                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2016-KA-01734-SCT

CASEY SHELDON WOODS a/k/a CASEY WOODS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        09/28/2016
TRIAL JUDGE:                             HON. LILLIE BLACKMON SANDERS
TRIAL COURT ATTORNEYS:                   RONNIE LEE HARPER
                                         TIM COTTON
                                         MICHAEL ZACHARY JEX
                                         CHRISTINA FERRELL DAUGHERTY
                                         RONNIE LEE HARPER
                                         PATRICIA F. DUNMORE
                                         EILEEN M. MAHER
COURT FROM WHICH APPEALED:               ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF THE STATE PUBLIC
                                         DEFENDER
                                         BY: MOLLIE MARIE McMILLIN
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:                       RONNIE LEE HARPER
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             REVERSED AND REMANDED - 03/01/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      COLEMAN, JUSTICE, FOR THE COURT:

¶1.   On August 25, 2015, Casey Woods was indicted on one count of first degree murder,

stemming from the shooting of his girlfriend’s estranged husband. Woods also was indicted

on one count of possession of a firearm by a convicted felon. The counts were severed and
the case proceeded to trial solely on the murder charge on September 22, 2016.

¶2.    An Adams County jury found Woods guilty of second degree murder in violation of

Mississippi Code Section 97-3-19(1)(b). The trial court sentenced Woods as a habitual

offender under Mississippi Code Section 99-19-83 to life in prison without the possibility of

parole. Woods’s trial counsel did not file any post-trial motions. Woods appeals, arguing

that (1) the evidence presented at trial was insufficient to overcome the presumption afforded

by the Castle Doctrine that he acted reasonably when he killed Pierre Tenner, and (2) he

received constitutionally ineffective assistance of counsel.

¶3.    Woods waived his insufficient evidence argument; however, we reverse the judgment

and remand for a new trial based on ineffective assistance of counsel with regard to Woods’s

trial counsel’s failure to file a post trial motion for a new trial challenging the weight of the

evidence.

                               FACTUAL BACKGROUND

¶4.    Doris Tenner and Pierre Tenner were married and lived at Fourteen Hampton Court

in Natchez, Mississippi. Doris’s and Pierre’s marriage became volatile over time and

eventually deteriorated. Some time after Doris and Pierre separated, Doris began dating

Woods in April 2015.

¶5.    On May 4, 2015, Pierre called Doris, but she did not answer the phone. Later, Pierre

came home from work and saw Woods’s truck parked in the yard. Angered, Pierre kicked

in the locked door and went into the house with a twelve gauge shotgun. Pierre saw Doris

with a man in the house. Doris retreated down the hallway and locked herself in a bedroom.



                                               2
Pierre fired the shotgun through the door, hitting the wall and a television in the bedroom.

Doris came out of the bedroom and she and Pierre tussled for the shotgun. Pierre claimed

the shotgun went off while he and Doris were tussling for the shotgun. After tussling for a

while, Pierre left the scene.

¶6.    After the incident, Doris called the police and filed charges. Pierre was arrested and

charged with domestic violence. Pierre was released on bond subject to certain conditions

set by the municipal court. The municipal court ordered Pierre to have no contact with Doris,

including telephone contact and physical contact, either at Doris’s residence, place of

employment, or any other place. The municipal court also ordered that Doris “shall have the

exclusive use and possession of the residence . . . to the exclusion of [Pierre].”

¶7.    Three weeks later, on the morning of May 24, 2015, Pierre called Doris. Doris could

tell Pierre had been drinking. Pierre was at a nearby street, and Doris told Pierre not to come

to her house. Doris left her house to get groceries. On her way home, Pierre called her again

and they argued. Pierre told Doris that he was coming to her house, but Doris told him he

did not need to be there. Doris arrived home and Woods was outside getting ready to wash

his truck. While Doris was in the process of moving her vehicle so Woods could wash his

truck, she saw Pierre’s truck coming down the street.

¶8.    Doris went inside and called 911 at 12:15 p.m. Doris requested that the police patrol

Hampton Court because her husband was prohibited from being there. Doris told dispatch

that she recently had filed charges against her husband Pierre for shooting in her house.

Doris also told dispatch that Pierre had been drinking.



                                              3
¶9.      Pierre pulled up and parked at Willie Thomas’s house across the street from Doris’s

house. Thomas and Paul Armstead, who lived next door to Thomas, were outside Thomas’s

house socializing. Pierre got out of his truck and began talking with Thomas and Armstead.

Meanwhile, Woods was outside Doris’s house getting ready to wash his truck.

¶10.     Armstead explained that Pierre was a friend and former neighbor before he and Doris

had separated. Armstead did not believe it was odd for another man to be at Doris’s house.

Armstead also was a friend of Woods. After only a few minutes, Pierre and Woods began

arguing from opposite sides of the street. Armstead testified that Woods was not enticing

Pierre to say anything, but he could not say who started the argument. No evidence was

presented as to the actual content of the argument.

¶11.     From inside, Doris heard Pierre and Woods arguing. Doris went outside and saw

Pierre across the street and Woods in the yard by his truck. Doris told them to be quiet, and

the argument subsided. Doris went back inside and again heard Woods and Pierre arguing.

Doris called 911 at 12:20 p.m. Doris urged dispatch that the police needed to hurry to the

scene.

¶12.     Doris went back outside and told the two men to be quiet, but they continued to argue.

Doris told Woods that the police were coming. The argument escalated to the point that

Pierre got frustrated and jumped out of his chair. Pierre took his leg brace off, threw it to the

ground, and began to walk in the direction of Doris’s house.

