IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-KA-02000-COA

BRYN ELLIS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/04/2013 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W

. ELLIS PITTMAN W I LBERT L. JOHNSON ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED – 12/15/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., MAX WELL AND FAIR, JJ. IRVING, P.J., FOR THE COURT: ¶1. A j ury sitting be f o r e t h e H i n d s C o unty Circuit Court f o und Bry n Ellis guilty

of

m urder. The circuit court sentenced Ellis t o lif e in the custody of the Mississippi D epartm ent of Corrections. Ellis a p p e a l s a n d c l aim s the circuit c o urt erred when i t a llowed the prosecution to introduce a n unavailable witness’s prior testim ony . Ellis also claim s that the circuit c ourt im

properly a l l o w e d the prosecution to i ntroduce hearsay s tatem ents intoe v i d e n ce. Finally , Ellis c laim s the prosecutor m ade an im proper com m ent during closi n g argum ents. Finding no error, we af f irm

. FACTS ¶2. On March 8, 2010, Barry Odom was killed in the parking lot outside of his apartm ent in Jackson, Mississippi. Aside f r om a 9 :48 p .m . call t o 9 11, Barry ’s cell phone indicated that he had been talking to Chery l McGee shortly bef ore his death. Chery l told authorities that Ellis killed Barry

. ¶3. Ellis and Chery l h a d b e e n i nvolved in a rom a n tic relationship b ef ore Chery l dated Barry

. Ellis and Chery l began seeing each other in 2006. Their daughter was b orn in 2007. During his relationship with Chery l, Ellis was living with Katie Roberts, whom he had been seeing since 1996. H owever, in late 2008 or early 2 009, Chery l ended her relationship with Ellis. According to Chery l, Ellis did not want the relationship to end. ¶4. Chery l began dating Barry during 2 009. Chery l later testif ied that E llis had f

ollowed her af ter he d iscovered that she was seeing B arry . Che r y l a l s o t e s t if ied that Ellis had threatened to kill her and B a r r y if they did n ot stop s e eing each other. Chery l and Barry continued to see each other while taking steps to avoid Ellis. ¶5. Ellis learned about Chery l’s relationship with Barry af t er he f ollowed her to Barry ’s house. Chery l d e cided to go back to her own h o me a f t er Barry told her that Ellis had f ollowed h er. W hile Chery l was on her way hom e, Ellis pulled o u t o f a g a s station and f ollowed her. W hen Chery l arrived a t hom e and g ot out of her c ar, Ellis c onf ronted her and told her to get in h is van. Chery l com p lied. E llis took C hery l to a hotel r o om , where they

2began to argue. According to Chery l, Ellis had been drin k ing. Because she w as af raid of Ellis, w ho was arm ed w ith a pistol, Chery l f ak e d a n a sthm a a t tack and told Ellis that she needed to go hom e t o get her i nhaler. Ellis drove Chery l t o h er house, but h e d id not let her leave h is van u n til the n e x t mo r n i n g. Chery l testif ied that o n num erous occasions, Ellis threatened to kill her and Barry i f he saw them together. Chery l did not believe that Ellis was serious about his threats, but she and Barry took precautions to avoid Ellis. ¶6. On March 8, 2010, Chery l and Barry p lan n e d t o me et at a hotel af ter they got of

f work. T hey planned to m eet at a hotel to avoid Ellis, who knew where Barry lived. Bef ore Chery l m et B arry at the hotel, she let Ellis park his van at her house and she took him to his

own hom e. 1 Because Ellis was running late, C hery l called him and said they needed to m eet because s he had plans t hat night. Af ter dropping Ellis o f

f at his house, Chery l m et Barry at the hotel som etim e between 7:00 and 8:00 p.m

. ¶7. Approxim ately a n hour later, Chery l l ef t the hotel to pick up a prescription and check

on h e r daughter. Chery l p lanned to m eet Barry af ter she put her daughter to bed. Later, Chery l called Barry ’s cell phone, but he did not answer. ¶8. At approxim ately 10:00 p .m ., Barry ’s neighbor, Justin Sm it h , f o und Barry ly ing in the p arking lot of the apartm e nt com plex where they lived. Barry had b een shot twice in the chest. Unf

o r t u n a t e l y , em ergency responders were not able to save him

. A uthorities contacted Chery l because her phone num ber w as the last o ne that Barry had called. Chery l im p licated Ellis in Barry ’s death.

