        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-01813-COA

LORENZO HULL                                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                        10/02/2013
TRIAL JUDGE:                             HON. ISADORE W. PATRICK JR.
COURT FROM WHICH APPEALED:               WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BILLY L. GORE
DISTRICT ATTORNEY:                       RICHARD EARL SMITH JR.
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF DEPRAVED-HEART
                                         MURDER AND SENTENCED TO THIRTY-
                                         FIVE YEARS IN THE CUSTODY OF THE
                                         MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS AS A HABITUAL
                                         OFFENDER WITHOUT ELIGIBILITY FOR
                                         PAROLE OR PROBATION
DISPOSITION:                             AFFIRMED IN PART, VACATED AND
                                         REMANDED IN PART - 03/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

      BARNES, J., FOR THE COURT:

¶1.   After a four-day trial, a Warren County jury convicted Lorenzo Hull of depraved-heart

murder. He was sentenced to thirty-five years in the custody of the Mississippi Department

of Corrections (MDOC) as a habitual offender. He now appeals, raising several issues. Hull
claims the trial court erred by permitting the State’s expert witness in forensic pathology to

give speculative testimony, refusing to redact the victim’s death certificate to remove

prejudicial hearsay, refusing two jury instructions, and sentencing him as a habitual offender.

Hull also argues the weight and sufficiency of the evidence were inadequate to support the

verdict. This Court affirms Hull’s conviction but vacates his habitual-offender status because

the State failed to offer competent evidence that Hull was a habitual offender. We remand

the case to the Warren County Circuit Court for resentencing of Hull as a nonhabitual

offender.

            STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶2.    On the morning of December 5, 2011, Hull called 911 at approximately 7:30 a.m. after

he awoke to find his girlfriend, Angela Andrews, unresponsive and hot, with red eyes and

mucus coming from her mouth and nose. Hull told dispatchers he and Andrews got into a

“little fight” and “things got out of hand.” The evening before, the couple had argued over

“money for grocery bills” and Andrews’s alleged recent infidelity. Hull admitted the

argument became physical, and he initiated it by slapping her a few times. He also admitted

to “probably backhanding” Andrews with a closed fist a few times as well, but denied

punching her. Hull is six feet tall and weighed 230 pounds, with admittedly “heavy hands.”

Andrews was five feet seven inches tall and weighed 171 pounds. Andrews later died from

subdural hematoma, or bleeding into the brain, caused by blunt force trauma, at the

University of Mississippi Medical Center (UMMC) in Jackson, Mississippi.

¶3.    Hull had been living with Andrews at her home in Warren County, Mississippi, for

approximately one year. Andrews, a military veteran, was a habitual crack cocaine user and


                                              2
suffered from seizures for which she was prescribed medication. Hull explained he helped

Andrews keep up with her medication and made sure her bills were paid. Andrews gave Hull

a portion of her check each month to use for bills.

¶4.    On December 1, 2011, Hull and Andrews began arguing over money.              Andrews

wanted to go smoke crack, and Hull eventually “let her run off for a little while . . . and do

her thing.” Andrews was gone for three days, staying at crack houses, while Hull used

“powder” (cocaine) during this same time, sleeping at a friend’s house and Andrews’s house

alone. Andrews returned home on December 4, when their fight ensued.

¶5.    Hull maintained that near the end of the altercation, Andrews ran out of the front door

trying to escape his assault, missed a step, and fell down the front porch stairs, hitting her

head on concrete stepping stones. Hull helped Andrews up, but she came into the house “still

frisky.” Andrews “gestured” at Hull, so he backhanded her with his fist on the side of her

face. She fell and hit her head on the floor. He helped her up, but she was “wobbling [and]

staggering.” He only noticed a scratch on the side of her face. Hull claimed he then helped

Andrews take a bath because she was muddy. During the bath, Andrews was “moaning like

she was crying,” but never spoke. Hull helped her onto a mattress on the floor, while he slept

on a couch in the same room. They went to sleep at about 8:30 p.m. He claimed Andrews

never spoke after she fell, but she did turn over and snore during the night. He did not think

she was seriously injured.

¶6.    After Andrews was taken to a regional hospital by ambulance, Hull was questioned

by the Warren County Sheriff’s Office and taken into custody. Later that day, when

Andrews died at UMMC, Hull was charged with depraved-heart murder. In May 2012, Hull


                                              3
was indicted for depraved-heart murder as a habitual offender under Mississippi Code

Annotated section 99-19-81 (Supp. 2014) due to two prior cocaine convictions in 1993 and

2002.

