           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-KA-01016-COA

GREGORY EUGENE MOOTYE, III A/K/A                                            APPELLANT
GREGORY MOOTYE

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          01/28/2011
TRIAL JUDGE:                               HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: JUSTIN TAYLOR COOK
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                         PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 06/04/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       CARLTON, P.J., FOR THE COURT:

¶1.    After a jury trial in Forrest County Circuit Court, Gregory Mootye was convicted of

three counts of deliberate-design murder. For each count, he was sentenced to serve life in

the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run

consecutively.

¶2.    Mootye now appeals and asserts the following assignments of error: (1) the trial court

erred in denying his alibi instruction; (2) the trial court erred in overruling his Batson1


       1
           Batson v. Kentucky, 476 U.S. 79 (1986).
objection; and (3) his trial counsel was ineffective. Finding no error, we affirm Mootye’s

convictions and sentences.

                                           FACTS

¶3.    At approximately 4:40 a.m. on Monday, February 22, 2010, Officers Robert Sybert

and Jason Pitts of the Hattiesburg Police Department were dispatched to 817 Dabbs Street

in response to a 911 hangup call. Even though the door was locked, it was ajar. The officers

entered the home, identifying themselves as law enforcement. Although the house was dark,

Officer Sybert detected movement in a doorway and saw what appeared to be a white

reflective band on the back of a person’s jacket. As he moved toward the individual, Officer

Sybert tripped over the body of a female covered in blood on the floor. The suspect, a tall

black male wearing a dark-colored hooded jacket with what appeared to be a white shirt

underneath, responded to the officers’ commands and moved forward slowly. However,

when Officer Pitts tried to arrest the suspect, he snatched his arm away, ran past the officers,

and jumped off the porch. The officers chased the suspect but were unable to apprehend him.

¶4.    The deceased victim on the floor was identified as Angelica Twillie. A second

deceased female—Angelica’s mother, Alesia Twillie—was discovered in a bedroom.2

Autopsies of the women revealed they had both been shot and stabbed multiple times.

Furthermore, Angelica was several months pregnant, and it was determined that the unborn

child’s cause of death was ureteral placenta insufficiency due to the homicidal death of the

mother.

       2
         Police also found Angelica’s son, who was between fourteen and seventeen months
old, alive at the residence.

                                               2
¶5.    Mootye was rumored to be the father of Angelica’s unborn child, and he was

questioned by police. Mootye told Detective Branden McLemore that he had been at his

apartment Sunday night until he left for work Monday morning, and his roommate, Deveiun

Tripp, confirmed his alibi; so Mootye was released. Soon thereafter, Officer Pitts was shown

a picture of Mootye and others on a digital camera, and he indicated that he was eighty

percent sure that Mootye was the person he saw at the Twillies’ house that night.

Furthermore, two individuals—Chekeita Pittman and Taborious Lindsey—came forward

with witness statements placing Mootye near the scene of the murders that morning. Before

trial, when questioned further by police and charged with accessory after the fact, Tripp

recanted his prior statement that supported Mootye’s alibi and said Mootye confessed to him

that he committed the murders. As we will discuss later in this opinion, Tripp also testified

as to such at trial, stating that he picked Mootye up at an apartment complex the morning

after the murders and that Mootye later asked him to move a gun.

¶6.    Mootye was indicted on three counts of deliberate-design murder for the deaths of

Angelica, Alesia, and Angelica’s unborn child. A jury trial was held on January 24–26,

2011. The two officers dispatched to the 911 call testified to the facts as stated above.

Denise Rupple, a senior crime-scene analyst with the Bureau of Forensic Services, stated that

a fillet knife, like the ones used at Marshall Durbin where Mootye and Angelica worked, was

recovered near the house, and several .22-caliber shell casings were found in the home. No

gun was recovered. Rupple also testified that the arcing pattern of blood splatters on the wall

indicated the person used his or her left hand. (Mootye was left-handed.) She noted a



                                              3
“gloved impression or fabric impression that was left in blood” and said the pattern was

consistent with fabric gloves obtained from Marshall Durbin, but Rupple admitted that no

glove was found at the crime scene. There were also bloody shoe prints at the scene.

¶7.    During a search of Mootye’s apartment, police retrieved an empty .22-caliber shell

cartridge box from Tripp’s bedroom. Two pairs of Nike high-top sneakers were also taken

from the apartment for testing. Rupple testified that one pair’s size and class “was consistent

with the stains that were left – those shoe impressions that were left at the scene.”

¶8.    Pittman testified that she spent the evening with Mootye that Sunday night. Pittman

stated that Mootye and Tripp watched a basketball game on television. She and Mootye went

to bed somewhat early, but at approximately 4 a.m., he asked her “to take him to get some

money from some dude” before he had to go to work that morning. Pittman was unfamiliar

with the area, so Mootye directed her where to go. Pittman testified that Mootye realized he

forgot his cell phone and he told her to come back for him later. Pittman turned the car

around to leave and noticed Mootye standing on the porch of a home, later identified by her

as the Twillies’ house. She drove away and soon thereafter saw the police cars drive by.

Worried, Pittman went to the apartment to get Tripp, saying they needed to check on Mootye.

After looking for Mootye, they decided to go back to the apartment and wait. According to

Pittman, Tripp woke her up about 7 a.m. saying Mootye had called and requested that she

pick him up at her cousin’s house. Pittman observed that Mootye was wearing a white

“dingy-like shirt,” and he told her “he had been running from the police.” She noted “a little

speck of blood, like, on his forehead.” Pittman claimed that she met Mootye at his uncle’s



                                              4
house the following day and that he pulled a gun out of the trunk of her car.3 Pittman

acknowledged she only told police what happened after she was arrested for accessory after

the fact.

¶9.      Lindsey testified that he was staying at a friend’s apartment and leaving for work at

approximately 6:45 a.m. on February 22 when he heard someone call his name. He turned

to see Mootye, whom he recognized from playing basketball at the YMCA. Mootye asked

to use his phone. Lindsey testified that Mootye was wearing a white t-shirt, jeans, and black

Nike tennis shoes, and he was holding a dark shirt in his hand. When Lindsey discovered

Mootye had been arrested for the murders, he informed the police that Mootye had used his

phone that morning. Lindsey’s phone records reveal that the phone number called that

morning was Tripp’s number.

