IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-KA-00249-COA
BRANDON DEJOHNETTE A/K/A BRANDON APPELLANT LATERRANCE DEJOHNETTE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/17/2022 TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS COURT FROM WHICH APPEALED: WILKINSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN G. CANTRELL DISTRICT ATTORNEY: SHAMECA COLLINS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 10/03/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., WESTBROOKS AND EMFINGER, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Brandon DeJohnette was arrested for shooting and killing his then-girlfriend
Mirrander McClain on November 19, 2018. After being tried on February 15, 2022, Brandon
was found guilty of first-degree murder and sentenced to serve life imprisonment in the
custody of the Mississippi Department of Corrections (MDOC). On appeal, Brandon claims
that his constitutional speedy-trial right was violated and that the circuit court erred by
refusing his proposed heat-of-passion jury instruction. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Brandon DeJohnette, also known as “B,” was the estranged boyfriend of Mirrander McClain. They had been living together since 2016. On November 19, 2018, Mirrander was
working at Centreville Headstart Center while Brandon was visiting Mirrander’s mother,
Clara McClain, at her house. They were drinking, hanging out, and “having an alright time
together.” During this time, Clara told Brandon that a “guy was liking [Mirrander].”
¶3. Mirrander called Clara while Brandon was still at her house. When Clara answered,
Brandon took the phone from Clara and began “ha[ving] harsh words with Mirrander.” After
the conversation ended, Brandon left Clara’s house to head over to Mirrander’s house.
¶4. On Mirrander’s way home from work, Mirrander stopped by her sister Latosha’s
house, which was no more than a hundred feet away from Mirrander’s house. When Latosha
was later questioned by the police, she recalled her last moments with Mirrander.
¶5. Latosha stated that on the day of Mirrander’s murder, Mirrander was her happy,
normal self until she received a message from Brandon accusing her of “going with
somebody else.” Latosha recalled that when Mirrander was at her house, she and Brandon
had been “arguing back and forth through the[ir] text messages,” and both seemed upset
about the accusation.
¶6. Mirrander left Latosha’s house and went home. Brandon met Mirrander on her porch,
and the two continued with their earlier confrontation. Brandon later alleged in his police
statement that Mirrander had been trying to get her brother to do something to him. Brandon
further asserted that when he was trying to leave, she told him to stay. Brandon also said that
Mirrander hit him on the head. In the end, he shot her five times, emptying his magazine
clip.
2 ¶7. Latosha’s daughter, Zuccaria, heard the gunshots while washing her hair in the kitchen
sink. When she looked out the window, she saw a blur of Brandon’s black Avalanche
speeding out of Mirrander’s driveway. Latosha sent Zuccaria outside to determine the
location of the gunfire. As Zuccaria walked up to Mirrander’s house, she saw that Mirrander
had been shot and ran to tell Latosha. When Latosha came to the porch, she saw that
Mirrander was alive but lying at the front door of her porch in a pool of blood. Latosha
asked Mirrander, “Did Brandon do this to you?” Mirrander responded, “Yes, he did.”
¶8. The authorities were called to the scene. When Deputy Lemuel Rutledge, an
investigator from the Wilkinson County Sheriff’s Office, arrived at the scene with Deputy
Lashonda Grayson, he heard some of Mirrander’s family members screaming that they
needed help to stop Mirrander’s bleeding. The deputies hurriedly performed CPR and
attempted to stop Mirrander’s bleeding. Shortly after, the deputies used their patrol vehicle
to transport Mirrander to the hospital.
¶9. In the midst of Deputy Rutledge’s investigation, someone reported that a person’s
vehicle had run into the neighbor’s fence near Mirrander’s house. Deputy Rutledge found
a black pouch containing bankcards and a Mississippi identification card belonging to
Brandon in that area. The bumper of Brandon’s Avalanche was later found in that area, as
well. Afterward, the Wilkinson County Sheriff’s Office issued a warrant for Brandon’s
arrest.
