                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2014-KA-00621-SCT

SHUNBRICA ANDREA ROBY a/k/a SHUNBRICA
ROBY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                        04/09/2014
TRIAL JUDGE:                             HON. LEE J. HOWARD
TRIAL COURT ATTORNEYS:                   LINDSAY CLEMONS
                                         KRISTEN WOOD WILLIAMS
                                         CLINTON MARTIN
COURT FROM WHICH APPEALED:               CLAY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF THE STATE PUBLIC DEFENDER
                                         BY: HUNTER N. AIKENS
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                       FORREST ALLGOOD
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             REVERSED AND REMANDED - 01/28/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


      BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   A jury convicted Shunbrica Roby of deliberate-design murder, and the trial judge

sentenced her to life in prison. Roby appeals to this Court, arguing (1) that the State’s

evidence was legally insufficient and that her conviction was against the overwhelming

weight of the evidence; (2) that her Sixth Amendment right to confrontation was violated;
and (3) that the trial court erred in granting and/or refusing several jury instructions. We

reverse and remand for a new trial based on the jury-instruction issue.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On October 28, 2012, Shunbrica Roby drove to West Point to “bust the windows” out

of her boyfriend Marcus Payne’s car, because he had been seeing other women. Her cousins

Natisha and Latwanna Roby were with her. They saw Payne’s car at a gas station and pulled

in behind him. Shunbrica got out with a hammer and began to break the windows out of his

car. Payne emerged from the store and a struggle ensued. Initially the struggle was between

Payne and Shunbrica only, but her cousins joined in, and ultimately Payne was stabbed. He

was taken to a hospital where he later died. A grand jury indicted Shunbrica for deliberate-

design murder in violation of Mississippi Code Section 97-3-19.1 Shunbrica was tried on

April 7–9, 2014, and the jury found her guilty.

¶3.    At trial, the State presented ten witnesses in its case-in-chief. And because Shunbrica

challenges the sufficiency of the evidence, we detail the testimony:

       Alexis Robinson

¶4.    Alexis Robinson testified that she knew Payne because he was dating her neighbor,

Raina Brooks, and Robinson and Payne got “real close.” On the night of October 28, 2012,

she and Payne had gone to a party, and they then stopped at the One Stop Deli in West Point.

Payne went into the store, and she noticed “somebody walking fast by the car, like with their

       1
         The indictment charged Shunbrica with “unlawfully, willfully, and feloniously, with
the deliberate design to effect death, [killing and murdering] a human being, Marcus L.
Payne, without authority of law and not in necessary self defense, in violation of MCA §97-
3-19 . . . .”

                                              2
hand, like, on the side of them, behind their back.” Robinson realized it was Shunbrica

Roby.2 Shunbrica looked at Robinson and then “rared back and . . . hit the [car] window with

the hammer.” Shunbrica then hit the windshield with the hammer, and Robinson jumped out

of the car. Robinson was about to run to the store when Payne came outside, and he looked

like “he seen a ghost.”

¶5.    Shunbrica hit the window again, and she said “I told you about playing with me.”

Payne ran to the car, and he and Shunbrica began “tussling” and “fighting.” Shunbrica was

“slinging [Payne] against the car,” and “both of them were just fighting.” Robinson testified

that she did not know whether Payne or Shunbrica had hit the other first, and that neither of

them had anything in their hands during the fight. Payne was about Robinson’s size, and

Shunbrica was bigger than he was. Robinson testified that, after Payne and Shunbrica had

been tussling for about two or three minutes, Natisha and Latwanna jumped out of the car,

and

       they started holding [Payne] while she was fighting. All three of them, they
       were just grabbing and holding him, just – just beating him. They had his
       head, like – his head was down there. They had him by his hood. They kept
       pulling him, and they were just hitting him, just beating and jumping on him.

¶6.    The cousins were saying “Get him, Brica, get him.” All three women were involved,

and when the cousins jumped in, “it was just over with.” Robinson did not try to stop the

fight, because “they was way bigger than me, and then I was nervous . . . they was like ten

times bigger than me . . . both of us little, that would have been a demolish.” During the



       2
       Robinson had been at Raina Brooks’s house one time when Shunbrica had come by,
and Payne had acted like he didn’t know Shunbrica.

                                             3
fight, someone said, “cut his neck, girl, cut his neck.” Shunbrica did not say “no, stop, don’t

cut him.” Robinson saw only the hammer; she never saw a knife. After the fight, the women

just “threw [Payne] to the side,” and he walked toward Robinson holding his shoulder and

making a “hissing” sound.

¶7.    Robinson testified that someone was saying “run him over,” and that either Natisha

or Latwanna got into the car and tried to run over Payne. A man pushed Payne out of the

way, and he slid down the car, stumbled to the back and fell. Robinson realized at that point

that Payne had been stabbed, because blood “just started spewing there on the ground.”

¶8.    Shunbrica started walking toward Payne, but someone yelled “call the police,” and

Shunbrica ran and got into another car. Natisha and Latwanna had driven off and left

Shunbrica. Robinson identified Shunbrica in the courtroom as the woman who got out of the

car with a hammer and started the altercation.

¶9.    On cross-examination, Robinson reiterated that she did not see a knife and that she

could not say who stabbed Payne. She said that it was one of the other women yelling at the

gas station, not Shunbrica.

       Juanita Yates

¶10.   Juanita Yates was at the gas station that evening, and she waited in the car while her

husband went in to get cigarettes. She saw a Honda pull up, and a “guy” got out and went

into the store. About two minutes later, another car pulled up with three females in it, and

the driver [Shunbrica]—who was wearing a white t-shirt—got out and hit the back window

of the Honda with “whatever she had in her hand.” The driver then hit the windshield, and



                                              4
the girl inside the car got out and ran to the store.

