                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-KA-01973-SCT

THOMAS GLYNN FLYNT a/k/a THOMAS FLYNT
a/k/a THOMAS G. FLYNT

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         10/21/2013
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  PHILLIP BROADHEAD
                                          OFFICE OF STATE PUBLIC DEFENDER
                                          BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                        PATRICIA BURCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 10/22/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       COLEMAN, JUSTICE, FOR THE COURT:

¶1.    Thomas Flynt (“Tommy”) was convicted of manslaughter for the death of Teresa

Groover, his daughter’s girlfriend, after an altercation with Teresa. According to Tommy,

he and Teresa were struggling over the gun when it went off, and he does not remember

pulling the trigger. Several people were present during the altercation and at the location

where Teresa was shot, but no one saw Tommy shoot her. After the trial, Tommy filed a
motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The

trial judge denied the motion, and Tommy appeals.

                                    Factual Background

¶2.    On April 11, 2009, Tommy Flynt and his family went to a cousin’s house for a large

family Easter egg hunt. Tommy arrived around noon with his wife, Melissa, and their two

children, Charee, fourteen, and Charles, ten. Samantha Crabtree, a friend of Charee’s, was

with them as well. The adults were drinking, and Tommy admits to having two beers.

¶3.    At some point, Tommy’s older daughter, Krystal, arrived with her girlfriend, Teresa

Groover. According to Tommy, Krystal tried to pick a fight with him – she shoved him and

said she was grown now and could “whip his ass.” Tommy decided to leave because of

Krystal’s behavior; he does not remember what time they left, but he said it was still daylight.

Tommy, Melissa, Charles, Charee, and Samantha left the party and went to Tommy’s auto

repair shop. Tommy testified that, at the shop, Charles went out back to ride a four-wheeler,

Charee and Samantha listened to music in the car, and Tommy and Melissa went inside to

eat and watch television.

¶4.    Krystal and Teresa showed up at the shop some time later, and Krystal began trying

to provoke Tommy again. Tommy claims that Krystal “was in a drunken stupor state.” He

told Krystal to leave and escorted her outside. Krystal kicked the door open and came back

inside, again “leaning” on Tommy and saying things like “try me now.” Tommy claims that

he repeatedly asked Krystal to leave. Tommy testified that he was trying to ignore Krystal,

but she eventually pulled him off the barstool on which he was sitting, so he picked her up



                                               2
by the waist and attempted to carry her outside. As Tommy was carrying Krystal out the

door, Teresa walked in.

¶5.    Teresa separated Tommy and Krystal, pushing Krystal to the side and slamming

Tommy to the floor. Tommy admits that Teresa, a former Marine, was bigger and stronger

than he was. Tommy testified that Teresa pinned him to the ground with one hand on his

neck, strangling him. Tommy was able to get up, but Teresa took him down a second time.

Teresa choked him again, and Tommy claims that he was about to pass out when he heard

Krystal say, “Stop T, you’re killing him.” Tommy testified that Krystal pulled Teresa off

Tommy, and Tommy got to his feet. Tommy said he was choking and gasping for air when

Teresa got away from Krystal and charged him a third time. Tommy testified that he was

able to pry Teresa’s hand off his throat and roll out from under her.

¶6.    After escaping Teresa for the third time, Tommy testified that he needed something

to drink because he said his Adam’s apple was stuck in the bottom of his throat and he

needed something to loosen it up. He located a beer and drank it. Tommy told his wife to

call 911, but she informed him that the phone was broken. He had another phone in his

office, so he went to the office in search of a telephone to call the police. Tommy testified

that he kept a loaded gun in plain sight in his office. Tommy maintained that he was going

to get the telephone, not his gun.

¶7.    Tommy testified that Teresa charged into the office and attacked him again. He said

Teresa picked him up by the neck, lifted him off the ground, and had him against a shelf.

Tommy testified, “She was strangling me. . . . she was in a vicious mode. Slobber was



                                             3
coming out of her mouth, and she was telling me, ‘I’m going to kill you, you [expletive].’”

Tommy claimed that he does not know how the gun came into play; he does not remember

picking it up. He testified that he does not know if he picked it up or if Teresa picked it up,

but they both had their hands on the gun when it went off. He said that he does not

remember firing the gun, and he claims he did not even hear it go off. On cross-examination,

Tommy testified that Teresa was trying to point the gun at him and shoot him, and he was

trying to keep the gun away from himself. He said “it could have just as well been me shot.”

¶8.    Tommy testified that Teresa was still choking him and they were still struggling for

the gun when the police came in. He testified that the police pulled Teresa off him and took

the gun. Tommy said the police officers handcuffed both him and Teresa and made them lie

on the floor. He said Teresa was still trying get up and she was looking at him saying “I’m

going to kill you, you [expletive]” while she was handcuffed and lying on the floor.

¶9.    Others who were present that day recall the events somewhat differently. Charee

Flynt and Samantha Crabtree, both fourteen years old at the time, were the only eyewitnesses

to the altercation who testified. However, numerous police officers testified about what they

saw when they arrived at the scene after the shooting.

¶10.   Charee testified that all of the adults had been drinking that day; she would not say

that her father was intoxicated, just that he had consumed a couple of beers. However, in her

original statement, made after the incident when she was fourteen years old, she wrote that

Tommy was “very intoxicated.” She also wrote that Krystal was intoxicated. At trial, Charee

maintained that Krystal was drunk, saying she was slurring her words and staggering, but she



                                              4
said her father was not drunk. Charee agreed that her impression about being intoxicated had

changed since she was fourteen and made the statement. Charee said Teresa had been

drinking as well, but she was not acting drunk.

¶11.   Charee testified that Krystal and Teresa arrived at the shop, and Krystal started

arguing with Tommy and shoving him, and Tommy asked her to leave. At trial, Charee said

that Tommy was trying to push or pull Krystal toward the door. When presented with her

written statement, she admitted that Tommy had grabbed and pushed Krystal. Charee also

had written that Tommy choked Krystal, but she would not admit that at trial. Charee

testified that Tommy and Krystal started tussling, and Teresa walked in and separated them.

Charee testified that Teresa grabbed Tommy “by his throat and took him to the ground.”