¶13.     Before crossing the street, Doris saw Pierre stop at his truck and roll the window

down. Pierre put his hand in the truck. Pierre said to Woods, “I missed you the first time but



                                               4
I won’t miss you this time.” Pierre then put his hand behind his back and proceeded to cross

the street toward Doris’s yard.

¶14.     Armstead did not see Pierre stop at his truck or see whether he had a gun. Armstead

testified that Pierre did not act like he had a gun. Armstead also testified that Pierre did not

have a weapon of any sort. Armstead could tell that Pierre was angry and assumed he went

across the street to fight Woods. Armstead heard Doris tell Pierre not to come over to her

house.

¶15.     Doris went to the edge of her yard to stop Pierre from coming over and began pushing

him. Pierre grabbed Doris and threw her to the ground. Doris said she was going to call the

police, to which Pierre responded, “Go ahead and call them.” Doris went back inside to call

the police. Doris provided a statement to the police saying that Woods had followed her in

the house and had gotten the shotgun because Pierre was threatening Woods. Doris

explained that there were two doors under the carport, a door to the laundry room and a

separate door to go inside the house. Doris had clarified in another statement that when her

first statement said Woods had followed her in the house, she meant that Woods had gone

into the laundry room and she had gone inside the house.

¶16.     While Pierre was approaching, Armstead saw Woods go inside the house or through

a door under the carport, attached to the house. Woods came back out the door with a

shotgun as Pierre was walking toward Doris’s driveway. Doris did not know that there was

a gun on her property, and she assumed Woods had gotten the shotgun from the laundry

room.



                                               5
¶17.   Woods remained under the carport. Initially, Armstead testified that when Woods

came out with the shotgun, Pierre was not advancing toward Woods, but “he was walking

that way[.]” Armstead then testified that when Woods came out with the shotgun, Pierre was

advancing toward Woods. Woods, who was standing under the carport, shot Pierre, who was

halfway up the driveway, in the leg. Armstead testified that Pierre got no closer than halfway

up the driveway before Woods shot him.

¶18.   Doris heard a gunshot while she was in the house. She did not know if Woods had

shot Pierre or Pierre had shot Woods. She went outside to find that Pierre had been shot and

Woods was holding a shotgun. Pierre fell to the ground and Woods left the scene.

¶19.   Doris called 911 a third time at 12:33 p.m. Doris frantically told police that there had

been a shooting. She urged police and an ambulance to hurry to the scene. Doris explained

that her husband had come across the street, pulled a gun on a “man” and the “man” had shot

him. Doris repeatedly said that she had told Pierre not to come over there. When dispatch

asked Doris to explain again exactly what had happened, she responded that Pierre had been

across the street and she told had him not to come over to her house. Doris said Pierre came

over and “fooled” with “this man” and the “man” shot him. Doris said the “man” left, and

her husband was lying wounded in the yard.

¶20.   Armstead and another neighbor put Pierre in the back of a truck and took him to the

hospital, where he was pronounced dead on arrival. At trial, the parties stipulated that Pierre

died as a result of the gunshot wound to his right thigh and that the manner of death was

homicide. Pierre’s blood alcohol content was .242, showing that he was heavily intoxicated



                                              6
at the time of the shooting.

¶21.   Police responded to the scene and found no weapons at the residence. Investigator

Joe Belling of the Natchez Police Department testified that the closest blood spot to the

carport was found on the driveway just over seven and a half feet from the brick support of

the carport. Belling did not know whether the blood was Pierre’s. Belling repeatedly

testified that he did not know where Pierre had been located when he was shot, however,

Belling testified that it appeared he was shot somewhere around the carport.

¶22.   The trial court instructed the jury on first degree murder, second degree murder, and

heat of passion manslaughter. The court also instructed the jury on self defense and the

Castle Doctrine. The jury found Woods guilty of second degree murder. On September 28,

2016, the circuit court sentenced Woods as a habitual offender to life without the possibility

of parole. Woods’s trial counsel failed to file any post-trial motions. Woods was appointed

appellate counsel, who proceeded with the instant appeal.

                                       DISCUSSION

       I.     Sufficiency of the Evidence

¶23.   At trial, Woods’s defense theory was justifiable homicide, specifically, self defense

and the statutory protections of the Castle Doctrine. The trial court instructed the jury on

justifiable homicide under Section 97-3-15(e)-(f) and the specific provisions of the Castle

Doctrine, codified at Mississippi Code Section 97-3-15(3)-(4). See Miss. Code Ann. § 97-3-

15 (Rev. 2014). The Castle Doctrine creates a presumption of fear and abridges a duty to

retreat in certain prescribed circumstances. Newell v. State, 49 So. 3d 66, 74 (¶ 22) (Miss.



                                              7
2010). Woods argues that the State presented insufficient evidence to overcome the

presumption that he reasonably had feared imminent death or great bodily harm when he shot

and killed Pierre.

¶24.   “A directed verdict, judgment notwithstanding a verdict and a request for peremptory

instruction all challenge the legal sufficiency of the evidence presented at trial.” Easter v.

State, 878 So. 2d 10, 21 (¶ 36) (Miss. 2004). “To preserve the issue of denial of a directed

verdict, the defense must move for directed verdict at the close of the State’s case-in-chief.”

Page v. State, 990 So. 2d 760, 762 (¶ 9) (Miss. 2008). “When the defendant proceeds with

his case after the state rests and the court overrules the defendant’s motion for a directed

verdict, the defendant has waived the appeal of that directed verdict.” Holland v. State, 656

So. 2d 1192, 1197 (Miss. 1995). Stated another way, “[i]f a defendant puts on evidence in

his own defense after the denial of his motion for directed verdict, he waives his challenge

to the sufficiency of the State’s evidence up to that point.” Robinson v. State, 749 So. 2d

1054, 1058–59 (Miss. 1999).

