                    IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2014-CT-00664-SCT

JAMES L. JOHNSON, JR. a/k/a JAMES JOHNSON
a/k/a JAMES JOHNSON, JR.

v.

STATE OF MISSISSIPPI

                            ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                        04/04/2014
TRIAL JUDGE:                             HON. JAMES SETH ANDREW POUNDS
TRIAL COURT ATTORNEYS:                   SADIE GARDNER
                                         GREG MEYER
                                         CLAY S. NAILS
COURT FROM WHICH APPEALED:               ALCORN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JOHN R. WHITE
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                       J. TRENT KELLY
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             THE JUDGMENT OF THE COURT OF
                                         APPEALS IS REVERSED. THE JUDGMENT
                                         OF THE ALCORN COUNTY CIRCUIT
                                         COURT IS REINSTATED AND AFFIRMED -
                                         12/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



      EN BANC.

      WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.   In 2012 an Alcorn County jury found James Johnson guilty of aggravated domestic

violence against his ex-wife. Johnson’s appeal was assigned to the Court of Appeals, which
reversed the judgment and remanded the case, finding that the trial court had erred in

admitting evidence of prior bad acts without conducting a proper balancing test. We granted

the State’s petition for writ of certiorari. Finding that the Court of Appeals erred in holding

that the trial court did not consider the facts contained in offense reports, we reverse the

judgment of the Court of Appeals and reinstate and affirm Johnson’s conviction.

                        FACTS AND PROCEDURAL HISTORY

¶2.    James Johnson and the victim, Volante Jones, were married for seven years prior to

the divorce in November 2012. In December 2012, Johnson called Volante, according to

Johnson, to speak with her about her behavior and their children’s welfare. Volante asserted

that Johnson’s call was about what she had done the previous weekend and, since it did not

relate to their children, she hung up.

¶3.    Soon after that phone call, Johnson arrived at Volante’s home. Volante was cleaning

out the freezer when Johnson let himself into the home. Volante claimed that Johnson came

from behind and grabbed her by the hair and by the throat. After some struggling, Volante

said she was put into a chokehold and was repeatedly hit in the head as Johnson questioned

her, “Where were you? Tell me what his name was.” Eventually Johnson ended the assault

and released Volante. In Johnson’s version of the incident, he claimed that Volante had

attacked him, and in reaction to that, he had placed her in a chokehold only to subdue her so

he would not be harmed. Volante had scratches on her neck and face. Her eyes were swollen

and had ruptured blood vessels, injuries consistent with strangulation.




                                              2
¶4.    Johnson was charged with aggravated domestic violence. He maintained that he had

acted in self-defense. In a pretrial motion in limine, the defense sought to withhold any

reference to the defendant’s prior domestic-violence cases. In response to the motion in

limine, the State proffered four offense reports that it would seek to introduce at trial

describing prior bad acts of domestic violence.1

¶5.    A jury convicted Johnson of aggravated domestic violence and Johnson timely

appealed. On appeal, Johnson asserted (1) the evidence of his prior bad acts was not

probative of any listed Rule 404(b)2 exception and, even if it was relevant, it would be too

remote to be used as evidence; (2) that the offense reports should have been withheld under

Rule 403 since their probative value was outweighed substantially by unfair prejudice; (3)

that the trial court erred in not allowing him to make an adequate offer of proof regarding

Volante’s background; and (4) that the prosecution committed misconduct in its closing

argument.

¶6.    The Court of Appeals reversed the judgment and remanded the case after finding that

the trial court improperly had admitted into evidence offense reports that contained facts not

addressed in the hearing on the motion in limine and that no amendment had been made to

the original proffer. We granted the State’s petition for writ of certiorari to address the Court

of Appeals judgment. We also address the other issues Johnson raised on his initial appeal.

                                STANDARD OF REVIEW


       1
         The subject of the offense reports and when they first were considered by the trial
court are pivotal factual findings upon which the Court of Appeals based its reversal.
       2
           See Miss. R. Evid. 404(b).

                                               3
¶7.    This Court reviews the admission of evidence under the abuse-of-discretion standard.

Smith v. State, 136 So. 3d 424, 431 (Miss. 2014) (citing Young v. Guild, 7 So. 3d 251, 262

(Miss. 2009)). “Evidentiary rulings are affirmed unless they affect a substantial right of the

complaining party.” Sewell v. State, 721 So. 2d 129, 138 (Miss. 1998) (citing Ivy v. State,

641 So. 2d 15, 18 (Miss. 1994)).

                                       DISCUSSION

       I. Whether the Court of Appeals improperly held that the trial court had
       erred in admitting evidence of prior bad acts.

