           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-KA-00681-COA

ANGELIA BYRD A/K/A ANGELINA BYRD                                             APPELLANT
A/K/A ANGELIA MARIE BYRD

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                            03/29/2018
TRIAL JUDGE:                                 HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:                   HINDS COUNTY CIRCUIT COURT,
                                             FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                      OFFICE OF STATE PUBLIC DEFENDER
                                             BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: LISA L. BLOUNT
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 06/11/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

       McDONALD, J., FOR THE COURT:

¶1.    The Hinds County Circuit Court convicted Angelia Byrd on the charge of murder and

then denied her post-trial motion. She appeals. Finding no error, we affirm.

                                           FACTS

¶2.    On April 8, 2014, Angelia Byrd shot and killed her live-in boyfriend, Aaron Harper.

Byrd did not testify at her trial, so her version of the facts is drawn from the testimonies of

law enforcement officers and other witnesses with whom she had spoken.1


       1
        Although Byrd was interviewed by law enforcement, no written statement or
recorded oral statement was entered into evidence.
¶3.    Byrd, a fifty-year-old nurse, and Harper, a thirty-three-year-old security guard, had

lived together for a little over a year in Byrd’s home in Jackson. Byrd paid all the living

expenses and provided vehicles for both herself and Harper. But the relationship was

waning. Harper had threatened her and her family on occasion, and Byrd had written Harper

a four-page letter saying that she thought they should separate.

¶4.    On the evening in question, Byrd came home from work and grilled steaks for dinner.

Byrd had either left the four-page letter out, intending for Harper to see it later, or she gave

it to him and asked him to read it later. But he opened it, read it, became angry, and started

yelling.2 Byrd slapped the letter out of his hands,3 threw down a beer bottle she was holding,

and told him to leave. At some point, Byrd said that Harper grabbed her but she had no

bruises or scratches on her. Byrd also said that Harper picked up a steak knife and said he

was going to get his gun. Byrd said she was afraid he would shoot her, so she got her gun,

a .38-caliber revolver. Before Harper took any further action, Byrd shot him.

¶5.    During the final moments of this confrontation, Byrd had called her sister, Cynthia

Thornton. Thornton testified that she was on the phone with Byrd and heard Byrd and

Harper arguing. She did not hear any shots but she did hear Harper say, “I don’t believe you

just did that,” and then Byrd told Thornton that she had shot Harper. Thornton instructed

Byrd to call an ambulance and the police.



       2
       Byrd told another detective that she and Harper had argued over a tow truck Harper
wanted her to buy for him.
       3
         Somehow the letter ended up on the grill in the backyard when it was found by
police after Byrd told them to turn off the grill before they left.

                                               2
¶6.    After calling the police, Byrd went outside, taking the gun and spent cartridges with

her. When the police arrived, she calmly, without emotion, voluntarily surrendered and told

them that she had shot Harper.

¶7.    Inside the home, police found bullet holes in the living room wall and blood on the

floor along with a broken bottle. They also found a pink holster. In the bedroom where

Harper was on the floor behind the door, they found Harper’s duty-belt but no gun in the

holster. Police found no gun in the home, but they did not search the vehicles outside.

¶8.    Byrd was taken into custody, and Harper’s body was taken for an autopsy. The

autopsy report showed that Harper had gunshot wounds to the right abdomen, left chest, right

back, and right side. Two wounds were perforating, meaning that the bullets created entry

and exit wounds. Three of these wounds were fatal.

¶9.    During her interrogation Byrd told one investigator that Harper had also threatened

to report her to the nursing board for violating HIPAA laws.4

¶10.   After her arrest, Byrd’s adult son, Shane Byrd, posted her bond. At that time Byrd

told him she shot Harper in self defense. But after her indictment, while awaiting her trial,

Byrd later told her son that Harper had asked her to stop shooting him for the sake of his

child. Despite this plea, Byrd told her son that she shot Harper again. Shane also told law

enforcement that his mother had shot his father (her ex-husband) in the past.

¶11.   Byrd was indicted on July 22, 2014, for murder by “shooting Aaron Harper two times

in the stomach, one time in the chest, one time in the left side and one time in the back. . . .”



