IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-00924-COA ANTONIO HALL A/K/A ANTONIO KENTRELL HALL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/15/2017 TRIAL JUDGE: HON. GERALD W . CHATHAM SR. COURT FROM W HICH APPEALED: TATE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W A NDA TURNER-LEE ABIOTO ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ. WESTBROOKS, J., FOR THE COURT: ¶1. On July 14, 2015, a Tate County grand jury indic t e d A ntonio Hall f or one count of conspiracy to com m it m

u r der in violation of Mississippi Code Annotated s e c t ion 97-1-1 (Rev. 2014), and f

or one count of m

urder in violation of Mississippi Code Annotated section 97-3-19(1)(a) (Rev. 2014). Following a jury t rial, which began on M ay 1, 2017, Antonio was acquitted of the conspiracy charge, and the jury f ound him g uilty of f

irst-degree m

urder on May 5, 2017. Following h is conviction, Antonio f iled a m otion f

o r r ecusal, which the circuit

court denied. Antonio also f iled a m otion f

or judgm ent notwithstanding the v erdict (JNOV) or, alternatively , a new trial. Af t er a hearing on his post-trial m otion f or a JNOV or a newtrial, the circuit court rendered f inal judgm ent on August 15, 2017, and sentenced Antonio

to l if e im prisonm ent i n the custody of the Mississippi D epartm ent of Corrections (MDOC). Antonio appealed, and, f

inding no error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. O n F e b r u a r y 8 , 2 0 1 5 , J a m es Shorty and Antonio Hall visited Cau t h e n C i r c l e (Newton), a housing com m unity located i n Senatobia. The m en claim e d they were there to visit the m other of Jam e s Hall’s daughter. For unclear reasons, the m en stopped the vehicle outside o f the hom e of Ludean Carter, an elderly resident. M s. Carter t estif ied t hat she did

not know the m en and t old them to m o ve out of h er y ard. Ms. Carter c laim s that one of the

men y elled back an expletive a nd instructed her t o return to her hom e; she acqu i e s c e d

. Shortly af ter the exchange, eight ey ewi t n e s s e s testif i ed that a phy s ical altercation ensued between Darrius “Dee” Brooks (Ms. Carter’s nephew) and Jam es S h o rty

. T estim ony indicated th a t d u r i n g t he f ight, Antonio r etrieved a handgun f rom the vehicle and shot an undeterm i ned num

b er o f bullets at a by stander nam ed Travis Roberts. 1 R oberts was shot in the chest and pronounced d ead shortly thereaf ter. W hen law enf

o rcem ent arrived, a host of
ey ewitnesses agreed to review photographic lineups and identif ied Antonio as the shooter. ¶3. On July 14, 2015, the Tate C ounty grand jury indicted Antonio Hall, along with Jam es Hall and Jam es Shorty , f o r o n e c o u n t of conspiracy to c o m m it m u rder a nd o ne count of deliberate-design m

urder in c onnection with t h e d e a th of Travis Lam ar R oberts. Arrest

1 T estim o n y co n f

licted r e g a r d i n g to th e n u m b er o f s h o ts f

ired b y A n to n io H all. H o w ev er, it w as co n f

irm ed b y A n to n io ’s o w n testim o n y an d t h at o f sev eral ey ew itn esses, th at h e d id in d eed f

ire th e sh o ts. A lso , co n trary to th e o v erw h e lm in g e y e w i tn ess testim o n y , A n to n io claim s h e sh o t

in to th e air an d n o t at R o b erts.

2warrants were subsequently issued f or all three m en. ¶4. A f t e r n e g o t i ations, Jam es Shorty a nd Jam es Hall pled guilty to a reduced charge of
accessory -af

ter-the-f act on May 22, 2017. On J u ne 1, 2 0 1 7 , they w ere sentenced, respectively , to twenty y ears in the custody of t he MDOC with ten y ears to serve, and placed on ten y e ars of

post-release supervision. Antonio m oved f orward with a jury

trial. ¶5. Prior to t r i a l A n t o n i o f iled a host of m otions, i ncluding a m otion to change venue, which was f

iled on April 13, 2017, and a discovery request. Antonio asserted that he could

not get a f

air trial in Tate County , c i t i n g media coverage of the case and violent threats against the def

endants’ f a m i lies. O n April 19, 2017, t he c ourt held a hearing to a d dress pretrial m otions and ultim ately deem ed i t b e s t to hold the “Motion f or Change of Venue” in abey ance until af

t er the jury w as im

paneled. During the hearing, the court i nquired as to whether there were any discovery issues it needed to address. Antonio’s attorney r esponded that there were not. ¶6. Dissatisf

ied, A n t o nio f

i led a second “Request f

or a Change of V enue” on April 25, 2017, again citing violence against the def endants’ f

am ilies along with p urported f am ilial connections am ong t he jurors, the def e ndants, and the victim

. T he c ourt ultim at e ly determ ined these issues were insuf f icient to warrant a change of venue and denied Antonio’s

m otions. Accordingly , the case proceeded in Tate County

. ¶7. On April 25, 2017, f i v e day s bef

ore trial, Antonio also f

iled a second “Request f

or Discovery ” and a “Motion f or an Om nibus” hearing, m aking s everal evidentiary requests and alleging t he State provided him with in c o mp lete d iscovery

. A ntonio f urther requested

3f

unding f or a b allistic expert and noted that t he S tate had n ot provided the f ull pathology report f or t h e deceased, T ravis Roberts. A s a part of his n um erous discovery requests, Antonio req u e s t e d “any and all police reports, investigative r eports, evidence and supplem ental reports or the like m ade in conjunction [ to] reports of violence that occurred in Newton on February 6, 2015, February 7, 2015, a nd February 8, 2 015.” Although citing the reports as irrelevant, the State provided Antonio with the requested activity l ogs. Antonio also requested NCIC reports 2 o n f ourteen of the S tate’s p o t e n t i a l w itnesses. The State provided NCIC r ep o r t s f or Antonio’s co-def

endants Jam es S horty and Jam es Hall but responded that it did not have reports f o r t h e o t h e r twelve potential witnesses listed. The court addressed the m otions on May 1, 2017, prior to the com m encem ent of the trial. ¶8. On May 1, 2017, A ntonio’s trial ensued. The jury heard sworn testim ony f rom over thirty witnesses over the course of the proceedings—including Antonio. A t the conclusion of the S tate’s c ase i n chief , Antonio m otioned the c ourt f o r a directed verdict. The court denied the m otion and allowed the trial to p roceed. A unanim ous jury acquitted Antonio of conspiracy to com m it m

u rder (Count I) but convicted him of m u rder (Coun t II) on May 5, 2017. On M a y 30, 2017, Antonio f iled a m otion f

or JNOV or, alternatively , a new trial, which the court denied af ter a h earing on the m atter. Additionally , Antonio f iled another post-trial m o tion f

or recusal, which the court also denied. On August 15, 2 0 1 7 , t h e c ourt rendered a f

inal judgm e nt a nd sentenced Antonio to lif e im prisonm ent in the custody of the

