         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-KA-01718-COA

JAMES JOHN RODGERS A/K/A JAMES J.                                            APPELLANT
RODGERS A/K/A JAMES RODGERS

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                          08/29/0213
TRIAL JUDGE:                               HON. JOHN C. GARGIULO
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF MURDER AND
                                           SENTENCED TO LIFE IN THE CUSTODY
                                           OF THE MISSISSIPPI DEPARTMENT OF
                                           CORRECTIONS
DISPOSITION:                               AFFIRMED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       ROBERTS, J., FOR THE COURT:

¶1.    James John Rodgers was convicted, in the Harrison County Circuit Court, of murder

and sentenced to life in the custody of the Mississippi Department of Corrections. Rodgers

filed post-trial motions, which the trial court denied. In his appeal, Rodgers argues the

following: (1) the trial court committed plain error in giving a self-defense jury instruction

containing “at peril” language; (2) there was insufficient evidence to support the guilty
verdict; and (3) the guilty verdict was against the overwhelming weight of the evidence.

Finding no reversible error, we affirm.

                                          FACTS

¶2.    On January 24, 2011, Rodgers was at his home in Gulfport, Mississippi, along with

Megan Taylor (his girlfriend), Jessie Rodgers (his son, referred to as Jessie), and Bridget

Waller (Jessie’s girlfriend). Taylor received a phone call from Clinton Jackson, a prior

boyfriend. Jackson was purportedly upset about photographs taken by Rodgers showing

Taylor’s car at Jackson’s house. Rodgers and Jackson spoke briefly. Taylor testified she

heard Rodgers tell Jackson something like “come talk face-to-face.” Taylor and Waller both

testified Rodgers was agitated after his conversation with Jackson.

¶3.    Approximately thirty minutes later, Jackson came to Rodgers’s home and knocked on

the door. Jessie answered and was instructed by Rodgers not to let Jackson inside. Jessie

escorted Jackson to his car.

¶4.    While escorting Jackson to his car, Jessie testified Jackson was upset, shouting he

would not leave until the matter between Jackson and Rodgers was settled. Jessie told

Jackson he was going to call the police if Jackson did not leave. Jackson exited his car and

began to hit Jessie. The two began fighting inside the driver’s side door of Jackson’s car.

Jessie testified that he saw a pocket knife on the console of Jackson’s car, but never saw

Jackson attempt to grab it. Jessie began to back away from Jackson just as Rodgers emerged

from the house. Rodgers was carrying a gun. According to Jessie, Jackson stepped towards

Rodgers, then Rodgers shot Jackson in the chest. Jessie testified Jackson was approximately

ten to fourteen feet from Rodgers when Rodgers fired one shot, striking the victim in the


                                             2
chest. Jackson died on the scene.

¶5.    Taylor testified that while Jessie and Jackson were outside, Rodgers retrieved his gun

from the bedroom. Taylor stated she attempted to keep Rodgers from going outside to

confront Jackson, while armed, but was unsuccessful. Taylor testified Rodgers was “ranting

and raving.” After hearing the gunshot, Taylor went outside and ran to Jackson. She stated

he was on the ground right beside his car. Taylor also said Jackson’s car was running.

¶6.    Rodgers denied Taylor tried to keep him from leaving the house. Rodgers further

testified he shot Jackson in self-defense because he thought he saw Jackson looking in the

console of his car and assumed Jackson was searching for a weapon. However, Rodgers told

the police he walked towards Jackson while he was fighting with Jessie, pulled Jackson off

of Jessie, and shot Jackson. Furthermore, Rodgers never told the police he thought Jackson

might be armed. When the police arrested Rodgers, they found a spray can of mace in his

front pocket. According to the police, Rodgers asked if Jackson had died, then stated, “if he

didn’t, I’ll make sure he does next time.” Rodgers denied making this statement.

