        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-00846-COA

RANDALL COOPER, JR. A/K/A RANDALL                                        APPELLANT
COOPER A/K/A RANDALL CARL COOPER, JR.
A/K/A RANDALL C. COOPER, JR. A/K/A
RANDALL CARL COOPER

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                        05/15/2015
TRIAL JUDGE:                             HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:               LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
                                              HUNTER N. AIKENS
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
                                              LADONNA C. HOLLAND
DISTRICT ATTORNEY:                       FORREST ALLGOOD
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF COUNT I, FIRST-DEGREE
                                         MURDER, AND SENTENCED TO LIFE
                                         IMPRISONMENT IN THE CUSTODY OF
                                         THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS
DISPOSITION:                             AFFIRMED - 03/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE BARNES, WILSON AND GREENLEE, JJ.

      WILSON, J., FOR THE COURT:

¶1.   Randall Cooper was indicted for murder after he shot Virgil Harris. At trial,

eyewitnesses to the shooting testified, as did investigating law enforcement officers. The

court instructed the jury on first-degree murder, second-degree murder, heat-of-passion
manslaughter, and self-defense. The jury found Cooper guilty of first-degree murder, and

the court sentenced him to life imprisonment.

¶2.    On appeal, Cooper argues that the circuit court erred by granting three of the State’s

jury instructions and by denying one of his proposed instructions. Cooper claims that the jury

was not adequately instructed on the issue of self-defense and that the court’s instructions on

the concept of “deliberate design” and the relationship and differences between murder and

manslaughter were confusing and misleading. Cooper also claims that the evidence was

insufficient to convict him of first-degree murder and that the verdict was against the

overwhelming weight of the evidence. He argues that the evidence established a reasonable

doubt that he shot the victim in the heat of passion or in self-defense.

¶3.    For the reasons that follow, Cooper’s arguments are without merit. In addition,

Cooper failed to object to the jury instructions that he challenges on appeal, so those issues

are procedurally barred. Accordingly, we affirm Cooper’s conviction and sentence.

                        FACTS AND PROCEDURAL HISTORY

¶4.    On December 19, 2013, Cooper, Vursha Lovelace, and Virgil Harris (Virgil) all

attended a party at Lovelace’s brother’s apartment. When Lovelace arrived at the party,

Cooper was one of a dozen or so guests present. Guests were drinking and shooting dice.

Lovelace left the party briefly, and when she returned, Virgil had also arrived. Lovelace

noticed that Virgil had a gun when she first saw him, although she did not see the gun when

she saw him again later.

¶5.    Lovelace later received a call from Tevin Harris (Harris), who asked her to come pick



                                              2
him up. Earlier in the night, Virgil had asked Lovelace for a ride, so she told him that she

was leaving the party to get Harris and that she could drop him off. Virgil told Lovelace that

he wanted to go to Sanfield and gave her five dollars to drive him there. Virgil sat in the

front passenger seat of Lovelace’s Monte Carlo. Lovelace did not see a gun when Virgil got

into the car. As Lovelace and Virgil were about to leave, Cooper followed them outside and

asked for a ride. He got in the backseat behind Lovelace. They drove to Harris’s house to

pick him up, and Harris sat in the back seat behind Virgil. Harris later testified that he saw

a .380-caliber handgun on Virgil’s lap as he approached the Monte Carlo. The four then

continued to Sanfield to drop Virgil off.

¶6.    As they drove down the highway, Virgil became agitated and began “talking crazy.”

Cooper told Virgil to calm down. Virgil said he would slap Lovelace if she were not his

brother’s sister. Virgil threatened to “burn” (i.e., shoot) everyone in the car. Although they

had not reached Sanfield, Virgil told Lovelace to pull over and let him out. Lovelace pulled

over, and as Virgil exited the car, he called everyone in the car “the B word.” Lovelace

testified, “So when [Virgil] said that, Cooper leaned over [and] shot him one time.” Virgil

fell to the ground, and Cooper leaned over him and continued shooting. Lovelace put the car

in park and ran to Virgil. Cooper and Harris got out of the car as well. Suddenly, Cooper

and Harris jumped in the driver and passenger seats respectively, and Lovelace jumped in the

backseat. Cooper drove a block or two and stopped, and then he and Harris got out of the

car and ran. Lovelace returned to the scene.