¶10.     Tripp testified that he moved in with Mootye in November 2009 but had known him

for many years. According to Tripp, Mootye was concerned that he had gotten a coworker

pregnant.4 The night Pittman came over, he and Mootye watched television and played video

games. Mootye went to bed early because he had to work, but Tripp stayed up watching

television with his nephew, Mario Smith. The two men went to get some fast food around

2 a.m. then came back to watch television until almost 4 a.m. When Tripp went to bed, he

heard some movement coming from Mootye’s room. Tripp testified that shortly after 5 a.m.,


         3
        Testimony was that this was a .45-caliber pistol; not the gun presumably used in the
murders. Pittman admitted that she only mentioned the gun in the trunk a couple of weeks
before trial; she did not mention it in her original statement to police.
         4
             DNA testing later revealed that Mootye was not the father of Angelica’s unborn
child.

                                               5
Pittman knocked on his door and “panicked” because she could not find Mootye. Tripp and

Pittman left in her car, but they quickly returned to the apartment because Tripp “had a bad

feeling.”5 An hour or so later, Tripp got a call from an unknown number; it was Mootye

asking for Pittman to come get him. Pittman asked Tripp to go with her. They picked up

Mootye at an apartment complex where Pittman’s cousin lived and returned to Mootye and

Tripp’s apartment.6 Tripp stated that he heard Pittman say something about blood on

Mootye’s forehead, but Tripp testified that he never saw any blood. At the apartment,

Mootye took a shower and got ready for work. Before leaving, he asked Tripp to take out

the trash. Mootye called Tripp an hour later, informing him of Angelica’s death, and asking

Tripp to take a gun from Mootye’s nightstand (a .45-caliber handgun) and put it in the trunk

of Pittman’s car. Tripp testified that Mootye also owned a .22-caliber gun, which he had let

Tripp borrow, but Tripp claimed that he gave the gun back “a month before all this

happened.” Tripp testified that Mootye confessed to him later that afternoon that he killed

the victims. Tripp admitted that when police initially questioned him, he told the police that

Mootye had been home all evening. Tripp stated that he changed his statement to the police

when he was arrested for accessory after the fact.

¶11.   Detective McLemore testified that he had been called to the Twillies’ residence in the


       5
        Tripp confessed that the reason he did not want to take his car was because his “car
ha[d] drawn attention before” from police.
       6
         During opening statements, the State informed the jury that the apartment complex
where Pittman and Tripp picked up Mootye was located “about a mile-and-a-half from the
Twillie residence,” where the murders occurred. Detective McLemore also testified at trial
that the apartment complex where Pittman and Tripp picked up Mootye was “less than a
mile-and-a-half” walk from the Twillies’ residence.

                                              6
past for domestic issues between Angelica and Curtis Price, the father of her other child; so

after the discovery of Angelica and Alesia’s bodies, police issued a “be on the lookout”

(BOLO) for Price. Upon learning Mootye was the suspected father of Angelica’s unborn

child, the police also issued a BOLO for Mootye.

¶12.   Detective McLemore stated that Price gave him an alibi, which was later confirmed.

Upon Detective McLemore’s request, Mootye came to the police station that afternoon. Both

Price and Mootye submitted to a gunshot-residue test and a DNA test. Mootye also provided

an alibi—that he was home the entire evening—and Detective McLemore confirmed

Mootye’s alibi with Tripp. As a result, Mootye was released. However, Detective

McLemore said that the one thing that “stuck out” to him during the investigation was

Rupple’s indication that the person using the knife was left-handed, and Mootye was the only

left-handed suspect. During his second interview with police, Mootye again asserted that he

had been at his apartment Sunday evening until he went to work Monday.

¶13.   With regard to DNA testing of the sneakers confiscated from Mootye’s apartment, a

forensic DNA analyst with Scales Biolab, Katherine Moyse, concluded that neither Mootye

nor Tripp could be excluded as contributors. Tripp acknowledged that he had borrowed

Mootye’s shoes on prior occasions. Moyse testified that Mootye’s DNA also could not be

excluded as a contributor to the Y chromosome mixture on the handle of the knife that was

recovered.

¶14.   Mootye was convicted on all three counts of murder and sentenced to consecutive life

sentences in the custody of the MDOC on each count. On February 7, 2011, Mootye filed



                                             7
a motion for a judgment notwithstanding the verdict, or alternatively, for a new trial, which

the trial court denied. Four years later, on May 18, 2015, Mootye filed a petition for an out-

of-time appeal and an affidavit, asserting that his trial counsel had failed to file an appeal

after his convictions or to advise Mootye of his right to appeal. The trial court granted

Mootye’s petition on July 13, 2016.7

¶15.   Mootye is represented on appeal by the Office of Indigent Appeals, which argues that

the circuit court’s refusal to grant Mootye’s alibi instruction and failure to perform a

complete Batson8 analysis constitutes reversible error. Mootye filed a supplemental pro se

brief, reasserting as error the trial court’s refusal to grant his alibi instruction and additionally

claiming that his trial counsel was ineffective for failing to object to a lack of instruction on

venue and failing to request a Daubert9 hearing.

                                         DISCUSSION

       I.       Alibi Instruction

¶16.   Mootye argues that the trial court committed reversible error by refusing his proposed

alibi instruction. Mootye maintains that Detective McLemore established the evidentiary

basis for his alibi defense that he was at home on the night of the murders.

¶17.   “We review a trial court’s rulings on jury instructions for an abuse of discretion.”



       7
         The circuit clerk erroneously forwarded Mootye’s petition to the Mississippi
Supreme Court, treating it as a motion for post-conviction relief. By order of the supreme
court on September 1, 2015, the petition was remanded to the circuit court for a ruling.
       8
           Batson v. Kentucky, 476 U.S. 79 (1986).
       9
           Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579 (1993).

                                                 8
Wilson v. State, 198 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2016). “It is fundamental in

Mississippi jurisprudence that jury instructions must be supported by evidence.” Morris v.

State, 777 So. 2d 16, 29 (¶63) (Miss. 2000). A defendant is entitled to a jury instruction

supporting his alibi defense theory where the “defendant asserts the defense of alibi[] and

presents testimony in support of that defense . . . ” Roper v. State, 981 So. 2d 1021, 1023

(¶12) (Miss. Ct. App. 2008); see also Morris v. State, 777 So. 2d 16, 29 (¶63) (Miss. 2000).

Conversely, if the evidence presented at trial “does not support an alibi defense, the

instruction should not be granted.” Roper, 981 So. 2d at 1023 (¶12).

¶18.   At trial, Mootye offered Jury Instruction D-5 as an alibi instruction. Jury Instruction

D-5 stated:

       “Alibi” means elsewhere or in another place. In this case, the Defendant is
       asserting the defense of alibi by saying that he was at his apartment at the time
       of the crime.

