IN THE SUPREME COURT OF MISSISSIPPI
N O. 2016-KA-01146-SCT DAV ID THOMAS a/k/a DAV ID LEE THOMAS

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/06/2016 TRIAL JUDGE: HON. JEFF W EILL, SR. TRIAL COURT ATTORNEYS: BRAD McCULLOUCH GRETA HARRIS CHRISTOPHER ROUTH ERIC BROW

N COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES MICHELE PURVIS HARRIS DAVID THOMAS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/14/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. David Thom as a dm itted in oral and written statem ents to police t h a t h e a nd Jontez G a r v i s had attacked F red Jackson and stolen cash f rom him

. Af

ter being hospitalized f

or f orty -one day s d

ue to t he injuries inf

licted b y t h e t w o men, Jackson died. Thom as was indicted f or and c o nvicted of capital m urder. The trial court sentenced Thom as to lif e inprison without parole. Af ter review, we af

f irm Thom a s’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY ¶2. On January 29, 2012, Sean Snow, a deputy sherif f , r esponded to Tri-State R ecy cling, also known as The Can Man, located at 416 W o odrow W i lson Drive in t he City of Jackson, First Judicial District of Hinds County , Mississippi, pursuant to a 911 call. The 911 caller reported that a m an was ly ing unresponsive behind The Can Man. Deputy S now f ound the

ma n , who later was i dentif ied a s Fred Jackson, ly ing on his back. According to Deput y Snow, Jackson’s “[ f

]ace was kind of bluish gray ,” his f ace was brui s ed, and h e had “dried
up blood on the right-hand side of his head.” Deputy S now called Am erican Medical Response (“AMR”) a nd the f ire depar t me n t t o t h e scene and t hey transported Jackson to University of Mississippi Medical Center (“UMMC”). Deputy Snow accom panied Jackson to UMMC where a phy sician inf orm ed him

that Jackson had a “f

if ty /f if ty chance.” ¶3. Depu t y S n ow obtained and reviewed surveillance videotape f ootage f rom The Can
Man. He testif

ied t h a t , o n the surveillance videotape f ootage, he had observed two m en entering T he Can Man, m oving to the rear o f t he property , a nd proceeding behind a parked truck. The two m en “ a p p e a r e d to be striking M r. Jackson” and continued doing so “som ewhere around f

ourty [ sic], f orty -one, seconds.” ¶4. Of f icer F elix Hodge of the R obbery Hom icide Division of the Jackson Police Depar t me n t r e c e ived a tip t hat David Thom as was in a room at the Studio 6 Motel on Interstat e - 5 5 North. The record is silent as to how Thom as had becom e a suspect. According to Of

f icer H odge, the room was registered to a Tera J ohnson and w hen a n attem pt

2was m ade to contact the occupant of the room , Thom as i nitially said his n am e was Jerrell

Davis. Af ter Thom a s was taken into custody , Of f i cer Hodge recited M

iranda 1 w arnings and obtained Thom as’s written waiver. ¶5. Of f icer Hodge th e n interviewed Thom as. A video r ecording o f the interview was play ed f or the jury at Thom as’s trial. Thom as said during the i nterview that he had gone to The C an Man to “get a battery to get cash” i n order to f inance a visit to Nightlif

e , a nightclub

at which a rapper b y the n am e of Future was t o perf orm a show. In the jury ’s presence, Of f icer Hodge read the statem ent Thom as gave: Jontez [ Garvis] cam e to m y house that m o rning a n d got m e. H e asked m e was I r ea d y to go g e t those batteries? He said that he needed m oney f or child support and pam

pers f or his baby

. W e w ent through the pathway in the place. W e were looking around but didn’t f ind the batteries. I heard a noise, like, a welding m achine or a generator. I ask e d [ G a r v i s ] did h e hear that? And he said: No. I saw the truck. And I said: Man, there is som ebody out here. He said: So, we can get him

. W e went up t o t he m a n a n d attacked him

. I hit him once. [ Garvis] hit him two o r three t im es. W e weren’t planning on it to h appen to him like that. I was scared f rom that m orning o n. [ Garvis] called som e body to com e pick u s up. W e went to the house. A nd I thought a bout it. W e pray ed that [ Jackson] would m ake it through, and every thing would be okay

. Thom a s also indicated in his written statem e nt and in the interview that h e and G arvis had taken $250 f

rom Jackson and that they had h i t h i m w i t h the rod with which he had been welding. ¶6. Af ter f orty -one day s at UMMC, Jackson d ied o n March 9, 2012. On May 9, 2012, Thom a s a n d Garvis were indicted jointly f or capital m

urder. The State did not seek the death penalty and requested that the cases “be severe d f o r p u r p o s e s of jury t rial.” The Circuit

1 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3Court o f the First Judicial District of Hinds County granted the m otion to sever T hom as’s and

Garvis’s jury

trials. ¶7. Dr. Erin Barnhart, who in 2012 was a deputy m edical exam iner with the Mississippi Medical Exam iner’s Of

f ice, t estif ied that she perf

orm ed the autopsy on Jackson on March 10, 2012. Dr. B arnhart testif ied that Jackson’s head had s uf f ered m u ltiple f ractures: “f ractures of the calvarium , or top of the head; f ractures at the base of the skull which is the inner aspect of the c ranial cavity ; and m ultiple f ractures of h is f

a ce.” She continued: “[ H]e had [ ] partially healed cerebral co n t u s i o n s o r b ruising of the b rain” and “a subdural hem atom a[ ,] which m eans blood w ithin the cranial cavity between the brain a nd the surf ace of the skull.” Dr. Barnhart testif ied, to a reasonable d e g r e e o f scientif ic certainty , that the

c a use of Jackson’s death w as com plications of blunt head traum a, and the m anner o f h i s death was hom icide. ¶8. On cross-exam ination, Dr. Barnhart was asked about a notation in the autopsy report of “probable aspiration pneum onia.” According to Dr. Barnhart, aspiration pneum onia “is generally caused w hen som e one cannot protect t heir airway ,” m eaning “th a t t h e y have an altered level of consciousness a nd t heref ore m ay aspirate or breath i n m ucus, a nd hence bacteria that a re in their m o uth,” theref ore, “ a p neum onia m ay deve lop.” Dr. Barnhart testif i ed t hat Jackson was to be d ischarged to a nursing hom e. She stated that the aspiration
pneum onia m ay have contributed to Jackson’s death, but that aspiration pneum onia could be ruled out as a cause of death. ¶9. The t rial court denied Thom as’s m otion f or a d irected v erdict. A f

ter consultation with

4the trial court a nd def ense c ounsel about his r ight to testif y in his def

ense, Thom as decided

not to do s o . T h e d e f

ense i ntended to call two witnesses, Dr. Steven Hay ne and Jontez Garvis, f o r Thom a s’s case-in-chief

. ¶10. Pretrial, t he State h a d m oved in limine to exclude the testim ony of Dr. Hay ne. Af ter

a Daubert

2 hearing, the trial court granted the State’s m otion an d e x c l uded Dr. Hay ne’s testim o ny . The def

ense m oved f

or reconsideration ore tenus bef ore its case-in-chief

, and the trial court denied the m otion. The def ense then called Jontez Garvis to testif y . ¶11. Af ter the close of testim ony and closing argum ents, the jury retired to deliberate. It
f ound Thom as guilty of capital m u rder. T he trial c ourt sentenced Thom a s to lif e im p risonm ent without the possibility of parole. T he trial court denied Thom a s ’s m otion f or judgm ent notwithstanding the verdict. ¶12. Thom as now a

ppeals. His counsel raise s t wo issues. F irst, he argues that the State f ailed to adduce suf

f icient evidence to support t he jury ’s verdict. Second, h e argues that the trial c o urt erred by e xcluding Thom as’s proposed expert def e nse wi t n ess, D r. Hay

ne. Thom a s a l so h as f

iled a supplem e ntal brief

, pro se , in which he raises the f o llowing issues:
1. W hether the trial court erred by f inding Thom as com

petent to stand trial.
2. W hether the trial court erred by deny ing Thom a s’s m otion to recuse the trial judge.
3. W hether the trial court m isapplied Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

2 D a u b ert v

. M errell D o w P

h a rm s., In c. , 5 0 9 U .S

. 5 7 9 , 1 1 3 S

. C t. 2 7 8 6 , 1 2 5 L

. E d

. 2 d 4 6 9 (1 9 9 3 ). 54. W hether the trial court erred by excluding Thom as’s proposed expert def ense witness, Dr. Steven Hay ne. 5. W hether the trial court erred by deny ing jury

instructions requested by Thom as’s counsel.
6. W hether the trial court erred when it ref used to instruct the jury

on the elem ents of

arm ed robbery

. 7. W hether cum

ulative error requires reversal. ¶13. W e address e ach issue in t urn. For clarity , we will a d d r e s s Thom as’s pro-se claim concerning Dr. Hay

n e together with his counsel’s cl a i m. We a lso will com bine our discussion of the errors that Thom as claim s concerning the jury instructions. Additiona l fa cts and procedural history will be discussed as necessary f or each issue.
ANALYSIS
I. Whether the State adduced sufficient evidence to support the jury ’s verdict. ¶14. Thom as’s c ounsel f irst argues that “ [ t]he expert testim ony f rom Dr. Barnhart shows

t h a t t h e S t a t e f

ailed to prove bey ond a reasonable doubt t hat any dam age inf licted by th e Def endant was the legal cause of death.” Dr. Barnhart testi f i e d , t o a reasonable d egree of scientif i c certainty , that the cause of Jackson’s death w as c om plications of blunt head traum a, and the m anner of h is death was hom icide. Dr. Barhnart testif ied that aspiration pneum onia “certainly m ay b een c o n t r i b u t ory ,” but that aspiration pneum onia could be ruled out as a cause of Jackson’s death. ¶15. Th i s C o u r t , in S

helton v. State , 214 So. 3d 250, 256 ( Miss. 2 017), detailed our f am iliar standard of

review f or a challenge to the suf

f iciency of the evidence:

6This Court r eviews a challenge to the suf f iciency of the evidence under the standard detailed in B ush v. St a t e , 895 So. 2d 836, 843 (Miss. 2005) [ abrogate d o n other grounds by Little v. State , 233 So. 3d 288, 292 (Miss. 2017)]. W e recognize that “the critical inquiry ” under the standard is whether the evidence su p p o r ts a f inding that the accused “com m itted the a c t charged

. . . under such circum stances that every elem ent of

the of f ense existed.” Id

. “‘[ T]he relevant question is whether, af ter viewing the e v ide n c e i n the light m ost f avorable to the p rosecution, any r ational trier of f act could have f

ound the essential elem ents of the crim e b ey ond a reasonable doubt.’” Id

. (quoting Jackson v. V

i rginia , 4 43 U.S. 307, 319, 99 S. Ct. 2781, 6 1 L. Ed. 2d 5 60 (1979) (em

phasis in original)). Further: if a review of

the evidence reveals that it is o f such quality and weight that, “having in m ind t h e b e y ond a r easonable doubt burden of proof standard, reasonable f a i r-m inded m en in the e x e r c i se o f im

p artial judgm ent m ight reach d if fe r e n t c o n c l u s i o n s on every elem ent of the of f ense,” the evidence will be deem ed to have been suf

f icient.
Id .; see also Roby v. State , 183 So. 3d 857, 869 (Miss. 2016). Shelton , 214 So. 3d at 256. ¶16. “The killing of a h u m an being without t he authority o f law by a n y me a n s or in any

m anner shall b e capital m u rder

. . . [ w]hen done with or without any design to ef f ect death, by any person engaged in the com m ission of the crim e o f

. . . robbery

. . . . ” M iss. C ode Ann. § 97-3-19(2)(e) (Rev. 2 014). Thom as adm itted t o police that he h ad gone to The Can Man location with Garvis and he adm i tted that he had attacked Jackson: “I hit him once. Jontez hit him two or three tim es.” Thom as also conf essed that he and Garvis had taken $250 f rom Jackson. ¶17. The def

ense took the position at trial t hat Thom as was a t The Can Man and had participated in the robbery , b u t that the cause of Jackson’s death was not the injuries sustained during the r obbery , but rather aspiration pneum onia w hich was contracted during

7Jackson’s hospital stay

. O n appeal, the def ense m a intains its argum ent that the testim ony of Dr. Barnhart was insuf

f icient to support the capital-m u rder conviction. ¶18. This Court considered a case in which t he victim had been shot six tim es and died in

t h e h ospital “several day s af ter h is adm ission f

or treatm ent of his gunshot wounds.

. . .”
Holli d a y v . State , 418 So. 2d 69, 70-71 (Miss. 1 982). The decedent’s treating surgeon testif i ed that “the cause of death was overwhelm ing inf ection s econdary to his injuries.” Id.

at 71. N ext, the s u r g e o n a g r e ed t hat the “cause of death was g unshot wounds.” Id

. In its analy sis, the Holliday Court recognized: The unlawf

ul act or om ission of accused need not be the sole cause of d eath. The test o f responsibility is whether the act of accused c ontributed to the d eath, and, if it did, he is not r elieved of responsibility b y the f act that other causes also contributed. Moreover, responsibility also attaches where the injury m aterially accelerates the death, although the death is proxim ately occasioned by a preexisting cause.
Id. (quoting Schroer v. State , 250 Miss. 84, 91, 160 So. 2d 681 (1964)) (citation om itted).
T h i s Court held that “the jury was justif ied in determ ining the g unshot wounds were a substantial contributing cause of death.” Id

. ¶19. Here, the jury w as justif i ed in its f i nding, based on the testim ony of D r . Barnhart, that the cause of Jackson’s death w as com plications of blunt-f

orce traum a, irrespective o f the f act that aspiration pneum onia was a possible contributing cause of death. This issue is without

m erit.
II. Whether the trial court erred by ex cludin g T h o m as’s proposed

ex pert defense w itness, Dr. Steven Hay ne. ¶20. Thom as’s counsel contends that the trial court’s exclusion of Dr. S teven Hay ne’s

8proposed testim ony deprived Thom as of presenting his s o le theory o f d ef ense. In his pro-se brief , Thom as a grees, claim i ng that he was d eni e d h i s f undam ental r ight to present a

m eaningf ul def ense. ¶21. This Court applies an abuse-of

- d i s c retion standard to the trial court’s a d m ission or exclusion of expert testim o ny . G illett v. State , 56 So. 3d 4 69, 494 (Miss. 2010 (citing Miss. Transp. Com m ’n v. McLem ore , 8 63 So. 2d 31 (Miss. 2003)). Mississippi Rule of Evidence 702 provides that:
A witness who is q u a l i f ied as an expert by knowledge, skill, e xperience, training, or education m ay testif y in the f orm of an opinion or otherwise if : ( a ) t h e expert’s s cientif ic, technical, o r other specialized knowledge will help the trier of f act to understand the evidence or to determ ine a f

act in issue; (b) the testim ony

is based on suf

f icient f acts or data; (c) the testim ony is the product of reliable principles and m e thods; and (d) t he expert has reliably applied the p rinciples and m e thods to the f acts of the case. M.R.E. 702. This Court has held that: “[ T]he opinion o f an expert witness m ust be stated with reasonable certainty , given the s tate o f knowledge in the f ield in which the expert is qualif ied.” West v. State , 553 So. 2d 8, 20 (Miss. 1989) (citations om it t e d )

. I n other words, these opinions “m

ust rise above m ere speculation.” William s v . State , 35 So. 3d 480, 486 (Miss. 2010) (quoting Goforth v. City of Ridgeland , 603 So. 2d 323, 3 29 (Miss. 1992 ) )

. “ [ I]ndef i nite” expert opinions, or those “expressed in t erm s of m ere possibilities,” are not adm issible. West , 553 So. 2d at 20 (citing S

cott County Co-op v. B rown , 187 S o. 2 d 321, 325-26 (Miss. 1966); G en. Benevolent Assoc. v. Fowler , 210 Miss. 578, 589, 50 So. 2d 137, 142 (1951)). F or exam ple, we h a v e h e l d t hat an expert’s of f ering a “reasonable h y

pothesis” was insuf

f icient, explaining t hat “[ e]xpert testim ony
9should be m ade of sterner stuf

f

. ” Goforth , 603 So. 2d at 329.
Parvin v. State , 113 So. 3d 1243, 1247 (Miss. 2013). ¶22. Thom as’s c ounsel i s correct to point out that “‘when a State brings it judicial power
to bear on an indigent def

endant in a crim i nal proceeding, it m ust take steps to assure that the def endant has a f

air opportunity

to present his def

ense.’” Isham v. State , 161 So. 3d 1076,
1081 (Miss. 2015) ( quoting Ake v. Oklahom a , 470 U.S. 68, 70, 105 S. Ct. 1087, 84 L. Ed. 2d 53 (1985)). Ake “addressed a n indigent def endant’s right to expert witnesses, concluding that the right at stake im

p licated a def

endant’s access to justice:” Meaningf ul access t o justice has been the consistent them e of these c ases. W e recognized long ago that m ere access to the courthouse d oors does n ot by itself assure a proper f

u nctioning of the adversary process, and that a crim inal trial is f undam entally u n f

air if the State proceeds a gainst an indigent def endant without m aking certain t hat he has access to the raw m aterials integral to the building of

an ef f ective def ense. Ake , 470 U.S. at 70. ¶23. Ake and t he other cases cited by Thom as’s counsel, though, relate to the def endant’s entitlem ent to an expert wi t n e ss, which is n ot an issue here, as the t rial court authorized expert f un d i n g t o e n a b le the def

ense to hire an i ndependent pathologist. The issue here is whether the trial court erred in f inding that Dr. Hay

ne’s t esti mo n y did not m eet the Mississippi standards f

or adm i ssibility

. This Court never has held that the def endant’s entitlem ent to an e xpert witness obviates a determ ination of the adm issibility of the expert’s proposed testim ony

under Mississippi Rule of Evidence 702. ¶24. Pretrial, Dr. Hay

ne subm itted a report to the def ense in which he opined that: The sum m a ry of the case would i ndicate this individual suf f ered severe f

acial

1 0and head injury s econdary t o assault resulting i n blunt f orce traum a of a critical nature that was subsequently resolved to the point that he could be discharged f rom m edical care and while in the proc e s s o f being discharge[ d], this individual d eveloped nosocom ial inf ection and died. It seem s unlikely t hat he died f rom probable aspiration pneum o nia as reported in the postm ortem exam ination and that he w ould have a protected airway w i t h a tracheostom y tube in place. Furtherm ore, f e edin g and nutrition was provided through a gastrostom y

catheter.
Dr. Hay ne said that Jackson’s p h y sicians had indicated t hat he had required “24-hour a day , seven-day a week care and he needed to be in a nursing hom e.” ¶25. During the Daubert h earing, Dr. Hay ne p rof f ered t estim o ny that J ackson had died
f rom nosocom ial pneum onia, o r hospital-acquired pneum onia. H e m aintained t hat he could discern Jackson’s cause of death f rom Jackson’s m edical records, which indicate d that
UMMC h a d adm inistered “Staph aureus m edication,” a “specif i c treatm e nt f

or Pneum onia, hospital acquired.” Dr. Hay n e continued that the m anne r of d eath w a s “therapeutic

com plication,” which he agreed is a relatively new m anner of d eath classif ication. Dr. Hay

ne stated that “therapeutic com plication” is used “in m

ultiple jurisdictions” as a cause of death.
H e r e f e r e nced o nly New Jersey and Connecticut, but then said that use of “therapeuti c

com plication” as a cause o f d eath i s “ g r o w i n g v ery rapidly .” D r. H a y n e agreed that “therapeutic com

plication” as a cause of

death never has been accepted by a court. ¶26. The trial court granted the State’s m otion to e x clude Dr. Hay ne’s testim ony , f

inding it “entirely too speculative to be subm i tted to the jury i n any f ashion.” The t rial court f

ound that Dr. H ay

ne had not testif

ied to a reasonable degree of m edical certainty and that his report “is devoid of any s uch m edical certainty .” The trial court ref er e n c ed Dr. Hay

ne’s use of “uncertain term s such as ‘ it seem s unli k e l y that [ Jackson] died f rom probable aspiration