2 T h e N atio n al C rim e In f

o rm atio n C en ter (N C IC ) is a clearin g h o u se o f crim in al d ata ad m in istered b y th e C rim in a l Ju stice In f o rm a t io n S erv ices A g en c y o f th e F ed eral B u reau o f In v estig atio n . 4MDOC. Aggrieved, Antonio Hall now appeals.
DISCUSSION ¶9. In h is appeal, A ntonio assigns a total of eighteen errors related t o the denial of pre-and post-trial m otions, as well as voir dire and perceived evidentiary v iolations. Given the
my r i ad of issues raised in the case sub judice, we have categorized and reorganized Antonio’s assignm ents of e rror as necessary to f acilitate clarity and ef

f i ciency

. Likewise, each issue is restated within its respective category f or ease of ref erence. I. Venue
Iss ue 1: W

hether the circuit court erred i n denying Antonio’s requests for a change of venue. ¶10. “A change of venue is at ‘the discretion of the trial court, and its ruling thereon will

not be disturbed on appeal u nless it clearly appears that there has been an abuse of discretion

or that the discretion has not been justly and properly exercised u nder the circum stances of the case.’” Davis v. State, 1 96 So. 3d 194, 1 98 (¶17) (Miss. Ct. App. 2016) (quoting Beech v. Leaf River Forest Prods ., 691 So. 2d 446, 448 (Miss. 1997)). ¶11. “The accused has a right to a c h a n g e o f v enue when it is doubtf ul that an im

partial jury can be obtained.” D avis v. State , 767 So. 2d 986, 993 (¶16) (Miss. 2000). ¶12. M i s s i s s i p p i l a w s e ts f orth a p rocedure f

or def e ndants to estab l i s h a r e q u i s i t e
presum ption that a n i mp artial jury is bey o nd reach in their current venue. “[ A] m otion f or change of venu e must be in w riting and s upported by af f idavits of two or m ore credible
persons showing t hat the def endant cannot receive an im partial and f

a ir trial in t hat particular county because of prejudgm ent of the case or g rudge o r ill will to the d ef endant in the m ind

5of the p ublic.” Gray v. State , 7 99 So. 2d 53, 6 2 (¶33) (Miss. 2001) (internal quotation m arks

om itted) (q u o t i n g Davis , 767 So. 2d at 993 (¶15)); s ee Miss. Code Ann. §99-15-35 (Rev. 2015). ¶13. This presum

p t ion, however, m ay be rebutted by the State upon p roof that an im partial jury was im

paneled d uring voir dire. H

o l l a n d v
. S t ate , 705 So. 2d 307, 336 (¶97) (Miss. 1997). ¶14. In his f

irst a ssignm ent of e rror, Antonio argues that the c ourt erred in deny ing his pretrial “ Motion f

or Change of Venue.” In his m otion, A ntonio c ited several l ocal news outlets reporting the m

urder. Consistent wi t h t he procedure outlined above, Antonio provided supporting af

f idavits f rom his m other ( A r bedella Arm strong) and J am es Shorty ’s m other (Ruthie Lee Hall). Antonio’s s upporting af f idavits and argum ents at the m otion h e a r ing,

m uch like those on appeal, rely prim arily on anticipated gang retaliati o n a n d threats of violence m ade against Antonio’s f am ily

. The court concluded that a c hange of venue would

not “cure or prevent alleged retaliation” and reiterated that the purpose of a venue change is

to “ be certain that the def

endant can obtain a f

air and im partial jury .” At the v enue hearing, though seem ingly unpersuaded b y Antonio’s argum e n ts, t he court, out of an “abundance of caution,” held the m otion in abey ance until af ter voir dire. ¶15. Antonio now a r g u e s t h a t t he court erred by w a i ting until a f t er voir dire to grant a ruling on the venue m otion, c iting the State’s alleged f a i lure to “rebut the assertion of violent threats and actual violence against the f am ily m em

ber of [ A ntonio].” Antonio r e l i es on Davis , 1 96 So. 3 d a t 199 (¶22), where this court f ound that “the t rial court erred in deny ing

6the m o tion f o r change of v e nue in light of the f act that t he State f

ailed to rebut the
presum ption t h a t arose upon Davis’s application f or a change of venue.” In Davis , the def endant was a public of

f i cial entangled in a scandal involving the m isuse of p ublic f unds. Id. Davis was able to establish that there had been a plethora of news coverage related to his arrest, conviction, divorce, sexual orientation, and even an unrelated lawsuit; the stories

were heavily televised and run in the local newspapers. Id

. Antonio’s request based on threats against third parties does not com pare. ¶16. W h en “ reviewing whether the t rial court abused its discretion in deny ing a change of

venue, ‘we look to the com pleted trial, particularly including t he voir dir e e xam i nation of prospective jurors, to determ ine whether the accused r eceived a f air trial.’” Id

. a t 198 (¶19) (quoting Lutes v. State , 517 So. 2 d 541, 546 (Miss. 1987)). In t he present case, the court did

not err by determ i ning whether a f air and i m partial jury c o uld be im

paneled bef

ore m aking

a determ ination with regard to venue. Antonio f a iled to p r o v i d e a suf

f icient basis f

or his

m otion, and voir dire ultim ately am assed an adequate cross-section of f a ir and im partial Tate County jurors f

or im panelm ent. Som e people were indeed rem oved f o r c a use while others

were deem ed c a p a b l e of f airness and im

partiality d espite their loose af f iliations with the victim or other relevant parties. ¶17. “[ O]ur suprem e c ourt has identif ied several f

actors tha t , w h e n p r e s e n t , ma ke the
presum ption f o r a change of

venue irrebuttable,” including the f ollowing: (1) capital cases based on c onsiderations of a heightened s tandard of review; (2) crowds threatening violence toward the accused; [ or] (3) an inordinate am ount of m edia coverage, particularly in cases of (a) serious crim es against inf luential f am ilies;

7(b) serious crim e s against public of f icials; (c) serial crim es; (d) crim es com m itted by

a black def

endant upon a white victim ; [ or] (e) where there is inexperienced trial counsel. Id. at 198 (¶18). ¶18. Antonio also a rgues t hat there was an irrebuttable presum ption that a change of

venue

was warranted b ased on t he news coverage o f the m urder and the portray al of Antonio and his co-def

endants as gang m em

bers. 3 However, the record does not support this assertion. During the hearing on the m otion f or a venue change, Antonio’s t rial counsel adm itted that with regard to m edia coverage, “there [ had] not been any thing recent” but a n t i c i pated that the im pending trial date would “garner f urther m edia attention.” In f act, t h e s t o r y had not b e e n c o v e r ed in the m edia at all since the initial incident, t wo y ears prior to the ve n u e hearing. Based on t he a

bove f acts, we f ind the circuit c ourt did not abuse its discretion and af f irm the court’s denial of

Antonio’s m otion f

or a change of

venue. II. Alleged Discovery Violations ¶19. The Court deem s it appropriate to address issues 2 and 3 collectively

. Issue 2: W

hether the State’s f

ailure to comply with the rules of discovery requires reversal

. ¶20. In his second assignm ent of error, Antonio alleges the State f a iled t o c o m

p l y w i t h basic discovery reque s t s f or (a) police crim e logs, (b) w itness NCIC reports, (c) Travis

3 A n to n io ’s in i tial assertio n th at th e S tate d id n o t ad eq u ately reb u t h i s alleg ed in itial p resu m p tio n co n trad icts t h e arg u m en t th at A n to n io ’s pr e s um pt i on wa s i rreb u ttab le. T h e t w o relev a n t stan d ard s are m

u tu ally ex clu siv e ; o n e creates a n irreb u ttab le p resu m p tio n w h ereb y th e S tate co u ld n o t reb u t A n to n io ’s ch an g e o f v en u e m o tio n an d t h e o th er d o es n o t. A n to n io arg u es th at b o th ap p ly

to a sin g u lar set o f f

acts. 8Robert’s GSR kit, and (d) gang activity rep o r t s . Antonio argues the inf orm ation was
p o t e n tially e xculpatory and withheld in violation of Brady v. Maryland , 373 U.S. 8 3 , 8 7 (1963). 4 ¶21. “A tri a l c o urt’s j udgm ent is presum ptively correct a nd the appellant m u st dem onstrate reversible error to this C ourt. Lenard v. State , 812 S o. 2 d, 1097, 1102 (¶18) ( Miss. Ct. App. 2001) (citing Branch v. S tate , 347 So. 2d 9 57, 958 ( Miss. 1977) )

