IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01306-COA VERNELL DAVEN MISKELL A/K/A VERNELL MISKELL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/24/2016 TRIAL JUDGE: HON. JON MARK W EATHERS COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 11/07/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. Vernell Miske l l a p p e a l s h is conviction f or aggravated assault and his sentence of twenty y ears in the custody of the Mississippi Departm ent of Corrections (MDOC). Miskell
f iled a m otion f

o r a j udgm ent notwithstanding the verdict (JNOV), or, in the alternative, a

m otion f o r a n e w t rial. The trial court denied Miskell’s posttrial m otion. Miskell now appeals to this Court. Finding no error, we af f irm

. FACTS ¶2. A Forrest County grand jury indi c t e d M a r q u i s H a r r i s a n d V e r n e l l Miskell f ora g g r a

v a t e d a s s a ult in violation of Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Supp. 2016) stem m ing f

rom a shooting on the evening of Decem ber 21, 200 4

. Harris pleaded guilty to aggravated assault and then testif ied against Miskell at trial. ¶3. O n Decem

b er 2 1 , 2014, Albert Pollard attended a h o u s e p a r t y i n H a t t i e s b u r g , Mississippi. During the party , Pollard went outside to purchase m arijuana f rom Harris. As Pollard pulled m oney out o f his p o cket to pay f or the drugs, h e heard som eone say , “Freeze, d o n ’t m ove.” Pollard testif ied that a m a n who he later identif ied as Miskell ra n t o w a r d s Pollard with a gun pointed at him

. Pollard ran of f , and he heard six shots f

ired f rom behind him

. Pollard f

ell t o the ground on the last shot, and then he f elt som e one g oing through his pockets. Pollard testif

ied t hat he s uf

f ered t hree gunshot wounds, and he was in the hospital
f or t wo weeks. Pollard adm itted at trial that h e had been sm oking m a r ijuana and spice on the night of Decem

ber 2 1, 2 0 14, and h e “was probably a little high,” but he i nsisted that he “had clear vision” and could “still rem em ber” the incidents that occurred. ¶4. Harris also testif

ied against Miskell a t trial. Harris stated t hat on D ecem ber 21, 2014, he and Miskell walked to the house party

. H e t estif ied that M iskell “disappeared,” but then later returned to the party in a vehicle. Harris stated that while at the party , he a n d Pollard

went outside to the vehicle Miskell returned i n so Harris could sell Pollard spice and

m arijuana. Harris testif

ied that he entered the vehicle to retrieve the drugs f o r P ollard, and when he looked up, Miskell had a gun in Pollard’s f a ce. Harris observed that Pollard tried

to run away , but Miskell shot him

. Harris said that af t er Miskell sho t Pollard, Harris and Miskell “got in the car and

. . . lef t.” The record ref

lects that prior to Miskell’s trial, Harris

2pleaded guilty to the aggravated assault of Pollard. ¶5. T h e j u r y a l so heard testim ony f rom D rey len Hurd, the DJ f or the party on the night of Decem b er 21, 2014. H urd t estif

ied that som eone a t the party i nf orm ed him that a person had been shot i n the street. Hurd s aid that he went o utside and approached P ollard, who was ly ing on the ground. Hurd rolled Pollard over and asked who shot him , and Pollard replied that “N.O.” shot him

. Hurd explained that “N.O.” is Miskell’s nicknam e. ¶6. Deandre W illiam s testif i ed f or the d e f e n s e . W illiam s testif

ied that at the party , he observed Harris with a gun in the pocket of his sweatshirt, and he saw H arris waving the gun around. W i lliam s s tated that h e saw Harris leave the party , and Harris seem ed angry that

som eone had taken h is m oney . W illiam s testif i ed that he believed Harris was m ad at Pollard because he had lost m oney to Pollard in a dice gam e earlier in the night. ¶7. Miskell also testif

ied in his own def

ense. According to Miskell’s testim o ny , he and Harris walked to t he party together. Miskell walked outside o f t he party to sm oke and saw

a f riend, Decario S m i th, outside by his car. Miskell went to Sm ith’s car t o talk to him when
M i s k e ll saw H arris com e out of the party

. Miskell stated that Harris seem ed irri t a t e d o r agitated. Miskell called h is f riend Derrick t o com e g et him , and w h en Derrick arrived, Miskell told Harris he w as rea d y t o g o . Miskell testif ied t hat H arris w ent back i nside the party bef o re returning b ack outside with Pollard. Miskell testif ied that as he was walking to Derrick’s car, h e saw Pollard run away , and t hen he o bserved Harris shoot Pollard f our tim es. Harris and Miskell t hen jum ped in Derrick’s car and drove o f f

. Miskell claim ed that he did

not know that Harris brought a gun to the p arty , and he testif ied that Harris seem ed norm al

3that night.

