                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-KA-01585-SCT

ANDY NICHOLAS BROWN a/k/a ANDY BROWN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         08/15/2013
TRIAL JUDGE:                              HON. ROBERT WILLIAM ELLIOTT
TRIAL COURT ATTORNEYS:                    EDWARD LANCASTER
                                          JERRY L. STALLINGS
                                          HONEY USSERY
COURT FROM WHICH APPEALED:                CALHOUN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF THE STATE PUBLIC
                                          DEFENDER
                                          BY: MICHAEL E. ROBINSON
                                              GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 06/11/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, P.J., PIERCE AND KING, JJ.

       PIERCE, JUSTICE, FOR THE COURT:

¶1.    Andy Brown was indicted and convicted under Mississippi Code Section 97-3-

19(1)(a) for the death of Earlie D. Balford, after Brown stabbed Balford eighteen times with

Balford’s screwdriver. On appeal, Brown argues he was provided ineffective assistance of

counsel and that the trial court erred by excluding Brown’s jury instructions, by denying

Brown’s motion to quash his indictment, by denying Brown’s motion for directed verdict,
by denying Brown’s motion for a new trial, and by excluding evidence Brown sought to

introduce from a psychiatric evaluation. Brown further contends that these errors resulted

in cumulative error, denying Brown a fair trial in violation of the Fourteenth and Fifteenth

Amendments to the United States Constitution. Brown appeals to this Court seeking reversal

of his conviction and a new trial. We find no error and affirm Brown’s conviction.

                                          FACTS

¶2.    Balford, a sixty-seven-year-old man, and Brown, a twenty-eight-year-old college

student, had been neighbors for years. Brown and his brother lived with their mother, Annie

D. Brown, in her house atop a small hill in Pittsboro, Mississippi. Balford lived in one of a

few small mobile homes near the Brown family home.

¶3.    To make a living, Balford solicited odd jobs from local businesses, churches, and

people around Grenada. At the time of Balford’s death, Brown was three credits shy of

completing his associate degree at a local community college. Brown’s mother normally

cooked dinner for herself and her two sons each night, while all three worked on their college

homework. When Annie Brown cooked for her family, she also set aside a dinner portion

for Balford that either Andy or her other son delivered to Balford nightly.

¶4.    On the morning of April 18, 2012, Annie Brown asked Andy to walk to Balford’s

home to borrow a jumper cable to restart her lawnmower’s dead battery. Brown did so, and

Balford went back to the Browns’ house to help start the mower. Brown testified that, after

successfully jumping the battery, Balford demanded money for his help. Brown maintained

that he told Balford that he did not have money and would not give him money in any event,



                                              2
but that Balford would receive the nightly dinner he always had. Brown testified that Balford

next asked Brown to engage in some sexual activity, and that Brown refused.1 Brown

subsequently left.

¶5.    Later that evening, Annie Brown sent Andy to Balford’s trailer with the dinner she

had set aside for him. Brown claimed that when he knocked on Balford’s door, Balford

lunged at him with a screwdriver. Brown testified that he then dropped the plate of food, and

it shattered on the ground outside Balford’s trailer. Brown reached for Balford’s arm to stop

Balford from stabbing him with the screwdriver. Brown testified that Balford next began to

strangle Brown, pulling Brown into Balford’s five-foot-by-ten-foot trailer. Immediately next

to the door inside Balford’s trailer, Balford kept a small upholstered couch. Upon being

pulled into the trailer, Brown stated that Balford fell backward onto the couch while

strangling Brown. According to Brown, Brown was now on top of Balford, and Brown

struggled for air and begged for his life. Brown testified he reached for an object with which

to defend himself and found the screwdriver that Balford had wielded earlier. Brown

contended that as he fought for air he stabbed Balford with the available screwdriver so that

Balford would release his stranglehold, and that, when Balford did release his hold, he was

no longer moving or breathing.

¶6.    Brown ran back to his mother’s house and told her to call the police because he and

Balford “got into it.” Annie Brown wanted to call Balford or check on him, at which point



       1
        Brown originally recounted these events to Dr. Criss Lott in a psychiatric evaluation. Brown
did not testify to this interaction with Balford on direct examination, but the State elicited this
testimony during cross-examination, over Brown’s objection.

                                                 3
Brown said “Mama, he’s not going to answer.” At her son’s direction, Annie Brown called

911 emergency services at approximately 7:31 p.m. A 911 dispatcher directed police to

Balford’s residence eight minutes later. Brown waited on his mother’s stoop for the police

to arrest him.

¶7.    Police took Brown to the Calhoun County Sheriff’s Office. At 9:20 p.m., Brown

signed a document advising him of his rights and simultaneously waiving those rights. At

the police station, Annie Brown wrote a statement that she had called 911 after Brown had

told her he had fought with Balford and that she had checked on Balford to find him lying

over the couch in Balford’s trailer. Another statement was written at 10:00 p.m. by Officer

Plunk, who overheard Brown tell Officer Poynor that he killed Balford because “he talked

too much.” Officer Poynor did not write a statement. Poynor testified he received another

call shortly after Brown said he had killed Balford because he talked too much, and the

interrogation was suspended until Poynor returned. At that point, Poynor claimed Brown

refused to speak any further.

¶8.    On October 22, 2012, Brown was indicted by a Calhoun County grand jury. A grand

jury indicted Brown under Section 97-3-19(1)(a), “ . . . That [Brown] . . . did unlawfully,

willfully, feloniously and without authority of law and with the deliberate design to effect the

death of Earlie B. Balford, kill and murder the said Earlie B. Balford, a human being, by

stabbing said Earlie B. Balford with a screw driver . . .” Brown pleaded “not guilty.”