¶25.   At the close of the State’s case-in-chief, Woods moved for a directed verdict,

challenging the sufficiency of the evidence presented in the State’s case-in-chief. The trial

court denied the motion, and Woods proceeded with his case-in-chief, in which he called

witnesses and introduced evidence. Consequently, Woods waived his challenge to the

sufficiency of the State’s evidence presented during its case-in-chief. See id.

¶26.   “If a motion for directed verdict is denied and the defendant introduces evidence on

his own behalf, the defendant must renew his motion for directed verdict at the close of all



                                              8
evidence.” Page, 990 So. 2d at 762 (¶ 9). “In the absence of a renewal of the directed

verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding

the verdict, [a defendant] has waived the sufficiency error on appeal.” Holland, 656 So. 2d

at 1197.

¶27.   At the close of all evidence, Woods did not renew his motion for a directed verdict,

request a peremptory instruction, or file a post-trial motion for a judgment notwithstanding

the verdict (JNOV). Therefore, Woods’s challenge to the sufficiency of the evidence on

appeal is waived. See Wright v. State, 540 So. 2d 1, 3-4 (Miss. 1989). Because Woods did

not preserve his sufficiency of the evidence argument, the assignment of error lacks merit.

       II.    Ineffective Assistance of Counsel

¶28.   However, Woods also contends that his trial counsel was constitutionally ineffective

because trial counsel (1) failed to request lesser included manslaughter jury instructions; and

(2) failed to file any post-trial motion on his behalf. We address only Woods’s trial counsel’s

failure to file any post-trial motion, as the claim is dispositive.

¶29.   “A defendant’s right to the effective assistance of counsel in a criminal case is

guaranteed by the United States and Mississippi Constitutions.” Giles v. State, 187 So. 3d

116, 120 (¶ 12) (Miss. 2016) (citing U.S. Const. amends. VI, XIV; Miss. Const. art. 3, § 26).

The United States Supreme Court articulated the two pronged test to be applied when

considering a constitutional claim of ineffective assistance of counsel in Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). To demonstrate an ineffective assistance of

counsel claim, a defendant must prove his counsel’s performance was deficient, and that the



                                               9
deficiency was so substantial as to deprive the defendant of a fair trial. Dartez v. State, 177

So. 3d 420, 423 (¶ 19) (Miss. 2015) (applying Strickland, 466 U.S. at 687-96).

¶30.   “There is a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance and that the challenged action might be considered sound

trial strategy.” Giles, 187 So. 3d at 120 (¶ 12) (citing Strickland, 466 U.S. at 687-88). The

Court considers “the totality of the circumstances to determine whether counsel’s efforts

were both deficient and prejudicial.” Dartez, 177 So. 3d at 423 (¶ 19). “The burden is on

the [defendant] to rebut the presumption by showing that counsel’s performance did not meet

the Strickland standard.” Wilson v. State, 194 So. 3d 855, 862 (¶ 19) (Miss. 2016). “If the

Court determines that the defendant did not receive reasonably effective assistance of

counsel, it must then determine whether the deficiency had a ‘reasonable probability’ of

affecting the outcome of the case.” Giles, 187 So. 3d at 120-21 (¶ 13) (citing Strickland, 466

U.S. at 694). “A reasonable probability is a probability sufficient to undermine confidence

in the outcome.” Id.

¶31.   Generally, ineffective assistance claims are raised during post-conviction proceedings;

however, a claim may be raised on direct appeal if such issues are based on facts fully

apparent from the record. Giles, 187 So. 3d at 121 (¶ 14). If the record cannot support an

ineffective assistance of counsel claim on direct appeal, then the appropriate action is to deny

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

conviction relief. Id. Whether a defendant has received ineffective assistance of counsel is

a question of law reviewed de novo. Wilson, 194 So. 3d at 862 (¶ 19).



                                              10
              A.      Jury Instructions

¶32.   Woods claims that his counsel provided ineffective assistance by not requesting

culpable negligence manslaughter and imperfect-self-defense manslaughter jury instructions.

Woods claims that the inaction deprived him of the right to have the jury fully instructed on

manslaughter theories, which were supported by evidence at trial.

¶33.   “When claiming ineffective assistance of trial counsel because of jury instructions,

it is the duty of the appellant to demonstrate both error in failing to receive the instruction

and the prejudice to the defense.” Havard v. State, 928 So. 2d 771, 789 (¶ 28) (Miss. 2006).

¶34.   In Smiley v. State, 815 So. 2d 1140, 1148 (¶¶ 30-33) (Miss. 2002), the Court held that

trial counsel’s decision not to request a jury instruction regarding the defendant’s right not

to testify did not amount to ineffective assistance. The Court said it was “conceivable that

[trial counsel] withdrew the jury instruction as part of his trial strategy in the hope of not

highlighting [the defendant’s] decision not to testify.” Id. at 1148 (¶ 33). The Court noted

that whatever reason trial counsel had for withdrawing the instruction, there is a presumption

that decisions made are strategic. Id. The Court concluded that the defendant’s claim was

without merit because he failed to show that trial counsel “was deficient, much less that [trial

counsel’s] decision deprived him of a fair trial, which, but for the withdrawal of the jury

instruction, would have likely resulted in a different outcome.” Id.

¶35.   The Court has held that “trial counsel’s decision to not request a jury instruction falls

under the category of trial tactics, which are not subject to review.” Neal v. State, 15 So. 3d

388, 406 (¶ 43) (Miss. 2009) (holding trial counsel’s decision not to request the lesser offense



                                              11
manslaughter and mutilation jury instructions did not constitute ineffective of assistance of

counsel); see also Sea v. State, 49 So. 3d 614, 619 (¶ 22) (Miss. 2010) (same).

