboration and followup questions were needed with more

of the African-American jurors is supported by the record. Most of the followup questions

pertained to the potential juror’s knowledge of the case, whether they could impose the death

penalty, and whether certain relationships would influence their decision or prevent them

from being fair and impartial. The jurors who had heard little about the case, who said they

would not be influenced by what they had heard, and who said they would not be influenced

by relationships were asked the fewest questions. The jurors who knew more about the case,

who had personal relationships with Flowers’s family members, who said they could not be

impartial, or who said they could not impose the death penalty were asked more questions.

Those issues are appropriate for followup questions.

¶86.   We have held that voir dire “is conducted under the supervision of the court, and a

great deal must, of necessity, be left to its sound discretion.” Howell v. State, 860 So. 2d at

726 (¶ 67) (quoting Ballenger v. State, 667 So. 2d 1242, 1250 (Miss. 1995)). “The trial court

has broad discretion in passing upon the extent and propriety of questions addressed to

prospective jurors.” Howell, 860 So. 2d at 727 (¶ 70) (quoting Stevens v. State, 806 So. 2d

1031, 1062 (¶ 140) (Miss. 2001)). The trial judge participated in voir dire, asking his own

questions when necessary.      Flowers was given ample opportunity to question jurors,

rehabilitate jurors, and make challenges. That he had these opportunities is evidence of a fair

and proper jury selection process. See Howell, 860 So. 2d at 726 (¶ 69); Stevens, 806 So.




                                              53
2d at 1062 (¶ 139). There is no evidence of discrimination based on the number of questions

asked alone.

       B. Disparate Treatment of Individual Venire Members

¶87.   Flowers also contends that the State: (1) responded differently to African-American

jurors’ voir dire answers compared to the answers of white venire members, and (2)

mischaracterized the voir dire responses of African-American jurors. For the purpose of our

analysis, the two issues are addressed together by discussing the African-American venire

members who were struck from the venire by the State’s use of a peremptory strike. We

address the State’s race-neutral reasons for striking the jurors, as well as Flowers’s arguments

regarding each, which includes his contentions that the State mischaracterized the voir dire

responses of the jurors and responded differently to them.

                                     1. Carolyn Wright

¶88.   The State gave the following reasons for its peremptory strike of Carolyn Wright: (1)

she knew several defense witnesses; (2) she was sued by Tardy Furniture for an overdue

account; and (3) she had worked with Archie Flowers Sr. at Wal-Mart. At the Batson

hearing, Flowers offered rebuttals for the State’s reasons, but the trial court held that the

State’s reasons for striking Wright were race-neutral. The trial court summed up its finding

by stating:

       If the only reason the State offered was that she knows some of these defense
       witnesses, then there might be something there. But the fact is knowing these
       defense witnesses that you’re intending to call, plus the fact that Tardy
       Furniture had to sue her, plus the fact that she worked with Archie, in my
       mind, creates race-neutral reasons for striking her.




                                              54
¶89.   One reason the State gave for striking Wright was that she knew multiple defense

witnesses. In fact, Wright knew a total of thirty-four people who were involved with

Flowers’s case. Flowers argues that striking Wright because she knew several potential

witnesses was pretextual because the State did not strike white jurors who were acquainted

with multiple people involved in the case. Specifically, Flowers points to Pamela Chesteen,

who knew thirty-one people involved in the case; Harold Waller, who knew eighteen people

involved in the case; and Bobby Lester, who knew twenty-seven people involved in the case.

We recognize that one of the indicia of pretext is “the presence of unchallenged jurors of the

opposite race who share the characteristic given as the basis for the challenge.” Manning,

765 So. 2d at 519 (¶ 9). However, the number of acquaintances was not the sole reason

given by the State, so the basis is not an automatic showing of pretext. Hughes, 90 So. 3d

at 626 (¶ 37) (“Where multiple reasons lead to a peremptory strike, the fact that other jurors

may have some of the individual characteristics of the challenged juror does not demonstrate

that the reasons assigned are pretextual.”).

¶90.   The second reason the State gave for striking Wright was that she had been sued by

Tardy Furniture. As a rebuttal to that reason, Flowers alleged at the Batson hearing that the

State did not question white jurors about their accounts at Tardy Furniture. However, the

court had asked all jurors during group voir dire if they had accounts at Tardy Furniture and

if they had been sued by the store. The court found that the basis was race neutral because

none of the white jurors had been sued by Tardy Furniture. On appeal, Flowers claims that

the State mischaracterized Wright’s litigation with Tardy Furniture by claiming that her

wages had been garnished as a result of the litigation. Nothing in the record supports the

                                               55
contention that Wright’s wages were garnished. However, that does not change the fact that

being sued by Tardy Furniture was a race-neutral reason for striking Wright. Prior litigation

is a race-neutral reason for a preemptive strike. See Webster v. State, 754 So. 2d 1232, 1236

(¶¶ 9-11) (Miss. 2000) (finding that potential juror’s company being sued by defense attorney

in previous and unrelated litigation was sufficient race-neutral reason for peremptory strike).

¶91.   The State’s third reason for striking Wright was that she worked with Archie Flowers

Sr. at Wal-Mart. At the Batson hearing, Flowers rebutted that reason by comparing Wright’s

working relationship with Archie to Chesteen, a teller at a local bank where members of the

Flowers family were customers. The trial court found this to be a race-neutral reason and

found that Wright’s working relationship with Archie was distinguishable from the

professional relationship Chesteen had with the Flowers family. Chesteen worked at a local

bank in Winona and stated that she knew Archie Flowers Sr., Lola Flowers, and Flowers’s

sisters from her work at the bank. We agree with the trial judge that a coworker relationship

and bank employee/customer relationship are distinguishable. Further, the trial court stated

that the Winona Wal-Mart was the “smallest Wal-Mart . . . in existence” that he knew of,

implying that Wright and Archie certainly had known each other. The trial court also stated

that no white jurors had reported working at Wal-Mart with Archie. Being acquainted with

the defendant’s family is a race-neutral reason for striking a juror. Manning v. State, 735

So. 2d 323, 340 (¶ 32) (Miss. 1999) (“We have condoned a peremptory challenge against a

juror who was acquainted with the defendant’s family.”) (citing Porter v. State, 616 So. 2d

899, 907 (Miss. 1993)).




                                              56
¶92.   Flowers’s claim that the State provided “no convincing reasons” for striking Wright

is simply unfounded. Wright had worked with Flowers’s father, she knew thirty-two of the

potential witnesses, and she had been sued by Tardy Furniture. We also note that, on her

juror questionnaire, Wright wrote that she had previously served as a juror in a criminal case

involving the “Tardy Furniture trial.” The State had multiple, credible race-neutral reasons

for striking Wright, and the trial judge did not err in denying Flowers’s Batson challenge as

to the juror.

                                     2. Dianne Copper

¶93.   The State cited the following reasons for its exercise of a peremptory strike of Dianne

Copper: (1) she had worked with Flowers’s father and sister; (2) she knew several members

of the Flowers family; (3) she said she “leaned toward” Flowers’s side of the case due to her

relationships with the Flowers family; and (4) she knew several defense witnesses. Flowers

offered rebuttal to the State’s reasons by again asserting that the State had not challenged

white jurors connected to people involved in the case. He also claimed that the State did not

attempt to rehabilitate Copper after she said leaned toward Flowers. The trial court found

the State’s reasons to be race-neutral, concluding that Copper’s relationships were

distinguishable from those of the white jurors who were not challenged and recognizing that

other jurors had not said they favored Flowers as Copper did.

¶94.   During voir dire, Copper was questioned about her relationships with members of the

Flowers family, and she revealed the following: Copper once lived in the same neighborhood

as the Flowers family. She had worked with Flowers’s sister, Cora, at Shoe World for “a

year or two.” She also had worked with Flowers’s father for “one or two years.” Copper

                                             57
testified that she knew Flowers’s mother, Lola, and his brother, Archie Jr. She also knew

more than twenty other potential witnesses. Altogether, Copper knew at least thirty people

involved in the case. The State asked Copper about her comment that knowing so many

people connected to the case would make her lean toward Flowers:

      Q.     And I think it was yesterday and my notes show that you said that the
             fact that you know all of these people could affect you and you think it
             could make you lean toward him because of your connection to all of
             these people. Is that correct?

      A.     It – it’s possible.

      Q.     Okay. That would be something that would be entering into your mind
             if you were on the jury, wouldn’t it?

      A.     Yes, sir.

      Q.     And it would make it to where you couldn’t come in here and, just with
             an open mind, decide the case, would it?

      A.     Correct.

At that point, Flowers’s counsel attempted to rehabilitate Copper:

      Q.     . . . What I’m trying to find out is just as you could put aside all the
             information you heard before about this case, could you not also put
             aside the fact – if you got picked as a juror, put aside the fact that you
             have met Mr. Flowers, that you know some other people in these cases
             and be fair to the Tardys, the Stewarts, the Goldens, and Rigbys, and
             make whatever decision or vote that you’re going to make based on the
             evidence and the evidence only. Could you do that?

      A.     I feel like I could. But, you know, it –

      Q.     Is what you’re saying –

      A.     Of course, it would make me, you know, feel uncomfortable. But if I
             had to do it, you know, I got to do what I got to do.




                                            58
       Q.     Okay. So you’re saying that – thank you. You’re saying that you’ll be
              uncomfortable. You’d prefer not to – I get the impression you’re saying
              that you’d rather not be a juror. But if you got picked to be one, you
              would take the responsibility seriously, and you would follow the law
              and the rules that the Court give[s] you, and you would put aside
              anything that you are required to put aside and make your evidence and
              make your vote based on just the evidence you hear in the courtroom.
              Is that fair to say?

       A.     Yes, sir. That’s correct.

Clearly, Copper knew several members of the Flowers family and she was uncomfortable

serving on the jury. That reason alone is a sufficient race-neutral reason to strike her.

Manning, 735 So. 2d at 340 (¶ 32). Further, we have recognized “living near the defendant”

as a race-neutral reason for a peremptory strike. Lockett v. State, 517 So. 2d 1346, 1356

(Miss. 1987) (citing Taitano v. State, 358 S.E.2d 590 (Va. App. 1987)).

¶95.   On appeal, Flowers claims that the State mischaracterized Copper’s statement that she

“leaned toward” Flowers due to her relationship with the Flowers family, but a reading of the

record shows that the State correctly described her voir dire testimony. The State made the

following argument during the Batson hearing:

       And the reason I point that out, it’s not just that she knows those witnesses, but
       that because of knowing the family and working with those two family
       members, she stated that that relationship would influence her. She later said
       that – well, she could have an open mind. And then she was equivocal back
       and forth. But because of all those relationships, she clearly stated, when I
       asked her, that they would influence her. She could not have an open mind,
       and she was leaning toward the Defendant’s family.

The State’s argument accurately reflected Copper’s testimony, including the defense’s

attempt to rehabilitate her. Even more, defense counsel asked Copper if she would “rather

not be a juror,” and she agreed. The Court has recognized that reluctance to serve as a juror



                                              59
is a race-neutral basis for a peremptory strike. Hughes, 90 So. 3d at 626 (¶ 36) (citing Lynch

v. State, 877 So. 2d 1254, 1274 (¶ 59) (Miss. 2004)).

¶96.   Flowers claims that the State’s strike of Copper was pretextual because white jurors

who knew several defense witnesses were not struck. As mentioned above, one indicium of

pretext is “the presence of unchallenged jurors of the opposite race who share the

characteristic given as the basis for the challenge.” Manning, 765 So. 2d at 519 (¶ 9).

However, like Wright, the number of acquaintances was not the sole reason given by the

State for striking Copper, so the instant basis is not an automatic showing of pretext. See

Hughes, 90 So. 3d at 626 (¶ 37). Again, Flowers claims that the State did not provide any

convincing reasons for striking Copper and, again, Flowers’s claim is unfounded. Copper

lived in the same neighborhood as the Flowers family, knew multiple members of the family,

and had worked with Flowers’s father and sister.          She admitted that, in light of the

relationships, she leaned toward Flowers in the case. Copper also said that she would rather

not serve as a juror. All of the given reasons are race-neutral reasons for a peremptory strike.

The trial court did not err in denying Flowers’s Batson challenge as to Copper.

                                       3. Flancie Jones

¶97.   The State gave several reasons for the peremptory strike of Flancie Jones: (1) she was

related to Flowers; (2) she was late for jury selection twice; (3) she provided inconsistent

statements on her view of the death penalty; and (4) she lied on her juror questionnaire in an

attempt to get out of jury service. The trial court found that the State had provided sufficient

race-neutral reasons for the strike.




                                              60
¶98.      In response to the State’s first basis – that Jones is related to Flowers – Flowers claims

that the State mischaracterized and exaggerated Jones’s relationship with Flowers. The State

described the relationship between the two as follows: “She is related to the defendant. She

admitted that she was related – she was a cousin – or the defendant’s sister, Angela Jones,

is her niece. So she said she guessed she must be related to him. Well, I guess so. He would

be her nephew.” During voir dire, Jones said that Flowers was her “sister-in-law’s sister’s

son.” She also said that Flowers’s sister was her niece. Jones’s statements regarding her

relationship to Flowers were confusing, but the trial court seemed to understand and

concluded that Jones had more than one familial connection to Flowers. The trial court

stated:

          She said that Angela Ward Jones was married to Mark Jones, and she said that
          was her nephew. She’s not directly related to Mr. Flowers. She’s related by
          marriage to Mr. Flowers’s sister. And then Hazel Jones is her husband’s
          brother’s wife and, you know, that’s another family connection there.

Although one may not typically describe the child of an in-law’s sibling as a niece or

nephew, Jones’s own statement that Flowers’s sister was her niece supported the State’s

position that Flowers was Jones’s nephew.                Flowers’s contention that the State

mischaracterized and exaggerated the relationship is without merit. And, again, being

acquainted with the defendant’s family is a race-neutral reason for striking a juror.

Manning, 735 So. 2d at 340 (¶ 32).

¶99.      The other reasons the State provided for its strike also are race-neutral. Jones was late

for jury selection on two days. For one of the days, Jones’s excuse was that she had

difficulty waking up early in the morning because she used to work nights. On the other day,



                                                 61
Jones said she was late because she was looking for her jury questionnaire. Jones also

provided inconsistent statements on her view of the death penalty, and she admitted that she

wrote on her questionnaire that she was against the death penalty in an effort to get out of

jury service:

       Q:       . . . And I think on your questionnaire, you said you were strongly
                against the death penalty.

       A:       I guess I’d say anything to get off.

       Q:       Okay. Well, are you saying that you didn’t tell the truth?

       A:       No, that’s not that. It’s just that if I didn’t have to be here, I wouldn’t
                want to be here.

       Q:       Well, I want to know when you put down you were strongly against the
                death penalty –

       A:       I was trying to not be – I – really and truly, I don’t want to be here. I’ll
                say it like that.

       ...

       Q:       When you put down that you strongly didn’t believe in the death
                penalty, were you being truthful?

       A:       No . . . .

Being late on two days, lying on her questionnaire, and blatantly saying that she did not want

to be there and that she would “say anything to get off” reflect an overall attitude of contempt

toward jury service.

¶100. Jones’s late arrival and her attitude toward jury service, evidencing a lack of concern

about or commitment to the proceedings, are two race-neutral reasons for a peremptory

strike. See Lynch, 877 So. 2d at 1274 (¶ 59) (reluctance to serve was a race-neutral basis for



                                                62
a peremptory strike); Brewer v. State, 725 So. 2d 106, 122 (Miss. 1998) (fact that the juror

“had attempted to get off jury duty from the start” was a race-neutral reason); Lockett, 517

So. 2d at 1351-52 (striking of jurors based on attitude toward jury service is race-neutral).

In Lockett v. State, the Court provided a nonexhaustive list of race-neutral reasons that had

been recognized by other courts. The Court cited a Seventh Circuit case in which the court

upheld the peremptory strike of a juror who arrived late and was inattentive, which indicated

“a lack of commitment to the importance of the proceedings.” Lockett, 517 So. 2d at 1356

(citing U.S. v. Mathews, 803 F.2d 325, 331 (7th Cir. 1986)). See also Hicks v. State, 973 So.

2d 211, 220 (¶ 28) (Miss. 2007) (inattentiveness is a race-neutral reason). Unquestionably,

Jones’s attitude toward jury service was a proper race-neutral reason for striking her.

¶101. The State did not misrepresent Jones’s relationship with Flowers, and the State

provided several race-neutral reasons for striking her. Flowers’s claims regarding Jones are

without merit. The trial court did not err in denying Flowers’s Batson challenge regarding

the juror.

                                 4. Tashia Cunningham

¶102. The State’s reasons for striking Tashia Cunningham included: (1) her working

relationship with Flowers’s sister, and (2) her wavering statements about the death penalty.

At the Batson hearing, Flowers attempted to rebut by pointing to Cunningham’s testimony

that she could be a neutral juror and could set aside her relationship with Flowers’s sister.

Flowers compared Cunningham to Chesteen, who knew Flowers’s family from the bank.

Finally, Flowers claimed that Cunningham’s alleged wavering views on the death penalty

were similar to the views of white jurors. The trial court held that the State’s reasons were

                                             63
race-neutral, concluding: “Ms. Cunningham’s all-over-the-map response to the death penalty,

plus her situation about working so closely with Mr. Flowers’s sister, in my mind, the State

has shown race-neutral reasons for that strike.”

¶103. During voir dire, Cunningham said she did not have a close relationship with

Flowers’s sister, Sherita Baskin. She said they had a “working relationship.” Cunningham

said she and Baskin had worked the same shift for two or three years, but they did not see

each other every day at work. Cunningham said she worked at the end of the assembly line,

and Baskin worked at the front of the line. The State asked Cunningham further questions

about that relationship:

       Q:     And you work with the Defendant’s sister, Sherita Baskin?

       A:     Yes.

       Q:     Now, the other day, I think you said that you do not work close to her?

       A:     No, I do not.

       Q:     Would you think about that for a minute?

       A:     I do not.

       Q:     Are you sure that you do not work side by side with her?

       A:     No, I do not.

       Q:     And you’re saying that under oath?

       A:     Yes, sir.

The State then called Cunningham’s employer, ADP, to confirm her testimony relating to her

working relationship with Baskin. An ADP quality control clerk, Crystal Carpenter, testified

that Cunningham and Baskin worked on the same assembly line with twenty-five to thirty-


                                            64
five people. Carpenter testified that Cunningham and Baskin worked side-by-side,“nine or

ten inches” apart from one another. Carpenter testified that she saw the women working

every day and that her testimony was based on her personal observations. Flowers’s counsel

asked Carpenter if there was documentation supporting the location of Cunningham and

Baskin on the assembly line, and Carpenter said she could provide documentation supporting

her testimony. Apparently, Carpenter did not provide the documentation. Thus, Flowers

claims that the instant basis for the State’s peremptory strike is unfounded. Flowers’s claim

is without merit.

¶104. We hold that the blatantly conflicting testimony of Cunningham and Carpenter was

a race-neutral basis for the State’s challenge, as concern about a juror’s honesty constitutes

a race-neutral reason. See Collins v. State, 691 So. 2d 918, 927 (Miss. 1997) (a juror will be

disqualified for withholding substantial information or misrepresenting material facts);

Mack, 650 So. 2d at 1300 (State’s challenge upheld where the juror failed to reveal that her

husband had pending charges against him); Foster, 639 So. 2d at 1280 (as to one juror, the

State said “his demeanor was such that I did not feel that he was being perfectly honest with

us” and the Court held that the State had provided race-neutral reasons). See also Aguilar

v. State, 847 So. 2d 871, 877 (¶ 14) (Miss. Ct. App. 2002) (concern that juror was being

dishonest was a valid reason).

¶105. The State cited Cunningham’s wavering views on the death penalty as a second basis

for its peremptory strike. On her juror questionnaire, Cunningham marked that she had “no

opinion” on the death penalty but, on the very next question, she marked that she would not

consider the death penalty under any circumstances. During voir dire by the trial court,

                                             65
Cunningham first said she “would not” consider the death penalty and that she “did not

believe in the death penalty.” She confirmed for the court three times that she would not

consider the death penalty. However, as questioning continued, Cunningham wavered,

saying she “might” be able to consider it. During voir dire by the State, Cunningham went

back to her initial position that she did not think she could consider the death penalty. Then,

when questioned by defense counsel, Cunningham said that she could consider both life in

prison and the death penalty. We have held that “having doubts as to one’s ability to follow

the law and vote for the death penalty when appropriate is a sufficient race-neutral reason.”

Manning, 735 So. 2d at 340 (¶ 31) (citing Johnson v. State, 529 So. 2d 577, 584-85 (Miss.

1988)). Further, providing inconsistent statements is a race-neutral basis for striking a juror.

Hicks, 973 So. 2d at 220 (¶ 27); Lynch, 877 So. 2d at 1272 (¶ 51) (verbal responses and

juror’s card were inconsistent).

¶106. During the Batson hearing, Flowers’s counsel attempted to compare Cunningham to

Jeffery Whitfield, a white juror who had “mixed feelings about the death penalty.” Unlike

Cunningham, Whitfield never said that he would be unable to impose the death penalty. We

have recognized that a juror’s views on the death penalty may provide a race-neutral basis

for a peremptory challenge. See Batiste, 121 So. 3d at 848; Pitchford, 45 So. 2d at 229

(¶40); Flowers III, 947 So. 2d at 920-21. In Flowers III, the Court held that striking an

African-American who had “virtually indistinguishable” views on the death penalty as white

jurors who were not struck raised an inference of discrimination, although, standing alone,

it did not warrant the finding of a Batson violation. Flowers III, 947 So. 2d at 921. In the

instant case, no white jurors survived for-cause challenges who had views on the death

                                              66
penalty comparable to Cunningham’s views.            Thus, this basis was not pretextual.

Cunningham’s seeming dishonesty about her relationship with Baskin, her doubt about

whether she could impose the death penalty, and her inconsistent statements about the death

penalty are all race-neutral reasons for a peremptory strike. The trial court did not err in

denying the Batson challenge as to Cunningham.

