IN THE SUPREME COURT OF MISSISSIPPI NO. 2016-KA-00289-SCT V ICTORIA SWANAGAN a/k/a V ICTORIA P. SWANAGAN

v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 08/03/2015 TRIAL JUDGE: HON. W ILLIAM A. GOW AN, JR. TRIAL COURT ATTORNEYS: DAVID LINZEY IVON JOHNSON DAMON STEVENSON DEXTER W OODBERRY COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/18/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE RANDOLPH, P.J., KITCHENS AND CHAMBERLIN, JJ. RANDOLPH, PRESIDING JUSTICE, FOR THE COURT: ¶1. Victoria P. S w a n a g a n w a s c o n v icted by a jury of the depraved-heart m urder of Vincent Hill and was sente n c e d t o t w e nty

- f ive y e ars in the custody of the Mississippi Departm ent of Corrections (MDOC), with ten y ears suspende d , f i f teen y ears to serve, andf

ive y ears of supervised p robation. 1 Finding no error, we af f irm the sentence and conviction of Swanagan. STATEMENT OF THE FACTS AND PROCEEDINGS BELOW ¶2. At trial, Derrick S i ms t e stif ied that he and Vincent P. Hill w orked together. When Sim s arrived at Swanagan’s hom e to pick up Hill f or work, h e h e a r d S w anagan and Hill arguing in her h o use. Swanagan e xited her house and went next door to her m other’s house. During that time , Hill stay e d inside Swanagan’s house. When S wanagan returned, S im s heard a “ruckus.” Af

ter a while, Hill cam e rushing o ut o f the house without a shirt. “About the tim e he m ade it half

way d own the stairs she hit him in the back of the – V ictoria hit h im in the back of

the head.”
Wh en they c om e outside, when she h it him in the back of the head, he leaned against her ca r , a n d h e said, don’t hit m e no m ore. And he t old h er m am a, I love y our daughter to death, but look how she treat me . T hat was h is exact words. He didn’t c uss at h er. He didn’t call her nothing out of her nam e . That’s exactly what h e said. And af ter that she said a little s om ething, and he cam e and got in my truck. He was, like, m an, l et’s go. He said, I’m tired. That was his exact words. Swanagan opened the passenger door and got in the truck. Hill t old Sim s to drive to work. Sim s also testif

ied that no one f

orced Swanagan to get in his truck. ¶3. S w a n a g a n a n d H i l l c o n t i n u e d arguing in the truck. The arguing escalated, and Swanagan hit Hill. Sim s testif ied that Hill could not strike S wanagan, “[ b]ecause he was so tall in the truck it’s like how she was over him he couldn’t m ove.” Then Swanagan bit Hill.

1 Swanagan was indicted f or “willf ully , unlawf

ully , and f eloniously kill[ i ng] Vincent P

. H i l l

. . . with deliberate design

. . . b y shooting

. . . Hill i n the chest

. . . in vio l a t i o n o f Section 97-3-19(1)(a). . . .” 2Hill started y elling and scream ing, causing Sim s to stop the truck. Sim s got out o f the truck

and opened the passenger door. Swanagan and H ill f ell out at the sam e tim e . As they were f alling to the ground, Hill hit Swa n a g an on top of h er head. Sim s testif ied that Hill hit Swanagan only that one t i me , b e f o r e he j um

ped up and ran t o the truck, y e l ling at Sim s to “com e on.” ¶4. Sim s was behind the truck, headed toward the driver’s side door, w hen he heard the f i r s t g un shot and saw Swanagan with a gun, shooting at the truck. S wanagan was on the ground and had her hand securely on a pistol, pointing up at the truck. As H ill s tarted to drive

o f f , S i ms heard two m ore shots. Af ter Swanagan had p ut the gun down, s he told Sim s s h e would buy

him a new window. ¶5. Sim s heard his truck stop running, and he ran of f toward it. Sim s f

ound the truck in

som e woods nearby

. Sim s f ound Hill “in the center of the dashboard dead.” Sim s then j u mp e d i n the truck and drove to Swanagan’s residence. “I jum ped out of the truck imm ediately , and I couldn’t say nothing but y ou killed him

. . . . I just got i n the truck and lef t the scene.” Sim s then drove to a service station because he wanted to be saf e. ¶6. Sim s testif

ied that he n either owned a g un nor had a gun in his possession the day Hill

was killed. He said Hill knew that Sim s no l onger owned a gun. Even w hen S im s did own

a g un, he carried i t in his truck only when h e went f ishing, b ut never t o w ork. Sim s testif ied that S wanagan had b e en f i shing with Sim s and Hill, but she also knew he had g otten rid of his gun.

