                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2006-KA-01792-SCT

DEANDRE DAMPIER

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           09/01/2006
TRIAL JUDGE:                                HON. WILLIAM E. CHAPMAN, III
COURT FROM WHICH APPEALED:                  RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    KELSEY LEVOIL RUSHING
                                            RAMEL LEMAR COTTON
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY:                          DAVID BYRD CLARK
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 01/24/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Deandre Dampier was charged with the capital murder of Harry McGuffee, Jr.

(“McGuffee”) during the commission of a robbery. Dampier was found guilty by a jury.

The circuit court sentenced him to serve a term of life imprisonment without the possibility

of parole, as Dampier was a minor.

                                           FACTS

¶2.    According to Dampier’s July 23, 2004, statement, Jermaine Rogers (“Jermaine”):

       called me [on July 6, 2004] and he told me that he wanted me to come help
       him pick up these cars. . . . [H]e said Five Star [Auto Sales (“Five Star”)]. . .
       . Then I said how you gonna get ‘em and he said I’m gonna buy ‘em. . . .
       Then he said, [h]ow we gonna do is, I’m gonna get you to drive me up there,
       then I’m gonna get you to go to the store and park the car. Naw, that my
       [Dampier’s] girlfriend [Tamesha McClendon] stays close over. I said take the
       cars to her house which is Indian Creek Apartments.

On July 7, 2004, Mark Dwayne Hankins loaned his .22 pistol to Jermaine, his neighbor at

Eastside Manor Apartments in Magee. Hankins testified that Jermaine claimed he needed

the gun because “he was going fishing and there were snakes and alligators where he was

going.”

¶3.    Clarissa Rogers (“Clarissa”), Jermaine’s wife, testified that on July 8, 2004, at

approximately 9:30 a.m., Jermaine stated he was going to apply for a new job and left in their

Toyota Corolla. From there, Jermaine drove to Dampier’s residence.1 When Dampier

observed the gun on Jermaine, he asked “why’d you got your pistol with you? He said no

reason.” Dampier then drove the Corolla to Five Star with Jermaine in the passenger seat.

¶4.    McGuffee owned and operated Five Star, a used car dealership located on Highway

49.   At 11:04 a.m., McGuffee made a phone call to his wife, Charlotte McGuffee

(“Charlotte”), from Five Star. According to Charlotte:

       [w]e were talking about what the plans were for the day, and I heard the alarm
       go off. Someone had pulled right into the driveway.[2 ] . . . I said, “I’d better
       let you go because it sounds like you have a customer.”

Captain Andrew Barrett of the Florence Police Department testified that in Dampier’s July

9, 2004, interview, he stated “at Five Star . . . he went to turn into the parking lot, and




       1
           Dampier was sixteen years old at the time.
       2
      Charlotte further testified that the fact that the alarm did not stop indicated “[t]hat
somebody pulled up and blocked the gate.”

                                               2
[Jermaine] told him, ‘. . . you need to stop right here at this gate,’ blocking the gate.”

Thereafter:

       Dampier stated . . . that [Jermaine] got out of the vehicle, went inside the
       building, came back out with Mr. McGuffee, and they were standing there
       looking at the green [Ford] Mustang. They had lifted the hood on the green
       Mustang,[3] and [Dampier] stated that [Jermaine] waved at him, indicating,
       “[o]kay, you can leave,” and that he drove [the Corolla] from there back to
       [McClendon’s] . . . apartment at Indian Creek Apartments, which is south on
       49 from Five Star Auto . . . .[4 ] [H]e waited there until [Jermaine] showed up
       in the green Mustang.

¶5.    According to Dampier’s July 9, 2004, statement, at McClendon’s apartment, he:

       told her about what was goin’ on down there[, Jermaine] wanted me to come
       get these cars for him and stuff, I told her that he had a pistol.[5] I didn’t know
       he say what he was gonna do with it, he said he wouldn’t gonna do nothing
       with it, so within no time, [Jermaine] came back, he picked me up [in the
       Mustang].

Upon arriving back at Five Star, Dampier stated that:

       I’m th[i]nking everythang’s alright . . . I got . . . the Jeep and we drove off, got
       ready to drive off and [Jermaine] closed the gate and . . . he told me that the
       man, was . . . in a hurry so I’m th[i]nking the man was in a hurry, whatever so
       [Jermaine] closed the gate so we leave . . . .




       3
        Rebecca Wood testified that she drove past Five Star “around 11:00 [a.m.]”
Originally, Wood intended to go in “to make a payment,” but because “there was a medium
blue-colored car parked in the driveway that was kind of cross-ways . . . I didn’t stop, I just
kept going.” Wood also observed that “McGuffee was standing out front of a Mustang with
the hood up with a black gentleman’s back to 49.”
       4
         According to Investigator Greg Eklund of the Rankin County Sheriff’s Office, Five
Star is 1.8 miles, or a “three minute” drive, from Indian Creek Apartments.
       5
       In his July 23, 2004, statement, Dampier claimed that he informed McClendon that
Jermaine had a gun, and that he felt uncomfortable about the situation, only later that
evening.

                                                3
Joe Ishee testified that he drove past Five Star at around 11:25 a.m. and noticed “a big

colored man closing the gate. When I come by there he was closing that white gate, and he

went through there. And there was an SUV, a dark-colored vehicle there.” Jermaine then

drove off the car lot in the Mustang and Dampier followed him southbound on Highway 49

in the Jeep.

