IN THE SUPREME COURT OF MISSISSIPPI NO. 2010-DP-01348-SCT CURTIS GIOV

ANNI FLOWERS a/k/a CURTIS FLOWERS a/k/a CURTIS G. FLOWERS

v. STATE OF MISSISSIPPI DATE OF JUDGMENT: 06/19/2010 TRIAL JUDGE: HON. JOSEPH H. LOPER, JR. TRIAL COURT ATTORNEYS: ALISON R. STEINER ANDRE de GRUY RAY CHARLES CARTER DOUG EVANS CLYDE HILL COURT FROM W HICH APPEALED: MONTGOMERY COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ALISON R. STEINER SHERI LYNN JOHNSON KEIR M. W EYBLE ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD A. SMITH JASON L. DAVIS DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL DISPOSITION: AFFIRMED - 11/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. Curtis Giovanni F lowers was ind i c t e d o n f o u r c o u nts o f capital m

urder with the underly ing f

elony of arm ed robbery , s tem m ing f rom the 1996 m

urders of f

our e m ploy ees of Tardy Furniture Store i n W i nona, Mississippi. Following his s ixth tr i a l , h e was c onvictedon a ll f

o ur counts of capital m

urder and se ntenced to death. The C ourt af f irm ed his convictions and death sentence in Flowers v. S tate , 1 58 So. 3d 1009 (Miss. 2014) ( Flowers
V I ) . Flowers f

iled a petition f

or a writ of

certiorari with the United States Suprem e Court.
In Flow e r

s v . Mississippi , 136 S. Ct. 2157 (2016), the Suprem e C ourt granted Flowers’s petition f or a writ of c ertiorari, vacated the Court’s judgm ent in Flowers V I , and rem anded the case to the Court f

or f urther consideration in light o f Foster v. C hatm an , 136 S

. Ct. 1737 (2016). ¶2. The Suprem e Court decided Foster af ter F lowers V I h ad been decided by the Court. 1
Because the sole i ssue raised in Foster was whether the prosecution’s u se of perem ptory strikes w a s racially m otivated in violation of Batson v. Kentucky , 4 76 U.S. 79 (1986), the Suprem e Court’s order pertains to only one issue r aised by F lowers in h is latest appeal to the Court—the Batson issue. Accordingly , t h e r e m a ining issues a ddressed by the Court in
Flowers V

I were not disturbed and the Court’s opinion as to t h e r em aining issues is reinstated as f

u lly set out herein. ¶3. On rem and, the Court af f o rded the parties an opportunity to subm it s u p p l e me n t al brief s i n light o f Foster a s directed by th e S u p r e me C ourt. A f ter review a n d f

urther consideration i n l ight of Foster , we discern no Batson viol a t i o n a n d reinstate and af f irm Flowers’s convictions and death sentence.

Factual Background and Procedural History

1 O n N o v e m

b er 1 3 , 2 0 1 4 , th e C o u rt issu ed its o p in io n in F lo w ers V I , af f i r mi n g F lo w ers’s cap i tal m

u r d er co n v ictio n s an d sen ten ce o f d e a th , w ith m an d ate issu in g o n A p ril 2 , 2 0 1 5 . O n M ay

2 3 , 2 0 1 6 , th e S u p rem e C o u rt issu ed its o p in io n in F o ster

. 2¶4. At approxim ately 9:00 on the m orning of July 16, 1996, Bertha Tardy , t he owner of

Tardy Furniture Store, called Sam Jones and asked him to com e to the store t o train two new

em ploy e es. W hen Jones arrived at the store a s hort tim e later, he discovered t he bodies of Bertha T ardy , Robert Golden, Ca r me n R i g b y , a nd Derrick Stewart. All f our victim s had been shot in the head; Stewart was the only victim still alive when Jones arrived. Jones went
to a n earby business a nd asked an em ploy ee to call the police. Johnny H argrove, the City of
W i nona Police Chief

, was the f

irst law enf

orcem en t of

f i cer to arrive; he called f

or backup and a m bulance services. Shell casings f rom 0.380 caliber bullets were recovered f rom the scene, and a bloody

shoeprint was f

ound near one of

the victim s. ¶5. Shortly af

ter of f icers arrived at the s c e ne, law enf o rcem ent of

f icers received a call about an a u t o b u rglary at Angelica G arm ent Factory i n W inona. D eputy Sherif f Bill Thornburg responded, and he l earned that som eone had burglarized Doy le Sim pson’s car and had stolen a 0.380 calibe r p i s t o l

. Katherine Snow, an Angelica em ploy ee, placed Curtis Flowers at Sim

pson’s car around 7:15 that m orning. ¶6. Police interviewed Flowers around 1:30 that af ternoon, and Flowers consented to a gunshot residue test. P olice i nterview e d F lowers again two day s later on July 18, 1996. Flowers claim ed to have been b a b y s i tting h is g irlf r iend’s children on the m orning of the

m urders, b ut h e provide d inconsistent statem ents about his schedule. During the July 16 interview, Flowers s aid that he woke up around 6:30 a.m . on the day of t he m urders and went
to his sister’s house around 9:00 a.m ., then went to a local store around 10:00 a.m . On July 18, Flowers said that, on the m orning of the m urders, he woke u

p around 9:30 a.m ., went to

3his sister’s h ouse around noon, and went to the store at approxim ately 12:45 p.m . Flowers told investi g a t o r s that he had been em ploy ed at Tardy Furniture f or a f ew day s earlier that

m onth, but h e had been f ired on July 6 af

ter h e d id not s h o w u p f

o r a f ew d ay s. Flowers

m oved to Texas in Septem ber 1996. Af

ter f urther investigation, Flowers w a s arrested and brought back to Mississippi. He was indicted on f o ur separate counts of

capital m urder in March 1997. ¶7. Flow e r s was t ried f o r the m urder of Bertha Tardy in October 1997. Af t er a change of venue f rom Montgom ery C ounty to Lee County , Flowers was convicted and sentenced to death. Flowers appealed and we reversed and rem anded f o r a new trial on the g round that Flowers’s right to a f

air trial had been violated by adm ission of evidence of

the other three

m urder victim s. Flowers v. State , 7 7 3 S o. 2d 309 ( Miss. 2000) (“ Flowers I ”). Flowers’s second trial was f

or the m urder o f Derrick Stewart; it was held in Harrison County in March
1999. The jury returned a g uilty verdict and sentenced Flowers t o d e ath. On appeal, we

a g ain r eversed and rem anded f o r a new trial. The Court held that Flowers’s right t o a f a i r trial had been violated, again, by adm ission of e vidence of the other victim s and by the prosecution arguing f

acts t hat were not in evidence. Flowers v. S tate , 842 S o. 2d 531 (Miss. 2003) (“ Flowers II

”). ¶8. The M ontgom ery County Circu i t C o u r t held F lowers’s third trial in 2004 and tried him f or all f our m urders. The jury f

ound Flowers guilty and sentenced him to death. Finding that the State had engaged in racial discrim ination d u r i n g jury selection, the Court once again

r e v e rsed and rem anded the case f or a new t rial. Flowers v. State , 947 So. 2 d 910 (Miss

.

42007) (“ F

lowers III

” ). Flowers’s f

ourth and f

if t h trials a l s o were on all f our counts of capital m urder. Both r esulted in m istrials when the jury was unable to reach a unanim ous verdict during the culpability phase. The State did n ot seek the death penalty in the f ourth trial but did seek it in the f if th trial. ¶9. The circuit court conducted Flowers’s s ixth trial, the subject of t he instant appeal, in
June 2 010 in Montgom ery County

. The S t ate tried F lowers f o r all f our m urders. The State called twenty -one witnesses in its case-in-chief

. Poli ce Chief Johnny H argrove was the
State’s f irst witness. Hargrove testif ied that police h ad f

ound a bloody shoeprint at the scene. Hargrove had asked the District A ttorney ’s Of f i ce and the Highway Patrol t o help investigate the m urders. Mississippi Highway Patrol Investigator Jack Matthews testif ied that he saw

a b loody shoeprint a nd shell casings scattered near the bodies. Matthews testif i ed that cash

was taken f

rom the store during the m urders and t hat he f

ound F lowers’s t i me s h e e t a n d a check m ade out to him f

or $ 8 2.58 on Bertha T ardy ’s desk. Matthews said t hat, a ccording to the docum ents on Bertha Tardy ’s desk, the s t o r e would have had $300 cash on hand that

m orning. H owever, there w as only change, no bills, in the cash d rawer. During his investigation, Matthews spoke with Roxanne Ballard, Bertha Tardy ’s daughter, a n d learned that F lowers recently h a d been f ired f rom his j ob at Tardy Furniture. Matthews testif ied that $ 2 3 5 w a s f

ound hidden in Flowers’s h eadboard a f ter the m urders. He also testif

ied t hat Flowers wore a size ten-and-a-half shoe. ¶10. Ballard was t he b o okkeeper at Tardy Furniture and had worked i n the store her whole lif e. Looking at the books f rom the m orning of the m urders, Ballard testif

ied that the store

5had $ 400 in the c ash drawer that m orning. However, she conf irm ed Matthews’s testim ony that the books showed $300, but Ballard s aw a receipt f or a lat e c h a r g e i n t h e am ount of $100, so she knew t he d

rawer had contained a t otal of $400. Ballard testif ied that $ 389 was

m issing f rom the cash dr a wer af

ter the m urders. Also, looking at pictures f rom t he crim e
scene, Ballard testif

ied that the photos showed a b ank bag ly ing wide open on a pile of f abric swatches. She testif

i ed that the bank bag was alway s closed and it should have been i n a drawer or on Carm en Rigby ’ s desk. ¶11. M e l i s s a Schoene, a crim e scene e x pert with the Mississi p p i C r i me L a b o r a t o r y , testif i ed t hat s he took im

pressions of the bloody shoeprint and collected t h e 0

. 3 8 0 c aliber casings. Sherif

f Bill Thornburg testif

i ed that he h ad gone to Angelica Garm ent Factory on the day of the m

urders to investigate Doy le Sim pson’s stolen 0.380 caliber pistol. T hornburg testif i ed that it looked like a s crewdriver or t ire iron had been used to p ry open the glove box of Sim pson’s car. Thornburg also went to Sim pson’s m other’s hom e to c ollect s pent 0.380 hulls f rom Sim pson’s gun. A f

ew day s af

t er the m urders, Thornburg searched the hom e of Connie M oore, Flowers’s girlf riend. He f

ound a size ten-and-a-half Fila Grant Hill shoebox in a dresser at Moore’s house. ¶12. David Balash, a f

irearm s i dentif

ication expert, testif

ied that the bullets collected f rom Tardy Furniture either m a tched the bullets or were consistent with t he bullets collected f rom Sim pson’s m o ther’s house. J oe Andrews, a f orensic scientist specializing in trace e vidence, testif i ed that Flowers’s gunshot residue test revealed one particle of g unshot residue on the back of Flowers’s right hand. Andrews also analy zed the shoeprint f

ound a t Tardy Furniture,

6and he d eterm ined that the print was consistent w ith size ten-and-a-half F ila Grant H ill tennis

shoes. Patricia Hallm on Odom Sullivan, one of Flowers’s neighbors, testif ied that she saw Flowers wearing Fila Grant Hill tennis shoes a t 7:30 a .m . on the d ay of t he m urders. Elaine Goldstein, another n eighbor, t estif ied that s he had seen Flowers wear Fila Grant Hill tennis shoes a couple of

m onths bef

ore the m urders. ¶13. Multiple witnesses placed Flowers at or around Angelica Garm ent Factory and Tardy Furniture on the m orning of the m u r d e r s. Katherine Snow, an Angelica G arm ent Factory

em ploy e e, testif

ied that she saw Fl o w e r s leaning against Sim pson’s car at 7:15 on the

m orning of the m

urders. Snow also identif ied Flowers in a photographic lineup and in court. Jam es Kennedy testif

ied that he saw Flowers w alking toward Angelica Garm ent Factory at 7 : 1 5 a . m. E dward McChristian testif ied t hat h e saw Flowers w alking north, a way f ro m Angelica Garm ent Factory , between 7:30 a n d 8:00 a.m . Mary J eanette Flem ing testif ied that she saw Flowers walking toward Tardy Furniture at approxim ately 9:00 a.m . B eneva Henry testif i ed t hat s h e saw Flowers w alking toward downtown W inona, in the direction of Tardy Furniture, som etim e b e tween 9:00 and 9:30 a.m . 2 Clem m ie Flem ing testif ied that she was going to Tardy

Furniture to pay

a bill a little af

ter 10:00 a.m , and she saw Flowers running
away f rom the back of

Tardy Furniture.

2 B en ev a H en ry ’s testim o n y f ro m F lo w ers’s 2 0 0 4 trial w as read to th e j u ry . In th e n early f if teen y ears b etw een th e 1 9 9 6 m u rd ers an d F lo w ers’s six th trial, sev eral w itn esses h ad d ied , m o v ed o u t o f state, o r w ere o th erw ise n o l o n g er av ailab le to testif y . T h eir testim o n y f

r o m p rio r trials h ad to b e read to th e j u ry . T h o se w itn esses w ere B en ev a H en ry , S am Jo n es, P o rk y

C o llin s, S tacey

Wrig h t, an d B i lly

G lo v er. 7¶14. Porky Collins testif

ied that he saw two Af

rican-Am erican m en, who appeared to be arguing, outside Tardy Furniture at around 10:00 on the m orning o f t h e murders. Collins circled the block and returned to where he saw the m e n arguing; at t hat point, the m en were headed toward T ardy Furniture. Collins identif i e d F l o w e r s a s o ne of the m en he saw that

m orni n g . D o y l e Sim

pson testif

ied that his 0.380 caliber pistol was in his car’s glove

com partm ent when he arrived a t Angelica the m orning of J uly 16, 1996. Sim pson discovered that h is gun was m issing a t approxim ately 11:00 a.m . t hat day

. Sim pson, w ho was Flowers’s uncle, testif

ied that Flowers knew he had a gun and that Flowers had seen it in his car bef ore. Odell Hallm on, a jailhouse inf orm ant who had been in a cell next to Flowers, testif ied that Flowers had conf

e ssed to killing f

our people at Tardy

Furniture. ¶15. A f t e r t h e State’s case-in-chief , t he def ense m oved f

or a d irected verdict, which th e trial c o urt denied. The f i rst witness to testif

y in the def

ense’s case-in-chief was Mike McSparrin, a f

ingerprint expert. M cSparrin t estif ied that the f

ingerprints f

ound at the crim e
scene, as w ell as on the Fila shoebox, did not m atch Flowers’s f ingerprints. T h e def

ense also called Steve By

rd, a f irearm s f o rensic analy st. By

rd testif ied that he could not def

initively determ ine whether all of the bullets recovered f rom the crim e scene were f ired f rom the sam e
gun. Jam es W illiam s, a l aw enf orcem ent investigator, t estif ied that he did not see a bloody f ootprint when he f

irst arrived at Tardy Furniture. Billy Glover testif ied that, on the day of the m u rders, he saw Flowers around 9: 0 0 a . m . at a f riend’s house and that they t alked f or f if teen or t wenty m inutes. Connie Moore, Flowers’s girlf riend a t the tim e, testif

ied that she had purchased a pair of

size ten-and-a-half

Fila Grant Hill tennis shoes f or her son.

8¶16. Stacey W right testif ied that Clem m ie Flem m ing had adm i tted to her that she had lied about s eeing Flowers running a w a y f r o m Tardy Furniture o n the m orning of the m urders.
W r ight testif

ied that Clem m ie had said she would get m oney or have her bill paid at Tardy Furniture in return f

or her statem e nt against F l o w e r s . Clem m ie’s sister, Mary Flem m ing, testif i ed that she w as with Clem m ie the m orning o f the m urders an d t h a t C l em m ie did not
go t o T ardy Furniture to p a y her bill that m orning. Latarsha B l i s s e t t a l s o testif ied that Clem m ie had told her that if she m ade a statem ent against Flowers, she would get m oney or have her account a t Tardy F u r n i t u r e paid. F urther, Blissett testif ied that investigators had asked her if she k

new Flowers’s shoe size and had im plied that she would receive reward

mo n e y f o r providing a statem ent. Kittery Jones, Flowers’s cousin, a lso testif ied t h a t i n vestigators had im

plied that he would receive reward m oney in return f or prov i d i n g a
statem ent linking Flowers to the m urders. ¶17. On June 18, 2010, the jury returned a guilty v erdict f

or all f our m urders. F ollowing the sentencing hearing, the j ury sentenced Flowers to death. The jury f ound the f

ollowing aggravating circum stances b ey ond a reasonable doubt: (1) t he def endant knowingly created

a great r isk of death to m any persons; ( 2 ) t h e capital of f enses were com m i tted while the def endant was engaged in the com m ission of an arm ed robbery f or pecuniary gain; and (3) the capital of

f enses were com m itted f

or the p urpose of avoiding or preventing lawf ul arrest

or ef f ecting an escape f

rom custody

. F lowers f

iled a m otion f

or judgm ent notwithstanding the verdict (JNOV) or, in the a lternative, f or a new trial, which was d enied. Flowers tim ely f iled a notice of appeal.

9Issues

¶18. Flowers raises the f ollowing thirteen assignm ents of error on appeal:
1. The evidence presented at Flowers’s trial was constitutionally insuf f icient to support a f

i n d i n g of guilt bey ond a r easonable doubt, a s m andated by the Fif th and Fourteenth Am endm ents to the United States Constitution and Section Fourteen of

the Mississippi Constitution.
2. Flowers’s right to a f a ir trial, a s guarante e d b y M i s sissippi law and the Fourteen t h Am endm ent to the U nited States Constitution, was violated when t he prosecution r e p e a tedly argued m aterial f acts not in evidence during its culpability

phase closing argum ent. 3. The in-court a n d out-of -court ey ewitness identif ications of Flowers by Porky Collins w ere constitutionally u nreliable and the trial court erred in overruling Flowers’s objections to their adm ission.
4. The trial court’s exclusion of expert testim o ny explaining the def iciencies in law enf orcem ent’s i nvestigation, and the def ects in the com

p osition of the phot o lineups s hown to Porky Collins, v iolated Mississippi law and Flowers’s right to present a def ense as guaranteed by t h e S ixth and Fourteenth Am endm ents to the United States Constitution.
5. The trial c ourt erred in ref using to exclude prosecution testim ony that a single particle of

gunshot residue had been detected on Flowers’s hand.
6. T he jury s election process, the com position of the venire and the j u r y seated, and pervasive r acial and o ther b ias surround i n g t h i s m atter violated Flowers’s f

undam ental constitutional rig h ts protected by the S ixth and Fourteenth Am endm ents.

a. The p rosecutor violated the Equal Protection Clause of the Fourteenth Am endm e nt when he struck f ive Af rican Am erican jurors af

ter utilizing disparate questioning and citing pretextual reasons. b. T h e j u r y f

a i l e d to a dequately deliberate b e c a u s e i t w a s inf luenced by racial b ias in violation of the Due Process and Equal Protection Clauses of the Fourteenth Am endm ent.

1 0c. Pervasive r acial bias in the venire inf ected the f

a irness of the proceedings, a nd requires reversal a n d rem and f or a new trial.
7. The State’s six attem pts to convict Flowers of

the sam e of

f ense violated the Double Jeopardy Clause of the Fif t h Am endm ent and the Due Process Clause of the Fourteenth Am endm e nt. 8. The t rial c ourt reversi b l y erred in ref using Flowers’s requested circum stantial evidence instructions at the culpability phase.
9. The trial court r eversibly erred in the penalty phase instructions to the jury

. 10. The convictions and death sentences in this m atter w ere obtained in violation o f the Sixth, Eighth, and F ourteenth Am endm ents to the U nited States Constitution and the counterparts in the Mississippi Constitution.
11. This Court should set aside its prior order deny ing Flowers’s M otion f or Rem a nd and Leave to File Supplem ental Motion f o r New Trial.
12. T h e d eath sentence i n this m atter i s constitutionally a n d statutoril y disproportionate.
13. The cum

ulative ef f ect of the errors m andates reversal of t h e v e rdict of guilt and/or the sentence of death entered pursuant to it.
W e address e ach of Flowers’s issues but have sum m arized and reorganized several issues f or the purpose of

discussion.
Discussion ¶19. Heightened scrutiny i s applied to rev i e w o f c a p i t a l mu rder convictions where the death sentence has been im posed. Fulgham v. State , 46 S o. 3d 315, 322 (¶ 1 6) (Miss. 2010) (citing Bisho

p v . S t a t e , 8 1 2 So. 2d 934, 938 (¶ 7) (Miss. 2002)). “W hat m ay be harm less error in a case with less at stake [ m ay becom e] reversible error when the penalty is death.”
Id. The standard of

review f or each issue will discussed throughout.

1 1I. Whether t he in-court and out-of-court identifications of F low ers b y Porky

Collins w ere c onstitutionally unreliable, and w hether the trial court erred in overruling Flow ers’s objections to their adm ission. ¶20. Flowers c laim s t hat the trial court erred in adm itting evidence o f P orky Collins’s outof -court and in-court identif ications of Flowers. Collins died in 2002, so his testim ony f rom the 1999 t rial was read to t he jury

. Collins’s t estim ony was that, on the m orning of the

m urders, h e had seen two Af rican-Am erican m en who appeared to b e arguing outside Tardy Furniture. Collins thought the m en were about to f ight, so he circled the block and returned

to s ee what was going on. The second tim e Collins saw the m en, they were walking toward Tardy Furniture. Collins saw only one m an’s f

ace when he drove past them

. ¶21. Af ter hearing about the m

urders at Tardy F urniture, Collins went to p olice the sam e day , reported w hat he h ad seen t hat m orning, and gave a description of the m en. On August 24, 1 996, police showed Col l i n s two photo a rray s w ith six photos each – the f irst group incl uded Doy le Sim

pson’s photograph; the second group included Flowers’s p hotograph.
C o l l i ns testif

ied t hat he was not e xpected to identif y the m a n w hose f

ace h e did not see. According t o police departm ent notes, in response to the f irs t p h o t o a r ray , Collins pointed

to Sim p s on and said that he “ looked like” the m an he had seen, but h e w as unable to be positive. The entirety

of the of f icer’s handwritten notes were as f ollows: Porky Collins Picture Line-up 11:10 a.m

. #1 and #3 resem

bles, but hairline was f

urther back #6 Pointed to Sim

pson said hairline like this, m ay have appeared a little darker. “But it looks like him .” “Face was also sam e shape, round like this.” “Unable to be positive.”

1 2Collins then was s hown the second photo array , and he identif ied Flowers as the m an he had

seen in f r ont of Tardy F urnit u r e . T h e of f icer adm inistering the photo array m ade the f ollowing notes: 2nd Line Up
11:16 a.m

. Pointed to Curtis Flowers #4 “I think that’s him .” “He was about m y

height.” “I’m 5’10”” “The com plexion is also right.” “I believe that’s him , it look[ s] like him .” Identif ied #4
I asked Porky if he k

new Curtis Flowers, he said, “No. But I know the person I just identif

ied is the person I saw in f ront of Tardy ’s 7-16-96.” During the 1999 trial, Collins identif ied Flowers in court as the m a n whose f ace he had seen outside Tardy

Furniture. Flowers f

iled a pretrial m otion to suppress Collins’s out-of -court and i n-court identif

i cations, which the trial court d enied. On appeal, F lowers claim s that the trial court erred in adm itting Collins’s identif ications into evidence. ¶22. The standard of review f or a trial court ’ s s u p p r e s s ion hearing f indings regarding pretr i a l identif

ications is w hether “substantial c redible evidence supports the trial court’s f indings that, considering t he totality o f the circum stances, in-court i dentif ication testim ony

was not im

perm issibly tainted.” Butler v. State , 102 So. 3d 260, 264 (¶ 8 ) (Miss. 2012) (quoting Gray v. State , 728 So. 2d 36, 68 (¶ 159) (Miss. 1998)). For an out-of

- court or incourt identif

ication to be e xclud e d , “it m ust be the result of an im perm issibly suggestive

1 3lineup and the identif i cation m ust b e unreliable.” Butler , 1 02 So. 3d at 2 64 (¶ 8) (citing Y ork

v. State , 413 So. 2d 1372, 1 383 ( Miss. 1982)). First, the court m ust “determ ine whether the identif ication process was unduly s u g g e s t i v e .” L atiker v. State , 9 18 So. 2d 68, 74 (¶15) (Miss. 2005) (citing Neil v . B i g g e r s , 4 0 9 U

. S. 188, 198 (1972)). Second, even if the identif ication process was unduly suggestive, the identif ication still can be adm itted if “the out-of -court identif

ication w as nevertheless s o reliable that n o s u b s tantial l ikelihood of

m isidentif

ication existed.” I

d.
A. Collins’s Out-of-Court Identification ¶23. Flowers claim s that the out-of -court photo lineup was unduly suggestive b ecause the photo array w as skewed toward Flowers in several w ay s. He claim s that his head was larger than the others a nd that the other m en had l ighter com plexions, were y ounger than him , and had v ary ing hairsty l es and f acial f e atures. W e have sum m arized the standard applied to outof -court identif

i cations as f

ollows:
A lineup o r series of photographs is i m perm issibly suggestive if “ the a ccused, when com

pared with the others, is conspicuously singled out in som e m anner f rom the others, either f

rom appearance or statem ents by an of f icer.”

. . . To be excluded, an o ut-of

- c o u r t identif

ication m

ust h ave resulted f

rom an identif ication procedure t hat was so im perm issibly suggestive as t o g ive rise to “ a very substantial likelihood of m isidentif ication.”

. . . W here the def endant is “the only one depicted with a distinctive f eature,” courts usually w ill f ind the lineup to be i mp e r

m i ssibly suggestive.

. . . On the o ther h and, “m inor dif f erences” with the suspec t s or dif f e r ences i n t he p hotograph backgrounds will not render a lineup im perm issibly

suggestive. . . . Butler , 102 So. 3d at 2 64-65 (¶¶ 9-11) (citations om itted). A pply ing the standard articulated in Butler , we recently held t hat a photo lineup was not im perm issibly suggestive even though

1 4the d ef

endant w as the only person in the lineup with f acial tattoos. Stewart v. S tate , 131 So. 3d 569, 574 (¶ 16) (Miss. 2014). In Stewart , we concluded:
W e f ind that the case sub judice is sim ilar to the cases of White , Foster , and Jones , in which this Court upheld sim ilar identif i cations. In White , the witness noticed the def

endant’s plaited hair and f orehead tattoo during t he c o m m ission of the crim e . White v. State , 507 So. 2d 98, 99 (Miss. 1987). This Court u pheld the out-of -court and in-court identif ications of the def

endant even though the def endant was the only su spect in the lineup with plaited hair. Id. at 99-101. The d ef endant also had a f

orehead tattoo, which the witness identif ied at trial. BI at 99-100. In Foster , this Court u pheld the out-of

-court a n d i n - c ourt identif ications of the def

endant even though h e was t he only person in the lineup wearing a f

i shing hat, where the def endant had worn a f

ishing hat during the robbery

. Foster v. State , 493 So. 2d 1304, 1 305-06 (Miss. 1986). Likewise, in Jones , this Court upheld t h e out-of -court a n d in-court identif ications o f the def

endant even t hough he w as t h e only suspect in the photo lineup wearing a h at sim ilar to the one worn by t h e a ttacker. Jones v. State , 504 So. 2d 1196, 1 199-1200 (Miss. 1987). This Court f ound that, even though the hat m ay

have play ed a signif

icant p art in t he identif

ication, it was not im perm issibly suggestive, because the wit n e s s had given an accurate description and identif

ie d t h e def

endant with g reat conviction at trial. Id. at 1200. Id. at 573 (¶ 12). ¶24. In the photo a r r a y t h a t i n c luded Flowers’s photograph, Flowers’s head i s slightly larger than the others, as it appears his photo was taken f rom a closer angle t han t he others. However, the use o f a dif

f erent p hotographic technique creates only a m inor d if f erence, and that is not enough to render the photo lineup im perm issibly suggestive. Batiste v. State , 121 So. 3d 808, 856 (¶ 116) (Miss. 2013). The other characteristics Flowers claim s caused the
array t o be suggestive are not p r e s e n t

– t hree o ther m e n h ave com plexions sim ilar to Flowers ’ s c o mp lexion; Flowers appears to be t he sam e a ge or o nly slightly older than the other m en; two of the other m en have hair sty les sim ilar to Flowers’s; and three of the other

1 5m en have f acial hair sim ilar to his. Accordingly , Flowers f ails to show that the lineup was

u n d u l y suggestive. Further, Collins provided a description to police on the day o f t h e

m urders, and h e w as conf

ident in his identif

ication of the m a n he saw in f r o n t of Tardy Furniture. The trial court did not err in adm i tting Collins’s out-of

- c o u r t identif ication.
Because t he lineup was not im per mi s s i b l y suggestive, we need not consider t he Biggers f actors f or reliability

. B. Collins’s In-Court Identification ¶25. Although Flowers’s issue statem ent asserts that C ollins’s i n-court identif ication was “constitutionally unreliable,” he provides no substantive argum ent or support f or that claim

. The extent of his argum ent is a f oot n o t e , which p rovides: “there is no issue of the adm issi b i l i t y o f the in-court identif ication, g iven that Collins c ould not p ositively identif y Flowers i n the courtroom at the second t rial, a n d was deceased b y the tim e of this, the sixth trial.” His assertion is incorrect. Collins unequivocally i dentif ied Flowers a t the second trial. Flowers a lso im

plies that t he ty

pical jury consideration of determ ining Collins’s credibility is not applicable in t he case sub judice because his testim ony was read to t he jury , as opposed to live testim ony . Although the jury did not personally observe Collins testif y ing, def ense counsel’s cross-exam ination of Collins adequately addressed credi bility

. For exam ple, def ense counsel asked Collins about his m em o ry , any m edication he was taking that could af f ect his m em ory , and whether he wore glasses. The characteristics of t rial i tself – trial by jury , an im

partial judge , r e p r e s e n tation b y counsel, and w i tnesses subject to an oath and

1 6c r o s s - e xam i nation – adequately p rotect a gainst a ny suggestiveness of in-court identif ications at trial. Galloway v. State , 122 So. 3d 614, 663 (¶ 164) (Miss. 2013). ¶26. Although Flowers does not claim that Collins’s i n-court identif ication was t ainted by the alleged s uggestiveness of t he o ut-of -court i dentif

ication, that is the argum ent of ten m ade by de f e n d a n t s . See Butler , 1 02 So. 3d at 266-67. W e have held that “an im perm issibly suggestive pretrial identif ication does n ot p reclude in-court identif ication by a n ey ewitness who viewed the suspect at the procedure, unless: (1) f rom the totality

of the circum stances surrounding it, (2) the identif ication was so im

p erm issibly suggestive as to give rise to a very substantial likelihood of irreparable m isidentif ication.” Id. at 267 (¶ 1 7) (quoting Y ork , 413 So. 2d at 1383). Collins’s out-of -court identi f

i cation was not im

perm issibly s u ggestive; theref ore, it could not give rise to the likelihood of an irreparable m isidentif ication. For the reasons given above, the issue is without m erit.
II. Whether the trial court’s e x c l usion o f e x pert testim ony violated Mississippi law and F low ers’s right to present a defense as guaranteed by the S ix th a nd Fourteenth Am endm ents to the United States Constitution. ¶27. Flowers c ontends that the t rial court erred by excluding the testim ony of two experts

– Robert J ohnson and Dr. Jef f rey Neuscha tz. F lowers tendered J ohnson as an expert in

cr i m inal investigation procedures, but the trial court d id not p erm it Johnson to testif y . In Flowers’s f

o urth trial, he f

iled a m otion to determ ine the adm issibility o f Dr. Neuschatz’s testim o ny on t h e r e liability of ey ewitness identif ication e vidence. F lowers renewed the

m otion in the present case, and the trial court denied the m otion.

1 7¶28. W e apply an abuse of discretion standar d w h e n r eviewing the exclusion of expert testim o ny . G i l

l e t t v . S t a te , 56 So. 3d 469, 494 (¶ 61) (Miss. 2010). Analy sis of the adm issibility

of expert testim o ny

begins with Mississippi Rule of Evidence 702: If s cientif ic, technical, or other specialized knowl e d g e w ill a s sist the trier of f act to understand the evidence or to determ ine a f act in issue, a witness qualif ied as an expert by

knowledge, skill, experience, training, or e ducation m ay testif y thereto in the f

orm of an opinion o r otherwise, if (1) the testim ony is b ased upon suf

f icient f acts or d ata, (2) the testim ony is the product of reliable principles and m ethods, and (3) t he witness h as applied the principles and m ethods reliably

to the f acts of the case. Miss. R. Evid. 702. The expert testim ony m ust be both releva n t a nd r eliable to be adm issible. Gillett , 56 So. 3 d a t 495 (¶ 63). “Expert testim ony is relevant if it will ‘assist the trier of f act in understanding or determ ining a f act at issue.’” Galloway , 122 So. 3d at 632 ( ¶ 2 7 ) (quoting Ross v. State , 954 So. 2d 968, 996 ( ¶ 57) (Miss. 2007)). T o de t e r mi n e reliability , the f

ollowing non e x h austive l ist of f actors m ay be considered: whether the expert’s theory can be or has been tested; whether the t h e o r y h a s been the subject of peer review and publication; t he known or potential rate of e rror of the technique or theory when

a p p lied; the existence of standards to control the technique’s operation; and t he g e n e r a l acceptance t he theory has garnered in the relevant expert com m unity

. Gillett , 56 So. 3 d at 495 (¶ 64) (citing Miss . Transp. Com m ’n v. M cLem ore , 863 So. 2d 31, 37 (Miss. 2003);
Daubert v. Merrell Dow Pharm ., Inc. , 5 09 U .S. 579, 592-94 (1993)). “The applicability of these f actors varies depending on the nature of t he i ssue, the e xpert’s p articular expertise, and the s ubject of the testim o ny .” Gillett , 56 So. 3d at 495 ( ¶ 64) (citing McLem ore , 863 So. 2d at 37).

1 8A. Robert Johnson

¶29. Flowers attem

pted to call Robert Johnson as an expert in c r i mi n a l i n v e s t i g ation procedures, and the S tate objected. Johnson would have t estif ied that t he crim inal investigation was f

lawed in various way s. Af t er a lengthy voir dire, the trial court held that Johnson could not testif

y because “there is n o v alid way of t es t i n g t h e f ield of police investigatory techniques.” The trial court also f o und that, even if Johnson’s testim ony m et the reliability prong of D aubert , the testim ony was cum ulative because the law enf orcem ent of f icers who already had testif ied at trial were throughly cross-exam ined and had adm itted that there were f

laws in the investigation. Flowers also attem pted to have Johnson give an expert o pinion relating to t he photographic array s h own to Collins. T he trial court excluded the testim ony because Johnson s tat e d d uring his voir d ire that he did not have suf f icient inf orm ation about the lineup.

1. Johnson’s Proffered Testim ony ¶30. During the voir d i r e , J o hnson testif ied at l ength a

b out his law enf

o rcem ent experience. Johnson is currently

a law enf orcem ent consultant and previously s erved as police chief in Jackson, Mississippi; Jackson, Michigan; and L ansing, Michigan. He was Com m issioner of the Mississippi Dep artm ent of Corrections f rom 2000 to 2002. Johnson has a m aster’s degree in public adm inistration, and he graduated f rom the FBI National Academ y and the
FBI Law Enf

orcem ent Executive Developm ent p rogram . During h is career, Johnson perf orme d h o mi cide investigations as a detective and directly supervised hom icide investigations. Johnson also developed protocols f or crim i nal investigations.

1 9¶31. Johnson testif ied that generally accepted standards f or hom icide investigations exist, and h e opined that the investigation in today ’ s c a s e f a i l e d t o m eet them in various way s. First, Johnson said the i nvestigation lacked m anagem ent and organization. In support of his

content i o n, Johnson ref

e rred to the testim ony o f law enf orcem ent of

f icers w ho said the investigation was a “ shared responsibility .” Johnson also said t he investigation lacked an indepth case f

ile, which should have included all original notes and r eports. Johnson testif ied: “There has to be som ebody who is the recipient of all the inf orm ation com ing f

r om a variety of s ources and is able to correlate that i nf orm ation a n d f

urther direct t he direction t hat the investigation needs to develop.” H e said that the investigation also lacked written reports of
events. ¶32. J o h n s on next c riticized the crim e scene integrity

. Johnson said that the integ r i t y o f the crim e s cene could have been com prom ised by law enf

o rcem ent of

f icers and investigators

m eeting within the crim e s c e n e t o d iscuss and organize the investigation. According to Johnson, a crim e scene l og should have been m aintained listing who cam e and went f rom the crim e scene to ensure that it was not c ontam ina ted. Next, Johnson testif ied that he was “concerned” about t he investigation’s early f ocus on one suspect

– Flowers – to the exclusion of any other suspects. Johnson said early f ocus can result in lost e vidence: “It’s okay to very quickly f ocus on one suspect; that happens all the tim e, y o u know. But to the exclusion of all else and all o thers i s w here i t becom es p roblem atic, a nd y ou som etim es lose v ital evidence that m ay be had b ecause y ou haven’t included and k ept them in as a potential s u s p e c t or person of interest.”

2 0¶33. On cross-exam ination, Johnson a dm itted that Mississippi has no m inim um standards f or crim inal investigations. He also adm itted that t he Justice D e p a r t me n t g uidelines he

m entioned in direct exam ination were not requirem en t s a n d t hat there are no national

m inim um standards f

or crim inal investigations. J o hnson stated that, rather than m inim um standards, he based his opinions on generally accepted practices i n police work. Further, when asked if h e could provide a n opinion o n w hether investigations that lack written reports lead to incorrect results, Johnson said investigations w i th written reports are “m ore

com plete.” He did not, however, state that an investigation without a written report would lead to an incorrect result.

2. Adm issibility of Johnson’s Testim ony ¶34. The Daubert f

actors apply to expert testim o ny r e l a t i n g t o p o l i c e i n v e s t i g a t o r y techniques. See Ross v. State , 954 So. 2d 968, 996-97 (Miss. 2007) (“ Ross I ”). In Ross I

, the def endant prof

f ered an expert who opined that the securing of the c r im e scene and evidence collection were def icient. Id. at 997 ( ¶ 61). Although t he Court held the testim ony did not m eet the reliability standards of Daubert and McLem o re , the opinion did not discuss why the testim ony

was unreliable. Id. The judgm ent was reversed and the case rem anded f or other reasons. Id. at 1019-20 (¶¶ 138-41). The def endant was conv i c t e d a gain and appealed, and the case was assigned to the Court of Appeals. Ross v. State , 22 So. 3d 400 (Miss. Ct. App. 2009) (“

R oss I I ”). In Ross II

, the Court of Appeals addressed the prof f ered expert testim ony and f

o und that the trial court did not err in excluding the testim ony . Id. at 420-21 (¶¶ 99-104). First, the expert testim ony was cum ulative because t he investigating

2 1of

f icers had been cross-exam ined about their investigative techniques and had adm itted that “things could have been handled better.” Id. at 421 (¶ 102). Second, the trial court did not abuse its discretion by f

inding that the testim ony f ailed to m eet the Daubert reliability prong because the expert’s “m em berships and associations were voluntary and f ee based, not peer reviewed or tested” and “the trial court was unable t o e v a luate the value of [ t he expert’s] certif i cations because the trial court was unaware o f the requirem ents f or certif ication.” Id. at 421 (¶¶ 103-104). ¶35. Under Rule 702, t h e f i r s t p r o n g o f t h e inquiry f or determ ining w hether expert testim o ny should be adm i tted is whether the witness is “qu a l if ied by v irtue of his or her knowledge, skill, experience[ ,] or education.” G alloway , 122 So. 3d at 632 (¶ 28) (quoting
McLem ore , 863 So. 2d at 35). Johnson certainly is qualif ied through his knowledge, experience, and training in the f ield of crim inal i nvestigations. Further, there is no question that J ohnson’s testim ony is relevant. Johnson’s testimo n y a d d r e ssed f acts r elating to the cri mi n a l i n v e stigation that eventually led to Flowers’s arrest; t hus, his testim o ny had a “tendency to m ake the exist e n c e of any f act that is of c o nsequence to the determ ination of the action m ore probable or less probable than it would be w ithout the e vidence.” Miss. R. Evid. 401. ¶36. The critical i nquiry , however, is whether Joh n s o n ’ s t e s t im ony is reliable. The trial

court f ocused o n t he inability to test Johnson’s t heories as a b a s i s f o r excluding the testim o ny , holding: “Because there is no valid way of testing the f ield of police i nvestigatory techniques, this Court f

inds th e p r o posed testim ony in the f ield f ails to m eet the reliability

2 2standards required under Rule 702.” W hether the expert’s theory can be tested is one f actor to be considered under Daubert , but it is not conclusive. Johnson’s prof f e red testim ony

is

not the ty pical expert t estim ony contem p lated by the t esting f

actor – f o r exam ple, one cannot
test what e f

f ect t h e l ack of organization and l eadership would h ave on a m urder investigation. As such, reliance on the testing f actor alone would have been error. However, the trial court cited other reasons f or excluding the testim ony . ¶37. The t rial court also f ound that, although J ohnson testi f i e d t hat the investigation f ell below generally accepted standards and practices in law enf orcem ent, Jo hnson did not suf f i ciently articulate the standards. See McGee v. River Region Med. Ctr. , 59 So. 3d 575,
5 7 9 ( ¶ 1 3 ) (Miss. 2011) (An expert testif y ing about a f

a i lure to m eet generally accepte d standards m

ust “identif

y and articulate the r equisite standard t hat w as not com plied with.”)
A review of the prof

f ered testim ony reveals that Johnson did articulate standards relating to

som e – but not all

– of his opinions. Johnson o f f ered f our opinions: (1) that the investigation lacked o rganiz a t i o n a n d m a nagem ent; ( 2 ) that the integrity of the crim e scene was

com prom ised; (3) that the i nvestigation f ocused on one suspect too quickly ; a nd (4) that the photo lineup used during Collins’s identif icati o n was f

lawed. Johnson did not articulate a standard f or his opinion relating to the investigation’s early f ocus on Flowers a s a suspect. And Johnson s a i d t hat he was not f am iliar with the procedures used during Collins’s identif ication. Thus, the trial court did not err in excluding his testim ony . See Dedaux Util. Co., Inc. v

. City of Gulfp o r t , 9 3 8 S o . 2d 838, 841 (Miss. 2006) ( expert testim ony m ust be based on suf

f i c ient f a cts and data).