                                     5. Edith Burnside

¶107. The State gave the following reasons for striking Edith Burnside: (1) she knew

Flowers and members of his family; (2) she was sued by Tardy Furniture; and (3) she had

provided inconsistent statements regarding her views on the death penalty. As discussed

above, during group voir dire, the trial court asked the entire venire if anyone had been sued

by Tardy Furniture. Thus, again, Flowers’s claim that only African-American venire

members were asked about prior litigation is incorrect.         Burnside responded in the

affirmative, telling the court that she had been sued by Tardy Furniture. She later explained

that she paid the amount she owed and that the litigation had arisen from a misunderstanding

about her account after the murders.

¶108. At the Batson hearing, the State incorrectly stated that a garnishment had been issued

against Burnside. The prosecutor said: “She also was sued by Tardy Furniture, and a

garnishment was issued against her. She tried to deny that and said that she just settled with

them when she came back but she was, in fact, sued by them.” In response to the trial court’s

question about being sued by the store, Burnside had said: “I had an account there, but I was

not sued by Ms. Bertha. It was later on when it was took over by Mr. Frank and Roxanne.”

During individual voir dire, Burnside confirmed that she was sued by Bertha Tardy’s son-in-

                                             67
law, but that she paid him and they “never had a falling out about it.” She said the lawsuit

would not cause her any difficulty in Flowers’s case. Like the State’s characterization of

Wright’s litigation with Tardy Furniture, the statement that Burnside’s wages had been

garnished and that Burnside had denied it was not supported by the record. However, prior

litigation is a race-neutral basis for a peremptory strike. Webster, 754 So. 2d at 1236 (¶¶ 9-

11).

¶109. Another reason the State gave for striking Burnside was her relationships with

Flowers and his family. Burnside said that she had once lived near the Flowers family, and

Flowers and his sister used to visit her home. Flowers was friends with Burnside’s sons and

played football with them. Burnside said that the relationships would not affect her ability

to serve as a juror. There were no white venire members who had relationships remotely

comparable to the relationships Burnside had with Flowers and his family. A juror’s

relationships with the defendant’s family is a race-neutral reason for a peremptory challenge.

Manning, 735 So. 2d at 340 (¶ 32). And, again, “living near the defendant” is a race-neutral

reason for a peremptory strike. Lockett, 517 So. 2d at 1356. If simply living near the

defendant is a valid reason, then certainly the defendant having visited the juror’s home and

having been friends with her children is a valid race-neutral reason. Although Burnside said

her connections to the Flowers family would not affect her jury service, the basis is not

pretextual.

¶110. Finally, the State cited Burnside’s statements regarding whether she could judge

another person and whether she could impose the death penalty as bases for its peremptory

strike. During voir dire, Burnside testified as follows:

                                             68
Q:   . . . And so I want to know if the facts justified it and the law allowed
     it, could you consider the death penalty as a sentencing possibility?

A:   That I don’t think I could do. I don’t know if I could do that. . . . I don’t
     – I don’t know if I could consider it, sending anybody to death. I don’t
     know if I could do that.

Q:   And can you explain further your views on that?

A:   I’ve just never been put in that predicament. I’ve always just don’t
     know if I could do that. It’s just the best way I can explain it. I just
     don’t think I could do that.

Q:   Again, let me explain. You’re not committing to do it or not to do it.
     You’re just – we just need to know if that’s something that would be in
     your mind where you could think about it and you could consider the
     possibility of it.

A:   I could think about it and consider it. That’s all I could say.

Q:   And would you consider the imposition of the death penalty, if you
     were on the jury and it got to the second phase?

A:   If I was on there, yeah, I guess I’d have to.

Q:   So if the facts justified it and the law allowed it, you would consider it?

A:   Yes.

Q:   Also, if he did not receive that death sentence – if he was convicted and
     the jury did not impose the death sentence, . . . [he] would receive the
     sentence of life without parole. So is that a sentencing option that you
     could consider, also?

A:   Yes, I could consider that.

Q:   And so you would consider and have an open mind as to both
     sentencing options then; is that correct?

A:   Yes, sir.




                                      69
Burnside eventually said she could consider both sentencing options, but later she said again

that her reservations about judging another person would affect her ability to serve as a juror:

       Q:     When I was asking the questions the other day about jurors that could
              judge other people, you stated at that time that you could not judge
              anyone. Why did you state that?

       A:     Well, because I – you know, I prefer not to judge anyone. But then
              when they come back and say could I be fair. My thing is I prefer not
              to judge anyone. But no, I will be fair.

       Q:     All right. Who will you be fair to?

       A:     I will be fair to whoever evidence is presented. I will be fair. Because
              I would want somebody to be fair to me or my children or my family.
              That the only way I can explain it.
       ...

       Q:     So you have changed your mind, and you say now that you could judge
              someone; is that correct?

       A:     Well, basically, I haven’t changed my mind. I just prefer not to be in a
              predicament where I have to judge somebody.

       Q:     So you still have a problem with judging someone?

       A:     I still have a problem with that.

       Q:     Would that problem be such that you would think about it if you were
              picked on a jury?

       A:     Well, I’d have to say yes.

       Q:     It would? So that might affect your judgment in the case; is that right?

       A:     It could, possibly, yes, sir.

Flowers’s counsel attempted to rehabilitate Burnside:

       Q:     Ms. Burnside, if you got picked on the jury, you would be fair to both
              sides, wouldn’t you?



                                              70
       A:     Yes, sir.

       Q:     And despite the fact that you don’t like to judge, if you got picked you
              would, in fact, judge and be fair to both sides; is that correct?

       A:     Yes, sir, that is correct.

¶111. A juror’s views on the death penalty and hesitation about serving as a juror are race-

neutral reasons for peremptory challenges. See Batiste, 121 So. 3d at 848; Hughes, 90 So.

3d at 626; Flowers III, 947 So. 2d at 920-21. Further, there were no white jurors in the

venire whose views and hesitation regarding judgment were comparable to Burnside’s views.

Although Flowers’s counsel did rehabilitate Burnside, her remarks were unquestionably a

race-neutral basis for the challenge. The trial court did not err in denying the Batson

challenge as to Burnside, as the State provided multiple race-neutral reasons for striking her.

       C. Batson Conclusion

¶112. We hold Flowers’s claim that the trial court erred in denying his Batson challenges

to be without merit. While the State did ask more questions of potential African-American

jurors than white jurors, disparate questioning alone is not dispositive of purposeful

discrimination. Hughes, 90 So. 3d at 626 (¶ 37); Manning, 765 So. 2d at 520 (¶ 15); Berry,

802 So. 2d at 1039 (¶ 20). Further, the State’s contention that the additional questions were

asked to clarify and follow up on certain issues is supported by the record. The State

provided multiple race-neutral reasons for the peremptory strikes against each of the five

African-Americans. The evidence indicates that the race-neutral reasons were valid and not

merely pretextual. The trial court did not err in denying Flowers’s Batson challenges.

 VII. Whether the venire was biased, resulting in an unfair trial, such that reversal
      and remand for a new trial is warranted.

                                              71
¶113. Flowers raises two sub-issues related to alleged bias in the venire and empaneled jury:

(1) whether the jury did not adequately deliberate because it was influenced by racial bias

in violation of the Due Process and Equal Protection Clauses of the Fourteenth Amendment;

and (2) whether the pervasive bias in the venire infected the fairness of the proceedings,

requiring reversal and remand for a new trial. Flowers implies that African-American jurors

were either afraid to serve as jurors or were afraid to find Flowers not guilty as a result of the

alleged pervasive racial bias in Montgomery County.

       A. Adequate Deliberations

¶114. The jury deliberated for twenty-nine minutes during the guilt-or-innocence phase and

for an hour and a half during the sentencing phase. Our cases support that the time spent

deliberating was adequate. In a capital murder case, we have held that a ten-minute guilt-or-

innocense deliberation and a one-hour sentencing deliberation were adequate. Gray, 728 So.

2d at 62-63. The well-settled rule is that “there is no formula to determine how long a jury

should deliberate.” Id. at 62 (¶ 125) (quoting Smith v. State, 569 So. 2d 1203, 1205 (Miss.

1990)). In Smith v. State, we explained:

       Because the jury’s time of considering their verdict did not exceed seven
       minutes, it does not follow that the jurors did not carefully consider the
       testimony and the exhibits. It is not only possible but probable that when the
       state and the defendant had rested and the summations had been made each
       juror had decided in his mind the issue of innocence or guilt. After the brief
       deliberation with each other, the jurors found that they were of a single mind
       as to the guilt or innocence of the appellant and found him to be guilty.

       Under the facts of this case this Court is unwilling to lend its authority to the
       establishment of any formula or guideline relating to the time a jury must
       deliberate before delivering its verdict. This Court is cognizant of the fact that
       in the past in occasional cases, as in the case at bar, rather brief deliberations

                                               72
        have taken place in the jury room and verdicts have been returned with unusual
        rapidity. There is no yardstick of time which a jury should use before reaching
        a verdict. No two cases are similar as to facts and therefore the law varies in
        its application thereto. Therefore, we cannot hold that in the time utilized by
        the jury it could not reach a proper verdict of guilty.

Smith, 569 So. 2d at 1205 (quoting Johnson v. State, 252 So. 2d 221, 224 (Miss. 1971)).

Based on length of the deliberations alone, Flowers’s argument that the jury’s deliberation

was inadequate has no merit. However, Flowers’s argument is not based solely on the length

of time. He contends that the short amount of time spent deliberating is indicative of racial

bias in the jury and venire.

        B. Biased Venire

¶115. Flowers claims that he was denied the right to a fair trial because the jury was biased.

“The right to a fair trial by an impartial jury is fundamental and essential to our form of

government. It is a right guaranteed by both the federal and state constitutions.” Johnson

v. State, 476 So. 2d 1195, 1209 (Miss. 1985). The United States Constitution provides: “In

all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the crime shall have been committed[.]” U.S.

Const. amend. VI.      Likewise, the Mississippi Constitution provides: “In all criminal

prosecutions the accused shall have a right to . . . a speedy and public trial by an impartial

jury of the county where the offense was committed.” Miss. Const. art. 3, § 26. We have

recognized that the right to a trial by an impartial jury and the right to a trial in the location

where the offense occurred can be at odds with one another. See Johnson, 476 So. 2d at

1210.




                                               73
¶116. Flowers takes several approaches to support his contention that he was denied the

right to a fair trial because the jury was biased. He asserts that: (1) racial bias in the

community is evident by the Court’s opinion in Flowers III; (2) racial bias and tension was

demonstrated by the arrest of two African-Americans for perjury during one of Flowers’s

previous trials; (3) excessive law enforcement personnel were present at the trial; (4) a

majority of the jurors empaneled were acquainted with either Flowers or the victims or had

formed opinions related to the case prior to trial; (5) the trial court erroneously denied several

of Flowers’s challenges for cause; (6) the trial court erred by failing to quash the entire

venire; and (7) the jury interrupted an important mitigation witness. To cure the alleged

biases, Flowers claims that the trial court should have quashed the venire or, in the

alternative, provided for a “cooling-off period” until an unbiased jury from Montgomery

County could be empaneled.

¶117. First, Flowers asserts that bias is evident from the Court’s holding in Flowers III.

Flowers’s claim comes from the Court’s statement in Flowers III that the case presented “as

strong a prima facie case of racial discrimination as we have ever seen in the context of a

Batson challenge.” Flowers III, 947 So. 2d at 935 (¶ 66). The problems surrounding jury

selection in Flowers III are not present in today’s case. In that case, the State exercised all

twelve of its peremptory strikes on African-Americans and its three peremptory strikes for

alternate jurors on African-Americans. Id. at 917-18. The Court found that the following

facts resulted in a Batson violation: the State exercised peremptory strikes against African-

American veniremen who shared characteristics with tendered white jurors; the State’s

proffered race-neutral reasons for striking African-Americans were not supported by the

                                               74
record; and the State failed to voir dire other jurors as to a characteristic cited as a race-

neutral basis. Id. at 935-39. However, the facts were particular to the third trial, and

Flowers III does not stand for the proposition that the community as a whole – and any

future venire – would be biased. The claim is without merit.

¶118. Second, Flowers claims that racial tension was escalated by the arrests of two African-

American jurors for perjury during Flowers’s fourth trial. During that trial, Mary Annette

Purnell, an African-American who was selected to serve as alternate juror, said during voir

dire that she did not know Flowers or his family, but after the jury was selected, another juror

reported to the prosecution that Purnell knew Flowers and his family. Purnell admitted to

meeting with Flowers prior to the trial but after the jury summons. Apparently, during jury

selection, Flowers gave his attorney a note that said they needed to “fight for” Purnell to be

on the jury. Flowers’s counsel denied having read the note prior to the perjury accusations.

Purnell pleaded guilty to perjury and received two ten-year sentences.

¶119. At the end of the fourth trial, after the jury was unable to reach a unanimous decision,

jurors reported to the trial court that James Bibbs, an African-American juror, had told other

jurors that the police did not adequately investigate the murders and that evidence had been

planted. After the jury was released, the trial court questioned Bibbs about the reports.

Bibbs denied making the exact statements, but he admitted that he had told other jurors that

he had been in an alley close to Tardy Furniture on the day of the murders and that

investigators did not inspect that area. Bibbs claimed that he did not report the information

during voir dire because he misunderstood questions relating to whether he had knowledge




                                              75
of the crimes. Although the reason is unclear from the record, the perjury charges against

Bibbs were eventually nolle prossed.

¶120. Flowers claims that Bibbs was possibly the only juror at the fourth trial who did not

vote to convict Flowers. He further contends that the perjury arrests “escalated” racial

tension and that the arrests were reported in the press and “pervaded the jury venire” in

today’s case. To support his contentions, Flowers cites local media articles discussing the

perjury arrests. Nothing in the record, however, discusses whether members of the venire

in today’s case were aware of the arrests. Further, nothing in the record suggests that the

arrests were anything less than legitimate. Clearly, Purnell admitted to perjury, and Bibbs

admitted to having knowledge that he did not disclose during voir dire. The contention is not

supported by the record and is without merit.

¶121. Next, Flowers’s claim that excessive law enforcement presence caused bias in the

venire also is without merit. When Flowers’s counsel raised concerns that venire members

were standing close to a law enforcement officer during voir dire, the trial court responded

by reminding counsel that the potential jurors could be questioned about any contact with law

enforcement during voir dire. Considering the notoriety of the crimes in the case, a large

number of law enforcement personnel would be expected.

¶122. Further, Flowers’s claim that the jury interrupted a mitigation witness is not supported

by the record. During the mitigation phase, pizza was ordered for the jury. Apparently, the

pizza arrived while Archie Flowers Sr., Flowers’s father, was providing mitigation testimony.

In response to the food arriving, Flowers’s counsel stated: “Your honor, if the jurors’ food




                                             76
is here, I don’t want to stand in the way of that.” There is no indication that the jury

interrupted the witness, and Flowers’s counsel encouraged the recess.

¶123. Flowers asserts that a majority of the jurors empaneled were acquainted with Flowers,

acquainted with the victims, or had formed opinions related to the case prior to trial. Flowers

claims that the venire was skewed in favor of the prosecution because a higher percentage

of potential jurors who were familiar with Flowers and his family were struck from the venire

compared to venire members who were familiar with the victims and their families. He

claims that, because potential jurors who were familiar with the Flowers family were more

likely to state that their relationship with the family would affect their ability to serve as fair

and impartial jurors, ultimately, a higher percentage of jurors who were familiar with the

victims and their families were empaneled.

¶124. Jurors who state that their relationship with a defendant or a victim would affect their

ability to be impartial are properly struck for cause. See Manning, 735 So. 2d at 340 (¶ 31)

(“doubts as to one’s ability to follow the law and vote for the death penalty when appropriate

is a sufficient race-neutral reason”); Stevens, 806 So. 2d at 1062 (¶ 138) (removal of juror

is justified where the trial court is “is left with the impression that a prospective juror would

be unable to faithfully and impartially apply the law”) (quoting Wainwright v. Witt, 469 U.S.

416, 426 (1985)); Davis v. State, 660 So. 2d 1228, 1244 (Miss. 1995) (same). However,

when jurors indicate that they can be impartial, they do not have to be struck based on

relationships alone. “The linchpin is whether the venire members stated that they could be

fair and impartial jurors if chosen.” Hughes v. State, 983 So. 2d 270, 284 (¶ 63) (Miss.




                                                77
2008) (quoting Howell, 860 So. 2d at 720 (¶ 37)). Thus, if jurors indicated that they could

not be fair and impartial, they were properly struck. The claim is without merit.

¶125. Flowers’s claim that the trial court erred by denying several of his challenges for

cause fails. The potential jurors that Flowers challenged for cause were not selected to serve

as jurors, and Flowers did not exercise all of his peremptory challenges. “Denial of challenge

for cause is not error where it is not shown that the defense has exhausted peremptory

challenges and is thus forced to accept the juror. This threshold test is applicable in a capital

murder case.” Berry v. State, 575 So. 2d 1, 9 (Miss. 1990) (citing Billiot v. State, 454 So.

2d 445, 457 (Miss. 1984); Rush v. State, 278 So. 2d 456, 458 (Miss. 1973)).

¶126. Lastly, Flowers suggests that the trial court should have quashed the entire venire or

provided for a “cooling-off period” until a fair and impartial jury could be empaneled, and

he claims that the trial court’s failure to do so was error. Flowers’s suggested remedies are

not viable. Flowers’s claim that a pervasive bias existed throughout the community conflicts

with his suggestion that another venire should have been empaneled. If the bias was in fact

pervasive, another venire from the same community likely would contain the same bias.

Flowers’s suggested “cooling-off period” is even more troublesome, as Flowers himself

would be left in limbo awaiting another trial. In Hughes v. State, we held that the trial court

did not err in denying the defendant’s motion to quash the venire based on the crime being

well known within the community. Hughes, 983 So. 2d 270 at 284 (¶ 64). Because the

jurors indicated that their knowledge of the case would not affect their ability to be fair and

impartial, the trial court did not abuse its discretion in denying the motion to quash. Id.




                                               78
Again, “[t]he linchpin is whether the venire members stated that they could be fair and

impartial jurors if chosen.” Id. at 284 (¶ 63) (quoting Howell, 860 So. 2d at 720 (¶ 37)).

¶127. A more appropriate remedy would be to expand the size of the venire. See Toyota

Motor Corp. v. McLaurin, 642 So. 2d 351, 358 (Miss. 1994); Mhoon v. State, 464 So. 2d

77, 82 (Miss. 1985), superseded by statute on other grounds. However, the size of the venire

was appropriately large, as 600 people were called for voir dire. Thus, it would seem that

the trial court called a large enough venire to avoid problems. Trial courts have broad

discretion in conducting voir dire. See Howell, 860 So. 2d at 726 (¶ 67). “A jury selection

procedure which gives the defendant ‘a fair opportunity to ask questions of individual jurors

which may enable the defendant to determine his right to challenge that juror’ is proper.”

Id. at 726-27 (¶ 69) (quoting McLemore v. State, 669 So. 2d 19, 25 (Miss. 1996)). We

cannot say that the trial court abused its discretion in conducting voir dire. For the foregoing

reasons, Flowers’s claims that he was denied the right to a fair trial because the jury was

biased are without m erit.

 VIII. Whether the trial court erred in refusing Flowers’s requested culpability
       phase instructions.

¶128. Flowers claims that the trial court erred in refusing three of his culpability phase

instructions – D-7, D-8, and D-9. “Jury instructions are within the sound discretion of the

trial court.” Gillett, 56 So. 3d at 496 (¶ 67) (quoting Rubenstein, 941 So. 2d at 787 (¶ 239)).

       This Court does not single out any instruction or take instructions out of
       context; rather, the instructions are to be read together as a whole. Thomas v.
       State, 818 So. 2d 335, 349 (Miss. 2002). A defendant is entitled to have jury
       instructions which present his theory of the case. Id. This entitlement is
       limited, however, in that the court is allowed to refuse an instruction which



                                              79
       incorrectly states the law, is covered fairly elsewhere in the instructions, or is
       without foundation in the evidence. Id.

Gillett, 56 So. 3d at 496 (¶ 67) (quoting Walker v. State, 913 So. 2d 198, 234 (¶ 132) (Miss.

2005)).

¶129. Flowers claims that the trial court erred in refusing instruction D-6 because he was

entitled to an instruction on the burden of proof. That instruction read as follows:

       Each fact which is essential to complete a set of circumstances necessary to
       establish the defendant’s guilt must be proved beyond a reasonable doubt. In
       other words, before an inference essential to establish guilt may be found to
       have been proved beyond a reasonable doubt, each fact or circumstance on
       which the inference necessarily rests must be proved beyond a reasonable
       doubt.

The trial court refused the instruction, finding that it was repetitive of instruction S-1, which

stated that the State must prove all of the elements of the crimes beyond a reasonable doubt.

Because the instructions are repetitive, the trial court did not err in denying D-6. See

Montana v. State, 822 So. 2d 954, 961 (¶ 26) (Miss. 2002) (“A trial judge is under no

obligation to grant redundant instructions.”). The issue is without merit.

¶130. Instructions D-7 and D-8 were circumstantial evidence instructions. They provided:

       D-7: The Court instructs the jury that [if] the prosecution has used
       circumstantial evidence to show that Curtis Flowers committed the charged
       crimes, then the evidence must be so strong as to rule out any other reasonable
       explanation except that of guilt. Circumstantial evidence is anything other than
       direct evidence, such as, to give one example, testimony of someone who
       witnessed an event. In other words, you may not return a verdict of guilty if
       you could reasonably interpret the facts in a way that would show Mr. Flowers
       to be not guilty.

       D-8: The Court instructs the jury that if there is any fact or circumstance in this
       case susceptible of two interpretations, one favorable and the other
       unfavorable to Curtis Flowers, and when the jury has considered such fact or
       circumstance with all the other evidence, if there is a doubt as to the correct

                                               80
       interpretation, then you must resolve such doubt in favor of Curtis Flowers and
       interpret that fact or circumstance in favor of Mr. Flowers.

In support of his argument that the trial court erred in refusing the instructions, Flowers

attacks the credibility of Odell Hallmon, the jailhouse informant. Flowers recognizes that

Mississippi caselaw allows trial courts to refuse circumstantial evidence instructions in cases

in which direct evidence of the crime is presented, which includes testimony from a jailhouse

informant. See Ladner, 584 So. 2d at 750 (case is not circumstantial even if the only direct

evidence is a “jailhouse confession”).