¶12.   Charee testified that while Teresa had Tommy pinned down she was telling him to

“stay down and calm down.” Charee testified that Teresa let Tommy get up, but then she

“took him right back down.” However, in her original statement, Charee indicated only that

Tommy had been pinned down one time. Charee testified that, after Teresa released Tommy

the second time, Tommy asked for something to drink, then he went into his office. Charee

testified that Tommy was in the office for two or three minutes before Teresa went in; in her

written statement, she wrote that Tommy was in the office for five minutes before Teresa

followed him. Charee testified that Teresa walked into the office calmly. She heard someone

yell “gun.” Charee knew that Tommy kept a gun in his office, but she said it was unloaded

because she and her little brother were at the shop often. Charee testified that she could not




                                              5
see Tommy and Teresa after they went into the office, but, in her statement, Charee wrote

that Tommy did not appear to be in danger.

¶13.   At some point during the altercation, Krystal’s shirt and bra came off. Samantha

testified that Tommy tore them off when they were fighting, but Tommy said they came off

when Teresa pulled Krystal and Tommy apart. Samantha said Teresa came in and split up

Tommy and Krystal, putting Tommy in a chokehold until he agreed to stop fighting.

Samantha said Teresa was trying to get Tommy to calm down. Samantha testified that, when

Teresa let Tommy up, he went into his office. She said Teresa followed Tommy into his

office a few seconds later; she was not right behind him. Someone yelled, “He’s getting a

gun.” After they had been in the office a few seconds; the gun went off. Samantha testified

that she could see Tommy and Teresa standing in Tommy’s office; she could not hear what

they were saying, but Teresa did not seem to pose a threat to Tommy.

¶14.   According to the 911 call log, a call came in at 8:06 and the caller reported that her

husband had just shot her daughter. However, the call log indicated that the caller’s name

was Teresa Groover. When asked who called 911, Charee testified, “We did.” Officer

Blaine Stansell was one of the first officers to arrive at the scene. When he arrived, a lady

in the parking lot was talking on the telephone, and he assumed she was talking to 911.

Stansell entered the building, followed by three other officers. When he approached the

office, he saw a female sitting on top of a male. She was straddling him, and they were

struggling over a gun. Stansell identified the male as Tommy. He testified that they were

sitting on the right side of the couch, and Tommy’s back was against a shelf. Stansell



                                             6
testified that he took the gun away from Tommy, and then he noticed a second female on the

couch who was “unconscious and bleeding from the abdomen.”

¶15.   Sergeant Laron Smith arrived at the scene as well. When he arrived, several officers

were there already and several people were standing outside. Contrary to Officer Stansell’s

testimony, Sergeant Smith testified that he saw Tommy standing over Krystal and Teresa,

and he heard Tommy tell Krystal to move so he could “shoot the bitch again.” Sergeant

Smith said Tommy was pointing the gun at the two females and that Krystal was lying on top

of Teresa so Tommy would not be able to shoot her again. He testified that Tommy was

irate. After the officers got the gun away from Tommy, Krystal became more irate and tried

to attack Tommy, so Sergeant Smith restrained Krystal.

¶16.   Lieutenant Dale Bounds also responded to the scene. He initially went around to the

side of building, where the air conditioning window unit from the office was located. He

could not see into the office, but he could hear a male and a female screaming. Lieutenant

Bounds testified that the female said, “Why did you shoot her?” And the male responded,

“Move. I was going to shoot and kill her.” Lieutenant Bounds then followed Officer Stansell

and the others into the building and approached an interior window that looked into the

office. He saw a male and a female struggling over a gun and a second female lying on the

couch with a gunshot wound to the abdomen.

¶17.   Lieutenant Bounds testified that the male, whom he identified as Tommy, “had a gun

in his hand, and the female had her hands on his hands trying to keep him from shooting the

female again.” Lieutenant Bounds said Tommy had full control over the gun and it was



                                            7
pointed toward the female on the couch; when Tommy saw the officers come in, he rotated

the gun toward the officers. Lieutenant Bounds had his weapon drawn and was prepared to

shoot Tommy when Officer Stansell grabbed the gun from Tommy. Lieutenant Bounds

testified that Teresa was not handcuffed, as it is not normal to handcuff someone who is

critically injured. He said Teresa was just moaning when they came in. Teresa died from

the gunshot wound two days later.

¶18.   Photographs from the crime scene were entered into evidence through the testimony

of the crime scene investigator, Jeff Byrd. Byrd testified that a photograph of Teresa’s

gunshot wound showed stippling, indicating that the gun was fired at close range.

Investigator Byrd’s report indicated that, when officers arrived, Tommy was lying on top of

Teresa and Krystal was on top of both of them, and both Tommy and Teresa had their hands

on the gun. Byrd swabbed Tommy’s hands for gunshot residue. Testing revealed gunshot

residue on the front and back of both of Tommy’s hands.

¶19.   Forensic scientists from the Mississippi Crime Laboratory testified that Teresa did not

have drugs or alcohol in her system. However, the alcohol test was performed two days after

the incident, and the toxicologist testified that any alcohol that was in her system on the day

of the shooting would have been gone by then. The samples for the drug tests were drawn

on April 15, four days after the incident, and the toxicologist testified that samples taken

postmortem would indicate what was in the body at the time of death, but not two days

before death, which was the day of the shooting.




                                              8
¶20.   A firearms analyst testified that the bullet that was taken from the scene was fired

from the gun that was taken from the scene. A box of cartridges also was taken from the

scene, and it was consistent with the bullet that was fired. The gun in question, a Rossi .38

revolver, holds five rounds. The box of ammunition taken from the scene was open and

sitting on a table near the couch; it was missing five bullets. However, one shot had been

fired, and only three bullets remained in the gun. Tommy testified that he kept the gun at the

shop because he had a lot of cash on hand and it was a deterrent to robbers, but he testified

that he had not had to use the gun before. Based on Charee’s testimony that Tommy kept the

gun unloaded, as well as her testimony that he was in the office for two to five minutes

before Teresa went in, the State’s theory is that Tommy went into the office and hurriedly

loaded the gun, without loading it to capacity, with the intent to shoot Teresa.

¶21.   Dr. Thomas Deering performed the autopsy on Teresa. He testified that the bullet

entered her upper left abdomen and exited out the right flank. Based on the tight stipple

pattern and soot that was present, he testified that there would have been six inches or less

between the barrel of the gun and Teresa’s skin. Dr. Deering testified that Teresa also had

blunt trauma – scrapes and bruises that resulted from falling or getting hit with something

– on her knees, chin, and eyebrow. Dr. Deering concluded that the cause of death was

gunshot wound to the abdomen and the manner of death was homicide.

