IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00743-COA HAMIN SHAHEED A/K/A HAMIN SHAHEED II APPELLANT/CROSSAPPELLEE

v. STATE OF MISSISSIPPI APPELLEE/CROSSAPPELLANT DATE OF JUDGMENT: 04/28/2015 TRIAL JUDGE: HON. TOMIE T. GREEN COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF FIRST-DEGREE MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS W ITH ALL BUT TW ENTY YEARS SUSPENDED DISPOSITION: AFFIRMED IN PART; VACATED AND REMANDED IN PART - 12/13/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WILSON, J., FOR THE COURT: ¶1. Ham i n Shaheed shot and killed his girlf riend’s ex-boy f

riend during an altercation at his g i r lf riend’s apartm ent com

p lex. A Hinds County jury convicted h im of f i rst-degree

m urder, and the circuit judge sentenced him to lif e in t he custody of the Mississippi Departm ent of Corrections (MDOC), with all but t wenty y ear s s u s p e n ded. O n appeal,S h a h e ed a rgues t hat there w as i nsuf f icient evidence t o s upport his conviction, that h i s conviction is against the overwhelm ing weight of the evidence, and that the circuit judge erred by d eny ing his requests f or “stand y our ground” and castle doctrine jury instructions.
On cross-appeal, the S tate argues that the circuit judge l acked authority to suspend any part of Shaheed’s lif

e sentence and that Shaheed could only be sentenced to lif

e in prison. ¶2. There w as suf

f i cient evidence to support S haheed’s conviction f o r deliberate design

m urder, and the c ircuit judge did not abuse her discretion in deny ing the jury instructions that Shaheed requested. In a ddition, we agree with the S tate that the circuit j udge erred by partially suspending Shaheed’s sentence. Accordingly , we af f irm S haheed’s conviction but

rem and f or the circuit court to im

pose a lif e sentence with no part suspended.
FACTS ¶3. On Septem

ber 15, 2013, Shaheed was visiting his girlf riend, L a nisha Gardner, in her second-f l oor apartm ent. A r ound 12:30 a.m . , Trinton T r uss—who was previously

rom antically involved with Gardner—cam e t o Gardner’s apartm ent and banged on the door.
W i thout opening the door, Gardner told T russ that her b oy f riend was sleeping over and that he should leave. By

the tim e Gardner opened the door to talk to Truss, Truss was walking
away f rom the door, throwing the “f inger sign.” ¶4. Around 1 0:30 a.m ., Truss returned to Gardner ’ s a p a r t me n t a nd banged on the door

a g a i n . Shaheed started t o answer the door, but Gardner, who had seen Truss thro u g h t h e window, stopped him

. Gardner knew that Truss carried a gun, and she was af raid that there would b e trouble b etween t he two m en, who had never m et. Through the window, Shaheed

2saw Truss cock h is g un, and Gardner heard the click. Shaheed and Gardner t hen decided that

Gardner should go outside and persuade Truss to leave. ¶5. As soon a s Gardner op e n e d h e r d o o r , T r uss began t alking t o h er. Gardner waved
Truss away f

rom the door and m otioned f or him to walk down the stairs a nd away f rom the apartm ent. S he and T russ lef t the breezeway of the apartm e nts and walked down the stairs

an d o u t o n t o the sidewalk. According to Gardner, Truss was upset, “talking e rratic,” and asking why her b o y f

riend w as there. T russ stated that he thought that he and Gardner were in love, and he told her to “shut up” whenever she asked him t o leave. During this exchange, Gardner was f

acing Truss with her back to the stairs to her apartm e nt. ¶6. Still in the apartm ent, Shaheed heard y elling and l ooked f or Gardner and Truss f

rom the apartm ent windows. Unable to see either o f them , S haheed lef t the apartm ent with his
gun on h is hip. He testi f i e d t hat he approached Truss and Gardner and asked, “Is there a problem ? W hat’s going o n? A r e y o u okay ? ” According to Shaheed, Truss responded, “Ain’t shit going o n , m y nigga. W hat’s up.” Shaheed and G ardner both testif i ed that Truss then reached f

or his pistol, which was inside his waistband. ¶7. Truss and Shaheed then s truggled. Shaheed claim s that he was only try ing to prevent Truss f rom drawing his gun. B ut according to Shaheed , T r uss broke f ree and again

attem pted to draw his gun. Shaheed then pulled his own gun and shot Truss three tim es in the head. Af

t er shooting Truss, Shaheed f led the scene. ¶8. Tijua n a C o l l i n s , a n o t h e r r e s i dent of the a partm ent com

p lex, was the only

other
ey ewitness to the shooting. At trial, she t estif ied that she s a w Truss and S haheed tussling and

3that Truss “pulled his hand up and [ Shaheed] shot him .”

¶9. Truss w as t aken to t he h ospital but died f rom his wounds. Of

f icer Robert Buf

kin of the Jackson Police Departm ent (JPD) testif ied that a gun was r ecovered f rom T russ’s body

a t t h e h o s p i tal. Buf

k in testif i ed t hat the gun was “locked and loaded, ready to go.” JPD Of f icer Obie W ells also testif ied that a gun was f

ound in Truss’s pants “in between his legs.” ¶10. A grand jury i ndicted Shaheed f or f i rst-degree m

urder. At trial, Shaheed stipulated that he shot Truss and caused his death. Af ter a three-day trial, the jury f o und Shaheed guilty of f irst-degree m

u rder. ¶11. P o s t-trial, Shaheed f iled m otions f

or a judgm ent notwithstanding the ve r d i c t a n d a

new t rial, but the t rial court denied his m o tio n s . T he trial c ourt sentenced him to lif e im p risonm ent, “with all suspended except 20 y ears.” Shaheed appeals his conviction, and the State cross-appeals the partial suspension of his lif e sentence. DISCUSSION
I. Weight and Sufficiency of the Evidence ¶12. Shaheed arg u e s t h at h e is entitled to a judgm ent o f acquittal or, in the alternative, a

new trial because, in his view, n o reasonab l e j u r o r could have f ound t hat he did not act in self -def e nse. Theref

ore, he argues that there is insuf f icient evidence to support a conviction
f or f i rst-degree m

urder or, at t he v ery least, that the conviction is a gainst the overwhelm ing weight of the evidence. W hen addressing a challenge t o the suf f iciency of the evidence, “the relevant question is whether, af ter viewing the evidence in the li g h t mo s t f avorable to the prosecution, a ny rational trier of f act could have f

o und the essential e l e me n t s of the crim e

4bey ond a reasonable doubt.” B ush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting

Jackson v
. Virginia , 4 4 3 U.S. 307, 315 (1979)). The issue is not whether we wou l d have
f ound Shaheed guilty based on t he evidence presented at trial; rather, his c onviction m ust be af f irm ed if the evidence was suf f icient f o r “any rational trier of f

act” to have returned a guilty verdict. I d. “W hen reviewing a denial of a m otion f or a new t rial based on an objection to the weight of the evidence, we w i l l o n l y disturb a verdict w hen it is s o contrary to the

o verwhelm ing weight of t he evidence that to a llow i t to stand w ould sancti o n a n unconscionable injustice.” Id. a t 844 (¶18). The evidence should be “[ v]iewed in the light

m ost f avorable t o the verd i ct,” and we will af f irm unless “[ t]he trial court