1 1pneum onia.’” Moreover, the trial court observed that “it is undisputed that the victim was in the h ospital strictly because of the severe injuries he sustained during the alleged beating by this def

endant.” The def

e nse m oved f

or reconsideration ore tenus bef ore its case-in-chief and the trial court denied the m otion, reasoning that “Dr. Hay n e’s opinions were s p eculative and unsure.” ¶27. Here, it is clear f

rom the record that D r . H a y ne’s opinions w ere not of f ered to a reasonable degree of m e dical c ertainty

. Dr. Hay ne i n d i c a t ed that t he “therapeutic

com plication” cause of death classif ication never has been accepted in court. The trial court

a l s o recognized that Dr. Hay ne used “uncertain term s such as ‘it seem s unli k e l y t h a t [ Jackson] died f

rom probable aspiration pneum on i a . ’ ” Accordingly , the trial court cannot be said to have abused his discretion in excluding Dr. Hay n e’s testim ony . ¶28. Further, as discussed in Issue I , we have held that “[ t]he unlawf ul act or om ission of accused n eed not be the sole cause of death. The test of responsibility is whether the act of accused contributed to the d e ath, and, if it did, he is not relieved of responsibility b y the f act that o ther causes a lso contributed.” Holliday , 4 1 8 So. 2d at 70-71(quoting Schroer , 250 Miss. at 91). Thus, even if the testim ony o f D r. Hay n e h ad been deem ed adm issible, the jury still would have had the authority to convict Thom as. Also, in closing argum ent, Thom as’s counsel did argue to the jury t hat Jackson was healed of t he wounds caused by Thom as when he died f r om pneum onia. This issue is without m erit.
III. Whether the trial court e rred by finding Thom as c o mp e t e nt to stand trial. ¶29. Thom as argues that he was m entally incom petent to stand trial. “W e will r e verse a

1 2trial court’s com petency determ i nation only if it is ‘m an i f e s t l y against the overwhelm ing weight of the evidence.’” Dickerson v. State , 175 So. 3d 8 , 15 (Miss. 2015) (quoting Hearn

v. State , 3 So. 3d 722, 728 (Miss. 2 0 0 8)). The standard f or com petence to stand trial as def ined b y the United States Suprem e C ourt asks “‘whether [ a def endant] has suf

f icient present ability to consult with h is lawy er with a reasonable degree of rational u nderstanding

. . . and whether h e h as a rational a s well as f actual understanding of the proceedings against him .’” H earn , 3 So. 3d at 7 28 (quoting Dusky v. United S tates , 362 U.S. 4 02, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960)). To be com petent to stand trial, a def e ndant m u st be one: (1) w ho i s able to perceive and understand t he natu r e of the proceedings; (2) who is able to rationally com m u nicate with his attorney about the case; (3) who is able to recall relevant f acts; (4) who i s able to testif

y in his own def

ense if appropriate; and (5) whose a

bility to satisf

y the f o r egoing criteria is com m ensurate with the severity of the case.
Hearn , 3 So. 3d at 728 (quoting Martin v. State , 871 So. 2d 693, 697 (Miss. 2004)). ¶30. At the tim e of Thom as’s trial, Mississippi Unif o rm Rule of Circuit and County Court Practice 9.06 3 provided the f ollowing:
If bef ore or during t r i a l t h e court, of its own m otion or u pon m otion of an attorney , has reasonable ground to believe that t h e d e f endant is i ncom

petent to stand trial, the cou r t shall order the def endant to subm i t t o a m ental exami n a t i on by som e com petent psy c hiatrist selected by t he court in accordance with § 99-13-11 of the Mississippi Code Annotated of 1972. Af ter the exam i nation the court shall conduct a hearing t o determ ine if the def endant is com

p etent to s tand trial. A f

ter hearing all the evidence, the court shall weigh the evidence and m ake a determ ination of w hether the def endant

3 T h is p ro v isio n sin c e h as b een rep laced b y M ississip p i R u le o f C rim in al P ro ced u re 1 2 .2 , w h i ch b ecam e e f

f ectiv e Ju ly 1 , 2 0 1 7

. F o r p u rp o s es o f th is case, Mississippi Unif orm Rule of Circuit and County

Court Practice 9.06 applies.

1 3is com p etent to stand trial. If the court f inds that the def

endant is com

petent to stand t rial, then the court shall m ake the f inding a m atter of record and the case will then proceed to trial.
URCCC 9.06. ¶31. Here, the trial court appointe d Dr. Benjam in Root t o perf orm a com

petency evaluation

on Thom as. Dr. Root assessed Thom as on Decem ber 1 2, 2013, and reported “to a r easonable

m edical certainty that the def endan t i s i n c o mpetent to stand trial a t this tim e.” Dr. Root observed that Tho ma s “cannot work with his attorney and cannot c om prehend his legal situation to any

reasonable level that would pass constitutional m uster. ¶32. On June 17, 2014, the trial court conducted a com p etency hearing. D r. Root testif ied

t hat Thom as suf

f ers f rom schizoaf

f ective disorder, s chizophrenia, a nd possibly bi p o l a r disorder and that he was not com petent to stand trial at that tim e. D r. Root w a s crossexam ined with regard to errors in t he report he produced, i ncluding t he d ef endant’s race. Dr.
Root stated the date o f Thom as’s arrest but could not r ecall where he obtained that inf orm ation. Dr. Root stated that his interview with Thom a s lasted betwe e n f o r t y -f ive

m inutes and one hour. ¶33. Af ter Dr. Root’s testim ony at the hearing, the State p roposed, and the def ense agreed, that Thom as should have another m edical e x am ination done at the Mississippi State Hospital

at W hitf ield, M ississippi. The trial court ordered a second m e ntal evaluation, f inding that, af ter the f irst hearing, it “was unab l e t o ma ke a determ ination regarding the def endant’s

com pete n c y t o stand trial due to a lack of specif icity a n d inf

orm ation p rocured f

rom the witness and his report.”

1 4¶34. Dr. W

. Criss Lott evaluated Thom as on August 1 5, 2014, a nd Decem ber 21, 2014.
Dr. Lott’s report indicated that, it was his opinion, “to a reasonable degree of psy chological certainty , that Mr. Thom as has a m arginal, but suf f icient present a

b ility t o consult with his attorney with a reasonable degree of rational understanding in perparation [ sic] of his def ense” a nd that he “has a rational as well as f actual understanding of the n ature and object of t he legal proceedings a gainst him .” Dr. Lott w a s not called to t estif y a t Thom as’s second

com petency hearing because Thom as’s counsel at the hearing conceded Dr. L o t t ’s

com petency f inding. In t he a

bsence of an objection or a request to c r oss-exam ine Dr. Lott, the trial court f

ound Thom as com

petent to stand trial. ¶35. Dr. Lott’s report thoroughly analy zed each of the applicable f actors and c oncluded that Thom as was c om

petent to stand trial. It cannot be said t hat the trial court’s f inding that Thom a s was c om

p etent to stand trial was against t he overwhelm ing weight of the e vidence.
IV. Whether t he t rial court erred by deny ing Thom as’s m o tion to recuse the trial judge. ¶36. In January 2015, Thom as’s then-counsel, A lison Kelly , sought the recusal of the trial judge. According to Kelly , Circuit Judge Jef f W eill, Sr., had authored a letter to the Hinds County Board of Supervisors asserting “that t he a ppointm ent [ of

] private atto r n e y s [ was]
necessary because t he attorney Alison Kelly , attorney of record in the case at bar, is both an incom petent and non law-abiding attorney .” Judge W eill had stated in the letter to the Board of Supervisors that “‘good cause’ has been shown to preclude Ms. Kelly f r om participating in a ny m atter i n v olving i ndigent representation in m y courtroom

. . .” and that “I want the board to be aware t hat Ms. Kelly ’s f ailure to com

ply with the law and the requirem ents of her

1 5position will necessarily result in som e additional expense by w ay of appointm ent o f separate

counsel.” The trial court denied the m otion f or recusal. ¶37. In f

if ty -f ive cases, including Thom as’s, the Hinds County Public D ef ender’s Of

f ice (HCPDO) s ought to r e c u s e J udge W eill. In Re: Office of the Hinds County Public Defender , No. 2015-M-00397 (Miss. May

. 21, 2 015). This Court did n ot “f i nd a suf f icient basis f or ordering Judge W e ill’s recusal in any pending or f utu r e c ase.” I

d

. This Court, however, f

ound it appro p r iate “ f

or the HCPDO, should it s o desire, to inf orm each of its previous clients in the f

i f ty -f ive cases bef

ore us, that they

m ay choose to continue with the private counsel Judge W e ill has appointed t o represent them , or they m ay choose t o have the
HCPDO reassum e t heir representation.” Id

. In accordance w ith this Court’s order, Thom as f iled an Option of Counsel By Def endant, in w hich he chose “to return to the Of f ice of the Hinds County Public Def ender” instead of continuing “with the private lawy er Judge W eill appointed to m y

case.” ¶38. This Court has held that “ [ a] judge’s determ ination of r ecusal is reviewed through the lens of an abuse-of

-discret i o n s t a n d ard.” Patton v. State , 109 So. 3d 66, 77 (Miss. 2012) (citing Miss. United M

ethodist Conference v. Brown , 929 So. 2d 907, 9 0 8 ( Miss. 2006)). “‘This Court applies an o b j e c tive standard when d eciding whether a judge should have disqualif i ed him self

.’” Patton , 109 So. 3d at 77 (quoting Jones v. State , 841 So. 2d 115, 135 (Miss. 2003)). “‘On appeal, a trial judge is presum ed to b e both qualif ied and unbiased, and this presum

ption m ay only be overcom e by evidence w hich produces a reasonable doubt about the validity of

the presum

ption.’” Id

.