¶6.    Surveillance video subsequently was retrieved by law enforcement from Hot Wheels

Auto, which is located south of Five Star, on the southbound side of Highway 49.6 That

video was sent to Richard Vorder Bruegge, Ph.D., who works in the Forensic Audio Video

and Image Analysis Unit of the FBI in Quantico, Virginia. At trial, Dr. Vorder Bruegge was

accepted as an expert in forensic image analysis and video analysis. After reviewing the

video, Dr. Vorder Bruegge limited his focus to southbound traffic, as the video quality

severely limited any conclusions regarding northbound vehicles.7 Regarding the green

Mustang, Dr. Vorder Bruegge concluded that if it “came down in that period from 11:00 to

12:00, then it was at . . . 11:25:32.” 8 As to the black Jeep, Dr. Vorder Bruegge “found two

instances in which there was a vehicle that was consistent. . . . One of them is at 11:25:42,

and the other one was at 11:23.” Ultimately, Dr. Vorder Bruegge concluded that if the black

Jeep followed the green Mustang, as Dampier claimed, it did so at 11:25:42.


       6
        According to Barrett, the surveillance video did not show “anything at Five Star.
Just only north and southbound traffic that particular time of day.”
       7
       Robert Breithaupt, owner of Breithaupt Southern Images Photography and Video,
was tendered by Dampier, and subsequently accepted, as an expert in video analysis.
Breithaupt did not limit his conclusions to southbound vehicles.
       8
       By contrast, Breithaupt concluded that a vehicle consistent with the green Mustang
was traveling southbound at 11:18 a.m. and northbound at 11:22 a.m.

                                             4
¶7.    In Dampier’s July 23, 2004, statement, he noted that Jermaine pulled over to the side

of the road soon after leaving Five Star, followed by Dampier, and “took the tag off the Jeep

and the Mustang and put both of ‘em in the trunk of the Mustang.” Soon thereafter, Jermaine

pulled off the road again, claiming that the car was running hot, and proceeded to the home

of Claude Holloway. Dampier stated that Holloway was not home, therefore, they left the

Mustang there and returned to Eastside Manor Apartments in the Jeep.9

¶8.    Allen Lewis discovered McGuffee’s lifeless body. Lewis’s emergency call was

received at 11:50 a.m., and the first dispatch unit arrived by 12:01 p.m. According to Barrett,

McGuffee “had two gunshot wounds to the forehead, . . . an exit wound to his cheek, . . . a

gunshot wound in his left eye, and another one in the back of his head that was the entrance

wound.” An autopsy confirmed four gunshot wounds caused McGuffee’s death. Upon

arriving at the scene, Charlotte informed the police that the Mustang was missing from the

car lot, and Barrett then determined that keys were missing to “[a] green Ford Mustang and

a black Jeep Cherokee.” 10

¶9.    Clarissa testified that Jermaine arrived at Eastside Manor Apartments with Dampier

at approximately 12:30 p.m. According to Clarissa:

       I asked Jermaine where were the keys to my car so that I could go ahead and
       leave for work. And he pulled a key out of his pocket and he kind of threw it



       9
        By contrast, Holloway testified that he was home and informed Jermaine that “[y]our
car’s fan belt is broke. . . .” When Holloway advised Jermaine that he should “come around
back behind the house and put some water in it[,]” Jermaine told him, “‘I don’t have time
to put water in it.’” A young man was present and “driving the Jeep Cherokee.”
       10
         Additionally, McGuffee’s wallet was not located at the crime scene despite the fact
that he was known always to carry a wallet and cash.

                                              5
        on the couch, but it had a yellow tag on it. I read the tag, and it said that it was
        a 1996 Jeep Cherokee that was black. . . .

        So I looked out the window at the vehicle, and I said, “[w]here did you get this
        from?” I said, “[y]ou didn’t steal this, did you?”

        He said, “[n]o.”[11 ] He said, “[m]y aunt was going to help me get a loan and
        she did to get you a better vehicle.”[12 ]

Furthermore, Clarissa testified that Jermaine said:

        “my car broke down on Mary Grove, so I need to go and get it.” . . .

        Then he pulled out another key, and it had a yellow tag on it, and it said Ford
        Mustang. . . .

        So I asked him for the paperwork on the vehicles. . . . I asked him where was
        my car. And he said it was in Florence at [Dampier’s] girlfriend’s apartment.
        I told him that I wanted to see the paperwork. He said he would bring it to my
        job. And I told him no . . . I would see it when I got off that night.

Clarissa then drove Jermaine and Dampier to Auto Zone in the Jeep and proceeded to her

workplace.

¶10.    At Auto Zone, Jermaine purchased a new fan belt and a wrench. Thereafter,

Clarissa’s sister, April, transported Jermaine and Dampier to the Mustang at Holloway’s

home.        After fixing the belt,13 Jermaine and Dampier drove back to Eastside Manor

Apartments in the Mustang.




        11
             Clarissa also testified that Dampier denied stealing the vehicle.
        12
         By contrast, Dampier’s statements provide that Jermaine informed Clarissa that he
stole the money ($8,500) from his employer, Quality Foods.
        13
        Eklund testified that Dampier’s fingerprints were found on the fan belt case, a
wrench, and “a tool that was used to . . . try or attempt to put the belt on.”

                                                  6
¶11.   At the apartment, Dampier stated that Jermaine requested that he fill out the title

applications “cause his wife knew his handwriting.” Dampier further claimed that Jermaine

signed McGuffee’s name on both title applications. After receiving a phone call, Jermaine

informed Dampier that McGuffee “had been shot. And so like that I, what’d they kill him

for. He told me that they found some drugs on him and they had stole a Crown Vic from his

lot.” Dampier then accompanied Jermaine when he returned the gun to Hankins.