¶7.    At trial, Lovelace testified to the above version of events. She denied that she was



                                               3
ever afraid while Virgil was “talking crazy,” but she admitted that she was glad when he

wanted to get out of the car. Though Lovelace initially testified that she did not tell the

police that Virgil had said “take me to jail” or “I’ll spray everyone in this car,” she later

admitted telling police that Virgil had made those statements. Lovelace also reiterated that

she never saw Virgil’s gun in the car.

¶8.    Harris testified that he felt threatened by Virgil’s statements in the car because he had

seen Virgil’s gun when he entered the car. Harris said that he had seen Virgil with the same

black and chrome .380 previously. Harris acknowledged that he also saw Cooper’s gun in

his waistband, which added to his unease. Harris testified that he asked if Cooper and Virgil

were “alright,” and Cooper said, “Yeah, I’m cool, man.” Virgil also said, “I’m good.” Harris

claimed that there was a disagreement about money, which may have caused Virgil to start

“talking crazy.” Much of Harris’s testimony about Virgil’s statements was vague and

difficult to follow, but he did testify that Virgil said he was going to “burn somebody” or

“burn” everyone in the car. He also testified that Virgil told Cooper that he (Virgil) had a

gun and was cursing everyone in the car. Finally, Virgil demanded to be let out of the car.

¶9.    Harris said that as Lovelace stopped the Monte Carlo in the middle of the street, Virgil

opened the door and then stopped as he was exiting. He turned around, pointed at Harris, and

said, “If you are going to ride with them, you can get it too.” He then looked at Lovelace,

“flinched” at her, and threatened to slap her. Harris said that Virgil then turned as if to get

out of the car, grabbed the gun from his lap with his left hand, had his right hand on his

sagging pants, and then Cooper suddenly fired one shot. Virgil fell, and Cooper fired several



                                               4
more times. Harris said this happened very quickly. Harris also claimed to see Virgil’s .380

on the ground near his body. Though Harris maintained that he saw a gun in Virgil’s lap, he

admitted that he never saw Virgil point the gun at anyone in the vehicle.

¶10.   Linda Ingram, who lived near the crime scene, was resting on her couch when she

heard gunshots. She testified that she heard one shot, then a pause, then several more shots.

She ran outside and saw Virgil in the street. No one else was present, but a police officer

soon arrived. Ingram’s cousin, Joshua Jackson, was sleeping on her porch. He also heard

one shot, a pause, then several shots. Though he did not see the actual shooting, he saw one

man get into the Monte Carlo and drive away.

¶11.   Officer Oscar Lewis of the Columbus Police Department responded to an emergency

dispatch and arrived on the scene within minutes of the shooting. He found Jackson kneeling

over Virgil and pleading for help. After paramedics and other officers arrived, Lewis

photographed the scene. Lewis observed shattered glass, shell casings, and blood, but he did

not find a gun at the scene.

¶12.   Austin Shepard of the Columbus Police Department crime lab testified about the

evidence he collected from the scene. He collected six shell casings and three projectiles

near Virgil’s body. He noted that the Monte Carlo’s front passenger window was broken,

and he found one shell casing on the back passenger seat.

¶13.   The day after the shooting, two employees of Golden Triangle Waste Services found

a .40-caliber Smith & Wesson handgun in the bottom of a trash can near the crime scene.

One of the men took it home, but when they discovered that it might have been used in the



                                             5
shooting, they turned the gun over to the Columbus Police Department.

