        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-01828-COA

JERMAINE CRUMP                                                           APPELLANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        04/15/2015
TRIAL JUDGE:                             HON. SMITH MURPHEY
COURT FROM WHICH APPEALED:               YALOBUSHA COUNTY CIRCUIT COURT,
                                         FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF DELIBERATE-DESIGN
                                         MURDER AND SENTENCED TO LIFE IN
                                         THE CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS
DISPOSITION:                             AFFIRMED – 06/27/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES, CARLTON AND WESTBROOKS, JJ.

      BARNES, J., FOR THE COURT:

¶1.   A jury found Jermaine Crump guilty of deliberate-design murder. Crump’s appellate

counsel claims the Yalobusha County Circuit Court, First Judicial District, erred when it:

(1) held that Crump could not repeat what the victim allegedly said shortly before Crump

killed her; (2) allowed two law-enforcement officers to provide lay opinions as to whether

the victim would have been a threat to Crump; and (3) held that the jury’s verdict was not
contrary to the overwhelming weight of the evidence. Crump has also filed a pro se

supplemental brief. He argues that: (4) the prosecution should not have been allowed to

introduce his recorded statement into evidence; (5) his retained trial counsel was ineffective;

and (6) the prosecution engaged in various forms of misconduct. Finding no reversible error,

we affirm the circuit court’s judgment.

              STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.      As of late 2012, Crump and his mother, Mary Crump, were the joint owners of their

three-bedroom house near Coffeeville, Mississippi. Four other people were temporarily

living with them: Crump’s younger brother, Richard Crump Jr.; Richard’s wife, Crystal

Redmond Crump; and Richard and Crystal’s two young children. Crump believed that

Crystal had been intentionally damaging his clothes and computer. The record suggests that

he retaliated by pouring water on Crystal’s computer. Crump’s problems with Crystal

continued to escalate as he unsuccessfully tried to have her evicted or prosecuted multiple

times.

¶3.      It is undisputed that on November 2, 2012, Crump killed Crystal. Among other law-

enforcement officers, Chief Deputy Jerry Ferguson of the Yalobusha County Sheriff’s

Department was dispatched to Crump’s house. Crystal’s body was lying prone on the front

porch. She had been shot numerous times, including three gunshot wounds to the head.

Deputy Ferguson arrested Crump, who directed him to the pistol that he had hidden inside

a “black makeup-type bag” that “was under a bunch of stuff inside [Mary’s] closet.” Crump

also showed Deputy Ferguson a knife on the floor in the hall, and said it “was the knife



                                              2
[Crystal] had.” Deputy Thomas West found two loaded pistol magazines in Crump’s pocket,

and two boxes of pistol ammunition in Crump’s car.

¶4.    Investigator Bryan Sullivant of the Mississippi Bureau of Investigations also

responded to the scene. He noticed that Crystal had been wearing bright green latex gloves

when she died. Investigator Sullivant later tested Crump’s hands for gunshot residue, but

Crump had washed his hands. However, Investigator Sullivant took samples from the knife

in the hallway. Those samples later tested positive for gunshot residue. That evening,

Crump declined to give a statement to Investigator Sullivant.

¶5.    By the next morning, Crump had changed his mind. After detailing the problems he

had been having with Crystal, Crump said that Crystal had been standing outside his bedroom

immediately before he chased her and killed her. He said Crystal had been holding a knife,

but he could not remember which of her hands it was in. He also could not remember what

she said before he killed her. Investigator Sullivant asked Crump several times if there were

anything strange about Crystal’s hands, but Crump never mentioned the bright green latex

gloves that Crystal had been wearing.

¶6.    Crump admitted that he shot Crystal as she ran from him. He said that he shot at

Crystal once as she was running through the hall, and again as she was near the front door.

By then, he did not know whether Crystal still had a knife. When she opened the front door

and fell onto the porch, he stood over her and shot her a few more times. Crump said that

he had been aiming at Crystal’s back, but his shots were hitting her in the head. Crump

denied that he had picked up the knife in the hall, but he said that he kicked it after he killed



                                               3
Crystal.

¶7.    During February 2013, Crump was indicted and charged with murder. His trial was

substantially delayed by the question of his mental competency. Following a May 2013

motion by Crump’s lawyer, Crump was evaluated by Dr. John Hutson, a clinical

psychologist. In May 2014, Dr. Hutson recommended further evaluation at the Mississippi

State Hospital at Whitfield.