       4
           “HIPAA” refers to the Health Insurance Portability and Accountability Act.

                                               3
After a number of continuances, the case was tried in March 2018. Byrd was convicted and

sentenced to life in prison. Her motion for a new trial was denied.

¶12.   On appeal, Byrd raises three issues: (1) whether her trial was unfair due the entry of

evidence of other bad acts; (2) whether her trial was unfair due to prosecutorial misconduct;

and (3) whether her trial attorney provided ineffective assistance by failing to request a

Castle Doctrine instruction.

                               STANDARD OF REVIEW

¶13.   The appellate court reviews the admission of evidence under the abuse-of-discretion

standard and evidentiary rulings are affirmed unless they affect a substantial right of the

complaining party. Boggs v. State, 188 So. 3d 515, 519 (¶9) (Miss. 2016). The standard of

review this Court applies to allegations of prosecutorial 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.” Fortenberry v. State, 191 So. 3d 1245, 1251 (¶18)

(Miss. Ct. App. 2015). Hannah v. State, 943 So. 2d 20 (Miss. 2006), sets out the standard

for evaluating claims of ineffective assistance of counsel as set out in Strickland v.

Washington, 466 U.S. 668 (1984): (1) “the convicted defendant must show that counsel’s

representation fell below an objective standard of reasonableness,” and (2) “the defendant

must show there is reasonable probability that but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Hannah, 943 So. 2d at 24 (¶6).

                                      DISCUSSION



                                             4
       I.     Whether Byrd was denied a fair trial because of inconsistent court
              rulings that allowed the jury to hear evidence of other bad acts.

¶14.   When interviewed by the police after the shooting, Byrd said that Harper had

threatened to go to the hospital or nursing board to report her for HIPAA violations. Before

trial, the defense had informed the court that seven years earlier, Byrd had a problem with

drugs and had an encounter with the nursing board then. There was mutual agreement with

the court’s approval that this old problem would not be raised at trial. But the circuit court

was not apprised before trial about Harper’s more recent threat to report Byrd to her

employer and that this may have been at least one of the reasons for the argument that

resulted in the shooting. This issue came up in trial during questioning of the investigating

officers. The State called Detective Daryl Owens and asked him:

       Q.     Okay. Now also during the course of your interview, Ms. Byrd told you
              that Aaron Harper was threatening to go to the nursing board on her; is
              that right?

       MR. KNOTT: Objection, Your Honor. First of all, it’s beyond the scope.

       THE COURT: All right. That’s sustained.

       MS. HARRIS: Judge, may we approach[?]

       THE COURT: You can.

       (BENCH CONFERENCE)

       Q. (By Ms. Harris) Detective Owens, did Ms. Byrd tell you that Aaron was
                          threatening to go to the nursing board and tell the nursing
                          board that she had violated – the [HIPAA] violation?

       A.     Correct.

       MR. KNOTT: Again, objection, Your Honor, for the record.


                                              5
       THE COURT: It’s overruled.

This ruling made it appear that the court was allowing the testimony of Harper’s threats.

¶15.   But the court made the opposite ruling shortly thereafter during the questioning of

Detective Vergil Jarman:

       Q.     I’m sorry. Did Ms. Byrd ever say that she had to call law enforcement
              prior to this evening?

       A.     Not that I recall.

       Q.     Okay.

       A.     I know she said at one point because he did verbally threaten her what
              she said about her job because –

       MR. KNOTT: Your Honor, object. There is no question before this witness.

       THE COURT: Sustained.

¶16.   The State pressed the issue one more time with another series of questions to

Detective Jarman:

       Q. (By Ms. Perry)     You mentioned that in your interview with Ms. Byrd that
                             she made a reference to a threat by Aaron Harper. Can
                             you tell us about that?

       A.     She said that Aaron Harper had made a threat to her with her job, and
              the threat was that –

       MR. KNOTT: Your Honor, I object.

       THE COURT: Sustained.