3¶7. Felicia Robinson, a f orensic scientist with the Mississippi F orensic Laboratory , was accepted as an expert i n the f ield of f orensic analy s is o f f

irearm s and t ool m ar

ks. Robinson testif i ed that the p rojectile subm itted to the crim e lab f rom Hill was f

i red f rom the f irearm retrieved f

rom Swanagan’s property

. ¶8. Lis a F u n t e , a s t a t e f orensic pathologist, was accepted as an expert in the f ield of f or e n s i c p a t hology

. F unte testif ied that she p erf

orm ed the autopsy on H ill. D uring the autopsy , Funte noted abrasions and contusions on h is f ace, neck, hands, and legs. Funte also f ound an entrance def

ect on the right side of the chest and an exit def ect on the lef

t side of the chest. In alignm ent with that exit def e ct that was o n the l ef

t side of the chest there was also d ef ects in the lef

t arm . The bullet went f

r om the right side o f t h e c h est through the chest, exiting o n the lef t side and reentered the lef t arm where the bullet was recovered. ¶9. Af ter the State rested and m otions wer e d e n i e d , S w a n a g a n o f f e r e d h er def

ense. Barbara Swanagan, m o ther of Victoria Swa n a g a n , testif ied that on the m orning Hill was killed, her daughter cam e o v er to her hom e twice. She h e a rd noise in her daughter’s hom e each tim e Swanagan returned hom e. B arbara went outside and called f or h er d aughter. Both Swanagan and Hill exited the h o use. Barbara tried to d ef use the situation b y talking calm ly to both Hill and Swanagan, but Hill cursed at Barbara. ¶10. Af ter thinking she had calm ed ever y o n e d o w n , B a rb a r a t urned to go back in her house. As she turned, she heard the truck start. She saw the truck start and stop several tim es and was worried that som ething was not right. She asked her daughter-in-law to c all 911, and while Barbara was t alking t o the 911 operator, she h eard gunshots. B arbara saw her daughter

4walking toward them with a gun in her hand. Barbara was neither in her daughter’s hou se

when Swanagan and Hill were f ighting, nor did she see her daughter shoot Hill. ¶11. S w a n a g a n t e s t i f

ied that, on the m orning Hill was shot, she a sked him about te x t

m essages she had received f rom his f am ily , and he “blew up” at her. Hi l l accused her of cheating on him and then m ade se x u a l advances towards her. When she r ef used, he began to shove, hit, and call her nam es. She said this continued f or m ore than ten m inutes. ¶12. Wh en Hill ref

used to leave, Swanagan walked to her m other’s house to get ready f or work but then returned a f

ter s he heard noises com ing f rom her house. S he returned and f ound that Hill had turned over stands, k nocked things o f

f of f urniture, and punc h e d holes in her walls. Swanagan tried to gather her things f o r work. Hill ref

u sed to leave and continued to knock things over. He then ripped of f his shirt. ¶13. Swanagan grabbed h e r purse and went back to her m o ther’s h ouse. She heard noises again, went hom e, and f

ound that Hill was still tearing her house apart. They began to argue again, and at som e point, her tooth was knocked o ut. 2 Swanagan adm i tted t o h itting and scratching Hill while they were f ighting inside her hom e. ¶14. Swanagan then heard her m other c alling f or her. She and Hill went o utside. Hill got in Sim s’s truck, while pulling her into the truck. As she was trying to f igure out how to get out of the truck since the passenger-side door had no handle, Hill hit her f rom behind. Hill

t o l d S i ms t o “crank the truck. Let’s go. W e ’re gonna drop this bitch of f on the side of t h e

