IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-KA-01622-COA STANLEY PACE A/K/A STANLEY JOE PACE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/10/2018 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM W HICH APPEALED: MONROE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE McMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: JOHN W EDDLE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/04/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. Af ter a trial held October 8–10, 2018, a Monroe County jury convicted Stanley Pace of f irst-degree m

urder. The circuit c o u r t s e n t e nced Pace to serve lif e i m prisonm ent in the custody o f the M ississippi D e p artm ent of Corrections (MDOC). Pace f iled a post-trial

m otion f or j udgm ent notwithstanding t h e v erdict or, alternatively , a new t rial, which was denied by operation of R

ule 2 5.3 o f the Mississippi Rules o f Crim inal Procedure. 1 Pace now

1 M ississip p i R

u le o f C rim in al P ro ced u r e 2 5 .3 p r o v i d es th at “[ a] m o tio n f o r a n ew trial o r a m o tio n to v a cate j u d g m en t p en d i n g th i rty (3 0 ) d ay s af

ter en try o f j u d g m en t sh all b e d eem ed d en i ed as o f

th e th irtieth (3 0 th ) d a y a f t er th e m o tio n w as f

iled .”appeals his c o n viction, raising o nly one ground f or reversal, n am ely , that he received inef f ective assistance of

counsel. Finding no m erit in Pace’s contention, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. On January 15, 2 0 1 6 , H a r o l d William s s pent the day with h is f riend Ronnie Duke. That af ternoon, the pair picked up Pace ( W illiam s’s cousin) so P ace could work on the br a k e s o f W illiam s’s t ruck. The trio decided to take a quick road trip to Pace’s hom e in Birm ingham , Alabam a, so Pace could get the necessary tools and check on his house bef ore returning to W illiam s’s trailer that evening. ¶3. Af ter returning f

rom Alabam a, t h e t r i o s pent t he evening drinking excessively and play ing video gam es, rather than repairing W illiam s’s truck brakes. During the course of the evening, while W illiam s and Pace were play ing a v ideo gam e, Pace and Duke got into a f ight. (According to Pace and W illiam s, Duke was angry because they

excluded him

f rom play ing the video g a m e.) Duke a pproached Pace f

rom behind, grabbed Pace in a chokehold, and pulled P ace o f

f his chair. The f

ight continued out s i d e W illiam s’s trailer w ith Pace “busting” Duke’s lip. Thereaf ter, Pace and Duke r e-entered the hom e and appeared to m ake

am ends. At som e point later, Duke pulled out a sm all pocketknif e, which prom

pted W illiam s
to rem ove his replica Civil W ar sword of f the wall and say , “[ T]hat’s not a knif e . . . this is

a knif e.” Pace testif

ied that af ter Duke pulled his pocketknif e out, he told Duke that he was “scared of a knif

e” and “ whatever y ou do, please do n ot pull another knif e on m e because I

am [ deathly ] scared of it.” Af ter this exchang e , t h e t r io resum ed drinking, play ing video

2gam es, and watching m ovies.

¶4. Later in the night, Pace and Duke f ought again. Heavily intoxicated, Pace ran outside
to vom it of

f the porch. Duke f

ollowed Pace and pushed P ace of f the porch. W illiam s ran outside and f

ound Pace f

ace d own in the grass. Duke announced that he was leaving and beg a n w a l k i n g down the road. Pace stood u p, re-entered W illiam s’s trailer, grabbed W i lliam s’s C ivil W ar sword, and proceeded to tell W illiam s , “I am g oing t o kill [ Duke].” Pace took of

f af ter Duke, arm ed wi t h t he sword. W illiam s went back inside. W illiam s testif i ed that Pace returned to the trailer in t he early ho u r s o f J a n u a ry 16, 2016, and told W i lliam s, “I killed y our f riend.” ¶5. On January 17, 2016, W illiam s called the Monroe C ounty Sherif f ’s Of f i ce to report that Pace had killed Duke. W illiam s told deputies that Pace had used W illiam s ’ s truck to

m ove Duke’s body

. Of

f icers f ound blood spots inside and outside W i lliam s’s truck and f ound a p ool of blood in the grass a bout 250 to 300 f

eet away f

rom W illiam s ’ s t railer. Of f icers also noticed drag m arks f rom the pool of blood t o a wooded area across the street. W h ile t he of

f icers f ound m ore b lood on the leav e s i n t he woods, t hey did n ot f ind Duke’s body or the m

urder weapon there. The deputies eventually f o und a large blade un der W i lliam s’s trailer; however, t he handle was m issing. The of f i cers returned to the crim e scene and f ound a handle near the pool of blood, but the of

f icers could not m a tch the handle and the blade because the blade was m issing the tang to hold the handle in place. Duke’s body was also still m issing.