The jury was excused, and the parties conferred with the court. The court asked specifically

what Byrd had said to Detective Jarman, and the State replied that Byrd had said that Harper

was threatening to go to the hospital to say that she had discussed patients with him in

                                             6
violation of HIPAA laws. The state argued that this information was relevant because it was

the reason why they were arguing. After the defense responded, the court said: “At this

point, we’re going to exclude that particular testimony.”

¶17.   Unfortunately, later, on cross-examination by defense counsel, Jarman again testified

(without objection): “I know that she was upset about him threatening to call her work. I

know she was upset about that.”

¶18.   In closing, the State argued this threat to the jury, saying: “She killed him, without

excuse, without justification. She made up her mind that he would no longer threaten her

job. She made up her mind that she had to keep him quiet.” Although the defense’s

objection was sustained, the State continued, “She made up in her mind that she was going

to silence him on that day on April 8th, 2014[,] . . . and silence him she did.”

¶19.   It is clear that the jury heard testimony of Harper’s threats to report Byrd for some

work-related misconduct although the circuit court tried to exclude it. Byrd now argues that

the jury was “confused” by the circuit court’s inconsistent rulings on this matter so much so

that Byrd’s right to a fair trial was compromised by the admission of an alleged “bad act” in

Byrd’s employment.

¶20.   According to Mississippi Rule of Evidence 404(a) evidence of a prior crime, wrong,

or act is not admissible to show that on a particular occasion a person acted in accordance

with their character. But Rule 404(b) says it may be admissible if offered for a different

purpose:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show that he acted in conformity therewith.

                                              7
       It may, however, be admissible for other purposes such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident.

¶21.   Evidence of other acts can be admissible if the prosecutor clearly articulates the

alternative purpose for the evidence and shows that the Rule 404(b) exception is a material

issue in the case. Strickland v. State, 220 So. 3d 1027, 1032-33 (¶¶16-20) (Miss. Ct. App.

2016). But the probative value of such evidence must not be substantially outweighed by the

prejudicial effect. M.R.E. 403; Leedom v. State, 796 So. 2d 1010, 1015 (¶15) (Miss. 2001).

If such evidence has been admitted under Rule 404(b), the trial court must give an instruction

to the jury explaining the limited purposes for which that evidence may be considered,

Derouen v. State, 994 So. 2d. 748, 756 (¶20) (Miss. 2008).

¶22.   Evidence to prove motive or state of mind is an exception to Rule 404(b). In Newell

v. State, 175 So. 3d 1260, 1275 (¶33) (Miss. 2015), the Mississippi Supreme Court held that

the trial court did not abuse its discretion in admitting defendant’s threatening voice mail to

his wife, because it was admitted as proof of motive and intent behind his altercation with

his shooting victim. The Newell court stated:

       Evidence of prior bad acts is admissible if the offense being tried and the prior
       act are “so interrelated as to constitute a single transaction or occurrence or a
       closely related series of transactions or occurrences.” Neal v. State, 451 So. 2d
       743, 759 (Miss.1984). “[W]hen dealing with closely related acts, the State ‘has
       a legitimate interest in telling a rational and coherent story of what happened.’”
       Welde v. State, 3 So. 3d 113, 117 (Miss. 2009) (quoting Brown v. State, 483
       So. 2d 328, 329 (Miss.1986)). In this case, Newell’s voice mail was not
       admitted as evidence of his character for violence. Rather, it was presented to
       describe to the jury why Newell was at the Slab House on the night of the
       incident, and it explained the motive and intent behind his altercation with
       Boyette. Accordingly, the trial court did not abuse its discretion in admitting
       Newell’s voice mail.

                                               8
Newell, 175 So. 3d at 1276 (¶34).

¶23.    Here, by Byrd’s own admission to law enforcement, during the altercation Harper

threatened to report her to her employer. This testimony was relevant to show Byrd’s motive

and intent to kill Harper and thus was admissible.

¶24.    Moreover, the testimony also tends to show who was the aggressor in the shooting.