¶8.    After Crump’s July 2014 initial evaluation at Whitfield, psychiatrist Dr. Reb

McMichael and clinical and forensic psychologist Dr. Amanda Gugliano opined that Crump

was not competent to proceed to trial. Crump was admitted to Whitfield for further

evaluation. During September 2014, Dr. Gugliano again reported that Crump was not

competent to proceed to trial. She explained that Crump appeared “to have a personality

disorder with paranoid and schizotypal features.” Crump’s evaluation and treatment

continued at Whitfield.

¶9.    In January 2015, Dr. McMichael submitted a follow-up report that Crump was able

to consult with his lawyer.     Dr. McMichael further opined that Crump would have

understood “the nature and quality of his alleged acts” and “he would have known [they

were] . . . wrong.” After conducting a competency hearing, the circuit court held that Crump

was competent to stand trial.

¶10.   Crump’s three-day trial began on April 13, 2015. The prosecution called six witnesses

during its case-in-chief. Asia Gunn testified that she was nine years old when Crump killed

Crystal. Asia was in the home that day, because Crystal had been giving her a perm. While



                                             4
sitting in the living room, Asia saw Crump shooting at Crystal as he chased her down the

hall, and again as he stood over her on the porch. Asia never saw Crystal with a knife, and

she never saw a knife in the hallway.

¶11.   Deputy Ferguson, Deputy West, and Investigator Sullivant all testified regarding their

participation in the investigation. Dr. Erin Barnhart, a forensic pathologist, testified that she

performed Crystal’s autopsy, and Crystal had three gunshot wounds to the back of her head,

one to the side of her torso, one in her right hip, and one in her right arm. Jacob Burchfield,

an expert witness employed by the Mississippi Crime Laboratory, testified that gunshot

residue was on the sample that Investigator Sullivant collected from the knife.

¶12.   Crump participated significantly during his case. He vigorously disagreed with his

lawyer’s desire to present an insanity defense. Instead, Crump insisted that he had acted in

self-defense.

¶13.   Crump demanded that his lawyer call David Earl Hoop as a witness. Initially, Hoop

did not know anything about the case. When Crump re-called him later, Hoop remembered

that Crystal had taken her vehicle to his shop, and he found sugar in Crystal’s gas tank. Hoop

testified that Crystal was “real mad” when she left his shop. At Crump’s insistence, his

lawyer also called Crump’s aunt, Ebonie Gunn, and his father, Richard Crump Sr., as

witnesses. Neither of them knew anything about the shooting.

¶14.   Crump’s mother, Mary, testified about the living arrangements and Crump’s problems

with Crystal, but Mary was not at home when Crump killed Crystal. During a phone

conversation on the day of the shooting, Crystal told Mary that she thought Crump had put



                                               5
sugar in her gas tank.1 Mary asked Crystal to “let it go” because Crystal and Crump’s brother

planned to move out of the house soon. Mary also testified that Crump “got more intense”

every time he unsuccessfully tried to get Crystal out of the house.

¶15.   Against his lawyer’s advice, Crump chose to testify. He said that on the day of the

shooting, he heard Crystal talking on the phone with someone. “[F]rom that conversation,

[he] felt like [his] life was in danger”; so he “got the [pistol] magazine and . . . prepared

[him]self for any bad altercation or whatever the case may be.”2 According to Crump,

Crystal said “[g]uess what” as she stood outside his door. Because of the prosecution’s

hearsay objection, Crump was not allowed to elaborate about what Crystal had said.

Although Crump became frustrated by the circuit court’s decision, he was able to testify that

Crystal was “highly upset,” angry, and “hitting stuff.” He said that Crystal had a knife in her

hand while she was standing outside his door, and he felt like his life was in danger.

According to Crump, Crystal “was talking about what she was going to do.”

¶16.   Crump testified that Crystal ran from him, and he “ran behind her.” Crump said that

Crystal “was just getting in the den” when he “shot her in the leg[.]”3 He did not know

whether Crystal still had the knife, but he did not see “[any]thing drop[.]” He testified that



       1
         According to Mary, Crystal suspected that “two or three” people could have poured
sugar in her gas tank. Crystal thought Crump was responsible for it “because of some more
incidences that had occurred in the house.”
       2
           Crump bought the pistol approximately a week before he killed Crystal.
       3
        Presumably, Crump was referencing what Dr. Barnhart described as the gunshot
wound to Crystal’s “right hip/thigh area.” There was no evidence that Crystal sustained a
gunshot wound to either leg.