¶8. A t t h e c l o s e o f t h e State’s case, the d ef ense counsel m ade a m otion f or a directed verdict, which the trial court denied. The jury ultim a tely f ound Miskell guilty of aggravated assault. The trial court sentenced Miskell to twenty y ears in MDOC custody

. ¶9. Miske l l ’ s t rial counsel f iled a m otion f

or a JNOV or, in the a lternative, a new trial. Miskell then f

iled a pro se m otion f

or a new trial as well as a pro se notice of appeal. ¶10. Af ter the trial court denied Miske l l ’s posttrial m otions, M iskell’s appellate counsel subm itted a brief on his behalf , cl a i m ing: (1) the p rosecutor im properly com m ented on Miskell’s f

ailure to call w itnesses, and (2) t he p rosecutor m ade “ send a m essage” com m ents during closing argum ents. Miskell then subm itted a pro s e supplem ental brief , claim ing: (1) the trial court erred in determ ining that t he S t ate’s r easons f or striking f

ive Af r ican Am erican jurors were race neutral; (2) the trial court erred in deny ing his m otion f or a directed verdict; (3) the S tate f

ailed to prove the elem ents of the crim e b e y o n d a reasonable doubt; (4) the verdict w as against the o verwhelm ing weight of the evidence; (5) the trial court erred in granting Jury Instruction S-5; (6) the trial court erred in ref using proposed Jury Instruction D-7; ( 7) the prosecutor m isstated t he law during closing a rgum ents; (8) t he c u m ulative ef f ect of all e rrors resulted in an unf air trial; and (9) the cum

ulative ef f e ct of all errors resulted in plain error. For the purposes of clarity in discussion, we w ill com bine several of Miskell’s assignm ents of

error. DISCUSSION

4I. Batson 1 Challenges

¶11. Miskell a s s e r t s t h a t t h e trial court erred in determ ining that the State’s reasons f or strikin g Af

rican Am erican jurors were race neutral. “Perem ptory strikes a lleged to be racially discrim i nator y a r e a naly zed u nder Batson v
. K

entucky , 476 U.S. 79

. . . (1986).” Corrothers v. State , 148 So. 3d 278, 304 (¶61) (Miss. 2014). ¶12. W h en reviewing Batson determ inations, this Court will o nly reverse if the trial court’s
f actual f indings “appear to be clearly erroneous or against the overwhelm ing weight of the evidence.” Cox v
. State , 1 83 So. 3d 36, 52 (¶54) (Miss. 2015). Upon r eview o f a trial court’s d e t e r m i nations under B atson , appellate c o urts grant “great d ef erence” to a trial c o u r t “because [ the d eterm inations] are based, in a l arge part, on credibility

. ” Id. W e additionally recognize that “[ o]n appeal, a trial court’s ruling on the issue of d iscrim inatory intent m ust be sustained unless it is clearly erroneous.” I d

. ¶13. Our suprem e court has explained that when o bjecting to a perem ptory challenge, the def endant m ust f irst “m ake a prim a f

acie showing that r ace was the criteria f or the exercise of the p erem

ptory challenge[ .]” Id

. at 54 (¶64). A d ef endant can establish a prim a f acie case of discrim ination by

showing the f

ollowing: (1) that he is a m em

ber of cognizable r acial group; (2) that the prosecutor h as exercised perem

ptory challenges to rem ove f r om the v enire m em

bers o f t he def endant' s race; ( 3) a nd the f a cts and c ircum s tances raised an inf erence that the prosecutor used hi s p e r em ptory challenges f

or the purpose o f striking m inorities. Corrothers , 148 So. 3d at 305 (¶62).

1 B a tso n v. K

en t u cky , 4 7 6 U .S . 7 9 (1 9 8 6 ).

5¶14. Once t he de f e n d a n t h a s e s t a b l i s h e d a p r i ma f acie c ase of d iscrim i nation, the prosecution “has the burden t o o f f e r a race-neutral explanation f or s t riking the potential juror[ .]” Cox , 1 83 So. 3d at 54 (¶64). The explanatio n p rovided b y t he prosecution f or striking the potential j uror “need n ot be p ersuasive, or even plausible; s o long as the reasons

are not inherently discrim inatory , t hey will be deem ed race-neutral.” Corrothers , 1 48 So. 3d

at 3 05 (¶62). Af

ter the p rosecution provides i ts race-neutral explanation, “the trial c ourt m ust then d eterm ine whether the objecting p arty has m et [ its ] b u rden to prove t here has been purposef u l d iscrim i nation i n the exercise of perem ptory c hallenges.” Cox , 183 So. 3d at 54- 55 (¶64) (internal quotation m arks om itted). ¶15. The r ecord herein ref lects that f

ollowing voir dire, the State challenged prospective jurors 6, 2 1, 25, and 32 f

or c ause. T he record ref

lects that prospective juror 6 was an Af rican
Am erican m an who inf

orm ed the court during voir dire that he suf f ered f rom narcolepsy

. ¶16. Af ter the State m ade its challenges f or cause, def

ense counsel com m ented that he was concerned about a l o w p e r c e ntage of Af rican Am erican prospective jurors, observing that twelve out of thirty