¶9.    On January 25, 2013, Brown, through counsel, filed a joint motion with the State for

psychiatric evaluation to determine competency for trial. On January 30, 2013, the trial court



                                               4
granted an order to that effect and allowed Brown to be evaluated by the Mississippi State

Hospital staff at Whitfield. The agreed order waived Brown’s medical privilege with the

evaluation doctor. On February 15, 2013, Dr. Criss Lott performed the psychological

evaluation on Brown.2

¶10.   On August 13, 2013, Lott testified at a pretrial hearing that he had found Brown to be

a rational person capable of assisting his attorney in his defense at trial. Dr. Lott further

testified that he had examined the defendant a second time that morning and that his findings

had not changed. On cross-examination, Dr. Lott testified that he was of the opinion that

defendant was “very polite and cooperative.” When asked whether, based upon his

professional psychological evaluation of the defendant, Dr. Lott could testify as to the

defendant’s tendency for truthfulness, Dr. Lott stated that “A tendency for truthfulness, all

I can say is it was my impression he was being forthright; and I did not get the sense that he

was in any way trying to – we call it simulate – trying to fake good or bad.” Based upon this

testimony, the trial court then found Brown competent to stand trial.

¶11.   Brown filed a motion with the trial court to allow Dr. Lott to testify before the jury

at trial on Brown’s propensity for truthfulness. The defense called Dr. Lott as a witness for

pretrial proceedings. Dr. Lott again testified that, during the clinical interview, Brown had

appeared to be truthful. Dr. Lott also testified that Brown was not attempting to exaggerate

or distort the facts. The State objected to Dr. Lott’s testimony on Brown’s propensity for

truthfulness. The State argued, “We think that’s so out of bounds that I don’t even know



       2
           Dr. Lott’s report was not included in the appellate record.

                                                   5
how to argue it, Judge, except its not permissible under the rules of evidence.” The trial

court agreed with the State and did not allow Dr. Lott to testify, finding “First of all, we don’t

know whether Mr. Brown is going to testify or not, second Dr. Lott doesn’t know what he’s

going to testify to until he’s heard him; and third, I believe the only way he could testify is

to his reputation for truthfulness or veracity. I don’t think that’s where we’re going on this,

and I just don’t think this type of testimony would be relevant or admissible.”

¶12.   Nine witnesses testified for the State of Mississippi during its case-in-chief, including

Dr. Mark LeVaughn, a forensic pathologist and the Chief Medical Examiner for the State of

Mississippi. Dr. LeVaughn testified that he counted eighteen puncture wounds during

Balford’s autopsy and that “Mr. Balford died as a result of multiple stab wounds.” Dr.

LeVaughn said that three wounds in particular, punctures to Balford’s neck, lung, and liver,

were fatal.

¶13.   Dawn Cannon, the 911 operator, next testified that she had received a call from Annie

Brown, who stated “ . . . that her son, Andy Brown, had just stabbed their neighbor in the

chest with a screwdriver.”

¶14.   Kenneth White, an officer with the Calhoun County Sheriff’s Office, testified he was

dispatched to the scene, where he observed Balford lying motionless on a couch in a

laid-back position.

¶15.   Keith Thacker, a part-time employee with the Calhoun County Sherriff’s Office, next

testified that he was the first to arrive on the scene. Upon arriving, he observed the defendant,




                                                6
his brother, and his mother standing in their driveway. Thacker testified Brown said “he did

it” and “he was responsible.”

¶16.    Greg Pollan, Calhoun County sheriff, testified that he photographed both the scene

and the victim. Pollan observed and photographed objects on the floor but observed no

injuries on Brown later that night at the station house.

¶17.    Dean Poynor, chief deputy, testified that he interviewed Brown at the station, where

Brown gave him a voluntary statement after signing a waiver of rights. Poyner testified, “I

went to talking to Andy Brown. I looked at him during the interview and I asked him why

he done it. He looked me right in the eyes and said, ‘He talks too much.’”

¶18.    Earlie Balford, Jr., Balford’s son, testified that he had received a handwritten letter

signed by Brown and delivered by Balford Jr.’s neighbor and Brown’s fellow inmate, Ty

Mitchell. The letter was introduced into evidence later in the trial. In its entirety, the letter

read,

        Dear Eral Jr.,

                I know their are not any words that I can say or explain to you and your
        family that will show you how truly sorry, I am for murdering your father! He
        was a good man with a good heart and spirt. If there is anything in this world
        that I could do for you and your family please don’t hesited to ask me. I pray
        to the good Lord above that Eral is watching from above over you and your
        family. Please forgive me for the mistake that I have made. May the Lord
        contine to Bless you and your family!

                              Sincely,
                              Andy Brown.

¶19.    Julie Cruthirds, Balford’s sister, testified that her brother had told her that he wanted

to move away from the hill because it was becoming too violent. Balford told Cruthirds that


                                                7
“. . . sometimes [the neighborhood boys] get to arguing. They want me to decide who is right;

and when I decide with one, the other side will get angry.” Cruthirds did not identify which

people Balford feared in particular.

¶20.   Ty Mitchell, a twenty-three-year-old neighbor and former county inmate who talked

with Brown while he was confined in the jail, testified that Brown had told him he killed a

man and that Brown gave him a letter to give to “[t]he dude’s daddy he killed.”

¶21.   At the close of the State’s case-in-chief, Brown moved for a directed verdict on the

ground that the State had failed to prove the element of deliberate design to effect the death

of a person. Brown’s counsel argued that the State did not properly establish chain of

custody for the screwdriver as the weapon effectuating Balford’s death.3 The trial judge

overruled Brown’s motion for a directed verdict, stating, “Considering the evidence most

favorable to the State and all reasonable inferences that can be drawn therefrom, the Court’s

of the opinion that the evidence is sufficient for the jury to find that the essential elements

of the crime of murder have been proven beyond a reasonable doubt, and the motion is

denied.”