                                              6
he was not thinking rationally, and he could not control his response because of his paranoid

schizophrenia.4 He added that he “couldn’t stop shooting.” However, he maintained that he

acted in self-defense. While Crystal was lying on the porch, Crump “just stood over her . . .

like a crazy man and just kept on shooting, and [he] was fixing to go and reload and shoot

some more until [he] caught [him]self . . . .” During cross-examination, Crump said that he

did not know right from wrong, and he could not stop himself. He added that he acted in the

heat of the moment, but after he started to think clearly, he realized that what he had done

was “very wrong, very bad.”

¶17.   The prosecution called Investigator Sullivant during its rebuttal. During Investigator

Sullivant’s rebuttal testimony, the prosecution introduced Crump’s recorded interview into

evidence. As mentioned above, the jury found Crump guilty of murder. The circuit court

sentenced Crump to life in the custody of the Mississippi Department of Corrections.

Following his unsuccessful posttrial motions for a judgment notwithstanding the verdict or

a new trial, Crump appeals.

¶18.   As a preliminary matter, we note that Crump’s appellate counsel seeks to preserve any

issue regarding Crump’s competence to stand trial. After the competency hearing, and a few

days before the trial, Crump’s trial counsel produced a number of letters that Crump had

given to his father. The letters were addressed to the circuit judge. Crump’s lawyer

unsuccessfully sought a continuance on the basis that the content of the letters might change

       4
         During Crump’s competency hearing, Dr. Gugliano opined that Crump did “not
have schizophrenia . . . [or] any kind of major mental disorder or defect.” Dr. McMichael
said that Crump sometimes chose not to communicate rationally, and communication was
difficult because of Crump’s “personality organization.”

                                             7
Dr. Gugliano’s and Dr. McMichael’s opinions that Crump was competent. The record is

silent regarding whether Dr. Gugliano or Dr. McMichael ever reviewed the letters.

¶19.   Crump’s appellate counsel states that the record is inadequate for him to argue that

the circuit judge abused his discretion by denying the request for a continuance, which could

also be construed as a motion to reconsider Crump’s competency. However, counsel notes

that Crump “participated extensively in his trial[,] . . . there were numerous exchanges

between Crump and the [circuit] judge [that] appear consistent with the finding of

competency[,]” and Crump was apparently able to communicate with his prior attorney.

Thus, while counsel does not concede that Crump was competent, “[he] has determined that

the record before the court does not justify raising an issue about Crump’s competency to

stand trial.” He requests “that the competency issue remain viable to raise if necessary”

through a motion for postconviction relief. Crump would have to obtain the Mississippi

Supreme Court’s leave to raise the issue in a motion for postconviction relief. See Miss.

Code Ann. § 99-39-7 (Rev. 2015). As such, we decline to comment on the subject beyond

stating counsel’s desire to preserve the issue.

                                        ANALYSIS

       I.     Exclusion of Crump’s Hearsay Testimony

¶20.   During direct examination, Crump attempted to testify regarding what Crystal said to

him as she was standing outside his door. Specifically, Crump said, “I heard a conversation

between . . . my mom and Crystal; and when I got in the house, Crystal was at the bookshelf

and then she moved all the way - - she moved to the door, and the conversation was, ‘[g]uess



                                              8
what[.]’” The prosecution objected that Crump’s testimony was hearsay. The circuit court

sustained the objection because Crump was “repeating an out-of-court statement.” Crump

claims the circuit court erred. An appellate court “reviews the trial court’s admission or

exclusion of evidence for abuse of discretion.” Pauley v. State, 113 So. 3d 557, 560 (¶3)

(Miss. 2013). Additionally, “error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected.” Id. (quoting M.R.E.

103(a)).

¶21.   Hearsay is “a statement that . . . (1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.” M.R.E. 801(c).5 Unless Mississippi law provides otherwise,

hearsay is not admissible. M.R.E. 802. According to Crump, his excluded testimony would

not have been hearsay, because it would not have been offered to prove the truth of the

matter asserted.

¶22.   First and foremost, there was no proffer of Crump’s testimony as to what Crystal had

said to him beyond “[g]uess what[.]” “When testimony is not allowed at trial, a record of

the proffered testimony must be made in order to preserve the point for appeal.” McKenzie

v. State, 119 So. 3d 1145, 1149 (¶9) (Miss. Ct. App. 2013) (quoting Green v. State, 89 So.

