        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-KA-01667-COA

DWAYNE BRYANT                                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         10/09/2015
TRIAL JUDGE:                              HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: ERIN ELIZABETH BRIGGS
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF SECOND-DEGREE
                                          MURDER AND SENTENCED TO FORTY
                                          YEARS IN THE CUSTODY OF THE
                                          MISSISSIPPI DEPARTMENT OF
                                          CORRECTIONS
DISPOSITION:                              AFFIRMED - 05/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Dwayne Bryant was found guilty of second-degree murder by a jury in the Circuit

Court of Forrest County and sentenced to forty years in the custody of the Mississippi

Department of Corrections (MDOC). He appeals his conviction, arguing that (1) the

evidence was insufficient to support a conviction; (2) he was entitled to an acquittal under
Weathersby;1 (3) the trial court erred when it allowed certain photos into evidence; and (4)

his right to a fundamentally fair trial was violated by the prosecution’s closing argument.

Finding no reversible error, we affirm.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On August 1, 2013, Bryant shot Adrian Walker multiple times, and Walker later died

as a result of the gunshot wounds. Bryant was a resident of Bonhomie Apartments in

Hattiesburg, Mississippi. Bryant and Walker were considered to be neighborhood friends.

Walker had previously lived with his girlfriend, Stacy Pollard, a Bonhomie resident and one

of Bryant’s neighbors. Though Walker no longer lived with Pollard, he was regularly at

Pollard’s apartment. Bryant would sometimes cut Walker’s hair, as he did for several

residents of the apartment complex. And Walker would often come over when Bryant was

grilling, which was a regular occurrence.

¶3.    On the evening that Walker was shot, Bryant asked Walker if he could borrow a grill

to cook some food, and Walker agreed. When Bryant went to Pollard’s apartment to get the

grill, he found that Walker had already started the coals, and so he decided to stay at

Pollard’s apartment to grill. The group at Pollard’s apartment included Bryant, his brother

Jeremy, Walker, Willie Wilson, and Slozella McDonald. At trial, Wilson testified that

Walker and Bryant had been drinking before she arrived there, and she believed they were

drunk. Bryant testified that he only consumed one alcoholic beverage during the time he was

there. At some point, a conversation between McDonald and Bryant became intense, and



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           Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933).

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Walker joined in the heated conversation. Bryant became irritated and decided to leave.

¶4.    At trial, Bryant testified that when he announced he was leaving, Walker began

cursing at him. Bryant gathered his food off of the grill and started walking back to his own

apartment with his brother, Jeremy. Walker followed Bryant and Jeremy, though Wilson and

Pollard told Walker not to pursue them. According to Bryant, he went inside his apartment

and left the door open for Jeremy to follow. When Jeremy and Walker made it to Bryant’s

doorway, Jeremy did not come inside because he reportedly did not want to get involved in

the argument. Jeremy testified that Walker, who was standing in Bryant’s doorway, was still

cursing and “fussing” at Bryant. Jeremy also testified that Walker told Bryant that he would

physically harm him. Bryant walked back in and out of the house several times, and Walker

did not leave Bryant’s doorway. At some point, Bryant walked upstairs in his apartment to

get his gun, which he testified he kept for protection. Bryant testified that he then went back

downstairs to take Jeremy home. Jeremy testified that Walker said “I’m going to get you

now,” and “started running up in the house,” “trying to fight . . . with his fists balled.”

Similarly, Bryant testified that he heard Walker say, “F--- it. I’m fixing to go ahead and get

you now.” According to Bryant, Walker flinched, and Bryant pulled out his gun and shot

him. Both Bryant and Jeremy testified that Walker was in Bryant’s doorway when Walker

flinched and Bryant shot him.

¶5.    Bryant testified that he felt threatened by Walker and was fearful of him when he

armed himself and when he shot Walker. He also testified that Walker was in his doorway

when he initially shot him, and that Walker “went backwards” and fell down “on the opposite



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side of the sidewalk.” Bryant shot Walker eight times. He later turned himself in to the

Hattiesburg Police Department. Walker was taken to the hospital where he underwent

several surgeries and stayed in the ICU. A month after the shooting, Walker died from

complications due to the gunshot wounds.