¶7.    Dr. Paul McGarry, the forensic pathologist who conducted Jackson’s autopsy, testified

Jackson did not have any defensive wounds. Dr. McGarry testified the blood spatter in

Jackson’s car indicated, in his opinion, that Jackson was either sitting in the driver’s seat or

in the process of getting out of the car when he was shot. Dr. McGarry stated, based on the

trajectory and angle of the bullet’s path through the victim’s chest cavity and the blood

spatter inside the victim’s vehicle, his opinion was the single shot fired was an “aimed shot”

at the “center mass.” Dr. McGarry performed a toxicology test on Jackson, which indicated

a high level of methamphetamine in his system.


                                               3
                                       DISCUSSION

       I. “AT PERIL” SELF-DEFENSE JURY INSTRUCTION

¶8.    This case involves the inclusion of “at peril” language in one of six jury instructions

on self-defense. Rodgers argues that, even though he did not object to it, giving the

following instruction entitles him to a reversal of his conviction. Instruction S-10 provided:

              The Court instructs the Jury that a person may not use more force than
       reasonably appears necessary to save his life or protect himself from great
       bodily harm. Where a person repels an assault with a deadly weapon, he acts
       at his own peril and the question of whether he was justified in using the
       weapon is for determination by the jury.

              The law tolerates no justification and accepts no excuse for an assault
       with a deadly weapon on the plea of self[-]defense except that the assault by
       the Defendant on the victim was necessary or apparently so to protect the
       Defendant’s own life, or the life of another human being, or his person, or
       another human being, from great bodily injury and there was imminent danger
       of such design being accomplished. The danger to life or of great personal
       injury must be or reasonably appear to be imminent, present at the time the
       Defendant commits the assault with a deadly weapon. The term “apparent” as
       used in “apparent danger” means such overt, actual demonstration by conduct
       and acts of a design to take life or do some great personal injury as would
       make the killing apparently necessary to self-preservation.

(Emphasis added).

¶9.    Citing Flowers v. State, 473 So. 2d 164 (Miss. 1985), Rodgers argues that the giving

of this instruction constitutes plain error, entitling him to a reversal of his conviction. In

Flowers, the defendant specifically objected at trial to the following instruction:

       The court instructs the jury that to make a homicide justifiable on the ground
       of self-defense, the danger to the slayer must be either actual, present and
       urgent, or the slayer must have reasonable grounds to apprehend a design on
       the part of the deceased to kill him, or to do him great bodily harm, and in
       addition to this that there was imminent danger of such design being
       accomplished, and hence mere fear, apprehension or belief, however
       sincerely entertained by the slayer, that another designs to take his life or

                                              4
       to do him great bodily harm will not justify the slayer in taking the life of
       the latter party. The slayer may have a lively apprehension that his life
       is in danger or that he is in danger of great bodily harm, and believe the
       grounds of his apprehension just and reasonable, and yet he acts at his
       own peril. He is not the final judge; the jury may determine the
       reasonableness of the grounds on which he acted.

Id. at 164-65 (emphasis in original). This was the only self-defense instruction given.

Referring to an earlier decision criticizing the instruction, the court explained that the

instruction was invalid because

       the instruction is self-contradictory and confusing. The troublesome part is the
       first sentence of the final paragraph. If a party has “an apprehension that his
       life is in danger” and believes “the grounds of his apprehension just and
       reasonable[,]” a homicide committed by that party is in self-defense. These are
       the grounds upon which a claim of self-defense must be predicated. A party
       acting upon this principle does not “act at his peril.”

Id. at 165 (quoting Scott v. State, 446 So. 2d 580, 583-84 (Miss. 1984)).

¶10.   Flowers specifically overruled eighteen prior decisions from 1859 to 1983, holding

the instruction to be a correct pronouncement on the principles of self-defense. Chief Justice

Roy Noble Lee with Presiding Justice Harry Walker dissented, arguing for the validity of the

instruction. The apparent confusion and ambiguity stem from the phrase “he acts at his own

peril.” To what does “peril” really refer? Objectively speaking, if the defendant’s use of

deadly force was reasonable under the circumstances because he or another was placed in

danger of serious bodily harm or death, the peril is nonexistent since he acted in necessary

self-defense. If the “peril” referred to is that a twelve-person jury will ultimately determine

the reasonableness of the defendant’s use of deadly force under the attendant circumstances,

then the “peril” is real. Hence, the confusion exists. The Flowers court overruled earlier

cases that had approved the instruction, noting:

                                              5
        It appears from our review that criticism by this Court is construed to mean
        this instruction is approved for continued use. We intend precisely the
        opposite effect, that its use be discontinued. Presently to remove any such
        doubt, we now condemn [the quoted instruction] and forthrightly hold it
        constitutes reversible error in this case and will be so considered in future
        cases.