1 C h ery l allo w ed E llis to p ark h i s v an at h er h o u se to av o id rep o ssessio n . 3¶9. Ellis was indicted and charged with m urder. He pled not guilty and went to trial. The prosecution called twenty witnesses during its c a s e-in-chief

. Most s ignif

icantly , Chery l testif i ed t o her experiences w ith Ellis while she was s eeing Barry

. B a rry ’s f riend, Jef f rey Miller, testif

ied that B arry had been f ollowed b y an ex-boy f

riend of a wom an t hat he had been seeing. A n o t her f

riend, Thom as Knight, testif ied s im ilarly

. Barry ’s sister, Stacey Jones, testif

ied that B arry had tol d h e r t hat he was being h arassed by a n ex-boy f riend of a

wom an t hat he had b een s eeing. According to Stacey , Barry had borrowed a p istol f rom her because he was concerned that the ex-boy f riend “was going to harm him .” ¶10. Katie, who lived with Ellis, testif ied that he w as gone f

or several hours on the night that Barry was killed. Jennif er Childs testif

ied that o n the n ight of March 8, 2010, Ellis told her that “he [ had] shot som eone [ in the chest] because they had a conf

rontation going on.” Jennif er f u rther testif

ied that the conf

rontation was “over by Chasta i n s chool and between

som e cars.” Of

f i cer Patrick Drake, a crim e-scene investigator with the J ac k s o n Police Departm ent, testif

ied that Barry ’s apartm ent was on Chastain Drive, and Barry ’s b ody was f o u n d near his car. Ray Clark, t he custodian of records f o r Ellis’s c ell-phone p r o v i d e r , testif i ed that som eone had used Ellis’s cell phone to m ake calls within the vicinity of Barry ’s apartm ent on the night that Ba r r y was killed. Additional aspects of the p rosecution’s case will be discussed as necessary below. ¶11. Af ter t he prosecution rested its case-in-chief , E l l i s c h o s e n o t to t estif y and rested without calling any witnesses. As previously m entioned, the jury f ound him guilty o f m

urder. Ellis appeals.

4DISCUSSION

I. Deposition Testimony ¶12. Forensic pathologist D r . F e n g L i p e r f o r me d Barry ’s a

utopsy

. Af

ter a num ber of continuances, Ellis’s trial was scheduled f or October 2, 2 013. According to t he prosecution,

on S eptem

ber 10, 2013, it f

i r s t l e arned that Dr. Li’s schedule conf licted with Ellis’s trial date. 2 Because Ellis’s trial attorney ref used “to stipulate t o t he autopsy that Dr. Li perf orm ed,” on Septem

ber 11, 2013, t he prosecution f iled a m otion to allow Dr. Li to testif y through a video deposition. The p r o s e cution’s m otion also stated: (1) D r. Li would b e in Jackson during the week of Septem ber 16, 2013, t o testif

y in a dif f erent trial; (2) E llis’s trial had bee n p e n d ing f

or approxim ately three y ears; and (3) the prosecution h ad m ade
arrangem e nts f

or a dif f erent witness to travel f

r om Calif ornia so she could testif

y at Ellis’s trial. The prosecution scheduled a hearing on its m otion on Septem ber 13, 2013. ¶13. Ellis’s trial attorney objected and argued that he did n ot have enough tim e to research and r espond to the prosecution’s m otion. A f t e r t h e hearing, the circuit c ourt granted the prosecution’s m otion. Dr. Li was deposed o n S eptem ber 18, 2013. The trial judge was present during the deposition, and Ellis’s trial attorney c r oss-exam ined him

. The prosecution play ed Dr. Li’s deposition im m ediately bef ore it rested its case-in-chief

