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Bernard v. State

Supreme Court of Mississippi

December 5, 2019


          DATE OF JUDGMENT: 01/27/2016








         ¶1. Willie Bernard appeals from his second murder trial for shooting Larry Johnson to death after a traffic dispute in an apartment-complex parking lot. The first trial resulted in a jury finding Bernard guilty of murder and an accompanying firearm enhancement. But the trial judge found he had wrongly denied Bernard's request to instruct the jury on the Castle Doctrine. So the judge granted Bernard's posttrial motion for a new trial and set aside that jury's guilty verdict.

         ¶2. The State tried Bernard again. And this time, the trial judge granted Bernard a Castle Doctrine instruction. He also instructed the jury on self-defense. Once again, a jury found Bernard guilty of murder and the related firearm enhancement. He was sentenced to life in prison. Bernard now appeals this murder conviction.

         ¶3. After review, we find sufficient evidence supports the jury's guilty verdict and the enhancement for using a firearm during a felony. The convictions are also supported by the weight of the evidence. Bernard is barred from challenging the judge for granting the specific Castle Doctrine instruction he requested. And his remaining appellate challenges-over the record, other jury instructions, the effectiveness of his counsel, jury selection, and improper witness bolstering-are either wholly speculative, not preserved, outside the record, or lack merit.

         ¶4. We therefore affirm Bernard's convictions for murder and for using a firearm during a felony. His challenge to the effectiveness of his trial counsel may be brought in a post-conviction relief petition, if he so desires.

         Background Facts and Procedural History

         ¶5. On March 16, 2011, Brittany Wells was driving her tan Saturn sedan, in which Bernard was a passenger. As Wells pulled into the entrance to their apartment complex, a white Mustang, heading the wrong way, drove toward them from the complex parking lot and tried to exit the lot. Wells yelled, "asshole, you're going the wrong way." And she continued driving toward the parking lot.

         ¶6. The Mustang stopped, reversed, and backed up toward Wells's car. The driver, Larry Johnson, got out of the Mustang. He waved his arms around and yelled, "bitch, I go wherever I want to go, whenever I want to go, how I want to go." An argument between Johnson and Wells followed. During the exchange, Bernard got out of Wells's car, pulled out a .357 magnum revolver, and shot Johnson twice, killing him. Wells and Bernard got back in Wells's car and drove to their apartment.

         ¶7. Soon after, Bernard tried to leave the complex in his truck. A police officer arrived and saw people pointing at Bernard's truck. Bernard was stopped and taken into custody. Bernard admitted to police that he shot Johnson. But he claimed he did so in defense of himself and his children, who he claimed were in the car.

         ¶8. A grand jury indicted Bernard for Johnson's murder and for using a firearm in the commission of a felony. This appeal is from his second trial. Bernard was initially tried and found guilty by a jury in May 2013. But the judge granted him a new trial. The judge found that a requested Castle Doctrine instruction was incorrectly refused. In Bernard's second trial, which occurred in January 2016, three eyewitnesses testified about the shooting. And three Jackson Police Department officers described Bernard's arrest, the crime scene, and the murder investigation. A State Medical Examiner testified that the autopsy he performed showed Johnson was shot twice and died from the gunshots.

         ¶9. According to eyewitness testimony, when Johnson got out of his Mustang, he gesticulated with his arms, which were visible. He argued with Wells but did not appear aggressive. During this exchange, Bernard grabbed a .357 magnum revolver from under the passenger seat, stepped out of Wells's car, and shot Johnson twice. Each eyewitness the State called claimed there was no physical altercation. And no weapon was recovered from Johnson. Two of the eyewitnesses testified that Bernard and Johnson were not even standing close to one another when Bernard shot him. All three saw Bernard shoot Johnson. One of the eyewitnesses tried to resuscitate Johnson in the parking lot but was unsuccessful.

         ¶10. Wells and Bernard both testified in Bernard's defense. Both claimed Johnson acted aggressively and approached their car, toward the back door on the driver's side, with a hand under his shirt like he had a weapon. Bernard testified that to protect himself, Wells, and their kids-who he and Wells claimed were in the backseat-he shot Johnson once. Bernard testified that Johnson did not stop after the first shot, so he shot him again. None of the other eyewitnesses saw Johnson reach under his shirt. And none of the other eyewitnesses saw children in Wells's vehicle.

