                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2012-CT-01066-SCT

MICHAEL T. ANDERSON a/k/a MICHAEL
ANDERSON a/k/a MICHAEL THERONE
ANDERSON

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         03/30/2012
TRIAL JUDGE:                              HON. WINSTON L. KIDD
TRIAL COURT ATTORNEYS:                    SCOTT ROGILLIO
                                          BRAD HUTTO
                                          KIMALON CAMPBELL
                                          DARLA PALMER
COURT FROM WHICH APPEALED:                CIRCUIT COURT OF THE FIRST JUDICIAL
                                          DISTRICT OF HINDS COUNTY
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: MOLLIE MARIE McMILLIN
                                              GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                        ROBERT SHULER SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 11/19/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Michael Anderson was charged with deliberate-design murder, aggravated assault, and

being a felon in possession of a firearm. His sole theory of defense was self-defense. Over

Anderson’s objection, the prosecution was granted its requested flight instruction. Anderson
was convicted on all three counts and received three consecutive life sentences. The Court

of Appeals affirmed the convictions and sentences.1 On petition for certiorari, Anderson

argues that the trial court erred by giving the flight instruction. Because no evidence was

introduced to support that Anderson’s flight was caused by something other than

consciousness of guilt, e.g., to avoid retaliation, the trial court did not err. The judgments of

the Court of Appeals and the Circuit Court of the First Judicial District of Hinds County are

affirmed.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Late one night, Sylvester Coleman, Drystle Sanders, Ernestine Coleman, Wysia

Sanders, and Travis Brown2 went to the Triple-A Store in Jackson. Sylvester and Drystle

went inside while the others stayed in the car. Anderson entered the store soon after.

¶3.    According to Anderson, Drystle became agitated when Anderson began talking about

the women in the car. Drystle left the store. When Anderson later came out, Drystle struck

him in the head. The two began “tussling.” Anderson testified that, during the struggle, he

heard “metal against metal” of a handgun falling onto the ground. He picked it up and shot

Drystle several times. No one else heard the conversation, if any, that took place inside the

store, and while no one else saw how the “tussle” began, multiple witnesses described

subsequent events.



       1
        Anderson v. State, No. 2012-KA-01066-COA, 2014 WL 5333986 (Miss. Ct. App.
Oct. 21, 2014).
       2
        Ernestine is Sylvester’s mother, Wysia is Drystle’s mother, and Travis is Sylvester’s
step-brother.

                                               2
¶4.    Ernestine testified she heard shots and looked up in the parking lot to see Drystle

falling. Sylvester came out of the store and took off running as Ernestine, who was driving

the car, pulled out of the parking lot, following her son. Anderson was still in the parking lot

when they left. Sylvester testified that, when he came out of the store, Anderson started

shooting at him. Sylvester took off running, yelling at his mother to get out of the parking

lot. She pulled away in the car,3 leaving Anderson in the lot. Travis testified that he saw

Drystle and Anderson fighting. Travis looked down to try to unlock the doors, heard shots,

looked up, and saw Drystle falling. Travis saw Anderson firing at Sylvester as Sylvester

exited the store. Sylvester ran as Ernestine cranked the car and left behind him, leaving

Anderson in the lot. All three testified they saw Anderson later walking down Ridgeway

Street away from the store as they drove up the street, back toward the store after making a

block. Anderson fired at their car as they passed. Wysia’s testimony was essentially the same

as the other occupants in the car. All four testified that only Anderson had a gun.

¶5.    In addition, two unrelated and disinterested witnesses, off-duty Jackson Police

Department Investigator Garland Ward and Stephen Johnson, witnessed the murder.

Investigator Ward was leaving an establishment next door to the store when he heard a

commotion in the nearby lot. As he approached, he heard two shots. He saw Drystle fall, and

he saw Anderson stand over Drystle—who was lying on the ground—and aim the gun at him.

Ward saw Sylvester running from the store yelling at the occupants of the car to “get down.”

Ward, off-duty and without a weapon, was calling an on-duty investigator when he heard



       3
        Sylvester testified that the car was white.

                                               3
more shots. He looked back at the scene and saw Anderson walking away from the store and

down the road.

¶6.    Stephen Johnson was driving past the store when he saw Drystle lying on the ground.

As Johnson pulled into the lot, he saw Anderson stand over Drystle and fire two more shots.