. ¶14. On appeal, E llis claim s Dr. Li should not have b e e n a l l o w e d t o t e s t i f y by video deposition because he was n ot “unavai l a b l e .” W e are m indf ul that “[ t]he adm issibility of evidence rests within the discretion of the trial court.” Armstrong v. State , 771 So. 2d 988,

2 D r. L i p lan n ed to leav e th e co u n try o n S e p t em b er 3 0 , 2 0 1 3 , an d h e w o u ld n o t b e retu rn in g f

o r th ree w eek s. 59 9 6 ( ¶ 3 6 ) ( Miss. Ct. A pp. 2000). However, the trial court m ust exercise i ts discreti o n “within the scope of the Mississippi Rules of Evidence, and reversal will be appropriate only when an abuse of

discretion resulting in prejudice to the accused occurs.” Id . Sim ilarly , a circuit court’s “determ i nation of unavailabilit y is a j udicial exercise reviewable o n appeal only f or a b use of d i scretion.” De La B eckwith v. State , 7 07 So. 2d 547, 586 ( ¶155) (Miss. 1997). ¶15. T h e p r o s e c u t ion bore the burden of proving that Dr. Li was unavailable. I d

. A witness is unavailable t o testif y if he or she “[ i ]s a

bsent f rom the hearing and t he proponent of his statem ent has been unable to procure h i s a t t e n d a n c e (or in the case of a hearsay exception under subdivision ( b)(2), (3), or (4), his atten d a n ce or testim ony ) by p rocess or other reasonable m eans[

. ]” M.R.E. 804(a)(5). If a witness is unavailable as contem plated by Rule 804(a), then “[ t]estim ony given as a w itness at another h earing o f t h e s a me o r a dif f erent proceeding” is not e xcluded by the hearsay rule “if t h e party against whom the testim o ny is now of

f ered

. . . had an opportunity and sim ilar m otive to develop the testim ony by direct, cross, or redirect exam ination.” M.R.E. 804(b)(1). ¶16. It is undisputed t hat Dr. Li was out of the country during Ellis’s trial. However, Ellis
argues that t he prosecution could have subpoenaed Dr. Li when he was in Jackson to testif y in a dif f erent c ase t o com

pel his attendance during Ellis’s t rial. Ellis f u r t h e r a r g u e s that “going on a trip or i nconveniencing a witness” i s not a suf f icient basis to f

ind that a witness is unavailable to testif

y . ¶17. In W

ilson v. State , 923 So. 2d 1039, 1041 (¶¶7-8) (Miss. Ct. App. 2005), this Court

6upheld a circuit court’s decision to allow the v ideotaped deposition testim ony of an expert witness. Th e circuit court had declared the w itness “unavailable,” observing that the case had already been postponed f or t w o y e ars, there was “ no reasonable way to obtain [ the witness’s] presence in t h e s tate during [ the trial,]” and “[ t ]he only alternative would be to postpone the trial[ .]” Id

. a t (¶7). This case is strikingly sim i lar. W e do not f i nd that the circuit court abused its discretion when it held that Dr. Li was unavailable to testif y . ¶18. It was also within the circuit court’s discretion to f i n d t h a t E llis was not prejudiced b y t he f act that Dr. Li testif

ied by way of a video deposition. Ellis’s trial attorney c r o s s exam ined Dr. L i during the deposition. For the f irst t im e o n appeal, Ellis s eem s to argue that he suf f e red prejudice because, at trial, he did n ot have an opportunity to cross-exam ine Dr. Li regarding the f

act that “wadcutter” pistol b ullets w ere recovered f rom Ellis’s a

partm ent, and the two bullets recovered f rom Barry ’s body

were “jacketed.” ¶19. As an expert witness in the f ield of “f irearm a nd tool[ -]m a r

k i dentif ication,” Tom m y Bishop testif

ied that the two bullets recovered f rom Barry ’s body had “ class characteristics”

o f a .38 c aliber bullet, which m eant that t he “projectile and gun have a diam eter o f