¶22.   The State paints the relationship between Tommy and Krystal as a tumultuous one,

also implying that Tommy had issues with Krystal’s and Teresa’s relationship. Tommy

admitted that Krystal had drug and alcohol problems and said that he had told her she needed



                                              9
to get help. But he said she was his daughter, he loved her, and he did not have anything

against her. Tommy also testified that he liked Teresa, he did not have any problems with

her, and she was a friend. He said Krystal was “a drughead and an alcoholic,” and Teresa

made sure that his grandchildren (presumably Krystal’s children) were taken care of.

¶23.   Tommy was indicted for murder in September 2009. Trial was held in October 2013,

more than four years after the shooting. The jury convicted Tommy of manslaughter. He

was sentenced to twenty years, with five years suspended and fifteen to serve. After the

trial, Tommy filed a motion for judgment notwithstanding the verdict (JNOV) or, in the

alternative, for a new trial. The motion was denied and Tommy appealed.

                                         Discussion

¶24.   On appeal, Tommy asserts that the trial court erred by denying his motion for JNOV

or for a new trial, because the evidence was legally insufficient to support the jury’s verdict

and the verdict was against the overwhelming weight of the evidence. He also asserts that

the jury could not have fully considered his self-defense claim. We apply an abuse-of-

discretion standard of review to post-trial motions, such as motions for JNOV or for a new

trial. Beasley v. State, 136 So. 3d 393, 401 (¶ 28) (Miss. 2014).

       I. Whether the trial court erred by denying the motion for JNOV.

¶25.   A motion for JNOV “challenges the legal sufficiency of the evidence.” Beasley, 136

So. 3d at 401 (¶ 29) (quoting Ivy v. State, 949 So. 2d 748, 751 (Miss. 2007)). The Court has

summarized the standard of review for the denial of a motion for JNOV as follows:

       “[T]he critical inquiry is whether the evidence shows ‘beyond a reasonable
       doubt that the accused committed the act charged, and that he did so under


                                              10
       such circumstances that every element of the offense existed[.]’” Id. (quoting
       Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). In reviewing the sufficiency
       of the evidence, this Court will view all evidence in the light most favorable
       to the verdict. Bush v. State, 895 So. 2d 836, 843 (Miss. 2005). If this Court
       determines that “reasonable fair-minded men in the exercise of impartial
       judgment might reach different conclusions on every element of the offense,”
       this Court will hold that the evidence was legally sufficient to support the
       jury’s verdict. Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985).

Beasley, 136 So. 3d at 402 (¶ 29). Tommy claims that the State’s evidence was not legally

sufficient to support the jury’s verdict.

¶26.   Tommy was charged with deliberate-design murder under Mississippi Code Section

97-3-19(1)(a), which provides: “The killing of a human being without the authority of law

by any means or in any manner . . . [w]hen done with deliberate design to effect the death of

the person killed, or of any human being, shall be first-degree murder[.]” Miss. Code Ann.

§ 97-3-19(1)(a) (Rev. 2014). The jury instruction on murder read:

       If you find from the evidence in this case beyond a reasonable doubt that:

       1. On or about April 11, 2009[,] in Forrest County, Mississippi;
       2. That Teresa Groover was a human being;
       3. That Thomas Flynt without authority of law did willfully and with malice
          aforethought kill Teresa Groover by shooting her with a gun, all with the
          deliberate design to effect the death of Teresa Groover;
       4. And not in self defense;

       then you shall find the defendant guilty as charged.

       If the prosecution has failed to prove any one or more of the above listed
       elements beyond a reasonable doubt, then you shall find Thomas Flynt not
       guilty of murder.




                                             11
The jury was instructed that if it found the defendant did not have the mental requirement to

commit murder, he could be guilty of the lesser-included offense of manslaughter. The

manslaughter instruction read:

       If the defendant killed another person with an actual, genuine belief that the
       killing was necessary in order to protect himself from great bodily harm or
       death, even though that belief was not reasonable under the circumstances,
       then the defendant did not have the mental requirement to commit murder.
       However, the killing may be manslaughter.

       If you find from the evidence that:

       1. On or about April 11, 2009, Thomas Flynt shot and killed Teresa Groover;
       2. Acting with an actual, genuine belief that the killing was necessary in order
          to protect himself from great bodily injury or death; but
       3. That belief was not reasonable under the circumstances;

       then you may find Thomas Flynt guilty of the lesser included offense of
       Manslaughter.




                                             12
The jury also was instructed as to manslaughter in the heat of passion1 and manslaughter

while the victim was engaged in trespass. Tommy asserted a theory of self-defense, and the

jury was given a self-defense instruction. He also argued that he was protected by the Castle

Doctrine because he was in his place of business, and the jury was instructed accordingly.

The jury found Tommy guilty of manslaughter.

¶27.   Tommy claims that no rational trier of fact could have found every element of murder

or manslaughter. We disagree. Mississippi Code Section 97-3-35 provides that the “killing

       1
           The jury instruction for manslaughter in the heat of passion read:

       If you find that the State has failed to prove any one or more of the essential
       elements of the crime charged, you must find the defendant not guilty of the
       charge. You will then proceed with your deliberation to decide whether the
       State has proved beyond a reasonable doubt all the elements of the lesser crime
       of Manslaughter while in the heat of passion.

       If you find from all the evidence in this case beyond a reasonable doubt that:

             1. Thomas Flynt on or about April 11, 2009, in Forrest County,
                Mississippi;
             2. That Teresa Groover was a human being; and
             3. That Thomas Flynt did kill Teresa Groover, without malice, but in the
                heat of passion by the use of a deadly weapon; and without authority of
                law and not necessary in self defense;

       then you shall find the defendant guilty of the lesser included offense of
       Manslaughter.

       If the State has failed to prove any one or more of the above listed elements
       beyond a reasonable doubt, then you shall find Thomas Flynt not guilty.

       If you find beyond a reasonable doubt from the evidence in this case that the
       defendant is guilty of the crime charged or a lesser crime as defined, but you
       have a reasonable doubt as to the crime of which the defendant is guilty, you
       must resolve the doubt in favor of the defendant and find him guilty of the
       lesser crime which is manslaughter.