2 3¶38. J o h n s on did p rovide a pplicable standards f

or his opinions related to th e i n v e s t i g a t i o n ’ s organization and m anagem e nt a n d c rim e scene integrity

. Regarding the i nvestigation’s organization a nd m anagem e nt, Johnson testif ied that, ba sed on his e xperience and knowledge, the invest i g a t i on should have had centralized leadership that collected inf orm ation, m aintained the case f ile, and directed the investigation. Johnson said, “There has to be som ebody who i s the recipient of all the inf o rm ati o n c o mi ng f

r om a variety of

sources and is abl e t o c o r relate that inf orm a t ion and f

urther direct the direction that the investigation needs to develop.” Regarding crim e scene i ntegrity , Johnson said a crim e scene log should have been m aintained at the crim e scene. He explained that the c rim e scene can be c ontam inated, e vidence can be overlooked, a nd e vidence can be deposited af ter the crim e. H e s a id, “There m ay be a num ber of issues related to the presence of people at t h e c r i me
scene, so y ou want to have a record of when they were there, how long they stay ed and when they lef t.” ¶39. A l though Johnson provided s om e standards on which he bas e d h i s o p i n i o n s , w e

c annot s ay the trial j udge abused his discretion when he held the standards insuf f i c i e n t

. Johnson te s tif

ied that the standards he applied in f orm ing his theories were “generally accepted practices in police work.” Certainly , expert testim ony can be based on e xperience, and one f actor that m a y be considered in determ ining reliability i s general a cceptance in the relevant expert com m

unity

. See Gillett , 56 So. 3d at 4 95 (¶ 64); D a ubert , 509 U.S. at 593- 94. But Johnson did not provide support f or his statem ent that t he pr a c tices he ref erenced

were, in f act, generally accepted. Allowing an expert sim ply to state that h i s o pinions are

2 4based on “generally accepted practices,” without support f or the assertion, could lead to essentially perm i tting experts to qualif y them selves. W hile Johnson’s o p i n i o n s a n d s t a n dards

seem sensible, we cannot say t h a t he presented enough evidence that his opinions were suf f i ciently reliable su c h t h at the trial c o urt abused its discretion b y not a l lowing the testim o ny . ¶40. Further, t he trial c ourt was correct that J o h n s o n ’s testim ony was cum u lative. Law enf orcem ent of

f icers who p articipated in the investigation were t horoughly questioned about the investigation and adm itted that there w ere f laws in the investiga t i o n . Specif ically , of f icers adm itted that a crim e scene log was not m aintained, and the police chief testif ied that

o n e should have been m aintained. The of f icers also a dm itted that there was not a l e a d investigator, and the p olice c hief testif i ed that responsibilities should have been a s signed, an i nvestigative p lan should have been developed, a nd i nf orm ation should have be e n s h a r e d with investigators and f

irst responders. The t rial court did not com m it an abuse of discretion in not allowing Johnson’s testim ony . B. Dr. Jeffery Neuschatz ¶41. During Flowers’s f ourth trial, he f

iled a m otion to determ ine the adm issibility of D r. Neuschatz’s testim ony on t he reliability of ey ewitness identif ication evidence. Dr. Neuschatz’s af

f idavit a n d c u r r i culum vitae were a t tached to the m otion. Dr. Neuschatz’s af f idavit essentially provided two opinions: (1) that Collins’s identif ication of Flowers could have been af

f ected by a num

b er of dif f erent c i r c u ms t a n c e s; a nd (2) that the identif ication procedure was f

lawed. Bef

ore the f ourth trial com m e nced, the State announced that it would

2 5not seek the death p e nalty , a n d F lowers withdrew h is m otion regarding Dr. Neuschatz’s

testim o ny . 3 ¶42. At Flowers’s f

if t h trial, t he State sought t he death penalty , and Flowers renewed his

m otion to determ ine the adm issibility of Dr. Neuschatz’s t estim ony . The court held a hearing

on the m otion, but Flowers did not provide a prof f e r of Dr. Neuschatz’s t estim ony other than the af f idavit previously subm i tted. The trial court d enied the m otion, holding that, because Collins was extensively

cross-exam ined, the expert testim ony would not assist the jury : And he was extensively cross-exam ined, even into the m ost mi n u t e d e tail about issues concerning w hat path he took driving around town that m orning. He stated in his testim ony that he had a brief glim pse of who h e believed to be Mr. Flowers. There was – he w as cross-exam ined about his ability to rem em ber things. He was c ross-exam ined about whether he h ad had dif f iculty with m em ory p r o b l e ms i n the past. I m ean I do not think there could be a m o re thoroug h cross-exam ination of

a witness than was done with Mr. Collins. So I think given the extensive cross-exam i nation of Mr. Collins and because all other witne s s e s knew Mr. Flowers on sight, I do not believe an expert on witness identif

ication would assist the jury in the least bit in this case. The court also f

ound that Flowers did not dem onstrate that Dr. Neuschatz’s testim ony was reliable based on the Daubert f actors. In the present case, Flowers renewed his m otion on the adm issibility o f Dr. Neuschatz’s testim ony . The trial court denied the m otion, adopting its ruling f

rom the f if th trial. ¶43. Again, i n determ ining whether expert testim ony i s r eliable, the court m ay consider the f ollowing f

actors: whether the expert’s theory can be o r h as been tested; whether the theory

3 F lo w ers’s c o u n sel a

p p aren tly b eliev ed th at ey ew it n e ss id en tif icatio n ex p ert testim o n y w as n o t ad m issib le in n o n cap ital cases. 2 6has been the subject of peer review and publication; the known or potential rate o f error of the technique or theory

when applied; the existence of standards to control the technique’s operation; and t he general a cceptan c e that the theory has garnered in t he relevant expert

com m unity

. Gillett , 56 So. 3d a t 495 (¶ 64) (citing McLem ore , 863 So. 2d at 37, and
Daubert , 509 U.S. at 5 92-94). T he adm issibility of Dr. Neuschatz’s t estim ony was addressed recently in Corrothers v. State , 148 So. 3d 278 (Miss. 2014), r eh’g denied (Oct. 23, 2014).
In Corrothers , the Court applied Rule 702 and Daube r t t o D r . Neuschatz’s testim ony concerning the reliability of ey ewi t n e s s i dentif ication procedures and f ound that Dr. Neuschatz’s testim ony

was unreliable:
Dr. Neuschatz attem

pted to apply the principles and m ethodologies underly ing his expertise in ey ewitness identif ication to opine that [ th e e y e w itness’s] identif ication “could” be unreliable. But Dr. N euschatz’s opinions were underm ined by his inaccurate a nd i ncom plete u nderstanding o f t h e f a cts on which he b a s e d h i s opinions and his com plete lack of expertise on [ the ey ewitness’s] brain injury

. These def iciencies rendered his opinions so f undam entally unsupported that they could of f er no a ssistance to the jury and am ounted to nothing m ore than unsupported speculation. His testim ony was unreliable, and there was no abuse of discretion in e xcluding it. We f u rther note that Dr. Neuschatz’s testim ony w as inconclusive a n d s peculative because he did not of

f er his opinions to a reasonable degree of scientif ic certainty , but testif ied o n ly t hat Jo s h ’ s lineup identif ication “could” be unreliable and t hat in-court identif

ications “probably ” a re s u g g e s tive. Nor did Dr. Neuschatz subm it a ny p e e r - r eviewed publications supporting his principles and m ethodologies; the trial cour t h a d o n ly the benef it of Dr. Neuschatz’s curriculum vitae and his testim ony that h is studies had been subjected t o p eer review and p ublication and were generally accepted in the relevant s cientif ic com m unity

. These f

acts f urther support t he exclu s ion of Dr. Neuschatz’s testim ony . Corrothers , 148 So. 3d at 297 (¶ 35).

2 7¶44. I n the instant case, the trial court a pplied the Daubert f

a c t o r s a n d h e l d t h at Dr. Neuschatz’s theories were not generally accepted and that he di d n o t p r ovide inf orm ation about the rate of e rror o r t he principles and m ethods used. As to the f irst f actor, Dr. Neuschatz’s af

f idavit cited sev e r al tests that support his theory that exposure tim e,
appearance change/disguise, and post-identif i cation f eedback m ay af

f ect ey ewitness identif ications. However, he d i d n o t s u b m it docum entation of t he tests. R egarding peer review and publication, Dr. Neuschatz’s af f idavit s tate d t h at he has “published several articles i n peer reviewed j ournals, written peer invited chapters, and presented [ his] research f indings at regional and national conf erences . ” A gain, however, he did not provide the articles. T he sam e was true in C orrothe r s . C o r r o t hers , 1 48 So. 3d at 2 97 (¶ 35). Dr.
N e u schatz’s a f

f idavit did n ot m ention any thing relevant to the third or f ourth f actors

– th e known or potential rate o f e r r or of the applied t heory and the existence of s tandards and control s

– t h e r e f

o re, t he f actors were not satisf

i ed. Finally , Dr. Neuschatz cited several articles and studies supporting his theories t o show that his theory is accepted in t he scientif ic

com m unity but again, the articles were not subm itted. ¶45. Because Flowers did not provide an additional prof f er of Dr. Neuschatz’s testim ony , we have no way

of knowing whether Dr. Neuschatz could have of f e red f u rther support f

or the Daubert f

actors if he had provided live testim o ny . W e do not hold that every expert is required to s ubm it every article or report on which he or she relies. H owever, here, the trial judge – in exercising his considerable discreti o n

– f o u n d that the def

ense did n ot present suf f i cient evidence in s upport of Dr. Neuschatz’s opinions. The trial judge d id not abuse his

2 8discretion in concluding that the af f idavit alone was insuf

f i cient to withstand the Daubert analy sis and in deny ing Dr. Neuschatz’s testim ony . ¶46. Dr. Neuschatz’s af f idavit i ncluded two opinions: th a t C o l lins’s identif i cation could have been af

f e cted by several f

a ctors and that the photo identif ication process was f

lawed. Regarding the photo array , the sam e issue was a ddressed in Corrothers , and we held that Dr.
Neu s c hatz’s testim ony m ay h ave been m ore prejudicial than p robative due to the risk of conf usion. Corrothers , 148 So. 3d at 297 ( ¶ 36). A llowing testim ony f rom Dr. Neuschatz

t h a t t he photo i dentif

ication process w as f

lawed, while also adm itting evidence of th e identif ication because t he c ourt determ ined that it was not i m p erm issibly s uggestive, could result in conf

u sing the jury

. 4 Thus, the trial court did not e rr in excluding Dr. Neuschatz’s testim o ny about the photo-identif

i cation process. ¶47. As to Collins’s i dentif ication, discussed at length supra , the judge held: “[ G]iven the extensive cross-exam ination of Mr. Collins and because all o t h e r w i tnesses knew Mr. Flowers on sight, I do not beli e v e an e xpert on witness identif ication would assist the jury in the least bit in this case.” The quoted f inding represents precisely the ty pe of f inding the

4 In C o rro th e rs , P resid in g J u stice R an d o lp h w ro te th e f o llo w in g ab o u t th e ad m issio n o f D r. N eu sch atz’s testim o n y o n a p h o to lin eu p af ter th e j u d g e d e term in ed th at t h e lin eu p w a s ad m issib le:
N e u sch atz also p ro f

f ered a criticism o f th e p h o to l i n e u p s p resen ted to Jo sh , p r e v io u sly ru led a d m i ssib le b y th e trial j u d g e. S u ch g en eralized ex p ert testim o n y in lim ited circu m stan ces m ay b e p ertin en t a t a h earin g o n a m o tio n to su p p ress, b u t o n ce th e co u rt h as ru led p h o to -lin e u p ev id en ce is ad m issib le, o f f erin g su c h testim o n y at trial en cro ach es u p o n a l e g a l issu e alread y d eterm in ed an d u su rp s th e trial j u d g e’s d iscretio n ary au t h o r ity

. C o rro th ers , 1 4 8 S o . 3 d at 3 4 0 -4 1 (¶ 1 8 4 ) (R an d o lp h , P .J., sp ecially co n cu rrin g ). 2 9trial judge is called u p on to m a ke. In determ ining the adm issibility o f expert testim ony , the trial judge m

ust determ ine whether the testim o ny will “assist t he t rier of f act” in understanding the e vidence o r i ssues, and the judge m ust be satisf

ied that t he testim o n y is
“m ore probative t han prejudicial.” Corrothers , 1 48 So. 3d at 294 (¶¶ 24, 27) (citations

om itted). ¶48. W e r ecognize that m any court s a d m i t e x p e r t t e s t i mo n y r e g a r d i n g e y e w itness identif ication, and we do not hold that such expert t estim o ny is per se inadm issible. Rather,

we recognize that t he decision o f “whether t o adm it t his testim ony is s q uarely within the discretion of the trial judge[ .]” United S tates v. Moore , 786 F.2d 1308, 1312 (5th Cir. 1986).
In Moore , the Fif

th Circuit explained that “ the t rial court should exercise its discretion in deciding whether o r not to adm it it and should b alance the reliability of t he testim ony against the likelihood that the testim ony would overwhelm o r m islead the jury .” I d . ( discussing
United States v. Downing , 753 F.2d 1224 (3d Cir. 1985)). T he Moore Court recognized that a trial judge’s exclusion of e xpert ey ewitness testim ony was not harm f

u l where “there was evidence indicating guilt apart f rom the ey ewitness identif ication.” Id. (citing U

nited States v. Sm ith , 736 F.2d 1103, 1108 (6th Cir. 1984)). The M oore court wrote: [ I]n the present c ase we d o not f ind that the district court abused its discretion in ref using to adm it this evidence. W e have earlier hel d a n d w e now a f f irm that the decision whether to adm i t this t estim ony i s s q u a r e ly within the discretion of the t rial judge and properly so. . . . Although adm ission o f e xpert ey ewitness testim o ny is proper, there is no f e deral authority f

o r the proposition that such testim ony must b e admitted. The district judge has wide discretion in d eterm ining the adm issibility of this e v idence, and we hold that the district judge did not abuse his discretion in this case.
In som e cas e s c a s u a l e y ewitness testim ony m ay m ake the e n tire dif f erence
3 0b etween a f inding of g uilt or innocence. I n such a case expert ey ewitn e s s identif ication t estim ony m ay be critical. But t his i s not at all the situation in the case bef ore us. Even if the ey ewitness i dentif ications of Lam

b erth and Holder are com pletely disregarded, the other evidence of guilt is overwhelm ing. . . .
W e em phasize that in a case in which the sole testim ony is casual ey ewitness identif ication, expert testim ony regarding the accuracy of that i dentif ication is adm issible a nd properly m ay be encouraged. In the present c a s e , we f ind no abuse of discretion in not adm itting such e vidence. This was not a case where casual ey ewitness identif

ications were at all critical.
Moore , 786 F.2d at 1312-13 (internal citations om itted). ¶49. Lik e t h e e y e w i t n e s s e s in Moore , Collins’s identif ication was f

ar f rom the only evidence of guilt in the instant case, and it cannot b e l abeled “critical.” No f ewer than seven other witnesses placed Flowers near Angelica Garm ent Factory , where Sim pson’s gun was stolen, and near T ardy Furniture on the m o rning of the m u rders. Collins’s testim ony was no dif f erent. He identif

i ed Flowers as a m a n h e saw outside T ardy F urniture. Out of all of the witnesses, Collins was the only witness placing Flowers near the scene w h o did n ot know Flowers. The other witnesses p r o v i d e d e v en m ore c r edible testim ony as they recognized Flowers by sight, h a v i n g k n o w n him previously

. If the case h inged on Collins’s identif ication of Flowers, e x p e r t t estim ony on ey ewitness identif i cation m ay have been helpf u l to the jury . However, as in Moore , that was not the situation. ¶50. The trial judge m a de a rational and reasoned decision r egarding the adm i ssibility of
Dr. N euschatz’s t estim ony b ased on the totality of the f acts be f ore him

. W e af

f ord “the widest possible discretion” to a t r i al judge’s determ ination on the a dm issibility of expert testim o ny , and “that d ecision will only b e disturbed when there h a s b e en a clear abuse of discretion.” Sm ith v. State , 925 So. 2d 825, 834 (¶ 23) ( Miss. 2006) (quoting Logan v. State ,
3 1773 So. 2d 338, 346-47 (¶ 31) (Miss. 2000)). The trial j u dge’s ruling o n Dr. Neuschatz’s

testim o ny was not an abuse of

discretion. The issue is without m erit.
III. Whether the t rial court erred i n not ex cluding evidence of a single particle of gunshot residue found on Flow ers’s hand. ¶51. Investigator Jack M atthews interviewed Flowers on t he day of t he m u rders a nd asked him to subm it to a gunshot residue t est. Flowers agreed to the test. A single partic le of gunshot r esidue was f

o und on the back of Flowers’s right hand. Joe Andrews, a f orensic scientist who analy

zed the g unshot residue test, testif ied that three scenarios can r esult in the
presence of gunshot r esidue on a person’s hands: (1) the person actually f i red a gun; (2) the
person was in close proxim ity to a discharged gun; or (3) t he person handled an object that had g unshot residue on it. At trial, Flowers m oved to exclude the e vidence concerning the gunshot r esidue, and the t rial court denied the m otion. Flowers c o ntends t hat the t rial court erred in adm itting evidence that a particle o f g u n s h ot residue was f ound on his hand approxim a tely t hre e h o u r s af ter the m urders were reported. Flowers claim s that the prejudicial ef

f ect of the evidence greatly o utweighe d t h e p r o bative value, so it was inadm issible under Mississippi Rule of Evidence 403. ¶52. Rule 403 p rovides: “Although relevant, e vidence m ay be excluded i f i t s p r o b a tive value i s substantially outweighed by the danger of unf air prejudice, conf

usion of the issues,

or m isleading the jury , o r by consider a t i o ns of undue delay , w aste of tim e, o r needless presentation of cum

ulative evidence.” Miss. R. Evid

. 4 0 3

. Apply i ng Rule 403, the trial judge m ust c onduct a b alancing t est to determ ine if the probative value of the evi d e n c e is

“ substantially outweighed by the danger of unf a ir p rejudice[ .]” McGowen v. S tate , 859 So.

3 22d 320, 329 (¶ 29) (Miss. 2 003). On appeal, we review a t rial court’s decision f or abuse of discretion. Stone v. State , 94 So. 3d 1 078, 1085 (¶ 20) (Miss. 2 012); Baldwin v. State , 784 So. 2 d 14 8 , 1 5 6 ( ¶ 2 7 ) ( M iss. 2001). W e do not reweigh the evidence and conduct a new balancing test. “The question on review i s n ot whether this Court would have adm itted the evidence, but whether the trial court abused its discretion in doing so[ .]” Stone , 94 So. 3d

at 1 0 8 5 ( ¶ 2 0 )

. See also B aldwin , 784 So. 2d a t 156 (¶ 27) (on appeal we “m ust sim ply determ ine whether the trial court abused its discretion in weighing t he f a c tors and adm itting or excluding the evidence”). ¶53. F l o w e r s c i t e s F

o s t e r v . State , 508 So. 2d 1 111 (Miss. 1987), i n support of h i s
argum ent. In Foster , the prosecution pr e s e n t e d testim ony that paint chips f ound on the

v i c t i m’ s clothing were sim ilar t o paint chips f ound in the def

endant’s car. Id. at 1117. A chem ist testif

ied that the paint chips were “indistinguishable in color, texture, and inorganic chem ical com

p osition; and that they

theref ore could have had a c om m on origin.” Id. The
Sta t e also presented evidence that the victim ’s stab wound was c aused by a knif e f ound in the d ef endant’s car or one sim ilar to it. Id. The Court characterized the testim ony in Foster

as “ could have” testim ony , which e asily could m islead a jury , and held that the testim ony was
too speculative to be a dm issible. Id. at 1118. T h us, t he Court held that the probative value of the testim ony was substantially outweighed by the danger of m isleading the jury

. Id. at 1117-18. ¶54. W e have dis t i n g u i s h e d Foster in other cases when the risks associated with “could have” testim ony did not o utweigh the probative value. In McGowen v. State , the Court held

3 3testim o ny that a victim ’s phy sical condition likely was caused b y sexual assault did not result

in unf air prejudice or jury conf

u sion. McGowen , 859 So. 2d at 334 (¶ 46). McGowen was distinguishable f

rom Foster because the testim ony i n McGowen “did not em ploy or rely on phrases such a s ‘could ha v e ’ o r ‘ p o s s i ble.’ Rather, [ t he witness] m erely testif ied as to the condition of

[ the victim ’s] body .” Id. at 331 (¶ 36). ¶55. In the i nstant case, Andrews testif ied that the presence o f gunshot residue could result f rom three scenarios, and Andrews’s tes t i mo n y was clear that the residue did not unequivocally

prove that Flowers had f i red a gun: Q: Now, y ou are not telling the jury , are y ou, that f inding a single particle of gunshot residue say s that any i ndividual actually p ulled the trigger on a f irearm , are y ou? A: No, m a’am

. The conclusions y ou c an draw f rom f i nding and i dentif

y ing the gunshot residue on the h ands of the person are one o f three conclusions: That person has discharged a w e apon. That person h as been in close proxim ity to a d ischarg e d w e a p on or that p erson h as handled a n o b

j e ct that has gunshot residue on i t. Those are the three conclus i o n s y ou can draw f r om a positive gunshot r esidue identif ication.

. . . Q: The f

a ct that y ou f

ound that si n g l e particle does n ot bring this jury or us one s tep closer to knowing [ b y ] which o ne of these t hree m eans t hat gunshot residue particle got on Mr. Flowers’s hand; is that correct?
A: Yes, m a’am , that’s correct.
A ndrews’s testim o ny is distinguishable f rom t he testim ony c on t e m p l a t e d i n F

o s t e r . A n d r e w s
set out three events that could result in a person h aving gunshot resi d u e o n his hands. He clearly explained that the gunshot residue did not u nequivocally show that Flowers had f ired

3 4a gun. Because Andrews’s testim ony w as clearly explained, there is little risk that the jury

was c onf used or m isled by the testim ony . As such, t he testim ony was adm issible under Rule 403, a n d the trial judge did not abuse his discretion in adm itting i t

. The issue is without

m erit.
IV. Whether the e videnc e p r e sented a t trial w as i nsufficient to support a finding of guilt bey ond a reasonable doubt, as m andated by t he Fifth and Fourteenth Am e n d m e nts to the U nited States Constitution and S ection Fourteen of the Mississippi Constitution. ¶56. Flowers cl a i ms t h a t t h e evidence produced at trial was i nsuf f icient to support the verdict. He attacks the suf f i ciency of the evidence f

r om m ultiple a n gles: (1) lack of m otive; (2) lack of

evidence that Flowers knew Sim pson kept a gun i n his car; ( 3) lack of evidence that one person, acting alone, com m itted the m u rders; (4) lack o f the ey ewitness credibility ; and (5) lack of probative value of phy s ical evidence. Flowers contends t hat the instant case is one of c ircum stantial evidence rather than direct evidence; theref ore, he a rgues that the State was required to m eet a higher burden of proof

. ¶57. At the end of the State’s rebuttal, Flowers m oved f or judgm ent notwithstanding the verdict ( JNOV). The t r i a l c ourt denied the m otion. “A m otion f or JNOV challenges the legal suf f iciency of the evidence.” Taylor v. State , 110 So. 3d 776, 782 ( ¶ 19) (Miss. 2013) (citing Knight v. State , 72 S o. 3d 1056, 1063 (¶ 24) (Miss. 2011)). W e apply the f ollowing standard when reviewing the suf f iciency of the evidence:
W h en ruling o n a m otion f or JNO V , t h e t r ial c ourt m ust view all credible evidence consistent with the def endant’s guilt in the light m ost f a vorable t o the State. The Court will not disturb the t rial court’s ruling if the evidence s hows bey ond a reasonable doubt that [ the] accused com m itted the act charged, and that he d id so under such circum stances that every elem en t o f t h e of f ense

3 5existed; a nd where the evidence f ails to m eet this test it is i n s u f f i c i e n t to support a conviction, and reversal i s required. T hus, the Court m ust determ ine whether, af

t e r v i e w i n g the evidence in t he light m ost f avorable t o the State, any rational t rier of f

act could have f

ound the essential elem ents of the crim e bey ond a reasonable doubt.
T a y lor , 110 So. 3d at 782 (¶ 19) (internal citations and quotations om i tted). Flowers was charged with f

our c ounts of capital m

urder w ith t he underly ing f e lony o f arm e d robbery

. Thus, the State w as required t o prove that F lowers killed each o f t h e v i c t im s “without the authority of law by any m e ans or a ny m anner . . . [ w]hen done w ith or without any design to ef f ect death, [ while] enga g e d i n t h e c o mmission of the crim e o f

. . . robbery

. . . .” Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014).
A. Burden of Proof ¶58. Because Flowers claim s that the burden of proof – and, c o nsequently , t he suf f iciency of the evidence analy sis – depends on whether the evidence is direc t o r circum stantial, we address b urden of proof f irst. Flowers claim s that t he c ase is based o n circum stantial evidence, not direct evidence. Theref ore, he claim s that the State m u st m eet the f

ollowing burden of proof : It is f undam ental that convictions of crim e c annot be sustained o n proof which am ounts t o no m ore than a possibility or even when it am ounts to a probability , but it m ust rise t o the height which will exclude every reasonable doubt; that when in any essential respect the State relies o n c i r c um stantial evidence, it m ust be such as t o exclude every o ther reasonable h y pothesis than that the contention of the State is true, and that throughout the burden o f proof is on the State. Westbrook v. State , 32 So. 2d 251, 252 (Miss. 1947).

3 6¶59. Flowers’s case, however, is not a case of circum stantial evidence. If an ey ewitness is produced or a s tatem ent f r o m the def

endant is adm itted, the c ase is n ot circum stantial.
Rubenstein v. State , 941 So. 2d 735, 785 (¶ 225) ( Miss. 2006); Ladner v. State , 584 So. 2d 743, 750 ( Miss. 1991). Further, a def endant’s “adm ission of c ulpability

. . . to a t hird party who is n ot a law enf

orcem ent of

f icer constitutes direct evidence of a crim e.” M inor v. State , 831 So. 2 d 1116, 1119 (¶ 9) (Miss. 2002) (citing Ladner , 5 84 So. 2d at 7 50). In Ladner , the
Court held that a c a s e is not based only on circum stantial e vidence even if the only direct evidence is a “jailhouse c onf ession.” Ladner , 5 84 So. 2 d at 750. See also Foster , 508 So. 2d at 1115 (Court held that, without the jailhouse conf ession, t he prosecution’s case would have been entirely

circum stantial), overruled on other grounds by Powell v. State , 806 So. 2d 1069 (Miss. 2001). ¶60. Odell Hallm on, a jailhouse inf orm ant, testif

ied that Flowers had told him that he had

c o mmi t t ed the m

u rders. According to L adner , a jailhouse inf orm ant’s testim ony is considered direct evidence, and when a jailhouse inf orm a nt’s testim ony is present, the case is n ot c ircum stantial. See M oore v. State , 7 87 So. 2d 1282, 1288 (¶ 18) (Miss. 2001) (discussing Ladner , 584 S o. 2d a t 750). F o l l o w i n g the Court’s h oldings i n Ladner and
Moore , the trial j udge f

ound that Hallm on’s t estim ony provided direct evidence of the crim es. W e hold that the t rial judge did not err i n a p p l y i n g the Court’s precedent. Under
Ladner , t he c ase sub judice is n o t one o f circum stantial evidence, and the Westbrook standard suggested by

Flowers does not apply

. B. Sufficiency of the Evidence

3 7¶61. Flowers c l a i ms t h a t t h e e v idence presented a t trial was insuf f icient to support a f inding of g u i l t b e y o n d a reasonable doubt. Flowers asserts that the State f ailed to prove

m otive; that there was a lack of evidence that Flowers knew Sim p son kept a gun in his car; that t he evidence does not support the State’s theory that the m urders were com m itted by a single gunm an; that the ey ewitnesses were not credible; and that the phy sical evidence lacked
pr o b a t i v e v a l ue. First, although Flowers vehem e n tly argues on appeal h is theory that the

num ber of victim s and the placem ent of the gunshot wounds dem onstrate that the m urders

were “alm ost certainly not a one-m an crim e,” that theory was not p resented at trial. Theref ore, Flowers cannot raise it on appeal. Lyons v. State , 7 66 So. 2d 38, 40 ( ¶ 7) (Miss.
Ct. App. 2000) (“Fa i l u r e t o raise this def ense waives the right of the appellant to raise it here.”). ¶62. R e g a r d i n g m otive, Flowers claim s t hat the State f ailed to prove t h a t h e w a s s o aggrieved about being f

iring f rom Tardy Furniture that the f

iring resulted in his m

urdering f our people. To support his contention, Flowers cites his statem ent g iven to the police shortly af ter the m urders. F lowers told investigators that he had worked at Tardy Furniture f or about three day s at the beginning o f J u l y 1 9 9 6

. On his last d ay , Flowers im properly loaded large tractor batteries , a n d t h e y f ell of f the truck and were dam aged. B ertha Tardy told Flowers that t he c o st of the dam aged b atteries would be d educted f rom his pay check. Flowers f a iled to return to work af

ter the incident. Af

ter not reporting t o w ork f or several day s, Flowers called Bertha T a rdy and asked if he s t ill had a job. Bertha Tardy t old Flowers

3 8that he no longer had a j ob and that the m ajority o f his p ay check was “covered up w ith [ the]

batteries.” Flowers never stated that he was angry with Bertha Tardy f

or losing his job. ¶63. Flowers is correct that the State did n ot provide direct evidence of any anger toward the Tardy Furniture em

ploy ees, but the State d id provide evidence that Flowers h ad lost his job at Tardy Furniture and had his pay c heck reduced as a result o f the dam aged batteries. A reasonable j uror could conclude f rom that evidence – a n d it is in t he jury ’s province to draw such i nf e rences if reasonable – that Flowers had a m o tive to rob Tardy Furniture and kill f our

em ploy e es. See Howell v. State , 860 So. 2d 704, 739 (¶ 1 25) ( Miss. 2003) (“It is within the jury ’s province to draw reasonable inf erences f rom f acts based on experience a n d com m on sense.”) (citing Lewis v. State , 573 So. 2d 719, 7 23 (Miss. 1990)). T he S tate’s evidence supported the contention that Flowers had a m otive. ¶64. Next, Flowers contends that the State’s theory hinged on proving that Flowers knew he would f

ind a gun in Sim

p son’s car the m orning o f the m urders , a n d h e claim s the State f ailed to prove that. He cites Sim pson’s testim ony that Flowers did not k now S im pson’s gun was in his car on the m orning of the m urders: Q. Your testim o ny was y ou did not recall agreeing and s a y ing there was no w ay that Curtis Flowers would have known that gun was in the car that particular m orning.
A. No. He, he didn’t know it. Q. He did not know it.
A. He did not know it.

3 9Although Sim pson s tated at that point in his testim ony that Flowers did not know the gun was in his car on the m orning of the m urders, Sim

pson had f

irst testif ied that Flowers had seen the gun i n S i mp s on’s car previously

. In a f ollowup question regarding whether Flowers knew the gun was in his c ar t hat m orning, Sim pson conf irm ed that Flowers had seen the gun in his car bef

ore. Q. So y ou had known [ Flowers] pretty m u ch f orever. A. Yes, sir. Yes, sir. Q. Did he know that y ou had this pistol?
A. Yes, he did. Q. Had he seen it in y our car bef ore? A. Yes, sir.

. . . Q. You were asked

. . . whether o r n ot t here was any w ay he knew the g un was in there that m orning and y our a nswer was that it wasn’t; is t h a t right?
A. That’s right. Q. But y ou w e r e a lso asked h ow [ Flowers] knew y ou kept a gun i n y o ur car, I believe. How did [ Flowers] know y ou had had a gun in y o ur car? Had he seen it in there bef ore? A. Yes, sir, he had. ¶65. Because Flowers p reviously had s een S im pson’s g un in his c a r, the evidence supports the contention that Flowers k new he would f

ind the gun in Sim

pson’s c ar the m o rning of the

m urders. The jury , as “the ultim ate f inder o f f

act,” is responsible f

or considering the

4 0evidence and weighing t he credibility of witnesses, and the Court will not reweigh the

evidence on appeal. Conley v. S tate , 790 So. 2d 773, 807 (¶ 13) (Miss. 2 001) (“W e do not have the task of re-weighing the f acts in each case and going behind the v erdict of the jury

to detect whether the testim ony a nd evidence they chose to believe was o r was not the m ost credible.”). W hether the jury believed that Flowers knew Sim pson kept a gun in his car was one piece of

evidence f

or the jury

to consider. ¶66. Flowers also attacks the credibility of the witnesses who placed him walking between his h om e , Angelica Garm ent F actory , and Tardy Furniture the m orning of the m urder. He

asserts that the $30,000 reward f or i nf orm ation lured the witnesses to testif y . Several witnesses testif

ied t hat they w ere aware a reward was being o f f ered f or inf orm ation. 5 Som e witnesses were not asked about the rew a r d

. T wo o f Flowers’s f act witnesses, Latarsha Blissett and Kittery Jones, testif ied that investigators had im plied that they would r eceive the reward if they provided statem ents im plicating Flowers. The reward was never given. The jury heard testim o ny r e l a t e d to the reward, and F lowers’s counsel argued during closing
argum ent that investigators allegedly had tried to entice witness statem ents by of f ering the reward. The issue was w ithin the jury ’s province of determ ining credibility

. S ee Taylor , 110 So. 3d at 784 (¶ 29). ¶67. Flowers also claim s that testim ony f rom people who s aw him on the m o rning of the

m urders is not credible because the witnesses’ testim ony contains “irreconcilab l e dif f erences.” One dif

f erence Flowers cites is the w itnesses’ descript i o n s o f his clothing.

5 T h e S tate’s w itn esses w h o testif ied th at th ey k n ew ab o u t th e r ew ard w ere: P atricia O d o m , K ath erin e S n o w , Jam e s K en n ed y , M a r y F lem in g , an d C lem m ie F lem in g . 4 1One witness testif ied that F lowers was wearing black windsuit pants; a nother said Flowers had on brown pants; and another thought Flowers wore white shorts. Flowers a lso p oints out that the tim es at which t he w itnesses claim ed to have seen him a t various locations in W inona overlap. F or exam

p le, Jam es Kennedy t estif ied that he saw Flowers in f ront of his hom e at 7:15 a.m . , but Katherine Snow said that she saw Flowers at Angelica at 7:15. Inconsistency in witness testim o ny is an issue of credibility f o r the jury . “It is within the jury ’s province

to determ ine t he weight and credibility to g ive t o the evidence, r esolving a ll conf licts in the evidence.” Taylor , 110 So. 3d at 784 (¶ 29). ¶68. Finally , Flowers c laim s that th e p h y s ical evidence linking him to t he m u rders lacks
p r o b ative value. F irst, he argues that the bloody shoeprint f o und at the scene does n o t
connect him to the crim e , because an o ther person could have com e into the store af ter the

m urders and stepped on the b loody f loor. His assertion l acks m erit. The shoeprint was f rom

a size ten-and-a-half

Fila Grant Hill tennis shoe. Flowers w ore a s i ze ten-and-a-half shoe.
A shoebox f

or size ten-and-a-half Fila Gr a n t H i l l t ennis shoes was f ound in Flowers’s girlf riend’s hom e. W itnesses testif ied that t hey had s een Flowers w earing Fila G rant Hill shoes. Second, F lowers contends that the gunshot residue particle f ound on his hand has no probative value, claim ing t hat it could have com e f rom another s o urce. A s d iscussed above,
Joe Andrews, a f

orensic scientist, testif

ied that the gunshot residue f ound on Flowers’s hand could prove one of three things: (1) h e had discharged a weapon; (2) h e had been in close proxim ity to a discharged weapon; or (3) he had handled an object t hat had gunshot residue

on i t. Although the gunshot residue could have c om e f rom a n other source (f

or exam ple,

4 2c o mi n g in contact with an item at the police station), one a lternative w as that Flowe r s

actually f ired a weapon. Thus, the evidence does have som e probative value. ¶69. The State responds t o Flowers’s claim that the evidence was insuf f icient b y citing the f ollowing evidence linking Flowers to the m urders: Flowers w as f

i red f r om Tardy Furniture and was told he would not receive pay f or his day s worked. F lowers was seen standing next to Sim pson’s car – where the gun used in the m urders was located – on the m orning of the

m urders. Num erou s w itnesses saw Flowers walking to a nd f rom Tardy Furniture on the

m orning of t he m

urders. The s hoeprint f

ound at the crim e scene m atched Flowers’s shoe size and m a tched a pair of shoes he h ad been seen wearing. Flowers t ested p ositive f or gunshot residue. T he only paperwork that had b e e n d isturbed at T ardy Furniture was Flowers’s
pay check and tim ecard. Cash was f ound hidden in Flowers’s headboard af ter the m urders. Hallm on testif

ied t hat Flowers had conf

essed to com m itting the m urders. W hen the evidence is viewed as a whole a nd i n t h e light m ost f a v orable t o the S tate, we conclude that any rational trier of f

act c ould have f

ound that the State had proved the e ssential elem ents of capital m urder bey ond a reasonable doubt. Accordingly , the issue is without m e r it.
V. Whether Flow ers’s right to a fair trial, as g uaranteed by Mississippi law and the Fourteenth Am endm e nt to t h e U nited States Constitution, w as violated b y the prosecution r eferencing f acts not in evidence during t he culpabilit y phase closing argum ent. ¶70. Flowers c laim s that the prosecution i m p r o perly argued f

acts not in evidence during its c ulpability phase closing argum ent. During closing argum ents, attorney s m a y “f airly sum
up t he e vidence,” com m ent o n f acts in evidence, and “ d r aw whatever d eductions and inf erences” seem proper f

rom the f acts. Rogers v. S

tate , 796 So. 2d 1 022, 1 027 (¶15) (Miss.

4 32001); Bell v. State , 725 So. 2d 836, 851 (¶ 40) (Miss. 1998) (citations om itted). W e apply

the f ollowing standard of rev i e w to attorney m isconduct during opening statem ents and closing argum ents: “ whether the natural and probable e f f ect of the im

proper argum ent is to
create u n just prejudice against the accused so a s to result in a deci s i o n inf luenced by the prejudice so c r e a t e d

. ” Sheppard v. State , 777 So. 2d 659, 661 (¶ 7) ( Miss. 2001) (citing Orm ond v. State , 599 So. 2d 951, 961 (Miss. 1992)). ¶71. “W here prosecutorial m isconduct endangers the f a i rness of a trial and the im partial adm inistration of justice, reversal m ust f ollow.” Goodin v. State , 787 So. 2d 639, 645 (¶ 18) (Miss. 2 001) (citing Acevedo v. State , 467 So. 2 d 220, 2 26 (Miss. 1985)). However, we have held that, even if a

prosecutor’s statem ents d uring closing argum ents are inconsistent with

t h e f a c t s , reversal i s not warranted if the statem e nts do not r ise to the l evel n ecessary t o endanger the im

partial adm i n i s t r a t i on of justice and the f airness of the trial. Pitchford v. State , 45 So. 3d 216, 233 (¶ 62) ( Miss. 2010) (quoting Goodin , 787 So. 2d at 645 (¶ 18)).
In Pitchford , t he p r osecutor said that th e d e f e n d a n t “went to the sherif f ’s departm ent the

s a m e m orning of the m

urder and he adm itted it.” Pitchford , 45 So. 3d at 233 (¶ 6 2 )

. T h e testim o ny , h owever, was t hat the def endant “talked to” an investigator

. I d. Despite the inconsistency , the Court held that the statem ent did not result in an unf air trial. Id. ¶72. Flowers claim s that, during closing argum e nt, the p rosecution m i sstated f a cts about: (1) the tim e Sam J ones discovered the v ictim s at Tardy Furniture; (2) Flowers’s m otive; (3) Porky Collins’s response to the photo array s; and (4) the location of the victim s at the crim e

scene. The Sta t e c o r r e c tly asserts that Flowers did not object contem poraneously to the

4 4statem ents during closing a rgum ent. Generally , even in death penalty cases, “ the f ailure to object to the prosecution’s statem ents in clos i n g a r g u ment constitutes a procedural bar.”
Ross I , 954 So. 2d at 1001 (¶ 71) (citing Spicer v. State , 921 So. 2d 292, 309 (Miss. 2006);
William s v. State , 684 So. 2d 1179, 1203 ( M iss. 1996)). However, in som e cases, we have considered the m erits of the argum en t e v e n w h e re the def endant f ailed to object

contem poraneously

. See Ross I

, 954 So. 2d at 1002 (¶ 71) (citing cases). ¶73. In Flowers II

, we recognized plain erro r f o r m i s s t a t e m e nts by the prosecution in closing argum ents. Flowers II , 8 42 So. 2d a t 5 50- 5 6 ( ¶ ¶ 5 2 -74). Theref

ore, because we f ound plain error on a sim ilar issue in Flowers II , we proceed under a plain error analy sis f or
t h e p u rpose of a t horough analy sis. F oster v. S tate , 639 So. 2d 1263, 1289 (Miss. 1994 ) (“def e ndant who f

ails to m ake a contem

poraneous objection m

ust rely on plain error to raise the assignm ent on appeal”) (citing Gray v. State , 487 So. 2d 1304, 1312 (Miss. 1986)). To

reverse under the plain error doctrine, an error m ust have occurred and t hat error m ust have “resulted in a m anif

est m iscarriage of

justice” or “seriously af

f ect[ ed] the fa i r

n e s s , i n t e g r i t

y [ ,]

or public reputation o f judicial p r oceedings.” Conners v. State , 92 S o. 3d 676, 682 (¶ 15) (Miss. 2012) (quoting Brown v. State , 995 So. 2d 698, 703 (¶ 21) (Miss. 2008)).
A. Sam Jones’s Arrival at Tardy Furniture ¶74. Flowers claim s that, during closing argum ent, the State m isrepresented Sam Jones’s testim o ny regarding t he tim eline of events on t he m orning of the m urders. Jones d ied prior to Flowers’s 2010 trial, so his testim ony f rom t he 2007 trial w as read into evidence. Jones initially testif

ied that he arrived at Tardy Furnit u r e between 9:15 and 9:30 a.m . W hen the

4 5State questioned Jones about the tim eline, t he State’s attorney m isstated J ones’s arrival t im e

as being c l oser t o 1 0:00 a.m . The State’s attorney asked, “

. . . when y o u got to the s tore, that

was going t o b e closer on u p to 10 o’clock, wasn’t it? ” Flowers’s counsel objected to leading, but the j udge overruled the objection. However, Jones never responded to the question. During closing argum ent, the State d iscus sed the tim eline and the attorney said:
“Mr

. S a m Jones c am e into the store slightly af ter 10:00 on the m o rning of the 16th and discovered t he bodies.” Flowers c laim s the statem ent w as prejudicial because it skewed the tim eline in the State’s f

avor. Both Porky Collins and Clem m ie Flem m ing testif i ed that they had see n F l o w ers near Tardy Furniture around 10:00 a.m . Flowers c laim s that, if Jones’s testim o ny that he arrived at the store between 9:15 and 9 :30 had been described accurately , it would have raised a question in the jurors’ m inds about what Flowers was doing near the

m urder scene thirty

to f orty

- f ive m inutes af

t er the m urders could have occurred. ¶75. The State responds that, although Jones did not testif y to arriving at the store at 10:00

a . m., other evidence presented at trial s upported that p osition. For exam ple, th e 9 1 1 c a l l reporting the m

urders w as placed at 10:20 a.m ., a n d J o nes testif ied that h e was in Tardy Furniture f

or ten to f if teen mi nutes bef

ore going t o a nearby business to call f or help. So, working backward, the conclusion could be dr a w n t hat Jones arrived at Tardy Furniture closer to 10:00 a.m ., rather than 9:15 or 9:30. Further, t he State claim s that any m isstatem ent

r e l a t i n g to the tim e Jones arrived was harm less error, and the error was cured wit h t h e f ollowing com m ents by

def ense counsel in its closing statem ent: [ Sam Jones] cam e i n and y ou know, his testim ony , I looked it up as they were say ing t hat. His original t estim ony was h e m ight have gotten there, started his

4 6voy age to g o in to – as e arly as 9 :00. He, he thought m a y b e he got there closer to 9:30. But w e know f

rom the police t hat the call cam e in at 1 0:20. And if y ou will rem em

ber , Mr. Jones also told y ou he thought i t m ight h ave been 15 m inutes bef

o re he recovered h i ms e l f enough to go a nd a ctually m ake the report. So there is a bunch of tim e in there.
Sam Jones did not testif

y that he arrived at Tardy Furniture at 1 0:00 a.m . However, a reasonable in f

e r e n c e c o uld be drawn f

rom the other evidence, including the 911 call, that
Jones m ay have arrived closer to 10:00. Def ense counsel’s sum m ary of t he tim eline in closing and the reasonable inf eren ce that could be drawn f rom the evidence as a whole preclude a f

inding of plain error on the issue.
B. Flow ers’s Motive ¶76. Next, F lowers claim s that the f ollowing s tatem ent b y t he prosecutor about Flowers’s alleged m otive was not based on f acts in evidence: The i nvest igators learned pretty quickly when they asked who in the world could have had som e reason, som e m otive, s om e any thing to attack f

o ur people like this.
Have y o u had any

body t hat’s ha d b e e f with t he store? J ust one. W ell, t hat doesn’t m ean he did this though, does it? No. But y ou check that out. You look at h im

. And in the c ourse of deciding w hat, if any thing, Curtis Flowers had to do with this crim e . In his brief

, Flowers claim s that no evidence was presented to s upport the State’s theory that Flowers w as angry about being f ired. To the contrary , the State identif ied s everal f

acts that supported the contention that Flowers “had beef ” with Tardy Furniture: Flowers lost his job day s bef ore the m

u rders. Bertha Tardy deducted the c o st of dam aged inventory f rom Flowers’s pay check. Police Chief John Johnson testif ied that the Tardy

f am ily considered
F l o w e r s a t hreat and t hat “they were concerned about their saf ety d ealing with hi m. ”

4 7Investigator Jack Matthews t estif ied Flower s w a s the o nly e m ploy e e who h ad been f

ired f rom Tardy Furniture in t he last f ew y ears and was the only person with w hom they had had any problem s. Doy l e Sim

pson testi f

ied that he had heard that Flowers had “problem s” with Tardy Furniture. A reasonable inf e rence could be drawn f

rom the evidence that F lowers had ill will toward Tardy Furniture. W e cannot say that the State’s com m ent during closing rose to the level of

plain error. C. Porky Collins’s Response to the Photo Lineups ¶77. In h is third assignm ent of error, regarding alleged m isstatem ents by t he prosecution, Flowers claim s that the prosecutor m isrepre s e n t e d P orky Collins’s response to the photo lineup that i ncluded Doy le Sim pson’s p h o t o g raph. The m i srepresentation w as p rejudicial to Flowers’s def

ense, he claim s, because his def ense was based partially on the theory that
S im pson c om m itted the m

urders. Collins t estif

ied that he did not rem e m ber if he had identif ied Sim pson as one of t he m en he had s een arguing outs i d e T ardy Furniture. Notes taken by a n investigator during the photo array s provided that Collins had said t h a t two of the i ndividuals resem

bled one of the m e n but t h at the “hairline was f urther back.” Investigator W ay

ne M i ller t estif

ied t h a t Collins had pointed to S im pson during the photo
array and said he l ooked like t he p erson, b ut he could not be positive. Collins w as shown a second array

of photos, and he def

initively identif ied Flowers. ¶78. D u r i n g closing argum ent, the S tate’s attorney said the f ollowing abou t C o l l i n s ’ s identif ication: “He said t he g uy ain’t there. They took another six photographs a nd said look

at this second set. He said t hat’s him r ight there.