1 6¶39. Here, this C ourt already ha s f ound no suf

f icient basis to order t he recusal of Judge
W e ill. In Re: Office of the Hinds County Public Defender , No. 2015-M-00397 (Miss. May

. 21, 2015). The Court did, however, indicate that:
In f uture cases i n w h i ch the H inds County Public Def ender or a particular assistant public def

ender believes Judge W eill—or a ny circuit j udge—should recuse f rom a particular c ase, he or she m ay f i le with that judge an appropriate m otion to recuse, setting f orth the particular f

a c ts an d c i r c u mstances t hat suggest the circuit judge cannot preside im partially over the case.
Id. A f ter this Court’s order, Thom as did not again seek the recusal o f Judge W eill. Instead, pursuant to this Court’s order, Thom as agreed to retain t he Of f ice of the Hinds County Public Def ender. W e see no r eason now to adjust o ur p revious ruling sim ply because Thom as raises the issue pro-se on d irect appeal. Thom as has presented no evidence to create a r easonable doubt as to the validity of the pre s u mp tion that the trial judge was b oth q ualif ied and unbiased. 4 Thus, we af

f irm Judge W eill’s denial of

the m otion to recuse.
V. Whether the trial court m isapplied Batson v. Kentucky , 476 U .S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). ¶40. During voir dire , the prosecutor raised a challenge pursuant to Batson v. Kentucky , 476 U.S. 79, 106 S. Ct. 1712, 9 0 L. Ed. 2d 69 (1986), arguing t h a t the def ense h ad struck “every a vailable white person tendered

. . . .” For two of the jurors, the trial court determ ined

4 N o w o n d irect a

p p eal, in o rd er to d em o n str a t e “ t h e ma l ice th is trial co u rt j u d g e h o ld s f o r m o st m em

b ers o f th e H i n d s C o u n t y P u b l ic D ef en d e r ’s O f

f ice,” T h o m as ask s th is C o u rt to tak e j u d icial n o t ice o f R o u th v. S ta te , 2 2 7 S o . 2 d 9 5 9 , 9 6 0 (M iss. 2 0 1 7 ). In R o u th , Ju d g e Weill h eld C h risto p h er R o u th , an assistan t p u b lic d ef en d er w ith t h e H in d s C o u n ty P u b lic D ef

en d er’s O f

f ice, in d irect crim i n a l c o n t e mp t. R o u th , 2 2 7 S o . 2 d at 9 6 1

. T h is C o u rt af f irm ed Ju d g e Weill’s d e cisio n , h o ld in g th at “[ d ] isru p t in g th e co u rt b y d isru p tin g a j u d g e’s r u lin g

— af ter b ein g ex p ressly to ld n o t to

— su p p o rts a f in d i n g o f crim i n al co n tem p t.” Id . at 9 6 3

. A f

in d in g o f d i r e ct crim in al co n tem p t in an u n related case h as n o b earin g o n w h eth er Ju d g e Weill sh o u ld h av e recu sed in th e p resen t case. 1 7that the def

ense’s prof

f ered race-neutral explanations were pretextual and granted the State’s
Batson challenges. ¶41. “This Court will overturn a trial c ourt’s Batson ruling only if it was clearly erroneous

or against the o v erwhelmi n g w e ight of the e vidence.” Hartfield v. State , 1 61 S o. 3d 125,
137 (Miss. 20 1 5 ) ( c i t i n g B a tiste v . State , 121 So. 3d 808, 848 (Miss. 2 013)). “ Because a Batson ruling i s largely based on c r e d i b i l i t y , we g ive great def erence t o the t rial court’s decision.” Id

. “ Batson f

orbids the prosecution f

rom racially discrim inating through the use of perem ptory challenges.” Hartfield , 161 So. 3d at 137 (citing B atson , 476 U.S. at 89). ¶42. This Court and the United States Suprem e Court have held that the def e n s e a l s o i s precluded f

rom em ploy ing perem

ptory ch a l l enges in a racially discrim inatory m anner. Hardison v. State , 94 So. 3d 1092, 1097 (Miss. 2012); Georgia v. McCollum , 5 05 U.S. 42, 59, 112 S. Ct. 2348, 120 L. Ed. 2 d 33 (1992) (“W e h old that the Constit u t i o n p r ohibits a crim inal def

endant f rom engaging in purposef ul discrim i nation o n the ground of race in the exercise of perem

ptory challenges.”). “W hen the State c h a l lenges the def ense’s use of a
perem ptory challenge[ ] as r acially discrim inatory , this Court ref ers to it as a ‘reverse- Batson ’ challenge.” Hartfield , 1 61 S o. 3d at 137 (quoting Hardison , 94 So. 3d at 1097). Three steps guide the trial court’s handling of a Batson challenge: First, the party objecting to the perem p tory strike o f a potential juror m ust m ake a prim a f

acie s howing that race was the criterion f o r the strike. S econd, upon such a showing, the b urden shif ts to the State to a rticulate a race-neutral reason f or e xcluding that particular juror. Fina l l y , a f t e r a race-neutral explanation has been of

f e red by the prosecution, the trial c ourt m ust determ ine w h ether t he objecting p arty has m et its b urden to p rove that there has b e e n purposef ul discrim ination in the exercise of the perem p tory strike, i.e., that the reason given was a pretext f or discrim ination.

1 8Hartfield , 161 So. 3d at 137 (quoting Pitchford v . State , 45 So. 3d 216, 224 (Miss. 2010)). The United States Suprem e Court has held that: [ R]ace-neutral reasons f o r perem ptory c h a l l e n ges of

ten i nvoke a juror’s dem eanor ( e . g . , nervousness, inattention), m aking the trial court’s f irsthand observations of even greater im portance. In this situation, the trial court m ust evaluate not only

whether the prosecutor’s dem eanor belies a discrim inatory intent, but also whether the juror’s dem eanor can credibly be said to have exhibited the b asis f

or the strike attributed to the juror by the prosecutor. W e have recognized that these determ ina t i o n s of credibility and dem eanor lie “‘peculiarly within a t rial judge’s province,’” and we have stated that “in the absence of

exceptional circum stances, we would def e r to [ the trial court].” Hartfield , 161 So. 3d at 138-39 (quoting S n yder v. Louisiana , 552 U.S. 472, 477, 1 28 S. Ct. 1203, 170 L. Ed. 2d 175 (2008)). ¶43. In H

artfield , the trial court evaluated the def ense’s prof

f ered race-neutral reason f or the strike, that a prospective white juror “had been asleep during voir dire.” H artfield , 161
So. 3d at 139. The def

ense had exercised its “f

irst seven perem

p tory strikes on white jurors, while accepting all Af

r ican-Am erican jurors tendere d

. ” I d

. a t 138. The trial court in that

case determ ined that t he p r of f e red race-neutral reason f or the prospective juror’s exclusion

was p rextext, having him self observed that the prospective juror “had not been sleeping, but had y awned and closed his ey es . . . .” Id . at 139. ¶44. Here, t he trial court f ound that the State had m ade a prima f acie case t hat the def

ense had engaged in race discrim i nation in jury selection. The court then asked def ense counsel
“to state a non-race, n o n-gender o r n o n -religious based reason” to justif y t he perem

ptory strikes. ¶45. W i th regard to Loicka Hodges, t h e f i r st white juror s truck by the def ense, Def ense

1 9counsel said that s he did not bow her h ead to pray with the other venire m em b ers when the trial court had of

f ered a pray er earlier in the proceedings. Def ense counsel also pointed out that Hodges had been born i n France and h ad spent thirty “or s o y ears of her lif e in France.” Def ense counsel expresse d c o ncern with regard to the “possible d istinction she’s going to

m ake b etween the laws of France versus t h e l a w s of the United States.” Finally , def ense counsel stated that Hodges had not participated in voir dire “in alm ost any f ashion” and that he “didn’t really get a n y a n s w e r s f rom her.” The trial court granted the State’s Batson challenge and allowed Hodges to sit as a juror. ¶46. Def

ense c ounsel stated that Edward Milam , the second p rospective white juror struck, had not spoken during voir dire by the State o r by the def ense: “ since he n ever talked[ ,] the unknown is so large.” According to def ense c ounsel, M ilam worked at M cNeely Pl a stics, possibly as a tradesm an. Def ense counsel c ontinued: “if he i s a t rad esm an, I don’t want a juror placing them selves in the s hoes of the victim in this case . . . . ” Def ense counsel stated,
“I d on’t know if [ Milam ] was pay ing attention during voir dire. But I kn o w h e d i d not participate