¶22.   The defense then presented two witnesses, Annie Brown and Andy Brown, testifying

on his own behalf. Annie Brown testified that, on the night Balford was killed, Brown went

to Balford’s house to bring him dinner. When Brown came back to the house, Annie Brown




       3
         Establishing chain of custody for the screwdriver was not necessary because, prior to trial
and during direct examination, Brown identified the screwdriver as the weapon he used to kill
Balford. The issue is not raised on appeal.

                                                 8
testified Brown said, “Mama, call 911. Me and Pops been into it.”4 Annie Brown stated, “.

. . we went up on the hill where Pops lived. I knocked on the door. [Brown] said, Mama, he’s

not going to answer. Go in. So we went inside the house. When I went inside the house,

Pops was on his couch; so I ran out of my house, ran out of Pops’ house, went into my house

and called 911.”

¶23.   Brown testified on his own behalf. Brown testified to the following :

       Q. [BY DEFENSE COUNSEL:] Now what was your nickname for Mr Earlie?

       A.        Pops.

       Q.        How did you get that nickname for him?

       A.        He told me one day when I bring him a plate of food.

       Q.        On April 18, 2012[,] did you have occasion to bring him a plate of
                 food?

       A.        Correct.

       Q.        Who gave it to you?

       A.        My mother.

       Q.        About what time?

       A.        Around 7:00.

       Q.        Had you seen Mr. Pops or Mr. Earlie earlier that day?

       A.        Correct.

       Q.        I take it you and he were getting along good is that right?

       A.        Yes, sir.

       4
           Balford’s nickname was “Pops.”

                                                9
Q.   Now, when you went up–well, you had seen him earlier that day. What
     was he doing?

A.   He was working on his Ford Expedition truck that was broken down.

Q.   Did he have any other vehicles?

A.   Chrysler Plymouth.

Q.   What kind of shape was it in?

A.   It was broken down as well.

Q.   Okay. What else was he doing, if anything?

A.   He was frustrated because his truck was broken down.

Q.   Now, when you went up there, you had the plate of food in your hand.
     Did you have a screwdriver?

A.   No, sir.

Q.   What did you do when you approached his dwelling?

A.   I knocked on the door and I called his name

Q.   Then what happened?

A.   He opened the door and when he opened the door, he took a strike at
     me with a screwdriver.

Q.   Did he say anything when he struck at you with a screwdriver?

A.   No, sir.

Q.   What happened to the plate of food?

A.   I dropped it on the ground.




                                     10
Q.        Have you seen that plate of food in any of the photographs law
          enforcement took?5

A.        No, sir.

Q.        Well, at that time he grabs at you. Where did he land? Where did he
          grab you?

A.        He grabbed the plate of food. Well, he didn’t grab the plate of food. He
          tried to grab me by my neck. Well, he grabbed me by my neck and
          pulled me into the house.

Q.        He pulled you in the house?

A.        Yes, sir.

Q.        What did you do?

A.        I tried to get away from him; and I couldn’t get away from him; and
          when I asked him what he was doing, he didn’t say anything. Then
          when I tried to get away, I couldn’t do nothing but just fight for my life.
          ...

Q.        What happened next?

A.        When we got into the house, he fell on the couch. Once he fell on the
          couch, I was still holding onto his hand; and I pushed the screwdriver
          out of his hand; and it fell on the ground. Once it fell on the ground, I
          leaned over and grabbed it; and he put both his arms around my neck.
          When he put both his arms around my neck, I couldn’t do nothing.

Q.        Where was the couch at?

A.        It was right beside the door.

Q.        Where was Mr. Pops, Mr. Earlie?

A.        He was laying on the couch, and he had his hands around my neck, and
          I grabbed the screwdriver.



5
    Law enforcement officials did not take any pictures outside Balford’s home.

                                          11
      Q.     What did you do with it?

      A.     I grabbed the screwdriver, and I asked him to let me go, and he never
             would.

      Q.     You stabbed him multiple times; is that right?

      A.     Yes, sir.

      Q.     Why is that?

      A.     Because he wouldn’t never let me go.

During cross-examination, Brown positively identified the screwdriver he used to stab

Balford. Brown also relayed his conversation with Dr. Lott.

      Q. [BY PROSECUTOR STALLINGS:] Tell the jury what you told him
      happened.

      A. I told him the exact same story I just told the jury; that I walked up on the
      hill with a plate of food my mom gave me to take up there that night. Once I
      took the food up there, I seen Mr. Earlie Balford walking to his home while he
      finished working on his truck. He had a tool in his hand; and while he was
      walking inside his home, I walked up from off the top of the hill to his home
      and knocked on the door. Once I knocked on the door, I had called his name;
      and when I called his name, I was looking down. When I was looking down,
      Pops had opened the door and struck me with a screwdriver. When he struck
      me with the screwdriver, it caught me by surprise; and I dropped the plate of
      food. Once I dropped the plate of food, I held onto his arm with the
      screwdriver; and he grabbed my neck. Once he grabbed my neck, he pulled me
      into his home; and when he pulled me into his home, me and him scuffled and
      fell on the floor. I mean, excuse me, on the ground. I mean on the couch; and
      once we fell on the couch, I asked Pops why was he doing this. He put both his
      arms around me. Once I knocked the screwdriver out of his hand, I asked him
      to please stop; and he never would; and I just got scared. I feared for my life
      because he was going to kill me; and it wasn’t anything else I could do. He
      pulled me into his home, and I couldn’t do anything but just pray to God that
      he wouldn’t take my life, so I just grabbed the screwdriver, and I started
      grabbing him because I wanted him to let me go because he was going to take
      my life. I didn’t mean to do it. I didn’t mean to do it. I wish I wasn’t even at
      his house that night.