¶8.    Prior to trial, the trial court held a hearing on Johnson’s motion in limine in which he

sought to exclude any references to his prior acts of domestic violence. At this hearing, the

State detailed four prior bad acts of domestic violence contained in the respective offense

reports. The first offense report in 1999 included a guilty plea and conviction for simple

assault between Johnson and his ex-wife Pamela Dilworth after he had gone to her house

with a gun and had threatened to kill her. The second offense report included a simple-assault

charge between Johnson and an ex-girlfriend in which Johnson had gone to her place of

employment and had threatened her. He again pleaded guilty to the simple-assault charge.

In the third offense report, he and Volante had a fight in 2002 and again he was charged with

simple assault, but the charge eventually was dropped. Volante received a swollen right eye,

swollen forehead, and other signs of injuries in this assault. The fourth report detailed the

2012 assault of his daughter in which she was struck on the head, nose, and face. In the

fourth offense report, it is noted that the assault charge was retired to the file after Johnson

completed an anger-management course.


                                               4
¶9.    The defense argued that the proffered evidence was more prejudicial than probative

and none of the Rule 404(b) exceptions applied. The trial court agreed to consider an

argument that the prior acts were too remote in time, but the defense failed to provide any

authority to support such an argument. After considering the prior acts under the relevant

rules of evidence, the trial court denied the motion in limine.

¶10.   At trial, three of the offense reports were admitted into evidence during the direct

examination of the prosecution’s first witness, with the fourth report being admitted later,

during Volante’s testimony. Johnson did not make any additional objections to the admission

of the offense reports during trial other than those asserted in the hearing on the motion in

limine.

¶11.   The Court of Appeals reversed the judgment and remanded after finding that the trial

court “abused its discretion by admitting into evidence the entire contents of the four offense

reports over the defense’s continuing objection.” Johnson v. State, No. 2014-KA-00664-

COA, 2015 WL 8718021, at *10 (Miss. Ct. App. Dec. 15, 2015). The Court of Appeals also

found that, during the State’s verbal proffer, at the hearing on the motion in limine, it did not

provide copies of the offense reports to the circuit court, nor did it say it intended to offer the

entire reports into evidence. Id. at *9. Further, the Court of Appeals held that the trial court

had erred when it failed to consider the additional facts contained in the offense reports,

which were not proffered verbally at the hearing on the motion in limine. Id. These additional

facts included: kicking in a back door during the incident with Johnson’s first wife, Pamela;




                                                5
threatening to burn down Pamela’s home; and allegations from Johnson’s former girlfriend

that she feared Johnson would harm her baby. Id.

¶12.   The State insists the Court of Appeals misapprehended the record and that the trial

court reviewed the contents of the reports before determining their admissibility. Even

though the transcript of the pretrial hearing does not show that the trial court examined the

reports, the trial court later made clear that it had done so. At trial, following the testimony

of the State’s first witness, the trial judge asked the jury to leave the courtroom. The trial

judge then addressed the admissibility of Johnson’s prior bad acts, specifically the charge of

assault of his daughter contained in the fourth offense report. The trial judge stated:

       [I]n my review of the exhibits (offense reports) that were going to be
       introduced by the State prior to my ruling in the case, I discovered and had
       been made aware . . . when I was going over the facts of each of those cases
       I was aware that the . . . charge [in the fourth offense report, Exhibit S-4] was
       dropped because he was ordered to go to anger management.

(Emphasis added.) The trial judge also stated that he “wanted to make aware [sic] that he did

go over those records in making his determination of what was more probative and what was

more prejudicial . . . .” The trial judge then made clear on the record that he had failed to

include in his previous ruling3 that he found the anger-management-course certificate in

exhibit S-4 to be more prejudicial than probative and that it should be removed from the

exhibit prior to being admitted as evidence. He then asked both parties if this was correct,

and both stated for the record that it was. Defense counsel agreed with the trial judge’s ruling



       3
        It is unclear whether the trial judge is referring to the ruling he made at the hearing
on the motion in limine or in the later meeting in chambers. Both happened before the
offense reports were admitted.

                                               6
that the certificate was more prejudicial than probative and that it should be removed from

the exhibit prior to being admitted. After this colloquy, Johnson offered no further objections

to Exhibit S-4.

