IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01828-COA JERMAINE CRUMP APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/15/2015 TRIAL JUDGE: HON. SMITH MURPHEY COURT FROM W HICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF DELIBERATE-DESIGN MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED – 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES, CARLTON AND WESTBROOKS, JJ. BARNES, J., FOR THE COURT: ¶1. A jury f

ound Jerm aine C rum

p guilty of deliberate-design m u rder. Crum

p’s appellate counsel claim s the Yalobusha County Circuit Court, First Judic i a l District, e rred when it: (1 ) h e l d that Crum

p c ould not r epeat what the victim allegedly s a id shortly bef ore Crum p killed her; (2) allowed two law-enf orcem ent of

f i cers to provide lay

opinions as to whether the victim would hav e b e e n a t h r e a t to Crum p; and (3) held that the jury ’s verdict was notcontrary to the overwhelm ing weight of the evidence. Crump has also f iled a pro se supplem ental b rief

. He a rgues that: (4) the prosecution should n o t h a v e been allowed to introduce his recorded statem ent into evidence; (5) his retained trial counsel was inef f ective; and (6) the prosecution engaged in various f o rm s of m isconduct. Finding no reversible error, we af f irm the circuit court’s judgm ent. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. As of late 2012, Crum p and his m other, Mary C rum p, w ere t he joint owners of their

t h r e e - bedroom house near Cof f eeville, Mississippi. Four other people were tem porar i l y l i v i n g w ith them : Crum

p’s y ounger brother, Richard Crum p Jr.; Richard’s wif

e, Cr y s t a l Redm o nd Crum

p; a nd Richard a nd Cry s tal’s t w o y oung children. Crum p believed that Cry stal had been intentionally dam aging his clothes and com puter. T he record suggests that h e r etaliated by pouring water on Cry stal’s com puter. Crum

p’s problem s with Cry stal conti n u e d to e scalate as he u nsuccessf ully tried to have her evicted o r prosecuted m ultiple tim es. ¶3. It is u ndisputed that on Novem ber 2, 2012, Crum

p k illed Cry stal. A m ong other lawenf orcem ent of

f icers, Chief Deputy Jerry Ferguson of the Yalobusha County Sherif f ’s Departm ent was dispatched to Crum p’s house. Cry stal’s body was ly ing prone on the f ront porch. She had been shot num erous tim es, i ncluding three gunshot wounds to the head. Deputy Ferguson arrested Crum p, who directed him to the pistol that he had hidden inside

a “black m akeup-ty

pe b ag” t hat “was under a bunch o f s tuf f inside [ Mary ’s] closet.” Crum p

a l s o s h o w e d Deputy Ferguson a knif e on the f loor in the hall, and said it “was the kn i f e

2[ Cry stal] had.” Deputy Thom as W est f ound two loaded pistol m agazines in Crum p’s pocket, and two boxes of

pistol am m

unition in Crum

p’s car. ¶4. I n v estigator Bry an Sullivant of the Mississi p p i B u r e a u o f I n v e s t i g a t i o n s a l s o responded to the s cene. He noticed that Cry stal had b een wearing b right green latex gloves when s he died. Investigator S ullivant later tested Crum p’s h ands f

or g unshot r e s i d ue, but Crum p had washed his hands. However, Investigator Sullivant took sam ples f rom the knif

e in the hallway

. Those sam ples later tested positive f or gunshot residue. That evening, Crum p declined to give a statem ent to Investigator Sullivant. ¶5. By the n e xt m o rning, Crum p had changed h is m ind. Af ter detailing t he problem s he had been having with Cry stal, Crum p said that Cry stal had been standing outside his bedroom im m ediately bef

ore he chased her and killed her. He said Cry stal had been holding a knif e, but he could not rem em

ber which of her hands it was in. He also c o uld not r em em ber what she said bef

ore he killed her. Investigator Sullivant asked Crum p several t im es i f there were any thing strange about Cry stal’s h ands, but Crum p never m entioned the bright green latex gloves that Cry s tal had been wearing. ¶6. Crum

p adm itted that he shot Cry stal as s h e r a n f r o m h i m. He said that h e shot at Cry stal once a s she was running through the hall, and again as she was near the f ront door. By t hen, he d id not know whether Cry stal still had a knif e. W hen she opened the f ront door and f ell onto t he porch, he stood over her a nd shot her a f ew more t im es. Crum

p said that he had b e en aim ing at Cry stal’s b ack, but his s hots were hitting her in the h ead. Crum p denied that he had p icked up the knif e in the hall, but h e s aid that he kicked it a f t er he killed

3Cry stal.

¶7. During February 2013, Crum p was indicted and charged with m urder. His trial w a s substantially d elay e d by the q u e s t i o n of his m ental com petency

. Following a May 2013

m otion by Crum

p’s l a w y er, Crum

p was evaluated b y Dr. John Hutson, a clinical
psy c h ologist. In M a y 2014, Dr. Hutson recom m ended f u rther evaluation at the Mississippi State Hospital at W hitf

ield. ¶8. A f t e r C r u mp ’ s J u l y 2 014 initial evaluation at W hitf ield, psy chiatri s t D r . R e b McMichael and clinical a nd f orensic psy chologist Dr. Am anda Gugliano o pined that Crum p

was not com

petent t o p roceed to t r i a l

. C r um p was adm itted to W hitf ield f or f urther

e v a l uation. D uring Septem ber 2014, Dr. Gugliano again reported t hat Crum p was n o t

c o mpetent to proceed t o trial. She explained t hat Crum p appeared “to have a p e r s o n a l i t y disorder with paranoid and schizoty pal f eatures.” C r u m

p’s evaluation and t reatm ent continued at W h itf

ield. ¶9. In January 2015, Dr. McMichael subm itted a f ollow-up report that Crum p was able

to consult with his lawy er. Dr. McMichael f urther opined that C rum p w ould have understood “the nature a nd quality of his alleged acts” and “he would h ave known [ they were]