                                            12
The prosecutor then read from Dr. Lott’s report which reflected that Brown had told Lott that

earlier in the afternoon Balford had come to Brown’s house with a battery charger and asked

Brown “ . . . if he would have sex with him, and Mr. Brown told him he would not have sex

with him.”

       Q. [BY PROSECUTOR STALLINGS:] You talked to the sheriff yesterday
       too, didn’t you? When he brought you up here to the courthouse yesterday,
       didn’t you ask the sheriff, Sheriff, do you want to know what really happened?

       A. Yes, sir.

       Q. And you told him a story similar to what you told them awhile ago?

       A. I told him the exact same story I just told the jury.

       Q. All that about the sex and that stuff, you didn’t get into that, did you?

       A. No sir. I thought it wasn’t even irrelevanat [sic] because he didn’t never try
       to go that far into details. I didn’t think that that was even, I mean, any kind of
       worries to me because I’m a heterosexual; and I don’t dwell in homosexuals.
       That doesn’t bother me because of somebody else’s personal preference
       because if somebody is homosexual, I don’t judge nobody because it says in
       the Bible that he who is without sin cast the first stone.

¶24.   At the close of the trial, Brown renewed his motion for a directed verdict on the

ground that he was entitled to an acquittal. Brown’s counsel argued, “ [Brown was entitled]

under Weathersby, to a directed verdict [of aquittal], [because his self-defense theory and

eyewitness testimony was] not contradicted by facts, [and was] not contradicted by evidence

that [Brown] was defending himself.” The trial judge overruled this motion, finding, “I agree

that physical facts as well as some testimony does not make this case come within the




                                               13
Weathersby6 rule. That motion is denied.” Brown’s request for peremptory instruction also

was denied.

¶25.   Following closing arguments, the jury returned with a verdict of guilty of murder. A

poll of the jury, individually by name, reflected its verdict was unanimous. Thereafter,

Brown was sentenced to life imprisonment.

¶26.   On August 21, 2013, Brown, through counsel, filed a motion requesting judgment

notwithstanding the verdict (JNOV), or alternatively, seeking a new trial.7 The motion


       6
         Weathersby v. State, 147 So. 481, 482 (1933) (reiterating the rule that “where the defendant
or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable,
must be accepted as true, unless substantially contradicted in material particulars by a credible
witness or witnesses for the state, or by the physical facts or by the facts of common knowledge”)
(citations omitted)).
       7
           Brown made the following fourteen assertions:

       1)        The jury’s verdict entered in this cause is against the overwhelming weight
                 of the evidence,

       2)        [T]he [c]ourt erred by failing to suppress those certain statements made by
                 the Defendant in the presence of law enforcement officers while in custody,

       3)        [T]he Court erred in conducting the hearing of Defendant’s Motion to
                 Suppress Defendant’s Statements in that the burden of showing such
                 statements were proper and not in violation of the Defendant’s constitutional
                 rights was shifted to the Defendant in an untimely manner and not born[e] by
                 the State of Mississippi,

       4)        After the objection by the Defendant, the testimony of Dawn Cannon, the
                 E-911 dispatcher, should not have been allowed by the [c]ourt in that such
                 testimony was hearsay and was not testimony which should have been
                 allowed under any of the hearsay exceptions,

       5)        The testimony of Deputy Kenneth White placed before and unto the Jury as
                 the second witness of the State’s case in chief as to Defendant’s admission
                 inflamed the Jury and the [c]ourt erred in failing to order a mistrial,

       6)        The [c]ourt erred in failing to suppress the statement made by the Defendant

                                                  14
was denied without explanation by an order of the court entered on August 29, 2013. Brown

file notice of appeal pro se on September 19, 2013.8

¶27.   On appeal, Brown raises the following five issue:

       I.      Whether Brown was provided ineffective assistance of counsel at
               trial and pretrial proceedings, in violation of the Sixth Amendment
               to the United States Constitution.




               to Deputy Keith Thacker upon the initial questioning of the Defendant by
               Deputy Thacker,

       7)      The [c]ourt erred in allowing into evidence the multiple color photographs of
               the victim Earlie Balford in that such photographs were inflammatory and of
               such a nature that they played upon the emotions of the jury,

       8)      The [c]ourt erred in allowing the testimony of Julia Cruthirds in that her
               testimony was of such general nature that it should not have been allowed
               under the hearsay exceptions Rules 803(3) and 804(b)(5),

       9)      The [c]ourt erred in overruling Defendant’s Motion to Quash Indictment at
               the close of the state’s case in chief,

       10)     The [c]ourt erred in overruling Defendant’s Motion for Directed Verdict at
               the close of the State’s case in chief,

       11)     The [c]ourt erred in allowing a screwdriver to be introduced as the murder
               weapon where no chain of custody of the screwdriver was established,

       12)     The [c]ourt erred in failing to grant Defendant’s Motion for Directed Verdict
               pursuant to the Weathersby Rule under Weathersby v. State, 147 So. 481
               (1933),
       13)     The [c]ourt erred in failing to sustain objections made by the Defendant as to
               the introduction of evidence and testimony which collectively resulted in a
               denial of subst[an]tive due process unto the Defendant, and

       14)     The [c]ourt erred in failing to properly instruct the jury as to the proper law
               in these premises.
       8
        Shortly thereafter, Brown filed an affidavit of poverty and was appointed representation to
appeal his conviction in forma pauperis.

                                                 15
       II.     Whether the trial court erred in failing to grant Brown’s
               instructions, D-4, D-5, D-6, and D-8 manslaughter instructions.9

       III.    Whether the trial court erred by denying Brown’s motion for a
               directed verdict of acquittal at the close of the State’s case, by
               denying Brown’s requested peremptory instruction, and by
               denying Brown’s motion for judgment notwithstanding the verdict
               if the verdict was contrary to law.