2 Swanagan expressed to Investigator Charlotte Dixon that “her tooth was loosened during [ a phy sic a l a l t e r c ation with Hill], possibly knocked out because her m outh was hurting

. ” D ix o n testif

ied th at S w an ag an w as m issin g a to o th an d ex h ib ited o th e r p h y sical in j u ries, b u t D ix o n d idn o t

n o tice an y

b lo o din o r o n S w an ag an ’s m o u th

. 5interstate.” Hill b egan twisting Swanagan’s arm s, pinning her, and then tried to bite her, but

she was able to b ite him f

irst. When she bit him , he y elled, and Sim s stopped the truck. S im s then opened the passenger-side door f rom outside the truck. Hill shoved Swanagan out of the truck. While she was o n the ground, Hill continuously k icked her. Swanagan tried to protect herself f rom his blows. Wh ile Hill was kicking her, his g un f ell o ut. Swanagan rolled on top of the gun when Hill tried to retrieve it. ¶15. Af ter he was unable to get the gun, Hill began t o back up, n earing the truck. As H i ll got c lose to th e t ru c k , h e reached behind him , trying to get som ething out of the truck. Swanagan f

eared that Hill was trying t o f ind Sim s’s gun that he kept in his truck. S wanagan

was “scared f

o r her lif e” and told Hill to leave. He did not l eave, but instead continued “f idgeting” in the truck. Swanagan t h e n f i r e d the gun, hoping H ill would leave. Hill then called Swanagan a “dum

b bitch.” She recalled scream ing f or Hill to leave and the gun going of f two or thr e e m ore tim e s. At som e point Hill got back in the truck and drove away , but Swanagan could not recall when she f ired the other shots. Wh en she saw that Hill was leaving, she began walking back to her house. ¶16. The jury f

ound S wanagan guilty of depraved-heart m urder. Swanagan was sentenced
to a term of twenty -f

ive y ears i n the custody of the MDOC, with ten y ears suspended and f ive
y ears t o be served on supervised probation. S ub s e q u e n t l y , Swanagan f iled a m otion f

or judgm ent notwithstanding the verdict (JNOV) or, in the alternative, a n ew trial, arguing that “the State f

ailed t o prove [ Swanagan] was not acting in self -def ense a t the tim e [ Hill] was shot.” Swanagan also argued that, if she was not acting in self -def ense, at m ost the evidence

6p r e s e n ted at trial established that she was acting in the heat of passion, which “wou l d

m itigate the m

urder to m anslaughter.” The trial court denied her m o tions a f ter determ ining the jury was properly instructed and had heard the f acts, bef ore f inding Swanagan guilty of depraved-heart m

urder. S TATEMENT OF THE ISSUES ¶17. Swanagan raises the f o llowing f

our issues on appeal:
I. Whether the evidence w a s insufficient to support the verdict. II. Whether the verdict w as against the overw helm ing w eight of the evidence. III. Whether the trial court erred in its supplem ental instruction in response to the jury ’s question as to the definition of depraved heart. IV. Whether Sw anagan received ineffective assistance of counsel. ANALYSIS I. Whether the evidence w a s insufficient to support the verdict. ¶18. Wh en considering a suf f iciency -of

-the-evidence argum ent, this Court has said that: the critical inquiry is w hether the evidence shows bey ond a r easonable doubt that the accused c omm itted the act charged, and that he did so u n d e r s u c h circum stances that every elem ent of the o f f ense ex i s t e d ; and where the evidence f

ails to m eet this test it is i nsuf f icient to support a conviction. However, this inquiry d oes not require a court t o ask i tself whether it believes that the e vidence at the trial established guilt bey ond a reasonable doubt. Instead, the relevant question is wh e t h er, af ter viewing the e v idence in the light m ost f

a v o rable to the prosecution, any rational trier of f a c t could have f ound the essential elem ents of the crim e bey ond a reasonable doubt. Fagan v. State , 171 So. 3d 496, 5 03 (Miss. 2015) ( quoting Bush v. State , 895 So. 2d 836, 843 (Miss. 2005)) (internal alterations and quotation m arks o m itted). This Court m ay reverse only “‘where, with r espect to one or m ore of the e lem ents of the o f f ense cha r g e d , the