¶10. Brandon had fled to his sister’s house in Baton Rouge, Louisiana, parked the
Avalanche in the backyard, and hid. But his sister, Shanekia DeJohnette, called the police.
3 On the night of November 19, 2018, the police arrived at Shanekia’s house to apprehend
Brandon. When Brandon failed to comply, a K-9 unit dog was sent in the house to retrieve
him. Brandon was then arrested after midnight, on November 20, 2018.
¶11. Brandon was given his Miranda1 rights. But he waived his rights and agreed to give
a statement. Brandon told a police officer that he knew they had a witness placing him at the
scene. When the police officer did not respond, Brandon’s demeanor seemingly changed.
At this time, Brandon mentioned that he had never carried a gun but just happened to possess
a firearm that day. The police officer asked Brandon, “[W]hat led [you] to shoot Mirrander?”
Brandon responded that Mirrander had a way of pushing his buttons and had done so for two
years. Later, Brandon also said that Mirrander had previously pulled a gun on him.
¶12. On November 21, 2018, the police charged Brandon with murder and resisting arrest.
On January 24, 2020, after being detained for over fourteen months, Brandon filed a “Motion
to Dismiss for Lack of a Speedy Trial, or in the Alternative, Bond Reduction, and Other
Relief” (“motion to dismiss”).
¶13. On February 10, 2020, the circuit court held a hearing on Brandon’s speedy-trial claim
in his motion to dismiss. At the hearing, the circuit judge found that (1) fifteen months was
not a long time, (2) the delay was due to the district attorney’s office’s change in
administration, which was not entirely the State’s fault, and (3) the delay did not cause
Brandon any prejudice. On February 21, 2020, the circuit court entered an order denying
Brandon’s motion to dismiss. On February 19, 2020, the grand jury issued an indictment
1 Miranda v. Arizona, 384 U.S. 436 (1966).
4 against Brandon for the first-degree murder of Mirrander McClain pursuant to Mississippi
Code Annotated section 97-3-19(1)(a) (Supp. 2017).
¶14. Brandon was arraigned on June 1, 2020. He pled not guilty. On August 14, 2020, the
circuit court set his trial for October 6, 2020. Sometime later, Brandon moved to continue
the trial. On September 28, 2020, the circuit court entered an agreed order to continue the
trial date, and on January 19, 2021, set trial for February 23, 2021. Brandon moved to
continue the trial once more. On February 1, 2021, the circuit court entered another agreed
order to continue the trial date, and later rescheduled the trial for June 15, 2021. On May 27,
2021, Brandon moved to continue the trial a third time. In this motion, Brandon’s counsel
requested the trial be continued because he had a personal conflict. Brandon’s counsel asked
the circuit court to reschedule the trial to June 29, 2021. On June 2, 2021, the circuit court
granted the motion and continued the trial date to June 28, 2021.
¶15. On June 28, 2021, the circuit court considered whether Brandon was mentally
competent to proceed with trial. The circuit court judge conducted an in-chamber
examination of Brandon after it was brought to the circuit court’s attention that Brandon had
previously been prescribed medication for depression and anxiety. Moreover, for the very
first time Brandon claimed to have seen a spirit when he fired the gun at Mirrander.
Accordingly, the circuit court continued the trial date because of Brandon’s representations
of mental incompetence.
¶16. On July 8, 2021, Brandon filed a written motion for a mental evaluation. On August
4, 2021, the circuit court found that Brandon was entitled to a mental evaluation and ordered
5 him to be examined by Dr. Criss Lott. On September 20, 2021, the circuit court continued
the trial date to October 21, 2021. On September 29, 2021, Brandon’s counsel moved to
continue the trial because he was representing another defendant in a trial beginning on
October 18, 2021. On October 4, 2021, the circuit court granted the continuance and reset
the trial date to February 15, 2022. On October 28, 2021, Dr. Lott submitted the results of
his evaluation of Brandon. Dr. Lott’s conclusions were that Brandon “appeared alert,
attentive and he responded promptly to questions. His responses were of normal rate and low
in tone.” Dr. Lott also found to a reasonable degree of certainty that Brandon had the ability
to understand the nature of the legal proceedings against him. On February 7, 2022, after a
hearing and considering Dr. Lott’s findings, the court found Brandon was competent to stand
trial.