       “Alibi” is a legal and proper defense in law. The defendant is not required to
       establish the truth of the alibi to your satisfaction, but if the evidence or lack
       of evidence in this case raises in the minds of the jury a reasonable doubt as to
       whether the Defendant was present and committed the crime, then you must
       give the Defendant the benefit of any reasonable doubt and find the Defendant
       not guilty.

The State objected to the instruction, asserting that it had not “received any notice of an alibi

defense, and there certainly has not been any witnesses to indicate an alibi defense.”

¶19.   At the time of Mootye’s trial, Uniform Circuit and County Court Practice Rule 9.0510

required:



       10
         Rule 9.05 has been replaced by Mississippi Rule of Criminal Procedure 17.4(a)(1),
which is substantively identical for the purposes of this claim.

                                               9
       Upon the written demand of the prosecuting attorney . . . the defendant shall
       serve within ten days . . . upon the prosecuting attorney a written notice of the
       intention to offer a defense of alibi, which notice shall state the specific place
       or places at which the defendant claims to have been at the time of the alleged
       offense and the names and addresses of the witnesses upon which the
       defendant intends to rely to establish such alibi.

As Mootye observes, “[t]he rule clearly states that the requirement to disclose an alibi

witness is triggered by the prosecution.” Hall v. State, 925 So. 2d 856, 857 (¶4) (Miss. Ct.

App. 2005). “Only after the prosecuting attorney makes a written demand is the defendant

then required to provide a written notice of his intent to offer a defense of alibi.” Id. (quoting

Ford v. State, 862 So. 2d 554 (¶11) (Miss. Ct. App. 2003)). Moreover, “[t]he specific

purpose of alibi defense discovery is to allow the state an opportunity of investigation and

discovery of evidence, if any, which may rebut the anticipated alibi defense.” Robinson v.

State, 247 So. 3d 1212, 1227 (¶30) (Miss. 2018) (quoting Coleman v. State, 749 So. 2d 1003,

1009 (¶14) (Miss. 1999)). In this instance, the State made no such demand, and it concedes

that Mootye was not required to provide notice under the Rule.

¶20.   The trial court ultimately refused the jury instruction. The record reflects that the trial

court did not base his refusal of the alibi instruction on the issue of notice; instead, he found

that the evidence was insufficient to support the giving of the instruction. The trial court

explained: “I’m not addressing whether you gave the notice, but I do think it takes

something affirmative to show. You can’t base it on a detective’s testimony to say, well

that’s his alibi and have an alibi instruction submitted.”

¶21.   Mootye argues that the testimony from Detective McLemore established Mootye’s

alibi that he was at home on the night of the murders. The record reflects that Detective

                                               10
McLemore testified during both of his interviews, Mootye informed him that he was at home

all night on the night of the murders and that he did not leave. Detective McLemore testified

Mootye stated he went to sleep between 11:00 p.m. and 11:30 p.m. that evening and left for

work at 7:30 a.m. the next morning. Mootye argues that this testimony by Detective

McLemore established the evidentiary basis for his alibi defense.

¶22.   The State maintains that Detective McLemore’s testimony did not support Mootye’s

alibi that he was home at the time of the murders; instead, Detective McLemore’s testimony

merely established that Mootye told him he was at home at the time. As a result, the State

argues that Mootye only presented evidence that he told someone he was at home; he failed

to present any evidence to show that he was actually at home or that his statement to

Detective McLemore was truthful. The State contends that because Detective McLemore’s

testimony is not sufficient to establish Mootye’s alibi that he was home when the murders

occurred, Mootye’s “defense is nothing more than a simple denial of guilt.” See Owens v.

State, 809 So. 2d 744, 746 (¶7) (Miss. Ct. App. 2002) (An alibi defense involves “more than

a simple denial by the defendant that he was present at the precise time the crime was

committed.”).

¶23.   At trial, Detective McLemore testified that he conducted a phone call with Tripp and

verified Mootye’s alibi. Detective McLemore stated that after he verified Mootye’s alibi, he

released Mootye. Detective McLemore explained as follows:

       A.       I verified his – what [Mootye’s] alibi was. . . . He told me that the night
                before that him, himself, Deveiun Tripp, and Mario, which is [Tripp’s]
                nephew, were at the apartment at 200 Foxgate. They w[ere] there all
                night. They had watched the basketball game, I believe. The Lakers

                                                11
              – he stated to me – and he couldn’t remember the other team, but he
              said he watched it till around 7 or 8, and he remembers going to bed
              about 11 or 11:30. At that time[,] he said the next morning he woke up
              and went straight to work.

       Q.     Did he indicate if he had ever left his house during the night of
              February 21 from 11 p.m. until he went to work?

       A.     No, ma’am.

       ....

       Q.     What, if anything, else did you learn from Mr. Mootye during that
              interview?

       A.     Basically who could verify his alibi. He advised me that Deveiun Tripp
              could verify that he was there all night, that he did not leave the house,
              and he woke up the next morning.

       ....

       Q.     Were you able to verify the alibi that you were given by Mr. Mootye?

       A.     Yes, ma’am. It was – I did verify that alibi.

Again, the transcript reflects that Detective McLemore only released Mootye after verifying

his alibi. Tripp’s pretrial inconsistent statement that he recanted at trial was not substantive

evidence at trial to support Mootye’s alibi, but instead explained why Detective McLemore

released Mootye after his initial arrest. See DeHenre v. State, 43 So. 3d 407, 419 (¶57)

(Miss. 2010) (“Prior inconsistent, out-of-court statements made by a nonparty witness are not

admissible as substantive evidence.”).

¶24.   However, Detective McLemore testified that later on in the investigation, Tripp gave

another detective consent to search the apartment and Tripp’s vehicle. Detective McLemore

then conducted an interview with Tripp in person at the police department. Detective

                                              12
McLemore stated: “Once I began interviewing [Tripp], [Tripp] came up with the information

that stated to me that basically that [Mootye] was, in fact, not at home that night because he

had went with [Pittman] to go and pick up [Mootye] at the apartment complex.” Tripp

advised Detective Mootye that Pittman could verify this story. According to Detective

McLemore, Tripp also stated that Mootye told Tripp “he had hid the weapon that was used

in the commission of the crime of the . . . homicide . . . in the air condition vent at th[at]

apartment complex.”

¶25.   The record reflects that Tripp, the witness relied upon by Detective McLemore to

verify Mootye’s alibi, testified regarding his statements to police as follows:

       Q.     Someone from the police department called you?

       A.     Yes, ma’am.

       ....

