                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2011-KA-01471-SCT

DAVID W. PARVIN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                           06/17/2011
TRIAL JUDGE:                                HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                  MONROE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    JAMES LAWTON ROBERTSON
                                            JIM WAIDE
                                            RACHEL MARIE PIERCE
                                            WILLIAM TUCKER CARRINGTON
ATTORNEYS FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                            BY: LADONNA C. HOLLAND
                                                JOHN R. HENRY, JR.
                                                SCOTT STUART
DISTRICT ATTORNEY:                          JOHN RICHARD YOUNG
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED - 04/11/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., KITCHENS AND PIERCE, JJ.

       KITCHENS, JUSTICE, FOR THE COURT:

¶1.    David W. Parvin appeals his murder conviction, characterizing his arguments as “a

Weathersby case with a Daubert twist.” 1 Parvin maintains that his wife’s death was caused


       1
        See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.
Ed. 2d 469 (1993) (discussing the standards governing the admissibility of expert testimony);
Weathersby v. State, 265 Miss. 207, 209, 147 So. 481, 482 (1933) (reiterating the rule that
“where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide,
their version, if reasonable, must be accepted as true, unless substantially contradicted in
material particulars by a credible witness or witnesses for the state, or by the physical facts
by accident, and the State’s principal evidence refuting his defense at trial consisted of expert

testimony, accompanied by a computer-generated reconstruction of the scene of her demise.

The State argued that the experts’ opinions about the physical evidence proved the victim

was intentionally killed. Although we find no merit in Parvin’s Weathersby claim, we agree

that certain expert testimony and the visual depiction of that testimony should not have been

presented to the jury. Because this evidence severely prejudiced Parvin’s defense, we

reverse the conviction and remand the case to the Monroe County Circuit Court for a new

trial.

                                         The Evidence

¶2.      On the morning of October 15, 2007, Dr. David Parvin 2 called 911 to report that he

accidentally had shot Joyce Parvin, his wife of forty-nine years, at their home near Aberdeen,

Mississippi. When law enforcement officials arrived, Joyce was dead. She was found in a

desk chair, her body draped over the left armrest, with a shotgun wound on the right side of

her torso.

¶3.      Parvin reported to the investigating officers that he had been rushing out of the house

to shoot a beaver and was carrying a loaded shotgun.3 According to Parvin, in his haste, he


or by the facts of common knowledge”) (citations omitted)).
         2
       Parvin holds a Ph.D. degree in economics from the University of Florida and taught
at Mississippi State University before he retired. He was 68 years old on the day his wife
was shot.
         3
          The Parvins’ home was located on the Tennessee-Tombigbee Waterway. According
to trial testimony, beavers and “beaver-like” creatures inhabit the region and are deemed
noxious by the local waterfront community. With no animal-control services, the local

                                                2
tripped, and during his fall, the gun discharged, shooting his wife, who was seated at their

home computer. He told the officers that he believed the gun had been parallel to the floor

or slightly elevated. He also was unsure about some of the other details: whether he or his

wife had spotted the beavers first; whether he had tripped over the rug or the dog; whether

his knee had hit the floor; and whether the barrel of the gun had hit the armrest of the chair

where Joyce was sitting at the moment it discharged. Parvin also said that he typically held

the gun, a double-barreled Savage Arms Fox 12-gauge shotgun, with his left hand on the fore

grip and his right hand around the trigger guard, but was unsure whether he had pulled one

of the two triggers accidentally. Although Parvin was unsure about many of the details

surrounding the incident, he maintained at trial that the shooting was an accident caused by

his unexpectedly tripping and falling while holding the shotgun.

¶4.    Two law enforcement officials who had been dispatched to the Parvin house that day

testified as witnesses for the State. Curtis Knight of the Monroe County Sheriff’s Office said

that he believed Joyce possibly had suffered a contact wound based on what appeared to be

gunpowder on Joyce’s shirt, and that no pellets from the shotgun had struck anything near

her body. He also testified that the rug did not appear to be disturbed.