3d 543, 554 (¶28) (Miss. 2012)). Consequently, this issue is procedurally barred.

¶23.   Procedural bar notwithstanding, we find that Crump’s excluded testimony would not

       5
        The Mississippi Rules of Evidence were restyled in 2016 “to make them more easily
understood and to make style and terminology consistent throughout the rules.” M.R.E. 801
advisory committee’s note. Although we quote the most recent version of Rule 801(c) and
other rules of evidence throughout this opinion, the rules remain substantially the same.

                                               9
have resulted in reversible error. It is true that “if the significance of a statement is simply

that it was made and there is no issue about the truth of the matter asserted, then the

statement is not hearsay.” Harrell v. State, 179 So. 3d 16, 20 (¶11) (Miss. Ct. App. 2014).

In Pauley, 113 So. 3d at 560 (¶3), a trial court sustained an objection when a defense witness

was asked whether the witness knew that the defendant had said that someone had stolen

some of his tools. On appeal, the Mississippi Supreme Court held that trial court had erred

because the statement was not hearsay. Id. at (¶4). The Supreme Court explained that the

testimony at issue in that case was not offered to prove that someone had stolen the

defendant’s tools, “but rather that [the defendant] had harbored the belief that [the person]

had stolen his tools.” Id. However, the Supreme Court went on to hold that the error was

harmless because the excluded testimony was cumulative. Id.

¶24.   As in Pauley, Crump’s excluded testimony was offered to prove that he felt threatened

by Crystal. It was not offered to prove that she said “[g]uess what[.]” Consequently,

Crump’s excluded testimony was not hearsay. However, Crump was not prejudiced by the

exclusion of the testimony at issue. Crump testified that he thought his “life was in danger.”

He also testified that Crystal had been “screaming at [him] about what she [was] going to

do.” The jury also heard his testimony that Crystal “was angry and talking about [how] she

[was] tired of this stuff and what she [was] . . . going to do . . . .” It is also significant that,

according to Crump, he ultimately reacted because Crystal had a knife, and not based on what

she said to him. That is, Crump testified that Crystal had “the knife up, but she didn’t say

nothing at that moment. I reacted off of her holding the knife.” The jury also heard the



                                                10
recording of Crump’s interview. Crump said that he heard Crystal tell his mother that he had

put sugar in her gas tank. He also said that Crystal was standing outside of his door when

she confronted him with a knife, but he did not remember exactly what she had said when

she was standing outside his door.

¶25.   “A party must do more than simply show some technical error has occurred before he

will be entitled to a reversal on the exclusion or admission of evidence; there must be some

showing of prejudice.” Pham v. State, 716 So. 2d 1100, 1102 (¶12) (Miss. 1998). As the

State correctly notes, in Gilbert v. State, 934 So. 2d 330, 336 (¶18) (Miss. Ct. App. 2006),

this Court held that harmless error resulted when a trial court improperly excluded testimony

that did not qualify as hearsay, but the witness still informed the jury that the victim was the

initial aggressor. The same is true in this case. It was not necessary for Crump to quote

Crystal in order for the jury to understand his claim that he killed her in self-defense.

Accordingly, even if this issue were not procedurally barred, we would find that the circuit

court’s error was harmless.

       II.    Lay-Opinion Testimony

¶26.   Over Crump’s objection, Deputy Ferguson testified that based on his experience as

a law-enforcement officer, nothing at the scene indicated that Crystal had been assaulting

Crump. He also testified over objection that nothing at the scene suggested that Crystal

could have harmed Crump or that she was an imminent threat to him. When asked to

elaborate on cross-examination, Deputy Ferguson explained that Crump’s body “was l[ying]

outside the house and apparently had been shot outside the house[, and] there was no weapon



                                              11
around the body.”

¶27.     Later during cross-examination, Deputy Ferguson was asked whether his testimony

would be different if Crystal had been attempting to attack Crump with the knife recovered

in the hallway. Deputy Ferguson responded: “She was found outside the house, and that’s

where she was shot. The knife was found in the hallway.” Crump’s lawyer then asked the

following question:

         Well, let’s take this for instance a step further. Let’s say that before she left
         the house or whatever reason she left immediately, that she did have the knife
         and that she was approaching him or threatening him, wouldn’t that explain
         something as to possibly why she was shot if that w[ere] the case?