7evidence so considered is such that reasonable and f air-minded jurors could only f ind the accused not guilty .’” Franklin v. State , 676 So. 2d 287, 288 (Miss.1996) (quoting Wetz v. State , 503 So. 2d 803, 808 (Miss.1987)). ¶19. Swanagan argues that the evidence f ailed to establish bey ond a r easonable doubt that she (1) did not act in n ecessary self -def ense and (2) acted with m alice and n ot in the heat of passion. A. Self-Defense ¶20. Swanagan ar g u e s t h a t because she raised self -def e nse, the State had the burden of proving bey ond a reasonable doubt that she did not kill H ill in self -def ense. Swanagan claim s that the State f

ailed to m e et its burden of proving bey ond a r easonable d oubt that s h e did not
act in self

-def ense when s he k i lled Hill. The State responds that it subm itted suf f icient

e v i d e n c e such that a reasonable jury could have f ound bey ond a reasonable doubt t h a t Swanagan killed Hill with a depraved heart and not in necessary self -def ense. ¶21. Mississippi’s justif iable hom icide statute states that: the killing of a hum an being . . . shall be justif iable . . . [ w]hen comm itted in the lawf ul def ense of one’s own person or any other hum an being, where there shall be r easonable ground to apprehend a design to comm it a f elony or to do som e great personal injury , and there shall be imm inent danger of such design being accom

plished. Miss. Code Ann. § 97-3-15(1)(f ) (Rev. 2014). Evidence was presented that Hill was unarm ed

at the tim e Swanagan shot and k illed him

. When p olice arrived at Swanagan’s residence, they

were instructed that a gun had been placed in a bucket by B arbara, a f ter she had retrieved the
gun where Swanagan had laid it on a car. That w as the only weapon r e c o v e r ed – the gun

8Swanagan used to shoot Hill. Sim s testif ied that Swanagan shot at Hill at least three tim es. Sim s also testif

i ed that Hill was trying to ge t in the truck and drive away w hen S wanagan shot him

. Furtherm o re, Swanagan admitted that she had shot at Hill at least three t im es. She could not r ecall if Hill was still in f ront o f her o r if he had gotten in the truck and was driving
away when she f

ired the last two shots. The autopsy showed that H i l l died f rom a bullet

wo u n d t o h i s chest. Experts determ ined that the f atal s hot cam e f

rom the gun recovered at Swanagan’s hom e. ¶22. “The issue of justif iable self -def ense p resents a question of the weight and c redibility of the e vidence rather than suf f i ciency and is to be decided by the jury .” Wade v. State , 748 So. 2d 771, 774 (Miss. 1999). I n this case, conf l icting testim ony was adduced regarding the
events i mm ediately surrounding the shooting. The j ury was instructed on m urder, depravedheart m urder, deliberate-design m urder, heat-of

-passion m anslaughter, and justif iable self

def ense. The jury weighed the evidence, considered its options under the law, and ruled in f avor of the State. W e cannot say that the evidence presented was insuf f icient f or a rational jury to f i nd bey o nd a r easonable doubt that Swanagan shot H ill w ith a depraved heart to kill him and no t i n n e c e s sary self -def ense. The opposing theories of the prosecution and the def ense were f

ully and f a irly presented to a properly instructed trier of f act. In the end, the disputed issu e s of f

act were resolved in f

avor of the State and against the def e ndant. This claim is without m erit. B. Heat-of-Passion

9¶23. Swanagan alte r n at i v e l y a r g ues that the State f

ailed to prove b ey ond a reasonable doubt that s he acted with the m alice required f or a depraved-heart m

urder conviction. S he insists the p roof dem onstrates that she acted in the heat of passion, and the m urde r c o nviction should be reduced t o a m anslaughter conviction. The S tate counters that S wanagan’s actions

were perf orm ed with m alice and that h er a c t i o n s exceeded the level of m ental culpability required f or heat-of -passion m

urder. Both argum ents are m isguided a s to a requirem ent of

m alice f or a conviction f

or depraved-heart m

urder. While Swanagan i s correct that the State f ailed t o prove she acted with m alice, the jury did n ot convict her of a crim e which required

ma l ice. The word m alice is not f ound in S ection 97-3-19(1)(b) of the M ississippi Co d e , which specif

ically reads that depraved-heart m urder is “without any

prem editated design.