¶7.     At Hull’s trial in September 2013, six witnesses testified for the State. An EMT

dispatched to the scene found Andrews unresponsive, on a mattress on the floor. Her

heartbeat was weak, and the EMTs intubated and “worked on her” for twenty to twenty-five

minutes without improvement. During this time, the EMT testified that Hull stated, “I think

I messed up this time.” Andrews was “near death” when she arrived at the local hospital, and

was airlifted to UMMC in Jackson, where she died at 3:34 p.m. on December 5, 2011.

¶8.     That same day, Hull was interviewed by Sam Winchester, a detective with the Warren

County Sheriff’s Office, at 10:00 a.m., and again on December 6, after he found out Andrews

had died. Portions of both interviews were entered into evidence at trial and played for the

jury during Officer Winchester’s examination. In the first interview, Hull told Officer

Winchester that he had gotten “high all night” and admitted, “I f***ed up, bro. I probably

hit her too much.” However, he claimed that he only hit Andrews on her face with open

hands, and did not know how badly she was injured when he lay her down on the mattress

for bed.

¶9.     During the second interview, after Hull had been charged with depraved-heart murder,

he could not remember how many times he hit Andrews, but he maintained that he did not

beat her until she died. He did show Officer Winchester his hands, which he stated were

swollen from beating her, but he did not use any other weapons. He also stated that Andrews

had been cheating on him, and he had an “anger problem.”


                                             4
¶10.   Before the Warren County Coroner testified, a hearing was held outside the jury’s

presence on Hull’s motion to redact a portion of Andrews’s death certificate that stated

“[s]ubject struck in head” as the means of Andrews’s injury.1 The trial judge denied the

motion and ruled the death certificate was admissible because it was an official state record,

and Hull could cross-examine the coroner concerning it. Over the defense’s objection of

hearsay, the State was allowed to introduce Andrews’s certified death certificate.

¶11.   Dr. Erin Barnhart was accepted as an expert forensic pathologist for the State, and is

the State’s deputy chief medical examiner. During the autopsy, injuries found on Andrews’s

body included multiple abrasions and contusions, a scalp hemorrhage, a subdural hematoma

on the left side, a subarachnoid hemorrhage, subdural contusions (bruising) on the brain

itself, and swelling of the brain. Approximately 150 milliliters of blood and blood clot were

found within her cranial cavity. She testified that Andrews’s injuries were consistent with

being hit by a fist, with multiple impacts of “significant force,” and Hull’s account of a fall

down the steps was impossible. Dr. Barnhart testified the abrasion on Andrews’s face could

have been sustained by a blow with a fist, whereas a fall would have created a more

significant laceration, and not an abrasion. Andrews’s use of crack would not have caused

or impacted her brain injuries. Finally, Dr. Barnhart testified that people are known to

survive subdural hematomas if given immediate medical attention. She testified the cause




       1
          Prior to trial, Hull had made an oral motion in limine to exclude this statement. The
State planned to introduce Andrews’s certified death certificate through the testimony of the
county coroner. Hull argued the coroner had no prior knowledge of how Andrews’s injury
occurred. The trial judge reserved ruling until the State attempted to introduce the death
certificate at trial.

                                              5
of Andrews’s death was “blunt force trauma,” and the manner of death was “homicide,” as

stated on Andrews’s death certificate.

¶12.   Hull testified on his own behalf. He gave his version of the events, related above. He

admitted he “slapped her around pretty good” and “probably did hit her hard but not with the

intention [of] killing her.” He admitted he was high on cocaine during the fight – “a two or

three hundred dollar high.” During cross-examination, the prosecution noted Hull told the

911 operator once, and Officer Winchester three times, that “things got out of hand last

night.” It was also noted that in Hull’s statement he said, “I tried to do the right thing [by

calling 911,] but it cost me my freedom.” Hull told the jury that he had a “kind,” and not a

“depraved,” heart.

¶13.   The jury was instructed on depraved-heart murder, culpable-negligence manslaughter,

and heat-of-passion manslaughter. The trial court denied Hull’s instructions on misdemeanor

manslaughter and excusable homicide by accident or misfortune. The jury convicted Hull

of depraved-heart murder, and the trial judge sentenced him to thirty-five years as a habitual

offender under the custody of the MDOC. Hull’s motion for a judgment notwithstanding the

verdict or, in the alternative, a new trial was denied. Hull timely appealed.