In Graves v. State, 45 So. 3d 283, 289 (¶27) (Miss. Ct. App. 2010), we affirmed the

admission of testimony that would tend to prove who might be the initial aggressor in a

situation. There the defense sought to introduce evidence that the victim, A.C., was angry

at Graves for Graves’s failure to deposit money in A.C.’s prison account during A.C.’s

incarceration which ended a month before the shooting. Id. at 288 (¶20). We found that this

evidence supported Graves’s theory that A.C. was the aggressor in their later confrontation

and Graves had a reasonable apprehension of harm. Id. at 289 (¶24). Similarly, here the

testimony of Harper’s threat contributes to proving that Byrd aggressively and intentionally

shot Harper.

        II.    Whether Byrd was denied a fair trial because of prosecutorial
               misconduct.

¶25.    Besides raising the prosecutor’s continued press to get Harper’s threat to report Byrd

to her employer into evidence, Byrd argues other prosecutorial misconduct denied her a fair

trial as well. Specifically, Byrd raises the prosecutor’s reference to her as a “killer cougar.”

This image was first planted in jurors’ minds in the prosecutor’s opening statement when she

said:

        She [Byrd] was 17 years older than Aaron, and in today’s society she would


                                               9
          be considered a cougar. She and Aaron had lived together for more than a
          year, approximately 13 months at 5979 Libby Lane. She had bought the white
          Charger for Aaron and a black one for herself. She showered her man with
          gifts, with trips, with sex and with fun.

The prosecutor began her closing rebuttal, saying:

          Thank you, Your Honor. I don’t care what kind of spend [spin] you put on it.
          I don’t care how much Crisco you use, I don’t care how much stuff you throw
          [at] the wall and pray that it sticks. Truth of the matter is, that killer cougar
          sitting over there . . . That killer cougar, she killed Aaron Harper. . . . That
          killer cougar sitting over there killed Aaron Harper on April 8, 2014. She
          didn't have any excuse, no justification. Let me tell you what happened. . . .5

The prosecutor then coupled this image with the bad acts testimony of Byrd’s shooting her

ex-husband.6

          I submit to you Aaron was about to leave that cougar. . . .

          On May 28th, 2014, Mya Angelo died. Mya as a very wise woman, always
          has been in my eyes. And Mya said when a person shows you who they are,
          believe them the first time. This isn’t her first time shooting at one of her men.
          . . . This is the second . . . This time she actually got him . . . Angelia Byrd has
          a history of violence toward her lovers.

          And now the defense’s excuse for a description of Aaron Harper being
          controlling, I would submit to you all of the evidence that came from this
          witness box indicates the cougar was the controller. She handled the business.
          She was in charge of everything. Now she somehow wants to avoid
          prosecution. She doesn’t want to be prosecuted. She can’t be treated any
          other way other than how everybody is treated. The law applies to her too.
          She’s no different just because she’s a nurse. It doesn’t matter. She killed
          him, without excuse, without justification. She made up her mind that he
          would no longer threaten her job. She made up her mind that she had to keep
          him quiet . . . . She made up in her mind that she was going to silence him on


          5
         The defense objected that these statements were argumentative, but the court
overrule the objection.
          6
              The defense did not object to Shane Byrd’s testimony about Byrd shooting his
father.

                                                  10
       that day on April 8th, 2014. And she did silence him. She silenced him by
       putting four gunshots into his body. . . .

¶26.   In considering challenges to a prosecutor’s remarks, we have normally given

prosecutors broad latitude in closing arguments; however, the ultimate question for this

Court to decide is whether the prosecutor’s remarks denied the defendant a fundamentally

fair trial. Stringer v. State, 500 So. 2d 928, 939 (Miss.1986). To constitute a due process

violation, the prosecutorial misconduct must be “of sufficient significance to result in the

denial of the defendant’s right to a fair trial.” Manning v. State, 735 So. 2d 323, 345 (¶50)

(Miss.1999); Greer v. Miller, 483 U.S. 756, 765 (1987). Said another way, even if the

comment was improper, the test used to determine if reversal is required is “whether the

natural and probable effect of the prosecuting attorney’s improper argument created unjust

prejudice against the accused resulting in a decision influenced by prejudice.” Fortenberry

v. State, 191 So. 3d 1245, 1251 (¶18) (Miss. Ct. App. 2015); Rushing v. State, 711 So. 2d

450, 455 (¶15) (Miss. 1996). Furthermore, the prosecutor’s statements are “reviewed to see

the magnitude of prejudice, the effectiveness of the curative instruction, and the strength of

the evidence of the defendant's guilt.” Holland v. State, 705 So. 2d 307, 347 (Miss.1997).