¶11.   The driver of the Honda [Payne] came out of the store and said “What’s wrong with

y’all? What y’all doing, messing with my car?” Shunbrica hit Payne on the shoulder with

the object that she had in her hand. Payne tried to push her away, and he was saying “Y’all

go on, man, you know, go on.” Yates did not see Payne hit Shunbrica, but she saw him try

to push Shunbrica away from him. Payne and Shunbrica were “arguing and tussling,” and

then the other two women got out of the car. The women said “uh-oh, he messing with my

cousin,” “he hit my cousin.” Yates thought that the woman wearing lime-green pants was

just “regular punching” Payne, but then she realized otherwise when she saw “a lot of blood.”

¶12.   Yates testified that she never saw a knife, but that “it had to be something, because

once she – they were doing that, so I thought she was punching him at first, but then the

blood came out, and I knew it had to have been something, you know, to hurt him.”

Shunbrica was not with the other two women when Yates saw the blood. After Yates saw

the blood, Shunbrica “got back in the car like she was trying to run [Payne] over.” Natisha

and Latwanna jumped in the car and drove off, leaving Shunbrica. Shunbrica said “Marcus,

Marcus, get up, get up. Please don’t die, don’t die.” Yates testified that, in her opinion, she

didn’t “think the driver [Shunbrica] knew that the boy had been stabbed till she seen him

collapse, you know, on the ground.”

¶13.   Yates testified that you could “wring the blood” out of Payne’s jeans. After Natisha

and Latwanna left, Shunbrica went to the road, and a car stopped and picked her up. Yates

identified Shunbrica in the courtroom as the woman who had hit the car and had hit Payne.



                                               5
¶14.   On cross-examination, Yates reiterated that she did not see Shunbrica with a knife.

And when she saw the woman in the lime-green pants [Natisha] making an upward motion,

Shunbrica was not there jumping on Payne at that time. Yates also testified that Shunbrica

did not realize Payne had been stabbed when she was telling him to get up:

       At the time she didn’t know he had been stabbed, because when he – when he
       – when she noticed that he was stabbed, that’s when she was, you know, upset,
       because she – she wasn’t there with the girls when they was –she wasn’t over
       where the girls were when they were doing that, you know.

On redirect, Yates testified that she heard somebody say “cut his throat, cut his throat,” but

she did not remember who said it.

       Rodney Harris

¶15.   Rodney Harris was in the gas station the night of the incident. He testified that he saw

three girls get out of a car and start beating Payne’s car with what looked like hammers.

Payne ran up to them and they began arguing, and then they began fighting. After three or

four minutes, Payne ran up to the door bleeding and asked them to call an ambulance.

¶16.   As Harris turned to tell the clerk to call an ambulance, Payne ran back to the women’s

car and began beating on the driver’s side. The women made a U-turn and came back to the

parking lot, and they started fighting again. After about three minutes, two of the women left

and one of them stayed behind. The one who stayed behind was trying to walk Payne back

to his car, but she left when he collapsed and got in another car. While she was walking with

him, she asked him “why he did her like that or something.” Harris identified Shunbrica in

the courtroom as the woman who was walking Payne back to his car.




                                              6
¶17.   On cross-examination, Harris testified that he did not see any knife nor any stabbing.

He did not remember who hit whom first. Harris testified that he didn’t think that Shunbrica

knew how badly Payne was hurt: “she was just walking with him and crying, and I didn’t

think she realized how bad he was bleeding until she actually looked at [it] herself.”

       Patrice Powell

¶18.   Patrice Powell and Shunbrica’s brother had a child together, so Shunbrica was her

son’s aunt. Powell testified that on the day of the incident, Shunbrica asked if Powell had

seen Payne’s car in town. Powell told her, yes, she had seen Payne’s car that morning at

Raina Brooks’s house, which was about half a block away from her house. When Powell

told Shunbrica that Payne’s car was in West Point:

       [Shunbrica] just told me that – she asked him good, was he still dating Ms.
       Brooks, and he said no. And she was like, “Well, I’m just tired of it. I’m not
       going to worry about it. Next time he come over to my house, I’m just going
       to bust his window out.” That’s all she said.

¶19.   Later that night, Shunbrica came by Powell’s house to see her nephew and to bring

some clothes she had bought for him. Her cousins “Tisha” and “Twanna” were with her.

After Shunbrica left, Powell was on her way to the ATM when she saw a “commotion” going

on at the gas station. Powell said she was “being nosy,” so she turned around and drove back

by the store. She did not know who was involved in the commotion, but as they came back

by the store, she saw Shunbrica walking past the gas pump and flagging her down.

Shunbrica got in Powell’s car and asked Powell to take her to another store.

¶20.   Shunbrica said that “her and Marcus and her cousin had got into an argument,” or

“they got into it.” She said her cousin had left her at the store and she needed a ride home.

                                             7
She asked Powell for a ride to Columbus, where she lived, but Powell refused. Shunbrica

made a phone call while she was in the car, Powell assumed, to one of her cousins.

Shunbrica asked them where they were, and “they said that the police had them.” Powell

ultimately told Shunbrica to get out of the car at a store down the road, because “we heard

a bunch of sirens, and we really didn’t know what had happened at the store, and we really

didn’t want to get involved.”

¶21.   Powell talked to Shunbrica later that night, and Shunbrica said “she didn’t know what

happened, and she wanted me to call to the hospital to see did they have a Marcus.” When

asked if she was aware of any ongoing issues between Shunbrica and Payne, Powell said that

she had “heard a couple of incidents,” and that she had “heard she busted a window out

before.”

¶22.   On cross-examination, Powell testified that she did not see the altercation, nor did she

see Shunbrica with a knife. Powell also testified that she did not see any blood on Shunbrica

when Shunbrica got in her car.

       Diane Isbell

¶23.   Diane Isbell was at home the night of the incident. A girl she did not know knocked

on her door around 11:30 p.m. and asked to use her telephone. The girl told her she was

from Okolona and was calling Okolona because she needed a ride home. The girl was “very

distraught, very – crying a whole lot. Crying really hysterical like. A lot of crying.” Isbell

overheard some of the girl’s conversation, and she heard her say that “I believe my cousin




                                              8
stabbed my boyfriend. Because there was blood on his jeans.” The girl said something along

the lines of “I was trying to get him, but he was unresponsive, I couldn’t wake him up.”

