TIMOTHY NELSON EVANS a/k/a TIMOTHY N. EVANS a/k/a TIMOTHY EVANS a/k/a TIM EVANS
STATE OF MISSISSIPPI
OF JUDGMENT: 08/23/2013
COUNTY CIRCUIT COURT HON. LISA P. DODSON TRIAL JUDGE
COURT ATTORNEYS: TODD NATHAN THRIFFILEY MATTHEW DRAKE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
ALISON R. STEINER FRANK P. WITTMANN, IV.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
CAMERON LEIGH BENTON
DISTRICT ATTORNEY: JOEL SMITH.
RANDOLPH, PRESIDING JUSTICE
Timothy Nelson Evans was tried and convicted of capital
murder with the underlying felony of robbery for the killing
of Wenda Holling. At the conclusion of the sentencing phase,
the jury imposed the death penalty. The Circuit Court of
Hancock County denied Evans's post-trial motions. Evans
appeals, raising ten assignments of error. Finding no error,
AND PROCEDURAL HISTORY
Evidence adduced at trial revealed that in the spring of
2009, Evans moved into Holling's home as her tenant. The
two previously had been romantically involved, but that
relationship had ceased before Evans moved in with
seventy-year-old Holling. On the morning of January 2, 2010,
fifty-two-year-old Evans and his friend, Joe Thomas, were on
the way to perform a carpet-cleaning job when the van they
were riding in broke down. Evans had consumed several beers
that morning and asked Thomas for money to buy more beer,
which Thomas did not give him. Evans called Holling and asked
her to pick him up. After the call, Evans told Thomas that
Holling was going on a cruise with her daughter and he had to
drive her to the airport in Baton Rouge. Holling picked up
Evans in her silver Kia and drove him to her house. When
Evans left with Holling, he was intoxicated.
Once home, Holling was sitting in a chair in the living room
when Evans attempted to smother her with a pillow. When his
attempt to smother Holling failed, Evans strangled her to
death. Then, Evans placed her body on her bed, showered, and
got ready to go out. Evans took Holling's credit card
and, at about 5:00 p.m., picked up Thomas in Holling's
Kia, announcing "come on, let's go party."
Evans had been drinking when he picked up Thomas. Evans and
Thomas stopped at several ATMs where Evans used Holling's
credit card to obtain cash. Then, the two traveled to
Sawdoff's bar, where Evans used cash and Holling's
credit card to pay for alcohol and food for himself and
Thomas. Later, Evans dropped off Thomas and returned to
The next morning, Evans placed Holling's body in the
trunk of her Kia, picked up Thomas, and drove to Harrison
County. While driving, he told Thomas he had run over a skunk
and asked several times if Thomas could smell it. He dropped
Thomas off and then stopped at Pee-Wee's gas station,
where he bought beer with cash, but he used Holling's
credit card to buy gas. Evans then drove to a rural area
where he dumped Holling's body in the woods about ten
yards from the side of the road. The same day, Evans
attempted to use Holling's credit card again at a Walmart
in Wiggins, but it was declined.
Holling's adult children, who usually spoke with their
mother regularly, became concerned about her whereabouts. On
January 5, 2010, Holling's son called the Hancock County
Sheriff's Department and reported her missing.
Investigator John Luther detected no signs of a struggle
inside Holling's home. He found several items of clothing
and a pair of prescription glasses, all identified as
Holling's, in a garbage can outside Holling's home.
Evans gave a voluntary statement to Investigator Luther, not
admitted at trial, in which he said that Holling had gone to
Florida on vacation. Investigator Luther subpoenaed records
from Holling's bank and determined that her credit card
had been used at several locations on January 2 and 3, 2010.
He obtained surveillance video and purchase records from
Pee-Wee's gas station that showed Evans had used the
credit card to buy gas. On January 26, 2010, Holling's
body was discovered by a road crew in Harrison County. Dr.
Paul McGarry performed an autopsy that revealed defensive
wounds and the cause of death, manual strangulation.
Investigator Luther requested the assistance of the United
States Marshals Service to locate Evans. On February 17,
2010, the Service apprehended Evans in a hotel room in
Florida. Evans waived extradition and gave a statement to
local investigators admitting that he had killed Holling;
this statement also was not admitted at trial. The next day,
Evans was transported back to Hancock County, where he gave
an audiorecorded statement that was admitted. In that
statement, Evans revealed that, after Holling had driven him
home that afternoon, he had decided to steal her credit card
from her purse, but she had caught him in the act. He and
Holling began arguing, and he decided to kill Holling. As
Holling was sitting in her living room chair, he "went
and got a pillow and put it over her head . . . when that
didn't work . . . I just strangled her and uh then I just
picked her up and I put her up on her bed and I got the
credit card and I took a shower and I just went out like
everything was fine . . . ."
Evans also described how the next morning, before he
transported Holling's body to Harrison County, he removed
several items of Holling's clothing and placed them in
the trash can outside. He said that, after he had deposited
Holling's body in the woods, he threw her purse into some
weeds farther down the road. Then he drove to Bogue Chitto
and stayed with a friend. Evans also described how he had
disposed of Holling's cell phone by throwing the
phone's chip down a drain in Picayune and throwing the
phone itself out of the car window beside an interstate exit.
Evans brought investigators to the area where Holling's
body was found. He also showed them the area where he had
thrown her purse, but it was never found. On March 10, 2010,
Evans wrote a letter to Investigator Luther which amended his
earlier statement. In the letter, Evans said that he had
decided to "use [Holling's] credit card and cash I
knew she had in [her]bedroom drawer, " and then he
attempted to smother her with a pillow; when that failed to
kill her, he got on top of her and strangled her to death.
Evans said that his previous statement that Holling had
caught him taking her credit card had been a lie. He wrote:
"I planned this that day and I know that I just followed
thru [sic] with plan." (Emphasis in original.)
Evans wrote that "I had to confess truthfully to God and
also to you for me to be forgiven by God, I don't expect
man to forgive me. . . ."
In June 2010, Evans wrote a five-page letter to Donna Harris,
a reporter with The Sun Herald. In this letter,
Evans stated that he had planned the killing on December 20,
2009. He decided where and how to kill Holling, and
"planned party time too." Evans wrote that, on
December 29, 2009, he looked for a place to bury the body.
Evans said that, after he "carried out murder on January
2nd 2010, " he "went out partying Saturday nite
[sic]. . . ." He said that he "used her credit card
too." Evans described how he used the credit card and
said that he "meant to go back to place and bury
body." However, before he could do so, he left the state
to evade capture. Evans's letters to Luther and Harris
were admitted at trial.
Defense counsel emphasized Evans's intoxication and
attempted to show that Evans was guilty of, at most,
heat-of-passion manslaughter. The defense presented no
testimony but did offer the newspaper article that Donna
Harris had written after her interview with Evans. Harris
wrote that, during the interview, Evans had expressed remorse
and said that he deserved to go to death row, did not deserve
the mercy of the court, and "[i]f he could, he would
plead guilty today and get a death sentence." Evans also
had said that he had been drinking heavily the day of the
killing, and "I just lost control of my thoughts. I just
lost control of what I was doing and what I was
thinking." He admitted that, when Holling was still
breathing, he had second thoughts but decided to follow
through on his plan.