¶17. The trial commenced on February 15, 2022. At the end of the trial, the court held a
jury instruction conference. During the conference, the circuit court refused Brandon’s heat-
of-passion jury instruction because no evidence supported the instruction. On February 17,
2022, the jury found Brandon guilty of first-degree murder, and the court sentenced him to
serve life imprisonment in the custody of the MDOC. Brandon appeals.
STANDARD OF REVIEW
¶18. When an accused raises a speedy trial violation before the circuit court, the judge must
consider the questions of “whether there was ‘good cause’ for a delay” and whether “the
defendant has been prejudiced by any delay.” Berryman v. State, 337 So. 3d 1116, 1127 (¶33)
(Miss. Ct. App. 2021) (citing State v. Woodall, 801 So. 2d 678, 680-81, 687 (¶¶7, 29, 31)
6 (Miss. 2001)). We will affirm the circuit court’s findings on good cause and prejudice, if
they are supported by substantial credible evidence. Id.
¶19. In addition, “[j]ury instructions are within the discretion of the circuit court[,] and the
settled standard of review is abuse of discretion.” Blanden v. State, 276 So. 3d 1204, 1210
(¶21) (Miss. Ct. App. 2018).
DISCUSSION
¶20. Brandon received a fair trial. Although Brandon raises (1) that the circuit court’s
Barker v. Wingo2 speedy-trial analysis was clearly erroneous and (2) that his heat-of-passion
jury instruction should have been given, we conclude that Brandon’s speedy trial right was
not violated and that the circuit court did not abuse its discretion by refusing Brandon’s heat-
of-passion jury instruction. Therefore, we affirm Brandon’s conviction and sentence.
I. Constitutional Right to a Speedy Trial
¶21. “The Sixth Amendment to the United States Constitution states, in pertinent part, that
‘the accused shall enjoy the right to a speedy and public trial.’” Havard v. State, 94 So. 3d
229, 236 (¶16) (Miss. 2012); accord Klopfer v. North Carolina, 386 U.S. 213, 223-26 (1967)
(applying right to the states). Article 3, Section 26 of the Mississippi Constitution of 1890
likewise guarantees a criminal defendant the right to “a speedy and public trial . . . .” Miss.
Const. art. 3, § 26. “A formal indictment or information or an arrest—whichever first
2 Barker v. Wingo, 407 U.S. 514 (1972). The Barker analysis applies only to an accused’s assertion that his constitutional speedy trial right has been violated. Guice v. State, 952 So. 2d 129, 139 (¶39) (Miss. 2007). Moreover, Brandon does not raise his statutory right to a speedy trial as an issue on appeal. Miss. Code Ann. § 99-17-1 (Rev. 2020).
7 occurs—triggers the constitutional right to a speedy trial.” McBride v. State, 61 So. 3d 138,
142 (¶8) (Miss. 2011); United States v. Marion, 404 U.S. 307, 320 (1971); Smith v. State, 550
So. 2d 406, 408 (Miss. 1989) (citing Perry v. State, 419 So. 2d 194, 198 (Miss. 1982)).
¶22. Brandon was arrested on November 20, 2018. Fourteen months later, Brandon had
not received a bill of information or indictment. On January 24, 2020, Brandon filed a
motion to dismiss for lack of speedy trial and to reduce bail. The circuit court denied
Brandon’s motion to dismiss. Brandon argues the circuit court erroneously applied the law.