Deputy Ferguson answered, “If that w[ere] the case.” During redirect, Deputy Ferguson

testified over objection that because the knife was approximately thirty feet from Crystal’s

body, she could not have been threatening Crump with the knife while she was lying on the

porch.

¶28.     When Agent Sullivant testified, the prosecution asked him if, based on his training,

experience, personal observations, and Crump’s statement, there was “anything to indicate

that Crystal . . . was assaulting Crump[.]” Crump’s lawyer did not object, and Agent

Sullivant responded, “No.” His response was the same when asked without objection

whether anything indicated that Crystal had been a threat to Crump.

¶29.     On appeal, Crump claims that the testimonies discussed above were improper lay

opinions.     He notes that neither witness was tendered as an expert in crime-scene

reconstruction, and the questions at issue called for opinions based on their experience. He

further argues that there was no testimony that their experience afforded them any ability to

                                                12
discern what had happened by observing a crime scene after the fact. Finally, Crump asserts

that the testimonies at issue were impermissible because the witnesses expressed opinions

about the ultimate issue in the case – whether Crump acted in reasonable self-defense.

Crump did not object to Agent Sullivant’s testimony. He is procedurally barred from raising

an issue about it for the first time on appeal. Willie v. State, 204 So. 3d 1268, 1274 (¶13)

(Miss. 2016) (citing M.R.E. 103(a)(1)).

¶30.   Deputy Ferguson did not testify as an expert witness. That does not necessarily mean

he was prohibited from offering opinion testimony, because his unique qualification as a law-

enforcement officer does not prevent him from expressing certain opinions. See Heflin v.

Merrill, 154 So. 3d 857, 863 (¶25) (Miss. 2014). As a lay witness, he could express any

opinion that was rationally based on his perception, but only if it helped the jury understand

his testimony or determine a fact in issue. See M.R.E. 701(a)-(b). However, as a lay witness,

he could not express an opinion that would require calling upon “experience or expertise

beyond that of [an] average, randomly selected adult[.]” See Collins v. State, 172 So. 3d 724,

739 (¶16) (Miss. 2015). A lay witness’s opinion testimony cannot be “based on scientific,

technical, or other specialized knowledge . . . .” M.R.E. 701(c).

¶31.   Viewed in full context, Deputy Ferguson testified that Crystal had not been a threat

to Crump when she was lying prone on the porch, and the nearest weapon – the knife in the

hall – was approximately thirty feet away. The prosecution would not have been required

to qualify Deputy Ferguson as an expert witness before he could have testified regarding the

distance between the knife and Crystal’s body. It is necessary to note that Deputy Ferguson



                                             13
did not opine that Crystal had never been a threat to Crump. Likewise, he did not testify that

Crump did not act in reasonably necessary self-defense when he began shooting at Crystal.

See M.R.E. 704 (“An opinion is not objectionable just because it embraces an ultimate

issue.”).

¶32.   Even so, there is no question that the prosecutor phrased direct-examination questions

as though Deputy Ferguson would have to rely on his experience as a law-enforcement

officer to express an opinion. By definition, such a question does not call for a lay opinion.

Seal v. Miller, 605 So. 2d 240, 244 (Miss. 1992). We must conclude that the circuit court

erred when it allowed Deputy Ferguson to offer opinion testimony in response to a question

that called for him to respond based on his experience as a law-enforcement officer.

¶33.   The Mississippi Supreme Court has recently reiterated that “because the public hold

police officers in great trust, the potential harm to the objecting party requires reversal where

a police officer gives expert testimony without first being qualified as such.” Kirk v. State,

160 So. 3d 685, 693 (¶19) (Miss. 2015) (quoting Roberts v. Grafe Auto Co., 701 So. 2d 1093,

1099 (Miss. 1997)). But in Kirk, the Supreme Court held that the issue had been waived due

to the lack of an objection and at least in part because “defense counsel interrogated [the

deputy] not only in an effort to call into question [the deputy’s] expertise regarding

strangulation, but also to adduce one of the defense’s theories of the case, that the marks on

[the victim’s] neck had been self-inflicted.” Id. at 694 (¶21). As discussed above, Crump’s

lawyer cross-examined Deputy Ferguson and asked him if his opinion would be different if

immediately before Crump shot Crystal, she had been threatening Crump with the knife



                                               14
while she was standing outside his door.

¶34.   More significantly, in Kirk, the Supreme Court did not reverse its prior decisions

holding that harmless error resulted where a lay witness offered improper testimony that was

cumulative because an expert witness testified to the same effect. See Le v. State, 913 So.