- n ine p rospective juro r s were Af rican Am erican. However, def ense counsel never actually objected to the prosecutor’s c hallenges f or cause a s to these jurors, thus waiving this i ssue on appeal. See Easter v. State , 878 So. 2 d 10, 2 4-25 (¶¶42-43) (Miss. 2004). ¶17. The record ref

lects the trial court then asked the State to tender the f irst twelve jurors, and the State struck p rospective jurors 5, 6, and 10. ( As stated, the State p r eviously challenged prospective juror 6, an Af rican Am erican m a n, f

or cause.) The transcript ref lects

6that prospective juror 5 was Af rican Am erican, but the transcript does not ref lect the race of prospective juror 10. 2 ¶18. During the State’s perem ptory str i k e s , d e f

e n s e c o u n s el only objected t o the State

s t r i k i n g prospective juror 5, an Af rican Am erican wom an, based on the b elief th a t a
peremp t o r y strike was being u sed as a result of discrim ination. Af ter def ense counsel requested a r ace-neutral reason f or striking prospective jurors, the trial c ourt determ ined that def ense counsel had not e stablished a p rim a f acie c ase of discrim i nation. However, the State still provided race-neutral reasons f or striking the prospective juror. The transcript ref lects the f ollowing exchange during the jury

- selection conf erence: MR. THORNTON: Judge, I think we have to—the State’s reasoning

. . . f or Num ber 5, Ms. Council. S he is a black f em ale. I w ould ask f o r a race[ -]neutral reason f or striking Ms. C ouncil.
MR. HOOD: You haven’t m ade the—
THE COURT: You haven’t—y ou haven’t[

. ]
MR. HOOD:

—

Batson cha l lenge y et, but j ust f or the record purpose, I’ll give a race[ -]neut r a l r e ason. She was f idgety when she was d oing the panel. She w as [ i n]attenti ve. S he seem e d like she didn’t want to be here. She was a ngry . W ouldn’t m ake e y e c o n tact. W o uldn’t s it s t ill. I think she—I f orgot her w ork history

. Num ber 5. But that’s the race[ -]neutral reasons. But, a g a in, a Batson procedure hasn’t been m et. THE COURT: W e l l , t h e C o u r t ’ s o p i n i o n , t h e D e f e n s e h a s n o t establish e d the prim a f

acie showing that the State is exercising its perem

ptory challenges on the basis of discrim ination. The Court will a ccept the State’s race[ -]

2 In M isk ell’s m o tio n f

o r a JN O V o r, i n th e altern a t iv e, a n e w trial, h e alleg es t h at p ro sp ectiv e j u r o rs 5 , 6 , 1 0 , 2 1 , an d 2 4 w ere A f rican A m e rican

. 7neutral reasons f or elim inat i n g or using the perem ptory c hallenge on Erica Council. Ms. Council is th e individual [ who] just happened to be on m y r ight just to the right of the podium , so if I’m looking at the podium , I’m loo k ing at her. And the notes that I wrote down—she wasn’t pay ing a ttention a n d that she worked the late shif

t a nd got of

f late. She was one of the ones, I think, that r aised their hand in respon s e t o t he def ense question. So I t h i n k that’s suf f icient race[ -]neutral reason to exercise a challenge. So let’s m ove along. ¶19. T h e trial c ourt also addressed def ense counsel’s concern r egarding the n u mb e r o f
Af rican Am erican jurors on the panel, opining: All right. T he Def

ense initiated our voir dire proceeding about challenging a u s e o f a perem

p tory instruction by t he State and asserted—well, desired a race[ -]neutral reason. And it’s m y understanding and I s t ated on the record that a lthough I did n ot think a prim a f acie case had been laid o ut f o r t he u se of perem ptory instructions by the State in a rationally discrim inatory m atter, Mr. Hood volunteered race[ -]neutral reasons f or the exclusion of Juror Num ber 5, w h i c h I believe is Erica M

. Council. The Court h ad m ade notes that agree d with what M r. Hood was s ay ing and f or t he reasons pre v i o usly stated on the record, I f

e lt l ike he gave a race neutral reas o n . W e ’ re now through Juror Num ber 12, and by m y count, there are o ne, two, three Af rican Am ericans on the jury

. 3

. . . . And since the Af

rican Am erican population i s 37 percent o f the population, total population o f F orrest County , that is—that’s v ery close to the actual percentage of

the population. ¶20. The trial court additionally inf o rm ed Miskell: I can assure y ou that this Court is n ot going to allow the State of Mississippi to use its perem

ptory c hallenges

. . . i n a racially discrim inatory m anner. [ A]nd I don’t think they ’ve d o n e t h a t

. I didn’t think t hey w ere doing that to s t art with. And as it t

urns o ut,

. . . we have a num b er of Af rican Am ericans on y o ur jury that com e pretty close to the racial m a keup of the county [ .]