The trial court denied Evans's proffered manslaughter
instructions, finding them unsupported by the evidence. The
jury found Evans guilty of capital murder. At the sentencing
phase, the State reintroduced all evidence from the guilt
phase and then rested.
Evans then presented the testimony of a clinical and forensic
psychologist, Dr. R.M. Storer, and a clinical and medical
psychologist, Dr. Marc Zimmerman. Dr. Storer had performed a
pretrial evaluation to (1) examine Evans's mental state
at the time of the alleged offense, (2) determine his
competency to stand trial, (3) evaluate whether he suffered
from intellectual disability, and (4) provide any mitigating
circumstances related to the alleged offense. Dr. Storer
testified that his testing showed that Evans had a full-scale
IQ of 87, in the nineteenth percentile, and that he was not
intellectually disabled. Based on his interview of Evans, Dr.
Storer opined that Evans had experienced a troubled childhood
in which his parents had divorced and his mother had been
emotionally abusive. Evans began abusing alcohol and drugs at
an early age. Dr. Storer testified that Evans had a criminal
history that was related to his abuse of alcohol and drugs.
He diagnosed Evans with alcohol dependence, abuse of other
substances, and conversion disorder which, he explained, is
when "people have a lot of anxiety and . . . that
anxiety comes out through physical symptoms." He
testified that, based on his interview with Evans, he might
have been under extreme mental and emotional disturbance at
the time of the offense. However, Dr. Storer emphasized that
he had been unable to corroborate any of the information
Evans had provided. He concluded that, at the time of the
crime, Evans had not been "suffering from a mental
disease or defect that would have prevented him from knowing
the nature and quality of his alleged acts or from knowing
the difference between right and wrong . . . ."
Dr. Zimmerman testified that he had performed a mental
evaluation of Evans for mitigation purposes. Dr. Zimmerman
concluded that Evans either was abusing alcohol and drugs or
he was addicted to them. He also detected a cognitive
disorder and some form of anxiety disorder, possibly
post-traumatic stress disorder, but he testified that further
testing would be needed for a conclusive determination. He
opined that, due to Evans's anxiety and chemical
dependence, he had been suffering from extreme emotional
disturbance at the time of the crime. Like Dr. Storer, Dr.
Zimmerman was unable to corroborate any of Evans's
assertions about his history.
The jury found beyond a reasonable doubt that Evans actually
had killed Holling. The jury found the single aggravating
circumstance on which it had been instructed-that the capital
offense had been committed for pecuniary gain during the
course of a robbery-beyond a reasonable doubt. Finding that
insufficient mitigating circumstances existed to outweigh the
aggravating circumstance, the jury found Evans should receive
the death penalty. Evans filed a post-trial motion for a
judgment notwithstanding the verdict (JNOV) or a new trial.
After a hearing, the motion was denied. Evans appealed.
On appeal, Evans raises the following ten issues,
verbatim ad literatim:
I. WHETHER, HAVING EXPRESSLY ORDERED EVANS EVALUATED FOR
COMPETENCY, THE TRIAL COURT REVERSIBLY ERRED BY FAILING TO
HEAR AND ADJUDICATE THE QUESTION OF EVANS'S COMPETENCY.
II. WHETHER THE JURY SELECTION PROCESS WAS CONSTITUTIONALLY
INFIRM AND REQUIRES REVERSAL OF EVANS'S CONVICTION AND
SENTENCE OF DEATH.
III. WHETHER ISSUES WITH THE JURY, EXACERBATED BY ITS
APPARENT INABILITY TO FOLLOW JUDICIAL INSTRUCTIONS, ALSO
INFECTED THE TRIAL ITSELF WITH REVERSIBLE ERROR.
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE EVIDENTIARY
ERROR AT BOTH PHASES OF THE PROCEEDINGS.
V. WHETHER EVANS'S CONVICTION AND SENTENCE MUST BE
REVERSED BECAUSE OF THE PROSECUTOR'S MISCONDUCT IN MAKING
CONSTITUTIONALLY IMPROPER AND PREJUDICIALLY INFLAMMATORY
VI. WHETHER THE TRIAL COURT DEPRIVED EVANS OF HIS
CONSTITUTIONAL RIGHTS AT THE CULPABILITY PHASE OF THE TRIAL
BY REFUSING HIS REQUESTED MANSLAUGHTER INSTRUCTIONS AND
GRANTING THE STATE'S REQUESTED INSTRUCTIONS ON "ONE
CONTINUOUS TRANSACTION" AND VOLUNTARY INTOXICATION.
VII. WHETHER THE TRIAL COURT'S ERRONEOUS SENTENCING PHASE
INSTRUCTIONS REQUIRE VACATION OF THE DEATH SENTENCE AND
REMAND FOR A NEW SENTENCING HEARING.
VIII. WHETHER THE DEATH SENTENCE WAS IMPOSED IN VIOLATION OF
THE UNITED STATES CONSTITUTION.
IX. WHETHER THE DEATH SENTENCE IN THIS MATTER IS
CONSTITUTIONALLY A ND ST ATU T ORILY DISPROPORTIONATE.
X. WHETHER THE CUMULATIVE EFFECT OF THE ERRORS IN THE TRIAL
COURT MANDATES REVERSAL OF THE VERDICT OF GUILT AND/OR THE
SENTENCE OF DEATH ENTERED PURSUANT TO IT.
We apply heightened scrutiny to an appeal from a sentence of
death. Corrothers v. State, 148 So.3d 278,
293 (Miss. 2014). "This higher level of scrutiny
requires that all doubts be resolved in favor of the accused
because 'what may be harmless error in a case with less
at stake becomes reversible error when the penalty is
death.'" Bennett v. State, 933 So.2d 930,
939 (Miss. 2006) (quoting Balfour v. State, 598
So.2d 731, 739 (Miss. 1992)).
WHETHER, HAVING EXPRESSLY ORDERED EVANS EVALUATED FOR
COMPETENCY, THE TRIAL COURT REVERSIBLY ERRED BY FAILING TO
HEAR AND ADJUDICATE THE QUESTION OF EVANS'S COMPETENCY.
Evans was indicted for capital murder on January 18, 2011. On
March 23, 2011, Evans, through appointed counsel, moved for a
psychiatric or psychological evaluation to determine (1)
whether he knew right from wrong at the time of the crime,
(2) his competence to stand trial, and (3) any mitigating
circumstances. On May 18, 2011, Evans filed an amended motion
for a mental evaluation, requesting that the trial court
obtain the services of Dr. Beverly Smallwood to perform the
evaluation. On May 26, 2011, the trial court entered an order
for Dr. Smallwood to perform the evaluation, finding that
"the Defendant allegedly has a history of mental health
treatment." The order directed Dr. Smallwood to evaluate
Evans (1) to determine whether he knew right from wrong at
the time of the alleged crime, (2) to determine whether he
was competent to assist counsel in his defense, and (3) to
prepare a mitigation study, if applicable.