¶6.    At trial, Bryant moved for a directed verdict at the close of the State’s case-in-chief

and at the close of all the evidence—both motions were denied. The case was submitted to

the jury, and Bryant was convicted. Bryant filed a motion for a judgment notwithstanding

the verdict (JNOV) or, in the alternative, a new trial, which was denied.

                                 STANDARD OF REVIEW

¶7.    “Motions for a directed verdict and a judgment notwithstanding the verdict challenge

the legal sufficiency of the evidence.” Mitchum v. State, 164 So. 3d 477, 481 (¶12) (Miss.

Ct. App. 2014). 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 that he did so under such circumstances that every

element of the offense existed.” Id. at 480 (¶12) (internal quotation marks omitted) (quoting

Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)). “[W]here the evidence fails to meet

this test[,] it is insufficient to support a conviction.” Id. An appellate “court will not reverse

unless reasonable and fair-minded jurors could only find the accused not guilty.” Id. at 481

(¶12) (citing Ferguson v. State, 137 So. 3d 240, 243 (¶6) (Miss. 2014)).

                                        DISCUSSION

       I.      Sufficiency of the Evidence



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¶8.     Bryant argues that the evidence at trial was insufficient to support his conviction of

second-degree murder. He contends that he was entitled to the castle-doctrine presumption,

and so the evidence only established that his actions were justifiable homicide. Mississippi’s

justifiable-homicide statute, in relevant part, provides that the killing of another person is

justified “[w]hen committed in the lawful defense of one’s own person . . . where there [is]

reasonable ground to apprehend a design to commit a felony or to do some great personal

injury, and there [is] imminent danger of such design being accomplished.” Miss. Code Ann.

§ 97-3-15(1)(f) (Rev. 2014). The castle doctrine, codified in section 97-3-15(3), states in

part:

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

¶9.     Bryant states that all of the witnesses agreed that Walker followed Bryant to his home,

that Walker threatened Bryant, and that Walker was in Bryant’s doorway when Bryant shot

him. As such, Bryant argues that he was entitled to the castle-doctrine presumption, and with

the presumption, his actions only amounted to justifiable homicide. Bryant and Jeremy

testified that Walker was in Bryant’s doorway when Bryant shot him. And that Walker went



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backwards and eventually fell down outside on the opposite side of the sidewalk. But Pollard

testified that she saw Bryant shoot Walker while Walker was lying wounded on the ground,

with Bryant standing over him with a gun in his hands. Officer Tammy Hoadley, one of the

first responders to the scene, testified that Walker was lying on the ground, specifically on

the sidewalk. As such, there was a factual dispute as to where Bryant and Walker were when

Bryant shot Walker.

¶10.   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. Flynt

v. State, 183 So. 3d 1, 14 (¶40) (Miss. 2015). Here, the jury was instructed on the castle-

doctrine presumption, justifiable homicide, imperfect self defense, and heat-of-passion

manslaughter. After receiving instructions on the applicable law, the jury deliberated and

found Bryant guilty of second-degree murder, rejecting Bryant’s defense theories—including

the castle doctrine. An appellate court “must presume that the jury considered the jury

instructions—including the [c]astle [d]octrine instruction and the related evidence and

testimony.” Id. In the instant case, the evidence presented supports the jury verdict, and thus

the trial court did not err in denying Bryant’s motion for JNOV. This issue is without merit.

       II.    Weathersby Rule

¶11.   Bryant also argues that he was entitled to a directed verdict under the Weathersby rule,

and that the trial court erred when it denied Bryant’s motion. In Weathersby, our supreme

court held:

       [W]here the defendant or the defendant’s witnesses are the only eyewitnesses
       to the homicide, their version, if reasonable, must be accepted as true, unless


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       substantially contradicted in material particulars by a credible witness or
       witnesses for the [S]tate, or by physical facts or by the facts of common
       knowledge.