       Q.     Okay. What did they ask you?

       A.     They just asked me, you know, just basic questions like what [Mootye]
              was doing that Sunday night. Excuse me. And just asked me did I see
              him leave the house or anything like that.

       Q.     And what did you tell them?

       A.     I told them that, you know, he was home, and that I didn’t see him
              leave the house at no point.

       Q.     And was that the truth?

       A.     Yes, ma’am.

       Q.     Was that the truth[,] though[,] that you told the police that you didn’t
              see him leave the house?



                                             13
       A.      Oh, yeah, I didn’t see him. I didn’t see him leave the house.

¶26.   Although Tripp testified that he did not personally witness Mootye leaving the

apartment the night before or the morning of the murders, Tripp did testify at trial that he and

Pittman picked up Mootye from an apartment complex later that morning. Significantly,

Tripp also testified that Mootye eventually confessed to him that he committed the murders,

telling Tripp: “[I]t was me. I did it.” According to Tripp, Mootye said that after killing

Angelica and Alesia, he was able to escape from the police. He then ran to the apartment

complex where Tripp and Pittman later picked him up. On cross-examination, Tripp

admitted: “I should have said [the truth] from the beginning but I didn’t say it. . . . I mean,

I lied, you know what I’m saying, the first time that I was questioned.” Tripp again stated,

“I lied at first, but I’m telling the truth now.”

¶27.   In Sims v. State, 213 So. 3d 90, 101 (¶43) (Miss. Ct. App. 2016) (quoting Owens, 809

So. 2d at 746-47 (¶¶7-8)), this Court held that “[t]he law relating to an alibi defense involves

something more than a simple denial by the defendant that he was present at the precise time

the crime was committed[;]” rather, “the defense requires evidence that the defendant’s

location at the relevant time was ‘so removed therefrom as to render it impossible for him

to be the guilty party.’” [(quoting Black’s Law Dictionary 71 (7th ed. 1999))].11 The Sims

Court explained that “a defendant in close enough physical proximity to have committed the

crime may deny the criminal activity and may affirmatively assert that he was elsewhere at

the critical time.” However, this Court clarified:

       11
         Owens, 809 So. 2d at 746 (¶7), quotes from Black’s Law Dictionary for this
proposition.

                                               14
       [I]f the asserted alternate location is such that, based on the version of events
       contended for by the defense, it would remain within the realm of physical
       possibility for the defendant to have committed the crime, then the defense is
       nothing more than a denial and would not rise to the level of alibi.

Id. This Court further stated that “[i]t is a fundamental concept of our system of criminal

procedure that an instruction may not be given, even if it correctly recites the law, if there is

no evidentiary basis for the instruction.” Id.12 Therefore, “[a] defendant desiring to assert

an alibi defense must . . . present evidence that, if found credible by the jury, would raise a

reasonable doubt as to his [guilt] based on notions of the physical impossibility of having

been at the crime scene during the crime’s commission.” Id.

¶28.   In Sims, the defendant, Sims, denied that he committed the charged crime of armed

robbery and he testified that he was at a night club at the time the crime occurred. Id. at

(¶44). Sims’s nephew testified that he saw Sims at the night club nearly forty-five minutes

after police officers responded to a call about the armed robbery. Id. Sims’s sister, however,

testified that she met Sims at a local mall at approximately the same time Sims’s nephew

placed Sims at the night club. Id.

¶29.   Despite this testimony, this Court found that “Sims failed to offer ‘evidence as to the

physical distance from his alleged location to the place where the crime was committed from

which the jury could reasonably conclude that it was impossible for him to have committed



       12
          The Owens Court cited Hodge v. State, 801 So. 2d 762, 775 (¶42) (Miss. Ct. App.
2001), for this proposition. Owens, 809 So. 2d at 747 (¶7). In Hodge, this Court held that
“a jury instruction must be supported by the evidence and be a correct statement of the law.
A trial judge is vested with the discretion to refuse the jury instruction which misstates the
law, lacks an evidentiary basis, or that is stated elsewhere in the instructions.” Hodge, 801
So. 2d at 775 (¶42).

                                               15
the crime.’” Id. at (¶45) (quoting Owens, 809 So. 2d at 747 (¶8)). Rather, “Sims’s testimony

amounted to a simple denial of having committed the crime that failed to require an alibi jury

instruction.” Id. at (¶46). This Court therefore held that because Sims failed to present

sufficient evidence to set forth the necessary elements of an alibi defense, “the circuit court

was not required to instruct the jury on the issue.” Id. at (¶45).

¶30.   In Morris, 777 So. 2d at 29 (¶65), the supreme court affirmed the trial court’s denial

of the defendant’s alibi instruction. In so doing, the supreme court explained that “the only

witness who could possibly have provided an alibi defense” for the defendant “testified that

she never saw [him] at her home on the night of the shooting.” Id. The supreme court

therefore found that “[n]o testimony was presented that would establish an alibi defense” for

the defendant. Id.

¶31.   Additionally, in Moore v. State, 822 So. 2d 1100, 1110 (¶35) (Miss. Ct. App. 2002),

the defendant, Moore, appealed the trial court’s refusal to grant Moore’s alibi instruction.

Moore argued that testimony from a police officer supported the trial court granting his alibi

instruction. Id. at (¶36). After reviewing the testimony, this Court found no error in the trial

court’s failure to grant Moore’s alibi instruction because “[n]o evidence presented supported

such an instruction.” Id. at (¶37).

¶32.   In the present case, Mootye argues that Detective McLemore established Mootye’s

alibi that Mootye was at home at the time of the murders. At trial, Detective McLemore

testified that he verified Mootye’s alibi by calling Tripp on the phone. However, as stated,

Tripp recanted his statement that Mootye was at home at the time of the murders and testified



                                              16
at trial that Mootye confessed to killing Angelica and Alesia. Tripp testified that although

he did not see Mootye leave the apartment on the night before or the morning of the murders,

Tripp and Pittman picked up Mootye from an apartment complex after the murders. Trial

testimony from Pittman, Tripp, and Lindsey placed Mootye in a close proximity to the

Twillies’ home around the time of the murders. Detective McLemore also testified at trial

that the apartment complex where Pittman and Tripp picked up Mootye was “less than a

mile-and-a-half” walk from the Twillies’ home. Tripp also testified that Mootye called him

and asked Tripp to move a gun from Mootye’s nightstand and put it in the trunk of Pittman’s

car.