. 3 5 5 inches

. . . .” 3 Tom m y also t e s t i f i ed t hat the nine-m illim eter pistol recovered f rom Ellis’s apartm ent could h ave f

e asibly f ired the bullets that were recovered f r o m B a r r y ’s body

. However, Tom m y could not positively “include or exclude [ the] f i rearm a s being used to f

ire those projectiles.” The only signif icance of the “wadcutter” bullets recovered f rom Ellis’s

3 T o m m y e x p lain e d th at cartrid g es in clu d ed i n th e .3 8 calib er class all h a v e th e sam e d iam e t er. H e sp ecif

ically m en tio n ed “a .3 8 0 a u t o f irearm , a n in e-m illim eter, a .3 8 sp ecial[ , ] an d a .3 5 7 m ag n u m

. . . .” 7apartm ent was that they were a lso within the .38 caliber class. Stated dif f erently , Tom m y ’s testim o ny supported the conclusion that E l l i s ’ s p i stol could have f ired the “wadcutter” bullets and the jacketed bullets recovered f rom Barry ’s body

. ¶20. Dr. Li testif

ied that he recovered two bullets f rom Barry ’s body

. He did not opine as
to t heir class c haracteristics or the likelihood that they were f ired f rom E llis’s p istol. Crossexam ining Dr. Li regarding Tom m y ’ s t e s t i mo ny would not have aided Ellis. Conversely , Ellis was not prejudiced by the f act that h e was not able to conf ront Dr. Li wit h Tom m y ’s testim o ny . There is no m erit to this issue. II. Cheryl’s Testimony ¶21. In this issue, Ellis claim s the circuit court erred when i t allowed Chery l to testif y to the f ollowing: (1) Barry said that E llis had been f ollowing her c ar; ( 2) Ellis t hreatened to kill Barry i f Chery l did n ot stop seeing him ; and (3) she b elieved t hat Ellis was responsible when she learned that B arry had been killed. According to Barry , the circuit court should have held that each statem ent was inadm issible hearsay

. As stated above, “[ t]he a dm issibility of evidence rests within the d iscretion of the trial court.” Armstrong , 771 So. 2d at 996 (¶36).

A. Present Sense Impression ¶22. Ellis argues that Chery l should have been prohibited f rom testif y i ng t hat B arry once said that Ellis had b een f ollowing her. Ch e r y l testif ied that as she was driving to Barry ’s apartm ent at approxim ately 1:00 or 2:00 a.m ., she noticed t hat a car was f ollowing her. She d i d not recognize the car, s o she “just drove a r ound.” Eventually , she went t o B a r r y ’ s apartm ent. Barry m et her o utside on his porch, w here Chery l told him t hat som eone had been

8f

ollowing her. A ccording to Chery l, Barry told her “that was [ Ellis].” At that t im e, Ellis’s trial attorney objected a

n d a r g u e d t h a t C h e r y l’s testim o ny was inadm i ssible hearsay

. Initially , the circuit court sustained the o bj e c tion. However, the prosecution a r gued that Chery l’s testim o ny was an e xception to the hearsay r ule because she was testif y ing regarding Barry ’s present s ense im

pression. The c ircuit court reversed its initial ruling and allowed Chery l’s testim o ny . On appeal, Ellis argues that the circuit court’s d ecision results in reversible error. ¶23. “‘Hearsay ’ is a statem ent, other than one m ade b y the declarant while testif y ing at the trial or hearing, of

f ered in evidence to prove the truth of the m a tter asserted.” M.R.E. 801(c).

“ Hearsay is not adm issible except as provided by law.” M .R.E. 802. Ho w e v e r , “ [ a ]

statem ent describing or explaining an e v e n t o r condition m a d e while the declarant was perceiving the event or condition o r im m ediately thereaf ter” is “not e xcluded b y the hearsay rule, even though the declarant is available as a witness.” M .R.E. 803(1). This is because “the tim ing o f the statem ent m akes it unlikely that the d ec l a r a nt m a de a deliberate

m isrepresentation.” Lewis v. State , 110 So. 3d 814, 819 (¶18) (Miss. C t. App. 2 013) (citing Clark v. S tate , 693 So. 2d 927, 932 (Miss. 1 997)). “To b e adm issible under this exception, the statem ent m

ust be spontaneous. The determ ination of spontaneity is a question f or the

t r i a l judge, whose action should not be overturned unless this Court would be justif ied i n concluding that u nder all and any r easonable interpretation of t he f a c ts the exclam ation could not have been spontaneous.” Clark , 693 So. 2d at 932. ¶24. In Tu r n e r v
. S t a t e , 573 So. 2d 1335, 1338 (Miss. 1990), the Mississippi Suprem e C o urt addressed a som ewhat s i m ilar issue. In t hat case, Edward Turner Jr. a r gued that a