At a hearing on October 24, 2011, defense counsel informed
the trial court that Dr. Smallwood felt she could not perform
the ordered evaluation and that Dr. Smallwood had recommended
that Evans undergo a thorough evaluation at the Mississippi
State Hospital at Whitfield. The trial court granted
Evans's request that the evaluation be conducted at
Whitfield. On December 9, 2011, the trial court entered an
order noting that both parties agreed that Evans should
receive a psychiatric evaluation at the Mississippi State
Hospital (1) to determine competency, (2) to determine
whether he knew right from wrong at the time of the crime,
and (3) to assess whether he was intellectually disabled.
Delays attended the completion of Evans's evaluation, and
the trial court continuously checked on the status of the
mental evaluation at several hearings. On November 28, 2012,
the trial court entered an amended order for a mental
evaluation, ordering that Evans's evaluation take place
at the Mississippi State Hospital "at the earliest
possible date, " "pursuant to Rule 9.06 of the
Mississippi Uniform Rules of Circuit Court Practice" to
determine, inter alia, "whether or not he has
sufficient present ability to consult with his attorneys with
a reasonable degree of rational understanding in preparation
of his defense, and has a rational as well as factual
understanding of the nature and object of the legal
proceedings against him . . . ." On January 18, 2013,
Dr. Storer at the Mississippi State Hospital notified the
trial court by letter that the evaluation had been completed
and that a summary report had been provided to Evans's
Following this notification, the trial court conducted a
hearing on February 26, 2013. At that hearing, the trial
judge again inquired about the results of the evaluation.
Defense counsel responded:
Judge, Mr. Evans was seen at Whitfield, completed all of his
evaluations and we have received the full report, the defense
has received the full report and we are ready to move forward
and we have come to an agreement on the trial date as well as
on the nonevidentiary motion settings, the evidentiary motion
setting and the omnibus hearing setting.
. . .
THE COURT: Mr. Thriffiley, I know the primary reason for the
evaluation had to do with some mitigation but also I presume
since you're ready to move forward that it found Mr.
Evans was competent both to assist his counsel as well as to
proceed to trial.
[Defense Counsel]: Yes, Your Honor.
THE COURT: All right.
that exchange, the trial court proceeded to other pretrial
Once again, on August 8, 2013, Evans's competency to
stand trial was revisited in open court at an omnibus
THE COURT: Defense, any claim of incompetency for the
defendant to stand trial?
Mr. Whittman: No, your honor.
case proceeded to trial. Dr. Storer's report was not made
a part of the record.
In addition to the presumption of innocence, another
presumption accompanies criminal defendants-the presumption
of competency. See Silvia v. State, 175 So.3d 533,
540 (Miss. Ct. App. 2015) (citing Billiot v. State,
454 So.2d 445, 463 (Miss. 1984)) ("A criminal defendant
is presumed competent."). The burden of proof rests on
the defendant to prove that he is mentally incompetent to
stand trial. Richardson v. State, 767 So.2d 195, 203
This Court has safeguarded the right not to be tried while
incompetent by adopting Uniform Rule of Circuit and County
Court Practice 9.06:
If before or during trial the court, of its own motion or
upon motion of an attorney, has reasonable ground to believe
that the defendant is incompetent to stand trial, the court
shall order the defendant to submit to a mental examination
by some competent psychiatrist selected by the court in
accordance with § 99-13-11 of the Mississippi Code
Annotated of 1972.
After the examination the court shall conduct a hearing to
determine if the defendant is competent to stand trial. After
hearing all the evidence, the court shall weigh the evidence
and make a determination of whether the defendant is
competent to stand trial. If the court finds that the
defendant is competent to stand trial, then the court shall
make the finding a matter of record and the case will then
proceed to trial. If the court finds that the defendant is
incompetent to stand trial, then the court shall commit the
defendant to the Mississippi State Hospital or other
appropriate mental health facility.
URCCC 9.06. "[O]nce a mental evaluation is ordered, a
competency hearing is mandatory." Hollie, 174
So.3d at 830. See also Beasley v. State, 136 So.3d
393, 398 (Miss. 2014) (affirming because an adequate
competency hearing was held after the mental evaluation).
Based on Evans's motion and amended motion,
well as the trial court's order, there was never a
finding by the trial court that a "reasonable ground to
believe the defendant is incompetent" existed. Of
course, it is the trial court's responsibility to
determine competency during an open-court hearing. When
competency is placed at issue, the court should weigh all the
evidence and determine whether the defendant is competent to
Evans argues that his conviction must be reversed, not due to
incompetency, but because the trial court failed to hold a
separate hearing adjudicating his competency. The State
counters that "[d]efense counsel admitted Evans was
competent, based on the results of the mental evaluation,
which obviated the need for a more protracted or extensive
hearing." And "unlike Hollie, a hearing
was held where the court acknowledged and defense counsel
admitted Evans was competent to stand trial."
As the State argues, the learned trial judge addressed
Evans's competency at multiple hearings. During the
February 26 and August 8, 2013, proceedings, defense counsel
informed the trial court that the examining doctors had found
Evans competent and offered no evidence to dispute their
findings. In other words, Evans never offered evidence to
rebut the presumption of competency. Accordingly, having no
evidence presented to the contrary, the trial court deemed
Evans competent, and the case proceeded to trial.
Not only did the trial court have a statement by an officer
of the court that the report found Evans competent, the trial
judge was accorded numerous opportunities to observe Evans in
pretrial hearings-no less than thirteen times-at many of which
Evans himself addressed the court, assisting his counsel.
Evans further affirmed that he understood the procedural
aspects of securing a mitigation expert and a mental
evaluation. He specifically stated that he understood that
seeking a mental evaluation may take time, which would delay
his trial. He affirmed consultations with his attorneys and
declared that was the course he wanted to pursue. When
Evans's evaluation was delayed, the court repeatedly
inquired as to its status, if he understood the status, and
if he still wished to pursue the evaluation. Each time, he
responded, "Yes, ma'am." At one of the multiple
hearings, Evans described in detail the medical care he had
been receiving at the jail. He described his medical history.
He complained that he was not receiving proper medical care
partly because, during the pendency of his incarceration, he
had sued the medical director and claimed the doctor was now
denying him treatment as retribution. When discussing the
delay in his evaluation, Evans offered that he hoped to
acquire funds through the lawsuit to enable him to hire a
private psychologist or psychiatrist. When the attorneys
could not immediately recall why Dr. Smallwood was
unavailable, Evans raised his hand, was recognized by the
court, and stated,
When we did this hearing last year, October 24th, Dr.
Smallwood had contacted [defense counsel] and said that she
couldn't conduct an extensive amount of evaluation that
needed to be done. . . . She said she wasn't able to
conduct th[at] testing[;] that's why she wouldn't be
able to fulfill the obligations.
later hearing, Evans informed the court that he had been seen
by a medical doctor at the jail but that his needs were not
being met. He alleged that the medical director had
interrupted his preliminary mental evaluation. He further
informed the court that his medications kept changing without
Following defense counsel's statement during the February
26 hearing that the report found Evans competent, the trial
judge noted, "[A]s I've explained on this record
before[, ] this [c]ourt's concern with regard to the
medical had to do with Mr. Evans being able to be evaluated,
to be sufficiently competent and physically and mentally able
to participate in his own defense with his attorneys."