.

. . ” Miss. Code Ann. § 97-3-19 (1)(b) (Rev. 2014). Only subsection (1)(a) in S ection 97-3-19, i.e., m urder, requires a f

inding of m alice. 3 A lthough Swanagan w as indicted f or and the jury was instructed on m

urder, the jury

did not f ind Swanagan guilty

of m urder. ¶24. Swanagan was f

ound guilty of depraved-heart m urder, now “second-degree m urder,” which is a killing “done in the comm ission of an act em inently dangerou s t o others and evincing a d epraved heart, regardless of hum an lif e, although without any p remeditated design t o ef

f ect the death o f any particular individual.

. . .” Miss. Code Ann. § 9 7-3-19(1)(b) (Rev. 2014) ( em

phasis added). Depraved-heart mu r der encom p asses “a reckless and

em inently dangerous act d irected t oward a single i ndividual.” Windham v. S tate , 602 So. 2d

3 “M alice, o r d elib e rate d esig n , m ay b e in f erred f ro m th e u se o f a d ead l y

w eap o n .” H o llim a n v. Sta te , 1 7 8 S o . 3 d6 8 9 , 6 9 8 (M iss. 2 0 1 5 ), reh ’g d en ied (D ec. 3 , 2 0 1 5 ). 1 0798, 8 02 ( Miss.1992). A f inding of m alice is not require d f or depraved-heart m

urder. See Miss. Code Ann. § 97-3-19(1)(b). ¶25. Evidence was presented that Swanagan f ired at l east three shots directly at Hill, and that she did not stop f

iring until he f

led. The f

irst shot shattered the passenger window, f ollowed by two m ore shots. Given the evidence presented and com paring h er a ctions with the statutorily r equired elem ents f or depraved-heart m

urder, the j ury had m ore than suf f icient evidence to f

ind that Swanagan was guilty of d epraved-heart m urder, not m anslaughter. This issue is devoid of

m erit.
II. Whether the verdict w as against the overw helm ing w eight of the evidence. ¶26. In Bush , 895 So. 2d at 844, this Court set out the standard of review f or w eight of

the evidence, stating: [ w]hen reviewing a denial of a m otion f or a new trial based o n an objection to the weight of the evidence, we will only disturb a verdict w h en it is s o contrary to the over w h elm ing weight o f the evidence that to allow it to stand w ould s a n c t i o n an un conscionable injustice. Herring v. State , 691 S o. 2d 948, 9 57 (Miss. 1997). W e have stated that on a m otion f or new trial: the c o urt s its as a thirteenth juror. The m otion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily

against the verdict. Am iker v. D rugs For Less, Inc. , 7 96 So. 2d 942, 947 (Miss. 2000).

. . . [ T]he evidence should be weighed in the l ight m o st f avorable to the verdict. H

erring , 691 So. 2d at 957. Bush , 895 So. 2d at 844.

1 1¶27. S w a n a g a n a r g u e s t h a t t h i s C o urt should nullif y the jury ’s verdict becau s e t h e

o v e r w h elm ing weight of e vidence in this case “creates serious doubt a s to her gu i l t f o r

m urder and asks this C ourt t o rem and her case f or a n ew trial to p erm i t ano t h e r j u r y t o consider whether she is guilty of m urder or only

m anslaughter. W e decline her invitation. ¶28. “Conf

l icting testim ony does not evin c e o v e r w h e lm ing evidence; where the verdict
turns on the credibility of conf licting testim ony and the credibility of the witnesses, it is the jury ’s duty to resolve t h e c o n f lict.” Am brose v

. State , 133 So. 3 d 786, 793 (Miss. 2013) (quoting Brown v. State , 995 So. 2d 698, 7 02 (Miss