. . . abuse[ d] its discretion in deny ing a new trial.” Id . at (¶19). ¶13. The t estim onies o f Shaheed and Gardner, t h o u g h c hallenged or i m p eached in som e respects at trial, generally support Shaheed’s claim s that Truss reached f o r h is gun f

irst; that Shaheed struggled with Truss i n an ef f ort to keep him f

rom pulling his gun; and t hat Shaheed shot Truss in self

- def ense only af

ter Tru s s b r o k e f

r e e a n d again r eached f

or his gun. The only other witness to the shooting, Collins, a r esident of another a partm ent in the com

plex, testif i ed at trial, “I seen two guy s tussling. T he next thing I know, [ Truss] pulled h is hand up and [ Shaheed] shot him

. ” C o l l i ns was som e d istance away f rom the m en when Truss was shot, s he did n o t s e e what led up to their “tussling,” and at trial s he never c larif ied her

am biguous testim ony that Truss “pulled his hand up.” C ollins d id not see Truss’s gun, but it was u ndisputed that he h ad a gun on his person. If this were all o f t h e e v idence in the record, it is possible that Shaheed’s conviction f or deliberate design m

urder would have to

5be reversed.

¶14. However, JPD Detect i v e J e r ma i n e Magee testif ied that Shaheed shot Truss while
Truss “was try i n g t o d e f

u s e the s ituation [ by ] raising his hands and being advised that he didn’t want any part o f the altercation.” On cross-exam ination, Mage e a gain testif ied that Shaheed shot Truss while T russ was try ing to def use the situation by “raising his hands and

m oving away f

r om ” Shaheed. Magee was not present when Truss was s hot; r a t h er, he testif i ed—without objection—based o n w h at Collins told h im during an interview at the crim e scene. Magee also testif ied—without objection—that Shaheed display ed h is gun as he appr o a c h e d Truss, but Truss never display ed his gun. This testim ony was based on his interviews with Collins and Gardner. ¶15. B e f

o r e M a g e e t o o k t h e s t a n d, J PD Corporal Sandra Dalton had given s i mi l a r testim o ny . Shaheed objected to Dalton’s testim ony on hearsay

grounds, but his objections

were overruled. Shaheed did not assert a ny sim ilar objection to Magee’s testim ony . Nor did Shaheed r equest or receive a ny sort of continuing o bjection or r aise the issue ag a i n a t any point at trial. Also, on appeal Shaheed has not c hallenged t he t rial c ourt’s evidentiary rulings or the adm issibility

of Dalton’s or Magee’s testim o ny . ¶16. “[ U]nobjected-to hearsay evidence, once received by the c o urt a nd pre s ented to the jury , becom es c om

petent evidence and m ay aid in supporting a v erdict the s am e as any other

com petent evidence.” Veal v. State , 585 So. 2d 693, 6 97 (Miss. 1 991). “Hearsay e vidence, where adm i tted without objection, m ay properly be considered a n d g i v e n its natural and logical probative ef

f ect, as if it were in law com petent evidence. Hearsay evidence adm itted

6without objection m ay be regarded as suf f icient to establish a f

act in controversy .” Burns v. State , 438 So. 2d 1 347, 1350 (Miss. 1983) (quoting Citizens Bank of Hattiesburg v. Miller , 194 Miss. 557, 566, 11 So. 2d 457, 459 (1943)) (brackets, ellipsis om itted). T h e M cC o rm ick treatise o n ev id e n ce elab o r ates: If [ in ad m issib le] testim o n y is receiv ed w ith o u t o b

j ectio n , it b eco m es p a rt o f th e ev i d en ce in th e case an d i s u s ab le as p ro o f to th e ex ten t o f its r atio n al p ersu asiv e p o w er. T h e f

act th at it w as in ad m issib le d o es n o t p rev en t its u se a s p r o o f so f

ar as it h as p ro b ativ e v alu e . T h e in ad m i ssib le ev id en ce, u n o b j ected t o , m a y b e relied o n i n arg u m en t , a n d a lo n e o r in p a rt i t c a n su p p o rt a verd ict o r fin d in g
. A t th e tria l co u rt level, a p a r ty m a y rely o n th e evid en c e to d efea t a d irected verd ict m o t io n ; a n d o n a p p e a l , t h e p a rty m a

y u se th e evid en ce to u p h o l d t h e leg a l su

fficien c y o f th e evid

en ce to su

p p o rt a ju d g m en t. T h is p rin cip le i s alm o s t u n iv ersally accep ted

. . . . [ T h i s p r in cip le] is m o st o f ten in v o k ed w ith resp ect to h earsay . . . . M cC o rm ick o n E vid

e n ce § 5 4 ( K e n n e th S

. B ro u n ed

. 7 th ed

. 2 0 1 3 ) ( em p h a sis ad d ed ; f o o t n o tes o m itted )

. ¶17. In general—and subject t o num erous exceptions—hearsay is inadm i ssible because it is unsworn, because the declarant cannot be c r oss-exam ined, and/or because the jury cannot observe the decl a r a n t ’s dem e anor to assess his o r her truthf u lness or reliability

. These are all i ssues related to the trustworthiness or reliability o f hears a y . See Parham W illiam s, W illiams on Mississippi E v i d e n c e § 8 .01 (2016). Hearsay is not excluded because it is irrelevant or lacks probative value. If that were the case, hearsay would be excluded under Mississippi Rules of Evidence 401 and 402, and the “hearsay rule” would be unnecessary . Rather, hearsay m ay have probative v alue, and once it i s adm itted w ithout o bjection, the jury —not a review i n g court—m ust decide what w eight to give it. See C h ambers v. State , 711 S.W .2d 240, 246 (Tex. C rim

. App. 1986). “W hen a c r im inal c ase is t ried to a jury , the

7m em

bers of the j u ry act as the f inders of f

a c t” “and decide

. . . what weight t o give to any particular piece of evidence.” Brown v. S tate , 764 S o. 2d 463, 4 6 7 (¶9) ( Miss. Ct. App. 2000). ¶18. Theref

ore, in this ca s e , t h e r e was com petent evidence bef

o re the jury that Shaheed approached Truss with his gun drawn and then s hot T r uss whi le Truss was b acking away with his hands raised i n an a ttem p t t o def use the argum ent. This was suf f icient to support the j ury ’s v erdict that S haheed m urdered Truss with deliberate design and not in self -def ense. See Miss. Code A nn. § 97-3-19(1)(a) (Supp. 2016) (“The killing of a hum an being without the authority o f law by any m e ans or in any m anner . . . [ w]hen done with d eliberate design

to ef f ect the death o f the person k illed, or of any hum an being, shall be f irst-degree m

urder

. . . .”). W hether we would have returned the s am e verdict on the evidence presented is not the relevant question at th i s stage; rather, viewing the evidence in the light m ost f avorable

to the verdict, the only issues are w hether there w as suf f icient evidence f

or a r ational trier of
f act t o h ave returned the verdict and whether the trial judge abused her discretion by ruling that the verdict w as not contrary to the overwhelm ing weight of the e v idence. Based on the testim o ny discussed above, t here w as suf f icient e vidence to support the verdict, and the trial judge did not abuse her discretion by deny ing Shaheed’s m otion f or a new trial. ¶19. T h e d i s s ent 1 argues t hat the trial judge com m itted “plain e rror” by not sua spo n t e preventing Magee’s t estim ony about what Collins and Gardner told him