¶27.   During closing argument, the prosecutor is not limited to the facts introduced into

evidence; he may argue the deductions and conclusions that may reasonably be drawn

therefrom. Donaldson v. State, 262 So. 3d 1135 (¶128) (Miss. Ct. App. 2018). Here, the

defendant failed to object to the prosecutor’s characterization of Byrd during opening

statement or about the fact that Byrd shot her ex-husband. Although the failure to object

contemporaneously generally waives a claim of prosecutorial misconduct during closing

                                             11
argument, we may still       review such a claim if the prosecutor’s statement was so

inflammatory that the trial judge should have objected on his own motion. Id. at 1166

(¶131). In this case, we do not find that the prosecutor’s statements rose to this level.

¶28.   Moreover, reversal is not required when a jury is properly instructed that statements

made by counsel are not evidence. Burns v. State, 729 So. 2d 203, 229 (¶130) (Miss. 1998).

Here, the jury was so instructed and the jury is presumed to have followed the directions of

the trial judge. Catchings v. State, 39 So. 3d 943, 949 (¶22) (Miss. Ct. App. 2009).

¶29.   This Court has never held that a criminal defendant is entitled to a perfect trial. A

perfect trial is simply impossible. A criminal defendant is entitled, however, to a

constitutionally fair trial under the Mississippi and United States Constitutions. Walker v.

State, 913 So. 2d 198, 250 (¶209) (Miss. 2005). A prosecutor should be careful not to

indulge in personal abuse or vilification of the defendant and should not appeal to passion

and prejudice. Turner v. State, 721 So. 2d 642, 645 (¶6) (Miss. 1998); Curry v. State, 328

So. 2d 328, 330 (Miss. 1976). Although we find no reversible error, we believe the

prosecutor’s characterization of Byrd as a “killer cougar” who was acting in conformity with

her nature to shoot ex-lovers comes dangerously close to stepping over the line drawn in

Turner. We caution those in the Bar to rein in their zealous representation of their clients in

the future to avoid crossing that line.

       III.   Whether Byrd’s counsel was ineffective for failing to request a
              Castle Doctrine jury instruction.

¶30.   A criminal defendant has a constitutional right to effective counsel. Giles v. State,

187 So. 3d 116, 120 (¶12) (Miss. 2016). To demonstrate an ineffective assistance of counsel


                                              12
claim, a defendant must prove his counsel’s performance was deficient, and that the

deficiency was so substantial as to deprive the defendant of a fair trial. Woods v. State, 242

So. 3d 47, 55 (¶30) (Miss. 2018), reh’g denied (May 17, 2018). There is a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance and that the challenged action might be considered sound trial strategy. Id.; Giles,

187 So.3d at 120 (¶12). The Court considers “the totality of the circumstances” to determine

whether counsel’s efforts were both deficient and prejudicial. If the Court determines that

the defendant did not receive reasonably effective assistance of counsel, it must then

determine whether the deficiency had a “reasonable probability” of affecting the outcome of

the case. Giles, 187 So. 3d at 120-21 (¶13). A “reasonable probability” is a probability

sufficient to undermine confidence in the outcome.” Woods, 242 So. 3d at 55 (¶30).