¶33.   Upon review, we find that Detective McLemore’s testimony that Mootye told him he

was at home during the time of the murders does not present evidence that, if found credible

by the jury, would raise a reasonable doubt as to Mootye’s guilt. See Sims, 213 So. 3d at 101

(¶43). The record shows that Mootye failed to “offer evidence as to the physical distance

from his alleged location to the place where the crime was committed from which the jury

could reasonably conclude that it was impossible for him to have committed the crime.”

Sims, 213 So. 3d at 101 (¶45) (internal quotation mark omitted). As stated, a defendant is

entitled to a jury instruction supporting his alibi defense theory only where the “defendant

asserts the defense of alibi[] and presents testimony in support of that defense . . . .” Roper,

981 So. 2d at 1023 (¶12); Morris, 777 So. 2d at 29 (¶63). The record contains no evidentiary

basis for Mootye’s alibi, and his defense is simply a denial of guilt that does not warrant an




                                              17
alibi instruction.13 See Sims, 213 So. 3d at 101 (¶46); Morris, 777 So. 2d at 29 (¶65).

Accordingly, we find no abuse of discretion in the trial court’s denial of Mootye’s jury

instruction.14

       II.       Batson Challenge

¶34.   Mootye next argues that the trial court failed to conduct a proper Batson analysis in

overruling Mootye’s Batson objection. Mootye claims that the trial court determined only

that the State offered a facially valid race-neutral reason for each peremptory strike and failed

to then consider whether the State’s facially-valid race-neutral reasons were a pretext for

purposeful discrimination. Mootye argues that the State’s challenges lacked support in the

record, which he asserts is an indicator of pretext. Mootye maintains that by failing to


       13
           Judge Westbrooks’s dissent fails to acknowledge that Tripp’s pretrial inconsistent
statement, which Tripp recanted, is not substantive evidence to support an alibi defense
instruction. As stated above, the evidence in the record before the trial judge failed to
present any evidentiary basis for an alibi instruction. Tripp testified at trial that Mootye was
not home on the morning of the murders; Tripp picked up Mootye after the murders at an
apartment complex near the scene of the crime; and Mootye confessed to him that he
murdered Angelica and Alesia. Judge Westbrooks’s dissent is faulty in the assertion that
Tripp’s pretrial statement to police officers, which he later recanted, constitutes substantive
evidence. It does not, as reflected by an application of the law to the facts in the record of
trial of this case. See DeHenre, 43 So. 3d at 419 (¶57) (“Prior inconsistent, out-of-court
statements made by a nonparty witness are not admissible as substantive evidence.”).

       Additionally, contrary to the assertion of Judge Westbrooks in her dissent, the
majority does not rest upon loose parallels of the facts in the present case to the facts of
precedent. The majority follows the law in applying precedent to the particular facts of this
case.
       14
          See also Sanford v. State, 372 So. 2d 276, 279-80 (Miss. 1979) (finding no abuse
of discretion in the trial court’s denial of the defendant’s alibi instruction where the
instruction contained “erroneous language” that was not supported by testimony and where
“ the instruction seems to focus and comment upon only the alibi testimony in isolation from
the rest of the evidence . . .”).

                                               18
consider whether the State’s race-neutral reasons were given as a pretext for discriminatory

intent, the trial court failed to sufficiently ensure that the State’s peremptory strikes of Jurors

4, 9, and 17 was credible and non-pretextual.

¶35.   “Peremptory strikes may not be used for the purpose of striking jurors based solely

on their race or gender.” Lewis v. State, 239 So. 3d 1097, 1099 (¶6) (Miss. Ct. App. 2018).

We review a trial court’s ruling on a Batson challenge “with great deference because finding

the striking party engaged in discrimination is largely a factual finding.” Id. (internal

quotation marks omitted). “The trial judge acts as finder of fact when a Batson issue arises.”

Allen v. State, 235 So. 3d 168, 171 (¶7) (Miss. Ct. App. 2017). “We will not overrule a trial

court on a Batson ruling unless the record indicates that the ruling was clearly erroneous or

against the overwhelming weight of the evidence.” Id.

¶36.   For the purposes of “safeguard[ing] against racial discrimination in jury selection,”

the United States Supreme Court set forth the following three-step process:

       First, the party objecting to the use of a peremptory strike has the burden to
       make a prima facie case that race was the criterion for the strike. Second, if
       the objecting party makes such a showing, the burden shifts to the striking
       party to state a race-neutral reason for the strike. Third, after the striking party
       offers its race-neutral explanation, the court must determine if the objecting
       party met its burden to prove purposeful discrimination in the exercise of the
       peremptory strike—that the stated reason for the strike was merely a pretext
       for discrimination.

H.A.S. Elec. Contractors Inc. v. Hemphill Const. Co., 232 So. 3d 117, 123 (¶14) (Miss. 2016)

(citing Batson, 476 U.S. at 89). Mootye, as the opponent of the strike, bears the burden “to

show that the race-neutral explanation given is merely a pretext for racial discrimination.”

Pruitt v. State, 986 So. 2d 940, 943 (¶8) (Miss. 2008).

                                                19
¶37.   Here, Mootye argues that the trial court’s Batson inquiry ended with a finding that the

State had offered facially valid race-neutral reasons; the trial court did not undertake its duty

to perform Batson’s third step and determine whether the facially valid reasons were offered

as pretext for purposeful discrimination. The United States Supreme Court has expressed

that not until the third step that the persuasiveness of the justification does not become

relevant until the third step—“the step in which the trial court determines whether the

opponent of the strike has carried his burden of proving purposeful discrimination.” Purkett

v. Elem, 514 U.S. 765, 768 (1995) (citing Batson, 476 U.S. at 98). Mootye asserts that as in

Hardison, the trial court’s failure to undertake Batson’s third step amounts to clear and

reversible error, thus entitling him to a new trial. See Hardison v. State, 94 So. 3d 1092,

1100-02 (¶¶20-31) (Miss. 2012).15

¶38.   The record reflects that Mootye made Batson challenges regarding the State’s striking

the following jurors: Juror 4, Juror 9, and Juror 17. Although the trial court did not



       15
          In Hardison, 94 So. 3d at 1097 (¶14), the State made a Batson challenge to the
defendant’s peremptory strikes. On appeal, Hardison, the defendant, argued that the trial
court erred by not requiring the State to make a prima facie showing of racial discrimination
and by sustaining the State’s Batson challenge. Id. After the State made its Batson
challenge, Hardison argued that he struck one of the jurors because the juror’s responses in
voir dire indicated that he might be pro-prosecution. Id. at 1099 (¶23). The trial court ruled
that Hardison failed to present a sufficient race-neutral reason for striking the juror. Id. at
1098 (¶20). The supreme court stated that “[i]n finding the reason was not race-neutral, the
trial [court] did not proceed to the third part of the Batson analysis—pretext.” Id. at 1099
(¶24). The supreme court then explained that because “Hardison provided the trial court
with a race-neutral reason,” the trial court was required “to proceed to the third step of the
Batson analysis.” Id. at 1100 (¶26). The supreme court ultimately held that the trial court’s
failure to proceed to the third step of the Batson analysis “constituted clear error.” Id.
Unlike Hardison, we find that the trial court in the present case did complete the third step
of the Batson analysis.

