James Wilson McDowell a/k/a James McDowell v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: February 22, 2021
• Docket: 2019-KA-01260-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KA-01260-COA

JAMES WILSON McDOWELL A/K/A JAMES APPELLANT McDOWELL

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/16/2018 TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR. COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/22/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Harrison County Circuit Court jury found James Wilson McDowell guilty of first-

degree murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a) (Rev. 2014) and

unlawful possession of a firearm by a felon pursuant to Mississippi Code Annotated section

97-37-5 (Rev. 2014) on November 9, 2018. The circuit court sentenced McDowell as a

habitual offender to life imprisonment for both counts, to be served concurrently, without

eligibility for parole in the custody of the Mississippi Department of Corrections (MDOC).

On November 20, 2018, McDowell moved for judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The circuit court denied McDowell’s motion on February

4, 2019. After the circuit court denied the motion, McDowell appealed on August 12, 2019.1

Finding no reversible error, we affirm.

Statement of the Facts

¶2. McDowell worked in Corpus Christi, Texas, as a construction worker while also

pursuing a music career. He came to Biloxi, Mississippi, to finalize a record deal and receive

advanced payment. When McDowell arrived, on February 21, 2017, his adopted sister,

Charity Roxanne McDowell and her boyfriend, Michael “Mike” Taylor, picked him up at the

bus station. McDowell was carrying a gun, a “Hi-Point .45,” that he hid under the passenger

seat in Charity’s car. That night, McDowell stayed at Dennis Caldwell’s house,2 where

Charity was also staying temporarily.

¶3. On the morning of February 27, 2017, Charity and Mike picked up their friend,

Deverick Johnson. Ultimately, Mike dropped Deverick off near Lang Avenue. Later that

day, Charity and Mike picked up McDowell from Dennis’s house. McDowell immediately

looked for his gun that he had left in Charity’s car, but he could not find it. Charity informed

McDowell that Deverick was the only other person who had been in the backseat of her car

that day. They tried unsuccessfully to reach Deverick—by phone and by going to his house.

Figuring that Deverick would be at his cousin, Devin Johnson’s house, McDowell, Charity,

and Mike decided to go to Devin’s house located at 109 North Lang Avenue in Long Beach,

1 The circuit court granted McDowell’s motion to file an out-of-time appeal. 2 Dennis Caldwell is the father of some of Charity’s children.

2 Mississippi.3 McDowell planned to question Deverick about the missing gun.

¶4. Mike parked the car across the street from Devin’s house. Deverick’s car was not

there, but Deverick was, sitting with his girlfriend, Jacqueline “Jackie” Waizenegger, in her

silver Kia Optima.

¶5. According to McDowell, Mike exited Charity’s car to speak to Deverick. Mike

returned and told McDowell that Deverick stated that he did not have the missing gun.4 At

that point, McDowell walked over to Jackie’s vehicle and got into the backseat behind

Deverick. McDowell said that he asked Deverick about the gun, but Jackie interrupted,

stating that they did not know anything about a gun.

¶6. What happened next was in dispute. McDowell claimed that when he opened the door

to leave the vehicle, Deverick stated, “I ain’t got to steal nothing. I will take your shit,”

meaning that he was the type of person who robs people face-to-face. McDowell claimed

he got out and saw Deverick reach under his seat. Thinking that Deverick was about to shoot

him, McDowell then leaned back into the car and shot Deverick first. Jackie disputed this,

claiming that after McDowell and Deverick had a conversation, McDowell shook Deverick’s

hand, and suddenly and without provocation, McDowell shot Deverick multiple times before

running away from the vehicle.

¶7. McDowell ran back to Charity’s car, firing gunshots at other people in the area as he

was running, and they drove off. Charity, Mike, and McDowell fled to Dennis’s house. All

3 Devin’s house was also known as “the chill spot.” 4 Charity and Mike disputed that Mike went to Jackie’s car and spoke with Deverick.