3¶6. Pace was arrested on January 17, 2016. Pace was read his Miranda rights 2 and then

was interviewed at the sherif f ’ s o f f i ce. At f

irst, P ace d enied any knowledge of what happened t o D u ke. But during the interview, Pace eventually adm itted that he and Duke

were involved in a f

ight and that he “busted [ Duke’s] lip.” According to P ace, Duke walked
away af ter their second f

i ght and then cam e back inside the trailer and sat down in the living

room . Duke then announced that he was leaving and lef t the t railer. Pace stated that he did not know if

som eone cam e to pick up Duke or if Duke walked away

. ¶7. P e rsonnel with the Monroe County Sherif f ’s Of f ice inter v i e w e d P a c e a g a i n t h e f o llowing day

. This tim e, Pace a dm itted to taking W i lliam s’s s word and f ollowing D u k e when Duke lef

t the t railer af

ter their s econd f

ight. Pace also described the deadly altercation between Duke and him self that occurred o n the side of the road. Pace stated t h a t Duke brandished t he pocketknif e he had display ed earlier and that Pace tried to knock it out of his hand wi t h t h e s w ord. Pace told t he investigator that there was a struggle, and he adm itted
to stabbing Duke “three o r f our tim es” with the p ocketknif e . Pace t old the investigator that Duke’s “last words [ w ere] ‘ I am g oing to k ill y o u[ ,]’ [ and] I s a i d , ‘ N o y o u are not,’ and I
t h ink I c ut his throat.” Pace stated that he then went back to the trailer, took Wi l l i a ms ’ s truck, loaded Duke’s body , a nd dum ped Duke’s body in a gully a f ew m iles f

rom the crim e

scene. Af ter the conclusion of the second interview, Pace willingly accom panied the of

f icers

2 M ira n d a v
. A rizo n a , 3 8 4 U .S

. 4 3 6 (1 9 6 6 ). T h e r eco rd ref lects th at P ace w aiv ed h is M ira n d a rig h ts p rio r to th e in terro g atio n . 4to the location of Duke’s discarded body

. ¶8. A Monroe County grand jury indicted Pace f or f irst-degree m

urder on Novem

ber 23, 2 0 1 6. Pace’s three-day trial began on October 8, 2018. A t t rial, D r. John Brentley D a v i s , who was qualif

ied a s an expert in the f

ield o f f orensic pathology , te s t i f

i ed that Duke “had been stabbed a t least nineteen tim e s in the chest” a nd suf f ered “a broken arm [ , ]

. . . f ractures to his skull[ ,] . . . bleeding around his b rain, [ and] i njuries f r om t he s tab wounds to his lef t lung, heart and d iaphragm

. . . . ” Dr. Davis d escribed stab wounds and chop wounds, as well as def ensive wounds to Duke’s palm and right hand and arm . Dr. Davis opined that based

on the severity of the wounds, the depth of the s tab wounds, the skull f ractures, and Duke’s broken arm , these wounds were caused by a larger blade t han a sm all pocketknif e. Dr. Davis concluded that “[ t]he cause of [ Duke’s] death [ was] sharp and blunt f orce injuries.” ¶9. W i lliam s testif

ied to the events of that night and c o nf irm ed that when P ace cam e back in the trailer, Pace t old him , “Harold, I killed y our f riend.” W illiam s s tated t hat h e thought Pace w as joking and questioned Pace’s sincerity , to which Pace responded, “No, I’m serious. I killed him

. ” ¶10. Pace testif

ied in h is o w n def

ense. Pace said t hat he kille d D u k e i n s e l f -def ense, stating that during their roadside f ight, Duke t old him , “I am [ g oing] t o kill y ou,” while he

was holding Pace in a chokehold with the pocketk n i f e in h is hand. Pace testif ied that he could f eel Duke’s pocke t k nif

e a gainst his wrist. Pace also testif ied that he had “lost” the sword during the f

ight b u t t hat he was able to p ry Duke’s pocketknif e out of h is hand. Pace

5adm itted to stabbing Duke “ two or three tim es” with the pocketknif e. Pace said that af

ter the stabbing, he “f

elt [ Duke’s] s p i r i t c o me out of his body .” Pace conf irm ed that the sword’s blade and handle s om ehow broke during this incident. Pace never denied killing Duke. In f act, Pace largely corroborated W illiam s’s t estim ony , t estif y ing that a f

t e r the killing, he returned to W illiam s’s trailer covered in blood and told W i lliam s that he had killed Duke. ¶11. The circuit court gave Pace’s self -def ense j ury instructions, which instructed the jury ( 1 ) to f ind Pace not guilty if Pace “had r easonable cause to believe