¶131. Flowers, however, relies on the Court’s opinion in McNeal v. State, 551 So. 2d 151

(Miss. 1989), for the proposition that jailhouse informant testimony should not serve as a

basis for refusing a circumstantial evidence instruction when the informant’s credibility is

questionable. In McNeal, the jailhouse informant testified in exchange for a reduced

sentence. Id. at 158. The Court questioned the refusal of the instruction in McNeal, but the

case was reversed and remanded on other grounds, so the Court did not go so far as to find

that a circumstantial evidence instruction should have been given. Id. at 158-59 (“It is

doubtful that such testimony should be considered as direct evidence which would prevent

the granting of a circumstantial evidence instruction; however, we do not decide that question

here, nor is it necessary, because we find merit and reverse under [another] assignment of

error.”).

¶132. The Court has clarified the jailhouse informant/circumstantial evidence issue in

subsequent cases. In Ladner, the Court held that it was not error to refuse such an instruction

in the case of a jailhouse informant:



                                              81
       A circumstantial evidence instruction must be given only when the prosecution
       can produce neither an eyewitness nor a confession/statement by the
       defendant. The “confession” which constitutes direct evidence of a crime is
       not limited to a confession to a law enforcement officer but also includes an
       admission made to a person other than a law enforcement officer. In Holiday
       v. State, 455 So. 2d 750, 752-53 (Miss. 1984), a witness testified that he had
       overheard the defendant say to another person that he had killed his wife. This
       Court held that the circumstantial evidence instruction was not required. See
       Foster v. State, 508 So. 2d 1111, 1115 (Miss. 1987) (Court held that without
       “jailhouse confession” the case would have been entirely circumstantial).

Ladner, 584 So. 2d at 750 (other citations omitted). The Court then stated that, because

McNeal was decided on other grounds, it did not support the defendant’s proposition that a

circumstantial evidence instruction should have been given. Id. at 750 n.1. We reaffirmed

the Ladner holding in Moore v. State:

       As [the defendant] points out, prior to Ladner, this Court expressed doubt as
       to whether a jailhouse informant’s testimony “should be considered as direct
       evidence which would prevent the granting of a circumstantial evidence
       instruction.” McNeal, 551 So. 2d at 159. While McNeal declined to answer
       that question, Ladner settled the matter, holding that when the type of
       testimony given by [the informant] in the case sub judice is present,
       circumstantial evidence instructions are not necessary.

Moore, 787 So. 2d at 1288 (¶ 18). Following the Court’s holdings in Ladner and Moore, the

trial court in today’s case found that Hallmon’s testimony provided direct evidence of the

crimes and denied instruction D-7 and D-8. We recognize that Hallmon’s credibility is

questionable. However, Hallmon was extensively cross-examined at trial, and the trial court

instructed the jury “that the law looks with suspicion and distrust on the testimony of a

jailhouse informant, and requires the jury to weigh the same with great care and suspicion.”

The jury was adequately instructed regarding Hallmon’s testimony, and the trial court did not




                                             82
err by refusing the circumstantial evidence instructions under Moore and Ladner. The issue

is without merit.

 IX. Whether the trial court erred in refusing Flowers’s penalty phase instructions
     and in granting the State’s aggravating circumstances instruction.

¶133. Flowers claims the trial court erred in denying several of his penalty phase jury

instructions – D-4, D-12, D-33, D-34, D-38, and D-39. He also asserts that the trial court

erred by allowing the State’s aggravating circumstances instruction. Again, jury instructions

are within the sound discretion of the trial court, and the trial court properly refuses

instructions that are incorrect statements of the law, are covered fairly in other instructions,

or do not have a foundation in the evidence. Gillett, 56 So. 3d at 496 (¶ 67).

       A. Instruction D-4

¶134. Flowers contends that the trial court erred in refusing instruction D-4, which was a

“presumption of life” instruction. The proffered instruction read:

       You are to begin your deliberations with the presumption that there are no
       aggravating circumstances that would warrant a sentence of death, and the
       presumption that the appropriate punishment in this case would be life
       imprisonment. These presumptions remain with Mr. Flowers throughout the
       sentencing hearing and can only be overcome if the prosecution convinces
       each one of you, beyond a reasonable doubt, that the death penalty is the only
       appropriate punishment.

The Court has consistently refused to find error when a trial court denies presumption of life

instructions. See Gillett, 56 So. 3d at 514 (¶ 135); Brown v. State, 890 So. 2d 901, 920 (¶

72) (Miss. 2004) (“We have repeatedly said that we reject the ‘proposition that a defendant

should go into the sentencing phase with a presumption that life is the appropriate




                                              83
punishment.’”) (quoting Watts v. State, 733 So. 2d 214, 241 (¶ 81) (Miss. 1999)). As such,

the trial court did not err in refusing the presumption of life instruction.

       B. Instructions D-12 and D-33

¶135. Flowers claims that the trial court erred by refusing to grant two instructions related

to aggravating circumstances and circumstantial evidence. The instructions provided:

       D-12: The Court instructs the jury that if the State has relied on circumstantial
       evidence to establish an aggravating circumstance, then the evidence for the
       State must be so strong as to establish the aggravating circumstance not only
       beyond a reasonable doubt, but must exclude every other reasonable
       hypothesis other than establishment of the aggravating circumstance.

       D-33: During the penalty phase, I instruct you that if there is a fact or
       circumstance in this case which is susceptible of two interpretations, one
       favorable and the other unfavorable to Mr. Flowers and if, after considering all
       the other facts and circumstances, there is a reasonable doubt regarding the
       correct interpretation, then you must resolve such doubt in favor of Mr.
       Flowers and place upon such fact or circumstance the interpretation most
       favorable to Mr. Flowers.

Flowers claims that whether a criminal defendant is entitled to a circumstantial evidence

instruction during the penalty phase is a matter of first impression. Flowers is incorrect. We

have held that a trial court did not abuse its discretion in refusing to grant circumstantial

evidence instructions at the penalty phase. Fulgham, 46 So. 3d at 340 (¶ 80); King v. State,

960 So. 2d 413, 446-47 (¶ 70) (Miss. 2007). In support of its finding, the King Court wrote

that the jury’s finding that the defendant actually committed the murder during the guilt-or-

innocence phase “indicate[d] its rejection of any other reasonable hypothesis of [the

defendant’s] participation in the crime.” King, 960 So. 2d at 446 (¶ 70). Instructions D-12

and D-33 are almost identical to the instruction at issue in Fulgham. The trial court did not

err in refusing the instructions.

                                              84
       C. Instruction D-34

¶136. Instruction D-34 provided: “The Court instructs the jury that if you cannot, within a

reasonable time, agree as to punishment, the court will dismiss you and impose a sentence

of imprisonment for life without the benefit of parole.” Flowers claims that the trial court

should have granted the instruction because the jury did not receive guidance on what would

happen if the jurors could not unanimously agree on a punishment. Flowers contends that

the alleged error is evident by a note sent from the jury during the penalty phase. The note

stated: “If we cannot agree unanimously, who will make the ultimate decision?” The trial

court responded to the note by stating: “That is not an issue the jury should be concerned

about.”

¶137. The Court has reviewed almost identical instructions in previous cases and found that

the trial court did not err in refusing the proffered instructions. In Gillett, we held that the

trial court did not err in refusing an instruction that stated: “If you cannot, within a

reasonable time, agree as to punishment, I will dismiss you and impose a sentence of life

without the benefit of parole. If you cannot agree, know that any of you may inform the

bailiff of this.” Gillett, 56 So. 3d at 515 (¶ 138). Because the jury was instructed on the three

possible penalty phase outcomes – death, life imprisonment without parole, or inability to

unanimously agree on a punishment – the Court held that the jury was properly instructed

on the possibility of not reaching a unanimous decision. Id. at 516 (¶ 139). In another

capital murder case, the Court held that the trial court did not err in refusing the following

instruction: “The court instructs the jury that if you do not agree upon punishment the court

will sentence the defendant to life imprisonment without possibility of parole or early

                                               85
release.” Edwards v. State, 737 So. 2d 275, 316 (¶ 142) (Miss. 1999). The Edwards Court

held that the jury was adequately instructed that it could “return to the courtroom and report

that it was unable to agree unanimously on punishment.” Id. at 316 (¶ 143).

¶138. Similar to Gillett and Edwards, the trial court in today’s case instructed the jury that

it could reach three possible outcomes in the penalty phase: death, life without parole, or

being unable to agree unanimously on a punishment. Accordingly, the trial court did not err

in refusing instruction D-34.

       D. Instructions D-38 and D-39

¶139. Flowers claims that the trial court erred by refusing instructions on the jury’s ability

to consider mercy. Proposed instruction D-38 read:

       A mitigating factor is anything that in fairness and mercy may reduce blame
       or that may justify a sentence less than death. Even if a factor does not justify
       or excuse the crime it may still be a mitigating factor. It is for each of you to
       decide if a factor is mitigating.

       Mercy alone can be a mitigating factor you can consider in deciding not to
       impose the death penalty and to impose a sentence of life without parole.

Instruction D-38 is clearly a mercy instruction, and the Court has recognized that such

instructions are not required and “may be given at the discretion of the trial court.” Foster,

639 So. 2d at 1300. Flowers’s counsel recognized during the sentencing instruction hearing

that D-38 was a mercy instruction. The trial court did not err in refusing the instruction.

¶140. Instruction D-39 provided: “The death penalty is never required. You may always find

that Mr. Flowers should be sentenced to life in prison or life in prison without the possibility

of parole.”   Although Flowers describes D-39 as a “mercy instruction,” upon close

examination, the instruction seems simply to instruct the jury on its ability to impose a

                                              86
sentence of life in prison rather than the death penalty. At the sentencing instruction hearing,

the trial court refused the instruction because it was repetitive of the omnibus sentencing

instruction given by the trial court. As part of the omnibus instruction, the jury was

instructed:“In the event that you find that the mitigating circumstance(s) do not outweigh or

overcome the aggravating circumstance(s), you may impose the death sentence.” (Emphasis

added.) Thus, the jury was given the option to sentence Flowers to life without parole or to

impose the death penalty if it found that the aggravating circumstances outweighed the

mitigating circumstances. Although the life without parole option was stated more clearly

in D-39 than in the omnibus instruction, it cannot be said that the jury was not given the

instruction. The trial court did not err in refusing instruction D-39.

       E. Aggravating Circumstances

¶141. The court instructed the jury on three aggravating circumstances: (1) “the Defendant

knowingly created a great risk of death to many persons”; (2) “the capital offense was

committed while the Defendant was engaged in the commission of the crime of armed

robbery for pecuniary gain”; and (3) “the capital offense was committed for the purpose of

avoiding or preventing a lawful arrest or effecting an escape from custody.” See Miss. Code

Ann. § 99-19-101(5) (Rev. 2014). Flowers claims that the trial court erred in issuing the

instruction.

                         1. Great Risk of Death to Many Persons

¶142. Flowers asserts that the trial court erred by allowing the jury to consider the

aggravating factor of “great risk of death to many persons.” The Court has held that the

“great risk” aggravator is appropriate when there are multiple victims of a single crime. See

                                              87
Flowers II, 842 So. 2d at 560 (¶ 91) (quoting Flowers I, 773 So. 2d at 325 (¶ 53) (citing

McGilberry v. State, 741 So. 2d 894, 925 (¶¶ 130-36) (Miss. 1999))). See also Jackson v.

State, 672 So. 2d 468, 490 (Miss. 1996) (when “multiple victims have been stabbed in the

same or a nearby room, courts in other jurisdictions generally have found that there was

sufficient evidence to warrant the ‘great risk to many persons’ aggravating circumstance”)

(collecting cases). Flowers acknowledges the Court’s prior holdings, but he asks the Court

to rule differently here.

¶143. To give the instruction, the defendant must have created a great risk of death to

someone other than his intended victim. Porter v. State, 732 So. 2d 899, 906 (¶ 31) (Miss.

1999). In Porter, the Court held that the evidence did not support the “great risk” aggravator

because the defendant had killed only one person, whom he had been hired to kill, and he

fled the scene after shooting that person, even though other people were inside the house at

the time. Id. In Corrothers v. State, the Court held that the “great risk” aggravator was

proper because the “evidence showed that Corrothers entered the home intending to attack

Taylor, and in doing so, he shot Frank and Tonya and held a gun on Josh.” Corrothers, 2014

WL 2894310, *35 (¶ 118).

¶144. Flowers asserts that the evidence does not indicate that the person who killed the four

victims had any intention to harm anyone other than the victims he was robbing. The State’s

theory was that Flowers intended to kill Bertha Tardy because she fired him and withheld his

pay and, in the process of doing so, he shot and killed the others. Flowers knew Carmen

Rigby from working at the store, but there is no evidence that he knew Robert Johnson or

Derrick Stewart, as the day of the murders was their first day to work at the store. Based on

                                             88
the State’s theory of the case, which was presented to the jury, we hold that there was

sufficient evidence on which the jury could have found that Flowers caused a great risk of

death to people other than his intended victim, Bertha Tardy. Further, because Flowers shot

four victims in the same room, the evidence was sufficient to warrant the instruction.

Jackson, 672 So. 2d at 490

¶145. Flowers also claims that “to allow the same conduct that is an essential element of the

underlying crime to also aggravate that crime for sentencing purposes” violates the Eighth

Amendment. Flowers does not cite any authority for this proposition, nor does he explain

how the aggravator violates the Eighth Amendment. The State understands Flowers’s

argument to be that use of the aggravator violates double jeopardy. We have specifically

held that the “great risk” aggravator does not violate double jeopardy. See Corrothers, 2014

WL 2894310, *35 (¶¶ 117-19) (quoting Flowers II, 842 So. 2d at 561-62 (¶ 94) (quoting

Wilcher v. State, 697 So. 2d 1087, 1105 (Miss. 1997))). The Court also has held that

“doubling” – the use of an element of the underlying crime as an aggravating circumstance

– does not violate the Constitution. See Corrothers, 2014 WL 2894310, *34 (¶ 116); Gillett,

56 So. 3d at 510 (¶ 118); Ross I, 954 So. 2d at 1014 (¶ 120). Accordingly, the issue is

without merit.

                         2. Armed Robbery for Pecuniary Gain

¶146. Flowers claims that the trial court erred by instructing the jury to consider the

aggravating factor of armed robbery for pecuniary gain because the instruction essentially

combined two aggravating factors.      The instruction given to the jury stated, in part:

“Consider only the following elements of aggravation in determining whether the death

                                             89
penalty should be imposed: . . . The capital offense was committed while the Defendant was

engaged in the commission of the crime of armed robbery for pecuniary gain.” Mississippi

Code Section 99-19-101(5) lists ten aggravating factors the jury may consider during the

penalty phase of capital punishment cases. One factor listed is the capital offense occurring

while in the commission of any robbery. Miss. Code Ann. § 99-19-101(5)(d) (Rev. 2014).

A separate factor is commission of the capital offense for pecuniary gain. Miss. Code Ann.

§ 99-19-101(5)(f) (Rev. 2014).

¶147. Flowers recognizes that the Court previously has found similar aggravating

circumstances instructions permissible, but he encourages the Court to reconsider its

reasoning. In Howell v. State, the Court held that it was not error for the following

aggravating circumstance instruction to be given to the jury: “The capital offense was

committed for pecuniary gain during the course of an armed robbery.” Howell, 860 So. 2d

at 756 (¶ 186). The Court noted that the jury is not permitted to “doubly weigh” aggravating

circumstances; thus, listing armed robbery and pecuniary gain as separate aggravating

circumstances could be unconstitutional in some factual circumstances. Id. at 756 (¶ 188)

(quoting Turner v. State, 732 So. 2d 937, 954-55 (¶¶ 71-72) (Miss. 1999)). When pecuniary

gain and armed robbery are used within the same factor, however, the concern of the jury

“doubly weighing” the aggravating factors is not present. As such, the issue is without merit.

                              3. Avoiding Lawful Arrest or
                            Effecting an Escape from Custody

¶148. Flowers claims that the trial court erred by instructing the jury that the capital offense

occurred for the purpose of avoiding or preventing arrest as an aggravating factor, because



                                              90
the evidence presented at trial was insufficient to support the instruction. Flowers also claims

that the definition of avoiding arrest is unconstitutional because it is overly broad. Whether

the avoiding arrest aggravator is constitutional has been addressed several times, and we

consistently have held that it is not overly broad. Brawner v. State, 947 So. 2d 254, 266 (¶

36) (Miss. 2006) (collecting cases).

¶149. The factor is appropriate where “the accused purposefully killed the victim of the

underlying felony to avoid or prevent arrest for that felony.” Id. at 266 (¶ 37). Further,

       [i]f there is evidence from which it may be reasonably inferred that a
       substantial reason for the killing was to conceal the identity of the killer or to
       “cover their tracks” so as to avoid apprehension and eventual arrest by
       authorities, then it is proper for the court to allow the jury to consider this
       aggravating circumstance.

Id. (quoting Wiley v. State, 750 So. 2d 1193, 1206 (¶ 46) (Miss. 1999)). In Wiley, the

defendant shot and killed a witness to a robbery and injured another witness. Wiley, 750 So.

2d at 1206 (¶ 47). The Court found that, because the defendant knew the victims and

attempted to dispose of evidence linking him to the robbery, there was sufficient evidence

to support the aggravating factor. Id. at 1206 (¶ 48). Like the defendant in Wiley, Flowers

knew the murder victims. Further, the murder weapon was never found, nor were the Fila

Grant Hill tennis shoes. However, a Fila Grant Hill shoebox was found at Flowers’s

girlfriend’s house, and Flowers had been seen wearing Fila Grant Hill shoes. Cash was

found hidden in Flowers’s headboard, and Flowers gave conflicting statements to police

regarding his whereabouts on the morning of the murders. In Wiley, the Court held that the

defendant’s “efforts to dispose of and/or conceal the evidence of his crime [were] sufficient

to support the avoiding arrest instruction.” Id. at 1206 (¶ 48). In the instant case, it could

                                              91
be “reasonably inferred” that Flowers attempted to conceal his identity, disposed of evidence,

or tried to “cover his tracks.” The evidence is sufficient to support the avoiding arrest

instruction.

   X. Whether Flowers’s multiple trials violated the Double Jeopardy Clause and
      the Due Process Clause of the Fourteenth Amendment.

¶150. Flowers claims that his six trials for the Tardy Furniture murders violate his due

process rights and the Double Jeopardy Clause. Flowers’s first and second trials resulted in

convictions and death sentences that subsequently were overturned by the Court for various

instances of prosecutorial misconduct. Flowers I, 773 So. 2d 309; Flowers II, 842 So. 2d

531. At his third trial, Flowers was again convicted and sentenced to death, but the Court

reversed and remanded for a new trial for a Batson violation. Flowers III, 947 So. 2d 910.

At Flowers’s fourth and fifth trials, the jury was unable to reach a unanimous decision, and

the trials resulted in mistrials. Prior to today’s case, Flowers moved to have the case

dismissed as a violation of his due process rights and the Double Jeopardy Clause; the trial

court denied the motion. Claims of double jeopardy are reviewed de novo. Rowland v.

State, 98 So. 3d 1032, 1037 (¶ 9) (Miss. 2012) (quoting Foreman v. State, 51 So. 3d 957,

960 (¶ 8) (Miss. 2011)).

¶151. The Double Jeopardy Clause of the Mississippi Constitution reads: “No person’s life

or liberty shall be twice placed in jeopardy for the same offense; but there must be an actual

acquittal or conviction on the merits to bar another prosecution.” Miss. Const. art. 3, § 22.

Likewise, the Fifth Amendment to the United States Constitution provides that never “shall

any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S.



                                             92
Const., amend. V.     The Double Jeopardy Clause does not bar reprosecution when a

conviction has been set aside on appeal. Green v. United States, 355 U.S. 184, 189 (1957).

Also, jeopardy does not attach when a criminal case ends by the jury failing to reach a

unanimous verdict. Id. at 188. See also Richardson v. United States, 468 U.S. 317, 323-24

(1984); Keerl v. Montana, 213 U.S. 135, 137-38 (1909). “Double jeopardy consists of three

separate constitutional protections: (1) protection against a second prosecution for the same

offense after acquittal, (2) protection against a second prosecution for the same offense after

conviction, and (3) protection against multiple punishments for the same offense.” Powell

v. State, 806 So. 2d 1069, 1074 (¶ 8) (Miss. 2001) (citing North Carolina v. Pearce, 395

U.S. 711, 717 (1969)). Flowers has not been acquitted, his convictions have not been upheld

on appeal, and he has not received multiple punishments. Therefore, the Double Jeopardy

Clause has not been implicated.

¶152. Flowers also claims that continued trials, despite the reversals in his first three direct

appeals on the bases of prosecutorial misconduct, violate his due process rights. We have

not addressed whether multiple trials result in a due process violation, but other courts have

held that multiple retrials do not violate a defendant’s due process rights when implications

of double jeopardy are not at issue. See People v. Sierb, 581 N.W.2d 219, 223-25 (Mich.

1998);6 United States v. Jones, 122 F. 3d 1058 (2d Cir. 1997). See also United States v.


       6
         In People v. Sierb, the Michigan Supreme Court recognized that a rule prohibiting
retrial on the basis of a due process violation would lead to problems with arbitrary
application: “[I]f recognized, guidelines for responsible decision making in applying the new
remedy would be scarce and open-ended. If three trials are too many under substantive due
process, why are not two? It could follow that either any retrial after a mistrial is barred as
a violation of substantive due process, or that the theory as applied would result in arbitrary

                                              93
Faulkenberry, 461 Fed. Appx. 496, 503 (6th Cir. 2012); United States v. Andrews, 2 F.

Supp. 3d 847, 853 (N.D. W. Va. 2014); Wallin v. Sinclair, 2013 WL 2338259 (W.D. Wash.

2013); Whiteside v. Warden, S. Ohio Corr. Facility, 2011 WL 5551598 (S.D. Ohio 2011).

Further, the United States Supreme Court has held that the Due Process Clause does not

provide greater protection against double jeopardy than the Double Jeopardy Clause itself.