¶5.    Arthur Chancellor, a crime-scene analyst for the Mississippi Bureau of Investigation,

confirmed Knight’s impression that the rug was undisturbed. He also testified that no marks

were on the walls or the floor which would have suggested to him that someone had tripped




residents customarily dealt with the unwanted animals by shooting them.

                                              3
while holding a gun. He further opined that the “injury appeared to be going in a downward

angle.”

¶6.    The State also presented the testimony of three witnesses, who were accepted by the

trial court as experts in their respective fields: Starks Hathcock, a firearms expert who had

tested the gun; Dr. Steven Hayne, a forensic pathologist who had performed the autopsy; and

Grant Graham, a crime-scene analyst who presented to the jury a computer-generated

depiction of the shooting. Hathcock testified that he had test fired the gun but was unable

to establish a conclusive distance from muzzle to wound.            In contrast to Hathcock’s

testimony, Dr. Hayne – who had neither tested nor seen the shotgun – testified that the

muzzle had been approximately four feet away and estimated that the shotgun pellets had

entered Joyce’s torso “downward at 25 to 30 degrees [and] forward at approximately 15

degrees.” Finally, Graham presented to the jury a computer-generated depiction of the

shooting, relying on various measurements, which included Hayne’s estimates.4

¶7.    The State also presented two lay witnesses who had spoken with Parvin about the

shooting. Betty Hamblin testified that Parvin initially had told her Joyce had committed

suicide, but then he “changed his story” to the version he had given in his initial interview

with police. According to Hamblin, she and Parvin had been engaged in an extramarital

affair prior to and after the death of his wife, and she said that, after his wife’s death, Parvin




       4
         We note that there was some debate during the proceedings below about whether
Graham’s visual re-creation of the shooting was a simulation or an animation. Throughout
this opinion, we refer to the material as a depiction or re-creation.

                                                4
had asked her to marry him. She said that she later learned that Parvin had been seeing still

another woman, whom he eventually married instead.

¶8.    Parvin’s daughter, Amy Henley, also was a witness for the State and testified that,

when she was growing up, her father had emphasized the importance of gun safety to her and

her siblings, particularly with regard to ensuring that the gun remained unloaded.5 She said

that she was shocked when she heard what had happened and that it was “hard for me to

imagine my father, that’s been around guns all my life, would do something like that.”

Additionally, Henley testified that, on the day of her mother’s shooting, her father’s first

words to her were “[d]on’t worry about it. You’ll get over it.”

¶9.    After a five-day trial, a Monroe County jury convicted Parvin of murder, and he was

sentenced to life imprisonment. Aggrieved, Parvin appeals the judgment of conviction.

                                        The Issues

¶10.   Parvin asserts that, because the only evidence that substantially contradicted his

version of events was unreliable and inadmissible, this Court should reverse his conviction

and render a judgment of acquittal. While we agree with Parvin that the State’s case rested

in large part on inadmissible evidence, we do not find that he is entitled to a judgment of

acquittal based on the Weathersby rule. Because we reverse his conviction due to the




       5
        According to Parvin, the loaded gun was kept, against his wishes, in the living
quarters upstairs because of the frequency with which they were shooting animals. It
previously had been kept in a locked room off the carport.

                                             5
admission of highly speculative and prejudicial evidence, we do not address his assignments

of error related to certain jury instructions.

                                                 I.

¶11.   Parvin argues that the computer-generated depiction of the shooting should have been

excluded as scientifically unreliable, because it was based largely on Dr. Hayne’s estimated

measurements regarding distances at the scene and pellet trajectories and because it was

created despite unknown variables (e.g., Joyce’s position).6 Parvin also argues that Hayne’s

measurements were scientifically unreliable because they were not based on sufficient data,

and because they were outside the scope of a forensic pathologist’s expertise and function.