                                         ANALYSIS

       1.     Expert Witness Testimony

¶14.   Hull claims the trial court erred in permitting the State’s expert witness, forensic

pathologist Dr. Barnhart, to give her “speculative opinion” that Andrews’s injuries were

inconsistent with Hull’s version of the events. Hull claims that Andrews fell down four steps

outside of her house and hit her head on concrete stepping stones, causing her head abrasion

                                              6
and the traumatic brain injury. Dr. Barnhart, who performed Andrews’s autopsy, testified

that Andrews’s injuries were inconsistent with Hull’s version of the events.

¶15.   On appeal, errors in the admission of evidence, including expert testimony, are

reviewed for an abuse of discretion. Parvin v. State, 113 So. 3d 1243, 1246 (¶12) (Miss.

2013). Unless the trial court’s discretion is found arbitrary and clearly erroneous, the

decision will stand. Galloway v. State, 122 So. 3d 614, 632 (¶27) (Miss. 2013). Expert

testimony is governed by Mississippi Rule of Evidence 702, which states that a properly

qualified witness may testify “in the form of an opinion or otherwise, if (1) the testimony is

based upon sufficient facts or data, (2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles and methods reliably to the facts of

the case.” The opinions given “must rise above mere speculation” and “be [found] relevant

and reliable.” Parvin, 113 So. 3d at 1247 (¶14) (quoting Williams v. State, 35 So. 3d 480,

486 (¶19) (Miss. 2010)); Ross v. State, 954 So. 2d 968, 996 (¶57) (Miss. 2007). “Testimony

is relevant if it will assist the trier of fact in understanding or determining a fact at issue.”

Ross, 954 So. 2d at 996 (¶57). Testimony is reliable if it is “based on the methods and

procedures of science, and not merely on subjective beliefs or unsupported speculation.” Id.

¶16.   Dr. Barnhart testified about the injuries found on Andrews’s body. Regarding the

facial abrasion, she testified that there was no specific way medically to determine how this

wound occurred; however, it could have been sustained by a blow from the fist, and this type

of blow was consistent with blunt force trauma. Over the defense’s objection, when asked

whether Andrews allegedly falling and hitting her head on concrete could have caused the

abrasion, Dr. Barnhart testified:


                                               7
       If someone had fallen onto a concrete rock I would expect there to be a
       significant laceration or cut at the area of impact. . . . [W]e generally associate
       falls with injuries to the [palms] of the hands when someone reaches out to
       catch themselves. We associate them with injuries to the chin frequently or to
       the knee caps as someone hits the ground.

However, she stated those types of injuries were not found on Andrews’s body. Regarding

the subdural hematoma, Dr. Barnhart could not give an exact amount of force needed to

create that type of brain injury, but stated it would certainly take “significant force.” Dr.

Barnhart also testified that a person would be able to walk and talk for “a brief period of

time” or “a few minutes” after suffering a subdural hematoma.

¶17.   Hull takes issue with the above opinions, claiming they are too speculative, and thus

inadmissible under Rule 702. Also, he claims the opinions are more prejudicial than

probative, thereby rendering them inadmissible under Mississippi Rule of Evidence 403.

Hull cites Parvin as analogous, where the Mississippi Supreme Court reversed and remanded

the defendant’s conviction for murder in part because the expert testimony from the forensic

pathologist was found inadmissible. Parvin, 113 So. 3d at 1250 (¶29). The defendant was

accused of murdering his wife; however, he claimed it was accidental – he was running out

of his house with a loaded shotgun to shoot a beaver when he tripped and fell, discharging

the gun and accidentally shooting his wife. Id. at 1245 (¶3). Dr. Stephen Hayne, who

performed the autopsy, testified about firearm distance and trajectory measurements. Id. at

1248-50 (¶¶22-26). However, his testimony was contradicted on cross-examination, and also

by the State’s firearm expert witness. Id. at 1249 (¶¶24-25). The supreme court explained

that Dr. Hayne did not cite any scientific principle or method for calculating the distance and

trajectory measurements of the gunshot wound; instead, he used his naked eye and a


                                               8
protractor, which “fell woefully short of the requirements” of Rule 702. Id. at 1250 (¶29).

¶18.   Parvin is distinguishable. Here, the testimony at issue did not involve the more

precise subject of gunshot distances and trajectories, as in Parvin, but wounds and their

possible means of infliction, which is admissible. The Mississippi Supreme Court has

pronounced: “A forensic pathologist may also testify about ‘wounds, suffering, and the

means of infliction of injury,’ since it falls within his or her area of expertise,” as well as

“whether a particular instrument or weapon in evidence was consistent with particular

injuries to a victim.” Galloway, 122 So. 3d at 632 (¶29) (citations omitted). Dr. Barnhart

gave her expert opinion on the possible cause of Andrews’s wounds based upon her personal

observation of her external and internal wounds while performing the autopsy, which is

proper. It was her opinion the injuries she observed and examined were inconsistent with

a fall, as Hull claimed.