¶12.   On her way to work, Clarissa passed Five Star and noticed “a lot of police and . . . the

news.” This was significant to her as Jermaine “told me that he got the Mustang from that

dealership.”14 At work, Clarissa learned about the incident at Five Star and left work early,

returning to Eastside Manor Apartments. At the apartment, Clarissa demanded that Jermaine

and Dampier show her the paperwork related to the vehicles. As Jermaine had told Clarissa

that the paperwork was in the Corolla, Clarissa drove them to McClendon’s apartment in the

Jeep, and Jermaine then gave her some handwritten titles which Clarissa testified did not

“look right.” Thereafter, Clarissa returned to Eastside Manor Apartments in the Jeep, while

Jermaine took Dampier home in the Corolla, before proceeding back to the apartment

complex himself.

¶13.   According to Barrett, at around 11:00 p.m.:

       I got a phone call from Rankin County dispatch, who stated that there was a
       man who had contacted them named Claude Holloway. He . . . stated that he
       knew who was driving the green Mustang that he had seen on the news, that




       14
         Clarissa testified that “I remember seeing that Mustang there, and I don’t remember
seeing the Jeep there, but before Jermaine had looked at that Mustang and we couldn’t afford
what Mr. McGuffee was asking.”

                                              7
       his name was Jermaine. He did not know the last name at the time, but he
       knew he lived in Eastside Apartments. . . .

Officers from the Magee Police Department and the Florence Police Department then

proceeded to Eastside Manor Apartments, where they observed the Mustang and the Jeep

side-by-side in parking spaces directly below Jermaine’s apartment. In the apartment, Barrett

testified that Jermaine:

       walked over to the kitchen drawer . . . pulled out some applications for titles
       . . . and handed them to me. I immediately noticed they were handwritten. I
       noticed there were different spellings on the titles for Mr. McGuffee’s name.
       I also noticed that the VIN number was the same on both applications for titles
       for the Jeep and the Mustang.

While Jermaine insisted that he purchased the vehicles on July 6, 2004, a subsequent call to

McGuffee’s family revealed that Five Star had not been open for business that day. Jermaine

was then taken into custody and transported to the Magee Police Department.15

¶14.   In the early morning hours of July 9, 2004, Hankins called the Florence Police

Department, informed them that his gun may have been used in the incident at Five Star, and

delivered the gun and its spent casings to police. Subsequently, officers proceeded to the

home of Dampier’s father, were granted permission to search, and then transported Dampier

to the Florence Police Department. At the police department, Barrett took Dampier’s initial

statement.




       15
         A DNA match of McGuffee’s blood was later found on a pair of Nike Air Jordans
seized from Jermaine’s apartment.

                                             8
¶15.   On February 9, 2005, Jermaine and Dampier were indicted in the Circuit Court of

Rankin County for capital murder and conspiracy to commit murder.16 On August 29, 2006,

Dampier’s jury trial commenced.17 At trial, the State offered the testimony of Kenneth Harth,

who was an inmate in the Rankin County jail from January 7, 2004, until November 10,

2004,18 and was housed in the same cell block as Dampier. Harth testified that Dampier:

       got to telling me what had happened in his situation and why he was there.
       And he told me that he and [Jermaine] had planned a robbery, and that
       [Jermaine] had knew the man that owned the car lot, and that they were in need
       for some money, and that [Jermaine] promised him that he would get a truck
       out of the deal. . . . And he told me that in the process of the robbery, that he
       had taken cash and that he had taken a cell phone, and that he had drove . . .
       a Jeep Cherokee, off the lot of the car dealership.

While Jermaine did the shooting, Dampier told Harth that he “was the one . . . who was

supposed to carry out the robbery and . . . the murder, and [Jermaine], I guess, assumed that

he could do it and they were going to have to kill the man because the man knew

[Jermaine].” 19




       16
            Jermaine pleaded guilty in October 2005 and is presently serving a life sentence.
Based upon Dr. Vorder Bruegge’s report, an arrest warrant was issued for McClendon, and
she also was charged with capital murder.
       17
         At trial, the State decided to go forward on the capital murder charge only and did
not seek the death penalty due to “the fact that [Dampier] was 16 at the time of the offense.”
       18
            Following a conviction for grand larceny and drug possession .
       19
         According to Harth, he did not strike a deal in giving information to police. He
claimed that after completion of his sentence in Mississippi, he returned to jail in his home
state of Tennessee, as suspended time was revoked on his prior felony convictions for
habitual driving without a valid license.

                                               9
¶16.   The jury found Dampier guilty of capital murder. The circuit judge then sentenced

Dampier to “life without parole[,]” adding that “this sentence is as justified as any of them

that I’ve ever handed down.”

                                           ISSUES

¶17.   This Court will consider:

       (1) Whether Dampier was entitled to a representative jury venire.
       (2) Whether the crime scene photographs were overly prejudicial.
       (3) Whether the circuit court erred in refusing to give a lesser-offense
       instruction.
       (4) Whether the circuit court erred in refusing Dampier’s Instruction D-4.
       (5) Whether the circuit court erred in granting State’s Instruction S-6 and
       refusing Dampier’s Instruction D-10.
       (6) Whether the circuit court committed reversible error in granting only one
       of Dampier’s proposed jury instructions.
       (7) Whether the comments made by the State in closing argument were plain
       error.

                                        ANALYSIS

       I. Whether Dampier was entitled to a representative jury venire.

¶18.   African-Americans compose roughly eighteen percent of Rankin County’s population.