To emphasize his point, Parvin correctly notes that the testimony of the State’s firearms

expert substantially contradicted that of Dr. Hayne.

                    Standard of Review and Pertinent Legal Standards

¶12.   On appeal, we review errors in the admission of evidence, including expert testimony

and demonstrative evidence, for an abuse of discretion. See, e.g., Bishop v. State, 982 So.

2d 371, 380 (Miss. 2008) (standard of review for expert testimony); Lewis v. State, 725 So.

2d 183, 189 (Miss. 1998) (standard of review for demonstrative evidence). Under this

standard, we will reverse a trial court’s ruling if we find it to be “arbitrary and clearly

erroneous.” Bishop, 982 So. 2d at 380.




       6
       Dr. Hayne never visited the shooting scene, and the record does not reflect that he
ever saw the shotgun, except for his seeing it in the courtroom during the trial.

                                                 6
¶13.   The legal standard governing expert testimony is found in Mississippi Rule of

Evidence 702. The Rule provides that a properly qualified witness may testify “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.” In interpreting Rule 702, this

Court has looked to the standards applied by the federal courts, most notably Daubert and

Kumho Tire. See Miss. Transp. Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003)

(discussing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.

Ed. 2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143

L. Ed. 2d 238 (1999)). A so-called Daubert analysis is flexible, and the factors considered

by the trial court will depend on the particular circumstances of the case. McLemore, 863

So. 2d at 37 (citing Daubert, 509 U.S. at 594; Kumho Tire, 526 U.S. at 150-51).

Nevertheless, whatever the factors considered by the trial court, “self-proclaimed accuracy

by an expert [is] an insufficient measure of reliability.” Id. (citing Kumho Tire, 526 U.S.

at 157)).

¶14.   Additionally, “the opinion of an expert witness must be stated with reasonable

certainty, given the state of knowledge in the field in which the expert is qualified.” West

v. State, 553 So. 2d 8, 20 (Miss. 1989) (citations omitted). In other words, these opinions

“must rise above mere speculation.” Williams v. State, 35 So. 3d 480, 486 (Miss. 2010)

(quoting Goforth v. City of Ridgeland, 603 So. 2d 323, 329 (Miss. 1992)). “[I]ndefinite”

expert opinions, or those “expressed in terms of mere possibilities,” are not admissible.

                                               7
West, 553 So. 2d at 20 (citing Scott County Co-op v. Brown, 187 So. 2d 321, 325-26 (Miss.

1966); Gen. Benevolent Assoc. v. Fowler, 210 Miss. 578, 589, 50 So. 2d 137, 142 (1951)).

For example, we have held that an expert’s offering a “reasonable hypothesis” was

insufficient, explaining that “[e]xpert testimony should be made of sterner stuff.” Goforth,

603 So. 2d at 329.

                                      Procedural Bar

¶15.   As an initial matter, the State argues that the issue of the reliability of Dr. Hayne’s

estimated measurements is procedurally barred because Parvin failed to make a

contemporaneous objection at trial. However, when a party files a motion in limine to

exclude the evidence, or has otherwise objected to its admission, and the objection is

overruled, the party may try the case on the assumption that the court’s prior ruling will

stand. Goff v. State, 14 So. 3d 625, 640 (Miss. 2009) (citing Kettle v. State, 641 So. 2d 746,

748 (Miss. 1994)); Jones v. State, 461 So. 2d 686, 702 (Miss. 1984).