2d 913, 937 (¶80) (Miss. 2005) (overruled on other grounds by Bonds v. State, 138 So. 3d

914, 919 (¶13) (Miss. 2014)); Walker v. State, 740 So. 2d 873, 882-83 (¶¶34-35) (Miss.

1999) (disagreed with on other grounds by Dilworth v. State, 909 So. 2d 731, 735 n.4 (Miss.

2005)); Whittington v. State, 523 So. 2d 966, 974-75 (Miss. 1988). As mentioned above,

Crump objected to Deputy Ferguson’s testimony that Crystal was not a threat to Crump while

she was lying prone on the porch, and the knife was approximately thirty feet away. Dr.

Barnhart testified that aside from a “right[-]to[-]left” gunshot wound to Crystal’s torso, all

of Crystal’s other five gunshot wounds traveled from “back to front.” She also testified that

none of Crystal’s wounds traveled from front to back, and that Crystal would not have been

a threat to Crump after the first of three gunshot wounds to the back of the head. What is

more, any prejudicial effect of Deputy Ferguson’s opinion testimony was substantially

mitigated by Crump’s subsequent testimony that he acted irrationally when he killed Crystal.

For the foregoing reasons, we find that any error in allowing the testimony at issue is

harmless.

       III.   Weight of the Evidence

¶35.   Crump argues that the jury’s verdict is contrary to the overwhelming weight of the

evidence. He claims that “[t]he only conviction supported by the evidence in this case is one



                                             15
for manslaughter, either in the heat of passion . . . or for what is referred to as imperfect self-

defense.” “When reviewing a denial of a motion for a new trial based on an objection to the

weight of the evidence, we will only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Shaheed v. State, 205 So. 3d 1105, 1109 (¶12) (Miss. Ct. App.

2016) (quoting Bush v. State, 895 So. 2d 836, 843 (¶18) (Miss. 2005)). “The evidence should

be viewed in the light most favorable to the verdict, and we will affirm unless the trial court

abused its discretion in denying a new trial.” Id.

¶36.   “An unjustified and unexcused taking of life is presumed to be murder unless there

is evidence upon which a jury can rationally justify mitigation down to manslaughter.” Neal

v. State, 805 So. 2d 520, 525 (¶16) (Miss. 2002). Heat-of-passion manslaughter and what

is known as “imperfect self-defense” both derive from Mississippi Code Annotated section

97-3-35 (Rev. 2014). Cook v. State, 467 So. 2d 203, 207 (Miss. 1985) (citing Williams v.

State, 127 Miss. 851, 854, 90 So. 705, 706 (1921)). Heat of passion is “[a] state of violent

and uncontrollable rage engendered by a blow or certain other provocation.” Wade v. State,

748 So. 2d 771, 776 (¶16) (Miss. 1999). It also “requires the absence of malice.” Id. at

(¶15). Likewise, one must act without malice for a jury to find that he or she acted in

“imperfect self-defense.” Ronk v. State, 172 So. 3d 1112, 1126 (¶22) (Miss. 2015) (“[U]nder

the theory of imperfect self-defense, ‘an intentional killing may be considered manslaughter

if done without malice but under a bona fide (but unfounded) belief that it was necessary to

prevent death or great bodily harm.’”).



                                                16
¶37.   Malice is the equivalent of “deliberate design” – the “careful and unhurried

consideration of the consequences.” Wade, 748 So. 2d at 776 (¶15). A person can quickly

form the deliberate design to kill a person; “perhaps only moments before the act.” Wilson

v. State, 936 So. 2d 357, 364 (¶18) (Miss. 2006). Deliberate design “may be inferred through

the intentional use of any instrument which, based on its manner of use, is calculated to

produce death or serious bodily injury.” Brown v. State, 965 So. 2d 1023, 1030 (¶28) (Miss.

2007). Furthermore, “intent may be proven . . . by showing the acts of the person involved

at the time, and . . . the circumstances surrounding the incident.” Boyd v. State, 977 So. 2d

329, 335 (¶23) (Miss. 2008) (citation omitted). Ultimately, intent is “a question of fact

gleaned by the jury.” Id. (quoting Wheat v. State, 420 So. 2d 229, 238 (Miss. 1982)).