. . . w rong.” Af

ter c onducting a com

petency hearing, the circuit court h eld that Crum p

was com petent to stand trial. ¶10. Crum

p’s three-day t rial began on April 13, 2015. The p rosecuti o n c a l led six witnesses during its case-in-chief

. Asia Gunn testif

ied t hat she w as nine y ears old when Crum p killed Cry stal. Asia w as in t he hom e that day , because Cry stal had been giving her a p erm . W hile

4sitting in t he living room , Asia saw C rum p shooting at Cry s tal as h e ch a s e d h e r down the hall, and a gain as he stood over her on the porch. Asia never saw Cry stal with a knif e, and she never saw a knif

e in the hallway

. ¶11. Deputy Ferguson, Deputy W est, and I nvestigator Sullivant a ll testif ied regarding their participation in the investigation. Dr. Erin Barnhart, a f orensic pathologist, testif

ied that she perf orm ed Cry stal’s autopsy , and Cry stal had three gunshot w o unds to t he back of her head,

one to the side of her torso, one i n her right h ip, and one i n her right arm . Jacob Burchf ield,

a n e x p e r t witness em

ploy ed b y t he Mississippi Crim e Laboratory , testif ied that gunsho t residue was on the sam

ple that Investigator Sullivant collected f r om the knif e. ¶12. Crum

p participated s ignif

icantly durin g h i s c ase. He vigorously disagreed with his lawy er’s desire to present an insanity def ense. Instead, Crum

p insisted that h e had acted in self -def e nse. ¶13. Crum

p dem a nded that his lawy er call David Earl Hoop as a witness. Initially , Hoop did not know any

thing a bout the case. W hen Crum p r e-called him later, Hoop rem em bered that Cry stal h ad taken her vehicle to his shop, and he f ound sugar i n Cry stal’s gas tank. Hoop testif i ed that Cry stal was “ real m ad” when she lef t his s hop. At Crum

p’s insistence, his lawy e r a l s o c a l led Crum p ’s aunt, Ebonie Gunn, and his f ather, Richard Crum

p Sr., as witnesses. Neither of

them knew any

thing about the shooting. ¶14. Crum

p’s m o t h e r , M a r y , t e stif ied about the living arrangem ents and Crum p’s problem s with Cry sta l , but Mary was not at hom e when C rum p killed Cry stal. During a phone conversation on the day o f the shooting, Cry stal told M ary that she thought Crum p had put

5sugar in her gas t ank. 1 Mary asked Cry stal to “let it go” because C ry stal and C rum p ’s brother planned to m ove out of the h ouse soon. M ary also testif i ed that Crum

p “got m ore intense”
every tim e he unsuccessf

ully tried to get Cry stal out of the house. ¶15. Against h is lawy er’s a dvice, Crum p chose t o testif

y . H e s a i d t h a t on the day of the shooting, he heard Cry stal talking on the phone with som e one. “[ F]rom that conversation, [ he] f elt like [ h i s] l if

e was in danger”; so he “got the [ pistol] m agazi n e a n d

. . . p r e pared [ him ]self f

or any bad altercation o r whatever the case m ay b e.” 2 According to Crum p, Cry stal said “[ g ] u e s s w h a t ” as she stood outside his door. B e cause of the prosecution’s hearsay objection, Crum p was not allowed t o elaborate about what Cry s ta l h ad said. Although Crum

p becam e f

r ustrated by the circuit court’s d ecision, he was able to testif y that Cry stal was “highly upset,” a ngry , and “hitting stuf f .” He said t hat Cry stal had a knif e in her h a n d while she was standing o utside his door, and he f elt like his lif

e was i n d a n g e r . According to Crum

p, Cry stal “was talking about what she was going to do.” ¶16. Crum

p testif ied that Cry s tal ran f

rom him , and he “ran behind her.” Crum p said that Cry stal “was just getting in the den” when he “ s h o t h e r i n t he leg[ .]” 3 H e d id not know whether Cry stal still had the knif e, but he did n ot s ee “[ any ]thing drop[ .]” He t estif ied that

1 A cco rd in g to M ary , C ry stal su sp ected th at “tw o o r t h ree” p eo p le co u ld h av e p o u r ed su g ar i n h er g a s tan k

. C ry stal th o u g h t C ru m p w as resp o n s ib le f

o r it “b e c au se o f so m e m o re in cid en ces th a t h ad o ccu rred in th e h o u se.”

2 C ru m p b o u g h t th e p isto l ap p ro x i m a tely

a w e e k b ef

o re h e k illed C r

y stal.