At trial, Dampier argued that the jury venire lacked fair representation, as there was only one

African-American among its thirty-eight members.20 Specifically, Dampier’s argument is

“not necessarily the process in which they were chosen per se. It is the outcome of that

process. . . .” Carol Swilley, the Rankin County Circuit Clerk, testified that “because of the

new . . . State Election Management System program, all 82 counties in the state of

Mississippi are using the same jury selection program. . . . [T]he system is set up to follow



       20
        Initially, there were four African-Americans among fifty-three members prior to
individuals being excused.

                                              10
exactly what the code section says.” As such, the 12,000 available names in Rankin County,

which in no way identify race, were “randomly drawn through the computer into the jury

pool.” The circuit court concluded that:

       there has been just no showing of purposeful discrimination. And I believe
       that the testimony provided by Ms. Swilley – I don’t know quite frankly what
       more that the circuit clerk’s office can do in relation to having an impartial
       venire drawn. So that being the case, I’m going to take your motion as a
       motion to quash the entire venire, and it will be denied.

¶19.   On appeal, Dampier argues that the discriminatory effect alone “was prejudicial and

the case should be reversed.” The State initially responds that this issue “is procedurally

barred because of failure to cite legal authority to support [Dampier’s] argument . . . .” Next,

in addressing the merits, the State argues that Dampier cannot establish a prima facie case

that the cross-section requirement was violated as “the testimony of the Rankin County

Circuit Clerk which described the process by which potential jurors are randomly selected

by computer shows that systematic exclusion of any racial group would be virtually

impossible.”

¶20.   This Court finds this issue procedurally barred as “the failure to cite authority in

support of an argument eliminates our obligation to review the issue.” Glasper v. State, 914

So. 2d 708, 726 (Miss. 2005) (citing Byrom v. State, 863 So. 2d 836, 863 (Miss. 2003)).

¶21.   Procedural bar notwithstanding, this Court also finds that this issue is without merit.

Dampier cites Craft v. State, 380 So. 2d 251, 255 (Miss. 1980), for the proposition that

discriminatory effect will suffice, even in the absence of discriminatory intent. A review of

Craft reveals no such statement. Craft supports the proposition that a discriminatory effect




                                              11
in the context of “persistent absence of under-representation of a race on juries raises a prima

facie case of discrimination.” Id. (citations omitted). No evidence of such is presented here.

¶22.   In Haynes v. State, 934 So. 2d 983, 986 (Miss. 2006), this Court outlined the

necessary elements for establishing “a violation of the right to an impartial jury representing

a fair cross-section of the community. . . .” Id. As in Haynes, “the venire from which the

jury was selected was produced by a computer which randomly selected names from the

voter rolls of Rankin County.” Id. Furthermore, Dampier “objected only to the results of

the selection process, not the manner in which the jury was drawn.” Id. at 987. As such,

Dampier “has failed to make a showing of any of the prima facie elements,” and this Court

concludes that this argument is without merit. Id.

       II. Whether the crime scene photographs were overly prejudicial.

¶23.   At trial, Dampier objected to the admission of multiple crime scene photographs.

Regarding State’s Exhibits 21 through 29, Dampier argued that:

       it is uncontested that [McGuffee] was killed[,] . . . was shot[,] . . . [and] was in
       the building, lying on the floor. We have . . . testimony from the person who
       . . . found him [Lewis]. The prejudicial effect of this highly outweighs the
       probative value that it might have since it is uncontested.

The State responded that:

       the testimony shows that, number one, this was a bloody scene. There’s been
       some statements on cross[-]examination that we have Mr. McGuffee’s blood
       on [Jermaine]. Those pictures are necessary to show it was a bloody scene at
       the area in front of the desk and the splatter away from the body was not that
       great. That would explain the absence of blood on [Dampier]. That’s what we
       expect the officer to testify, about the blood splatter. Further, the position of
       the body is important and ha[s] evidentiary value. The finding of the bullet
       fragments have evidentiary value.




                                               12
The circuit court admitted the photographs, concluding that “[u]nder the 403 standard, the

probative value is not outweighed by the prejudicial effect.”

¶24.        Regarding State’s Exhibits 56 and 57, counsel for Dampier stated “we’re just restating

our other argument that it’s more prejudicial than probative, and at this point it appears to be

merely cumulative because there are similar photos taken.” As to Exhibit 56, the circuit

court found that “doing the balancing test . . . this does show the location of the bullet

fragment relative to the victim. The probative value is not substantially outweighed by the

prejudicial effect. That one will be admitted. . . .” Addressing Exhibit 57, the circuit court

concluded that the photograph would aid the State’s argument that the body had been moved

and found that “the probative value is not substantially outweighed by the prejudicial effect.

. . .” 21

¶25.        Mississippi Rule of Evidence 403 provides, in pertinent part, that relevant evidence

“may be excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of . . . needless

presentation of cumulative evidence.” Miss. R. Evid. 403 (emphasis added). “The admission

of photographs is a matter left to the sound discretion of the trial judge and . . . his decision

favoring admissibility will not be disturbed absent a clear abuse of that judicial discretion.”

Noe v. State, 616 So. 2d 298, 303 (Miss. 1993) (citing Gardner v. State, 573 So. 2d 716

(Miss. 1990)) (emphasis added). The discretion of the trial judge is “almost unlimited . . .




            21
        Regarding the photographs composing State’s Exhibits 50 through 57, the circuit
court found that the probative value was not substantially outweighed by the prejudicial
effect.

                                                  13
regardless of the gruesomeness, repetitiveness, and the extenuation of probative value.” Noe,

616 So. 2d at 303 (quoting Williams v. State, 544 So. 2d 782, 785 (Miss. 1987)). So long

as a photograph “has probative value and its introduction serves a meaningful evidentiary

purpose[,]” it may still be admissible despite being “gruesome, grisly, unpleasant, or even

inflammatory.” Id. (citations omitted). In this case, the trial court’s burden was substantially

lessened, as the photographs failed to exhibit elements of gruesomeness. Compare to

McNeal v. State, 551 So. 2d 151 (Miss. 1989) (solitary instance of photographs being held

prejudicial involving a close-up photograph of a partly decomposed, maggot-infested skull).

