OF JUDGMENT: 06/06/2016
COUNTY CIRCUIT COURT HON. JEFF WEILL, SR. TRIAL JUDGE
COURT ATTORNEYS: BRAD McCULLOUCH GRETA HARRIS CHRISTOPHER
ROUTH ERIC BROWN
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES MICHELE PURVIS HARRIS DAVID THOMAS (PRO
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LISA L. BLOUNT
DISTRICT ATTORNEY: ROBERT SHULER SMITH
David Thomas admitted in oral and written statements to
police that he and Jontez Garvis had attacked Fred Jackson
and stolen cash from him. After being hospitalized for
forty-one days due to the injuries inflicted by the two men,
Jackson died. Thomas was indicted for and convicted of
capital murder. The trial court sentenced Thomas to life in
prison without parole. After review, we affirm Thomas's
conviction and sentence.
AND PROCEDURAL HISTORY
On January 29, 2012, Sean Snow, a deputy sheriff, responded
to Tri-State Recycling, also known as The Can Man, located at
416 Woodrow Wilson Drive in the City of Jackson, First
Judicial District of Hinds County, Mississippi, pursuant to a
911 call. The 911 caller reported that a man was lying
unresponsive behind The Can Man. Deputy Snow found the man,
who later was identified as Fred Jackson, lying on his back.
According to Deputy Snow, Jackson's "[f]ace was kind
of bluish gray, " his face was bruised, and he had
"dried up blood on the right-hand side of his
head." Deputy Snow called American Medical Response
("AMR") and the fire department to the scene and
they transported Jackson to University of Mississippi Medical
Center ("UMMC"). Deputy Snow accompanied Jackson to
UMMC where a physician informed him that Jackson had a
Deputy Snow obtained and reviewed surveillance videotape
footage from The Can Man. He testified that, on the
surveillance videotape footage, he had observed two men
entering The Can Man, moving to the rear of the property, and
proceeding behind a parked truck. The two men "appeared
to be striking Mr. Jackson" and continued doing so
"somewhere around fourty [sic], forty-one,
Officer Felix Hodge of the Robbery Homicide Division of the
Jackson Police Department received a tip that David Thomas
was in a room at the Studio 6 Motel on Interstate-55 North.
The record is silent as to how Thomas had become a suspect.
According to Officer Hodge, the room was registered to a Tera
Johnson and when an attempt was made to contact the occupant
of the room, Thomas initially said his name was Jerrell
Davis. After Thomas was taken into custody, Officer Hodge
recited Miranda warnings and obtained Thomas's
Officer Hodge then interviewed Thomas. A video recording of
the interview was played for the jury at Thomas's trial.
Thomas said during the interview that he had gone to The Can
Man to "get a battery to get cash" in order to
finance a visit to Nightlife, a nightclub at which a rapper
by the name of Future was to perform a show. In the
jury's presence, Officer Hodge read the statement Thomas
Jontez [Garvis] came to my house that morning and got me. He
asked me was I ready to go get those batteries? He said that
he needed money for child support and pampers for his baby.
We went through the pathway in the place. We were looking
around but didn't find the batteries. I heard a noise,
like, a welding machine or a generator. I asked [Garvis] did
he hear that? And he said: No. I saw the truck. And I said:
Man, there is somebody out here. He said: So, we can get him.
We went up to the man and attacked him. I hit him once.
[Garvis] hit him two or three times. We weren't planning
on it to happen to him like that. I was scared from that
morning on. [Garvis] called somebody to come pick us up. We
went to the house. And I thought about it. We prayed that
[Jackson] would make it through, and everything would be
also indicated in his written statement and in the interview
that he and Garvis had taken $250 from Jackson and that they
had hit him with the rod with which he had been welding.
After forty-one days at UMMC, Jackson died on March 9, 2012.
On May 9, 2012, Thomas and Garvis were indicted jointly for
capital murder. The State did not seek the death penalty and
requested that the cases "be severed for purposes of
jury trial." The Circuit Court of the First Judicial
District of Hinds County granted the motion to sever
Thomas's and Garvis's jury trials.
Dr. Erin Barnhart, who in 2012 was a deputy medical examiner
with the Mississippi Medical Examiner's Office, testified
that she performed the autopsy on Jackson on March 10, 2012.