Id. The Flowers court did not mention whether it was applying a harmless-error or plain-

error standard of review. The above language sounds like a per se rule of reversal, but the

following language in the opinion is consistent with the harmless-error analysis that would

be appropriate in the light of the defense objection that was made to the instruction in that

case:

        In this case, with evidence conflicting in every possible degree as to the
        material facts, we think it likely that [the quoted instruction] unfairly diluted
        Flowers’[s] evidence that he fired in self-defense. In our opinion the
        instruction had the likely effect of denying the appellant his legal right to a
        proper self-defense instruction based upon the evidence.

Id. at 166.

¶11.    Flowers has been cited twice since by our appellate courts in discussing self-defense

instructions with the “at peril” descriptor. In Johnson v. State, 908 So. 2d 758 (Miss. 2005),

the court held that a “pre-arming” instruction denying the defendant the right to claim self-

defense and an “at peril” instruction were both invalid, requiring reversal of a conviction.

The “at peril” instruction read:

        A person may not use more force than reasonably necessary to save his life,
        or the life of another, or protect himself or another from great bodily harm.
        When a person repels an assault with a deadly weapon, he acts at his own
        peril, and the question of whether he was justified in using the weapon is to
        be determined by you, unless there is no reasonable inference in the evidence
        except that the use of deadly weapon appeared necessary to protect himself or
        another from death or great bodily harm at the hands of his assailant.



                                               6
Id. at 764 (¶20) (emphasis in original). In Johnson, three self-defense instructions and one

defense-of-others instruction were given, but their contents are not recited. The opinion does

not indicate whether there was a defense objection to any of the instructions. The court

continued: “This court has condemned instructions that are contradictory and confusing.” Id.

at 764 (¶21) (quoting Scott, 446 So. 2d at 583). Continuing to quote Scott, the Johnson court

noted:

         “A party acting upon this principle does not ‘act at his peril.’ Of course, it is
         for the jury to determine the reasonableness of the ground upon which the
         defendant acts but if the defendant’s apprehension is reasonable, there is no
         peril.” [Scott, 446 So. 2d] at 583-84[.] “When a jury is given instructions
         which are in hopeless conflict this Court is compelled to reverse because it
         cannot be said that the jury verdict was founded on correct principles of law.”
         Id. at 583. Such contradictory instructions constitute reversible error and have
         been condemned by this Court. Flowers v. State, 473 So. 2d 164, 165 (Miss.
         1985).

         We conclude that jury instruction S-4 is contradictory and confusing and does
         not correctly state the applicable law because one acting in self-defense does
         not act at his own peril. This instruction constitutes reversible error.
         Therefore, this Court must reverse and remand for a new trial.

Johnson, 908 So. 2d at 764 (¶¶21-22) (emphasis in original and citations omitted).

¶12.     In Blunt v. State, 55 So. 3d 207 (Miss. Ct. App. 2011), this Court held, on appeal of

the denial of a post-conviction-relief motion, that defense counsel was constitutionally

ineffective for submitting the following instruction, which appears to be the only instruction

given on self-defense:

         The court instructs the jury that the defendant, Edward Lamon Blunt[,] is
         claiming that the killing of Michael Taylor was done in self-defense and thus
         under the law was a justifiable homicide. To make a killing justifiable on the
         grounds of self-defense, the danger to the defendant must not have been
         created, initiated or caused by him; the danger must be either actual, present,
         and urgent or the defendant must have reasonable grounds to apprehend a

                                                7
       design on the part of the victim to kill, or do some great bodily harm to him,
       and in addition to this, that there was apparent imminent danger of such design
       being accomplished. Hence, the mere fear, apprehension or belief,
       however sincerely entertained by one person that another designs to take
       his life or to do him some great bodily harm, will not justify the accused
       taking the life of the deceased. A party may have an apprehension that his
       life is in danger and believe the grounds of his apprehension just and
       reasonable, and yet he acts at his peril. He is not the final judge; the
       [j]ury may determine the reasonableness of the grounds upon which he
       acted.