. P a r t o f the appellant’s burden is to support the argum ent o f the issues with reasons and authorities.” Id

. (citing Pate

v. S tate , 419 So. 2d 1324, 1 3 25-26 (Miss. 1982)). Antonio’s brief raises a num ber of other lone, alleged d iscovery violations. The additional issues are com prised of m ere assertions. Absent the r equired ref

erence to any supporting authority , statutes, or portions of the record that Antonio relied on, we decline review of the purported errors. M.R.A.P. 28(a)(7).
A. Daily Police Crime Logs ¶22. A n t o n i o ’ s s e cond discovery request a sked the State to provide “any and all police reports, i nvestigative r eports, evidence a n d s u pplem ental reports or the like m ade in conjunction reports of violence t hat occurred in N ewton ( Cauthen Circle) February 6, 2015, February 7 , 2015, and F ebruary 8, 2015, that was ref erenced a s b eing a part of the incident

occur r i n g o n February 8, 2015 resulting in the d eath of T ravis Roberts.” C iting Brady , Antonio alleges that although the state pro vided a c tivity logs f or the specif

ied dates, som e

4 B ra d y w as a sem i n al U n i t e d S t a tes S u p r em e C o u rt case in w h ich th e C o u rt estab l ish ed th e req u irem en t f o r th e p r o s e c u tio n to d isclo se an d tu rn o v er all ev id en ce t h at m ig h t ex o n erate a crim in a l d ef en d an t ( i.e., ex cu lp ato ry ev id en ce); th e co u r t h e ld th at “th e su p p ressio n b y th e p ro secu t io n o f ev id en ce f av o r ab le to a n a ccu sed u p o n req u e st v io lates d u e p ro cess w h ere t h e ev i d en c e is m aterial e ith er to g u ilt o r to p u n i sh m en t , irresp ectiv e o f th e g o o d f

aith o r b a d f

aith o f th e p ro secu tio n . ” Id

.

9p o s s i b l y e x c u l p a t o r y l o g s w e r e i ntentionally excluded a n d prejudiced Antonio’s theory of self def ense. ¶23. In agreem ent with the State’s response, we f ind the record reveals this issue i s without

m erit. As an appellate court, we are bound to “ m atters contained in the of f icial record and

not [ m ere] assertions in brief s. ‘Facts asserted to e x ist m ust a nd ought to be def

initely proved and placed bef

ore the Court by a record, certif ied by law; otherwise, we cannot know them .’
T h e C o u rt ‘ does not a ct upon innuendo and unsupported representation of f a c t

. . . .’” McDonald v. State , 807 So. 2d 4 47, 451 (¶14) (Miss. Ct. App. 2001) (quoting C olenburg v. State , 735 So. 2d 1099 (¶6) (Miss. Ct. App. 1999)). ¶24. Daily l o gs provided i n r e s p o n s e t o Antonio’s request were adm itted t hrough the

t e stim ony of Lieutenant Billy B urrow o f t he Senatobia P olice Departm ent. Lieutenan t Burrow testif

ied that the shooting of T ravis Roberts was the only shooting incident reported in the Newton area on the dates requested. Antonio’s r equest specif ically asked f

or reports related to t he death of Travis Roberts, and Antonio f ails to point to any e v idence or testim ony that relevant records existed and were not turned over. Antonio’s f irst Brady claim

f ails.
B. NCIC Reports ¶25. On May 1 , 2017, Antonio f il e d a m otion to com

pel the production of NCIC reports containing t he crim i nal and juvenile histories of each of the State’s witnesses. Antonio alleges that by deny ing his m o tion, the circui t c o u rt and prosecution deprived him of
“m a t e r i a l evidence” af

f ecting the credibility of the State’s witnesses in violation of Brady

1 0and Giglio v. United States , 405 U.S. 150, 154 (1972). 5

¶26. “It is well established that t he State ha[ s] [ a] duty to turn over all exculpatory m aterial relevant to [ a def

e ndant’s] case.” Howell v. State , 9 89 So. 2d 372, 3 78 ( ¶13) (Miss. 2008). “There i s little dispute that a governm ent witness’s prior crim i nal conduct m ay be used f or im p eachm ent p urposes and should be disclosed by t he State.” Minor v. State , 89 So. 3d 710,
71 4 ( ¶ 1 0 ) ( M i s s . Ct. App. 2012). In Minor , w e a ddressed a very sim ilar i ssue regarding a def endant’s m otion f

or the production and disclosure of c r i m i nal records of the State’s witnesses. Id. at 714 (¶8). T his C ourt held that “even where im peachm ent m aterial exists, nondisclosure by the State d oes not necessarily establish that the o utcom e w a s unjust.” Id

. at 7 14 ( ¶11). Minor’s Brady claim f ailed becau s e h e f

ailed to show any evidence that the witness in question had any f elony convictions, thus there was no s howing t hat t h e S t a te suppressed evidence. Id . at 714 (¶12). ¶27. The State contends i t o btained and provided N CIC reports f or the accused and his codef endants and f

u rth e r a r gues that Antonio provided no e v idence that any of t he State’s witnesses had crim i nal histories that should have been disclosed. Antonio provided nothing to counter the State on this issue. Again, Antonio’s B rady claim f ails.
C. GSR Kit ¶28. Antonio cit e s K

ing v. State , 656 So. 2d 1168, 1174 (Miss. 1995) (restating the duty of the prosecution to disclose exculp a t o r y e v i d ence to crim inal def endants as r equired by Brady and Giglio ), once m ore alleging the State withheld exculpatory evidence by f ailing to

5 S u p ra n o te 3

. 1 1subm it the decedent’s GSR kit f or gun-residue testing. Ag a in, t he record does not support Antonio’s claim

. At t rial, f orensic expert David W h itehead o f the Mississippi Forensics Lab testif i ed t hat it is standard procedure to collect GSR s am p les during autopsies, but since 1998 the agency policy h as been not to perf orm tests o n victim kits. W ith gunshot victim s in parti c u l ar, t he test only reveals the obvious; to b e shot, the victim h ad to b e in the environm e nt of

a discharged weapon. W hitehead f urther explained that victim s’ GSR kits are only worked up upon special request. A ntonio presented no evidence that the GSR kit would h ave had a n y e v identiary or exculpatory value; in f act, a ccording t o A ntonio’s own testim o ny , no o n e else at the scene brandished a weapon. A lthough f u tile, Antonio was still
f r e e t o request the test by m otion t o the court. Antonio m a d e no s uch request, a n d , accordingly , this claim was waived and f ails.
D. Gang Activity Reports ¶29. Additionally , Antonio, f o r the f irst time o n appeal, argues that the State im properly denied his request f

o r “ a n y and all p olice r eports, investigative reports, evidence and supplem ental reports or the like m ade i n conjunction [ with] reports of violence that occurred
f rom February 1, 2015 in Newton through F e b r uary 10, 2 015, as i t relates specif ically to violent actions of gang a ctivi t y . ” I n r esponse, the S tate asserted the request was “overly broad a nd irrelevant.” A r e view o f the record r eveals that during a hearing on pending pretrial m otions, held April 19, 2019, the f ollowing exchange occurred am ong the Court, the State, and Antonio’s attorney , Ms. Abioto: The Court: You have a discovery issue?