3 T h e tran scrip t d o es n o t ref lect w h ich o f M isk ell’s j u ro rs w e re A f rican A m erican

. 8¶21. Our review of t he record ref l e c t s t hat the trial c ourt’s determ ination that no Batson violation occurred herein w as not clearly erroneous or against the o verwhelm ing weight of the evidence. This issue lacks m erit. See Cox , 183 So. 3d at 52 (¶54).
II. Sufficiency of the Evidence ¶22. Miskell claim s that the trial c o u r t e r r e d i n d eny ing his m otion f or JNOV. Miskell specif ically asserts that the Stat e f a iled to prove the elem ents of t he crim e of aggravated assault bey ond a reasonable doubt. ¶23. A m otion f

or a J N O V c h a l l e n ges the legal s uf f iciency of the evidence. McClain v.
State , 625 So. 2d 774, 778 (Miss. 1993). The suprem e court has held t hat appellate courts

m ust review a challenge to the suf f iciency of the evidence as f

ollows: in the light m ost f

a v o r a b le to the State, giving the State the benef it of all f a v o r able inf

erences reasonably drawn f rom t he evidence. I f the f acts a n d inf erences so considered point in f avor of the d ef

endant on any elem e nt of the of f ense w ith suf

f icient f orce that reasonable [

jurors] c o uld n ot have f

ound bey ond a rea s o nable doubt that the def e n dant was guilty , [ w e] m ust r everse and render. Henley v . State , 136 So. 3d 413, 415-16 (¶8) (Miss. 2014) (internal citations and quotation

ma r k s o m itted). The suprem e court has also instructed that when “reviewing whether a verdict is s upported by the evidence, [ appellate courts] are required to look at the totality of the c ircum stances[

. ]” D owns v. State , 962 So. 2d 1255, 1 259 (¶14) (Miss. 2007). A s stated, Miskell was charged with a ggravated assa u lt pursuant t o section 97-3-7(2)(a)(ii), which

s t ates that a person is g uilty of aggravated assault i f he “attem pts to cause or purpo s e l y o r knowingly causes bodily injury to another with a deadly weapon[ .]” W e now turn to review the suf f iciency o f the evidence in t his record s upporting Miskell’s conviction of aggravated

9assault.

¶24. As set f

orth i n t his opinion’s statem ent of f acts, Pollard a nd Harris p rovided testim ony
at trial supporting Miskell’s c onviction. The record ref lects that Pollard testif

ied that he lef

t the party t o go outside and m eet Harris. P o llard stated that while Harris was inside of a car searching f

or m arijuana t o sell to Pollard, Pollard pulled out his m oney and began to count it. He testif

ied that he heard Miskell say , “Freeze; d on’t m ov e . ” P o l l ard explained that “when he said ‘f

r eeze; don’t m ove,’ I l ooked, y ou know, t o see who it was, and I looked there. You know, it was dark, but I still seen [ sic] him .” Pollard testif i ed that Miskell was standing about ten or f

i f teen f eet away f rom him and “had the gun u p pointed at m e.” Pollard testif i ed that he t hen ran of

f , but he heard six shots f

ired f r om behind h im

. Pollard f ell to the ground on the l ast shot, and then he f elt som e one going through his pockets. Pollard testif ied that he suf

f ered three gunshot wounds, and he was in the hospital f or two weeks. ¶25. As stated, H arris, Miskell’s alleged a ccom plice, a l so testif

ied that while he was in the

car retrieving m arijuana to sell to Pollard, he looked up and saw t hat M iskell “had a gun in [ Pollard’s] f

ace, and [ Pollard] tr[ ied] to run. Shot him .” Harris e xplained that at this point, Miskell and Pollard were standing right in f ront of the car, and he o bserved Miskell f ire shots

at Pollard. Hurd, the DJ at t h e p a rty , also testif ied that im m ediately af

t er the shooting, Pollard stated that “N.O.” shot him . Hurd testif ied that “N.O.” is Miskell’s nicknam e. ¶26. In apply i ng the standard applicable to reviewing the suf f iciency of the evidence and “giving t he State the ben e f i t of all f

avorable inf

e r ences reasonably drawn f rom the evidence[ ,]” we f

i nd no m erit to this claim of error. See Henley , 136 So. 3d at 415-16 (¶8).

1 0III. Weight of the Evidence

¶27. Miskell also claim s the verdict was against the overwhelm ing w eight of the evidence, and, as a result, the t rial court erred by deny ing his m otion f or a new trial. W h en reviewing

a t rial court’s denial of a m otion f or a new trial, this Court will not reverse “unless the verdict is so contrary to the overwhelm i ng weight of the evidence that an unconscionable injustice would occur by a llowing t he v e rdict to stand.” Rollings v. State , 192 So. 3d 1133, 1136 (¶14) (Miss. Ct. App. 2016) (citation om itted). ¶28. Miskell specif

ically argues that because Pollard suf f e r e d g u n s h o t w o u n d s w hile

attem pting to r un away , Pollard could not have known who shot him

. Miskell also asserts that because Pollard adm itted to using drugs p rior to bei n g s h ot, his identif ication of the shooter was unreliable. Miskell’s argum ent f ails to address Pollard’s testim ony that he saw Miskell pointing a gun at him , and that Harris a l so t estif ied that he witnessed Miskell shoot Pollar d

. T hus, Harris’s testim ony corroborated the t estim o ny of P ollard, and Hurd’s testim o ny was consistent with that of both Pollard and Harris. ¶29. In turning to the specif ic testim o ny in the record relevant t o Miskell’s argum ent, the record shows that Pollard testif ied that when he heard som eone say , “Freeze; don’t m ove,” he looked to see who was speaking. Pollard testif ied that he then observed M iskell pointing a gun at him . Pollard also adm itted he had been s m oking m arijuana and s p ice on the night of Decem b er 21, 2014, and “was probably a little high,” but Pollard also t estif ied that he “had clear vision” and could “still rem em ber” the incidents that occurred. ¶30. Regarding Harris’s test i mo n y , M i s kell argues that Harris, his a l leged accom plice,