                                               20
explicitly state a finding of a prima facie case, the trial court asked for a response from the

State. The State then offered race-neutral reasons. With respect to Juror 4, the State

explained that “there was concern from our law enforcement officers that there may be some

connection to [Juror 4]” and Jamie Hooker, a former law enforcement officer that was

recently arrested. As to Juror 9, the State argued that when the State asked about having a

close personal friend or family member that had been recently arrested for a felony, Juror 9

raised her hand and was very flippant when asked about whether or not she could set that

aside. The State explained that Juror 9 leaned back in her seat and leaned toward the wall,

appearing to dismiss the question. The State then argued that Juror 17 “had some very recent

employment history” and “was nonresponsive” about two different questions, as well as some

of the law enforcement questions. The State asserted that Juror 17 also raised his hand as to

having a person close to him that had previously been arrested for a felony. Defense counsel

responded that she did not recall seeing the body language and responses of Jurors 9 and 17.

The trial court ultimately overruled Mootye’s Batson challenges after finding that “having

close friends or relatives being previously charged with felonies” was a race-neutral reason.

¶39.   Although the trial court did not make specific findings with regard to the third step

of the Batson analysis, the Mississippi Supreme Court has held that Batson “did not articulate

a particular means of accomplishing the third step.” Pruitt, 986 So. 2d at 946 (¶20). The

Pruitt court quoted a Second Circuit case rejecting a requirement that the trial court must

make specific findings of fact regarding the race-neutral reasons: “As long as a trial judge

affords the parties a reasonable opportunity to make their respective records, he may express



                                              21
his Batson ruling on the credibility of a proffered race-neutral explanation in the form of a

clear rejection or acceptance of a Batson challenge.” Id. at (¶20) (quoting Messiah v.

Duncan, 435 F.3d 186, 198 (2nd Cir. 2006)). As stated, Mootye has the burden “to show that

the race-neutral explanation given is merely a pretext for racial discrimination. Id. at 943

(¶8). Here, the record reflects that the trial court found the State’s race-neutral reasons

credible based on the trial court’s rejection of Mootye’s Batson challenge—thus

accomplishing the third step of the Batson analysis. Id. at 946 (¶20). Because the trial

court’s denial of Mootye’s Batson challenge was not clearly erroneous or against the

overwhelming weight of the evidence, we affirm the trial court’s ruling on this issue. See

Allen, 235 So. 3d at 171 (¶7).

       III.   Ineffective Assistance of Counsel

¶40.   In his supplemental pro se brief, Mootye argues that his trial counsel was ineffective

in two ways: (1) for failing to assert that the trial court committed reversible error by not

instructing the jury on the venue element alleged in the indictment and (2) for failing to

object to the State’s expert witnesses who were “damaging” to Mootye’s defense. As to his

expert witness claim, the crux of Mootye’s argument is that his trial counsel did not object

when the trial court failed to perform the gatekeeping obligation set forth in Daubert v.

Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), as to these witnesses.

¶41.   We have held that “[o]n direct appeal, a claim for ineffective assistance of counsel

should only be addressed when (1) the record affirmatively shows ineffectiveness of

constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the



                                              22
appellate court to make the finding without consideration of the findings of fact of the trial

judge.” Morton v. State, 246 So. 3d 895, 905 (¶26) (Miss. Ct. App. 2017). Here, the State

maintains that the record is inadequate for this Court to make a finding on direct appeal

regarding Mootye’s claim that his trial counsel was deficient for failing to object to the

State’s expert witnesses. Where “the parties have made no stipulation as to the adequacy of

the record, we must inquire whether the record affirmatively shows that [Mootye] was denied

effective assistance of counsel.” Johnson v. State, 196 So. 3d 973, 975 (¶8) (Miss. Ct. App.

2015). On direct appeal, we will deny relief in those matters “where the record cannot

support an ineffective assistance of counsel claim . . . [and we will] preserv[e] the

defendant’s right to argue the same issue through a petition for post-conviction relief.” Id.

(quoting McClendon v. State, 152 So. 3d 1189, 1192 (¶12) (Miss. Ct. App. 2014)).

¶42.     However, the State makes no such stipulation as to Mootye’s venue argument, and the

State’s brief addresses the merits of this argument. Therefore, in the case before us, we find

that only one of Mootye’s claims is confined to the record and can be found within the trial

transcript. Accordingly, we will consider only Mootye’s ineffective-assistance-of-counsel

claim as to venue. We decline to address his ineffective-assistance-of-counsel claim as to

trial counsel’s failure to object to the State’s expert witnesses because “[w]e cannot say that

the trial record, standing alone, validates [Mootye’s] . . . claim.” Morton, 246 So. 3d at 905

(¶28).    We therefore preserve Mootye’s right to argue this issue in a motion for

postconviction relief.

¶43.     “In order to prevail on a claim of ineffective assistance of counsel, a defendant must



                                               23
show (1) that his defense counsel’s performance was deficient, and (2) that the deficient

performance was prejudicial to his defense.” Johnson, 196 So. 3d at 975 (¶8) (citing

Strickland v. Washington, 466 U.S. 668, 687 (1984)). We determine whether a trial court’s

performance was both deficient and prejudicial by examining the totality of the

circumstances.” Id. Upon review of an ineffective-assistance-of-counsel claim, “a court

must indulge a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance; that is, the defendant must overcome the presumption

that, under the circumstances, the challenged action might be considered sound trial

strategy.” Id. (quoting Herrington v. State, 102 So. 3d 1241, 1244-45 (¶11) (Miss. Ct. App.

2012)). The supreme court has clarified that “[t]rial counsel’s decisions on whether or not

to file certain motions, call witnesses, ask certain questions, or make certain objections fall

within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel

claim.” Id. (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004)).