¶24.   Isbell asked the girl why she had a scratch on her face, and she responded that she and

her boyfriend had been “ into it.” Isbell overheard the girl say that “all she did was burst his

window out.” And she said that “tearfully. She was crying.” The girl said her cousins were

with her earlier that night, and she kept saying that she wanted “to know what happened to

him.” Isbell asked her why she didn’t call the police to see if they could tell her what

happened, but the girl said “no,” “because they already got my two [cousins].” Isbell called

the hospital for her, but they said they did not have her boyfriend yet. When asked by the

prosecutor if the girl that came to her door that night was in the courtroom, Isbell said that

she could not remember what the girl looked like. On cross-examination, Isbell testified that

the girl did not have any blood on her; just a scratch on her face. She said that the girl was

crying “hysterically,” “I mean constant crying.”

       Tara Sloane

¶25.   West Point police officer Tara Sloane was patrolling when 911 relayed a call in

reference to the incident. Sloane alerted 911 that she had observed a vehicle traveling north,

away from the gas station, at a high rate of speed and in the wrong lane. She assumed that

the vehicle had been involved in the incident, so she pulled it over. Two women got out of

the vehicle and began to walk toward Sloane, but she advised them to get back into the car,

because of the reported incident and because the driver “had blood all over her.”




                                               9
¶26.   Sloane advised them to drive back to the store. When asked by the prosecutor whether

the women said anything about being at the store earlier, Sloane testified:

       A. The driver did.
       Q. Okay. What did she say?
       A. She said – she said that her cousin, Shunbrica, had stabbed her boyfriend,
       Marcus.
       Q. Okay. So she told you that Shunbrica had stabbed Marcus?
       A. She did.

Defense counsel made no objection to this testimony. The women drove back to the store

with Sloane following them.

¶27.   Sloane observed Payne lying behind his vehicle in a pool of blood. She did not know

Payne or the women she had pulled over personally, but their names were Natisha and

Latwanna Roby. Sloane did not remember collecting Natisha and Latwanna’s clothes, but

she knew they were collected. Shunbrica was not at the scene when Sloane returned with the

cousins, and she did not come to the police department that night. An ambulance transported

Payne from the scene to a hospital in Tupelo, where he later died following an operation.

¶28.   On cross-examination, Sloane reiterated that Natisha had a large amount of blood on

her clothing. Defense counsel then returned to the statement Natisha had made during the

traffic stop and questioned Sloane about it for some time:

       Q. And you testified that at that time, when you stopped Ms. Latwanna and
       Ms. Natisha Roby, that Natisha Roby made a statement to you? Do you recall
       that testimony?
       A. Yes.
       Q. Okay. And that that statement was that my client, her cousin, Shunbrica
       Roby, had stabbed her boyfriend, Marcus Payne. Do you recall that testimony?
       A. Yes.
       ...



                                            10
       Q. Wouldn’t you agree with me that at the time Natisha Roby made that
       statement to you, you had -- it was when you had apprehended her after she
       had fled the scene of the crime, wouldn’t you agree with me that she was, at
       that time, at least a suspect in the case?
       A. I would say so, yes.
       ...
       Q. When Ms. Roby, Ms. Natisha Roby, made that statement to you, you
       thought that she might be a suspect, correct? You’ve testified to that?
       A. I would -- I would -- I would say that -- that -- that there was -- she had
       some kind of involvement, you know, in the incident. I wouldn't say that -- I
       don’t think a suspect, but I -- something happened, she knew about it.
       ...
       A. So you’d agree with me that it’s possible that on the night of October 28th,
       when you apprehended Ms. Natisha Roby, that statement she made about her
       cousin, Shunbrica Roby, stabbing Mr. Payne, you would agree that she could
       have just been trying to -- trying to keep herself from being arrested for
       murdering Mr. Payne? Wouldn’t you agree with that statement?
       A. No.

       Albert Lee

¶29.   Lieutenant Albert Lee was working as an investigator on the night of the incident.

The 911 dispatcher notified him that there had been an assault at the gas station. Officers

already were on the scene when he arrived, as well as bystanders, so he taped off the crime

scene. He then tried to assist Payne; he noticed a lot of blood and notified 911 that the

paramedics needed to hurry. Payne was in a fetal position on the ground behind his vehicle,

and he was not able to tell Lee anything. Lee noticed a single stab wound on Payne’s left

torso, under his arm.

¶30.   Sloane arrived at the crime scene with Natisha and Latwanna, and Lee testified that

both of them had blood on their clothes and boots. Lee asked Sloane to take the cousins to

the jail until he could speak with them, rather than interviewing them on the scene. Lee took

photos of the cousins before they left for the jail. Lee testified that he recovered a “black-

                                             11
handled steak knife” from the scene, and he found one of Shunbrica’s earrings next to it. The

knife was sent to the crime lab for testing, but it had since been misplaced in the police

department vault. The crime lab technicians were unable to recover any fingerprints from

the knife, because it was so saturated with blood. Lee’s fellow investigators took swabs from

inside the car the Robys drove and sent them to the crime lab for testing as well.

¶31.   Lee asked the store manager about any video surveillance that might be available. Lee

viewed the recording, but the actual altercation was not captured on the footage. On the

video, Lee did see Shunbrica behind Payne’s car when he was on the ground: “You could

tell that she was saying something to him, maybe even trying to aid him, but I guess shortly

thereafter she is seen in the video actually rising up and kind of running away from where

he was behind the car.” Lee testified that he first interviewed Shunbrica a day or two after

the incident. She did not come to the police station on her own; Lee had someone get in

contact with her and ask her to come see him. Shunbrica did not bring the clothes that she

was wearing the night of the incident.

¶32.   Lee read Shunbrica her Miranda 3 rights, and Shunbrica signed a waiver, indicating

she was willing to talk with Lee. Lee generated a transcript of Shunbrica’s statement, and

the transcript was entered into evidence and provided to the jury. The State also played the

audio recording of Shunbrica’s statement for the jury. Lee testified that at some point during

the interview, he remembered Shunbrica saying that Natisha had been in a very abusive

relationship. The prosecutor ended her direct examination of Lee by asking: “at some point



       3
        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed 2d 694 (1966).