3 P resu m ab ly , C ru m

p w as ref eren cin g w h at D r . B a r

n h art d escrib ed as th e g u n sh o t w o u n d to C ry stal’s “rig h t h i p /th ig h area.” T h ere w as n o ev id en ce th a t C r y stal su stain ed a g u n sh o t w o u n d to eith er leg

. 6he was not thinking rationally , and he could not c o ntrol his r esponse b ecause of his paranoid

schizophrenia. 4 He added t hat he “couldn’t stop shooting.” However, h e m aintained that he acted i n self

-def e nse. W hile Cry stal was ly ing on the porch, Crum p “just stood over her

. . . like a crazy m a n and just kept on shooting, and [ he] was f ixing t o go and reload and shoot

som e m ore u ntil [ he] caught [ him ] self

. . . .” During cross-exam ination, C rum p s a id that he did not know right f

rom wrong, and he could not stop him self

. H e added that he a cted in the heat of the m om ent, b ut af ter he started to think clearly , he realized t hat wha t h e h ad done was “very wrong, very bad.” ¶17. The prosecution called I nvestigator Sullivant during i ts rebuttal. During Investigator Sullivant’s rebuttal testim ony , the prosecution introduced Crum p’s recorded interview into

e vidence. As m entioned above, the jury f ound Crum

p guilty of m

urder. The circ u i t c o u r t

sen t e n c e d C r u m

p t o lif e in the custody o f the Mississippi Departm ent of Corrections. Following his unsuccessf ul posttrial m otions f

or a judgm ent notwithstanding the verdict or a new trial, Crum

p appeals. ¶18. As a p relim inary m a tter, we note that C rum p’s appellate c ounsel seeks to preserve any issue regarding Crum

p’s c om petence to stand trial. Af

ter the com

petency hearing, and a f

ew day s bef o re the trial, Crum

p ’s trial counsel p roduced a num ber of letters t hat Crum

p had given to h is f

ather. The letters were addressed to the circuit judge. Crum p’s lawy er unsuccessf

ully sought a continuance on the basis that t he content of the letters m i ght change

4 D u rin g C ru m

p ’s c o m p eten cy h ea r i n g , D r . G u g lian o o p i n ed th at C ru m p d id “n o t h av e sch izo p h ren ia . . . [ o r ] an y k in d o f m aj o r m en tal d i so rd er o r d ef ect.” D r. M cM ich ael said th at C ru m

p so m e tim es ch o se n o t to co m m u n i cate ratio n ally , an d c o m m u n icatio n w as d if f icu l t b ecau se o f

C ru m p ’s “p erso n ality

o rg an izatio n .” 7Dr. Gugliano’s a nd Dr. McMichael’s opinions t h a t C r u m p was com

petent. The record is silent regarding whether Dr. Gugliano or Dr. McMichael ever reviewed the letters. ¶19. Crum

p’s appellate counsel states that the record is i n a d e q u a t e f or him to argue that the circuit judge abused his discretion by deny i ng the request f o r a continuance, w h ich could also be c onstrued as a m otion to reconsider Crum p’s com petency

. However, counsel notes that Crum

p “participated extens i v e l y in his trial[ ,]

. . . there were num erous exchanges between Crum

p and t he [ c ircuit] judge [ that] a ppear c o n s i s t ent with the f inding of

com petency [ ,]” and C rum

p was apparently able to com m unicate with his pr ior attorney

. Thus, w hile counsel does not concede that Crum p was com

petent, “[ he] h as determ ined that the record bef

ore the court d oes not justif y raising an issue about Crum p’s c o m petency to

s tand t rial.” He requests “ that the com petency issue rem ain viable to raise if n ec e s s a r y ” through a m otion f

or postconvi c t i o n r e l i e f

. Crum p would have to obtain the Mississippi Suprem e Court’s leave to raise the issue in a m otion f o r p o s tconviction relief

. See Miss. Code Ann. § 9 9 -3 9 -7 (R ev . 2 0 1 5 ). A s su ch , w e d e clin e to co m m en t o n t h e su b j ect b ey o n d statin g co u n sel’s d esire to p r eserv e th e issu e . ANALYSIS
I. Ex c lusion of Crum p’s Hearsay Testim o ny ¶20. During direct exam i nation, Crum p attem p ted to t estif

y regarding w hat Cry s tal said to him as she was s tanding outside his door. Specif ically , Crum

p said, “I heard a conversation between

. . . m y m om and Cry s tal; and when I got i n the h ouse, Cry stal was a t the bookshelf and t hen she m oved all the way - - she m oved to the door, and the conversation was, ‘[ g]uess

8what[ .]’” The prosecution objected that Crum p’s testim ony was h earsay . The c ircuit court sustained the objection because Crum p was “repeating an out-of

- court statem ent.” Crum

p claim s the circuit court erred. An appellate court “reviews the trial c ourt’s adm issi o n or

e x c l u s i o n o f evidence f

o r abuse of discretion.” P auley v. State , 113 S o. 3d 557, 560 (¶3) (Miss. 2013). Additionally , “error m ay not b e predicated upon a r u l i n g w hich a dm its or exclude s e v i d e n c e unless a substantial right of the party is af f ected.” Id

. (quoting M.R.E. 103(a)). ¶21. Hearsay i s “a statem ent that

. . . (1) the declarant does not m ake while testif y ing at the

cur r e n t t r i a l o r hearing; and (2) a party of f e rs in evidence to prove the t ruth of the m atter

a s s e r t e d in the s tatem e nt.” M.R.E. 801(c). 5 Unless M ississippi law provides o therwise , hearsay is not adm issible. M.R.E. 802. According to C rum p, his excluded testim ony would

not have b een hearsay , b ecause i t would not have been o f f ered to prove the truth of the

m atter asserted. ¶22. First and f

orem ost, there was no prof f e r of Crum

p’s testim ony as to what C ry stal had said to him

bey o nd “[ g]uess what[ .]” “W hen testim ony is not allowed at trial, a record of the prof f ered t estim ony m

ust be m ade in order to preserve the point f or a ppeal.” McKenzie v. State , 119 So. 3d 1145, 1149 (¶9) (Miss. Ct. App. 2013) (quoting Green v. State , 89 So. 3d 543, 554 (¶28) (Miss. 2012)). Consequently , this issue is procedurally barred. ¶23. Procedural bar notwithstanding, we f ind that C rum

p ’s excluded testim ony would not

5 T h e M ississip p i R u les o f E v id en ce w ere r esty led in 2 0 1 6 “to m ak e th em m o re easily u n d ersto o d an d to m ak e sty le an d term in o lo g y co n sisten t th ro u g h o u t th e r u les.” M .R .E