¶44.   Mootye argues that his trial counsel was deficient by not objecting to the trial court’s

failure to ensure that the jury was instructed that “before finding [Mootye] guilty, [the jury]

must determine that the State proved beyond a reasonable doubt the issue of venue, that is.

that the crime occurred in Forrest County, Mississippi.”

¶45.   Upon reviewing the record, we find that jury was instructed on all three counts that

in order to find Mootye guilty of murder, they must find that he killed the victims in Forrest

County, Mississippi. The record shows that Jury Instructions S-1A, S-2A, and S-3A were

all given and included the language regarding Forrest County. Mootye’s argument therefore



                                              24
lacks merit.

¶46.   For the foregoing reasons, we find that Mootye’s arguments lack merit, and we

therefore affirm the trial court’s judgment on all of Morton’s convictions and sentences.

¶47.   AFFIRMED.

     J. WILSON, P.J., GREENLEE, TINDELL, LAWRENCE AND C. WILSON, JJ.,
CONCUR. BARNES, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY McDONALD AND McCARTY, JJ.; WESTBROOKS, J., JOINS IN
PART. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION,
JOINED BY McDONALD AND McCARTY, JJ.

       BARNES, C.J., DISSENTING:

¶48.   Because there was testimony to support the giving of the defense’s proposed alibi

instruction (Jury Instruction D-5), I find that the circuit court’s refusal of the instruction

constitutes reversible error.

¶49.   As the majority notes, the circuit court did not base its refusal of the alibi instruction

on the issue of notice. Rather, the court concluded that the evidence was insufficient to

support the giving of the proposed instruction: “I’m not addressing whether you gave the

notice, but I do think it takes something affirmative to show. You can’t base it on a

detective’s testimony to say, well that’s his alibi and have an alibi instruction submitted.”

While a court’s denial of a jury instruction is reviewed for abuse of discretion, Burleson v.

State, 166 So. 3d 499, 509 (¶28) (Miss. 2015) (citing McInnis v. State, 61 So. 3d 872, 876

(¶10) (Miss. 2011)), I find that, in this case, the circuit court did err. “[W]hen there is

evidence before the jury that would support a defense of alibi, it is reversible error not to

instruct the jury as to how the law compels the jury to consider such evidence.” Owens v.



                                              25
State, 809 So. 2d 744, 746 (¶6) (Miss. Ct. App. 2002) (citing Young v. State, 451 So. 2d 208,

210 (Miss. 1984)).      As the majority acknowledges, Detective McLemore testified

unequivocally that he verified Mootye’s alibi:

       A.     I verified his – what [Mootye’s] alibi was. . . He told me that the night
              before that him, himself, Deveiun Tripp, and Mario, which is Deveiun’s
              nephew, were at the apartment at 200 Foxgate. They w[ere] there all
              night. . . . [Mootye] said he watched [a ball game] till around 7 or 8,
              and he remembers going to bed about 11 or 11:30. At that time[,] he
              said the next morning he woke up and went straight to work.

       Q.     Did he indicate if he had ever left his house during the night of
              February 21 from 11 p.m. until he went to work?

       A.     No, ma’am.

       ....

       Q.     What, if anything, else did you learn from Mr. Mootye during that
              interview?

       A.     Basically who could verify his alibi. He advised me that Deveiun Tripp
              could verify that he was there all night, that he did not leave the house,
              and he woke up the next morning.

       ....

       Q.     Were you able to verify the alibi that you were given by Mr. Mootye?

       A.     Yes, ma’am. It was – I did verify that alibi.16

       16
           At trial, Tripp confirmed that he initially told police that Mootye was home all
evening and even admitted on direct examination that he never saw Mootye actually leave
the house. Tripp also confessed that he told two other persons that Mootye had been home
all evening. But on the Friday following the murders—when facing arrest for accessory
after the fact—Tripp changed his story, telling police that he picked up Mootye that Monday
morning and that Mootye had confessed to the murders. Tripp explained to the court that
he “lied at first, but I’m telling the truth now.” While evidence of Tripp’s prior inconsistent
statements may not be considered as evidence supporting Mootye’s alibi defense, see Bailey
v. State, 952 So. 2d 225, 236 (¶27) (Miss. Ct. App. 2006), Detective McLemore’s testimony

                                              26
(Emphasis added). I disagree with the State’s argument that Detective McLemore’s

testimony is not sufficient to establish Mootye’s alibi that he was home when the murders

occurred. The detective’s testimony was not simply that Mootye claimed he was home all

night; the detective also stated that he had “verif[ied] that alibi.”       I find Detective

McLemore’s testimony constituted sufficient evidence to support the giving of the alibi

instruction by the circuit court.

¶50.   To assert an alibi defense, the defendant must “present evidence that, if found credible

by the jury, would raise a reasonable doubt as to his culpability based on notions of the

physical impossibility of having been at the crime scene during the crime’s commission.”

Owens, 809 So. 2d at 747 (¶8) (emphasis added). The Mississippi Supreme Court has held

       [E]very accused has a fundamental right to have her theory of the case
       presented to a jury, even if the evidence is minimal. We have held that “it is,
       of course, an absolute right of an accused to have every lawful defense he
       asserts, even though based upon meager evidence and highly unlikely, to be
       submitted as a factual issue to be determined by the jury under proper
       instruction of the court. This Court will never permit an accused to be denied
       this fundamental right.” O’Bryant v. State, 530 So. 2d 129, 133 (Miss. 1988).

Chinn v. State, 958 So. 2d 1223, 1225 (¶13) (Miss. 2007). Finding that the circuit judge’s

decision to refuse Jury Instruction D-5 was reversible error, I would reverse and remand for

a new trial before a properly instructed jury.

       McDONALD AND McCARTY, JJ., JOIN THIS OPINION. WESTBROOKS,
J., JOINS THIS OPINION IN PART.

       WESTBROOKS, J., DISSENTING:

¶51.   I agree with the dissenting opinion, but I write separately because I too disagree with


can.

                                             27
the majority’s opinion.17 The majority finds Mootye presented insufficient evidence to

support an alibi jury instruction.18 Loose parallels of the current facts with those of the

defendants in Sims,19 Morris,20 and Moore,21 overlook Mootye’s verified alibi. The trial court

erred in denying Mootye’s proposed alibi instruction (Jury Instruction D-5); the denial

constitutes reversible error.

¶52.   Oxford defines the term verify as, “[to] make sure or demonstrate that something is

true, accurate, or justified.” Verify, The Concise Oxford American Dictionary (11th ed.