                                               13
of a human being, without malice, in the heat of passion, but in a cruel or unusual manner,

or by the use of a dangerous weapon, without authority of law, and not in necessary self-

defense, shall be manslaughter.” Miss. Code Ann. § 97-3-35 (Rev. 2014) (emphasis added).

Section 97-3-35 “contemplates alternative theories to sustain a manslaughter conviction in

that the crime may be charged as a killing in ‘a cruel or unusual manner’ or ‘by use of a

deadly weapon.’” Booker v. State, 64 So. 3d 965, 971 (¶ 19) (Miss. 2011) (citations

omitted). In the instant case, “a cruel and unusual manner” has not been asserted, but

certainly a gun is a “dangerous weapon” and it is undisputed that Teresa died from a gunshot

wound. Thus, to convict Tommy of manslaughter, the State was required to prove that

Tommy: (1) killed Teresa; (2) with a dangerous weapon; (3) without authority of law; and

(4) not in necessary self-defense.

¶28.   The jury heard testimony from Tommy Flynt, Charee Flynt, Samantha Crabtree,

several officers who responded to the scene, the medical examiner, toxicologists, and a

firearms expert. Those who testified presented some contradictory testimony in their

accounts of the events that had occurred four years before the trial. However, although an

eyewitness did not see Tommy pull the trigger, sufficient evidence pointed to Tommy as the

shooter: Tommy admits to fighting with Teresa; testimony indicated that Teresa pinned

Tommy down at least twice; Tommy was able to escape from Teresa at least twice and walk

to his office; Tommy kept a gun in his office; Teresa was shot in Tommy’s office by

Tommy’s gun; Tommy had gunshot residue on both hands; Tommy had his hands on the gun

when police arrived; and two police officers testified that they heard Tommy say something



                                            14
about shooting Teresa and/or wanting to shoot her again.

¶29.   When reviewing a challenge to the sufficiency of the evidence, the Court must

determine “whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Byrd v. State, 158 So. 3d 1146, 1151 (¶ 14) (Miss. 2015) (quoting Bush

v. State, 895 So. 2d 836, 843 (Miss. 2005)). We hold that the evidence presented by the State

was legally sufficient to allow the jury to conclude, beyond a reasonable doubt, that Tommy

was guilty of manslaughter. The trial court’s denial of Tommy’s motion for JNOV was not

an abuse of discretion.

       II. Whether the trial court erred by denying the motion for a new trial.

¶30.   “A motion for a new trial challenges the weight of the evidence.” Beasley, 136 So.

3d at 403 (¶ 35). The Court has summarized the standard of review for the denial of a motion

for new trial as follows:

       In reviewing a challenge to the weight of the evidence, this Court will overturn
       a verdict only “when it is so contrary to the overwhelming weight of the
       evidence that to allow it to stand would sanction an unconscionable injustice.”
       Bush, 895 So. 2d at 844. See also Amiker v. Drugs for Less, Inc., 796 So. 2d
       942, 947 (Miss. 2000) (holding that a motion for a new trial is addressed to the
       discretion of the court and should be granted only “in exceptional cases in
       which the evidence preponderates heavily against the verdict.”). As with
       challenges to the sufficiency of the evidence, this Court views all evidence in
       the light most favorable to the verdict. Id. Factual disputes are properly
       resolved by a jury and do not mandate a new trial. Temple v. State, 498 So. 2d
       379, 382 (Miss. 1986).

Beasley, 136 So. 3d at 403 (¶ 35).

                                A. Weight of the Evidence



                                             15
¶31.   Tommy asserts that the overwhelming weight of the evidence does not support the

jury verdict, because no eyewitness testified that Tommy fired the shots, forensic evidence

did not tie Tommy to the shooting, and the police officers’ testimony was contradictory.

Tommy is correct that no one testified to seeing him fire the shot that killed Teresa.

However, as discussed above, sufficient evidence pointed to Tommy as the shooter.

Forensic evidence did, in fact, tie Tommy to the shooting – he had gunshot residue on the

front and back of both hands and the bullet was fired from his gun. There was no evidence

to indicate that Teresa fired the gun. Although Tommy is correct that some of the witness

testimony was contradictory, that is a challenge to the witnesses’ credibility, and determining

credibility of witnesses is a jury function. Id.

¶32.   The Beasley Court discussed a similar situation:

       While Beasley claims that the evidence presented by the State is
       “unsubstantiated” or “unconvincing,” his specific arguments merely challenge
       the credibility of the State’s witnesses. It is not for this Court to pass on the
       credibility of witnesses, for that is a jury function. Bond v. State, 249 Miss.
       352, 162 So. 2d 510, 512 (1964) (citation omitted). The jury in this case was
       presented with two opposing versions of the circumstances surrounding
       Wilkinson’s death. The State presented significant circumstantial evidence
       portraying Beasley as Wilkinson’s murderer. In response, Beasley took the
       stand in an attempt to rationalize the State’s damning evidence, and his
       testimony is the only evidence inconsistent with the jury’s verdict. The jury
       was free to accept the testimony of some witnesses and reject that of others,
       and this Court “need not determine with exactitude which witness or what
       testimony the jury believed or disbelieved in arriving at its verdict.” Brown v.
       State, 796 So. 2d 223, 227 (Miss. 2001) (citations omitted). In this case, it is
       clear that the jury accepted the State’s witnesses and evidence and rejected
       Beasley’s testimony. Allowing the jury’s verdict to stand in this case would not
       “sanction an unconscionable injustice,” as the evidence does not “preponderate
       heavily against the verdict.” Bush, 895 So. 2d at 844. Accordingly, we find
       that the trial court did not err in denying Beasley’s motion for a new trial.



                                              16
Beasley, 136 So. 3d at 403-404 (¶ 36). The same is true in the instant case. While some

witness testimony was inconsistent as to specific details, Tommy’s testimony was the most

different from all the others. The jury has the job of weighing witness testimony and

determining credibility. The jury did so, and the evidence does not “preponderate heavily

against the verdict” such that allowing the verdict to stand would “sanction an

unconscionable injustice.” Id.