. O n that basis, the dissent would exclude Magee’s (and Dalton’s) testim o ny f rom consideration and hold that

1 T h e sep arate o p in io n is a d issen t as to th is issu e, so w e ref er to it as “th e d issen t.” 8the rem aining evidence is insuf f icient t o sustain Shaheed’s conviction f or f irst-degr ee

m urder. W e disagree with the dissent’s approach f or at least two reasons. ¶20. First, as n oted above, Shaheed did not m erely f ail to o bject to Magee’s testim ony ; his

own attorney e licited the incrim inating hearsay again on cross-exam i nation. 2 “[ A ] crim inal def endant who f

ails to object to evidence introduced by the State m a y still h a v e t h e issue reviewed on appeal f

or plain error. However, a criminal defend a n t w h o a

f firmatively introduces evidence himself may not then complain on appeal that he introduced that evidence. ” Pascagoula-Gautier S ch. Dist. v. Bd. of Supervisors of Jackson Cty. , No. 2014- CA-01774-SCT, 2016 W L 6125423, at *6 n.9 (Miss. Oct. 20, 2016) (em phasis added; citation om itted); s ee also Fleming v. S tate , 6 04 So. 2d 280, 289 (Miss. 1992) (“ It is axiom atic that a def

endant cannot com

plain o n appeal concerning e vidence that he him self brought out at trial.”); W illiam s, supra , at § 8.04. Thus, even under the plain error doctrine, Shaheed cannot com

plain of testim ony

that his own attorney

elicited.

2 O n cro ss-ex am in atio n , M ag ee testif ied as f o l lo w s: Q

. A n d y o u u sed th ese m ag ical w o rd s th at [ T r u s s ] t r i e d t o d e f u s e t h e situ atio n . Wh at d id h e d o to d ef u se it?
A

. Well, th ro u g h th e in v estig atio n it w a s learn ed t h at h e w as raisin g h is h an d s an d m o v in g aw ay

f ro m [ S h ah eed ]

. Q

. Wh o to ld y o u th at?
A

. It w as o n e o f

th e w itn esses w h o ad v ised

. Q

. Wh at w itn ess w as th at?
A

. M s. C o llin s. 9¶21. Second, “in o rder to d eterm ine if plain error has occurred, w e must determine if the

trial court has deviated f

rom a l egal rule , whether that error is plain, clear, or obvious, and whether the error has prejudiced the outcom e of the t rial.” Green v. State , 183 So. 3d 28, 31 (¶6) (Miss. 2016) ( em

p hasis added; brackets, quotation m arks om itted). N o “ l e g a l rule” requires a trial judge to exclude hearsay in t he absence of an objection. Trial j udges are not expected to strike or exclude h earsay sua sponte. W hether to object is a decision l ef t to the discretion of counsel, who m ay have strategic r easons f o r n ot o bjecting. The dissent’s approach w ould require a trial judge to insert herself i nto the role of c ounsel and sua sponte raise h earsay objections on the def endant’s behalf (or risk s u bsequent reversal based on

“ p l a i n e rror”). Because no “legal rule” requires t hat of a trial j udge, the judge in this c a s e

com m itted n o e rror—plain or otherwise—by not a c t i ng sua sponte to prevent or strike Magee’s testim ony . And taking into account Magee’s testim ony , there is suf f icient evidence to sustain the conviction.
II. Jury Instructions ¶22. W e review t he t r i a l c o urt’s grant or ref usal of jury instructions under an abuse-of

discreti o n s t a n d a r d

. Burleson v. State , 166 So. 3d 4 99, 509 (¶28) (Miss. 2015). “Jury instructions m

ust be read as a w h o l e t o d e term ine if they f airly announce the law.” Id. (quoting McInnis v. State , 61 S o. 3d 872, 875 (¶10) (Miss. 2011)). A trial court m ay ref use

a jury instruction where it “incorrectly states the law, is covered f airly elsewhere in the instructions, or is without f oundation i n the evidence.” Heidel v. S tate , 587 S o. 2d 835, 842 (Miss. 1991).

1 0¶23. On appeal, S haheed challenges the t rial court’s denial of two i nstructions. The f i rst, D-19, stated: The Court instructs the jury that a p erson is under n o duty to retreat and avoid the necessity of using deadly f orce where otherwise a h om icide i s com m itted in self -def ense. If y ou f ind f r om t h e e vidence that Ham i n Shaheed acted in self -def ense because he had reasonable grounds to f ear Truss

. . . and that [ he] believed t hat he would suf

f er great personal in

j ury and that there was im m inent danger of t he injury occurring then Ham in S haheed would have n o duty to retreat, whether he could have done so with saf ety or not. ¶24. The trial judge did not abuse her discretion by deny ing t h i s “ s t a n d y o u r ground” instruction. See Spi r e s v
. S t a t e , 10 So. 3d 477, 4 84 (¶30) (Miss. 2009). The Mississippi Suprem e Court and this Court have held that it is within the trial judge’s d iscretion to ref use

a “stand y our ground” instruction when the def e ndant’s own testim ony is that he h ad no t im e

or opportunity to retreat, and there is nothing in the evidence to s u ggest to a reasonable juror that the def

endant could have r etreated but did not do so. S ee i d. a t 485 ( ¶¶36-37); Thomas

v. S t a t e , 1 4 5 S o . 3d 687, 694-95 (¶¶27-32) (Miss. Ct. App. 2013). That is t he case here. Shaheed’s version was that he a nd Truss struggl e d ; t hat Truss broke f ree and im m ediately reached f or h i s pistol, which was in his waistband; and that he quickly s h ot Truss only to prevent Truss f

r om shooting him. T h e S t a t e ’s version was that Shaheed shot Truss in the head a s T russ backed away w ith his hands raised. Neither version or any other evidence in the record pointed to a n opportunity to retreat. Furtherm ore, other i nstructions adequately covered t he general rules of law pertaining to self -def e n se. Accordingly , the trial judge did

n o t a b u s e her discretion by deny i ng Shaheed’s prof f e r ed “stand y o ur ground” instruction

.

1 1See Spires , 10 So. 3d at 4 85 (¶¶36-37); Thomas , 145 So. 3d at 694-95 (¶¶27-32).