The first misfired, but the State’s expert pathologist identified the second as the fatal shot.4

Johnson testified no one else was in the parking lot at the time except for Johnson, Anderson,

and Drystle.5 Johnson stated that Anderson walked off with the gun. As he was leaving,

Johnson heard more shots coming from down Ridgeway.

¶7.    Anderson was indicted as a habitual offender under Mississippi Code Section 99-19-

83 on three felony counts: deliberate-design murder for the death of Drystle Sanders,

aggravated assault for shooting at Sylvester Coleman, and being a felon in possession of a

firearm. Anderson’s sole theory of defense was self-defense. He was granted a self-defense

instruction but was denied an imperfect self-defense instruction in regard to the aggravated-

assault charge. The trial court granted the State’s request that the jury be instructed that self-

defense cannot be a defense to felon in possession of a firearm. Over a defense objection, the

court granted the State’s flight instruction.

¶8.    The jury convicted Anderson of all three counts. He was sentenced as a habitual

offender to three consecutive life sentences without the possibility of parole. He appealed,


       4
         The pathologist also testified the initial shots to the lower body were not fatal. The
shot to the chest was fatal, and the trajectory was consistent with the victim being shot lying
down, facing up. The shot to the chest was consistent with being shot at close range. The
shots to the lower body could not have happened while the victim was on his back.
       5
        Johnson testified a dark-colored car was leaving the lot as Johnson was pulling in.

                                                4
arguing the trial court erred by (1) giving the flight instruction, (2) instructing the jury that

self-defense is not a defense to felon in possession of a firearm, and (3) excluding evidence

of Drystle’s intoxication. The Court of Appeals affirmed. Anderson filed a petition for writ

of certiorari, which we granted on one issue:

       Whether the trial court erred by giving a flight instruction when
       Anderson claimed self-defense.

¶9.    Jury instructions are reviewed for an abuse of discretion. Drummer v. State, 167 So.

3d 1180, 1186 (Miss. 2015).

¶10.   Anderson argues a flight instruction cannot be given if the defendant claims self-

defense. However, the assertion of self-defense does not, ipso jure, preclude a trial court

from granting a flight instruction. A flight instruction may be given if “that flight is

unexplained and somehow probative of guilt or guilty knowledge.” Reynolds v. State, 658

So. 2d 852, 856 (Miss. 1995). See also Pannell v. State, 455 So. 2d 785, 788 (Miss. 1984).6

Probative is defined as “tending or serving to prove.” Brian A. Garner, A Dictionary of

Modern Legal Usage 694 (2nd ed. 2001). See also Probative, Black’s Law Dictionary (10th

ed. 2014) (“tending to prove or disprove”). Therefore, unexplained flight need only “tend to

prove” guilt or guilty knowledge to satisfy the Reynolds probative requirement.

       6
         Earlier this year, we affirmed the giving of a flight instruction and reaffirmed “the
two-part unexplained-and-probative test” used in Pannell. Drummer, 167 So. 3d at 1188.
We noted that “[i]ndeed, the law is entirely well settled that the flight of the accused is
competent evidence against him as having a tendency to establish his guilt.” Id. at 1189
(citing Allen v. United States, 164 U.S. 492, 499, 17 S. Ct. 154, 41 L. Ed. 528 (1896)).
Specifically, “the demeanor, acts, and conduct of the accused, at the time of and subsequent
to the crime are in fact relevant, admissible evidence.” Id. (citing Williams v. State, 667 So.
2d 15, 22 (Miss. 1996)). Conversely, we have reversed the giving of flight instructions for
various reasons; however none of these reasons is present here. See id.

                                               5
¶11.    A trial judge must first determine whether the evidence of flight is probative.

Drummer, 167 So. 3d at 1190 n.12. If the trial judge determines the evidence of flight is

probative, he sends the issue to the jury for appropriate weighing (“to prove or disprove”).

Id. If requested, the court may properly instruct the jury that flight, if found beyond a

reasonable doubt, is a circumstance from which an inference of guilt may be drawn and

caution the jury that it must consider all the evidence presented. See id. at 1189.