9circuit court e r r e d when it allowed a law-enf orcem ent of

f icer to testif

y that a conf

idential inf orm ant had identif

ied Turner during a drug transaction. Id

. The suprem e court noted that “[ t]he statem ent [ the conf i dential inf

orm ant] m ade described and identif ied the person [ he]

was talking to w hile he was perceiving and talk i n g t o this individual.” Id

. at 1338-39. Consequently , the suprem e court held that the law-enf o rcem ent of

f icer’s h earsay testim ony

was adm issible under the present-sense-im p res s ion exception to the hearsay r ule. Id

. at 1339. ¶25. Chery l’s testim ony indicated that Barry identif ied Ellis while he was looking at him

. In f act, Chery l also s uggested that Barry a ttem pted t o com m

unicate with him

. According to Chery l, she heard Barry

say , “what’s up, m an? ” to the person who had been f ollowing her, im m ediately bef

ore Barry explained that it was Ellis. Che ry l a lso testif i ed that Barry and Ellis had worked together in the past, so they knew each other. W e f ind that the c ircuit court did not abuse its discretion when it overruled Ellis’s objection to the testim ony at issue. B. Ellis Had Threatened to Kill Barry ¶26. Next, Ellis takes issue w ith Chery l’s testim ony that she h ad heard him threaten to k ill Barry if she did not stop seeing Barry

. Although Ellis does n ot cite to the r ecord to support his argum ent, it a

ppears that it is related to the f ollowing portion of Chery l’s direct testim ony : Q. Okay . Did . . . Ellis express his disdain f or y o ur relationship with . . . Barry up until [ Barry ’s] death? A. Yes. Q. In what way s? A. [ Ellis] a lway s - - he threatened with violence. H e would threaten. He would a lway s talk about killing [ B arry ]. [ “]I b etter n o t s ee him

. I better not see y ou with him ,[ ” ] y ou know. [ “]I’ll kill both of y ’all .

. . 1 0.[ ” ]

Q. How m any

tim es over the course of a y ear would y ou say he did that? A. More than 75. More than 50. Q. So y ou can’t count how m any tim es it was? A. No. Q. And w hen y ou say [ Ellis] would m ake threats, was he m aking threats against the lif

e of . . . Barry ? At that tim e, Ellis’s t r i a l a ttorney objected to t he question on the basis that it was leading. The prosecutor r esponded b y rephrasing t he question, a n d t he c ircuit court instructed the jury to “[ d]isregard the last question and response.” Chery l ’s testim o ny continued as f

ollows: Q. You said that

. . . Ellis would m ake threats. W hat [ w as] the content of those threats? A. That he would kill him

. Q. Did y o u

believe him ? A. No. Q. W hy

do y ou say

that? A. Because that was j ust crazy . T hat’s just c razy . W ho talks about killing som ebody ? ¶27. Ellis claim s that Chery l ’s testim o ny regarding the threats w as inadm issible hearsay

. However, it is cl e a r t h a t E l lis never o bjected on that b asis at t rial. The suprem e court has held that a contem

poraneous objection is necessary t o preserve an issue f or appellate review; otherwise, “the e r r o r , i f a n y , is waived.” Slaughter v. S tate , 815 So. 2d 1 122, 1131 (¶47) (Miss. 2 002). Furtherm ore, an “[ o]bjection on one ground a t trial waives all o ther grounds