¶23. When reviewing a speedy trial claim, this Court applies a four-part test. In Barker,
407 U.S. at 530, our United States Supreme Court announced a four-factored balancing test
to determine whether an accused has been denied his speedy trial right: (1) length of delay,
(2) reason for delay, (3) assertion of the right, and (4) prejudice to the defendant.
(1) Length of Delay
¶24. “The length of delay is to some extent a triggering mechanism.” Id. “A full Barker
analysis is warranted only if the delay was presumptively prejudicial.” McBride, 61 So. 3d
at 142 (¶7); accord Stark v. State, 911 So. 2d 447, 450 (¶9) (Miss. 2005) (citing Barker, 407
U.S. at 530). “In Mississippi, a delay of more than eight months is presumptively
prejudicial.” Stark, 911 So. 2d at 450 (¶9) (citing Smith, 550 So. 2d at 408).
¶25. When the circuit judge analyzed the length-of-delay factor, she said:
Now, the Court looks at the length of fifteen months. While fifteen months may seem like a long, long time, but in the eyes of the law, it’s not that long. It’s just fifteen months. So, the State wins that one.
¶26. We disagree. In this instance, Brandon was arrested on November 19, 2018. On
8 January 24, 2020, Brandon filed a motion to dismiss for lack of speedy trial and other relief.
At the hearing on the motion to dismiss, fifteen months had elapsed since Brandon’s arrest.
Thus, Brandon was presumptively prejudiced. This factor weighed against the State.
Because the delay was presumptively prejudicial, we turn to the remaining three factors.
(2) Reason for Delay
¶27. “When the length of the delay is presumptively prejudicial, the burden shifts to the
prosecution to produce evidence justifying the delay.” Bateman v. State, 125 So. 3d 616, 629
(¶45) (Miss. 2013). “Different reasons for delay are assigned different weights.” Barker,
407 U.S. at 532. “Deliberate attempt[s] to delay the trial in order to hamper the defense [are]
weigh[ed] heavily against the government.” Id. at 531. Whereas “[a] more neutral reason
such as negligence or overcrowded courts should be weighted less heavily . . . .” Id.
¶28. Basically, “the State must prove either that the defendant prompted the delay or that
the State had good cause.” De La Beckwith v. State, 707 So. 2d 547, 606 (Miss. 1997),
distinguished on other grounds by Wharton v. State, 734 So. 2d 985, 991 (¶23) (Miss. 1998).
And when the circuit judge has found good cause for the delay, the finding “will be left
undisturbed where there is in the record substantial credible evidence from which it could
have been made.” Walton v. State, 678 So. 2d 645, 648-49 (Miss. 1996); accord McNeal v.
State, 617 So. 2d 999, 1007 (Miss. 1993); Folk v. State, 576 So. 2d 1243, 1247 (Miss. 1991).
¶29. The burden shifted to the State to give cause for the delay between November 20,
2018, and January 24, 2020. The State explained that it was waiting on the autopsy report
because as a matter of policy, the administration did not allow for the prosecution to indict
9 defendants without a report. See Harris v. State, 311 So. 3d 638, 665 (¶80) (Miss. Ct. App.
2020) (explaining that prosecutors cannot pursue an indictment “until they have probable
cause to believe an accused is guilty,” and stating, “indeed it is unprofessional conduct for
a prosecutor to recommend an indictment on less than probable cause”); Woodall, 801 So.
2d at 682 (¶15).
¶30. But the State failed to provide any documentation in support of its inability to obtain
an autopsy report from the Mississippi Crime Laboratory. The State did not provide any
dates as to when the autopsy report was originally due or any correspondence from the crime
lab indicating that the crime lab caused the delay.
¶31. In Galloway v. State, 122 So. 3d 614, 650 (¶104) (Miss. 2013), the State blamed the
crime lab for the delay in presenting the case to the grand jury. In that case, the State
provided an invoice from the crime lab for support. Galloway, 122 So. 3d at 650 (¶104).