¶25. Shaheed also argues that the trial judge erred by deny ing D-21, which was based on the “castle doctrine,” codif i ed i n Mississippi Code Annotated section 97-3- 1 5 ( 3 ) (Supp. 2016). Shaheed’s proposed instruction D-21 stated:
Ham i n Shaheed’s act of killing Trinton Truss is justif iable if H am in Shaheed killed Trinton Truss while resisting T rinton Truss’s attem pt to unlawf

u lly k ill Ham i n Shaheed or to com m it a serious crim e against Ham in Shaheed and while Ham in Shaheed was in the im m ediate area of a dwelling.
Ham i n Shaheed is presum ed to have reasonably f eared deat h , g r eat bodily harm , or a serious crim e being com m itted a gainst him if Trinton Truss (1) was unlawf u lly and f orcibly e ntering; ( 2) had unlawf ully and f o rcibly entered; or (3) was remo v ing or had unlawf ully rem oved Ham in Shaheed f rom the im m e diate area of a dwelling. The p r e s u mption does not apply if Trinton Tr u s s had a r ight to be in the im m ediate area of a dwelling or if Ham in Shaheed was com m itting a crim inal act. ¶26. The trial judge did n o t a b u s e h e r d i s c r e t i o n in ref using this instruction because Shaheed w as not in the “im m ediate p r e mi s e s ” of a “dwelling” when he shot Truss. Miss. Code Ann. § 97-3-15(3). Gardner led Truss away f rom her f ront d oor, out of the a

partm ents’ breezeway , down a f

light o f s tairs, and around the corner of the apartm ent building bef ore they stopped to talk. Truss went with Gardner voluntari l y , a n d h e w as no longer in the “im m ediate prem ises” of a dwelling, so Shaheed was not entitled t o a c a stle doctrine instruction. ¶27. Shaheed argues that this case is analogous to W hite v. State , 127 S o. 3d 1 70, 176-77 (¶¶19-23) (Miss. 2013), in which the S uprem e Court held that a def endant was entitled to a castle doctrine instruction w hen she had been accosted next t o her car in a driveway that she shared only wit h her room m ates a nd the residents of an adjacent m obile hom e. However,

1 2W

hite is d istinguishable, a s Shaheed s hot Truss i n a com m o n area of a large apartm ent

com plex, down the stairs and around the corner f r om the apartm ent where he had spent the night. This area was not in the “im m ediate prem ises” of Gardner’s dwelling. ¶28. W e also note that the requested instruction was not supported b y the e vidence f or the additional reason t hat t here was no evidence that T russ unlawf ull y a n d f

o r cibly entered Gardner’s dwelling or its “im m ediate premi s e s . ” S ee Miss. Code Ann. § 9 7-3-15(3). Gardner voluntarily

went outside to speak with Truss, and Truss voluntarily went with her down the stairs and around t he c orner. The altercation occurred only af ter Shaheed lef

t the

a p a r t m e nt, walked down a f light of stairs and around the corner, and approached Tru s s . There is no evidence i n the record that T russ e ntered, or was in the process of entering, a dwelling unlawf

ully and f o rcibly

. Accordingly , the trial judge did not abuse her discretion by deny i ng the requested instruction.
III. Sentence ¶29. On cross-appeal, the State argues that the circuit judge lacked authori t y t o partially suspend Shahe e d ’ s l i f

e sentence. 3 Shaheed was convicted of f i rst-degree m

urder, and “[ e]very person who shall be convicted of f irst-degree m

urder shall be sentenced b y the court
to im prisonm e nt f

or lif e in the custody of the Departm ent of Corrections.” M iss. C ode Ann. § 97-3-21(1) (Rev. 2014). A circuit court has the authority “to suspend t h e i mp o s ition or execution of [ a crim inal] sen t e n c e ” “ e x c e pt i n a case where a d eath sentence or life

3 If th e d e f

e n d an t a p p eals h is co n v ictio n , th e S tate m a y f ile a c r o ss-ap p eal raisin g alleg ed erro rs in th e im

p o sitio n o f h is sen t en ce. S ee M iss. C o d e A n n . § 9 9 -3 5 -1 0 3 (c) (R ev . 2 0 1 5 ); P o o l

v. S ta te , 7 2 4 S o . 2 d 1 0 4 4 , 1 0 4 8

- 4 9 (¶¶2 3

- 2 7 ) (M iss. C t. A p p . 1 9 9 8 ). 1 3imprisonment is the maximum penalty which may be imposed .” M iss. C ode A nn. § 47-7-

33(1) (Rev. 2015) (em

phasis added). Since lif

e im prisonm ent is the a

pplicable sentence f

or f irst-degree m

urder, the c ircuit court h ad no authority to suspend any part of Shaheed’s lif e
sentence. See Hayes v. State , 887 So. 2d 184, 186 (¶6) (Miss. Ct. App. 2004); Marshall v. Cabana , 8 35 F.2d 1101, 1103 (5th Cir. 1988); Miss. Att’y Gen. Op., 2000-0239, 2000 W L 799997 (May 5, 2000). Accordingly , the circuit court e x ceeded its authority by s u spending all but twenty y ears of Shaheed’s lif e sentence. W e vacate Shaheed’s sentence and rem and the case f or the circuit court to im

pose the sentence required by law.
CONCLUSION ¶30. There is suf

f icient evidence to support S haheed’s conviction, the jury ’s verdict is not against t he overwhelm ing weight of the evidence, and the trial judge did no t abuse her discretion in deny ing the “stand y our ground” and castle d octrine i nstructions that Shaheed requested. Accordingly , Shaheed’s conviction is af f irm ed. T he t rial jud g e d i d err by partially suspending Shaheed’s lif e sentence. Accord i n g l y , we vacate Shaheed’s sentence and rem and t h e c a s e f

o r t h e circuit court to i m pose a lif e sentence with no part of the sentence suspended. ¶31. T H E J U D G M E N T O F THE H I NDS C OUNTY CIRCUIT COURT , F I R S T JUDICIAL DISTRICT, O F C ONVICTION OF FIRST-DEGREE MURDER IS AFFIRMED. THE SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORREC TIONS WITH ALL BUT TWENTY YEARS SUSPENDED IS VACATED, AND THIS C A SE IS REMAND ED FOR RESENTENCING CONSISTENT WITH THIS OPI N I ON. ALL COSTS O F THIS APPEAL ARE ASSESSED TO HINDS COUNTY. GRIFFIS, P.J., BARNES, ISHEE, CARLTON AND G R E E N LEE, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND I N THE R ESULT WITHOUT

1 4SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PA R T A N D

DISSENTS IN PART WITH S EPARATE WRITTEN OPINION, JOINED BY LEE, C.J., AND FAIR, J. JAMES, J., CONCURRING IN PART AND DISSENTING IN PART: ¶32. Because I disagree w ith t he m ajority that u ncorroborated hearsay is legally suf f icient evidence to support a m

urder conviction, I respectf ully dissent f

rom the m a jority ’s f inding that t he evidence supporting th e m u rder conviction is legally suf f icient. I agree with the

m ajority ’s con c l u s i o n and analy sis as to the jury instructions and the sentencing. I would

reverse the m

u rder c onviction, f

ind Shaheed g uilty of m anslaughter, a nd rem and the case to the trial court f

or resentencing. ¶33. To convict Shaheed of m u rder, the State had to prove that Shaheed ( 1) killed T russ (2) “without authority of law” (3) “w i t h d e l i b erate design to e f f ect” Truss’s death. Miss. Code Ann. § 97-3-19(1)(a) (Supp. 2016). The evidence at trial was insuf f icient to s how that Shaheed d eliberately d e s i gned Truss’s death. Shaheed’s indictm ent f or m u rder, however, served as notice of t he lesser-included of f ense o f m anslaughter. Id. § 97-3-19(3). To prove

m anslaughter, the State had to show that Sh a h e e d (1) killed Truss (2) w ithout m alice (3) “under the bona f

ide belief , b ut without reasonable cause theref or, t hat i t w as necessary f or him to do so in order to prevent [ Truss] f rom inf licting death or great bodily harm upon him .” Bolton v. State , 87 So. 3 d 1 129, 1133 (¶14) (Miss. Ct. App. 2 0 1 2 ); Miss. Code Ann. §§ 97-3-35, -47 (Rev. 2014). Because the evidence is legally suf f icient to support a conviction of m anslaughter, I would f

ind Shaheed guilty

of m anslaughter. ¶34. The M ississippi Supr e me C o u r t , in Bush v. State , 895 So. 2 d 8 36, 843 (¶16) (Miss.