                                             12
during that statement, you said, ‘I’ve got witnesses that say you had the knife.’ Were you

referring to co-defendants at that time?” Lee said “yes,” and defense counsel made no

objection.

¶33.   On cross-examination, defense counsel continued to ask Lee about the co-defendants’

statements:

       Q. And during the course of your investigation, you did not have any witness,
       other than a co-defendant, tell you that my client stabbed Mr. Payne; is that
       correct?
       A. That’s correct.
       ...
       Q. Now you had testified a minute ago that the only people that indicated to
       you that my client, Shunbrica Roby, stabbed Mr. Payne were one of two of the
       co-defendants in this case; is that correct?
       A. Correct.
       ...
       Q. So wouldn’t you agree with me, Detective Lee, that Ms. Shunbrica Roby
       was actually, on that night, trying to protect Mr. Payne from her cousins?
       A. No.
       Q. You wouldn’t agree with that statement?
       A. No.
       Q. But you – you would agree with me that the evidence in this case does not
       indicate that Ms. Shunbrica Roby stabbed Mr. Payne?
       A. No more evidence than the two co-defendants saying that she did it –
       Q. Right.
       A. – and the fact that we got Mr. Payne deceased.

       Shunbrica Roby’s Statement

¶34.   As mentioned above, Shunbrica’s statement was introduced into evidence and played

for the jury during Lee’s testimony. Shunbrica stated that she and her cousins had come to

West Point because Payne was over at his ex’s house. Shunbrica confirmed that, when she

saw Payne’s car at his ex’s house, that made her upset. She also confirmed that she left home

with a knife for protection, and a hammer because she was “gonna bust [Payne’s] window.”

                                             13
They passed by a store and saw Payne’s car. Shunbrica “hopped out and opened his door,”

because she was “trying to see who was in the car with him.” She busted his window, and

her cousins “hopped out [of] the car.” Lee asked what Shunbrica’s cousins did when they

got out of the car, and Shunbrica responded that “they was jumping on him.” Shunbrica said

that she did not hit Payne; she dropped the hammer. She thought that Natisha had the knife.

¶35.   When she left the store, she “hopped in the car with somebody in a blue car”; she did

not know who it was. They “put her out down the road and [she] ran.” Shunbrica said that

she did not have blood on her. Shunbrica said that she did not cut Payne and that she did not

touch him at all. When asked if Natisha was the one who stabbed Payne, Shunbrica

responded affirmatively. But when asked if she was sure, Shunbrica said that she “didn’t

know about that. She’s [Natisha’s] the only one that was fighting with him and when she left

blood (inaudible).”

¶36.   Shunbrica denied having the knife in her hand when she got out of the car. When Lee

said “I have a witness say they seen two things, two somethings in your hand,” Shunbrica

responded:

       A. (inaudible) . . . all I did was bust his two windows out with the hammer.
       That’s the only thing I did. I didn’t touch him with no knife (inaudible) . . .
       Q. (Inaudible) . . .
       A. Just to, just to bust his windows and then go back home.
       Q. But why’d you have the knife to bust the window out?
       A. I had just put the knife in the car but I didn’t use the knife. I didn’t use the
       knife at all.
       Q. How did the knife get out of the car?
       A. Sir, I don’t know. (inaudible) . . . no knife or the hammer, just used the
       hammer for to bust his windows out. I didn’t stab Marcus (inaudible) . . .
       Q. Well, why would your cousin want to stab him?
       A. She was trying to help me, (inaudible) . . . helping me (inaudible)

                                               14
       ...
       Q. Why they saying you did it?
       A. I didn’t do it.
       Q. They say you did.
       A. My cousins say I did it?
       Q. They, the word we got is that you stabbed him.
       A. I ain’t stabbed Marcus. (inaudible) . . . two little kids, I did not stab him
       at all.
       ...
       Q. So who stabbed Marcus?
       A. (inaudible) . . . (crying) . . .
       Q. And how do you know that?
       A. Cause (inaudible) . . . she had her head down and she was just (inaudible) . . . I
       know she stabbed him. When she got thru (inaudible) . . .

Shunbrica said that she ran because she was scared, but that she cared about Payne and loved

him. When the people who picked her up at the store let her out, she ran to “some old lady’s

house” to use the phone.

¶37.   Shunbrica then said:

       A. We wasn’t fighting. We weren’t fighting at all. He just hit me in my eye
       (inaudible) . . . right here and I ran back in the car . . . .
       Q. Was at, was at any time all three of y’all fighting him together?
       A. No, I was trying to get them off him.
       Q. Why was you trying to do that?
       A. Because I didn’t want them to do nothing bad to him. I know my
       (inaudible) . . . I know them.
       Q. What you mean by that?
       A. I know they do stupid stuff and I know (inaudible) . . . (crying) . . .
       Q. When y’all left from Columbus what was y’all plan, to come over here and
       bust the window?
       A. My plan to come bust his window and just leave and go back home.
       Q. Who brought the knife? How’d the knife (inaudible) . . .
       A. I brought the knife from my cousin’s house. I put it in the car. Put it in the
       dashboard.
       Q. And why’d you do that?
       A. Because I always carry my knife (inaudible) . . .

       Dr. Lisa Funte

                                              15
¶38.   Dr. Lisa Funte was the medical examiner who performed Payne’s autopsy. Dr. Funte

observed some “lesions” on Payne’s right cheek, the right side of his nose, and to the right

side of his forehead. Dr. Funte testified that the marks on his face “could have been the

result of a struggle,” but “they could be from anything else too.”

¶39.   Dr. Funte testified that the wound on Payne’s body, both internal and external, was

consistent with the knife recovered by Lee at the scene. Payne’s internal “wound track” went

between the ribs and perforated the upper lobe of his left lung and then penetrated the wall

of the left ventricle of his heart. Dr. Funte testified that a “significant amount” of blood was

lost, and that Payne was in shock, eventually bleeding to death.