3 went into the house for a few minutes, and then Mike and Charity left. Although Mike

wanted to call the police, Charity did not because she was afraid and wanted to protect her

brother. Neither Mike nor Charity called the police.

¶8. Meanwhile, Officer James Balius and Battalion Chief Pete McGoey responded to a

911 call from the site of the shooting. Upon their arrival, they found a black male, later

identified as Deverick, seated in the front passenger seat of Jackie’s car. They checked to

see if Deverick was responsive; he was not, and he died at the scene.5 Karenza Denson, the

Gulfport Police Department’s crime scene technician, collected three .45-caliber Hornady

shell casings from Jackie’s car. She also found a Hi-Point pistol under Deverick’s seat.

¶9. The police went to Dennis’s house looking for Mike and Charity. Dennis was there

along with McDowell who gave police a false name, “Raul McDowell.” Police informed

them that there had been a murder in Long Beach and that Mike and Charity were suspects.

Dennis called Charity to tell her that the police were at the house. When Charity and Mike

returned, they were arrested for being accessories after-the-fact to murder.6 Investigator

Patrick Craig interviewed Charity and Mike who identified James McDowell as the shooter.

The police also learned that “Raul McDowell” was actually James McDowell and that they

returned to Dennis’s house only to find that McDowell had fled. The police, however, did

5 Dr. Mark LeVaughn, the medical examiner, determined that the cause of Deverick’s death was a single gunshot wound to the head. It was Dr. LeVaughn’s opinion that Deverick was facing away from the shooter. 6 Mike and Charity both pled guilty to being accessories after the fact of murder.

4 find McDowell’s gun hidden underneath the steps of Dennis’s back porch.7 At trial,

McDowell testified that he hid the gun under the steps. Thereafter, Detective Quinnelly

received a SWAT text that McDowell was located at Carl Tate’s house, where the SWAT

team arrested him.

¶10. During his interview with the police, McDowell said that on February 27, 2017, the

day of the shooting, he had been babysitting Dennis’s children all day. At trial, McDowell

subsequently admitted that he shot Deverick.

Procedural History

¶11. On June 11, 2018, a Harrison County grand jury indicted McDowell for one count of

first-degree murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a)8 and one

count of unlawful possession of a firearm by a felon pursuant to Mississippi Code Annotated

section 97-37-5.9 On September 27, 2018, the State moved to amend McDowell’s indictment

to add a habitual offender charge pursuant to Mississippi Code Annotated section 99-19-81

(Rev. 2015)10 based on the following three crimes: (1) on April 29, 2008, McDowell was

7 Lori Beall testified that the shell casings from the crime scene matched McDowell’s .40-caliber handgun, a Glock model 27, found under Dennis’s back porch. 8 Mississippi Code Annotated section 97-3-19(1)(a) defines first-degree murder as the following: “The killing of a human being without the authority of law by any means or in any manner . . . [w]hen done with deliberate design to effect the death of the person killed, or of any human being[.]” 9 Mississippi Code Annotated section 97-37-5(1) provides that “[i]t shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm . . . .” 10 A habitual offender is defined as “a person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges

5 convicted of possession of a controlled substance (a felony) and was sentenced to a term of

fifteen years in the custody of the MDOC; (2) on April 29, 2008, McDowell was convicted

of shooting into a dwelling and was sentenced to a term of ten years in the custody of the

MDOC; and (3) on December 2, 2013, McDowell was convicted of unlawful possession of

a firearm by a felon and was sentenced to a term of ten years in the MDOC. The court

granted the amendment on November 6, 2018.