Dr. Barnhart testified that Jackson's head had suffered
multiple fractures: "fractures of the calvarium, or top
of the head; fractures at the base of the skull which is the
inner aspect of the cranial cavity; and multiple fractures of
his face." She continued: "[H]e had  partially
healed cerebral contusions or bruising of the brain" and
"a subdural hematoma[, ] which means blood within the
cranial cavity between the brain and the surface of the
skull." Dr. Barnhart testified, to a reasonable degree
of scientific certainty, that the cause of Jackson's
death was complications of blunt head trauma, and the manner
of his death was homicide.
On cross-examination, Dr. Barnhart was asked about a notation
in the autopsy report of "probable aspiration
pneumonia." According to Dr. Barnhart, aspiration
pneumonia "is generally caused when someone cannot
protect their airway, " meaning "that they have an
altered level of consciousness and therefore may aspirate or
breath in mucus, and hence bacteria that are in their mouth,
" therefore, "a pneumonia may develop." Dr.
Barnhart testified that Jackson was to be discharged to a
nursing home. She stated that the aspiration pneumonia may
have contributed to Jackson's death, but that aspiration
pneumonia could be ruled out as a cause of death.
The trial court denied Thomas's motion for a directed
verdict. After consultation with the trial court and defense
counsel about his right to testify in his defense, Thomas
decided not to do so. The defense intended to call two
witnesses, Dr. Steven Hayne and Jontez Garvis, for
Pretrial, the State had moved in limine to exclude
the testimony of Dr. Hayne. After a
Daubert hearing, the trial court granted the
State's motion and excluded Dr. Hayne's testimony.
The defense moved for reconsideration ore tenus
before its case-in-chief, and the trial court denied the
motion. The defense then called Jontez Garvis to testify.
After the close of testimony and closing arguments, the jury
retired to deliberate. It found Thomas guilty of capital
murder. The trial court sentenced Thomas to life imprisonment
without the possibility of parole. The trial court denied
Thomas's motion for judgment notwithstanding the verdict.
Thomas now appeals. His counsel raises two issues. First, he
argues that the State failed to adduce sufficient evidence to
support the jury's verdict. Second, he argues that the
trial court erred by excluding Thomas's proposed expert
defense witness, Dr. Hayne. Thomas also has filed a
supplemental brief, pro se, in which he raises the
1. Whether the trial court erred by finding Thomas competent
to stand trial.
2. Whether the trial court erred by denying Thomas's
motion to recuse the trial judge.
3. Whether the trial court misapplied Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69
4. Whether the trial court erred by excluding Thomas's
proposed expert defense witness, Dr. Steven Hayne.
5. Whether the trial court erred by denying jury instructions
requested by Thomas's counsel.
6. Whether the trial court erred when it refused to instruct
the jury on the elements of armed robbery.
7. Whether cumulative error requires reversal.
We address each issue in turn. For clarity, we will address
Thomas's pro-se claim concerning Dr. Hayne together with
his counsel's claim. We also will combine our discussion
of the errors that Thomas claims concerning the jury
instructions. Additional facts and procedural history will be
discussed as necessary for each issue.
Whether the State adduced sufficient evidence to
support the jury's verdict.
Thomas's counsel first argues that "[t]he expert
testimony from Dr. Barnhart shows that the State failed to
prove beyond a reasonable doubt that any damage inflicted by
the Defendant was the legal cause of death." Dr.
Barnhart testified, to a reasonable degree of scientific
certainty, that the cause of Jackson's death was
complications of blunt head trauma, and the manner of his
death was homicide. Dr. Barhnart testified that aspiration
pneumonia "certainly may been contributory, " but
that aspiration pneumonia could be ruled out as a cause of
This Court, in Shelton v. State, 214 So.3d 250, 256
(Miss. 2017), detailed our familiar standard of review for a
challenge to the sufficiency of the evidence:
This Court reviews a challenge to the sufficiency of the
evidence under the standard detailed in Bush v.
State, 895 So.2d 836, 843 (Miss. 2005) [abrogated on
other grounds by Little v. State, 233 So.3d 288, 292
(Miss. 2017)]. We recognize that "the critical
inquiry" under the standard is whether the evidence
supports a finding that the accused "committed the act
charged . . . under such circumstances that every element of
the offense existed." Id. "'[T]he
relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.'"