¶16.   Well before trial, counsel for Parvin filed a motion in limine to exclude various

aspects of anticipated evidence, including Graham’s reconstruction and any testimony from

Dr. Hayne. We recognize that this motion was very general in nature, and Parvin’s attorney

did not request a pretrial Daubert hearing with regard to Hayne. However, after the trial

court had held a hearing and overruled the motion with respect to Graham, Parvin filed a very

detailed pro se motion attacking the credibility of the distance and trajectory estimates in

Hayne’s autopsy report. In that motion, Parvin maintained that the muzzle-to-target distance

and the shot trajectories provided in Hayne’s autopsy report were made “without comment,

                                              8
explanation, or support,” and none of these measurements could be “determined by the

autopsy report or any of the related scientific tests.” Parvin attached to his motion the

autopsy report, Hathcock’s reports, prints of Graham’s computer-generated presentation, and

Graham’s written report describing what Graham termed his “best explanation of events.”

Moreover, Parvin’s motion cited specific portions of these exhibits to support his argument

that the autopsy’s estimates were unreliable.

¶17.   Not long afterward, Parvin wrote a letter to the trial judge, filed in the circuit clerk’s

papers, requesting a hearing regarding Dr. Hayne’s opinions. According to his letter, Parvin

was having difficulty contacting his attorneys and feared that his motion would not be heard

before trial. Parvin wrote, “[t]o let Hayne testify at trial without the defense having the

opportunity to question him without the jury would be unfair to the defense.”

¶18.   Parvin’s motion and request for a hearing remained unanswered until the morning of

trial. Before the jury selection, the trial judge addressed outstanding motions, including

Parvin’s pro se motion. Without hearing argument, the court explicitly denied his motion

to exclude the evidence, stating that “[a]ll of these matters are arguments that the defense can

raise on cross-examination,” and Parvin’s assertions simply “go to the weight of the evidence

and the credibility of the witnesses.”

¶19.   Lastly, Parvin himself attempted to object during Dr. Hayne’s testimony, but was not

allowed to do so. While his attorney was cross-examining Hayne about the accuracy of the

autopsy, the following exchange occurred:

       Parvin:        Your Honor, I am concerned that this expert –

                                                9
       Court:         I am concerned, sir – if you have anything to say to the Court,
                      you direct it through your attorney. Now, [defense counsel],
                      take him out into the hallway and explain things.

When Parvin and his attorney returned, the trial judge told defense counsel to “inform

[Parvin] that if he has any remarks to make to the Court, that he make them to you and you

will make them to the Court.”

¶20.   The trial court was presented with this issue again, when, after Hayne was dismissed,

Parvin’s attorney moved to strike his testimony as speculative and inflammatory.

Additionally, the reliability of Hayne’s testimony was reasserted, in detail, in Parvin’s pro

se motion for a new trial and in an amended motion for a new trial filed by his newly-

retained appellate counsel. Both motions were considered and denied by the trial court.

¶21.   Given the numerous attempts to exclude Dr. Hayne’s testimony, we cannot agree with

the State that the issue is procedurally barred. The trial judge was given several opportunities

to consider the reliability of the autopsy report, and he rejected each one.

                The Pathologist’s Distance and Trajectory Measurements

¶22.   Dr. Hayne’s autopsy report listed Joyce Parvin’s cause of death as a “shotgun wound

of the right flank, distant (approximately 4 feet).” The report also concluded that the “angles

of trajectory [were] right to left, superior to inferior at approximately 25-30 degrees and

posterior to anterior at approximately 15 degrees.” It described the entrance wound as “ovoid

and cookie cutter,” and noted that there was gun powder tattooing on the victim’s face, her

left armpit, and in the bend of her left elbow.




                                              10
¶23.   At trial, Hayne testified that the victim had suffered a “near contact wound,” but

maintained that the distance from the muzzle to the victim was “approximately four feet.”