1 52005), detailed the a ppellate courts’ review of a question of the suf f iciency o f the evidence: [ T]he c ritical i nquiry is whether t he evidence shows “bey ond a r easonable doubt that [ the] accused com m itted the act charged, and that he did s o under such circum s tan ces that every elem ent of the of f ense existed; and where the evidence f

a ils to m eet this test it is insuf f icient to support a conviction.” However, this inquiry

does not require a court to “ask itself whether it believes t h a t t h e evidence at the trial established guilt bey ond a reasonable doubt.” I n s tead, the relevant q uestion is whether, af

t e r v i e w ing the evidence in the light m o s t f

avorable to the p rosecution, any rational trier of f act could have f

ound the es s e n t ial elem ents of the crim e bey ond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 315, (1979) (citations om itted) (em p hasis in original). Should the f acts and inf

erences considered in a challenge to the suf f iciency of the evidence “point in f avor of t he d ef

endant on any elem ent of the of f ense with s uf

f icient f orce that reasonable m en could n o t have f ound bey ond a reasonable doubt that the def endant was g uilty , ” the proper rem edy is f or the appellate court to reverse and render. Edwards v
. State , 469 So. 2d 68, 70 (Miss. 1985) (citing May v. State , 460 So. 2d 778, 7 81 (Miss. 1984)); However, if a review of the evidence reveals t hat it is of such quali ty and weight that, “having in m ind the b e y o n d a reasonable doubt burden of proof standard, rea s o n a ble f

air-m inded m en in the exercise of im partial j udgm ent m ight reach dif

f erent conclusions on every ele me n t of the of f e nse,” the evidence will be deem ed to have been suf f icient. Edwards , 469 S o. 2d at 70. (Citations om itted).
MURDER ¶35. Because t here w as insuf f i cien t e v i d e n ce presented at trial to support the intent elem ent of m urder, the evidence is legally insuf f icient to support a conviction o f m u r d e r . A t trial, three ey ewitn e sses testif

ied: Shaheed, Gardner, a nd Collins. None of the uncontradicted
ey ewitness t estim ony d em onstrated that Shaheed deliberately designed Truss’s m urder or intended to m

urder Truss. The rem aining evidence at the trial is also legally insuf f icient to

1 6support Shaheed’s m urder conviction. ¶36. S h a h e e d ’ s uncontradicted trial testim ony dem onstrates t hat he lacked t he intent to

m urder Truss. On direct exam ination, Shaheed testif ied: Q. And when y ou looked out the window, what did y ou see?
A. Truss was standing at the door with a pistol i n his hand and [ he] cocked the gun. Q. . . . [ D]id y ou and [ Gardner] decide to do any t hing?

. . . A. W ell, she stated that she knew who he was, a nd I told her, y ou know, go outside and handle the situation.

. . . . Q. W hat happened to m ake y ou go downstairs eventually ?
A. W ell, while I’m i n the room , I hear a bunch of y elling c o ming f rom a m a le. And I look o ut the window, and I can’t—y ou know, I couldn’t see her or him out o f the bedroom w i n dow. And I go to l iving room window, I couldn’t see [ ]either of them , s o that’s when I went outside.

. . . . Q. And at the time t h a t y o u went down, w e r e y ou under the im pression that [ t he situation] was being def used?
A. It was actually

looking rough when I got down there. Q. . . . [ C]an y ou tell us . . . what y ou m ean by that?
A. W ell, he was—see, I don’t know what t hey were arguing about, but he was in her f

a ce an d scream ing and y e lling, y ou know. That’s when I approached and asked him what was going on. . . . Q. You didn’t have any intention o f doing a n y thing to Mr. T russ when y ou went downstairs, did y ou?
A. No, sir.

1 7. . . .

Q. Wh y d i d y ou t ake y our gun downstairs instead of walking dow n without y our gun?
A. B e c a u s e I [ h ad] s een [ that] he had a gun, and h e[ ] [ was] also a rm ed with a gun. Q. He had a gun and cocked it?
A. He had a gun and cocked it.

. . . . Q. And what did y ou do once y ou walked up to them ?
A. I . . . ask[ ed] what was going on.

. . . . A.

. . . I was like, “W hat’s going on? ” [ Truss] said, “Ain’t shit going on, m y nigga. W hat’s up[ ? ]” . . . Q. And what happened af ter that?
A. That’s when I—well, by this t i m e I done m et u p with him , a nd he attem pted to reach f

or his pistol. Q. And what did y ou do?
A. I grabbed at it. Q. And y ou grabbed at it f or what reason?
A. To p revent him f

rom com ing up with i t. I know he loaded it at the door.

. . . . A. I was really

try ing to prevent him

f rom com ing up and shooting m e.

. . . .

1 8Q.

. . . W ere y ou able to actually grab the gun, or the area where he had the gun at?
A. Yes, sir. Q. And what happened af ter y o u grabbed it?
A. W ell, he p ushed [ Gardner] out [ of ] t he way and broke loose, and that’s when I cam e up and started shooting. Q. . . . And when he broke loose, did he do any thing?
A. W ell, he attem

pted to com e up with his pistol. Shaheed also testif

ied on r e direct exam ination that Gardner had taken the only phone in the apartm ent with her when she conf ronted Truss. ¶37. B a s e d o n t h i s t estim ony , I would f ind that t he evidence is legally insuf f icient t o support Shaheed’s m

u rder conviction. Shaheed’s testim ony shows that Shaheed attem pted

to a void the conf

lict. He sent Gardner out to def use the situation. He only joined Truss and Gardner outside af

ter he heard a m an y elling a nd was unable to see either of them f rom the apartm ent. Plus, Shaheed did n ot have a readily availab le m eans to contact the police as Gardner h ad taken the p hone with her. In addition, Shaheed k new that Truss was a rm ed af ter Truss had cocked his gun at the apartm ent door. Because Shaheed testif ied that he did not know w hat G ardner and Truss were arguing a bout, the evidence showed that Shaheed did not
engage Truss as a jealous b o y f riend with intent to m

urder. Instead, the re c o rd s h ows that Shaheed a

pproached Truss out o f a con c ern f or Gardner’s saf

ety

. Further, the record also shows that Shaheed did not shoot Truss until af t er he had attem

pted to prevent Truss f

rom pulling his weapon. Shaheed’s testim ony shows that S haheed did not intend to m urder Truss.