¶12.    Justice Kitchens’s dissent conflates the terms “presumption” and “inference,” yet this

Court clearly distinguishes the two:

        we consider the distinctive differences between “infer” and “presume.” “Infer”
        is defined as “to conclude from certain premises or evidence.” By this
        definition, a jury may not make an inference without evidence adduced at trial
        to support that inference. However, [the instruction at issue in Williams] did
        not use “infer” but instead used “presume,” which is defined as “to assume to
        be true without proof to the contrary.” “Assume” is analogous to “presume”
        and “stress[es] the arbitrary acceptance as true of something which has not yet
        been proved.

Williams v. State, 111 So. 3d 620, 625 (Miss. 2013) (internal citations omitted). We agree

the jury should never be told it can presume guilt; such would be “constitutionally

untenable.” See Dis. Op. ¶ 30. However, juries may be told they can infer guilt from

probative, unexplained flight. See Reynolds, 658 So. 2d at 856; Drummer, 167 So. 3d at

1188.

¶13.    Evidence of Anderson’s flight was offered. The trial court determined it was probative

and allowed the jury to consider it. The State requested a flight instruction. The trial court,

in its discretion, granted the instruction, informing the jury that if it found beyond a

reasonable doubt that Anderson had fled, it could infer “guilty knowledge or fear of arrest”

                                              6
from that flight. The court further instructed the jury that it must consider all the evidence

in determining the weight to assign to Anderson’s flight. A trial judge is in the best position

to determine whether the flight had probative value, sufficient to send the issue to the jury,

based on the evidence adduced at trial. See Houston v. State, 776 So. 2d 695, 697 (Miss.

2000) (“The trial judge saw these witnesses testify. Not only did he have the benefit of their

words, he alone among the judiciary observed their manner and demeanor. He was there on

the scene. He smelled the smoke of battle. He sensed the interpersonal dynamics between the

lawyers and the witnesses and himself. These are indispensable.”). We find no abuse of

discretion in his doing so.

¶14.   On multiple occasions, this Court has addressed the giving of flight instructions when

a defendant claims self-defense.7 In Banks, Banks was arguing with the victim’s cousin when

the victim interjected himself into the argument. Banks, 631 So. 2d at 749. Banks claimed

the victim approached him during the argument and drew a pistol. Id. Banks then stabbed

him. Id. The victim ran off with the pistol, the cousin threatened to kill Banks, and Banks

fled. Id. at 751. Furthermore, the cousin admitted at trial that he had threatened to kill Banks

after the stabbing. Id. Given the facts of that case, the Court found that a flight instruction

was improper. Evidence was adduced supporting Banks’s flight, which led the Banks court

to conclude: “[Banks] was leaving based on threats from [the victim’s cousin] and on the

alleged danger from the victim[.]” Id. In so finding, the Court stated:




       7
       Shumpert v. State, 935 So. 2d 962 (Miss. 2006); Tran v. State, 681 So. 2d 514 (Miss.
1996); Banks v. State, 631 So. 2d 748 (Miss. 1994).

                                               7
       A flight instruction will have particular prejudicial effect in a case where
       self-defense is argued. Where the person against whom self defense has been
       exercised is still alive and has the back up support of other persons, flight
       seems logical and necessary. In other words, in the present case it would seem
       to have been illogical for Banks not to run.

Id. (emphasis added).8

¶15.   Our decision in Shumpert evinces the obvious distinction between Banks and Tran

on the one hand (defendant claiming self-defense with evidence explaining his flight) and

Anderson on the other (defendant claiming self-defense but no evidence being adduced to

explain his flight). See Shumpert, 935 So. 2d at 970. In Shumpert, the defendant claimed

self-defense and claimed to have fled the scene to avoid retribution. Id. However, the

Shumpert court found that the trial court did not err in granting a flight instruction because

“flight was not explained by any reason other than consciousness of guilt.” Id. Although

Shumpert argued he fled to avoid being harmed by the victim, the trial court found a lack of

evidence to support flight9 (and this Court agreed);10 this is diametrically opposed to the



       8
        Two years after Banks, this Court held again that a flight instruction was not
warranted in a self-defense case because evidence was adduced that the defendant fled out
of fear of retribution. See Tran, 681 So. 2d at 519 (“Tran’s flight was explained by both
himself and his co-defendant—they were fleeing to avoid retribution from the friends of [the
victim].”). Tran’s claim of fear of retaliation was corroborated by his codefendant. Id.
       9
       A witness testified that the victim had not harmed Shumpert, and a weapon was not
found on the victim’s body. Shumpert, 935 So. 2d at 970.
       10
         In Shumpert, we recognized that Tran disapproved a flight instruction where self-
defense was asserted, pointing out that Tran and Banks apply when the defendant claims
self-defense and evidence is adduced that the defendant fled in fear of retaliation. Even
though Shumpert asserted self-defense, every justice then serving on this Court agreed that
the flight instruction was properly granted because “the flight was not explained by any
reason other than consciousness of guilt.” Id.