“Photographs are considered to have evidentiary value in the following instances: (1) aid in

describing the circumstances of the killing; (2) describe the location of the body and cause

of death; (3) supplement or [clarify] witness testimony.” McIntosh v. State, 917 So. 2d 78,

84 (Miss. 2005) (quoting Spann v. State, 771 So. 2d 883, 895 (Miss. 2000)).

¶26.   The circuit court applied the test of Mississippi Rule of Evidence 403 to each of the

photographs and determined that the probative value was not substantially outweighed by the

prejudicial effect. The circuit court also noted a meaningful evidentiary purpose and

probative value of each specific photograph. Therefore, this Court finds that the circuit court

did not abuse its discretion in their admission. See Noe, 616 So. 2d at 303. Accordingly, this

issue is without merit.

       III. Whether the circuit court erred in refusing to give a lesser-offense
       instruction.

¶27.   Proposed Instruction D-2 provided that:

       [t]he Court instructs the jury that an accessory after the fact is one who
       conceals, receives, aids or assists any person, knowing that such person has

                                              14
       committed a felony, with intent to enable such person to escape or avoid arrest,
       trial, conviction or punishment, after the commission of such felony.

       If you should find beyond a reasonable doubt that [Dampier] concealed,
       received, relieved, aided or assisted any person, knowing that such person had
       committed a felony, with the intent to enable such person to escape or avoid
       arrest, trial, conviction or punishment, after the commission of such felony,
       then you may return a verdict of guilty of accessory after the fact.

(Emphasis added). Following the State’s objection, the circuit court refused the instruction

for lack of evidence to “support a verdict of the lesser included.” In so finding, the circuit

court determined that:

       all the way through [Dampier’s] statement not only did he maintain his
       innocence that he didn’t have anything to do with it, he maintained that he
       didn’t even know that it happened up until that time of that interview. . . . [I]f
       he takes that position, I don’t know what evidence there is in the record that
       would support the lesser included verdict.

¶28.   Accessory after the fact is a separate and distinct crime from capital murder and, as

such, the issue is whether Dampier is entitled to a “lesser-offense,” not a “lesser-included-

offense,” instruction. See Byrom, 863 So. 2d at 874. The evidentiary standard for lesser-

offense instructions is the same as for lesser-included offense instructions. See Gangl v.

State, 539 So. 2d 132, 136-37 (Miss. 1989). “To be entitled to a lesser-included offense

instruction, [the defendant] must point to evidence in the record from which a jury could

reasonably find him not guilty of the crime with which he was charged and at the same time

find him guilty of the lesser included offense.” Ladnier v. State, 878 So. 2d 926, 932 (Miss.

2004) (citing Toliver v. State, 600 So. 2d 186, 192 (Miss. 1992)). See also Gangl, 539 So.

2d at 136 (“lesser offense instructions should not be granted indiscriminately, and only where

there is an evidentiary basis in the record.”). “One cannot be both a principal in the crime



                                              15
and an accessory after the fact.” Mangum v. State, 762 So. 2d 337, 343 (Miss. 2000)

(quoting Hoops v. State, 681 So. 2d 521, 534 (Miss. 1996)) (emphasis added). The elements

of accessory after the fact are:

       (1) a completed felony has been committed; (2) the accused concealed,
       received, relieved, aided, or assisted a felon, knowing that such person had
       committed a felony; and (3) such assistance or aid was rendered with the intent
       to enable such felon to escape or avoid arrest, trial, conviction, or punishment
       after the commission of such felony.

Byrom, 863 So. 2d at 874-75 (citing Miss. Code Ann. § 97-1-5 (Rev. 2006)). To find

Dampier guilty of capital murder, the jury did not need to find he was the shooter. See

Randall v. State, 716 So. 2d 584, 590 (Miss. 1998). In fact, “[e]very person who shall be an

accessory to any felony, before the fact, shall be deemed and considered a principal, and

shall be indicted and punished as such. . . .” Miss. Code Ann. § 97-1-3 (Rev. 2006)

(emphasis added).

¶29.   Lesser-offense instructions should be granted only where an evidentiary basis exists

for them. See Gangl, 539 So. 2d at 136-37. In the case sub judice, the evidence presented

raises only the issue of Dampier’s role as a principal, not an accessory after the fact.

According to Dampier’s own statement, he discussed going to Five Star with Jermaine on

July 6, 2004. Moreover, he stated that he observed the gun on Jermaine on July 8, 2004, but

believed Jermaine was not going to use it. He further stated that he became uncomfortable

about the incident only later that evening, but remained unaware that any felony had been

committed. By contrast, the State presented evidence, via the combination of Harth’s

testimony and Dampier’s admission of blocking the Five Star gate, driving off the Five Star

lot in the Jeep, and filling out the forged title applications, that Dampier was a principal in

                                              16
the crime. In either case, whether Dampier was ignorant, as he alleges, or was a principal

by statute, an accessory-after-the-fact instruction lacked an evidentiary basis. Therefore, this

Court concludes that this issue is without merit and the circuit court did not err in refusing

Instruction D-2.