       Joseph Heflin

¶40.   Joseph Heflin was a forensic biologist at the Mississippi Crime Laboratory,

specializing in serology and DNA analysis. Heflin testified generally about several of the

clothing items from the crime scene, as well as the inside of the vehicles and the knife. The

items tested positive for the presence of blood, and they were retained at the crime lab for

DNA testing.

       Nathan Holly

¶41.   Nathan Holly was a forensic biologist at the crime laboratory, specializing in DNA

analysis. Holly testified that “[b]asically every sample that [he] tested was consistent with

the victim [Payne].”

¶42.   The State rested after Holly’s testimony. Roby moved for a directed verdict, which

the trial judge denied. Roby then rested her case without presenting any evidence. After



                                              16
deliberation, the jury found her guilty of murder, and the judge sentenced Roby to life in

prison. The trial judge denied her post-trial motions, and Roby now appeals, arguing three

points of error: (1) that the State’s evidence was legally insufficient and that her conviction

was against the overwhelming weight of the evidence; (2) that her Sixth Amendment right

to confrontation was violated; and (3) that the trial court erred in granting and/or refusing

several jury instructions.

                                         ANALYSIS

I-A.   Roby’s conviction was supported by sufficient evidence.

¶43.   “[I]n considering whether the evidence is sufficient to sustain a conviction in the face

of a motion for directed verdict or for judgment notwithstanding the verdict, 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; and where the evidence fails to meet this test it is insufficient to

support a conviction.’” Bush v. State, 895 So. 2d 836, 843 (Miss. 2005) (citations omitted).

“However, this inquiry does not require a court to ‘ask itself whether it believes that the

evidence at the trial established guilt beyond a reasonable doubt.’ Instead, the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (citations omitted) (emphasis added).

¶44.   “[I]f a review of the evidence reveals that it is of such quality and weight that, ‘having

in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men



                                              17
in the exercise of impartial judgment might reach different conclusions on every element of

the offense,’ the evidence will be deemed to have been sufficient.” Id. (citations omitted).

¶45.   Roby was charged with deliberate-design murder, as set forth in Section 97-3-19(1)(a)

of the Mississippi Code, which states: “(1) The killing of a human being without the

authority of law by any means or in any manner shall be murder in the following cases: (a)

When done with deliberate design to effect the death of the person killed, or of any human

being, shall be first-degree murder . . . .” Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014).

“[P]remeditation is an element of murder.” Fears v. State, 779 So. 2d 1125, 1131 (Miss.

2000). And by definition, premeditation “connotes a prior design to kill for some appreciable

time. Appreciable time allows the opportunity for reflection and consideration before

committing the act.” Id.

¶46.   We conclude that, from this record, a “rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Robinson testified that

Shunbrica broke out Payne’s car windows and said “I told you about playing with me.”

Robinson also testified that Shunbrica was “slinging [Payne] against the car,” and that “both

of them were just fighting.” Robinson testified further that Shunbrica’s cousins were

“holding” Payne while she was fighting him, and that they were just “beating and jumping

on him.”

¶47.   Robinson also testified that someone shouted “cut his neck, girl, cut his neck.” And

although Robinson later testified that it was one of the cousins who shouted that, she also




                                             18
testified that Shunbrica did not say “no, stop, don’t cut him.” After the fight, Robinson said

the women just “threw [Payne] to the side.”

¶48.   Yates testified that Shunbrica hit Payne on the shoulder with the object that she had

in her hand. Yates also testified that Shunbrica “got back in the car like she was trying to run

[Payne] over.” Yates testified further that she heard someone yell “cut his throat, cut his

throat,” and that she did not recall hearing Shunbrica say “no, don’t do that.”

¶49.   Harris testified that while Shunbrica was walking back toward the car with Payne, she

asked him “why he did her like that or something.” And Powell testified that Shunbrica

called her to ask if Payne’s car was at his ex-girlfriend’s house. When Powell said it was,

Shunbrica said she was “tired of it,” was not going to worry about it, and was going to bust

his windows out. Powell testified that when Shunbrica got in her car after the incident, she

said that “her and Marcus and her cousin had gotten into an argument,” or “they got into it.”

Powell testified further that she had heard of a “couple of incidents” between Shunbrica and

Payne in the past, and that she had heard that Shunbrica had “busted a window out before.”

¶50.   Isbell testified that the girl who came to her house to use the telephone told her that

she and her boyfriend “had been into it.” Officer Sloane testified that one of the cousins had

said that Shunbrica had stabbed her boyfriend Marcus. During Shunbrica’s statement, Lee

told her that he had witnesses who had said that Shunbrica had “two somethings” in her hand,

and that she had stabbed Payne.

¶51.   And Shunbrica admitted that she came to West Point because Payne was over at his

ex’s house, and that upset her. When she saw Payne’s car, she opened his door because she



                                              19
was “trying to see who was in the car with him.” She also admitted that she left home with

a hammer because she was going to break his windows. She admitted further that she brought

a knife from her cousin’s house and put it on the dashboard of the car, because she “always

[carries her] knife.” And this Court repeatedly has said that “malice, or deliberate design,

may be inferred from use of a deadly weapon.” Brown v. State, 176 So. 3d 1, 12 (Miss.

2015) (“The use of a deadly weapon is prima facie evidence of malice, because a man must

be taken to intend the necessary and usual consequences of his act. To shoot or stab, or

strike with a bludgeon, indicates a purpose to take life . . . .”) (citations omitted) (emphasis

added).

¶52.   In sum, we conclude that, viewing the evidence in the “light most favorable to the

prosecution,” a rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt—that Shunbrica intended to kill Payne and that she had

“appreciable time” to reflect upon her actions before committing (or assisting in) the act.

I-B. Roby’s conviction was not against the overwhelming weight of the evidence.

¶53.   This Court “will only disturb a verdict when it is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

Bush, 895 So. 2d at 844 (emphasis added). The evidence must be viewed in the light most

favorable to the verdict, and a new trial should be granted only when the evidence

preponderates heavily against the verdict. Cotton v. State, 144 So. 3d 137, 142 (Miss. 2014).

For the reasons stated in the sufficiency-of-the-evidence analysis, we do not find that Roby’s

conviction was an “unconscionable injustice.”