                                    B. Defense Theories

¶33.   Tommy also asserts that the jury could not have fully considered his theory of self-

defense or the Castle Doctrine. The jury was given instructions on both self-defense and the

Castle Doctrine. “It is presumed that jurors follow the instructions of the court. To presume

otherwise would be to render the jury system inoperable.” Gray v. State, 728 So. 2d 36, 63

(¶ 127) (Miss. 1998) (quoting Chase v. State, 645 So. 2d 829, 853 (Miss. 1994)). Thus, the

Court presumes that the jury considered the instructions on self-defense and the Castle

Doctrine, as well as any related evidence.

¶34.   Although it is not disputed that Tommy and Teresa had been fighting, no evidence

was presented that Tommy had any bruises, cuts, or scrapes. The photographs entered into

evidence showed Tommy’s gold chain intact, no readily apparent bruises or cuts, and no hand

prints on his neck. Regarding self-defense, the Court has written:

       In order for a homicide to be justified as self-defense, the actor’s apprehension
       of danger must appear objectively real to a reasonable person of average
       prudence. Hart v. State, 637 So. 2d 1329, 1339 (Miss. 1994). This Court, in
       Wade v. State, 748 So. 2d 771, 775 (Miss. 1999), held that the issue of
       justifiable self-defense presents a question of the weight and credibility of the
       evidence, rather than sufficiency, and is to be determined by jury. This Court


                                              17
       further stated that “any factual disputes are properly resolved by the jury and
       do not mandate a new trial.” McNeal v. State, 617 So. 2d 999, 1009 (Miss.
       1993).

Jones v. State, 39 So. 3d 860, 865 (¶ 28) (Miss. 2010). The Court presumes that the jury

considered all of the evidence and theories of defense and concluded that Tommy did not act

out of “necessary self defense.”

¶35.   Tommy failed to cite any authority pertaining to the Castle Doctrine or how it should

be applied to the facts of his case. Therefore, the issue is procedurally barred. Rubenstein

v. State, 941 So. 2d 735, 780 (¶ 196) (Miss. 2006) (citing Bell v. State, 879 So. 2d 423, 434

(Miss. 2004) (“Failure to cite relevant authority obviates the appellate court’s obligation to

review such issues.”). Procedural bar notwithstanding, the claim is without merit.

¶36.   Under the Castle Doctrine, “if the defendant is in a place where he had a right to be,

is not the immediate provoker and aggressor, and is not engaged in unlawful activity, he has

no duty to retreat before using defensive force.” Newell v. State, 49 So. 3d 66, 74 (¶ 22)

(Miss. 2010) (discussing Miss. Code Ann. § 97-3-15(4)). The Castle Doctrine is codified

under the justifiable homicide statute at Mississippi Code Section 97-3-15(3) and (4) as

follows:

       (3) A person who uses defensive force shall be presumed to have reasonably
       feared imminent death or great bodily harm, or the commission of a felony
       upon him or another or upon his dwelling, or against a vehicle which he was
       occupying, or against his business or place of employment or the immediate
       premises of such business or place of employment, if the person against whom
       the defensive force was used, was in the process of unlawfully and forcibly
       entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle,
       business, place of employment or the immediate premises thereof or if that
       person had unlawfully removed or was attempting to unlawfully remove
       another against the other person’s will from that dwelling, occupied vehicle,

                                             18
       business, place of employment or the immediate premises thereof and the
       person who used defensive force knew or had reason to believe that the
       forcible entry or unlawful and forcible act was occurring or had occurred. This
       presumption shall not apply if the person against whom defensive force was
       used has a right to be in or is a lawful resident or owner of the dwelling,
       vehicle, business, place of employment or the immediate premises thereof or
       is the lawful resident or owner of the dwelling, vehicle, business, place of
       employment or the immediate premises thereof or if the person who uses
       defensive force is engaged in unlawful activity or if the person is a law
       enforcement officer engaged in the performance of his official duties;

       (4) A person who is not the initial aggressor and is not engaged in unlawful
       activity shall have no duty to retreat before using deadly force under
       subsection (1)(e) or (f) of this section if the person is in a place where the
       person has a right to be, and no finder of fact shall be permitted to consider the
       person’s failure to retreat as evidence that the person’s use of force was
       unnecessary, excessive or unreasonable.

Miss. Code Ann. § 97-3-15(3), (4) (Rev. 2014). Subsections (1)(e) and (f), referenced in

subsection (3), provide:

       (1) The killing of a human being by the act, procurement or omission of
       another shall be justifiable in the following cases:

       ...

       (e) When committed by any person in resisting any attempt unlawfully to kill
       such person or to commit any felony upon him, or upon or in any dwelling, in
       any occupied vehicle, in any place of business, in any place of employment or
       in the immediate premises thereof in which such person shall be;

       (f) When committed in the lawful defense of one’s own person or any other
       human being, where there shall be reasonable ground to apprehend a design
       to commit a felony or to do some great personal injury, and there shall be
       imminent danger of such design being accomplished . . . .

Miss. Code Ann. § 97-3-15(1)(e), (f) (Rev. 2014). To summarize, the Castle Doctrine

includes two prongs:

       First, under subsection (4), if the defendant is in a place where he had a right

                                              19
       to be, is not the immediate provoker and aggressor, and is not engaged in
       unlawful activity, he has no duty to retreat before using defensive force. Miss.
       Code Ann. § 97-3-15(4) (Rev. 2006). And second, if the jury finds that any of
       the circumstances in subsection (3) are satisfied, the defendant who uses such
       defensive force is presumed to have reasonably feared imminent death or great
       bodily harm or the commission of a felony upon him. Miss. Code Ann. § 97-3-
       15(3) (Rev. 2006).

Newell v. State, 49 So. 3d 66, 74 (Miss. 2010). The circumstances in subsection (3) are that

the person against whom the defensive force was used (1) had unlawfully and forcibly

entered “a dwelling, occupied vehicle, business, place of employment or the immediate

premises thereof” or (2) had unlawfully removed another person “against the other person’s

will from that dwelling, occupied vehicle, business, place of employment or the immediate

premises thereof” – or he or she was in the process of doing one of the enumerated things.

Miss. Code Ann. § 97-3-15(3) (Rev. 2014).

¶37.   As to the first prong, Tommy certainly had a right to be at his auto shop and there was

no evidence that he was engaged in any unlawful activity. The testimony points to Krystal

as the initial aggressor, with Teresa pinning down Tommy after he tried to remove Krystal

from the auto shop. The evidence does not point to Tommy as the “immediate provoker and

aggressor.” Therefore, he did not have a duty to retreat before using defensive force.