                      1.     Culpable Negligence Manslaughter

¶36.   Woods maintains that the facts of the case are “close, and there can be no strategic

advantage from not requesting the manslaughter instruction, especially in light of the fact that

the [trial c]ourt granted the State’s heat of passion manslaughter instruction without objection

from Woods’s trial counsel.”

¶37.   Manslaughter is described as follows: “every other killing of a human being, by the

act, procurement, or culpable negligence of another, and without authority of law, not

provided for in this title, shall be manslaughter.” Miss. Code Ann. § 97-3-47 (Rev. 2014).

Culpable negligence has been defined as negligence of a degree so gross as to be tantamount

to a wanton disregard of, or utter indifference to, the safety of human life. Hawkins v. State,

101 So. 3d 638, 643 (¶ 17) (Miss. 2012). Second degree murder, murder, and culpable

negligence manslaughter are distinguishable simply by degree of mental state of culpability.

Id. In short, second degree murder involves a higher degree of recklessness from which

malice may be implied. Id. “Culpable-negligence instructions are most commonly found in

DUI and other automobile cases, which address negligent or grossly negligent conduct.”

Swanagan v. State, 2017 WL 2181149, at *8 (¶ 41) (Miss. May 18, 2017).

¶38.   Woods argues the failure to request the instruction on a lesser included offense theory

“that coincided with [his] defense at trial was constitutionally defective, and it could have

changed the outcome of [the] trial.” However, a culpable negligence manslaughter theory



                                              12
did not coincide with his defense at trial. Woods’s defense theory at trial was not negligence;

rather Woods contended the shooting constituted a justifiable homicide, more narrowly, self

defense and the Castle Doctrine. The State never claimed Woods acted negligently. At best,

the State claimed Woods committed heat of passion manslaughter, which is defined as:

       A state of violent and uncontrollable rage engendered by a blow or certain
       other provocation given, which will reduce a homicide from the grade of
       murder to that of manslaughter. Passion or anger suddenly aroused at the time
       by some immediate and reasonable provocation, by words or acts of one at the
       time. The term includes an emotional state of mind characterized by anger,
       rage, hatred, furious resentment or terror.

Bowser v. State, 182 So. 3d 425, 432 (Miss. 2015).

¶39.   “A defendant is entitled to jury instructions on his theory of the case whenever there

is evidence that would support a jury’s finding on that theory.” Thomas v. State, 48 So. 3d

460, 469 (¶ 23) (Miss. 2010). “To be entitled to a lesser-included-offense instruction, a

defendant must point to some evidence in the record from which a jury reasonably could find

him not guilty of the crime with which he was charged and at the same time find him guilty

of a lesser-included offense.” Gilmore v. State, 119 So. 3d 278, 286 (Miss. 2013).

¶40.   We hold that trial counsel’s decision was not deficient because it is conceivable that

Woods’s trial counsel did not request a culpable negligence manslaughter instruction as part

of his and her strategy. See Smiley, 815 So. 2d at 1148 (¶¶ 30-33).

¶41.   Moreover, Woods does not point to any evidence in the record from which a jury

reasonably could find him not guilty of murder and at the same time find him guilty of

culpable negligence manslaughter. Indeed, no suggestion was made by either party at trial

that Woods negligently had shot Pierre. Although the jury was instructed on heat of passion

                                              13
manslaughter, the jury chose to find Woods guilty of second degree murder. Trial counsel’s

decision not to request a culpable negligence manslaughter instruction did not prejudice

Woods’s defense because the evidence did not support a jury’s finding on the theory, and the

jury rejected a heat of passion manslaughter theory based on the evidence presented. The

issue is without merit.

                     2.     Imperfect Self Defense

¶42.     Woods argues that there was “ample evidence” for imperfect self defense

manslaughter, which would have allowed the jury to find him guilty of manslaughter.

“[U]nder the theory of imperfect self-defense, an intentional killing may be considered

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

necessary to prevent death or great bodily harm.” Brown v. State, 222 So. 3d 302, 307 (Miss.

2017).

¶43.     Unlike Woods’s failure to point to any evidence which would have supported a

culpable negligence manslaughter instruction, Woods references the following evidence that

would have supported an imperfect-self-defense manslaughter instruction: Woods asserted

self-defense as his defense at trial; Doris testified that she saw Pierre get something out of

his truck that she believed was a gun; Woods knew of Pierre’s history of violence with Doris;

Doris called 911 twice for help before the shooting; and an argument immediately preceded

Pierre’s unlawful entrance onto the property. Woods also points out that no gun was found

on Pierre after the shooting, indicating that Woods had a bona fide but unfounded belief that

it was necessary to prevent death or great bodily harm.



                                             14
¶44.   While the evidence may have supported an imperfect self defense instruction, it is not

apparent from the record that trial counsel’s decision not to request the instruction constituted

ineffective assistance of counsel. Certainly, it is conceivable that trial counsel decided to rely

solely on the defense of justifiable homicide by way of true self defense and the Castle

Doctrine. Trial counsel’s strategy very well could have been not to request an imperfect self

defense instruction in the hope of an acquittal rather than having the jury settle on the lesser

included offense of imperfect self defense.

¶45.   It is uncertain whether Woods’s trial counsel even considered an imperfect self

defense theory, or what his and her reasons were for not requesting an instruction on the

theory. Generally, we would deny Woods’s claim without prejudice so that it might be

pursued in post-conviction proceedings. See Ambrose v. State, 133 So. 3d 786, 794 (Miss.