¶38.   The jury heard testimony that Crump had unsuccessfully tried to have Crystal evicted

or prosecuted, and he became “more intense” each time he failed to have her removed from

the home. Crump bought a pistol not long before he killed Crystal. Crump testified that after

he heard Crystal talking to his mother, he loaded the pistol because he was preparing for a

confrontation with Crystal. The jury certainly could have found that Crystal’s anger due to

the vandalism of her car is not sufficient provocation that will reduce murder to heat-of-

passion manslaughter.

¶39.   There was conflicting testimony about whether Crystal had a knife. But Crump never

testified that Crystal advanced on him with a weapon or even threatened him. Instead, the

undisputed proof was that Crystal fled from him, and he pursued her. It was reasonable for

the jury to conclude that Crump could not have had a good-faith belief that Crystal was a



                                             17
threat to him. Moreover, the jury could have held that once Crystal turned and fled from

Crump, she was certainly not a threat. Crump testified that he did not know whether Crystal

had a knife while she was running from him. After Crystal fell on the porch with one or

more gunshot wounds, Crump stood over her and continued to shoot her. None of Crystal’s

wounds traveled front to back. Viewed in the light most favorable to the jury’s verdict, there

was evidence that Crump acted with malice. This conclusion defeats Crump’s claim that the

weight of the evidence supports a manslaughter conviction based on either heat of passion

or imperfect self-defense. Because upholding the jury’s verdict would not sanction an

unconscionable injustice, we find no merit to this issue.

                     CRUMP’S PRO SE SUPPLEMENTAL BRIEF

       IV.      Crump’s Confession

¶40.   According to Crump, his confession was involuntary. He claims that it was the

product of harassment and coercion. He also claims that authorities ignored his request to

speak to a lawyer. This issue is procedurally barred because Crump did not raise it and give

the circuit judge an opportunity to rule on it. See Glasper v. State, 914 So. 2d 708, 721 (¶30)

(Miss. 2005).

       V.       Effective Trial Counsel

¶41.   Next, Crump claims that his trial counsel was ineffective. The precise nature of

Crump’s allegations under this heading are somewhat difficult to discern. He initially

contends that his lawyer was ineffective because of “abuse of discovery, a contract[,] and

other violations under due process[.]” But he does not elaborate regarding his “abuse of



                                              18
discovery” claim. Nor does he explain how his trial counsel supposedly infringed on his

right to due process. Crump’s allegation about a contract is only slightly more developed.

Crump’s father retained Crump’s trial counsel. Sometime prior to the trial, Crump’s father

apparently gave him the impression that his lawyer entered some kind of an agreement with

the district attorney. Some of the letters that Crump wrote to the circuit judge contained

similar allegations. During a hearing on a motion for a continuance, Crump briefly

mentioned his belief that his lawyer and the district attorney had some type of contract.

Beyond the vague allegation of its existence, Crump never explained what the contract

supposedly concerned. His supplemental pro se brief provides no greater clarity. That is, we

are unable to determine what contract Crump references.

¶42.   Crump also argues that his trial counsel failed to present “letters and evidence of other

defenses.” Crump does not explain what letters he references, or why his lawyer should have

attempted to introduce them into evidence. Nor does Crump explain what “other defenses”

his trial counsel should have presented. We note that the circuit judge repeatedly told Crump

he was responsible for deciding what defense to present. Crump’s trial counsel sought to

raise an insanity defense, but Crump vehemently disagreed.

       While this Court may consider the merits of a claim of ineffective assistance
       of counsel raised for the first time on direct appeal, it is unusual to do so
       because “we are limited to the trial court record in our review of the claim and
       there is usually insufficient evidence within the record to evaluate the claim.”

Ragland v. State, 50 So. 3d 1041, 1044 (¶8) (Miss. Ct. App. 2010) (quoting Wilcher v. State,

863 So. 2d 776, 825 (¶171) (Miss. 2003)). The appropriate conclusion is usually “to deny

relief, preserving the defendant’s right to argue the same issue through a petition for

                                              19
post-conviction relief.” Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2003)

(citing Read v. State, 430 So. 2d 832, 837 (Miss. 1983)). We will reach the merits on an

ineffective-assistance claim only in instances where “(1) the record affirmatively shows

ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is

adequate to allow the appellate court to make the finding without consideration of the

findings of fact of the trial judge.” Wilcher, 863 So. 2d at 825 (¶171). The State does not

stipulate that the record is adequate to review this issue. And we do not find that the record

affirmatively shows ineffectiveness of constitutional dimensions. If he chooses to do so,

Crump may request the Supreme Court’s leave to raise these claims in a motion for

postconviction relief. See Miss. Code Ann. § 99-39-7.