                                              8
Banks Court finding that flight was not only logical but necessary. See id.; Banks, 631 So.

2d at 751.

¶16.   We need only compare today’s facts to those in Banks and Shumpert to determine

which case controls today’s decision. Given the testimony in Banks, the Banks holding was

well-founded: a flight instruction should not be granted where the defendant claims self-

defense and “the person against whom self defense has been exercised is still alive and has

the back up support of other persons.” Id. Flight in such a situation seems logical and

necessary. However, the facts developed in Anderson’s case do not support the same result.

¶17.   Anderson’s facts are more akin to Shumpert, where a flight instruction was granted,

notwithstanding the defendant’s claim of self-defense. Anderson, like Shumpert, lacks

evidence to support a claim that his flight was caused by a fear of retaliation.

¶18.   The only similarity in Banks, Tran, and today’s case is that Anderson claimed self-

defense. No evidence was adduced that Anderson’s flight was “logical and necessary,” or

that he fled for any other reason unrelated to consciousness of guilt. See Banks, 631 So. 2d

at 751. An explanation for Anderson’s flight is nowhere to be found in the record before us.

The record reflects that no one other than Anderson was armed during or after the shooting.

The record reflects that no one threatened to retaliate. Certainly the victim could not have,

for he lay dying on the ground. The victim’s unarmed companions sped off in a car or took

off running as Anderson continued shooting toward Sylvester before Anderson himself fled

the scene. The record reflects, through the testimony of multiple witnesses, that Anderson

left the scene after Sylvester ran off and after the car drove away. Whereas “it would have



                                              9
been illogical for Banks not to run,” there was no reason for Anderson to run, except to avoid

apprehension by law enforcement, i.e., consciousness of guilt. See id.

¶19.   Finally, pertinent to our search for the truth, Anderson’s own testimony belies fear of

retaliation. No witness testified that anyone other than Anderson was armed after the murder.

With everyone gone and the victim lying on the sidewalk, Anderson testified he dropped the

gun and walked away.

¶20.   No different than Shumpert, the evidence presented in today’s case fails to explain

flight for any logical or necessary reason. While this Court found flight was logical and

necessary in Banks and Tran, Anderson’s flight, like Shumpert’s, was unexplained to the

trial judge and jury. As Anderson’s flight from the murder scene was unexplained, the State’s

requested flight instruction comports with our existing law.

                                      CONCLUSION

¶21.   Assuredly, flight instructions should not be granted where the defendant claims self-

defense and sufficient evidence is introduced which explains that the defendant’s flight was

caused by something other than a consciousness of guilt, e.g., to avoid retaliation. See

Shumpert, 935 So. 2d 962; Tran, 681 So. 2d 514; Banks, 631 So. 2d 748. The record before

us today offers no evidence that Anderson’s flight was to avoid retaliation. Thus the trial

court did not err in granting a flight instruction. The judgments of the trial court and the

Court of Appeals, including Anderson’s convictions and sentences, are affirmed.

¶22. THE JUDGMENTS OF THE COURT OF APPEALS AND THE CIRCUIT
COURT OF THE FIRST JUDICIAL DISTRICT OF HINDS COUNTY ARE
AFFIRMED. CONVICTIONS OF MURDER, AGGRAVATED ASSAULT AND
FELON IN POSSESSION OF A WEAPON AND SENTENCES FOR EACH OF LIFE,

                                             10
AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY OF PAROLE,
AFFIRMED. SENTENCES SHALL RUN CONSECUTIVELY.

     CHANDLER, PIERCE AND COLEMAN, JJ., CONCUR. LAMAR, J.,
CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN
OPINION. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY KITCHENS AND KING, JJ. KITCHENS, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J.,
AND KING, J.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶23.   If the law as it presently exists is to be applied to this case, I agree with Justice

Kitchens that a flight instruction was not proper. I write separately to express my view that

this Court should abolish flight instructions altogether.11

¶24.   Juries are instructed that they may draw reasonable inferences from the evidence,12

and attorneys—including prosecutors—may argue the inferences they believe the jurors

should draw.13 But, by giving a flight instruction, a trial judge places the imprimatur of the

court on a particular inference and effectively instructs the jury that “flight” is the functional

equivalent of guilt. With respect to the jury’s duty to draw inferences, the trial judge should

be neutral. Instead, by giving flight instructions, trial judges appear to favor the inference

favorable to the State. I believe this practice is inappropriate, and should cease.