. 8 0 1 ad v iso ry c o m m i ttee’s n o te. A lth o u g h w e q u o t e t h e m o st recen t v ersio n o f R u le 8 0 1 (c) an d o th er ru les o f

ev id en ce th r o u g h o u t th is o p in io n , th e ru l es rem a i n su b stan t ially th e sam e. 9have resulted in reversible error. It is true that “if the s ignif icance o f a statem ent is sim ply

t h a t it was m ade and there i s no issue about the truth of the m a t ter a sserted, t h e n t h e
statem ent is not hearsay .” Harrell v. State , 179 So. 3d 16, 20 (¶11) (Miss. Ct. App. 2014).
In Pauley , 113 So. 3d at 560 ( ¶3), a trial court sustained an o bjection w hen a def ense witness

was a s k e d whether the witness knew that the def endant had said that som eone h ad stolen

som e of his tools. On appeal, the Mississippi Suprem e Court held that trial court had erred because the statem ent w as not hearsay

. Id. at (¶4). The Suprem e C ourt explained that the testim o ny at issue in that case was not o f f ered t o prove that som eone h a d s t olen the def endant’s tools, “but rather that [ the def endant] had harbored the b elief that [ the person] had sto l e n his tools.” I

d

. However, the Suprem e Court went on to hold that the error was harm less because the excluded testim o ny was cum ulative. Id

. ¶24. As in Pauley , Crum p’s excluded testim ony w as of f ered t o p rove that he f

elt threatened by Cry stal. It w as not o f f e r e d t o prove that she said “[ g]uess w hat[ .]” Consequently , Crum p ’s excluded t estim ony was not hearsay

. However, Crum p was not p rejudiced by the exclusion of the testim ony at issue. Crum p testif ied that h e thought his “lif e was in danger.”
He also testif

ied that Cry stal had been “scream ing at [ him ] a b out what s h e [ w a s ] going to do.” The jury also heard his testim ony t hat Cry stal “was angry a n d talking about [ how] she [ was] tired of t his s tuf

f and what she [ was] . . . going to do

. . . .” I t i s also signif icant that, according to Crum

p, he ultim ately reacted because C ry stal had a knif e, and not b ased on what she said to him

. That is, Cr u mp t e s t if ied t hat Cry stal had “the knif e up, but she didn’t say nothing at that m om e nt. I reacte d o f f of her holding t he knif

e.” The jury a lso heard the

1 0recording of Crum p’s i nterview. Crum

p said that he heard Cry stal tell his m other t hat he had put sugar in h e r gas tank. He also said that Cry stal was standing outside of his door when she conf ronted h im with a knif

e, but h e did not rem em

b er exactly what s he h a d said when she was standing outside his door. ¶25. “A party m

ust do m ore than sim

ply show som e technical e rror has occurred bef ore he will be e ntitled t o a reversal on the exclusion or adm ission of evidence; there m ust be som e showing o f prejudice.” Pham v. State , 716 So. 2 d 1 100, 1 102 (¶12) (Miss. 1998). As the State correctly notes, in Gilbert v. State , 934 S o. 2d 330, 336 (¶18) (Miss. Ct. A pp. 2006), this Court held that h arm less error resulted when a trial court im properly excluded testim ony that did not qualif

y a s hearsay , but the witness still inf orm ed the jury that the victim was the initial aggressor. The sam e is t rue in t h i s c a s e . It was not necessary f o r C rum p to quote Cry stal in order f

or the j u r y t o u n d e rstand his claim that he killed h er in self -def ense. Accordingly , even if this issue were not procedurally barred, we would f ind t hat t he circuit court’s error was harm less.
II. Lay -Opinion Testim ony ¶26. Over Crum

p’s objection, Deputy Ferguso n t e stif ied that based on his experience as

a l aw-enf orcem ent of

f i cer, nothing at the scene i ndicated t hat C ry stal had b een assault i n g Crum p . He also testif

i ed over objection that n othing a t t he scene suggested that Cry stal

c ould have harm e d Crum p or that she was an im m i nent threat to h im

. W h en aske d t o elaborate o n cross-exam ination, Deputy Ferguson e xplained that Crum p’s body “was l[ y ing] outside the house and apparently had been shot o utside the house[ , a n d] there was no weapon

1 1around the body .”

¶27. Later during c ross-exam ination, Deputy Ferguson was asked whether his testim ony would be dif

f erent if Cry stal had been attem pting to attack Crum

p w ith the k

nif e recovered in the hallway

. Deputy Ferguson responded: “She was f ound outside t he house, and that’s where she was shot. The k nif e was f ound i n the hallway .” Crum p’s lawy er then asked the f ollowing question:
W e ll, let’s take this f

or insta n c e a step f

urther. Let’s say that b ef ore she l ef

t the house or whatever reason she lef t im m ediately , that she did have the k nif e a nd that she was approaching him o r threatening him , wouldn’t tha t e x p l a i n som ething as to possibly

why she was shot if that w[ ere] the case? Deputy Ferguson answered, “If t hat w[ er e ] the case.” During redirect, Deputy Ferguson testif i ed over objection that because the knif e was approxim ately

thirty f eet f rom Cry stal’s body , s he could not have been threatening Crum p with the knif

e while she was ly ing on the porch. ¶28. W h en Agent Sullivant testif ied, the prosecution asked him i f , based on his training, experience, personal observations, and Crum p’s statem e nt, there w as “any thing to indicate that Cry stal