. . . that h e w a s i n im m inent danger o f being killed or receiving s erious bodily harm at the hands of [ D uke], and that it w as necessary f

or [ Pace] t o sta b [ D uke] to save his o wn lif e”; (2) that “all that is
necessary . . . t o establish self

-def ense is that at the tim e of

the killing, the [ d ]ef

endant had reasonable grounds to apprehend danger of his lif e or good reason to believe that his lif e was in danger on account of the actions of the deceased”; and (3) that Pace w as “not required to
retreat or to consider whether he could saf e l y retreat” a n d c o uld stand his ground and use reasonable f

orce “[ i]f h e honestly and re a s o n ably [ was] in f ear of death or serious bodily harm .” The circuit court a lso gave the S tate’s j u r y instructions on the lesser-included of f enses of second-degree m urder, heat-of

-passion m anslaughter, and c ulpable-negligence

m anslaughter. 3 The jury f ound P a c e guilty of f

irst-degree m

urder, and the circuit court sentenced Pace to serve lif e im prisonm ent in the custody of the MDOC. ¶12. On October 19, 2018, Pace f iled a m o tion f

o r judgm ent notwithstanding the verdict

3 P ace’s trial co u n sel d id n o t o b j ect to an y

o f th ese in stru ctio n s. 6or, alternatively , a new trial, w hich was denied by operation of Mississippi Rule o f Crim inal

Procedure 25.3. Pace appeals , contending that h e received inef f ective assistance f

rom his trial counsel due to counsel’s f ailure to request another jury instruction f o r “im perf ect” self

def ense. W e f

ind no m erit in Pace’s assignm e nt of error and theref

ore af f i rm . DISCUSSION ¶13. Pace contends that his trial counsel was inef f ective because counsel f

ailed to request

a j u r y i n s truction on im perf ect s elf -def ense m anslaughter. “This Court rarely reviews inef f ective-assistance-of

-counsel claim s o n direct review.” Boudreaux v. State , 189 So. 3d 1274, 1280 (¶19) (Miss. Ct. App. 2016) (citing Aguilar v. State , 8 47 So. 2d 871, 878 (¶17) (Miss. C t. App. 2 0 02)). “However, we ‘will rule on the m erits on the rare occasions where (1) the record af

f i rm atively shows inef

f e c t i v e n e s s o f constitutional dim ensions, or (2) the parties stipulate that t he record is adequate to allow t he appellate court to m ake the f inding without consideration of

the f indings of

f act of the trial judge.’” Id . (quoting Aguilar , 847 So. 2d at 878 (¶17)). “Review o n direct appeal

. . . is conf ined strictly to the record.” Id. at (¶20) (citing Colenburg v. State , 735 So. 2 d 1099, 1 101 (¶5) (Miss. Ct. App. 1999)). Here, Pace raises i n ef

f ective assistance as his only issue, and the parties s tipulate that the record is adequate f

or appellate review. W e theref ore reach the m erits of

Pace’s claim

. ¶14. T o p r o v e inef

f ective assistance of c ounsel, P ace m ust show that (1) “ his counse l ’ s perf orm ance was def

i cient,” a nd ( 2) this def

iciency “prejudiced h is d ef ense.” Strickland v. W ashington , 466 U.S. 668, 687 (1984). To overcom e the strong presum ption that counsel’s

7p e r fo r

m a n c e fa l ls w ithin the range of reasonable prof essional assistance, “the def endant m ust show that there is a reasonable p robability that, but f o r c o unsel’s unprof

e ssional errors, the result of the proceeding would have been dif f erent.” Boudreaux , 189 So. 3d at 1280 (¶21) (citing S trickland , 466 U.S. a t 694). Further, “[ f ] or an inef

f ective

- a s s i s t a nce claim , the
context o f counsel’s a ctions are caref ully reviewed, and ‘w h e r e reasonable under the circum stances, we presum e the decisions were sound trial strategy