¶14.   Investigator Chris Van Houten collected two projectiles from Virgil’s body at Baptist

Memorial Hospital. One was underneath Virgil’s body, and the other was embedded in his

clothing. Van Houten later attended Virgil’s autopsy and collected four .380 rounds and a

brown bag containing a bottle of unknown liquid from Virgil’s effects.

¶15.   Tommy Bishop, a forensic scientist at the Mississippi Crime Laboratory, testified as

an expert in firearm identification. Bishop concluded that all of the casings and projectiles

collected at the scene or during the autopsy were fired from the .40-caliber Smith & Wesson

recovered from the nearby trash can.

¶16.   Brent Davis from the State Medical Examiner’s Office performed Virgil’s autopsy.

Davis found two bullet entry wounds to the right side of Virgil’s neck and six entry wounds

to the left side of Virgil’s torso. All entry wounds had a corresponding exit wound except

for one wound to the left torso. A bullet was found lodged in the right side of Virgil’s chest.

¶17.   At the conclusion of the evidence, the jury was instructed on first-degree murder,

second-degree murder, heat-of-passion manslaughter, and self-defense. The jury found

Cooper guilty of first-degree murder.        The circuit judge sentenced Cooper to life

imprisonment, as required by law. Cooper filed a motion for a new trial or judgment

notwithstanding the verdict, which was denied, and then a timely notice of appeal.

¶18.   On appeal, Cooper argues that the circuit court judge committed reversible error by

denying one of his proposed jury instructions on self-defense and by giving three instructions

requested by the State. He also argues that the evidence was insufficient to support the



                                              6
verdict or that the verdict was against the overwhelming weight of the evidence. We find no

error and therefore affirm Cooper’s conviction and sentence.

                                         ANALYSIS

       I.     Jury Instructions

¶19.   Cooper argues that the circuit court erred by refusing instruction D-3 and by granting

instructions S-6B, S-3B, and S-5B. We review the grant or denial of jury instructions for an

abuse of discretion. Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010). The instructions

must be read as a whole, and if all instructions “fairly, but not necessarily perfectly, announce

the applicable rules of law, no error results.” Crook v. State, 105 So. 3d 353, 358 (¶13)

(Miss. Ct. App. 2012) (quoting Davis v. State, 18 So. 3d 842, 847 (¶14) (Miss. 2009)). In

cases involving homicide, the defendant has a right to instruct the jury about his “theories of

defense, justification, or excuse . . . , no matter how meager or unlikely.” Evans v. State, 797

So. 2d 811, 815 (¶11) (Miss. 2000) (quoting Manuel v. State, 667 So. 2d 590, 593 (Miss.

1995)). While a defendant is entitled to jury instructions that present his theory of the case,

an instruction may be improper if it incorrectly states the law, is redundant, or lacks

foundation in the evidence presented. Crook, 105 So. 3d at 358 (¶13) (citing Davis, 18 So.

3d at 847 (¶15)).

              A.      Instruction D-3

¶20.   Cooper’s proposed instruction D-3 read:

       The Court instructs the jury that you are not to judge the actions of Randall
       Cooper, Jr., in the cool, calm light of after-developed facts, but instead you are
       to judge his actions in the light of the circumstances confronting Randall
       Cooper, Jr., at the time, as you believe from the evidence that those


                                               7
       circumstances reasonably appeared to him on that occasion; and if you believe
       that under those circumstances it reasonably appeared to Randall Cooper, Jr.,
       at that instant that he took up a weapon, that Randall Cooper, Jr., then and
       there had reasonable ground to apprehend a design on the part of the deceased
       to kill Randall Cooper, Jr., or to do Randall Cooper, Jr., some great personal
       injury, and there reasonably appeared to Randall Cooper, Jr., to be imminent
       danger of such designs being accomplished[]; that Randall Cooper, Jr., was
       justified in anticipating an attack and using reasonable means to defend such
       attack; then you must find Randall Cooper, Jr., not guilty of the murder of the
       deceased.

The trial judge refused the instruction after concluding that it was “not a correct statement

of the law.”