At that same hearing, Evans stated that he had been attacked
at the jail by fellow inmates. He described both the details
of the incident and the administrative procedures that
followed. He then described going to Whitfield and meeting
with Doctors Storer and McMichael. Evans was in possession of
their report from that day and read portions of the report to
the judge. At yet another pretrial hearing, the court
reiterated, "Now Mr. Evans has to be physically and
mentally healthy enough to go to trial. He has to be
physically and mentally healthy enough to assist his
attorneys. That's the only way we're going to get
this trial done or a plea if you guys work out a plea."
Evans consented to the court ordering Whitfield to forward
his evaluation to Dr. Zimmerman, who would be one of
Evans's mitigation experts. Finally, at the omnibus
hearing, the court asked again of defense counsel if there
were any claims of incompetence to stand trial or if any
defense of insanity would be pursued. Counsel responded,
"No, Your Honor." Trial began eleven days later.
The trial court considered defense counsel's unrefuted
statements-made not once, but twice-as an officer of the
court that the ordered evaluation resulted in a finding that
Evans was competent to stand trial. The court also had the
benefit of its own observations of Evans during multiple
hearings. The failure to enter the evaluation into the record
does not render the trial judge's determination of
competency erroneous. Evans presented no evidence to rebut
the presumption of competency. On one side of the scales of
justice lay the presumption of competency, statements by an
officer of the court that Evans was competent, and the trial
judge's numerous observations. The other side lay empty.
Therefore, no issue of Evans's competency remained. On at
least two occasions in the record, the trial court related
that it would not proceed to trial unless Evans was competent
to stand trial. The fact that the court proceeded to trial is
record evidence that the court deemed Evans competent.
The State also argues that this Court should affirm because
the purposes of Rule 9.06 were satisfied under the
circumstances regarding the specific facts of this case.
Hollie recognized that, on one occasion, this Court
held that the failure to hold a competency hearing after a
mental evaluation was ordered was not reversible error
because "the purposes of Rule 9.06 ha[d] been satisfied
under the circumstances." Hollie, 174 So.3d at
830 (citing Hearn v. State, 3 So.3d 722, 730 (Miss.
2008)). In Hearn, although a mental evaluation had
been ordered, no competency hearing occurred. Id.
This Court found that:
the trial court failed to comply in the strictest technical
sense with Rule 9.06 which mandates that a competency hearing
be conducted following a court-ordered mental examination.
Miss. Unif. Circ. & Cty. R. 9.06 ("After the
examination the court shall conduct a hearing . . .
.") (emphasis added). However, Dr. Montgomery testified
at trial as to Hearn's competency and was subjected to
cross-examination. Because Hearn was afforded the opportunity
to present competing evidence, the purposes of Rule 9.06 were
Assuming, arguendo, that what transpired before the
trial court did not result in the formal words, "I
adjudicate the defendant competent, " in the competency
hearing held, the purposes of Rule 9.06 were satisfied. In
addition to the defense attorney relating to the court that
the examination revealed that Evans was competent, no
evidence of incompetence was presented-combined with the
trial court's multiple opportunities to observe and
interact with Evans during the litany of pretrial hearings
Further confirming that the purposes of Rule 9.06 were
satisfied, Dr. Storer, who performed Evans's mental and
competency evaluation pretrial, testified during the
sentencing phase of Evans's trial. During the competence
assessment, Storer asked Evans to explain how a jury would
reach a decision in the guilt phase of the trial. After some
clarification by Dr. Storer, Evans responded, "Look at
all the evidence, forensic evidence, police reports, listen
to the presentation of both sides, defense and the [d]istrict
[a]ttorney." When asked if Evans understood Dr.
Storer's purpose, he knew Storer was to give him a
psychological examination to "[s]ee if [Storer could] be
of assistance in [Evans's] case, insane or not insane at
the time" and address "mitigating factors." In
Storer's testimony, he explained,
Finally[, ] we used a-because competence was one of the
things that we were asked to evaluate, . . . it's
typically known that if somebody is going to be ruled
incompetent it's due to a mental disease or mental
defect. So I administered what's called personality
assessment inventory to assess whether or not there was any
serious mental illness going on. . . . Mr. Evans did fine on
all of those scales. He appeared to be answering items
honestly so the results appeared to be valid.
As part of our desire to ascertain truth and a fair
application of our laws, we focus on constitutional rights,
statutory rights, and rules of procedure-the first two being
substantive in nature. We find no evidence that Evans's
substantive right not to be convicted while incompetent was
violated. To be clear, the better practice is for our trial
judges definitively to adjudicate competency on the record.
However, the record in this case reveals that the trial court
was assiduously vigilant to ensure Evans's competence to
stand trial was protected. The purposes of Rule 9.06 were
satisfied. We discern no error by the trial judge.
WHETHER THE JURY SELECTION PROCESS WAS CONSTITUTIONALLY
INFIRM AND REQUIRES REVERSAL OF EVANS'S CONVICTION AND
SENTENCE OF DEATH.
Whether the trial court improperly and prejudicially
limited defense voir dire.
"[C]ounsel must have latitude in searching the minds and
consciences of jurors in order to be able to exercise their
peremptory challenges intelligently." Odom v.
State, 355 So.2d 1381, 1383 (Miss. 1978); see
also Miss. Code Ann. § 13-5-69 (Rev. 2012)
("the parties or their attorneys in all jury trials
shall have the right to question jurors who are being
impaneled with reference to challenges for cause, and for
It is therefore perfectly proper for counsel to ask further
questions beyond the court's inquiries reasonably
necessary to assure himself and the court that the jurors
selected will give his client the benefit of every right to
which he is entitled under the law, as well as to reveal or
signify particular antipathies that could prejudice his
client before any proposed juror.
Harris v. State, 532 So.2d 602, 607 (Miss. 1988).
Evans argues that the trial court erred by sustaining the
State's objection to a question by defense counsel during
voir dire concerning the jurors' willingness to use
alcohol abuse as mitigation. Defense counsel asked if any
venire members had "prior contact" with alcohol
abuse themselves or with family members. Twenty-four venire
persons raised their hands. Counsel asked if alcohol were
involved in the case if any juror's ability to serve
would be affected; all said "no." Then, the
[Defense counsel]: Would anyone have a problem considering
that as a mitigating circumstance before rendering either a
death sentence or life without possibility of parole? In
other words, can everyone use or consider an alcohol problem
as a mitigating circumstance?
[the State]: Objection, Your Honor, asking for a commitment.
THE COURT: Sustained.
[Defense counsel]: Let me rephrase that then. If you can
raise your hand if anyone could not use that as a mitigating
[the State]: Same objection, Your Honor.
THE COURT: Sustained.
JURORS: I don't understand that.
THE COURT: The objection was sustained. He will rephrase it.
counsel then inquired, without objection, "Does anyone
think that mitigating evidence should not be used to consider
the sentence?" Counsel noted that none responded.
Evans argues that the trial court improperly limited defense
voir dire by sustaining the State's objection to
the questions asking if the jurors could or could not
use an alcohol problem as a mitigating factor.