Sattazahn v. Pennsylvania, 537 U.S. 101, 116 (2003). The Court wrote:

       At bottom, petitioner’s due-process claim is nothing more than his double-
       jeopardy claim in different clothing. As we have said: “The Bill of Rights
       speaks in explicit terms to many aspects of criminal procedure, and the
       expansion of those constitutional guarantees under the open-ended rubric of
       the Due Process Clause invites undue interference with both considered
       legislative judgments and the careful balance that the Constitution strikes
       between liberty and order.” Medina v. California, 505 U.S. 437, 443, 112 S.
       Ct. 2572, 120 L. Ed. 2d 353 (1992). We decline petitioner’s invitation to hold
       that the Due Process Clause provides greater double-jeopardy protection than
       does the Double Jeopardy Clause.

Id. See also United States v. Neto, 659 F.3d 194, 201 (1st Cir. 2011) (the Due Process

Clause of the Fifth Amendment does not supplement the protections provided by the Double

Jeopardy Clause). Flowers’s due process claim is an attempt to supplement the protections

of the Double Jeopardy Clause. Because the double jeopardy protections have not been

violated, Flowers cannot assert a due process claim on the same grounds. The issue is

without merit.

 XI. Whether the convictions and death sentences were obtained in violation of the
     Sixth, Eighth, and Fourteenth Amendments to the United States Constitution
     and their counterparts in the Mississippi Constitution.




assertion of judicial authority.” Sierb, 581 N.W.2d at 224.

                                            94
¶153. Flowers presents several contentions of error related to his indictments, the

admissibility of victim-impact testimony, and the constitutionality of the death penalty.

Flowers claims that the trial court should have precluded the State from seeking the death

penalty because of the alleged lack of evidence. Because there was sufficient evidence to

support a conviction, the issue is without merit. See Issue IV supra. Flowers also asserts that

his right to a speedy trial was violated for the Carmen Rigby and Robert Golden convictions,

but he provides no support for that contention. As such, the issue is without merit. See

Byrom v. State, 863 So. 2d 836, 853 (¶ 35) (Miss. 2003) (“failure to cite relevant authority

obviates the appellate court’s obligation to review such issues”).

       A. Whether it was constitutional to try Flowers for all four murders in the
          same trial despite there being four single-count indictments.

¶154. Flowers claims that it was error for him to be tried for all four murders at a single trial

when there were four single-count indictments rather than a multi-count indictment. He

further claims that the trial court erred in not entering an order consolidating the four cases

or obtaining a statement waiving the multi-count indictment. Flowers concedes that he did

not object at trial to proceeding under the four single-count indictments, but he claims that

the issue is one of plain error.

¶155. At his first trial, Flowers had filed a motion to consolidate the four murder indictments

into one trial, but the trial court had denied the motion. Flowers I, 773 So. 2d at 318 (¶ 26).

During Flowers’s third trial, the trial court announced that the parties had agreed to

consolidate the four cases. See Flowers III, 947 So. 2d at 916 (¶ 5). Flowers’s fourth, fifth,

and sixth trials were for all four murders.



                                               95
¶156. In his brief, Flowers claims that Mississippi Code Section 99-7-2 requires that he

should have been charged under a multi-count indictment and/or that the trial court should

have entered an order consolidating the matters. Section 99-7-2 does not include either of

the alleged requirements; rather, it includes permissive language allowing – but not requiring

– the trial court to proceed under a multi-count indictment. Section 99-7-2 reads in its

entirely:

       (1) Two (2) or more offenses which are triable in the same court may be
       charged in the same indictment with a separate count for each offense if: (a)
       the offenses are based on the same act or transaction; or (b) the offenses are
       based on two (2) or more acts or transactions connected together or
       constituting parts of a common scheme or plan.

       (2) Where two (2) or more offenses are properly charged in separate counts of
       a single indictment, all such charges may be tried in a single proceeding.

       (3) When a defendant is convicted of two (2) or more offenses charged in
       separate counts of an indictment, the court shall impose separate sentences for
       each such conviction.

       (4) The jury or the court, in cases in which the jury is waived, shall return a
       separate verdict for each count of an indictment drawn under subsection (1) of
       this section.

       (5) Nothing contained in this section shall be construed to prohibit the court
       from exercising its statutory authority to suspend either the imposition or
       execution of any sentence or sentences imposed hereunder, nor to prohibit the
       court from exercising its discretion to impose such sentences to run either
       concurrently with or consecutively to each other or any other sentence or
       sentences previously imposed upon the defendant.

Miss. Code Ann. § 99-7-2 (Rev. 2007) (emphasis added). In 2002, the Court of Appeals

addressed whether a defendant is entitled to a multi-count indictment. Brooks v. State, 832

So. 2d 607, 610-11 (Miss. Ct. App. 2002). In Brooks, the defendant was charged with two

counts of sale of cocaine in separate indictments and claimed on appeal that he should have

                                             96
been charged under a multi-count indictment. Id. at 608, 610 (¶¶ 1, 13). The court held that

single-count indictments were permissible:

       [The defendant] argues the cocaine sales were part of a common scheme;
       therefore, he should have been charged in a multi-count indictment. [The
       defendant] is incorrect. Separate indictments are the usual practice in
       Mississippi, while multi-count indictments are exceptional. Mississippi Code
       Annotated § 99-7-2-(1) (Rev. 2000) provides the three exceptional situations
       in which a multi-count indictment may be brought: “(1) the offenses are based
       on the same act or transaction; or (2) the offenses are based on two (2) or more
       acts or transactions connected together; or (3) the offenses are based on two
       (2) or more acts or transactions constituting parts of a common scheme or
       plan.” Id. A basic tenet of statutory construction is that the word “shall” is a
       mandatory directive, and the word “may” is discretionary in nature. American
       Sand and Gravel Co. v. Tatum, 620 So. 2d 557, 563 (Miss. 1993); Planters
       Bank & Trust Co. v. Sklar, 555 So. 2d 1024, 1027 (Miss. 1990). In this case,
       the State could have brought a multi-count indictment but was not required to
       do so.

Id. at 610 (¶ 13). Flowers provides no other authority for his proposition that a multi-count

indictment was required.

¶157. Flowers also claims that the trial court erred by not entering an order consolidating

the matters and/or obtaining a waiver from Flowers “to be tried on only a single count

indictment.” In support of his argument, Flowers cites State v. Berryhill, 703 So. 2d 250

(Miss. 1997), and Woods v. State, 200 Miss. 527, 27 So. 2d 895, 896-97 (1946). Neither

case supports Flowers’s contention. Berryhill stands for the proposition that “capital murder

indictments that are predicated upon the underlying felony of burglary must assert with

specificity the felony that comprises the burglary.” Berryhill, 703 So. 2d at 258. And,

although the Court in Woods found that the trial court erred by allowing the State to

consolidate for trial three separate crimes – exhibiting a deadly weapon, carrying a concealed

weapon, and assault and battery with fists – the case is distinguishable from Flowers’s case.

                                             97
Woods, 27 So. 2d at 897. In Woods, the Court noted that the three crimes contained different

elements and the different elements led to a possibility of prejudice for the defense:

       the accused had to be prepared to meet evidence of three distinct crimes, where
       much of the evidence as to one was not competent as to the others. Certainly
       the accused was confounded in his defense and evidence was introduced
       before the jury which would not have been competent upon separate trials.

Id. The concern present in Woods – that the defendant would have to defend three distinct

crimes – is not present in today’s case. Flowers was charged with four counts of capital

murder with the underlying felony of armed robbery. Because proceeding under single-count

indictments is permitted, the issue is without merit.

       B. Whether the trial court erred by refusing Flowers’s motion to quash
          the indictment for failure to allege an aggravating circumstance and/or
          the mens rea requirement.

¶158. Flowers claims that his indictments were constitutionally insufficient because they

failed to list the aggravating factors and/or the mens rea requirement. As mentioned above,

Flowers was charged with the murders in four single-count indictments. Aside from the

victims’ names, each indictment contained identical language. The indictments read, in part:

       CURTIS GIOVANNI FLOWERS late of Montgomery County, Mississippi,
       on or about the 16th day of July, 1996, in the county and state aforesaid, and
       within the jurisdiction of this Court, alone or while acting in concert with
       another or others, did unlawfully, wilfully, feloniously, and either with or
       without the deliberate design to effect death, kill and murder [the victim], a
       human being, by shooting her with a pistol, while engaged in the commission
       of the felony crime of armed robbery in violation of Miss. Code Ann. Section
       97-3-79 and Section 97-3-19(2)(e) [as amended] against the peace and dignity
       of the State of Mississippi.

¶159. Flowers claims that the indictments were insufficient under the United States Supreme

Court’s holdings in Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), and Ring v. Arizona,



                                             98
536 U.S. 584, 605-06 (2002). We addressed the same argument in Pitchford and said that

we have held repeatedly that “these cases have no application to Mississippi’s capital murder

sentencing scheme.” Pitchford, 45 So. 3d at 258 (¶ 184). The indictment in Pitchford was

almost identical to Flowers’s indictments. See id. at 257-58 (¶ 183). The Pitchford Court

provided the following regarding the Court’s refusal to apply Apprendi and Ring to the issue:

       This Court repeatedly has rejected this type of argument. We have held that
       Apprendi and Ring address issues wholly distinct from the present one, and
       in fact do not address indictments at all. The purpose of an indictment is to
       furnish the defendant with notice and a reasonable description of the charges
       against him so that he may prepare his defense. An indictment is required only
       to have a clear and concise statement of the elements of the crime with which
       the defendant is charged.

       Under Mississippi law, the underlying felony that elevates the crime to capital
       murder must be identified in the indictment along with the section and
       subsection of the statute under which the defendant is being charged. In
       addition, our death penalty statute clearly states the only aggravating
       circumstances which may be relied upon by the prosecution in seeking the
       ultimate punishment.

       When [the defendant] was charged with capital murder, he was put on notice
       that the death penalty might result, what aggravating factors might be used,
       and the mens rea standard that was required.

Pitchford, 45 So. 3d at 258 (¶ 184) (quoting Goff v. State, 14 So. 3d 625, 665 (¶¶ 174-77)

(Miss. 2009) (citations omitted)). Because Flowers’s indictments provided him with “notice

and a reasonable description of the charges against him so that he may prepare his defense,”

the issue is without merit.

       C. Whether the trial court erred by not declaring Mississippi Code
          Section 97-3-19(2)(e) unconstitutional and/or by not precluding the
          prosecution from relying on Mississippi Code Section 99-19-101(5)(d)
          as an aggravating circumstance.




                                             99
¶160. Flowers claims that Mississippi Code Section 97-3-19(2)(e) is unconstitutional

because it allows for an “arbitrary and capricious” application of the death penalty, since

cases of deliberate design and depraved heart murder are not death penalty eligible when

felony murder is death penalty eligible.     He further contends that the application of

Mississippi Code Section 99-19-101(5)(d) as an aggravating factor is unconstitutional

because the underlying felony – armed robbery – made the case eligible for the death penalty.

Therefore, Flowers claims that the underlying felony cannot also be used as an aggravating

circumstance. We have discussed both of the issues in past opinions.

¶161. In Batiste, the defendant claimed that Mississippi’s death-penalty scheme was

unconstitutional “because it [did] not allow the death penalty in cases of simple murder, no

matter how premeditated or atrocious.” Batiste, 121 So. 3d at 872 (¶ 181). We held that

Batiste was not entitled to relief because “the death penalty in Mississippi does not violate

the U.S. Constitution.” Id. (quoting Gillett, 56 So. 3d at 525 (¶ 168)). We also have

addressed whether the underlying felony may be considered an aggravating circumstance,

and we have held that use of the underlying felony as the aggravating circumstance is

appropriate. See Manning, 735 So. 2d at 350-51 (¶ 67). Further, the use of an underlying

felony as an aggravating circumstance has been upheld by the United States Supreme Court.

See Lowenfield v. Phelps, 484 U.S. 231, 241-46 (1988). For the above reasons, the issue is

without merit.

       D. Whether the trial court erred in permitting victim-impact testimony.

¶162. During the penalty phase, four witnesses provided victim-impact testimony – Roxanne

Ballard, Bertha Tardy’s daughter; Brian Rigby, Carmen Rigby’s son; Kathy Permenter,

                                            100
Derrick Stewart’s mother; and Willie Golden, Robert Golden’s brother. Flowers contends

that the trial court erred in permitting victim-impact testimony during the penalty phase

because the testimony did not relate to the statutory aggravating factors. Flowers also claims

that the admission of victim-impact testimony violated Eighth Amendment.

¶163. Recently, in Batiste, we held that victim-impact testimony did not violate the Eighth

Amendment:

       Victim impact statements are those which describe the victim’s personal
       characteristics, the emotional effect of the crimes on the victim’s family, and
       the family’s opinions of the crimes and the defendant. Edwards v. State, 737
       So. 2d 275, 291 (Miss. 1999). The United States Supreme Court has held that
       there is no per se bar to victim-impact testimony. Payne v. Tennessee, 501
       U.S. 808, 827, 111 S. Ct. 2597, 2609, 115 L. Ed. 2d 720 (Miss. 1991). This
       testimony is admissible at the sentencing phase, but not in the culpability
       phase. Havard v. State, 928 So. 2d 771, 792 (Miss. 2006). We will allow
       relevant victim-impact testimony in narrow circumstances as is constitutionally
       permissible. Id. When the evidence is proper, necessary to a development in
       the case and the true characteristics of the victim, and could not incite the jury,
       the testimony is admissible. Id. (quoting Jenkins v. State, 607 So. 2d 1171,
       1183 (Miss. 1992)) . . . . We decline to disregard the United States Supreme
       Court’s pronouncement in Payne, and will continue to adhere to the standard
       enunciated above.

Batiste, 121 So. 3d at 864 (¶ 147). On several occasions, we have permitted victim-impact

testimony that described the impact of the victim’s death on his or her family. See Keller v.

State, 138 So. 3d 817, 865 (¶ 131) (Miss. 2014); Batiste, 121 So. 3d at 864 (¶ 148); Havard

v. State, 928 So. 2d 771, 792 (¶ 37) (Miss. 2006); Branch v. State, 882 So. 2d 36, 68 (¶¶ 96-

97) (Miss. 2004). In Havard, the Court found that it was not error to admit the testimony of

the victim’s grandmother, who stated, “[j]ustice means [the victim’s] life was taken, and

there is only one way that we can find justice . . . . A life for a life.” Havard, 928 So. 2d at

792 (¶ 36). The Court noted, however, that the “vast majority” of the witness’s testimony

                                              101
“went straight to the relationships between her family members, including [the victim], and

the impact losing [the victim] had on them, all part of permissible testimony under our case

law.” Id. at 792 (¶ 37).

¶164. Flowers cites Berry v. State for the proposition that victim-impact testimony must be

relevant to a statutory aggravating circumstance, and that case does provide that victim-

impact testimony is admissible “if it is necessary to develop the case, and if it is relevant to

any of the aggravating circumstances.” Berry, 703 So. 2d at 275-76. However, we rejected

the same argument in Keller v. State. In Keller, the defendant cited Berry and argued that

victim-impact testimony was not permissible when “it did not relate to any of the aggravating

factors.” Keller, 138 So. 3d at 865 (¶ 129). The testimony in Keller described “the

emotional effect of the crime on the victim’s son and his opinion of the crime.” Id. at 865

(¶ 131). Despite the statement in Berry, we held that the testimony was “permissible under

the Court’s precedent on victim-impact statements.” Id.

¶165. In today’s case, the victim-impact testimony was consistent with the testimony

presented in Keller and Havard. At the sentencing phase, Roxanne Ballard testified about

her relationship with her mother and the effect her mother’s death had on her life. Likewise,

Brian Rigby, Kathy Permenter, and Willie Golden testified about the impact their family

members’ deaths had on them and their families. The above-described type of victim-impact

testimony is permissible, and the issue is without merit.

 XII. Whether the death sentence in the instant matter is constitutionally and
      statutorily disproportionate.




                                              102
¶166. Mississippi Code Section 99-19-105(3) requires the Court to determine “[w]hether the

sentence of death is excessive or disproportionate to the penalty imposed in similar cases,

considering both the crime and the defendant.” Miss. Code Ann. § 99-19-105(3) (Rev.

2007). The Court consistently has “upheld the death penalty in cases involving capital

murders committed during the commission of a robbery.” Batiste, 121 So. 3d at 873 (¶183)

(citing Gillett, 56 So. 3d at 524; Fulgham, 46 So. 3d at 323; Goff, 14 So. 3d at 650;

Chamberlin v. State, 989 So. 2d 320, 345 (Miss. 2008); Doss v. State, 709 So. 2d 369, 401

(Miss. 1997); Chase v. State, 645 So. 2d 829, 836-37 (Miss. 1994)). Further, the Court has

upheld the imposition of the death penalty in cases involving multiple victims.           See

Manning, 765 So. 2d at 522 (¶ 17). As such, the issue is without merit.

XIII. Whether the Court should set aside its prior order denying Flowers’s motion for
      remand and leave to file supplemental motion for new trial.

¶167. In May 2012, Flowers filed a motion for remand and leave to file supplemental motion

for new trial on the basis that the State failed to disclose information relating to the

credibility of one of its witnesses, Patricia Hallmon Sullivan Odom. Approximately four

months prior to the start of Flowers’s sixth trial, a federal grand jury indicted Odom for tax

fraud. Odom’s trial was in September 2010 – three months after Flowers’s trial. Flowers

contends that the State should have disclosed Odom’s indictment. Flowers’s motion was

based on the United States Supreme Court’s holding in Brady v. Maryland, 373 U.S. 83, 87

(1963), “that the suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” In response to Flowers’s



                                             103
motion, the State claimed that the issue should not be presented to the Court through motion

or direct appeal because the issue was not presented to the trial court. The State also

submitted District Attorney Doug Evans’s affidavit, which provided that he was not aware

of Odom’s indictment until after Flowers’s trial. The Court denied Flowers’s motion.

Because the issue was not presented to the trial court, it is not proper on appeal.

XIV. Whether the cumulative effect of the errors mandates reversal of the verdict
     and/or the sentence of death entered pursuant to it.

¶168. Flowers claims that even if the Court has doubts about the harm of any one error in

isolation, the cumulative effect of the errors warrants reversal. Certainly, the Court has often

applied the cumulative error doctrine in capital cases where, “although no error, standing

alone, requires reversal, the aggregate effect of various errors may create such an atmosphere

of bias, passion[,] and prejudice that they effectively deny the defendant a fundamentally fair

trial.” Goff, 14 So. 3d at 672 (¶ 210) (citation omitted). That is not the case here. We have

thoroughly reviewed the briefs, arguments, record, and trial transcript, and we have

determined that each issue raised by Flowers is without merit. Therefore, as there are no

individual errors, there is no cumulative error.

                                         Conclusion

¶169. Each issue raised by Flowers is without merit. Flowers’s four convictions for capital

murder and sentences to death were properly decided by the jury, and we affirm.

¶170. COUNT I: CONVICTION OF CAPITAL MURDER AND SENTENCE OF
DEATH BY LETHAL INJECTION, AFFIRMED. COUNT II: CONVICTION OF
CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION,
AFFIRMED. COUNT III: CONVICTION OF CAPITAL MURDER AND SENTENCE
OF DEATH BY LETHAL INJECTION, AFFIRMED. COUNT IV: CONVICTION OF



                                              104
CAPITAL MURDER AND SENTENCE OF DEATH BY LETHAL INJECTION,
AFFIRMED.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER, AND PIERCE, JJ.,
CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND KING, JJ. KING, J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KITCHENS, J.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶171. If Curtis Giovanni Flowers is so clearly guilty, why not allow him to defend himself?

Conviction of a capital crime and the decision to put a defendant to death should come from

a properly instructed jury following a fair trial at which the defendant was afforded every

reasonable opportunity to defend against the charges. In this case, the circuit judge erred by

refusing to allow the accused to defend the charges by calling a qualified expert to provide

perfectly admissible expert opinions, and by instructing the jury on an aggravating factor for

which the State provided no evidence.

       I.     Dr. Neuschatz should have been allowed to testify.

¶172. The trial judge categorically prohibited Flowers’s expert, Dr. Jeffrey Neuschatz, from

providing expert testimony on eyewitness identification. It was not that the trial judge

disagreed with the evidence in Dr. Neuschatz’s expert affidavit—he ignored it. The trial

judge felt that any helpful information that could have been provided by the expert could just

as easily have been developed through cross-examination. But the information the expert

would have provided could never be developed on cross examination, because the witnesses

would not know they had made misidentifications.




                                             105
¶173. This Court reviews a trial court’s ruling on the admissibility of evidence under a

deferential abuse-of-discretion standard.7 Under Mississippi Rule of Evidence 702 an

expert’s testimony must satisfy a two-part test.8 “First, the witness must be qualified by

virtue of his or her knowledge, skill, experience[,] or education. Second, the witness’s

scientific, technical[,] or other specialized knowledge must assist the trier of fact in

understanding or deciding a fact in issue.” 9

¶174. The trial judge is to act as a gatekeeper and may look to “a non-exhaustive, illustrative

list of reliability factors for determining the admissibility of expert witness testimony.” 10 The

five factors look at whether: (1) the theory or technique can be and has been tested; (2) the

theory has been subjected to peer review and publication; (3) there is a high known or

potential rate of error; (4) there are standards controlling the technique’s operation; and (5)

the theory or technique enjoys general acceptance within a relevant scientific community.11

The presence or absence of any one of these factors is not dispositive.

¶175. The issue of allowing experts to testify about the reliability of eyewitness

identification is not new. A majority of state jurisdictions allow eyewitness-identification

experts to testify, provided they are properly qualified and their opinions satisfy reliability


       7
       Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003) (citing
Haggerty v. Foster, 838 So. 2d 948, 958 (Miss. 2002)).
       8
           Miss. Transp. Comm’n, 863 So. 2d at 35.
       9
           Id.
       10
         Id. at 36 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-94, 113
S. Ct. 2786, 125 L. Ed. 2d 469 (1993)).
       11
            Miss. Transp. Comm’n, 863 So. 2d at 36 (citing Daubert, 509 U.S. at 592-94).