       IV.     Whether the trial court erred by denying Brown’s motion to elicit
               testimony from the State’s evaluating psychologist.

       V.      Whether Brown suffered cumulative error that deprived him of a
               fair trial in violation of the Fifth and Fourteenth Amendments to
               the United States Constitution.

                                           DISCUSSION

       I.      Whether Brown was provided ineffective assistance of counsel at
               trial and pretrial proceedings, in violation of the Sixth Amendment
               to the United States Constitution.

¶28.   Brown’s claim is predicated on the assertion that Brown’s trial counsel should have

encouraged him to testify to Balford’s alleged history of sexual abuse and Balford’s attempt

to commit a felony by seeking to molest Brown prior to his death. Introduction of such

facts, Brown argues on appeal, would have supported manslaughter and self-defense

instructions on Brown’s behalf. But the record indicates Brown did receive adequate self-

defense and manslaughter instructions. Further, even without testimony or evidence of the

alleged molestation, Brown had established a sufficient basis upon which to found a claim

of self-defense or manslaughter. See Issue II, below.



       9
          In his brief, Brown asserts that instruction D-7, a manslaughter instruction, was denied by
the trial court as well. Brown’s inclusion of instruction D-7 in Issue II appears to have been a mistake
as the instruction appears from the trial transcripts to have been given to the jury.

                                                  16
¶29.   Brown also suggests that his counsel was ineffective for failing to request a new trial

on the basis that the State failed to produce evidence on each of the statutory elements in

order to convict Brown of murder. Brown’s third assignment of error on appeal, however,

is that the trial court erred by denying Brown’s motions to quash his indictment, for a

directed verdict, or alternatively, for a new trial. Therefore, the trial court cannot have erred

by failing to grant these motions and Brown’s counsel did not fail to make them. Because

Brown’s counsel did make such motions, the claim is without merit.

       II.    Whether the trial court erred denying Brown’s jury instructions,
              D-4, D-5, D-6, and D-8 for the lesser offense of manslaughter.

¶30.   This Court reviews a trial court’s decision to grant or deny a jury instruction under an

abuse-of-discretion standard and considers an instruction in the context of all the jury

instructions as a whole. Davis v. State, 18 So. 3d 842, 847 (Miss. 2009) (citing Milano v.

State, 790 So. 2d 179, 184 (Miss. 2001). Jurors must be given appropriate instructions that

fairly announce the law applicable to the case so as not to create an injustice against the

defendant. Id. The trial court may and should refuse an instruction when it incorrectly states

the law, when it is covered adequately in other instructions already given, or when it is

unsupported by the evidence. Id. (citing Phillipson v. State, 943 So. 2d 670, 671 (Miss.

2006)); see also Norman v. State, 385 So. 2d 1298, 1301 (Miss. 1980) (holding “Instructions

unsupported by the evidence need not, and should not be given.”)

¶31.   Brown argues the trial court erred in refusing four of his manslaughter instructions,

although the instructions submitted by Brown’s counsel and the State were nearly identical.

The trial court refused instructions D-4 and D-5, finding that they were cumulative in light


                                               17
of instruction S-3, which defined manslaughter and its differences from murder, while also

supplying the verdict forms for both. The trial court refused D-6 as “confusing” and found

that the instruction already was covered by S-3. Lastly, the trial court refused D-8, as the

judge found it was cumulative in light of another instruction, D-7, also defining heat-of-

passion manslaughter.

¶32.   Brown asserts the four instructions should have been presented to the jury because

Brown had established an evidentiary basis for a manslaughter or self-defense finding at trial.

And, while it is true that Brown did establish such a basis by his testimony that Balford

attacked him, Brown fails to distinguish his proffered instructions from S-3 and D-7 such that

D-4, D-5, D-6, or D-8 would not be repetitive. Because the instructions were redundant,

there is no support for the suggestion that the trial court abused its discretion when it denied

D-4, D-5, D-6, or D-8 in favor of instructions S-3 and D-7. See Montana v. State, 822 So.

2d 954, 961 (Miss. 2002) (“A trial judge is under no obligation to grant redundant

instructions.”). We find Brown’s contention in Issue II to be without merit.

       III.   Whether the trial court erred by denying Brown’s motion for a
              directed verdict of acquittal at the close of the State’s case, by
              denying Brown’s requested peremptory instruction, and by
              denying Brown’s motion for judgment notwithstanding the verdict
              if the verdict was contrary to law.

¶33.   The standard of review for a trial court’s denial of a motion for directed verdict,

peremptory instruction or judgment notwithstanding the verdict (JNOV) is identical.

Hawthorne v. State, 835 So. 2d 14, 21 (Miss. 2003)(citing Coleman v. State, 697 So. 2d

777,787 (Miss. 1977)). A motion for JNOV, motion for directed verdict, and a request for



                                              18
peremptory instruction all challenge the legal sufficiency of the evidence. McClain v. State,

625 So. 2d 774, 778 (Miss. 1993). “Since each requires consideration of the evidence before

the court when made, this Court properly reviews the ruling on the last occasion the

challenge was made in the trial court.” Id. This Court considers the evidence in the light most

favorable to the State, giving the State “the benefit of all favorable inferences that may

reasonably be drawn from the evidence.” Collier v. State, 711 So. 2d 458, 461 (Miss. 1998)

(citation omitted). This Court asks whether “any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836,

843 (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed.

2d 560 (1979)). All credible evidence supporting the defendant’s guilt will be accepted as

true. McRee v. State, 732 So. 2d 246, 249 (Miss. 1999).