       IV. Whether the circuit court erred in refusing Dampier’s Instruction D-
       4.

¶30.   Proposed Instruction D-4 provided that:

      [e]ach fact which is essential to complete a set of circumstances necessary to
      establish the defendant’s guilt must be proved beyond a reasonable doubt. In
      other words, before an inference essential to establish guilt may be found to
      have been proved beyond a reasonable doubt, each fact or circumstance on
      which the inference necessarily rests must be proved beyond a reasonable
      doubt.
The State objected, arguing that “[Instruction] S-1[22 ] requires us to prove each of those

elements beyond a reasonable doubt. To the extent that this tries to do anything more than

this, it is inappropriate.” The circuit court refused Instruction D-4 “because I believe it’s


       22
            Instruction S-1 states:

       [Dampier] has been charged by indictment with the felony crime of capital
       murder.

       If you find from the evidence in this case beyond a reasonable doubt that
       [Dampier], on or about July 8, 2004, in Rankin County, Mississippi, did
       willfully, unlawfully, and feloniously, with deliberate design and of his malice
       aforethought, then and there, kill and murder Harry McGuffee, Jr., a human
       being, by shooting him in the head, when engaged in the commission of a
       robbery, then you shall find [Dampier] guilty as charged.

       If the prosecution has failed to prove any one or more of the above listed
       elements beyond a reasonable doubt, then you shall find [Dampier] not guilty
       of capital murder.

(Emphasis added).

                                              17
cumulative. But also relative to that last paragraph, I think that’s an incorrect statement of

the law.” (Emphasis added).

¶31.   Dampier asserts that Instruction D-4 “addresses inference testimony” and was denied,

while Instruction S-5,23 effectively stating that “an inference can be drawn that [Dampier]

participated in the capital murder because he may have been in possession of a stolen

vehicle[,]” was granted. As such, Dampier argues that the circuit court committed reversible

error by “allow[ing] the [S]tate to argue that possession of a stolen vehicle gives the

inference, but . . . not allow[ing] [Dampier] the opportunity to argue that all inferences have

to be proven beyond a reasonable doubt.” The State responds that Dampier’s argument is

without merit, as the substance of Instruction D-4 was fairly covered in other instructions,

and Instruction S-5 was identical to the approved instruction in Harris v. State, 908 So. 2d

868, 872 (Miss. Ct. App. 2005).24

¶32.   This Court has stated that:

       “[w]hen considering a challenge to a jury instruction on appeal, we do not
       review jury instructions in isolation; rather, we read them as a whole to
       determine if the jury was properly instructed.” Burton ex rel. Bradford v.
       Barnett, 615 So. 2d 580, 583 (Miss. 1993). Similarly, this Court has stated
       that “[i]n determining whether error lies in the granting or refusal of various
       instructions, the instructions actually given must be read as a whole. When so
       read, if the instructions fairly announce the law of the case and create no
       injustice, no reversible error will be found.” Coleman v. State, 697 So. 2d
       777, 782 (Miss. 1997) (quoting Collins v. State, 691 So. 2d 918 (Miss. 1997)).

       23
         Instruction S-5 stated “[t]he Court instructs the jury that the possession of property
recently stolen is a circumstance which may be considered by the jury and from which, in
the absence of a reasonable explanation, the jury may infer guilt.”
       24
        This Court does not address the State’s erroneous argument that the issue is
procedurally barred by virtue of the fact that Instruction D-4 is not included in the Clerk’s
Papers. That instruction is contained within the record in Court Exhibit 1.

                                              18
       In other words, if all instructions taken as a whole fairly, but not necessarily
       perfectly, announce the applicable rules of law, no error results.

Milano v. State, 790 So. 2d 179, 184 (Miss. 2001) (emphasis added). This Court finds that

the reasonable-doubt standard was adequately addressed in Instruction S-1, which required

each capital murder element to be proved beyond a reasonable doubt. As Instruction S-1

“fairly announce[s] the law” on reasonable doubt and, therefore, “create[s] no injustice,”

Coleman, 697 So. 2d at 782, this Court concludes that the circuit court did not err in refusing

Instruction D-4 as “cumulative.” 25 Accordingly, this issue is without merit.

       V. Whether the circuit court erred in granting State’s Instruction S-6 and
       refusing Dampier’s Instruction D-10.

¶33.   Proposed Instruction D-10 provided that:

       [t]he law permits evidence of certain persons who are termed expert. Experts
       may testify to their opinions derived from their knowledge of particular
       matters. However, the ultimate weight to be given to expert testimony is a
       question to be determined by you. The testimony of any expert, like that of
       any other witness, is to be received by you and given such weight only as you
       think it is properly entitled to receive. You are not bound by the opinion
       testimony of any witness, expert or otherwise.

In response, the State submitted Instruction S-6, which stated:

       [y]ou will recall that individuals have testified as experts in this case. You
       should consider each expert opinion received in evidence in this case and give
       it such weight as you may think it deserves. If you should decide that the
       opinion of an expert witness is not based upon sufficient education and
       experience, or if you should conclude that the reasons given in support of the
       opinion are not sound, or that the opinion is outweighed by other evidence,
       then you may disregard the opinion entirely.




       25
        This Court adds that Instruction S-5 “fairly announces the law[,]” Coleman, 697 So.
2d at 782, and was properly granted by the circuit court. See Harris, 908 So. 2d at 872.

                                              19
(Emphasis added). In support thereof, the State provided that “the instruction . . . submitted

as S-6 comes out of Jones v. State, 918 So. 2d 1220[, 1228-29 (Miss. 2005)]. I basically

took that language out of the instruction that was approved in that case.” While objecting

to Instruction S-6, counsel for Dampier acknowledged that “I don’t have the case that

supports D-10 because there was a misunderstanding with me.” Thereafter, the circuit court

granted Instruction S-6 and refused Instruction D-10.