1 2Abioto: Yes. I h a d m ade a request f o r s o m e supplem entary

discovery , but I’ll take that up if

the State -- The Court: If y ou all ca n n o t r e s o l v e i t , I ’ l l b e h a p p y t o r e s o l v e that by

telephone conf

erence f or y o u af ter today

. Abioto: Yes, Your Honor. Thank y o u. The Court: All right. The State: Y o u r H o n o r , a n d j u s t f o r t h e C o u r t ’ s b e n e f

i t , M s . A b i o t o provided that to m e af

ter s he f iled all these m otions. W e b elieve that m ost of what s h e ’ s a s king f or is irrelevant and won’t be necessary f

or the purpose o f t h i s trial and certainly c ould have been asked f

or several m o nths, i f not a y e ar or s o ago, but we

– The Court: If y ou can’t resolve it, get with m y c ourt adm inistrator and let’s

have a telephone conf

erence and we’ll solve that. Abioto: Okay . Thank y ou, Your Honor, and I have no f urther m otions. ¶30. Following the above e xchange, the record does not ref lect any f urther m ention of this discovery issue by Antonio’s counsel. No m otion to com pel was f iled, and n o objection was raised prior to or during the trial. Theref ore, the issue was not considered by the circuit court and is procedurally barred f r om considerat i o n o n a p p e a l. Fowler v. W h ite , 85 So. 3d 287,
293 (¶21) (Miss. 2 012); see also Te r r e l l v
. S t a t e , 237 S o. 3 d 717 ( Miss. 2018) (“An established principle of appellate review is t hat i ssues not brought bef ore the trial court are deem ed waived and m ay not be raised f or t he f irst t im e on appeal.”)

. A s i d e f r o m the procedural bar, we f

ind no reversible error. This claim f ails as well.
Issue 3: W

hether the circuit court

failed to conduct a proper omnibus hearing. ¶31. The third assignm ent of e rror cites the circuit court’s f a i lure to hold a m a ndatory pretrial om nibus hearing as reversible err o r . A n t o n io’s m otion, which he f iled on April 25,

1 32017—f

ive day s bef

ore trial—sought an om nibus hearing to resolve com plaints r elated to the alleged discovery v i olati o n s a d d r essed above. Having conducted a pre-trial m otion hearing six day s bef

ore Antonio f

iled the om nibus request, the circuit court elected to resolve

t h e d i s c o v e r y com

p laints as a p relim inary m a t ter o n the day of trial. 6 Citing “Rule 4.09, Unif orm Crim inal Rules of

Circuit Court Practice,” Antonio argues the court was required

to h o l d an om n ibus hearing at l east three day s b ef ore his trial. T he State’s response dism issed the claim as m eritless, correctly noting that the Unif orm Rules of Circuit and County Court Practice were in ef f ect at the tim e of Antonio’s trial. Gonzales v. State , 243
So. 3d 244, 246 n.1 (Miss. Ct. App. 2017). In his reply , A n t o n i o a s s e r t ed the error as a

v i o l ation of the Unif

orm Rules o f Circuit and County Court Practice, which at the t i me provided that “[ a]n om n i bus h earing m a y b e held at request of a n attorney

. . . .” URCCC 9.08 (em phasis added). ¶32. Antonio was not e ntitled to t h e h e a r i n g because the applicable r ule is perm issive. Als o , t he court had already held a hearing on A ntonio’s pre-trial m otions a m ere six day s bef ore he f iled the request f

or a second hearing. During t he initial pre-trial hearing, the court entertained and resolved Antonio’s issues as it w ould have in an om nibus hearing; Antonio

was not entitled to a second pre-trial hearing to address the s am e or sim ilar i ssues he f ailed to raise initially . Furtherm ore, Antonio f ails to cite any

actual prejudice that resulted f rom the court’s f

ailure to hold the requested om n ibus hearing, and his claim i s without m erit.

6 D u r in g th e in itial h earin g o n p re-trial m o tio n s, h eld A p ril 1 9 , 2 0 1 7 , t h e c o u rt o f f ered to r eso lv e an y d isco v ery issu es b y telep h o n e co n f

eren ce an d in stru cted A n to n io ’s co u n sel to co n t act th e co u r

t ad m in i strato r if co u rt a s sistan c e w as n ecessary to f acilitate reso lu tio n o f an y d isco v ery issu es. 1 4¶33. Af

ter reviewing the record, we f ind n o reversible error in Antonio’s claim s of alleged discovery violations.
III. Jury Im panelm ent Issue 4: W

hether the jury was properly impaneled

. ¶34. In hi s f

o u r t h a s signm ent of error, Antonio alleges that the jury im panelm ent was im p roper and not in accordance with Mississippi Code Annotate d s e c t i o n 13-5-26 (Rev. 2012), which s tates that “ jurors drawn f

or jury s e r v i c e shall be assigned a t random by the clerk to each jury

panel in a m anner prescribed by the court.” Antonio’s claim i s based on

new num ber assignm ents g iven to three tardy m em bers of t he venire—Juror 241, Juror 242, and Juror 243. The potential jurors were assigned new num bers by t he circuit clerk consequent t o their late arrival during the jury

- qualif ication phase. Antonio f

ails to point to
any statute or other authority prohibiting the reassignm ent. As noted by the State, Mississippi Code Annotated section 13-5-87 (Rev. 2012) provides:
Laws as to listing, drawing, sum m oning and im paneling of

j uries are directory

. All the provisions of law in relation t o the listing, drawing, sum m oning and im p aneling j uries are directory m erely , and a jury listed, drawn, s um m o ned or im p aneled, though in an i nf

orm al or irregular m anner, s hall b e deem ed a legal jury af ter it s hall have been im

paneled and s w orn, and it shall have the p ower to perf orm all the duties devolving on the jury

. ¶35. W h en overruling A ntonio’s m otion f or a m istrial based on the perceived error, Judge Chatham n oted that at l east one of the jurors, Juror 2 42, w as excused f or cause af

ter stating that he could not be f

a ir a nd im p artial. The selected jurors were thoroughly questioned and deem ed qualif

ied f or service during the voir dire exam ination and prior to being sw orn in. As such, we f

ind the jury

was properly

im paneled and that this issue is without m erit.

1 5IV. Alleged Juror Misconduct

¶36. The Court deem s it appropriate to address Issues 5, 6 and 7 collectively

. Issue 5: W

hether jurors committed misconduct by providing f alse information during voir dire.
Issue 6: W

h ether a j uror committed misconduct by failing to acknowledge that he knew certain witnesses.
Issue 7: W

hether a juror commit t e d m i sconduct by failing t o disclose that a family member had been a victim of a violent crime. ¶37. Antonio alleges f

o ur j urors com m itted m isconduct. Antonio was only a b le to provide evidence in support of two of the f our allegations during h is h earing on the m otion f or a new trial and on appeal; the rem aining two were purely b ased in conjecture and s p eculation. As such, we will only

address the substantiated alleged om issions. ¶38. Juror 13, Ralph W illiam s, did not disclose that he knew w itness Robert Carter during voir d ire. Carter and W illiam s a ttended dif f erent churches but sang i n the sam e m ale chorus

on m ost f o urth Sund a y s w hen W illiam s visited Carter’s church. T hey b ecam e F acebook
f riends af t er the trial. ¶39. Juror 32, Janice S tigler, did not disclose that her sister was a victim of a violent crim e during voir dire. Stigler’s sister, Hazel Stigler, was kidnaped and assaulted in June 1987. ¶40. In G reen v. S

tate , No. 2017-KA-01758-COA, 2019 W L 2590865, at *4 (¶21) (Miss. Ct. App. June 25, 2019), this Court addressed a sim ilar issue of j uror m isconduct and held that where, as here, a p rospective juror in a c rim inal c a s e f a i ls t o respond to a relevant, direct, and unam biguous question presented by def ense counsel on voir dire, although having knowledge of the inf orm a tion sought to be e licited,