. ’” Cooley v. State , 271 So. 3d. 765, 773 (¶26) (Miss. Ct. App. 2018) (other i nternal quotation m arks om itted) (quoting Sea v. State , 49 So. 3d 614, 617 (¶12) (Miss. 2010)). ¶15. A t t r i a l , t h e record indicates that Pace’s trial counsel requested—and t h e c o u r t
gave—a jury instruction on “ perf ect” self -def ense. 4 Pace’s i nstruction instructed the jury to f ind Pace not g uilty if they f ound that h e “reasonably believed that [ Duke] was attem pting
to stab [ him ]

. . . and that [ Pace] had reasonable cause to believe

. . . that he was in im m inent danger o f b eing killed or receiving serious b odily harm

. . . and that i t was necessary f or [ Pace] to stab [ Duke ] t o s a v e h i s own lif e .” On appeal, P ace contends that he received inef f ective a ssistance of counsel due to his trial c o u n s el’s f ailure to request an additional instruction on im

perf ect self -def ense m anslaughter. Pace argues that such an instruction was warranted because t he “f

acts of the case turn on the reasonableness o f P ace’s actions,” and the evidence a t trial supported such an ins t r uction. Pace asserts that the jury s hould have

4 In h is b rief

in g o n a p p eal, P ace d o es n o t a ck n o w led g e th at a self -d ef en se in stru ctio n w a s req u e sted b y h is co u n sel a n d g iv en b y th e c o u rt. P a c e o n l y a c k n o w led g es th e m an slau g h ter in stru ctio n s req u ested b y th e S tate. 8been instructed to c onsider whether Pace ki l led Duke while under a bona f ide, though unreasonable, belief

that he had to kill Duke to protect him self

. ¶16. “W hen reviewing jury instructions, [ this Court] rea d [ s ] the instructions ‘as a whole
to determ ine whether the j u r y w a s f ully and f airly instructed according to the a pplicable law.’” Jackson v. State , 68 So. 3d 709, 712-13 ( ¶12) (Miss. C t. App. 2011) (quoting Clark

v. S tate , 40 So. 3d 5 31, 544 (¶ 3 6 ) (Miss. 2010)). “A def endant i s entitled to have jury instructions given which present his theory of the case, however, this e ntitlem ent is lim ited in that the court m ay ref

use an instruction which i ncorrectly s tates the law

. . . or is without f oundation in the evidence.” Howell v. State , 860 So. 2d 704, 7 45 (¶142) (Miss. 20 03) (quoting Humphrey v
. S

t ate , 7 59 So. 2d 3 68, 380 ( ¶33) (Miss. 2000), abrogated on o t her grounds b y Miss. T ransp. Comm’n v. McLemore , 863 S o. 2d 31, 39 ( ¶¶22-23) (Miss. 2003)). Nevertheless, “if all i nstructions taken as a whole f airly , b ut not n e c essarily perf ectly ,
announce the applicable rules of law, no e rror results. ” David v. State , 130 So. 3d 1141, 1146 (¶13) (Miss. Ct. App. 2013) (quoting C lark , 40 So. 3d at 544 (¶36)). ¶17. Pace asserts that t he f ollowing evidentiary f

oundation supported an im per f e c t s e l f

def ense jury instruction: (1) Pace’s testim ony that he killed Duke during the roadside struggle; ( 2) his testim ony that Duke told him that h e would kill Pace; (3) his testim ony that Duke p ulled a pocketkni f e on Pace bef

ore the roadside struggle; (4) W illiam s ’s testim ony that Duke was the initial a ggressor during the f ights that took place at W illiam s’s hom e; and (5) W illiam s’s testim ony that Duke pulled the p o cketknif e o n Pace af

ter the initial f

ight.

9Given t his evidence, Pace contends that his trial counsel was def icient in f ailing to request such an instruction, giving r i s e t o “a reasonable probability that, but f or counsel’s unprof essional errors, t he r esult of the proceeding would have been dif f erent.” Boudreaux , 189 So. 3d at 1280 (¶21) (quoting Strickland , 466 U.S. at 694). W e disagree. ¶18. First, Pace f

ails to s how that his t rial counsel’s perf orm ance was def

icient. “W e are

rem inded here that ‘ there is no single, particular way to def end a client or to provide ef f ective assistance.’” C

ooley , 271 So. 3d at 7 73 (¶29) ( quoting Reynolds v. S tate , 7 36 S o. 2d 500, 511 (¶41) (Miss. Ct. App. 1999)). T h e r ecord ref l ects that Pace’s trial counsel requested three instructions pertaining to s elf -def ense and that the State requested jury instructions on

s e c o n d

- d e g r e e m

u r d e r , h e a t

- o f- passion m anslaugh t e r , a n d c u l p a b l e - n e g l i g e n c e m a

n s l a u g h t e r . Trial counsel’s f

ailure to request an additional im perf ect self -def ense instruction m ay

well have been driven by trial strategy , which, based on the record, w as centered around theories of s elf -def ense and heat-of