       VI.    Alleged Prosecutorial Misconduct

¶43.   Finally, Crump makes several prosecutorial-misconduct allegations. Some of them

are so undeveloped that we are unable to review them. For example, Crump’s allegations

include claims listed only as “change of venue” and “conspiring.” Crump withdrew his

motion for a change of venue.6 He does not explain how the prosecution could have

influenced that decision. Nor does he explain his allegation of “conspiring.” Consequently,

we focus on his more developed assertions that the prosecution maliciously contested his

request for a bond reduction, selected all of the jurors, coached Asia’s testimony, withheld

       6
        During a hearing on September 5, 2013, Crump’s lawyer announced that Crump was
waiving “any hearing” on his motion for a change of venue. He clarified that he was
withdrawing the motion for a change of venue “subject to the examination of the jury pool[,]
and he reserved the right to renew the motion if “something is revealed by voir dire . . . .”
Crump never renewed the motion. The prosecution could not have maliciously opposed
something that Crump never asserted.

                                             20
evidence during discovery, falsified evidence through an unauthentic transcript of his

confession, and made improper comments during its opening statement and closing

argument.

¶44.   Crump cites no authority suggesting that the prosecution was required to consent to

his request to reduce his pretrial bond from $100,000 to $10,000. And although the circuit

court denied Crump’s motion for a bond reduction, that did not prevent Crump from bonding

out. On March 17, 2014, Crump’s lawyer noted that Crump’s family was “in a position to

post a bond for him[,] but because of fear for his safety and the safety of others they’ve

elected not to” post his bond.

¶45.   As for jury selection, it is unclear why Crump thinks the prosecution selected the

entire jury. At his insistence, he participated extensively in voir dire and jury selection. He

and his lawyer exercised numerous peremptory strikes of potential jurors. At times, his

lawyer deferred to Crump’s demands to strike or keep a particular member of the venire

panel. There is simply no merit to his claim that the prosecution selected all of the jurors.

¶46.   Regarding Asia’s testimony, there is no support for the concept that the prosecution

influenced or coached her. Asia testified that she and the prosecutor had discussed her

testimony. She answered, “Yes” when Crump’s lawyer asked if they had discussed it “more

than one time[.]” But nothing in the record suggests that Asia’s testimony was the product

of coercion. And Crump cites no authority suggesting that the prosecution cannot interview

its witnesses before they testify.

¶47.   There is also no support for Crump’s claim that the prosecution withheld evidence



                                              21
during discovery or somehow falsified the transcript of his recorded statement. Both

allegations appear to be related. The prosecution gave Crump’s lawyer a transcript of

Crump’s statement, but Crump’s lawyer never requested a copy of the actual recording.

During the trial, there was an issue about Crump’s demeanor or emotional state during the

interview. The prosecution could not have withheld something that Crump’s lawyer never

requested. As for Crump’s claim that the transcript was falsified, he does not explain his

claim. That is, he does not specify how the transcript was inaccurate or how that inaccuracy

was intentional. Furthermore, Crump had an opportunity to review the record and identify

any inaccuracies.

¶48.   Finally, Crump claims that the prosecution made improper comments during its

opening statement7 and closing argument.8 However, there were no contemporaneous

objections to those comments. As a result, he is procedurally barred from complaining about

them on appeal. Johnson v. State, 204 So. 3d 763, 771 (¶24) (Miss. 2016). We find that

none of the conduct Crump discusses under this heading qualifies as prosecutorial

misconduct, or that it somehow endangered the fairness of his trial or the impartial

administration of justice. This issue is meritless.


       7
         Crump claims that the prosecution repeatedly said that Crystal “was somehow
innocen[t]” because of her gender. The single portion of the record that he cites does not
support his interpretation. Instead, the prosecutor said that “[a] young woman’s life was
taken in the home she was staying [in] by the actions of this Defendant.”
       8
        Crump complains about the prosecutor’s comments that Asia was an eyewitness,
and that Crystal “fell out of her house as she was running away . . . .” (Emphasis added).
Crump claims that both statements were false. However, Asia was an eyewitness, so that
statement was accurate. The fact that Crystal was technically a guest in the house that
belonged to Crump and his mother is trivial at best.

                                             22
¶49. THE JUDGMENT OF THE YALOBUSHA COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT, OF CONVICTION OF DELIBERATE-DESIGN
MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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