2013) (foregoing consideration of a claim for ineffective assistance of counsel on direct

appeal where it was unclear whether the defendant’s counsel considered an imperfect self

defense theory or his reasons for not requesting an instruction on the theory). However, we

proceed to address Woods’s additional ineffective assistance claim on direct appeal based

on the failure to file a post-trial motion for a new trial, because the record supports an

ineffective assistance claim based on facts fully apparent from the record. See Giles, 187 So.

3d at 121 (¶ 14).

               B.     Post-trial Motion for a New Trial

¶46.   Woods argues his trial counsel’s failure to file a post-trial motion for a new trial

waived his right to argue on appeal that the verdict is against the overwhelming weight of the



                                               15
evidence. Woods contends that, by not filing a motion for a new trial, counsel deprived him

of having the trial court, and ultimately the appellate court, consider the weight of the

evidence and order a new trial. Woods relies on Giles v. State, 187 So. 3d 116 (Miss. 2016),

and Holland v. State, 656 So. 2d 1192 (Miss. 1995), in support of his argument.

¶47.   In Holland, the Court held that an attorney’s complete failure to make post-trial

challenges to the weight or sufficiency of the evidence constituted deficient performance.

Holland, 656 So. 2d at 1198. The Court held the failure was prejudicial to the defendant

because the evidence was insufficient to support the guilty verdict and a reasonable

probability existed that the trial court would have granted the motion challenging the

sufficiency of the evidence, had one been made. Id.

¶48.   In Giles, the Court held that the defendant’s counsel rendered deficient performance

by failing to make any post-trial challenges to the weight or sufficiency of the evidence.

Giles, 187 So. 3d at 125 (¶ 33) (citing Holland, 656 So. 2d 1192). However, Defendant

Patrick Giles made no argument that he was prejudiced by his counsel’s deficiency. Id. The

Court was unable to find prejudice. Id. The Court held that there was no reasonable

probability that a trial court would have granted a motion for a directed verdict, a peremptory

instruction, or a judgment notwithstanding the verdict. Id. at 126 (¶ 33). Moreover, the

Court held that there was no reasonable probability that a trial court would have found that

the evidence preponderated so heavily against the verdict that a new trial was required to

avoid sanctioning an unconscionable injustice. Id.

¶49.   Likewise, in Parker v. State, 30 So. 3d 1222, 1235 (Miss. 2010), the defendant’s



                                              16
counsel failed to challenge the weight of the evidence with a motion for a new trial. The

Court held that the failure was deficient performance, but that the defendant failed to show

how the deficiency had prejudiced him because there was no reasonable probability that the

trial court would have granted the motion. Id.

¶50.   No strategic reason exists for Woods’s trial counsel’s not filing a motion for a new

trial, arguing that the verdict was contrary to the overwhelming weight of the evidence.

Under the Court’s holdings in Holland, Giles, and Parker, we hold Woods’s failure to file

any post-trial motion, namely, a motion for a new trial, constituted deficient performance.

Having determined that the failure to file a motion for a new trial constitutes deficient

performance, the Court must consider whether a reasonable probability exists that the trial

court would have granted the motion.

¶51.   “A motion for a new trial challenges the weight of the evidence.” Flynt v. State, 183

So. 3d 1, 10 (¶ 30) (Miss. 2015). In Bush v. State, 895 So. 2d 836, 844 (¶ 18) (Miss. 2005),

the Court summarized the role of the trial court in reviewing a motion for a new trial:

       When reviewing a denial of a motion for a new trial based on an objection to
       the weight of the evidence, we will only disturb a verdict when it is so contrary
       to the overwhelming weight of the evidence that to allow it to stand would
       sanction an unconscionable injustice. Herring v. State, 691 So. 2d 948, 957
       (Miss. 1997). We have stated that on a motion for new trial, the [trial] court
       sits as a thirteenth juror. The motion, however, is addressed to the discretion
       of the [trial] court, which should be exercised with caution, and the power to
       grant a new trial should be invoked only in exceptional cases in which the
       evidence preponderates heavily against the verdict. Amiker v. Drugs For
       Less, Inc., 796 So. 2d 942, 947 (Miss. 2000). However, the evidence should
       be weighed in the light most favorable to the verdict. Herring, 691 So. 2d at
       957. A reversal on the grounds that the verdict was against the overwhelming
       weight of the evidence, “unlike a reversal based on insufficient evidence, does
       not mean that acquittal was the only proper verdict.” McQueen v. State, 423

                                              17
       So. 2d 800, 803 (Miss. 1982). Rather, as the “thirteenth juror,” the [trial] court
       simply disagrees with the jury’s resolution of the conflicting testimony. Id.
       This difference of opinion does not signify acquittal any more than a
       disagreement among the jurors themselves. Id. Instead, the proper remedy is
       to grant a new trial.

Bush v. State, 895 So. 2d 836, 844 (Miss. 2005).

¶52.   Woods was convicted of second degree murder in violation of Section 97-3-19(1)(b),

which provides:

       (1) The killing of a human being without the authority of law by any means or
       in any manner shall be murder in the following cases:
       ...

              (b) When done in the commission of an act eminently dangerous
              to others and evincing a depraved heart, regardless of human
              life, although without any premeditated design to effect the
              death of any particular individual, shall be second-degree
              murder;

Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014).

¶53.   Woods raised the justifiable homicide statute in his defense at trial. Mississippi Code

Section 97-3-15(1)(e)-(f) provides:

       (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


                                              18
              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).

¶54.   The jury was instructed on justifiable homicide. See Miss. Code Ann. § 97-3-15 (Rev.