¶12. The trial took place on November 6, 2018, through November 9, 2018. The State

presented seventeen witnesses, including key witnesses Charity, Mike, and Jackie, who all

testified that McDowell shot Deverick without provocation and ran away from the car while

shooting at other people. Charity and Mike testified that McDowell pointed the gun at Mike

to force him to drive away from the scene. The other witnesses were persons at the scene of

the crime, law enforcement, and expert witnesses. After the State rested its case-in-chief,

McDowell’s counsel moved for a directed verdict on first-degree murder and possession of

a firearm by a felon because the State failed to meet its burden to prove the elements for each

count. The court, considering the evidence before it, denied McDowell’s motion. McDowell

testified, as the only witness in his defense, that he did shoot Deverick but that he did so in

self-defense. After the four-day trial, the jury found McDowell guilty of first-degree murder

and unlawful possession of a firearm by a felon. McDowell was sentenced to life

imprisonment for both counts, to run concurrently, without eligibility for parole or early

separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution.” Miss. Code Ann. § 99-19-81.

6 release in the custody of the MDOC. The final judgment was entered on November 16,

2018.

¶13. McDowell filed a motion for judgment notwithstanding the verdict (JNOV) or a new

trial on November 20, 2018, arguing (1) that the evidence was insufficient to support the jury

verdicts;11 (2) that the guilty verdicts were against the weight of the evidence; (3) that all of

McDowell’s pretrial motions that were denied in whole or in part should have been granted;

(4) that the court admitted inadmissible evidence; (5) that the court erred in refusing

McDowell’s jury instructions; (6) that the court erred in all of its evidentiary rulings and

rulings on matters of law that McDowell opposed; (7) that the court erred in overruling all

of McDowell’s objections made at pretrial hearings and the trial; and (8) that the court erred

in sustaining all the objections made by the State at pretrial hearings and the trial. On

February 4, 2019, after a hearing on the matter, the court denied McDowell’s motion.

¶14. McDowell moved to file an out-of-time appeal on May 29, 2019. On August 8, 2019,

the circuit court granted McDowell’s motion to proceed out of time, stating that McDowell

was unaware that the order denying his new trial had been entered and was under the

mistaken impression that his court-appointed counsel had filed the necessary pleadings to

perfect his direct appeal.12

11 In essence, McDowell reiterated the arguments made in his motion for a directed verdict at the conclusion of the State’s case-in-chief, and his request for a peremptory instruction and renewed motion for a directed verdict after the conclusion of all evidence. 12 The record contains a corrected order because the circuit court failed to remove an old cause number on the previous order.

7 ¶15. McDowell appealed on August 12, 2019,13 raising the following issues: (1) whether

the court erred when it failed to sustain McDowell’s motion for a directed verdict based on

the insufficiency of the evidence to support the State’s case regarding first-degree murder;

(2) whether the circuit court committed reversible error when the court refused a jury

instruction of self-defense; (3) whether the court erred in refusing to limit the jury

instructions to only manslaughter and justifiable homicide; (4) whether the State knowingly

presented false evidence or failed to correct the false impression of witness testimony; and

(5) whether McDowell’s counsel provided ineffective assistance of counsel.14 After

reviewing the record, we find that there was no reversible error and therefore affirm

McDowell’s convictions and sentences.

Standard of Review

¶16. In determining whether the evidence is sufficient, “[t]he relevant question is whether

‘any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.’” Calloway v. State, 281 So. 3d 909, 914 (¶16) (Miss. Ct. App. 2019)

(quoting Green v. State, 269 So. 3d 75, 79 (¶12) (Miss. 2018)). “A conviction is sufficiently

supported when it can be established, beyond a reasonable doubt, that every element of the

13 On September 16, 2019, McDowell moved to proceed pro se and void any motion filed by his indigent appeal attorney. This Court ordered that McDowell’s request be held in abeyance until the circuit court conducted a hearing on the record to determine whether he intelligently and voluntarily waived his right to counsel. See M.R.A.P. 6(c)(2). On November 1, 2019, the circuit court relieved McDowell’s appellate counsel of his duty after finding that McDowell intelligently and voluntarily waived his right to counsel. 14 McDowell filed his appellant’s brief with a single issue. Prior to the appellee’s filing its brief, McDowell filed a supplemental brief with the remaining issues.