Here, however, we do not have any documentation or evidence to support the State’s
assertion. Thus, the record lacks credible evidence for the circuit judge to have found good
cause for delay on this point. See id. (citing Flora v. State, 925 So. 2d 797 (Miss. 2006))
(stating “the importance of making a clear record to allow proper review of speedy-trial
claims”).
¶32. The State did not provide any further reason for delay. And yet, the circuit judge
concluded that:
[W]hen we talk about the previous administration, this Court is aware that the previous District of Attorney, from August, and even before that to January, just shutdown, did nothing. The new administration couldn’t do anything before January. This is the very beginning of February. I know they’ve been
10 busy. So, I can’t - - the State would have to win that one. I can’t count all of this against the State.
Presumably the circuit judge was relying on what the defendant’s attorney said when he
acknowledged that “it [was] definitely not the current District Attorney’s fault, because we
have a new DA.” But the State has the burden of persuasion on this factor, Graham v. State,
185 So. 3d 992, 1006 (¶42) (Miss. 2016), and the State did not assert the change in
administration as cause for its delay. Thus, we conclude that the circuit judge erred by basing
its finding of good cause on reasons not provided by the State.
¶33. Even if the State had cited the change in administration as an explanation for delay,
this circumstance would not have resulted in a finding of good cause that was supported by
substantial credible evidence. Unlike an overcrowding docket and an understaffed office,
Bailey v. State, 463 So. 2d 1059, 1062 (Miss. 1985), the complete shutdown of the district
attorney’s office is more akin to an intentional and blatant decision to frustrate the criminal
justice process, than the former scenarios, which in large part are out of the State’s control.
Because the accused remains “in the custody of” the State, the State has the ultimate
responsibility of bringing the accused to trial. Barker, 407 U.S. at 527 (“A defendant has no
duty to bring himself to trial; the State has that duty as well as the duty of insuring that the
trial is consistent with due process.”). The State cannot skirt responsibility by placing blame
on the previous administration. See Vickery v. State, 535 So. 2d 1371, 1377 (Miss. 1988).
This factor weighed against the State.
(3) Assertion of the Right
¶34. Our Supreme Court “has stressed the importance of a defendant’s request for a speedy
11 trial.” Perry, 419 So. 2d at 199. The Supreme Court has “repeatedly held that a defendant’s
failure to assert his right to a speedy trial must be weighed against him.” Young v. State, 891
So. 2d 813, 818 (¶13) (Miss. 2005) (citing Watts v. State, 733 So. 2d 214, 236 (Miss. 1999)).
But “[w]hether and how a defendant asserts his right is closely related to the other factors
. . . . ” Barker, 407 U.S. at 531.
¶35. The circuit judge found that Brandon asserted his right to a speedy trial, and
substantial credible evidence supports this finding. Brandon filed a motion to dismiss,
asserting his speedy trial right. See Galloway, 122 So. 3d at 649 (¶¶100, 105); see also
Collins. v. Miss. Dep’t. of Corr., No. 2:18-cv-46-TBM-RPM, 2021 WL 4330974 at *13 (S.D.
Miss. Aug. 3, 2021). In the motion, Brandon stated that he made a demand for a speedy trial
during the preliminary hearing.
¶36. There are no written documents in the record showing that Brandon asserted his right
at the preliminary hearing. Although a written demand would have given more credibility
to this assertion, a written demand was not required. State v. Ferguson, 576 So. 2d 1242,
1254 (Miss. 1991), overruled in part on other grounds by Johnson v. State, 68 So. 3d 1239,
1243 (¶11) (Miss. 2011). This factor weighed slightly in Brandon’s favor.