¶19.   The trial court did not err in allowing Dr. Barnhart’s testimony on Andrews’s injuries.

       2.     Death Certificate Redaction

¶20.   Hull states the trial court erred in refusing to redact Andrews’s certified death

certificate to exclude the statement “subject struck in head” in answering the query “how or

by what means injury occurred.” Hull argues this statement was inadmissible “hearsay

within hearsay” under Mississippi Rule of Evidence 805, as well as more prejudicial than

probative under Rule 403. Additionally, he argues the failure to redact the death certificate

violated his right to confrontation under the Sixth Amendment. We shall discuss each

argument in turn.

              Hearsay


                                              9
¶21.    Hull objected twice to the admission of the statement in the death certificate – before

trial in a motion in limine, when the trial court reserved ruling until trial; and at trial prior to

the coroner’s testimony, when it was going to be introduced. The trial court allowed the

certificate into evidence without redaction because it was an official record of the Mississippi

Department of Health and Vital Records on file at that facility.

¶22.    “The standard of review regarding admission or exclusion of evidence is abuse of

discretion.” Ladnier v. State, 878 So. 2d 926, 933 (¶27) (Miss. 2004). The reviewing court

“will not reverse unless the error adversely affects a substantial right of a party.” Id.

Mississippi Rule of Evidence 803(9) provides a hearsay exception for records of vital

statistics, which would include properly certified death certificates. See Miss. Code Ann. §

41-57-1 (Rev. 2013); Shell v. State, 554 So. 2d 887, 898 (Miss. 1989), overruled on other

grounds by Shell v. Mississippi, 498 U.S. 1 (1990) (“A death certificate clearly falls under

the language of [Rule 803(9)].”). Rule 803(9) provides no exclusions to this hearsay

exception. Rule 805 provides: “Hearsay included within hearsay is not excluded under the

hearsay rule if each part of the combined statements conforms with an exception to the

hearsay rule . . . .”

¶23.    Hull argues the same distinction as the dissent in Birkhead v. State, 57 So. 3d 1223,

1243-44 (¶79) (Miss. 2011): “the death certificate itself is excepted from the hearsay rule as

a record of a vital statistic”; yet the “contents of the death certificate, however, still are

subject to the rules of evidence,” and Rule 805 would exclude the contents as hearsay within

hearsay. Id. (Kitchens, J., dissenting) (emphasis in original). In Birkhead, the defendant

moved for the “time of injury” from the victim’s death certificate to be redacted. The


                                                10
supreme court held Rule 803(9) unequivocally provides death certificates are admissible.

Birkhead, 57 So. 3d at 1232 (¶32). Accordingly, this Court is bound by the rule of Birkhead.

¶24.   Further, we find that any presumed error was harmless. “[T]he inquiry is not whether

the jury considered the improper evidence or law at all, but rather, whether that error was

‘unimportant in relation to everything else the jury considered on the issue in question, as

revealed in the record.’” Id. at 1232-33 (¶33) (quoting Thomas v. State, 711 So. 2d 867, 873

(¶25) (Miss. 1998)). At trial, Hull admitted to slapping Andrews and backhanding her with

a closed fist. Near the end of the altercation, he claims she bolted out of the front door, fell

down some stairs, and struck her head on concrete stepping stones. Given Hull’s own

testimony, failure to redact “subject struck in head” from Andrews’s death certificate did not

prejudice him, and the introduction of this information was not more prejudicial than

probative under Rule 403. Hull’s own theory of the case was Andrews’s died due to being

“struck in the head” through impact with a stepping stone. It was an issue for the jury to

determine what or who delivered the fatal blow – a stepping stone or Hull.

              Sixth Amendment

¶25.   An appellate court reviews a Sixth Amendment Confrontation Clause objection de

novo. Smith v. State, 986 So. 2d 290, 296 (¶18) (Miss. 2008). The Sixth Amendment

prohibits “admission of testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had had a prior opportunity for cross-

examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Evidence admitted

through a hearsay exception is still under Confrontation Clause scrutiny. Birkhead, 57 So.