Id. at 210-11 (¶13) (emphasis in original). Citing Flowers and Johnson, this Court held that

defense counsel’s performance was deficient under Strickland v. Washington, 466 U.S. 668

(1984). Blunt, 55 So. 3d at 211 (¶15). Rather than applying a per se rule of reversal, this

Court next conducted a plain-error analysis.

       Since the instruction constituted an improper statement of law that was not
       corrected by other instructions, this Court may review the effect of the
       improper instruction of the jury under the plain-error doctrine. In order to
       prevail under the plain-error doctrine, an appellant must show that there was
       an error in the trial court and that the error resulted in a “manifest miscarriage
       of justice.” Flora v. State, 925 So. 2d 797, 811 (¶42) (Miss. 2006) (quoting
       Williams v. State, 794 So. 2d 181, 187 (¶23) (Miss. 2001) (overruled on other
       grounds)). Furthermore, this Court may only apply the plain-error doctrine
       when the error complained of affects a defendant’s fundamental or substantial
       rights. Id. (citing Grubb v. State, 584 So. 2d 786, 789 (Miss. 1991)). [Defense
       counsel’s] proffered jury instruction no doubt prejudiced Blunt, whose due-
       process rights include the right to a properly instructed jury. See Shaffer v.
       State, 740 So. 2d 273, 282 (¶31) (Miss. 1998) (holding that the trial court’s
       failure to instruct the jury properly on the elements of the crime charged
       implicated Justin Shaffer’s due-process rights) . . . .

Blunt, 55 So. 3d at 211-12 (¶¶16-17) (citation omitted).

¶13.   Harrell v. State, 134 So. 3d 266 (Miss. 2014), does not require anything other than a

plain-error standard of review in this case. In Harrell, the Mississippi Supreme Court held




                                               8
that the failure to instruct the jury on an element of an offense 1 required reversal of the

conviction, even in the absence of a defense objection. Id. at 275 (¶30). Harrell dealt with

the failure to instruct on an element of an offense, not with a partially incorrect or confusing

instruction. There is a difference between jury instructions that omit an element of the

offense and jury instructions that contain an incorrect statement of the law, along with a

correct statement of the law, and thus, have the potential to cause confusion.

¶14.   There is no per se rule requiring automatic reversal whenever jury instructions contain

conflicting or potentially confusing explanations of the law. In such cases, we apply

traditional harmless-error or plain-error analysis, depending upon whether the defendant

objected to the instruction at trial. In this case, as in Blunt, because there was no objection,

traditional plain-error analysis applies.

¶15.   Under the plain-error standard of review, we consider: (1) whether there was an error;

(2) that adversely affected a defendant’s substantive rights, causing a manifest miscarriage

of justice. See Flora, 925 So. 2d at 811 (¶42). “For the plain-error doctrine to apply, there

must have been an error that resulted in a manifest miscarriage of justice or seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Conners v. State, 92 So.

3d 676, 682 (¶15) (Miss. 2012) (citation and internal punctuation omitted).

¶16.   “In reviewing challenges to jury instructions, the instructions actually given must be

read as a whole. . . . When so read, if the instructions fairly announce the law of the case and

create no injustice, no reversible error will be found.” Johnson, 908 So. 2d at 764 (¶20)

(quoting Williams v. State, 863 So. 2d 63, 65 (Miss. Ct. App. 2004)).

       1
           In that case, robbery was the predicate offense for capital murder.

                                               9
¶17.   In this case, there were six jury instructions covering self-defense. Clearly there was

an error in allowing the “at peril” phrase to infect one of the self-defense instructions. The

issue thus narrows to this: reading the instructions as a whole, where self-defense is correctly

defined in other instructions, does the presence of the “at peril” phrase in one instruction

create the manifest risk that the jury convicted applying an incorrect legal standard? Based

on the following examination of the instructions given and the record in this case, we think

not.