He testified that this conclusion was based on the appearance of the entrance wound and the

presence of gunpowder “tattooing.” Although Dr. Hayne said that he did not know what type

of gun was used, his “impression” was that a 12-gauge shotgun, with a bore of approximately

three-fourths of an inch, had caused the injury. He further testified at trial, that when fired,

“individual pellet strikes start appearing after four feet.” This pronouncement was not

limited to any particular type, make, or model of shotgun, including the one that inflicted the

fatal wound, and neither was it restricted to any kind of barrel choke or length, or type of

ammunition.7 According to Hayne, he was able to discern from the “cookie cutter” shape of

the wound that the shot pellets were “right on the verge of separating,” thus indicating to him

that the muzzle of the gun had been approximately four feet from the victim when the fatal

shot was fired. Notably, the autopsy report did not include his conjectures regarding the

measurement of the shotgun bore, or his opinion that the pellets were “right on the verge of

separating.”

¶24.   This testimony was substantially contradicted by Starks Hathcock, the State’s firearms

expert, who actually had tested the gun in question but was unable to establish a conclusive

shot distance. Hathcock was qualified as an expert “in the field of forensic science,




       7
         It is not suggested that Dr. Hayne should have been testifying about such variables,
given that he was neither tendered, qualified, nor accepted as an expert on firearms,
ballistics, ammunition, or crime-scene investigation.

                                              11
particularly in firearm and toolmark determinations, and also qualified in the subfield of

distance determination, that is, determining distances from the muzzle of a gun to a victim

at the time of a shooting.” Hathcock explained that, following established and widely

accepted testing procedures, he test fired Parvin’s gun at various distances and then

compared the patterns created in the test cloth and cardboard to the pattern on the victim’s

shirt. Throughout his testimony, Hathcock used the term “fliers” to describe individual

pellets which had separated from “the main mass of shot.” Based on his test shots, Hathcock

noted that, at four feet, fliers consistently were present, but it was also likely that fliers would

appear at anywhere from three to five feet. He also testified that he had observed no fliers

in the shirt Joyce Parvin was wearing. According to Hathcock, the testing procedure

complied with the generally accepted methods used by forensic firearms experts, and he

identified authoritative publications which supported and explained these methodologies.

¶25.   As for Hayne’s estimated trajectory estimates (25 to 30 degrees downward and 15

degrees forward), he explained his methodology as follows: “[Y]ou place an individual in

what’s called the anatomically correct position, that is an individual standing, legs together,

hands to the side, palms forward, face forward, and then you measure everything in

relationship to that posture.” When asked to elaborate, Dr. Hayne said he had used a

protractor, which he placed at the wound site, to determine the angles. This testimony was

compromised, if not contradicted, on cross-examination, when he testified that, unlike a

single bullet, the individual pellets would diverge upon impact and that it would be

impossible to give the “wound trajectory” for each pellet. Additionally, he said that he

                                                12
sometimes places rods in a wound track to determine trajectory; but, in his opinion, “this case

was straightforward.”

¶26.   Over the defendant’s objection, the prosecutor elicited testimony from Dr. Hayne that

the 25-to-30 degree downward trajectory was consistent with the barrel’s pointing downward

toward the victim in a seated or standing position. During this questioning, the prosecutor

was holding the shotgun in a firing position, with the gun’s butt against his shoulder.

Defense counsel argued that this testimony was similar to that given by Dr. Hayne in another

murder case, testimony that this Court found to be speculative and improper. Edmonds v.

State, 955 So. 2d 787, 792-93 (Miss. 2007). The trial court overruled the objection and

refused to strike the testimony, finding Edmonds distinguishable. At the conclusion of his

direct testimony, the prosecutor asked Dr. Hayne whether he had “testified to [his]

approximate distance and angles in this case within a reasonable degree of medical

certainty,” to which he responded “yes.”