                                                106
concerns, such as those set forth in Daubert.         For instance, the Tennessee Supreme

Court—evaluating factors similar to those mentioned in Daubert—reversed its prior position

seven years ago and now allows properly qualified eyewitness experts to testify, finding that

such testimony can be helpful in the jury’s evaluation of an eyewitness’s identification.12

And the vast majority of states and the District of Columbia either give trial courts discretion

to allow eyewitness-identification expert testimony, or require the admission of such

testimony.13


       12
            State v. Copeland, 226 S.W.3d 287, 302-304 (Tenn. 2007).
       13
          See Ex Parte Williams, 594 So. 2d 1225, 1227(Ala. 1992) (“It is clear from these
cases that there is presently a trend in the law to allow expert testimony on the subject of
human memory.”); Skamarocius v. State, 731 P.2d 63, 66-67 (Alaska 1987); State v.
Chapple, 660 P.2d 1208, 1219 (Ariz. 1983), overruled on different grounds by State v.
Benson, 307 P.3d 19 (Ariz. 2013); Jones v. State, 862 S.W.2d 242, 244-45 (Ark. 1993);
People v. Jones, 70 P.3d 359, 388 (Cal. 2003) (“Exclusion of the expert testimony is
justified only if there is other evidence that substantially corroborates the eyewitnesses
identification and gives it independent reliability.”); People v. Campbell, 847 P.2d 228, 233
(Colo. App. 1992); State v. Guilbert, 49 A.3d 705, 731-32 (Conn. 2012); Hager v. U.S., 856
A.2d 1143, 1147 (D.C. 2004); McMullen v. State, 714 So. 2d 368, 371 (Fla. 1998); Johnson
v. State, 526 S.E.2d 549, 552 (Ga. 2000); People v. Enis, 564 N.E.2d 1155, 1165 (Ill. 1990);
Cook v. State, 734 N.E.2d 563, 570 (Ind. 2000); State v. Schutz, 579 N.W.2d 317, 319 (Iowa
1998) (“[T]he admissibility of expert testimony relating to the accuracy of eye witness
identification rests within the sound discretion of the trial court.”); State v. Carr, 331 P.3d
544, 690 (Kan. 2014); Commonwealth v. Christie, 98 S.W.3d 485, 488 (Ky. 2002) (noting
that the vast majority of jurisdictions have left the admission of eyewitness expert
identification testimony to the discretion of trial courts); State v. Rich, 549 A.2d 742, 743
(Me. 1988); Bomas v. State, 987 A.2d 98, 114-115 (Md. 2010); Commonwealth v. Santoli,
680 N.E.2d 1116, 1120 (Mass. 1997); State v. Barlow, 541 N.W.2d 309, 313 (Minn. 1995);
State v. DuBray, 77 P.3d 247, 255 (Mont. 2003) (“It shall be an abuse of discretion for a
district court to disallow expert testimony on eyewitness testimony when no substantial
corroborating evidence exists.”); White v. State, 926 P.2d 291, 292 (Nev. 1996); State v.
Henderson, 27 A.3d 872, 916-17 (N.J. 2011); People v. LeGrand, 867 N.E.2d 374, 379
(N.Y. 2007); State v. Fontaine, 382 N.W.2d 374, 378 (N.D. 1986); State v. Buell, 489
N.E.2d 795, 803 (Ohio 1986); Bristol v. State, 764 P.2d 887, 890 (Okla. Crim. App. 1988);
State v. Lawson, 291 P.3d 673, 697 (Or. 2012); Commonwealth v. Walker, 92 A.3d 766,

                                              107
¶176. In this case, the trial judge first found that the trier of fact did not need Dr.

Neuschatz’s testimony. He stated: “Given the extensive cross-examination of Mr. Collins

and because all other witnesses knew Mr. Flowers on sight, I do not believe an expert on

witnesses identification would assist the jury in the least bit in this case.” This conclusion

was demonstrably incorrect. The trial judge provided no analysis of how cross-examination

of the witnesses could develop the opinions provided by Dr. Neuschatz, or how the witnesses

themselves could provide expert testimony. The eyewitnesses certainly could provide the

facts, such as distance, lighting, length of time, etc. But Dr. Neuschatz was not presented to

testify to the facts alone. His role was to begin with the facts provided by the eyewitnesses,

and then provide expert testimony as to the difficulties and reliability associated with

identification. The eyewitnesses themselves certainly could not provide the testimony

expected from Dr. Neuschatz.

¶177. Nor could cross-examination provide an adequate substitute for Dr. Neuschatz’s

testimony. A skillful attorney may utilize cross-examination to expose contradictions in a

witness’s testimony. But no attorney—of even the greatest skill—can cross-examine a

witness in such a way to expose that the witness did not see what the witness actually



791 (Pa. 2014) (“[I]n light of the magnitude of scientific understanding of eyewitness
identification and marked developments in case law during the last 30 years, it is no longer
advisable to ban the use of expert testimony to aid a jury in understanding eyewitness
identification.”); State v. Sabetta, 680 A.2d 927, 933 (R.I. 1996); State v. Whaley, 406
S.E.2d 369, 372 (S.C. 1991); State v. Hill, 463 N.W.2d 674, 676 (S.D. 1990); Jordan v.
State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996); State v. Clopten, 223 P.3d 1103, 1112
(Utah 2009); State v. Percy, 595 A.2d 248, 253 (Vt. 1990); State v. Cheatam, 81 P.3d 830,
842 (Wash. 2003); State v. Utter, No. 13-0479, 2014 WL 1673025, at *3 (W. Va. Apr. 25,
2014); State v. Shomberg, 709 N.W.2d 370, 377 (Wis. 2006); Engberg v. Meyer, 820 P.2d
70, 79-80 (Wyo. 1991).

                                             108
believes he saw.    And that is exactly the purpose of expert eyewitness-identification

testimony. Dr. Neuschatz—if allowed to testify—would have explained scientific principles

affecting the accuracy of a witness’s perception of what he saw.

¶178. The trial judge’s entire Daubert analysis was as follows:

       Further, though, I think aside from the fact that I do not think this would assist
       the trier of fact, I do not think all the Daubert principles have been shown to
       the Court to apply to this testimony. The defense has not offered to this Court
       this idea that the theories the defense would testify to or the area of expertise
       proffered are generally accepted. I do not know whether the testimony has a
       potential or known high rate of error. I do not have anything about that. I do
       not know anything about the principles and methods used to come to
       conclusions. And basically, the witness did not apply the principles and
       methods to the facts of this case. He made broad generalizations in the
       document that was submitted, but he did not specifically apply those principles
       and methods to the facts of this case. So for all these reasons, I do not think
       that this witness testimony would be appropriate, and I am going to deny the
       testimony of this witness.

The following is a detailed analysis of each sentence of the trial judge’s Daubert analysis,

and it demonstrates that the trial judge abused his discretion in refusing to allow Dr.

Neuschatz to testify as an expert.

       I do not think all the Daubert principles have been shown to the Court to apply
       to this testimony.

¶179. This statement suggests the trial court erroneously believed the defendant had a

burden to show that “all the Daubert factors” applied. Clearly, this is not the case.

       The defense has not offered to this Court this idea that the theories the defense
       would testify to or the area of expertise proffered are generally accepted.




                                              109
¶180. This conclusion was incorrect.         Dr. Neuschatz cited thirty-three studies in his

affidavit, each of which indicated general acceptance in the field of psychology. The State

offered no evidence in rebuttal of Dr. Neuschatz’s affidavit on this point.14

¶181. The majority agrees with the trial judge on this point, but with little explanation. The

majority notes several times that Dr. Neuschatz did not attach each article to his affidavit, but

admits he was not required to do so. Clearly, under our Rules of Evidence, experts are not

required to attach the basis of their opinions to their affidavits. Instead, they are allowed to

rely on studies that they do not provide to the court, unless requested by the court. Rule 705

provides

       The expert may testify in terms of opinion or inferences and give his reasons
       therefor without prior disclosure of the underlying facts or data, unless the
       court requires otherwise. The expert may in any event be required to disclose
       the underlying facts or data on cross-examination.15

¶182. In this case, neither the trial judge nor the State requested production of the underlying

data or the articles upon which Dr. Neuschatz relied. It was clear error for the trial judge to

reject Dr. Neuschatz’s affidavit merely because the articles were not attached. And the

       14
         Dr. Neuschatz cited studies by: (1) Neisser 1967; (2) Loftus 1979; (3) Loftus and
Loftus 1990; (4) Schacter 1995; (5) Ellis, Davis, and Shepard 1977; (6) Maclin, Maclin, and
Malpass 2001; (7) Shapiro and Penrod 1986; (8) Memon, Hope, and Bull 2003; (9) Culter
and Penrod 1988; (10) Culter, Penrod, and Martens 1987 (study a); (11) Culter, Penrod, and
Martens 1987 (study b); (12) Culter 1986; (13) O’Rourke 1987; (14) Culter 2006; (15)
Tulving 1983; (16) Hunt and Ellis 1974; (17) Read, Tollestrup, Hammersley, McFadden, and
Christensen 1990; (18) Ross, Ceci, Dunning, and Toglia 1994; (19) Meissner and Bringham
2001; (20) Gibson 1969; (21) Wells and Bradfield 1998; (22) Neuschatz 2005; (23) Hafstad,
Memon, and Logie 2004; (24) Wells, Small, Penrod, Malpass, Fulero, and Brimacombe
1998; (25) Haw and Fisher 2004; (26) Garrioch and Brimacombe 2001; (27) Neuschatz and
Gutler (in progress); (28) Douglas, Smith, and Frasier-Hill 2005; (29) Malpass and Devine
1981; (30) Stebaly 1997; (31) Loftus 1993; (32) Johnson 1993; and (33) Pezdek 2007.
       15
            Miss. R. Evid. 705.

                                              110
majority compounds the error by finding that the trial judge did not abuse his discretion in

finding that Flowers presented insufficient evidence on this point. The trial court failed to

identify a single piece of evidence that Flowers lacked.

¶183. In Watts v. Radiator Specialty Company, this Court considered whether an expert’s

opinions were actually supported by the case studies he cited.16 The expert in that case did

not provide the studies to the court.17 Though this Court found that the trial court properly

excluded the expert’s testimony because the studies did not support his conclusion, the Court

never questioned his failure to provide those studies.18

       I do not know whether the testimony has a potential or known high rate of
       error. I do not have anything about that.

¶184. Again, on this point, the trial judge was incorrect. In his affidavit, Dr. Neuschatz

discussed extensive testing that produced precise error rates. For instance, in discussing the

factor of exposure time, Dr. Neuschatz stated:

       Exposure duration had a significant impact on identification accuracy. Ninety-
       five percent of the young adults and 85% of the older adults made correct
       identifications from the robber-present photo arrays when the robber was
       exposed for 45 seconds, but only 29% of the young adults and 35% of the
       older adults made correct identifications when the robber was exposed for 12
       seconds.

¶185. In discussing the appearance-change disguise factor, he stated: “The average

performance levels across the six studies, which involved over 1,300 eyewitness

identifications, was 57% correct when uncovered and versus 44% when a hat was worn.”


       16
            Watts v. Radiator Specialty Co., 990 So. 2d 143, 146-48 (Miss. 2008).
       17
            Id. at 147, n.7.
       18
            Id.

                                             111
¶186. In discussing cross-race identification, Dr. Neuschatz stated:

       The reliability of the ORB [own-race bias] was examined by Meissner and
       Brigham (2001) who meta-analyzed the results of 31 separate studies
       involving 91 separate experimental tests of own versus same-race
       identifications. The studies included over 5,000 participants. Across all
       studies, eyewitnesses were 1.4 times more likely to correctly identify members
       of their own race than members of other races, and they were 1.56 times more
       likely to falsely identify members of other races than members of their own
       race.

¶187. These and other studies cited in the affidavit speak not only to error rates but also to

the reliability of Dr. Neuschatz’s opinions.

       I do not know anything about the principles and methods used to come to
       conclusions.

¶188. Here again, the trial judge was incorrect. The studies cited above, and the balance of

Dr. Neuschatz’s affidavit are replete with descriptions of the methods and principles used in

the numerous studies.

¶189. Dr. Neuschatz’s affidavit contained detailed information about studies on: (1) how

memory works; (2) effect of exposure time on reliability of memory; (3) effect of appearance

changes and disguises on identification; (4) the phenomenon of unconscious transference

where one situation is confused with another; (5) problems with crossracial identifications;

(6) problems with post-identification feedback; and (7) problems with suggestive lineup

procedures.

       And basically, the witness did not apply the principles and methods to the facts
       of this case. He made broad generalizations in the document that was
       submitted, but he did not specifically apply those principles and methods to the
       facts of this case.




                                               112
¶190. Again, the trial judge was incorrect. Dr. Neuschatz indeed applied the principles and

methods in his field of expertise to the facts in the Flowers case. For instance, he analyzed

in detail the effect of the police’s lineup identification. Also, he addressed issues involving

Porky Collins’s identification, including problems with cross-racial identifications.

       Refusing to allow Dr. Neuschatz to testify was not harmless error.

¶191. Dr. Neuschatz’s testimony would have provided the jury a fair basis upon which to

judge the accuracy of Collins’s identification. I also cannot accept the majority’s conclusion

that “Collins’s identification was far from the only evidence of guilt in the instant case, and

it cannot be label ‘critical.’”

¶192. It is true that the State had other witnesses, but none provided the powerful eyewitness

testimony that Collins provided. He is the only witness who placed Flowers at the scene of

the murders shortly before they were committed. None of the witnesses was more critical

to the State’s case, and none was more important for the defense to attack.

¶193. The State offered nothing in rebuttal of Dr. Neuschatz’s opinions. No experts,

articles, studies, or evidence of any kind that tended to refute his opinions and methodology.

Accordingly, Dr. Neuschatz should have been allowed to testify in this case.

       II.     The trial judge should have denied the State’s requested instruction
               on the “commission of a capital crime to avoid arrest” aggravator.

¶194. When Flowers’s case proceeded to the sentencing phase, the trial judge instructed the

jury to consider three potential aggravating factors:

       1.      The Defendant knowingly created a great risk of death to many
               persons.




                                             113
       2.       The capital offense was committed while the Defendant was engaged
                in the commission of the crime of armed robbery for pecuniary gain.

       3.       The capital offense was committed for the purpose of avoiding or
                preventing lawful arrest or effecting an escape from custody.

The jury found each aggravating factor and sentenced Flowers to death. Because the trial

judge erred when he instructed the jury to consider the third aggravating factor, I would

reverse Flowers’s death sentence and remand for resentencing even if this Court affirmed his

conviction.

¶195. It is elementary that the State bears the burden to prove the defendant’s guilt of a

charged offense beyond a reasonable doubt.19 Likewise, our law places upon the State the

burden in a capital murder sentencing proceeding to prove the existence of each aggravating

factor beyond a reasonable doubt.20 Only when the State satisfies its burden may the jury

weigh a particular aggravating factor in favor of a death sentence.21

¶196. The majority relies on this Court’s repeated statement that an instruction should be

granted on this aggravating factor if the jury may draw an inference from the evidence that

avoiding arrest was “a substantial reason for the killing.” 22 But that standard—stated in that


       19
            Henley v. State, 136 So. 3d 413, 415-16 (Miss. 2014) .
       20
        Holland v. State, 587 So. 2d 848, 874 (Miss. 1991) (citing Nixon v. State, 533 So.
2d 1078, 1099 (Miss. 1987), overruled on other grounds by Wharton v. State, 734 So. 2d
985, 991 (Miss. 1998)); see also Keller v. State, 138 So. 3d 817, 867-68 (Miss. 2014).
       21
            Keller, 138 So. 3d at 867-68.
       22
          Id. at 868 (quoting Gillett v. State, 56 So. 3d 469, 505-06 (Miss. 2010) (quoting
Leatherwood v. State, 435 So. 2d 645, 651 (Miss. 1983))); see also Wiley v. State, 750 So.
2d 1193, 1206 (Miss. 1999); Woodward v. State, 726 So. 2d 524, 540 (Miss. 1997); Foster
v. State, 687 So. 2d 1124, 1140 (Miss. 1996); Taylor v. State, 672 So. 2d 1246, 1275 (Miss.
1996); Walker v. State, 671 So. 2d 581, 611 (Miss. 1995); Carr v. State, 655 So. 2d 824,

                                             114
way with nothing more—cannot be the law. Saying jurors may draw an inference is not

enough, unless the inference is so strong that, standing alone, the inference is sufficient for

a finding beyond a reasonable doubt. The inference in this case clearly does not fall into that

category.

¶197. The majority says a reasonable juror could infer that Flowers killed one of the victims

to prevent identification and avoid arrest. While a reasonable juror might very well find that

to be a possibility, it would be no more than a guess. And no reasonable juror could make

that finding beyond a reasonable doubt. Judges should submit issues to juries through

instructions only when a reasonable juror could find the beyond-a-reasonable-doubt burden

of proof satisfied on that issue.23

¶198. Stated another way, jurors certainly are free to draw reasonable inferences from the

facts. But a juror’s ability to draw a reasonable inference is not the same as a reasonable

juror’s ability to find that fact beyond a reasonable doubt. For instance, one may draw a

reasonable inference that a person who usually goes to lunch from 12:00 to 1:00 p.m. is at

lunch on a particular day at 12:30 p.m. But that does not mean one may reach that

conclusion beyond a reasonable doubt.




853-54 (Miss. 1995); Chase v. State, 645 So. 2d 829, 858 (Miss. 1994); Hansen v. State,
592 So. 2d 114, 153 (Miss. 1991); Lanier v. State, 533 So. 2d 473, 490 (Miss. 1988).
       23
          Henley, 136 So. 3d at 415-16 (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss.
1985) (citing May v. State, 460 So. 2d 778, 781 (Miss. 1984))) (a directed verdict should be
granted if no reasonable juror could find the defendant guilty beyond a reasonable doubt);
Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985) (a lesser-offense instruction should be
granted unless no reasonable juror could find that the defendant committed the lesser
offense).

                                             115
¶199. So a trial judge should grant the State’s request to instruct the jury on this aggravating

factor only where the State has presented evidence from which a reasonable juror could find

beyond a reasonable doubt that “a substantial reason for the killing was to conceal the

identity of the killer or killers or to ‘cover their tracks’ so as to avoid apprehension and

eventual arrest by authorities.” 24 And any case that categorically establishes inferences as

sufficient to satisfy the beyond-a-reasonable-doubt standard should be overruled.

¶200. The State presented insufficient evidence to meet its burden. The most that may be

said in this case is that the jury could speculate that Flowers committed one of the murders

to avoid arrest. There was no evidence that he did. In fact, the State argued in the guilt

phase that Flowers committed the murders for different purposes: revenge and anger over

being fired as well as to effectuate the robbery. From its opening statement, the State’s

theory of the case was that Flowers possessed a motive to commit the murders because he

had been fired by Tardy’s Furniture. This motive—a revenge killing—is at odds with a

conclusion that he killed out of a necessity to avoid arrest. No evidence was presented that

Flowers expressed an intent to kill to avoid arrest.

¶201. The majority finds that this aggravating-factor instruction is supported by two facts:

Flowers knew his victims and Flowers disposed of evidence after the killings. The second

can be disposed of easily because it bears no logical connection to the question at hand.

Regardless of the reason someone commits murder, that person usually has an incentive to

dispose of the evidence. Said differently, if Flowers killed his victims out of pure anger, he



       24
        Keller, 138 So. 3d at 867-68 (quoting Gillett, 56 So. 3d at 505-06 (quoting
Leatherwood, 435 So. 2d at 651)).

                                             116
would have an incentive to cover up the killing by disposing of evidence. The same could

be said if Flowers killed because the victims resisted the robbery. Showing that Flowers

disposed of evidence after the killing makes it no more reasonable to conclude that he killed

to avoid arrest.

¶202. Likewise, the majority’s reliance on the fact that Flowers knew his victims is

misplaced. First, by the majority’s own statement, this rationale applies to one victim. The

majority states:

       The State’s theory was that Flowers intended to kill Bertha Tardy because she
       fired him and withheld his pay and, in the process of doing so, he shot and
       killed the others. Flowers knew Carmen Rigby from working at the store, but
       there is no evidence that he knew Robert Johnson or Derrick Stewart, as the
       day of the murders was their first day to work at the store.

This statement acknowledges that Flowers killed Tardy—not to avoid arrest—but for

revenge. The majority admits that Flowers did not know Johnson or Stewart. So, at best, the

majority’s reliance on this evidence relates to Rigby alone. But, even there, it cannot provide

sufficient evidence to grant the instruction. It is simply inaccurate to say that a reasonable

juror could conclude beyond a reasonable doubt that Flowers killed Rigby to avoid arrest,

simply because they had worked together.

¶203. True, this Court has supported an instruction on this aggravating factor in the past

based solely on the fact that the victim knew the defendant and could identify him.25 But if

we are to enforce the burden of proof required of the State, this was error. Allowing a jury

to consider an aggravating factor based on nothing more than pure speculation cannot reach

the level of proof beyond a reasonable doubt. Because the State presented insufficient

       25
            Wiley, 750 So. 2d at 1206.

                                             117
evidence from which a reasonable juror could find this aggravating factor beyond a

reasonable doubt, I would reverse Flowers’s sentence of death and remand for a new

sentencing hearing.26

       KITCHENS AND KING, JJ., JOIN THIS OPINION.

       KING, JUSTICE, DISSENTING:

¶204. In two previous direct appeals, this Court has reversed Flowers’s conviction and death

sentence as a result of prosecutorial misconduct. In Flowers v. State, 842 So. 2d 531 (Miss.

2003) (Flowers II), the prosecution’s argument of facts not in evidence resulted in reversal.

Finding that a Batson 27 violation had occurred, this Court reversed and remanded Flowers

v. State, 947 So. 2d 910 (Miss. 2007) (Flowers III), for a new trial. Despite the same errors

occurring in today’s case, the Majority, in a stark departure from this Court’s previous

Flowers opinions, finds that Flowers’s conviction and death sentence should be affirmed.

Because the errors in today’s case resulted in Flowers being denied his right to a fair trial,

I dissent.