¶18.   Instruction S-4A was given and it provided:

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

¶19.   This instruction advises the jury that if the defendant has a reasonable ground to

believe that the victim intends to kill or cause great bodily harm to the defendant or another,

and a reasonable ground to believe the threat is imminent, then the killing is justified on the

ground of self-defense.

¶20.   Instruction D-3B was given and it provided:

              The Court instructs the jury that if you find the shooting of Clinton
       Wade Jackson was committed by James John Rodgers in the lawful defense
       of his person, or of another person, where there was reasonable ground to
       apprehend a design to do some great personal injury or to commit a felony
       upon [his person, or of another person], and there was imminent danger of
       such design being accomplished, then such shooting was justifiable.

              Further, a person, in such circumstances, who is not the initial aggressor


                                              10
       and is not engaged in unlawful activity shall have no duty to retreat before
       using deadly force, if the person is in a place where the person has a right to
       be and you shall not be permitted to consider James John Rodgers’[s] failure
       to retreat as evidence that his use of force was unnecessary, excessive or
       unreasonable.

¶21.   This instruction advises the jury that if the defendant had a reasonable ground to

apprehend an imminent threat of great personal injury or a felony upon himself or another,

then the killing was justified. It also instructs on the “no duty to retreat” principle.

¶22.   Instruction D-4 was given and it provided:

              The Court instructs the jury that there is a presumption that James John
       Rodgers reasonably feared imminent death or great bodily harm, or the
       commission of a felony upon him or another or upon his dwelling if Clinton
       Wade Jackson was in the process of unlawfully and forcibly entering the
       dwelling of James John Rodgers or the immediate premises thereof and James
       John Rodgers knew or had reason to believe that the forcible entry or unlawful
       and forcible act was occurring or had occurred.

¶23.   This instruction, sometimes referred to as “the castle doctrine,” advised the jury that

the defendant is entitled to a presumption that he reasonably feared imminent death or great

bodily harm, or the commission of a felony upon himself, upon another, or upon his

dwelling, if the victim had entered or was in the process of unlawfully and forcibly entering

the defendant’s dwelling or premises.

¶24.   Instruction D-6A was given and it provided:

              The Court instructs the jury that when considering the actions of James
       John Rodgers, you are not to hold him to the cool, calm light of after-
       developed facts, but instead you are to judge his actions in the light of the
       circumstances confronting James John Rodgers at the time, as you believe
       from the evidence that those circumstances appeared to him on that occasion;
       and if you believe that under those circumstances it reasonably appeared to
       James John Rodgers, at the instant that he shot Clinton Wade Jackson, that
       James John Rodgers then and there had reasonable ground to apprehend a
       design on the part of Clinton Wade Jackson to kill James John Rodgers or his


                                               11
       son, Jessie Rodgers, or to do James John Rodgers or Jessie Rodgers some great
       personal injury, and there reasonably appeared to James John Rodgers to be
       imminent danger of such designs being accomplished; then James John
       Rodgers was justified in anticipating an attack and using reasonable means to
       defend such attack; then you must find James John Rodgers not guilty of the
       murder of Clinton Wade Jackson.

¶25.   This instruction again advised the jury that if the defendant had a reasonable belief in

the imminent threat that the victim intended to kill or seriously harm the defendant or his son,

then the killing was justified and the defendant was not guilty of murder. Further, in

assessing the defendant’s belief, the jury must judge him based on the circumstances as they

reasonably appeared to the defendant at the time, and not in the calm light of subsequent

knowledge.

¶26.   Instruction D-18A was given and provided:

              The Court instructs the jury that if you believe from the evidence that
       the deceased, Clinton Wade Jackson, was a much larger and stronger person
       than James John Rodgers, and was capable of inflicting great and serious
       bodily harm upon James John Rodgers or his son[,] Jessie Rodgers[,] and that
       James John Rodgers had reason to believe and did believe as a man of ordinary
       reason that he or his son were then and there in danger of such harm at the
       hands of Clinton Wade Jackson and used a pistol with which he fatally shot
       Clinton Wade Jackson, to protect himself or his son, from such harm, then
       James John Rodgers was justified, and your verdict shall be “not guilty” even
       though Clinton Wade Jackson may not have been armed.