1 9¶38. Gardner’s testim ony supports t his conclusion and dem onstrates that t he ev i dence is

legally insuf

f icient to support Shaheed’s m urder conviction. Gardner testif ied: Q. [ W e]re y ou able to [ keep Shaheed f rom answering the door]?
A. Yes, m a’am

. He told m e to go outside and handle the situation so the guy could leave. Q. And what did y ou do then?
A. Bef

ore getting to the door, I got nervous because I heard him

.

. . . . A.

. . . I p roceeded to go outside even though I heard Truss c o ck his gun. Q. So . . . y ou heard [ Truss] cock his gun?
A. Yes m a’am , I did.

. . . . Q. . . . [ W ]hat was [ T russ] doing?
A. He w as talking e rratic[ ly ].

. . Every tim e I’d tell h im t o leave, he’d tell m e to shut up, just constantly telling m e to shut up.

. . . . Q. W here did [ Shaheed] stop?
A. He walked up to where w e w e r e a t and asked, “Is there a problem ? W hat’s going on? Are y ou okay ? ”

. . . . A.

. . . T r

uss went to talking. I didn’t get a chance to respond to Shaheed. Q. Okay . And then what happened?
A. It was an altercation that occurred.

2 0. . . .

Q. W hat do y o u m e an by . . . altercation?
A. Truss

. . . was try ing to pull his gun and when Shahe e d noticed i t, he went to tussling with him telling him

not to pull his gun on him [ .] .

. . And once Shaheed lost a grip, I was pushed out [ o f ] the way

.

. . . . A.

. . . I [ had] seen [ Truss] try ing to p lace his hand over on his gun to p ull. He had a shirt on over the gun, but y ou could see the handle sticking out. ¶39. Viewing Shaheed and G ardner’s uncontradicted testim ony together, it is evident that the evidence is legally insuf f icient to support the m

urder c o n v i c tion. The evidence shows that Shaheed chose t o avoid conf lict wi t h T r

uss by sending Gardner out to d ef use the situation. Shaheed testif

ied that h e o n l y exited the apartm ent a f t er he could no longer see Gardner and heard a m an y elling outside. Shaheed also t estif ied that he brought h is gun with him since he had a lready seen Truss cock his o wn weapon. Once again, Shaheed stated that he asked, “W hat’s g oing on? ” instead of im m ediately a ttacking Truss. Shaheed also stated that it was only when Truss appeared to reach f or his gun that he s t r u ggled with Truss f or control of Truss’s weapon bef o r e shooting Truss. Thus, the testim ony showed that Shaheed did not intend to m

u rder Truss. ¶40. Collins’s testim ony largely supports both Shaheed a nd G ardner’s testim ony . Collins stated that when she stepped out of her apartm ent Shaheed and Truss were already f ighting. She testif ied, “I [ had] seen two guy s tussling. T he next thing I know, the other guy pulled his hand up and the other guy shot him .” Collins stated that Truss did not have a gun, but,

2 1according to her t estim ony , she only saw the two m en o nce the f ight had begun. Collins’s testim o ny does not dem onstrate that Shaheed intended to m urder Truss. ¶41. Bey ond the ey e witnesses’ testim ony at t rial, the testim o n y o f the investigating of f icers does not dem onstrate that Shaheed intended to m urder Truss. Of

f icer Buf kin testif ied that the weapon recovered f

rom Truss’s body was “locked and loaded, ready to go.” In addition, Buf kin, o n cross-exam ination, noted that the w eapon was “stuck down in the f ront of [ T r u ss’s] pants.” Of

f icer W ells testif

ied s im ilarly that Truss’s weapon was f ound “in between his legs.” Buf

k i n and W ells’s testim ony does not contradict S haheed or Gardner’s testim o ny . A lso, the f

a c t that the weapon was f ound a f t er the f ight “in between [ Truss’s] legs” r econciles Collins’s t estim ony that Truss d id not have a gun. It also lends credence to the testim ony that Shaheed, initially , attem pted to gain control of Truss’s weapon. Wh ile Of f icer Magee testif

ied that h i s i n v e s tigation revealed that T russ raised h is hands and retreated f

rom Shaheed, h i s t estim ony was based on Collins’s a c count. Collins’s testim ony did not p rove Shaheed’s intent t o mu r d e r either as s he only t estif ied that Truss “ pulled his hand up.” Othe r t e s t i mo n y and evidence w as given at trial, but n one of the evidence contradicted Shaheed and Gardner’s testim ony , which showed that Shaheed did not intend

to m urder Truss. ¶42. Af ter the trial, the jury

was instructed on m

urder as f ollows: The Def e ndan t , Ham in Shaheed, h as been charged in the indictm ent with the of

f e nse of m urder. The Court instructs the jury that if y ou f i nd f rom the evidence in this case bey ond a reasonable doubt that:
1. Ham in Shaheed, o n or about Septem ber 15, 2013, i n the First Judicial District of

Hinds County , Mississippi;

2 22. Did w illf ully kill the said T rinton Truss, a hum an being, by shooting said person with a deadly weapon, to-wit a f irearm , and with a deliberate design to e f f ect the death of Trinton Truss, and f urther;
3. That H am in S haheed was n ot acting in necessary self -def ense; then y ou shall f

ind the Def

endant, Ham in Shaheed, Guilty of M urder.
If the State o f Mississippi h as f ailed to prove any one, or m ore, o[ f ] the above listed elem ents of deliberate design m urder bey ond a reasonable d o u b t , t hen y ou shall f

i n d t h e Def

endant not guilty of deliberate design m urder, [ and] continue y our deliberations to dete r mi n e i f the Def endant is guilty of m anslaughter. Here, the evidence f

ailed to show that Shaheed intended to kill Truss. The uncontradicted testim o ny showed that Shaheed a ttem pted to av o i d c o n fl i ct with Truss. The evidence showed

t h a t he heeded G ardner’s w arning to not a n swer t he door, sent Gardner o ut to d e f u s e t h e situation with Truss, and only lef t the apartm ent af

ter he heard y elling and could no longer

see Gardner. Shaheed also testif ied that he did not know what Gardner and Truss we r e arguing about, evidenced by the f a ct that he asked what was going on instead o f im m ediately attacking Truss. ¶43. C o n t r a r y t o t h e m ajority ’s f inding that the evidence is legally suf f icient due to the testim o ny of Of

f icer Magee, Magee’s testim ony relied on hearsay and is legally insuf f icient

to s u p p o rt Shaheed’s m

urder conviction. The m a j ority also r elies on Of

f icer Dalton’s testim o ny . H e a r s a y i s def ined as “a statem e nt that: (1) the d eclarant does n ot m ake while testif y ing at the current trial or h earing; and (2) a party of f ers i n evidence to p rove the truth of the m atter asserted in the statem ent.” M.R.E. 801(c).

2 3¶44. T h e t r i a l c ourt abused its discretion in overruling Shaheed’s hearsay obj e c t i o n t o

D a l t o n ’ s t estim ony . Birkhead v. State , 57 So. 3d 1 223, 1231 ( ¶29) (Miss. 2011). A f t e r Shaheed’s second hearsay objection to Dalton’s testim o ny was overruled, Dalton testif ied, “Shaheed said som ething to [ Truss], and [ T russ] was try ing to explain to h im with b oth hands in the air.