8 offense was present.” Phillips v. State, 285 So. 3d 685, 692 (¶26) (Miss. Ct. App. 2019),

cert. denied, 284 So. 3d 754 (Miss. 2019). “We will reverse only where with respect to one

or more of the elements of the offense charged, the evidence so considered is such that

reasonable and fair-minded jurors could only find the accused not guilty.” McCray v. State,

263 So. 3d 1021, 1029 (¶24) (Miss. Ct. App. 2018).

¶17. “Jury instructions are generally within the discretion of the trial court, and the settled

standard of review is abuse of discretion.” Johnson v. State, 252 So. 3d 597, 599 (¶8) (Miss.

Ct. App. 2017) (quoting Moody v. State, 202 So. 3d 1235, 1236-37 (¶7) (Miss. 2016)). This

court review jury instructions as a whole and will not reverse the trial court when the jury

instructions, “taken as a whole, fairly-although not perfect-announce the applicable primary

rules of law.” Id. (quoting Bailey v. State, 78 So. 3d 308, 315 (¶20) (Miss. 2012)).

¶18. The standard of review for a claim of denial of due process based on the admission

of false testimony is a three-part analysis: “(1) that a witness for the State testified falsely;

(2) that such testimony was material; and (3) that the prosecution knew that the testimony

was false.” Cooper v. State, 200 So. 3d 1065, 1076 (¶42) (Miss. Ct. App. 2016) (quoting

Thomas v. State, 45 So. 3d 1217, 1222 (¶21) (Miss. Ct. App. 2010)).

¶19. The standard of review for claims of ineffective assistance of counsel is de novo.

Latham v. State, 299 So. 3d 768, 772 (¶12) (Miss. 2020). “To prevail on an ineffective-

assistance-of-counsel claim, a defendant must prove that counsel’s performance was both

deficient and prejudicial.” Id. (emphasis added) (quoting Stevenson v. State, 283 So. 3d 697,

700 (¶10) (Miss. 2019)).

9 Discussion

I. Whether the circuit court erred in denying McDowell’s JNOV motion.

¶20. McDowell argues that the State failed to establish each and every element of first-

degree murder beyond a reasonable doubt. We disagree.

¶21. This Court has stated that motions for a JNOV challenge the sufficiency of evidence

presented at trial. Strickland v. State, 215 So. 3d 514, 516 (Miss. Ct. App. 2017) (citing

Singleton v. State, 948 So. 2d 465, 472 (¶16) (Miss. Ct. App. 2007)). “All evidence

supporting a guilty verdict is accepted as true, and the prosecution must be given the benefit

of all reasonable inferences that can be reasonably drawn from the evidence.” Williams v.

State, 269 So. 3d 192, 195 (¶8) (Miss. Ct. App. 2018) (quoting Jerninghan v. State, 910 So.

2d 748, 751 (¶6) (Miss. Ct. App. 2005)). We will reverse a conviction “only where, with

respect to one or more of the elements of the offense charged, the evidence so considered is

such that reasonable and fair-minded jurors could only find the accused not guilty.” Lacey

v. State, No. 2019-KA-00529-COA, 2020 WL 5089425, at *5 (¶18) (Miss. Ct. App. 2020)

(citing Jerninghan, 910 So. 2d at 751 (¶6)), cert denied, Order, No. 2019-CT-00529-SCT

(Miss. Feb. 4, 2021). “The critical inquiry is whether the evidence shows ‘beyond a

reasonable doubt that the accused committed the act charged, and that he did so under such

circumstances that every element of the offense existed.’” Id. (quoting O’Donnell v. State,

173 So. 3d 907, 916 (¶20) (Miss. Ct. App. 2015)). “[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.” Roby v.

10 State, 183 So. 3d 857, 869 (¶43) (Miss. 2016).

¶22. McDowell was convicted under Mississippi Code Annotated section 97-3-19(1)(a),

which defines first-degree murder as the following: “The killing of a human being without

the authority of law by any means or in any manner . . . [w]hen done with deliberate design

to effect the death of the person killed, or of any human being[.]” In order to prove first-

degree murder, the State must prove beyond a reasonable doubt that McDowell (1) killed

Deverick; (2) without authority of law; and (3) did so with deliberate design to effect

Deverick’s death.