3d at 1233 (¶36). “Testimonial” statements include:


                                              11
       [E]x parte in-court testimony or its functional equivalent – that is, material
       such as affidavits, custodial examinations, prior testimony that the defendant
       was unable to cross-examine, or similar pretrial statements that declarants
       would reasonably expect to be used prosecutorially; extrajudicial statements
       contained in formalized testimonial materials, such as affidavits, depositions,
       prior testimony, or confessions; statements that were made under
       circumstances which would lead an objective witness reasonably to believe
       that the statement would be available for use at a later trial.

Id. at 1234 (¶37) (quoting Crawford, 541 U.S. at 51-52) (internal quotation marks omitted).

“[B]usiness and public records are generally admissible absent confrontation not because

they qualify under an exception to the hearsay rules, but because – having been created for

the administration of an entity’s affairs and not for the purpose of establishing or proving

some fact at trial – they are not testimonial.” Id. at 1234-35 (¶38) (emphasis in original)

(quoting Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009)).              Accordingly,

regarding a death certificate, “should evidence be developed that ‘time of injury,’ ‘cause of

death,’ and/or other relevant death-certificate entries were included or influenced by police

officers or prosecutors with an eye toward prosecution, a trial judge would not be in error for

redacting such.” Id. at 1235 (¶40).

¶26.   Hull argues that the investigators provided the coroner with the information on the

death certificate “to establish past events with an eye towards trial.” He maintains that the

coroner had no personal knowledge about how Andrews’s injury occurred except from what

other people told him, and the State’s witnesses did not establish who provided the coroner

with this information. Thus, Hull claims his right to confront the unknown witness with this

alleged testimonial hearsay was violated.

¶27.   We disagree, and again find Birkhead instructive. There, the Mississippi Supreme



                                              12
Court held the death certificate was not subject to Confrontation Clause analysis because it

was “a nontestimonial record of vital statistics, ‘created for the administration of an entity’s

affairs and not for the purpose of establishing or proving some fact at trial.’” Id. at 1236

(¶42) (quoting Melendez-Diaz, 557 U.S. at 324).2 We cannot say that Andrews’s means of

injury was shown on the death certificate as “struck in head” in order to prove a fact at trial.

There is no evidence in the record to support this argument.           Further, the physician

performing the autopsy testified at trial and was confronted by Hull during cross-

examination. While she may not have actually filled out the death certificate, she did not

dispute its information. As the State points out, it was an issue for the jury to determine

whether Andrews was struck in the head by impact with a stepping stone after falling down

the stairs, or by Hull’s hands.

       3.     Sufficiency and Weight of Evidence

¶28.   Hull argues the sufficiency and weight of the evidence were inadequate to convict him

of murder. At the most, Hull contends he should be guilty of culpable-negligence or heat-of-

passion manslaughter. Hull requests the Court reverse his conviction for murder and remand

the case for a new trial, or remand the case for resentencing as a nonhabitual offender for

manslaughter under the direct-remand rule.3


       2
         The supreme court noted, however, that it did not hold that testimonial statements,
subject to the Confrontation Clause, could never be found in nontestimonial business or
public records. Birkhead, 57 So. 3d at 1236 (¶42).
       3
          “Utilizing the direct-remand rule, an appellate court may remand a case to the trial
court for sentencing on a lesser-included offense where the greater offense was not proved,
but the elements of the lesser-included offense were sufficiently met.” Snowden v. State, 131
So. 3d 1251, 1259 (¶22) (Miss. Ct. App. 2014) (citing Shields v. State, 722 So. 2d 584, 587
(¶7) (Miss. 1998)).

                                              13
¶29.   In reviewing the sufficiency of the evidence, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Nolan v.

State, 61 So. 3d 887, 893 (¶24) (Miss. 2011) (quoting Bush v. State, 895 So. 2d 836, 843

(¶16) (Miss. 2005)). The verdict will be affirmed if “reasonable fair-minded [jurors] in the

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

offense.” Id. All credible evidence consistent with the defendant’s guilt will be accepted as

true, together with all favorable inferences that may be reasonably drawn from the evidence.

Robinson v. State, 940 So. 2d 235, 240 (¶13) (Miss. 2006) (citing McClain v. State, 625 So.

2d 774, 778 (Miss. 1993)). The evidence will be considered in the “light most favorable to

the State.” Id.

¶30.   Regarding the weight of the evidence, the appellate court “will only disturb a verdict

when it is so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844 (¶18). The evidence

will be considered in the light most favorable to the verdict. Id. It is the role of the jury to

assess the weight and credibility of the evidence and to resolve any conflicts in the evidence.

Latiker v. State, 918 So. 2d 68, 73 (¶12) (Miss. 2005).