. . . You know, see if he is in there. No, he

4 8is not. Is he i n the s econd group? Yeah. That’s him right t here.” The State correctly

reiterated that Collins had identif ied F lowers in the second photo array a s o ne of the m en he had seen arguing outside Tardy Furniture. W hile the State’s statem ent that Collins had said “the guy ain’t there” was not an a ccurate representation of Collins’s r e s p o nse to the f irst photo array , the reality is that Collins d id not identif y Sim pson. He said he could not be sure. He pointed t o Sim

pson’s photograph in the f irst a rray and said h e “looked like” the m an he

saw but he was “unable t o b e positive.” However, when Collins saw F lowers in the second
array , he was positive. T he prosecutor’s statem ent was s lightly inconsistent with the f acts, but we cannot say

that the com m ent rose to the level of plain error.
D. Location of the Victim s at the Crim e S cene ¶79. Flowers contends that the prosecutor incorrectly described the location of the victim s
at the crim e scene. The prosecutor s t a t e d during closing argum ent that Sam Jones had discovered “all f

our victim s b a sically lay ing in a pile, in a g roup right at t he f ront counter in Tardy Furniture Store.” The evidence presented at trial, however, showed that three of the

v i ctim s w ere ly ing a f

ew f eet apart f

rom one another, while the f ourth v i c t i m w a s a considerable distance away . Flowers argues that the p rosecutor’s statem ent was p rejudicial because it aided in undercutt i n g t h e theory that the m urders were com m itted by m ore than

one person. Essentially , F lowers claim s that t he idea of f our v ictim s “piled together” aligns with a one-person crim e, whereas victim s spread across a larger area paints the picture o f a
two-m an crim e. The State adm i ts that t he “ly ing i n a pile” statem ent was incorrect, but the
State points out that t hree of the f our victim s wer e l y i n g c l o s e to one another. The State

4 9asserts that the statem ent d id n ot p rejudice Flowers. As previously m entioned, Flowers did

not present the “two-m an crim e ” theory to t he jury

. A nd Flower s d o e s not c l aim that the prosecutor’s s t atem e nt prejudiced him in any other w ay . Apply ing the p lain error doctrine, the sta t e me n t may have been an error, but we c annot say t hat it r esulted in a m anif est

m iscarriage of justice or resulted in an unf air trial. See Conners , 92 S o . 3 d a t 682 (¶ 15).
E. Conclusion ¶80. W e recognize that, in Flowers II , the p r o s e c u t i o n ’ s mi s s tatem ent of f acts during closing argum ent was one basis f or reversal. Flowers II

, 842 So. 2d at 556 (¶ 74). In that appeal, Flowers cited a

pproxim ately f

ourteen a lleged m isstatem e nts. Id. at 555 (¶ 6 8). Taken together, the c um

ulative ef

f ect of the m isstatem e nts, along with several other errors, warranted reversal. Id. at 556, 564 (¶¶ 7 4 , 104). In today ’ s c ase, Flowers cites f our
statem ents m ade during c losing argum ent that he claim s were not supported by the e vidence. The prosecutor’s com m ents regarding Jones’s arrival tim e, Flowers’s having “beef ” with the store, and Collins’s identif ication were suppor t e d b y t he evidence and/or were proper “deductions and inf

erences” drawn f

rom the f a cts. Rogers , 796 So. 2d at 1 027 (¶15); Bell , 725 So. 2 d at 851 (¶ 40). The s tatem ent about the bodies being piled up was a m isstatem ent, but it does not satisf

y the standard f

or plain error. W e reiterate that Flowers f ailed to object

to the statem ents during closing, theref ore, we apply the plain error doctrine on appeal. Plain

error is not present, as we have only one m isstatem ent, w hich did n ot r esult in a m anif est

m iscarriage of

justice or adversely

af f ect the f airness of the proceedings. Conners , 92 So. 3d at 682 (¶ 15). The issue is without m erit.

5 0VI. Whether the j ury selection process violated Flow e rs’s fundam ental

constitutional rights protected by the Six th and Fourteenth Am endm ents, and w hether the trial court erred in deny ing Flow ers’s Batson c laim s. ¶81. F l o w e r s c l a i ms t h a t t h e S t a t e e x e rcised its perem p tory strikes i n a r a c i a l l y discrim inatory way by s triking f ive Af rican-Am erican venire m em bers af ter emp loy ing disparate questioning and c iting pretextual reasons f or the strikes. As previously m entioned, the Suprem e Court issued an o rder granting Flowers’s petitio n f o r a w r it of certiorari and

rem anding the case “f

or f urther c onsideration in light of Foster v. Chatm an , 578 U.S.

_____ , 136 S. Ct. 1737, _____ L. Ed. 2d _____(2016).” Flowers , 136 S. Ct. at 2157. ¶82. An order granting, vacating, and rem anding a lower c ourt d ecision does n ot am o unt
to a f inal determ ination on the m erits. Kenem ore v. R oy , 690 F. 3d 639, 641 (5th Cir. 2012). Such an order “does not bind the lower court to which the case is rem anded; that court is f ree
to determ ine whether its original decision is still correct in light of the c hanged circum stances

or whether a dif

f erent result is m ore appropriate.” Id. at 642. T he Suprem e Court of ten
vacates a judgm ent and rem ands a case when it “belie v e s that the lower court should give f urther thought to its decision in light of an opinion of [ th e S uprem e] Court that (1) cam e af ter the decision under review and (2) chan g e d o r clarif ied the governing legal principles in a way that could possibly alter the decision o f the lower c o u r t

. ” F l o w e r s , 136 S. Ct. at 2157 (Alito, J., dissenting). ¶83. The Court af

f orded Flowers and the State an opportunity to s u b mi t s u p p l em ental brief s o n r em and in accordance with the Suprem e C ourt’s order. Rather than point out how the Court s hould give f

urther thought to its d ecision in light of Foster o r explain h ow Foster

5 1changed or clarif ied the governing legal pr i n ciples in a way that possibly could alter our decision, F lowers essentially re-urges the argum ents he had raised in h is m ost recent appeal. ¶84. Flowers c ontends that “[ f ]rom the beginning,” the S t a t e ’ s lead prosecutor D oug Evans engaged in a “relentless exclusion o f Af rican Am ericans f

r om the juries[ .]” Flowers’s petition f or certiorari to the Suprem e Court raised the f ollowing question: “W hether a prosecutor’s history of a djudicated purposef u l race discrim ination m

ust be considered when assessing the credibility of his prof f ered explanations f

or perem p tory strikes against m inority prospective jurors? ” Flowers a rgues that “the Suprem e Court’s rem a nd f or reconsideration requires this Court to reevaluate t he evidence of pretext in light of the prosecutor’s history of discrim ination and dishonesty .” ¶85. Flowers points o u t that, during his s econd tr i a l , t h e t r i a l court disallowed one of
Evans’s strikes because i t h ad f ound it to be r acially m otivated. Flowers also p oints out that the Cou r t s a i d t h a t F lowers’s t hird trial presented us w ith a s strong a prima facie case of racial discrim ination as we had ever seen in the context of a Batson c hallenge. Flowers III , 947 So. 2d at 935. ¶86. In F

lowers III

, the Court held that t he prosecutor had viol a t e d Batson because the
perem ptory challenge exercised against j uror Vickie Curry w a s c learly pretextual as there

was no basis i n the record f o r two of the grounds prof f ered by the prosecutor. Id

. at 936. Moreover, the third ground w as b a sed on a relationship between Curry a nd Flowers that was “tenuous at best.” Id

. at 9 36. The Court a lso noted the t rial court’s erroneous statem ent that “the State has a right to e xercis e a c h a l l e n g e b ased on som e of the answers f rom the other

5 2jurors as f

ar as their peremp t o r y c h allenge goes.” Id

. The Court also held that the prosecutor’s actions i n s t riking juror Connie Pittm a n were “equally specious, as there [ was]

a bsolutely no e vidence in the record to support the [ the prosecutor’s] prof f ered reaso n f

o r
str i k i n g h e r . ” Id. The C ourt classif ied the s t rikes of three other jurors as “suspect, as an undertone of disparate treatm ent exist[ e d ] i n the State’s v oir dire of [ the other three] individuals.” Id . The Court concluded that, “[ a]f ter c aref ully reviewing the record bef ore this Court and the applicable law, we f ind that the State engaged i n racially discrim inatory practices during the jury s election process and that the trial court com m itted reversible error in upholding t he perem

ptory strikes exercised against Vickie Curry and Connie Pittm an.” Id . at 939. ¶87. A s a n i n i tial m a tter, Foster in n o way involved a particular prosecutor’s history o f adjudicated Batson violations. Rather, the Suprem e Court’s decision in F oster hinged on several apparent m isrepre s e ntations m ade by the prosecution, e v idenced by the record in conjunction with t he prosecution’s troubling jury selection f ile, which had a shocking f ocus

on race. N onetheless, we analy ze F oster on our own to look f or other issues that m ight place our original opinion in Flowers IV in error. ¶88. In Foster , petitioner Tim othy Foster claim ed that t he p r o s ecution used perem ptory challenges to s trike all f

our black prospective jurors qualif ied to serve on the jury in his trial f or c apital m

urder, in violation of Batson

. Foster , 136 S. Ct. at 1742. The trial court denied his claim , and the Georgia Suprem e Court af f irm ed. Id . Foster renewed his Batson claim in a state habeas proceeding. Id

. W hile the habeas proceeding w as pending, Foster obtained

5 3copies o f the f ile u sed b y the prosecution during his trial through the Georgia Open Records
Act. Id. a t 1743-44. ¶89. The prosecu t i o n ’ s j u r y s election f ile was replete with docum ents ref erencing race, i n c l u d i n g : ( 1 ) copies of t he jury v enire list on which the nam es of each b lack prospective juror were highlighted i n green, w ith a l egend indicating that the g reen highlighting “represents Blacks”; (2) a draf t of an af f idavit prepared by an investigator at the request of the prosecutor, com

paring black prospective jurors and concluding, “ If i t com es down to having to pick o n e o f t h e black j urors, [ this one] m ight be okay ”; (3) handwritten notes identif y ing three b lack prospective jurors as “B# 1,” “B# 2 ,” and “ B # 3”; (4) a ty ped list of qualif ied jurors with “ N” (f

or “no”) appearing next to t he n am es of all f ive black prospective j u r ors; (5) a handwritten docum ent titled “def inite N O’s” listing six nam es, includ i n g t h e

nam es o f all f

ive qualif ied black prospective jurors; ( 6) handwritten docum ent titled “Church of Christ” with notation that read: “NO. N o Black Church”; a nd (7) the questionnaires f illed

out by several of t he prospective black jurors, on which each juror’s response indicating his or her race had been circled. I d . at 1744. ¶90. The state habeas court considered the prosecution’s jury se l e c t i o n f i l e but denied relief

. Id

. at 1 745. The Geor g i a Suprem e C ourt likewise denied r elief , concluding that
F o s t e r ’s Batson claim was w ithout m erit because he had f a iled t o d em onstrate purposef ul discrim ination. Id. at 1745. The Suprem e Court granted certiorari. Id

. The Suprem e Court

reem phasized the f

am i liar p r i n c i p le that “the Constitution f orbids striking even a single prospective juror f

or a d iscrim inatory purpose.” Foster , 136 S. Ct. at 1747 (quoting Snyder

5 4v. L ouisiana , 552 U.S. 472, 4 7 8 (2008)). The Suprem e Court also reaf f irm ed the well

s e t t l e d , three part process e stablished in Batson f or determ ining when a strike is discrim inatory : First, a def

endant m ust m ake a p r i ma f

acie showing that a perem ptory challenge has been e xercised on the basis of r ace; second, if t hat showing h as been m a de, the prosecution m ust of f er a race-neutral basis f

or striking the juror in question; a nd third, in light of the parties’ subm issions, the trial court m ust determ ine whether the def endant has shown purposef ul discrim i nation.
Id . (quoting Snyder , 552 U.S. at 476-477). ¶91. The Suprem e Court addressed only B atson ’s third step because it was undisputed that
Foster had dem onstrated a prima facie c ase and that the prosecutors had of f ered race-neutral reasons f or their strikes. Id

. at 1747. The third “step turns on f actual determ inations, and, ‘in t he absence of exceptional circum stances,’ w e def e r to state court f

actual f indings unless we conclude that they

are clearly erroneous.” Id . (quoting Snyder , 552 U.S. at 477). ¶92. Despite uncertainty about the background o f particular jury selection n otes obtained b y Foster, the Suprem e Court ref used t o blind itself t o their existence. Id

. a t 1 7 4 8

. T h e Suprem e C ourt “m ade i t clear that in considering a Batson objection, o r in reviewing a ruling claim ed to b e B a t

s on error, all of the circum stances t hat bear upon the issue of racial anim osity m

ust be consulted.” F

oster , 136 S. C t. at 1748 (quoting Snyder , 5 52 U .S. at 478).
“As [ the Suprem e Court has] s aid in a related c o n t e x t , ‘determ ining whether invidious discrim inatory purpose was a m o t i v a t ing f actor dem ands a sensitive inquiry into such circum stantial evidence of intent as m ay be available.’” Id . (quoting Arlington Heights v. Metropolitan Housing De v . C o r p . , 4 29 U.S. 252, 266 (1977)). “At a m inim um , [ the

5 5Suprem e Court w a s ] com f ortable that all docum ents in the f ile were a uthored by som eone in the district attorney ’ s of f ice. Any uncertainties concerning the docum ents [ w ere] pertinent only a s potential lim its on their probative value.” Foster , 136 S. Ct. at 1748. ¶93. Foster f

ocused hi s B a t

s o n c l a i m o n the strikes o f two b lack prospective jurors, Marily n Garrett a n d E d d i e Hood. Id

. a t 1748. The Suprem e Court a n aly zed the prosecution’s justif

ications f or striking Garrett and Hood. ¶94. The Suprem e C ourt determ ined that the prosecution’s reasoning f or striking Garrett

was “not grounded in f

act.” Id

. at 1748-49. Furtherm ore, t he Suprem e C ourt a lso discovered that the prosecution had m ade m isrep resentations because s everal o f the prosecution’s

r e a s o n s f or why he struck Garrett were contradicted b y the record. Id

. at 1749-50. Th e Suprem e C ourt also determ ined that other explanations given by the prosecution, while not explicitly contradicted b y the record, were “dif f icult to credit” because the prosecution had accepted white jurors with the sam e traits that alleged l y r e n d e r ed Garrett a n unattractive juror. I d . at 1750. ¶95. As f

or the other juror, Hood, t he Suprem e Court said that the prosecution’s principal

reasons f o r striking him “shif

ted over tim e, suggesting that those reasons m a y be pretextual.” Moreover, the Suprem e Court concluded that the prosecution’s j ustif ications could “only be regarded as pretextual” because the justif i cations were “im

p lausible” and “f

antastic.” Id

. at 1752-53 (citing M

iller–El v . Cockrell , 537 U.S. 322, 339 (2003) (holding that credibility can be m easured by , a mo n g o t her f actors, h ow reasonable, or how probable, the State’s explanations are)). As f or an alternative prim ary justif ication f or strikin g H o o d --his

5 6af

f iliation with the Church of Christ--the S u p r e me Court was persuaded by the record dem onstrating t hat Hood’s race was the true m otivation f or the strike, not his religious af f iliation. Foster , 1 36 S. Ct. at 1753. The Suprem e Court noted the prosecution’s m ultiple

m ischaracterizations o f t h e record that other p rospective jurors, who were m em bers of the Church of Chr ist, had been struck. Id

. at 1753. The Suprem e C ourt also said that “[ t]he prosecution’s f

i le f ortif i es our conclusion that any reliance o n H ood’s r eligion was pretextual.” Id

. T he Suprem e Court also determ ined that “[ m ]any of the State’s secondary justif i cations sim ilarly

com e undone when subjected to scrutiny .” I d

. ¶96. The Suprem e C ourt proceeded with its Batson a n aly sis: “[ i]f a prosecutor’s prof f ered

reason f or striking a black p anelist applies just as well to an otherwise-sim ilar nonblack [ panelist ] who is perm itted to serve, t hat i s evidence tending to prove purposef ul discrim ination.” Foster , 136 S. Ct. at 1754 (quoting Miller–El v. D retke , 545 U.S. 231, 241 (2005)). “W ith respect to both Garrett and H ood, s uch evidence is com pelling.” Id. at 1754.
Not only was the evi d e n c e “ c om pelling,” there were “also the shif t ing explanations, the

m isrepresentations o f the record, and the persistent f ocus on race in the prosecution’s f ile.”
Id. “Considering all of the circum stantial evi d e n c e that ‘bear[ s] upon the issue of racial anim osity ,’ [ the Suprem e Court [ was] lef t with the f

irm conviction that the s trikes of Garrett and Hood were ‘m otivated in substantial part by discrim inatory i ntent.’” Id. (quoting Snyder , 552 U.S. at 478, 485). ¶97. The Suprem e C ourt insisted that the contents of t he prosecution’s f ile plainly belied the State’s claim that it had exercised its strikes in a “color-blind” m anner. Id

. In f act, the

5 7Suprem e Court d escribed the n u mber of ref erences to race in the prosecution’s f ile as “arresting.” I

d

. The Suprem e Court held that “the f ocus on race in the prosecution’s f ile plainly dem onstrat[ ed] a concerted ef f ort to keep black prospective jurors of f the jury .” Id

. The Suprem e Court c oncluded that the “prosecutors were m otivated in su b s t a n t i a l part by

race when they struck Garrett and Hood f rom the j ury [ .]” Id

. The Suprem e Court reversed the judgm ent and rem anded t he case f or f urther proceedings b eca u s e “[ t]wo perem ptory strikes on the basis of

race are two m ore than the Constitution allows.” Id

. ¶98. Af ter reviewing F l o w e r s ’ s supplem ental brief s, the only aspect of Flowers V I that Flowers takes issue with as it relates to Foster is that the Court did not e x pressly ref er to the prosecutor’s past Batson v i olations in o u r a n aly sis of Flowers’s B atson claim

. Flowers claim s that t he Court did not f o llow t h e “totality -of

-the-circum s t ances approach” used in
Foster ; rather the Court c o n f i n e d i tself t o evaluating each piece of evidence o f pretext in isolation, af

f ording the prosecutor the b enef it of t he doub t w h e r e t h e evidence was

am biguous. Fl o wers argues “although [ D oug] E vans had distinguished him self as an especially willf

ul and recalcitrant Batson violater , ” the Court “ om itted that well-docum ented history f rom its assessm ent of

the credibility of

his f acially neutral reasons.” ¶99. “[ T]he S tate’s privilege to strike individual jurors t hrough perem ptory challenges is subject to the com m ands of the Equal Protection Clause.” Batson , 4 7 6 U.S. at 89. The Suprem e Court i n Foster reaf f irm ed the well established, three step process f o r determ ining when a strike i s discrim inatory as set out i n B atson

. Foster , 136 S. Ct. at 1747. W hen a def endant challenges a perem ptory strike under B atson , t he def endant m ust f irst “establish

5 8a p r ima

facie case of discrim ination in the selection of jury m em bers.” Thorson v. State , 721 So. 2d 590, 593 (¶ 2 ) (Miss. 1998) (citing Berry v. State , 703 So. 2d 269, 2 94 (¶¶ 94-96) (Miss. 1997) (c i t i n g B a t

s on , 476 U.S. at 96-98)). Then, the burden shif t s to the State to dem onstrate that the juror was struck f or a nondiscrim inatory , or race neutral, reason. Thorson , 721 So. 2d a t 593 (¶ 2 )

. T he def endant then has the opportunity to rebut the State’s

reason. I d. Finally , considering all of the evidence, the trial court m ust determ ine if the State “engaged in purposef

ul discrim ination” or if the strike was m ade f or a race neutral reason.
Id. In other words, the trial court m ust determ ine w hether the race neutral reasons given by the State were credible or m erely a pretext f

or discrim ination. ¶100. The Court has identif ied f ive indicia of pretext tha t s h o u l d b e c o n s i d ered when analy zing the race neutral reasons f or a perem

ptory strike: (1) disp a r a t e t reatm e nt, that is, the presence of unchallenged jurors of the opposite race who share t he characteristic given a s the basis f o r the c hallenge; (2) the f a ilur e t o voir dire as to the challenged characteristic cited; ( 3) the characteristic c ited is unrelated to t he f acts of the c a se; (4) lack of record support f or the stated reason; and (5) group-based traits. Manning v. State , 765 So. 2d 516, 519 (¶ 9) ( Miss. 2000) (quoting M ack v. State , 650 So. 2d 1289, 1298 (Miss. 1994)). ¶101. Foster d id not alter the great def erence given to trial judges. The third step of Batson “turns on f

actu a l d e t e r

m i n a t i o n s, and, ‘in t he absence of e xceptional circum stances,’ we def er
to state court f

actual f indings unless we conclude that they are clearly

erroneous.” Foster , 136 S. Ct. at 1747 (quoting Snyder , 552 U.S. at 477). W e give great d ef erence to the trial
court’s determ inations under Bats o n and will reverse only if the trial court’s decision is

5 9clearly erroneous or against the overwhelm ing weight of the evidence. Berry v. State , 802

So. 2d 1033, 1037 (¶ 9 ) ( M iss. 2001); Thorson , 7 21 So. 2d at 593 (¶ 4). “ The t rial court has

a p ivotal role in evaluating Batson claim s. “ S nyder v. Louisiana , 552 U.S. 472, 4 77 (2008).
W e have expounded on the standa r d o f r eview af f o rded to trial judges regarding Batson f indings as f

ollows:
W h en a Batson issue arises, the trial judge acts a s the f inder of f act. Berry v. State , 703 So. 2d 269, 295 (Miss. 1997).

. . . The race neutral explanations m ust be viewed in the light m ost f avorable to the trial cou r t ’ s f i n dings. Id. Trust is placed in a trial judge to determ ine whether a discrim inatory m otive d r i v e s the reasons g iven f or striking a potential juror. See W ebster v. Stat

e , 754 So. 2d 1 2 32, 1236 ( Miss. 2000). The dete r mi nation of discrim inatory intent will likely turn on a trial judge’s e valuation of a presenter’s credibility and whether an explanation should be believed. Batson , 4 7 6 U

. S

. at 98[ .] Thus, t rial courts are given great def erence in their f

indings of f

act surrounding a Batson c h a llenge. Lockett v. State , 5 17 So. 2d 1346, 1350 (Miss. 1987).

.

. . Walker v. State , 815 So. 2d 1209, 1215 (¶ 12) (Miss. 2002). ¶102. “ S t e p t hree of the Batson inquiry involves an e v a l u a t i o n o f t h e p r o s e c u t o r ’ s credibility .” Snyder v. Louisiana , 5 52 U.S. 472, 477 (2008). “[ T]he best e vidence of discrim inatory i ntent of

ten will be the d em eanor of t h e a ttorney who exercises the challenge[ .]” Id

. Moreover, race neutral reasons f or p erem ptory challenges of

ten invoke a juror’s dem e anor, m aking t he trial court’s f irsthand observations of even greater im portance. Id

. The t rial court m

ust evaluate n ot only w h ether t he p rosecutor’ s d em e anor belies a discrim inatory i ntent, but also whether the j uror’s dem eanor credibly can be said to have exhibited the basis f

or the s trike attributed to the juror. Id

. The trial court’s “determ inations of c redibility and dem eanor l ie peculiarly within a t rial judge’s p rovince[ .]” Id

. (citations and

6 0quotations om itted).

¶103. “[ I]n considering a Batson objection, or in reviewing a ruling claim ed to be Batson

error, all o f the circum stances t hat bear upon the issue of racial anim osity m ust b e consulted.”
Foster , 136 S. Ct. at 1748 (citing S nyder , 552 U .S. a t 4 78). On t he s am e note, “determ ining whether invidious discrim inatory purpose was a m otivating f a c t o r d em ands a sensitive inquiry into such circum stantial evidence of intent as m ay be available.” Foster , 136 S. Ct. 1737, 1748 (citing Arlington Heights , 429 U.S. at 266). ¶104. The Montgom ery County clerk sum m oned a special venire of 600 potential jurors f or Flowers’s sixth trial. T h e i n i t ial venire consisted of f orty -two p ercent Af

r ican Am ericans and f if ty -f ive percent whites. 6 Af

ter f or-cause challenges, the venire consisted of twenty -eight percent A f

rican Am ericans and seventy

- two percent whites. During jury selection, the State accepted t he f

irst Af r ica n - A me r ican juror, then exercised six p erem ptory strikes, f

ive of which were against Af

rican-Am erican venire m e m bers. At the p o i n t w hen f ive Af rican
Am ericans w e r e s t r uck by the State, the t rial court f ound that a prima facie case of discrim ination existed. The State then provided race neutral reasons f or the f ive s t rikes, and Flowers’s counsel of

f ered rebuttals f

or t he State’s reasons. Ultim ately , t he trial court f ound that the State’s reasons were credible. ¶105. Essentially , Flowers is asking the Court t o reevaluate the credibility of Evans’s race neutral e xplana tions f

or striking Af

rican Am ericans i n the sixth trial. However, as we explained in Flowers V

I , “the d eterm i nation of discrim i natory intent will likely turn on a trial

6 The rem aining venire m em bers did not identif

y their race on the juror questionnaire. 6 1judge’s evaluation of a presenter’s credibi l i t y and whether an explanation should be

believed.” Flowers V

I , 158 So. 3d at 1047 (citing Batson , 476 U.S. at 98). ¶106. Here, the trial c ourt was asked on several occasions to consider historical e vidence of
Batson violations com m i tted by Evans in previous trials of the case. F lowers’s counsel even asked the t rial court to preclude Evans f rom m aking perem

p tory strikes e ntirely based on his history of Batson violations in the case. Specif ically , Flowers’s counsel urged: And I w ould renew the m otion with r espect to

- - and I, I would n o w r e - u r g e this, w hen I’ve not p reviously urged. W e had i n the last trial urged that should this jury

- - t h at t he p rosecutor be, b e precluded f rom m aking perem

ptory strikes because so m

uch of this -- b ecause there is t he h i s t o r y that has been f ound b y the Mississippi Suprem e C ourt of racial discrim ination in jury selection with respect t o this case by this prosecution. It’s happened actually

-- the predecessor in Flowers II , in Harrison County , f

ound a Batson violation and ruled a strike by the S tate. So that in two p roceedings and on the basis of what has been a persistent pattern of sim ply , y ou know, a sking things that are clearly , if not f latly race or at least race-based[ .] The trial court responded to Flowers’s counsel’s request: And as f ar as t h e m otion to prohibit the State f r om using perem

ptory challenges, there is no basis f or that. Absolutely n o n e . I f t he State looks at potential jurors and f

eels that they have r i g ht reasons f or u sing perem

ptory challenges, that is their right. That is each sides [ sic] g ets to m ake perem ptory challenges. But because Flowers III was reversed on Batson is certainly no grounds f or say ing that they should now be denied t he right to use perem ptory

. The Suprem e C ourt of this State has certainly never said that on a retrial y ou could not use perem

ptory challenges, nor has the United States Suprem e Court ever said that. And so y ou’re pulling that m otion tota l l y o u t o f thin air and without any

basis in law or in f

act f o r m aking it. So it’s denied. ¶107. Flowers’s counsel c ontinued t o argue the history of B atson violations in support of the Batson claim

at trial: And we think it is, theref

ore, pretextual specif

ic a nd particularly in light under

-- of the history of race discrim ination in j u r y selection in this district and in

6 2this particular case f ound by the Mississ i ppi Suprem e Court in State v. Flowers af

ter the third trial, the f

irst one in this district. Indeed, the t rial court was presented with and r ejected Flowers’s p r e s e n t argum ent that he had advanced at trial. Flowers argued to the trial court: And I think that that is in Flowers III , what t he Suprem e Court of Mississippi said w as t h at when y ou a re looking at Batson , y ou look at t he t otality of the c ircum stances and y ou go bey ond little excuses. And that the da n g e r , certainly , in F

lowers III is to devolve -- f or the Batson challenging process, to devolve i nto a n ef

f ort of uncovering and com ing up with f acially neutral reasons that a re m erely a m ask f o r actually racially discrim inatory reasons, the desire t o bleach o r -- I s uppose, if it w e r e the other way around darken or m ake m ale or m ake f

em ale, the jury and that the Court, considering the totality of the circum stances, c annot sim pl y e x p r e s s t his distinction. This is based on the 14th Am endm ent Equal Protection Clause. And there is a huge body of equal protection civil litigation. It is ref erred to by t he United States Suprem e Court in Snyder , the m ost recent case in which a verdict was reversed on Batson in the United States Suprem e Court. And basically , the situation is t hat y o u m ay go behind the f

a cial neutrali t y if a ny

thing in the record suggests that one or m ore of the r easons m ay be either unconnected and related to what is really a m aterial issue i n this c ase and/or appears to have been pursued with m o re vigor in an attem

pt t o uncover som e e xcuse t hat is of less than universal relevance.
A g a i n, Flowers’s counsel ensured that the trial c ourt consider the totality o f t h e circum stances, including historical evidence of racial discrim ination by the district attorney

. Again, we would cite the totality of t he circum stances a nd t he apparent cherry picking of the Af

rican-Am erican jurors f

or scrutiny and attention. And in light o f t he history of racial discrim ination by this district attorney ’s of f ice in t h i s district, we would say the totality of the circum stances m akes this a pretext f or discrim ination and attem pt to look f

or race-neutral reasons f or rac i a l ly m otivated perem

p tory striking. ¶108. The trial court not only considered Flowers’s counsel’s argum ent in its consideration of the totality of the circum stances; the Flowers Court also considered o ther circum stances showing that Evans did n ot have d iscrim i natory intent. The trial court certainly considered

6 3c i r c um stances surrounding the previous t rials as evidenced by its response to Flowers ’ s

Batson c laim : But y ou know f

ull well f rom past experi e nces in this county because of the num ber o f p e o p l e t h at know Mr. Flowers, they know his parents, they know his brother, they know his sisters, and he I m ean he has g ot a large n um ber of siblings. And all of those p eople y ou know, I m ean he is s o well-known h ere that, y ou know, y ou’ve g ot a num ber o f A f r i can-Am ericans t hat say I know him

. I can’t be f

air. I know these people. I can’t sit in judgm e nt of their son. And t here is there is no way to avoid that if this case is tried in this county

. Because t h is is the sam e ty pe things that, that occurred in the previous trials w h ere he had so m a ny people t hat knew him

. You know, I don’t -- I hadn’t kept a running count of any thing in here but, y ou know, there is nothing that has -- that has -- n o discrim ination that’s occurred that has caused t his, what y ou call, statistical a

bnorm ality now. It is strictly because of the p rom inence of his f a m i ly

. ¶109. The pri o r a d

j u d i c a t i o n s of the violation of Batson do not underm ine Evans’s race neutral r e a sons as the despicable jury selection f i le in Foster had u nderm ined the prosecution’s r ace n eutral e xplanations. W e c annot s ay that the exceptional circum stances discussed in Foster are present in today ’s case so as to prevent the Court f rom def erring to the trial court’s f

actual determ inations. Moreover, we cannot conclude that the trial court’s f actual f indings were clearly

erroneous. ¶110. Flowers’s post-rem and brief s spend f a r m ore tim e r e-urging the a rgum ents f rom his original appellate brief than addressing Foster i tself

. Accordingly , Flowers appears to rely

on M iller-El v. Dretke , 545 U.S. 231 (2005) ( Mil l e r - E l I I ) instead. In Miller-El II , the Suprem e C ourt held “the appearance of discrim ination [ was] conf irm ed by widely known evidence of the general po l i c y o f t he Dallas County District Attorney ’s Of f i ce to exclude black venire m em

b ers f rom juries at the tim e Miller-El’s j ury was selected.” Id

. a t 253. The

6 4Suprem e Court said, “ [ w]e k n[ e]w that f

or decades leading u

p to the tim e this case was tried prosecutors in the Dallas County of f i ce had f ollowed a s pecif

ic policy of sy stem atically excluding blacks f

r om j uries[ .]” Id

. at 263. The evid e n c e o f a specif ic p olicy of past discrim ination in M

iller-El II signif

i cantly dif

f ers f rom the evidence bef

ore the Court. The
Court does not f

ind Evans’s past two adjudicated Batson violations overcom e the d ef erence owed t o the trial judge’s f actual f indings on which the Court’s a f f irm ance r elies. The Court does not have evide n c e b ef ore it of a sim i lar p olicy of the district attorney ’s o f f ice or of a specif ic p r osecutor that was so evident in Miller-El II. M i l l e r - E l I I , 545 U.S. at 266 (“If
any thing m o re is needed f

or an undeniable explanation of w hat was going on, history supplies it. The prosecutors took their c u e s f r om a 20-y ear-old m anual o f tips on jury selection, as shown by their notes of the race of

each potential juror.”). ¶111. W e turn t o address Flowers’s argum ents raised on appeal. Flowers cla i ms t h a t the
State e x ercised its perem ptory s trikes in a racially discrim i natory w ay by : (1) disparately questioning Af

rican-Am erican jurors as com p ared to white jurors; ( 2) responding dif f erently

to Af rican-Am er i c a n j urors’ voir dire answers a s com pared to a nswers o f white venire

m em bers; and (3) m ischaracterizing the voir dire responses of Af rican-Am erican jurors. W e do n o t ignore the historical evidence of racial discrim ination i n t h e p r e v ious trials in our consideration of Flowers’s argum ents. However , t h e h i storical evidence of past discrim ination presented to the t rial court does not alter o ur analy sis, as set out in Flowers
V I. A. Disparate Questioning

6 5¶112. Flowers claim s that the questioning of A f r i c a n - A m erican and white jurors was so “starkly dif

f erent” that the q u e s t i o n i ng led to purposef ul discrim ination. F irst, Flowers

asserts that the State asked potential Af rican-Am er i c an jurors m o re questions during individual voir dire than potential white j urors. Flowers claim s that all Af rican Am ericans who were struck by the State were asked m ore than ten questions. T h a t s tatem ent is not supported by the record. For exam ple, the State asked C aroly n W right, an Af

rican Am erican against whom t he State exercised a p e r e m ptory strike, only three questions. However, overall, the State d id ask m ore questions of Af r ican-Am erican jurors than of potential white jurors. T h e State r esponds that m ore questions were asked o nly when a potential juror’s

answers t o voir dire questions were u n c l e a r or needed f urther e l aboration. Disparate questioning is evidence of purposef ul discrim ination. Miller-el v. Cockrell , 537 U.S. 322,
344 (2003); Manning , 7 6 5 So. 2d at 5 20 (¶ 15). However, evidence of disparate questioning alone is not dispositive of racial discrim ination. Hughes v . State , 90 S o. 3 d 613, 626 (¶ 37) (Miss. 2012); Manning , 765 So. 2d at 520 (¶ 15); Berry , 802 So. 2d at 1039 (¶ 20). ¶113. Second, Flowers claim s that the S tate did not question white venire m em b ers about

t h eir relationships with def ense witnesses even though Af rican-Am erican jurors w e r e extensively questioned about sim ilar relationships. T o support his argum ent, F lowers claim s that, during voir dire exam i nation by the trial court, f our white venire m em

bers – Larry Blay lock, Harold W aller, Marcus Fielder, and B obby Lester – stated that they knew def ense witnesses. The record reveals that the potential jurors knew m em bers of law enf

orcem ent, the Tardy f

am ily , a nd the victim s; but they did not know m em bers of the Flowers f

am ily

. Of

6 6the white jurors w ho s urvived f or-cause c hallenges, f

ive knew m em

bers of Flowers’s f

am ily

. Four of them knew only

one m e m ber of Flowers’s f

am ily ; the State did not f

ollow up with them

. Pam ela Chesteen k new Flowers’s f

ather, m other, sisters, and a c ousin. The State did

not question Chesteen a

bout the relationships during voir dire; however, the trial court asked Chesteen whether the r elationships would af f ect her ability to serve as a juror, and she said they would not. S everal Af rican-Am erican venire m em b ers w ere q u estioned about their relationships with Flowers’s f am i ly , as will be discussed in detail in the f o llowing section. However, the State did not question all potential Af r ican-Am e rican jurors about their relationships with persons i nvolved i n the case. F or exam ple, Alexander Robinson, an Af rican Am erican who was selected to be a j uror, stated that he knew F lowers’s brother, but the State did not question Robinson about that relationship. ¶114. The State’s a ssertion that e laboration and f ollowup questions were needed with m ore of the Af rican-Am erican j urors is supported by the record. M ost of the f ollowup questions pertained t o the potential juror’s knowledge of the c a se, whether they could im pose the death penalty , a nd whether certain r elationships would inf luence their decision or prev e n t t h em f rom being f

air and im partial. The jurors who had heard little about the case, who said they would n ot be inf

luenced by w hat t hey h ad heard, and who s aid they would not be inf luenced by relationships were asked t he f ewest questions. The j urors who k new m o re about the case, who had personal relationships with Flowers’s f am ily m em

bers, who said they could not be im p artial, or who said they

could not im

pose the death penalty were asked m ore questions. Those issues are appropriate f or f ollowup questions.