Weathersby, 147 So. at 482.

¶12.   Bryant argues that he and Jeremy were the only eyewitnesses to the shooting. And he

also states that their testimony consistently maintained that Bryant shot Walker in necessary

self-defense while Walker was entering Bryant’s house in a threatening manner. As such,

Bryant argues that under Weathersby, his version of events is an absolute defense to the

homicide, and he is entitled to a directed verdict of acquittal.

¶13.   Bryant’s recitation of the Weathersby rule is accurate. However, Weathersby only

applies where the defendant’s witness are the only eyewitnesses. Here, Bryant and Jeremy

testified that Bryant shot Walker from inside his apartment while Walker was standing in

Bryant’s doorway. Yet Bryant admitted there was conflicting testimony about where Walker

was standing when Bryant shot him. And there was another witness, Pollard, who testified

she saw Bryant shoot Walker while Walker was lying on the ground outside of Bryant’s

apartment.

¶14.   Additionally, Weathersby does not apply where the defendant’s version is

“substantially contradicted in material particulars by a credible witness or witnesses for the

[S]tate, or by physical facts . . . .” Id. In the instant case, Bryant testified that he did not

recall shooting Walker in the back, or Walker walking or running away from Bryant or

Bryant’s apartment. However, the physical evidence showed that Walker had been shot—not

only in the front of his body—but multiple times in the back and buttocks. The first signs



                                               7
of blood were found ten to twelve feet outside of Bryant’s apartment. And there were

multiple shell casings found outside of Bryant’s apartment on the grass next to the sidewalk.

There was also conflicting testimony about who was taunting who, with Pollard testifying

that Bryant was “egging [Walker] on[,] initiating for more conversation[,]” and saying,

“[C]ome one. I’ve got something for you.”

¶15.   Here, the Weathersby rule does not apply. Bryant’s witnesses were not the only

eyewitnesses, and there were physical facts and other evidence presented by the State which

substantially contradicted Bryant’s version of the shooting. The supreme court “has warned

repeatedly that where circumstances are shown in the evidence which materially contradict

the defendant’s version of self-defense, the jury is not required to accept his version of

self-defense along with the conflicting evidence and any unfavorable inferences therefrom.”

Pritchett v. State, 560 So. 2d 1017, 1019 (Miss. 1990). Further, “[i]t is a rare case that meets

all of the requirements of the [Weathersby] rule.” Sartain v. State, 311 So. 2d 343, 345

(Miss. 1975) (citation omitted).

¶16.   Bryant correctly notes that it is the duty of the trial court and not the jury to determine

the applicability of the Weathersby rule. Id. at 344. Here, the trial court found that there

were contradicting facts, and that there were more eyewitnesses than those testifying on

Bryant’s behalf. “[W]here the defendant’s story is materially contradicted, the Weathersby

rule has no application[,] and the matter of conviction versus acquittal becomes a question

for the jury.” Green v. State, 631 So. 2d 167, 174 (Miss. 1994). Accordingly, the trial judge

did not err when he overruled Bryant’s motion for a directed verdict under the Weathersby



                                               8
rule and properly left the issue to the jury. Therefore, this issue is without merit.

       III.   Photographs Introduced into Evidence

¶17.   Bryant also contends that the trial court erred in admitting certain photographs into

evidence. At trial, the prosecution introduced three color autopsy photographs that depicted

the open torso, abdomen, and buttocks of Walker. Bryant claimed that the photographs

lacked any probative value and were introduced only to arouse prejudice and inflame the

jury. The State argued that the photographs were probative—specifically, with a tendency

to prove that Walker had been shot multiple times in the back, torso, extremities, and

buttocks, demonstrating to the jury the number and location of those wounds. According to

the State, the location and number of wounds depicted in the photographs negated the claim

that Bryant shot Walker in self-defense.

¶18.   “The decision of whether or not to admit photographs is left to the sound discretion

of the trial court and will not be disturbed on appeal absent an abuse of discretion.” Hoskins

v. State, 172 So. 3d 1242, 1247 (¶5) (Miss. Ct. App. 2015) (quoting Smith v. State, 792 So.