The State argues that the trial court properly sustained the
objection because Evans's question sought to secure a
pledge that, if alcohol abuse were present, the jury would
use alcohol abuse as mitigation. The State argues that the
question violated the rule that the parties may not extract
pledges or promises from potential jurors. Harris v.
State, 532 So.2d 602, 605-07 (Miss. 1988). When
presented with mitigating evidence, it is exclusively the
province of the jury to accept or reject that evidence. Under
Uniform Rule of Circuit and County Court Practice 3.05, an
attorney may not ask "hypothetical questions requiring
any juror to pledge a particular verdict." URCCC 3.05.
[T]his Court has repeatedly admonished and condemned attempts
in voir dire questioning to exact a promise or
commitment from jurors on how they will decide a particular
case. Indeed, in Stringer, supra, we
reversed because of an accumulation of several errors,
including the error of permitting the prosecution over
objection to ask questions seeking a commitment from the
jurors. Questions such as these are never necessary to
accomplish the basic purpose of securing fair and impartial
Harris, 532 So.2d at 607 (citations omitted). The
trial judge has considerable discretion in determining the
propriety of a voir dire question. Harris,
532 So.2d at 607.
Evans argues that defense counsel's question did not
attempt to secure a pledge or promise from the potential
jurors that they would find an alcohol problem mitigating.
Counsel's first question,  standing alone, was likely
permissible. However, counsel failed to give the jury the
opportunity to respond before rephrasing his question. The
trial court sustained the State's objection to
Evans's second question that asked the venire members if
they could "use or consider an alcohol problem
as a mitigating circumstance." (Emphasis added.) It is
the conflation of "use" and "consider"
that was impermissible. Asking the jurors to "use"
sought a pledge from the venire that they would use an
alcohol problem as mitigating. When Evans rephrased the
question, he asked the venire members if they could not
use an alcohol problem as mitigating. Thus, Evans was
inquiring whether any member of the venire, if the evidence
demonstrated an alcohol problem, would not use such evidence
as mitigating. Evans then asked, without objection,
"Does anyone think that mitigating evidence should not
be used to consider the sentence?" Notably, this
question, like the first, used the word "consider"
rather than "use."
This Court has ruled that any inquiry into the attitudes of
the venire as to the defendant's alcohol abuse is
hypothetical. In Holland v. State, 705 So.2d 307,
338 (Miss. 1997), Holland asked the jurors "if there was
alcohol possibly consumed or alcohol involved in this case
would you rule that out as a mitigating factor prior to
passing on the life without parole or a death penalty?"
The trial court sustained an objection to the question as
hypothetical. Id. This Court affirmed. Id.
Like Evans, Holland relied on Morgan v. Illinois,
504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), which
held that the Constitution requires that defense counsel be
allowed to inquire whether potential jurors will be able to
consider mitigation evidence at all, or whether they
automatically will impose the death penalty. This Court found
that Holland's question fell outside the parameters of
Morgan and was an impermissible hypothetical
question. Evans cites a more recent United States Supreme
Court opinion recognizing that "our cases ha[ve] firmly
established that sentencing juries must be able to give
meaningful consideration and effect to all mitigating
evidence that might provide a basis for refusing to impose
the death penalty on a particular individual . . . ."
Abdul-Kabir v. Quarterman, 550 U.S. 233, 246, 127
S.Ct. 1654, 1664, 167 L.Ed.2d 585 (2007). But
Abdul-Kabir arose in the context of jury
instructions, not voir dire, and it does not alter
the law relied upon in Holland. Id. at
237-38. In Holland, this Court held that a question
about whether potential jurors are able to rule out alcohol
abuse as mitigating is properly denied. Holland, 705
So.2d at 339. The venire cannot be asked whether it will
accept or reject the evidence before it is presented to it.
In light of Holland's clear holding condemning
an almost identical question, we find that this issue is
Whether reversal is required because a peremptorily
struck juror was seated on the jury.
The record reflects that Evans exercised peremptory strike
D-3 on "Number 17, Ms. Kergosien." Evans then
accepted "number 19, Ms. Cuevas." The transcript
reveals that "the following jurors were selected and
placed into the box . . . 4. Rosalie Kergosien." That
portion of the transcript does not reflect Ms. Cuevas among
the seated jurors. Defense counsel did not object to the jury
as seated. Evans now argues that the trial court
seated Kergosien, a struck juror, instead of Cuevas,
violating his right to a fundamentally fair trial and
necessitating automatic reversal. He cites Hardison v.
State, 94 So.3d 1092, 1101-02 (Miss. 2012), which held
that the erroneous denial of a peremptory challenge cannot be
harmless error when the objectionable juror is seated on the
panel that convicts the defendant.
The State replies that the transcript disputes Evans's
contention that a struck juror, Kergosien, actually was
seated. After the guilt-phase verdict, the trial court polled
THE COURT: . . . Is this your verdict, Ms. Ladner?
Ms. Ladner: Yes.
THE COURT: Mr. Ladner?
Mr. Ladner: Yes.
THE COURT: Ms. Cuevas?
Ms. Cuevas: Yes.
THE COURT: Ms. Newman? Ms. Newman: Yes.
THE COURT: Ms. Sellier?
Ms. Sellier: Yes.
THE COURT: Ms. Dao?
Ms. Dao: Yes.
THE COURT: Mr. Holliman?
Mr. Holliman: Yes.
THE COURT: Mr. Larsen?
Mr. Larsen: Yes.
THE COURT: Ms. Ladner?
Ms. Ladner: Yes.
THE COURT: Ms. Martin?
Ms. Martin: Yes.
THE COURT: Mr. Sosville?
Mr. Sosville: Yes.
THE COURT: Mr. Breland?
Mr. Breland: Yes, ma'am.
transcript of the polling of the jury does not reflect that
Kergosien served on the jury that returned the verdict. It
reveals that the trial court polled Ms. Cuevas, juror 19, and
Ms. Cuevas responded affirmatively to the court's
question. Unless we assume the court erred when it addressed
the juror, and further assume the juror erred by not
recognizing the court's error and responding to a
question addressed to someone else, we cannot accept
Evans's argument. Such assumptions cannot be entertained
to find error. We find that Evans has failed to demonstrate
on appeal that Kergosien mistakenly served on the jury,
resulting in a miscarriage of justice.
Whether jurors' untimely responses to voir dire
questions resulted in an unfairly selected
Evans concedes that he failed to preserve this issue for
appellate review and requests that this Court review it for
Evans's first argument concerns prospective juror St.
Amant. This venire member was involved in several
interactions with the trial court during jury selection. He
stated that he could not be fair, he said that he would have
a problem with sequestration; he requested an antacid; he
asked for a drink of water; and he indicated that the death
penalty is not given enough. When the jury returned from its
lunch break, a venire member reported that St. Amant had
spoken with defense counsel during the lunch break, although
defense counsel had told him more than once that they could
not speak with him. The trial court ascertained that
"counsel as I understand it had some conversations about
the case itself." St. Amant was dismissed for cause.
Evans argues that the trial court erred by failing to inquire
of the venire whether St. Amant had had any improper
communication with other venire members. Evans points out
that the record shows that, after the lunch break, St. Amant
had contact with at least one other venire person from whom
he acquired antacid medication. Evans cites Puckett v.