1 1f

or o bjection o n appeal.” C a r t er v. State , 722 S o. 2d 1258, 1261 (¶13) ( Miss. 1998).
B e c a u s e E l lis did not object to the testim ony at issue o n t he basis that it was inadm is s i b l e hearsay , he is procedurally barred f rom doing so f

or the f irst tim e on appeal. C. Cheryl Thought that Ellis Killed Barry ¶28. Ellis’s last claim regarding Chery l’s testim ony relates to her statem e n t in response to the f ollowing question: “And when y ou f ound out that [ Barry ] had been m u rdered and police

were contacting y ou a nd investigation was beginning, who[ ] did y ou believe h ad m urdered

. . . Barry ? ” Ellis’s tri a l a t t o r n e y interjected and said, “Object to relevancy , Your Honor. That c a lls f

or speculation o n the part of the witness. It’s irrelevant who she believed.” The
p r o s e c u tion responded that it was not speculation, as it was “based on her f irs t h a n d knowledge.” The circuit c ourt overruled t h e o b j ection. Chery l went on t o t estif y that she believed that Ellis was responsible. ¶29. Ellis argues t hat Chery l’s testim ony was “ purely an irrelevant opinion” and that it “did

not m eet the standards of allowable lay witness t estim o ny under Rule 7 01 [ of the Mississippi Rules of Evidence] as Chery l’s opinion was based p u r ely on speculation.” Additionally , Ellis claim s that Chery l’s “testim ony was not relevant under [ Mississippi Rule of Evidence] 403

as it was highly prejudicial and could not otherwise help t he jury f orm its own o pinion of the f acts or properly

weigh her previous hearsay testim ony .” ¶30. At trial, Ellis claim ed that t he testim o ny at issue was speculative and irrelevant. Ellis did not a rgue that C hery l ’ s t e s t i m ony was im perm issible lay -witness testim ony . As stated above, an “[ o]bjection o n one ground at trial waives all other g rounds f o r o b j e ction on

1 2appeal.” Car t e r , 7 2 2 So. 2d at 1261 (¶13). Theref ore, he is p rocedurally barred f rom claim ing that Chery l’s testim ony i s inadm issible l ay -witness t estim o ny f or the f irst tim e on appeal. ¶31. Evidence is relevant if it has “any tendency to m a ke the existence of any f act that is of consequence to the determ ination of t h e action m ore probable or less probable than it would be w ithout the evidence.” M.R.E. 401. I rrelevant evidence is inadm issible. M.R.E. 402. “Rule 401 is construed b r oadly in f avor of adm itting evidence w i t h e v e n slight probative value.” Ross v. State , 954 So. 2d 968, 993 (¶44) (Miss. 2007). ¶32. Chery l testif

ied that she belie v e d E l l i s w a s responsible f or B arry ’s d eath when she heard that Barry had b een killed. There were no f o llow-up questions to determ ine whether Chery l’s opinion had changed i n the tim e af t er she heard that Barry had been killed. Based

on her involvem ent in t he e vents that preceded Barry ’s death, Chery l’s testim ony tended to suggest that it was m o re probable t hat Ellis had killed Barry

. However, the a n aly sis does not end here. Rule 403 is the “ultim ate f ilter” through which all evidence m ust pass. Palmer v. S t a t e , 939 So. 2 d 792, 795 (¶10) (Miss. 2006). “Although relevant, evide n c e ma y b e excluded if its probative v alue is substantially outweighed by the danger of unf air prejudice, conf usion of the i ssues, or m i s leading the jury , o r by considerations of undue delay , waste of tim e, or needless presentation of cum ulative evidence.” M.R.E. 403. ¶33. The prejudicial ef

f ect of Chery l’s testim ony

is the possibility t hat the jury would be unf airly inf luenced toward def

e rring to h er subjective opinio n . W e note that Chery l’s testim o ny was lim ited to her initial re a c t i o n , r a t her t han her o pinion based on m ore