1 6the trial court should, upon m otion f or a new tri a l, determ ine w hether the question propounded to the juror was ( 1) relevant to the voir dire exam ination; (2) whether it was unam biguous; a n d (3) whether the juror had s u bstantial knowledge of the inf

o rm ation sought to be e l i c i t e d. If the trial court' s determ ination of these inquiries i s in the af f irm ative, the court s hould t hen determ ine if prejudice to the d ef endant in s electing the jury reasonably could be inf erred f rom the juror’s f

ailure to respond. (Quoting Doss v. State , 882 So. 2d 176, 181 (¶5) (Miss. 2004)) (em p hasis om itted). ¶41. W e f

ind that neither of t he om issions cited by Antonio would provide a valid basis f or

a c h a llenge f

or cause. Antonio does not allege o r cite evidence that either juror was im p roperly inf

luenced or t hat he was prejudiced by the om issions. Antonio does not point

to any evidence that the jurors in question were not f air and im partial. Thus, any error with regard to this issue is harm less.
V. Bias/Recusal ¶42. The Court deem s it appropriate to address Issues 8, 9 and 10 collectively

. Issue 8: W

hether the court displayed bias against Antonio. ¶43. Antonio’s eighth assignm ent of error alleges that the c ourt display ed b ias against him by (a) im properly lim iting Antonio’s voir dire and (b) i m properly instructing the circuit clerk

to deny Antonio subpoena p ower and f ailing to issue an order ref lec t i ng t he denial. W e decline t o address the three additional argum ents regarding the court’s alleged bias toward
A n tonio. Although enum erated in his brief , A ntonio ef

f ectively abandons the o t h e r contentions by f

ailing t o d iscuss them bey ond m ere m ention. Antonio provides no rationale

or citations t o authorities, statutes, or parts of the record regarding these issues; as such, they are procedurally

barred. M.R.A.P. 28(a)(7).

1 7A. Voir Dire Limitation

¶44. C i t i n g J

o n e s v
. State , 669 So. 2d 1383, 1 387 (Miss. 1995), Antonio a r gues that the

court “dim inished t he r espect and trust of the j urors” by im properly restricting voir dire. 7
Antonio f urther claim s t hat the court threatened trial counsel with contem p t during voir dire, indicating to the jury that “the judge w as predisposed in f avor of a c onviction, and rendering the trial unf

air.” Antonio’s claim r ef

erences the f

o llowing colloquy between def ense counsel and the circuit court. Abioto: I know y ou all are probably say ing w hat about all these binders

and how long are we really going t o be here, and I can’t t ell y ou, but I know I’m going to d o m y job. So if this trial went bey o nd say the end o f t he week, would any one have a pr o b l em with going into next week? Okay

. Let’s talk a bout that because it’s im portant that we tell y ou the truth. The Court: M s . A b i o t o , i t ’ s n o t g o i n g to happen, so y ou don’t need to

question them

about that. Abioto: You’re say ing I can’t put on m y testim ony , Your Honor? The Court: I don’t know what testim ony y ou’re talking about, but this trial

is not going to go i nto next week, so there’s no need of questioning the panel about it. Abioto: So I can’t ask them – I just w ant to be sure I can’t ask them any

question about if

it went into Monday

or Tuesday ?

7 R o n ald Jo n es arg u ed th at th e trial co u rt w as activ ely in v o lv ed in th e trial o n b eh alf o f th e p r o secu tio n an d th ereb y ex h ib ited b ias th at d ep riv ed Jo n es o f h is co n stitu tio n al rig h t to a f a i r trial. I d

. a t 1 3 8 6

. T h e M ississip p i S u p rem e C o u rt rej ected e a ch o f Jo n es’s claim s related to th is issu e a n d h eld t h at th e cases cited in su p p o rt o f h is arg u m e n t w ere in ap p licab le b ecau se th ey

in v o lv ed statem en ts m ad e b y th e co u rt in th e p resen ce o f th e j u ry ; in Jo n es’s case, th e alleg ed b iased co m m en ts w ere m ad e o u tsid e o f th e j u ry ’s p resen c e . I d

. a t 1 3 8 7

. L i k e Jo n e s, A n to n io a rg u es th e co u r t’s c o m m en t s t o d e f

e n se co u n sel d u rin g v o ir d ire ex h ib ited b ias ag ain st th e h im in th e p resen c e o f

th e j u ry . 1 8The Court: W hy do y ou need to ask them

that if it’s not going to happen? Abioto: Because I’m protecting m y client, Your H o n or. T hat’s all I’m

doing. I ’ m n o t try ing to be disrespectf ul. I just need to know that if any one had any

problem

-- The Court: You are getting real close. Abioto: Yes? I’m

sorry , I didn’t hear y ou. The Court: I said y o u

are getting real close. Abioto: To what? The Court: I’m try ing to give y ou a f air ruling on the c a se, but I’m not going to allow y ou to question the jury about the trial going into next week. Abioto: Thank y ou, Your Honor.
In response, the State argues that the circuit court was within its discretion a n d that the
court’s l im itation on the def ense’s voir dire questioning should not warrant reversal absent proof of “actual harm or prejudice” that resulted theref rom . M orris v. State , 843 So. 2d 676, 678 (¶3) (Miss. 2003). ¶45. “[ V]oir dire is conducted under the supervision o f the court, and a great deal m ust, of necessity , be lef

t to its sound d iscretion.” Foster v. State , 639 So. 2d 1263, 1274 (Miss. 1994) (internal quotation m arks om itted). “The standard of review in exam i ning the conduct of v oir dire is abuse of discretion. Abuse of discretion will only be f o und where a def

endant shows c lear prejudice resulting f r om undue lack of constraint on the prosecu t i o n o r undue constraint of th e d e f

e n s e . ” T aylor v. State , 90 So. 3d 97, 109 ( ¶50) (Miss. Ct. App. 2011) (quoting M

offett v. State , 49 So. 3d 1073, 1089 (¶45) ( Miss. 2 010)). “[ A] v oir dire is

1 9presum ed suf f icient to ensure a f

a ir and im

partial jury

. To overcom e this p resum ption, a party m ust present evidence indicating that the jury was not f air and im partial and show that prejudice resulted f

r om t he circuit court’s handling of voir dire.” Id. at 110 (¶53) (quoting
Ross v. State , 954 So. 2d 968, 988 (¶31) (Miss. 2007)). ¶46. W e m

ust f irst note that Antonio’s assertion regarding the circuit c ourt’s alleged threat of contem pt is a m isrepresentation of the above exchange. At no point was contem pt even

m entioned in t he transcript bef o re this Court. F u r t h e r , while Antonio asserts t hat he was prejudiced by the i nability to question the jurors about the trial going into the next week, he does not point to any clear evidence in support of his claim

. As the State points out, the jury
was perm itted to deliberate and reach a verdict without t he i m position of tim e restrictions. Antonio does not set f

orth any evidence that t he jury w as rushed or im properly im

paneled because of the circuit c ourt’s determ ination that d ef ense counsel’s q

uestions w ere irrelevant.
Because Antonio f

ails to show any prejudice created by t he lim itation, this claim is without

m erit.
B. Juror Subpoenas ¶47. A n t o n i o n e x t c l a i ms that the court display ed bias and abused its discreti o n b y instructing the circuit c lerk not to issue witness subpoena s f o r t h e h earing on Antonio’s “Motion f or a New Trial and Judgem ent Notwithstanding t he Verdict” and cites Rule 33 of the Mississippi Rules o f Crim inal Procedure and Rule 45 of the Mississippi Rules of

Civil Procedure. Antonio also contends that t he court erred by f ailing to issue an order “deny ing” the subpoenas. In response, the State argues that the court properly instructed the clerk and