¶21.   Cooper argues that the judge abused his discretion by refusing D-3 because it is nearly

identical to the instruction that the Mississippi Supreme Court approved in Maye v. State, 49

So. 3d 1124, 1131-32 (¶¶16-18) (Miss. 2010). In Maye, the Supreme Court held that the trial

court abused its discretion by refusing essentially the same instruction.1 Id. at 1132 (¶18).

The Court stated: “Maye’s theory of the case was self-defense, which was supported by

       1
           Maye’s proposed instruction D-8 read:

       The Court instructs the jury that you are not to judge the actions of Cory J.
       Maye in the cool, calm light of after-developed facts, but instead you are to
       judge his actions in the light of the circumstances confronting Cory J. Maye
       at the time, as you believe from the evidence that those circumstances
       reasonably appeared to him on that occasion; and if you believe that under
       those circumstances it reasonably appeared to Cory J. Maye, at the instant that
       he took up a weapon, that Cory J. Maye then and there had reasonable ground
       to apprehend a design on the part of Ron Jones to kill Cory J. Maye or his
       daughter or to do Cory J. Maye and his daughter some great personal injury,
       and there reasonably appeared to Cory J. Maye to be imminent danger of such
       designs being accomplished; then Cory J. Maye was justified in anticipating
       an attack and using reasonable means to defend such attack; then you must
       find Cory J. Maye not guilty of the murder of Ron Jones.

Maye, 49 So. 3d at 1131 (¶16).

                                              8
some evidence. Instruction D-8 was a correct statement of the law regarding how the jury

should have interpreted Maye’s actions, and it properly would have extended Maye’s self-

defense claim to include his asserted claim of defense . . . .” Id.

¶22.   But subsequently in Crook, this Court concluded that

       the [S]upreme [C]ourt in Maye did not hold or in any way intimate that an
       instruction mirroring [Maye’s proposed instruction D-8] must be routinely
       given in every case where self-defense is raised. Instead, a split [S]upreme
       [C]ourt reversed Corey Maye’s murder conviction because the . . . jury
       instructions [that were given] did “not fully define self-defense as applied to
       the facts of [that] case.” Indeed, the [S]upreme [C]ourt in Maye mentioned
       the fact-specific nature of its decision on the excluded jury instruction, not
       once but twice . . . .

Crook, 105 So. 3d at 361 (¶20) (quoting Maye, 49 So. 3d at 1130 (¶10)); see also Maye, 49

So. 3d at 1131 (¶15) (finding that the self-defense instructions given “did not go far enough

in this case” (emphasis added)).

¶23.   In Crook, we observed that, “[w]ithout question, Maye’s facts [were] certainly

unusual”: “Maye shot a police officer who was executing a lawful search warrant at Maye’s

residence,” and his defense was that “he mistakenly believed the officer to be an intruder.”

Crook, 105 So. 3d at 361 (¶21). We concluded that the facts in Crook were “vastly” different

from Maye. Id. at (¶22). Crook claimed that he drew a box-cutter in self-defense during a

fistfight with his girlfriend’s cousin and then accidentally stabbed the man as they struggled.

Id. Unlike Maye, Crook’s defense did not involve any “misapprehension or mistaken belief

later brought to light by ‘after[-]developed facts.’” Id. This Court held that for such a

“routine self-defense . . . claim” that did not involve any “after-developed facts,” a standard




                                               9
“Robinson instruction,”2 as modified by Reddix v. State,3 was a complete and adequate

statement of the law on self-defense. Crook, 105 So. 3d at 362 (¶23). Accordingly, we held

that it was not an abuse of discretion for the trial judge to refuse an additional instruction that

mirrored Cooper’s proposed instruction D-3. Id.4

¶24.   This case is controlled by this Court’s decision in Crook. Like in Crook—and unlike

in Maye—Cooper’s claim of self-defense did not implicate any after-developed facts,

misapprehension, or mistaken belief. Harris testified that Virgil had his gun out on his lap,

while Lovelace testified that she did not see the gun during the car ride. But whether Virgil


       2
         In Robinson v. State, the Supreme Court recommended the following self-defense
instruction:

       The court instructs the jury that to make a killing justifiable on the grounds of
       self-defense, the danger to the defendant must be either actual, present and
       urgent, or the defendant must have reasonable grounds to apprehend a design
       on the part of the victim to kill him or to do him some great bodily harm, and
       in addition to this he must have reasonable grounds to apprehend that there is
       imminent danger of such design being accomplished. It is for the jury to
       determine the reasonableness of the ground upon which the defendant acts.