¶27.   This instruction advises the jury that they could factor the victim’s large size and

strength in determining whether the defendant’s fear of harm was reasonable, and that if it

was, the defendant was “not guilty,” even though the victim was unarmed.

¶28.   The phrase “he acts at his own peril” in challenged instruction S-10 is immediately

followed in the same sentence with “and the question of whether he was justified in using the

weapon is for determination by the jury.” In this case, the jury heard evidence that Rodgers


                                              12
challenged the victim to come talk to him face to face. Rodgers could have refrained from

going to the back of the house and obtaining a deadly weapon. Rodgers could have heeded

the urging of his girlfriend and remained in the safety of his home rather than to go outside

and confront the victim after he had armed himself with a pistol. He could have used his

phone, or his girlfriend’s phone, to call the police. He could have used the mace he had in

his pocket to subdue or drive away the victim rather than using his gun. The jury had ample

evidence to conclude Rodgers himself was not under imminent deadly attack. Concerning

Rodgers’s defense of his son, although there was evidence of a scuffle between the victim

and the son, neither exhibited significant wounds other than those caused when the victim

fell to the ground (and the bullet in the victim’s chest). No one testified that they saw the

victim attacking anyone with a weapon. Moreover, neither in opening statement nor closing

argument did the prosecutor argue the “he acts at his own peril” language in the jury

instruction. The jury during deliberations sent no note to the judge requesting an explanation

of the “he acts at his own peril” language. All witnesses present at the time of the shooting,

including Rodgers, testified before the jury. The case was a well-tried case by competent

counsel for both parties, and the jury was fully informed of Rodgers’s claim of necessary

self-defense.

¶29.    The jury was instructed no less than six times that they must acquit if Rodgers had a

reasonable fear of death or serious harm to himself or another. There is no reason to believe

that the one reference to Rodgers acting at his peril swept these instructions from the jury’s

mind.

¶30.    Flowers, Johnson, and Blunt make it clear that the “at peril” phrase is incorrect. That


                                              13
does not end the inquiry, however. No supreme court decision holds that use of the “he acts

at his own peril” language in a self-defense jury instruction is “per se” reversible error. For

over 120 years in the jurisprudential history of this state, the “acts at his own peril” language

in a self-defense jury instruction was considered totally appropriate. When considering the

numerous and detailed instructions on self-defense given the jury, the jurors could not have

been in hopeless conflict over the instructions. Moreover, we will not reverse a trial court

on a matter never presented to it, and, certainly, we detect no manifest injustice that seriously

affects the fairness, integrity, or public reputation of the judicial proceeding. In this case, and

on these facts, there simply was no plain error. There is no merit to this assignment of error.2

       II.     SUFFICIENCY OF THE EVIDENCE

¶31.   Next, according to Rodgers, there was insufficient evidence to convict him of murder.

“[When] considering whether the evidence is sufficient to sustain a conviction[,] . . . the

critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused

committed the act charged, and did so under such circumstances that every element of the

offense existed[.]” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citations and

internal quotation marks omitted). The evidence is viewed in favor of the prosecution. Id.

¶32.   Rodgers was convicted of deliberate-design murder in violation of Mississippi Code

Annotated section 97-3-19(1)(a) (Rev. 2014), which provides: “The killing of a human being




       2
         We do not condone what we can only assume was the careless submission of the
challenged jury instruction. The prosecution certainly acted at its peril in submitting an
instruction containing language as strongly condemned as the “at peril” language in the
challenged instruction. That it did not rise to the level of plain error in this case does not
mean that it will not in a future case.

                                                14
without the authority of law by any means or in any manner shall be murder . . . [w]hen done

with deliberate design to effect the death of the person killed, or of any human being[.]” We

recently discussed the elements of this statute in Anderson v. State, 2014 WL 1464465 (Miss.