. . . was a ssaulting Crum p[ .]” Crum

p’s l awy e r did not object, and Agent Sullivant responded, “N o . ” H is response was the sam e when asked without objection whether any

thing indicated that Cry stal had been a threat to Crum p. ¶29. On appeal, C r u mp c l a i m s that the testim onies discussed above w ere im proper lay opinions. He notes that neither witness was tendered as an expert in crim e-scene reconstruction, a nd the questions at issue called f or opinions based on their e xperience. He f urther argues that there was no testim ony that their experience af f orded t hem any ability to

1 2discern w hat had happened by observing a crim e s cene af ter the f act. Finally , Crum

p asserts that the testim onies at issue were im perm issib l e b e c a

use the witnesses expressed opinions about the u l t i ma t e issue in the case – whether C rum p acted in reasonable self -def ense. Crum p did not object to Agent Sullivant’s testim o ny . He is procedurally barred f r om raising

an i s s u e a b o u t i t f

or the f irst tim e on appeal. W

illie v
. State , 204 So. 3d 1268, 1274 (¶13) (Miss. 2016) (citing M.R.E. 103(a)(1)). ¶30. Deputy Ferguson did n o t testif y as an expert witness. That does not necessarily m ean he was prohibited f

rom of f ering opinion testim ony , because his unique qualif ication as a lawenf orcem ent of

f icer does not prevent him f rom expressing c e r t a i n opinions. See Heflin v. M e r r i l l , 154 S o. 3 d 8 57, 863 (¶25) (Miss. 2014). As a lay witness, he c o uld express an y opinion that was rationally based on his perception, but only i f it helped t he jury understand his testim ony or determ ine a f act in issue. See M.R.E. 701(a)-(b). However, as a lay witness, he could not express an opinion t hat would require calling upon “ e xperience or expertise bey ond that of [ an] average, random ly selected adult[ .]” See Collins v. State , 172 So. 3d 724, 739 (¶16) (Miss. 2015). A lay witness’s opinion testim ony cannot be “based on scientif ic, technical, or other specialized knowledge . . . .” M.R.E. 701(c). ¶31. Viewed in f

ull context, Deputy Ferguson testif ied that Cry stal had not been a threat

to Crum p when she was l y ing prone on the porch, and the nearest weapon – t he knif e in the hall – was appr o x i m a t e l y t hirty f eet away . The prosecution would not have been required

to qualif y Deputy Ferguson a s an expert witness bef ore h e c ould have testif

i ed regarding the distance between the knif e and C ry stal’s body

. It is necessary to note that Deputy Ferguson

1 3did not opine that Cry stal had never been a threat to Crum p. Likewise, he did not testif y that Crum p did not act in reasonably necessary self -def ense w hen he b egan shooting at Cry stal. See M .R.E. 704 ( “An opinion is n o t o b jectionable just b ecause it em b races an ultim ate issue.”). ¶32. Even so, there is no q uestion that the prosecutor phrased direct-exam ination questions

as though D e p uty Ferguson would have to rely on his experience a s a law-enf orcem ent of f icer to express an o pinion. By def inition, such a q

uestion does not c all f

or a l ay opinion. Seal v. Miller , 605 So. 2d 240, 244 ( M i s s . 1 9 9 2). W e m ust conclude that the circuit court erred w hen i t allowed Deputy Ferguson to of f er opinion testim ony in r esponse to a question that called f

or him to respond based on his experience as a law-enf orcem ent of

f icer. ¶33. The Mississippi Suprem e Court has recently reiterated t hat “because the public hold police of f icers in great trust, the p otential harm to the objecting party requires reversal where

a p olice of

f i cer gives expert testim ony without f i rst being qualif

ied as such.” Kirk v. State , 160 So. 3d 685, 6 93 (¶19) (Miss. 2015) (quoting Roberts v. Grafe A uto Co. , 7 01 So. 2d 1093, 1099 (Miss. 1997)). But i n Kirk , the Suprem e Court held that the issue had been waived due

to the lack of a n objection and at least in par t b ecause “def ense counsel interrogated [ the deputy ] not only i n an ef f ort to call i nto question [ the deputy ’s] e x pertise regarding strangulation, b u t also to adduce one of the def ense’s theories of the case, that the m arks on [ the victim ’s] neck h a d been self -inf licted.” Id

. at 694 (¶21). As discussed above, Crum p’s lawy er cross-exam ined Deputy Ferguson and asked him if his opinion would be dif f erent if im m ediately b ef

ore C rum p shot Cry stal, s h e had been threatening Crum p with the knif

e

1 4while she was standing outside his door.