¶38.   For the second prong, the jury must find one of the circumstances in subsection (3)

for the presumption to apply. There is no evidence that Teresa was attempting to remove

another person from the garage, so that situation is not relevant. Regarding unlawful or

forcible entry, the record indicates that Teresa was a family friend who would have been

welcome in Tommy’s garage under most circumstances. Tommy had asked Krystal to leave



                                             20
and was attempting to escort her outside when Teresa came in. There was no testimony that

Teresa was not welcome when she arrived or that she had entered unlawfully or forcibly.

Once Teresa and Tommy began fighting, her presence may have become unwelcome, but the

standard requires that “the person against whom the defensive force was used, was in the

process of unlawfully and forcibly entering, or had unlawfully and forcibly entered[.]” Miss.

Code Ann. § 97-3-15(3) (Rev. 2014). The evidence does not support, and Tommy does not

argue, that Teresa entered the garage unlawfully or forcibly.

¶39.   A question arises however, as to whether Teresa unlawfully or forcibly entered

Tommy’s inner office, where the shooting occurred. The testimony indicated that Tommy

walked into his office to get the phone – according to Tommy, Teresa entered his office after

he stopped to drink a beer – and that he did not shut the door behind himself. Teresa then

followed him into the office. According to Tommy, Teresa charged after him, only seconds

behind him, and he did not have time to close the door. However, Samantha and Charee

testified that Teresa walked calmly into the office after Tommy had been in the office for at

least a few seconds. No one testified that Tommy told Teresa to leave, or that Tommy fled

the office to escape from Teresa, or that Tommy tried to keep Teresa out of the office.

Whether Teresa entered the office “unlawfully and forcibly” certainly is unclear. The only

testimony that she followed him quickly into the office and that he did not have time to shut

the door was from Tommy, but Tommy also testified that he stopped and drank a beer before

going into his office.

¶40.   Again, “[f]actual disputes are properly resolved by a jury and do not mandate a new



                                             21
trial.” Beasley, 136 So. 3d at 403 (¶ 35) (citing Temple, 498 So. 2d at 382). As in most

cases, the instant case is not without factual disputes and discrepancies among witness

testimony. However, those issues are for the jury.

       On questions of witness testimony, this Court has held that “[t]he jury
       determines the weight and credibility to give witness testimony and other
       evidence.” Moore v. State, 933 So. 2d 910, 922 (Miss. 2006) (citing Johnson
       v. State, 904 So. 2d 162, 167 (Miss. 2005)). This Court “may not ‘pass upon
       the credibility of witnesses and, where the evidence justifies a verdict, it must
       be accepted as having been found worthy of belief.’” Id. (quoting Davis v.
       State, 568 So. 2d 277, 281 (Miss. 1990)).

Barfield v. State, 22 So. 3d 1175, 1187-88 (¶ 46) (Miss. 2009). The Court must presume that

the jury considered the jury instructions – including the Castle Doctrine instruction and the

related evidence and testimony. See Gray, 728 So. 2d at 63 (¶ 127); Chase, 645 So. 2d at

853. The evidence presented supports the jury verdict, and the trial court did not err in

denying Tommy’s motion for a new trial.

                                      C. The Dissent

¶41.   The dissent would reverse Flynt’s conviction for a violation of his right to a speedy

trial, despite the fact that never during the pendency of the litigation – either now on appeal

or below in the trial court – has Flynt raised the issue. Two long-held principles direct us

not to consider the issue. First, this Court has long held that issues not raised on appeal are

procedurally barred from consideration. Hood ex rel. State Tobacco Litigation, 958 So. 2d

790, 815 (¶ 86) n.17 (Miss. 2007); Glover v. Jackson State Univ., 755 So. 2d 395, 398 (¶ 7)

n.1 (Miss. 2000). Second, the Court will not hold a trial court in error for issues not

presented to it for consideration. Moffett v. State, 49 So. 3d 1073, 1101 (¶ 91) (Miss. 2010).



                                              22
¶42.   Thus, the only avenue available for review of a speedy-trial issue is through the use

of the plain-error doctrine. According to the dissent, the Court is “obligated to grant relief

on the basis of plain error”; however, Mississippi Rule of Appellate Procedure 28(a)(3)

(emphasis added), which provides the basis for the plain-error doctrine, states that the Court

“may, at its option, notice a plain error not identified or distinctly specified.” Accordingly,

the Court’s decision to utilize plain error is discretionary, not obligatory. “It is the immutable

obligation of a court to sit, and to sit only, as an objective and indifferent arbiter of the rights

of the litigants.” Browning v. Shackelford, 196 So. 2d 365, 373 (Miss. 1967). To place

upon ourselves as justices and judges a duty to scour the record in order to discover potential

error where none was suggested at any point by any party would be to put the Court in a

position too closely resembling that of a interested litigant, and that we shall not do.

¶43.   Flynt failed to raise a speedy-trial issue at any time during his trial or appeal, and we

now decline to address it utilizing plain error.

                                           Conclusion

¶44.   The evidence presented by the State was legally sufficient to allow the jury to

conclude, beyond a reasonable doubt, that Tommy was guilty of manslaughter. The jury

determined the credibility of the witness testimony, and the evidence does not “preponderate

heavily against the verdict” such that allowing the verdict to stand would “sanction an

unconscionable injustice.” Thus, it was not an abuse of discretion for the trial court to deny

Tommy’s motion for JNOV or for a new trial, and we affirm the judgment of the Forrest

County Circuit Court.



                                                23
¶45. CONVICTION OF MANSLAUGHTER AND SENTENCE OF TWENTY (20)
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH FIFTEEN (15) YEARS TO SERVE, AN ADDITIONAL
CONSECUTIVE FIVE (5) YEARS TO SERVE, AND FIVE (5) YEARS POST-
RELEASE SUPERVISION, WITH CONDITIONS, AFFIRMED. APPELLANT
SHALL PAY A FINE IN THE AMOUNT OF $5,000, AND ALL COURT COSTS
BEGINNING SIXTY (60) DAYS AFTER RELEASE IN A MONTHLY AMOUNT TO
BE DETERMINED BY APPELLANT’S SUPERVISING OFFICER.

     WALLER, C.J., RANDOLPH, P.J., LAMAR, CHANDLER AND PIERCE, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY DICKINSON, P.J., AND KING, J.