                                              20
II.    Roby forfeited her right to argue a Confrontation Clause violation.

¶54.   Roby argues next that her Sixth Amendment right to confrontation was violated twice

during the State’s case-in-chief: first, when Officer Sloane testified that Natisha had stated

that Shunbrica had stabbed her boyfriend Marcus, and then when her unredacted statement

was introduced into evidence and played for the jury, in which Detective Lee recounted

statements that the cousins had made implicating Roby. As mentioned before, defense

counsel did not object either to the officer’s testimony or to the introduction of Roby’s

statement, so this Court would have to address this issue as plain error.

¶55.   “Generally, preservation of an issue for appeal requires a contemporaneous objection

at trial.” Kirk v. State, 160 So. 3d 685, 692 (Miss. 2015) (citations omitted). But “[t]he

doctrine of plain error permits this Court to consider, in spite of a lack of a contemporaneous

objection at trial:

       obvious error which was not properly raised by the defendant and which
       affects a defendant’s fundamental, substantive right. 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.

Id. (citations omitted) (emphasis added).

¶56.   The admission of the cousins’ out-of-court statements here was violative of Roby’s

Sixth Amendment right to confrontation. “Where testimonial evidence is at issue . . . the

Sixth Amendment demands what the common law required: unavailability and a prior

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct.

1354, 1374, 158 L. Ed. 2d. 177 (2004). “A witness’s testimony against a defendant is thus



                                              21
inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant

had a prior opportunity for cross-examination.” Melendez-Diaz v. Massachusetts, 557 U.S.

305, 309, 129 S. Ct. 2527, 2531, 174 L. Ed. 2d 314 (2009) (citation omitted).

¶57.   “Testimonial” statements, at a minimum, include police interrogations. Crawford,

541 U.S. at 68. “Testimonial” statements also include “material such as affidavits, custodial

examinations, prior testimony that the defendant was unable to cross-examine, or similar

pretrial statements that declarants would reasonably expect to be used prosecutorially,” as

well as “statements that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later trial.”

Melendez-Diaz, 557 U.S. at 310 (citations omitted) (emphasis added).

¶58.   But defense counsel did not object to the cousins’ statements implicating Roby when

they were recounted by Sloane and Lee. Instead, defense counsel actually highlighted the

out-of-court statements by devoting a large amount of time to recounting and discussing them

during cross-examination.

¶59.   This Court addressed a similar scenario recently involving questionable testimony

admitted without objection in Kirk v. State, 160 So. 3d 685 (Miss. 2015). There, a deputy

who had responded to a domestic-violence call testified at trial that he noticed “strangulation

marks” on the victim. Id. at 691. The jury convicted Kirk of aggravated domestic violence,

and on appeal, Kirk argued that it was “plain error for the trial court to permit a law

enforcement officer to testify to medical causation . . . ” Id. at 691-92. This Court began its

analysis of the issue by noting that Kirk did not object to the testimony, but that “in spite of



                                               22
the failure of trial counsel to interpose an objection, Kirk claim[ed] that the doctrine of plain

error applie[d].” Id. at 692.

¶60.   In dismissing that argument, this Court said unanimously:

       While Deputy Strait may have been able to testify regarding his observations,
       e.g., that Casey’s neck had red marks on it, his testimony that it appeared
       Casey had been strangled constituted the sort of testimony properly reserved
       to an expert. Nevertheless, the defense waived any potential objection to this
       testimony by, instead of objecting to or moving to strike Strait’s testimony
       regarding strangulation or moving for a mistrial, emphasizing it on cross
       examination.
       ...
       Defense counsel failed to move for a mistrial. Nor did defense counsel object
       or move to strike the . . . testimony. Instead, defense counsel interrogated
       Strait not only in an effort to call into question Strait’s expertise regarding
       strangulation, but also to adduce one of the defense’s theories of the case, that
       the marks on Casey’s neck had been self-inflicted. Defense counsel cannot
       now attempt to assign this error to the trial court. It certainly cannot claim
       that it was an “obvious error which was not properly raised by the defendant
       and which affects a defendant’s fundamental, substantive right,” nor was it
       “an error that resulted in a manifest miscarriage of justice or seriously affects
       the fairness, integrity, or public reputation of judicial proceedings.” Johnson,
       2014 WL 971542, *4, 155 So. 3d at 738.

Kirk, 160 So. 3d at 693-95 (emphasis added). We find that this reasoning controls here. Just

as in Kirk, inadmissable testimony was admitted here without objection. And, also, just as

in Kirk, defense counsel then emphasized that testimony on cross-examination in an effort

to shift the focus away from their client. As such, Roby may not “now attempt to assign this

error to the trial court.” Id. at 694-95.

¶61.   Moreover, we find that no “manifest miscarriage of justice” occurred for the

additional reason that the State presented sufficient evidence for the jury to find that Roby

committed deliberate-design murder even without the cousins’ statements, especially since



                                               23
the State did not argue that Roby was the one who actually stabbed Payne. So in sum, we

find this issue is without merit for purposes of Roby’s direct appeal.

III. Jury Instruction S-10 requires reversal.

¶62.   Roby argues finally that the trial judge erred when he (1) refused instruction D-3

regarding malice aforethought; (2) refused instructions D-7, D-8, D-9 and D-10 regarding

reasonable doubt; and (3) granted instruction S-10. While we find no merit to Roby’s

arguments about her malice-aforethought and reasonable-doubt instructions, we do find that

the trial judge erred when he granted S-10.

¶63.   This Court reviews jury instructions under an abuse-of-discretion standard.

Thompson v. State, 119 So. 3d 1007, 1009 (Miss. 2013). This Court must read the

instructions as a whole to determine if the jury was properly instructed. Johnson v. State,

908 So. 2d 758, 764 (Miss. 2005). If the instructions as a whole “fairly announce the law of

the case and create no injustice,” this Court will not reverse. Id.

       Instruction D-3

¶64.   Importantly, Roby “does not claim that granting instruction S-3 was error in itself,”

but argues instead that “instruction S-3 draws dangerously near to condemnation because it

nearly eliminates the requirement that deliberate design or malice aforethought exist at all.”