       KITCHENS AND KING, JJ., JOIN THIS OPINION.


       11
         Drummer v. State, 167 So. 3d 1180, 1196–99 (Miss. 2015) (Kitchens, J.,
concurring in Part I and dissenting from Part II).
       12
            Flowers v. State, 158 So. 3d 1009, 1081–82 (Miss. 2014).
       13
        Pitchford v. State, 45 So. 3d 216, 234–35 (Miss. 2010); Goff v. State, 14 So. 3d
625, 654 (Miss. 2009) (quoting Bell v. State, 725 So. 2d 836, 851 (Miss. 1998)).

                                               11
       KITCHENS, JUSTICE, DISSENTING:

¶25.   Because the trial court erred by giving the jury a flight instruction, I respectfully

dissent.

¶26.   We will overturn a trial court’s giving of a jury instruction only when the trial court

has abused its discretion. Higgins v. State, 725 So. 2d 220, 223 (¶ 15) (Miss. 1998). Jury

instructions must be read “as a whole with no one instruction taken out of context.” Id. at 223

(¶ 16) (quoting Jackson v. State, 645 So. 2d 921, 924 (Miss. 1994)).

¶27.   The flight instruction at issue in this appeal says:

       “Flight” is a circumstance from which guilty knowledge and/or fear of arrest
       may be inferred. If you believe from the evidence in this case beyond a
       reasonable doubt that . . . [Anderson] did flee or go into hiding, such flight or
       hiding is to be considered in connection with all other evidence in this case.
       You will determine from all the facts whether such flight or hiding was from
       a conscious sense of guilt or whether it was caused by other things and give it
       such weight as you think it is entitled to in determining the guilt or innocence
       of [Anderson].

¶28.   Over time, this Court has narrowed the circumstances under which the State may be

granted a flight instruction. We have held that prosecutors may be given a flight instruction

only if “that flight is unexplained and somehow probative of guilt or guilty knowledge.”

Reynolds v. State, 658 So. 2d 852, 856 (Miss.1995) (emphasis added). In this case, the flight

was neither unexplained nor probative of guilt or guilty knowledge.

       A.     The flight of the accused in this case can be explained by motivations
              other than guilt or guilty knowledge.

¶29.   The majority declares that the flight instruction in this case was appropriate because

there was no explanation for Michael Anderson’s flight other than his guilty conscience.



                                              12
However, this Court needs but to look to the facts of the case, as presented by the State, to

discern that Anderson’s flight was explained because he had reason to fear retaliation.

During the course of the tussle between Anderson and Drystle Sanders, four of Drystle

Sanders’s friends and family members were in the immediate vicinity: Wysia Sanders

(Drystle Sanders’s mother), Ernestine Coleman, Sylvester Coleman, and Travis Brown.

Anderson testified that he was scared that men had been sent to kill him in a hit. After

shooting Drystle Sanders, Anderson turned and fired a hand gun at Sylvester Coleman, who

was standing a few feet away at the entrance of the Triple-A store. Almost simultaneously,

Sylvester Coleman and Anderson left the parking lot, heading in opposite directions. Only

after these two men had departed, Ernestine Coleman drove away from the Triple-A store to

look for Sylvester Coleman. While driving back to the store, her car passed Anderson, and

Anderson fired shots toward the car. That Anderson shot in the direction of Drystle Sanders’s

friends and family members when he passed them indicates that he regarded them as a threat.

After all, he had just shot Drystle Sanders; and there is no evidence in the record that

Anderson, before or after his physical struggle with Drystle Sanders, fired at anyone other

than those connected to Drystle Sanders. The majority’s position, that Anderson had no

reason to fear violent retaliation from four people closely tied to the victim who were in the

immediate vicinity of the homicide, strains credulity. By the majority’s own reasoning, the

accused merely must be placed in fear of retaliation. It is not necessary that he become a

victim of retaliation to give rise to a plausible explanation for his flight. That the allies of

Drystle Sanders abstained from retaliation against Coleman does not mean that the State



                                              13
established that Anderson was not placed in fear of retaliation. Under the circumstances, it

would have been illogical for Anderson not to leave the scene.