6 7¶115. W e have held that voir dire “is conducted u nder the superv i s i o n o f t he c ourt, and a

great deal m

ust, of n ecessity , be lef

t to its s ound discretion.” Howell v. State , 8 60 So. 2d at 726 (¶ 67) (quoting Ballenger v. State , 667 So. 2d 1242, 1250 (Miss. 1995)). “The trial court has b road discretion in passing u pon the extent and propriety of quest i o n s a d d r e s sed to prospective jurors.” Howell , 860 So. 2d at 727 (¶ 70) (quoting S tevens v. S

tate , 806 So. 2d 1031, 1062 (¶ 140) (Miss. 2001)). The trial judge participated in voir dire, asking his own questions when n ecessary . F lowers was given am p le oppo r t u nity to question jurors, rehabilitate jurors, and m a ke challenges. That he had these opportunities is evidence of a f air and proper jury selection p r o c e s s . See Howell , 860 So. 2d at 726 (¶ 69); Stevens , 806 So. 2d at 1062 (¶ 139). There is no evidence of d iscrim ination based on t he num ber o f questions asked alone. B. Disparate Treatm ent of Individual Venire Mem bers ¶116. Flowers also contends that the State: (1) responded dif f erently to Af

rican-Am erican jurors’ voir dire answers com pared t o the a n s wers of white venire m em bers, and (2)

m ischaracterized the v oir dire responses of A f rican-Am erican jurors. For the purpose of our analy sis, the two issues are a ddressed together by discussing the Af rica n - A me r ican venire

m em bers who were struck f

rom the venire b y the S t a t e’s use of perem ptory strikes. W e address the State’s race neutral reasons f or striking the jurors, as well as Flowers’s argum ents regarding each, which i ncludes his contentions that the State m ischaracterized the voir dire responses of

the jurors and responded dif f erently to them

. 1. Caroly n Wright

6 8¶117. The S tate gave the f ollowing reasons f

or i ts perem

ptory strike of Caroly

n W right: (1) she knew se v e r a l def

ense witnesses; (2) she was sued by Tardy Furniture f or an overdue account; and (3) she had worked with Archie Flowers Sr. at W alm art. At the Batson hearing, Flowers of

f ered rebuttals f

o r the State’s reaso n s , but the trial court held that the State’s

reasons f or striking W r ight were race n eutral. T he trial court sum m ed up its f inding by stating: If the only reason the State of f ered w as that she knows som e of these def ense witnesses, t hen t here m ight be som ething there. But the f a ct i s knowing these def ense witnesses that y ou’re intendi n g t o c all, plus the f act that Tardy Furniture had to sue her, plus the f act that s h e w o r k ed with Archie, in m y m ind, creates race-neutral reasons f or striking her. ¶118. One rea s o n t h e S t a t e gave f or striking W right was that she k new m ultiple def

ense witnesses. In f

act, W right knew a tot a l o f thirty

- f our people w ho were involved with Flowers’s case. F lowers argue s t h a t s t riking W right because she knew several potential witnesses was pretextual because the State did not strike white jurors who were acquainted with m u ltiple people involved in the case. S pecif ically , F lowers points to P am e l a Chesteen, who knew thirty -one p e ople involved in the case; Harold W aller, who knew eighteen people involved in the case; and Bobby Lester, w ho knew twenty -seven p eople involved in the case. W e r ecognize that one o f the indicia of pretext is “the presence of unchallenged jurors of the opposite race who share the characteristic given as the b asis f or the challenge.” Manning , 765 S o. 2d at 519 (¶ 9). However, the num ber of acquaintances w a s n o t t h e sole reason given by the State, so the basis is not an autom atic showing o f p retext. Hughes , 90 So. 3d

at 6 26 (¶ 37) (“W here m

ultiple reasons lead to a perem ptory strike, the f

act that other jurors

6 9m ay have som e o f the individual characteristics of the challenged juror does not dem onstrate

that the reasons assigned are pretextual.”). ¶119. The second reason t he State gave f or striking W right was that she had been sued by Tardy Furniture. A s a rebuttal to t hat reason, Flowers alleged at the Batson hearing that the
State d id not question white jurors about t heir accounts at Tardy F urniture. H o w e v e r , the

court h ad asked all jurors during group voir dire i f they had accounts at Tardy Furniture and if they had b een sued by

the store. The court f

ound that the basis was race neutral because

none of the white jurors had been sued b y Tardy Furniture. On appeal, Flowers claim s that the Sta t e mi s c h a racterized W right’s litigation with Tardy Furniture by claim ing that her
wages had been garnished as a result of the litigation. N o t h i n g in the record supports the contention that W right’s wages w ere garnished. However, that does n ot change the f act that being sued by Tardy Furniture was a race neutral reason f or striking W right. Prior litigation is a race neutral reason f

or a preem

ptive strike. See Webster v. State , 754 So. 2d 1232, 1236 (¶¶ 9-11) (Miss. 2000) ( f

i nding that potential juror’s com pany being sued by def

ense attorney in previous a nd u nrelated litigation was suf f icient race neutral reason f or perem ptory strike). ¶120. The State’s t hird reason f o r striking W right was that s he worked with Archie Flowers
Sr. at W alm art. At the Batson hearing, F lowers rebutted that reason by com paring W right’s working relationship with A rchie to Chesteen, a t eller a t a local bank where m em b ers of the Flowers f a m ily were custom ers. The t rial court f ound this to b e a r a c e n eutral reason and f ound that Wright’s working relationship with Archie was distinguishable f rom the prof essional relationship Chesteen had with the F lowers f am ily

. Chesteen worked at a local

7 0bank in W inona and stated that she knew Archie Flowers Sr., Lola Flowers, and Flowers’s

sisters f rom her work at the bank. W e agree with the trial judge that a coworker relationship and bank em

ploy ee/custom er relationship a r e distinguishable. Further, the trial c o urt stated that t he W inona W alm art was t he “sm allest W al-Mart

. . . in existence” t h at h e knew of , im p ly ing that W right and Archie c ertainly had k nown each other. T he trial court also stated that no white jurors had reported working at W alm art with Archie. Being acquainted with the def endant’s f am ily is a r ace n eutral reason f or striking a juror. Manning v . State , 735 So. 2d 323, 3 40 (¶ 32) (Miss. 1999) (“W e have condoned a perem p tory challenge against a juror who was acquainted with the def e ndant’s f am i ly .”) (citing Porter v. State , 616 So. 2d 899, 907 (Miss. 1993)). ¶121. Flowers’s c laim that the State provided “no convincing reasons” f or striking W right is sim p ly unf ounded. W right h ad worked with Flowers’s f ather, she knew thirty -two of the potential witnesses, and she had b e en sued b y Tardy Furniture. W e also note that, on her juror questionnaire, W right wrote t hat she previously had served as a juror in a crim inal case involving the “Tardy Furniture trial.” The State had m ultiple, c r edible, race n eutral reasons f or striking W right, and the trial judge did not err in deny ing Flowers’s Batson challenge as to the juror. 2. Dianne Copper ¶122. The State cited the f ollowing reasons f

or i ts exercise of a perem

ptory s trike of

Dianne Copper: (1) she had worked with F lowers’s f ather and s ister; (2) she knew several m em bers of the Flowers f

am ily ; (3) she said she “ leaned toward” Flowers’s side of the case d ue to her

7 1relationships with the Flowers f am ily ; and (4) she k

new several def

ense w itnesses. Flowers

o f f ered rebuttal to the State’s reasons by again asserting that the State had not chall e n g e d white jurors connected to people i nvolved in the case. He also c l aim ed t hat t he State did not
attem pt to rehabilitate Copper af ter she said leaned toward Flowers. T h e trial court f ound the S t a t e ’ s reasons to be race neutral, concluding that Copper’s relationships were distinguishable f

rom those of the white jurors who were not challenged and recognizing that other jurors had not said they f avored Flowers as Copper did. ¶123. During voir dire, C opper was questioned about h er relationships with m em bers of the Flowers f am ily , and she revealed the f ollowing: Copper once l ived in t he sam e neighborhood

as t he Flowers f

am i ly

. She had worked with F lowers’s sister, Cora, a t Shoe W orld f or “a
y ear or two.” She also had worked with Flowers’s f ather f or “one or two y ears. ” C o p p e r testif i ed that she knew Flowers’s m o ther, Lola, and his brother, Arch i e Jr. She also knew

m ore than twenty other potential witnesses. A ltogether, Copper knew a t least thirty people involved in the case. The State asked Copper about her com m ent that knowing so m any people connected to the case would m a ke her lean toward Flowers: Q. And I think it was y esterday and m y notes show t hat y ou said that the f act that y ou know all of these people c o uld a f f e ct y ou and y ou think it could m ake y ou lean toward him because of y our connection to all of these people. Is that correct?
A. It – it’s possible. Q. Okay

. That would be som ething that would be entering into y o ur m ind if y ou were on the jury , wouldn’t it?
A. Yes, sir.

7 2Q. And it would m a ke it to where y ou couldn’t com e in here and, j ust with an open m ind, decide the case, would it?
A. Correct. At that point, Flowers’s counsel attem pted to rehabilitate Copper: Q.

. . . W hat I ’m try i ng to f ind out is ju st a s y ou could put aside all the inf o r m ation y ou heard bef

ore a b out this c ase, could y ou not also put aside the f

act – if y ou got picked as a juror, put aside the f act that y ou have m et Mr. Flowers, that y ou know som e other people in these cases a n d b e f a i r to the Tardy s, the Stewarts, the Goldens, and Rigby s, an d m a ke whatever decision or vote that y ou’re going to m ake based on the evidence and the evidence only . Could y ou do that?
A. I f eel like I could. But, y ou know, it – Q. Is what y ou’re say ing –
A. Of c ourse, it would m ake m e, y ou know, f eel uncom f

o rtable. But if I had to do it, y o u know, I got to do what I got to do. Q. Okay . So y ou’re say ing that – thank y ou. You’re say ing that y ou’ll be uncom f ortable. You’d pref

er not t o

– I get the im

pression y ou’re say ing that y o u ’ d r a t h e r not be a juror. But if y ou g ot picked to be o ne, y ou would take the responsibility seriously , a nd y ou would f ollow the law and the r ules that the Court gi v e[ s] y ou, and y o u would put aside any t hing that y ou are required t o put aside and m a ke y our evidence and m a ke y our vote based on just the evidence y ou hear in the courtroom

. Is that f air to say ? A. Yes, sir. That’s correct. Clearly , Copper knew several m em bers of the Flowers f

am ily a n d she w a s u n c o m f ortable serving on the j ury . T h a t r e a s on alone is a suf f icient race neutral reason to s trike her. Manning , 735 So. 2d at 340 (¶ 32). Further, we have recognized “living near the def endant”

a s a r a c e neutral reason f or a perem

ptory strike. Lockett v. State , 517 So. 2d 1 346, 1 3 5 6 (Miss. 1987) (citing Taitano v. State , 358 S.E.2d 590 (Va. App. 1987)).

7 3¶124. On appeal, Flowers claim s th a t the State m ischaracterized Copper’s statem ent that she

“leaned toward” Flowers due to her relationship with the Flowers f a m ily , but a reading of the record shows that the State correctly described her voir dire testim ony . T he State m ade the f ollowing argum ent during the Batson hearing: And the r eason I point that out, it’s not just that s h e knows t hose witnesses, but that because of knowing the f am ily and working with those two f am i ly m em bers, she stated that that relationship would inf l uence her. She later said that

– well, she could have an open m ind. And then s he was equivocal back and f orth. But b ecause of all those relationships, she clea r l y s t a t e d, when I asked her, that t hey would inf luence her. S h e c o u l d not have an o pen m ind, and she was leaning toward the Def e n dant’s f am ily

. The State’s argum ent accurately ref l e c ted Copper’s t estim o ny , including the def ense’s
attem pt to rehabilitate h er. Even m ore, def ense counsel asked Copper if she would “rather

not be a juror,” and she agreed. The Court has recognized that reluctance to s erve as a juror is a race neutral basis f

or a perem

ptory strike. H

ughes , 90 So. 3d a t 626 (¶ 3 6) ( citing Lynch v. State , 877 So. 2d 1254, 1274 (¶ 59) (Miss. 2004)). ¶125. Flowers claim s that the State’s strike of Copper was pretextual b ecause white jurors who knew several def

ense witnesses were not s truck. As m entioned above, one i ndicium of pretext is “ the presence of unchallenged jurors of t he oppo s i t e r a ce who share the characteristic given as the bas i s f o r t h e challenge.” Manning , 765 So. 2d at 519 (¶ 9). However, like W right, the n um ber of acquaintances was not the sol e r e a son given by the
State f or s triking Copp e r , s o t h e i n s tant basis is not an autom atic showing of pretext. See Hughes , 90 So. 3d at 626 (¶ 37). Again, Flowers c laim s that the State did not provide any convincing reasons f

or striking Copper and, a gain, Flowers’s claim is unf ounded. Copper

7 4lived in the sam e neighborhood as the Flowers f am ily , knew m

ultiple m em

bers of the f

am ily , and had worked with Flowers’s f ather and sister

. S h e a d mi t t ed that, in l ight of the relationships, she l eaned toward Flowers in the case. Copper also said that she would rather

not serve as a j uror. All of the given reasons are race n eutral reasons f or a p erem

ptory strike. The trial court did not err in deny i ng Flowers’s Batson challenge as to Copper.
3. Flancie Jones ¶126. The State gave several reasons f or the perem

ptory s trike o f Flancie Jones: (1) she was related to Flowers; (2) she was late f o r jury selection twice; (3) she provided inconsistent

statem ents on her view of the death penalty ; and (4) she lied on her j uror questionnaire in an
attem pt to get out of jury service. The trial court f ound that t he State had provided suf f icient race neutral reasons f

or the strike. ¶127. In response to the State’s f i rst basis – that Jones is related to Flowers

– Flowers claim s that the State m ischaracterized and exaggerated Jones’s r elationship with Flowers. The State described the relationship between the two as f ollows: “She is r elated to the def endant. She adm itted that she was related – she was a cousin – or t he d ef endant’s sister, Angela Jones, is her niece. So she said s he guessed she m ust be related t o him

. W ell, I guess so. He would be her nephew.” During voir dire, Jones said t hat Flowers w as her “sister-in-law’s sister’s
son.” She a l s o s a i d t h at F lowers’s sister was her niece. Jones’s statem e nts regarding her relationship t o Flowers were c o nf using, but t he trial court s eem ed to understand and concluded that J ones had m ore than one f am ilial c onnection to Flowers. T he t r i a l c o u r t stated:

7 5She said t hat Angela W ard Jones was m a rried to Mark J o nes, and she said t hat

was he r n ephew. S he’s not directly r elated to M r. Flowers. She’s related by m arriage to M r . F l o w ers’s sister. A nd then Hazel Jones i s her husband’s brother’s wif

e and, y ou know, that’s another f am ily connection there. Although one m ay not ty p ically describe the child o f a n i n - l aw’s sibling as a niece or nephew, Jones’s own s tat e me n t t h a t Flowers’s sister was her niece supported the State’s position t hat Flowers was Jones’s nep h e w . F l owers’s contention that t he State

m ischaracterized and exaggerated the relation s h i p is without m erit. And, again, being acquainted with the def

endant’s f a m ily is a race n eutral r eason f o r striking a juror. Manning , 735 So. 2d at 340 (¶ 32). ¶128. The other reasons the State provided f or its strike also are race neutral. Jones was late f or j ury selection on two day s. For one o f the day s, Jones’s excuse was that sh e had dif f iculty w aking up e arly in the m orning because she used to work nights. On the o ther day , Jones said s he was late because she was looking f or her jury questionna i r e . Jones also provided inconsistent statem ents o n her view of the death penalty , and she adm itted that she

wrote on her questionnaire that she was against t he d eath penalty i n a n e f f o r t t o get out of jury service: Q:

. . . And I think on y our questionnaire, y o u s a id y ou were strongly against the death penalty

. A: I guess I’d say

any thing to get of

f

. Q: Okay . W ell, are y o u say ing that y ou didn’t tell the truth?
A: No, that’s not th a t. I t’s just that if I didn’t have to be here, I wouldn’t want to be here. Q: W ell, I want to know when y ou put down y ou were strongly a gainst the

7 6death penalty – A: I was try ing t o not be – I – really and truly , I don’t w ant to b e h ere. I’ll say it like that.

. . . Q: Wh en y ou put down t hat y o u s trongly didn’t believe in the d e a t h penalty , were y o u being truthf ul?
A: No . . . . Being late on two day s, ly ing on her questionnaire, and blatantly s ay ing that she did not want
to be t here and that she would “say any thing to get of

f ” ref lect an overall attitude of contem pt toward jury

service. ¶129. Jones’s l ate arrival and her attitude toward j ury service, evidencing a lack of concern about or com m itm ent to the proceedings, are two race neutral reasons f or a perem

ptory strike.
See Lynch , 877 So. 2d at 1274 ( ¶ 59) (reluctance to s erve w as a race n e u t r a l b a s i s f o r a
perem ptory strike); Brewer v. State , 725 So. 2d 106, 12 2 ( M i s s . 1 9 98) (f a ct that the juror “had attem

pted to get of

f jury duty f rom the start” was a race neutral reason); Lockett , 517 So. 2d at 1351-52 (striking of jurors b ased on atti t u d e t o w a r d j ury service is r ace neutral).
In Lockett v. State , the Court provided a n onexhaustive list of race neutral reasons that had been r ecognized by other courts. The Court cited a S eventh Circuit case in which the court upheld the perem

ptory s trike of a juror who a rrived late a nd was inattentive, which indicated
“a lack of com m itm ent to the im portance of the proceedings.” Lockett , 517 So. 2d at 1356 (citing U.S. v. Mathews , 803 F.2d 325, 331 ( 7th Cir. 1 986)). See also Hicks v. State , 973 So. 2d 211, 220 (¶ 28) ( Miss. 2007) (inattentiveness is a race neutral reason). Unquestionably ,

7 7Jones’s attitude toward jury service was a proper race neutral reason f or striking her. ¶130. T h e State did not m isrepresent Jones’s relationship with F l o w e r s , a n d t h e S t a t e provided several r ace neutral reasons f or striking her. Flowers’s c laim s regarding Jones are without m erit. The trial court did not err in deny ing Flowers’s Batson challenge regarding the juror. 4. Tashia Cunningham ¶131. The State’s reasons f or s t r i k i n g T a s h i a C u n n i n g h a m included: (1) her working relationship with Flowers’s sister, and (2) her wavering statem ents a bout the death penalty

. At the B atson hearing, Flowers attem pted to r ebut by pointing to Cunningham ’s testim ony that she could be a neutral juror a nd could s e t aside her r elationship with Flowers’s sister. Flowers com

p ared Cunningham t o Chesteen, who knew F low e r s ’ s f am i ly f rom the bank. Finally , Flowers claim ed that Cunningham ’s alleged wavering views on the de a t h p e n a l ty

were sim ilar to t he v i ews of white jurors. The trial c ourt held that the State’s reasons were

r a c e n e u t r al, concluding: “Ms. Cunningham ’s all-over-the-m ap response to the de a t h p e n a l t y , plus her s ituation about working so closely with Mr. Flowers’s sister, in m y m i nd, the State has shown race-neutral reasons f or that strike.” ¶132. D u r i n g v o i r d i r e , C u n n i n g h a m s a i d she did not have a close relationship with Flowers’s sister, Sherita Baskin. She said they had a “working relationship.” C unningham said she and Baskin had worked the sam e shif t f or two or th r e e y e a r s , b u t they did not see each other every day at work. Cunningham said she w orked at t he e nd of the assem bly line,

a n d Baskin worked at the f ront of the line. T he State asked Cunningham f u rther q uesti o n s

7 8about that relationship:

Q: And y ou work with the Def endant’s sister, Sherita Baskin?
A: Yes. Q: Now, the o ther day , I think y ou s aid that y ou do not work close t o her?
A: No, I do not. Q: W ould y o u think about that f or a m inute?
A: I do not. Q: Are y o u

sure that y ou do not work side by side with her?
A: No, I do not. Q: And y ou’re say ing that under oath?
A: Yes, sir. The State then called C unningham ’s em p loy er, ADP, to conf

i rm her testim o ny relating to her working relationship with Baskin. An ADP quality control clerk, Cry stal C arpenter, testif ied that Cunningham and Baskin worked on the sam e assem bly line with twenty -f

ive to thirty

f ive people. Carpenter testif ied that Cunningham and Baskin worked side-by -side,“nine or
ten inches ” a p art f

rom o ne a nother. C arpenter testif i ed that she saw the wom en working
every d ay and that her testim ony was based on her personal observations. Flowers’s counsel asked Carpenter if there wa s d o cum entation s upporting the location of C unningham and Baskin on the assem

bly line, and Carpenter said s he c ould provide d ocum entation s u pporting her testim ony . Apparently , Carpenter did not provide the docum entation. Thu s , F l o w ers claim s that the instant basis f or the State’s perem

ptory strike is unf

ounded. F lowers’s claim

7 9is without m erit.

¶133. W e hold that the blatantly conf licting testim o ny

of Cunningham and C arpenter was

a race neutral basis f

or the State’s challenge, as concern about a juror’s honesty c onstitutes

a race neutral reason. See C ollins v. State , 691 So. 2d 918, 927 (Miss. 1997) ( a juror will be disqualif i ed f or withholding substantia l i n f o rm ation or m i srepresenting m aterial f acts);
Mack , 650 So. 2d at 1300 ( State’s challenge u pheld where the juror f

ailed t o r eveal that her husband had pending charges against him ); Foster , 639 S o. 2d at 1280 (as t o one juror, the
State said “his dem eanor was such that I did not f eel that he was being perf ectly honest with
us” and the Court h eld that the S tate had provided race neutral r easons). See also Aguilar

v . S t a t e , 8 4 7 S o . 2d 871, 877 (¶ 14) ( Miss. Ct. App. 2002) ( concern that j uror was bein g dishonest was a valid reason). ¶134. The State cited C unningham ’s wavering views on the death penalty as a s e cond basis f or its perem

ptory strike. On her juror q uestionnaire, Cunningham m arked t hat she had “no opinion” on the d e ath penalty but, on the very next question, she m arked t hat she would not consider the death p e nalty under any circum stances. During voir dire b y the tria l c ourt, Cunningham f

irst said she “ would not” consider the death penalty and t h a t s h e “did not b elieve in the death penalty .” S he conf irm ed f or the court three t im es that she would n o t consider th e d e a t h penalty

. However, as questioning continued, Cunningham wavered,
say i ng she “m ight” be able to consider it. During v oir dire by the S tate, Cunningham went back to her initial position that she did not think she could consider the death penalty

. Then, when questioned by def

ense counsel, Cunningham said that she could consider both lif e in

8 0prison and the death p enalty

. W e have held t hat “having d oubts a s to one’s ability to f ollow the law and vote f

or the death penalty when appropriate is a suf f i cient race-neutral reason.” Manning , 735 So. 2d at 340 (¶ 31) (citing Johnson v. S tate , 529 So. 2d 577, 584-85 (Miss. 1988)). Further, providing inconsistent statem ents is a race neutral basis f or striking a juror.
Hicks , 973 So. 2d at 220 ( ¶ 27); Lynch , 877 So. 2d at 1272 (¶ 51) ( v erbal r esponses and juror’s card were inconsistent). ¶135. During the Batson hearing, Flowers’s counsel a ttem p ted to com

p are Cunningham to Jef f ery W hitf i eld, a white juror who h ad “m ixed f eelings about the death penalty .” Unlike Cunningham , W hitf

ield never said that h e would be unable to i m pose the death p enalty

. W e have re c o g n i z ed that a juror’s views on the death penalty m ay provide a race neutral basis f or a perem

ptory challenge. See Batiste , 121 S o. 3d at 848; Pitchford , 45 S o. 2 d at 229 (¶40); F lowers I II , 947 So. 2d at 920-21. In Flowers III , the Court held that striking an Af rican Am erican who had “virtually indistinguishable” views on the d eath p enalty as white jurors who w ere not struck raised an i nf erence of discrim ination, although, standing alone, it did not warrant f

inding a Batson violation. Flowers III , 947 S o. 2d at 9 21. In t he instant

case, no white j urors s urvived f o r-cause challenges who h ad views on t h e death penalty

com parable to Cunningham ’ s views. Thus, this basis was not pretextual. Cunningham ’s

seem ing dishonesty

about her relationship with Baskin, her doubt about whether she could im p ose the death penalty , and her inconsistent statem ents a bout the death p enalty are all race neutral reasons f

or a perem

ptory strike. The trial c ourt did n ot err i n d e n y i n g the Batson challenge as to Cunningham

.

8 15. Edith Burnside

¶136. T h e S t a t e g a v e t h e f ollowing reasons f

or striking Edith Burnside: (1) she k n e w Flowers and m em

bers of his f

am i ly ; (2) she was sued by Tardy Furniture; a n d (3) she had provided inconsistent s tatem ents regarding he r v i e w s on the death penalty

. As discussed above, during group voir dire, the trial court asked the entire venire if any one had been sued by Tardy Furniture. Thus, again, Flowers’s claim that only Af rican-Am erican venire

m em bers were asked about prior l itigation is inco r r e c t. Burnside r esponded in the af f irm ative, telling the court that she had b een sued by Tardy Furniture. S he later e xplained that s h e had paid the am ount sh e o w e d and that t he litigation had a risen f rom a

m isunderstanding about her account af ter the m urders. ¶137. At the Batson hearing, t he State incorrectly stated that a g arnishm ent h ad been issued

a g a i nst Burnside. The prosecutor said: “She also was sued by Tardy Furniture, and a garnishm e nt was issued against her. She tried to deny that and s aid that she just settled with them when she cam e back but she was, in f a ct, sued by t hem .” In response to t he trial court’s question about being sued by t he store, Burnside had said: “I h ad a n account there, but I was
not sued by Ms. Bertha. It was later on when it was took over by Mr. Frank and Roxanne.” During i ndividual voir d ire, Burnside conf irm ed that she w as s ued by Bertha T ardy ’s son-inlaw, but that she had paid him and they “never h a d a f alling out about it.” She said the lawsuit would not cause her any dif f iculty in Flowers’s case. L i k e t he State’s characterization of W r i ght’s litigation with T ardy Furniture, the st a t e ment t hat Burnside’s
wages had been garnished and that Burnside had d enied it was not supported by the record.

8 2However, prior litigation is a race neutral basis f or a perem

ptory strike. Webster , 754 So. 2d at 1236 (¶¶ 9-11). ¶138. Another reason the St a t e g a v e f o r s t r i k i n g B u r n s ide was her relationships with Flowers a nd his f

am ily

. Burnside said that she had once lived near the Flowers f am ily , and Flowers and his sister used to visit her hom e . Flowers w as a f riend o f Burnside’s sons and play ed f ootball with them

. Burnside said t hat t he relationships w ould not a f f ect her ability

to serve as a juror. No w hite venire m em bers had relationships rem o tely com p arable to the relationships Burnside had with Flowers and his f am ily

. A juror’s r e l a tionships with the def endant’s f am ily is a race neutral reason f or a perem

p tory challenge. Manning , 735 So. 2d at 340 (¶ 32). A nd, again, “living near the d e f e ndant” is a race neutral reason f or a
perem ptory strike. L ockett , 517 So. 2d at 1356. If sim ply living near t he def

e ndant is a valid

reason, then certainly the def endant having v isited the juror’s hom e and having been a f riend

to her c hildren is a valid, r ace neutral reason. Although Burnside said her connections to the Flowers f am ily would not af

f ect her jury service, the basis is not pretextual. ¶139. Finally , t h e S t a t e c i t ed Burnside’s statem e nts regarding whether she could judge another person a nd whether she could im pose the death penalty as bases f or i ts perem

ptory strike. During voir dire, Burnside testif ied as f ollows: Q: . . . And so I want to know if the f acts justif ied it and the law allowed it, could y o u consider the death penalty as a sentencing possibility ? A: That I don’t t hink I could do. I don’t know if I c ould d o that.

. . . I don’t

– I don’t k

n ow if I could consider it, sending any body to death. I don’t know if I could do that. Q: And can y ou explain f urther y our views on that?

8 3A: I’ve just n e v e r b e e n put in that predicam ent. I ’ve alway s just don’t know if I could d o t h a t

. It’s just the b est way I can explain it. I just don’t think I could do that. Q: A gain, let m e explain. You’re not com m i tting to do it o r not to d o i t

. You’re just – we just need to know if that’s som ething that would be in y o ur m ind where y ou could think about it and y ou could con s i d e r t h e possibility

of it.
A: I could think about it and consider it. That’s all I could say

. Q: And w o u l d y o u consider t he im position of the death penalty , if y ou were on the jury

and it got to the second phase?
A: If I was on there, y e ah, I guess I’d have to. Q: So if the f

acts justif ied it and the law allowed it, y ou would c o nsider it?
A: Yes. Q: Also, if he did not receive that death s entence – if he w as c o nvicted and the j ury did not im

pose the death sentence, . . . [ he] would receive the sentence of lif

e without parole. So is that a s e ntencing option that y ou could consider, also?
A: Yes, I could consider that. Q: And s o y ou would consider a nd h ave an open m i nd as to both sentencing options then; is that correct?
A: Yes, sir. Burnside eventually s aid she could consider both sentencing options, but later she said again that her reservations about judging another person w ould af f ect her ability to serve as a juror: Q: W hen I was asking the questions the other day about jurors that could judge other people, y ou stated at that t im e t h a t y o u could not judge any o n e. W hy

did y ou state that?
A: W ell, because I – y ou k now, I pref er n ot to judge any one. But t hen when they com e b ack and say could I be f air. My thing is I pref

er not

8 4to judge any one. But no, I will be f air. Q: All right. W ho will y ou be f a ir to?
A: I will be f

air to whoever evidence is presented. I will be f air. Because I would want som ebody

to be f air to m e or m y children or m y f am ily

. That the only

way I can explain it.

. . . Q: So y ou h a ve c hanged y our m ind, and y ou say n ow that y ou could judge som eone; is that correct?
A: W ell, basically , I haven’t changed m y m i nd. I just p ref er not to be in a predicam ent where I have to judge som ebody

. Q: So y ou still have a problem with judging som eone? A: I still have a problem with that. Q: W ould that p roblem be such t hat y ou would think about it if y ou were picked on a jury ? A: W ell, I’d have to say y es. Q: It would? So that m ight af f ect y our j udgm ent in t he case; is that right?
A: It could, possibly , y es, sir. Flowers’s counsel attem

pted to rehabilitate Burnside: Q: Ms. Burnside, if

y ou got picked on the jury , y ou would be f a ir to both sides, wouldn’t y ou? A: Yes, sir. Q: And despite t he f

act that y ou don’t like to judge, if y ou got p icked y ou would, in f

act, judge and be f

air to both sides; is that correct?
A: Yes, sir, that is correct. ¶140. A juror’s views on the d e ath penalty a nd hesitation about serving as a juror are race

8 5neutral reasons f or p erem ptory c hallenges. S

ee Batiste , 1 21 So. 3d at 848; Hughes , 90 So. 3d a t 626; Flowers III

, 947 So. 2d at 920-21. F u r t her, there were no white jurors in the venire whose v iews and hesitation r e g a r d i n g j u d g m e nt were c o m

parable to Burnside’s views. Although Flowers’s counsel did rehabilitate Burnside, her rem arks unqu e s t i onably were a

race neutral basis f

or the challenge. T h e t r i a l c o u r t did not e r r in d eny ing the Batson challenge as to Burnside, as the S tate provided m ultiple race neutral reasons f or striking her.
C. Batson Conclusion ¶141. W e hold Flowers’s claim that the t rial court erred in deny ing his B atson challenges

to be without m erit. W hile the State did ask m o re questions o f p otential Af rican-Am erican jurors than white jurors, disparate questioning alone is not dispositive of purposef ul discrim ination. Hughes , 90 So. 3d at 626 (¶ 3 7); Manning , 765 So. 2d at 520 (¶ 15); Berry , 802 So. 2d at 1039 (¶ 20). Further, the State’s contention that the a d ditional questions were asked to clarif

y and f o l l o w u p on certain issues i s supported by t he record. The State provided m

ultiple r ace neutral r easons f o r t he perem

ptory strikes against each of the f ive Af rican Am ericans. T he evidence indicates that the race neutral reasons were valid and not

m erely pretextual. ¶142. The “exceptional circum stances” present in Foster and Miller-El II , w hich prevented the appellate courts’ def

e rence f rom being given to the trial court’s f actual determ inations, are not present in the case sub judice

. In Foster and Miller-El II , the record dem onstrated

a policy to exclude p rospective Af rican-Am erican jurors, which com pletely underm ined the

race neutral explanations urged by the prosecution f or exercising their strikes. See Foster ,

8 6136 S. Ct. 1737; Miller-El II , 545 U.S. 231. Sim ilar evidence underm ining the prosecution’s explanations sim

ply is not p resent in the case sub judice

. Taking i nto account the “historical evidence” of past d iscrim ination, i

. e . , E v a ns’s past Batson violations, the C ourt rem ains unpersuaded that the trial court erred in f indi n g t h a t t h e State did not violate Batson

. Accordingly , the trial court did not err in deny ing Flowers’s B atson challenges.
VII. Whether the venire w as biased, resulting in an unfair trial, such that reversal and rem and for a new trial is w arranted. ¶143. Flowers raises two subissues related to alleged bias in the venire and em paneled jury : (1) w hether the jury d id not adequately deliberate because it w as inf luenced by racial bias in violation of the Due Process a nd Equa l P r o t ection Clauses of the F ourteenth Am endm ent; and ( 2) whether the p ervasive bias in the v e n i r e i n f e c ted the f

a i rness of the proceedings, requiring reversal and rem and f or a new trial. Flowers im plies that Af

rican-Am e rican jurors either were af

raid to s erve a s jurors or were af raid to f ind Flowers not guilty a s a result of the alleged pervasive racial bias in Montgom ery County

. A. Adequate Deliberations ¶144. The jury deliberated f or twenty -nine m inutes during the guilt-or-innocence p hase and f or an hour and a half during the sentencing ph a s e . O ur cases s upport that the tim e spent deliberating was adequate. I n a capital m urder case, we have held that a t en-m inute guilt-orinnocence deliberation and a one-hour sentencing deliberation w ere adequate. Gray , 728 So. 2d at 62-63. The well-settled rule is that “ t here is no f o rm ula to determ i ne how long a jury should deliberate.” Id. at 62 (¶ 125) (quoting Sm ith v. State , 569 So. 2d 1 203, 1205 (Miss. 1990)). In Sm ith v. State , we explained:

8 7Because the jury ’s tim e of considering their verdict did not e x ceed seven

m inutes, it does not f

ollow t h a t t h e j u rors did not c a ref ully consider the testim ony and the exhibits. It is not only possible but probable that when the state and the def

endant had rested and the s um m ations h ad b een m ade each juror had decided in his m i nd the issue of innocence or guilt. Af

ter the brief deliberation with each other, the jurors f ound that they w ere of a single m ind as to the guilt or innocence of the appellant and f

ound him to be guilty

. Under the f

acts of this case this C ourt is unwilling to lend its authority to the establishm ent of a n y f

o r m ula or guideline relating to the tim e a jury m ust deliberate bef

o re delivering its verdict. This Court is c ognizant of t he f act t hat in the past in occasional cases, as in t he case at b ar, rather brief deliberations have taken place in the jury room and v erdicts have been r eturned with u nusual rapidity

. There i s no y ardstick of tim e which a jury should use bef ore reaching a verdict. N o two cases a re sim ilar as t o f acts a n d theref

ore the law varies in its application thereto. Theref ore, we cannot h old that in the tim e utilized by the jury it could not reach a proper verdict of guilty

. Sm ith , 569 So. 2d at 1205 (quoting Johnson v. State , 252 So. 2d 221, 224 (Miss. 1971)). Based on length of the deliberations alone, Flowers’s argum ent that the jury ’s deliberation

was inadequate has no m erit. However, Flowers’s a r gum ent is not b ased solely on t he length of tim e. He contends that the short am ount of t im e s pent deliberating is indicative of racial bias in the jury

and venire.
B. Biased Venire ¶145. Flowers claim s that he was denied the right to a f a i r trial because the jury was biased. “The right to a f

air trial b y a n i mp artial jury i s f undam e n tal and essential to our f orm of
governm ent. It is a right guaranteed by both the f

e deral and state constitutions.” Johnson

v. State , 4 76 So. 2d 1195, 1209 (Miss. 1985). The United States Constitution provides: “In all crim inal prosecutions, the accused shall enjoy t he right to a speedy a nd p ublic trial, by an im p artial jury of the State and district wherein the crim e shall have been com m itted[ .]” U.S.

8 8Const. am end. VI. Likewise, the Mississipp i C o n s titution provides: “In a ll crim inal

prosecutions the a ccused shall have a right to

. . . a s p e e d y a n d public trial by a n im partial jury of the county where the of f ens e w a s c o m mi tted.” Miss. Const. a r t. 3, § 26. W e have recognized that the right to a trial by an im partial jury a nd the right to a trial in the location where the of

f e nse occurred can be at odds with one another. See J o h n s o n , 4 7 6 So. 2d at 1210. ¶146. Flow e r s t akes several approaches to support his contention that he was denied the

r i g h t t o a f

air trial because the jury was biased. He asserts that: (1) racial bias in the

com m unity is evident by the Court’s opinion in F lowers III

; (2) racial bias and tension was dem onstrated by t he a rrest of two Af r ica n A me r i c a ns f

or perjury d

uring one o f Flowers’s previous trials; (3) excessive law e n f o r c e me nt personnel w ere p resent a t the trial; (4) a

m ajority of t he j urors em

paneled w ere acquainted with either Flowers or the victim s or had f orm ed opinions related t o the case prior to trial; (5) the trial court e rroneously d enied several

o f Flowers’s challenges f or cause; (6) the trial c ourt erred by f ailing to quash t h e e n t i r e venire; and (7) the jury interrupted an im portant m itigation witness. To cure the alleged biases, Flowers c laim s that the trial court s h o u l d have quashed the venire or, in the alter n a t i v e , p rovided f

or a “ cooling-of

f period” until a n unbiased j ury f rom Montgom ery County could be em

paneled. ¶147. First, Flowers asserts t hat bia s i s e v i dent f rom the Court’s holding in Flowers III

. Flowers’s claim com es f

rom the Court’s statem ent in Flowers III that the case presented “as strong a prim a f

acie c ase of racial discrim ination as w e h a v e e v e r s een in the context of a

8 9Batson c hallenge.” Flowers III , 947 So. 2d at 935 (¶ 66). The problem s surrounding jury selection in Flowers I

II are not present in today ’s case. In that case, the S tate exercised all twelve of its p erem

ptory strikes on Af

rican Am ericans and its three p erem ptory strikes f

or

a l t e r n a te j urors on Af

rican A m ericans. Id. at 9 17-18. T he Court f ound that the f

ollowing f acts r esulted in a Batson violation: the State exercised p erem ptory strikes a gainst Af

ricanAm erican venirem en w ho shared cha r acteristics with tendered white jurors; the State’s prof f ered race neutral reasons f or striking Af

rican Am e r i c a n s were not supported by the record; and the State f

ail e d t o voir dire other jurors as to a characteristic c ited as a race neutral basis. Id. a t 9 3 5 -39. However, the f acts were p articular to the third trial, and
F l o w ers III does n ot stand f or the proposition that the c om m unity as a w hole – an d a n y f uture venire – would be biased. The claim is without m erit. ¶148. Second, Flowers claim s that racial t ension was escalated by the arrests of two AfricanAm erica n j u r o rs f

or perjury during Flowers’s f ourth t rial. During t hat trial, Mary Annette Purnell, an Af

r ican Am erican who was selected to s erve as alternate juror, said during voir dire that she did not know Flowers or h is f am ily , but af

ter the jury was selected, another juror reported to t h e p r o s e c u tion t hat Purnell knew Flowers and h is f am ily

. Purnell adm itted to

m eeting with Flowers prior to the trial but af ter the j ury sum m ons. A pparently , during jury selection, Flowers g ave his a ttorney a note that said they n eeded to “f ight f or” P urnell to be

on the jury

. Flowers’s counsel denied having read the note prior to the perjury accusations. Purnell pleaded guilty

to perjury

and received two ten-y ear sentences. ¶149. At the end of the f

ourth trial, af

ter the jury was unable to reach a unanim ous decision,

9 0jurors reported to the trial c ourt that Jam es Bibbs, an Af r ican-Am erican j uror, had told other jurors that the police did not adequately investigate the m urders and that evidence had been planted. Af

ter t h e j u r y was r eleased, the t rial court questioned B ibbs about t he reports. Bibbs denied m a king the exact statem ents, b ut he adm itted that he had told other jurors that he h a d b e e n i n an alley close to Tardy F urniture on the day of the m urders and that investigators d id not inspect that area. Bibbs claim ed that he did not report the inf orm ation during voir dire because he m i sunderstood q uestions relating to whether he had knowledge

o f t h e c r i m es. Although the reason is unclear f rom the record, t he perjury charges against Bibbs eventually

were n o lle prossed

. ¶150. Flowers claim s that Bibbs was possibly the only juror at the f ourth trial who did not

vote to convict Flowers. He f urther c o n t e n ds t hat t he perjury arrests “escalated” racial tension and that the arre s t s were reported in t he press and “pervaded the j ury venire” in today ’s case. To support his contentions, Flowers cites local m edia articles discussing the
per j u r y a r r ests. Nothing in the r ecord, however, discusses whether m em bers of the venire in t oday ’s c a s e w e r e aware of t he arrests. F urther, n othing in the record s uggests that the

arrests were any

thing less than legitim ate. Clearly , Purnell a d m itted to perjury , a n d Bibbs adm itted to having knowledge that he did not disclose during voir d ire. The contention is not supported by

the record and is without m erit. ¶151. Next, Flowers’s claim that excessive law enf orcem ent p resence caused bi a s i n the venire also is without m erit. W hen Flowers’s c o unsel raised concerns that venire m em bers

were standing close to a law enf orcem ent of

f icer during voir dire, t he trial court r esponded

9 1by rem inding counsel that the potential jurors c o uld be questioned about any contact with law

enf orcem ent d u r i n g v oir dire. Considering the notoriety of the crim es in the c ase, a large

num ber of law enf orcem e nt personnel would be expected. ¶152. Further, Flowers’s claim that the jury i nterrupted a m i tigation witness i s not supported by the record. During the m itigation phase, pizza was o rdered f or the j ury . Apparently , the
p i z z a a r r i ved while Archie Flowers Sr., Flowers’s f ather, was providing m i t i g a t i o n t e s t i m o n y . In response to the f

ood arriving, Flowers’s counsel stated: “Your honor, if the jurors’ f ood is h ere, I don’t want t o stand i n the way of that.” There is no i ndication t hat the jury interrupted the witness, and Flowers’s counsel encouraged the recess. ¶153. Flowers asserts that a m ajority of the jurors em paneled were acquainted w ith Flowers, acquainted with the victim s, or had f orm ed opinions related t o t he c a se prior to trial. Flowers claim s that the v enire was skewed in f avor of the prosecution because a higher percentage of potential j urors who were f am iliar with Flowers and his f am ily were struck f

rom the venire

com pared to venire m em

bers who were f

a m il i a r with the victim s and their f am ilies. He claim s that, because potential jurors who were f am iliar w ith the Flowers f am i ly were m ore likely t o s tate that their relationships with t he f a m ily w ould af

f e c t their ability to s erve as f air

a nd i m partial jurors, ultim ately , a higher p ercentage of jurors who w e r e f am iliar with th e victim s and their f

am ilies was em

paneled. ¶154. Jurors who state that their relationship with a def endant or a victim w ould af f ect their ability t o be im

partial properly are struck f or cause. See Manning , 735 S o. 2 d at 340 (¶ 31) (“doubts as t o one’s ability to f ollow the law and vote f

o r the death penalty when appropriate

9 2is a s uf

f icient race-neutral reason”); Stevens , 806 S o. 2d at 1062 (¶ 138) (rem oval of juror is justif ied where the trial c ourt is “is lef t with the im

pression that a p rospective juror would be u nable to f

a ithf ully and i m

partially apply the law”) (quoting Wainwright v. Witt , 469 U.S. 416, 42 6 (1985)); D avis v. State , 660 So. 2d 1228, 1 244 ( Miss. 1995) (sam e ). However, when jurors indicate that they can be im partial, they do not h ave t o b e s t r u c k based on relationships a lone. “The l inchpin is whether the venire m em bers stated that they could be f a i r a nd im

p artial jurors if c hosen.” Hughes v. State , 983 So. 2d 270, 2 84 (¶ 6 3 ) ( M i s s . 2008) (quoting Howell , 860 So. 2d at 720 (¶ 37)). Thus, if jurors indicated that they could not be f air and im

partial, they

properly were struck. The claim

is without m erit. ¶155. Flowers’s claim that the trial court erred by deny ing several of h is challenges f or cause f a i l s . T he potential jurors that Flowers challenged f or cause were not selected to serve a s jurors, a nd Flowers did not exercise all of h is perem ptory challenges. “Denial of challenge f or cause is n ot error where it is not s hown t hat t he def ense has exhausted perem ptory challenges and is thus f

orced to a ccept the juror. This threshold test i s applicable i n a capital

m urder case.” Berry v. State , 575 So. 2d 1, 9 (Miss. 1990) (citing Billiot v . S tate , 454 So. 2d 445, 457 (Miss. 1984); Rush v. State , 278 So. 2d 456, 458 (Miss. 1973)). ¶156. Lastly , Flowers suggests that the trial court should h ave quashed the entire venire or provided f

or a “cooling-of

f period” until a f

a ir and im

partial jury

could be em

paneled, and he claim s that the trial c ourt’s f ailure to d o so was error. Flowers’s s uggested rem edies are
not viable. F lowers’s claim that a pervasive bias existed throughout the com m unity conf

licts with h i s s uggestion that another venire should have b een em paneled. If the bias was in f act

9 3pervasive, another venire f r o m t h e s a m e com m

unity likely would contain the sam e bias. Flowers’s suggested “cooling- o f f p e r i od” is even m ore troublesom e , as Flowers him self would b e l ef

t in lim b o a waiting a nother trial. I n H ughes v. State , we held that t he trial court did not err in deny ing the def endant’s m otion to quash the venire based on the crim e being well known within t he com m unity

. Hughes , 983 S o. 2d at 284 (¶ 64). Because the jurors indicated that their k

nowledge o f t h e c a s e would n ot af f ect their ability to be f

air and im p artial, the trial court did n ot abuse its discretion in deny ing the m otion t o q u a s h

. Id. Again, “[ t ]he linchpin is whether the venire m em be r s s t a t ed t hat they could be f air and im p artial jurors if

chosen.” Id. at 284 (¶ 63) (quoting Howell , 860 So. 2d at 720 (¶ 37)). ¶157. A m o re a p p r o p r i a t e rem edy would be to expand the size o f the venire. See Toyota
Motor Corp. v

. M cLaurin , 642 So. 2d 351, 358 ( Miss. 1994); Mhoon v. State , 464 So. 2d 77, 8 2 (Miss. 1985), superseded by statute on other grounds

. However, the size of t he venire

was app r o p r i a t ely large, as 6 00 people were c alled f or voir dire. Thus, it would s eem that the trial court called a large enough venire to avoid p roblem s. Trial courts have broad discretion in conducting voir dire. See Howell , 860 So. 2d at 726 (¶ 67). “A jury selection procedure which gives the def e ndant ‘a f

air opportunity to ask questions of individual jurors which m a y enable the d ef endant to determ ine his right to challenge that juror’ is proper.” Id.

at 726-27 (¶ 69) (quoting McLem ore v . State , 669 So. 2d 19, 25 (Miss. 1996)). W e cannot
say that the trial court abused its discretion i n conducting v o i r d ire. For the f oregoing

reasons, Flowers’s claim s that he was denied the right t o a f air t rial b e cause the jury was biased are without m erit.