¶34. M o r e s i g n i f

i cantly , in Kirk , the Suprem e Court did not reverse its prior decisions holding that harm l ess error resulted where a lay witness of f e red im proper testim ony that was

cum ulative because an expert witness testif ied to the sam e ef

f ect. See Le v. State , 913 So. 2d 913, 937 (¶80) (Miss. 2005) (overrul e d o n other g rounds by Bonds v. State , 138 So. 3d 914 , 9 1 9 ( ¶ 13) (Miss. 2014)); W alker v. State , 740 So. 2d 873, 882-83 (¶¶34-35) (Miss. 1999) (disagreed w ith on o ther g rounds by D ilworth v. State , 909 So. 2d 731, 735 n.4 (Miss. 2005)); W

hittington v
. State , 5 23 So. 2d 966, 9 74- 7 5 (Miss. 1988). A s m entioned above, Crum p objected to Deputy Ferguson’s testim ony that Cry stal was not a threat to Crum p while

s h e w a s l y i ng prone on the porch, and the k nif e was approxim ately thirty f eet a way . Dr

. Barnhart testif

ied that aside f

rom a “right[ -]to[

- ]lef

t” gunshot wound to Cry stal’s torso, all of C ry stal’s other f

ive g unshot wounds t raveled f rom “back to f

ront.” She also t estif

ied that

none of Cry stal’s wounds traveled f rom f ront t o b ack, and that Cry s tal would not have been

a threat to Crum

p af ter the f irst of three gunshot wounds to the back of t he head

. W hat is

m ore, a ny prejudicial ef f ect of Deputy Ferguson’s opinion testim ony was substantially

m itigated by Crum

p’s subsequent testim ony that he acted irrationally when h e killed Cry stal.
For t h e f o r e going reasons, we f

ind that any error i n a llowing the testim ony at issue is harm less.
III. Weight of the Evidence ¶35. Crum

p argues th a t the jury ’s verdict is contrary to the overwhelm ing weight of the evidence. He claim s that “[ t]he only conviction supported by the evidence i n this case is one

1 5f

or m anslaughter, either i n the heat of passion

. . . or f or w hat is r ef

erred to as im

perf ect self

def ense.” “W hen reviewing a denial of a m o tion f or a new trial b ased on a n objection to the weight of the evidence, w e will only disturb a verd i c t w hen it is s o c ontrary to the overwhelm ing w eig h t o f t he evidence t hat to allow it to stand would sanction an unconscionable injustice.” Shaheed v. State , 205 S o. 3d 1105, 1 109 (¶12) ( Miss. Ct. App. 2016) ( quoting Bush v. State , 895 So. 2 d 836, 843 (¶18) (Miss. 2005)). “The evidence should be viewed in the light m ost f avorable to the verdict, and we will af f irm unless the trial court abused its discretion in deny ing a new trial.” Id

. ¶36. “An unjustif

ied and unexcused t aking of lif e is presum ed t o be m

urder u n less there is evidence u

pon w hich a jury c an rationally justif y m i tigation down to m anslaughter.” Neal

v. State , 805 So. 2d 520, 525 ( ¶16) (Miss. 2002). Heat-of -passion m anslaughter a n d w h a t is known a s “im

perf ect self -def e nse” both derive f

rom Mississippi Code Annotated section 97-3-35 (Rev. 2 0 1 4 ). Cook v. State , 467 So. 2d 203, 207 (Miss. 1985) (citing W illiams v. State , 127 Miss. 851, 854, 90 So. 705, 706 (1921)). Heat of passion is “[ a] state of

violent and uncontrollable rage engendered by a blow or certain other provocation.” W ade v. State , 748 S o. 2d 77 1 , 7 76 (¶16) ( Miss. 1999). It also “requires t he absence of m alice.” Id

. at (¶15). L ikewise, one m

ust act w i t h o u t ma l i c e f

or a jury to f

ind that he or she acted in “im perf ect self -def ense.” Ronk v
. State , 172 So. 3d 1112, 1126 (¶22) (Miss. 2015) (“[ U]nder the theory of i m

perf ect self -def ense, ‘an intentional k illing m a y be considered m anslaughter if done without m alice b u t under a bona f ide (but unf

ounded) belief t hat it was necessary to prevent death or great bodily harm .’”).

1 6¶37. Malice is t h e e q u i v a l e n t o f “ d e l i b e r a t e d e s ign” – the “caref u l and unhurried consideration o f the consequences.” W a de , 748 So. 2 d a t 7 76 ( ¶15). A person can quickly f orm the deliberate design to k ill a person; “perhaps only m om e nts bef ore the act.” W

ilson

v. State , 936 So. 2d 357, 3 64 (¶18) (Miss. 2006). Deliberate design “m a y b e inf erred through the intention a l u s e of any instrum ent which, based o n its m anner of u se, is c a lculated to produce death or serious b o dily injury .” Brown v. State , 9 65 So. 2d 1023, 1030 ( ¶28) (Miss. 2007). Furtherm ore, “intent m ay be proven . . . by showing the acts of the person involved

at the tim e, and

. . . the circum stances surrounding the incident.” Boyd v. State , 977 So. 2d 329, 335 (¶23) (Miss. 2 0 0 8 ) (citation o m i tted). Ultim ately , intent i s “a question of f act gleaned by

the jury .” Id

. (quoting W heat v. State , 420 So. 2d 229, 238 (Miss. 1982)). ¶38. The jury heard testim ony that Crum p had unsuccessf

ully tried t o have Cry s tal evicted

or p rosecuted, and he becam e “m ore intense” each tim e he f ailed to have h er rem o ved f rom the hom e. Crum

p bought a pistol not long bef ore he killed Cry stal. Crum p t estif ied that af ter he heard Cry stal talking to his m other, he loaded the pistol because he was p reparing f or a conf rontation with Cry s tal. The jury certainly could have f ound that Cry stal’s anger due to the vandalism o f h e r c ar is not suf f icient p rovocation that will reduce m u rder to heat-of

passion m anslaughter. ¶39. There was conf

licting testim ony about whether Cry stal had a k nif e. But C rum

p never testif i ed that Cry stal advanced on him with a weapon or even threatened him . Instead, the undisputed proof was t hat Cry stal f led f rom him , and he pursued h er. It was reasonable f or the jury to con c l u d e t h a t Crum p could not h ave had a good-f a i th belief that Cry stal was a