¶34.   On appeal, Dampier argues that the circuit court “abused its discretion in denying D-

10 and substituting i[t] for S-6,” in that:

       instead of allowing the jurors to simply weigh the testimony of each expert and
       give it weight they think it deserves, [Instruction S-6] instructs them in part
       that they may disregard expert testimony because of education and experience.
       This is crucial because this trial rested heavily on the testimony of the video
       experts. [Dampier’s] expert was a professional photographer and videographer
       who had done consulting work that was mostly civil. The State’s expert
       worked for [the FBI]. By being allowed to substitute the instructions, the State
       was able to suggest to the jury that Dampier’s expert’s testimony could be
       disregarded because of training and experience.[26 ]

The State responds that:

       Dampier cites absolutely no case law, nor gives any rational explanation, to
       support a finding that [I]nstruction S-6 was in any way erroneously given.
       Furthermore, when the trial court asked each side for authority to support their
       similar instructions regarding expert testimony, the State provided the trial
       court with citations, while defense counsel failed to provide authority to
       support his instruction based on some “misunderstanding with me.”




       26
         This Court finds Dampier’s argument regarding expert stipulations to be
procedurally barred as he failed to request an appropriate instruction thereon. See Towner
v. State, 726 So. 2d 251, 255 (Miss. Ct. App. 1998) (citing Ballenger v. State, 667 So. 2d
1242, 1252 (Miss. 1995)).

                                              20
(Citation omitted).27

¶35.   This Court finds that Instruction S-6 “fairly announce[s] the law of the case” on

weighing expert testimony 28 and, therefore, “create[s] no injustice.” Coleman, 697 So. 2d

at 782. Therefore, we conclude that this issue is without merit and the circuit court did not

err in refusing Instruction D-10 and granting Instruction S-6.

       VI. Whether the circuit court committed reversible error in granting only
       one of Dampier’s proposed jury instructions.

¶36.   The circuit court refused all of Dampier’s proposed instructions, except for Instruction

D-1, regarding Dampier’s constitutional right not to testify. Dampier now contends that the

circuit court erred in denying ten of the eleven jury instructions he offered, adding that

Instructions D-4 and D-6 were among the refused instructions, despite being model jury

instructions. In response, the State maintains that “this issue is so meritless as to be

frivolous. If a defendant submits twenty jury instructions which are fairly covered elsewhere,

without foundation in the evidence, or incorrect statements of law, then all twenty

instructions will be properly refused.” 29

¶37.   Preliminarily, this Court finds this issue procedurally barred as Dampier fails to cite

any authority in support of his argument. See Glasper, 914 So. 2d at 726. Procedural bar


       27
        This Court does not address the State’s erroneous argument that this issue is
procedurally barred by virtue of the fact that Instruction D-10 is not included in the record.
That instruction is contained within the record in Court Exhibit 1.
       28
        Instruction S-6 is identical to the granted instruction in Jones. See Jones, 918 So.
2d at 1228-29.
       29
        This Court does not address the State’s erroneous argument that this issue is
procedurally barred by virtue of the fact that Dampier’s instructions are not included in the
record. Those instructions are contained in Court Exhibit 1.

                                             21
notwithstanding, this Court concludes that because the granted instructions “taken as a whole

fairly, but not necessarily perfectly, announce the applicable rules of law, no error results.”

Milano, 790 So. 2d at 184. Accordingly, this issue is without merit.

       VII. Whether the comments made by the State in closing argument were
       plain error.

¶38.   In closing argument, counsel for the State made the following statements:

       I suspect that sometime that afternoon whenever they came back from Magee,
       Clarissa, Jermaine, and Deandre to Tamesha’s apartment, and Clarissa and
       Jermaine went back south, I suspect if they had not done it before, that there
       was a conversation that “I’m going to say you were over there, and I’ll say I
       drove the Toyota over here and you weren’t even involved, Tamesha. I’ll just
       say I drove the Toyota over here, and he came and picked me up in the
       Mustang. That gets you off the scene and takes me off the scene while the
       man is being killed. I’ll say we don’t know nothing about it. Okay?” Is that
       the defense? Well, we have something to prove that that’s a lie.

       ....

       Is there any possibility that they were giving Clarissa that Jeep to satisfy her
       to keep her from going to the police?

       ....

       That paperwork that afternoon was nothing more than to try to get [Clarissa]
       to not go to the police. That’s what that was about, because she was pushing
       it.

Dampier now argues that these comments were:

       without any foundation at all. It was completely made for the sole purpose of
       inflaming the sentiments of the jury. It had no basis in facts presented at trial.
       While [Dampier] did not make an objection at trial, the comments were so
       outrageous that the trial court should have objected on its own motion.
       Because the comment was so inflammatory, this case should be reversed.

The State responds that the comments:




                                              22
       of which Dampier complains amount to no more than the State properly
       arguing its theory of the case and making deductions and conclusions based on
       the evidence presented. The comments were in no way improper.
       Furthermore, they could not have prejudiced Dampier as they did not concern
       his obvious guilt. Rather, the statements relate to the involvement of
       Dampier’s confederates.

Alternatively, the State argues that if the prosecutor’s comments were improper, they did not

prejudice Dampier, and the error was harmless.

¶39.   “In general, the failure to object to the prosecution’s statements in closing argument

constitutes a procedural bar. . . . However, in extreme cases, a failure to object to questions

which were violative of a constitutional right will not act as a procedural bar to

consideration.” Ross v. State, 954 So. 2d 968, 1001-1002 (Miss. 2007) (citations omitted).