¶31.   Hull argues that he acted with a degree of recklessness that rose to the level of

culpable-negligence manslaughter, but not depraved-heart murder, which is defined as a

killing “done in the commission of an act eminently dangerous to others and evincing a

depraved heart, regardless of human life, although without any premeditated design to effect

the death of any particular individual . . . .” Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2014).


                                              14
A defendant is guilty of culpable-negligence manslaughter if he or she kills another through

“negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter

indifference to, the safety of human life, and this shall be so clearly evidenced as to place it

beyond every reasonable doubt.” Jones v. State, 678 So. 2d 707, 710-11 (Miss. 1996).

Second, Hull argues that he could only at most be guilty of heat-of-passion manslaughter,

which is “[t]he killing of a human being, without malice, in the heat of passion, but in a cruel

or unusual manner, or by the use of a dangerous weapon, without authority of law, and not

in necessary self-defense . . . .” Miss. Code Ann. § 97-3-35 (Rev. 2014). “Heat of passion”

has been defined as: “A state of violent and uncontrollable rage engendered by a blow or

certain other provocation given . . . .” Nolan, 61 So. 3d at 893 (¶26) (quoting Tait v. State,

669 So. 2d 85, 89 (Miss. 1996)). In contrast, “depraved-heart murder involves a higher

degree of recklessness from which malice or deliberate design may be implied.” Windham

v. State, 602 So. 2d 798, 801 (Miss. 1992). “Whether a homicide is classified as a murder

or manslaughter is ordinarily an inquiry to be made by the jury.” Moore v. State, 52 So. 3d

339, 347 (¶32) (Miss. 2010).

¶32.   Hull claims that Andrews’s death resulted from delay in getting her medical attention,

whether the jury believes she fell down the stairs and hit her head or he struck her, and this

delay shows culpable negligence, not murder. Further, Hull claims he did not intend to kill

Andrews. Yet, regardless of his intent, the evidence showed Hull caused Andrews’s injuries,

whether by his fist or by the stairs when she attempted to flee from his attack, and her injuries

were severe enough to cause her death. The fact that he could have gotten her medical

attention sooner does not mitigate the fact that he originally caused her deadly injury. Even


                                               15
though Hull was angry when he slapped Andrews, the jury rejected any “heat-of-passion”

theory after being properly instructed.

¶33.   Further, there was sufficient evidence presented of malicious intent to convict Hull

of depraved-heart murder. Hull admitted that he and Andrews had been arguing for several

days. When she returned home the evening at issue after going on a crack binge, they fought

over money, and he initiated the physical fight by slapping her a few times. At trial, he

stated, “I slapped her around pretty good, yes, I did.” He also admitted to backhanding her

with a closed fist a few times, and that he had heavy hands. While working on Andrews, an

EMT overheard Hull say he probably “messed up this time.” During his police interview,

Hull showed Officer Winchester how his hands were swollen from striking Andrews. He

also admitted to Winchester that he had been high all night and “probably hit her too much.”

After Andrews fell for the last time due to Hull’s backhanding her in the face, she was

wobbling and staggering. She never spoke again, even after a bath, in which Hull had to

assist. According to Dr. Barnhart, Andrews’s injuries were consistent with being hit by a fist

multiple times with significant force.     The jury was properly instructed on culpable-

negligence manslaughter, heat-of-passion manslaughter, and depraved-heart murder. Viewed

in the light most favorable to the State, the evidence shows Hull acted with a degree of

recklessness from which malice or deliberate design could be implied for a conviction of

depraved-heart murder. Finally, allowing his conviction to stand does not constitute an

unconscionable injustice.

       4.     Jury Instructions

¶34.   Hull argues the trial court erred in refusing jury instructions D-6 and D-2, which dealt


                                             16
respectively with misdemeanor manslaughter and excusable homicide. The standard of

review for the refusal of jury instructions is abuse of discretion. Newell v. State, 49 So. 3d

66, 73 (¶20) (Miss. 2010).

       [T]he 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. There is no error if all instructions taken as a
       whole fairly, but not necessarily perfectly, announce the applicable rules of
       law.

Id. at 73-74 (¶20) (quoting Rubenstein v. State, 941 So. 2d 735, 784-85 (¶224) (Miss. 2006)).

Further, “a defendant is entitled to have jury instructions given which present his theory of

the case; however, this entitlement is limited in that the court may refuse an instruction which

incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence.” Id. (quoting Hearn v. State, 3 So. 3d 722, 738 (¶45) (Miss.

2008)). “[I]f the instructions fairly announce the law of the case and create no injustice, no

reversible error will be found.” Williams v. State, 803 So. 2d 1159, 1161 (¶7) (Miss. 2001).