¶13.   Though, in its proffer, the State did not mention each act associated with each offense

report, it did provide the bulk of the facts. Additionally, since the record reflects that the

offense reports were before the trial court at the hearing on the motion in limine, then all

facts contained in the offense reports were before the trial court. The record also shows that

the trial court considered these facts before finding the offense reports to be admissible.

Therefore, we find that the Court of Appeals erred in reversing the trial court’s judgment on

this basis. Since the Court of Appeals reversed on the single issue discussed above, we now

address the other issues raised on appeal.

       II. Whether the trial court erred in admitting evidence of defendant’s
       prior bad acts.

¶14.   Johnson argues that the evidence of prior bad acts did not meet any of the exceptions

contemplated in Rule 404(b) of the Mississippi Rules of Evidence. Rule 404 generally

prohibits the admission of evidence of a person’s character for the purpose of proving that

he or she acted in conformity with that character on a particular occasion. Miss. R. Evid.

404(a). Evidence of “other crimes, wrongs or acts” is inadmissible as character evidence, but

it may be admitted for other purposes, such as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.” Miss. R. Evid.

404(b). The purposes listed in Rule 404(b) are not exhaustive; they simply are examples of




                                              7
noncharacter purposes for which evidence of other crimes, wrongs, or acts may be admitted.

Green v. State, 89 So. 3d 543, 549 n.12 (Miss. 2012).

¶15.   When determining whether to admit evidence of other crimes, wrongs, or acts, this

Court utilizes a two-part analysis: the evidence offered (1) must “not [be] admissible to prove

a person’s character in order to show that on a particular occasion the person acted in

accordance with the character” (Miss. R. Evid. 404(b)(1)), and (2) “ . . . its probative value

is [not] substantially outweighed by a danger of . . . unfair prejudice . . . .” (Miss. R. Evid.

403). See also Brooks v. State, 903 So. 2d 691, 699 (Miss. 2005) (quoting Crawford v. State,

754 So. 2d 1211, 1220 (Miss. 2000)). However, the trial court is not required to apply Rule

404(b) to every underlying fact for each offense report. In Green v. State, the Court stated

that its “caselaw reflects that the trial court’s failure to identify the specific applicable

exception(s) under Rule 404(b) does not require reversal.” Green v. State, 89 So. 3d 543,

551 (Miss. 2012).

¶16.    In another case involving the admissibility of prior bad acts, the State sought to

introduce evidence of prior sexual misconduct and argued that “the [evidence of prior bad

acts] . . . was admissible to show a common plan or scheme by [the defendant].” Boggs v.

State, 188 So. 3d 515, 521 (Miss. 2016). Boggs was charged with gratification of lust with

a minor, the facts of which were significantly similar to the evidence of the previous

incidents of abuse the State sought to enter. Id. Both instances dealt with children who were

related to Boggs and who were about the same age when the abuse occurred. Id. As a result

the Court reasoned that the testimony of the victims established a common plan or scheme.



                                               8
Id. While the State essentially argued that all of the Rule 404(b) exceptions applied, the

Court noted that “where the State offers a relevant noncharacter purpose for admitting

evidence, ‘the fact that other alternative purposes are argued is irrelevant . . . .’” Id. (quoting

Cole v. State, 126 So. 3d 880, 885-86 (Miss. 2013)) (holding that, as long as the evidence of

prior acts was not used to show propensity to commit a particular crime, it was admissible);

see also Green v. State, 89 So. 3d 543 (Miss. 2012) (the fact that the evidence was offered

for noncharacter purposes but bore some reflection on the defendant’s character did not bar

its admissibility under Rule 404(b)); Gore v. State, 37 So. 3d 1178 (Miss. 2010) (the court

found no abuse of discretion in admitting evidence of prior bad acts under the Rule 404(b)

exceptions where the evidence presented facts that were substantially similar to the case at

hand); and Derouen v. State, 994 So. 2d 748 (Miss. 2008) (the court overruled the per se

exclusion of evidence of a prior sexual offense other than the one charged and allowed prior-

acts evidence to be admitted under Rule 404(b) if balanced under Rule 403).