2d 343, 348 (¶20) (Miss. Ct. App. 2001)). Our supreme court has noted that “[p]hotographs

of the victim should not ordinarily be admitted into evidence where the killing is not

contradicted or denied, and the corpus delicti and the identity of the deceased have been

established.” Talbert v. State, 125 So. 3d 66, 74 (¶28) (Miss. Ct. App. 2013) (quoting

Sudduth v. State, 562 So. 2d 67, 70 (Miss. 1990)). However, “[p]hotographs of bodies may

nevertheless be admitted into evidence in criminal cases where they have probative value[,]

and where they are not so gruesome or used in such a way as to be overly prejudicial or



                                              9
inflammatory.” Id. “Some probative value is the only requirement needed in order to

support a trial judge’s decision to admit photographs into evidence.” Barfield v. State, 22 So.

3d 1175, 1181 (¶15) (Miss. 2009) (quoting Jones v. State, 920 So. 2d 465, 476-77 (¶35)

(Miss. 2006)). “Photographs of a victim have evidentiary value when they aid in describing

the circumstances of the killing; describe the location of the body and cause of death; or

supplement or clarify a witness’s testimony.” Fortenberry v. State, 195 So. 3d 890, 893

(¶11) (Miss. Ct. App. 2016) (quoting Keller v. State, 138 So. 3d 817, 857 (¶101) (Miss.

2014)).

¶19.   Here, the State presented the photographs at issue to describe the circumstances of the

killing, specifically the location and number of wounds, and to contradict Bryant’s version

of events that he shot Walker out of fear while Walker was coming toward him. And the

State’s pathologist, Dr. Brent Davis, testified that the photographs helped to clarify the

location of the injuries. Upon review, we do not find that the photographs were overly

gruesome, or that their potential for prejudice outweighed their probative value. And “our

case law indicates that the discretion of the trial [court] runs toward almost unlimited

admissibility regardless of the gruesomeness, repetitiveness, and extenuation of probative

value.” Williams v. State, 544 So. 2d 782, 785 (Miss. 1987). Therefore, we hold that the trial

court judge did not abuse his discretion by admitting the photographs into evidence.

       IV.    Comments by the Prosecution

¶20.   For the first time on appeal, Bryant argues that he was unfairly prejudiced by the

prosecutor’s comments during the State’s closing argument, and that justice requires this



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Court to reverse his conviction and remand for a new trial.

¶21.   “While attorneys are allowed wide latitude in presenting their cases to a jury,

prosecutors are not permitted to use tactics which are inflammatory, highly prejudicial, or

reasonably calculated to unduly influence the jury.” Stevenson v. State, 156 So. 3d 927, 929-

30 (¶11) (Miss. Ct. App. 2015) (internal quotation marks omitted) (quoting Sheppard v.

State, 777 So. 2d 659, 661 (¶7) (Miss. 2000)). “The standard of review for lawyer

misconduct during opening statements or closing arguments is whether the natural and

probable effect of the improper argument is to create unjust prejudice against the accused so

as to result in a decision influenced by the prejudice so created.” Id. at 930 (¶11) (internal

quotation marks omitted) (quoting Slaughter v. State, 815 So. 2d 1122, 1130 (¶45) (Miss.

2002)).

¶22.   Before this Court determines whether the prosecutor’s closing remarks were improper

such that they constitute reversible error, we must first “determine if defense counsel

objected to the statement . . . .” Id. at (¶13) (citation omitted). The supreme court has clearly

stated, “Failure to raise an objection to a prosecutor’s statements made at trial procedurally

bars the statements from appellate review.” Sandlin v. State, 156 So. 3d 813, 820 (¶27)

(Miss. 2013). “If no contemporaneous objection is made, the error, if any, is waived.”

Stevenson, 156 So. 3d at 930 (¶13) (quoting Slaughter, 815 So. 2d at 1130-31 (¶47)).