¶34.   On appeal, Brown argues that the trial judge should have granted his motion for

directed verdict at the close of the State’s case-in-chief, on the basis that the State failed to

submit evidence of malice to the jury, and because malice was an essential element of his

conviction. Claiming insufficiency, Brown posits that, absent evidence of malice, he should

have been acquitted. On the issue of legal sufficiency, reversal can occur only when

evidence of one or more of the elements of the charged offense is such that reasonable and

fair minded jurors could only find the accused not guilty. Wetz v. State, 503 So. 2d 803,808

(Miss. 1987).




                                               19
¶35.   This Court has held that malice, or deliberate design, may be inferred from use of a

deadly weapon.10 Tran v. State , 681 So. 2d 514, 517-18 (Miss. 1996); Day v. State, 589 So.

2d 637, 642 (Miss. 1991); Wilson v. State, 574 So. 2d 1324, 1337 (Miss. 1990); McGowan

v. State, 541 So. 2d 1027, 1030 (Miss. 1989); Nicolaou v. State, 534 So. 2d 168, 171-72

(Miss. 1988); Russell v. State, 497 So. 2d 75, 76 (Miss. 1986); Dickins v. State, 43 So. 2d

366, 373 (Miss. 1949). This Court has held that “deliberate-design connotes an intent to kill

and may be inferred through the intentional use of any instrument which, based on its manner

of use, is calculated to produce death or serious bodily injury.” Wilson v. State, 936 So. 2d

357, 364 (Miss. 2006). Deliberate design, as a matter of law, may be inferred through the

intentional use of any instrument, which, based on its manner of use, is calculated to produce

death or serious bodily injury. Fairchild v. State, 459 So. 2d 793, 802 (Miss.1984).This

Court has elaborated on the use of a deadly weapon, holding:

       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; but if
       the one or the other be employed to disable an adversary, in the very act of
       making a murderous and malicious assault then the presumption is overcome.
       The proof of the use, in the case hypothecated, of the deadly weapon, with
       attending circumstances, would show the excuse. Where the circumstances of
       the killing are known, and in evidence to the jury, the deductions and
       inferences should be made from all the facts. . . . What we mean to affirm is,

       10
          Malice aforethought, premeditated design, and deliberate design all mean the same
thing. Hawthorne, 835 So. 2d at 19. By definition, malice aforethought and deliberate
design are synonymous. Id. This Court also has acknowledged that deliberate design
connotes an intent to kill and indicates a full awareness of what one is doing and generally
implies careful and unhurried consideration of the consequences. Jones v. State, 710 So. 2d
870, 877 (Miss. 1998). Design means to calculate, plan, or contemplate. Id. However,
deliberate design to kill a person may be formed quickly and perhaps only moments before
the act. Id.

                                              20
       that where the mode, manner and circumstances of the killing are in evidence
       to the jury (although life was taken by a deadly weapon), the character of the
       act, whether criminal or not, and then its grade, whether murder or
       manslaughter, or whether excusable or not, is to be gathered from the entire
       body of the testimony.

Head v. State, 44 Miss. 731, 753-54 (1870). Brown relies on this Court’s holding in

Weathersby. In Weathersby v. State, 147 So. 481, 482 (Miss. 1933), this Court held,

“[W]here the defendant or the defendant’s witnesses are the only eyewitnesses to the

homicide, their version, if reasonable, must be accepted as true, unless substantially

contradicted in material particulars by a credible witness or witnesses for the State, or by the

physical facts or by the facts of common knowledge.” Further, the rule is used as a guide for

whether a judge should grant a directed verdict, and a defendant who meets the Weathersby

standard is entitled to a directed verdict of acquittal. Blanks v. State, 547 So. 2d 29, 33-34

(Miss. 1989). The rule is not applicable where the defendant’s version of the story is

unreasonable or contradicted by physical facts. Id.; Buchanan v. State, 567 So. 2d 194, 197

(Miss. 1990). Where the Weathersby rule does not require a directed verdict of acquittal, it

becomes a jury issue as to whether or not to believe the defendant’s testimony on how the

killing occurred. Because Brown was the only witness to Balford’s death, the operative

question under Weathersby is whether the State’s evidence “substantially contradicted”

Brown’s testimony by “material particulars” or “physical facts.” If not, Brown’s self-defense

theory must be accepted as true.

¶36.   In Russell v. State, 497 So. 2d 75 (Miss. 1986), this Court affirmed a conviction for

murder despite Russell’s argument that the State did not establish malice aforethought as an



                                              21
essential element of his murder conviction. Id. at 75. Russell contended that the inference

of malice was overcome by his claim of self-defense, but this Court found “that claim was

fairly presented to the jury and resolved against him.” Id. at 76. In Russell, witnesses

testified that, on one occasion, Russell stated he was looking for the victim in order to kill

him, and on another occasion, Russell walked into a bar, pointed his finger at the victim, and

then told the victim “I’ve got more for you if that don’t do you” before pulling out a knife

and stabbing him to death. Id. In light of the evidence, this Court explicitly held, “The jury’s

rejection of Russell’s claim of self-defense was supported by the evidence, which indicated

that Gaines was unarmed and that he was stabbed after Russell had stated his desire to kill

him.” Id. at 76-77.

¶37.   Similarly, in Nicolaou v. State, 612 So. 2d 1080 (Miss. 1992), this Court affirmed

another conviction for murder where the appellant claimed insufficient evidence of malice

aforethought had been presented. Specifically, Nicolaou argued the State presented no proof

that he did not act in self-defense. This Court affirmed for a few reasons. First, the physical

facts precluded a self-defense theory because Nicolaou admitted tying up his victim, causing

a state of incapacitation, before beating him to death. Id. at 171. Second, Nicolaou did not

offer testimony or evidence that supported his self-defense theory, because Nicolaou said he

could not remember beating or killing the victim. Accordingly, this Court affirmed the

conviction on the basis that “there was ample evidence for the jury.” Id. at 172.