(4) Prejudice
¶37. “To determine whether the delay resulted in actual prejudice, the Court considers three
interests that the right to a speedy trial was meant to protect: ‘(i) to prevent oppressive
pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.’” Taylor v. State, 162 So. 3d 780, 787 (¶16)
12 (Miss. 2015) (quoting Jenkins v. State, 947 So. 2d 270, 277 (¶21) (Miss. 2006); Barker, 407
U.S. at 532)). “Of these three interests, the last is the most important; and when violated, [it
is] most prejudicial to the defendant.” Collins v. State, 232 So. 3d 739, 746 (¶26) (Miss. Ct.
App. 2017) (quoting Hersick v. State, 904 So. 2d 116, 123 (¶18) (Miss. 2004)).
¶38. “Generally, proof of prejudice entails the loss of evidence, death of witnesses, or
staleness of an investigation.” McCormick v. State, 183 So. 3d 898, 903 (¶21) (Miss. Ct.
App. 2015) (quoting Sharp v. State, 786 So. 2d 372, 381(¶19) (Miss. 2001)). The defendant
“bears the burden of showing actual prejudice, since the defendant is clearly in the best
position to show prejudice under this prong.” Reed v. State, 191 So. 3d 134, 141 (¶19) (Miss.
Ct. App. 2016) (internal quotation marks omitted).
¶39. In Brandon’s motion to dismiss, Brandon asserted that the delay in his trial prejudiced
him because it impacted his life and health, caused him anxiety, and caused him to lose his
employment. Brandon stood on his motion at the hearing. Brandon requested the circuit
judge to either reduce his bond or order the State to present his case at the next grand jury.
The circuit judge ruled that
[she] [did not] see any prejudice at this particular point of lost witnesses, things that would hurt his case, or anything of that nature. So the Court is not going to dismiss the case. I believe that’s sufficient.
¶40. Undoubtedly, pre-trial detention deprives the accused, who is innocent until proven
guilty, of liberty for an indefinite amount of time. And after an extended period, the
prolonged detention brings about certain collateral consequences. Yet, in this instance,
Brandon has failed to articulate with any degree of specificity how his fifteen-month delay
13 impaired his defense, which is the most important consideration. Brandon has not argued
that he lost evidence or witnesses during the delay. Although Brandon asserted that the delay
caused him anxiety, “[s]ome degree of anxiety exists for every defendant . . . .” McBride,
61 So. 3d at 147 (¶31). This factor weighed against Brandon.
¶41. Thus, when reviewing the circumstances in totality, we affirm the circuit court’s
ruling that Brandon’s constitutional right to a speedy trial was not violated. We acknowledge
the circuit judge’s error by both finding that the length of delay was meaningless and by
finding good cause for the State’s delay, but affirm the ruling because Brandon failed to
provide evidence of actual prejudice during his fifteen-month delay.
II. Heat-of-Passion Jury Instruction
¶42. Brandon also argues that the trial court erred by refusing his proposed jury instruction
on heat-of-passion manslaughter. Brandon claims that the court denied him the opportunity
to present his defense and that the evidence supported giving the instruction.
¶43. Brandon’s counsel presented the following heat-of-passion jury instruction to the
court:
If you find that the State has failed to prove any one or more of the essential elements of the crime charged, you must find the defendant not guilty of the charge. You will then proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser included crime of Manslaughter: Heat of Passion. If you find from all of the evidence in this case beyond a reasonable doubt that:
1. The deceased, Mirrander McClain was a living person;
2. The Defendant, Brandon DeJohnette, did kill Mirrander McClain
3. Without malice;
14 4. In the Heat of Passion;
5. But in a cruel or unusual manner, or by the use of a dangerous weapon not in necessary self defense and without the authority of law,
Then you shall find the Defendant guilty of Manslaughter. [The lesser included crime contains the same elements as the crime charged, with the exceptions of without Malice and in The Heat of Passion.]