1 7threat to him

. Moreover, the jury could h ave h eld that o n c e C r y stal turned and f led f rom Crum p , she was certainly not a threat. Crum p t estif ied that he did not know whether Cry stal had a knif

e while she was r

u nning f rom him

. Af

ter C ry s t a l f

e l l o n t h e porch with one or

m ore gunshot wounds, Crum p stood over her and continued to shoot h er. N one of Cry stal’s wounds traveled f

ront to back. Viewed in the light m ost f avorable to the jury ’s verdict, there

was e vidence that Crum

p acted with m alice. T his c onclusion d ef eats C r um p’s claim that the weight of the evidence supports a m anslaughter conviction based on either heat of passion

o r im perf ect self

- def ense. Because upholding t he jury ’s verdict would n ot sanction a n unconscionable injustice, we f ind no m erit to this issue. CRUMP’S PRO SE SUPPLEMENTAL BRIEF IV. Crum p’s Confession ¶40. According to Crum p , his conf

ession w as i nvoluntary

. He c la i ms t h a t i t w a s t h e product of

harassm e nt and coercion. He also claim s that authorities ignored his request to speak to a lawy er. This issue is procedurally barred because Crum p d id not raise i t and give the circuit judge an opportunity t o rule on it. S ee Glasper v. State , 9 14 S o. 2d 708, 7 21 (¶30) (Miss. 2005).
V. Effective Trial Counsel ¶41. Next, Crum

p claim s that his trial counsel was inef f ective. T h e p r e c i s e n ature of Crum p ’s allegations under this heading are som ewhat dif f icult to discern. H e i n i tially contends t hat his lawy e r was inef f ective because of “abuse o f discovery , a contract[ ,] and other vio lations u nder due process[ .]” But he does not elaborate regarding his “abuse of

1 8discovery ” claim

. Nor d oes h e explain how his trial counsel supposedly i n f ringed on his right to due process. Crum p’s allegation about a contract i s only slightly m ore developed. Crum p ’s f ather retained C rum

p’s trial counsel. Som etim e prior to the trial, Crum p’s f ather apparently gave him the im pression that his lawy er entered som e kind of an agreem ent with the district attorney

. Som e of t he letters t hat Cru mp wrote to the circuit judge c ontained sim ilar al l e g a t i o ns. D uring a hearing on a m otion f or a continuance, Crum

p brief ly

m entioned his belief that his lawy er and the district attorney h ad som e ty p e of c o n tract. Bey ond t he vague allegation of i ts existence, Crum p never explained what t he contract supposedly c oncerned. His supplem ental pro se brief provides no greater clarity

. That is, we are unable to determ i ne what contract Crum p ref e rences. ¶42. Crum

p also a rgues that his t rial counsel f ailed to present “letters and evidence of other def enses.” C rum

p does not explain what letters he ref erences, or why his l awy e r should have

attem pted to introduce them into evidence. Nor does Crum p explain what “other d ef enses” his trial counsel should have p r esented. W e note that the circuit j udge repeatedly told Crum p he was responsible f

o r deciding what def

ense to present. Crum

p’s trial counsel s o ught to raise an insanity

def e nse, but Crum

p vehem ently d isagreed.
W h ile this Court m a y

consider the m erits of

a claim of i nef f ective assistance of counsel raised f

or the f irst tim e on direct appea l , i t is unusual to do so because “we are lim ited to the trial court record i n our review o f t he claim and there is usually insuf

f icient evidence within the record to evaluate the claim .” Ragland v. State , 50 So. 3d 1041, 1044 (¶8) (Miss. Ct. App. 2010) (quoting W i lcher v. State , 863 So. 2d 776, 825 (¶171) (Miss. 2003)). The appropriate conclusion is usually “to deny relief , preserving the def

e ndant’s right to argue the sam e i ssue through a petition f or

1 9post-conviction relief .” Aguilar v. State , 847 So. 2d 871, 8 78 (¶17) (Miss. Ct. App. 2003) (citing Read v. State , 430 So. 2d 832, 837 ( Mi s s . 1 9 8 3)). W e will r each the m e rits on an inef f ective-assistance claim only in instances w here “( 1 ) the r ecord a f f i rm atively shows inef f ectiveness of c onsti tutional dim ensions, or (2) the parties stipulate t hat the record is adequ a t e to allow the appellate court to m a k e the f inding without consideration of the f indings of f

act of the trial judge.” W ilcher , 863 So. 2d at 8 25 (¶171). The State does not stipulate that the r ecord i s a dequate to review this issue. And we do not f ind that the record af f irm atively shows i nef

f e ctiveness o f constitutional dim ensions. If he chooses to do so, Crum p m ay r equest the Suprem e C o u r t ’ s l e a v e to r aise t hese claim s in a m otion f or postconviction relief

. S ee Miss. Code Ann. § 99-39-7.
VI. Alleged Prosecutorial Misconduct ¶43. Finally , Crum

p m akes several prosecutorial-m isconduct allegations. Som e of them

are so undeveloped that w e a r e u n a b le to review them

. F or exam ple, Crum p’s allegations include claim s l isted only as “change o f venue” and “conspiring.” Crum p w ithdrew his

m otion f or a change of venue. 6 He does not exp l a i n h o w t h e p rosecution could have inf luenced that decision. N or does he explain his allegation of “conspiring.” Consequently ,

we f ocus on his m o re d evelope d a s s e r t i ons that t he prosecution m aliciously contested his request f or a bond reduction, selected all of the jurors, coached Asia’s testim ony , withheld