       KITCHENS, JUSTICE, DISSENTING:

¶46.   When it is clear that an error in the trial court adversely impacted a fundamental right

of a criminal defendant, this Court is obligated to grant that defendant relief on the basis of

plain-error review.2 Sanders v. State, 678 So. 2d 663, 71 (Miss. 1996). “It has been

established that where fundamental rights are violated, procedural rules give way to prevent

a miscarriage of justice.” Gray v. State, 549 So. 2d 1316, 1321 (Miss. 1989). Moreover, the

Sixth Amendment right to a speedy trial “is one of the most basic rights preserved by our

Constitution.” Klopfer v. North Carolina, 386 U.S. 213, 226, 87 S. Ct. 988, 995, 18 L. Ed.

2d 1 (1967). In this case, 1,483 days passed between Thomas Flynt’s indictment and his

trial. Because Flynt’s right to a speedy trial clearly has been violated and this violation goes

unaddressed by the majority, I respectfully dissent.



       2
        Thomas Flynt, the criminal defendant in this case, has been limited by the arguments
made by his counsel at both the trial and appellate level. Thus, because Flynt challenges
only the weight of the evidence in his brief on appeal, we cannot consider some of the more
interesting, novel arguments that are lurking beneath the surface. For example, whether the
Castle Doctrine automatically renders insufficient the evidence supporting a conviction for
manslaughter is not before this court at present.

                                              24
                          Constitutional Right to a Speedy Trial

¶47.   The right to a speedy trial is secured by the Sixth Amendment to the United States

Constitution and Article 3, Section 26, of the Mississippi Constitution. U.S. Const. amend.

VI (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be informed

of the nature and cause of the accusation; to be confronted with the witnesses against him;

to have compulsory process for obtaining witnesses in his favor, and to have the Assistance

of Counsel for his defence.”) (emphasis added); Miss Const. art. 3, § 26 (“In all criminal

prosecutions the accused shall have a right to be heard by himself or counsel, or both, to

demand the nature and cause of the accusation, to be confronted by the witnesses against

him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions

by indictment or information, a speedy and public trial by an impartial jury of the county

where the offense was committed.”) (emphasis added). To analyze constitutional speedy-trial

claims, we utilize the four-part test articulated by the United States Supreme Court in Barker

v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), which balances: (1) the

length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and

(4) the prejudice to the defendant. The Barker Court explained that each case should be

considered on an “ad hoc basis” and that no one factor is outcome determinative. Id. at 530.

The Court wrote:

       We regard none of the four factors identified above as either a necessary or
       sufficient condition to the finding of a deprivation of the right of speedy trial.


                                               25
       Rather, they are related factors and must be considered together with such
       other circumstances as may be relevant. In sum, these factors have no
       talismanic qualities; courts must still engage in a difficult and sensitive
       balancing process.

Id. at 533.
                                  (1) Length of the Delay

¶48.   The constitutional right to a speedy trial attaches “at the time of a formal indictment

or information or else the actual restraints imposed by arrest and holding to a criminal

charge.” Handley v. State, 574 So. 2d 671, 674 (Miss. 1990) (quoting Lightsey v. State, 493

So. 2d 375, 378 (Miss. 1986), superceded by statute on other grounds). Flynt was indicted

on September 24, 2009. His trial began on October 15, 2013. Some 1,483 days passed

between Flynt’s arrest and indictment. This Court has held that a delay of eight months, or

270 days, is “presumptively prejudicial.” Johnson v. State, 68 So. 3d 1239, 1247 (Miss.

2011). The United States Supreme Court has held that “the presumption that pretrial delay

has prejudiced the accused intensifies over time.” Doggett v. United States, 505 U.S. 647,

652, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992). The delay in this case, 1,483 days, exceeds

this Court’s “presumptively prejudicial” threshold more than fivefold. This factor weighs

heavily against the State.

                                 (2) Reason for the Delay

¶49.   As for Barker’s second criterion, the Court weighs governmental negligence heavily

against the State. See Doggett, 505 U.S. at 652-653. The record is clear regarding the reason

for the delay. Flynt’s trial was scheduled to commence on February 22, 2010. Because the

prosecutor had another trial scheduled on that date, the trial was rescheduled for May 24,



                                             26
2010, 243 days after Flynt had been indicted. On May 25, 2010, the State moved, ore tenus,

for the case to pass to the Circuit Court of Forrest County’s inactive files. The State averred

that it was not prepared to go to trial because “some evidence has been misplaced, lost, or

inadvertently destroyed while in the custody of the Hattiesburg Police Department.” This

case remained in the inactive files of the court until June 21, 2013, when the State filed a

motion to reinistate the case to the Circuit Court of Forrest County’s active docket. The State

contended that there was no speedy-trial issue with reactivating the case because “the

defendant has been at liberty since the time of his indictment.” When the State filed the

motion to reactivate the case, 1,367 days had elapsed since the date Flynt was indicted. The

prosecutor implied that the State’s failure to prosecute the case was due to the district

attorney’s prosecutorial discretion. The prosecutor explained that,“a different District

Attorney and Assistant District Attorney . . . passed [the case] to files. . . . The indictment

came down in September of [20]09. It was passed on May 25, [20]10, and reinstated on July

25, 2013, under the new administration.” (Emphasis added.) After the case was reactivated

from the court’s files, a trial date was set for October 15, 2013.

¶50.   In this case, the government’s negligent loss of its own evidence and failure to

investigate the case should be weighed heavily against the State and not at all against the

accused. Moreover, the case had remained dormant in the circuit court’s files for more than

three years because the district attorney had decided not to pursue this charge. The

government’s decision to forego or defer prosecution in this case should be weighed heavily

against the State for the purpose of a speedy-trial analysis.



                                              27
               (3) Whether the defendant asserted his right to a speedy trial.

¶51.   Next, we must consider whether Flynt asserted his right to a speedy trial. The record

is clear that Flynt did not raise this right in the trial court. However, this must be considered

in light of the circumstances of the case.