2014). The jury also was instructed on the Castle Doctrine. The Castle Doctrine, codified

at Section 97-3-15(3)-(4), curtails the duty to retreat and creates a presumption that the

defendant reasonably feared imminent death, great bodily harm, or the commission of a

felony upon him from a person who has unlawfully and forcibly entered the immediate

premises of a dwelling. Newell, 49 So. 3d at 74 (¶ 22) (citing Miss. Code Ann. § 97-3-15(3)-

(4)). The Castle Doctrine includes two prongs:

       First, under subsection (4), 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. 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, 49 So. 3d at 74 (¶ 22) (citing Miss. Code Ann. § 97-3-15).

¶55.   “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.” Flynt v. State, 183 So. 3d 1, 13 (¶ 37)



                                             19
(Miss. 2015) (quoting Miss. Code Ann. § 97–3–15(3) (Rev. 2014)).

¶56.   In a criminal case, the burden of proof remains always with the prosecution on each

element of the offense. Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991). “The defendant

is not required to prove he acted in self-defense, and, if a reasonable doubt of his guilt arises

from the evidence, he must be acquitted.” Ambrose v. State, 133 So. 3d 786, 791 (Miss.

2013) (citing Heidel, 587 So. 2d at 843). Thus, the State had the burden of disproving

justifiable homicide, i.e., self defense and the elements of the Castle Doctrine.

¶57.   Woods argues the evidence presented at trial weighed heavily in his favor and

supported his defense of justifiable homicide. Specifically, the evidence showed that Doris

informed Woods about the domestic violence incident, in which Pierre had kicked in the door

and had fired a shotgun inside her house, just three weeks prior to the day of the subject

shooting. After Doris informed Woods about the incident, Woods asked if she had called the

police. On the day of the shooting, Woods was a guest of Doris at her home. Evidence

showed that Woods was the aggressor, as Pierre came across the street onto Doris’s property

toward Woods. An eyewitness confirmed that Woods was not enticing Pierre, and it was not

unusual for Woods to be at Doris’s house.

¶58.   Pierre was warned several times not to come to Doris’s residence. Undeterred, Pierre

continued to violate the conditions of his bond. Pierre, who was heavily intoxicated, took

off his leg brace to fight Woods, crossed the street, and threw Doris down to the ground at

the edge of her yard and advanced toward Woods. Evidence showed that Doris saw Pierre

retrieve what she believed to be a gun before crossing the street. Doris testified that Pierre



                                               20
told Woods that “I missed you the first time but I won’t miss you this time.” Woods

retrieved a shotgun but remained under the carport of Doris’s home, where he had a right to

be, as Pierre approached. Woods shot Pierre in the leg as he approached him. Doris said in

the last 911 call that Pierre had pulled a gun, and Woods had shot him. Doris testified that

Woods was defending himself.

¶59.   Had the trial court been presented with a motion for a new trial, it would have

evaluated the evidence and the applicability of the Castle Doctrine. Based on the evidence

presented at trial, a reasonable probability exists that the trial court would have found that

the overwhelming weight of the evidence showed that Woods was in a place where he had

a right to be; Pierre was the immediate provoker and aggressor; and Woods was not engaged

in unlawful activity. As a result, Woods had no duty to retreat under the Castle Doctrine.

See Miss. Code Ann. § 97-3-15(4) (Rev. 2014). Moreover, the Castle Doctrine forecloses

the jury from considering Woods’s lack of retreat as evidence that Woods’s use of force was

unnecessary, excessive, or unreasonable. See id.

¶60.   The Castle Doctrine also afforded Woods a presumption that he reasonably feared

imminent death or great bodily harm or the commission of a felony upon him because

evidence showed that Pierre had “unlawfully and forcibly entered a dwelling . . . or the

immediate premises thereof.” Miss. Code Ann. § 97-3-15(3).1 Given no duty to retreat, the

       1
          Mississippi Code Section 97-3-15(3) provides, in part: “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.” Miss. Code Ann. § 97-3-15(3) (emphasis added). The

                                             21
foreclosure of the fact finder from considering the lack of a retreat as evidence that Woods’s

use of force was unnecessary, excessive, or unreasonable, as well as the presumption

afforded by the Castle Doctrine, a reasonable probability exists that the trial court would have

found that the verdict was contrary to the overwhelming weight of the evidence.

¶61.   “The result of a proceeding can be rendered unreliable, and hence the proceeding itself

unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to

have determined the outcome.” Strickland, 466 U.S. at 693 (“We believe that a defendant

need not show that counsel’s deficient conduct more likely than not altered the outcome in

the case.”). In light of the aforementioned evidence preponderating against the verdict, a

reasonable probability exists that the trial court would have granted a new trial. See Holland,

656 So. 2d at 1198. We can say with confidence that the probability is sufficient to

undermine confidence in the outcome. See Giles, 187 So. 3d at 120-21 (¶ 13) (citing

Strickland, 466 U.S. at 694).

¶62.   To be clear, we do not hold that the verdict was against the overwhelming weight of

the evidence; rather, we hold that a reasonable probability exists that the trial court would

have granted a motion for a new trial, finding that the evidence preponderated so heavily

against the verdict that a new trial was required to avoid sanctioning an unconscionable

injustice. Accordingly, we reverse and remand for a new trial.



parties do not brief the issue of whether the presumption should not apply because Pierre
may have been an “owner of the dwelling.” While evidence showed that Pierre once had
resided at Fourteen Hampton Court, the evidence does not show whether he was an “owner
of the dwelling” at the time of the shooting. Moreover, no evidence was presented at trial
showing that Woods’s possession of the shotgun constituted “unlawful activity.”