2006). The majority characterizes Detective McLemore’s testimony as a “simple denial of

guilt,” asserting Mootye merely told the detective about his whereabouts, absent any

demonstration of truth. Owens, 809 So. 2d at 747 (¶8). I respectfully disagree.

¶53.   Yes, Detective McLemore’s testimony established Mootye told him about his alibi.22

       17
           I do not write separately only because I disagree; I also write separately because
dissents are tools for betterment. See Interview with Ruth Bader Ginsburg, Justice, United
States Supreme Court, in New York, N.Y. (May 2, 2002) (“Dissents speak to a future age.
It’s not simply to say, ‘My colleagues are wrong and I would do it this way.’ But the greatest
dissents do become court opinions and gradually over time their views become the dominant
view. So that’s the dissenter’s hope: that they are writing not for today but for tomorrow.”).
       18
         Though divergent from that of the majority, I disagree with the characterization of
my opinion as “faulty.” Emphasizing the importance of judicial civility, I would assert that
the differing positions simply reflect a diverse pool of perspective and assure no tenable
view of the law is lost on this Court.
       19
            Sims v. State, 13 So. 3d 90 (Miss. Ct. App. 2016).
       20
            Morris v. State, 777 So. 2d 16 (Miss. 2000).
       21
            Moore v. State, 822 So. 2d 1100 (Miss. Ct. App. 2002).
       22
         Mootye’s alibi, as told to Detective McLemore, was that he was at home the entire
night of the murder. Mootye named Deveium Tripp and Mario, Deveiun’s nephew as
persons at the 200 Foxgate Avenue (Unit 9E) apartment with him.

                                              28
The testimony did not end there.         The majority discounts the portion of Detective

McLemore’s testimony indicating that he heard about, and subsequently verified Mootye’s

alibi through his own investigation of third party witness, Deveium Tripp. Tripp initially told

detectives that Mootye was in the apartment, located at 200 Foxgate Avenue, all night on the

date of the murder. Through Tripp, Detective McLemore was able to corroborate Mootye’s

alibi.   Later, facing arrest, Tripp offered a conflicting story, implicating Mootye in the

murders.

¶54.     Despite Tripp’s inconsistent testimony, the uncorroborated assertions of the defendant

and lay witnesses in Sims v. State, 213 So. 3d 90 (Miss. Ct. App. 2016), pale in comparison.

Both purported alibis in Sims, even if true, failed to “render it impossible for him [the

defendant] to be the guilty party,” based on the investigative time line. Id. at 101 (¶¶44-45)

(quoting Owens, 809 So. 2d at 746 (¶7); Black’s Law Dictionary 71 (7th ed. 1999)). Further,

the defendant in Sims offered no proof of investigation or verification of either alibi. Id. at

101 (¶46). In fact, the defense failed to submit alibi jury instructions for consideration. Id.

at 102 (¶46).

¶55.     Also, Moore v. State, 822 So. 2d 1100 (Miss. Ct. App. 2002), lacks a basis for

comparison. Differentiable from Mootye’s circumstances, the investigator in Moore testified

the defendant told authorities that on the night of the victims’ disappearances, the defendant

spoke with one of the victims via phone. Moore, 822 So. 2d at 1100 (¶36). The defendant

asserted that his phone call with the victim proved he was in a different location at the time

of the deaths. Id. Because investigators did not establish a time for the murder, neither the



                                               29
testimony nor the purported phone call could possibly establish or verify an alibi for the

defendant. Id.

¶56.   Likewise, the Morris defendant’s alibi collapsed during police attempts to substantiate

his whereabouts at the time of the crime. Morris, 777 So. 2d at 29 (¶65). No corroborating

witness or detective testified or made prior claims verifying the defendant’s alibi. Id. Here,

Mootye’s alibi places him at a single location, 200 Foxgate Avenue, the entire night. The

investigative time line does not allow for the possibility that Mootye was both present at his

home (as verified by the detective) and at the scene of the murder (as the fleeing suspect).

¶57.   The trial court’s decision, echoed by the majority, reaches beyond the court’s intended

scope. It is well established “[t]he jury . . . is the sole judge of the weight and credibility of

the witnesses testifying, including . . . alibi witnesses . . . .” Moore v. State 374 So. 2d 821

(1979). “[W]hen the evidence is conflicting, the jury will be the sole judge of the credibility

of witnesses and the weight and worth of their testimony.” Holmes v. State, 481 So. 2d 319,

321 (Miss. 1985) (quoting Gathright, 380 So. 2d at 1278). In two pre-trial statements to

police, Tripp corroborated Mootye’s alibi; his statements were initially deemed sufficient to

verify Mootye’s alibi by Detective McLemore. Though Tripp abandoned his prior statements

for a starkly different series of events at trial, the jury should have been allowed the

opportunity to employ its discernment in determining witness credibility. Maybe Tripp

“lie[d] at first.” Perhaps his later statement and trial testimony were a distortion of the truth.

There is no definitive way of making either determination, and it is “the role of the jury” to

determine witness credibility. Ransom v. State, 919 So. 2d 887, 893 (¶30) (Miss. 2005)



                                               30
(Dickinson, J., dissenting). “In determining a witness’ credibility, jurors are allowed latitude

in deriving facts from each witness’s assertions, and jurors must determine the value of the

conflicting testimony introduced during the trial.” Flowers v. State, 144 So. 3d 188, 196

(¶26) (Miss. Ct. App. 2014); see also Burrell v. State, 613 So. 2d 1186, 1192 (Miss. 1993);

Winters v. State, 449 So. 2d 766, 771 (Miss. 1984); Blackwell v. State, 744 So. 2d 359, 364

(¶18) (Miss. Ct. App. 1999). Detective McLemore’s sworn testimony provides the truth, as

revealed and verified by his investigation.         The inconsistent testimony of Tripp is

inconsequential and should be balanced with that of Detective McLemore, but not by the

Court. In Tubbs v. State, 402 So. 2d 830, 834-35 (Miss. 1981), the Court held “an alibi

defense presents a question of fact to be resolved by the jury.” Although a jury is “under [no]

duty to accept an alibi defense . . . [the jury] must consider all of the testimony in determining

the guilt of innocence of an accused.” Id. The veracity of the alibi, and testifying witnesses

should have been left to the jury’s discernment. Mootye was entitled to the jury instruction.

¶58.   For the foregoing reasons, I respectfully dissent from the majority’s decision to affirm

the trial court’s denial of Mootye’s Jury Instruction D-5, and I would reverse and remand

for a new trial.

       McDONALD AND McCARTY, JJ., JOIN THIS OPINION.




                                               31