. 2 0 0 8)). Viewing the evidence in the light m ost f

avorable to the S tate, and granting the S tate the benef it o f all inf

erences that m ay be drawn f

rom the evidence, we f

ind that the conviction f

or depraved-heart m

urder was not against the overwhelm ing weight of the evidence. This issue is devoid of m erit.
III. Whether t he trial c ourt erred in its supplem ental instruction in response to the jury ’s question as to the definition of depraved heart

. ¶29. This Court has held that: [ w]hen reviewing a trial court’s resp o n s e to the jury ’s i nquiry , this Court’s inquiry is not whether the trial court was “right or wrong” in its response, but whether the trial court a b used its discretion. Unless the trial court based his decision on an erroneous view of the law, t h i s Court is not authorized to reverse f or an abuse of discretion absent a f i nding the trial court’s decision was “arbitrary and clearly

erroneous.” Galloway v. State , 122 So. 3d 614, 634 (Miss. 2013) (citing Hooten v. State , 492 So. 2d 948, 950 (Miss. 1986)). Furtherm ore, Rule 3.10 of the Unif orm Rules of Circuit and County Court Practice states: If the jury , af

ter they retire f

or deliberation, desires to be inf orm ed of any point of l aw, the court s hall instruct the jury to reduce its questions to writing and

1 2the c ourt in i ts discretion, af ter a f f ording the parties an opportunity to state their objections or a ssent, m ay then grant additional written instructions in response to the jury ’s request. URCCC 10. ¶30. During the d eliberations, the jury s ent o ut a note a sking f or a d ef i nition of depraved heart. BY THE COURT: The jury having sent a note out, and pr o s e c u t i on as well as def

ense being advised of

the question, the q uestion being a def

i nition of depraved heart. The Court’s r esponse was: By agreem e n t with the prosecution and d ef

ense r ead S -2 f

or guidance. Is that correct? BY MR. STEVENSON: Correct. BY MR. JOHNSON: That’s correct, Your Honor. Jury Instruction S-2 reads as f ollows: The Court i nstructs the Jury that if yo u believe f rom the evidence in this c ase bey ond a reasonable doubt that: 1. The def

endant Victoria P. Swanagan, 2. Did on or about July

3, 2014, 3. In the Second Judicial District of Hinds C ounty , M ississippi, 4. Kill Vincent Hill, a hum an being,
5. While e ngaged in the c o mm ission of an act em inently dangerous to others and evincing a depraved heart, disregarding the value of hu man lif

e, although without any prem editated design to ef

f ect the death of Vincent Hill, Then y ou shall f

ind Victoria P. S wanagan g uilty o f Depraved Heart Murder.

1 3If the prosecution has f ailed to prove any on e or m ore of the above listed elem e nts of Depraved Heart Murder, then y o u s hall proceed in yo ur deliberations to consider the lesser of f ense of Manslaughter. ¶31. Swanagan argues that the trial court e rroneously responded to the jury ’s q uestion by singling out Instruction S-2, g i v i n g it undue prom inence in the j ury ’s ey es. S wanagan contends that the trial c ou r t ’ s r e s ponse unduly prejudiced her trial because I nstruction S-2 did not i nclude a ref

erence to self

-def ense. Swanagan alleges this m ay have m i sled the jury
to believe that se l f

- d ef ense, or its absence, was not an applicable e l em ent to the crim e of depraved-heart m

urder. Swanagan f

urther argues that the trial court s hould have instructed the jury to reread all of the jury instructions and “perha p s g iven another depraved heart

m urder instruction that covered the om ission in instruction S-2 by including not in necessary self -def e nse.” ¶32. Both of these argum ents are procedurally barred because S wanagan did not object to the trial court’s response, nor did she object to Instruction S-2. A s the State argues, “when

a party f ails to m ake a contem

poraneous objection, the appellate court is under no obligation
to review the assignm ent of e rror.” Hughes v. State , 9 0 So. 3d 613, 623 (Miss. 2012) (citing Caston v. Sta t

e , 8 2 3 S o. 2d 473, 503 (Miss. 2002)). In this case, when the j ury ’s note was subm itted to the court, Swanagan did not object. I nstead, the def ense and prosecution agreed that the court should instruct the jury to see Jury

Instruction S-2. ¶33. Notwithstanding the procedural bar, these argum ents are without m e rit. First, the trial
court d i d n o t abuse its discretion in responding to the jury ’s inquiry

. The instructions provided by the court d em on s t r a t e d t h e proper rules of law and were not erroneous.