1 3substantial e vidence. S ee W hittington v. S t a t e , 523 So. 2d 966, 9 75 (Miss. 1 988) (holding that an inve s t i g a ting of

f icer’s opinion testim ony regarding his suspicions of a def endant’s guilt was h a r ml e s s b e cause “[ i]t was no m ore than an e xpression that his s u spicion was aroused f ollowing his investigation there at the scene”). But Chery l’s testim ony also helped the jury u nderstand h o w the inve s t i g a t ion f ocused on Ellis. In other words, Chery l’s testim o ny regarding her initial suspicions e x plained why authorities suspected that Ellis m ay have been responsible f

or Barry ’s death. ¶34. Additionally , the p rejudicial ef f ect of Chery l’s testim ony was substantially m itigated by the circuit court’s instruction that it was the jurors’ “exclusive province to determ ine the f acts in this case and to consider and weigh the evidence f o r that purpose.” The c ircuit court also instructed the jury that its “verdict s hould be based on the evidence and not upon speculation, guesswork[ ,] or conjecture.” W e theref ore f ind no m erit to this issue. III. Alleged Prosecutorial Misconduct ¶35. Finally , El l i s c l a i m s the circuit court e rred when it denied his m otion f or m istrial based on statem ents that the p rosecution m a de during its closing argum ent. Ellis takes issue with the prosecutor’s statem ent that th e e v i d e n c e d em onstrated that he h ad a “history of threats” that the def

e nse did not dispute. Ellis’s trial attorney objected that the prosecutor’s

com m ent was “a backdoor com m ent that . . . Ellis didn’t testif y . ” ¶36. “[ A]ttorney s are allowed a wide latitude in arguing their cases to the jury

. H owever, prosecutors are not perm itted to use tactics which a re inf l am m atory , h i g h l y p rejudicial, or reasonably calculated to u n duly inf luence the jury .” Dora v
. State , 986 So. 2d 9 17, 921 (¶8)

1 4(Miss. 2008). This prohibit i o n a l s o a pplies to closing argum ents. As f or whether an im p roper com m ent warrants a m i strial, that is a m atter lef t to the trial court’s discretion. Id

. W e will reverse a trial court’s decision if it qualif ies as an abuse of

discretion. Id

. ¶37. The prosecution is p r ohibited f rom im ply i ng that a def

e n d a n t ’ s f

a i l u r e to testif

y is indicative of guilt. Id. at 923 ( ¶11). Even so, “ t here is a dif f erence between a com m ent on the def endant’s f

ailure to testif

y and a com m e nt o n the def e n d ant’s f

ailure to put on a successf ul def ense.” Id

. A c om m ent that im plies a lack of a def

ense “will n ot be c onstrued

as a ref erence to the def

e n d a nt’s f

ailure to testif

y b y innuendo a nd insinuation.” Id

. “The question is w hether t he p rosecutor’s statem ent can be construed as com m enting upon t h e f ailure of the def

endant to take the stand.” Id

. T he com m ent at issue m ust be exam ined in its context. Id . at (¶12). Unless the com m ent is an “ outright violation,” an appellate court “will review the f

acts on a case-by -case basis.” Id

. ¶38. Viewed i n its c ontext, the prosecution was arguing that f our witnesses had testif

ied that they h eard Ellis m ake threats t oward Barry , and there had been no dispute regarding their testim o ny . Ellis claim s that only he could have disputed their t estim ony . Howev er, that claim is based on the assum ption t hat Ellis could not have called any witnesses to testif y that they had never heard him threaten any one. Additionally , the circuit court h ad instructed the jury that i t “m

u st not consider the f

act that [ Ellis] did not t estif y as evidence against him , and

no inf e rence of any kin d m a y b e drawn f rom the f act that [ he] did not testif y i n t his case.” “Juries are presum ed to f

ollow the instructions given to them b y t he court.” Tate v. State , 20 So. 3d 623, 632 (¶21) (Miss. 2009). Based on the totality of the circum stances, the circuit

1 5court did not abuse its discretion when it overruled Ellis’s m otion f or a m istrial. ¶39. T H E J U D G M E N T O F T H E H I N D S C O U N T Y C I R C U I T C O U R T O F CONVICTION O F MURDER A ND SENTENCE OF LI F E I N THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFF I R M E D . ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C.J., GRIFFIS, P.J., ISHEE, CARLTON, MAX WELL, FAIR AND JAMES, JJ., CONCUR. BARNES AND WILSON, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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