¶17.   Similar to Boggs, the trial court in the instant case noted that Johnson’s prior acts

showed “intent, motive, and plan” because the prior assaults all were against women, where

he was the aggressor and he had initiated the contact. We also note that he had a prior

relationship with all of the women. At the conclusion of the arguments on the motion in

limine to admit the Rule 404(b) evidence, the trial court stated:

               [I]n light of the arguments here today, the Court finds that, one, that the
       State is seeking to prove intent, motive, plan, and that [the domestic violence]
       was not in self-defense. . . . For those reasons the Court finds that under 404
       that the State does bring forward a proper argument to do that. . . . The
       balancing test under 403 . . . [shows] that the probative value does outweigh



                                                9
       the prejudicial effect. . . . Absence [sic] a time issue, then I am going to rule
       under 404 that they are admissible in this particular case.

Therefore, we find that the trial court did not abuse its discretion when it admitted the

offense reports under Rule 404(b).

¶18.   Johnson also contends that, even if the prior bad acts were admissible under Rule

404(b), their probative value was outweighed by their prejudicial effect under Rule 403.

Mississippi Rule of Evidence 403 “gives the trial court the discretion to prevent the

admission of otherwise relevant evidence ‘if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or needless presentation of cumulative

evidence.’” Boggs, 188 So. 3d at 522 (quoting Miss. R. Evid. 403). In Boggs, the Court

found that the trial court had balanced the probative value of the evidence and found that it

“was not substantially outweighed by the danger of unfair prejudice” and as a result affirmed

the trial court’s judgment. Id.

¶19.   We find that the trial court in this case also applied Rule 403 correctly to the prior-acts

evidence.4 The trial court found that all four prior offenses were very serious and akin to

what happened in this case and therefore probative for the jury as it decides the facts of the

case. The trial judge stated that under “[t]he balance test [of] 403 . . . [he] [found] that the




       4
         While the trial judge applied Mississippi Rule of Evidence 403 correctly, the trial
judge failed to state the rule correctly. Rule 403 states that the “court may exclude relevant
evidence if its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” (Emphasis added.)

                                               10
probative value [did] outweigh the prejudicial effect.” We find that the trial court properly

admitted the evidence.

       III. Whether the trial court erred in not allowing Johnson to make an
       adequate offer of proof.

¶20.   This issue arises out of Johnson’s attempt to elicit testimony from the victim, Volante,

that allegedly would call into question her credibility as a witness. During cross-examination,

Johnson questioned Volante regarding her line of work, to which she responded that she was

a fitness and dance instructor. Following a question regarding what she had “done in the past

for a living,” the State objected to Johnson’s line of questioning, stating that it was

“irrelevant.” The trial court sustained the prosecution’s objection to the line of questioning

since the testimony appeared to be irrelevant.

¶21.   Later, once the jury was out of the room, the trial court allowed the defense to make

a verbal proffer into the record. The defense stated that it had wished to elicit testimony from

Volante to attempt to establish that she had worked as an exotic dancer and escort at some

unidentified time in her past. The defense alleged that this was relevant to her credibility as

a witness. The trial court denied Johnson’s request to bring Volante into the courtroom for

the proffer and again stated that the objection to this line of questioning was sustained.

¶22.   On appeal, Johnson claims that he was not allowed to make a sufficient proffer of

Volante’s testimony. While an accused criminal has a fundamental right to confront

witnesses testifying against him, “the rule does not allow cross-examination on any matter

affecting the credibility of witnesses without restraint.” Bishop v. State, 755 So. 2d 1269,

1272 (Miss. Ct. App. Feb. 8, 2000) (emphasis added) (citing White v. State, 532 So. 2d


                                              11
1207, 1217 (Miss. 1988)). To attack the credibility of a witness, the testimony must be “about

the witness’s reputation for having a character for truthfulness or untruthfulness.” Miss. R.

Evid. 608(a). In the present case, the defense sought to elicit testimony regarding Volante’s

alleged past employment. Despite the nature of that alleged employment, if shown to be true,

the testimony would not have had an arguable impact on her credibility.

¶23.   Additionally, though the defense is given “wide latitude in cross examination,” the

defense still is limited by considerations of relevance and prejudice. See Hughey v. State,

729 So. 2d 828, 831 (Miss. Ct. App. Dec. 30, 1998) (citing Horne v. State, 487 So. 2d 213

(Miss. 1986)). Relevant testimony must have a tendency to make a fact that is of consequence

to the determination of the action more probable or less probable than it would have been

without the [testimony]. Miss. R. Evid. 401. Volante’s career choices would not have made

any fact of consequence more or less probable and therefore were not relevant in this case.