                                              22
                                      CONCLUSION

¶63.   Woods’s argument that insufficient evidence supported the verdict was waived and

is not properly before the Court. However, we reverse the judgment and remand the case to

the Circuit Court of Adams County for a new trial due to ineffective assistance of counsel

for the failure to file a motion for a new trial based on the evidence presented. A reasonable

probability exists that the trial court would have granted a motion for a new trial had it been

given the opportunity.

¶64.   REVERSED AND REMANDED.

    WALLER, C.J., KITCHENS, P.J., KING AND ISHEE, JJ., CONCUR.
CHAMBERLIN, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., MAXWELL AND
BEAM, JJ.

    CHAMBERLIN, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶65.   Because I disagree with the majority’s conclusion that “there is a reasonable

probability that the trial court would have granted a motion for a new trial,” I respectfully

dissent. As Woods’s conviction was not against the overwhelming weight of the evidence,

his counsel’s ineffective assistance did not prejudice him. The jury, after being properly

instructed on the law—including Woods’s defense of justifiable homicide and the application

of the Castle-Doctrine presumption—weighed the evidence and found Woods guilty of

murder. See Flynt v. State, 183 So. 3d 1, 11–14 (Miss. 2015) (finding that the verdict was

not against the overwhelming weight of the evidence despite the defendant’s theory of self-

defense and the application of the Castle Doctrine). While I agree that the failure to make



                                              23
any post-trial motions was ineffective assistance, I would not disturb Woods’s conviction,

as he cannot demonstrate prejudice.

¶66.   In order to prevail on an ineffective-assistance claim, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694,

104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674 (1984). In other words, Woods must show a

reasonable probability that the trial court would have granted a motion for a new trial had one

been made. Given the record before us, Woods cannot meet his burden of proof. See id. at

693 (noting the “general requirement that the defendant affirmatively prove prejudice.”).

¶67.   “It is presumed that jurors follow the instructions of the court. To presume otherwise

would be to render the jury system inoperable.” Flynt v. State, 183 So. 3d 1, 11 (Miss. 2015)

(quoting Gray v. State, 728 So. 2d 36, 63 (Miss.1998)). “[F]actual disputes are properly

resolved by a jury and do not mandate a new trial.” Id. at 14 (quoting Beasley v. State, 136

So. 3d 393, 403 (Miss. 2014)). Further,

       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)).

Id. (alteration in original) (Barfield v. State, 22 So. 3d 1175, 1187–88 (Miss. 2009)).

¶68.   While I recognize that the ineffective assistance in this case leaves this Court without



                                               24
a ruling to review under an abuse-of-discretion standard,2 as recognized by the majority, this

is not an unfamiliar procedural posture for this Court. See Giles v. State, 187 So. 3d 116,

125–26 (Miss. 2016) (affirming conviction despite no post-trial motions); Parker v. State,

30 So. 3d 1222, 1234–35 (Miss. 2010) (same). Clearly, a remand is not automatic.

¶69.   For a remand to be merited, “[t]he defendant must . . . demonstrate a reasonable

probability that the result of the trial would have been different but for counsel’s

deficiencies.” Holland v. State, 656 So. 2d 1192, 1198 (Miss. 1995). In Holland v. State,

Holland admitted to simple possession but denied any intent to distribute. Id. at 1197.

Defense counsel, however, failed to make a motion for directed verdict or enter any post-trial

motions. Id. This “deprived the trial judge of the opportunity to review the evidence and

reexamine possible errors at trial.” Id. In light of Holland’s defense strategy and his

counsel’s failure to have the trial judge examine the sufficiency of the evidence, the Holland

Court detailed the prejudice:

       There was more than a reasonable probability in this instance. . . . [T]he
       evidence was insufficient as a matter of law to support the charge and there
       was a reasonable probability that the trial judge would have granted the
       renewed motion for a judgment notwithstanding the verdict or a peremptory
       instruction had he been afforded a second chance to review the evidence
       produced at trial. In addition, a reversal would have definitely followed if the
       error had been properly preserved for appeal.

Id. at 1198.

¶70.   In contrast, a remand is not appropriate where the defendant is not prejudiced by



       2
       See Beasley, 136 So. 3d at 401 (“The standard of review for a post-trial motion is
abuse of discretion.”).


                                             25
counsel’s deficiency. Giles, 187 So. 3d at 125–26. When the evidence is legally sufficient

to support the verdict and the verdict is not against the overwhelming weight of the evidence,

there is no reasonable probability that the outcome would have been different and the

defendant is not entitled to a new trial. See Id.

¶71.   Thus, the question before this Court is whether—with “the evidence . . . weighed in

the light most favorable to the verdict”—is this such an “exceptional case[] in which the

evidence preponderates heavily against the verdict” that there is a reasonable probability that

a trial court would have granted the motion? Bush v. State, 895 So. 2d 836, 844 (Miss.

2005), overruled on other grounds by Little v. State, 2017 WL 4546740, at *3–4 (Miss. Oct.

12, 2017). I would say no. As noted, this Court presumes that jurors follow the instructions

provided to them. Flynt, 183 So. 3d at 11. Woods in his appeal fails to offer any proof of

prejudice that would foreclose this Court from relying on this bedrock principle. Here, the

jury considered the evidence in the record, applied the governing law, and concluded that

Woods murdered Pierre. Therefore, as long as the evidence in the record is legally sufficient

to support the conviction and the conviction is not against the overwhelming weight of the

evidence, there is no prejudice to Woods. This is the case here.