¶35.   Hull was granted three jury instructions presenting his theory of the case. Jury

instruction D-3 authorized the jury to find Hull guilty of manslaughter if it found he acted

without malice in the heat of passion. Jury instruction D-4 allowed the jury to find Hull

guilty of manslaughter by culpable negligence if it found he killed Andrews “by hitting her,

without authority of law.” Finally, jury instruction D-12A stated the jury could find Hull not

guilty if it found that “Andrews fell on the steps in the front of her house and hit her head on

a concrete brick and that Lorenzo Hull was not the cause of her fall on the steps or the

injuries that resulted in her death.”

              Jury Instruction D-6 – Misdemeanor Manslaughter


                                              17
¶36.   Hull claims there was evidentiary support for jury instruction D-6, which stated that

the jury could find Hull guilty of misdemeanor manslaughter if it found Hull killed Andrews

“without malice and without authority of law . . . while in commission of a simple assault,

not amounting to a felony . . . .” See Miss. Code Ann. § 97-3-29 (Rev. 2014). Hull argues

if the jury believed Hull’s theory of defense that Andrews’s fatal injury was from falling and

hitting her head during the course of simple assault, this jury instruction would be

appropriate.

¶37.   We disagree. The evidence clearly establishes that Hull’s multiple blows with his fist

to Andrews’s head are sufficient to establish the felony of, at a minimum, aggravated assault,

and not misdemeanor assault, regardless of whether the jury found she fell down the stairs

and hit her head as well. This instruction was properly given.

               Jury Instruction D-2 – Excusable Homicide

¶38.   Instruction D-2 stated a killing of another person is excusable when: “committed by

accident and misfortune in doing any lawful act by lawful means, with usual and ordinary

caution, and without any unlawful intent,” or when “committed by accident and misfortune,

in the heat of passion, upon any sudden and sufficient provocation,” or when “committed

upon any sudden combat, without undue advantage being taken, and without any dangerous

weapon being used, and not done in a cruel and unusual manner.” See Miss. Code Ann. §

97-3-17 (Rev. 2014). Hull concedes that the evidence does not show Andrews’s death was

due to an accident “by lawful means, with usual and ordinary caution.” However, he does

claim the jury instruction should have been amended to instruct the jury on the other

elements. Hull claims the evidence shows Andrews’s fatal injury could have been caused


                                             18
by falling down the stairs and hitting her head fleeing from Hull in the “heat of passion.”

Alternatively, he argues he and Andrews engaged in striking one another with their bare

hands, committing “sudden combat” without weapons.

¶39.   We are not persuaded by either of these arguments. According to Hull, Andrews ran

out of the house to flee his blows and fell down the porch stairs. If the jury believed this

version of events, Hull did not kill Andrews – the fall did – and there was no “homicide”; it

was purely an accident.      Further, there was no evidence of a “sudden and sufficient

provocation.” Hull and Andrews had been arguing for approximately three days, and in his

second police interview, Hull stated the fight at issue lasted approximately twenty to thirty

minutes. Regarding Hull’s other point, the evidence does not support an “undue advantage”

by Hull because he was a six-foot-tall male weighing 230 pounds, and Andrews was a five-

foot seven-inch female weighing 171 pounds.

¶40.   The refusal of these jury instructions was proper and did not deprive Hull of his theory

of the case.

       5.       Habitual-Offender Status

¶41.   Hull argues the trial court committed plain error in sentencing him as a habitual

offender without the possibility of parole because the State failed to offer competent proof

of his prior convictions into evidence at the sentencing hearing.

¶42.   Hull’s indictment alleged he was a habitual offender under section 99-19-81.4 The



       4
            Section 99-19-81 provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately

                                             19
indictment sets forth Hull’s prior convictions, including the offenses, conviction dates, and

cause numbers. At the sentencing hearing, the State orally represented that it had certified

copies of sentencing orders for Hull’s two prior convictions for sale of a controlled substance

in 1993 and possession of cocaine in 2002. However, the State did not introduce these

documents into evidence or make them a part of the record. Additionally, Hull did not object

to being sentenced as a habitual offender at the hearing. The trial court proceeded to

sentence Hull as a habitual offender.