. . . And at that t im e , Shaheed s hot [ Truss] i n the head.” Dalton did n ot witness the shooting a nd relied on her i nvestig a tion a n d the alleged statem ents of Gardner t o arrive at this account of the s hooting. As such, Dalton’s testim ony , of f ered f or its truth, was hearsay , and the trial court abused its discretion in adm itting it. ¶45. W h ile adm itted at trial w ithout objection, I would also properly r eview and disregard Of f icer’s M agee’s testim ony under the plain-error doctrine

. Blunt v. State , 55 So. 3d 207,
211 ( ¶16) (Miss. Ct. App. 2011). In order to review “under the p lain-error doctrine,

. . . there [ m u st have been] an error in t he trial court[ ,] and that

. . . error [ m ust h a v e ] r e s u lted i n a

m anif est m iscarriage of justice.” Id

. (quotation om itted). 4 “ The plain error rule will only be applied when a def

endant’s s ubstantive or f

undam ental rights are af

f ected.” F lora v. State , 925 So. 2d 797, 811 (¶42) (Miss. 2006). ¶46. Here, O f

f icer Magee’s t e s t i mo ny was adm itted without objection but the testim ony itself constitutes h earsay . Bridgeforth v. State , 498 So. 2d 796, 800 (Miss. 1986) (“A witness

cannot testif

y to what he knows only by the s tatem ents of others.”). There is no dispute that

4 M ississip p i R u le o f E v id e n ce 1 0 3 (f ) states, “ A co u rt m ay tak e n o tice o f a p lain erro r af f ectin g a su b stan tial rig h t, ev en i f th e c laim o f erro r w as n o t p ro p erly p reserv e d .” S ee a lso M .R .E

. 1 0 3 (f

) cm t. (T h e ru le “ref

lects a p o licy to ad m in ister th e law f a i rly an d j u stly .”). Wh ile it is co rrect, as th e m aj o rity reco g n izes, th at “[ n ] o ‘leg al ru le’ req u i res a t rial j u d g e to ex clu d e h earsay in th e a b s e n ce o f an o b j ectio n ,” R u le 1 0 3 (f

) en ab les an y co u rt, in clu d i n g th is C o u rt, to r eco g n ize a p lain e rro r th a t a f f ects a p a rty ’s su b stan t iv e o r f u n d am en tal rig h ts. 2 4Of

f icer Magee d id not witness the shooting. His testim ony was a result of his investigation, i ncluding interviews with G ardner and Collins. At trial, Magee testif ied, “Duri n g t h i s altercation, m y investigation revealed that t he v ictim him self was try ing t o d ef use the situation while raising his hands and being advised t hat he didn’t wan t a n y p a r t o f the altercation.” 5 This testim ony was based on hearsay

. ¶47. The f

ailure of Shaheed’s counsel to objec t a n d t h e t r i a l c o urt’s adm ittance of the hearsay testim ony af

f ected Shaheed’s f

undam ental and substantial rights. The testim ony is the o nly evidence that Shaheed intended to m urder Truss. The testim ony a l s o af f ects Shaheed ’ s f

undam ental rights. As such, I would disregard this testim o ny a s hearsay that should not have been adm itted at trial. ¶48. In a ddition to our analy s is r egarding Magee and Dalton’s testim ony , I f urther disagree with the m a

jority that the of

f i c e r s ’ h e arsay testim ony is legally suf f icient to support Shaheed’s m

urder conviction. Magee and Dalton’s testim ony was t he only evidence in the record that supported the elem ent of intent, and, as uncorroborated hearsay evide n c e , it is legally insuf

f icient to support Shaheed’s conviction. ¶49. The m a

jority cites two Mississippi cases concerning u nobjected-to hearsay that I f ind

5 T h e m aj o rity arg u e s t h at b ecau se S h ah eed ’s atto r n ey cro ss-ex am in ed M ag ee co n cern i n g th e h earsay testim o n y , h e elicited th e testi mo n y a n d th e testim o n y can n o t b e rev iew ed u n d er th e p lain

- erro r d o ctrin e. T h ere is a d if f eren ce, h o w e v e r, in a p arty elicitin g h ears a y e v id en c e f

o r th e f irst tim e an d l ater co m

p lain in g ab o u t it o n ap p eal, an d a p arty cro ss-ex am in i n g a w itn ess ab o u t t estim o n y th at h ad alread y b een en tered in t o ev id en ce. S ee F l em in g v. S ta te , 6 0 4 S o . 2 d 2 8 0 , 2 8 9 ( M i ss. 1 9 9 2 ) (reco g n izin g th at th e in crim in atin g testim o n y w as “elicited b y th e d ef en se” w h ere n e ith er sid e h a d me n tio n ed th e ev id en ce b ef o r e th e d ef

en se b eg an its c ro ss-ex am in atio n ). H ere, t h e S t a te in tro d u ced t h e h earsay testim o n y o n d i rect ex am in atio n . S h ah eed sh o u ld n o t b e p en a lized f o r cro ss-ex am in i n g M ag ee co n cern in g h is testim o n y th at h ad alread y

b een in tro d u ced in to ev id en ce. 2 5unpersuasive. T he suprem e c o u r t , i n V e a l v. State , 585 So. 2 d 693, 697 (Miss. 1991), recognized unobjected-to hearsay testim ony as “com p etent evidence” but specif ically noted: “Fortunately , we do not f ace the question whether the verdict could stand on the [ hearsay ] testim o ny of seven-y ear-old B.A.H. and eleven-y ear-old B.M.H. alone. Their testim ony is corroborated in critical particulars by Veal’s conf e s s i o n . T h is evidence c onsidered in the aggregate, w e cannot say that the Court abused its discretion

. . . . ” H e r e , the m ajority incorrectly answered the question of wh e t h e r t he v erdict c an stand solely on the uncorroborated hearsay testim ony of M a g e e and D alton. Collins’s t estim ony that Truss “pulled his hand up” does n ot support either M a g e e ’ s testim ony that Truss “rais[ ed] his h a n d s ” or Dalton’s testim ony that Truss h ad “ both hands in t he air.” (Em phasis added)