2 0that Antonio’s r equest to subpoena jurors as witnesses was im proper w ithout the court ’s leave. The State f

urther argues t hat because Antonio’s counsel did not f ollow the a

pplicable procedures, no order was necessary to ref lect the c ourt’s instruction to the clerk. W e agree. ¶48. In support of its stance, t he State p oints to t h e r u l i n g i n G l a d

n e y v
. Clarksdale Beverage Co. Inc ., 625 So. 2 d. 407 (Miss. 1993). In Gladne y , t h e c o u r t outlined the procedure t o be f

ollowed when m e m

bers of the jury are a l l e g e d to have com m itted

m isconduct: “Once an allegation of juror m i sconduct arises, t hen the next step is to consider whether a n investigation is w arranted. In order f or the duty to investigate to a r ise, the party contend i n g t h ere is m isconduct m ust m ake a n adequate showing to overcom e the
presum ption in t his state of jury im partiality

. ” Id. at 418. “At the v ery m inim um , it m ust be shown that there is suf

f icient evidence to conclude t hat good c a use exists to believe that there

was i n f act an im proper outside i nf

luence or extraneous prejudicial inf orm ation.” Id

. at 419.
W h ile g ood cause i s the bare m inim um sta n d a r d , “ the pref

e rable showing should clearly substantiate that a specif

ic, non-speculative i m

p ropriety has occurred. The suf f i c i e n c y of such evidence shall b e determ ined by the circui t court if a post-trial hearing is indeed warranted under these standards.” Id. ¶49. Af t e r p e r f o r mi n g her own am ateur genealogy research using Facebook and other unclear m ethods, trial coun s e l b e l ieved she had uncovered inf orm ation evincing juror

m isconduct. Seeking to verif y the suspicions, Antonio’s counse l a ttem pted to subpoena several m em

bers of the j ury to testif

y at the h e a r i n g on Antonio’s m otion f or a new trial.
C o unsel f ailed t o present the a lleged f indings to t he court and obtain l eave to subpoen a

2 1mem

bers of the jury

. Noting counsel’s f ailure to com

ply with the applicable, requisi t e requirem ents, the trial judge i nstructed the c i rcuit clerk not to issue the juror subpo e nas, ef f ectively quashing them

. ¶50. It is within the province of the circuit court t o “ s u pervise these post-trial investigations

to ensure that jurors are protected f rom harassm ent a nd to g uard against inquiry into subjects bey ond which a juror is com petent to testif

y under M.R.E. 606(b).” I d. This “supervision is warranted to protect the interest of the parties and jurors.” Id. ¶51. Antonio’s trial counsel f a iled to adhere t o any of the outlined procedures and instead sought t o subpoena m em

bers of t he jury without the court’s perm ission or oversight. The

court ref uted the allegation that it had instructed t he clerk to d eny all o f A n t o nio’s f uture

s ubpoena request and, in f a ct, m ade it clear during a hearing on the m atter tha t A n t o n i o “certainly [ had] a right to s ubpoena non-jurors” as long as t he requests were p roperly prepared in accordance with Mississippi rules. T hus, the issue raised here is w ithout m erit.
Issue 9: W

hether the c ircuit court erred in its application of Rule 606( b ) of the Mississippi Rules of Evidence ¶52. W e now turn to Antonio’s ninth assignm ent o f e r ror, in which h e contends the circuit

court erred in its application of Rule 606(b) of the Mississippi R ules of Evidence. D e s pite Antonio’s f

ailure to f ollow t he applicable procedure to obtain leave to s u b p oena m em bers of t he jury as w itnesses, t he court took the issue up f o r r eview. In relevant p art, Rule 606(b), addressing a juror’s com

petency as a witness, provides: During an Inquiry

into the Validity

of a Verdict or Indictm ent. (1) Prohibited Testim o ny or Other Evidenc e . During an inquiry into the

2 2validity of a verdict or indictm ent, a juror m ay not testif y about any statem ent m ade or incident that occurred during t h e jury ’ s deliberations; t he ef f ect of any thing on that juror’s or another juror’s vote; or any juror’s m ental processes concerning t he v erdict or indictm ent. The c ourt m ay not receive a juror’s af f idavit or evidence of

a juror’s statem ent on these m atters. (2) Exceptions. A juror m ay testif y about whether: (A) extraneous prejudicial inf orm ation was im

p roperly b rought to the jury ’s attention; or (B) an outside inf

l uence was im

properly brought to bear on any juror. ¶53. A n t o n i o d o e s not allege that either of the e x ceptions listed in Rule 60 6 ( b ) w e r e applicable to his case. A ntonio m ade a ttem pts to subpoena and question jurors without leave
f rom the court or an a dequate basis f or requiring t heir testim ony at h is h earing. The circuit

court correctly advised the clerk regarding Antonio’s requests and c orrectly d eterm ined that there w as no suf

f icient b asis t o allow Antonio to s ubpoena the jury m em bers. Af ter reviewing the record, we f ind no error.
Issue 10: W

hether the tria l j u d

g e e rred in denying A n tonio’s motion for recusal

. ¶54. In his tent h a s s i g n me n t of error, Antonio argues that the court erred by deny ing his

m otion f or recusal. The previously discussed claim s of bias serve as s u p p o r t f o r t his assertion; because we f

ound those claim s to be without m erit, this claim necessarily

f ails.
VI. Evidentiary Issues ¶55. The Court deem s it appropriate to address Issues 11 and 12 collectively

. Issue 11: W

hether the circuit court abused its discretion by admitting a bullet into evidence

. ¶56. Antonio’s eleventh assignm ent o f error a rgues that the court abused its discretion by allowing a bullet recovered f rom the vehicle used in t h e c o m mi s s ion of the shooting t o be

2 3entered into evidence during t he trial. Antonio alleges the b ullet was planted by authorities.

The bullet in question was recovered f rom the vehicle during processing at the Mississippi Crim e Lab. ¶57. In Shelton v. S

tate , 4 5 S o . 3d 1203, 1209-10 ( ¶¶16, 1 8) (Miss. Ct. App. 2010), the def endant argued that t he trial court should have suppressed a duf f le bag of m a r ijuana used

as evidence in his prosecution, a sserting that the prosecuti o n f a i l e d to “dem onstrate a suf f i cient chain of custody .” This Court rejected Shelton’s argum ent, holding that “[ i]n such

m atters, t he presum

ption o f r e g u l a r i t y supports the of f i cial a c ts of public of

f icers, and the burden to p roduce e vidence of a b r o k e n chain of custody (i.e., tam pering) is on the d e f e n dant.” Id. at 1210 (¶19) ( citing Ellis v. State , 9 34 So. 2d 1000, 1005 (¶22) (Miss

. 2006)). ¶58. Antonio has f

a iled to establish any break in the chain of custody t o support h is theory of planted evidence. Instead, A ntonio relies on m ere a l l e g a t i o ns t hat are insuf f icient to bolster his argum e nt. Absent evidence of any k ind t o advance A ntonio’s t heory , we decline to reach the m erits of

the claim

. Issue 12: W

hether the circuit court erred in e xcluding Mary J

o nes’s testimony

. ¶59. In his twelf

th assignm e nt of error, Antonio argues that the court erred by excluding the proposed testim ony o f def ense witness Mary Jones. J ones was n o t a l i s t ed party on Antonio’s witness list, and, a ccording to Antonio’s trial counsel, did not com e f orth until the end o f t h e t r i al. During Jones’s p rof f er, t he c ourt learned that Jones sat in t he courtroom during the trial. Af

ter listening to o ther sequestered witnesses testif y , J ones c laim e d that she