         ¶11. Each side rested, and the judge denied Bernard's motion for a directed verdict. Both sides lodged objections to several of the other's jury instructions. The trial transcript shows the chief complaints during the jury-instruction conference dealt with the State's murder instruction and Bernard's proposed Castle Doctrine and self-defense instructions. The judge granted Bernard's request to remove language from the murder instruction that addressed depraved-heart murder. The judge also granted the State's request to remove the title "Mr." from Bernard's name in the Castle Doctrine instruction. And at Bernard's request, the judge modified a justifiable-homicide instruction-that Bernard's trial lawyer called a Castle Doctrine instruction-to reflect his defense of himself and others.

         ¶12. At the end of the conference, the trial judge asked if either side had any questions about the proposed revisions. Both the State and the defense said no. The noted revisions were made by court staff. And the judge read the instructions to the jury, which reflected the trial judge's rulings from the jury-instruction conference. At trial, neither side objected or made any claim that the jury instructions, as read to the jury, were incorrect.

         ¶13. After deliberating, the jury found Bernard guilty of murder and guilty of using a firearm during the killing. The judge sentenced Bernard to life in prison. Bernard filed a posttrial motion and an amended motion for a new trial. Both were denied. Bernard now appeals to this Court.


         ¶14. On appeal, Bernard argues: (1) the evidence was insufficient to support his murder conviction and gun enhancement; (2) the jury's verdict was against the overwhelming weight of the evidence; (3) the record is deficient on the jury instructions and there are numerous errors with the instructions; (4) the State improperly bolstered witness testimony; and (5) the trial court erred by granting the State's challenge for cause against a juror.

         I. Sufficiency of the Evidence

         ¶15. Bernard argues the State's evidence was insufficient to prove his murder conviction and firearm enhancement. When reviewing the sufficiency of the evidence, this Court views the evidence in the light most favorable to the State and determines if any rational juror could have found the elements of the charged crimes beyond a reasonable doubt. Martin v. State, 214 So.3d 217, 222 (Miss. 2017).

         ¶16. Bernard was charged with deliberate-design murder. The State had to prove Bernard killed Johnson without authority of law and did so with the deliberate design to effect Johnson's death. Scott v. State, 220 So.3d 957, 962 (Miss. 2017); Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006).[1] The firearm enhancement required the State to prove Bernard used or displayed a firearm during the commission of a felony. Miss. Code Ann. § 97-37-37(1) (Supp. 2008).[2]

         ¶17. Viewing the evidence in the State's favor, there was testimony that Johnson was arguing with, but not physically threatening, Wells and Bernard. And there was testimony that Bernard got out of Wells's car and shot Johnson twice with a .357 magnum, killing him. According to the medical examiner, Johnson died from the gunshots. While the parking-lot episode escalated rapidly from mere road rage to a killing, this Court has held "'[d]eliberate design to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent.'" Brown v. State, 965 So.2d 1023, 1030 (Miss. 2007) (quoting Gossett v. State, 660 So.2d 1285, 1293 (Miss. 1995)). Because a rational fact-finder could find Bernard killed Johnson with deliberate design, there is sufficient evidence of murder. This same evidence is also sufficient to prove Bernard used or displayed a firearm during the commission of a felony.

         II. Weight of the Evidence

         ¶18. Bernard also suggests the jury's guilty verdict was against the weight of the evidence, entitling him to a new trial. He specifically calls into question the eyewitnesses' reliability and insists the only conclusion is that he acted in self-defense.[3]

         ¶19. This Court does not reweigh evidence or determine a witness's credibility. Little v. State, 233 So.3d 288, 292 (Miss. 2017). When evidence or testimony conflicts, the jury is the sole judge of witness credibility and the weight and worth of their testimony. Id. What this Court does is review the judge's denial of a new trial for abuse of discretion. Id. We will only find an abuse of discretion and disturb a verdict when, viewing the evidence in the light most favorable to the verdict, it is so contrary to the overwhelming weight of the evidence it sanctions an unconscionable injustice. Id.

         ¶20. Three eyewitnesses testified that while Johnson was agitated and waving his arms, there was no physical altercation. Two eyewitnesses testified Bernard and Johnson were not even close to one another when Bernard shot him. And none of these eyewitnesses ...

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