9 4VIII. Whether the t rial c o u r t e r red in refusing Flow e rs’s requested culpability
phase instructions. ¶158. Flowers c l a i ms t h a t the trial court e rred in ref u sing three of h is culpability -phase instructions – D-7, D-8, and D-9. “Jury instructions are within the sound discretion of the trial c ourt.” Gillett , 56 So. 3d a t 496 (¶ 67) (quoting Rubenstein , 941 So. 2d at 787 (¶ 239)). This Court does not single out any instruction or take instruction s o u t o f context; rather, the instructions are to be read together as a whole. Thom a s v. State , 818 So. 2d 335, 349 (Miss. 2002). A def endant is entitled to have jury instructions which present his the o r y o f t he c ase. Id. This entitlem ent is lim ited, however, in t hat the court i s a l lowed to ref use an instruction which incorrectly s tates the law, is covered f airly elsewhere in the instructions, or is without f oundation in the evidence. Id. Gillett , 5 6 So. 3d at 496 (¶ 67) ( q uoting Walker v. State , 913 So. 2d 198, 234 (¶ 132) (Miss. 2005)). ¶159. Flowers claim s that the t rial court e rred in r e f using instruction D-6 because he was entitled to an instruction on the burden of proof

. That instruction read as f ollows:
E a ch f act which is essential to com plete a set of circum stances necessary to establish the def

endant’s guilt m

ust be proved bey ond a reasonable d oubt. In other words, bef

ore a n inf erence essential to establish g u i l t m ay be f ound to have b e e n proved bey ond a reasonable doubt, each f act o r circum s t ance on which t he inf

erence necessarily rests m ust be proved bey ond a r easonable doubt. The t rial court ref

used the instruction, f

i nding that it w as repetitive of instruction S-1, which stated that the S tate m

ust prove all of the elem ents of the crim es bey o nd a reasonable doubt.
Because the instructions are repetitive, t h e t r i al court did not err in deny ing D-6. See
Montana v. S

tate , 822 S o. 2d 954, 961 (¶ 26) (Miss

. 2 002) (“A trial judge is under no obligation to grant redundant instructions.”). The issue is without m erit.

9 5¶160. Instructions D-7 and D-8 were circum stantial-evidence instructions. They provided:

D-7: T he Court instructs the jury that [ if ] the prosecution h as u s ed circum stantial e v i d e n ce to show that Curtis Flowers com m itted the charged crim es, then t he evidence m ust be so strong as to rule out any other r easonable explanation e xcept that of guilt. Circum stantial evidence is any thing other t han direct e vidence, such a s, to g i v e o n e exam ple, testim ony of som eone w ho witnessed an event. In other words, y o u ma y not return a verdict of g uilty if y ou could reasonably interpret the f acts in a way that would show Mr. Flowers to be not guilty

. D-8: The Court i nstructs the jury that if there is any f act or c ircum stance in this case suscep t i b l e of two interpretations, one f avorable and the other unf avorable to Curtis Flowers, and when the jury has considered such f act or c i r cum stance w ith all t he other evidence, if there is a d oubt as to the corre c t interpretation, then y ou m u st resolve such doubt in f a vor of Curtis Flowers and interpret that f

act or circum stance in f

avor of Mr. Flowers.
In support o f his argum e nt that the trial court erred in r e f u s i n g t he instructions, Flowers attacks the credibility o f Odell H allm on, t h e j a i lhouse inf orm ant. Flowers recognizes that Mississippi caselaw allows trial c o u r t s t o r e f use circum stantial-evidence instructions in cases in which direct evidence of the crim e is presented, which includes testim o ny f rom a jailhouse inf orm ant. S

ee L a dner , 584 So. 2 d at 750 (case is not c ircum s tantial even if the only direct evidence is a “jailhouse conf ession”). ¶161. Flowers, however, relies on the Court’s opinion in McNeal v. State , 5 51 So. 2d 151 ( Miss. 1989), f

o r the proposition that jailhouse inf orm ant testim ony should n ot serve as a basis f or ref using a circum stantial-evidence instruction w hen the inf orm ant’s credibility is questionable. In McNeal , the jailhouse inf orma n t t e s t i f

ied in exchange f

o r a reduced

sentence. Id. at 158. The C ourt questioned the ref usal of the instruction in McNeal , but the

case was reversed and rem anded on other grounds, s o the Court did n ot go so f ar as to f ind

9 6that a circum stantial-evidence instruction should h ave be e n g i v e n . Id. a t 158-59 (“It is

doubtf ul that such testim ony should be considered as direct evidence which would prevent the g ranting of a circum stant i a l e v i dence instruction; however, we d o not decide that question h e r e , nor is it necessary , because we f ind m erit a n d reverse under [ another] assignm ent of error.”). ¶162. The Court has clarif ied t h e j a i l h o u s e i n f

o r m ant/circum stantial evidence issue in subsequent cases. In Ladner , the Court held that i t was not error to ref use such an i nstruction in the case of

a jailhouse inf

orm ant: A circum stantial evidence i nstruction m ust be g iven only when the pr o s e c ution can produce neither an ey ewitness nor a conf e s sion/statem ent by the def endant. T he “conf

ession” w hich constitutes direct evidence of a c rim e is not lim ited to a conf

ession to a l a w enf

orcem ent of

f i cer but also includes an adm ission m ade to a person other than a law enf orcem ent of

f icer. In Holiday v. State , 455 So. 2d 750, 752-53 ( M iss. 1984), a witness testif ied that he had overheard t he def

endant say to another person that he had killed h is wif e. This Court h eld that t he circum stantial evidence instruction was not required. See Foster v. S

tate , 5 0 8 So. 2d 1111, 1115 ( Miss. 1987) (Court held that without “jailhouse conf

ession” the case would have been entirely circum stantial).
Ladner , 584 So. 2 d a t 750 (other citations o mitted). The Court then stated that, because
McNeal w as decided on other grounds, it d id n ot support the def endant’s proposition that a circum stantial-evidence instruction should h ave been given. Id. at 750 n.1. W e reaf f irm ed the Ladner

holding in M

oore v. State : As [ the def

endant] points out, prior to Ladner , this Court expressed doubt as to whether a jailhouse inf orm a nt’s testim ony “ should be considered as direct evidence w hich w ould prevent the g ranting of a circum s tantial evidence instruction.” M

cNeal , 551 So. 2d at 159. W hile McNeal declined to answer that question, L adner settled the m atter, holding t hat when the ty pe of testim ony given by [ the inf orma n t ] in the case sub judice i s present, circum stantial evidence instructions are not necessary

.
9 7Moore , 787 So. 2d at 1288 (¶ 18). Following the Court’s h oldings in Ladner and M oore , the trial court in today ’ s c ase f ound t hat H allm on’s testim o ny provided direct evidence of the crim es an d d e n i e d instruction D-7 and D-8. W e recognize that Hallm on’s credibility is questionable. However, H allm on was cross-exam ined extensively a t trial, and the trial court instructed th e j u r y “ that the law looks with suspicion and distrust on the testim ony of a jailhouse i nf

orm ant, a nd requires the jury to weigh the sam e with great care and suspicion.” The jury was instructed adequately regarding Hallm on’s testim ony , a n d the trial court did not

err by ref using the circum stantial-evidence instructions under Moore and Ladner

. The issue is without m erit.
IX . Whether the trial court e rred in r e fusing Flow ers’s penalty -phase instructions and in g r anting the State’s aggravating-circum stances instruction. ¶163. F l owers claim s the trial court erred in deny ing several of h is pe n a l t y p h a s e j u r y ins t r u ctions – D-4, D-12, D-33, D-34, D-38, a nd D-39. He a lso asserts that the trial court erred by allowing t he S t ate’s a ggravating-circum stances instruction. Again, jury instructions

are within the sound d i scretion of the tria l c ourt, and the trial court properly ref uses instructions that a re incorrect statem ents of the l aw, are covered f airly in other instructions, or do not have a f

oundation in the evidence. Gillett , 56 So. 3d at 496 (¶ 67).
A. Instruction D-4 ¶164. Flowers contends t hat the t r i a l court erred in ref using instruction D-4, which was a “presum ption of lif e” instruction. The prof

f ered instruction read:
You are to b egin y o ur d e l i berations with the p resum ption that there are no aggravating circum stances that would w arrant a sentence o f d e a th, and the

9 8p r esum ption that t he appropriate punishm ent in this case would b e l i f e im p risonm ent. These presum ptions rem ain w ith Mr. Flowers t hroughout the sentencing hearing and can only b e overcom e if the prosecut i o n c o nvinces each one of y ou, b ey ond a reasonable doubt, that the death penalty is t he only appropriate punishm ent. The Court consistently has ref used to f ind error when a trial court denies p resum ption-of -lif e instructions. See G

illett , 5 6 So. 3d at 514 (¶ 135); B rown v. State , 8 90 So. 2d 901, 920 (¶ 72) (Miss. 2004) ( “W e have repeatedly said that we r eject the ‘proposition t hat a def endant should go into th e s e n t e n c i n g p hase with a p resum p tion that lif

e is the appropriate punishm ent.’”) (quoting Watts v. State , 733 So. 2d 214, 241 (¶ 81) (Miss. 1999)). As such, the trial court did not err in ref using the presum

p tion-of -lif e instruction.
B. Instructions D-12 and D-33 ¶165. Flowers claim s that the trial court erred by ref using to g rant t wo i nstructions related to aggravating circum stances and circum s tantial evidence. The instructions provided:
D-12: The Court i nstructs the jury that if the State has relied on circum s t antial evidence to e s t a b l ish an a ggravating circum stance, then the evidence f or the State m ust be so strong as to establish the a ggravating circum stance not only bey ond a reasonable doubt, but m ust exclu d e every other r easonable hy pothesis other than establishm ent of the aggravating circum stance. D-33: During the penalty phase, I i n s t r u c t y ou that if there is a f act or circum stance in thi s c a s e w hich is susceptible of two interpretations, one f avorable and the other unf avorable t o Mr. Flowers and if , af ter consider ing all the other f

acts a nd circum stances, there is a reasonable doubt regarding the correct interpretation, then y ou m ust resolve suc h d oubt in f avor of Mr. Flowers and p lace upon such f act o r c i r c u m stance the interpretation m ost f avorable to Mr. Flowers. Flowers claim s that whet h e r a crim inal def endant is entitled to a circum stantial-evidence instruction during the penalty phase is a m atter of f irst im pression. Flowers is incorrect. W e

9 9have held that a trial court did n ot abuse its discretion in ref using to grant c i r c u ms t a n t i a levidence instructions at t he penalty phase. Fulgham , 46 So. 3d a t 340 (¶ 80); K ing v. State , 960 So. 2d 413, 446-47 (¶ 7 0) (Miss. 2007). In support of its f inding, the King Court wrote that the jury ’s f

i nding that the def

endant actually com m itted the m urder during the guilt-orinnocence p hase “indicate[ d ] its rejection of any o ther reasonable h y pothesis of [ the def endant’s] participation in the crim e.” King , 960 So. 2d at 446 (¶ 70). Instructions D-12 and D-33 are alm ost i dentical to the instruction a t issue in Fulgham

. The trial court did not err in ref u sing the instructions.
C. Instruction D-34 ¶166. Instruction D-34 provided: “The Court instructs t he jury t hat i f y ou cannot, within a reasonable t im e, agree as to punishm ent, the court will d ism iss y ou and im pose a sentence of im prisonm ent f

or lif e without the b enef

it of parole.” Flowers claim s that t he trial court should have granted the instruction because the jury d id not receive guidance on what would happen if the jurors could not agree unanim ously on a p unishm ent. Flowers contends that the alleged error is evident by a note sent f

rom the j ury d

uring the penalty phase. The note stated: “If we cannot agree unanim ously , who will m a k e the u ltim ate d e c i sion? ” The trial

court responded to the note by stating: “That is n ot an issue the jury s hould be concer n ed about.” ¶167. The Court has r eviewed alm ost identical i nstructions in previous cases and f ound that the trial court did not err in ref using the prof

f ered instructions. In G

illett , we held that the trial court did not e rr in ref using an instruction t hat stated: “ If y ou cannot, within a r easonable

1 0 0tim e, agree as to punishm ent, I will dism is s y o u a n d im pose a sentence of lif

e without the benef it of parole. If y ou c annot agree, know that any of y o u m ay inf orm the b ailif

f of this.”
Gillett , 5 6 So. 3d at 515 (¶ 138). B e c a u s e t he jury was instructed on the three possible penalty phase outcom es – d eath, lif e im prisonm ent without parole, or i n a b i l i t y to agree unanim ously

on a punishm ent – the Court held that the jury was properly

instructed on the possibility of n ot reaching a u nanim ous decision. Id. at 516 ( ¶ 1 3 9 )

. I n another capital

mu r d e r c a s e , t h e C ourt held that the trial court did not err in ref using the f

ollowing instruction: “The court instructs the jury that if y ou do not agree upon punishm ent the court will sentence the def

endant to lif

e i m prisonme n t without p ossibility o f parole or early release.” Edwards v. State , 737 So. 2d 275, 316 (¶ 142) (Miss. 1999). The Edwards Court held that the jury was adequately instructed that i t could “return t o the courtroom and report that it was unable to agree unanim ously on punishm ent.” Id. at 316 (¶ 143). ¶168. Sim ilar to G

illett and Edwards , the trial c o urt in today ’s case instructed the jury that it could reach three possible o utcom es in the p enalty phase: death, lif e w ithout p a r o le, or being unable to a gree unanim o usly on a punishm ent. Accordingly , the trial court did not err in ref using instruction D-34.
D. Instructions D-38 and D-39 ¶169. Flowers claim s that the trial court erred by ref using instructions o n the j ury ’s ability to consider m ercy . Proposed instruction D-38 read:
A mi tigating f

actor is any

thing that in f

airness and m ercy m a y reduce blam e or that m ay justif

y a sentence less than d eath. Even if a f a c tor does not justif

y or excuse the c rim e i t m a y still be a m itigating f actor. It i s f

or each of y ou to decide if a f

actor is m i tigating.

1 0 1Mercy alone can be a m itigating f actor y ou ca n c o n s i d e r in deciding not to im p ose the death penalty

and to im

pose a sentence of

lif e without parole. Instruction D-38 is c learly a m erc y i n s t r u c t i on, and the Court has recognized that such instructions are not required and “m ay be given at the discretion of the t rial court.” Foster , 639 So. 2d at 1300. Flowers’s counsel recognized during the sentencing instruction hearing that D-38 was a m ercy

instruction. The trial court did not err in ref using the instruction. ¶170. Instruction D-39 provided: “The death penalty is never required. You m ay alway s f ind that Mr. Flowers s hould be sentenced to lif e i n prison or lif

e in prison without the possibility of parole.” Although Flowers describes D -39 as a “m ercy instruc t i o n , ” u pon close

exam inat i o n , t h e instruction sim ply seem s to instruct the jury on its a bility to im

pose a
sentence of lif

e in prison rather than the death penalty

. At the sentencing instruction hearing, the trial court ref

used the instruction because it was repetitive o f the om nib u s s e n t e ncing instruction given by the trial court. As part o f the om nibus instructi o n , t h e jury was instructed:“In the event that y ou f i nd that the m itigating circum stance(s) do not outweigh or

overcom e the aggravating circum stance(s), y o u m ay im pose the death sentence.” (Em phasis added.) Thus, the jury w as g iven the option to sentence Flowers to lif e without p arole or to im p ose the death penalty i f i t f o und that the aggravating circum stances outweighed the

m itigating circum stances. Although the lif e without parole option was stated m ore clearly in D-39 t han in the om n i b u s instruction, it cannot be said that the jury was not given the instruction. The trial court did not err in ref using instruction D-39. E. Aggravating Circum stances ¶171. The court instructed the j ury on three aggravating circum stances: (1) “the Def endant

1 0 2knowingly cre a t e d a great r isk of death to m a ny persons”; (2) “the capital of f ense was

com m itted while the D e f e ndant was engaged in t he com m ission of t he crim e of arm ed robbery f or pecuniary gain”; and ( 3) “the capital o f f ense was com m itted f

or the purpose of avoiding or preventing a l awf ul arrest or ef

f ecting an escape f

rom custody .” See M iss. Code
Ann. § 99-19-101(5) (Rev. 2015). Flowers claim s that t he trial court erred i n i s s u i n g t h e instruction.
1 . Great Risk of Death to Many Persons ¶172. Flowers asserts that the trial court e rred by allowi n g t h e jury to consider the aggravating f

actor of “great risk of death to m any perso n s . ” The Court has held that the “great risk” aggravator is appropriate when there are m ultiple victim s of a single crim e. See Flowers II

, 842 So. 2d at 560 ( ¶ 9 1 ) (quoting F l owers I , 773 So. 2d at 325 (¶ 53) (citing McGilberry v. State , 741 So. 2d 894, 925 (¶¶ 130-36) (Miss. 1999))). See also Jackson v. State , 672 So. 2d 468, 490 (Miss. 1996) ( when “ m ultiple victim s have been stabbed in the

sam e or a nearby r o om , courts in other j urisdictions generally have f ound that there was suf f i cient evidence to warrant the ‘great risk to m any persons’ aggravating circum stance”) (collecting cases). F lowers a cknowledges the Court’s prior holdings, but he asks the Court to rule dif f erently here. ¶173. T o give the instruction, the def endant m u st have c reated a great r i s k o f d e a t h t o

som eone other t han his intended v ictim

. Porter v. State , 732 So. 2d 899, 906 (¶ 31) (Miss. 1999). In Porter , t he Court held that the evidence did not support the “great risk” a ggravator b e c a use the def

endant had k illed only one person, whom he had been hired to kill, and h e

1 0 3f

led the scene af

ter shooting that p erson, even though o ther people were inside the house at the tim e. I

d . In C orrothers v. State , the C ourt held that the “great risk” aggravator was proper because the “evidence showed that Corrothers entered the hom e intending to attack Tay lor, and in doing so, he shot Frank and Tony a and h eld a gun on J o sh.” Corrothers , 148 So. 3d at 320 (¶ 118). ¶174. Flowers asserts t hat the evidence does not indicate t hat the person who killed the f our victim s had any intention to harm any o ne o ther than the v ictim s h e was robbing. T he State’s theory w as that Flowers intended t o kill Bertha Tardy because she f ired h im and w i thheld his
pay and , i n t he p rocess of doing so, he shot and killed the others. Flowers knew Carm en R i g by f rom working at the s tore, but there i s no e v idence t hat he knew Robert Johnson o r Derrick Stewart, as the day o f the m urders was their f

irst day t o work at the store. Based on the State’s theory o f the case , which was presented to the jury , we hold that there was suf f i cient evidence on which the jury could have f ound that Flowers caused a great risk of death to people o ther than h is i ntended victim , Bertha Tardy

. Further, b ecause Flowers shot f our victim s in the sam e room , the evidence was suf f i cient to warrant t h e i n s t r u ction.
Jackson , 672 So. 2d at 490 ¶175. Flowers also claim s that “to allow the sam e conduct that i s an essential elem ent of the underly ing crim e to also aggravate that crim e f or sentencing purposes” violates the Eighth
Am endm ent. F lowers does not cite any a u t hority f o r this proposition, nor does h e explain how t he aggravato r v i o l ates the Eighth Am endm ent. The State understands Flowers’s
argum ent to be that use o f the aggravator violates double jeopardy

. W e have held

1 0 4specif

ically that the “ great risk” aggravat o r does not v iolate d ouble jeopardy

. See Corrothers , 148 So. 3d at 3 20 (¶¶ 117-19) ( quoting Flowers I I , 842 So. 2d at 561-62 (¶ 94) (quoting Wilcher v. State , 697 So. 2d 1087, 1 105 (Miss. 1 997))). The Court also has held that “ d oubling” – the u se of an e lem ent o f the u nderly ing c rim e as an aggravating circum stance – does n ot violate t he Constitution. See Corrothers , 148 So. 3d at 320 (¶ 116);
Gillett , 56 So. 3d at 510 (¶ 118); Ross I , 954 So. 2d at 1014 (¶ 120). Accordingly , the issue is without m erit.
2. Arm ed Robbery for Pecuniary Gain ¶176. Flowers claim s that the t ria l c o u r t e r r e d b y i n s t r u c t i n g the jury to consider the aggravating f

actor o f arm ed robbery f

or pecuniary gain because the instruction essentially

com bined two aggravating f actors. The instruction g iven to the jury stated, in part: “Consider only the f

ollowing elem ents o f a g g r a vation in determ ining whether the death penalty should be im

p osed:

. . . The capital of

f ense was com m i tted while t he Def endant was engaged in the com m ission of the crim e of arm ed robbery f o r pecuniary gain.” Mississippi Code Section 99-19-101(5) lists ten aggravating f actors the jury m ay consider during the penalty phase of capital punishm ent cases. O ne f a ctor l isted is the capital of f ense occurring while in the com m ission of any robbery

. Miss. Code Ann. § 9 9-19-101(5)(d) (Rev. 2015).
A s eparate f

actor is com m ission of the capital of f e nse f o r pecuniary gain. Miss. Code Ann. § 99-19-101(5)(f

) (Rev. 2015). ¶177. Flowers recogni z e s t h a t t h e C o u r t p r e v i o u s l y h a s f o u n d sim ilar aggravatingcircum stances instructions perm i ssible, but he encourages t he Court to reconsider its

1 0 5reasoning. I n H owell v. State , the Court h eld that i t was n ot error f or the f ollowing aggravating

- c i rcum stance instruction to be given to t he jury : “The capital of f ense was

com m itted f

or pecuniary gain during the course of an arm ed robbery .” H owell , 8 60 So. 2d

at 756 (¶ 186). The Court noted that the jury is n ot perm itted to “doubly weigh” aggravating circum stances; thus, listing arme d robbery and p ecuniary gain as separate aggravating circum stances could be unconstitutional in som e f actual circum stances. I

d. at 756 (¶ 188) (quoting Turner v. S

tate , 732 So. 2 d 937, 954-55 (¶¶ 71-72) ( Miss. 1999)). W hen pecuniary gain and arm ed r o b b e r y a r e u sed within the s ame f actor, however, the c oncern of the jury “doubly weighing” the aggravating f actors is not p resent. A s such, the issue is without m erit. 3. Avoiding Law ful Arrest or Effecting an Escape from C ustody ¶178. Flowers claim s that the trial court erred by i nstructing t he jury that it could consider that the capital of

f e n s e o ccurred f

or the purpose of avoiding or preventing arrest as an aggravating f

actor, because the evidence presented at t rial was insuf f icient to support the instruction. Flowers also claim s that the def inition o f avoiding a r r e s t is unconstitutional because it is overly broad. W hether the avoiding arrest aggravator is constitutional has been addressed several tim es, and we consistently h ave held t hat it is n ot overly b road. Brawner v. State , 947 So. 2d 254, 266 (¶ 36) (Miss. 2006) (collecting cases). ¶179. The f

actor is appropriate w here “the accu s e d p u r posef ully killed the victim of

the underly ing f

elony to avoid or prevent arrest f or that f elony .” Id. at 266 (¶ 37). Further, [ i]f there i s e vidence f

rom which i t m ay be reasonably inf erred that a substantial reason f

or the k illing was to conceal the identity of the killer or to “cover their tracks” so as to avo i d a pprehension and eventual arrest by

1 0 6authorities, then i t is p r o p e r f o r the court to allow the jury to c o nsider this aggravating circum stance. Id. (quoting W

iley v. State , 750 S o. 2d 1193, 1206 (¶ 4 6) (Miss. 1999)). In Wiley , the def endant shot and k illed a witness to a robbery and injured a nother witness. Wiley , 750 So. 2d a t 1206 (¶ 4 7 )

. The Court f ound that, because the def e ndant k new the victim s and

attem pted to d ispose of e vidence linking him to the robbery , there was suf f icient evidence

to support the a ggravating f actor. Id. at 1206 (¶ 48). Like the def endant in Wiley , Flowers knew the m

urder victim s. Further, the m urder weapon was never f ound, nor were the Fila
Grant Hill t ennis shoes. However, a F ila Grant Hill shoebox was f oun d a t F lowers’s girlf riend’s house, and F lowers had bee n s e e n wearing Fila Grant H ill shoes. Cash was f ound hidden in Flowers’s headboard, and Flowers gave conf l icting statem ents to police regarding his whereabouts on t he m orning of the m urders. In Wiley , the Court held that the def endant’s “ef

f orts to dispose of and/or conceal the evidence of his crim e [ were] suf f icient

to support the avoiding arrest instruction.” I d. at 1206 ( ¶ 4 8). In the instant case, i t could be “reasonably inf

erred” that Flowers attem

pted to conceal h i s i d e n t ity , d isposed of e vidence,

or tried t o “cover his tracks.” The evidence is suf f i cient to s u p p o r t the avoiding-arrest instruction.
X . Whether Flow ers’s m ultiple trials violated the Double Jeopardy Clause and the Due Process Clause of the Fourteenth Am endm ent. ¶180. Flowe r s c l a i ms t h a t his six trials f or the Tardy Furniture m urders violate his due
process rights and the Double J e opardy Clause. F lowers’s f irst and s e cond trials resulted in convictions and death sentences t hat subsequently were overturned b y the Court f or various

1 0 7instances of prosecutorial m isconduct. Flowers I , 773 So. 2d 309; Flowers II , 842 So. 2d
531. A t his t h i r d t r i al, Flowers again was convicted a nd sentenced t o d eath, but the Court reversed and rem anded f

or a new trial f

o r a Batson violation. Flowers III , 947 S o. 2d 910.
At Flowers’s f

o u rth a nd f

if th trials, the juries was unable to reach unanim ous decisions, and the trials resulted i n m istrials. Prio r t o t o day ’s case, Flowers m oved to h ave the case dism issed as a v iolation of h is due process rights and t he Double J eopardy Clause; the trial

court denied t h e m otion. Claim s o f d o u b le jeopardy are r eviewed de novo. Rowland v. State , 98 S o. 3 d 1 0 3 2 , 1037 ( ¶ 9 ) (Miss. 2012) (quoting Forem an v. State , 51 So. 3d 957, 960 (¶ 8) (Miss. 2011)). ¶181. The Double J eopardy Clause of the Mississippi C onstitution reads: “No person’s l if e

or l iberty shall be twice p laced i n jeopardy f or the sam e of

f e nse; but there m

ust b e an actual acquittal or conviction on the m erits to bar another prosecution.” Miss. Const. art. 3, § 22. Likewise, the F if

th Am endm ent t o the United States Constitution p rovides that never “shall
any p erson be subject f

o r the sam e of

f e nce t o be twice put in jeopardy of lif e or lim b.” U.S. Const. am end. V. The Double J eopardy Clause does not b ar reprosecution w hen a conviction has been s e t a side on a

ppeal. Green v. United States , 3 55 U.S. 184, 189 (1957). Also, jeopardy does not attach w hen a crim i nal case ends by the jury f ailing to reach a unanim ous verdict. Id. at 1 88. S

e e also Richardson v. Un i t e d S t ates , 468 U.S. 317, 323-24 (1984);
Keerl v. Montana , 213 U.S. 135, 137-38 (1909). “Double jeopardy consists o f three separate constitutional protections: (1) protection against a second prosecution f or the sam e of

f ense af ter acquittal, (2) protection against a second prosecution f or t he same o f

f ense af ter

1 0 8conviction, and (3) protection a gainst m ultiple punishm en t s f

or the sam e of

f e n se.” Powell

v. State , 806 So. 2d 1069, 1074 (¶ 8) (Miss. 2 001) (citing Nort h C a r o l i n a v . Pearce , 395 U.S. 711, 717 (1969)). Flowers has not been acquitted, h is convictions have not been upheld on appeal, and he has not received m ultiple punishm ents. Theref ore, the Double Jeopardy Clause has not been im

plicated. ¶182. Flowers a lso claim s that continued t rials, despite the r eversals in his f i rst three direct appeals on the bases of prosecutorial m isconduct, v i o late his d ue p rocess rights. W e have

not addressed whether m

ultiple trials result in a due process violation, but other courts have held that m

ultiple retrials d o not violate a def endant’s due process rights when i m p lications

o f d o u b l e jeopardy are not a t issue. S ee People v. S

ierb , 581 N.W .2d 219, 223-25 (Mich

. 1998); 7 United States v. Jones , 122 F

. 3d 1058 (2d Cir. 1997). See a lso United States v. Faulkenberry , 461 Fed. App’x 496, 503 ( 6 t h Cir. 2012); U nited States v. Andrews , 2 F. Supp. 3d 8 47, 853 (N.D. W

. Va. 2014); W allin v. Sinclair , 2013 W L 2338259 (W .D. W ash. 2013); Whiteside v. Warden, S . Ohio Corr. Facility , 2011 W L 5551598 (S.D. O hio 2011). Further, t he United States S uprem e Court has held that the Due Process C lause does not provide greater protection against double jeopardy t han the Double Jeopardy Clause itself

. Sattazahn v. Pennsylvania , 537 U.S. 101, 116 (2003). The Court wrote:

7 In P eo p le v. S ierb , th e M ich ig an S u p rem e C o u rt reco g n ized th at a ru le p ro h ib itin g retrial o n th e b asis o f a d u e p ro cess v io latio n w o u ld le a d t o p r o b l em s w ith arb itrary a ppl i c a t i on: “ [ I ]f r e c ogni z e d, g u id elin es f o r r esp o n sib le d ecisio n m ak in g in ap p ly in g th e ne w rem ed y w o u ld b e scarce an d o p en -en d ed

. If th ree trials are to o m a n y u n d er su b s tan tiv e d u e p ro cess, w h y are n o t tw o ? It co u ld f o l lo w th at eith er an y retrial af ter a m istrial is b arred as a v io latio n o f su b s tan tiv e d u e p ro cess, o r th at th e th eo ry as ap p lied w o u l d resu lt in arb itrary assertio n o f

j u d icial au th o rity

. ” S ierb , 5 8 1 N .W.2 d at 2 2 4

. 1 0 9At bottom , petitioner’s d ue-process claim is n o t h i n g m ore than his doublejeopardy claim in dif

f erent clothing. As we have said: “The Bill o f Rights speaks in exp l i c i t t erm s to m any aspects of crim inal procedure, a nd the expansion of those constitutional gua r antees under t he open-ended rubric of the Due Process Clause invites undue interf erence with both considered legislative judgm ents and the caref ul balance t hat the Constitution strikes between liberty and order.” Medina v. California , 505 U.S. 437, 4 43, 112 S. Ct. 2572, 120 L. Ed. 2 d 353 (1992). W e decline p etitioner’s invitation to hold that t he Due P rocess Clause provides g reater double-jeopardy p rotection t han does the Double Jeopardy Clause.
Id. See also U

n i t e d S t a tes v. Neto , 659 F.3d 194, 201 (1st Cir. 2011) ( the Due Process Clause of the Fif

th Am endm ent does not supplem ent the protections provided b y the Double Jeopardy Clause). Flowers’s due process claim is an attem pt to s upplem ent t he protections

o f the Double Jeopardy Clause. Because the double jeopardy p rotections h ave no t b e e n violated, F lowers cannot assert a due p r o c e s s c l a i m on the sam e g rounds. The issue is without m erit.
X I. Whether the c onvictions a nd death sentences w e r e obtained in violation of the Six th, Eighth, a nd Fourteenth Am endm ents t o the U nited States Constitution and their counterparts in the Mississippi Constitution. ¶183. F l o w e r s p r e s e n t s s e v e r a l contentions o f error related to h i s i n d i c t me n t s , t h e adm issibility of v ictim -im pa c t t e stim ony , and the c onstitutionality o f the death penalty

. Flowers claim s that the t rial court should have p r ecluded the State f rom seeking the death penalty because of the alleged l ac k o f e v i d e n ce. Because there was suf f icient e v idence to support a conviction, the issue is without m erit. See Issue I V supra . Flowers also asserts that his right to a speedy trial was violated f o r the C arm en R igby and Robert Golden convictions, but he provides no support f or that contention. As such, the issue is without m er i t

. S ee Byrom v. State , 863 So. 2d 836, 853 (¶ 35) ( Miss. 2003) (“f ailure to cite relevant authority

1 1 0obviates the appellate court’s obligation to review such issues”).

A. Whether it w as constitutional to try Flow ers for all f our m urders in t he sam e trial despite there being four, single-count indictm ents. ¶184. Flowers claim s t hat it was e rror f or him to b e tried f

o r all f our m u rders at a single trial when there were f

o ur, s i n g l e - count indictm e nts rather than a m ulticount indictm ent. He f urther claim s that the trial court erred in not e ntering an order consolidating the f our cases or obtaining a statem e nt waiving the m ulticount indictm ent. Flowers concedes t hat he did

not object at trial to proceeding under the f our, single-count indictm e nts, b ut h e claim s that the issue is one of

plain error. ¶185. A t h is f

irst trial, Flowers f

iled a m otion to consolidate the f our m urder ind i c t me n t s into one trial, but the trial court denied the m otion

. F l o w e r s I , 773 So. 2d at 3 18 (¶ 26). During Flowers’s third trial, the t r i a l court announced that the parties had agreed to consolidate the f

our cases. See Flowers III , 947 So. 2d at 916 (¶ 5). Flowers’s f ourth, f if th, and sixth trials were f

or all f our m urders. ¶186. I n h i s b r i e f

, F l owers claim s that Mississippi Code Section 99-7-2 r equires that he should have been charged unde r a mu l t icount indictm ent and/or that the trial court should have entered an order consolidating the m atters. S ection 99-7-2 does not include either of the alleged requirem ents; rather, it includes perm issive language allowing – but not requiring

– t he trial court t o proceed under a m ulticount indictm e nt. S ection 99-7-2 r eads in its entirely : ( 1 ) Two (2) or m ore o f

f enses which are triable in the sam e court may be charged in the sam e indictm ent with a separate count f or e ach of

f ense if : ( a) the of f enses are based on the s am e a c t or transaction; or (b) t h e o f f e n s e s are

1 1 1b a s e d on two (2) o r m ore acts or transactions c onnected togeth e r o r

constituting parts of a com m on schem e or plan. (2) W here two (2) or m ore o f f e nses are properly charged in separate counts of a single indictm ent, all such charges may be tried in a single proceeding. (3) W hen a def

e ndant is convicted of t wo ( 2) or m ore of f e n ses c harged in separate counts of an i ndictm ent, the court shall im pose separate s e ntences f

or each such conviction. (4) The jury or the court, in cases in which the jury is waived, s hall r eturn a separate verdict f

or each count of a n indictm e nt drawn under s u bsection (1) of this section. (5) Nothing contained in this section shall b e construed to prohibit t he court f rom exercising its s tatutory authority to suspend either the i m position or execution of any s entence or sentences i m posed hereunder, nor to p rohibit the court f rom exercising its d is c r e t i o n to im pose such sentences to run either concurrently w ith or consecutively t o e a ch other or any other sentence or sentences previously im

p osed upon the def

endant.
M i s s . C o de Ann. § 99-7-2 (Rev. 2014) (em phasis added). In 2 002, the Court of App e a l s addressed whether a def

e ndant i s entitled to a m

u lticount indictm ent. Brooks v. State , 832 So. 2d 607, 610-11 (Miss. Ct. App. 2002). I n Brooks , the def endant was charged with two
counts of sale of c ocaine in separate indictm ents and claim ed on appeal that he should have been charged under a m

ulticount indictm e nt. Id. at 608, 610 (¶¶ 1 , 13). The court held that single-count indictm ents were perm issible: [ The def e ndant] a rgues the cocaine sales were p art of a com m on sche me ; theref ore, he should have been charged in a m ulti-c o u n t i ndictm ent. [ The def endant] is i ncorrect. Separate indictm ents ar e the usual practice in Mississippi, while m

ulti-count indictm ents are exceptional. Mississippi Code Annotated § 99-7-2-(1) (Rev. 2000) provides the three exceptional situations in which a m

ulti-count indictm ent may be brought: “(1) the of f enses are based on the sam e act o r transaction; or (2) the of f e nses are based on two (2) o r m ore acts o r transactions con n e c t e d t o g ether; or (3) the of f enses are based o n t wo (2) or m o re acts or transactions constituting parts of a c om m o n s c h e me or

1 1 2pla n . ” I d. A basic t enet of statutory construction is that the word “shall” i s a m andatory directive, a nd the word “ m ay ” is discretionary i n nature. Am erican Sand and Gravel Co. v. Tatum , 620 S o. 2d 557, 563 ( Miss. 1993); Planters Bank & Trust Co. v. Sklar , 555 So. 2d 1024, 1027 (Miss. 1990). In this case, the State could have b rought a m u lti-count indictm ent but w as not required to do so.
Id. a t 610 (¶ 13). F lowers provides no other authority f or his proposition that a m u lti-count indictm ent was required. ¶187. F l o w ers also c laim s that the trial court e r red by not e ntering an order cons o l i d a t i n g the m atters and/or obtaining a waiver f rom F l o w e r s “to be t ried on only a s i ngle count indictm ent.” In support of his argum ent, Flowers cites State v. Berryhil l , 703 So. 2d 250 ( M i s s . 1 997), and Woods v. State , 200 Miss. 5 27, 27 So. 2d 895, 896-97 (1946). Neithe r

case supports Flowers’s contention. Berryhill stands f or the proposition that “capital m urder indictm ents that are predicated upon the underly ing f elony of b urglary m

ust a s s e r t w ith specif icity the f

elony that com

prises the burglary .” Berryhill , 703 So. 2d at 258. And,

a l t hough the C ourt i n Woods f ound that the trial court erred by allowing the State t o consolidate f

or trial three separate crim es – exhibiting a deadly weapon, carry ing a concealed
weapon, and a ssault and battery with f ists – the case is distinguishable f rom Flowers’s case. Woods , 27 So. 2d at 897. In Woods , the Court n oted t hat the three c rim e s contained dif f erent elem ents and the dif

f erent elem ents led to a possibility of prejudice f

or the def e nse: the accused had to be p repared to m eet evidence of three distinct c r im es, where m uch of t he evidence as to one was not com petent as to the others. Certainly the accused was conf

o unded in his def

ense and evidence was i n t r o d uced bef ore the jury

which would not have been com petent upon separate trials. Id. The concern present in W o o ds – that the def

endant would have to def end three distinct

1 1 3crim es

– i s not p resent in today ’s case. Flowers w as c h a r g e d with f our counts of capital

m urder with the u nderly ing f e l o n y o f arm ed robbery

. Because proceeding u nder single-count indictm ents is perm itted, the issue is without m erit.
B. Whether t h e trial court erred by refusin g F l o w ers’s m otion to quash the indictm ent for fail u r e t o a l l e g e a n a g gravating circum stance and/or the m ens rea requirem ent. ¶188. Flowers c l a i ms that his indictm ents were constitutionally insuf f i cient because they f ailed t o list the aggravating f a ctors and/or the mens rea requirem ent. As m entioned above, Flowers was c harged with the m urders in f

our single-count indictm ents. Aside f rom the victim s’ nam es, each indictm ent contained identical language. The indictm ents read, in part: CURTIS GIOVANNI FLOW ERS late of Montg o m ery County , M ississippi, on or about the 16th day

of July , 1996, in the county and state af oresaid, and within the jurisdiction of this Court, alone or while ac t ing i n concert with another o r others, did unlawf u ll y , wilf u lly , f eloniously , and e ither w ith or without the deliberate d e sign to ef f ect death, k i l l a n d mu r der [ the victim ], a hum an being, by shooting her with a pistol, while engaged i n the c o m m ission of the f e lony crim e of a rm e d robbery in violation of M iss. Code A nn. Section 97-3-79 and Section 97-3-19(2)(e) [ as am e nded] a gainst the p eace and dignity of the State of

Mississippi. ¶189. Flowers c laim s that the indictm ents w er e i n s u ffi c i e n t u n d e r the United States Suprem e Court’s holdings i n Apprendi v. New Jersey , 530 U.S. 466, 4 76 (2000), and Ring v. Arizona , 536 U.S. 584, 605-06 (2002). W e addressed the sam e argum ent in Pitchford and said that

we have h e ld repeatedly that “ these cases have no application to Mississippi’s capital m urder sentencing schem e.” Pitchford , 45 So. 3d at 258 (¶ 184). The indictm ent i n P itchford was alm ost identical to F lowers’s indictm ents. See i d. at 257-58 (¶ 183). T he Pitchford Court provided the f

ollowing regarding the Court’s ref usal to apply Apprendi a nd Ring to the issue:

1 1 4This Court repeatedly has re j e c ted this ty

p e of argum ent. W e h ave held t hat Apprendi a nd Ring address issues w holly distinct f rom the p resent one, and in f act d o n o t a d d r e s s indictm ents at all. The purpose o f an i ndictm ent i s to f urnish the def

endant with notice and a reasonable description of the charges against him so that he m ay prepare his d ef ense. An indictm ent is required only to have a clear a nd c oncise statem ent of t he elem ents o f the crim e with which the def endant is charged. Under Mississippi law, the underly ing f elony that elevates t he crim e to capital m urder m u st be identif

ied i n t h e i ndictm ent along w ith the section and sub s e c tion of the statute under which the def endant is being charged. In addition, our death penalty s t a t u t e clearly states t he only aggravating circum stances which m ay be relied u pon by t h e p r o s e cution in seeking the ultim ate punishm e nt. W h en [ the def

e ndant] w as charged with capital m urder, he was put o n notice tha t t h e death penalty m ight result, what aggravating f actors m i ght be used, and the m ens rea standard that was required. Pitchford , 45 So. 3d at 258 (¶ 184) (quoting Goff v. State , 14 So. 3d 625, 665 (¶¶ 174-77) (Miss. 2 0 09) (citations om itted)). Because Flowers’s indictm ents p rovided h im with “notice and a reasonable d escription of the charges a gainst h im so that he m a y prepare his def ense,” the issue is without m erit.
C. Whether t he t rial court erred by not d e c laring Mississippi Code Section 97-3-19(2)(e) unconstitutional and/or b y not precluding t he prosecution from rely ing on Mississippi Code Section 99-19-101(5)(d) as an aggravating circum stance

. ¶190. Flowers claim s t h a t M i s s i s s i p p i C o d e S e c tion 97-3-19(2)(e) i s unconstitutional because it a l l o w s f

or an “arbitrary and capricious” application of the death penalty , since

cases of delib erate design and d epraved heart m urder are not death penalty eligible when f elony m urder is death penalty eligible. H e f u r t h e r c o ntends that the a pplication of Mississippi Code S ection 99-19-101(5)(d) as an a g g r a v a ting f actor is unconstitutional

1 1 5because the underly ing f elony – arm ed robbery – m ade the case eligible f or the death penalty

. Theref ore, Flowers claim s that the underly ing f elony cannot also be u sed as a n aggravating circum stance. W e have discussed both of the issues in past opinions. ¶191. I n B a t

i s t e , t h e d e f

endant claim ed that Mississippi’s death-penalty sc h e me w a s unconstitutional “because it [ d id] not a llow the death penalty in cases of sim ple m urder, no

m a t t e r h o w p r e meditated o r atrocious.” Batiste , 121 So. 3 d at 872 (¶ 181). W e held that Batiste was not entitled to relief because “the death penalty in Mississippi does not violate the U.S. Constitution.” Id. (quoting Gillett , 56 S o . 3 d at 525 (¶ 168)). W e also have

a d dressed whether the underly ing f elony m ay b e considered a n aggravating circum stan c e , and we have held that u se of the unde r l y i n g f e l o n y as the aggravating circum stance is appropriate. See Manning , 735 So. 2d at 350-51 (¶ 67). Further, the use of an underly ing f elony as an aggravating c ircum stance has been upheld by the United States Suprem e Court. See Lowenfield v. Phelps , 484 U .S. 231, 241-46 (1988). For the above reasons, the issue is without m erit.
D. W h e t h e r t h e t r i a l c o u r t e r r e d i n p e r m i t t i ng v i c t i m- i mp a c t testim ony . ¶192. During the penalty phase, f our witnesses p r o v i d e d v i c t i m - i m p a c t t e s t i m o ny – Roxanne Ballard, Bertha Tardy ’s daughter; Brian Rigby , C a r me n Rigby ’ s son; Kathy Perm enter, Derrick Stewart’s m other; and W illie Golden, Robert Golden’s brother. Flowers contends that the trial court erred in perm itting victim

- im pact testim ony d

uring th e p e n a l t y phase because the testim ony did not relate to the statutory aggravating f actors. Flowers also claim s that the adm ission of victim -im pact testim ony

violated the Eighth Am endm ent.