. ” T h e t r i a l court f ound the def

e nse’s justif

i cation f or the s t rike to have been pretextual and that the def ense “was engaged in purposef ul discrim ination.” ¶47. Def

ense counsel argued that he struck Danny Fultz, the third prospective white juror, because of his work as a m achinist at Eaton Aerospace. The victim in the c ase was a welder and was w elding at the tim e of the attack. Def ense counsel also m entioned that “we brought him back” and “[ h]e gave u s s o me m ore inf orm ation.” W hen “brought back,” F ultz had inf orm ed the c ourt and the lawy er s t h a t h is f ather had been a victim o f “an investor [ who]

2 0cheated him out of s om e m oney ” and that, due to his f ather’s experience,” he “hope[ d]” that he could be im

partial. The trial court allowed the def ense to strike Fultz. ¶48. Evidence in the record supports the trial c ourt’s determ i nation that th e def ense’s prof f ered race-neutral r easons f or striking the jurors were pretextual. As to H odges, the trial

court did not accept def

e nse counsel’s proposed reason that Hodges k ept her ey es open during the initial p r ay er as a legitim ate race-neutral r eason. Also, in r e g a r d t o Milam , the trial court noted that def

ense counsel did not st r i k e a num ber of other jurors who had not spoken d uring v oir d i re. Further, the record r eveals that the trial court resolved the Batson challenge against Ful t z i n Thom a s’s f avor. Af ter r eview of the record, we cannot say that the decision of the trial court t o inclu d e H o d ges and Milam on Thom as’s jury is clearly

erroneous or against the overwhelm i n g w e i g ht of the evidence. W e def er to the j udgm ent of the trial court. This issue is without m erit.
VI. Whether the trial court abused i ts d iscretion in instructing t he jury . ¶49. “This Court reviews the g rant o r denial of j ury instructions f o r abuse of discretion.”
Hale v. S tate , 191 So. 3 d 718, 723 (Miss. 2016) (citing V ictory v. State , 83 So. 3d 370, 373 (Miss. 2012)). “ ‘A def

endant is e ntitled to h ave j u r y instructions given which present his theory of the case; however, this entitlem ent is lim ited in that the c o u r t m ay ref use an instruction w hich incorrectly states the law, is covered f airly elsewhere in the instructions,

or is without f

oundation in the evidence.’” Hale , 191 So. 3 d at 723 (quoting Newell v. State , 49 So. 3d 66, 73 ( M iss. 2010)). “A l esser of f e n s e i s n e c e ssarily included in the greater of f ense if the elem e nts of

the greater of

f e nse include all t he elem ents o f the lesser of f ense,

2 1such that the greater cannot be com m itted without also com m itting t he lesser.” Hye v. State ,

162 So. 3d 750, 754 (Miss. 2015) (citing Porter v. S tate , 616 So. 2d 899, 909-10 (Miss. 1993) (Hawkins, J., specially concurring)).

A. W h e t h e r the trial court abused its d iscretion b y deny i ng proffered defense instructions

. ¶50. Thom as claim s on appeal that the trial court e rred b y deny ing instructions t he def ense had sought def

i n i n g v a r i o u s o ffe n s e s , w h i c h h e contends constituted l esser - included of f enses
to capital m

urder. Instructions D-5 and D-6 inf orm ed the jury that if the State h ad f ailed to
prove a n y e l e me n t of capital m urder bey ond a reasonable doubt, the jury should consider either aggravated assault (D-5) or culpable-negligence m anslaughter (D-6). I n s t r u c t i o n D -14 def ined aggravat e d a s s a

u l t

. I n s t r u c t i o n D -16 was a heat-of

-passion m anslaughter instruction. Instruction D -17 was a f

orm of the verdict instruction inf orm ing the jury how it should sty le i t s v erdict i f it f

ound T hom as not guilty o f capital m u rder, m urder, m anslaughter, o r aggravated assault. ¶51. First, a s t o t h e instructions f or aggravated assault, “[ t]he law in Mississippi is that aggravated assault is not a lesser-included of f e nse within the crim e o f m urder.” Johnson v. State , 512 So. 2d 1246, 12 5 1 ( M iss. 1987) (citing Scott v. State , 60 Miss. 268 (1882), overruled on other g

r ounds by S

m ith v. State , 9 86 So. 2d 290 (Miss. 2008). Thus, Thom as was not entitled to an instruction on aggravated assault. ¶52. Second, as to the r em a ining instructions f o r culpable-negligence and heat-of -passion

m anslaughter, Thom as was not entitled to them as the eviden c e did not support the

2 2instructions. 5 Thom as a dm itted in his oral and written statem ents to having hit Jackson with

a welding rod i n an ef

f ort to steal Jackson’s m oney . No evidence supported a determ ination of negligence or heat of

passion. ¶53. Theref

ore, the trial court did not abuse its discretion in deny ing the jury instructions prof f ered by def ense counsel. W e af

f irm on this issue, as it is without m erit.
B. Whether the trial court erred w h en i t refused to instruct t he jury on the elem ents of robbery . ¶54. Citing Harrell v

. State , 134 So. 3d 266 (Miss. 2014), Thom a s a r g ues that the trial
Court abused its discretion by not instructing t he ju r y on the elem e n ts of robbery which constituted t he underly ing f elony o f his capital-m

urder charge. As discussed below though, Thom a s’s def

ense c ounsel requested t hat the trial c o urt not instruct the jury o n the elem ents of robbery

. ¶55. It is axiom atic that “a def endant cannot com

plain on appeal of a lleged errors invited

or i nduced by him self

.” Galloway v. State , 122 So. 3d 614, 645 (Miss. 2013); O’Connor v. State , 120 So. 3d 390, 397 ( Miss. 2013); Singleton v. State , 5 1 8 So. 2d 653, 655 (Miss. 1988). Further, “a def

endant c annot com

plain of an instruction which he, not the sta t e , requested.” Harris v. State , 861 So. 2d 1 003, 1015 (Miss. 2003); Buford v. State , 372 So. 2d 254, 256 (Miss. 1979).

5 C u lp ab le-n eg lig en ce m an slau g h ter is th e “k i llin g o f a h u m an b ein g , b y th e act, p ro cu rem en t, o r

cu lp a b le n eg lig en ce o f

an o th er, an d w i th o u t au th o rity o f l aw . . . .” M iss. C o d e A n n . § 9 7 -3 -4 7 (R ev . 2 0 1 4 ). H eat-o f -p assio n m an slau g h ter is “[ t] h e k illin g o f a h u m an b e i n g , w ith o u t m alice, in th e h e at o f p assio n , b u t in a cru el o r u n u su al m an n er, o r b y th e u se o f a d ead ly w eap o n , w ith o u t a

u th o rity o f law , an d n o t in n e cessary s elf -d e f en se. . . .” M iss. C o d e A n n . § 9 7 -3 -3 5 (R ev . 2 0 1 4 ). 2 3¶56. An excellent analy s is of t h e s e principles in an alm ost identical f act pattern can be
f ound in S tate v. Hargrove , 293 P.3d 787 (Kan. App. 2013). The Hargrove case ef f ectively lay s out the basis f

or the rule, stating that the purpose is to “bind[ ] trial counsel to strategic decisions inducing judic i a l rulings with t he purpose of obtaining f avorable judgm ents f

or their client.” Hargrove , 2 9 3 P

. 3 d a t 795. The rule “ also def eats the disreputable strategy aim ed at requesting a judge act in a particular way to salt the record with e rror as an end in itself , thereby providing potential grounds f or reversal of

an adverse judgm ent.” Id

. ¶57. A multitude of courts h ave applied this doctrine in the context of j ury i nstructions

. People v. Zapata , 779 P.2d 1307, 1308–09 (Colo. 1989) (“The allegation of constitutional

error in the jury instruction does not require u s to abandon the strict preclusion of review of invited error”); State v. Madigosky , 966 A.2d 730 (Conn. 2009); State v. Perdue , 813 P.2d 1201, 1206 ( U t a h App. 1991); S tate v. Henderson , 792 P.2d 514, 515 (W ash. 1990) (recognizing t hat less-than-strict application of t he invited-error rule to jury instructions “would put a prem ium on def endants m isleading trial courts.

. . .”); United States v. Askew , 403 F.3d 496, 505–06 (7th Cir. 2005) (f inding t hat, where a d ef

endant is aware of the om itted elem ent in a jury instruction and y e t relinquished his right t o h ave i t presented to the jury , the doctrine o f invited e rror applies); see also United States v. Perez , 116 F .3d 840, 845 (9th Cir. 1997)). A num

b er of the c ases that held otherwise based their decisions on t h e a c t i o n s of def ense counsel being inadvertent, negligent, or w ithout strategic or tactical g rounds. People

v. Bender , 169 N .E.2d 328, 3 3 3 ( I l l

. 1960) (declining to apply the invited-error doctrine “[ w]hen the State, the def e nse, and the court, all proceeded on an entirely erroneous belief

2 4. . . .”); State v. Dozier , 2 5 5 S

. E

. 2 d 552, 555 (W

. Va. 1979) (“[ I]t would be a t ravesty of

justice to hold the accused invited the error . . . [ as] it clearly appears . . . that the i nstruction

was an u nf

ortun a t e mi s t a ke.”). M ississippi has applied t he invited-error doctrine to jury instructions in Harris and Buford