2 4realized “they [ w ere] leaving parts out” and decided to of f e r her account o f e vents on behalf of the def endant. The court a l s o h e ard testim ony t hat Jones did not have any testim ony to of f er regarding t he altercation that occurred prior to t he shooting or t he shooting itself ; she arrived a t t h e scene af

ter the incident. Jones also testif ied that she had an ongoing relationship with the district attorney ’ s of f ice and was a f

riend of Hall’s f am ily but did not of f er herself as a witness f

or either party

during the two-y ear period prior to the trial. ¶60. Mississippi Rule of Evidence 615 provides that “[ a]t a p arty ’s request, the court m ust order witnesses e xcluded so that they cannot hear other witnesses’ t estim ony . ” “The rule’s
purpose is to ‘exercise a restraint on witnesses “tailoring” their t estim o ny t o that of earlier witnesses and aid in d etecting testim o ny that i s less than c andid.’” Randle v. S tate , 220 So. 3d 217, 222 (¶13) (Miss. Ct. App. 2017) (quoting Avery v. State , 119 So. 3d 317, 319 (¶7) (Miss. 2013); Douglas v. State , 5 25 So. 2 d 1312, 1316 (Miss. 1988)). “Sim ply p ut, Rule 615 guards against ‘f

alsif ication, inaccuracy , and collusion.’” I d

. (quoting Avery , 119 So. 3d at 319 (¶7) (quoting M.R.E. 615 advisory com m i ttee note). ¶61. In the case sub judice, t he State invoked the seq u e s t e r r u l e . A s the State noted,
“f ailure to com

ply with a sequestration order does not autom atically render [ a ] witness’s testim o ny inadm issible. Rather, the decision to e xclude t he witness’s t estim o ny rests within the trial court’s sound discretion.” Harri s v
. S t a te , 937 So. 2d 4 74, 479 (¶16) (Miss. Ct. App. 2006). As an a

ppellate court, we are “lim ited to an abuse-of -discretion standard when reviewing an alleged sequestration violation.” J ohnson v
. State , 242 So. 3d 145, 163 (¶36) (Miss. Ct. App. 2017) (quoting W hite v. State , 127 So. 3d 170, 173 ( ¶10) ( M i s s . 2013)).

2 5“ R e v e r s a l is not j ustif i ed u nless t here is a showing of prejudice suf f i cient to constitute an abuse of discretion on t he part o f the t rial judge in not ordering a m istrial or not excluding testim o ny .” Id. (quoting W hittington v. State , 748 So. 2d 716, 719 (¶19) (Miss. 1999)). ¶62. Antonio has not s h own t hat the decision to e xclude Jones’s testim ony prejudiced him

. Jones w a s n o t o f

f ered a s a rebuttal witness and did not prof ess to have any f

irst-hand knowledge of the shooting or t he events leading up to the incident. Accordingly , we f ind the

court com m itted no error by excluding the testim ony

of Mary Jones. The court declined to violate Rule 615, and we f ind no error or m erit to Antonio’s argum ent.
VII. Continuance
Issue 13: W

hether the c ircui t court e r red in denying A ntonio’s motion for continuance. ¶63. Antonio’s thirteenth assignm ent of error i s that his d e f e n s e w a s p r ejudiced by

the circuit court’s denial of his continuance request seeking tim e t o g e t Of f icer Kirkwood to
court to testif

y . T he State argues that there w as no m anif est injustice b ecause the testim ony Antonio’s def

ense counsel s o u g h t t o illicit f r om Of f icer K irkwood was determ ined to be inadm issible hearsay . W e agree. ¶64. Mississippi Code An n o t a t e d s e c t i o n 9 9

- 1 5

- 2 9 (Rev. 2015) provides as f ollows regarding continuance requests:
On all applications f

or a continuance the party shall set f orth i n h is af

f idavit the f acts which he expects to prove by his absent witness o r docum ents that the court m ay j udge of t he m ateriality of such f acts, the nam e and r esidence of the absent witness, that he has u sed due diligence to procure the a bsent docum ents, or presence of the absent witness, as the case m ay be, stating in wh a t s u c h diligence con s i s t s, a nd that the continuance is n ot sought f o r delay o nly , but that justice m ay be done

. T h e c o u r t m ay g rant or deny a continuance, in its

2 6discretion, and m ay of its own m otion c ross-exam i ne the party m aking the

af f idavit. The attorney s f

or t h e o t h e r side m ay also cross-exam ine and m ay introduce evidence by af

f idavit or otherwise f

o r the purpose of showing t o the court that a continuance should be de n ied. No application f o r a continuance shall be considered in the absence of the p arty m aking the a f f i davit, unless his absence b e a ccounted f

o r t o t h e s a tisf

action o f the court. A denial of the continuance shall not be ground f or reversal unless the s uprem e court shall be satisf ied that injustice resulted theref rom . “The decision to grant or d eny a m otion f or a continuance is w ithin the sound discretion of the trial court and will n ot be reversed un l e s s t h e d ecision results in m anif est injustice.”
Boone v
. S

tate , 9 7 3 So. 2d 237 , 2 4 1 ( ¶ 1 3 ) ( M iss. 2 008) (quoting Ross v. State , 954 So. 2d 968, 1007 (¶91) (Miss. 2007)). ¶65. F o l l o w i n g a hearing on t he m atter, the court deduced that O f f i c e r K i r k w o o d ’ s
p r o p o s ed testim ony centered around a statem ent t aken f rom Jam es S horty ’s m other a b o u t threats of violence a gainst their f am ily in the wake o f Roberts’s death. The court determ ined that t he testim ony would be inadm issible hearsay a n d irrelevant t o the determ ination of guilt

or innocence of A ntonio. The court denied Antonio’s m otion to continue the trial so that Of f i c er Kirkwood could be re-subpoenaed and p roduced. Because the testim ony of the proposed witness would have b een inadm issible and was i rrelevant to t he m atter at hand, we f ind the circuit court was within its discretion to d eny the continuance. This issue is without

m erit.
VIII. Alleged Prosecutorial Misconduct ¶66. The Court deem s it appropriate to address Issues 14 and 15 collectively

. Issue 14: W

hether the State committed prosecutori a l m i

sconduct that warrants reversal.

2 7¶67. Antonio alleges t hat th e S t a t e , b y c om m itting the previously discussed discovery

violations, com m itted prosecu t o r i a l m isconduct warranting reversal. Having f ound the discovery violations raised to be without m erit, this claim f ails.
Issue 15: W

h ether the State made an improper “send a message” argument. ¶68. In his f

if t eenth assignm ent of e r r o r , A n t onio also argues that t he State com m itted prosecutorial m isconduct b y m aking a n im proper “send a m essage” argum ent i n its closing. During closing argum ents, Antonio’s counsel rem arked: Abioto: I know Travis Roberts’ lif e has been worth som e thing. He h as to stand as a beacon to stop the violence, to stop the killing. In its closing argum ent, the State responded as f ollows: The State: I a gree 100 percent with Ms. Abioto t hat the violence h as got to

stop.