Since the defense’s line of questioning would not have affected Volante’s credibility as a

witness, clearly was not relevant in this case, and was not supported by any evidence,

including an alleged time frame, the trial court’s decision to sustain the objection to defense’s

line of questioning was not an abuse of its discretion.

       IV. Whether the prosecutor’s description of the defendant was improper
       and requires reversal.

¶24.   During its closing argument, the State referred to Johnson as “a six foot black man”

when describing the facts of the case. Johnson contends, for the first time on appeal, that this

characterization created prejudice and improperly affected the jury’s decision. When there

is alleged prosecutorial misconduct, “[t]he applicable rule here is clear . . . [i]n order to


                                               12
preserve an issue for appeal, counsel must object . . . [and] [t]he failure to object acts as a

waiver.” Havard v. State, 928 So. 2d 771, 791 (Miss. 2006) (quoting Carr v. State, 873 So.

2d 991, 1004 (Miss. 2004)). The defense in the present case failed to object to the

prosecutor’s statement, so this issue is procedurally barred. Id. And no plain error is alleged

that would invalidate the procedural bar. Grayer v. State, 120 So. 3d 964, 968-69 (Miss.

2013).

                                      CONCLUSION

¶25.     We reverse the judgment of the Court of Appeals and reinstate and affirm the

judgment of the Alcorn County Circuit Court.

¶26. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED.
CONVICTION OF AGGRAVATED DOMESTIC VIOLENCE AND SENTENCE OF
TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, WITH TEN (10) YEARS SUSPENDED, IS REINSTATED AND
AFFIRMED. APPELLANT SHALL BE PLACED ON FIVE (5) YEARS POST-
RELEASE SUPERVISION, WITH CONDITIONS. APPELLANT SHALL PAY
COURT COSTS IN THE AMOUNT OF $431.50, A FINE IN THE AMOUNT OF
$4,000, $200 TO THE DISTRICT ATTORNEY’S INVESTIGATIVE FUND, $200 TO
THE CORINTH POLICE DEPARTMENT INVESTIGATIVE FUND, AND $100 TO
THE MISSISSIPPI CRIME VICTIMS’ COMPENSATION FUND. APPELLANT
SHALL ENTER A PAYMENT PLAN WITHIN THIRTY (30) DAYS FOLLOWING
RELEASE FROM CUSTODY.

     RANDOLPH, P.J., LAMAR, COLEMAN AND BEAM, JJ., CONCUR.
DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.; COLEMAN, J.,
JOINS IN PART. MAXWELL, J., NOT PARTICIPATING.


    DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND IN
RESULT:




                                              13
¶27.   While I join the result the majority reaches, I am writing separately to address two

issues: Johnson’s prior bad acts and an inappropriate statement the prosecutor made during

closing argument.

       Proper Use of Rule 404(b)

¶28.   During a pretrial hearing, the trial judge allowed the prosecutor to discuss incident

reports concerning prior offenses allegedly committed by the defendant, without having the

incident reports marked for identification. The incident reports, which later were introduced

into evidence, included discussions of prior bad acts other than the ones discussed during the

hearing.

¶29.   I am satisfied that the record supports the conclusion that the trial judge considered

those other prior bad acts when he performed the required balancing test under Mississippi

Rule of Evidence 403. But had the trial judge required the State to have each proposed

exhibit marked for identification before discussing them during the pretrial hearing, the

confusion about that fact would have been avoided because the judge’s remarks would have

referenced the exhibit numbers.

¶30.   In applying the Rule 403 balancing test, the trial court stated “the probative value [did]

outweigh the prejudicial effect.” This was not a correct statement or application of the test.

Rule 403 does not require the probative value of evidence to “outweigh” the “prejudicial

effect.” Instead, Rule 403 requires the trial judge to conduct a balancing test to determine

whether the danger of unfair prejudice substantially outweighs the probative value.




                                              14
¶31.   Rather than point out the trial court’s error for the benefit of the bench and bar, the

majority says “the trial court in this case also applied Rule 403 correctly to the prior-acts

evidence,” and in a footnote, says: “[w]hile the trial judge applied Mississippi Rule of

Evidence 403 correctly, the trial judge failed to state the rule correctly.” Following this

statement, the majority then recites the correct test as stated in Rule 403, which—according

to the trial judge’s own statement—certainly is not the test he applied. The majority fails to

inform us of how a trial judge could state a rule incorrectly but then apply it correctly. One

logically assumes the trial judge applied the rule as he stated it.