. Harris , 861 So. 2d at 1015; Buford , 372 So. 2d at 256. ¶58. It is i m

portant to note what this case i s not. This i s not a case in which the def endant successf ully objected to the language of an elem ents instruction a n d t he court neglected to
correct the error or substitute language. Neither is this a case in which the State successf ully objected to the language of an instruction to which the d ef endant was otherwise entitled and the court f

ailed to s ubstitute a

ppropriate language. S

ee H u n t e r v . State , 684 So. 2d 625 (Miss. 1996). Fina l l y , this is not a case in which a def endant negligently o r inadvertently
f ailed to o bject to a f

lawed elem ents instruction. See Harrell v. State , 134 So. 3d 266 (Miss. 2014). I nstead, it is a case in which the error m ight m o re appropriately be ref e rred to as “dem anded” by the def

endant rather than “invited.” ¶59. In t his case, t he State of f ered Instruction S-2, which properly and appropriately set out the elem ents of capital m urder and specif

i c a l l y r ef erred the jury to Instruction S-3. Instruction S-3 properly and appropriately set out the elem ents of robbery

. Def ense counsel, af ter initially stating he had no objection, backtracked and objected to Instruction S-3. He noted, correctly , that in the indictm ent there was “no charge f o r robbery ,” as t he c o m m ission of r obbery was m e rely an elem ent of capital m urder. Def

ense counsel m ade clear that there

was n o m istake. He acknowledged that robbery w as l isted i n the indictm ent. The Court then requested counsel to explain the objection f urther. Def

ense counsel ref

e rred t o the additional

2 5instruction as conf using and com

plained that i t t reats robbery as a “second count.” The State then agreed to withdraw the instruction. However, def ense counsel once again inquired to be sure it had b een w ithdrawn and, upon receiving an af f irm ative response, stated “All right. That’s all I needed to k n o w . I’m sorry .” The Court later proceeded to am end Instruction S-2, to r em ove the ref

erence to Instruction S-3, and renam e d it Instruction S-2B. In response
to the C ourt’s explanation, def ense couns e l s t a t ed, “I’m clear now y o ur honor. No objection.” ¶60. The r ecord dem onstrates that def ense counsel’s su c c e s s fu l o b j e c t i o n t o I n s truction S-3

was a tactical decision. He acted with f u ll k nowledge of the consequences. He did not want
t h e jury instructed on the elem ents of r obbery

. He f e l t that t he instruction wou l d b e conf using to the jurors, m isleading them into believing the def e ndant was charg e d w i t h a second count. The t actical decision, whether wise or not, i s f urther brought hom e in def ense counsel’s closing argum ent in which he stated t he def endant had adm itted that he had

com m itted the crim e of robbery and used it t o support t h e d e f e n dant’s credibility on the capital-m u rder i s s u e i n w h ich h e argued that “ T he State can’t pick a nd choose what they want y ou to believe.” 6 ¶61. Persons m ay relinquish the i r c o n s t i tutional rights if t hey do s o knowingly and

6 If def e nse counsel’s objection to Instruction S

- 3 w a s n ot a tactical decision, the d e f e n d ant is not without recourse. As in any case in which the def e ndant alleges that his counsel was inef

f e ctive, the def

endant m ay f

ile a petition f

or post-conviction relief

. Miss. Code Ann. § 99-39-1–29 (Rev. 2015). 2 6voluntarily

. Crim inal def en d a n ts are no exception. 7 Further, t he waiver need not be af f irm atively ref

lected in the record. R obinson v. S tate , 345 S o. 2d 1044, 1045 (Miss. 1977). ¶62. Likewise, w ith certain exceptions, crim inal def endants a re bound by the a c t i o n s of

t heir lawy ers. Hill , 5 28 U .S. at 114–15. Jury instructions, u nless explicitly opposed or insisted upon by the client, a re lef t to the sound prof

e ssional judgm e n t o f t he a ttorney

. Perez , 116 F.3 d at 845. In f

act, l awy ers m ay com

prom ise their clients’ c onstitutional rights. See Taylor v. I

llinois , 484 U .S. 400, 410–16, 108 S. C t. 646, 98 L. Ed. 2d 798 (1988) ( af f irm ing the a pplication of a p r eclusion san c t i on w here it is d eterm ined that “a party ’s f ailure to

com ply with a request to identif y his or her witnesses in advance of trial

. . . was willf ul and

m otivated by

a desire to obtain a tactical advantage. . . .”). 8

7 Maryland v

. S hatzer , 559 U.S. 9 8 , 1 0 3

– 0 4 , 1 30 S. C t. 1213, 1219, 175 L. Ed. 2d 1045 (2010) (self

-incrim ination); New Y

ork v. Hill , 528 U.S. 110, 114–15, 1 20 S. Ct. 659, 145 L. Ed. 2d 560 (2000) (acknowledging crim inal def endant m a y w a i ve even f

undam ental rights); Faretta v. California , 422 U.S. 806, 8 3 5 , 9 5 S

. C t

. 2525, 45 L. Ed. 2d 562 (1975) (right to counsel). F or exam ple, an individual, having b e e n advised in accordance with Miranda v. Arizona , 384 U.S. 436, 86 S. C t. 1602, 16 L. Ed. 2d 694 ( 1966), m ay give up the right against self

-incrim ination and subm it to a custodial police interrogation. S hatzer , 559 U.S. at 103–112. And c rim inal def endants m ay f

orgo their constitutional right to counsel to represent them selves. Faretta , 422 U.S. at 835. But they m ay not later com plain about adverse consequences resulting f rom their own conduct in waiving t hose rights. Faretta , 422 U

. S

. at 834–35, n.46 (“[ W ]hatever else m ay o r m ay not be open t o him o n appeal, a def endant who elects to represent him self cannot thereaf ter c om plain t hat t he quality of his own def ense am ounted to a denial of ‘ef f ective assistance of counsel.’”); Illinois v. Allen , 397 U.S. 337, 342–43, 9 0 S. Ct. 1057, 25 L

. Ed. 2d 3 53 (1970) (crim inal def endant m ay lose Sixth Am endm ent right to be p r esent at tri al by continuing disruptive conduct despite trial judge’s warning that persistence will result in r em oval). T h ese sam e p rin cip les are e m b ed d e d in M ississip p i l aw . R o b erts v. S ta te , 2 3 4 S o . 3 d 1 2 5 1 , 1 2 5 8

– 6 2 (M iss. 2 0 1 7 ) (self

- i n c r i mi n atio n ); B a

x ter v. S

ta te , 1 7 7 S o . 3 d 3 9 4 , 4 0 3

– 0 6 (M iss. 2 0 1 5 ) (self

in crim in a tio n ); C

o n n v. S ta t

e , 1 7 0 S o . 2 d 2 0 , 2 1

– 2 3 (1 9 6 4 ) (rig h t to co u n s e l).

8 With slig h t m o d if

icatio n s to ad a

p t th e an a l y s i s , t h e p reced in g tw o p arag rap h s are ad o p ted f ro m th e an aly sis in H

a rg ro ve . H

a rg ro ve , 2 9 3 P

. 3 d a t

7 9 6

. 2 7¶63. The dissent r elies o n the language contained in Harrell v. State , 134 So. 3d 266 (Miss.

2014), and other cases, f

or the proposition that “it is the trial court’s responsibility to assure that the j ury is ‘f

ully and properly instructed on all issues r elevant to the case.’” Harrell , 134 So. 3d at 270. W e absolutely and without reservation agree with t his legal tenet. Harrell , though, does not control here. As discussed above, def ense counsel invited this error. ¶64. Further, the S tate m et its burden to instruct the j ury by subm itting proper instructions

as to both the elem ents of capital m urder and the underly ing crim e of robbery

. See Reddix

v. State , 731 So. 2 d 591, 592 (Miss

. 1 999) (“Because it is the State’s duty to prove every elem ent of the crim e bey ond a reasonable doubt, the State also has a duty to m ake sure the jury is properly instructed with regard to the essential elem ents of t he crim e.”) Once def ense counsel strongly objected t o the instructions, the State acquiesced. In the end, the t rial judge accepted their c om m

u nal p osition and gave an i nstruction that lacked the e l em ents of the underly ing cri me . Trial courts expect and deserve g uidance f rom the attorney s as to jury instructions. It is c om m on practice f or trial judges t o accept a greem ents between the parties

as to such i s s u e s , a s i t i s assum ed that the agreem ent i s m ade f or the m utual benef

it of the parties or as a contem

plated concession. ¶65. W h ile the trial court would have been within its authority to insist on instructing the jury on the elem ents o f the underly ing f elony , we decline t o f

ind any error. A r eversal is not required where the t rial court and the State b oth acted to properly instruct the ju r y , but the def endant—in a tactical d ecision—objected to the instruction. A def endant cannot object to

an elem ents instruction, succeed on the objection, u se that success to m i nim i ze the issue to

2 8a jury , b olster his own credibility with the success of the objection, a nd then cry error and

com plain about the lack of an elem ents instruc t i o n o n appeal. The i nvited-error doctrine prohibits us f

r om considering the issue. Thus, we af f i rm . VII. Whether cum ulative error requires reversal. ¶66. “The cum

ulative error doctrine provides t hat ‘where one error, standing alone, m ay not warrant reversal, reversal m ay be required if

the errors, taken together, “create such an

atm osphere of bias, passion, a nd p r e j udice that they ef

f e c tively deny the d ef

endant a f undam entally f

air trial.”’” Jones v. State , 203 So. 3d 600, 617 (Miss. 2016) (quot ing
Dickerson v. State , 175 So. 3d 8, 35 (Miss. 2 0 1 5 ) (quoting Flowers v. State , 158 So. 3d 1009, 1075 (Miss. 2014))). A f ter a review of the record and the issues brought bef ore us by Thom a s a n d his counsel, we f ind that the trial c o urt did not e rr. Theref ore, the cum

ulativeerror doctrine does not apply to this case.
CONCLUSION ¶67. For the above reasons, we af f irm Thom as’s conviction and sentence. ¶68. AFFIRMED. WALLER, C.J., RANDOLPH , P . J . , C O L E M A N, MAX W E LL AND BEAM, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE W RITTEN OPINION JOINED BY KING AND ISHEE, JJ. KITCHENS, PRESIDING JUSTICE, DISSENTING: ¶69. Becau s e t h e C i r c u i t Court of the First Judicial D istrict o f Hinds County f ailed to instruct the jury on the elem ents of the underly ing f elony of f ense of robbery , I would reverse the judgm ent and rem and the case f or a new trial. Accordingly , I respectf ully dissent.