¶23.   When “no objections were raised at trial, the defendant who fails to make a

contemporaneous objection must rely on plain error to raise the assignment on appeal.” Hurt

v. State, 34 So. 3d 1191, 1196 (¶12) (Miss. Ct. App. 2009) (quoting Jackson v. State, 924 So.



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2d 531, 542 (¶36) (Miss. Ct. App. 2005)). “A review under the plain-error doctrine is

necessary when a party’s fundamental rights are affected, and the error results in a manifest

miscarriage of justice.” Id. at 1197 (¶17) (quoting McGee v. State, 953 So. 2d 211, 215 (¶8)

(Miss. 2007)).

¶24.   Bryant argues that the prosecutor’s comments made during closing arguments

prejudiced his defense by leading the jury to believe Bryant was a lazy person who had taken

advantage of the government and cheated the system. The comments at issue included the

prosecutor stating that Bryant had “skirted the system,” “sat at home every day,” and “[was]

having barbeques all day.” The State’s comments further included that Bryant was “taking

an apartment that . . . a single mother[] out there . . . needs,” and “receiving almost free rent,

not paying a light bill, probably other food stamps and stuff . . . .” Bryant also argues that

the prosecutor made an impermissible “send a message” argument with the following

statement:

       This is not self-defense. You’re drunk. You’re a drinking, irresponsible
       person who has to be held accountable for your actions because if you don’t,
       then there is no responsibility, and there is no accountability, and people like
       him can continue on the same path and continue to take lives, continue to be
       irresponsible. We’re going to stand for those rights. I promise you. Stand up
       for responsibility.

Our supreme court has “repeatedly condemned the ‘send a message’ argument and warned

prosecutors accordingly.” Payton v. State, 785 So. 2d 267, 270 (¶11) (Miss. 1999).

¶25.   Here, the record shows that Bryant did not make a contemporaneous objection—or

any objection at all—to the prosecutor’s comments. However, “despite the absence of

objection, [an appellate court] will not procedurally bar the issue where the send-a-message

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argument is so inflammatory that the trial judge should have objected on his own motion.”

Brown v. State, 986 So. 2d 270, 276 (¶13) (Miss. 2008) (internal quotation marks and citation

omitted). “[T]he ‘so inflammatory’ standard is the proper threshold inquiry for appellate

review of claims of prosecutorial misconduct during closing argument.” O’Connor v. State,

120 So. 3d 390, 401 (¶29) (Miss. 2013). “If a defendant can meet this threshold test, then

the court should conduct the two-prong Spicer test. Under Spicer, we ask if ‘the remarks

were improper.’ And if so, we ask if ‘the remarks prejudicially affected the accused’s

rights.’” Snyder v. State, 174 So. 3d 331, 336 (¶22) (Miss. Ct. App. 2015) (quoting Spicer

v. State, 921 So. 2d 292, 318 (¶55) (Miss. 2006)).

¶26.   In the instant case, Bryant failed to object to the prosecutor’s comments during trial

and has thus waived the issue on appeal. And we do not find that the prosecutor’s comments

were “so inflammatory” as to overcome the threshold for plain-error review. Even where the

“prosecutor’s comments were improper, [but] they did not cause a miscarriage of justice[,]

. . . a reversal based on plain error is not appropriate.” Stokes v. State, 141 So. 3d 421, 424

(¶2) (Miss. Ct. App. 2013). Though Bryant urges us to reverse and remand his case for a

new trial, “the power to grant a new trial should be invoked only in exceptional cases in

which the evidence preponderates heavily against the verdict.” Id. at 428 (¶30) (quoting

Bush, 895 So. 2d at 844 (¶18)). Here, we do not find that the evidence weighed heavily

against the jury’s guilty verdict of second-degree murder. Rather, there was sufficient

evidence to support Bryant’s conviction. Therefore, this issue is without merit.

¶27. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT OF
CONVICTION OF SECOND-DEGREE MURDER AND SENTENCE OF FORTY

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YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO FORREST COUNTY.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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