Robinson v. State, 434 So. 2d 206, 207 (Miss. 1983), overruled on other grounds by
Flowers v. State, 473 So. 2d 164, 165 (Miss. 1985).
       3
         In Reddix v. State, 731 So. 2d 591, 594-95 (¶¶17-21) (Miss. 1999), the Supreme
Court held that the jury must be instructed that it is bound to acquit the defendant if it finds
that he acted in self-defense.
       4
         Crook was a 6-4 decision of this Court. On November 15, 2012, the Mississippi
Supreme Court granted Crook’s petition for a writ of certiorari, with four justices voting to
grant and five voting to deny. On January 17, 2013, the Court entered an order “find[ing]
that there [was] no need for further review, and that the writ of certiorari should be
dismissed.” The order noted that only two justices disagreed, with one justice not
participating. In addition, in Brown v. State, 194 So. 3d 139 (Miss. Ct. App. 2015), cert.
denied 209 So. 3d 428 (Miss. 2016), we held, with little discussion, that the trial court in a
murder case “properly refused” an essentially identical instruction. Id. at 145 (¶¶14-16).

                                                10
displayed a gun is a disputed fact, not an after-developed fact. Instruction D-3 might have

been necessary if there had been evidence that Virgil displayed what appeared to be a gun

but turned out to be a harmless object. See id. at 361-62 (¶22). However, no such evidence

was presented. Cooper advanced a “routine self-defense . . . claim” that was fairly and

adequately addressed by standard self-defense instructions. Id. at 362 (¶23). Therefore,

although instruction D-3 was an accurate statement of Mississippi law, the trial judge did not

abuse his discretion by refusing to give it based on the facts of this case. Id.

               B.     Instruction S-6B

¶25.   The circuit court granted instruction S-6B, which read:

       The Court instructs the Jury that the phrase “heat of passion” refers to a sudden
       violent passion, which temporarily suspends or overthrows the judgment of the
       Defendant[;] however, this high degree of sudden and resentful feelings will
       not alone reduce an act of homicide committed under its influence to
       manslaughter. There must be such circumstances as would indicate that a
       normal mind would be roused to the extent that reason was overthrown, and
       that passion overtook the mind, thus destroying judgment. Therefore, if you
       find from the evidence in this case beyond a reasonable doubt that the
       Defendant, Randall Cooper, was induced by some insult, provocation, or injury
       which would naturally and instantly produce in the mind of a normal person
       a sudden impulse of violent passion; and further that in such state of mind, the
       Defendant shot Virgil Harris resulting in his death, then the shooting was done
       in the “heat of passion.”

¶26.   Cooper argues that this instruction confused the jury by implying that it was required

to find beyond a reasonable doubt that he killed Virgil in the heat of passion before it could

find him not guilty of first-degree murder. However, Cooper did not object to this instruction

at trial; rather, his attorney affirmatively stated that he “accepted” it. Therefore, the issue is

procedurally barred. Holliman v. State, 178 So. 3d 689, 700 (¶24) (Miss. 2015).