. There is no other evidence in the record of Shaheed’s intent to m

urder Truss. ¶50. The s u

p r e m e c o u

r t a l s o c o r r e c t l y r e c o g n i z e d t

h a t u nobjected-to h earsay evidence “m a y properly be considered and given its natural and logical probative ef f ect, as if it w ere in law competent evidence .” Burns v. S tate , 438 S o. 2d 1347, 1350 (Miss. 1983) (em phasis added). 6
In Burns , though, the hearsay evidence was a record f rom the National Crim e Inf orm ation
Center (NCIC) that s howed that the vehicle the d ef endant was driving was stolen. Id. Additionally , the NCIC record bef ore t he Burns court was corroborated by other evidence: (1) the def

endant testif

ied, “I had an idea

. . . . [ t]hat I m essed up when I took her car,” and

6 I a l s o n o t e th at th e B u rn s co u rt cited C itizen s B a n k o f H a ttiesb u rg v
. M

iller , 1 9 4 M iss. 5 5 7 , 1 1 S o . 2 d 4 5 7 , 4 5 9 ( 1 9 4 3 ) , w h ich d ealt w i th h earsay e v id en ce th at w as co rro b o rated , lik e in V

ea l an d B u rn s . T h e M

iller co u rt w ro te, “[ S ] u ch [ h earsay ] testim o n y , w h en co n s id ered in co n n ectio n w ith [ th e w itn ess’s] p o s i tiv e [ n o n h earsay ] statem en t th at h er p u rp o rted sig n atu re w a s n o t g en u in e, w as su f

f icien t . . . .” 2 6(2) o ne o f the def e ndant’s closing argum ents was predicated on the f act that the vehicle was

s t o l e n . 7 Id. a t 1349-50. In contrast to t he NCIC record, the hearsay at i ssue h e r e i s uncorroborated t estim ony b y a witness who was not p resent during the s hooting. Here, again, there is no separate evidence to s upport the elem ent o f intent and no evidence to corroborate Magee or Dalton’s testim ony . ¶51. W h ile it is the role of jury to “decide

. . . w hat weight to g ive to any particular piece of evidence,” it is n ot the jury ’ s role to determi ne if uncorroborated hearsay evidence is legally suf

f icient t o support a m

urder conviction. Brown v. State , 7 64 So. 2d 463, 467 (¶9) (Miss. C t. App. 2000). The S tate had the burden to satisf y all three elem ents of the m urder charge. Shaheed stipulated to the f irst elem ent of m

urder , and there is legally suf f icient evidence to support the second elem ent. The record, however, is devoid o f any evidence that dem onstrates Shaheed’s i ntent to m urder Truss other t h a n t h e u ncorroborated hearsay testim o ny . Notably , as d i s c u s s e d above, both Gardner and Collins, the two e y e witnesses

7 T h e B u rn s C o u rt reco g n ized : T h ere is n o d o u b t ap p ellan t w as in p o ssessio n o f a s t o len au to m o b ile b ecau se in clo sin g arg u m en t h is atto rn ey stated , It is in ev id en c e an d w e d o n ’t d i sp u te it, h e h as g o t a co n v ictio n f o r arm ed ro b b ery , h e h as g o t a co n v ictio n f o r b u rg lary a n d larcen y an d h e w as d o w n h ere in a sto len ca r . A p p ellan t’s co u n sel f

u rth er stated : N o w , I in v ite t h e [ S ] tate to co m e u p h ere a n d tell y o u h o w i t is y o u are su p p o sed to b eliev e th a t h e k n ew th e stu f f w a s in th e tru n k , h e w as in a sto len ca r . B u rn s , 4 3 8 S o . 2 d at 1 3 5 0 (em p h asis ad d ed ).

2 7w h om the of f icers i nterviewed, also testif ied at trial and neither of their a ccounts supports the of f icers’ testim o ny . 8 Th u s , t h e evidence i s legally insuf f icient t o show that Shaheed intended to m

urder Truss.
MANSLAUGHTER ¶52. W h ile the e vidence is legally insuf f i cient t o support the jury ’s verdict of m urder, that

sam e evidence is legally

suf f icient to f ind S haheed guilty of m a nslaughter. W ade v. State , 748 So. 2d 771, 774 (¶¶9-10) (Miss. 1999). ¶53. Here, the State’s instruction S-5 explained the elem ents of m anslaughter. During the jury -instructions conf

erence, the judge, with agreem ent of counsel, a m ended S-5 to include a ref erence to self

-def ense. The judge instructed the jury on m anslaughter as f

ollows: The Court instructs the jury that i f y ou unanim ously f i nd that the State has f ailed to prove all of the el e me n t s of the crim e o f m urder, y ou m ay t hen proceed in y our deliberations to consider the lesser charge of m a nslaughter. However, i t is y our duty to accept the law given to y ou b y the Court. And if the f

a cts [ and] the law warrant a conviction of the crim e o f m urder, then it is y ou duty to m ake such f inding a nd not be inf

luenced by y our p ower to f ind a lesser of

f ense. This p rovision is not designed to relieve y ou f ro m perf o rm ance of an u n p l e a s a n t d

uty

. It is included to prevent a f ailure o f justice if the evidence f ails t o p r ove the original charge, but does justif y a verdict in the lesser crim e. The C o u r t i n s tructs the jury t hat if a person kills another under the actual bona f

ide belief t h a t s u c h a killing is necessary i n order to protect him self f r om great bodily harm or death, but that such belief is n ot r easonable under the c ircum stances, then there’s no m alice af ore t h o u g ht and the killing is not m urder, but at m ost is the crim e of m anslaughter.

8 F ro m th e tran scrip t o f D alto n ’s t esti mo n y , i t ap p ears th at sh e o n ly in terv iew ed G a rd n er, n o t C o llin s. 2 8Theref o re, if y ou f

ind f r om the evidence in t his c ase that on Septem ber the 15th, 2013[ ,] the def

endant did shoot a n d take the lif e o f Trinton Truss acting on his actual bona f i de belief that such action w as necessary to protect him self f rom great bodily harm or d eath at the hands of Trinton Truss, but t hat such belief by the def

endant was not reasonable under the circum stances, t hen y ou m ay f i nd the def

endant guilty

of t he lesser of

f ense of m anslaughter.
I f , h owever, y o u f

ind f rom the evidence in this case that o n o r a b o u t Septem ber the 15th, 2013[ ,] t he def e n d a n t d id shoot and take the lif e of Trinton Truss actin g o n h i s actual bona f ide belief that such action was necessary t o protect him self f rom great bodily h arm or death at the h an ds of Trinton T russ, a nd y o u f urther f ind that such belief by the def e n dant was reasonable under the circum stances, then y ou m a y f ind the def

e n dant acted in sel f

- d e f e n s e , and he is not g uilty of the lesser included of f ense of m anslaughter, nor m

u rder. Thus, the jury w as instructed on m urder a nd was a l so instructed on m anslaughter and self -def e nse. ¶54. Because of this instruction and the te s t i mo n y g i v e n at trial, t he evidence is legally suf f i cient to support a conviction of m a nslaughter. Shaheed stipulated to the f act that he shot and k illed Tru s s, satisf

y ing the f

irst elem e nt of m anslaughter: killing Truss. S haheed’s testim o ny that he did not know what Gardner a nd Truss were arguing a b o u t is legally suf f i cient evidence to satisf

y t he s econd e lem ent of m anslaughter: w ithout m a lice. Further, there was leg a l l y s uf

f icient evidence satisf

y ing t he third elem ent of m anslaughter: acting under the unreasonable bona f ide belief t hat s elf

-def ense was necessary . Shaheed testif ied

to his belief f

o r the need of self

-def ense, but C o l l i n s claim ed t hat Truss did not have a
weapon. Further, G ardner, at o ne point in her t estim o ny , wavered as to whether sh e had actually s een Truss’s hand on his weapon at the beginning of the f ight. In light of

this, the evidence is legally suf

f icient to support a conviction of ma n slaughter. I, theref ore,

2 9respectf

ully dissent and would f

ind Shaheed guilty

of m anslaughter. LEE, C.J., AND FAIR, J., JOIN THIS OPINION.

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