Ct. App. Apr. 15, 2014):

       “(1) the defendant killed the victim; (2) without authority of law; and (3) with
       deliberate design to effect his death.” Brown v. State, 965 So. 2d 1023, 1030
       (¶27) (Miss. 2007) (citation omitted). “Deliberate design to kill a person may
       be formed very quickly, and perhaps only moments before the act of
       consummating the intent.” Id. at (¶28) (citation omitted). “[A]n inference of
       intent to kill is raised through the intentional use of any instrument which,
       based on its manner of use, is calculated to produce death or serious bodily
       injury.” Jones v. State, 710 So. 2d 870, 878 (¶35) (Miss. 1998) (citation
       omitted). In addition, Mississippi courts recognize that “shooting a victim
       with a gun constitute[s] deliberate-design murder.” Brown, 965 So. 2d at 1030
       (¶28) (citation omitted).

Anderson, 2014 WL 1464465, at *6 (¶21).

¶33.   The State introduced sufficient evidence supporting each element of the offense.

Rodgers argues that the killing was justified under the “castle” doctrine, which allows a

person to use deadly force to repel an entry into his dwelling or its premises. The jury was

properly instructed on the castle doctrine and rejected this defense. We cannot say, as a

matter of law, that the killing was justified under this doctrine. There was evidence that the

victim had not entered Rodgers’s home and was not in the process of doing so when Rodgers

shot him. This issue is without merit.

       III.   WEIGHT OF THE EVIDENCE

¶34.   Rodgers finally asserts that the overwhelming weight of the evidence was against his

conviction. “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


                                             15
overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18) (citation omitted). We review the

evidence in the light most favorable to the verdict, and we will not overturn the verdict unless

we find that the circuit court abused its discretion in denying the motion for a new trial.

Woodard v. State, 765 So. 2d 573, 576 (¶16) (Miss. Ct. App. 2000) (citing Veal v. State, 585

So. 2d 693, 695 (Miss. 1991)).

¶35.     Based upon our review of the evidence above, we cannot say that the weight of the

evidence overwhelmingly supports setting aside the jury’s verdict. This issue is without

merit.

¶36. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

     IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, FAIR AND
JAMES, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY BARNES, J.

         LEE, C.J., DISSENTING:

¶37.     The majority is correct that using the “at peril” language is error. However, I would

find the inclusion of this language is plain error meriting reversal; thus, I respectfully dissent.

In reversing for a similar instruction, the Flowers court stated: “Presently[,] to remove any

such doubt, we now condemn [i]nstruction[s] [containing similar language] and forthrightly

hold it constitutes reversible error in this case and will be so considered in future cases.”

Flowers v. State, 473 So. 2d 164, 165 (Miss. 1985). The majority notes that the Flowers

court did not mention whether it was applying a harmless-error or plain-error standard of



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review. Regardless of which review the court applied, its intent was clear – the “at peril”

language constitutes reversible error. The Flowers court did not say whether it found the

language questionable under a harmless-error or plain-error review; it simply found the

language improper.

¶38.   The majority contends that the other self-defense jury instructions given were

sufficient to overcome any confusion resulting from the instruction containing the “at peril”

language. The majority does recognize that the jury in Johnson was given three self-defense

instructions and one defense-of-others instruction. Even though the jury received these self-

defense instructions, the court in Johnson still concluded that the instruction containing the

“at peril” language was “contradictory and confusing and d[id] not correctly state the

applicable law because one acting in self-defense does not act at his own peril. This

instruction constitutes reversible error.” Johnson v. State, 908 So. 2d 758, 764 (¶20) (Miss.

2005). The Johnson court clearly determined that the “at peril” language was reversible

error, regardless of any additional self-defense instructions given to the jury.

¶39.   The plain-error doctrine has been construed to include error that is plain and which

“seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.”

United States v. Olano, 507 U.S. 725, 732 (1993) (citation and internal punctuation omitted).

As this Court stated in Blunt, “[d]ue[-]process rights include the right to a properly instructed

jury.” Blunt v. State, 55 So. 3d 207, 211 (¶16) (Miss. Ct. App. 2011). In this instance, I find

that the inclusion of the “at peril” language – language which has been repeatedly

condemned – violated Rodgers’s due-process rights; thus, I would reverse and remand for

a new trial.


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BARNES, J., JOINS THIS OPINION.




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