State, 737 So.2d 322 (Miss. 1999). In Puckett,
it was discovered during trial that a prospective juror had
discussed the case with other venire persons during a break,
including expressing opinions about delays in the case and
about the death penalty. Id. at 331. The trial judge
extensively inquired into the prospective juror's contact
with other venire members and excused the errant prospective
juror and another venire member who was found to have heard
that person's comments about the case. Id. This
Court held that, due to the trial court's measures, no
mistrial was required. Id. at 332. Unlike in
Puckett, there was no indication that St. Amant had
discussed the case with other venire persons. The venire
person who reported St. Amant's communication with
defense counsel did not indicate that St. Amant had made any
improper comments to any other persons. It is entirely
speculative whether St. Amant made any improper comments to
the venire. We can discern no plain error.
Next, Evans complains that the trial court should have
questioned individually four venire persons who simply walked
out during the proceedings. When these wanderers returned,
the trial court strongly admonished them, stating:
Folks, when y'all get up and just walk out it's
downright rude because everybody has to sit and wait on you.
If you need a break you need to ask for it and we can all
take a break at the same time, but I have never in my life
seen people behave like this and it had better not happen
again. That was four of you that just got up and walked out
one at a time and everybody else, the other 92 people had to
sit here and wait on you. If you need a break or you have an
emergency at least have the courtesy to your fellow jurors to
raise your hand and ask for us to take a break. Anybody
unclear on that?
Evans argues that the trial court should have paused the
proceedings and questioned each wanderer individually, we
find that, because the record discloses no impropriety by any
of those persons other than leaving the courtroom without
permission, the record does not reveal plain error.
Next, Evans contends that several selected jurors failed to
respond to relevant questions during voir dire,
thwarting his ability to intelligently exercise peremptory
challenges. "The failure of a juror to respond to a
relevant, direct, and unambiguous question leaves the
examining attorney uninformed and unable to ask any follow-up
questions to elicit the necessary facts to intelligently
reach a decision to exercise a peremptory challenge or to
challenge a juror for cause." Odom v. State,
355 So.2d 1381, 1383 (Miss. 1978). In Odom, a
prospective juror did not respond to a voir dire
question about whether he had any close relatives in law
enforcement, despite the fact that his brother was one of the
officers who investigated the crime with which the defendant
had been charged. Id. at 1382. This Court devised
the following procedure:
where, as here, a prospective juror in a criminal case fails
to respond to a relevant, direct, and unambiguous question
presented by defense counsel on voir dire, although
having knowledge of the information sought to be elicited,
the trial court should, upon motion for a new trial,
determine whether the question propounded to the juror was
(1) relevant to the voir dire examination; (2)
whether it was unambiguous; and (3) whether the juror had
substantial knowledge of the information sought to be
elicited. If the trial court's determination of these
inquiries is in the affirmative, the court should then
determine if prejudice to the defendant in selecting the jury
reasonably could be inferred from the juror's failure to
respond. If prejudice reasonably could be inferred, then a
new trial should be ordered. It is, of course, a judicial
question as to whether a jury is fair and impartial and the
court's judgment will not be disturbed unless it appears
clearly that it is wrong.
Id. at 1383. The Court found that Odom was entitled
to a new trial due to the strong inference of prejudice.
Evans argues that Juror Larsen failed to respond to
questioning about whether he knew any of the witnesses in the
case. After the victim's son, John Compton, and another
witness testified, Larsen asked to approach the bench and
informed the trial court that he thought Compton might be his
son's boss, although he was unsure. Larsen said that he
did not respond at voir dire because he knew his
son's boss only by sight, not by name. Larsen informed
the trial court that this did not affect him one way or
another and did not change his ability to be fair to both
sides. Neither side objected to Larsen remaining on the jury.
Next, Evans contends that juror Emily Ladner failed to
respond to questioning about whether any prospective jurors
had any obligations that would interfere with sequestration.
After jury selection, Emily Ladner, in tears, approached the
bench and explained that she had just learned her husband had
to go out of town for work and she would have no one to care
for her child. After discussion with the parties, the trial
court allowed her to call her husband to tell him not to
leave town. When she returned, the trial court questioned her
and ascertained that she had texted him and instructed him to
reschedule his trip. The trial court assured her the child
would not be left alone and instructed her to inform the
court at once if the husband was unable to delay his trip.
Evidently, the child-care problem was worked out, and defense
counsel did not object to Emily Ladner's participation on
Evans also complains that two jurors, Tanya Ladner and Dennis
Sosville, raised questions after selection that related to
matters on which they had failed to respond during voir dire.
Tanya Ladner expressed her desire to attend her child's
birthday party on the Friday of the week of trial, and
Sosville said he had a commitment on Saturday and wanted to
know if the trial would be over by then. Defense counsel
asked if, on Friday, the trial court could arrange for Tanya
Ladner to call her eight-year-old son to wish him a happy
birthday. The trial court agreed. Defense counsel did not
object to these jurors' service.
We find that none of these circumstances rises to the level
of reversible error under the plain-error doctrine. Although
Larsen said that he believed he knew the State's witness,
John Compton, nothing shows that Larsen failed to respond
truthfully during voir dire. He simply did not know
Compton's name, and thus did not discover that he might
be acquainted with him until he testified. Most vitally,
unlike in Odom, Larsen had no familial relationship
with Compton. He simply thought he might be his son's
boss, and he said it would not affect his ability to be
impartial. In Magee v. State, 124 So.3d 64, 68
(Miss. 2013), this Court held that the fact a juror was the
arresting deputy's fourth cousin was too distant a
kinship for the juror to have been expected to respond to
questions about family in law enforcement. We find no plain
And nothing in the record shows that Emily Ladner failed to
respond truthfully to questions. Nothing shows she knew at
the time the venire was questioned about child-care
responsibilities that her husband would not be home. Instead,
the record indicates that she learned after her selection
that her husband had been called away on business. Therefore,
no violation of Odom occurred, and we find no plain
As for Tanya Ladner and Dennis Sosville, Evans argues that,
although "these two jurors' post-selection issues
might not warrant reversal, they are corroborative of the
larger problems with the jury following instructions."
No inference of prejudice can be drawn from the participation
of these jurors in Evans's trial. We therefore find no
ISSUES WITH THE JURY, EXACERBATED BY ITS APPARENT INABILITY
TO FOLLOW JUDICIAL INSTRUCTIONS, ALSO INFECTED THE TRIAL
ITSELF WITH REVERSIBLE ERROR.
Whether the seating of an alternate juror in the
sentencing phase violated Mississippi's capital
Evans next claims that his state and federal rights to a fair
trial by a qualified jury and the state constitutional and
statutory guarantees of jury sentencing in death-penalty
cases was violated by the departure of Tanya Ladner and the
seating of alternate juror Larry Lind. After guilt-phase
deliberations, but prior to the sentencing phase, juror Tanya
Ladner was excused upon learning that her son had suffered an
injury requiring emergency surgery. The trial court replaced
Tanya Ladner with alternate juror Lind. Lind had been
sequestered with the jury and sat with the jurors throughout
the trial. He had heard all of the evidence, but as an
alternate, he had not participated in guilt-phase
deliberations. As Ladner's replacement, he joined and
participated in the sentencing-phase deliberations.