1 1 6¶193. Recently , i n B atiste , we held that victim -im p act testim ony did not v iolate t he Eighth
Am endm ent: Victim im

p act statem ents are those w h i c h describe the victim ’s personal characteristics, the em otional ef f ect of the c rim e s o n the victim ’s f am ily , and the f am ily ’s opinions of the crim es and the def endant. Edwards v. State , 7 37 So. 2d 275, 2 91 (Miss. 1 9 99). T he United States Suprem e Court has held t hat there is n o per se b ar to victim -im pa c t t e s t i m ony . Payne v. T ennessee , 5 01 U.S. 808, 827, 111 S. C t. 2597, 2609, 115 L. Ed. 2d 7 20 (Miss. 1991). This testim ony is adm issible at the se n t e n c i n g phase, but not in the culpability phase. H avard v. State , 928 So. 2d 771, 792 (Miss. 2006). W e w i ll allow r e l e v a n t v i c t i m - im

pact t estim ony in narrow c i rcum stances a s i s c o n s t i t u t i o n a l l y perm issible. Id. W hen the evidence is prop er, necessary t o a d evelopm ent in the case and the true characteristics of the victim , and could not incite the jury , the testim ony is adm i ssible

. I d . ( q u o ting Jenkins v. State , 6 07 So. 2d 1171, 118 3 ( M i s s . 1992))

. . . . W e decline to disregard the United S tates S uprem e Court’s pronouncem ent i n Payne , and will continue to adhere to the standard enunciated above.
Batiste , 121 So. 3d at 864 (¶ 147). On several occasions, we have perm itted victim -im pact testim o ny that described the im p act of the victim ’s death on his or her f am ily

. See Keller v. State , 138 So. 3d 817, 8 65 (¶ 1 31) (Miss. 2014); Batiste , 121 So. 3d at 864 ( ¶ 148); Havard

v. State , 928 So. 2 d 771, 792 ( ¶ 37) (Miss. 2006); Branch v. State , 882 So. 2d 36, 68 (¶¶ 96- 97) (Miss. 2004). In H

avard , the Court f

ound that it w a s not error to a dm it the testim ony of the victim ’s grandm other, who stated, “ [ j]ustice m eans [ the victim ’s] l i f e w a s taken, and there is o nly one way that we can f ind justice

. . . . A lif

e f or a lif e.” Havard , 928 So. 2d at 792 (¶ 36). The Court noted, however, that the “vast m a j ority ” of t he w itn e s s ’ s t e stim ony “went straight to the relationships between h er f am ily m em

bers, including [ the victim ], and the im p act losing [ the victim ] h a d on them , all part of perm i ssible t estim o ny under our case law.” Id. at 792 (¶ 37).

1 1 7¶194. Flowers c ites Berry v. State f or the proposition t hat victim -im pact testim ony m

ust be relevant to a statutory aggravating circum stan c e , and that case d oes provide t hat victim

im p act testim ony i s adm issible “if it is necessary to develop the case, a nd if it is relevant to
any of the aggravating circum stances.” Berry , 703 So. 2d at 275-76. However, we rejected the sam e argum ent in K

eller v. State

. In Keller , the def endant cited Berry and argued that victim -im pact testim o ny was not perm issible w hen “it did not relate to any of t he aggravating f actors.” Keller , 1 38 So. 3d at 8 6 5 ( ¶ 1 2 9 )

. The testim o ny in Keller described “the

em otional ef

f ect of the crim e on the victim ’s son and his opinion of the crim e.” Id. at 865 (¶ 131). Despite the statem ent i n Berry , we held t hat the testim ony w as “perm issible under the Court’s precedent on victim -im pact statem ents.” Id. ¶195. In today ’s case, the victim -im pact testimo n y w a s c o n s i s t e n t w i t h t h e testim ony presented in Keller and Havard . At the sentencing phase, Roxanne B allard testif ied about her relationship w ith h e r m other and the ef f e ct her m other’s death had on h er lif e. Likewise, Brian Rigby , Kathy P e r me n t e r , a nd W illie Golden testif ied about the im

pact their f

am ily

m em bers’ deaths had on them and their f am ilies. The above-described t y pe of victim -im

pact testim o ny is perm issible, and the issue is without m erit.
X II. W hether the death sentence in the instant m atter is constitutionally and statutorily disproportionate. ¶196. M i s s i s s i p pi Code Section 99-19-105(3) requires the Court to determ ine “ [w ] h e t h e r t h e
sentence o f death is excessive o r d i s p roportionate to the penalty im posed in sim ilar cases,

c o n s idering both the crim e and the def endant.” M iss. Code A n n. § 9 9-19-105(3 ) ( R e v . 2015). The Court consis t e n t l y h as “upheld the death penalty in cases involving capital

1 1 8m

urders com m itted during the com m ission of a robbery .” Batiste , 121 S o. 3 d at 873 (¶183) (citing Gillett , 5 6 S o. 3d at 5 2 4; Fulgham , 46 So. 3d at 323; Goff , 1 4 S o. 3 d at 650; Cham berlin v. State , 989 So. 2d 3 20, 345 (Miss. 2008); Doss v . State , 709 S o. 2d 369, 401 (Miss. 1 997); C

hase v . State , 645 So. 2d 829, 836-37 (Miss. 1994)). Further, t he Court has upheld the im

position of the death penalty in c a ses involvi n g m u l t i p l e v ictim s. See Manning , 765 So. 2d at 522 (¶ 17). As such, the issue is without m e rit.
X I II. W h ether the C ourt should set aside its prior order d eny ing Flow e r s’s m otion f o r rem and and leave to file supplem ental m otion for new trial. ¶197. In May 2012, Flowers f iled a m otion f

o r rem and and leave to f

ile supplem ental m otion f or new t rial on the basis that t he State f ai l e d t o d i s c l ose inf

orm ation relating to the credibility of one of its witnesses, Patricia Hallm on Sullivan Odom

. Approxim a tely f our

m onths prior t o the start of Flowers’s sixth trial, a f ederal grand j ury indicted Odom f or tax f raud. Odom ’s trial w as in Septem ber 2010 – three m onths af te r F l o w e r s ’ s trial. Flowers contends that t he State shoul d h a v e disclosed Odom ’ s indictm ent. Flowers’s m o tion was based on the United States Suprem e Court’s holding i n Brady v. Maryland , 373 U.S. 83, 87 (1963), “that the suppression by the prosecution of evidence f avorable to an accused upon request violates due process where the e vidence is m aterial either t o guilt or to punishm ent, irrespective of the good f aith or b a d f

a i t h of the prosecution.” In response to Flowers’s

m otion, the State c laim ed t hat the issue should not be presented to the Court through m otion

or direct a

ppeal b ecause t he issue was not presented t o the trial court. The State also subm itted District Attorney Doug Evans’s af f idavit, which provided that h e was not aware of O dom ’s indictm ent until af ter Flowers’s trial. The Court denied Flowers’s m otion.

1 1 9Because the issue was not presented to the trial court, it is not proper on appeal.

X I V. Whether the cum ul a t i v e e f f ect of the e rrors m andates reversal of the verdict and/or the sentence of death entered pursuant to it. ¶198. Flowers claim s that, e ven i f the Court has doubts about the h arm of any one error in isolation, the cum

ulative ef f ect of the errors warrants reversal. C ertainly , the Court of ten has applied the cum

ulative-error doctrine in c a pital cases wher e , “although no error, standing alone, requires reversal, the aggregate e f f ect of various errors m a y create such an atm osphere of bias, passion[ ,] and prejudice that they ef f e ctively deny the def

endant a f undam entally f

air trial.” G off , 14 So. 3d at 672 (¶ 210) (citation o m itted). That is not the case here. W e have thoroughly reviewed the brief s, a r g um ents, record, and t rial transcript, a nd we have determ ined that each issue raised by Flower s i s w i thout m erit. Theref ore, as there are no individual errors, there is no cum u lative error.
Conclusion ¶199. Each issue raised b y Flowers is without m erit. Flowers’s f o ur convictions f

or capital

m urder and sentences to death were properly decided by the jury , and we af f irm

. ¶200. AFFIRMED. RANDOLPH, P.J., MAX WELL, BEAM AND CHAMBERLIN, J J., CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED B Y KITCHENS, P .J., AND ISHEE, J. K I N G, J ., DIS S E N TS WITH SEPARATE WRITTEN OPINION JOIN E D BY KITCHENS, P . J.; WALLER, C.J., JOINS IN PART. WALLER, CHIEF JUSTICE, DISSENTING: ¶201. B e c a u se the prosecution’s m ischaracterizations of t h e e v i d e n c e d u r i n g c l o s i n g
argum ents af

f ected Flowers’s f

undam ental right to a f

a ir trial, I respectf

ully dissent.

1 2 0¶202. Prosecutors are a f f orded the right to argue f

acts that are in e vidence. Henton v. State , 752 S o. 2d 406, 409 (¶ 11) (Miss. 1999). “However, arguing statem ents of f a ct that are not in evidence or necessarily inf erable f rom it which are p rejudicial to the def endant is error.”
Dancer v. State , 721 S o. 2d 5 8 3, 589 (¶ 31) (Miss. 1998). As discussed by Justice King, the prosecution in this case m ischaracterized evidence during closing argum ents. Two of those

m isstatem e n t s –the tim ing of Sam Jones’s arrival a t Tardy ’ s and Flowers’s m otive–the prosecution sim ilarly used in Flowers II , where we f

ound reversible error. Flowers v. State , 842 So. 2d 531, 555 (¶ 71) (Miss. 2003) ( Flowers II )

. ¶203. W h ile it is true that f o urteen prosecutorial m isstatem e nts were a lleged in Flowers II

a s o p posed to o nly f

our m isstatem ents in the case sub judice , this Court uses heightene d scrutiny w hen the death sentence is im posed. Cox v. State , 183 So. 3d 36, 44 (¶ 17) (Miss. 2015). “This higher l evel of s crutiny requires t hat all doubts be res o l v e d i n f avor of the accused because ‘what m ay b e harm less error i n a case with less at stake becom e s reversible

error when the penalty is death.’” Bennett v. State , 933 S o. 2d 930, 939 (¶ 17) (Miss. 2006) (citations om i tted). Apply i n g h eightened scrutiny , I f ind plain error in the prosecution’s

m ischaracterizations, particularly given our adm onishm e nts in F lowers I I

. T h eref ore, I would reverse the judgm ent in this case and rem and f or a new trial. KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION. KING, JUSTICE, DISSENTING: ¶204. In two p revious direct appeals, this Court has reversed F lowers’s conviction and death

sentence as a result of prosecutorial m isconduct. In Flowers v. State , 842 So. 2d 531 (Miss.

1 2 12003) ( Flowers II ), the prosecution’s argum ent of f acts not in e vidence resulted in reversal. Finding that a Batson 8 violation had occurred, this Court reversed and rem anded Flowers v. State , 947 So. 2d 910 (Miss. 2007) ( Flowers III ), f or a new trial. D espite the sam e e rrors occurring in the trial that is the subject of this appeal, the Majority , i n a stark departure f rom this Court’s previous F

lowers opinions, f

ound t hat Flowers’s conviction and death sentence should be af

f irm ed. The United S t ates Suprem e Court then granted Flowers’s petition f or

a writ of certiorari, vacated our judgm ent, and rem a nded t he case (a “GVR”) to t h i s C o urt f or f urther consideration. The United States Suprem e Court f i nds that a GVR is potentially appropriate [ w]here intervening developm ents, o r r e c e n t d e v e l o p m e n t s t h a t w e have reason to believe the court below did not f ully cons i d e r , reveal a reasonable proba b ility t hat the decision below r ests upon a prem ise that the l ower court would reject if given the opportunity f or f urther consid e r a t i o n , and where it appears that s uch a redeterm ination m ay determ ine t he ultim ate outcom e of the litigation[

. ]
Lawrence on Behalf of Lawrence v. Chater , 5 16 U.S. 163, 167, 116 S. Ct. 604, 133 L. Ed. 2d 545 ( 1996) (em

phasis added). To put it s im ply , the United S tates Suprem e Court issued

a G VR in this case b ecause a m ajority of i ts m em bers believed that a reasonable probability exists that this C ourt g o t it wrong on the f irst tr y . Y e t , t his Court ignores that strong im p lication and m akes the sam e erroneous decision on rem and. Because t h e e rrors in this

c a s e , p articularly the denial of Flowers’s Batson claim s highlighted by the United Stat e s Suprem e Court, resulted in Flowers being denied his right to a f air trial, I dissent.
I. Prosecution’s Argum ent of Facts Not in Evidence

8 Batson v. Kentucky , 476 U.S. 79, 89, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). 1 2 2¶205. Three instances of the prosecution arguing f acts not in e v idence appear i n t o d a y ’s

case: (1) the prosecution m isstated the tim e Sam Jones discover e d t h e victim s’ bodies at Tardy ’s; (2) the prosecution stated an unsupported basis f or Flowers’s alleged m otive; and (3) the prosecution incorrectly described Porky C ollins’s reaction to t h e p h o t o array s. In Flowers II

, 8 42 S o. 2d a t 550, t h e p r o secution’s m isstatem e nt of f acts during closing
argum ent was one basis, inter alia , f or this C o urt’s reversal. In that a p p e a l , F l o wers cited approxim a tely f

ourteen alleged m is s t a t e me n t s. Id. at 555. This Court f ound that the f ollowing m isstatem ents by the prosecutor resulted in a n u nf air trial: (1) that def

ense wit n e s s e s t r i e d to coerce the State’s witnesses t o lie; (2) that Sam Jones received a call at 9:30 a.m . f

rom Bertha Tardy asking him to com e to the store; and ( 3) that F lowers “was m ad” about losing his job and having his pay docked. I

d. a t 555-56. ¶206. The s tatem ents that resulted in this Court reversing F l o w e rs’s conviction and death

sentence in Flowers II are notably sim ilar to t he s tatem ents raised in today ’ s case. W hile this repetition of prosecutorial m isconduct is alarm ing, the Majority ’s approval of the sam e is

even m ore startling. Courts have long recognized – and reasonably f e a red – that m isconduct during closing argu me n t m ay becom e com m onplace in our trial courts. D e s pite regular adm onishm e nts, such m isconduct still occurs: That despite our c onsistent w a r n i ngs to the Governm ent we s hould still be called upon to adm onish against such conduct is reprehensible per se because it constitutes a disregard f or our directives. But additionally it is p articularly pernicious because it r esults i n a n u n n ecessary waste of judicial resources, both at the trial and appellate level, by diversion a nd attention t o r e v iew of what now should be unders t o o d to be totally unacceptable conduct by those who lay claim to representing the Governm ent . . . .

1 2 3U.S. v. Maccini , 721 F.2d 84 0 , 8 4 6 ( 1 st Cir. 1983). The Majority in today ’s case, by

endorsing the prosecutor’s m i s s t a t e m e n t s

– t h e s am e m isstatem ents which warranted reversal in Flowers II

– t a k e s M ississippi one step closer to having m isrepresentation of the f acts presented at trial com m o nplace in our trial courts.
A. Sam Jones’s Testim ony Regarding His Arrival at Tardy ’s ¶207. Sam Jones died prior to Flowers’s 2010 trial, and his testim ony f rom Flowers’s 2007 trial was read into evidence. Flowers claim s that the State m isrepresented Jones’s testim ony regarding the tim eline of

events the m o rning of

the m urders. Jones testif

ied as f ollows:
A. W ell, [ Bertha Tardy ] called m e and asked m e – I h a d prom ised her I would com e down a nd help them load out a truck and go on a delivery

. And she c alled m e to ask m e about was I com ing down there. And I told her that I was. And then about, that was about 1 5 mi n u t e s af ter 9:00, I think, when she called, som ewhere along in there. Q. About what tim e did y o u get to the store that m o rning, Mr. Jones?

. . . . A. I got to the store; i t was bef ore – it w as right a t , between 9:15 a nd 9 :30. Q. Okay

. A. I will put it like that. It wasn’t 9:30. Q. Okay . You got to the store between 9:15 or right around that tim e? A. Yes. Although Jones testif

ied that he a rrived at Tardy ’s b etween 9:15 and 9:30 a.m ., the State

a ttem pted to question Jones later about the tim eline and m isstated that he arrived closer to 10:00 a.m .:

1 2 4Q. Okay

. A nd I think – I m ight h ave m isled y ou a l ittle bit. It was, when y o u g o t to the store, that was going t o be closer on u p to 10 o’clock, wasn’t it? Flowers’s Counsel: Object to leading, Your Honor.
Court: Overruled. Jones never responded to this question. ¶208. In its c losing argum e nt , t h e S t a t e d i s c u s s e d t h e tim eline f or t he m orning of

the

m urders and apparently put the tim eline on som e ty p e of m arker board. D uring the tim eline discussion, the prosecution stated: “Mr. S a m Jones cam e into the store slightly af ter 10:00

o n t h e mo r n i ng o f the 16th and discovered the b odies.” Flowers did n ot object to t h i s
statem ent at closing argum ent. ¶209. In Flower

s I I , 842 S o. 2d at 511, t his C ourt addressed whether this sam e i ssue was procedurally

barred by lack of contem poraneous objection. This Court applied plain error

to t he issue, and f

ound that the p r osecution’s m isstatem ents warranted reversal. Id. “The plain error doctrine requires that there be an error and that the error m ust have resulted in a

m anif est m iscarriage of justice.” William s v. State , 794 S o. 2 d 181, 187 (Miss. 2001) (citing Gray v. State , 549 So. 2d 1316, 1321 (Miss. 1989)), overruled on other g rounds by Foster v. State , 148 So. 3d 1012 (Miss. 2014). ¶210. In Flowers II

, 8 42 So. 2d at 555, the prosecution stated that Sam Jones had testif ied that Bertha Tardy had called h im at 9:30 a.m . Reviewing this statem ent, this Court stated: Af ter a thorough exam i nation o f the r ecord, it is clear f r om Jones’s testim ony that he testif

ied he arrived at Tardy ’s at 9:30. H e n e v e r o n c e s tated he was called at 9:30 o n the m orning of July 16, but he did testif y h e arrived at the store around 9:30. On dir e c t e x am ination, the State never questioned Jones

1 2 5about a specif ic tim e. H e only stated he received a call f rom Mrs. Tardy on the m orning of J uly 16. On cro s s - e xam ination, Jones was asked what tim e he arrived at Tardy ’s, and he answered it was around 9:30.
Id. at 556. This Court then f ound that “[ t]he cum

ulati v e e f f e ct of the State’s repeated instances of arguing f

acts n ot i n evidence was to deny Flowers his right to a f

air trial.” Id. ¶211. Flowers claim s that the statem ent in t o d a y ’ s c a s e p r e j u d iced him by

essentially skewing t h e t i m eline in the S tate’s f a vor. Porky Collins a n d Clem m ie Flem m ing both testif i ed t hat they saw Flowers near Tardy ’ s around 10:00 a.m . Flowers claim s that if Jones’s testim o ny had been accurately described – that he arrived at the s tore between 9:15 and 9:30 – the question of w hat Flowers was doing so close to the scene of a m u rder thirty to f

orty

f i v e mi n u tes af

ter the m urders c ould have occurred would have been raised in the jurors ’

m inds. ¶212. There is n o doubt that the prosecutor’s statem ent is not supported by S a m J o nes’s testim o n y a n d t h a t there is no direct evidence supporting the contention that Jones arrived

at T ardy ’s at 10:00 a.m . The prosecution ’s statem ent is not b ased on f acts and prejudiced Flowers by

deliberately

painting an incorrect picture f or the jury

of the events surrounding the discovery

of the m urders – this sam e picture was painted in Flowers II

. B. Flow ers’s Motive ¶213. The second m isstatem e nt F lowers cites relates to his alleged m o t i v e t o c o mmi t the

m urders. S im ilar to Sam Jones’s testim ony and the tim eline described above, m isstatem ents related to Flowers’s m otive were another basis f or this Court’s reversal in F lowers II , 842 So. 2d at 556. In Flowers II , 842 So. 2d at 555-56, this Court f o und that the prosecution’s

1 2 6statem ent that Flowers “was m ad” as a result of losing his em ploy m ent with Tardy ’s was a

m isstatem ent of

the f acts: [ T]he prosecutor a rgued to the jury that [ Robert] Cam pbell had testif

i ed t hat Flowers was m ad because Mrs. Tardy had term inated his e m ploy m ent and was holding m oney

out of his pay check to cover the dam aged batteries. Def ense counsel object e d o n the basis that the prosecutor was m ischaracterizing Cam p bell’s t estim ony , and when the p rosecutor responded that he was quoting verbatim f

r om his notes, the trial court overruled the d ef ense object i o n . . . . Af ter a thorough exam i nation of Cam pbell’s testim ony , it is clear C am pb e ll never testif

ied Flowers w as upset at M rs. Tardy

. T he State n ever questioned Cam p bell about Flowers’s f

eelings toward Tardy or about a n y m oney . On redirect, Cam

pbell was a sked if Flowers ever m entioned any thing was wrong with Mrs. T a r d y , and Cam pbell stated Flowers never m entioned any thing to him

. Id. ¶214. In today ’s appeal, Flowers claim s that the f ollowing statem ent by the p rosecutor w as not based on f

acts in evidence: The i nvestigators learned p retty quickly w hen they asked who in the world could have had som e r eason, som e m otive, som e any thing to attack f

our people like this.
Have y ou had any body that’s had b eef w ith the store? Just one. W ell, t hat doesn’t m ean he di d t his though, does it? No. But y ou check that o ut. Y ou look at him . And in the course of deciding what, if any thing, Curtis Flowers had to do with this crim e. Flowers claim s that no evidence was presented at trial s u pporting the contention that he was
angry a s a result of his term ination. In response, the State a rgues that the f ollowing supports the contention that Flowers “had beef ” with Tardy ’s: 1. Flowers losing his job day s prior to the m u rders.
2. Bertha T ardy deducting the cost of dam aged invent o r y f r om Flowers’s pay check.

1 2 73. Police Chief John Johnson’s testim o ny tha t t he T ardy f a m ily considered Flowers a threat: Q. Ok a y . H ow did Curtis Flowers becom e a suspect by then, by 6:30? A. I k new that the T a r d y f

am ily had considered Curtis a threat a nd that they were concerned about their saf ety dealing with him

. 4. Investigator Jack Matthew’s testim ony about em ploy ees who had been f

ired f rom Tardy ’s: Q. You asked who else had worked there the last couple of y ears and those kind of

things?
A. W ell, we asked if t here was any body that they ’ d h ad any problem w ith or any

body t hat had been f

ired f rom there, and that was the – Curtis was the only one. 5. Doy le Sim

pson’s testim ony

that Flowers had “problem s ” with Tardy ’s: Q. Okay

. Did y ou know any thing about C u rtis having any problem s with Tardy F urniture.
A. I had heard about it. ¶215. This evidence cited by the State supports the contention that Tardy ’s em ploy ees were concerned about Flowers. But the f eelings and perceptions of Tardy ’s em ploy ees m

ust be distinguished f

rom Flowers’s perception. The statem e n ts cited by the State d o not establish that Flowers had ill will t oward Tardy ’s e m ploy ees. Further, Doy le Sim p son’s testim ony is

too vague to support a statem ent that Flowers “had b eef ” with the s tore. “Problem s” could easily ref er to the f iring itself or t he dam aged i nventory

. T he S tate’s contention that Flowers “had beef ” with Tardy ’ s is u nsupported by the f acts. As this Court recognized i n Flowers

1 2 8II

, this f actually unsupported statem ent resulted in Flowers having an unf air trial.
C. Porky Collins’s Response to Photo Array s ¶216. Next, Flowers claim s that the prosecutor m isrepresented Porky Collins’s response to the f irst p hoto a rray – the array that contained a p hotograph o f Doy le Sim p son. Flowers claim s t hat this m isrepresentation was particular l y p r e j u d i cial because part of his def ense was based on the alternative theory t h a t D o y l e S im pson was the perpetrator. Collins saw two Af rican-Am erican m en arguing outside Tardy ’ s the m orning of the m urders. W hen Collins testif i ed, he sta t e d that h e d id n ot rem em ber if he i dentif

ied Sim pson as one of the m en standing outside Tardy ’s. T he notes taken during the photo array s state that C ollins had the f ollowing reaction to the array containing Sim

pson’s photo: #1 and #3 resem

bles, but hairline was f

urther back # 6 pointed to Sim

pson, s aid h airline like this, m ay h ave appeared a lit t l e darker. “But it looks like him .” “Face was also sam e shape, round like this.” “Unable to be positive.” Investigator W ay

n e Miller testif

i ed that C ollins did point ou t S im pson during t he photo array : Q. All right. S o he did actually point out Mr. Sim pson here as som e body who was – looks like the person he’d seen; i s t h a t a f air characterization?
A. Right. ¶217. T h e S t a t e p r e s e n t e d t h e f o llowing c l o s i n g a r g u me n t r e l a t e d t o C o l l i n s ’ s identif ications: Wh e n Porky f

ound out t hat som e people h ad been m urdered in f

ront o f Tardy ’s, he told Jam es T a y lor W illiam s. He said I saw som e thing I think y ’ all ought to know about. He said I think I can identif y that guy if I see him a gain.

1 2 9Now, here’s the interesting thing about Mr. P orky Collins. Porky didn’t know

Curtis. Never claim s to have ever seen him bef ore. D idn’t k

now h im

. Didn’t know t h os e o t h e r p eople, as f ar as them having seen h im

. Porky say s I can identif y him

. I’m going to ref

er to t his som e m o re in a m in u t e b u t I just want y o u to

– y ou’ve seen these. W e had them p assed to y ’all. Here a r e two l ine-ups. These line-ups were shown to Porky at the sam e setting. First was this one t hat h as Doy le Sim

pson’s picture on it. Because lat e r o n w h en they did this line-up, they already k

n ew that t he g un cam e out of D oy l e’s car. And so they gave this thing to Porky f

irst and said is the guy that y o u saw in f ront of Tardy ’s in this group. Now, if he was g oing to m ake a m isidentif i cation, ladies and gentlem en, t hat would h ave been the perf e ct tim e f or him to pick one of these guy s and say y eah, there he is right the r e . B u t y o u know what? Porky did not m isidentif y any b o d y . He said the guy ain’t there. They took a nother six photographs and said look at this second set. He said that’s him r ight t here. You h eard Mr. Miller talk abo u t Porky , said he was positive. He m a d e a positive identif ication. Now, w hy is Porky ’s i.d. – Porky doesn’t k now him

. Porky wasn’t able t o say y eah, I know him

. W hen he saw t he photograph of Curtis Flowers, he pointed him out. So y ou have got two dif f erent kinds of identif

ications and they a gree. You’ve got identif

ication by all these witnesses who knew him , Porky , w ho didn’t know him , and they both agree. And h e w a s o f f ered

– Porky was of f ered a prim e c hance to m ess up. The perf ect chance to m ake a m istake. He alm ost – it didn’t develop out that way it, but it was alm o st like a trick.
You k now , see if he is in there. No, he is not. I s he in the second group? Yeah. T hat’s him r i ght there. S o that’s a pretty strong identif i cation, isn’t it? ¶218. Wh i l e the State c orrectly characterized C ollins’s identif ication of Flowe r s i n t h e

seco n d p h o t o array , the State deliberately f ailed to recognize Collins’s statem ent that Sim pson’s photograph i n the f irst array “ looks like” a m an he saw outside o f T ardy ’s and that he w as “unable to be p ositive.” T he State’s a rgum ent that Collins stated “the guy ain’t there”

was not an accurate representation of C o l l i n s ’ s identif ication. Because Flowers’s def ense

1 3 0was b ased, in part, on the argum ent that Doy le Sim pson w as a likely suspect f or the m urders, the State’s m isstatem ent regarding Collins’s identif ication of Sim

pson prejudiced Flowers. ¶219. As in Flowers II

, the prosecution ’ s r e p e a t e d a r g u m ent of f a cts not in e vidence in today ’s case prejudiced Flowers and denied him h is right to a f a i r trial. Under this Court’s heightened review o f death penalty cases, these m isstatem ents – standing alone – should be enough to warrant reversal. See Fulgham v. State , 46 So. 3d 315, 322 (Miss. 2010) (“W hat

m ay be harm less error in a case with l ess at stake becom es reversible error when the penalty is d eath.”). This Court’s prior adm onishm ent of essentially t he sam e s tatem ents in Flowers
II b olsters a f

inding of reversal. See U.S. v. Drum m ond , 4 8 1 F

. 2 d 6 2, 62 (2d Cir. 1973) (“Because of t he repeated m i sbehavior of this p r o s e cutor in t his and prior c ases, we f eel

com pelled to reverse the decision of the trial c o urt on the sole ground of pros e c u t o r i a l

m isconduct.”).
II. Jury Selection Process ¶220. Flowers claim s that the State violated the Equal Protection Clause of the Fourteenth
Am endm ent when it struck f ive A f rican-Am e rican jurors af

ter u t i l i z i n g d i s p a

r a t e questioning and citing pretextual reasons. “The Constitution f orbids striking even a single prospective juror f o r a discrim inatory purpose.” Foster v. Chatm an , __ U.S. __, 136 S. Ct. 1 737, 1747, 195 L. Ed. 2d 1 ( 2016 ) ( i n t e r n a l quotations om i tted). Because a review of the record in today ’s case reveals that a Batson violation did occur, I dissent. ¶221. “It i s w e l l k n o w n t h a t p r e j u d i c e s o f

ten exist against particular c lasses in the

com m unity , which sway the judgm ent of jurors, and which, t heref ore, operate in som e cases

1 3 1to deny to persons of t hose classes the f ull protection which o thers enjoy .” Strauder v. West
V irginia , 100 U.S. 303, 3 0 9, 25 L. Ed. 664 (1880), abrogated on other grounds by Taylor

v. Louisiana , 419 U.S. 522, 95 S

. Ct. 692, 42 L. Ed. 2d 690 (1975). Racial prejudice in the prosecution’s jury selec t i o n r e s ults in “state-sponsored group stereoty pes rooted in, and ref lective of , historical prejudice.” J.E.B. v. Alabam a ex rel T.B. , 511 U.S. 127, 128, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1 9 94). Thus, f or y ears, courts have held t hat racial discrim ination b y t h e S t a te during the jury selection process violated the Equal P rotection Clause. M

iller-El v. Dretke , 545 U

. S

. 2 3 1 , 162 L. Ed. 2d 196, 125 S. C t. 2317 (2005) (quoting Georgia v. McCollum , 505 U.S. 42, 44, 1 12 S

. Ct. 2348, 120 L. Ed. 2d 3 3 (1992)). ¶222. I n a n e f

f o r t to rem e dy the prejudices existing in jury selections, the U nited S t a t e s Suprem e Court has, over the y ears, developed various s tandards f or establishing purposef

ul discrim ination. In Swain v. Alabam a , 380 U.S. 202, 85 S. Ct. 824, 13 L. E d. 2d 759 (1965), overruled by Batson v

. Kentucky , 476 U.S. 79, 106 S

. Ct. 1712, 90 L. Ed. 2d 69 (1986), the
Court a ttem

p ted to regulate purposef

ul discrim ination through presum ing the legitim acy of prosecutors’ s t rikes except in the case of longstanding patterns o f discrim i nation

– when in

case af ter case no Af

rican Am e ricans served on juries, then “giving even the widest leeway

to t he operation of irrational but trial-related s uspicions and a n t a g o n ism s, it would appear that the purposes of

the perem

ptory challenge [ were] being perverted.” ¶223. Swain ’s approach did little to rem edy the problem of purposef ul dis c r i m ination in jury selection. Thus, in Batson , t h e U n i ted States Suprem e Court “held that a def endant could

m ake out a prim a f

acie case of discrim inatory jury selection b y ‘the totality of the relevant

1 3 2f

acts’ about a prosecutor’s conduct during the d ef endant’s own trial.” Miller-El , 545 U.S.

at 239 (quoting Batson , 476 U.S. at 94). The State m ust then com e f

orward with race neutral bases f or the p erem

ptory strikes. B atson , 476 U .S. a t 97. “ The trial c ourt then has the duty to determ ine if

the def endant has established purposef ul discrim i nation.” Id. at 98. ¶224. Batson , however, is not without f laws. Thus, in Miller-El , t he U nited States Suprem e Court r ef ocused on a ll of the relevant circum stances of t he c ase, rather t han just the prof f ered race-neutral bases provided by the State: Although the m ove f

r om Swain to Batson lef

t a def end a n t f ree to challenge the prosecution without having to cast Swain ’s w ide net, the n et wa s not entirely consigned to history , f or Batson ’s individualized f ocus cam e with a weakn e s s o f i ts own owing to its very em p hasis on the particular reasons a prosecu t o r might give. If any f acially neutral r eason suf f iced to answer a Batson challenge, then Batson w ould not am ount to m uch m ore than Swain

. Som e stated reasons a re f a lse, and although som e f alse r easons are shown up w i t h i n t he f

our corners of a given case, som etim e s a court m ay not be sur e unless i t looks b ey ond the case at hand. Hence Batson ’s explanation t h a t a def endant m ay rely on “all relevant circum stanc e s ” t o raise an inf erence of purposef ul discrim ination. Miller-El , 545 U.S. at 239-40 (citing Batson , 476 U.S. at 96-97). ¶225. Thus, i n f

inding that a Batson violation occurred in today ’ s case, I consider all of the relevant circum stances in Flowers’s case.
A. History of Flow ers’s Case ¶226. In Flowers III

, 947 So. 2d at 935, this Court f o und as “ strong a p rim a f acie case of racial discrim ination a s we have ever seen in the context of a Batson challenge.” In Flowers
III , the State exercised all t welve of its p e r e mp t o ry strikes on Af rican A m ericans and all three of its strikes of alternate jurors on Af rican Am ericans. Af

ter reviewing t he individual

1 3 3strikes i n the case, this Court f ound that the State e ngaged i n purposef u l discrim ination during jury s election. Id. at 939. Thus, the Court reversed a nd rem anded f or a new trial on this basis. Id. T he sam e prosecutor who this Cour t f o u n d h a d e ngaged in purposef ul discrim ination in Flowers III prosecuted the trial bef ore this Court on appeal today

. On its

own, this f

act is not dispositive of a f inding of r acial discrim i nation. This history , however,

cannot be ignored and is part of th e relevant circum stances t hat m u st b e considered in this

case. ¶227. In Miller-El , 5 4 5 U

. S

. a t 2 5 3 , t h e U n i t ed States S uprem e Court considered the “widely known evidence o f the general p o l i c y o f the Dallas County District Attorney ’s Of f ice

to exclude black venire m em bers f rom juries at the tim e [ the def endant’s] jury was selected.”
If the history

of discrim ination by a district attorney ’s of f i ce is a perm issible consideration under Batson , surely

the history

of the same prosecutor in the r etrial of the same case is a legitim ate consideration. To f ail to consider this history is to r ebuf f Batson ’s d irection that “all relevant circum stances” m ust be c onsidered. Batson , 476 U.S. at 96-97; Miller-El , 545 U.S. at 239-40.
B. Disparate Treatm ent – The Num bers ¶228. Like the h i story of t oday ’ s case, a review of the statistics relating to the prosecutor’s

use of perem

ptory s t r i k e s is not, standing alone, dispositive of the Batson inquiry

. These

num bers, h owever, reveal a clear pattern of disparate treatm ent between w hite and AfricanAm erican venire m em

bers. In today ’s case, a special venire of 600 citizens was drawn. The original venire consisted of f orty -two percent Af

rican A m ericans

. A ft e r t

h e j u r y q u a l i f ication

1 3 4and initial f o r - c a u s e challenges, the venire consisted of twenty -eight percent Af rican
Am ericans. Ultim ately , o ne Af r ican Am erican served a s a juror and o ne Af rican Am erican served as an alternate juror. Despite the initial venire consisting of f orty -two percent Af

rican
Am ericans, the jury that convicted and sentenced Flowers consisted of eight percent Af rican
Am ericans. ¶229. An analy sis of the num ber and ty

pe of questions asked b y t h e p r o s e c u t o r f urther reveals a pattern of disparate treatm ent. During individual voir d ire, the pro s e c u t o r asked white jurors an a verage o f a p p roxim ately t hree questions. Af rican-Am erican jurors, however, were asked approxim ately ten questions each by

the prosecutor. ¶230. Further, in what ap p e a r s t o b e me r e l i p s e r v i c e t o the v oir dire p rocess, when questioning m ost white jurors d u ring individual voir dire, t he p rosecutor e ssentially repeated questions that the trial court had just asked. The trial court a s ked each juror s tandard deathpenalty -qualif

ication questions. T he p rosecutor would t hen

– in substance – ask the sam e questions and t hen hand the juror of f to be questioned b y t he def ense. The prosecutor asked only n i ne percent of white jurors som ething bey ond these duplicated questions. ¶231. I n a s tark contrast, the prosecution asked sixty -three p ercent of Af rican Am eric a n s questions outside the standard death-penalty -qualif ication questions. A s an exam ple, f if ty

f ive percent of Af

rican-Am erican jurors who had s om e kind of conn e c t i o n t o t he Flowers f am ily (through w ork, the com m u nity , or f

am ily ) were asked ques t i o n s b y the prosecutor about t his connection. Alth o u g h f i v e white jurors had sim i lar c onnections to the Flowers
f am ily ( through work and the com m unity ), the prosecutor f

ailed to a sk any q

uestions about

1 3 5these connections.