¶72.   The State offered sufficient evidence to demonstrate that Woods killed Pierre with the

intent necessary to commit second-degree murder without the authority of law and not in

necessary self-defense. See Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014). The parties

stipulated to the fact that the State Medical Examiner had determined that Pierre Tenner

“died as a result of a gunshot wound, and the manner of death was homicide.” Doris also



                                              26
testified that she came back out of her house after hearing the shot and saw Woods with a

shotgun. Further, Paul Armstead maintained that he saw Woods retrieve the shotgun and saw

Pierre fall to the ground after being shot. Woods also shot Pierre after having entered the

house twice during the argument with the knowledge that Doris had contacted law

enforcement multiple times. The evidence further demonstrated that Pierre was intoxicated

during the argument, with a blood alcohol count of .24. While none of these facts barred

Woods’s Castle-Doctrine defense and self-defense theory, the facts in this record do support

the jury’s conclusion that the Castle Doctrine did not apply, that Woods did not act in self-

defense and that Woods did in fact murder Pierre. After review of the record, I would find

that the evidence was legally sufficient to support Woods’s conviction.3

¶73.   In light of this evidence, the verdict was not against the overwhelming weight of the

evidence. Pierre was heavily intoxicated at the time and some distance from Woods when

Woods shot him. Further, Woods had entered the house multiple times and voluntarily chose

to come back outside during the encounter. Woods also knew that Doris had called law

enforcement and had asked them to respond to Pierre. Moreover, Pierre was unarmed when

Woods shot him and left him to die in the driveway.

¶74.   Concerning the Castle Doctrine, the Majority assumes that Woods was entitled to the



       3
         This case differs from Holland or Giles. Here, the trial court took the opportunity
to test the sufficiency of the State’s evidence. After the State rested, Woods’s counsel
moved for a directed verdict. Citing the Castle Doctrine, Woods’s counsel argued, “[T]he
State has the burden to prove that my client did not act in self defense, and the State has
utterly failed to prove that my client did not have that reasonable fear.” The trial court
determined otherwise: “[T]he State has submitted sufficient evidence and testimony to join
the issue of whether or not the defendant acted in self defense.”

                                             27
presumption. See Maj. Op. at ¶60. Under Mississippi law, though, whether Woods is

entitled to the Castle-Doctrine presumption or not is a question to be resolved by a jury.

Newell v. State, 49 So. 3d 66, 73–78 (Miss. 2010). “In a homicide prosecution where the

defendant asserts that the castle doctrine applies, and there are discrepancies in witness

testimony, the issue is properly left to the jury.” Bryant v. State, 2017 WL 1712543, at *3

(Miss. Ct. App. May 2, 2017), reh’g denied (Sept. 12, 2017) (citing Flynt, 183 So. 3d at 14).

This principle was reflected in Jury Instruction D-19, which required the jury to determine

that the necessary elements under Section 97-3-15(3) were satisfied by the evidence in the

record before applying the presumption to Woods.

¶75.   It is not a foregone conclusion that the circumstances described in Section 97-3-15(3)

were supported by the evidence. “[T]he jury is the judge of the weight and credibility of

testimony and is free to accept or reject all or some of the testimony given by each witness.”

Meshell v. State, 506 So. 2d 989, 992 (Miss. 1987) (citing Arteigapiloto v. State, 496 So. 2d

681, 686 (Miss.1986)).

¶76.   Much of the evidence that the jury would have considered concerning the application

of the presumption was testimony from Doris, a witness whose credibility was attacked a

number of times at trial. During cross-examination, Doris admitted that her three written

statements (two to law enforcement) each contradicted her testimony on direct examination.

Also during cross-examination, Doris claimed that she had told Woods’s defense attorney

that Pierre had told Woods that he did not get him the other day but was going to get him this

time. Doris conceded, though, that none of her prior written statements included Pierre’s



                                             28
threat to Woods. From the record evidence, Doris recalls three different accounts of when

and where she saw Pierre after he was shot. Further, her testimony and statements differ with

one another over whether Woods followed her into the actual house or merely went into the

attached laundry room.

¶77.     Again, “the jury is . . . is free to accept or reject all or some of the testimony given by

each witness.” Meshell, 506 So. 2d at 992. At the end of Doris’s cross-examination, the

following exchange took place:

         Q.     Which one of these stories are we supposed to believe, Ms. Tenner?

         A.     The story I told.

         Q.     Which time?

         A.     Today.

         Q.     So the one that you said on the day that it happened, the day that it
                happened, you want us to believe that what you’re telling us today is the
                truth and that’s not?

         A.     Today is the truth.

Of course, the jury was not under any requirement to believe that Doris had testified to the

truth.

¶78.     In fact, beyond the contradiction in Doris’s own testimony and statements, the jury

could also have chosen to find Paul Armstead’s testimony more credible. Armstead testified

that it did not seem odd for Pierre to be across the street that day. According to Armstead,

he did not see Doris intervene between Woods and Pierre. He also maintained that he had

not been at 14 Hampton Court that day with Woods—contrary to Doris’s claim that Armstead



                                                 29
had been drinking with Woods in the carport. Further, Armstead stated that he did not see

Pierre with a gun, that Pierre did not act as if he had a gun and that Pierre did not lean into

his truck before crossing the street toward Woods. The jury is the ultimate fact-finder and

properly weighed the conflicting evidence and arrived at a verdict which the evidence

supports.

¶79.   Because there is not a reasonable probability that the trial court would have granted

a motion for a new trial had one been made, I would affirm Woods’s conviction. Sufficient

evidence supports the verdict, and the verdict is not against the overwhelming weight of the

evidence.

       RANDOLPH, P.J., MAXWELL AND BEAM, JJ., JOIN THIS OPINION.




                                              30