6 D u ring a he a

r i ng o n S ep tem

b er 5 , 2 0 1 3 , C ru m

p ’s law y er an n o u n c ed th at C ru m p w as w a i v i n g “ a n y h e arin g ” o n h is m o tio n f o r a ch a n g e o f v en u e. H e clarif ied th at h e w as w i th d raw in g th e m o tio n f o r a c h an g e o f v en u e “su b

j e ct to th e ex am in atio n o f th e j u ry p o o l[ , ] an d h e reserv ed th e rig h t

to ren ew th e m o tio n if “so m eth in g i s r ev ealed b y v o ir d ire

. . . .” C r u m p n ev er r en ew ed th e m o tio n . T h e p r o secu tio n co u ld n o t h a v e m alicio u s ly o p p o sed so m eth in g th a t C ru m

p n ev er asserted

. 2 0evidence duri n g d i scovery , f alsif ied evidence through a n u nauthentic t ranscript of his conf ession, and m ade im

proper com m ents during its opening statem ent and closing
argum ent. ¶44. Crum

p cites no authority

suggesting that the prosecution was required to consent to his request to reduce his pretrial bond f rom $100,000 to $10,000. And although t he circuit

court denied Crum

p’s m otion f

or a bond reduction, t hat did not prevent Crum p f rom bonding out. On March 17, 2014, Crum p’s lawy er n oted that Crum p’s f a m ily was “in a position to post a bond f

or him [ ,] but because o f f e a r f o r h i s saf ety and the s af

ety o f others they ’ve elected not to” post his bond. ¶45. A s f

o r j u r y selection, it is unclear why Crum p thinks the prosecution selected th e entire j ury . At his insistence, he participated extensively in v oir dire and jury selection. He and his lawy er exercised num erous perem ptory s trikes of potential juror s . A t tim es, his lawy er def

erred to Crum

p’s dem ands to strike or keep a particular m em ber of t he venire panel. There is sim

ply no m erit to his claim

that the prosecution selected all of the jurors. ¶46. Regarding Asia’s testim ony , there is no s upport f or the c oncept that the prosecution inf luenced or coached her. Asia testif i e d t h a t s he and the prosecutor h ad discussed her testim o ny . She answered, “Yes” when Crum p’s l awy er asked if they had discussed it “m ore than one tim e[ .]” But nothing in the record suggests that Asia’s testim ony was the product of coercion. And Crum

p cites no authority s u ggesting that t he prosecution cannot interview its witnesses bef

ore they testif y . ¶47. There is also no support f o r C r u mp’s claim that the prosecution withheld evidence

2 1during discovery or som ehow f a l s if ied t he transcript of his recorded statem ent. Both allegations appear t o be related. The prosecution gave Crum p’s lawy er a transcript of Crum p ’s s tatem ent, but Crum

p’s lawy er never requested a copy of the actual recording. During the trial, there was an issue about Crum p’s dem eanor or em otional state during the interview. The prosecution could not have withheld som ething that Crum p’s l awy er never requested. As f

or Crum p ’ s c laim th a t t h e t r a nscript was f alsif ied, he d oes not explain his claim

. That is, he does not specif y how the transcript was inaccurate o r h ow that inaccuracy

was intentional. Furtherm ore, C rum p had an opportunity to review the record and identif y any inaccuracies. ¶48. Finally , Crum

p c laim s t hat the pros e c u t i o n ma d e i mp r o p e r c om m ents d uring its opening statem ent 7 a nd closing argum ent. 8 However, t her e were no contem p oraneous objections to those com m ents. As a result, h e is procedurally barred f rom com plaining about them on appeal. Johnson v. State , 204 So. 3d 7 63, 771 (¶24) (M i s s. 2016). W e f ind that

none of the co n d u ct C rum p discusses under t his h eading qualif ies as prosecutorial

m isconduct, or t h a t it som ehow endangered the f airness of h is trial or the im partial adm inistration of

justice. This issue is m eritless.

7 C ru m p c laim s th a t th e p ro secu tio n rep eated ly said th at C r y s t a l “w a s so m eh o w in n o c en [ t ] ” b ecau se o f h er g en d er. T h e sin g le p o r tio n o f th e r eco rd th at h e c ites d o es n o t su p p o rt h i s in terp r e t a tio n . I n stead , t h e p ro secu to r said t h a t “[ a] y o u n g w o m a n ’s lif e w as tak en in th e h o m e sh e w as stay in g [ in ] b y th e actio n s o f

th is D e f en d an t.”

8 C ru m p co m p lain s ab o u t t h e p ro secu to r’s co m m en ts t h a t A s i a w as a n ey ew itn ess, an d th at C ry stal “ f

ell o u t o f h er h o u se as sh e w as ru n n in g aw a y . . . .” ( E mp h asis ad d ed ). C r u m p claim s th at b o t h s tatem e n ts w ere f a l s e . H o w ev er, A sia w a s an ey ew itn ess, so t h at statem e n t w a s a c c u rate. T h e f act th at C ry stal w as tech n ically a g u est in th e h o u se t h at b elo n g e d to C ru m

p an d h i s m o t h er is triv ial at b est. 2 2¶49. T H E JUDGMENT OF THE YALOBUSHA C O U N T Y C I R C U I T C O U R T ,

FIRST JUDICIAL D IST R I C T, OF CONVICTION OF DELIBERATE-DESIGN MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT O F CORRECTIONS I S AFFIRME D . A LL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.
L E E , C . J . , I R

V I N G A N D GRIFFIS, P.JJ., I S H E E , C A R L T O N , F A I R , W I L S O N , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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