As such, Roby argues that the trial judge should have granted D-3 as a “critical missing link

to the jury’s full understanding of the state of mind that it was required to find . . . .”

¶65.   Instruction S-3 provided:

       The Court instructs the Jury that the term “malice aforethought” as used in
       these instructions means intent to kill without authority of law and not being

                                               24
       legally justifiable, legally excusable or under circumstances that would reduce
       the act to a lesser crime. Malice aforethought cannot be formed at the very
       moment of the fatal act; however, malice aforethought need not exist in the
       mind of the Defendant for any definite period of time. If there is malice
       aforethought, and it exists in the mind of the Defendant but for an instance
       [sic] before the fatal act, this is sufficient malice aforethought to constitute the
       offense of First-Degree Murder.

Proffered instruction D-3, which Roby argues would have “further defined this state of

mind,” provided:

       The Court instructs the jury that “deliberate design” as it is used in these
       instructions, means an intent to kill without authority of law, and not being
       legally justifiable, or legally excusable. “Deliberate” always indicates full
       awareness of what one is doing, and generally implies careful and unhurried
       consideration of the consequences. “Design” means to calculate, plan or
       contemplate. “Deliberate design” to kill a person may be formed very quickly,
       and perhaps only moments before the act of killing the person. However, a
       “deliberate design” cannot be formed at the very moment of the fatal act.

¶66.   We disagree with Roby’s argument.            This Court previously has approved an

instruction that was almost identical to S-3 as properly defining deliberate design:

       A deliberate design cannot be formed at the very moment of the fatal act,
       however, the deliberate design need not exist in the mind of the Defendant for
       any definite time, not for hours, days, or even minutes, but if there is deliberate
       design, and it exists in the mind of the Defendant but for an instant before the
       fatal act, this is sufficient deliberate design to constitute the offense of Murder.


Theodore v. State, 798 So. 2d 465, 470 (Miss. 2001) (emphasis added). As such, S-3 was

a correct statement of the law, and the trial judge did not abuse his discretion by refusing D-3

as repetitive. This issue is without merit.

       Instructions D-7, D-8, D-9, and D-104

       4
        A review of the transcript reveals that Roby’s counsel agreed that D-10 was
repetitive when it was challenged by the State. Thus, Roby has forfeited her argument

                                               25
¶67.   Roby argues next that the trial judge erred by refusing several of her proffered

reasonable-doubt instructions. D-7 provided:

       The Court instructs the jury that you cannot convict Shunbrica Roby upon
       mere suspicion, probabilities and speculation as to her guilt, and unless the
       State of Mississippi has proven her guilt beyond a reasonable doubt, then it is
       your sworn duty to find the Defendant Shunbrica Roby Not Guilty.

And D-8 provided:

       The defendant in every criminal case is presumed to be innocent unless his or
       her guilt is established by the evidence beyond a reasonable doubt.

       Before the presumption of innocence leaves the defendant, every material
       allegation of the indictment must be proven by the evidence beyond a
       reasonable doubt. The presumption of innocence accompanies and abides with
       the defendant as to each and every material allegation of the indictment
       through each stage of the trial until it has been overcome by the evidence
       beyond a reasonable doubt.

       If any of the material allegations of the indictment is not proven beyond a
       reasonable doubt, you must give the Defendant Shunbrica Roby the benefit of
       the doubt and find her Not Guilty.

The trial judge denied both of these instructions as repetitive. And it is well-settled that

“[t]he trial judge is under no obligation to grant redundant instructions.” Bell v. State, 725

So. 2d 836, 849 (Miss. 1998).

¶68.   Here, C.01 instructed the jury that its verdict should “be based on the evidence and

not upon speculation, guesswork or conjecture.” C.12(a) instructed the jury that:

       The law presumes every person charged with the commission of a crime to be
       innocent. This presumption places upon the State the burden of proving the
       Defendant guilty beyond a reasonable doubt. The presumption of innocence
       attends the Defendant throughout the trial or until it is overcome by evidence



regarding this instruction, and we do not discuss it.

                                             26
       which satisfies the jury of his guilt beyond a reasonable doubt. The Defendant
       is not required to prove his innocence.

And S-2(B), S-11, D-2(A), D-5(A), and D-13(A) all also instructed the jury that the State had

to prove all of the elements of the crime beyond a reasonable doubt. In light of all of these

instructions, we find that the trial judge did not abuse his discretion when he refused D-7 and

D-8 as repetitive.

¶69.   Instruction D-9 provided:

       The Court instructs the jury that a reasonable doubt may arise from the whole
       of the evidence, the conflict of the evidence, the lack of evidence, or the
       insufficiency of the evidence; but however it arises, if it arises, it is your sworn
       duty to find the Defendant Shunbrica Roby Not Guilty.

The trial judge refused D-9 as argumentative, with no response from defense counsel. Again,

regardless of the judge’s reason for refusing D-9, we find that he did not abuse his discretion,

as the concept of reasonable doubt was covered extensively by other instructions. This issue

is without merit.

       Instruction S-10

¶70.   Roby objected to S-10 at trial, which stated:

       The Court instructs the jury that when two or more persons act together with
       a common design in committing a crime of violence upon another, and a
       homicide is committed by one of them incident to the execution of that
       common design, all are criminally liable for that homicide as the act of one is
       the act of all. Therefore, if you find from the evidence in this case beyond a
       reasonable doubt that the Defendant, Shunbrica Roby, together with Natisha
       Roby and/or Latwanna Roby, acted with a common design in committing an
       assault upon Marcus Payne and a homicide was committed by one of them
       while engaged in that assault, then all are criminally liable for that homicide,
       and each are equally guilty under the laws of the State of Mississippi.




                                               27
(Emphasis added). She argues now on appeal that the trial judge erred by granting it, as it

was an “incorrect statement of the law aimed at diminishing or destroying the significance

of Roby’s intent (deliberate design to kill Payne) as an element the jury was required to find

beyond a reasonable doubt.” Roby also argues that S-10 incorrectly suggested that “if [she]

had the intent to assault but not kill Payne in the tussle that broke out between them, then

Natisha and/or Latwanna’s intent to kill Payne could be attributed to Roby.”