1 1never adm itted to any role in the incident, and his testim ony was s elf -serving. As stated, the record r ef lects that prior to Miskell’s trial, H arris pleaded guilty to the aggravated a ssault of Pollard. However, the record ref lects that the t rial court p rovided t he j ury with t he f ollowing instruction r egarding Harris’s testim ony : “ Har r i s is [ Miskell’s] alleged accom plice in this

ca s e . I f y o u f

ind that [ Harris’s] testim ony is not supported by other evidence in this case, then y ou should consider his te s t i mony cautiously and with great suspicion and determ ine whether it is reasonable, inconsistent, or has b een im peached.” The evidence in t he record ref lects that Harris’s testim ony was indeed consistent with and supported by the testim ony of othe r witnesses. W e r ecognize that “the jury is t he sole judge o f the credibility of witnesses and the weight and worth of their testim ony .” L enoir v. State , 222 So. 3d 273, 279 (¶29) (Miss. 2017). ¶31. M i s kell also takes issue with the f act t hat Hurd, the D J at the party , previo u s l y t o l d police that Harris s h ot Pollard. At trial, Hurd acknowledged that his statem ent to the police

was inconsistent with his trial t estim ony . Hurd explained that his s t atem ent to the police was based on what he was told by o ther people, and not what Pollard told him im m e diately af ter being s hot. Hurd testif

ied that im m ediately af

ter the shooting, Pollard stated tha t M i s k e l l shot him

. The record shows that Hurd was subject to cross-exam ination. Again, “the jury is the sole judge of t he credibility of witnesses and the weight and worth of their testim ony .” Id

. ¶32. Finally , M i s k e l l a r g u e s t h a t S e r g e a n t R o b ert Sy bert of t he Hattiesburg Police Departm ent asked the victim , through hospital staf f , if he knew who shot him , and that the

1 2victim ’s resp onse was, “No.” However, the r ecord f a i ls t o e stablish w hat question was actually p osed t o the victim

. Our review of the transcript sho w s t h e f ollowing exchange between the def

ense counsel and Sergeant Sy bert during cross-exam i nation: Q. So, Sergeant S y

bert, y ou went t o F o r r e st General to s ee who shot the victim , correct?
A. That was one of

the reasons I went there, sir. Q.

. . . Okay

. So once y ou m ade it to the hospital, ER staf f directed y ou to a room where the victim

was ly ing, right?
A. Yes, sir. Q. And was a question asked, and did the victim respond[ ] ?
A. Yes, sir. Q. Did y o u

hear what the victim

response was?
A. Yes, sir, I did. Q. Can y ou tell m e what it was?
A. The victim ’s response was no. ¶33. The State argues that Pollard could h ave r esponded “no” to a ny num ber o f questions.
T he record also r ef

lects th a t later in the trial, Detective Ty son Fairley of the Hattiesburg Police Departm ent testif

i ed t hat when he interviewed Pollard at the hospital af ter his surgery , Pollard provided “a description and a street nam e of t he person who shot [ him ].” Detective Fairley testif ied that through his investigation, he determ ined Miskell to be the shooter. ¶34. The record s hows that both Pollard a n d Detective Fairley testif ied at trial and were subject to cross-exam ination by the def ense counsel. A s stated, “the jury i s t h e sole judge

1 3of the credibility o f witnesses and the weight and worth of their testim o ny .” Lenoir , 222 So.

3d at 279 (¶29). Furtherm ore, “[ j]urors

. . . have the d uty [ ] to r esolve the conf l icts in the testim o ny they hear.” Turner v. State , 818 So. 2d 1181, 1185 (¶10) (Miss. 2002). ¶35. Af ter reviewing the record, we cannot say that “ t h e v e r d i c t i s s o contrary to the

ove r w h e l mi ng weight of the evidence that an unconscionable injustice w ould occur by allowing the verdict to stand.” Rollings , 192 So. 3d a t 1136 (¶14). Accordingly , we f ind no

m erit to Miskell’s claim of error. IV. Jury Instructions ¶36. Miskell asserts t hat the trial court erred in granting jury i nstruction S -5. Miskell also

asserts that t he trial court erred in deny ing proposed jury i nstruction D-7. W hen reviewing a trial court’s ruling on jury instructions, we recognize: Jury instructions are generally within the discretion of the trial court, and the settled standard of re v i e w i s a b u se of discretion. The instructions are to be read t ogether as a whole, with no o ne instruction to be read alone or taken out of context. W hen read together, if the jury instructions f airly state the law of the case and cre a te no injustice, then n o reversible error will be f ound[ .] A def endant is entitled to have jury instructions given which present his theory of the case; however, this e n t i t l em e nt is lim ited in t hat the trial court m ay ref use an instruction which incorrectly states the law, is covered f a irly elsewhere in the instructions, or is without f oundation in the evidence. Phillips v. State , 179 So. 3d 1 218, 1220 (¶7) (Miss. Ct. App. 2015) (quoting Bailey v. State , 78 So. 3d 308, 315-16 (¶20) (Miss. 2012)). ¶37. Miskell argues that the trial court erred in granting Jury Instruction S-5 because the instruction set f

orth an elem ent outside of that required f or proving aggravated assault. Jury Instruction S-5 stated:

1 4A p erson charged with aggravated assault does n o t h ave t o possess i ll-will

toward his victim (s). A person charged with aggravated assault does not even have to k n o w the identity of a s pecif ic individual to com m it an aggravated assault upon that person.
In t his trial[ ,] this [ r ]ule of [ l]aw m eans that [ Miskell] d id not have to possess ill-will toward [ Pollard]. It also m eans that [ Miskell] d id n o t even h ave to know or recognize [ Pollard] in order t o com m it an a ggravated assault upon him

. ¶38. In Mack v. State , N o. 2016-KA-00035-COA, 2017 W L 2452014, at *11 (¶53) (Miss.
Ct. App. June 6, 2017), 4 t his Court discussed an i dentical jury instruction a nd f ound that the instruction p rovided a correct statem ent of t he law. The Mack court cited t o Blanks v. State , 5 4 2 So. 2d 222, 2 26 ( Miss. 1 989), f or the proposition that “a person ‘does not have t o
possess ill-will toward or even know the identity of a specif ic i ndividual t o com m it an aggravated assault on that person.’” Id

. ¶39. M i s k e l l a l s o claim s that the trial court e rred in ref using to grant p r o p o s e d j u r y instruction D-7, which provided: [ Miskell] is charged with aggravated assault.
If the State f

ailed to prove that:
1. On or about Decem ber 21, 2014, in Forrest County ; 2. [ Miskell] c aused serious bodily injury to [ P ollard], b y unlawf ully shooting [ Pollard] with a handgun, bey ond a reasonable doubt, then y ou shall f

ind [ Miskell] “Not Guilty .” ¶40. This Court has held that the trial court “m ay ref u se an instruction which incorrectly

4 A t th e tim e o f th i s w ritin g , n o m an d ate h as issu ed in M a ck d u e to a p en d in g m o tio n f o r reh earin g . M .R .A .P . 4 1 (b ). T h eref o re, th e o p in io n is n o t f

in al. 1 5states t he law, is covered f a irly e lsewhere in the instructions, or is w ithout f oundation in the evidence.” D e a r v
. State , 966 So. 2d 2 18, 219-20 ( ¶5) (Miss. Ct. App. 2007) (citation

om itted). In r ef

using proposed Jury Instruction D-7, the trial court herein f ound that the instruction was covered by Jury Instruction S-1, which provided as f ollows: The [ c]ourt i nstructs the [

j]ury that [ M iskell] h as been charged with the crim e of [ a]ggravated [ a]ssault.
If y ou f ind f rom the evidence bey ond a reasonable doubt that:
1. [ Mi s k e l l ] , o n o r about D ecem ber 21, 2014, in Forrest County , Mississippi;
2. k n o w i n g l y c a u s e d bodily i njury to [ P o l l a r d ] , w i t h a deadly w eapon, to wit: gun, b y shooting [ Pollard] with a gun; and
3. t h a t s u c h b e h a v i o r w a s n o t done in necess a r y s e l f def e nse, accident, or m isf

ortune; t hen y ou shall f ind [ Miskell], guilty of

[ a]ggravated [ a]ssault.
If the State has f

ailed t o prove any one or m o re of the above l i s t e d e lem ents bey ond a r easonable d o ubt, then y ou shall f i nd [ M i s k e l l], not guilty of [ a]ggravated [ a]ssault. ¶41. Upon re v i e w , t h e record ref lects t hat proposed Jury Instruction D-7 was “covered
f airly ” by Jury Instruction S-1. See id

. Furtherm ore, precedent r ef lects t hat J ury Instruction
S-5 constituted a correct statem ent of law. See Blanks , 5 42 So. 2d at 226. W e t hus f ind this issue lacks m erit.
V. Prosecutorial Misconduct ¶42. Miske l l a r g u e s t h a t t h e p r osecutor m ade inappropriate com m ents during closing
argum ent. Mi s k e l l specif i cally takes issue with the prosecutor’s suggestion that Miskell

1 6possessed a duty to present w itnesses in his def ense and the prosecutor’s statem ent that the jury should convict Miskell in order to take a stand against gangs. ¶43. “The standard of review that appellate c ourts m u st apply t o lawy er m isconduct during

. . . closing argum ents is whether the natural and probable ef f e ct of the im proper argum ent is to create unjust p rejudice against the accused so as to result in a decision i nf luenced by the prejudice so created.” Jackson v. S tate , 174 So. 3d 232, 2 36 (¶9) ( Miss. 2015). “Prosecutors

are not allowed to em

ploy tactics which are inf

lam m atory , highly prejudicial, or reasonably calculated to unduly inf

luence the jury .” W

ilson v. State , 1 94 S o. 3d 855, 864 (¶30) (Miss. 2016) (internal quotation m arks om itted). However, “ [ t]he prosecutor m ay com m ent upon
any f acts introduced into evidence, and he m ay draw w hatever deductions and inf erences that