¶52.   On May 25, 2010, the State made an ore tenus motion to pass this case to the circuit

court’s inactive files 243 days after Flynt had been indicted. In other words, when the case

was active, Flynt’s constitutional right to a speedy trial had not been implicated, because 270

days had not passed. See Johnson, 68 So. 3d at 1247. “It is not the duty of the accused to

bring himself to trial. . . . It is the State, of course, that bears the burden of bringing an

accused to trial in a speedy manner.” McGhee v. State, 657 So. 2d 799, 804 (Miss. 1995)

(citations omitted). A prosecutor’s decision to pass a case to the circuit court’s files, in

effect, holds the indictment in abeyance or acts as a dismissal without prejudice. See Ross

v. Milner, 194 Miss. 497, 12 So. 2d 917, 919 (Miss. 1943) (“[T]he Court said in view of the

fact that the indictment had been remanded to the files that ‘If it be true that the indictment

in question was filed away as claimed by appellant, then there was no prosecution pending

in court at the June term; hence no order forfeiting the bond could be legally made, nor could

any judgment be legally rendered upon said bond, and such judgment would be clearly

erroneous, if not absolutely void.’”) (quoting Hall v. Commonwealth, 17 Ky. Law Reptr.

231, 30 S.W. 877 (1895)). Because passing a case to the files operates as a dismissal without

prejudice, we have recognized in the past that a “district attorney may be willing to pass an

indictment to the files pending good behavior, or for other cause, when he would be



                                               28
unwilling to recommend a nolle prosequi, and it often happens that a defendant is willing to

accept this arrangement as the best settlement available.” Gordon v. State, 127 Miss. 396,

90 So. 95 (1921).     Furthermore, we have held that a prosecutor’s decision to pass an

indictment to the court’s inactive files, like an order of nolle prosequi, is not an acquittal on

the merits and does not implicate a criminal defendant’s right against double jeopardy.

Beckwith v. State, 615 So. 2d 1134, 1147 (Miss. 1992). However, it is clear that while the

case remains in the circuit court’s files, the case is inactive.      Ross, 12 So. 2d at 919.

Therefore, if the defendant were to file a motion in circuit court while his criminal case was

inactive, any judgment the court made on that motion would be void. See id. Thus, at the

point in time that Flynt’s constitutional right to a speedy trial attached, his case was in

abeyance, there was no reason for him to press a speedy-trial claim, and, even if he had filed

a motion concerning the length of the delay in this case, any judgment that may have issued

on his speedy-trial motion would have been void. See id.

¶53.   Flynt’s indictment remained dormant in the court’s inactive files from May 25, 2010,

until June 24, 2013. At that time, the trial court reinstated the State’s case on its active

docket on the prosecutor’s motion. When the Court reinstated the case to its active docket,

1,369 days had passed since Flynt had been indicted. The trial court scheduled Flynt’s trial

for October 15, 2013, giving Flynt a little more than three months to prepare for trial. By this

time Flynt was being represented by the Office of the Public Defender and not the private

attorney who represented him prior to the passing of his case to the court’s inactive files.

Flynt’s new trial counsel averred that the file containing the defense’s investigative materials



                                               29
had been kept in a storage unit during the time that Flynt’s case was inactive. While the

defense investigative file was in storage, it suffered severe water damage. Flynt’s trial

attorney asserted that the file had been damaged beyond repair and that she could not be sure

of what the file contained, but she believed it included the results of investigations into the

case and interviews done with witnesses. The defense attorney asserted that she needed to

reconstruct the contents of the file, but she would not have time to do so in time for the

October 15, 2013, trial date. The trial court denied Flynt’s motion for a continuance for the

purpose of reconstructing the case file. Thus, during the time his case was reinstated to the

trial court’s active docket, it was clear that all preparation that had been done for his original

trial had been destroyed. Under these circumstances, Flynt understandably sought and was

denied a continuance and did not assert his right to a speedy trial.

¶54.   Thus, because Flynt did not raise his right to a speedy trial in the trial court, this factor

weighs against him. Jaco v. State, 574 So. 2d 625, 632 (Miss. 1990). But, given the unique

circumstances of this case, it is readily understandable and should not weigh against him.

                                (4) Prejudice to the Defendant

¶55.   The United States Supreme Court has held that unreasonable pretrial delay threatens

to produce more than one sort of harm, including “oppressive pretrial incarceration,” “anxiety

and concern of the accused,” and “the possibility that the [accused’s] defense will be

impaired” by dimming memories and loss of exculpatory evidence. Barker, 407 U.S. at 532.

Of these forms of prejudice, “the most serious is the last, because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.” Id.



                                                30
¶56.   In this case, Flynt was not incarcerated between his indictment and his trial.

Moreover, the record is devoid of information concerning his anxiety or concern regarding

trial. But the record is clear that Flynt’s defense suffered significant impairment as a result

of the delay in this trial. When the State moved to pass this case to the court’s inactive files,

the prosecution informed the judge that it was not prepared to go to trial because “some

evidence has been misplaced, lost, or inadvertently destroyed while in the custody of the

Hattiesburg Police Department.” The record is unclear about the nature of this evidence,

given that it was destroyed.      But, it is well established that criminal defendants have a

significant constitutional interest in evidence that is “material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S.

83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). In Barker, the United States Supreme Court

explicitly recognized that impairment of an accused’s defense is the most difficult form of

speedy trial prejudice to prove because time’s erosion of exculpatory evidence and testimony

“can rarely be shown.” Barker, 407 U.S. at 532. “And though time can tilt the case against

either side, one cannot generally be sure which of them it has prejudiced more severely.”

Doggett, 505 U.S. at 655. Thus, the United States Supreme Court has held that the

destruction of evidence “presumptively compromises the reliability of a trial in ways that

neither party can prove or, for that matter, identify.” Id. at 655 (emphasis added).

¶57.   But the Hattiesburg Police Department’s loss of evidence was not the only instance

in which the record is clear that evidence dissipated prior to Flynt’s trial. During the time

that Flynt’s case lay in the inactive court files, Flynt’s original lawyer had stored his case file,



                                                31
complete with the results of investigations and interviews. During the course of the three-

year delay, the case file suffered irreparable damage, and Flynt lost the benefit of all of the

file’s contents.

¶58.   It therefore is clear that Flynt suffered actual prejudice by the delay in his trial due to

loss of evidence. See Doggett, 505 U.S. at 655.

                                          Conclusion

¶59.   Having conducted a thorough Barker analysis, I believe that Flynt’s federal and state

constitutional rights to a speedy trial clearly have been violated. I respectfully dissent.

       DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.




                                               32