Absent the application of a procedural bar, this Court has stated that:

       [a]ttorneys are allowed a wide latitude in arguing their cases to the jury.
       However, prosecutors are not permitted to use tactics which are inflammatory,
       highly prejudicial, or reasonably calculated to unduly influence the jury.
       Hiter v. State, 660 So. 2d 961, 966 (Miss. 1995). The standard of review that
       appellate courts must apply to lawyer misconduct during opening statements
       or closing arguments is whether the natural and probable effect of the
       improper argument is to create unjust prejudice against the accused so as to
       result in a decision influenced by the prejudice so created. Ormond v. State,
       599 So. 2d 951, 961 (Miss. 1992).

Sheppard v. State, 777 So. 2d 659, 661 (Miss. 2000) (emphasis added). See also Brown v.

State, 907 So. 2d 336, 341 (Miss. 2005). In closing argument, that “wide latitude” extends

“not only to the facts presented in evidence, but also to deduction and conclusions he may

reasonably draw therefrom, and the application of the law to the facts.” Sanders v. State,

801 So. 2d 694, 704 (Miss. 2001) (quoting Wells v. State, 698 So. 2d 497, 506 (Miss. 1997)).

However, “[a]rguing statements of fact which are not in evidence or necessarily inferable



                                              23
from facts in evidence is error when those statements are prejudicial.” Ross, 954 So. 2d at

1002 (citations omitted).

¶40.   Preliminarily, this Court concludes that Dampier’s failure to object to the now-

disputed comments in closing argument creates a procedural bar, as those comments did not

infringe upon Dampier’s constitutional rights. See Ross, 954 So. 2d at 1001. Assuming

arguendo that the procedural bar is inapplicable, this Court must determine (1) whether the

individual comments constituted “improper argument” and (2) if so, whether that “improper

argument” created “unjust prejudice” against Dampier. Sheppard, 777 So. 2d at 661.

Applying that standard, “[w]e find the substance of th[ese] argument[s] is not out-of-bounds

for closing arguments; so there is no plain error to be found there either.” Minor v. State,

831 So. 2d 1116, 1123 (Miss. 2002).

¶41.   This Court finds that one reasonably could infer that the use of forged title

applications to deter Clarissa from contacting the police could be argued as a logical

deduction from the evidence presented. Immediately after asking Jermaine and Dampier if

they stole the vehicles, Clarissa demanded “to see the paperwork.” Jermaine first told her

that the paperwork was at McClendon’s apartment and then had Dampier fill out the blank

title applications because Clarissa “knew his handwriting.” Given that testimony, this

comment was well within the “wide latitude” extended to attorneys in closing argument. Id.

¶42.   As to the comment regarding whether there was “any possibility that” Jermaine and

Dampier were giving Clarissa the Jeep as incentive not to contact the police, this Court finds

nothing improper. When Clarissa asked for the keys to the Corolla, Jermaine immediately

gave her the keys to the Jeep. According to Harth’s testimony, however, Jermaine promised

                                             24
Dampier that “he would get a truck out of the deal.” The form of the question posed by the

State in closing argument is only whether “any possibility” existed that Clarissa was given

the Jeep in an attempt to encourage her inaction. Based upon the evidence presented, the

argument could be made that one logically could deduce giving Clarissa the Jeep originally

intended for Dampier was an attempt to dissuade her from contacting the police.

Accordingly, this Court concludes that this comment was within the “wide latitude” extended

to attorneys in closing argument.

¶43.   Finally, this Court addresses the comment suggesting a possible conspiratorial

conversation between Dampier and McClendon. Dr. Vorder Bruegge testified that if the

green Mustang “came down [Highway 49] in that period from 11:00 to 12:00, then it was at

. . . 11:25:32.” Dr. Vorder Bruegge further testified that if the black Jeep followed the green

Mustang, as Dampier claimed, then it did so ten seconds later at 11:25:42. If a trier of fact

accepted that testimony, he or she could conclude that Jermaine did not pick up Dampier at

McClendon’s apartment before returning to Five Star for the Jeep. That testimony suggests

that Dampier remained at Five Star for the entire nineteen-minute time frame between the

end of Charlotte’s conversation with McGuffee and the point at which the vehicles left the

Five Star lot. As such, the Corolla necessarily would have been brought to McClendon’s

apartment by a third party.30 The circuit judge stated that “[i]t seems rather clear to me that

[Dampier] and [Jermaine] were let out at the dealership and committed the crime that they

did, and then got in the two vehicles and headed south.” Therefore, we conclude that the



       30
            An arrest warrant was issued for McClendon, and she was charged with capital
murder.

                                              25
substance of the comment lies within an acceptable range of deductions and conclusions

which reasonably may be drawn from the facts presented in evidence. See Sanders, 801 So.

2d at 704.      Such comments encourage deductive reasoning by a jury, as opposed to

speculation.31 Thus, no plain error is present.

                                      CONCLUSION

¶44.   Accordingly, this Court affirms the final judgment and sentence of the Circuit Court

of Rankin County as to Dampier.

¶45. CONVICTION OF CAPITAL MURDER AND SENTENCE TO SERVE A
TERM OF LIFE IMPRISONMENT WITHOUT THE POSSIBILITY OF PAROLE
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED.

     SMITH, C.J., WALLER AND DIAZ, P.JJ., EASLEY, CARLSON, DICKINSON
AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.




       31
            Furthermore, this Court notes that Jury Instruction No. 11 guided the jury in
assessing the closing arguments, stating:

       [t]hey should not intentionally try to mislead you. However, if their
       recollection of the evidence differs from what your recollection is, you must
       follow your own recollection. If any argument, statement or remark has no
       basis in the evidence, then you should disregard that argument, statement or
       remark.

(Emphasis added).

                                             26