¶32.   The majority’s misstatements of the correct application of the Rule 403 balancing test

are a concern to me because they imply that, for evidence to be admissible, Rule 403 requires

the evidence’s probative value to outweigh the dangers listed under Rule 403, including

unfair prejudice. But Rule 403 does not require the probative value of evidence to

“outweigh” the “prejudicial effect.” The rule requires only that one of the dangers stated in

the rule not substantially outweigh the evidence’s probative value.

¶33.   While pointing out the trial judge’s error might at first appear picayunish—after all,

the trial judge’s misstatement of the test was harmless here—I point it out only because the

mistake so often is made in our trial courts, and it is improperly characterized by today’s

majority as a “correct” application of Rule 403. It was not a “correct” application of the rule.

The majority’s casual and imprecise analysis of the application of Rule 403 is an example

of how this Court, through its opinions, can cause our precedent to drift away from the




                                              15
requirements of our own rules to the point that practicing lawyers and judges are left to guess

the rule of evidence du jour.

¶34.   In Newell v. State,5 this Court claimed for itself the exclusive power and authority to

promulgate the rules of evidence for our trial courts. That being the case, surely it is our

responsibility to carefully recite and apply the rules we write—as they are written.

¶35.   Also at the pretrial hearing, the prosecutor stated that Johnson’s prior bad acts were

admissible for four reasons: to prove intent, motive and plan, and that Johnson did not act

in self-defense. After a review of the record, it is clear that these prior bad acts indeed were

admissible to rebut Johnson’s assertion that he acted in self-defense. So, I agree “the trial

court did not abuse its discretion when it admitted the offense reports under Rule 404(b).”6

¶36.   It certainly is noteworthy that the prosecutor never explained how Johnson’s prior bad

acts were relevant to prove motive or plan as the trial judge stated. But, because overruling

a Rule 404 objection requires only that the prosecutor show some purpose other than

propensity—a requirement the prosecutor certainly met here—the trial judge’s statements

about uses beyond rebutting the defendant’s claim of self-defense were immaterial.

       Prosecutor’s Inappropriate Statement to the Jury

¶37.   Additionally, Johnson argues his conviction should be reversed because the prosecutor

made the following statement to the jury during closing argument:




       5
           Newell v. State, 308 So. 2d 71, 78 (Miss. 1975).
       6
           Maj. Op. at ¶17.

                                              16
       I’ve already touched on the self-defense, I don’t think that requires anything
       else. Ladies and Gentlemen, you’re to use your common sense. A six-foot
       black man, a five-foot ex-wife; he wasn’t scared of her.

¶38.   The majority summarily dispatches this issue by pointing out that, because Johnson’s

counsel failed to object at trial, the issue may not be reviewed on appeal. While the

majority’s observations are correct, more needs to be said.

¶39.   There are several possible reasons—none of them good—why the prosecutor felt that,

in the context of Johnson’s self-defense claim, it was necessary to point out to the jury that

Johnson was a “black man.” Her implication may have been that black men are not as likely

to act in self-defense as other races. Or perhaps she intended the jury to assume that black

men are more likely to engage in violence toward women, or that black men are not as

worthy of the jury’s careful consideration of a self-defense claim. The State offers no

explanation for the prosecutor’s reference to Johnson’s race, and I can think of no legitimate

reason his race should have been a factor in the jury’s consideration of his self-defense claim.

¶40.   Whatever the prosecutor’s reason, the statement was inappropriate and should not

have been made.7 But because Johnson did not object to the statement in the trial court, we

will not reverse absent a finding of plain error,8 which requires that we conclude the error

resulted in “a manifest miscarriage of justice or seriously affect[ed] the fairness, integrity,



       7
         See, e.g., GMAC v. Baymon, 732 So. 2d 262, 272 (Miss. 1999) (trial court erred
in allowing counsel to use “irrelevant, prejudicial and inflammatory statements” before the
jury); see also Reed v. State, 232 Miss. 432, 99 So. 2d 455 (1958); Harris v. State, 209 Miss.
141, 46 So. 2d 91 (1950).
       8
        Roby v. State, 183 So. 3d 857, 871 (Miss. 2016) (quoting Kirk v. State, 160 So. 3d
685. 692 (Miss. 2015)).

                                              17
or public reputation of judicial proceedings”—a conclusion that, based on the record before

us, I am not prepared to reach. That said, while I do not believe the error rises to the level

of plain error, it does comes close.

     KITCHENS AND KING, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS
THIS OPINION IN PART.




                                             18