s e e m p roper to him f

rom the f acts.” Id

. (quoting Galloway v. State , 1 22 So. 3d 6 1 4 , 6 4 3 (¶72) (Miss. 2013)). Additionally , this Court, citing Dora v. State , 986 So. 2d 917, 923-24 (¶¶13-14) (Miss. 2008), has recognized that d uring closing argum ent, the State is allowed to

comme n t “ o n the credibility and veracity of the t estim o ny provided by

. . . [ a] witness.” Lathan v
. State , 164 So. 3d 484, 489 (¶21) (Miss. C t. App. 2014); see also Pitchford v. State , 45 So. 3d 216, 234 (¶67) (Miss. 2010). ¶44. The record ref

lects that during his c losing a r gum ent, t h e p r o s e c u tor claim ed that Miskell was at a gang-related party , stating: This def endant was hanging out w ith those people that y ou s a w com ing and testif y ing, and look. Th e y ’ r e all rough around the e dges. They ’re all doing stuf f they wouldn’t have to do. That i s what it is. But we have to take a stand on it. W e have to say y ou have to be held accountable f or what y ou do. If y ou f ire bullets out in the s t reet, y ou’re going to b e held accountable f or it. I f y ou shoot a gang m em

ber, if t he [ s ix] bullets go and shoot a little kid in t he house,

1 7y ou’ve got to be held accountable f or it.

. . . . The g ang s tuf

f here i s a p r oblem

. It’s not a s bad as places like Chicago, but it’s a pro b l em . I t’s sim

ply an issue of can’t control what parents let their y oung adults do. Can’t c ontrol what a y oung adult try to do. You can’t tell a parent to teach t heir k id to be res p o n s i ble and not to go to places where y ou see that kind of activity

. . . . But what’s our o bligation? It’s to say we will not allow shootouts in Hattiesburg. W e will not allow people t o be shot. W e will not allow crooked people to point f ingers at each other. ¶45. The prosecutor also stated: Kids have a right to have a party

. K ids don’t have a r ight to go sell drugs. Kids have a right to g o g ather and get t ogether w ith each o ther. They don’t have a right t o have shootouts. Com m unities don’t h ave a right t o live in f ear because we h ave shootouts and guns f i ring out in som e neighborhoods. A nd in m y m ind and this jurisdiction and this o f f ice, the line will be drawn.

. . . If y ou draw a line, if y ou draw a line, and hold him accountable, this def endant will be sentenced by that [ j]udge. He will m ake the f inal determ ination. Right there. You c an’t point f ingers at e a ch other and have on e of y ou walking away . You c an’t. The line has to be drawn. You can’t be C h icago. W e can’t be other p laces. The line has to be drawn. F airness, responsibili t y , accountable f

o r y o u r actions. It’s a sim ple principle. It’s b een around since the ages. If i t goes well, every body l ives a wonderf

ul lif e, and every

body is happy

. If y ou lose that—if y ou los e that b asic f oundation, there’s y o ur problem

. This c ase was bui l t o n I.D. of the victim supported by the co-def e n d ant, supported b y both of them having been seen with the gun. W h atever his def

e nse is, he’s ly ing. You’re n ot getting arrested and not say I saw him do it. You’re not giving the name s o f y our witnesses. You’re not m entioning it. You don’t j u s t f orget about it in opening statem ent. For t wo y ears y o u don’t tell any

body

. You’re ly ing because y ou both have to be h eld responsible, and l et him sentence him

. I’m g oing to ask y o u to go back there and f ind this def

e ndant, s eek out the f

orm of the v erdict f

orm , write o n a sheet of paper we f

ind the def

endant guilty . Draw y our line. ¶46. W e recognize that our suprem e court has held t hat prosecutors m ay not “encourage juries to use their verdict to ‘send-a-m e ssage’ to the public or t o other potential crim inals.”
Brown v. State , 9 8 6 So. 2d 270, 2 75 ( ¶11) (Miss. 2008)

. “ T h i s is because the issue which

1 8each juror m ust resolve is not whether or not he or she wishes to send a m essage but whether

or n ot he o r she believes tha t the evidence showed t he def endant to be guilty of t he crim e charged.” G r i n d l e v
. State , 134 So. 3d 330, 347 (¶71) (Miss. Ct. App. 2013) (citation

om itted ). W hen reviewing a send-the-m essage claim , this Court considers two threshold questions, f

ollowed by a two-prong test. Id

. at 348 (¶72). The threshold questions are: “(1) did def e n se c ounsel object, and ( 2) was the com m ent u ninvited by t he def ense.” Id

. (citation

om itted). ¶47. The record b ef

ore us ref l e c t s t h a t t he def

ense counsel f

a iled t o object to com m ents

now raised on appeal. “However, even in the absence of a contem poraneous objection, we will r eview on appeal a claim that a prosecutor m ade an im proper send-a-m essage a rgum ent if the argum ent is s o i nf

lam m atory that the trial judge should have objected on his own

m otion.” O’Connor v. State , 1 2 0 S o . 3d 390, 399 (¶23) (Miss. 2013) (internal quotation

m arks om itted). ¶48. In addressing whether the pro s e c u t o r ’ s s t a t e me n t s c o n stituted a send-a-m essage
argum ent, we f

ind that the record ref

lects that the statem ents were invited b y t he def ense counsel a n d that the prosecutor com m ented on t he actual evidence of f ered at trial. The prosecutor’s statem ents convey ed that even b a d p e o p l e, i ncluding gang m em bers, can be victim s, and that shooting a gang m em ber is a crim e t hat should be accounted f or under the law. The record also ref lects t h a t t h e prosecutor com m ented o n the actual testim ony provided at trial by Miskell and other def ense witnesses. The prosecutor argued that Miskell’s testim ony was not truthf ul, and that Miskell w as ly ing in h is t r i a l t e s t i m ony