I.     Prosecution’s Argument of Facts Not in Evidence

¶205. There are three instances of the prosecution arguing facts not in evidence in today’s

case: (1) the prosecution misstated the time Sam Jones discovered the victims’ bodies at

Tardy’s; (2) the prosecution stated an unsupported basis for Flowers’s alleged motive; and

(3) the prosecution incorrectly described Porky Collins’s reaction to the photo arrays. In

       26
         Gillett v. State, __ So. 3d __, 2014 WL 2615338, *6-7 (Miss. 2014) (the Court
declines to exercise its authority under Mississippi Code Section 99-19-105(3)(d) to re-
weigh aggravating and mitigating factors).
       27
             Batson v. Kentucky, 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

                                              118
Flowers II, 842 So. 2d at 550, the prosecution’s misstatement of facts during closing

argument was one basis, inter alia, for this Court’s reversal. In that appeal, Flowers cited

approximately fourteen alleged misstatements. Id. at 555. This Court found that the

following misstatements by the prosecutor resulted in an unfair trial: (1) that defense

witnesses tried to coerce the State’s witnesses to lie; (2) that Sam Jones received a call at

9:30 a.m. from Bertha Tardy asking him to come to the store; and (3) that Flowers “was

mad” about losing his job and having his pay docked. Id. at 555-56.

¶206. The statements that resulted in this Court reversing Flowers’s conviction and death

sentence in Flowers II are notably similar to the statements raised in today’s case. While this

repetition of prosecutorial misconduct is alarming, the Majority’s approval of the same is

even more startling. Courts have long recognized – and reasonably feared – that misconduct

during closing argument may become commonplace in our trial courts. Despite regular

admonishments, such misconduct still occurs:

       That despite our consistent warnings to the Government we should still be
       called upon to admonish against such conduct is reprehensible per se because
       it constitutes a disregard for our directives. But additionally it is particularly
       pernicious because it results in an unnecessary waste of judicial resources,
       both at the trial and appellate level, by diversion and attention to review of
       what now should be understood to be totally unacceptable conduct by those
       who lay claim to representing the Government . . . .

U.S. v. Maccini, 721 F. 2d 840, 846 (1st Cir. 1983). The Majority in today’s case, by

endorsing the prosecutor’s misstatements – the same misstatements which warranted reversal

in Flowers II – takes Mississippi one step closer to having misrepresentation of the facts

presented at trial commonplace in our trial courts.

       A.     Sam Jones’s Testimony Regarding His Arrival At Tardy’s

                                             119
¶207. Sam Jones died prior to Flowers’s 2010 trial, and his testimony from Flowers’s 2007

trial was read into evidence. Flowers claims that the State misrepresented Jones’s testimony

regarding the timeline of events the morning of the murders. Jones testified as follows:

       A.       Well, [Bertha Tardy] called me and asked me – I had promised her I
                would come down and help them load out a truck and go on a delivery.
                And she called me to ask me about was I coming down there. And I
                told her that I was. And then about, that was about 15 minutes after
                9:00, I think, when she called, somewhere along in there.

       Q.       About what time did you get to the store that morning, Mr. Jones?

       ....

       A.       I got to the store; it was before – it was right at, between 9:15 and 9:30.

       Q.       Okay.

       A.       I will put it like that. It wasn’t 9:30.

       Q.       Okay. You got to the store between 9:15 or right around that time?

       A.       Yes.

Although Jones testified that he arrived at Tardy’s between 9:15 and 9:30 a.m., the State

attempted to question Jones later about the timeline and misstated that he arrived closer to

10:00 a.m.:

       Q.       Okay. And I think – I might have misled you a little bit. It was, when
                you got to the store, that was going to be closer on up to 10 o’clock,
                wasn’t it?

       Flowers’s Counsel: Object to leading, Your Honor.

       Court:           Overruled.

Jones never responded to this question.




                                                120
¶208. In its closing argument, the State discussed the timeline for the morning of the

murders and apparently put the timeline on some type of marker board. During the timeline

discussion, the prosecution stated: “Mr. Sam Jones came into the store slightly after 10:00

on the morning of the 16th and discovered the bodies.” Flowers did not object to this

statement at closing argument.

¶209. In Flowers II, 842 So. 2d at 511, this Court addressed whether this same issue was

procedurally barred by lack of contemporaneous objection. This Court applied plain error

to the issue, and found that the prosecution’s misstatements warranted reversal. Id. “The

plain error doctrine requires that there be an error and that the error must have resulted in a

manifest miscarriage of justice.” Williams v. State, 794 So. 2d 181, 187 (Miss. 2001) (citing

Gray v. State, 549 So. 2d 1316, 1321 (Miss. 1989)), overruled on other grounds by Foster

v. State, __ So. 3d __, 2014 WL 5285647 (Miss. Oct. 16, 2014).

¶210. In Flowers II, 842 So. 2d at 555, the prosecution stated that Sam Jones had testified

that Bertha Tardy had called him at 9:30 a.m. Reviewing this statement, this Court stated:

       After a thorough examination of the record, it is clear from Jones’s testimony
       that he testified he arrived at Tardy’s at 9:30. He never once stated he was
       called at 9:30 on the morning of July 16, but he did testify he arrived at the
       store around 9:30. On direct examination, the State never questioned Jones
       about a specific time. He only stated he received a call from Mrs. Tardy on the
       morning of July 16. On cross-examination, Jones was asked what time he
       arrived at Tardy’s, and he answered it was around 9:30.

Id. at 556. This Court then found that “[t]he cumulative effect of the State’s repeated

instances of arguing facts not in evidence was to deny Flowers his right to a fair trial.” Id.

¶211. Flowers claims that the statement in today’s case prejudiced him by essentially

skewing the timeline in the State’s favor. Porky Collins and Clemmie Flemming both

                                             121
testified that they saw Flowers near Tardy’s around 10:00 a.m. Flowers claims that if Jones’s

testimony had been accurately described – that he arrived at the store between 9:15 and 9:30

– the question of what Flowers was doing so close to the scene of a murder thirty to forty-

five minutes after the murders could have occurred would have been raised in the jurors’

minds.

¶212. There is no doubt that the prosecutor’s statement is not supported by Sam Jones’s

testimony and that there is no direct evidence supporting the contention that Jones arrived

at Tardy’s at 10:00 a.m. The prosecution’s statement is not based on facts and prejudiced

Flowers by deliberately painting an incorrect picture for the jury of the events surrounding

the discovery of the murders – this same picture was painted in Flowers II.

         B.     Flowers’s Motive

¶213. The second misstatement Flowers cites relates to his alleged motive to commit the

murders. Similar to Sam Jones’s testimony and the timeline described above, misstatements

related to Flowers’s motive were another basis for this Court’s reversal in Flowers II, 842

So. 2d at 556. In Flowers II, 842 So. 2d at 555-56, this Court found that the prosecution’s

statement that Flowers “was mad” as a result of losing his employment with Tardy’s was a

misstatement of the facts:

         [T]he prosecutor argued to the jury that [Robert] Campbell had testified that
         Flowers was mad because Mrs. Tardy had terminated his employment and was
         holding money out of his paycheck to cover the damaged batteries. Defense
         counsel objected on the basis that the prosecutor was mischaracterizing
         Campbell’s testimony, and when the prosecutor responded that he was quoting
         verbatim from his notes, the trial court overruled the defense objection. . . .
         After a thorough examination of Campbell’s testimony, it is clear Campbell
         never testified Flowers was upset at Mrs. Tardy. The State never questioned
         Campbell about Flowers’s feelings toward Tardy or about any money. On

                                              122
       redirect, Campbell was asked if Flowers ever mentioned anything was wrong
       with Mrs. Tardy, and Campbell stated Flowers never mentioned anything to
       him.
Id.

¶214. In today’s appeal, Flowers claims that the following statement by the prosecutor was

not based on facts in evidence:

       The investigators learned pretty quickly when they asked who in the world
       could have had some reason, some motive, some anything to attack four people
       like this.

       Have you had anybody that’s had beef with the store? Just one. Well, that
       doesn’t mean he did this though, does it? No. But you check that out. You
       look at him. And in the course of deciding what, if anything, Curtis Flowers
       had to do with this crime.

Flowers claims that no evidence was presented at trial supporting the contention that he was

angry as a result of his termination. In response, the State argues that the following supports

the contention that Flowers “had beef” with Tardy’s:

       1. Flowers losing his job days prior to the murders.

       2. Bertha Tardy deducting the cost of damaged inventory from Flowers’s paycheck.

       3. Police Chief John Johnson’s testimony that the Tardy family considered Flowers
       a threat:

       Q.     Okay. How did Curtis Flowers become a suspect by then, by 6:30?

       A.     I knew that the Tardy family had considered Curtis a threat and that
              they were concerned about their safety dealing with him.

       4. Investigator Jack Matthew’s testimony about employees who had been fired from
       Tardy’s:

       Q.     You asked who else had worked there the last couple of years and those
              kind of things?




                                             123
       A.     Well, we asked if there was anybody that they’d had any problem with
              or anybody that had been fired from there, and that was the – Curtis
              was the only one.

       5. Doyle Simpson’s testimony that Flowers had “problems” with Tardy’s:

       Q.     Okay. Did you know anything about Curtis having any problems with
              Tardy Furniture.

       A.     I had heard about it.

¶215. This evidence cited by the State supports the contention that Tardy’s employees were

concerned about Flowers. But the feelings and perceptions of Tardy’s employees must be

distinguished from Flowers’s perception. The statements cited by the State do not establish

that Flowers had ill will toward Tardy’s employees. Further, Doyle Simpson’s testimony is

too vague to support a statement that Flowers “had beef” with the store. “Problems” could

easily refer to the firing itself or the damaged inventory. The State’s contention that Flowers

“had beef” with Tardy’s is unsupported by the facts. As this Court recognized in Flowers

II, this factually unsupported statement resulted in Flowers having an unfair trial.

       C.     Porky Collins’s Response to Photo Arrays

¶216. Next, Flowers claims that the prosecutor misrepresented Porky Collins’s response to

the first photo array – the array that contained a photograph of Doyle Simpson. Flowers

claims that this misrepresentation was particularly prejudicial because part of his defense was

based on the alternative theory that Doyle Simpson was the perpetrator. Collins saw two

African-American men arguing outside Tardy’s the morning of the murders. When Collins

testified, he stated that he did not remember if he identified Simpson as one of the men




                                             124
standing outside Tardy’s. The notes taken during the photo arrays state that Collins had the

following reaction to the array containing Simpson’s photo:

       #1 and #3 resembles, but hairline was further back
       #6 pointed to Simpson, said hairline like this, may have appeared a little
       darker.
       “But it looks like him.”
       “Face was also same shape, round like this.”
       “Unable to be positive.”

Investigator Wayne Miller testified that Collins did point out Simpson during the photo array:

       Q.     All right. So he did actually point out Mr. Simpson here as somebody
              who was – looks like the person he’d seen; is that a fair
              characterization?

       A.     Right.

¶217. The State presented the following closing argument related to Collins’s

identifications:

       When Porky found out that some people had been murdered in front of
       Tardy’s, he told James Taylor Williams. He said I saw something I think y’all
       ought to know about. He said I think I can identify that guy if I see him again.
       Now, here’s the interesting thing about Mr. Porky Collins. Porky didn’t know
       Curtis. Never claims to have ever seen him before. Didn’t know him. Didn’t
       know those other people, as far as them having seen him. Porky says I can
       identify him.

       I’m going to refer to this some more in a minute but I just want you to –
       you’ve seen these. We had them passed to y’all. Here are two line-ups. These
       line-ups were shown to Porky at the same setting. First was this one that has
       Doyle Simpson’s picture on it. Because later on when they did this line-up,
       they already knew that the gun came out of Doyle’s car. And so they gave this
       thing to Porky first and said is the guy that you saw in front of Tardy’s in this
       group.

       Now, if he was going to make a misidentification, ladies and gentlemen, that
       would have been the perfect time for him to pick one of these guys and say
       yeah, there he is right there. But you know what? Porky did not misidentify
       anybody. He said the guy ain’t there. They took another six photographs


                                             125
       and said look at this second set. He said that’s him right there. You heard Mr.
       Miller talk about Porky, said he was positive. He made a positive
       identification.

       Now, why is Porky’s i.d. – Porky doesn’t know him. Porky wasn’t able to say
       yeah, I know him. When he saw the photograph of Curtis Flowers, he pointed
       him out. So you have got two different kinds of identifications and they agree.
       You’ve got identification by all these witnesses who knew him, Porky, who
       didn’t know him, and they both agree. And he was offered – Porky was
       offered a prime chance to mess up. The perfect chance to make a mistake. He
       almost – it didn’t develop out that way it, but it was almost like a trick.

       You know, see if he is in there. No, he is not. Is he in the second group?
       Yeah. That’s him right there. So that’s a pretty strong identification, isn’t it?

¶218. While the State correctly characterizes Collins’s identification of Flowers in the

second photo array, the State deliberately fails to recognize Collins’s statement that

Simpson’s photograph in the first array “looks like” a man he saw outside of Tardy’s and that

he was “unable to be positive.” The State’s argument that Collins stated “the guy ain’t there”

is not an accurate representation of Collins’s identification. Because Flowers’s defense was

based, in part, on the argument that Doyle Simpson was a likely suspect for the murders, the

State’s misstatement regarding Collins’s identification of Simpson prejudiced Flowers.

¶219. As in Flowers II, the prosecution’s repeated argument of facts not in evidence in

today’s case prejudiced Flowers and denied him his right to a fair trial. Under this Court’s

heightened review of death penalty cases, these misstatements – standing alone – should be

enough to warrant reversal. See Fulgham v. State, 46 So. 3d 315, 322 (Miss. 2010) (“What

may be harmless error in a case with less at stake becomes reversible error when the penalty

is death.”). This Court’s prior admonishment of essentially the same statements in Flowers

II bolsters a finding of reversal. See U.S. v. Drummond, 481 F. 2d 62, 62 (2d Cir. 1973)



                                             126
(“Because of the repeated misbehavior of this prosecutor in this and prior cases, we feel

compelled to reverse the decision of the trial court on the sole ground of prosecutorial

misconduct.”).

II.    Jury Selection Process

¶220. Flowers claims that the State violated the Equal Protection Clause of the Fourteenth

Amendment when it struck five African-American jurors after utilizing disparate questioning

and citing pretextual reasons. Because a review of the record in today’s case reveals that a

Batson violation did occur, I dissent.

¶221. “It is well known that prejudices often exist against particular classes in the

community, which sway the judgment of jurors, and which, therefore, operate in some cases

to deny to persons of those classes the full protection which others enjoy.” Strauder v. West

Virginia, 100 U.S. 303, 309, 25 L. Ed. 664 (1880), abrogated on other grounds by Taylor

v. Louisiana, 419 U.S. 522, 95 S. Ct. 692, 42 L.Ed. 2d 690 (1975). Racial prejudice in the

prosecution’s jury selection results in “state-sponsored group stereotypes rooted in, and

reflective of, historical prejudice.” J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, 128, 114

S. Ct. 1419, 128 L. Ed. 2d 89 (1994). Thus, for years, courts have held that racial

discrimination by the State during the jury selection process violated the Equal Protection

Clause. Miller-El v. Dretke, 545 U.S. 231, 162 L. Ed. 2d 196, 125 S. Ct. 2317 (2005)

(quoting Georgia v. McCollum, 505 U.S. 42, 44, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992)).

¶222. In an effort to remedy the prejudices existing in jury selections, the United States

Supreme Court has, over the years, developed various standards for establishing purposeful

discrimination. In Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759 (1965),

                                            127
overruled by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), the

Court attempted to regulate purposeful discrimination through presuming the legitimacy of

prosecutors’ strikes except in the case of longstanding patterns of discrimination – when in

case after case no African Americans served on juries, then “giving even the widest leeway

to the operation of irrational but trial-related suspicions and antagonisms, it would appear

that the purposes of the peremptory challenge [were] being perverted.”

¶223. Swain’s approach did little to remedy the problem of purposeful discrimination in jury

selection. Thus, in Batson, the United States Supreme Court “held that a defendant could

make out a prima facie case of discriminatory jury selection by ‘the totality of the relevant

facts’ about a prosecutor’s conduct during the defendant’s own trial.” Miller-El, 545 U.S.

at 239 (quoting Batson, 476 U.S. at 94). The State must then come forward with race neutral

bases for the peremptory strikes. Batson, 476 U.S. at 97. “The trial court then has the duty

to determine if the defendant has established purposeful discrimination.” Id. at 98.

¶224. Batson, however, is not without flaws. Thus, in Miller-El, the United States Supreme

Court refocused on all of the relevant circumstances of the case, rather just the proffered

race-neutral bases provided by the State:

       Although the move from Swain to Batson left a defendant free to challenge the
       prosecution without having to cast Swain’s wide net, the net was not entirely
       consigned to history, for Batson’s individualized focus came with a weakness
       of its own owing to its very emphasis on the particular reasons a prosecutor
       might give. If any facially neutral reason sufficed to answer a Batson
       challenge, then Batson would not amount to much more than Swain. Some
       stated reasons are false, and although some false reasons are shown up within
       the four corners of a given case, sometimes a court may not be sure unless it
       looks beyond the case at hand. Hence Batson’s explanation that a defendant
       may rely on “all relevant circumstances” to raise an inference of purposeful
       discrimination.

                                            128
Miller-El, 545 U.S. at 239-40 (citing Batson, 476 U.S. at 96-97).

¶225. Thus, in finding that a Batson violation occurred in today’s case, I consider all of the

relevant circumstances in Flowers’s case.

        A.    History of Flowers’s Case

¶226. In Flowers III, 947 So. 2d at 935, this Court found as “strong a prima facie case of

racial discrimination as we have ever seen in the context of a Batson challenge.” In Flowers

III, the State exercised all twelve of its peremptory strikes on African-Americans and all

three of its strikes of alternate jurors on African-Americans. After reviewing the individual

strikes in the case, this Court found that the State engaged in purposeful discrimination

during jury selection. Id. at 939. Thus, the Court reversed and remanded for a new trial on

this basis. Id. The same prosecutor who this Court found to have engaged in purposeful

discrimination in Flowers III prosecuted the trial before this Court on appeal today. On its

own, this fact is not dispositive of a finding of racial discrimination. This history, however,

cannot be ignored and is part of the relevant circumstances that must be considered in this

case.

¶227. In Miller-El, 545 U.S. at 253, the United States Supreme Court considered the

“widely known evidence of the general policy of the Dallas County District Attorney’s

Office to exclude black venire members from juries at the time [the defendant’s] jury was

selected.” If the history of discrimination by a district attorney’s office is a permissible

consideration under Batson, surely the history of the same prosecutor in the retrial of the

same case is a legitimate consideration. To not consider this history is to rebuff Batson’s




                                             129
direction that “all relevant circumstances” must be considered. Batson, 476 U.S. at 96-97;

Miller-El, 545 U.S. at 239-40.

       B.     Disparate Treatment – The Numbers

¶228. Like the history of today’s case, a review of the statistics relating to the prosecutor’s

use of peremptory strikes is not, standing alone, dispositive of the Batson inquiry. These

numbers, however, reveal a clear pattern of disparate treatment between white and African-

American venire members. In today’s case, a special venire of 600 citizens was drawn. The

original venire consisted of forty-two percent African Americans. After the jury qualification

and initial for-cause challenges, the venire consisted of twenty-eight percent African

Americans. Ultimately, one African American served as a juror and one African American

served as an alternate juror. Despite the initial venire consisting of forty-two percent African

Americans, the jury that convicted and sentenced Flowers consisted of eight percent African

Americans.

¶229. An analysis of the number and type of questions asked by the prosecutor further

reveals a pattern of disparate treatment. During individual voir dire, the prosecutor asked

white jurors an average of approximately three questions.           African-American jurors,

however, were asked approximately ten questions each by the prosecutor.

¶230. Further, in what appears to be mere lip service to the voir dire process, when

questioning most white jurors during individual voir dire, the prosecutor essentially repeated

questions that the trial court had just asked. The trial court asked each juror standard death-

penalty-qualification questions. The prosecutor would then – in substance – ask the same




                                              130
questions and then hand the juror off to be questioned by the defense. The prosecutor asked

only nine percent of white jurors something beyond these duplicated questions.

¶231. In a stark contrast, the prosecution asked sixty-three percent of African Americans

questions outside of the standard death-penalty-qualification questions. As an example, fifty-

five percent of African-American jurors who had some kind of connection to the Flowers

family (through work, the community, or family) were asked questions by the prosecutor

about this connection. Although five white jurors had similar connections to the Flowers

family (through work and the community), the prosecutor failed to ask any questions about

these connections.

¶232. As noted in Miller-El v. Cockrell, 537 U.S. 322, 123 S. Ct. 1029, 154 L. Ed. 2d 931

(2003), statistical analysis can raise a question as to whether race influenced the jury

selection process. The numbers described above are too disparate to be explained away or

categorized as mere happenstance.

       C.     Individual Jurors

¶233. The pattern of disparate treatment is further revealed when comparing the treatment

of individual jurors. See Flowers III, 947 So. 2d at 921 (citing Manning, 765 So. 2d at 519)

(A side-by-side comparison of jurors is helpful to determine whether purposeful

discrimination existed.).

               1.    Carolyn Wright

¶234. The State exercised one of its peremptory strikes on Carolyn Wright for the following

reasons: (1) she knew several of the defense witnesses; (2) she was sued by Tardy’s for an

overdue account; and (3) she used to work with Flowers’s father, Archie Flowers, Sr. During

                                             131
the Batson hearing, Flowers rebutted the State’s bases for its peremptory strike first by

noting that Pamela Chesteen, Harold Waller, and Bobby Lester all had a significant number

of acquaintances involved in the case. Flowers responded to the fact that Tardy’s had sued

Wright by noting that the State had not questioned white jurors regarding their accounts at

Tardy’s. Finally, Flowers rebutted the basis relating to Wright’s working relationship with

Flowers’s family by comparing Wright to Chesteen, who was a bank teller at a bank where

the members of the Flowers family were customers.

¶235. Finding that the State’s reasons for striking Wright were race-neutral, the trial court

specifically noted that all jurors were asked by the court during group voir dire if they had

accounts with Tardy’s and whether they had been sued by Tardy’s. The court found that this

basis was race neutral because none of the white venire members reported that they had been

sued by Tardy’s. The trial court found that Wright’s working relationship with Archie

Flowers was distinguishable from the professional relationship Chesteen had with the

Flowers family. Specifically, the court stated that the Winona Wal-Mart was a “relatively

small” Wal-Mart and seemed to imply that Wright had a close relationship with Archie

Flowers because of the small size of the store. The trial court also stated that no white jurors

had reported working at Wal-Mart with Archie Flowers. The trial court summed up its

finding by stating:

       If the only reason the State offered was that she knows some of these defense
       witnesses, then there might be something there. But the fact is knowing these
       defense witnesses that you’re intending to call, plus the fact that Tardy’s had
       to sue her, plus the fact that she worked with Archie, in my mind, creates race-
       neutral reasons for striking her.