During the jury instruction conference, the State reasoned that the evidence did not support
giving the instruction. Because Brandon did not testify at his trial, the circuit judge was left
to consider Brandon’s police statement. The circuit judge explained that “[Brandon] was
asked repeatedly, ‘What provoked you?’ What caused you - - and he never said anything;
nothing. He just - - he would mumble and say other things, but he didn’t say it was her
hitting me beside the head that provoked him into doing [it].” As a result, the circuit court
refused the heat-of-passion jury instruction, finding that there was no evidence to support it.
¶44. In Mississippi, “a defendant is entitled to have jury instructions given which present
his theory of the case. This entitlement is limited, however, in that the court is allowed to
refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the
instructions, or is without foundation in the evidence.” Westbrook v. State, 29 So. 3d 828,
835 (¶25) (Miss. Ct. App. 2009) (citing Wallace v. State, 10 So. 3d 913, 916 (¶9) (Miss.
2009)).
¶45. “[D]enial of a manslaughter instruction is proper where the record is clear that the
decedent was [killed] with malice or deliberate design.” Abeyta v. State, 137 So. 3d 305, 311
(¶12) (Miss. 2014) (quoting Simmons v. State, 805 So. 2d 452, 474 (¶32) (Miss. 2001)).
“When a deadly weapon is used, as here, malice is implied.” Turner v. State, 773 So. 2d 952,
15 954 (¶7) (Miss. Ct. App. 2007). “In order to overcome that implication, there must be some
evidence in the record from which the jury could determine that the act was not the result of
malice, but a result of heat of passion.” Id.
¶46. “The trial court must grant a lesser-included-offense instruction unless the trial
judge—and ultimately this Court—can say, considering the evidence and all reasonable
inferences that can be drawn therefrom in the light most favorable to the accused, that no
reasonable jury could find the defendant guilty of the lesser-included offense.” Abeyta, 137
So. 3d at 310 at (¶9). Heat-of-passion manslaughter, which is a lesser-included-offense, is
defined as
a state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.
Westbrook, 29 So. 3d at 835 (¶26) (quoting McCune v. State, 989 So. 3d 310, 319 (¶15)
(Miss. 2008)). “Each case must depend upon its own facts and circumstances.” Wade v.
State, 724 So. 2d 1007, 1011 (¶13) (Miss. Ct. App. 1998), aff’d, 748 So. 2d 771, 777 (¶21)
(Miss. 1999). However, the heat-of-passion standard is not subjective. The response must
be the result of “some insult, provocation, or injury, which would naturally and instantly
produce, in the minds of ordinarily constituted men, the highest degree of exasperation.”
Abeyta, 137 So. 3d at 310 (¶10) (quoting Agnew v. State, 783 So. 2d 699, 703 (¶14) (Miss.
2001)). “[W]ords alone . . . are not enough to invoke the passion required for manslaughter.”
Holmes v. State, 201 So. 3d 491, 494 (¶12) (Miss. 2015) (citations omitted). Instead, the
16 provocation must be some act that “usurps the mind destroying judgment.” Sanders v. State,
103 So. 3d 775, 778 (¶11) (Miss. Ct. App. 2012) (quoting Agnew, 783 So. 2d at 703-04
(¶14)). In general, physical acts like “pushing or shoving” are “insufficient to require the
instruction absent testimony that the defendant was acting out of violence or uncontrollable
rage.” Cooper v. State, 977 So. 2d 1220, 1223 (¶11) (Miss. Ct. App. 2007); see, e.g., Moffett
v. State, 354 So. 3d 929, 934, 940 (¶¶4, 29-30) (Miss. Ct. App. 2022).