                  The Computer-Generated Re-creation of the Shooting

¶27.   Graham, accepted as an expert in crime-scene reconstruction, testified that he had

used computer software to reconstruct the scene of the incident digitally or to “pose a

hypothesis or an idea as to how maybe the incident happened.” According to Graham, the

software would create three-dimensional images of human figures and would position those

figures based on data he provided. He testified that he used the distance and trajectory

estimates from Dr. Hayne’s autopsy report, the gun’s measurements, Parvin’s height as listed

on his driver’s license, and other measurements taken by the investigating officers at the

                                              13
Parvin home. He did not, however, use any information from Hathcock. Additionally,

although there were no measurements regarding Joyce’s position after she had been shot,

Graham concluded that “the best approximation of the victim’s position is consistent with

her being seated in the office type chair, body oriented in a southwesterly direction

approximately centered on the desk, in a general turned and facing right position, leaning

approximately seven degrees to the right.”

¶28.   This information was used to recreate images depicting Graham’s theory of how Joyce

was shot. Graham described this theory as “the best approximation based upon all of the data

and how all of the angles and all of the measurements fit together into one scenario,” and that

all the possible scenarios were consistent with the State’s theory that Parvin had stood over

his wife with the butt of the gun resting on his shoulder. This computer-generated model of

Graham’s “best possible scenario” consisted of several three-dimensional images showing

Graham’s theory of the shooting from various vantage points. These pictures, displayed to

the jury during Graham’s testimony, showed a woman seated in a chair with her face turned

toward the muzzle of a gun. The gun was depicted as being held by a man, standing above

the woman and looking down at her with the butt of the gun against his shoulder.

                       The Legal Validity of these Expert Opinions

¶29.   After a thorough review of the record, we find that the measurements provided by

Hayne and the shooting’s depiction by Graham fell woefully short of the requirements for

admissibility. M.R.E. 702. When asked to explain how he had calculated his distance and

trajectory measurements, Hayne did not cite any scientific principle or method. He asserted

                                              14
that he could measure the trajectory of the shotgun pellets using only his naked-eye

observations of the entrance wound and a protractor, despite his testimony that it would be

“impossible” to track the fired pellets. The only explanation offered was his assertion that

“this case was straightforward.”

¶30.   As for the distance determination, Hayne claimed to know that the pellets were “right

on the verge of separating,” and made an unsupported statement that, when fired, “individual

pellet strikes start appearing after four feet,” no matter the type of ammunition or shotgun.

Despite the conflicting testimony from the State’s firearms expert that a conclusive muzzle-

to-wound distance could not be determined, Hayne claimed to have been able to measure the

distance by viewing the wound and the victim’s clothing. In sum, the only scientific method

or principle appearing in the record was the ipse dixit or self-proclaimed accuracy of Hayne.

Because the distance and trajectory measurements were based upon the subjective beliefs and

speculation of the testifying witness, his unsupported opinions should have been excluded.

Dedeaux Utility Co., Inc. v. City of Gulfport, 63 So. 3d 514, 530-31 (Miss. 2011) (citing

Gulf South Pipeline Co. v. Pitre, 35 So. 3d 494, 499 (Miss. 2010); Watts v. Radiator

Specialty Co., 990 So. 2d 143, 149 (Miss. 2008); Edmonds v. State, 955 So. 2d 787, 792

(Miss. 2007); McLemore, 863 So. 2d at 36).

¶31.   Likewise, Graham’s graphic depiction of relevant, disputed events was inherently

tainted because it relied on the unsupported and admittedly “approximate” measurements

from the autopsy as well as Graham’s own “best approximation of the victim’s position.”

Graham testified with no degree of certainty regarding the accuracy of his theory as to how

                                             15
the shooting occurred, and he merely asserted that it was his “best approximation” of “a

hypothesis or an idea of how maybe the incident happened.” See West, 553 So. 2d at 20

(expert opinions are not admissible if “expressed in terms of mere possibilities”).

¶32.     This “possible scenario” of how the shooting had occurred was presented to the jury

by means of computer-generated images accompanied by Graham’s testimonial commentary.

The jury saw a graphic depiction of the State’s theory of the alleged homicide in which a man

was standing over a woman aiming a shotgun at her face. The male figure was looking down

at the woman, with the butt of the gun on his shoulder, as she stared into its muzzle. Dr.