- p assion m anslaughter. W hil e P a c e h as the right to present his theory o f the case, t hat “right i s n o t absolute,” J ackson , 68 So. 3d at 713 ( ¶12), and here, Pace f ails to overcom e the strong presum ption that his counsel’s perf orm ance f ell within the wide range of

reasonable prof

essional assistance. ¶19. Regardless, we also f ind the second prong of Strickland is not m et. In other words,

even i f trial c ounsel was def i cient f or f ailing to of

f e r an im perf e c t self -def ense m anslaughter instruction, P ace f

ails t o s how how this om ission prejudiced h is case. In Cooley v. State , this Court f ound no inef

f ective assistance of c ounsel f or counsel’s f

a ilure to of

f er a def ense-of

1 0o t h e r s instruction. Cooley , 271 So. 3d. at 773 (¶29). This Court concluded that Cool e y

“f ail[ ed] to show that there was a reasonable probability the instruction would h ave changed the outcom e o f the trial.” Id

. Th i s was because “ [ Cooley ] [ did] n ot overcom e the strong
presum ption that, under the c ircum stances, h is d ef ense c o unsel not of

f ering this i nstruction

was part of his trial strategy .” Id

. This C ourt noted that “[ o ]f f ering such an instruction m ay have d etracted f

rom his theory of self

-def ense, which appeared t o b e his prim ary t heory ” and that “[ a] def

ense-of -ot hers theory was not strongly e l icited during witness testim ony by def ense counsel, and it was only m entioned brief

ly d uring closing argum ent.” Id

. ¶20. Likewise, Pace “f ails to show tha t t h e r e w a s a r e a s o n a b l e probability ” that the im p erf ect self -def ense m anslaughter instruction “ w ould have changed t he outcom e o f the trial.” Id

. During his closing argum ent, Pace’s trial c ounsel stated that Pace was “asking [ the jury ] to d eterm ine whether or not [ they ] [ thought] he acted out of self

- def ense or in the heat of p assion.” C ounsel also told the jury that af ter r e v i e w i ng the evidence and instructions, “that if y ou don’t believ e t h i s w as entirely self

- def ense, in f act if y ou d on’t believe [ that] there was any self

-def ense in this at all, y ou w i ll see clearly that it is in f a c t a heat of passion case, and that it is m anslaughter and not deliberate determ ined m urder.” ¶21. In addition to counsel’s j ury argum ent, as stated supra, Pace’s trial counsel requested jury instructions pertaining to self -def e nse, and the State r equested jury instructions on

s e c o n d

- d e g r e e m

u r d e r , heat-of

-passion m a

n s l a u g h t e r , a n d c u l p a b l e - n e g l i g e n c e m a

n s l a u g h t e r . When taken as a whole, these instructions “f ully and f

airly ” i nstructed the j u r y o n t h e

1 1applicable law. Jackson , 68 So. 3d at 713 (¶12). Not only was the jury adequately instructed

on the charged of

f ense (f irst-degree m

urder), the jury was also instructed on lesser-included crim es ( second-degree m urder, heat-of

-passion m anslaughter, and culpable

- negligence

m anslaughter), as well as Pace’s theory o f self -def ense. “ It is easy [ f

or Pace] to be a Monday

m orning q

uarterback” a nd retrospectivel y p i ck out and analy ze “the def

ects and f laws” in trial counsel’s “tactics a nd strateg[ ies]” pertaining to jury instructions. Berry v. State , 345 So. 2d 613, 615 (Miss. 1977) (citing Rogers v. State , 307 So. 2d 5 51, 552 (Miss. 1976)). But Pace f ails to establish a reasonable probability that h ad his a ttorney requested an im perf ect self -def e nse instruction, the jury

verdict would have been dif f e r ent. ¶22. Pace had “no constitutional right to errorless counsel” but was e n titled to “com petent counsel.” Parker v. State , 30 So. 3d 1222, 1233 (¶38) (Miss. 2010). On the record in this
case, we c annot f

ind that Pace’s t rial counsel was constitutionally def i c i e n t

. Accordingly , Pace’s assignm ent of

error on appeal is without m erit. ¶23. AFFIRMED. BARNES, C .J., CARLTON AND J . WILSON, P.JJ., GREENLEE, TINDELL, McDONALD, L AWRENCE A N D McCARTY, J J., CONCUR. WESTBROOKS, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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