1 4Additionally , the court’s Instruction S-2 was not in error. “The instructions, together, f ully and a ccurately

inf orm ed the jury

of state law, and the trial court did not err in directing the jury to review [ S-2].” Galloway , 122 So. 3d at 635. ¶34. Second, Instruction S-2 was a proper s t ateme n t o f t h e l a w a n d d oes not require

am endm ent, as argued by Swanagan. In Harris v. State , 861 So. 2d 1003 ( Miss. 2003), this Court held that: [ i]t was not error to give an instruction that om its the w ords “ not in necessary self def e nse” when charg i n g depraved heart m urder when the Court also instructs the jury in a separate instruction that the killing would be justif i ed if comm itted by the def

endant in the lawf

ul def e n s e o f h is o wn person. The instructions, when read in their e ntirety , properly instructed t h e jury that a killing m ay not be m

urder, that the killing could be justif ied i n s elf def

e nse, the f actors that m

ust b e c onsidered when deciding if the killing was in self def ense, and that the burden of proof is alway s on the State. Considering the instructions as a whole, this Court f inds that the jury was properly instructed. Harris , 861 So. 2d at 1015. ¶35. The jury received not one, b ut three separate instructions on self -def ense. Instruction D-1 def ined self -def e nse; D-2 instructed that the burden o f proof was on the State to prove Swanagan did not act in self -def ense; and D-3 inf

o rm e d the j ury that Swanagan h ad a right
to def end herself f

rom any unjustif

ied attack on her person and to use such f orce necessary to repel her attacker. ¶36. W e f

ind that the jury was instructed properly on self -def ense and rejected her claim of self -def ense. This issue is devoid of m erit.
IV. Whether Sw anagan received ineffective assistance of counsel.

1 5¶37. If an inef f ectiveness claim on direct appea l i s b a s e d on f acts f ully apparent in the record bef

ore u s, the C ourt will address the inef f ective-assistance-of

-counsel claim

. M.R.A.P. 22(b). See Parker v . State , 30 So. 3d 1222, 1232 (Miss. 2010). The f acts and issues
upon which Swanagan r elies are succinctly stated in the f ully develope d record, and the controlling law is the sam e as we previously have cited, supra ¶¶ 21-40. ¶38. The substantive standard of review f or an inef f e ctive-assistance claim is twof old: “In order to prevail on a claim of i nef f ective assistance of counsel, a d ef endant m u st prove that his attorney ’ s perf

orm ance was def

i c i e n t , a n d that the d ef

iciency was so substantial as to deprive the def

endant of a f

air trial.” Holly v

. State , 7 16 S o. 2d 979, 9 89 (Miss.1998) (citing Strickland v. Washington , 466 U .S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Wilcher v. State , 479 So. 2 d 710, 713 (Miss. 1985); Stringer v. State , 454 So. 2d 468, 477 (Miss. 1984)). Swanagan bears “the burden o f proving t h a t c o unsel’s perf orm ance was def icient and prejudicial.” Branch v. State , 882 So. 2d 36, 52 (Miss. 2004) (citing Hansen v. State , 649 So. 2d 1256, 1258 (Miss. 1994)). ¶39. Swanagan’s appellate counsel 4 now argues her trial attorney was inef f ective f or “(1) f a i l i ng to request instructions on culpable negligence m anslaughter and accident o r

m isf ortune and (2) agreeing to the trial court’s response t o the jury ’s question.” Addressing the l atter, we have held supra that the tri a l c o u r t did not err in its response to the jury

. Accordingly , that assignm ent of error c annot support a claim of inef f ective a s sistance of counsel. A s to the instructions to which Swanagan claim s s he was entitled, no evidence was

4 S w an a g an h as d if

f eren t ap p ellate co u n sel th an h er trial co u n sel.