Hayne gave credence to Graham’s depiction of the shooting when, as the prosecutor held the

weapon and aimed it downward, he opined that the autopsy measurements were consistent

with the defendant’s standing and aiming the gun at his wife.

¶33.     As with other expert opinions, computer-generated re-creations which graphically

depict disputed evidence “must be based on scientific, identifiable, and objective facts.” Cox

v. State, 849 So. 2d 1257, 1273-74 (Miss. 2003) (emphasis in original) (citing Clark v.

Cantrell, 339 S.C. 369, 529 S.E.2d 528 (2000); State v. Farner, 66 S.W.3d 188 (Tenn.

2001); Pierce v. State, 718 So. 2d 806 (Fla. Dist. Ct. App.1997)). Furthermore, any

computer animation that is not based on accurate data or “actual, physical measurements”

from the scene of the incident is mere speculation, Cox, 849 So. 2d at 1273, for expert

opinions are not admissible if “expressed in terms of mere possibilities,” West, 553 So. 2d

at 20.    In the present case, the speculative “expert” opinions and the accompanying

computer-generated depictions of a “possible” account of the shooting should not have been

                                             16
placed before the jury. West, 553 So. 2d at 20. As this constituted the main evidence utilized

to undermine Parvin’s defense, reversal is required.

                                              II.

¶34.   Without the inadmissible expert opinions to establish that Parvin intentionally had

shot his wife, he argues that he is entitled to an acquittal under Weathersby v. State, 265

Miss. 207, 209, 147 So. 481, 482 (1933) . In 1933, the Mississippi Supreme Court declared:

       [W]here the defendant or the defendant’s witnesses are the only eyewitnesses
       to the homicide, their version, if reasonable, must be accepted as true, unless
       substantially contradicted in material particulars by a credible witness or
       witnesses for the state, or by the physical facts or by the facts of common
       knowledge.

Id. If the Weathersby rule applies “and the defendant’s version affords an absolute legal

defense, the defendant is entitled to a directed verdict of acquittal.” Green v. State, 631 So.

2d 167, 174 (Miss. 1994) (citing Blanks v. State, 547 So. 2d 29, 33 (Miss. 1989)). There are,

however, limitations upon the familiar Weathersby rule. For example, it is inapplicable

when the defendant’s “conduct and statements following the killing are inconsistent with his

version of the events as recounted at trial.” Green, 631 So. 2d at 174 (citing Blanks, 547 So.

2d at 33).

¶35.   We find that Parvin cannot successfully invoke the Weathersby rule, given the

testimony by his mistress. As recounted above, she testified that Parvin initially told her that

Joyce had committed suicide. Sometime later, he admitted that he had lied about the manner

of his wife’s death and told his paramour that the shooting had been an accident. Because

Parvin’s claim that his wife had taken her own life contradicted his assertion that he had shot

                                              17
her accidentally, we find that Parvin is not entitled to a judgment of acquittal under

Weathersby.

                                         Conclusion

¶36.   We hold that the circuit court erred in allowing Graham’s reconstruction of the

shooting to be shown to the jury, because its creation relied on the pathologist’s

approximation of relevant angles and distances and failed to take into account the testing

performed by the firearms examiner. The State failed to demonstrate the scientific reliability

of this speculative testimony, which was highly prejudicial to Parvin’s defense. As this

testimony and the computer-generated images illustrating it comprised a very significant part

of the State’s case, the conviction must be reversed. Additionally, we find that the defendant

is not entitled to an acquittal based on the Weathersby rule due to his highly inconsistent

statements following his wife’s death. Accordingly, the defendant’s murder conviction and

sentence are reversed, and the case is remanded to the Circuit Court of Monroe County for

a new trial consistent with this decision.

¶37.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, PIERCE,
KING AND COLEMAN, JJ., CONCUR. CHANDLER, J., NOT PARTICIPATING.




                                             18