                                               11
¶27.   Moreover, the argument is without merit. Instructions must be read as a whole, not

in isolation. Milano v. State, 790 So. 2d 179, 184 (¶14) (Miss. 2001). The circuit court first

instructed the jury that in order to find Cooper guilty of first-degree murder, it had to find

“beyond a reasonable doubt” that Cooper shot Virgil “with the deliberate design to effect

death.” The court then instructed that “‘deliberate design’ . . . means intent to kill without

authority of law and not being legally justifiable, legally excusable or under circumstances

that would reduce the act to a lesser crime.” Therefore, the court instructed the jury that it

was the State’s burden to prove beyond a reasonable doubt that Cooper acted with deliberate

design, which included proof beyond a reasonable doubt that he did not act in the heat of

passion. Instructions S-5B and S-6B then instructed the jury that in order to convict Cooper

of heat-of-passion manslaughter, it would be required to find beyond a reasonable doubt that

he shot Virgil in the heat of passion. This was a correct statement of the law.

              C.      Instruction S-3B

¶28.   Without objection, the circuit court gave instruction S-3B, which read:

       The Court instructs the Jury that the term “deliberate design” as used in these
       instructions means intent to kill without authority of law and not being legally
       justifiable, legally excusable or under circumstances that would reduce the act
       to a lesser crime. The deliberate design to effect death cannot be formed at the
       very moment of the fatal act; however, the deliberate design to effect death
       need not exist in the mind of the Defendant for any definite period of time. If
       there is deliberate design, and it exists in the mind of the Defendant but for an
       instance [sic] before the fatal act, this is sufficient deliberate design to
       constitute the offense of First-Degree Murder.

Cooper did not object to this instruction at trial; rather, his attorney expressly stated that he

“accepted” it. Accordingly, this issue is also procedurally barred. Holliman, 178 So. 3d at



                                               12
700 (¶24).

¶29.   Moreover, the issue is without merit. Cooper now argues (1) that the instruction failed

to inform the jury that an intentional killing could be manslaughter rather than first-degree

murder; (2) that the instruction’s “but for an instance [sic]” language was confusing and

misleading; and (3) that the instruction impermissibly commented on the evidence.

¶30.   With respect to Cooper’s first point, as noted above, the court specifically instructed

the jury that if Cooper shot Virgil “under circumstances that would reduce the act to a lesser

crime”—i.e., in the heat of passion—then he did not kill Virgil with “deliberate design.” See

Wortham v. State, 883 So. 2d 599, 604-05 (¶¶20-21) (Miss. Ct. App. 2004); Brown v. State,

768 So. 2d 312, 316-17 (¶16) (Miss. Ct. App. 1999). As to Cooper’s second point, the

Supreme Court has clearly and repeatedly upheld instructions that “deliberate design” may

be formed “but for an instant before the fatal act.” See, e.g., Roby v. State, 183 So. 3d 857,

872-73 (¶¶64-66) (Miss. 2016); Holliman, 178 So. 3d at 700-01 (¶¶24-26); Theodore v. State,

798 So. 2d 465, 469-70 (¶¶19-24) (Miss. 2001); Fears v. State, 779 So. 2d 1125, 1127-28

(¶¶6-15) (Miss. 2000). Cooper’s argument relies on a dissenting opinion. See Fears, 779

So. 2d at 1130-32 (¶¶25-30) (Waller, J., dissenting). As to Cooper’s third criticism, the

instruction does not comment on the evidence but merely defines the concept of deliberate

design. In summary, the instruction was consistent with Mississippi Supreme Court

precedent.

              D.     Instruction S-5B

¶31.   Cooper argues that the circuit court should not have given S-5B because it omitted an



                                             13
essential element of heat-of-passion manslaughter. The instruction read, in pertinent part:

         Heat of passion Manslaughter is distinguished from First-Degree Murder by
         the lack of malice and the presence of heat of passion. Therefore, if you find
         from the evidence in this case beyond a reasonable doubt that the Defendant,
         RANDALL COOPER, Jr., did on or about December 20, 2013, unlawfully,
         willfully and feloniously, kill Virgil Harris without malice aforethought and
         in the heat of passion, with a handgun, then you shall find the Defendant guilty
         of Manslaughter.