¶31.   Byrd complains that her attorney was ineffective for failing to request a Castle

Doctrine jury instruction. When claiming ineffective assistance of trial counsel because of

jury instructions, it is the duty of the appellant to demonstrate both error in failing to receive

the instruction and the prejudice to the defense. Havard v. State, 928 So. 2d 771, 789 (¶28)

(Miss. 2006). In Smiley v. State, 815 So. 2d 1140, 1148 (¶¶30-33) (Miss. 2002), the supreme

court held that the trial counsel’s decision not to request a jury instruction regarding the

defendant's right not to testify did not amount to ineffective assistance. The Court said it was

“conceivable that [trial counsel] withdrew the jury instruction as part of his trial strategy in

the hope of not highlighting [the defendant’s] decision not to testify.” Id. at 1148 (¶33). The

Court noted that whatever reason trial counsel had for withdrawing the instruction, there is



                                               13
a presumption that decisions made are strategic. Id. The Court has also held that “trial

counsel’s decision to not request a jury instruction falls under the category of trial tactics,

which are not subject to review.” Neal v. State, 15 So. 3d 388, 406 (¶43) (Miss. 2009)

(finding that trial counsel’s decision not to request the lesser offense manslaughter and

mutilation jury instructions did not constitute ineffective of assistance of counsel); see also

Sea v. State, 49 So. 3d 614, 619 (¶22) (Miss. 2010).

¶32.   The Castle Doctrine, a category of justifiable homicide, is codified at Mississippi

Code Annotated section 97-3-15(3)-(4) (Rev. 2014). It provides that:

       (3) A person who uses defensive force shall be presumed to have reasonably
       feared imminent death or great bodily harm, or the commission of a felony
       upon him or another or upon his dwelling, or against a vehicle which he was
       occupying, or against his business or place of employment or the immediate
       premises of such business or place of employment, if the person against whom
       the defensive force was used, was in the process of unlawfully and forcibly
       entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle,
       business, place of employment or the immediate premises thereof or if that
       person had unlawfully removed or was attempting to unlawfully remove
       another against the other person’s will from that dwelling, occupied vehicle,
       business, place of employment or the immediate premises thereof and the
       person who used defensive force knew or had reason to believe that the
       forcible entry or unlawful and forcible act was occurring or had occurred. This
       presumption shall not apply if the person against whom defensive force was
       used has a right to be in or is a lawful resident or owner of the dwelling,
       vehicle, business, place of employment or the immediate premises thereof or
       is the lawful resident or owner of the dwelling, vehicle, business, place of
       employment or the immediate premises thereof or if the person who uses
       defensive force is engaged in unlawful activity or if the person is a law
       enforcement officer engaged in the performance of his official duties.

       (4) A person who is not the initial aggressor and is not engaged in unlawful
       activity shall have no duty to retreat before using deadly force under
       subsection (1)(e) or (f) of this section if the person is in a place where the
       person has a right to be, and no finder of fact shall be permitted to consider the
       person's failure to retreat as evidence that the person's use of force was

                                              14
          unnecessary, excessive or unreasonable.

Miss. Code Ann. § 97-3-15(3)-(4). The Castle Doctrine creates a presumption of fear and

abridges a duty to retreat in certain prescribed circumstances. Newell, 49 So. 3d at 74 (¶22);

Woods, 242 So. 3d at 54 (¶23).

¶33.      In this case, before trial defense counsel filed a Castle Doctrine jury instruction, D-13.

However, at trial, the defense revised this instruction to conform to the language of another

section of the justifiable homicide statute, Mississippi Code Annotated section 97-3-15

(1)(e):

          (1) The killing of a human being by the act, procurement or omission of
          another shall be justifiable in the following cases:

          ....

                 (e) When committed by any person in resisting any attempt unlawfully
                 to kill such person or to commit any felony upon him, or upon or in any
                 dwelling, in any occupied vehicle, in any place of business, in any place
                 of employment or in the immediate premises thereof in which such
                 person shall be . . . .

Byrd argues that her attorney’s action in failing to provide the original Castle Doctrine

instruction constitutes ineffective representation. She says that the incident was more than

a domestic dispute; rather, it was an eviction. Byrd told Harper to leave her home, and he

refused. The State argues that Bryd was not entitled to a Castle Doctrine instruction because

Harper was not in the process of unlawfully and forcibly entering the dwelling. The statute

clearly says: “This presumption shall not apply if the person against whom defensive force

was used has a right to be in the or is a lawful resident or owner of the building.” Mississippi

Code Annotated section 97-3-15(3).