Each of the State’s reasons for the peremptory strike is analyzed below.


                                              132
                Wright’s Relationships with Persons Involved in the Case

¶236. In sum, Carolyn Wright had some type of connection to thirty-four people involved

in Flowers’s case. Flowers compares Wright to Chesteen, who knew thirty-one people

involved in Flowers’s case; Waller, who knew eighteen people involved in the case; and

Lester, who knew twenty-seven people involved in the case.

¶237. Similar to Wright, Chesteen, Waller, and Lester all had a significant number of

relationships with witnesses and persons involved with the case. One indicium of pretext this

Court considers is “the presence of unchallenged jurors of the opposite race who share the

characteristic given as the basis for the challenge.” Flowers III, 947 So. 2d at 917 (quoting

Manning, 765 So. 2d at 519). As such, this basis is suspect.

¶238. Flowers also claims that the State mischarachtersized Wright’s relationships with

Flowers’s family. Specifically, Flowers points out that the State claimed that Wright knew

Flowers’s sister, Sherita Baskin. Wright, however, never indicated that she knew Baskin.

The State does not address this in their brief. This one statement could have simply been a

slip of the tongue. However, “lack of support in the record for the reason given for a

peremptory strike has been identified as an indicator of pretext.” Flowers III, 947 So. 2d at

924 (citing Manning, 765 So. 2d at 519).

                             Wright’s Litigation with Tardy’s

¶239. Flowers’s claims that the State mischaracterized Wright’s litigation with Tardy’s by

claiming that her wages had been garnished as a result of the litigation. There is nothing in

the record supporting the contention that Wright’s wages were garnished.           The only

statements Wright made regarding the actual litigation were that she was sued, but that “it

                                            133
was paid off.” Wright also stated that her involvement with the litigation would not affect

her if she were selected as a juror. During the Batson hearing, the State produced a copy of

the judgment in Wright’s case, and Flowers’s counsel asked if a garnishment order was

attached. The trial court did not directly respond to this question, but instead stated that “it’s

an abstract of justice court where she was sued.” Because there is no evidence that Wright’s

wages were garnished, the State did mischaracterize its basis for the peremptory strike.

Further, unlike the misstatement discussed above relating to Wright’s acquaintance with

Sherita Baskin, the statement that Wright had her wages garnished seems to go directly to

reasoning for the State’s strike – that Wright would have some sort of ill will toward Tardy’s

as a result of her wages being garnished. It is easy to imagine that litigation which ends in

friendly terms – for example, a settlement – might result in the parties having different

feelings toward one another as opposed to a suit which results in garnished wages. As such,

the State’s unsupported characterization of the lawsuit is problematic. See Flowers III, 947

So. 2d at 924 (citing Manning, 765 So. 2d at 519).

                  Wright’s Working Relationship with Archie Flowers, Sr.

¶240. Wright worked with Flowers’s father, Archie Flowers, Sr., at Wal-Mart; and on its

face, this basis seems to be race-neutral. See Manning, 735 So. 2d at 340 (This Court “has

condoned a peremptory challenge against a juror who was acquainted with the defendant’s

family.”). However, a review of the record reveals that this basis may have been pretextual.

Although the State cited Wright’s working relationship with Archie Flowers as a basis for

its strike, the State made no effort during voir dire to question Wright about the working

relationship beyond a general question as to whether the relationship would affect her ability

                                              134
to serve as a juror. One could easily assume that the two worked in different departments

and during different shifts. Further, Wright stated during group voir dire that she was

unaware of whether Archie Flowers still worked at Wal-Mart or if he had retired. This

supports an inference that Wright and Flowers did not have a close working relationship.

The lack of questioning related to this basis is suspect. See Miller-El, 125 S. Ct. at 2328

(failing to conduct meaningful voir dire on subject with which State is allegedly concerned

suggests that “explanation is a sham and a pretext for discrimination”).

¶241. The questionable nature of the State’s reason is compounded by its failure to strike

Pamela Chesteen. Chesteen worked at a local bank in Winona and stated that she knew

Archie Flowers, Sr., Lola Flowers, and Flowers’s sisters from her work at the bank.

Although the coworker relationship and bank-employee/customer relationship are not exactly

comparable, the concern relating to the influence such relationships would have on a juror

are the same – a concern that the coworker or employee would be influenced toward a family

member of another coworker or a customer. The disparate treatment of Wright and Chesteen,

along with the failure to conduct meaningful voir dire regarding Wright’s working

relationship with Archie, Sr., suggests this basis for the State’s peremptory strike was pretext.

See Flowers III, 947 So. 2d at 924 (“Failure to voir dire as to the characteristic cited for the

strike is also an indicator of pretext.”).

¶242. When the State’s bases and the record in today’s case are viewed in toto, there is

evidence of disparate treatment and pretext. See id. at 937 (“Though a reason proffered by

the State is facially neutral, trial judges should not blindly accept any and every reason put




                                              135
forth by the State, especially where, as here, the State continues to exercise challenge after

challenge only upon members of a particular race.”).

                     2.     Dianne Copper

¶243. The State provided the following reasons for striking Dianne Copper: (1) she worked

with Archie Flowers and Cora Flowers, Flowers’s sister; (2) she knew several members of

the Flowers family; (3) she stated that she “leaned towards” Flowers’s side of the case; and

(4) she knew several defense witnesses. For the most part, the State focused on Copper’s

statement that she would lean toward Flowers as a result of her relationships with the Flowers

family.

¶244. Flowers rebutted the State’s reasons by again noting that several white jurors with

multiple connections to persons involved in the case had not been challenged by the State.

Flowers also argued that the State did not attempt to rehabilitate Copper when she stated that

she would lean toward Flowers’s side of the case. The trial court accepted the State’s

reasons as race neutral, finding that Copper’s relationships with persons connected to the

case were distinguishable from those of the white jurors not challenged by the State. The

trial court also found that Copper was distinguishable from other jurors because she stated

that she would tend to favor Flowers’s side of the case and had worked with Flowers’s father

and sister.

               Copper’s Relationships with Persons Connected to the Case

¶245. Similar to his argument relating to Carolyn Wright, Flowers claims that the State’s

strike of Copper was pretextual because white jurors who knew several defense witnesses

were not struck. Further, Flowers claims that the State mischaracterized Copper’s statements


                                             136
relating to whether she “leaned towards” Flowers in the case as a result of her relationship

with the Flowers’s family.

¶246. Copper knew thirty-one people involved in the case. Copper also testified about her

relationship with the Flowers family and witnesses during voir dire:

       Q.     Now, I noticed that you told us the other day that you lived on Harper
              Street at one time?

       A.     Yes, sir.

       Q.     That y’all [Copper and the Flowers family] lived on the same street.

       A.     Not on the same street. Because they – they live on Cade Street, and
              I lived on Harper Street.

       Q.     Don’t they live on the corner of Cade and Harper?

       A.     Well, I guess. I’m not – I – you know, my street is Harper and then its
              – as it go around – that’s where I assume it was Cade Street. I’m not
              positive.

       Q.     Okay. And you’ve stated that you worked with the defendant’s sister
              at Shoe World?

       A.     That’s correct.

       Q.     And which sister was that?

       A.     Cora.

       Q.     How long did y’all work together?

       A.     Probably a year or two.

       Q.     Okay. You worked with the defendant’s father?

       A.     Yes, sir.

       Q.     How long did you work with him?



                                            137
A.   Estimating, probably – possibly about the same, one to two years.

Q.   Okay. And I want to make sure my notes are right, because we can all
     write down things wrong. You stated that you knew his father Archie
     Flowers.

A.   Yes, sir.

Q.   You know his brother, Archie, Jr.?

A.   Yes, sir. I know his brother.

Q.   You know his mother Lola?

A.   Yes, sir, I do.

Q.   You know witnesses in this case, Hazel Jones?

A.   Yes, sir, I know her.

Q.   You know Kittery Jones, a witness in this case?

A.   Yes, sir, I know him.

Q.   And you know Danny Joe Lott, a witness in this case?

A.   Yes, sir.

Q.   And I think it was yesterday and my notes show that you said that the
     fact that you know all of these people could affect you and you think it
     could make you lean toward him because of your connection to all of
     these people. Is that correct?

A.   It – it’s possible.

Q.   Okay. That would be something that would be entering into your mind
     if you were on the jury, wouldn’t it?

A.   Yes, sir.

Q.   And it would make it to where you couldn’t come in here and, just with
     an open mind, decide the case, would it?



                                     138
       A.     Correct.

¶247. Flowers’s counsel attempted to rehabilitate Copper:

       Q.     . . . What I’m trying to find out is just as you could put aside all the
              information you heard before about this case, could you not also put
              aside the fact – if you got picked as a juror, put aside the fact that you
              have met Mr. Flowers, that you know some other people in these cases
              and be fair to the Tardys, the Stewarts, the Goldens, and Rigbys, and
              make whatever decision or vote that you’re going to make based on the
              evidence and the evidence only. Could you do that?

       A.     I feel like I could. But, you know, it –

       Q.     Is what you’re saying –

       A.     Of course, it would make me, you know, feel uncomfortable. But if I
              had to do it, you know, I got to do what I got to do.

       Q.     Okay. So you’re saying that – thank you. You’re saying that you’ll be
              uncomfortable. You’d prefer not to – I get the impression you’re
              saying that you’d rather not be a juror. But if you got picked to be one,
              you would take the responsibility seriously, and you would follow the
              law and the rules that the Court give[s] you, and you would put aside
              anything that you are required to put aside and make your evidence and
              make your vote based on just the evidence you hear in the courtroom.
              Is that fair to say?

       A.     Yes, sir. That’s correct.

¶248. As mentioned above, one indicium of pretext is “the presence of unchallenged jurors

of the opposite race who share the characteristic given as the basis for the challenge.” Id. at

917 (quoting Manning, 765 So. 2d at 519). As such, the State’s basis that Copper knew

several witnesses in the case is suspect. While the other bases the State provided appear to

be race neutral – namely, Copper’s relationship with Flowers’s family and the possibility that

if could cause her to “lean toward” Flowers, the unchallenged jurors with a shared

characteristic must still be considered.

                                             139
                     3.     Flancie Jones

¶249. The State provided the following reasons for striking Jones: (1) she is related to

Flowers; (2) she was late for jury selection on two separate occasions; and (3) she provided

inconsistent statements on her view of the death penalty by lying on her juror questionnaire

in an attempt to avoid serving as a juror. After reviewing the record, the State’s bases for

striking Jones appear to be race neutral.

                     4.     Tashia Cunningham

¶250. The State cited Cunningham’s working relationship with Flowers’s sister and her

wavering statements on the death penalty as bases for its peremptory strike. During the

Batson hearing, Flowers’s counsel rebutted the State’s reasons by pointing out that

Cunningham stated that she could set aside her relationship with Flowers’s sister and be a

neutral juror. Defense counsel also compared Cunningham to Chesteen, the juror who knew

several of Flowers’s family members from working at a local bank. Finally, Flowers’s

counsel compared Cunningham’s alleged wavering views on the death penalty to views of

white jurors. The trial court found that both of the State’s reasons were race-neutral:

       And Ms. Cunningham’s all-over-the-map response to the death penalty, plus
       her situation about working so closely with Mr. Flowers’s sister, in my mind,
       the State has shown race-neutral reasons for that strike.

                Cunningham’s Working Relationship with Flowers’s Sister

¶251. During voir dire, Cunningham stated that she and Sherita Baskin, Flowers’s sister, did

not have a close relationship; Cunningham described it as a “working relationship.”

According to Cunningham, she and Baskin would “sometime” see each other, but would not

see each other at work every day. Cunningham also stated that she worked at the end of the

                                            140
assembly line, and Baskin worked at the front of the line. The two women worked the same

shift for two or three years.

¶252. Apparently, the State called Cunningham’s employer, ADP, to confirm her testimony

relating to her working relationship with Baskin. During individual voir dire, the State asked

Cunningham further questions about the relationship:

       Q:     And you work with the Defendant’s sister, Sherita Baskin?

       A:     Yes.

       Q:     Now, the other day, I think you said that you do not work close to her?

       A:     No, I do not.

       Q:     Would you think about that for a minute?

       A:     I do not.

       Q:     Are you sure that you do not work side by side with her?

       A:     No, I do not.

       Q:     And you’re saying that under oath?

       A:     Yes, sir.

¶253. In response to Cunningham’s statements, the State called an ADP quality control

clerk, Crystal Carpenter, to give testimony. Carpenter testified that Cunningham and Baskin

both worked on the “raw 2 line” and that the women worked side-by-side – “nine or ten

inches” apart from one another. Twenty-five to thirty-five persons worked on this particular

assembly line. Carpenter also testified that the women would occasionally not work side-by-

side if another employee was absent from work and a spot in another location needed to be

filled, but that the women typically worked next to one another. Carpenter observed the


                                             141
women working every day and based her testimony on her personal observations. Flowers’s

counsel asked Carpenter if there was documentation supporting the location of Cunningham

and Basking on the assembly line, and Carpenter stated that she could provide documentation

supporting her testimony. Apparently, Carpenter did not provide the documentation.

¶254. At first glance, the conflicting testimony of Cunningham and Carpenter tends to

provide a race-neutral basis for the State’s challenge. See Manning, 735 So. 2d at 340.

When considering the voir dire process as a whole, however, the State’s investigation of

Cunningham is suspect. As discussed above, the State accepted Pamela Chesteen as a juror

even though she stated that several members of the Flowers family were customers at the

bank where she worked. There is no evidence in the record that the State further investigated

the relationship between Chesteen and the Flowers family, and the State did not voir dire

Chesteen on this subject. The absence of voir dire and investigation for Chesteen compared

to the thorough investigation for Cunningham is problematic and tends to evidence disparate

treatment. See Miller-El, 125 S. Ct. at 2328 (failing to conduct meaningful voir dire on

subject which State is allegedly concerned suggests that “explanation is a sham and a pretext

for discrimination”); see also Flowers III, 947 So. 2d at 924 (“Failure to voir dire as to the

characteristic cited for the strike is also an indicator of pretext.”).

                   Cunningham’s Wavering Views on the Death Penalty

¶255. The State cited Cunningham’s wavering views on the death penalty as another basis

for its challenge. On her juror questionnaire, although she stated that she had “no opinion”

on the death penalty, Cunningham stated that she would not consider the death penalty under

any circumstances. During voir dire by the trial court, Cunningham initially stated that she

                                               142
could not consider the death penalty as a punishment, but she then stated that she “might”

consider it:

       Q:      . . . [w]hat’s your view on even considering the death penalty?

       A:      I would not.

       ...

       Q:      Are – are you saying you would not consider it?

       A:      No, sir.

       Q:      Even if the law allowed it and the facts justified it, you just could not
               even consider it?

       A:      No, sir.

       ...

       Q:      So – but again, just tell me again what your feelings are on the death
               penalty.

       A:      I don’t believe in the death penalty.

       Q:      And would there be a possible – could you consider it?

       A:      I don’t think so.

       Q:      You don’t think so?

       A:      I don’t think so.

       Q:      But there’s – in your own mind, you might could – are you saying you
               could possibly?

       A:      I don’t think so.

       Q:      See, I’m not asking you to make a – you know, you haven’t heard
               anything. And all we want to know is whether you could consider that
               as a possibility – that as a sentencing possibility, because you and your



                                             143
               fellow jurors will decide the sentence, but I just want to know if you
               could even consider that as a possible sentence?

       A:      I might. I might. I don’t know. I might.

       Q:      So you might be able to consider that?

       A:      (Nodding head).28

Then during voir dire by the State, Cunningham returned to her initial position of not being

able to consider the death penalty:

       Q:      All right. As far as the death penalty – and I want to make sure I
               understand what you’re saying – if the law authorized the death penalty
               in this case and you found that the facts of the case that came from the
               stand justified it, could you, in fact, vote for the death penalty?

       A:      I don’t think so.
       ...

       Q:      Could you consider the death penalty yourself if the facts justified it
               and the law allowed it?

       A:      I don’t think so.

       Q:      You don’t think so.

       A:      That I could.

When questioned by defense counsel, Cunningham then stated that she could consider both

punishments:

       Q:      . . . And what you’re required to do is just consider both, then decide
               which way you want to vote. Do you understand now?

       A:      Yes, sir.




       28
         The record does not indicate whether Cunningham was nodding in the affirmative
or the negative.

                                             144
       Q:     And that’s your decision. And with that being the case, can you
              consider both options, then vote your conscience?

       A:     Yes.

¶256. This Court has recognized that a juror’s views on the death penalty may provide a race

neutral basis for a peremptory challenge. See Batiste v. State, 121 So. 3d 808, 848 (Miss.

2013); Flowers III, 947 So. 2d at 920-21. In Flowers III, this Court found that the striking

of an African-American who had “virtually indistinguishable” views on the death penalty as

compared to white jurors who were not struck raised an inference of discrimination,

although, standing alone, it did not warrant the finding of a Batson violation. Flowers III,

947 So. 2d at 921. In today’s case, there are no white jurors who survived for-cause

challenges whose views on the death penalty were comparable to Cunningham’s. As such,

it cannot be said that this basis was pretext.

¶257. This race-neutral basis, however, does not erase the prosecutor’s highly suspect

investigation of Cunningham’s working relationship with Flowers’s sister. Batson, 476 U.S.

at 96-97; Miller-El, 545 U.S. at 239-40. No evidence in the record provides a basis for the

in-depth investigation. Likewise, nothing in the record evidences that a similar investigation

was performed for all other jurors. With this suspect record, the prosecution’s unusual

investigation of Cunningham must be seen for what it is worth – a questionable search for

a race neutral basis.

                        5.   Edith Burnside

¶258. The State provided the following reasons in support of its peremptory strike of

Burnside: (1) she knew Flowers and members of his family; (2) she was sued by Tardy’s



                                                 145
Furniture; and (3) she provided inconsistent statements regarding her views on the death

penalty.

                            Burnside’s Litigation with Tardy’s

¶259. During voir dire, the trial court asked the entire venire if anyone had been sued by

Tardy’s, and Burnside responded that she been sued by the store. Later, Burnside explained

that she was able to pay off the amount that she owed the store and that the litigation

stemmed from a misunderstanding about her account after the murders occurred. During the

Batson hearing, the State represented that Burnside had a garnishment issued against her.

The prosecutor stated: “She also was sued by Tardy Furniture, and a garnishment was issued

against her. She tried to deny that and said that she just settled with them when she came

back but she was, in fact, sued by them.” The State’s description of the litigation and

Burnside’s testimony regarding the same is not completely supported by the record. In

response to the trial court’s first inquiry during group voir dire, Burnside stated: “I had an

account there, but I was not sued by Ms. Bertha. It was later on when it was took over by

Mr. Frank and Roxanne.” Burnside then confirmed that she was sued by Tardy’s.

¶260. Then, during individual voir dire, Burnside further explained the suit:

       A:     . . . . Let me explain that. I worked for Ms. Bertha. She hired me to
              work for Mr. Tardy before she was married to him the first time. I was
              caring for Ms. Lena Tardy. That’s how I met Ms. Bertha. So when me
              and my husband was going through a divorce, she let me have some
              furniture. And she said she was going to note it on the book.
              Sometimes, I cleaned up for her and I paid for it and we just have, like,
              a little understanding about it. Okay. When she got killed, it was still
              on the book. And then her son-in-law – when I came back from
              Nevada, then that’s when I had to pay for it. I don’t remember when
              it was.



                                             146
       Q:     So there was a dispute between you and her son-in-law?

       A:     No. It wasn’t a dispute. He just –

       Q:     Well, did you agree that you owed it?

       A:     Yes. We had no falling out about it. I had the funds, and I agreed I
              owed it. When I went to Nevada, I guess it was just a space where I
              owed him. When I came back here and went to work, I paid him for it.
              We never had a misunderstanding about it.

       Q:     If it wasn’t no misunderstanding, why did it have to go to court?

       A:     I’m not quite sure about that. I remember them bringing the papers
              after I come back here to go to work. Maybe he found out I was back
              or what. But then I went down to the store – that’s when they had
              moved the store over to where the other building was – and I talked to
              him about when I paid it. We never had a falling out about it.

       Q:     But you did have to be sued over it?

       A:     Yes. I can’t remember the –

       Q:     And there was a judgment against you?

       A:     Yes. But it was no falling-out about it.

       Q:     Is there anything about that, that would cause you any difficulty in that
              case?

       A:     No. Because he is a distributor for something for one of our salesman
              at Super Value where I work, and he come in every Thursday, and the
              lady make an order so I see him like on a weekly basis. But, you know,
              sometimes, I speak if it’s – because she see him like over in her office,
              so no, it’s nothing about that would make me have no –.

¶261. Similar to the State’s characterization of Wright’s litigation with Tardy’s discussed

above, the State’s representation that Burnside’s wages were garnished and that Burnside

“denied” this is unsupported by the record in today’s case. This incorrect description of the

litigation between Burnside and Tardy’s is suspect. See Flowers III, 947 So. 2d at 924


                                            147
(citing Manning, 765 So. 2d at 519) (“Lack of support in the record for the reason given for

a peremptory strike has been identified as an indicator of pretext.”).

                  Burnside’s Relationships with Flowers and His Family

¶262. The State also cited Burnside’s relationships with Flowers and his family as a basis

for its challenge. Burnside stated during voir dire that she used to live close to the Flowers

family. Flowers and his sister, Prisilla, used to visit Burnside’s home. Further, Flowers was

friends with Burnside’s sons and used to play football with them. Burnside stated that these

relationships would not affect her ability to serve as a juror.

¶263. No white venire members had comparable – or even close to comparable –

relationships with Flowers and his family.         This Court has recognized that a juror’s

relationships with the defendant’s family may provide a race-neutral reason for a peremptory

challenge. See Manning, 735 So. 2d at 340. And although Burnside stated that her

connections to the Flowers family would not affect her when serving as a juror, this basis –

standing alone – seems to not be pretext. As mentioned above, however, this race neutral

basis does not negate the questionable characterization of Burnside’s litigation with Tardy’s.

Batson, 476 U.S. at 96-97; Miller-El, 545 U.S. at 239-40.