¶232. As noted in M

i ller-El v. C

ockrell , 537 U.S. 322, 1 23 S

. C t. 1029, 1 54 L. Ed. 2d 931 (2003), statistical analy s is can r aise a question as to w h ether race inf luenced the jury selection process. The num bers described above are too disparate to be explained away or categorized as m ere happenstance.
C. Individual Jurors ¶233. The pattern of disparate treatm ent is f urther revealed when com paring the treatm ent of individual jurors. See F lowers III

, 947 So. 2d at 921 ( citing Manning , 765 So. 2d at 519) (A side-by -side com

parison of jurors is helpf ul to determ ine whether purposef ul discrim ination ex i s t e d

. )

. Explanations by the prosecution a re dif f icult to credit where the
State accepted white jurors with the sam e t raits it used to s trike b lack jurors. F oster , 136 S. Ct. at 1750.
1. Caroly n Wright ¶234. The State exercised one of i ts perem ptory strikes on Caroly

n W right f

or the f ollowing reasons: (1) she knew several of the def ense witnesses; ( 2) she was sued by Tardy ’s f or an overdue account; and (3) she used t o work with F lowers’s f ather, Archie F lowers, Sr. During the B atson hearing, Flowers rebutted the State’s bases f or it s p e r em

ptory strike f

irst by noting that Pam ela Chesteen, Harold W aller, and Bobby Lester all had a s ignif icant num ber of acquaintances involved in the case. Flowers responded to t he f act that Tardy ’ s had sued
W r ight by

noting that the State had not questioned white jurors regarding their accounts at Tardy ’s. Finally , F lowers rebutted the basis relating to W r ight’s working relationship with

1 3 6Flowers’s f am ily by com

paring W right to Chesteen, who was a bank teller at a bank where the m em b ers of the Flowers f

a m ily were custom ers. ¶235. Finding that the State’s reasons f or striking W right were race-neutral, the trial court specif ically noted that all jurors were asked by the court during group voir dire i f they had

accounts with Tardy ’s and whether they had been s ued by Tardy ’s. The court f ound that this basis was race neutral because none of the w hite venire m em b ers reported that they had been

s u e d b y T a r d y ’s. The trial court f ound that W r ight’s working relationship with Archie Flowers w as distinguishable f rom t he prof

e ssional relationship C hesteen h a d with the Flowers f am ily

. Specif

i cally , the court stated that the Wi n ona W alm art was a “relatively

sm all” W alm a rt a nd seem ed to im ply tha t Wr i g h t had a close relationship with Archie Flowers because o f the sm all size o f the store. The trial court also stated that no white jurors had reported working at W alm art with Archie Flowers. The trial court sum m ed u p its f inding by stating: If the only reason the State of f ered w as that she knows som e of these def ense witnesses, then there m ight be som ething t here. But the f act is knowing these def ense w itnesses that y ou’re intending to call, plus the f act that Tardy ’s had to sue her, plus t he f

act that she worked with Archie, in m y m ind, c reates raceneutral reasons f

o r striking her. Each of the State’s reasons f

or the perem

ptory strike is analy

zed below.
W right’s Relationships with Persons Involved in the Case ¶236. In sum , Caroly

n W right had som e ty

pe of connection to thirty -f

our people involved in Flowers’s case. Flowe r s c om pares W right to Chesteen, who knew thirty

- one people involved in Flowers’s case; W aller, who knew eighteen peopl e i n v o lved i n t he case; and

1 3 7Lester, who knew twenty -seven people involved in the case.

¶237. Sim ilar t o W right, Chesteen, W aller, and Lester all had a s i g n i f i c a n t n u mb e r of relationships with witnesses a nd persons involved with the c ase. One indicium of p retext this
Court considers is “the presence of unchallenged jurors of

the opposite race who share the characteristic given as the basis f or the challenge.” Flowers III , 947 So. 2d at 917 (quoting Manning , 765 S o. 2 d a t 519). I ndee d , “ ‘ [ i]f a prosecutor’s prof f ered r eason f

or striking a black panelist applies just as well to an otherwise-sim ilar nonblack [ panelist] who is
perm itted to serve, that is evidence tending to p rove p urposef u l discrim ination.’” Foster , 136 S. Ct. at 1754 (quoting Miller-El , 545 U.S. at 241). As such, this basis is suspect. ¶238. Flowers also claim s that the State m ischaracterized Wr i g h t ’ s r e l a t i o n s h i p s w i th Flowers’s f

am ily

. S pecif

ically , Flowers points out that the S tate claim ed that W right knew Flowers’s sister, S herita B a skin. W right, however, n ever indicated that she knew Baskin. The S tate does not address this in its brief

. This o ne s tatem ent could h ave s i m ply been a slip of the tongue. However, “lack of support in t he record f or the r eason given f

or a perem

ptory strike h as been identif

ied as an i ndicator of p retext.” Flowers III , 947 So. 2d a t 924 (citing Manning , 765 So. 2d at 519). Foster em phasized this notion, noting that the prosecutor’s
“m isrepresentations of the r ecord” constituted evidence that a stri k e w a s mo tivated in substantial part by

discrim inatory

intent. Foster , 136 S. Ct. at 1754.
W right’s Litigation with Tardy’s ¶239. Flowers claim s th a t t h e S t a t e m ischaracterized W right’s litigation with Tardy ’s by claim ing t hat her wages had been garnished a s a r esult of the litigation. Nothing in the record

1 3 8s u p p o r t s the contention that W right’s wages were garnished. The only statem ents W rig h t

m ade regarding the a ctual litigation were that she w as sued, bu t t h a t “ i t w a s paid of f .”
W r ight also stated t hat her involvem ent with the litigation would not af f ect her if she were selected as a juror. During the B atson hearing, the State produced a copy of the judgm ent in W right’s case, and Flowers’s c ounsel asked if a garnishm ent order was attached. The trial

court d id not d i rectly respond to this question, but instead stated that “ i t’s an a bstract of justice court where she w as s ued.” Because there is no evidence that W right’s wages were garnished, the State did m i scharacterize its b asis f or the perem

ptory strike. Further, unlike the m isstatem ent discussed above relating to W right’s a cquaintance with Sherita Baskin, the

statem ent that W r ight had her wages garn ished seem s to go directly to reasoning f or the
State’s strike

– that W right w ould have som e sort o f ill will toward Tardy ’ s as a result of her
wages b eing garnished. It is easy to i m agine that litigation which end s i n f riendly term s

– f or exam ple, a settlem e nt – m ight result in t he parties having dif f e r ent f eelings toward one another a s opposed to a suit which results in garnished wages. As such, the State’s unsupported c haracterization of t he lawsuit is problem atic. See Flowers III , 947 So. 2d at 924 ( citing Manning , 765 So. 2d at 519); Foster , 136 S. Ct. at 1754.

W right’s W orking Relationship with Archie Flowers, Sr. ¶240. W r ight worked with Flowers’s f ather, Archie Flowers, Sr

. , a t Wa l ma r t ; and on its f ace, this b asis seem s to be race-neutral. See Manning , 735 So. 2d at 340 (This Court “has condoned a perem

ptory c hallenge against a juror who was acquainted with the def endant’s f am ily .”). However, a r eview of the record reveals that this basis m ay have been pretextual.

1 3 9Although the State c ited W right’s working r elationship wi t h Archie Flowers as a basis f or its strike, the State m ade no e f f o r t during voir dire to question W right a b out the working relationship bey ond a general question as to w hether the relationship would a f f ect her ability

t o s e r v e a s a juror. One could easily assum e that the t wo worked in dif f erent departm ents and during dif

f e rent shif ts. Further, W right stated during g roup voir dire that she was

unaware of whether Archie Flowers s t i l l w o r k ed a t W alm art or i f he had retired. This supports an inf

erence t h a t Wr i g ht and Flowers did not h ave a close working r elationship. The lack of questioning related to this basis is suspect. See Miller-El , 1 25 S. Ct. at 2328 (f a iling to conduct m e aningf ul voir dire on subject with which State i s allegedly c oncerned suggests that “explanation is a sham and a pretext f

or discrim ination”). ¶241. T h e q u e s t i onable nature of the State’s r eason i s com pounded by its f

ailure to strik e Pame l a C h e s t e en. Chesteen w orked at a local bank in W i nona and s tated t hat she knew Archie Flowers, Sr., Lola Flowers, and Flowers’s s isters f r o m her work at the bank. Although the coworker relationship and ba n k

- e m p l o y e e / c u s t o m e r r e l a t i o n s h i p a re not exactly

com parable, the concern relating to the inf luence such relationships would have on a juror

are the sam e – a concern t hat the coworker o r e m ploy ee would be inf

l uenced toward a f

am ily

m em ber o f another coworker or a custom e r . T h e d i s p arate treatm ent of W right and Chesteen, along with t he f ailure to conduct m eaningf ul voir dire regarding W right’s working relationship with A rchie, Sr., suggests this basis f or the State’s perem

p tory strike was pr etext. See Flowers III

, 9 47 So. 2d at 9 24 (“Failure to voir dire as to t he characteristic cited f or the strike is also an indicator of pretext.”).

1 4 0¶242. W h en the State’s bases and the record in today ’ s case are viewed i n toto , evidence of

disparate treatm ent and prete x t exists. See id. at 937 (“Though a reason prof f ered by the
State is f a cially neutral, trial judges should not blindly accept any and every reason put f orth by the State, especially where, as here, the St a t e c o n t i n u es to exercise challenge af ter challenge only

upon m e m

b ers of a particular race.”).
2. Dianne Copper ¶243. The State provided the f ollowing reasons f

o r striking D ianne Copper: (1) she worked with Archie Flowers and Cora Flowers, Flowers’s sister; (2) she knew several m em bers of the Flowers f

am ily ; (3) she s tated that she “leaned towards” F lowers’s side o f the case; and (4) she knew several def

e nse witnesses. For t h e m o s t part, the State f ocused o n Copper’s

s t a tem ent that she would lean toward Flowers as a result of her r elationships w i t h t h e Flowers f am ily

. ¶244. Flowers rebutted the State’s reasons by again noting that s e v e r a l w h i te jurors with

m ultiple connections to persons involved in the case had not been challenged by the State. Flowers also argued that t he State did n ot attem pt t o rehabilitate Copper when she s tated that she woul d l ean toward Flowers’s side of t he case. The trial court a ccepted the State’s

r e a s o ns as race neutral, f inding that Copper’s relationships with persons connected to t h e

case were distinguishable f rom those of the w hite jurors not c hallenged b y t h e S tate. The trial court also f

ound that Copper was distinguishable f rom other jurors because she stated that s he would tend to f

avor Flowers’s side of the c ase and had worked with Flowers’s f ather and sister.

1 4 1Copper’s Relationships with Persons Connected to the Case

¶245. Sim ilar to his argum e nt relating to Caroly n W right, Flowers claims t h a t t h e State’s strike of Copper was pretextual because white j urors who knew several def en s e w i t n e s ses

were not struck. Further, Flowers claim s that the S tate m ischaracterized Copper’s statem ents relating to whether she “leaned towards” Flowers in the case as a result of her relationship with the Flowers’s f

am ily

. ¶246. Copper knew thirty -one people involved in the case. Copper a lso testif ied about her relationship with the Flowers f a m ily and witnesses during voir dire: Q. Now, I noticed that y ou told us the other d ay that y ou lived on Harper Street at one tim e? A. Yes, sir. Q. That y ’all [ Copper and the Flowers f am ily ] lived on the sam e street. A. Not on the sam e street. Because t hey – they live on Cade Street, and I lived on Harper Street. Q. Don’t they

live on the corner of C ade and Harper?
A. W ell, I guess. I’m not – I – y ou know, m y s treet i s Harper and t hen its

– as it go arou n d

– t hat’s where I assum e it was Cade Street. I’m not positive. Q. Okay

. And y ou’ve stated that y ou worked with the def e ndant’s sister at Shoe W orld?
A. That’s correct. Q. And which sister was that?
A. Cora. Q. How long did y ’all work together?

1 4 2A. Probably a y e ar or two. Q. Okay . You worked with the def e n dant’s f ather?
A. Yes, sir. Q. How long did y ou work with him ? A. Estim ating, probably – possibly

about the sam e , one to two y ears. Q. Okay

. And I want to m ake sure m y notes are right, because we can all write down things wrong. You stated that y ou knew his f ather A rchie Flowers.
A. Yes, sir. Q. You know his brother, Archie, Jr.?
A. Yes, sir. I know his brother. Q. You know his m other Lola?
A. Yes, sir, I do. Q. You know witnesses in this case, Hazel Jones?
A. Yes, sir, I know her. Q. You know Kittery

Jones, a witness in this case?
A. Yes, sir, I know him

. Q. And y ou know Danny Joe Lott, a witness in this case?
A. Yes, sir. Q. And I think it was y esterday and m y notes show t hat y ou said that the f act that y ou know all of these people c o uld a f f e ct y ou and y ou think it could m ake y ou lean toward him because of y our connection to all of these people. Is that correct?

1 4 3A. It – it’s possible.

Q. Okay

. That w ould be som ething t hat would b e entering into y our m ind if y ou were on the jury , wouldn’t it?
A. Yes, sir. Q. And it would m a ke it to where y ou couldn’t com e in here and, j ust with an open m ind, decide the case, would it?
A. Correct. ¶247. Flowers’s counsel attem pted to rehabilitate Copper: Q.

. . . W hat I ’m try i ng to f ind out is just as y ou c ould put aside all th e inf orm a tion y ou h e ard bef

ore a b out this c ase, could y ou not also put aside the f

act – if y ou got picked as a juror, put aside the f act that y ou have m et Mr. Flowers, that y ou know som e other people in t hese cases a n d b e f a ir to the Tardy s, the Stewarts, the Goldens, and Rigby s, a n d m a ke whatever d ecision or vote that y ou’re going to m ake based o n the evidence and the evidence only . Could y ou do that?
A. I f eel like I could. But, y ou know, it – Q. Is what y ou’re say ing –
A. Of course, it would m ake m e, y ou know, f eel uncom f

ortable. But if

I had to do it, y o u know, I got to do what I got to do. Q. Okay

. So y ou’re say ing that – thank y ou. You’re say ing that y ou’ll be uncom f ortable. You’d pre f

e r n o t to

– I get t he i m

pression y ou’re say ing t hat y ou’d rather not be a juror. But i f y ou got picked to b e one, y ou would take the responsibility seriously , and y o u would f ollow the law and the r

ules that the Court give[ s] y ou, and y ou wou l d p u t a s ide any t hing that y ou are required to put aside and m a ke y our evidence and m a ke y our vote based on just the evidence y ou hear in the courtroom

. Is that f air to say ? A. Yes, sir. That’s correct. ¶248. As m entioned above, one indicium of pretext is “the presence of unchallenged jurors

1 4 4of t he opposite race who share the characteristic given as the b asis f or the challenge.” Id. at 917 (quotin g M

anning , 765 So. 2d at 519). As such, the State’s basis that C opper knew several w itnesses in t he case i s suspect. W hile the other bases the State provided appear to be race neutral – nam ely , Copper’s relationship with Flowers’s f am ily and the possibility that it c ould cause her t o “ lean tow a r d” Flowers, the unchallenged j urors with a shared characteristic m

ust still be considered.
3. Flancie Jones ¶249. The State provided the f ollowing r easons f

or striking Jones : ( 1 ) s h e i s related to Flowers; (2) she was late f or jury s election on t wo separate occasions; and (3) she provided inconsistent statem e nts on her view of the death penalty by ly ing on her juror questionnaire in an attem

pt to avoid serving as a juror. A f te r r e v i e w i n g t h e record, t he S tate’s bases f or striking Jones appear to be race-neutral.

4. Tashia Cunningham ¶250. The State cited Cunningham ’s working relation s h i p w i t h Flowers’s sister and her wavering statem ents on the death penalty as b a s e s f o r its perem

ptory strike. During the
Batson h earing, Flowers’s counsel rebutted the State’s reasons by pointing o u t t h a t C u n n i n gham stated that she could set aside her relationship w ith Flowers’s sister and b e a neutral juror. Def

e nse counsel also com

pared Cunningham to Chesteen, t he juror who knew several of Flowers’s f

am ily m em

bers f rom w o r k i n g a t a local bank. Finally , Flowers’s counsel com

pared Cunningham ’s alleged wavering views on t he d eath penalty to views of white jurors. The trial court f ound that both of

the State’s reasons were race-neutral:

1 4 5And Ms. Cunningham ’s all-over-the-m a p response to the death penalty , plus her situation about working so closely w ith Mr. F lowers’s s ister, in m y m ind, the State has shown race-neutral reasons f or that strike. Cunningham’s W

o rking Relationship with Flowers’s Sister ¶251. During voir d ire, Cunningham stated that she and Sherita Baskin, Flowers’s sister, did

not h ave a close relationship; Cunningham d escribed it as a “working relationship.” According to Cunningham , s he and Baskin would “som etim e ” see each other, but would not

see each other at work every day

. Cunningham also stated that s he worked at the end of the

assem b ly l ine, and B askin worked at the f r ont of the line. The t wo w om e n worked the sam e shif t f o r two or three y ears. ¶252. Apparently , the State c alled Cunningham ’s em ploy er, ADP, to conf

irm her testim ony relating to her working relationship with Baskin. During individual voir dire, the State asked Cunningham

f urther questions about the relationship: Q: And y ou work with the Def endant’s sister, Sherita Baskin?
A: Yes. Q: Now, the other day , I think y ou s aid that y ou do n ot work close t o her?
A: No, I do not. Q: W ould y o u think about that f or a m inute?
A: I do not. Q: Are y o u

sure that y ou do not work side by side with her?
A: No, I do not. Q: And y ou’re say ing that under oath?

1 4 6A: Yes, sir.

¶253. In response t o Cunningham ’s statem ents, the S tate called a n A D P q u a l i t y c o ntrol clerk, Cry stal Carpenter, to give testim ony . Carpenter testif ied t hat Cunningham and Baskin both worked o n the “raw 2 line” and that the wom en worked s ide-by -side

– “nine or ten inches” apart f

rom one another. Twenty -f ive to thirty -f

ive persons worked on this particular

assem b ly line. Carpenter also testif ied that the wom en would occasionally not work side-by

side if another em

ploy ee was absent f

r om w ork and a s pot in another location needed to be f illed, but tha t t h e w o me n t y pically worked next t o o ne another. Carpenter observed the

wom en working every day and based her testim ony on h er personal observations. Flowers’s counsel asked Carpenter if there was docum entation supporting the l ocation of C unningham and Basking on the assem

bly line, and C arpenter stated that she c ould provide docum entation supporting her testim ony . Apparently , Carpenter did not provide the docum entation. ¶254. At f

irst glance, the c onf

licti n g t e s t i mo n y o f Cunningham and Carpenter tends to provide a race-neutral basis f or the State’s challenge. See Manning , 735 So. 2 d at 340.
W h en considering the voir dire process as a who l e , h o w e v er, the State’s investigation of Cunningham is suspect. As d iscussed above, t he State accepted Pam ela Chesteen as a juror

even t h o u g h s h e stated that several m em bers of the F lowers f

am ily were c u stom ers at the bank w here she worked. There is no evidence in t he r ecord that the State f urther investigated the relationship between Chesteen and t h e Flowers f am ily , and the State d id not voir dire Chesteen on this subject. The absence of v oir dire and investigation f or Chesteen com

pared

to the thorough investigation f or Cunningham is problem atic and tends to evidence disparate

1 4 7treatm ent. S ee Miller-El , 125 S. Ct. at 2328 ( f ailing to c o n d uct m eaningf u l voir dire on subject with which State is allegedly concerned suggests that “explanation is a sham and a pretext f or discrim ination”); see a lso F lowers III

, 947 S o. 2d at 924 (“Failure to voir dire as to the characteristic cited f or the strike is also an indicator of pretext.”). Cunningham’s W

avering Views on the Death Penalty ¶255. The State c ited Cunningham ’s wavering v iews o n the death p enalty as another basis f or its challenge. On her juror questionnaire, a l though she stated t hat she had “no opinion”

on the death penalty , Cunningham stated that she would not consider the death penalty under
any circum stances. During voir dire b y the trial c ourt, Cunningham initially s tated that she could n o t c o n s i d e r t he death p enalty as a punishm ent, but she then stated that s he “m ight” consider it: Q: . . . [ w]hat’s y o ur view on even considering the death penalty ? A: I would not.

. . . Q: Are – are y ou say ing y ou would not consider it?
A: No, sir. Q: Even if the law allowed it and the f acts justif ied it, y ou just c o uld not even consider it?
A: No, sir.

. . . Q: So

– b u t again, just tell m e a gain what y our f eelings are on the death penalty

.

1 4 8A: I don’t believe in the death penalty

.

Q: And would there be a possible – could y ou consider it?
A: I don’t think so. Q: You don’t think so?
A: I don’t think so. Q: But there’s – in y o ur own m i nd, y ou m ight could – are y ou say i ng y ou could possibly ? A: I don’t think so. Q: See, I’m n o t a s k i ng y ou to m ake a – y ou know, y ou haven’t heard any t hing. And a ll we want to k now is whether y ou could consider t hat as a possibility – that as a sentencing possibility , because y ou a nd y o ur f ellow j u r o r s w i ll decide the sentence, but I just want to know if y ou could even consider that as a possible sentence?
A: I m i ght. I m ight. I don’t know. I m ight. Q: So y ou m ight be able to consider that?
A: (Nodding head). 9
Then during voir d i re by the State, Cunningham r eturned to her initial position o f not being able to consider the death penalty : Q: All right. As f

ar as the death penalty – and I w a nt to m a ke sure I understand what y ou’re say ing – if the law a uthorized the death penalty in this case and y ou f

ound that the f

acts of t he case that cam e f rom the stand justif

ied it, could y ou, in f

a c t, vote f or the death penalty ? A: I don’t think so.

. . .

9 T h e reco rd d o es n o t in d icate w h eth er C u n n in g h am w as n o d d in g in th e a f f irm ativ e o r th e n eg ativ e. 1 4 9Q: Could y ou consider the de a t h p e nalty y ourself if the f acts justif ied it and the law allowed it?
A: I don’t think so. Q: You don’t think so.
A: That I could.
W h en questioned by def

ense c ounsel, Cunningham then stated that she could consider both punishm ents: Q:

. . . And w hat y ou’re required to do is just consider bo t h , then decide which way

y ou want to vote. Do y o u understand now?
A: Yes, sir. Q: And that’s y our decisio n . A nd with that being the case, can y ou consider both options, then vote y our conscience?
A: Yes. ¶256. This Court has recognized that a ju r o r ’ s v i e w s o n the death penalty m ay provide a race-neutral basis f

or a perem

ptory challenge. See B a t i s t e v. State , 1 21 So. 3d 808, 848 (Miss. 2013); Flowers III , 947 So. 2d at 920-21. In Flowers III , this Court f

ound that the

s t r i k i n g o f an Af

r ican Am erican who had “virtually indistinguishable” views o n the deat h penalty a s com

pared to white jurors who were n o t s t r u c k raised an inf erence of discrim ination, a lthough, standing alone, i t did not warrant the f inding of a Batson v iolation.
Flowers III

, 947 S o. 2d at 921. In today ’ s case, there are no white jurors who s urvived forcause c hallenges w hose v iews on the death penalty were com parable to Cunningham ’s. As such, it cannot be said that this basis was pretext. ¶257. T h i s r a c e - n e u tral basis, however, does not e rase the prosecutor’s highl y s u s p e c t

1 5 0investigation of C unningham ’ s working relationship w ith Flowers’s sister. Batson , 476 U.S.

at 96-97; Miller-El , 545 U.S. at 239-40. No evidence in the record provides a basis f or the in-depth investigation. Likewise, nothing in t he r ecord evidences that a sim i lar investigation

was perf orm ed f or all other jurors. W ith this s u s p e c t r ecord, the prosecution’s unusual investigation of Cunningham m ust be seen f

or w hat it is worth – a questionable search f or

a r ace neutral basis, indicating that striking Cunningham w as “m otivated i n substantial part by discrim inatory intent.” See Foster , 136 S. Ct. at 1754 (internal quotations om i tted).

5. Edith Burnside ¶258. The State provided the f ollowing r e a s o n s i n s u p p o r t of its perem ptory strike of Burnside: (1) s he knew Flowers and m em b e r s o f h i s f

a m ily ; (2) s he was sued by Tardy ’s Furniture; and (3) she provided inconsistent statem ents regarding her views on th e death penalty

. Burnside’s Litigation with Tardy’s ¶259. During voir d i r e , t h e t r i a l c ourt asked the entire venire if any o ne had been sued by Tardy ’s, and Burnside responded that she had b e e n sued by the store. Later, Burnside explained that she was able t o pay of f the am ount that she o wed t he sto r e a n d t h a t the litigation stem m ed f

rom a m isunderstanding about her account af ter the m urders occurred.
Du r i n g t h e Batson hearing, the State represented t hat Burnside had a garnishm e nt issued

a g a i n s t h er. The prosecutor stated: “She also was sued by Tardy F urniture, and a garnishm e nt was issued against h e r. She tried to deny that and s aid that she just s ettled with them when she cam e back but she was, in f a ct, sued by them .” The S tate’s description of the

1 5 1litigation and Burnside’s testim ony regarding the sam e i s not com pletely s upported by the record. In response to the trial court’s f irst inquiry during g roup voir dire, B urnside stated:
“I had an account there, b ut I was not sued by Ms. Bertha. It was later on when it was took

over by Mr. Frank and Roxanne.” Burnside then conf irm ed that she was sued by Tardy ’s. ¶260. Then, during individual voir dire, Burnside f urther explained the suit:
A:

. . . . Let m e e xplain that. I worked f or Ms. Bertha. She hi r e d m e t o work f or Mr. Tardy bef

ore she was m arried to him the f irst tim e . I was caring f or Ms. Lena Tardy

. That’s how I m et Ms. Bertha. S o w hen m e and m y husband w as going through a divorce, s he l et m e have som e f urniture. And she said she was goin g t o note it on the book. Som etim es, I cleaned up f or h er and I paid f

or it and we just have, like, a little understanding about it. Okay

. W hen she got killed, it was s t ill on the book. A nd then her son-in-law – w hen I cam e b a c k f r o m Nevada, then t hat’s when I h ad to p ay f or it. I don’t rem em

ber when it was. Q: So there was a dispute between y o u and her son-in-law?
A: No. It wasn’t a dispute. He just – Q: W ell, did y ou agree that y ou owed it?
A: Y e s . We had no f alling out about it. I h ad t he f unds, and I agreed I owed it. W hen I went t o N evada, I guess it was j u s t a space where I owed him

. W hen I cam e back here a nd went t o work, I paid him f or it. W e never had a m isunderstanding about it. Q: If it wasn’t no m isunderstanding, why did it have to go to court?
A: I’m not quite sure about th a t

. I rem em b er them bringing t he papers af ter I com e back here to go to w ork. May be h e f ound out I was back or what. But then I went down to t he s tore

– t h a t ’ s w hen they had m o ved the store over to where the other building was – and I t alked to him about when I paid it. W e never had a f a lling out about it. Q: But y ou did have to be sued over it?

1 5 2A: Yes. I can’t rem em ber the – Q: And there was a judgm ent against y ou? A: Yes. But it was no f alling-out about it. Q: Is there a ny

thing about that, that would cause y o u any dif f iculty in t hat case? A: No. B ecause he is a distributor f or s om ething f

o r one of our salesm an at Super Value where I work, and he com e in every Thursday , and the lady m ake a n order so I s ee him like on a weekly basis. But, y ou know, som etim es, I speak if it’s – because she see him like over in her of f ice, so no, it’s nothing about that would m ake m e have no –. ¶261. Sim ilar to the State’s characterization of W r ight’s litigation with Tardy ’ s di scussed above, the State’s representation that Burnside ’ s w a g e s were garnished and that Burnside “denied” t his is unsupported by the record in today ’s case. This incorrect description of the litigation between Burnside and T ardy ’s is suspect. See Flowers III , 9 47 So. 2 d at 924 (citing M anning , 765 So. 2 d at 5 19) (“Lack of support in the record f o r t he reason given f

or

a p e r e m ptory strike has been identif ied as an indicator o f p retext.”); Foster , 136 S. C t

. a t 1754 (m isrepresentations of the record are evidence of discrim i natory

intent). Burnside’s Relationships with Flowers and His Family ¶262. The State also cited Burnside’s relationships with Flowers and his f am i ly as a basis f or its challenge. Burnside stated during voir dire that she u sed to live close to the Flowers f am ily

. Flowers and h is sister, Prisilla, used to v isit Burnside’s hom e . Further, F lowers was f riends with Burnside’s s ons and u sed to play f ootball with them

. Burnside stated that these relationships would not af f ect her ability to serve as a juror. ¶263. N o w h i t e v e nire m em bers had com

parable – o r e v e n c l o s e t o c o mp a r a b l e

–
1 5 3relationships w ith Flowers and his f am ily

. T h is Court h as recognized that a juror’s relationships with the def

endant’s f am ily m ay provide a race-neutral reason f or a perem

ptory challenge. S

e e M a n ning , 735 S o. 2d at 340. And although Burnside stated that her connections to the F lowers f am ily would not af

f ect her when serving as a juror, this basis

– standing a lon e – seem s to not b e pretext. As m entioned above, however, this r ace neutral basis does not negate the questionable characterization of Burnside’s litigation w ith Tardy ’s.
Batson , 476 U.S. at 96-97; Miller-El , 545 U.S. at 239-40. Burnside’s Statements Regarding the Death Penalty and Her Ability to Judge Others ¶264. The State’s f

i nal reasons f

or striking B urnside were h er statem e nts r elating to whether she could judge another p erson and im pose the d eath penalty

. Burnside testif i ed as f ollows during individual voir dire: Q:

. . . . And so I w ant t o know if t he f acts justif ied it and the law allowed it, could y o u consider the death penalty as a sentencing possibility ? A: That I don’t think I could do. I don’t k n o w i f I c o u l d do that.

. . . I don’t – I don’t know if I could consider it, sendin g a n y b ody t o d eath. I don’t know if I could do that. Q: And can y ou explain f urther y our views on that?
A: I’ve j ust never been put in t h a t predicam ent. I’ve alway s just don’t know i f I c o u l d d o that. It’s just t he best w ay I can explain i t. I just don’t think I could do that. Q: Again, let m e explain. You’re n o t c o m m itting to do i t or not to d o it. You’re just – we just need to know if that’s som ething that would be in y our mi n d w h e r e y ou could t hink about it and y ou could consider the possibility

of it.
A: I could think about it and consider it. That’s all I could say

.

1 5 4Q: And would y ou consider the im position of the deat h p e nalty , if y ou were on the jury

and it got to the second phase?
A: If I was on there, y e ah, I guess I’d have to. Q: So if the f

acts justif ied it and the l aw allowed it, y ou would c onsider it?
A: Yes. Q: Also, if he did not receive that death sentence – if he was convicted and the jury did not im

pose the death sentence, . . . [ he] would receive the sentence of lif

e without parole. S o is that a sentencing o ption t hat y ou could consider, also?
A: Yes, I could consider that. Q: And so y ou would consider a nd h ave an o pen m i n d as to both sentencing options then; is that correct?
A: Yes, sir. Although Burnside eventually st a t e d t h a t she would c o nsider both s entencing options, she later stated in voir dire that her reservations a b out judging another person would af f ect her ability to serve as a juror: Q: W hen I was asking the questions the other day about jurors that could judge other people, y ou stated at that t im e tha t y o u c o u ld not judge any o n e. W hy did y ou state that?
A: W ell, because I – y ou k now, I pref

er not to j u d g e a n y one. But t hen when they com e back and say could I be f air. M y thing is I pref

er not to judge any one. But no, I will be f air. Q: All right. W ho will y ou be f a ir to?
A: I w ill be f

air to whoever evidence is presented. I will be f a ir. Because I would want som ebody

to be f air to m e or m y

children or m y

f am ily

. That the only

way I can explain it.

. . .

1 5 5Q: So y ou have changed y our m ind, and y ou say now that y o u could judge som eone; is that correct?
A: W ell, basically , I haven’t changed m y m ind. I just p r e f er not to be in a predicam ent where I have to judge som ebody

. Q: So y ou still have a problem with judging som eone? A: I still have a problem with that. Q: W ould that p roblem be such that y ou would think about it if y ou were picked on a jury ? A: W ell, I’d have to say y es. Q: It would? S o t hat m ight af f ect y our judgm ent i n the c ase; i s that right?
A: It could, possibly , y es, sir. Flowers’s counsel then rehabilitated Burnside: Q: Ms. Burnside, if y ou got picked on the jury , y ou would be f a ir to both sides, wouldn’t y ou? A: Yes, sir. Q: And despite t he f

act that y ou don’t l ike to judge, if y ou got picked y ou would, in f

act, judge and be f

air to both sides; is that correct?
A: Yes, sir, that is correct. ¶265. W h ile a j uror’s views on the death penalty and hesitation about serving as a juror are

race n eutral reasons f

o r perem ptory challenges, t he State r ehabilitated B u r n s ide and she ultim ately stated that she could consider either punishm ent and could be f air to either side.
See Batiste , 121 So. 3d at 848; Hughes , 90 So. 3d at 626; F lowers III

, 947 So. 2 d at 920-21. As such, this basis is som ewhat suspect.
D. Jury Selection Conclusion

1 5 6¶266. W h ile the C ourt has f ocused on the interests of Flowers in having a j ury not tainted by racial bias, i t has i gnored the right of prospective jurors not to be subjected t o racial bias. Bey ond question, the right to a jury selection proc e s s f r e e f rom t he taint of racial discrim ination belongs both to the parties and to the p rospective jurors. See Powers v. Ohio , 499 U.S. 400, 416, 111 S

. Ct. 1 3 6 4 , 113 L. Ed. 2d 411 (1991) (Courts are “under an af f irm ative duty to enf

orce the

. . . policies em bodied i n [ the ] p r o hibition” on the discrim ination in the selection o f jurors.). W he n t he trial court and this Court, in robotic f ashion, m erely say that the prosecution gave f acially race-neutral reasons, which were not rebutted by the d e f

en s e , both com

pletely disregard t he constitutional right o f prospective jurors to be f

ree f rom a racially discrim inatory

selection process. ¶267. No attorney s are present in t he courtroom to protect t he c o n s t i t u t i o n a l r i g h t s o f perspective jurors. Thus , o f necessity , that responsibility m ust b e undertaken by the trial

courts. The honest exercise of t hat responsibility dem ands t hat the trial court look bey ond the

m ere recitation of the words “race neutral.” In this case, the trial court com p letely ignored and f ailed in that responsibility

. III. Batson Conclusion ¶268. As noted previously , this case has been twice reversed b y this Court f or som e of the

sam e i ssues presented to the Court today

. In the r etrial of a case under t hese circum stances, where the sam e i ssues are conf ronted, the trial court is obligated to look bey ond the surf ace. The U nited States Suprem e Court’s decision in Foster a f f irm s t his principle. The trial court f ailed in that obligation.

1 5 7¶269. Because of t h a t f ailure, I cannot conclude that Flowers received a f air trial, nor can I conclude that prospective j u r o rs were not subjected to im perm issible discrim ination. For these reasons, I would reverse and rem and f or a new trial.
IV. Additional Errors ¶270. W h ile t h e United State Suprem e Court f ocused its rem and on the Batson violation, and while I f

ind the Batson violation dispositive, I continue t o b e l i e v e that other errors occurred at trial that also w arrant reversal. T h o s e e r rors were m em orialized in Presiding Justice Dickinson’s dissent i n the original appeal on this m atter. F lowers v. State , 158 So. 3d 10 0 9 , 1 0 76-83 (Miss. 2014) (Dickinson, P.J., dissenting). The circuit judge erred by ref using to allow the a ccused t o def end the charges b y calling a q ualif i ed expert to provide perf ectly adm issible expert opinions, a nd b y instructing the jury on an aggravating f actor f or which the State provided no evidence. I reiterate t hose errors here, w ith c redit to then-Justice Dickinson. See id. (Dickinson, P.J., dissenting).
A. Dr. Neuschatz should have been allow ed to testify . ¶271. The trial j udge categorically prohibited Flowers’s expert, Dr. J ef f rey Neuschatz, f

r om providing expert testim ony on ey ewitness i dentif ication. It was n o t t hat the trial judge disagreed with the evidence in Dr. Neuschatz’s expert a f f idavit—he ignored it. The trial judge f elt that any helpf

ul i nf orm ation that could have been p rovided by the expert could just

as easily h a v e b e e n developed through cross-exam ination. But the i nf orm ation the expert would have provided could never be developed on cross e xam ination, because the witnesses would not know they

had m ade m isidentif

ications.

1 5 8¶272. T h i s Court reviews a trial court’s ruling o n the a dm issibility of evidenc e u n d e r a

def erential abuse o f discretion standard. Miss. Transp. Com m ’n v. McLem ore , 863 So. 2d 31, 3 4 (Miss. 2003) (internal citations om itted). Under Rule 702, an expert’s testim ony m ust satisf y a t wo-part test. Id. at 35. “First, the w itness m ust be qualif

ied b y virtue of his or her kn o w l e d g e , skill, experience[ , ] or education. Second, t he w itness’s scientif ic, technical[ ,]

or o ther specialized knowledge m ust assist the trier of f

a ct in understanding or deciding a f act in issue.” Id. ¶273. The trial j udge is t o act as a gatekeeper and m ay look to “a non-exhaustive, illustrative list of reliability f

actors f or determ ining the a d m issibility of expert witness testim ony .” Id.

at 36 (internal citations om itted). The f ive f a ctors ref e renced in Daubert 1 0 look at whether: (1) the theory

or technique can be and has b een tested; ( 2) the theory has been subjected to
peer review and publication; ( 3 ) there is a high known or potential rate of error; (4) there are standards controlling the technique’s operation; and (5) the theory or technique enjoy s general acceptance within a r elevant scientif ic com m unity

. Id. ( internal citations om itted). The presence or absence of any one of these f actors is not dispositive. ¶274. T h e i s s u e o f a l l o w i n g experts to testif y about the r e l i a b i l i t y o f e y e w i t n e s s ident i f i c a t ion is not new. A m ajority of state jurisdictions allow ey ewitness identif ication experts to testif

y , provided they are properly qua l i f i ed and their opinions satisf y reliability

concern s , s u ch as those set f orth in Daubert

. For instance, the T ennessee Suprem e Court—evaluating f

actors sim ilar to those m enti o n e d i n D a ubert —reversed its prior position

10 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 ). 1 5 9seven y ears ago and n ow allows properly q ualif ied ey ewitness experts to testif y , f inding that such testim ony can b e h elpf ul i n t he jury ’s evaluation of a n ey ewitness’s identif ication. State

v. Copeland , 226 S.W

. 3d 2 87, 3 02-304 ( Tenn. 2007). And the v ast m ajority of s tates and the D istrict of Colum

bia either give trial courts discretion t o allow ey ewitness identif ication expert testim ony , or require the adm ission of such testim ony . 11

11 S ee E x P a rte W illia m s , 5 9 4 S o . 2 d 1 2 2 5 , 1 2 2 7 ( A la. 1 9 9 2 ) (“It is clear f r o m th ese cases th at th ere is p resen tly a tren d in th e law to allo w ex p ert testim o n y o n t h e su b j ect o f h u m an m em o ry .”); S

k a m a ro ciu s v. S

ta te , 7 3 1 P

. 2 d 6 3 , 6 6 -6 7 (A lask a 1 9 8 7 ); S ta te v. C h a p p le , 6 6 0 P .2 d 1 2 0 8 , 1 2 1 9 ( A r i z . 1 9 8 3 ), o verru led o n d ifferen t g ro u n d s b y S ta te v. B e n s o n , 3 0 7 P .3 d 1 9 (A riz. 2 0 1 3 ); J o n es v. S ta te , 8 6 2 S .W.2 d 2 4 2 , 2 4 4

- 4 5 ( A r k

. 1 9 9 3 ); P e o p le v. J o n es , 7 0 P .3 d 3 5 9 , 3 8 8 ( C al. 2 0 0 3 ) (“E x clu sio n o f th e e x p e r t t e s t i mo n y is j u stif ied o n ly if th ere is o th e r ev id en ce th at s u b s t an tially co rro b o rates th e ey ew itn esses id en t if icatio n an d g iv e s it in d ep e n d en t reliab ility .”); P eo p le v. C a m p b ell , 8 4 7 P .2 d 2 2 8 , 2 3 3 (C o lo

. A p p . 1 9 9 2 ); S

ta t e v. G u ilb ert , 4 9 A .3 d 7 0 5 , 7 3 1 -3 2 ( C o n n . 2 0 1 2 ); H a g er v . U .S . , 8 5 6 A

. 2 d 1 1 4 3 , 1 1 4 7 (D .C

. 2 0 0 4 ) ; M c M u l len v. S t a te , 7 1 4 S o . 2 d 3 6 8 , 3 7 1 (F la. 1 9 9 8 ); J o h n so n v . S ta t e , 5 2 6 S

. E

. 2 d 5 4 9 , 5 5 2 (G a . 2 0 0 0 ); P eo p le v. E n i s , 5 6 4 N

. E .2 d 1 1 5 5 , 1 1 6 5 (Ill. 1 9 9 0 ) ; C

o o k v. S ta te , 7 3 4 N

. E .2 d 5 6 3 , 5 7 0 (In d

. 2 0 0 0 ); S t a t e v . S ch u tz , 5 7 9 N .W.2 d 3 1 7 , 3 1 9 (Io w a 1 9 9 8 ) ( “[ T ] h e ad m issib ility o f ex p ert testim o n y relatin g to th e accu racy o f ey e w itn ess i d en tif

icatio n rests w ith in th e so u n d d i scretio n o f th e trial co u r t.”); S ta te v. C a rr , 3 3 1 P .3 d 5 4 4 , 6 9 0 (K an . 2 0 1 4 ), o v erru led o n o th er g ro u n d s b y K a n sa s v. C

a rr ,

_ _ U .S

.