¶23. In this case at bar, the court properly instructed the jury on the elements of first-degree

murder:

Jury Instruction S-1

If you find from the evidence in this case beyond a reasonable doubt that: 1) On or about February 27, 2017, in the First Judicial District of Harrison County, Mississippi, 2) the Defendant, McDowel [sic] WILSON MCDOWELL, did willfully, feloniously and without authority of law, kill and murder Deverick Johnson, a human being, 3) with deliberate design to effect the death of Deverick Johnson, 4) and not in necessary self-defense, then you shall find the Defendant, McDowell [sic] WILSON MCDOWELL, Guilty of First Degree Murder, Count I. If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant Not Guilty of First-Degree Murder, Count I.

The court also instructed the jury on the meaning of “deliberate design”:

Jury Instruction S-3

“Deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, or contemplate. “Deliberate design” to kill a person may be formed very quickly and perhaps only moments before the act of killing the person. However, a “deliberate design” cannot be formed at the

11 very moment of the fatal act.

¶24. Here, accepting all the evidence as true and favorable to the State, we find that the

evidence was sufficient for a jury to find that McDowell killed Deverick with deliberate

design without authority of law. The State presented seventeen witnesses, including key

witnesses Charity, Mike, Jackie, and Devin who were all at the scene of the crime at the time

of the shooting. All of these witnesses testified that there was no yelling, arguing, tussling,

fighting, or scuffling prior to hearing gunshots. Furthermore, all the witnesses testified that

McDowell ran to Charity’s car after the shooting but continued to fire shots at other people

on the street. Charity and Mike testified that once McDowell made it back to the car, he

admitted that he had shot Deverick. They also testified that McDowell pointed the gun at

Mike and instructed him to drive away from the scene while waving the gun at both Mike

and Charity.

¶25. Jackie specifically testified that while McDowell was in the car with her and

Deverick, there was “no yelling, threats, fight, or struggle” between Deverick and McDowell,

and neither of them appeared to be angry. But Jackie stated after a moment of silence,

McDowell opened the door, shook Deverick’s hand, and told him he would see him later.

Suddenly, she heard a gunshot that scared her. She then saw Deverick’s body shaking.

Jackie looked back at McDowell who gave her what she described as an “oh, crap” look and

then ran away from the vehicle.

¶26. Also, McDowell’s actions and statements were contradictory. In his initial statement

to the police, McDowell said that he was watching Dennis’s children at the time of the

12 shooting. However, at trial, McDowell testified that he shot Deverick but did so “out of self-

defense.” Yet McDowell did not attempt to call the police or seek help. Instead, he ran to

Charity’s car while continuing to fire gunshots in the air. McDowell testified why he did

this:

Maybe they are fixing to try to jump out the car and fixing to try to shoot at me too and fixing to try to come kill me and rob me too, so that’s why I started shooting at the other cars so they wouldn’t try to run down and come rob me too, and I jumped in the car.

McDowell admitted that he had not seen anyone else who had a gun at the scene of the crime,

but he still believed that he was being set up for robbery. He presented no evidence to

support this allegation. Also, when the police arrived at Dennis’s house to search for Mike

and Charity, McDowell lied to the police about his identity, stating that his name was Raul

McDowell. After the shooting, McDowell hid the gun that he had used to shoot Deverick,

which was eventually recovered by the police. When questioned by the police, instead of

admitting to the murder as he did at trial, he said he was babysitting Dennis’s children.

McDowell never told the police that he shot Deverick in self-defense as he later testified at

trial.

¶27. Furthermore, Charity and Allison Pujul, a Harrison County Sheriff’s Department

correctional officer, testified that when Charity and McDowell were in jail, McDowell

threatened Charity in the hallway by stating, “I should have killed you, too.” McDowell also

admitted to this encounter at trial.

