[Copyrighted Material Omitted]
Office of State Public Defender by Justin Taylor Cook, George T. Holmes, attorneys for appellant.
Office of the Attorney General by Laura Hogan Tedder, John R. Henry, Jr., attorneys for appellee.
Before WALLER, C.J., LAMAR and PIERCE, JJ.
¶ 1. David Waits was indicted by a grand jury in Hinds County, Mississippi, on one count of deliberate-design murder of Wavious McGee.  The indictment also charged Waits with a sentence enhancement for using a firearm during the commission of a felony, pursuant to Mississippi Code Section 97-37-37 (Supp.2012). A Hinds County jury found Waits guilty of manslaughter.
¶ 2. According to the sentencing order, the trial judge sentenced Waits to twenty years imprisonment for the manslaughter conviction. Included within the sentencing order is the notation: " ENH (GUN) 97-37-37."
¶ 3. We affirm Waits's manslaughter conviction and his twenty-year sentence for that conviction. But, because the jury did not specifically find Waits guilty of using a firearm in the commission of the crime of manslaughter, we reverse the trial court's sentence enhancement and remand this case to the trial court, with the instruction that the gun-enhancement notation be struck from the sentencing order.
STATEMENT OF THE FACTS
¶ 4. Late in the evening, on April 8, 2010, Latasha Beasley, her fiancé, Wavious McGee, Jennifer Graves, and Piere Lacy drove to a gas-station convenience store located on the corner of Bailey Avenue and Woodrow Wilson, in Jackson, Mississippi. According to the State's evidence, Lacy exited the vehicle and began walking toward the store. Lacy passed by Waits, who, according to Lacy, said " he had some good weed to sell." Lacy replied, " No, I don't smoke." McGee then exited the vehicle and went inside the store with Lacy. McGee handed Lacy some money for cigarettes and left the store.
¶ 5. According to Beasley, after McGee exited the store, she saw McGee speak to Waits and shake Waits's hand. Beasley testified that she knew Waits because her mother had helped raise Waits's sister, Carlena Waits. Beasley said she did not know whether Waits and McGee knew each other. When McGee got back in the car, Beasley asked McGee, " what was he talking to David about." McGee said Waits had asked him if he wanted to buy some truck rims. Beasley told McGee to call Waits over to the car. McGee was sitting in the front passenger seat, and Beasley was sitting in the driver's seat. Waits approached Beasley on the driver's side and they talked. McGee moved Lacy's gun, which was sitting out, under the seat. Waits asked if McGee was pulling a gun on him. McGee did not respond, but Beasley told Waits, " No, David, he's not pulling a gun on you." Speaking to the " guys" Waits was with, Waits said,
" Bro, this man just pulled a gun on me." The guys asked Waits who he was talking about. Beasley told Waits again that McGee had not pulled a gun on him. Waits walked away and then returned to McGee's side of the car. According to both Beasley and Graves, McGee got out of the car and put his hands up in the air. McGee told Waits that he (McGee) had no reason to pull a gun on him (Waits).
¶ 6. At that point, Lacy exited the store. Lacy recalled hearing " a lot of loud talking." Lacy saw McGee standing by the car with his hands up and Waits standing nearby holding a gun. Lacy testified that Waits pulled the gun's trigger, and the gun " clicked." Lacy then ran towards Waits and tried to grab the gun. Waits shoved Lacy away and began shooting at McGee. Lacy said Waits shot McGee " [o]ver fifteen" times. Waits then left the scene.
¶ 7. The Jackson Police Department and paramedics were called, and McGee was pronounced dead at the scene. The police recovered sixteen spent shell casings at the scene, and investigators recovered a firearm located between the passenger seat and the middle console of McGee's vehicle. None of the shell casings found at the scene matched McGee's gun.
¶ 8. Dr. Feng Li, a forensic pathologist, performed an autopsy on McGee. Dr. Li testified that McGee died of multiple gunshot wounds. His injuries included injury to the heart, both lungs, liver, stomach, pancreas and thoracic aorta. Dr. Li testified that he recovered only three bullets from McGee's body, but there were twenty-five individual gunshot wounds, and it was possible that all wounds came from sixteen or seventeen shots fired. Dr. Li also said that McGee had a blood alcohol level of 0.31.
¶ 9. Waits provided a statement to authorities shortly after he was arrested, in which he said that McGee had pulled a gun on him. At trial, Waits claimed that he shot McGee in self-defense after McGee pointed a gun at him. Waits testified that he did not know Beasley and had never seen her before that evening. Waits stated also that he thought, but was not sure, that he knew McGee as someone who hung around a person known by the name as Chill Will. According to Waits, Will had shot him (Waits) in 2004. Waits further stated that he (Waits) and McGee had never had any previous conflicts.
¶ 10. The jury found Waits guilty of manslaughter. The trial court sentenced Waits to twenty years' imprisonment for the manslaughter conviction, which is the maximum sentence allowed under Mississippi Code Section 97-3-25. The sentencing order also contains a sentence-enhancement notation, indicating that Waits was convicted under Section 97-37-37.
¶ 11. This appeal followed, raising the following two issues: (1) whether the trial court erred by overruling Waits's motion for a new trial, because the overwhelming weight of the evidence pointed towards excusable homicide in self-defense, and (2) whether Waits's sentence violates the United States Constitution. Additional facts, as necessary, will be related in our discussion of issues.
I. The trial court erred when it overruled Waits's motion for a new trial, because the overwhelming weight of the evidence pointed toward ...