¶47. In a preceding case, a day-long argument had occurred between Cordaeil Miller and
Jonicqua Moffett, which resulted in Moffett stabbing Miller in the heart with a knife. Moffett,
354 So. 3d at 933 (¶2). Moffett claimed that the argument occurred because she saw Miller,
her fiancé, with another woman. Id. at 935 (¶8). Moffett had told the police officers that
Miller had been intoxicated and verbally abusive. Id. at 934 (¶4). When Miller tried to leave
the argument, Moffett tried to stop him. Id. Miller turned and “struck her in the mouth with
his elbow.” Id. Moffett further alleged that when Miller attempted to hug her, she
“‘accidentally’ stabbed” him. Id. Moffett later testified that during the argument she decided
to walk away from Miller. Id. at (¶29). She then went inside the house to retrieve the knife
and came back outside to continue arguing. Id. This Court held that Moffett’s actions did
not evidence a state of violent or uncontrollable rage and that the court did not err by refusing
the heat-of-passion jury instruction. Id. at (¶30); accord Cooper, 977 So. 2d at 1223 (¶11).
¶48. Here, Brandon came over to Mirrander’s house hours after having a phone
conversation with her, and he suspected or accused Mirrander of cheating. While on
Mirrander’s porch, the argument continued. Brandon claimed that Mirrander had hit him on
17 the head. The confrontation ended with Brandon shooting Mirrander five times. Brandon
claimed he tried to leave, but Mirrander stopped him. Brandon also claimed he did not
usually carry a firearm but had done so on that day to protect himself. Brandon further
claimed that in the past Mirrander had pulled a gun on him. Although it is disputed whether
Mirrander hit Brandon on the head, and if so, whether this was the act that provoked Brandon
to shoot Mirrander, we must make all reasonable inferences in favor of the accused. Abeyta,
137 So. 3d at 310 (¶9). Thus, we will presume, without deciding, that Mirrander hit Brandon
on the head.
¶49. Brandon used a firearm (a deadly weapon) to kill Mirrander. Therefore, there is an
implication of malice. Turner, 773 So. 2d at 954 (¶7). Without evidence to the contrary, a
heat-of-passion jury instruction was unwarranted. Id. Given that there is no evidence in the
record contradicting malice, the circuit court did not err by refusing to give the instruction.
As in Moffett, the record here shows a victim and a defendant having a verbal argument that
resulted in some physical actions. But this evidence is not sufficient to overcome the
presumption of malice. See Cooper, 977 So. 2d at 1223 (¶11). The record also does not
contain any testimony from Brandon or anyone else to indicate that Brandon was so enraged
by Mirrander’s hit that he shot her in a heat of passion. The evidence indicates, instead, that
Brandon, having stated that he did not usually carry a firearm, planned to use the weapon
after having the in-text argument.
¶50. Nor does the fact that Mirrander may have pulled a gun on Brandon before that night
warrant a heat-of-passion instruction. Past acts are rarely sufficient to warrant giving a
18 heat-of-passion jury instruction because heat-of-passion requires immediacy, absent a
cooling-off period “between the provocation and the killing.” Sanders, 103 So. 3d at 779
(¶13) (citing Smith v. State, 76 So. 3d 170, 173 (¶12) (Miss. Ct. App. 2009); Alford v. State,
5 So. 3d 1138, 1143 (¶17) (Miss. Ct. App. 2008)); but see Wade v. State, 748 So. 2d 771, 777
(¶15) (Miss. 1999) (finding past acts sufficient because victim had displayed a “prolonged
history of violence”). If Mirrander pulled a gun on Brandon prior to the night of the murder,
this act is insufficient to serve as Brandon’s provocation because it lacked immediacy. See
Sanders, 103 So. 3d at 779 (¶13); Smith, 76 So. 3d at 173 (¶12). We affirm the circuit court’s
ruling.
CONCLUSION
¶51. We affirm Brandon’s conviction and sentence. Brandon’s constitutional right to a
speedy trial was not violated, and the circuit judge did not abuse her discretion by refusing
his heat-of-passion jury instruction.
¶52. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE AND McDONALD, JJ., CONCUR. WILSON, P.J., McCARTY AND EMFINGER, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE AND SMITH, JJ., CONCUR IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.