¶28. In reviewing the evidence in the light most favorable to the prosecution, we find that

a rational trier of fact in this case could have found McDowell guilty of first-degree murder

13 beyond a reasonable doubt and that he was not acting in self-defense. Finding that there was

sufficient evidence to support McDowell’s conviction, we find that this issue is without

merit.15

II. Whether the circuit court committed reversible error when the court refused a jury instruction of imperfect self-defense theory.

¶29. McDowell argues that the circuit court committed reversible error when it refused his

jury instruction on the theory of imperfect self-defense. We disagree.

¶30. “Jury instructions are generally within the discretion of the trial court, and the settled

standard of review is abuse of discretion.” Morton v. State, 246 So. 3d 895, 903 (¶18) (Miss.

Ct. App. 2017) (citing Moody v. State, 202 So. 3d 1235, 1236-37 (¶7) (Miss. 2016)). When

read together as a whole, “if the jury instructions fairly state the law of the case and create

no injustice, then no reversible error will be found.” Id. (quoting Bailey v. State, 78 So. 3d

308, 315 (¶20) (Miss. 2012)). “[T]he court may refuse an instruction which incorrectly states

the law, is covered fairly elsewhere in the instructions or is without foundation in the

evidence.” Cruz v. State, No. 2018-KA-00277-COA, 2020 WL 1870378, at *3 (¶15) (Miss.

Ct. App. 2020) (quoting Davis v. State, 18 So. 3d 842, 847 (¶15) (Miss. 2009)), cert denied,

304 So. 3d 1121 (Miss. 2020).

15 Although McDowell argues that the Weathersby rule is relevant, it is inapplicable in this case. The Mississippi Supreme Court established that “where the defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their version, if reasonable, must be accepted as true, unless substantially contradicted in material particulars by a credible witness or witnesses for the state, or by the physical facts or by the facts of common knowledge.” Owens, 269 So. 3d at 1285 (¶21) (quoting Weathersby v. State, 165 Miss. 207, 147 So. 481, 482 (1933)). Here, there were clearly numerous credible witnesses who contradicted McDowell’s claims.

14 ¶31. Mississippi Code Annotated section 97-3-15(f) (Supp. 2016) states that the killing of

a human being is justifiable “[w]hen committed in the lawful defense of one’s own person

or any other human being, where there shall be reasonable ground to apprehend a design to

commit a felony or to do some great personal injury, and there shall be imminent danger of

such design being accomplished.”

¶32. “Self defense or justifiable homicide is a defense to a criminal act.” Brown v. State,

222 So. 3d 302, 307 (¶20) (Miss. 2017) (quoting Ronk v. State, 172 So. 3d 1112, 1126 (¶22)

(Miss. 2015)). “The apprehension or fear that will justify killing another in self-defense must

appear objectively real to a reasonable person of average prudence.” Nelson v. State, 284 So.

3d 711, 716 (¶19) (Miss. 2019) (quoting Batiste v. State, 121 So. 3d 808, 845 (¶74) (Miss.

2013)). “The actor’s apprehension must be objectively reasonable before his homicide is

justified.” Id. (quoting Cook v. State, 467 So. 2d 203, 207 (Miss. 1985)). In other words,

would a reasonable person have feared for his life?

¶33. “Unlike true self-defense, imperfect self-defense is not a defense to a criminal act.”