2 9¶70. This Court has held that “it is alway s and in e v ery case reversible error f or the courts of Mississippi to deny

an accused the right to have a jury decide guilt as to each a nd every elem ent.” Harrell v

. State , 1 34 So. 3d 266, 27 5 (Miss. 2 014). In Harrell , as i n t he present
case, Harrell had been charged with capital m u rder and the t rial court f ailed to instruct the jury on the underly i ng f

elony of robbery

. Id. at 267, 2 69. Even though “Harrell did not bring the om ission to the attention of t h e t r i a l c o u rt by objecting to t he State’s instruction or subm itting an i nstruction on the elem ents of robbery , ” we declined to a pply a procedural bar:

“ T h e C o u r t has rejected t he a pplication of a procedural bar when the trial court f ails to instruct the jury on the elem e nts of the underly i ng f elony in a capital m

urder trial.” Harrell , 1 3 4 S o . 3 d at 270 ( citing Kolberg v. State , 829 So. 2d 2 9, 46 (Miss. 2002), o verruled o n other grounds by R owsey v. State , 188 So. 3d 486 (Miss. 2016)). ¶71. This Court held that “[ i ] t i s t h e t r i a l court’s responsibility to assure that t he jury is
‘f u lly and properly instructed on all issues of law relevant to the case.’” Id. (quoting Kolberg , 829 So. 2d at 46). “ ‘There is no doubt that the t rial court is ultim ately respo n s i b l e f or rendering proper guidance t o the jury via appropriately given jury instructions, even sua sponte.’” Id. (quoting K

olberg , 829 So. 2 d at 4 5). The Court also has held “that the State is responsible f

or m aking sure th e j u ry is instructed on the essential elem ents of the crim e.”
Harrell , 1 34 So. 3d at 270 ( quoting Hunter v. State , 6 84 So. 2d 6 25, 635 (Miss. 1996) (“[ I]t is rudim entary t h a t t h e jury m ust be instructed regarding the elem ents of the crim e with which the def

endant is charged

. . . [ ;] even t h o u g h the d ef endant did not present an acceptable instructio n , the State was obligated to do so.”)). This C ourt h eld that “the trial

3 0court’s f

a i lure to instruct t h e j u ry as to t he elem e nts of the underly ing f elony of robbery constituted reversible error.” Harrell , 134 So. 3d at 276. ¶72. Here, the trial court gave the f ollowing instruction on capital murder, Instruction S2B: The Court instructs the j ury that i f y o u b e lieve f rom the evidence, bey ond a reasonable doubt that:
1. the def

e ndant, David Thom as, either alone or while acting in concert with another;
2. [ d]id, on or ab o u t J anuary 29, 2012, in the First Judicial District of Hinds County , Mississippi;
3. act in a m anner which killed Fred Jackson, a hum an being;
4. with or without any design to ef

f ect death;
5. while engaged in t he com m ission of robbery and without the a uthority of law; then, y ou m

ust f ind t he def

e ndant, David T hom as, guilty of Capital Murder as charged in the indictm ent. If the prosecution has f

a i l e d t o p r o ve any one or m ore of the a bove listed elem e nts, then y ou shall f ind the Def

e ndant not guilty

of Capital Murder. ¶73. The State proposed t he f ollowing jury instruction, Instruction S-3, which set f orth the elem ents of

robbery : The Court instructs the Jury that in order f o r y o u to f

ind that David Thom as was e ngaged i n the com m ission of the crim e o f robbery , y o u m ust f ind f rom the evidence in this case bey ond a reasonable doubt that:
1. the def

endant, Da v i d T h o m a s , e i t h e r a l o n e o r while acting in concert with another, and [ s ic]
2. d i d , on or about January 29, 2012, in the First Judicia l

3 1District of Hinds County , Mississippi;
3. f eloniously t ake or attem

pt to take the personal property of Fred Jackson, f

rom his person or against his will;
4. [ b]y v iolence to his person or b y p utti n g h im in f ear of som e im m ediate injury

to his person[ ,] then y ou s hall f

ind the D ef

endant, D a v id Thom as, was engaged in the com m ission of

the crim e of

Robbery

. If the Prosecution h as f

a iled to prove any one o r mo r e o f the above listed elem e nts then y ou shall f

ind the def

e n dant, David Thom as, w as not engaged in the com m ission of the crim e of Robbery

. But d e f e n s e c o unsel objected, arguing that, “in the i ndictm ent there is no charge f or robbery .” 9 T he prosecutor agreed to withdraw I nstruction S-3 a n d no i nstructi o n was provided the jury which listed the eleme n t s o f robbery , the a lleged c rim e u nderly ing the capital m urder charge. ¶74. The State argues that, s ince Thom as adm itted in his oral and writ t e n s t a t em ents to police t hat he had participated i n attacking Jackson, the elem ents of r obbery w ere never at issue and the f

ailure of the trial c ourt to instruct the jury on t he elem ents of robbery did not prejudice Thom as. The State continued:
No f air-m inded a n d p roperly instructed jury could f a il to f ind b ey ond a r e a s o n a ble doubt that David Thom as, e i ther alone o r while acting in concer t with another, did f

eloniously

take or attem

pt to take the personal property of

9 T h e in d ictm e n t alleg ed th a t D a v i d T h o m as “ d id w illf u lly , u n law f

u lly , an d f elo n io u sly k ill F red Jack so n , a h u m an b e in g , w ith o u t th e au th o rity o f law , w ith o r w ith o u t an y d esig n to ef

f ect d e ath w h ile an d w h en en g ag e d in th e co m m issio n o f th e c r i m e o f R o b b ery . . . .” E v en th o u g h th e co n ten tio n o f th e atto rn ey w as accu rate, an d f ailu re to list th e elem en t s o f th e crim e u n d erly in g th e c a p i t al m u rd er d o es co n stitu te a d ef ect in th e in d ictm en t, th e s u f

f icien c y o f th e in d ictm en t is n o t a n issu e raised o n ap p eal, n o r w as it an issu e raised p retrial in a d em u rrer o r m o tio n to q u ash th e in d ictm en t.

3 2Fred Jackson, f rom his person or against his will; by violence to his person.
To the contrary , t he e lem ents of robbery alway s w ere at i ssue i n this case, a nd t his Court

cannot say whether the jury m ade su ch a f inding without the jury ’ s having been instructed properly on the e lem ents o f robbery

. And, as in Harrell , which does not require a f inding that the def e n dant’s case was prejudiced, “it is always and in every case r eversible error f or the

courts of M i ssissippi to deny an accused the right to have a jury decide guilt a s t o each and
every elem ent.” Harrell , 134 So. 3d at 275 (em p hasis added). ¶75. The m a

jority goes f urther:
A def endant cannot object t o an elem ents instruction, succeed on the o bjection, use that success to m inim ize the issue to a jury , bolster his own credibility with the success o f the objection and then cry error a nd com plain about the l ack of an elem ents instruction on appeal. Maj. Op. ¶ 65. The m ajority ’s application of the invited-error doctrine to the f acts of this case upends the rule t hat it is “the t rial court’s r esponsibility to assure that the j ury is ‘f ully and properly instructed on all issues of law relevant to the c a se.’ . . . There is no doubt that the trial court is ultimately re s p o n s i b le f

or rendering proper g uidance to the jury via appropriately given jury instructions, even sua sponte .” Harrell , 1 34 So. 3d at 270 (quoting Kolberg , 829 So. 2d at 4 6) (em phases a dded). Yet the m ajority holds that the t rial court does not have a duty

“to insist on instructing the j ury o n the elem ents of the underly ing f

elony .” Maj. Op. ¶ 65. This assertion by the m ajority

ignores established and controlling law. ¶76. M oreover, “the State is responsible f or m aking sure the jury i s i n s t r u c t e d o n t h e essential e lem ents of t he crim e.” Harrell , 1 34 So. 3d at 270 (citing Hunter v. S tate , 684 So. 2d 625, 635 (Miss. 1996)). The Hunter Court h ad held t hat “[ i]t is rudim entary t hat the jury

3 3m

ust be instructed r egarding the elem ents of the crim e with w hich the def endant is charged

. . . [ ;] even though the def e ndant did not present a n acceptable instruction, the S tat e w a s obligated to do s o.” Harrell , 1 3 4 S o . 3 d a t 270 (quoting Hunter , 684 So. 2 d at 635) (em phasis added). Here, even though the trial court’s f a i l ure to do so m ay have been
pr e c i p i t a ted by def

ense counsel, it nevertheless was the trial court’s responsibility and the
State’s responsibility to ensure that the j u r y was instructed correctly and f ully , notwithstanding the apparent ineptitude of the def endant’s lawy er. ¶77. The only way in which a jury is inf orm ed of the charge against the accused, including all the elem ents of t he charge, is through the trial court’s f o rm al instructions to the jury

. The elem ents of the u n derly ing f elony take o n g reat e r - t han-usual im portance in capital m

urder

cases. A def

endant who ef

f ects the d e a th of another i n any m anner that is neither legally excusable nor justif

iable can be f

o und guilty of capital m

urder only if the underly ing f elony is proven bey o nd a reasonable d oubt. This m e ans that a f elonious killing of another person that, without the underly ing f elony , m igh t b e prosecuted as m anslaughter o r vehicular hom icide, becom es a capital of f ense f or which a def

endant can be sentenced to death or lif e without pa role when the u nderly ing f elony is properly pled and suf f iciently proven to a correctly instructed jury