                                                 15
¶34.   In this case, although Byrd owned the home, she had allowed Harper to live with her

for over a year. It was his residence as much as hers. Undoubtedly, she had the right to

change her mind and ask him to leave, but his alleged refusal to do so immediately does not

constitute an unlawful entry.

¶35.   The cases raised by Byrd in her argument for a Castle Doctrine instruction, Newell v.

State, 49 So. 3d 66 (Miss. 2010), and Thomas v. State, 75 So. 3d 1112 (Miss. Ct. App. 2011),

are inapplicable. In Thomas, the defendant had shot into the air in a parking lot to stop a

disturbance and then fled to his pick up truck. Id. at 113 (¶4). He was followed by a group

of men who thought Thomas had shot at them. Id. They tried to get into his truck. Id.

Ultimately, Thomas shot one of the men. Id. We held that Thomas was entitled to a Castle

Doctrine instruction because there was a fact question as whether the attack on Thomas once

he entered his truck was a separate chain of events. Id. at 1116 (¶14). Newell’s facts were

similar to Thomas’s. In Newell, a husband was looking for his wife at a bar and exchanged

harsh words with some men in the parking lot. Newell, 49 So. 3d at 68 (¶3). Newell

retreated to his truck and tried to leave but he was followed by these men who tried to get in.

Id. (¶4). Ultimately, Newell shot one of them. Id. The supreme court applied the Castle

Doctrine and said Newell was occupying his vehicle and used defensive force when he was

accosted. Id. at 74 (¶23). In this case, Byrd had not sought shelter in her home and was not

fighting off an assault by an intruder. Rather she had a dispute there with someone she had

allowed to live with her. The facts developed during trial did not warrant a Castle Doctrine

instruction, and thus, there was no ineffective representation by defense counsel for failing



                                              16
to propose one.

                                       CONCLUSION

¶36.   Finding no merit to the issues Byrd raises on appeal, we affirm.

¶37.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, LAWRENCE AND C. WILSON, JJ., CONCUR.
McCARTY, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION.

       McCARTY, J., CONCURRING IN PART AND DISSENTING IN PART:

¶38.   I agree with the majority’s conclusions that prior bad acts were not used to tilt the trial

against the defendant and that the prosecutor did not quite cross the line in closing. As to

ineffectiveness of counsel, I must respectfully dissent, as I do not believe that we need to

wade into the already murky waters of the Castle Doctrine. I believe that we should dismiss

the claim of ineffectiveness without prejudice so it can be developed in a petition for post-

conviction relief (PCR).

¶39.   Defense counsel actually constructed an instruction on the Castle Doctrine—but

changed it, as nimble lawyers will, based on the facts of the case. “Whether to request a

certain instruction generally is a matter of trial strategy.” McCoy v. State, 147 So. 3d 333,

347 (¶36) (Miss. 2014). As the defendant points out, throughout pretrial hearings, voir dire,

and a request for a directed verdict, defense counsel stated this was a Castle Doctrine case

but did not actually request an instruction on the defense. This certainly feels like trial

strategy, regardless of the application of the Castle Doctrine in precedent. Yet from a cold

record on direct appeal we do not know whether this was indeed trial strategy or if counsel


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was just in conflict with the defendant.

¶40.   With this particular record, I believe we should follow the lead of the Supreme Court

in McCoy and find that “[t]his claim more appropriately would be brought in a petition for

[PCR]” and “dismiss [the] ineffective-assistance claim, regarding [the] attorney’s failure to

request a cautionary instruction, without prejudice so that [the defendant] may raise this

claim in a properly filed” PCR petition. Id.

¶41.   I believe that when possible we should address claimed errors of ineffective assistance

on direct appeal—such as whether a lawyer failed to perform an essential function of

representation. In more nebulous scenarios such as whether it was trial strategy to not ask

for an instruction of this type, we should allow a petitioner to develop it through a PCR

petition, which should be accompanied with evidence or affidavits beyond a mere assertion

that counsel was ineffective.

¶42.   For the foregoing reasons, I concur in part and dissent in part.




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