¶43.   In order to sentence a defendant as a habitual offender, the accused must be properly

indicted as a habitual offender, the prosecution must “prove the prior offenses by competent

evidence,” and the defendant must “be given a reasonable opportunity to challenge the

prosecutor’s proof.” Grayer v. State, 120 So. 3d 964, 969 (¶18) (Miss. 2013) (quoting Keyes

v. State, 549 So. 2d 949, 951 (Miss. 1989)). The judgment of conviction is the best evidence

of conviction. Id. at (¶19) (citing McIlwain v. State, 700 So. 2d 586, 589 (¶13) (Miss. 1997)).

Certified copies of pen-packs, indictments, sentencing orders, and commitment papers

showing the defendant’s prior sentences have also been deemed competent evidence for

habitual-sentencing purposes. Short v. State, 929 So. 2d 420, 426 (¶16) (Miss. Ct. App.

2006); Harper v. State, 887 So. 2d 817, 828 (¶49) (Miss. Ct. App. 2004). “For this Court to

affirm an enhanced sentence under 99-19-81, the trial court’s basis for imposing the sentence



       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be
       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

                                              20
must appear in the record on appeal.” Short, 929 So. 2d at 426 (¶17) (citing Vince v. State,

844 So. 2d 510, 517 (¶22) (Miss. Ct. App. 2003)).

¶44.   The plain-error rule is employed “when a defendant’s substantive or fundamental

rights are affected. To determine if plain error has occurred, this Court must determine if the

trial court has deviated from a legal rule,” if the error was “plain, clear, or obvious,” and

whether the error “prejudiced the outcome of the trial.” Grayer, 120 So. 3d at 969 (¶15)

(internal citations and quotation marks omitted).

¶45.   Hull cites Grayer as controlling. There, the defendant was indicted for burglary as

a habitual offender under section 99-19-81, and later convicted by a jury. Id. at 966-67 (¶¶6-

7). The indictment clearly set forth his “previous felony convictions . . . , including the

offenses, dates convicted, and cause numbers.” Id. at 967 (¶6). During sentencing, the

defendant did not object to being sentenced as a habitual offender, but the record did not

contain any evidence to support his habitual-offender status other than the indictment and the

State’s oral recitation of his previous convictions. Id. at (¶8). The Mississippi Supreme

Court found the trial court’s imposition of habitual-offender status rose to the level of plain

error. Id. at 970 (¶21). The supreme court found the State failed to prove the defendant’s

prior offenses by competent evidence, vacated his sentence and habitual-offender status, and

remanded the case to the circuit court for resentencing as a nonhabitual offender. Id. at

(¶22). On remand, the State was not entitled to another chance to prove the defendant’s

habitual-offender status because that would violate the prohibition against double jeopardy.

Id. at 969-70 (¶20) (citing Ellis v. State, 520 So. 2d 495, 496 (Miss. 1988)).

¶46.   We find this case analogous to Grayer. Here, the record shows no proof of any


                                              21
convictions introduced into evidence as exhibits, or otherwise made a part of the record,

except Hull’s indictment and the State’s oral representation at sentencing that it had “two

certified as well as attested true copies of convictions.” The State argues that because Hull

did not object, he is procedurally barred from doing so for the first time on appeal. The State

mistakenly cites Grayer for this proposition. See id. at 968 (¶14). The Grayer court did not

apply a procedural bar to the defendant’s challenge, but found the failure to introduce

evidence of the defendant’s convictions rose to plain error because defendants have “a

fundamental right to be free from an illegal sentence.” Id. at 969 (¶16).

¶47.   The State also supplemented its authorities under Mississippi Rule of Appellate

Procedure 28(k), and claimed the recent post-conviction relief case of Carr v. State, 2013-

CP-01013-COA, 2014 WL 1674152 (Miss. Ct. App. April 29, 2014), was dispositive on this

issue. In Carr, this Court held that failure of the trial court formally to admit copies of the

defendant’s two prior felony convictions during sentencing did not amount to plain error.

Id. at *3 (¶¶11-12). We do not agree. At Carr’s sentencing, even though the State moved

for copies of the convictions to be admitted into evidence, the trial court never formally

admitted them into the record. Id. at (¶11). In our case, the State made no such motion.

¶48.   We find the State’s argument without merit. Hull’s sentence as a habitual offender

is vacated and remanded for the sole purpose of resentencing Hull as a nonhabitual offender.

                                      CONCLUSION

¶49.   For the foregoing reasons, we affirm Hull’s conviction, but remand the case to the

Warren County Circuit Court for resentencing of Hull as a nonhabitual offender.

¶50.   THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY OF

                                              22
CONVICTION OF DEPRAVED-HEART MURDER IS AFFIRMED.           THE
SENTENCE OF THIRTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER IS VACATED,
AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
WARREN COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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