. . . P eople, if y o u want to stop the violenc e , w hen y ou have evidence in f

ront of y ou like y ou do h ere today , y ou m ust hold those that are responsible f or the g un violence accountable f or their a ctions, and y o u hold him accounta b l e f or his actions by y our verdict of guilty of c onspiracy a nd guilty of m urder. Thank y ou. Adm ittedly , the State’s com m ents m ay have constituted an inappropriate “send the m essage”

a r g u me n t

. It m ight also be argued that the S tate’s com m e nts were spurred by the rem ark s of Antonio’s counsel. However, the court did not r each the m erits of this argum e nt because no objection was m ade during trial. ¶69. “If no contem

poraneous objection is m ade, t h e e r r o r , if any , is waived.” Bryant v. State , 232 So. 3d 174, 182 (¶22) (Miss. Ct. App. 2017) (quoting Stevenson v. S tate , 156 So. 3d 9 27, 930 (¶13) (Miss. Ct. App. 2015)). W hen “no objections were raised at trial, the def endant who f

ails to m ake a contem

poraneous objection m

u st rely on plain error to raise

2 8the assignm ent on appeal.” Id. at (¶23) (quoting Hurt v. State , 34 So. 3d 1191, 1196 (¶12)

(Miss. C t. App. 2009)). “A review under the plain-error doctrine is necessary when a party ’s f undam ental rights are af

f ected, a nd the error r e s u l t s in a m anif est m iscarriage of justice.” Id. ¶70. “In general, t he f

a ilure to o bject to t he prosecution’s statem ents in closing argum ent constitutes a p rocedural bar. However, in extrem e cases, a f ai l u r e t o object to questions which were violative of a constitutional right will n o t a c t as a procedural bar to consideration.” Dampier v
. State , 973 So. 2d 221, 235 (¶39) (Miss. 2 008) (quoting Ross v. State , 954 So. 2d 968, 1001-02 (¶71) (Miss. 2007)). ¶71. Antonio’s attorney does not allege a violation of any constitutional right, nor does the record reveal any resulting m iscarriage of justice f rom t h e S t a t e’s com m ents; the overwhelm ing weight o f t he evidence f avors A ntonio’s conviction. No contem p oraneous objection to the prosecution’s closing argum ent was raised at trial. Theref ore, this claim

is procedurally

barred.
IX . Jury Instructions Issue 16: W

h ether the circuit court properly instructed the jury. ¶72. The court d enied Antonio’s self -def ense jury instructions (D-1-10; D -1-11; and D-1- 12), f inding that Antonio’s theory of self -def ense w as not s upported by t h e e v i d e n ce. Antonio contends that he was entitled to th e s e l f

- d ef ense and def

ense of others jury instructions because “[ Antonio] and his co-def endant were blocked in b y s e veral cars and s u rrounded by several persons that were f i ghting them .” Again, the r ecord does not support Antonio’s

2 9assertion. Antonio’s t estim ony at trial revealed that no one , including Roberts or the active participants in the f

ight—other than him

— had or b randished a weapon during the encounter. ¶73. W h en reviewing the denial of jury i nstructions, our applicable standard o f review is abuse of discretion. Newell v. State , 49 So. 3d 66, 73 (¶20) (Miss. 2010). ¶74. In Roberson v. State , 19 So. 3d 95 (Miss. Ct. App. 2009), the Court held that [ c]laim s of

self -def ense in a hom icide case m u st be supported by

f actual and circum stantial evi d e n c e f r om which a jury m ay determ ine that ‘a def endant was justif

ied in having com m itted t h e hom icide because he was, or had reasonable g r o u n d s t o believe that he was, in im m inent danger of suf f ering death or g reat bodily harm at the h ands of the person k illed.

. . .’ Merely stating that a killing was done in self -def ense will not s uf

f ice to support s uch a theory

. Id. at 100 (¶6) (quoting Strong v. State , 600 So. 2d 199, 203 (Miss. 1992)). ¶75. In a ddition to Antonio’s testim ony , the court was able to consider the sworn testim ony of eight ey ewitnesses, stating that T r a v i s Roberts was not directly i nvolved in the f ighting but rather a m ere by stander. W itness accounts i ndicate that Antonio’s co-def endant Jam es Shorty and Darrius Brooks were e ngaged in a phy sical f ight, and neither of the m en or their
f riends h ad weapons. Each of the State’s w i t n e s s e s g a ve nearly identical accounts of the

events f rom their various vanta g e points, and each witness indicated that Antonio was the sole party responsible f

or introducing a gun to the f ist f ight. Additionally , witness testim ony revealed that Antonio approached Roberts with the f irearm , seem ingly unprom pted. Based

on the accounts and Antonio’s own testim o ny , the court correctly determ ined there was no evidentiary basis to support a s elf

- def ense instruction. Given the f a cts and testim ony in the record, a j ury could not have reasonably concluded that Antonio shot Roberts in def ense of him self or others; thus the instruction was properly denied.

3 0X . Sufficiency of the Evidence

Issue 17: W

hether t he c ircuit court e rred in denying A nto n i o ’ s motion for a JNOV or new trial. ¶76. Antonio’s s eventeenth assignm ent of error challenges the suf f iciency of the evidence considered by the j ury i n s u p port of his conviction. The State argues t here was indeed suf f i cient evidence f

or the jury

to reach a guilty v erdict, considering the essential elem ents of the crim e of f

irst-degree m

u rder. ¶77. “ I n r eviewing a challenge to the suf f iciency o f the evidence, the critical i n q u i r y i s ‘whether, af

ter viewing the evidence in the l ight m ost f avorable to the prosecution, any rational trier of f

act could have f

ound t he e ssential elem ents of t he crim e bey ond a r easonable d o u b t

. ’” Parish v. State , 176 S o. 3d 781, 785 (¶13) (Miss. 2 015). “ The credible evi d e n c e supporting the def

endant’s guilt m

ust b e taken as t rue, and the prosecution m ust be given the b e nef it o f all reasonable inf

erences that m ay be r easonably drawn f rom the evide n c e . ” McClain v. State , 625 So. 2d 774, 778 (Miss. 1993). ¶78. During trial, t he j ury heard testim ony f rom nine ey ewitness e s , i n c l u d i n g Antonio,

c o n f i r mi n g that Antonio s hot a g un at the scene of the incident. Eight of those witn e s s accounts identif

ied Antonio Hall as the individual who f atally shot Travis Roberts at close
range. Based on t he testim onial evidence alone, a rational trier o f f act could have f

ound and d i d f i n d t hat t he essential elem ents of m urder w ere proven bey ond a reasonable doubt. Accordingly , Antonio’s claim challenging the suf

f iciency of t he evidence f

ails.
X I. Cum ulative Error Issue 18: W

h ether an accumulation of errors requires reversal.

3 1¶79. Finally , Antonio u rges t hat “extensive c um ulative errors” warrant the grant of a new trial. The Mississippi “cum ulative-error doctrine stem s f rom t he doctrine of harm less error, codif i ed under Mississippi Rule of Civil Procedure 61.” Ross v. State , 954 So. 2d 968, 1018 (¶138) (Miss. 2007). The cum ulative-error doctrine “holds that individual errors, w hich are
not reversible in them selves, m ay com bi n e w i t h o ther errors to m a ke u p reversible error, where the cum

u l ative ef f ect of all errors deprives the d ef endant of a f

undam entally f

air trial.” Id. ¶80. “A def

endant is e n t i t l e d to a f

air trial but n ot a perf

ect one, f or there are no perf

ect trials. ” Brown v. United States , 4 11 U.S. 223, 231-32 (1973). W hile Antonio’s claim s of

error are num erous, we have f ound only one harm less error related to juror m isconduct. As stated, the error was harm less, and we do n o t f ind t hat it rendered the trial f u ndam entally unf air. There was overwhelm ing evidence to support the jury ’s verdict, notwit h s t a nding prejudice alleged f

rom the isolated error. ¶81. Af ter a thorough review of the record, we i dentif y no errors requi r i n g a n e w trial. Accordingly , we af

f irm Antonio Hall’s m

urder conviction and sentence. ¶82. AFFIRMED. BARNES, C .J., J. WILSON, P.J., G REENLEE, TINDELL, LAWRENCE, McCARTY AND C. W ILSON, JJ., C ONCUR. CARLTON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. M cDONALD, J., NOT PARTICIPATING.

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