1 6presented in this record to support an instruction or even support an inf erence ofculpablenegligence m anslaughter, accident, or m isf o rtune. ¶40. “When claim ing inef f ective assistance of trial c oun s e l because of jury instructions, ‘[ i ]t is the duty of the appellant t o dem onstrate both error in f ailing to receive the i nstruction and the prejudice to the def ense . ’ ” Havard v. State , 928 So. 2d 771, 789 (Miss. 2006) (quoting Burnside v. State , 882 So. 2 d 212, 216 (Miss. 2004)). “A def endant is entitled to jury instructions on his theory of the case whenever there i s evidence that would support a j u r y ’ s f inding on that theory

. . . .” Thom as v. State , 48 So. 3d 460, 4 69 (Miss. 2010 ) (citations om itted). “In a hom icide case, as in o ther crim inal cases, the court s h ould instruct the j ury a s to theories and g r ounds of d ef ense, j u s tif

ication, or excuse supported by the evidence, and a f

ailure to do so is error requiring reversal of a judgm ent of conviction.” Giles

v. S tate , 650 So. 2d 846, 8 49 (Miss. 1995). The trial court instructed this jury on Swanagan’s theories of

def ense, which had an evidentiary basis. ¶41. Culpable-negligence instructions a r e mo s t c o mmo n l y f o u n d i n D UI and other
autom obile cases, w hich address negligent or gr o s s l y negligent conduct. The State never claim ed any gross or willf ul a cts of negligence, and S wanagan never def ended under a theory of negligence. In non-auto case s , we have held that com parable e v idence f

ound in today ’s

case does not support an instruction f or culpable negligence: C handler v. State , 946 So. 2d 355, 361-62 (Miss. 2 0 06) (evidence did not support a culpable-negligence instruction where the def e ndant adm itted to pulling out a gun and shooting the v ictim ); Fairley v. State , 871 So. 2d 1282, 1285 (Miss. 2003) (culpable-negligence m anslaughter i nstruction denied where

1 7evidence showed that def endant argued, pointed a

gun at the victim

and shot her, and then pushed her onto the road, where she was hit b y a passing vehicle); Sanders v. State , 781 So. 2d 1 14, 119 (Miss. 2001) (culpable-negligence m anslaughter instruction d enied where evidence showed that def endant intentionally hit victim o n the head with a hamm er); Clark

v. State , 693 So. 2d 927, 932 (Miss. 19 9 7 ) ( c u l p able-negligence m anslaughter i nstruction den i e d w h e r e evidence showed that def endant intentionally went t o his truck t o get his shotgun, then entered the building, shot the door and l o aded and f ired three m ore shots through the door); Hurns v. State , 616 So. 2d 313, 315 (Miss. 1993) (culpable-negligence

m anslaughter instruction denied where evidence showed that def endant hit vi ctim with

m ultiple blows to the head with blunt object over short period of tim e). ¶42. As held supra , evidence was presented, and Swanagan a dm itted, that she f i red at least three shots directly at Hill. W e f ind no error by Swanagan’s trial counsel i n f ailing to request

an inst ru c t i o n on c ulpable negligence o r on accident or m isf ortune, f or the f acts presented in the record bef

ore us do n ot support any of these instructions. This claim is devoid of m erit.

CONCLUSION ¶43. For the reasons stated above, we af f i rm Swanagan’s conviction and sentence. ¶44. C O N V I C T I O N OF DEPRAVED-HEART MURDER A ND SENT E N C E O F TWENTY-FIVE (25) YEARS IN THE CUSTODY O F T H E MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH TEN ( 10) YEARS SUSPENDED AND FIFTEEN (15) YEARS TO SERVE, FOLLOWED BY F I V E ( 5) YEARS OF SUPERVISED PROBATION, AFFIRMED. APPELLANT SHALL B E GIVEN CREDIT FOR TIME SERVED. WALLER, C .J., D ICKINSON, P.J . , KITCHENS, KING, COLEMAN, MAXW ELL, BEAM AND CHAMBERLIN, JJ., CONCUR.

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