On appeal, Cooper argues that the instruction was incomplete because it failed to specify that

heat-of-passion manslaughter was a killing “not in necessary self-defense.” See Miss. Code

Ann. § 97-3-35 (Supp. 2016). Cooper speculates that this omission may have led the jury to

infer “that self-defense was required in order to find Cooper guilty of manslaughter and not

murder,” which may have influenced the jury to convict him of murder. However, Cooper

did not object to this instruction at trial. His attorney clearly stated that he had “no objection”

to it. Therefore, this argument is also procedurally barred. Holliman, 178 So. 3d at 700

(¶24).

¶32.     Procedural bar notwithstanding, the omission was neither plain error5 nor prejudicial.

The jury did not convict Cooper of manslaughter, so he does not contend that the omission

requires reversal because it omitted an element of that offense. Furthermore, we reiterate that

jury instructions must be read as a whole, not in isolation. Milano, 790 So. 2d at 184 (¶14).

         5
           We may notice “plain error” despite a defendant’s failure to preserve the issue at
trial. The Supreme Court has explained that “[t]he plain[-]error doctrine is employed only
in situations when a defendant’s substantive or fundamental rights are affected. Plain-error
review is properly utilized for correcting obvious instances of injustice or misapplied law.
. . . [I]n order to determine if plain error has occurred, we must determine if the trial court
has deviated from a legal rule, whether that error is plain, clear, or obvious, and whether the
error has prejudiced the outcome of the trial.” Green v. State, 183 So. 3d 28, 31 (¶6) (Miss.
2016) (citations, quotation marks, and alterations omitted).

                                                14
Instruction S-7B clearly instructed the jury that “[i]f the State ha[d] failed to prove beyond

a reasonable doubt that [Cooper] did not act in self-defense,” then the jury was required to

find Cooper “not guilty.” Read as a whole, the instructions cannot be interpreted to make

self-defense an element of the crime of manslaughter. The potential for confusion that

Cooper suggests simply is not present.

¶33.   As noted above, a defendant is entitled to fair instructions that adequately state the

applicable rules of law. Crook, 105 So. 3d at 358 (¶13). The circuit judge fairly and

adequately instructed the jury on the nature and elements of the charged offenses and

Cooper’s theory of defense. Therefore, we find no abuse of discretion in his giving of the

challenged instructions or refusal of Cooper’s proposed D-3.

       II.    Weight and Sufficiency of the Evidence

¶34.   Cooper argues that the evidence was insufficient to prove beyond a reasonable doubt

that he shot Virgil with deliberate design or, alternatively, that the verdict was against the

overwhelming weight of the evidence. We address these related issues together.

¶35.   When addressing a challenge to the sufficiency of the evidence, “the relevant question

is 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.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia,

443 U.S. 307, 315 (1979)). The issue is not whether we would have found Cooper guilty

based on the evidence presented at trial; rather, his conviction must be affirmed if there was

sufficient evidence for “any rational trier of fact” to have returned a guilty verdict. Id.



                                              15
¶36.   “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.” Id. at 844 (¶18). The evidence should be “[v]iewed in the light

most favorable to the verdict,” and we will affirm unless “[t]he trial court . . . abuse[d] its

discretion in denying a new trial.” Id. at 845 (¶19).

¶37.   The State presented sufficient evidence for a “rational trier of fact” to have convicted

Cooper, and the verdict was not against the overwhelming weight of the evidence. To

convict Cooper of first-degree murder, the State was required to prove beyond a reasonable

doubt that he acted with deliberate design. See Miss. Code Ann. § 97-3-19(1)(a) (Supp.

2016). The State was also required to prove beyond a reasonable doubt that he did not act

in necessary self-defense. Harris v. State, 937 So. 2d 474, 481 (¶23) (Miss. Ct. App. 2006)

(citing Heidel v. State 587 So. 2d 835, 843 (Miss. 1991)).