¶30.   By ignoring the circumstances surrounding Anderson’s departure and by focusing

only upon the absence of an explanation for it in Anderson’s testimony, this Court violates

fundamental rights protected in both the United States and Mississippi Constitutions. U.S.

Const. amend. V (“No person . . . shall be compelled in any criminal case to be a witness

against himself.”); Miss. Const. art. 3, § 26 (“[The accused] shall not be compelled to give

evidence against himself.”). The majority opines that, “No evidence was adduced that

Anderson’s flight was ‘logical and necessary,’ or that he fled for any reason unrelated to

consciousness of guilt. Maj. Op. ¶ 18 (quoting Banks, 631 So. 2d at 751). An elementary

principle of criminal law is that every person charged with a criminal offense is presumed

innocent, and the defendant bears no burden of production or obligation to prove his own

innocence. Jones v. State, 920 So. 2d 465, 471 (Miss. 2006). Instead, “the prosecution

carries the burden of proving all elements of the charged offenses beyond a reasonable

doubt.” Id. The majority’s reasoning belies both this fundamental constitutional principle

and principles of logic. In the majority’s formulation, the State may request and be given a

jury instruction by which the jurors are charged by the judge to “infer guilt” from a

defendant’s flight, no matter the circumstances, as long as the defendant himself does not

produce evidence that explains away this farcical presumption of guilt. The majority’s

reasoning conflates the burdens of production and persuasion at trial and is constitutionally

untenable.



                                             14
       B.     Anderson’s flight proves nothing relevant to the question of guilt.

¶31.   Even if Anderson’s flight could be explained only in terms of the guilty knowledge

imputed to him, the flight in this case served no probative value. In Banks v. State, 631 So.

2d 748 (Miss. 1994), this Court directly addressed the probative value of flight evidence in

cases in which the defendant presents a theory of self defense. We held in that case that

“Where the defendant is arguing self-defense, a flight instruction should be automatically

ruled out and found to be of no probative value.” Id. at 751 (emphasis added); accord Tran

v. State, 681 So. 2d 514, 519 (Miss. 1996) (“Because Tran was arguing self-defense and the

jury heard the testimony on Tran’s flight, it was free to draw its own conclusions as to the

flight[’s] significance. Since it was clearly reversible error to grant such an instruction and

call undue attention to Tran’s flight, on remand the lower court should not give the flight

instruction.”). We reasoned that:

       A flight instruction will have particular prejudicial effect in a case where
       self-defense is argued. Where the person against whom self defense has been
       exercised is still alive and has the back up support of other persons, flight
       seems logical and necessary. In other words, in the present case it would seem
       to have been illogical for Banks not to run. To suggest and highlight, through
       the sanction of a court granted instruction, that the defendant’s flight was
       possibly an indication of guilt suggests that the court does not accept the
       self-defense argument.

Banks, 631 So. 2d at 751.

¶32.   Our holding in Banks was unequivocal: in self defense cases, a flight instruction

never is appropriate. See id. In cases in which the defendant claims self defense, the

defendant’s departure is in nowise probative and the jury should not be instructed to consider

this circumstance in deciding whether he or she is guilty.

                                              15
¶33.   Further, the majority provides nothing that identifies or even suggests the probative

value of Anderson’s flight in this case. Tellingly, although the majority pontificates the value

of deference to the trial court, it does not cite the trial court’s finding that the flight evidence

in this case would serve a probative purpose, a requisite finding for giving a flight instruction

to the jury. Of course, the reason for this is that the trial court did not make such a finding

and the prosecuting attorney in the case presented no argument regarding the probative value

of Anderson’s flight. The flight instruction was given to the jury after the following

exchange:

Defense Attorney:             Your honor, its my understanding that if there is a claim of self-
                              defense, then a flight instruction is not proper.

Prosecuting Attorney:         I disagree with that.

Defense Attorney:             Let me find the page for you.