Evans argues that Lind's seating as an alternate violated
Mississippi's statutory capital sentencing scheme, which
(1) Upon conviction or adjudication of guilt of a defendant
of capital murder or other capital offense, the court shall
conduct a separate sentencing proceeding to determine whether
the defendant should be sentenced to death, life imprisonment
without eligibility for parole, or life imprisonment. The
proceeding shall be conducted by the trial judge before the
trial jury as soon as practicable. If, through impossibility
or inability, the trial jury is unable to reconvene for a
hearing on the issue of penalty, having determined the guilt
of the accused, the trial judge may summon a jury to
determine the issue of the imposition of the penalty.
Code Ann. § 99-19-101 (Rev. 2015). Evans argues that,
under this statute, if the guilt-phase jury is unable to
reconvene, the trial judge must summon a sentencing-phase
jury, and that the statute should not be read to permit the
seating of an alternate juror at the sentencing phase,
despite Lind's participation as an alternate to the trial
Another statute applicable to capital and noncapital cases
provides that "[a]lternate jurors in the order in which
they are called shall replace jurors who, prior to the time
the jury retires to consider its verdict, become unable or
disqualified to perform their duties . . . . An alternate
juror who does not replace a regular juror shall be
discharged at the time the jury retires to consider its
verdict." Miss. Code Ann. § 13-5-67 (Rev. 2012).
Substitution of an alternate juror is proper if done before
the jury retires for deliberations. Folk v. State,
576 So.2d 1243, 1251 (Miss. 1991). A substitution of an
alternate juror during jury deliberations is improper.
Id. at 1252; Balfour v. State, 598 So.2d
731, 753 (Miss. 1992). And the trial court's decision to
dismiss a juror for good cause and substitute an alternate is
reviewed for abuse of discretion. Shaw v. State, 540
So.2d 26, 28 (Miss. 1989). The defendant must show actual
prejudice from the exclusion and substitution. Id.
Considering the fact that Section 13-5-67 allows the
substitution of alternate jurors in capital cases, the trial
court's substitution of Lind at the sentencing phase did
not violate Section 99-19-101. Rather than discharging the
alternate jurors after the guilt phase ended, the trial court
permitted them to remain through the sentencing phase in case
substitution was necessary. As an alternate juror, Lind did
not participate in deliberations with the twelve-member
panel, which undoubtedly would have been improper. See
Luster v. State, 515 So.2d 1177, 1180 (Miss. 1987).
However, when the trial court dismissed Tanya Ladner, the
trial court substituted Lind for the sentencing-phase jury
trial and deliberations, leaving the jury composed of twelve
jurors who had heard all of the evidence presented. A purpose
of selecting alternate jurors is so they are available to
"fill the gap created by some contingency."
Walls v. State, 371 So.2d 411, 413 (Miss. 1979). We
discern no error.
Whether the trial court erred by denying Evans's
motion for a mistrial due to jury communications
Evans argues that the trial court erred by denying his motion
for a mistrial based on an inference that the jurors, during
guilt-phase deliberations, had not followed the jury
instructions prior to reaching a verdict. After the jury had
retired to deliberate guilt, the trial court entered the
For the record, and the attorneys are already aware of this
as is the defendant, the jury first advised verbally that
they had a question. They were told to write down the
question. And then they advised, a different juror that there
was a hung jury and then a third juror came out and actually
handed the question to the bailiff. The attorneys were
allowed read the question and then to retire to determine how
they wanted to handle this and for the defense to be able to
speak with Mr. Evans. The question will be marked as part of
this record. It says some jurors believe one or more jurors
are in violation of the judge's instructions. What
recourse do we have? While the attorneys are able to
determine how they wanted to proceed and how they wanted to
handle this matter, and basically asked if the attorneys
agreed to make a record on this, there was a knock at the
door and the bailiffs were advise[d] that there was, in fact,
a verdict in this matter. So apparently whatever the question
was, whatever the problem was, the jurors have resolved
amongst themselves without the necessity of the parties and
the Court inquiring further of them.
At that point, Evans moved for a mistrial on the ground that
the note made it clear that some of the jurors were not
following the court's instructions. The trial court
opined that the note could be read in a number of ways, and
could indicate noncompliance with the instructions of law, or
a dispute about interpreting the instructions of law or a
violation of some other instruction. Because the jury had
reached a verdict, the trial court decided to deny the
mistrial, receive the verdict, and to then ask the jury
foreman if they were able to
follow the other instructions with regard to not doing any
research, et cetera. Some question of that type because that
would be the only issue in my mind that would perhaps be
cause for a mistrial. In other words if they are simply
disagreeing over the instructions of law that's entirely
within the province of the jury.
discussion, the defense agreed with that plan.
When the jury returned to the courtroom with the verdict, the
trial court ascertained that Mr. Breland had been selected as
the foreperson and that the jury had reached a unanimous
THE COURT: Sir, if you will hand [the verdict] to the bailiff
for me. Mr. Breland, I have one other question for you while
you are up, sir. In light of the question, the written
question that was sent out by the jury, my only inquiry of
you is this. Was the concern of some of the jurors that
someone had not followed the instructions that you guys have
been given each evening and during the lunch breaks?
MR. BRELAND: No, ma'am.
THE COURT: So this dispute had to do with simply your
discussions of law and the evidence?
MR. BRELAND: Yes, ma'am.
THE COURT: All right, sir. Thank you. You can have a seat.
Evans argues that, because Mr. Breland responded that the
jurors had not disobeyed the court's evening and
lunch-break instructions on things like avoiding media
coverage and not discussing the case amongst themselves, the
jury's written question must have concerned jurors having
violated the court's instructions of law. This Court
presumes that jurors have followed the instructions of the
court, because to presume otherwise would render the judicial
system inoperable. Johnson v. State, 475 So.2d 1136,
1142 (Miss. 1985). As the State argues, the jury's note
does not require the conclusion that the jury violated the
instructions of law. Rather, as the trial court recognized
and Mr. Breland confirmed, the note could have expressed a
disagreement among the jurors concerning their discussions of
the law or facts. Regardless, the jury resolved whatever
issue it had without court intervention and unanimously
agreed on a verdict. This issue is without merit.
Whether the trial court erred by allowing the jury to
reform the sentencing-phase verdict.
Evans argues that reversible error occurred when the trial
court instructed the jury to reform the verdict after it
returned a facially invalid sentencing-phase verdict. At the
conclusion of the sentencing phase, the trial court gave the
jury an omnibus instruction telling them exactly what they
needed to find in order to impose a sentence. The instruction
set forth a specific form of the verdict. When the jury
reached a verdict, the trial court reviewed the verdict and
discovered that it was not in the proper form. The verdict
sentenced Evans to death, but it stated only the aggravating
circumstances. The trial court asked the jury to return to
the jury room, review the instructions on the form of the
verdict, and provide the court with the form chosen. The
trial court stated "[e]ither all of number one, all of
number two or all of number three. It has to be exactly like
on the instruction." The jury then conformed its verdict
in the proper form and returned that verdict to the court.