1 9wherein he claim ed that he saw Harris shoot Pollard. The prosecutor was allowed to

com m ent on the credibility of the testim ony and evidence presented at trial. S ee Lathan , 164 So. 3d at 489 (¶21). ¶49. Regarding Miskell’s a r g u m e n t t h a t t h e p r o s e c u t o r i m

p r o p e r l y c o m

m e n t e d o n M i s k e l l ’s f ailure to call witnesses, our review of Miskell’s appellate brief reveals that Miskell f

ailed

to present any argum e nt or authority in support of his claim

. This Court has held that “issues

u n s u pported and not argued are abandoned and need not be c onsidered” on ap p e a l

. Thibodeaux v. State , 652 So. 2d 153, 155 (Miss. 1995) (citation om itted). ¶50. Miskell also takes i ssue with the prosecutor’s statem ent that “ if o ne o f y ou are guilty , y ou’re both guilty .” During his closing argum e nt, the prosecutor stated:
If [ Harris] is guilty o f aggravated assault, so is [ Miskell].

. . . And that’s what this com e s down t o. If we’re going to hold one of them a ccountable f o r setting that guy up o u t there and ending up s ho o t i n g him , y o u’ve got t o hold them both accountable.

. . . W e w ill not allow y ou to point f ingers a n d w a l k a w ay because if

one of y ou are guilty , y ou’re both guilty

. ¶51. The record r ef

lects t hat the def

ense co u n s e l o b

j e c t e d , arguing, “If one is guilty ; theref ore, both are guilty

. T h a t ’ s an inaccurate and im proper statem ent of the law.” The prosecutor r esponded and e xplained: “ It’s an ar g u m e nt. I t’s not a law. It’s a n a r gum ent.”
T h e t r ial court overruled the d ef ense counsel’s objection, f inding that the prosecutor wa s “sim ply m aking an argum ent.” The record a d ditionally ref lects that the trial court instructed the jury through Jury Instruction C-1 that “[ a ] rgum e nts, statem ents and r em arks of counsel

are intended to h e lp y ou understand the evidence a nd apply the law, but are not e vidence.
If any argum ent, statem ent or rem ark has n o basis in the evidence, t hen y ou should disregard

2 0that argum ent, statem ent o r r em ark.” The trial court also i nstructed the jury through Jury

Instruction D-5: “You m ay con s i der [ Harris’s] p revious conviction [ f o r the aggravated assault of Pollard] f

or the lim ited p urpose of d ete r m ining [ H arris’s] truthf ulness.” Additionally , a review of the prosecutor’s entire c losing argum ent ref lects that when taken in context of all of the evidence, including def ense evidence, the p rosecutor only com m ented

on actual evidence in the c ase a nd the credibility thereof

. Se e Wi l s o n , 1 9 4 So. 3d at 864 (¶30). ¶52. As stated, w e review claim s of prosecutorial m i sconduct during closing argum ents f or the determ ination of “whether the natural and probable ef f e c t o f the im

proper argum ent is

to create unjust prejudice against the accused so a s to result in a decision inf luenced by the prejudice so created.” Jackson , 17 4 S o . 3 d a t 236 (¶9). W e f ind that the prosecutor’s

com m ents during closing a rgum ent f a iled to cause unjust prejudice to Miskell; accordingly , we f ind this issue lacks m erit.
VI. Cum ulative Error ¶53. Finally , Miskell claim s that the cum ulative ef f ect of a ll errors resulted i n an unf air t rial and plain error. Under the cum ulative

- e r ror doctrine, “individual errors, which are not reversible in t hem selves, m ay com bine with other errors to m ake up reversible error, where the c um ulative ef f e ct of a ll errors deprives t he def endant of a f

undam enta l l y f

a i r t rial.” Rogers v. State , 2 0 5 So. 3d 66 0 , 6 6 5 (¶17) (Miss. Ct. A pp. 2015) (citation om itted). “However, reversal based upon cum ulative error requires a f

inding or f

i ndings of e rror.” Id

. (citation om itted).

2 1¶54. Since we f ind no error on any o f Miskel l ’ s c l a i ms , w e accordingly f ind that “no

cum ulative or plain error results t o warrant a reversal.” I d

. at 666 (¶25); see also Harris v. State , 970 So. 2d 151, 157 (¶24) (Miss. 2007). W e t heref o re af f irm t he cir c u i t c o u r t’s judgm ent. ¶55. AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.JJ., BARNES , FAIR, WILSON, GREENLEE AND W ES T B R O OKS, JJ., CONCUR. TINDELL, J ., NOT PARTICIPATING.

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