¶38.   In the case sub judice, Brown offered no evidence of excuse or justification other than

his own testimony that Balford was engaged in strangling Brown at the time Brown inflicted



                                              22
the lethal injuries. The State, on the other hand, presented crime-scene photographs and

medical testimony to the jury detailing Balford’s numerous stab wounds. The jury also was

made aware that Brown was an athletic twenty-eight-year-old, while Balford was a small

sixty-seven-year-old at the time of his death. Further, officers testified that they did not

observe defensive or other wounds while interrogating Brown following Balford’s death.

Additionally, the jury heard Poynor’s testimony that Brown had said he had killed Balford

because “[Balford] talked too much,” and Cruthirds’s testimony that Balford planned to

move to another neighborhood because the neighborhood kids were becoming violent.

Lastly, the jury considered Brown’s letter, apologizing to Balford’s son for “murdering”

Balford. Accordingly, we find the evidence presented could be deemed by a jury, within its

exclusive purview to make such determinations, to “substantially contradict” Brown’s self-

defense theory when viewed in the light most favorable to the State or the verdict.

¶39.   Presiding Justice Dickinson opines in his separate opinion to concur in result and in

part that “some of this evidence indeed contradicts Brown’s theory; some does not.” In

elaborating on his position that the evidence cited in this opinion “contradicts Brown’s [self-

defense] theory in no conceivable way,” Justice Dickinson’s opinion overreaches by

attempting to make determinations reserved solely for the jury. The separate opinion asserts,

“the numerous stab [wounds] corroborate, rather than contradict, Brown’s testimony” and

that “numerous stab wounds fit neatly into [a self-defense] theory.” To opine so is to assume

the role of a fact-finder, where in this case, the jury could have decided the numerous lethal

stab wounds evidenced Brown’s intent to kill rather than an intent to defend. Similarly, the



                                              23
separate opinion finds that the age and size of the victim and Brown are factors that do not

contradict Brown’s self-defense theory, and that the victim’s voiced fear of violence from

“neighborhood kids” is “irrelevant.” As stated, these are all questions appropriately answered

by the jury.

¶40.   As noted earlier, Weathersby is not only employed in inquiries related to the grant or

denial of peremptory instructions; it is also used as a guide for whether a judge should grant

or deny a motion for directed verdict. Specifically, a defendant who meets the Weathersby

standard is entitled to a directed verdict of acquittal. Blanks, 547 So. 2d at 33-34 (holding

“The Weathersby rule, as Harveston [v. State, 493 So. 2d 365 (Miss. 1986)] makes clear, is

not a jury instruction, but a guide for the judge in determining whether a defendant is entitled

to a directed verdict.”) Again, the rule is not applicable where the defendant’s version of the

story is unreasonable or contradicted by physical facts. Buchanan, 567 So. 2d at 197. And

upon an assignment of error regarding directed verdict, we are required by this Court’s

limited scope of review to accept all credible evidence consistent with the verdict as true and

to give the State the benefit of all favorable inferences drawn therefrom. Id.; Where the

Weathersby rule does not require a directed verdict of acquittal, whether or not to believe the

defendant’s testimony on how the killing occurred is a matter for the jury to decide. The

contentions raised by the separate opinion seem to conflate Weathersby analysis for

peremptory instructions with the analysis for the denial of a directed verdict.

¶41.   The instant case is similar to Russell and Nicolaou. Here, the State’s medical

examiner, Dr. LeVaughn, testified that three of the eighteen puncture wounds Balford



                                              24
sustained were lethal. In particular, Dr. LeVaughn opined, any one of the stabs to Balford’s

liver, left lung, and neck independently would have resulted in Balford’s death. Therefore,

according to caselaw cited above, a screwdriver used to inflict such injuries could be

considered a deadly weapon. With eighteen puncture wounds, malice may be inferred. See

Fairchild, 459 So. 2d at 802; see also Head, 44 Miss. at 754. ( holding that “If [the accused]

offers no explanation of the killing; if he fails to show that it was an act of necessity, done

se defendendo, the inference of malice, from the use of the deadly weapon, remains.”

¶42.   Also similar to Russell and Nicolaou, the State, in the instant case, presented other

evidence of malice. This evidence consisted of Deputy Poynor’s testimony that Brown had

said he killed Balford because Balford “talked too much” and Brown’s letter to Balford’s son

apologizing for “murdering” Balford. In light of the testimony and the letter, we find the

instant facts are not analogous to the situations contemplated by this Court in cases where

“less patent” evidence may warrant reversal. In fact, such a conclusion would lend itself to

the weight of the evidence and not to sufficiency, which is the claim made in this appeal.

Thus, the trial court did not err by denying Brown’s motion for a directed verdict of acquittal

at the close of the State’s case, by denying Brown’s requested peremptory instruction, or by

denying Brown’s motion for JNOV or a new trial.

       IV.    Whether the trial court erred by denying Brown’s motion to elicit
              testimony from the State’s evaluating psychologist.

¶43.   A trial judge enjoys a great deal of discretion as to the relevance and admissibility of

evidence. Walker v. State, 878 So. 2d 913, 915 (Miss. 2004). However, this discretion must

be exercised within the confines of the Mississippi Rules of Evidence. Cox v. State, 849 So.


                                              25
2d 1257, 1268 (Miss. 2003); M.R.E. 103(a). Reversal is proper only where such discretion

has been abused and a substantial right of a party has been affected. Id. The trial court’s

discretion also must insure the constitutional right of the accused to present a full defense in

his or her case. United States v. Stewart, 104 F. 3d 1377, 1384 (D.C. Cir. 1997).

¶44.   The admissibility of expert testimony is evaluated in light of Mississippi Rule of

Evidence 702, which holds that such testimony may be introduced when it is found to be

relevant and reliable. See Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 38 (Miss.