Id. (quoting Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in
if a review of the evidence reveals that it is of such
quality and weight that, "having in mind the beyond a
reasonable doubt burden of proof standard, reasonable
fair-minded men in the exercise of impartial judgment might
reach different conclusions on every element of the offense,
" the evidence will be deemed to have been sufficient.
Id.; see also Roby v. State, 183 So.3d 857,
869 (Miss. 2016).
Shelton, 214 So.3d at 256.
"The killing of a human being without the authority of
law by any means or in any manner shall be capital murder . .
. [w]hen done with or without any design to effect death, by
any person engaged in the commission of the crime of . . .
robbery . . . ." Miss. Code Ann. § 97-3-19(2)(e)
(Rev. 2014). Thomas admitted to police that he had gone to
The Can Man location with Garvis and he admitted that he had
attacked Jackson: "I hit him once. Jontez hit him two or
three times." Thomas also confessed that he and Garvis
had taken $250 from Jackson.
The defense took the position at trial that Thomas was at The
Can Man and had participated in the robbery, but that the
cause of Jackson's death was not the injuries sustained
during the robbery, but rather aspiration pneumonia which was
contracted during Jackson's hospital stay. On appeal, the
defense maintains its argument that the testimony of Dr.
Barnhart was insufficient to support the capital-murder
This Court considered a case in which the victim had been
shot six times and died in the hospital "several days
after his admission for treatment of his gunshot wounds. . .
." Holliday v. State, 418 So.2d 69, 70-71
(Miss. 1982). The decedent's treating surgeon testified
that "the cause of death was overwhelming infection
secondary to his injuries." Id. at 71. Next,
the surgeon agreed that the "cause of death was gunshot
wounds." Id. In its analysis, the
Holliday Court recognized:
The unlawful act or omission of accused need not be the sole
cause of death. The test of responsibility is whether the act
of accused contributed to the death, and, if it did, he is
not relieved of responsibility by the fact that other causes
also contributed. Moreover, responsibility also attaches
where the injury materially accelerates the death, although
the death is proximately occasioned by a preexisting cause.
Id. (quoting Schroer v. State, 250 Miss.
84, 91, 160 So.2d 681 (1964)) (citation omitted). This Court
held that "the jury was justified in determining the
gunshot wounds were a substantial contributing cause of
Here, the jury was justified in its finding, based on the
testimony of Dr. Barnhart, that the cause of Jackson's
death was complications of blunt-force trauma, irrespective
of the fact that aspiration pneumonia was a possible
contributing cause of death. This issue is without merit.
Whether the trial court erred by excluding
Thomas's proposed expert defense
witness, Dr. Steven Hayne.
Thomas's counsel contends that the trial court's
exclusion of Dr. Steven Hayne's proposed testimony
deprived Thomas of presenting his sole theory of defense. In
his pro-se brief, Thomas agrees, claiming that he was denied
his fundamental right to present a meaningful defense.
This Court applies an abuse-of-discretion standard to the
trial court's admission or exclusion of expert testimony.
Gillett v. State, 56 So.3d 469, 494 (Miss. 2010
(citing Miss. Transp. Comm'n v. McLemore, 863
So.2d 31 (Miss. 2003)). Mississippi Rule of Evidence 702
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of
an opinion or otherwise if:
(a) the expert's scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient
facts or data;
(c) the testimony is the product of reliable
principles and methods; and
(d) the expert has reliably applied the
principles and methods to the facts of the case.
M.R.E. 702. This Court has held that:
"[T]he opinion of an expert witness must be stated with
reasonable certainty, given the state of knowledge in the
field in which the expert is qualified." West v.
State, 553 So.2d 8, 20 (Miss. 1989) (citations omitted).
In other words, these opinions "must rise above mere
speculation." Williams v. State, 35 So.3d 480,
486 (Miss. 2010) (quoting Goforth v. City of
Ridgeland, 603 So.2d 323, 329 (Miss. 1992)).
"[I]ndefinite" expert opinions, or those
"expressed in terms of mere possibilities, " are
not admissible. West, 553 So.2d at 20 (citing
Scott County Co-op v. Brown, 187 So.2d 321, 325-26
(Miss. 1966); Gen. Benevolent Assoc. v. Fowler, 210
Miss. 578, 589, 50 So.2d 137, 142 (1951)). For example, we
have held that an expert's offering a ...