. Of the capital m urder of f enses requiring an underly ing f elony , as is the case here, the e lem ents of t he underly ing f elony becom e the elem ents of capital m urder. Thus, in c ases such as the one at bar, the State’s obligation to prove the u nderly ing f elony is of indispensable im

portance. ¶78. Here, the j ury h ad no way of knowing whether the crim e of r obbery had been proven

3 4because it received no instruction f rom the court that inf

o rm ed it of what it takes, f act-wise,

to prove robbery

. S uch an i nstruction rightly was t endered by the S tate; but because def ense counsel f oolishly objected to it a nd the trial judge denied the instruction to the State without requiring an appropriate s u b stitute, t he jury was l ef t t o guess about the elem ents of the predicate f

elony , w ithout which this would not have b e e n a c a p ital case. It cannot be said, theref ore, that Thom a s was f

ound guilty bey ond a r easonable d oubt of capital m urder, since the jury was deprived of

knowledge of all the elem ents of that crim e. ¶79. The m ajority ’s ap p r o a c h , w h i c h a f f ects not o nly t he present case but those in the
f uture a s w ell, relieves Mississippi’s crim inal court trial judges of an enorm ous aspect of their responsibility

as ultim ate guardians of

the all-im

portant f air trial and returns us to the
way s of the pre- Newell 10 era during t he Nineteenth and Twentieth Centuries. The n , j ury instructions were regard e d a s f a l l i ng m ainly within the province of the litigants and their attorney s. Judges of

f ered l ittle or no input, o ther tha n ma r k i n g the proposed instructions granted or denied , a nd occasionally m aking pen-and-ink edits to tendered instructions, then reading t h e granted ones to the jury

. I nstructions in t hose day s were captioned,
“INSTRUCTION NO. ____ FOR THE STATE” or “INSTRUCTION NO.

____ FOR THE DEFENDANT,” and began, “The Court i nstructs the Jury f or the State.

. . .” or “The Court instructs the Jury

f or the Def

endant . . . .” ¶80. I n t h e r ealm o f correct jury instructions, w hich are essential f or f air trials in w h i c h jurors are b ound to f

ollow the inst r u c t i o n s o f the c o urt—

n ot the instructions of the

10 N ew ell v. S ta t

e , 3 0 8 S o . 2 d 7 1 (M i ss. 1 9 7 5 ).

3 5lawyers— accurate instructions on the applic a ble law are i ndispensable to f airness. Jurors

r i g h t l y regard the legal instruction they receive a s com ing f rom the j udge. This is the o n l y

source of inf

orm ation jurors have r e s p ecting the l aw t hey are t o f ollow in reaching their decisions. The jurors, the litigants, and the public have a right to b e l ieve that those instructions are correct and complete

. They n ever should be provided a set of jury instructions that is incorrect or incom plete because of lawy er ineptitude that was observed but lef t uncorrected by

a jury trial’s only

lawgiver, the presiding judge. ¶81. Historically , and at present, Mississippi trial jurors cannot f unction as such unless and until they have taken o n them s e l v e s a solem n oath, which now i s prescribed in the Mississippi Rules of

Crim inal Procedure: (a) Oath of Jurors. The court shall, on the record of each trial, give the jurors the f o llowing oath o r rem i nd the jurors that they still are under the f ollowing oath:
Y o u , a nd each of y ou, do solem nly s wear (or af f i rm ) that y o u will well and truly try all issues a nd execute all writs of inquiry that m a y be subm i tted to y ou, or lef t to y our de c i s ion by the court, or under its direction, during the present t e r m, and true verdicts give according to the evidence. So help y ou God. Additionally , i n each capital case, the jurors shall be sworn to “well and truly try the issue between t h e s t a t e a n d the def endant, and a true verdict g ive according to the evidence and the law.” M.R.Cr.P. 18.5(a). ¶82. The m ajority prof

esses its solid support f

or the “legal tenet ” a r t i c u l a ted in Harrell , which, in actuality announced nothing new i n its af f irm ation of t rial judges’ well-established and long-recognized res p o n s i b i l i t y t o a s s u re that the court’s instructions to the jury r especting

3 6the law the jurors are bound to f ollow is correct and com

plete. But a p ledge of allegiance to

a legal t enet that is unaccom panied by conscientious and consistent adherence to it rings rather hollow a nd, i n reality , i s without value. Struggling to absolve judges of their role in trials a s the ultim ate guardians of all t hings legal, m y learned coll e a g u e s i n t h e m ajority whine that trial c ourts, i n their review of the j ury instructions proposed by the parties, would have t o be im

bued with om niscience—a quality possessed only by Deity a nd u nattainable f or

m ere m ortals, i ncluding trial judges—in order t o do their j obs. Of c o u r se, their job descriptions include the d u t y t o give legal instructions to jurors that, i n a ddition to being accurate, m

ust b e c om

plete, as is m ade c lear by the f oregoing legal tenet to which t he

m ajority claim s devotion. ¶83. The knowing and i nf orm ed waivers r equired f

or v alid f elony guilty pleas are equated by the m ajority with t he t acit, im plied waiver ascribed to a clueless def endant whose careless lawy er f ails to object to an incorrect jury instruction or unwittingly subm its an insuf

f icient

one to a trial judge. This attem pted analogy provides a less-than-apt com parison. That said, candor com

pels an acknowledgm ent that there a re som e s ignif icant sim ilarities between the

two otherw i s e - d i s s im ilar kinds of waiver. Guilty pleas are conducted under the watchf ul

e y e s , a t t entive ears, a nd alert m inds of judges who b ear heavy responsibility f or going t o whatever lengths are necessary to see that all applicable constitutional and legal r ights of the accused are protected. Part of t he judge’s job is to be sure t h a t t h e y a r e , and to correct whatever def

iciencies, i n the exercise of judicial d iligence, he or she m a y detect. If def iciencies appear and cannot be rectif ied by judicial explanation, a recess f or the accused

3 7to conf

er with counsel, or other appropriate m eans, the judge, as t he ultim ate decider of the suf f i ciency of guilty pleas, is duty bound not to accept t he plea. Sim ilarly , the o bservant and

c o n s cientious Mississippi circuit court j udge who actually studies the tender e d instructions—which now m u st be f iled in advance of trial under Mississippi Rule of Crim inal Procedure 22(b)(1)—and f inds them to be incom

plete a nd/or incorrect is duty bound by this
Court’s decisions, including Harrell (whose t e n et t he m ajority lauds), and by the j udge’s oath of o f f ice, which say s in part “

. . . that I will f aithf ully and im

partially discharge and perf orm all the duties incum

bent upon m e a s a c ircuit court judge.

. . ,” Miss. Const. Art. 6, § 155, not
to put jurors in a position of r ely ing o n , and basing their decision on, a set of incom plete and/or incorrect j u r y i n structions. It is, indeed, the judge’s job to detect and cause to be

rem ediated whatever e rrors and/or om issions m ay exist i n jury instructions. W it h great respect f or m y colleagues in the m ajority , f or this Court to hold that, in ef f ect, t hat buck stops with the lawy ers and not with the judge, is grossly erroneous and sets a ve r y perilous precedent. ¶84. O f c o u r s e , t h e trial judge’s duty in this regard is not just to the juror s , b u t

— a n d perhaps m ore so—to the person on trial, to the public, and to the law itself

. ¶85. Here, these duly -sworn jurors were not g iven j udicial i nstructions, t o which t hey were entitled, on all of the a p p l i c a b l e Mississippi l aw they were bound to f ollow. Thom as was convicted of m

urder in t he c om m ission of a r obbery by jurors w ho were not inf o rm ed of what the State m

ust have p roven to them , b ey ond a reasonable doubt, f o r the jurors to h ave been justif i ed in believing, f

rom the evidence, that a r obbery had occurred. The elem ents, or

3 8ingredients, of robbery sim ply were not provided them

. The m ajority holds that, b ecause of attorney error, which should have been obvious to the t rial judge a nd to t he prosecutor, this glaring om ission was perf ectly all r i ght. In ef

f ect, the d ef

endant—accor d i n g to the

m ajority —is f o r ever s tuck with his attorney ’s blunder—a blunder the lawgiver had no duty

t o recognize and to correct. It is m ore than o bvious t hat this case s hould be r e v e r s e d a n d

rem anded f

or a new trial by a f

ully and correctly

instructed jury

. ¶86. The m ajority acknowledges that the trial court’s erroneous f a i lure to instruct the j ury

on the elem ents of robbery was invi t e d b y d ef ense c o unsel’s actions. I agree. But the inef f ectiveness of Thom as’s a ttorney is clearly apparent f rom the record and alone requires reversal. See Strickland v. Washington , 4 6 6 U

. S

. 6 6 8 , 104 S

. C t. 2 052, 80 L. Ed. 2d 674 (1984). Thom as’s lawy er’s signif icant f ailure patently prejudiced Thom as’s case inasm uch

as it resulted in the jury ’ s not knowing of elem ents of the crim e tha t t h e prosecution was obligated to prove bey o nd a reasonable doubt. Def e n se counsel’s objection, that Thom as’s indictm ent was def

ective f or f ailure to list the elem ents of robbery , m ay h ave had som e m erit but was untim ely

. But the State’s withdrawal of the objectionable j ury instruction triggered the necessity of a substitute jury instruction d etailing the elem ents of robbery

. Accordingly , I would hold that d ef

ense counsel’s f

ailure t o request a substitute jury instruction inf orm ing jury of t he elem e nts of the underly ing f elo ny of r obbery constitutes prejudicial inef f ective assistance of

counsel. KING AND ISHEE, JJ., JOIN THIS OPINION.

3 9