2003); see also M.R.E. 702. Testimony is relevant if it will assist the trier of fact in

understanding or determining a fact at issue. Id.

¶45.   In the instant case, Brown sought to introduce testimony from Dr. Lott, who, upon

joint motions from the State and the defense, performed a psychiatric evaluation on Brown

to assess whether Brown was competent to stand trial. Brown sought to elicit testimony from

Dr. Lott regarding Dr. Lott’s positive opinion of Brown’s propensity for truthfulness. Dr.

Lott, though, was admitted as an expert in psychiatry and not as a character witness. Dr. Lott

offered nothing to Brown’s defense to which Brown had not already testified. Further, Dr.

Lott said only that Brown appeared to be truthful with respect to his sanity and competence

to stand trial. Dr. Lott offered no opinion regarding Brown’s truthfulness concerning

Balford’s death. We find the trial court did not err in excluding Dr. Lott’s testimony.

       V.     Whether Brown suffered cumulative error that deprived him of a
              fair trial in violation of the Fifth and Fourteenth Amendments to
              the United States Constitution.




                                              26
¶46.     Because Issues I, II, III, and IV have been resolved in the negative, Brown’s fifth

issue raised on appeal is without basis.

                                        CONCLUSION

¶47.     For the foregoing reasons, we affirm the judgment of the Calhoun County Circuit

Court.

¶48. CONVICTION OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
APPELLANT SHALL BE GIVEN CREDIT FOR ALL DAYS SPENT IN CUSTODY
AWAITING TRIAL.

    WALLER, C.J., RANDOLPH, P.J., LAMAR, KING AND COLEMAN, JJ.,
CONCUR. DICKINSON, P.J., CONCURS IN PART AND IN RESULT WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND CHANDLER, JJ.;
LAMAR AND COLEMAN, JJ., JOIN IN PART.

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

         [W]here the defendant or the defendant’s witnesses are the only eyewitnesses
         to the homicide, their version, if reasonable, must be accepted as true, unless
         substantially contradicted in material particulars by a credible witness or
         witnesses for the state, or by the physical facts or by the facts of common
         knowledge.11

¶49.     This excerpt from Weathersby v. State has been the law in Mississippi since before

any current member of this Court was born. In the case before us, the defendant’s testimony

established a reasonable self-defense theory, and he was the only eyewitness to the crime.

But, because the State’s evidence substantially contradicted that theory, I agree that Brown


         11
          Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933) (emphasis added) (citing
Gray v. State, 158 Miss. 266, 130 So. 150 (1930) Walters v. State, 153 Miss. 709, 122 So. 189
(1929); Wesley v. State, 153 Miss. 357, 120 So. 918 (1929); Patty v. State, 126 Miss. 94, 88 So. 498
(1921), overruled on other grounds by Harrison v. State, 534 So. 2d 175 (Miss. 1988); Houston
v. State, 117 Miss. 311, 78 So. 182 (1918)).

                                                27
was not entitled to a peremptory instruction under Weathersby. But the majority, in its effort

to explain why the State’s evidence contradicted that theory, goes too far by citing evidence

that contradicts Brown’s theory in no conceivable way.

¶50.   The majority stretches several pieces of evidence far beyond their logical relevance

and probative value, and then claims the evidence contradicts Brown’s self-defense theory.

The majority points out that Balford suffered numerous stab wounds; that Brown was

substantially younger and larger than Balford; that officers did not observe any defensive

wounds on Brown; that Brown had stated he killed Balford because he “talked too much;”

that Balford intended to move from the neighborhood because he feared neighborhood kids;

and that Brown wrote a letter apologizing to Balford’s family for “murdering” Balford.

While some of this evidence indeed contradicts Brown’s theory, some does not.

¶51.   First, the numerous stab wounds corroborate, rather than contradict, Brown’s

testimony. Brown’s self-defense theory described a battle to death in which Brown grabbed

the screwdriver and began swinging at Balford, while Balford attempted to choke him to

death. Numerous stab wounds fit neatly into this theory. Second, the size and age

discrepancies fail to contradict Brown’s defense. While this evidence certainly tends to show

that Brown would have the upper hand in the confrontation he described, it does not suggest

that the confrontation never occurred.

¶52.   Next, the fact that Balford intended to move from the neighborhood out of fear is

irrelevant in the absence of evidence that he feared Brown in particular. Finally, Brown’s




                                             28
letter contradicts his self-defense theory only if one assumes that Brown used “murdering”

as a legal term of art, not as a synonym for killing.

¶53.   The majority incorrectly suggests that I would improperly infringe on the jury’s

discretion by making a judgment on the significance of certain evidence. The jury has no

discretion in this matter because a decision concerning whether to grant a Weathersby

instruction is not made by a jury. The trial judge must review the evidence to determine

whether the jury instruction is proper. Said differently, to know whether the defendant is

entitled to a Weathersby instruction, the trial judge—not the jury—must view the evidence

and determine whether the requirements have been met.

¶54.   I do not quarrel with the established concept that juries are entitled to discretion in

their factual findings. But, even if the Weathersby decision had to be made by a jury, I

remind my esteemed colleagues that the burden of proof in a criminal case is beyond a

reasonable doubt, and a jury’s discretion goes only so far. There is a good reason why trial

judges instruct juries that they are not to speculate or guess.

¶55.   That said, I agree that Brown’s statement to police and lack of defensive wounds

sufficiently contradicted Brown’s testimony to survive the Weathersby rule and create a jury

issue. So I concur in part and in result.

    KITCHENS AND CHANDLER, JJ., JOIN THIS OPINION. LAMAR AND
COLEMAN, JJ., JOIN THIS OPINION IN PART.




                                              29