_ _ , 1 3 6 S

. C t. 6 3 3 , 1 9 3 L

. E d

. 2 d 5 3 5 (2 0 1 6 ); C o m m o n w e a lth v. C

h ristie , 9 8 S .W.3 d 4 8 5 , 4 8 8 ( K y . 2 0 0 2 ) (n o tin g th at th e v ast m aj o rity o f j u r isd ictio n s h av e lef t th e ad m issio n o f ey ew itn ess ex p ert id en tif

i c a t i on testim o n y to th e d iscretio n o f trial co u rts); S ta te v. R ich , 5 4 9 A

. 2 d 7 4 2 , 7 4 3 (M e. 1 9 8 8 ); B o m a s v. S ta te , 9 8 7 A .2 d 9 8 , 1 1 4 -1 1 5 (M d

. 2 0 1 0 ); C o m m o n w ea lth v. S a n t

o li , 6 8 0 N .E .2 d 1 1 1 6 , 1 1 2 0 (M ass. 1 9 9 7 ); S ta te v. B a rlo w , 5 4 1 N

. W.2 d 3 0 9 , 3 1 3 (M in n . 1 9 9 5 ); S ta te v. D u B ra

y , 7 7 P

. 3 d 2 4 7 , 2 5 5 ( M o n t. 2 0 0 3 ) (“It sh all b e an ab u se o f d iscretio n f o r a d istrict co u rt to d isallo w ex p ert testim o n y o n ey ew itn ess testim o n y w h en n o su b stan tial co rro b o ratin g e v id en ce ex ists.”); W h ite v. S t a t e , 9 2 6 P .2 d 2 9 1 , 2 9 2 (N ev . 1 9 9 6 ); S ta te v. H en d e r s o n , 2 7 A

. 3 d 8 7 2 , 9 1 6

- 1 7 (N .J. 2 0 1 1 ); P eo p le v. L e G ra n d , 8 6 7 N .E .2 d 3 7 4 , 3 7 9 (N .Y

. 2 0 0 7 ); S ta te v. F o n ta in e , 3 8 2 N

. W .2 d 3 7 4 , 3 7 8 (N .D

. 1 9 8 6 ); S ta te v. B u ell , 4 8 9 N

. E .2 d 7 9 5 , 8 0 3 (O h io 1 9 8 6 ); B risto l v. S ta te , 7 6 4 P .2 d 8 8 7 , 8 9 0 (O k l a. C rim

. A p p . 1 9 8 8 ); S ta te v. L a w so n , 2 9 1 P .3 d 6 7 3 , 6 9 7 (O r. 2 0 1 2 ); C o m m o n w ea lth v. W a lk er , 9 2 A .3 d 7 6 6 , 7 9 1 (P a . 2 0 1 4 ) (“[ I] n l ig h t o f th e m a g n itu d e o f scien tif ic u n d erstan d in g o f ey ew itn ess id en t if icatio n an d m ark ed d ev e lo p m en ts in case l aw d u rin g th e l ast 3 0 y ears, it is n o lo n g er ad v isab le to b an th e u s e o f ex p ert testim o n y to a i d a j u r y i n u n d erstan d in g ey ew itn ess id e n tif icatio n .”); S

ta te v. S a b etta , 6 8 0 A .2 d 9 2 7 , 9 3 3 (R .I. 1 9 9 6 ); 1 6 0¶275. In this c a s e , t h e t r i a l j u d g e f i rst f ound t hat the trier of f

act did n ot need Dr. Neuschatz’s testim o ny . He s t ated: “Given the extensive cross-e x am i nation of Mr. Collins and because all other w itnesses knew Mr. Flowers on sig h t , I do not believe an expert on witnesses identif

ication would assist the jury i n t he l east bit in this case.” This conclusion

was d em onstrably incorrect. The trial judge provided no analy sis of h ow cross-exam ination of the witnesses could develop the opinions provided by Dr. Neuschatz, or how the witnesses them selves could provid e e x p e rt testim ony . The ey ewitnesses certainly could provide the f acts, such as distance, lighting, length o f tim e, etc. But Dr. Neuschatz w as not p resented to testif y t o the f acts alone. His role was to b egin with the f acts provided by t he ey ewitnesses,

a n d t h e n p r ovide expert testim ony as to t he dif f iculties a n d reliability associated wit h identif ication. The ey ewitnesses them selves certainly could not provide the te stim ony expected f

rom Dr. Neuschatz. ¶276. Nor c ou l d c r o s s - e x a mi n a t i o n provide a n adequate substitute f or Dr. Neuschatz’s testim o ny . A skillf

ul attorney m ay utilize cross-exam ination to expose contradic t i o n s i n a witness’s testi mo n y . But no attorney —of even the greatest s kill—can c ross-exam ine a witness in such a way as to expose that the witness did not see what t h e w i t n e s s a c tually believes he saw. And that is e xactly the purpose of expert ey ewitness identif ication testim o ny . Dr. Neuschatz—if a llowed to testif y —would have explained scientif ic principles

S ta te v. W h a ley , 4 0 6 S .E .2 d 3 6 9 , 3 7 2 (S .C

. 1 9 9 1 ); S ta te v . H ill , 4 6 3 N .W.2 d 6 7 4 , 6 7 6 (S .D

. 1 9 9 0 ); J o rd a n v. S t a te , 9 2 8 S .W.2 d 5 5 0 , 5 5 5 ( T e x . C rim

. A p p . 1 9 9 6 ); S ta te v. C lo p ten , 2 2 3 P .3 d 1 1 0 3 , 1 1 1 2 (U t ah 2 0 0 9 ); S ta te v . P e r c y , 5 9 5 A .2 d 2 4 8 , 2 5 3 (V t. 1 9 9 0 ); S ta te v. C h ea ta m , 8 1 P .3 d 8 3 0 , 8 4 2 (Wash

. 2 0 0 3 ) ; S t a t e v . U tter , N o . 1 3

- 0 4 7 9 , 2 0 1 4 WL 1 6 7 3 0 2 5 , at * 3 (W. V a. A p r. 2 5 , 2 0 1 4 ); S ta te v. S h o m b erg , 7 0 9 N .W.2 d 3 7 0 , 3 7 7 (Wis. 2 0 0 6 ); E n g b erg v. M e yer , 8 2 0 P .2 d 7 0 , 7 9 -8 0 (Wy o . 1 9 9 1 ). 1 6 1af

f ecting the accuracy

of a witness’s perception of what he saw. ¶277. The trial judge’s entire Daubert analy s i s was as f

ollows: Further, though, I think aside f rom the f act that I do not think this would assist the trier of

f a ct, I do not think all the D aubert principles have b een shown to the Court to a

pply to this testim ony . The d ef ense has not of

f ered to this Court this idea that the t heories t he def ense would testif

y t o o r t he area of expertise prof f ered are generally accepted. I do n ot know whether the testim ony has a potential or known high r ate of error. I do not have any thing a bout that. I do not know any

thing about the principles and m e t hods used to com e to conclusions. And b asically , the witness d id not apply the principles and m ethods to the f

acts of this case. He m ade b r o a d generalizations in the docum ent that was subm i tted, but h e did not specif ically apply those principles and m ethods t o the f

acts of this case. So f

o r all these reasons, I do not think that t his witness testim ony would be appropriate, and I am going to deny the testim ony of this witness. The f ollowing is a d etailed analy sis of each sentence of the trial judge’s Daubert analy sis, and it dem onstrates that the trial j u d g e abused his discretion in ref u sing t o allow Dr. Neuschatz to testif

y as an expert. “I do not think a l l the Daubert principles have been shown to the C ourt to apply to this testimony.” ¶278. This statem ent suggests the trial court e r r o n e o u s l y b e l i e v ed the def e ndant had a burden to show that “all the Daubert f actors” applied. Clearly , this is not the case. “The defense has not offered to this Court this idea that the theories the defen s e w o u l d t estify to or the area of expertise proffered a re generally accepted.” ¶279. This conclusion was inc o r r e c t

. D r . N e u s c h a t z cited thirty -three studies in h is af f idavit, each of which indicated general acceptance in t he f ield of psy chology

. The State o f f ered no

1 6 2evidence in rebuttal of Dr. Neuschatz’s af

f idavit on this point. 12 ¶280. The m ajorit y ’ s only reason f or agreeing with the t rial judge on this point is that Dr. Neuschatz did not attach each artic l e t o his af f idavit. But under our Rules of Evidence, experts are n ot required t o attach the basis of t heir opinions to their af f idavits. Instead, they are allowed to rely

on studies that they

do not provide to the court, unless r equested by the court. Rule 705 provides The expert m ay

testif y in term s of opinion o r inf erences a nd give his reasons theref or w ithout prior disclosure of the underly ing f a c ts or data, unless the court requires o t herwise. The expert m ay in a n y event be required to disclose the underly ing f

acts or data on cross-exam ination. Miss. R. Evid. 705. ¶281. In this case, n either t he trial judge nor the State r equested production o f the underly ing data or the articles upon which Dr. Neuschatz relied. It w as c lear error f or the trial judge to reject Dr. Neuschatz’s a f f i d a vit m erely because the a rticles were not attached. And the

m ajority com

pounds the error by requiring t he expert i n this case t o do s om ething other

12 D r. N eu sch atz c ited stu d ies b y : (1 ) N eisser 1 9 6 7 ; (2 ) L o f tu s 1 9 7 9 ; (3 ) L o f

t u s & L o f tu s 1 9 9 0 ; ( 4 ) S c h a c t er 1 9 9 5 ; (5 ) E llis, D a v is & S h ep ard 1 9 7 7 ; (6 ) M aclin , M aclin & M a l p a s s 2 0 0 1 ; ( 7 ) S h ap i ro & P en ro d 1 9 8 6 ; (8 ) M em o n , H o p e & B u ll 2 0 0 3 ; (9 ) C u lter & P en ro d 1 9 8 8 ; (1 0 ) C u lter, P e n ro d & M arten s 1 9 8 7 (stu d y a); (1 1 ) C u lter, P en ro d & M arten s 1 9 8 7 (stu d y b ) ; (1 2 ) C u lter 1 9 8 6 ; (1 3 ) O ’R o u rk e 1 9 8 7 ; (1 4 ) C u lter 2 0 0 6 ; (1 5 ) T u lv in g 1 9 8 3 ; (1 6 ) H u n t & E llis 1 9 7 4 ; (1 7 ) R ead , T o llestru p , H am m e rsley , M c F ad d en & C h risten sen 1 9 9 0 ; ( 1 8 ) R o ss, C eci, D u n n in g & T o g lia 1 9 9 4 ; (1 9 ) M eissn er & B r ig h am 2 0 0 1 ; (2 0 ) G i b so n 1 9 6 9 ; (2 1 ) Wells & B rad f ield 1 9 9 8 ; (2 2 ) N e u sch a tz 2 0 0 5 ; (2 3 ) H af s tad , M em o n & L o g ie 2 0 0 4 ; (2 4 ) Wells, S m all, P en ro d , M alp ass, F u l ero & B rim aco m b e 1 9 9 8 ; (2 5 ) H aw & F ish e r 2 0 0 4 ; (2 6 ) G arrio ch & B rim aco m b e 2 0 0 1 ; (2 7 ) N eu sch atz & G u tler (in p ro g ress); (2 8 ) D o u g las, S m ith , & F rasier-H ill 2 0 0 5 ; (2 9 ) M a lp ass & D ev in e 1 9 8 1 ; (3 0 ) S teb aly 1 9 9 7 ; (3 1 ) L o f tu s 1 9 9 3 ; (3 2 ) Jo h n s o n 1 9 9 3 ; an d (3 3 ) P ezd ek 2 0 0 7

. 1 6 3experts are not required to d o , 1 3 a n d s o mething this v ery Court’s r ules specif

ically do not require. ¶282. In W

atts v . Radiator S

pecialty Com

pany , this C ourt considered w hether an expert’s opinions were actually supported by the case-studies he cited. Watts v. Radiator Specialty Co. , 990 So. 2d 1 43, 146-48 (Miss. 2008). The expert in that case did not provide the studies to the court. Id. at 147 n.7. Though this Court f ound t hat the trial court properly excluded the expert’s testim ony because the studies did n o t s u p p o rt his conclusion, the Court never questioned his f

ailure to provide those studies. Id.
“I do not k

now w hether the testimony has a p otential or known high rate of error. I do not have anything about that.” ¶283. A g a i n , o n this point, the t rial judge was incorrect. In his af f idavit, Dr. Neus c h a t z discussed extensive testing that produced precise error r ates. For instance, in discussing the f actor of exposure tim e, Dr. Neuschatz stated:
E xposure duration had a signif icant im pact on identif

ication accuracy . Ninety

f ive percent of the y oung adults and 85% o f t h e older adults m a de correct identif ications f ro m t h e r obber-present photo a rray s when the robber was expo s ed f or 45 seconds, but only 29% o f the y oung adults and 35% of the older adults m ade correct identif ications when the robber was exposed f or 12 seconds. ¶284. In d i s c u s s i n g t h e a p p e a r a n c e c h a n g e d isguise f actor, he stated: “The average perf orm ance l evels across the six studies, whi c h i n v o l v ed o ver 1,300 ey ewitness identif ications, was 57% correct when uncovered and versus 44% when a hat was worn.”

13 I t i s d i f f i c u l t to im a g in e th e M aj o rity r ej ectin g o u t-o f -h an d th e o p in io n s o f th e S tate’s p a th o lo g ist a s to th e c au se an d m an n er o f d eath , sim p ly b ecau se t h e reco rd d o es n o t in clu d e all o f

th e u n d erly in g stu d ies an d d ata th at co n trib u ted to th at o p in io n . 1 6 4¶285. In discussing cross-race identif ication, Dr. Neuschatz stated: The r eliability of the ORB [ own-race bias] was exam ined by Meissner a n d B r i g ham (2001) who m e ta-analy zed the results of 31 s e parate st u d i e s i n v o l v i n g 91 separate experim ental t ests of own versus sam e-race i dentif ications. The stu d i e s included over 5 ,000 participants. A cross all studies, ey ewitnesses were 1.4 tim es m ore likely t o correctly identif y m em bers of their own race t han m em bers of oth e r r a c e s , and t hey were 1.56 tim es m ore likely to f alsely identif y m e m bers of other races than m em

bers of their own race. ¶286. These and other studies cited in the af f idavit speak n ot only to error rates but also to the reliability

of Dr. Neuschatz’s opinions.

“ I d o n o t know anything about the principles and methods used to c ome t o conclusions.” ¶287. Here again, the t rial j udge was incorrect. The studies cited above, and the balance of
Dr. Neuschatz’s af

f i davit are r eplete with descriptions of the m ethods and principles used in the num erous studies. ¶288. Dr. Neuschatz’s af f idavit contained d etailed inf orm ation about st u d i es on: (1) how

m em ory w orks; (2) ef

f ect of exposure tim e on reliability of m em o ry ; (3) e f f ect o f a ppearance changes a nd disguises on identif ication; (4) the phenom enon o f u n c onscious transf erence where one situation is conf used with another; (5) problem s with cross-racial identif ications; (6) problem s with post identif ication f eedback; and (7) p roblem s with suggestiv e line-up procedures. “And b as i c a l l

y , the witness did not apply t he principles and methods t o the facts of this case. He made broad generalizations in the doc u m e nt that was submitted, b u t he did not specifically apply t hose principles and methods to the facts of this case.” ¶289. Again, the t rial judge was incorrect. D r. Neuschatz indeed a pplied the principles and

1 6 5m ethods in his f ield of expertise t o the f

acts in the Flowers case. For instance, he analy zed in detail t he ef

f ect of the p olice’s line-up identif ication. Also, he addressed issues involving Porky Collins’s identif

ication, including problem s with cross-racial identif ications. Refusing to allow Dr. Neuschatz to testify was not harmless error. ¶290. Dr. Neuschatz’s testim ony would have provided the jury a f a i r b a sis upon which to judge the accuracy of Collins’s identif ication. I a lso cannot accept the m ajority ’s conclusion that “Collins’s identif

ication was f

ar f rom the only evidence of guilt i n t he instant case, and it cannot be label ‘critical.’” ¶291. It is true t hat the State had other witnesses, but none provided the powerf ul e y ewitness testim o ny that Collins p rovided. He is t he only witness who placed Flowers at the scene of the m urders shortly bef

ore they were com m itted. N one of the witnesses was m ore c r i t i c a l to the State’s case, and none was m ore im portant f o r the def ense to attack. ¶292. The State of

f ered nothing in rebuttal of Dr. N euschatz’s opinions: n o experts, articles, studies, or e v i dence of any k i nd that tended to ref ute his opinions and m ethodology

. Accordingly , Dr. Neuschatz should have been allowed to testif y in this case.
B. The trial judge should h ave denied the State’ s r e q u e s t e d i n s t r u c tion on the com m ission of a capital crim e to avoid arrest aggravator. ¶293. W h en F lowers’s case proceeded t o the sentencing phase, the trial judge instructed the jury to consider three potential aggravating f actors: 1. The Def

endant knowingly created a great risk of death t o m any persons. 2. The capital of

f ense was com m itted while the Def e ndant was engaged in the com m ission of

the crim e of

arm ed robbery

f o r pecuniary

gain.

1 6 63. The capital of f ense was c o mmitted f

or the purpose o f avoiding or preventing lawf

ul arrest or ef

f ecting an escape f

rom custody

. The jury f

ound each aggravating f

actor and sentenced Flowers to death. Because the trial judge erred when he instructed the jury to c onsider the third aggravating f actor, I would

reverse Flowers’s death sentence a nd rem and f o r resentencing even if this Court af f irm ed his conviction. ¶294. It is elem e ntary that t h e S t a t e bears the burden to prove the def endant’s guilt of

a charged of

f e nse bey ond a reasonable doubt. Henley v. State , 136 So. 3 d 413, 415-16 (Miss. 2014). Likewise, o u r law places upon the State the burden in a c apital m urder s e ntencing proceeding to prove the existence of each aggravating factor bey ond a reasonable doubt

. Holland v. State , 587 So. 2d 848, 874 (Miss. 1991) ( citing Nixon v. State , 5 33 So. 2d 1078, 1099 ( Miss. 1987), overruled on other g r o unds by Wharton v. State , 734 S o. 2d 985, 991 (Miss. 1998)); see also Keller v. State , 138 So. 3d 817, 867-68 (Miss. 2 014). Only when the
State satisf

ies its burden m a y the jury weigh a p a r t i c u l a r aggravating f actor in f avor of a death sentence. Keller , 138 So. 3d at 867-68. ¶295. The M ajority relies on this Court’s repeated statem ent t hat an i n s t ruction should be granted on t his aggravating f actor if the jury m ay draw a n i nf erence f rom the evidence that avoiding arrest was “a substantial reason f or t he killing.” Id. at 868 (quoting Gillett v. State , 56 So. 3 d 4 6 9 , 5 05-06 (Miss. 2010) (quoting Leatherwood v. S tate , 435 So. 2 d 645, 651 (Miss. 1983))); see also Wiley v. State , 750 So. 2d 1193, 1206 (Miss. 1999); Woodward v. State , 726 So. 2d 524 , 5 40 (Miss. 1997); Foster v . State , 687 So. 2d 1124, 1140 (Miss. 1996); Taylor v. State , 6 72 So. 2d 1246, 1275 (Miss. 1996); W alker v. State , 671 So. 2d 581,

1 6 7611 (Miss. 1995); Carr v. State , 655 So. 2 d 824, 853-54 (Miss. 1995); Chase v. State , 645

S o. 2 d 829, 858 (Miss. 1994); Hansen v. State , 592 So. 2 d 114, 153 (Miss. 1991); L a n i e r

v. State , 533 So. 2d 473, 490 ( M iss. 1988). But that standard—stated in that way with nothing m ore—cannot be the law. Say ing jurors m ay draw a n inf erence is not enough, unless the inf erence is so strong that, standing alone, t he inf e rence is suf

f i cient f or a f inding bey ond a reasonable doubt. The inf erence in this case clearly does not f

all into that category

. ¶296. The Majority say s a reasonable juror could inf er that Flowers killed one of the victim s
to prevent identif

ication and avoid arrest. W hile a r easonable juror m ight very well f ind that to be a possibility , it would be n o m ore than a guess. And no reasonable juror could m ake that f inding bey ond a reasonable doubt. Judges should subm it issues to juries th rough instructions only when a reasonable juror could f ind the bey ond a reasonable doubt burden of proof satisf

ied o n that i ssue. Henley , 1 36 So. 3d at 415-16 (quoting Edwards v. State , 469 So. 2d 68, 70 (Miss. 1985) (citing May v . S t a t e , 460 So. 2d 778, 781 (Miss. 1 984)) (a directed verdict should b e g ranted if no reasonable juror could f ind the def

endant guilty bey ond a reasonable doubt)); Harper v. State , 478 So. 2d 1017, 1021 (Miss. 1985) (a lesser of f ense instruction should b e g ranted unless no r easonable juror could f ind that the def

endant

com m itted the lesser of

f ense). ¶297. Stated another way , jurors certainly are f ree to draw reasonable inf e rences f rom the f acts. But a juror’s ability to draw a reasonable inf e rence is n ot the sam e as a r easonable juror’s a bility to f ind that f act bey ond a reas o n a b l e d o u b t. For instance, one m ay draw a reasonable i nf

erence that a person who usually goes t o lunch f rom 12:00 to 1:00 p.m . is at

1 6 8lunch on a particular day at 12:30 p.m . But that d oes not m ean one m ay r e ach that

conclusion bey ond a reasonable doubt. ¶298. So a trial judge s hould grant a State’s r equest to instruct the j ury on this aggravating f actor only w here the State has presented evidence f rom which a reasonable juror could f ind bey ond a reasonable doubt that “ a substantial reason f o r the kill i n g w a s t o conceal the identit y of the killer or killers or to ‘cover t heir tracks’ so as to a void apprehension and eventual arrest by

authorities.” Keller , 138 So. 3d at 867-68 (quoting G illett , 56 So. 3d at 505-06 (quoting Leatherwood , 435 So. 2d a t 6 51)). A nd any ca s e that categorically establishes inf

erences as suf

f icient to satisf

y t he b ey ond-a-reasonable-doubt standard should be overruled. ¶299. The State p r esented i nsuf f icient evidence to m eet its burden. The m ost that m ay be said in this case is that the jury could speculate that Flowers com m itted one of the m urders

to avoid arrest. There was no evidence that he did

. I n f act, the State argued in the guilt phase that Flowers c o mmi t t ed the m urders f o r dif f erent purposes: revenge a n d anger over being f ired as w ell as to e f

f e c t u a t e the robbery

. From its opening s t atem ent, the State’s theory of t h e c ase was that Flowers possessed a m otive to com m it the m urders b ecause he had been f

ired by Tardy ’s. This m otive—a revenge k illing—is at odds w ith a conclusion that he k illed out of a necessity to avoid arrest. N o e v idence was presented that Flowers expressed an intent to kill to avoid arrest. ¶300. The Majority f

inds that this aggravating f actor instruction is supported by t wo f acts: Flowers knew his victim s and Flowers disposed of evidence af ter the killings. The second

1 6 9can be disposed of easily because it bears n o logical con n ection to the question at hand.

Regardless of the reason som eone com m its m urder, that person usually has an incentive to dispose of the evidence. Said dif f erently , if Flowers killed his v ictim s out o f pure anger, he would have an incentive to cover up the killing by disposing of

evidence. The sam e could be said if Fl o w e r s k illed because the v ictim s resisted t he r obbery

. Showing that Flowers disposed of evidence af

ter the killing m akes it no m ore reasonable t o conclude that he killed to avoid arrest. ¶301. Likewise, the Majority ’s reliance on t he f act that Fl o w e r s k n e w h i s v i c t i ms is

m isplaced. First, b y the Majority ’s own statem ent, this r ationale applies to one victim

. The

m ajority states: The State’s theory was that Flowers intended to k ill Bertha Tardy because s he f ired him and wi t h h e l d h i s p a y and, in the process o f doing so, he shot and killed the others. Flowers knew Carm en Rigby f rom working at the s tore, but there is no evidence that he knew Robert Johnso n o r D e r r i ck Stewart, as the day of the m u r ders was their f

irst day to work at the store. This statem ent a c k n o w l edges that F lowers killed Tardy —not to avoid arrest—but f or
revenge. The Majority adm its that Flowers did not know Johnson or Stewart. So at best, the Majority ’s reliance on this evidence relates to R igby a lone. But even there i t cannot provide suf f i cient evidence to grant the instruction. It is sim ply inaccurate to say

that a r easonable juror could conclude bey ond a reasonable d oubt t h a t Flowers killed Rigby to avoid arrest, sim ply because they

had worked together. ¶302. True, this C ourt has supported an i n s t r uction on this aggravating f a ctor in the past based solely on the f

act that the victim knew the d ef endant and could identif

y him

. Wiley ,

1 7 0750 So. 2d at 1206. But if we are to enf

orce the burden of

proof required of the State, this

was error. Allowing a jury to consider an aggravating f actor b a s e d o n n o t h ing m ore than
pure s peculation c annot r each the level of proof bey ond a reasonable doubt. B ecause the
State presented i nsuf

f icient evidence f

rom w hich a r easonable juror could f ind this aggravating f

actor bey ond a reasonable doubt, I would reverse Flowers’s s entence of death and rem and f

or a new sentencing hearing. KITCHENS, P.J., JOINS THIS OPINION. WALLER, C.J., JOINS IN PART WITH OPINION.

1 7 1APPENDIX

DEATH CASES AFFIRMED BY THIS COURT Tim othy Nelson Evans v. State , 226 So. 3d 1 (Miss. 2017).
Jam es Co b b H

utto III v. S

tate , 2 014-DP-00177-SCT, 2017 W L 2 001157 (Miss. May 11, 2017). David Cox v. State ,183 So. 3d 36 (Miss. 2015).
David Dickerson v. State , 175 So. 3d 8 (Miss. 2015).
Tim othy Robert Ronk v. State , 172 So. 3d 1112 (Miss. 2015).
Curtis Giovanni Flowers v. State , 158 So. 3 d 1009 (Miss. 2014). *f ollowing rem and.
Caleb Corrothers v. State , 148 So. 3d 278 (Miss. 2014), leave to seek PCR granted in part and denied in part (Feb. 2, 2017), r ehearing denied (May 11, 2017).
Jason Lee Keller v . State , 138 So. 3d 817 (Miss. 2 014), leave t o s eek PCR granted in part and denied in part ( May 25, 2017). Leslie Galloway III v. State , 122 So. 3d 614 (Miss. 2013). Bobby Batiste v. S

tate , 121 So 3d 808 ( Miss. 2 013), granted leave to seek P CR (Jan. 21, 2016). Roger Lee Gillett v. State , 56 So. 3d 469 (Miss. 2010). Moffett v. State , 49 So. 3d 1073 (Miss. 2010). Pitchford v. State , 45 So. 3d 216 (Miss. 2010). Goff v. State , 14 So. 3d 625 (Miss. 2009).
Wilson v. State , 21 So. 3d 572 (Miss. 2009).
Cham berlin v. State , 989 So. 2d 320 (Miss. 2008).

1 7 2Loden v. State , 971 So. 2d 548 (Miss. 2007).

King v. State, 960 So. 2d 413 (Miss. 2007).
Bennett v. State , 9 3 3 So. 2d 930 (Miss. 2006).
Havard v. State , 928 So. 2d 771 (Miss. 2006). Spicer v. State , 921 So. 2d 292 (Miss. 2006). Hodges v. State , 912 So. 2d 730 (Miss. 2005). Walker v. State , 913 So. 2d 198 (Miss. 2005).
Le v. State , 9 13 So. 2d 913 (Miss. 2005), granted leave t o seek second PCR , 2013- DR-00327-SCT (Feb. 23, 2016). Brown v. State , 890 So. 2d 901 (Miss. 2004).
Powers v. State , 883 So. 2d 20 (Miss. 2004)
Branch v. State , 882 So. 2d 36 (Miss. 2004).
Scott v. State , 878 So. 2d 933 (Miss. 2004). Lynch v. State , 877 So. 2d 1254 (Miss. 2004). Dycus v. State , 875 So. 2d 140 (Miss. 2004). Byrom v. State , 863 So. 2d 836 (Miss. 2003).
Howell v. State , 860 So. 2d 704 (Miss. 2003).
Howard v. State , 853 So. 2d 781 (Miss. 2003).
Walker v. State , 815 So. 2d 1209 (Miss. 2002). *f ollowing rem a nd. Bishop v. State

, 812 So. 2d 934 (Miss. 2002).
Stevens v. State , 806 So. 2d 1031 (Miss. 2002). Grayson v. State , 806 So. 2d 241 (Miss. 2002).

1 7 3Knox v. State , 805 So. 2d 527 (Miss. 2002).

Sim m ons v. State , 805 So. 2d 452 (Miss. 2002). Berry v. State , 802 So. 2d 1033 (Miss. 2001).
Snow v. State , 800 So. 2d 472 (Miss. 2001).
Mitchell v. State , 792 So. 2d 192 (Miss. 2001).
Puckett v. State , 788 So. 2d 752 (Miss. 2001). * f ollowing rem and.
Goodin v. State , 787 So. 2d 639 (Miss. 2001).
Jordan v. State , 786 So. 2d 987 (Miss. 2001). Manning v. State , 765 So. 2d 516 (Miss. 2000). *f ollowing rem and. Eskridge v. State , 765 So. 2d 508 (Miss. 2000). McGilberry v. State , 741 So. 2d 894 (Miss. 1999) . Puckett v. State , 737 So. 2d 322 (Miss. 1999). *rem anded f or B atson hearing. Manning v. State , 7 35 So. 2d 323 (Miss. 1999). *rem a nded f or Batson h earing. Hughes v. State , 735 So. 2d 238 (Miss. 1999).
Turner v. State , 732 So. 2d 937 (Miss. 1999).
Sm ith v. State , 7 29 So. 2d 1191 (Miss. 1998).
Burns v. State , 729 So. 2d 203 (Miss. 1998).
Jordan v. State , 728 So. 2d 1088 (Miss. 1998). Gray v. State , 728 So. 2d 36 (Miss. 1998). Manning v. State , 726 So. 2d 1152 (Miss. 1998).
Woodward v. State , 726 So. 2d 524 (Miss. 1997).

1 7 4Bell v . State , 725 So. 2d 836 (Miss. 1998), p ost-conviction r elief granted i n part and denied in part , 725 So. 2d 836 (Miss. 2011). Evans v. State , 725 So. 2d 613 (Miss. 1997).
Brewer v. State , 725 So. 2d 106 (Miss. 1998). Crawford v. State , 716 So. 2d 1028 (Miss. 1998).
Doss v. State , 709 So. 2d 369 (Miss. 1996).
Underwood v. State , 708 So. 2d 18 (Miss. 1998).
Holland v. State , 705 So. 2d 307 (Miss. 1997).
Wells v. State , 698 So. 2d 497 (Miss. 1997).
Wilcher v. State , 697 So. 2d 1087 (Miss. 1997). Wiley v. State , 691 So. 2d 959 (Miss. 1997).
Brown v. State , 690 So. 2d 276 (Miss. 1996).
Sim on v. State , 688 So. 2d 791 (Miss.1997).
Jackson v. State , 684 So. 2d 1213 (Miss. 1996).
William s v. State , 684 So. 2d 1179 (Miss. 1996).
Davis v. State , 684 So. 2d 643 (Miss. 1996). Taylor v. State , 682 So. 2d. 359 (Miss. 1996).
Brown v. State , 682 So. 2d 340 (Miss. 1996).
Blue v. State , 674 So. 2d 1184 (Miss. 1996). Holly v. State , 671 So. 2d 32 (Miss. 1996).
Walker v. State , 671 So. 2d 581 (Miss. 1995).
Russell v. State , 670 So. 2d 816 (Miss. 1995).

1 7 5Ballenger v. State , 667 So. 2d 1242 (Miss. 1995).

Davis v. State , 660 So. 2d 1228 (Miss. 1995).
Carr v. State , 655 So. 2d 824 (Miss. 1995).
Mack v. State , 650 So. 2d 1289 (Miss. 1994).
Chase v. State , 645 So. 2d 829 (Miss. 1994).
Foster v. State , 639 So. 2d 1263 (Miss. 1994).
Conner v. State , 632 So. 2d 1239 (Miss. 1993).
Hansen v. State , 592 So. 2d 114 (Miss. 1991).

* Shell v. State , 554 So. 2d 887 ( M iss. 1989); Shell v. M ississippi , 498 U.S. 1 (1990) reversing, in part, and rem anding; Shell v. State , 595 S o. 2d 1323 (Miss. 1992) rem anding f or new sentencing hearing.
Davis v. State , 551 So. 2d 165 (Miss. 1989).
Minnick v. State , 551 So. 2d 77 (Miss. 1989). *Pinkney v

. State , 538 So. 2d 329 (Miss. 1989); Pinkney v . M i s s i s s i ppi , 494 U.S. 1 0 7 5 (1990) vacating and rem anding; Pinkney v. State , 6 02 So. 2d 1177 ( Miss. 1 9 9 2 ) rem anding f

or new sentencing hearing.
*Clem ons v. State , 535 So. 2d 1354 (Miss. 1988); Clem ons v . Mississippi , 494 U.S. 7 3 8 ( 1990) vacating and rem anding; Clem ons v. State , 5 93 So. 2 d 1004 (Miss. 1 9 9 2 ) rem anding f

or new sentencing hearing.
Woodward v. State , 533 So. 2d 418 (Miss. 1988).
Nixon v. State , 533 So. 2d 1078 (Miss. 1987).
Cole v. State , 525 So. 2d 365 (Miss. 1987).
Lockett v. State , 517 So. 2d 1346 (Miss. 1987).
Lockett v. State , 517 So. 2d 1317 (Miss. 1987).

1 7 6Faraga v. State , 514 So. 2d 295 (Miss. 1987).

*Jones v. S

tate , 517 So. 2d 1295 ( Miss. 1987); Jones v. Mississippi , 4 87 U .S. 1230 (1988) vacating and rem anding; Jones v. S tate , 602 So. 2d 1 170 (Miss. 1992) r em anding f or new sentencing hearing. Wiley v. State , 484 So. 2d 339 (Miss. 1986).
Johnson v. State , 477 So. 2d 196 (Miss. 1985). Gray v. State , 472 So. 2d 409 (Miss. 1985).
Cabello v. State , 471 So. 2d 332 (Miss. 1985).
Jordan v. State , 464 So. 2d 475 (Miss. 1985).
Wilcher v. State , 455 So. 2d 727 (Miss. 1984).
Billiot v. State , 454 So. 2d 445 (Miss. 1984). Stringer v. State , 454 So. 2d 468 (Miss. 1984). Dufour v. State , 453 So. 2d 337 (Miss. 1984).
Neal v. State , 451 So. 2d 743 (Miss. 1984).
Booker v. State , 449 So. 2d 209 (Miss. 1984).
Wilcher v. State , 448 So. 2d 927 (Miss. 1984).
Caldwell v. State , 443 So. 2d 806 (Miss. 1983). Irving v. State , 441 So. 2d 846 (Miss. 1983).
Tokm an v. State , 435 So. 2d 664 (Miss. 1983). Leatherwood v. State , 435 So. 2d 645 (Miss. 1983).
Hill v. State , 432 So. 2d 427 (Miss. 1983).
Pruett v. State , 431 So. 2d 1101 (Miss. 1983).

1 7 7Gilliard v. State , 428 So. 2d 576 (Miss. 1983).

Evans v. State , 422 So. 2d 737 (Miss. 1982). King v. State , 421 So. 2d 1009 (Miss. 1982).
Wheat v. State , 420 So. 2d 229 (Miss. 1982). Sm ith v. State , 419 So. 2d 563 (Miss. 1982).
Johnson v. State , 416 So. 2d 383 (Miss.1982).
Edwards v. State , 413 So. 2d 1007 (Miss. 1982).
Bullock v. State , 391 So. 2d 601 (Miss. 1980).
Reddix v. State , 381 So. 2d 999 (Miss. 1980). Jones v. State , 381 So. 2d 983 (Miss. 1980).
Culberson v. State , 379 So. 2d 499 (Miss. 1979). Gray v. State , 375 So. 2d 994 (Miss. 1979).
Jordan v. State , 365 So. 2d 1198 (Miss. 1978).
V oyles v. State , 362 So. 2d 1236 (Miss. 1978). Irving v. State , 361 So. 2d 1360 (Miss. 1978). Washington v. State , 361 So. 2d 6l (Miss. 1978).
Bell v. State , 360 So. 2d 1206 (Miss. 1978). *Case was originally a f

f irm ed in this Court but o n rem and f r om U. S. Suprem e Court, case was rem anded by

this Court f

or a new sentencing hearing.

1 7 8DEATH CASES REVERSED AS TO GUILT PHASE A ND SENTENCING PHASE Sherwood Brown v. State , 2017-DR-00206=SCT (Oct. 26, 2017) (order). Erik Wayne Hollie v. State , 174 So. 3d 824 (Miss. 2015). Manning v

. State , 158 So. 3d 302 (Miss. 2015) (reversing denial of post-conviction relief )

. Byrom v. State , 2014-DR-00230-SCT (April 3, 2014) (order). Ross v. State , 9 5 4 So. 2d 968 (Miss. 2007). Flowers v. State , 9 4 7 So. 2d 910 (Miss. 2006). Flowers v. State , 842 So. 2d 531 (Miss. 2003). Randall v. State , 806 So. 2d 185 (Miss. 2002). Flowers v. State , 773 So. 2d 309 (Miss. 2000). Edwards v. State , 737 So. 2d 275 (Miss. 1999). Sm ith v. State , 733 So. 2d 793 (Miss. 1999).
Porter v. State , 732 So. 2d 899 (Miss. 1999). Kolberg v. State , 704 So. 2d 1307 (Miss. 1997).
Snelson v. State , 704 So. 2d 452 (Miss. 1997).
Fusilier v. State , 702 So. 2d 388 (Miss. 1997).
Howard v. State , 701 So. 2d 274 (Miss. 1997).
Lester v. State , 692 So. 2d 755 (Miss. 1997).
Hunter v. State , 684 So. 2d 625 (Miss. 1996).
Lanier v. State , 684 So. 2d 93 (Miss. 1996).

1 7 9Giles v. State , 650 So. 2d 846 (Miss. 1995).

Duplantis v. State , 644 So. 2d 1235 (Miss. 1994).
Harrison v. State , 635 So. 2d 894 (Miss. 1994).
Butler v. State , 608 So. 2d 314 (Miss. 1992).
Jenkins v. State , 607 So. 2d 1171 (Miss. 1992).
Abram v. State , 606 So. 2d 1015 (Miss. 1992). Balfour v. State , 598 So. 2d 731 (Miss. 1992). Griffin v. State , 557 So. 2d 542 (Miss. 1990).
Bevill v. State , 556 So. 2d 699 (Miss. 1990).
West v. State , 553 So. 2d 8 (Miss. 1989).
Leatherwood v. State , 548 So. 2d 389 (Miss. 1989).
Mease v. State , 539 So. 2d 1324 (Miss. 1989).
Houston v. State , 531 So. 2d 598 (Miss. 1988).
West v. State , 519 So. 2d 418 (Miss. 1988).
Davis v. State , 512 So. 2d 129l (Miss. 1987).
William son v. State , 512 So. 2d 868 (Miss. 1987).
Foster v. State , 508 So. 2d 1111 (Miss. 1987).
Sm ith v. State , 499 So. 2d 750 (Miss. 1986).
West v. State , 485 So. 2d 681 (Miss. 1985).
Fisher v. State , 481 So. 2d 203 (Miss. 1985).
Johnson v. State , 476 So. 2d 1195 (Miss. 1985).

1 8 0Fuselier v. State , 468 So. 2d 45 (Miss. 1985).

West v. State , 463 So. 2d 1048 (Miss. 1985).
Jones v. State , 461 So. 2d 686 (Miss. 1984). Moffett v. State , 456 So. 2d 714 (Miss. 1984).
Lanier v. State , 450 So. 2d 69 (Miss. 1984). Laney v. State , 421 So. 2d 1216 (Miss. 1982).

1 8 1DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT Bell v. State , 160 So. 3d 188 (Miss. 2016).
Reddix v. State , 547 So. 2d 792 (Miss. 1989).
Wheeler v. State , 536 So. 2d 1341 (Miss. 1988).
White v. State , 532 So. 2d 1207 (Miss. 1988).
Bullock v. State , 525 So. 2d 764 (Miss. 1987).
Edwards v. State , 441 So. 2d 84 (Miss. l983). Dycus v. State , 440 So. 2d 246 (Miss. 1983).
Colem an v. State , 378 So. 2d 640 (Miss. 1979).

1 8 2DEATH CASES REVERSED AS TO P UNISHMENT AND REMANDED FOR A NEW TRIAL

ON SENTENCING PHASE ONLY
Fulgham v. State , 4 6 So. 3d 315 (Miss. 2010).
Rubenstein v. State , 941 So. 2d 735 (Miss. 2006). King v. State , 784 So. 2d 884 (Miss. 2001).
Walker v. State , 740 So. 2d 873 (Miss. 1999).
Watts v. State , 7 33 So. 2d 214 (Miss. 1999).
West v. State , 725 So. 2d 872 (Miss. 1998).
Sm ith v. State , 724 So. 2d 280 (Miss. 1998). Berry v. State , 703 So. 2d 269 (Miss. 1997).
Booker v. State , 699 So. 2d 132 (Miss. 1997). Taylor v. State , 672 So. 2d 1246 (Miss. 1996).
*Shell v. State , 5 54 So. 2d 887 (Miss. 1989); S hell v. Mississippi , 498 U.S. 1 (1990) reversing, in part, a nd r e m a nding; Shell v. State 595 So. 2d 1323 (Miss. 1992) rem anding f or new sentencing hearing.

* Pinkney v

. State , 538 So. 2d 329 (Miss. 1989); Pinkney v . M i s s i s s ippi, 494 U.S. 1075 ( 1990) vacating and rem anding; Pinkney v . State , 602 So. 2 d 1 1 7 7 (Miss. 1992) rem anding f

or new sentencing hearing.
*Clem ons v. State , 535 So. 2d 1354 (Miss. 1988); Clem ons v . Mississippi , 494 U.S. 738 (1990) vacating and rem anding; Clem o ns v. State , 593 So. 2d 1 004 ( M i s s . 1 9 92) rem anding f

or new sentencing hearing. *Jones v. S

tate , 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi , 4 87 U .S. 1230 (1988) vacating and rem anding; Jones v. S tate , 602 S o. 2d 1170 (Miss. 1992) r em anding f or new sentencing hearing. Russell v. State , 607 So. 2d 1107 (Miss. 1992).

1 8 3Holland v. State , 587 So. 2d 848 (Miss. 1991).

Willie v. State , 585 So. 2d 660 (Miss. 1991).
Ladner v. State , 584 So. 2d 743 (Miss. 1991).
Mackbee v. State , 575 So. 2d 16 (Miss. 1990). Berry v. State , 575 So. 2d 1 (Miss. 1990). Turner v. State , 573 So. 2d 657 (Miss. 1990).
State v. Tokm an , 564 So. 2d 1339 (Miss. 1990).
Johnson v. State , 547 So. 2d 59 (Miss. 1989).
William s v. State , 544 So. 2d 782 (Miss. 1989); sentence a ff'd, 684 So. 2d 1179 (1996).
Lanier v. State , 533 So. 2d 473 (Miss. 1988). Stringer v. State , 500 So. 2d 928 (Miss. 1986).
Pinkton v. State , 481 So. 2d 306 (Miss. 1985).
Mhoon v. State , 464 So. 2d 77 (Miss. 1985). Cannaday v. State , 455 So. 2d 713 (Miss. 1984). Wiley v. S tate , 449 So. 2d 75 6 ( M i s s . 1 984); r esentencing af f irm ed, W iley v. State , 484 So. 2d 339 (Miss. 1986); cert. denied, Wiley v. Mississippi , 4 7 9 U

. S

. 1 036 (1988); resentencing o rdered, Wiley v. State , 635 So. 2 d 802 (Miss. 1993) f ollowing writ of habeas c o r p u s i s s ued pursuant to Wiley v. Puckett , 969 S o. 2d 86, 1 05-106 (5th C ir. 1992); resentencing af

f irm ed

. William s v. State , 445 So. 2d 798 (Miss. 1984). *Case was originally af f irm ed in this Court but on rem and f

rom U

. S. Suprem e Court, c ase was rem anded by this C o urt f or a new sentencing hearing. (Revised October 30, 2017.)

1 8 4