A statute and precedent clearly establish that the trial
court properly instructed the jury to reform its verdict.
"If the verdict is informal or defective the court may
direct it to be reformed at the bar." Miss. Code Ann.
§ 99-19-11 (Rev. 2015). In Dickerson v State,
175 So.3d 8, 28 (Miss. 2015), the jury returned a verdict
that was not in the proper form because it did not list the
aggravating factors. See Miss. Code Ann. §
99-19-103 (Rev. 2015) ("[t]he jury . . . shall designate
in writing, signed by the foreman of the jury, the statutory
aggravating circumstance or circumstances which it
unanimously found beyond a reasonable doubt. Unless at least
one (1) of the statutory aggravated circumstances enumerated
in Section 99-19-101 is so found . . . the death penalty
shall not be imposed"). This Court found that the trial
court properly had instructed the jury to reform the verdict
to comply with the jury instructions. Id. In
Dickerson, the trial court did not instruct the jury
to make any particular finding but only to correct the formal
defects in the verdict. As in Dickerson, the trial
court here properly instructed the jury to reform the verdict
to comply with the jury instructions. We find no error in
TRIAL COURT COMMITTED REVERSIBLE EVIDENTIARY ERROR AT BOTH
PHASES OF THE PROCEEDINGS.
Evans makes several arguments concerning the admissibility of
evidence during both the guilt and sentencing phases. This
Court reviews the trial court's decisions admitting or
excluding evidence for abuse of discretion. Green v.
State, 89 So.3d 543, 549 (Miss. 2012). We will not
reverse unless the ruling resulted in prejudice to the
Whether excluding evidence of the victim's
blood-alcohol content deprived Evans of his right to
present a defense.
Dr. McGarry's autopsy report showed that Holling's
blood-alcohol level was .127 at the time of her
death. During trial, the State moved to exclude
any evidence of Holling's blood-alcohol level. Evans
opposed the motion, arguing that Holling's recent alcohol
intake rebutted Joe Thomas's testimony that she did not
drink and that it was relevant to show she may have provoked
Evans to kill her. The trial court found that Thomas had not
testified that Holling did not drink, but rather that he had
never seen her drink. The trial court granted the motion
because, "at this point on this record, and again there
is no been self-defense raised [sic], there's no claim
that she was the initial aggressor, there's been no
testimony with regard to her particular behavior at this time
of the particular incident, " so the evidence was not
relevant. The trial court further found that, for the
evidence to be relevant, there would have had to have been
testimony as to how alcohol would have affected her behavior.
The trial court invited the defense to raise the issue again,
at any point, if it became relevant. However, Evans never
again raised the issue.
Evans argues that the trial court's exclusion of
Holling's blood-alcohol level was an abuse of discretion.
He argues that it was relevant to his manslaughter defense at
the culpability phase and at the mitigation phase. He now
contends that after the trial court's ruling,
when the State introduced Evans's February 18, 2010,
statement that he killed Holling after the two fought about
his taking her credit card, evidence of Holling's
blood-alcohol content became relevant. Assuming relevance for
the sake of argument only, Evans made no further attempt at
trial for the trial court to reconsider its prior ruling.
Thus, the issue is waived.
Evidence is relevant when it has any tendency to make the
existence of any fact that is of consequence more probable or
less probable. M.R.E. 401. In Mallett v. State, 606
So.2d 1092, 1095 (Miss. 1992), this Court held that evidence
of the victim's intoxication is not relevant in and of
itself. Evidence of the victim's intoxication is not
relevant absent evidence that the accused acted in
self-defense. Farmer v. State, 770 So.2d 953, 958
We find that the trial court's exclusion of the evidence
of Holling's blood-alcohol content was not an abuse of
discretion. Evans did not offer any evidence to support a
self-defense theory. When the trial court granted the
State's motion, Evans's statement was not yet in
evidence. And even if it had been in evidence, neither the
statement nor any other evidence adduced suggests that
Holling was the initial aggressor. As Evans did not raise the
issue again, even though invited to do so by the trial court,
we find no error. This issue is without merit.
Whether the trial court erred by denying Evans's
motions to suppress his statements in the absence of
a determination as to his competency.
Evans complains that the trial court's denial of his
motions to suppress was done without an adjudication of his
competency. Because Evans presented no evidence to overcome
the presumption of competency-coupled with the trial
court's observations of Evans and defense counsel's
relating to the court that Dr. Storer had found Evans
competent, which was later confirmed by Dr. Storer's
testimony-this issue is without merit.
Whether the admission of a photograph of Holling's
body where it was discovered, and testimony from the
pathologist concerning it, was irrelevant and unduly
The State sought to admit three photographs depicting
Holling's body where it was discovered in the woods to
show the location of the body and to supplement the testimony
of the investigating officers. Evans objected on the ground
that, because the killing had not taken place where the body
was discovered, the photographs lacked probative value. Evans
also complained that, because the body had sustained animal
predation after the death, the photographs would show
injuries not caused by Evans and were extremely prejudicial.
The trial court admitted only one of the photographs,
photograph S-13, finding it to be relevant to the issues. It
is hardly gruesome. The trial court excluded the other two
photographs, one because, due to its angle, it was not
particularly probative, and the other because its depiction
of postmortem animal predation was more prejudicial than
"Photographs are considered to have evidentiary value in
the following instances: (1) aid in describing the
circumstances of the killing; (2) describe the location of
the body and cause of death; (3) supplement or [clarify]
witness testimony." Dampier v. State, 973 So.2d
221, 230 (Miss. 2008) (quoting McIntosh v. State,
917 So.2d 78, 84 (Miss. 2005)). "The discretion of the
trial judge is 'almost unlimited . . . regardless of the
gruesomeness, repetitiveness, and the extenuation of
probative value.'" Dampier, 973 So.2d at
230. Nonetheless, "[m]eaningful limits must be placed on
a trial judge's discretion to admit photographs, and
those limits must be defined by weighing a photograph's
probative evidentiary value against its prejudicial potential
to arouse the passions of the jury." Bonds
v. State, 138 So.3d 914, 920 (Miss. 2014). There is
nothing in this photograph which to the naked eye would
potentially arouse the passions of the jury.
As directed in Bonds, the trial court carefully
considered the probative value versus the prejudicial effect
of each of the three photographs proffered by the State, and
after that weighing process, it excluded two of them.
Photograph S-13 was relevant to "describe the location
of the body." And, as the trial court found, photograph
S-13 was not particularly gruesome. Photograph S-13 is a
long- or medium-range distance photograph of a clothed body
lying in the brush along a highway. No animal predation is
visible to the naked eye. We find the trial court did not
abuse its discretion by finding that photograph S-13 was more
probative than prejudicial.
Whether Evans's conviction must be reversed because
the State violated the Constitution and Mississippi
Rules of Evidence by eliciting evidence of otherwise
inadmissible prior bad acts and criminal convictions from Dr.
The defense called Dr. Storer to testify in mitigation at the
sentencing phase. After establishing that Evans had a history
of using alcohol at an ...