¶38.   Evidence at trial showed that Cooper shot Virgil eight times, once as he stood beside

or stepped out of the car and seven more times as he lay on the street. Witnesses described

the shots as having a definite pause between the first shot and the final shot, not eight rapid-

fire shots. In addition, Lovelace never saw Virgil carrying or displaying a gun during the car

ride, nor was a gun (other than Cooper’s) ever recovered. Virgil angrily cursed and possibly

threatened others in the car, but witnesses did not agree on whether they even felt threatened

by his behavior. No one testified that Virgil ever pointed a gun at Cooper. Virgil’s words

certainly do not require us to set aside the conviction. In summary, the State’s evidence was



                                              16
sufficient for a rational trier of fact to find that Cooper shot Virgil with deliberate design, and

no “overwhelming” evidence to the contrary was presented.

                                        CONCLUSION

¶39.   The trial judge committed no abuse of discretion in his instructions to the jury, there

was sufficient evidence to convict Cooper of first-degree murder, and the verdict was not

contrary to the overwhelming weight of the evidence. Accordingly, we affirm.

¶40. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF
CONVICTION OF FIRST-DEGREE MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO LOWNDES COUNTY.

     LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND GREENLEE, JJ.,
CONCUR. BARNES, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN
OPINION, JOINED BY IRVING, P.J., AND WESTBROOKS, J. IRVING, P.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION.

       BARNES, J., SPECIALLY CONCURRING:

¶41.   While I concur with the majority’s result, I write separately to express my

disagreement with the majority’s reliance on Crook v. State, 105 So. 3d 353 (Miss. Ct. App.

2012), in determining that the trial court’s refusal of jury instruction D-3 was not an abuse

of discretion. For the reasons stated in my dissent to that case, I find the Crook majority’s

holding – that Maye v. State, 49 So. 3d 1124 (Miss. 2010), is not applicable in instances

where there is “no misapprehension or mistaken belief later brought to light by ‘after

developed facts’” – is not determinative as to whether such an instruction should be given.

Crook, 105 So. 3d at 362 (¶22). Furthermore, as I noted in Crook, the principles announced


                                                17
in jury instruction D-3 “have been a proper statement of the law in this State for over one

hundred years.” Id. at 367 (¶40) (Barnes, J., dissenting).6

¶42.   However, while D-3 was a proper statement of the law, this Court “do[es] not look

at jury instructions in a vacuum.” Williams v. State, 803 So. 2d 1159, 1161 (¶7) (Miss.

2001). When read as a whole, if the jury instructions “fairly announce the law of the case

and create no injustice, no reversible error will be found.” Johnson v. State, 19 So. 3d 145,

146 (¶5) (Miss. Ct. App. 2009) (citation omitted). I find the trial court’s refusal of jury

instruction D-3 is harmless error in this instance based on the evidence produced at trial.

While it was disputed whether Virgil possessed a firearm in the car, no gun was found on or

around Virgil’s body, and Harris testified that Virgil was turned to get out of the car when

the first shot rang out. The evidence here was consistent and overwhelming that after Cooper

fired the initial shot, hitting Virgil in the neck, he continued to shoot Virgil multiple times

while Virgil was lying prone on the ground.7 Lovelace said Cooper reached over the seat to

shoot Virgil after the initial shot, and everyone testifying noted the pause between the initial

shot and the successive barrage of shots. The forensic examiner testified that Virgil had eight

gunshot wounds.

¶43.   I find Cooper suffered no injustice from the trial court’s refusal of jury instruction D-

3, as I can see no basis for any reasonable juror’s applying D-3 to find Cooper not guilty of


       6
           The majority also acknowledges that “D-3 [is] an accurate statement of Mississippi
law[.]”
       7
        This is distinguishable from the facts of Crook, where the defendant claimed he
accidentally stabbed the victim with a box cutter while he and the victim were fighting with
one another.

                                              18
murder. While D-3 may have been applicable had Cooper only fired the initial shot, the

successive shots while Virgil was defenseless on the ground cannot be excused by any

interpretation of D-3. Accordingly, I concur with the majority’s decision to affirm the

judgment of conviction.

      IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.




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