Prosecuting Attorney:         Judge, my understanding of the law is that, on flight, that we
                              don’t get it if . . . the defendant says anything that’s reasonable
                              as to why he left other than to avoid arrest. And in this instance
                              he said he dropped the gun and he just walked away, and then
                              three days later they find him in a hotel because he says his
                              picture is on T.V. or something like that. The point is, he left.
                              There is no other reason for him to have left. He didn’t get on
                              the stand and say, look, if I didn’t leave they were going to kill
                              me. Well, as a matter of fact, we know that’s not what he
                              thought because he left the loaded weapon at the scene. He
                              didn’t say any reason whatsoever as to why he left. And since
                              there is not a reason, the jury has a right to believe the reason he
                              left was to avoid arrest.

Defense Attorney:             Your Honor, if you could give me just a moment. There is a case
                              when I was researching that spoke to that directly.

Prosecuting Attorney:         I may be wrong, but I think what she is referring to is in a case
                              where the defendant said, look, I had to get out of there because

                                                16
                        I just killed somebody, and if I stuck around I was afraid I was
                        going to get hurt.

Defense Attorney:       I’m sorry, I couldn’t hear you.

Prosecuting Attorney:   Well, what I’m saying is, I think the case you’re talking about is
                        one where there was self-defense, I believe, but what happened
                        was the defendant said if I didn’t get out of there, there was a
                        hostile crowd there and they were going to hurt me. He never
                        does say that. As a matter of fact, he said he walked away and
                        got out of there. And, matter of fact, not only was he not worried
                        about somebody hurting him, heck, he left a loaded weapon
                        behind for them to do so. He wasn’t worried about that. The
                        only reason he left was to not face the consequences. What he
                        did some three days later doesn’t matter.

Defense Attorney:       I don’t think it’s relevant about having left a weapon as to
                        whether or not he was fleeing . . . .

Prosecuting Attorney:   I mean, I think it’s pretty clear, Judge. We certainly get a flight
                        instruction under certain circumstances. Everybody agrees with
                        that[,] I think. Well, the only time we don’t get it [—]and they
                        do say it’s rare that we’re supposed to get it [—]is where there
                        is no other reason why he left. And he got on the stand and gave
                        absolutely no other reason why he left. As a matter of fact, he
                        said . . . the one reason he could have said was [“]I was afraid
                        I was going to be hurt if I stuck around. It was a hostile
                        crowd.[”] Well, heck, not only did he not worry about that, he
                        left a loaded weapon behind and walked away.

Defense Attorney:       Well, Your Honor, isn’t it also true that in the act of self-defense
                        a person doesn’t have to retreat . . . . [Y]ou can stand your
                        ground and you don’t have to retreat. So whether or not there is
                        flight is of no consequence because you are arguing I have acted
                        in self-defense.

The Court:              I think that[’s] two different instructions . . . .

Prosecuting Attorney:   It is.

Defense Attorney:       Yes, I recognize that it is two different instructions. But I was
                        thinking just in the logic of a defendant not having to retreat or

                                          17
                              not having to leave when someone attacks him, then he can act
                              to protect himself, then he’s justified in doing so. So whether he
                              leaves or not is of no consequence. But I would certainly have
                              to get the case that I had, Your Honor.

The Court:                    All right. I’ll review that one.

Here, there is no evidence in the record that the trial court found that Anderson’s flight had

probative value. The State argued that the trial court should give a flight instruction if the

State proved only that “there is no other reason why he left.” Thus, the majority defers to the

trial court’s judgment regarding the probative value of Anderson’s flight and the propriety

of the flight instruction in this case, when the State presented no argument in support of

whatever probative value, if any, the flight evidence might have.

¶34.   Thus, in affirming the trial court’s judgment, the majority not only misapplies Banks.

In addition, it tacitly holds that flight has probative value in every single criminal case,

regardless of the circumstances of the case, regardless of whether the State makes an

argument concerning the flight’s probative value, and regardless of whether the trial court

applies the correct test.

¶35.   The majority ignores this Court’s decision in Banks, eliminates the burden on the

State to prove that the defendant’s flight serves a probative value, and forces the defendant

to provide an explanation for his or her flight. Stated differently, under the majority’s

formulation, if a criminal defendant does not present evidence explaining the reason for his

or her flight, the State is entitled to an instruction authorizing the jury to infer the defendant’s

guilt, thereby revoking the constitutional rights of the presumption of innocence and the

right to remain silent. I therefore respectfully dissent.

                                                18
WALLER, C.J, DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.




                            19