¶71.   In Welch v. State, this Court wrote:

       To be convicted as an accessory the defendant must possess the mens rea for
       the commission of the crime. The precise state of mind of the defendant has
       great significance in determining the degree of his guilt. An accomplice may
       be convicted of accomplice liability only for those crimes as to which he
       personally has the requisite mental state. He must have a “community of
       intent” for the commission of the crime. Malone v. State, 486 So. 2d 360
       (Miss.1986); Shedd v. State, 228 Miss. 381, 87 So. 2d 898 (1956).

Welch v. State, 566 So. 2d 680, 684 (Miss. 1990) (emphasis added). And in Shedd v. State,

this Court said: “If two or more persons enter into a combination or confederation to

accomplish some unlawful object, any act done by any of the participants in pursuance of the

original plan and with reference to the common object is, in contemplation of law, the act

of all. Shedd v. State, 87 So. 2d 898, 899 (Miss. 1956) (emphasis added).

¶72.   This Court applied this principle specifically to a factual scenario in Huggins v. State,

115 So. 213 (Miss. 1928). The defendant there (Huggins) was convicted of murder as a co-

conspirator. Id. at 213. He and another man (Walton) had robbed a gas station. Id. Huggins

got away, but the store owner captured Walton, who ended up killing the owner. Id.




                                              28
¶73.   On appeal, Huggins argued that the evidence was insufficient to convict him of

murder. Id. at 214. In addressing that issue, this Court wrote:

       In order that this appellant might be held to be guilty of the murder, it was
       necessary that the joint enterprise and conspiracy should cover not only a
       design or purpose to commit the robbery or larceny, but should extend to and
       include the common purpose and agreement to resist arrest with great
       violence, or kill the deceased or other person who interfered with or attempted
       to apprehend them. If they had only the common purpose of committing
       larceny, and the killing of the deceased by Walton was “merely the result of
       the situation in which he found himself, and proceeded from the impulse of the
       moment, without any previous concert,” the appellant would not be guilty of
       the murder.

Id. (emphasis added).5

¶74.   And in a case involving a joint assault that resulted in a death—as we have here—this

Court wrote:

       “In the absence of a conspiracy or common design the evidence must be
       sufficient, even in cases where the killing occurred in the course of a joint
       assault or affray, to show either that accused struck the fatal blow or aided and
       abetted therein. To justify the conviction of one who was not the actual slayer,
       where the proof does not show any prearrangement, conspiracy, or common
       design, the evidence must be sufficient to show that accused aided or abetted
       the actual slayer by overt act of assistance or oral expression of
       encouragement.”

       In order to render one responsible as an aider or abettor, it is essential that
       he share in the criminal intent of the direct actor. “The common intention
       need not be formed before convening at the place of the crime. It may have
       arisen on the spur of the moment, but it must exist at the time the crime is
       committed, and not merely before or after.” “‘Aiding and abetting involves
       some participation in the criminal act’ and this may ‘be evidenced by some
       ‘word, act, or deed.’”

       5
       The Court found ultimately that the evidence was sufficient to convict Huggins, as
he had admitted in his statement to police that he and Walton had “agreed to kill [the store
owner], or any one else who interfered with them or attempted to prevent them from
escaping.” Id. at 214.

                                              29
Gibbs v. State, 77 So. 2d 705, 707 (Miss. 1955) (citations omitted) (emphasis added).

¶75.   In light of the foregoing authority, we find that S-10 was an incorrect statement of

law. And the State seemingly concedes that S-10 was incorrect and/or confusing, arguing

only that “there were three other instructions that properly placed the burden on the State to

prove every element of the crime of murder beyond a reasonable doubt,”6 and that the jury

therefore “could not have been confused when all instructions were considered and read

together as a whole.”

¶76.   We disagree with the State’s argument. While it is true that some of the other

instructions provided that the State had to prove all the elements of deliberate-design murder

beyond a reasonable doubt, S-10 instructed the jury that the State had to prove only that Roby

committed an assault beyond a reasonable doubt. In other words, if the jury found that Roby

intended to commit an assault, she automatically was criminally liable for any resultant

homicide, regardless of her intent. That is contrary to our law.

¶77.   And the confusion brought about by S-10 was only heightened by the State’s closing

argument, in which the prosecutor argued that:

       One of them stabbed him during the course of that assault. This is the provision
       of law [referring to S-10] that says it does not matter which one of them had the
       knife. It does not matter which one of them struck the fatal blow. If all three
       of them were participating in that assault, they are all equally liable for his
       death.
       ...
       You’re told that I’m asking you to stretch and reach. Well, if it’s a stretch to
       ask you if she committed an assault on this victim, then go ahead and stretch.
       That’s the bottom line. Did she engage in the assault?

       6
        The State cites instructions S-2(B), D-2(A) and D-13(A).

                                              30
       ...
       And during the course of that assault, one of them stabbed him. He bled to
       death in the parking lot of a convenience store because of her. It does not
       matter if she had the knife in her hand. He is dead because of her.

(Emphasis added).

¶78.   In sum, we agree with Roby that S-10 was an incorrect statement of the law, and we

disagree with the State that any error and/or confusion was harmless. We therefore reverse

the trial court’s judgment and remand the case for a new trial based on this issue.

                                      CONCLUSION

¶79.   Roby’s conviction for first-degree murder was not against the sufficiency or weight of

the evidence, and Roby forfeited her right to argue a Confrontation Clause violation. Further,

the trial judge did not abuse his discretion when he refused jury instructions D-3, D-7, D-8,

D-9 and D-10. But the trial judge did err when he granted instruction S-10, and we reverse

the judgment of conviction and remand the case for a new trial based on that issue.

¶80.   REVERSED AND REMANDED.

    WALLER, C.J., DICKINSON, P.J., KITCHENS, PIERCE, KING AND
COLEMAN, JJ., CONCUR. RANDOLPH, P.J., AND MAXWELL, J., NOT
PARTICIPATING.




                                             31