   Burnside’s Statements Regarding the Death Penalty and Her Ability to Judge Others

¶264. The State’s final reasons for striking Burnside were her statements relating to whether

she could judge another person and impose the death penalty. Burnside testified as follows

during individual voir dire:

       Q:     . . . . And so I want to know if the facts justified it and the law allowed
              it, could you consider the death penalty as a sentencing possibility?



                                             148
       A:      That I don’t think I could do. I don’t know if I could do that. . . . I
               don’t – I don’t know if I could consider it, sending anybody to death.
               I don’t know if I could do that.

       Q:      And can you explain further your views on that?

       A:      I’ve just never been put in that predicament. I’ve always just don’t
               know if I could do that. It’s just the best way I can explain it. I just
               don’t think I could do that.

       Q:      Again, let me explain. You’re not committing to do it or not to do it.
               You’re just – we just need to know if that’s something that would be in
               your mind where you could think about it and you could consider the
               possibility of it.

       A:      I could think about it and consider it. That’s all I could say.

       Q:      And would you consider the imposition of the death penalty, if you
               were on the jury and it got to the second phase?

       A:      If I was on there, yeah, I guess I’d have to.

       Q:      So if the facts justified it and the law allowed it, you would consider it?

       A:      Yes.

       Q:      Also, if he did not receive that death sentence – if he was convicted and
               the jury did not impose the death sentence, . . . [he] would receive the
               sentence of life without parole. So is that a sentencing option that you
               could consider, also?

       A:      Yes, I could consider that.

       Q:      And so you would consider and have an open mind as to both
               sentencing options then; is that correct?

       A:      Yes, sir.

Although Burnside eventually stated that she would consider both sentencing options, she

later stated in voir dire that her reservations about judging another person would affect her

ability to serve as a juror:


                                              149
      Q:     When I was asking the questions the other day about jurors that could
             judge other people, you stated at that time that you could not judge
             anyone. Why did you state that?

      A:     Well, because I – you know, I prefer not to judge anyone. But then
             when they come back and say could I be fair. My thing is I prefer not
             to judge anyone. But no, I will be fair.

      Q:     All right. Who will you be fair to?

      A:     I will be fair to whoever evidence is presented. I will be fair. Because
             I would want somebody to be fair to me or my children or my family.
             That the only way I can explain it.
      ...

      Q:     So you have changed your mind, and you say now that you could judge
             someone; is that correct?

      A:     Well, basically, I haven’t changed my mind. I just prefer not to be in
             a predicament where I have to judge somebody.

      Q:     So you still have a problem with judging someone?

      A:     I still have a problem with that.

      Q:     Would that problem be such that you would think about it if you were
             picked on a jury?

      A:     Well, I’d have to say yes.

      Q:     It would? So that might affect your judgment in the case; is that right?

      A:     It could, possibly, yes, sir.

Flowers’s counsel then rehabilitated Burnside:

      Q:     Ms. Burnside, if you got picked on the jury, you would be fair to both
             sides, wouldn’t you?

      A:     Yes, sir.

      Q:     And despite the fact that you don’t like to judge, if you got picked you
             would, in fact, judge and be fair to both sides; is that correct?


                                             150
       A:      Yes, sir, that is correct.

¶265. While a juror’s views on the death penalty and hesitation about serving as a juror are

race neutral reasons for peremptory challenges, the State rehabilitated Burnside and she

ultimately stated that she could consider either punishment and could be fair to either side.

See Batiste, 121 So. 3d at 848; Hughes, 90 So. 3d at 626; Flowers III, 947 So. 2d at 920-21.

As such, this basis is somewhat suspect.

       D.      Jury Selection Conclusion

¶266. While the Court has focused on the interests of Flowers in having a jury not tainted

by racial bias, it has ignored the right of prospective jurors not to be subjected to racial bias.

Beyond question, the right to a jury selection process free from the taint of racial

discrimination belongs both to the parties and to the prospective jurors. See Powers v. Ohio,

499 U.S. 400, 416, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (Courts are “under an

affirmative duty to enforce the . . . policies embodied in [the] prohibition” on the

discrimination in the selection of jurors.). When the trial court and this Court, in robotic

fashion, merely say that the prosecution gave facially race neutral reasons, which were not

rebutted by the defense, both completely disregard the constitutional right of prospective

jurors to be free from a racially discriminatory selection process.

¶267. No attorneys are present in the courtroom to protect the constitutional rights of

perspective jurors. Thus, of necessity, that responsibility must be undertaken by the trial

courts. The honest exercise of that responsibility demands that the trial court look beyond the

mere recitation of the words “race neutral.” In this case, the trial court completely ignored

and failed in that responsibility.

                                              151
III.   Conclusion

¶268. As noted previously, this case has been twice reversed by this Court for some of the

same issues presented to it today. In the retrial of a case under these circumstances, where

the same issues are confronted, the trial court is obligated to look beyond the surface. The

trial court failed in that obligation.

¶269. Because of that failure, I cannot conclude that Flowers received a fair trial, nor can

I conclude that prospective jurors were not subjected to impermissible discrimination. For

these reasons, I would reverse and remand for a new trial.

       DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.




                                            152
                               APPENDIX

            DEATH CASES AFFIRMED BY THIS COURT

Caleb Corrothers v. State, 2014 WL 2894310 (June 26, 2014).

Jason Lee Keller v. State, 138 So. 3d 817 (Miss. 2014).

Leslie Galloway III v. State, 122 So. 3d 614 (Miss. 2013).

Bobby Batiste v. State, 121 So 3d 808 (Miss. 2013).

Roger Lee Gillett v. State, 56 So. 3d 469 (Miss. 2010).

Moffett v. State, 49 So. 3d 1073 (Miss. 2010).

Pitchford v. State, 45 So. 3d 216 (Miss. 2010).

Goff v. State, 14 So. 3d 625 (Miss. 2009).

Wilson v. State, 21 So. 3d 572 (Miss. 2009).

Chamberlin v. State, 989 So. 2d 320 (Miss. 2008).

Loden v. State, 971 So. 2d 548 (Miss. 2007).

King v. State, 960 So. 2d 413 (Miss. 2007).

Bennett v. State, 933 So. 2d 930 (Miss. 2006).

Havard v. State, 928 So. 2d 771 (Miss. 2006).

Spicer v. State, 921 So. 2d 292 (Miss. 2006).

Hodges v. State, 912 So. 2d 730 (Miss. 2005).

Walker v. State, 913 So. 2d 198 (Miss. 2005).

Le v. State, 913 So. 2d 913 (Miss. 2005).

Brown v. State, 890 So. 2d 901 (Miss. 2004).

Powers v. State, 883 So. 2d 20 (Miss. 2004)

                                     -i-
Branch v. State, 882 So. 2d 36 (Miss. 2004).

Scott v. State, 878 So. 2d 933 (Miss. 2004).

Lynch v. State, 877 So. 2d 1254 (Miss. 2004).

Dycus v. State, 875 So. 2d 140 (Miss. 2004).

Byrom v. State, 863 So. 2d 836 (Miss. 2003).

Howell v. State, 860 So. 2d 704 (Miss. 2003).

Howard v. State, 853 So. 2d 781 (Miss. 2003).

Walker v. State, 815 So. 2d 1209 (Miss. 2002). *following remand.

Bishop v. State, 812 So. 2d 934 (Miss. 2002).

Stevens v. State, 806 So. 2d 1031 (Miss. 2002).

Grayson v. State, 806 So. 2d 241 (Miss. 2002).

Knox v. State, 805 So. 2d 527 (Miss. 2002).

Simmons v. State, 805 So. 2d 452 (Miss. 2002).

Berry v. State, 802 So. 2d 1033 (Miss. 2001).

Snow v. State, 800 So. 2d 472 (Miss. 2001).

Mitchell v. State, 792 So. 2d 192 (Miss. 2001).

Puckett v. State, 788 So. 2d 752 (Miss. 2001). * following remand.

Goodin v. State, 787 So. 2d 639 (Miss. 2001).

Jordan v. State, 786 So. 2d 987 (Miss. 2001).

Manning v. State, 765 So. 2d 516 (Miss. 2000). *following remand.

Eskridge v. State, 765 So. 2d 508 (Miss. 2000).

McGilberry v. State, 741 So. 2d 894 (Miss. 1999).

                                    -ii-
Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing.

Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing.

Hughes v. State, 735 So. 2d 238 (Miss. 1999).

Turner v. State, 732 So. 2d 937 (Miss. 1999).

Smith v. State, 729 So. 2d 1191 (Miss. 1998).

Burns v. State, 729 So. 2d 203 (Miss. 1998).

Jordan v. State, 728 So. 2d 1088 (Miss. 1998).

Gray v. State, 728 So. 2d 36 (Miss. 1998).

Manning v. State, 726 So. 2d 1152 (Miss. 1998).

Woodward v. State, 726 So. 2d 524 (Miss. 1997).

Bell v. State, 725 So. 2d 836 (Miss. 1998).

Evans v. State, 725 So. 2d 613 (Miss. 1997).

Brewer v. State, 725 So. 2d 106 (Miss. 1998).

Crawford v. State, 716 So. 2d 1028 (Miss. 1998).

Doss v. State, 709 So. 2d 369 (Miss. 1996).

Underwood v. State, 708 So. 2d 18 (Miss. 1998).

Holland v. State, 705 So. 2d 307 (Miss. 1997).

Wells v. State, 698 So. 2d 497 (Miss. 1997).

Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).

Wiley v. State, 691 So. 2d 959 (Miss. 1997).

Brown v. State, 690 So. 2d 276 (Miss. 1996).

Simon v. State, 688 So. 2d 791 (Miss.1997).

                                    -iii-
       Jackson v. State, 684 So. 2d 1213 (Miss. 1996).

       Williams v. State, 684 So. 2d 1179 (Miss. 1996).

       Davis v. State, 684 So. 2d 643 (Miss. 1996).

       Taylor v. State, 682 So. 2d. 359 (Miss. 1996).

       Brown v. State, 682 So. 2d 340 (Miss. 1996).

       Blue v. State, 674 So. 2d 1184 (Miss. 1996).

       Holly v. State, 671 So. 2d 32 (Miss. 1996).

       Walker v. State, 671 So. 2d 581 (Miss. 1995).

       Russell v. State, 670 So. 2d 816 (Miss. 1995).

       Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).

       Davis v. State, 660 So. 2d 1228 (Miss. 1995).

       Carr v. State, 655 So. 2d 824 (Miss. 1995).

       Mack v. State, 650 So. 2d 1289 (Miss. 1994).

       Chase v. State, 645 So. 2d 829 (Miss. 1994).

       Foster v. State, 639 So. 2d 1263 (Miss. 1994).

       Conner v. State, 632 So. 2d 1239 (Miss. 1993).

       Hansen v. State, 592 So. 2d 114 (Miss. 1991).

       *Shell v. State, 554 So. 2d 887 (Miss. 1989); Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding; Shell v. State, 595 So. 2d 1323 (Miss. 1992) remanding
for new sentencing hearing.

       Davis v. State, 551 So. 2d 165 (Miss. 1989).

       Minnick v. State, 551 So. 2d 77 (Miss. 1989).




                                            -iv-
      *Pinkney v. State, 538 So. 2d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S.
1075 (1990) vacating and remanding; Pinkney v. State, 602 So. 2d 1177 (Miss. 1992)
remanding for new sentencing hearing.

      *Clemons v. State, 535 So. 2d 1354 (Miss. 1988); Clemons v. Mississippi, 494 U.S.
738 (1990) vacating and remanding; Clemons v. State, 593 So. 2d 1004 (Miss. 1992)
remanding for new sentencing hearing.

      Woodward v. State, 533 So. 2d 418 (Miss. 1988).

      Nixon v. State, 533 So. 2d 1078 (Miss. 1987).

      Cole v. State, 525 So. 2d 365 (Miss. 1987).

      Lockett v. State, 517 So. 2d 1346 (Miss. 1987).

      Lockett v. State, 517 So. 2d 1317 (Miss. 1987).

      Faraga v. State, 514 So. 2d 295 (Miss. 1987).

       *Jones v. State, 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi, 487 U.S. 1230
(1988) vacating and remanding; Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for
new sentencing hearing.

      Wiley v. State, 484 So. 2d 339 (Miss. 1986).

      Johnson v. State, 477 So. 2d 196 (Miss. 1985).

      Gray v. State, 472 So. 2d 409 (Miss. 1985).

      Cabello v. State, 471 So. 2d 332 (Miss. 1985).

      Jordan v. State, 464 So. 2d 475 (Miss. 1985).

      Wilcher v. State, 455 So. 2d 727 (Miss. 1984).

      Billiot v. State, 454 So. 2d 445 (Miss. 1984).

      Stringer v. State, 454 So. 2d 468 (Miss. 1984).

      Dufour v. State, 453 So. 2d 337 (Miss. 1984).

      Neal v. State, 451 So. 2d 743 (Miss. 1984).

                                           -v-
Booker v. State, 449 So. 2d 209 (Miss. 1984).

Wilcher v. State, 448 So. 2d 927 (Miss. 1984).

Caldwell v. State, 443 So. 2d 806 (Miss. 1983).

Irving v. State, 441 So. 2d 846 (Miss. 1983).

Tokman v. State, 435 So. 2d 664 (Miss. 1983).

Leatherwood v. State, 435 So. 2d 645 (Miss. 1983).

Hill v. State, 432 So. 2d 427 (Miss. 1983).

Pruett v. State, 431 So. 2d 1101 (Miss. 1983).

Gilliard v. State, 428 So. 2d 576 (Miss. 1983).

Evans v. State, 422 So. 2d 737 (Miss. 1982).

King v. State, 421 So. 2d 1009 (Miss. 1982).

Wheat v. State, 420 So. 2d 229 (Miss. 1982).

Smith v. State, 419 So. 2d 563 (Miss. 1982).

Johnson v. State, 416 So. 2d 383 (Miss.1982).

Edwards v. State, 413 So. 2d 1007 (Miss. 1982).

Bullock v. State, 391 So. 2d 601 (Miss. 1980).

Reddix v. State, 381 So. 2d 999 (Miss. 1980).

Jones v. State, 381 So. 2d 983 (Miss. 1980).

Culberson v. State, 379 So. 2d 499 (Miss. 1979).

Gray v. State, 375 So. 2d 994 (Miss. 1979).

Jordan v. State, 365 So. 2d 1198 (Miss. 1978).

Voyles v. State, 362 So. 2d 1236 (Miss. 1978).

                                    -vi-
      Irving v. State, 361 So. 2d 1360 (Miss. 1978).

      Washington v. State, 361 So. 2d 6l (Miss. 1978).

      Bell v. State, 360 So. 2d 1206 (Miss. 1978).

      *Case was originally affirmed in this Court but on remand from U. S. Supreme Court,
case was remanded by this Court for a new sentencing hearing.




                                          -vii-
         DEATH CASES REVERSED AS TO GUILT PHASE
                 AND SENTENCING PHASE

Byrom v. State, 2014-DR-00230-SCT (April 3, 2014) (order).

Ross v. State, 954 So. 2d 968 (Miss. 2007).

Flowers v. State, 947 So. 2d 910 (Miss. 2006).

Flowers v. State, 842 So. 2d 531 (Miss. 2003).

Randall v. State, 806 So. 2d 185 (Miss. 2002).

Flowers v. State, 773 So. 2d 309 (Miss. 2000).

Edwards v. State, 737 So. 2d 275 (Miss. 1999).

Smith v. State, 733 So. 2d 793 (Miss. 1999).

Porter v. State, 732 So. 2d 899 (Miss. 1999).

Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).

Snelson v. State, 704 So. 2d 452 (Miss. 1997).

Fusilier v. State, 702 So. 2d 388 (Miss. 1997).

Howard v. State, 701 So. 2d 274 (Miss. 1997).

Lester v. State, 692 So. 2d 755 (Miss. 1997).

Hunter v. State, 684 So. 2d 625 (Miss. 1996).

Lanier v. State, 684 So. 2d 93 (Miss. 1996).

Giles v. State, 650 So. 2d 846 (Miss. 1995).

Duplantis v. State, 644 So. 2d 1235 (Miss. 1994).

Harrison v. State, 635 So. 2d 894 (Miss. 1994).

Butler v. State, 608 So. 2d 314 (Miss. 1992).



                                   -viii-
Jenkins v. State, 607 So. 2d 1171 (Miss. 1992).

Abram v. State, 606 So. 2d 1015 (Miss. 1992).

Balfour v. State, 598 So. 2d 731 (Miss. 1992).

Griffin v. State, 557 So. 2d 542 (Miss. 1990).

Bevill v. State, 556 So. 2d 699 (Miss. 1990).

West v. State, 553 So. 2d 8 (Miss. 1989).

Leatherwood v. State, 548 So. 2d 389 (Miss. 1989).

Mease v. State, 539 So. 2d 1324 (Miss. 1989).

Houston v. State, 531 So. 2d 598 (Miss. 1988).

West v. State, 519 So. 2d 418 (Miss. 1988).

Davis v. State, 512 So. 2d 129l (Miss. 1987).

Williamson v. State, 512 So. 2d 868 (Miss. 1987).

Foster v. State, 508 So. 2d 1111 (Miss. 1987).

Smith v. State, 499 So. 2d 750 (Miss. 1986).

West v. State, 485 So. 2d 681 (Miss. 1985).

Fisher v. State, 481 So. 2d 203 (Miss. 1985).

Johnson v. State, 476 So. 2d 1195 (Miss. 1985).

Fuselier v. State, 468 So. 2d 45 (Miss. 1985).

West v. State, 463 So. 2d 1048 (Miss. 1985).

Jones v. State, 461 So. 2d 686 (Miss. 1984).

Moffett v. State, 456 So. 2d 714 (Miss. 1984).

Lanier v. State, 450 So. 2d 69 (Miss. 1984).

                                    -ix-
Laney v. State, 421 So. 2d 1216 (Miss. 1982).




                                   -x-
                  DEATH CASES REVERSED
             AS TO PUNISHMENT AND REMANDED
         FOR RESENTENCING TO LIFE IMPRISONMENT

Reddix v. State, 547 So. 2d 792 (Miss. 1989).

Wheeler v. State, 536 So. 2d 1341 (Miss. 1988).

White v. State, 532 So. 2d 1207 (Miss. 1988).

Bullock v. State, 525 So. 2d 764 (Miss. 1987).

Edwards v. State, 441 So. 2d 84 (Miss. l983).

Dycus v. State, 440 So. 2d 246 (Miss. 1983).

Coleman v. State, 378 So. 2d 640 (Miss. 1979).




                                   -xi-
                     DEATH CASES REVERSED AS TO
              PUNISHMENT AND REMANDED FOR A NEW TRIAL
                      ON SENTENCING PHASE ONLY


       Fulgham v. State, 46 So. 3d 315 (Miss. 2010).

       Rubenstein v. State, 941 So. 2d 735 (Miss. 2006).

       King v. State, 784 So. 2d 884 (Miss. 2001).

       Walker v. State, 740 So. 2d 873 (Miss. 1999).

       Watts v. State, 733 So. 2d 214 (Miss. 1999).

       West v. State, 725 So. 2d 872 (Miss. 1998).

       Smith v. State, 724 So. 2d 280 (Miss. 1998).

       Berry v. State, 703 So. 2d 269 (Miss. 1997).

       Booker v. State, 699 So. 2d 132 (Miss. 1997).

       Taylor v. State, 672 So. 2d 1246 (Miss. 1996).

       *Shell v. State, 554 So. 2d 887 (Miss. 1989); Shell v. Mississippi, 498 U.S. 1 (1990)
reversing, in part, and remanding; Shell v. State 595 So. 2d 1323 (Miss. 1992) remanding for
new sentencing hearing.

      *Pinkney v. State, 538 So. 2d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S.
1075 (1990) vacating and remanding; Pinkney v. State, 602 So. 2d 1177 (Miss. 1992)
remanding for new sentencing hearing.

      *Clemons v. State, 535 So. 2d 1354 (Miss. 1988); Clemons v. Mississippi, 494 U.S.
738 (1990) vacating and remanding; Clemons v. State, 593 So. 2d 1004 (Miss. 1992)
remanding for new sentencing hearing.

       *Jones v. State, 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi, 487 U.S. 1230
(1988) vacating and remanding; Jones v. State, 602 So. 2d 1170 (Miss. 1992) remanding for
new sentencing hearing.
       Russell v. State, 607 So. 2d 1107 (Miss. 1992).



                                           -xii-
       Holland v. State, 587 So. 2d 848 (Miss. 1991).

       Willie v. State, 585 So. 2d 660 (Miss. 1991).

       Ladner v. State, 584 So. 2d 743 (Miss. 1991).

       Mackbee v. State, 575 So. 2d 16 (Miss. 1990).

       Berry v. State, 575 So. 2d 1 (Miss. 1990).

       Turner v. State, 573 So. 2d 657 (Miss. 1990).

       State v. Tokman, 564 So. 2d 1339 (Miss. 1990).

       Johnson v. State, 547 So. 2d 59 (Miss. 1989).

      Williams v. State, 544 So. 2d 782 (Miss. 1989); sentence aff'd 684 So. 2d 1179
(1996).

       Lanier v. State, 533 So. 2d 473 (Miss. 1988).

       Stringer v. State, 500 So. 2d 928 (Miss. 1986).

       Pinkton v. State, 481 So. 2d 306 (Miss. 1985).

       Mhoon v. State, 464 So. 2d 77 (Miss. 1985).

       Cannaday v. State, 455 So. 2d 713 (Miss. 1984).

       Wiley v. State, 449 So. 2d 756 (Miss. 1984); resentencing affirmed, Wiley v. State,
484 So. 2d 339 (Miss. 1986); cert. denied, Wiley v. Mississippi, 479 U.S. 1036 (1988);
resentencing ordered, Wiley v. State, 635 So. 2d 802 (Miss. 1993) following writ of habeas
corpus issued pursuant to Wiley v. Puckett, 969 So. 2d 86, 105-106 (5th Cir. 1992);
resentencing affirmed.

       Williams v. State, 445 So. 2d 798 (Miss. 1984). *Case was originally affirmed in this
Court but on remand from U. S. Supreme Court, case was remanded by this Court for a new
sentencing hearing.

(Revised November 10, 2014).




                                           -xiii-