Nelson v. State, 284 So. 3d 711, 717 (¶20) (Miss. 2019) (quoting Ronk, 172 So. 3d at 1126

(¶22)). But it may change the nature of the crime for which the defendant can be found

guilty. “Rather, under the theory of imperfect self-defense, ‘an intentional killing may be

considered manslaughter if done without malice but under a bona fide (but unfounded) belief

that it was necessary to prevent death or great bodily harm.’” Bernard v. State, 288 So. 3d

301, 313 (¶45) (Miss. 2019) (quoting Ronk, 172 So. 3d at 1126 (¶22)). There must be

evidence that the defendant “subjectively” believed in his own mind that he was in imminent

15 danger of death or great bodily harm.” Cruz, 2020 WL 1870378, at *4 (¶18) (quoting Cook,

467 So. 2d at 207).

¶34. McDowell tendered what he claimed as an “imperfect self-defense” jury instruction

that was refused:

Jury Instruction D-3

The Court instructs the jury that the Defendant, McDowell [sic] Wilson McDowell, was entitled to act upon appearances. If the conduct of Deverick Lee Johnson, was such as to induce in the mind of a reasonable person a fear that death or great bodily harm was about to be inflicted by Deverick Lee Johnson, upon McDowell [sic] Wilson McDowell, situated as was the Defendant, McDowell [sic] Wilson McDowell, under all the circumstances then existing, and viewed from the standpoint of the Defendant, McDowell [sic] Wilson McDowell, then it does not matter if there was no danger. If you the jury believe that the Defendant, McDowell [sic] Wilson McDowell, acted in self-defense from a real and honest conviction that he was in danger of death or great bodily harm, then you, the jury, shall find the Defendant, McDowell [sic] Wilson McDowell, “Not Guilty”, even though you, the jury, believe that at the time McDowell [sic] Wilson McDowell was mistaken and was not in any great danger.

The State objected to McDowell’s imperfect jury instruction and reminded the court that it

had given a self-defense jury instruction:

Jury Instruction S-5

The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to believe that the victim intended to kill the defendant or to do him some great bodily harm, and in addition to this, he must have reasonable grounds to believe that there is imminent danger of such act being accomplished. It is for the jury to determine the reasonableness of the grounds upon which the defendant acts. If you, the jury, unanimously find that the defendant acted in self-defense, then it is your sworn duty to return a verdict in favor of the defendant.

McDowell proposed another instruction on manslaughter, incorporating his alleged imperfect

16 self-defense instruction theory, which the court gave:

Jury Instruction D-13

The Court instructs the jury that if you find that the State has failed to prove all of the essential elements of the crime of Second Degree Murder, you may consider the lesser charge of Manslaughter. However, it is your duty to accept the law given to you by the Court and if the facts and the law warrant a conviction of Second Degree Murder, then it is your duty to make such a finding uninfluenced by your power to find for a lesser offense. This provision is not designed to relieve you from the performance of an unpleasant duty. It is included to prevent a failure of justice if the evidence fails to prove the original charge, but does justify a verdict for the lesser crime.

Therefore, if you find the Defendant Not Guilty of Second Degree Murder, then you shall proceed with your deliberations to decide whether the State has proved beyond a reasonable doubt all of the elements of the lesser crime of Manslaughter.

If you find from the evidence beyond a reasonable doubt that:

1. On or about February 27, 2017, in the First Judicial District of Harrison County, Mississippi;

2. The Defendant, McDowell [sic] WILSON MCDOWELL, did shoot and take the life of Deverick Lee Johnson with an actual, genuine belief that the killing was necessary in order to protect himself from great bodily harm or death, but;

3. That belief by the Defendant was not reasonable under the circumstances, then you shall find the Defendant, McDowell [sic] WILSON MCDOWELL, guilty of Manslaughter.

If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant, McDowell [sic] WILSON MCDOWELL, Not Guilty of Manslaughter.

¶35. Not only was the jury given a self-defense instruction, but despite McDowell’s claim,

the jury was also given an instruction on manslaughter that incorporated the element of his

imperfect self-defense claim. Therefore, the court did not err in refusing instruction D-3

17 because the jury is charged with following all the jury instructions together.

¶36. Additionally, the court was correct in refusing instruction D-3 because it was an

improper statement of the law. It contains language that implies that McDowell’s subjective

belief alone is a defense to the crime of murder. However, as previously stated, subjective

beliefs are not a defense to murder but merely a basis for providing a manslaughter

instruction. Therefore, this issue is without merit.

III. Whether the court erred in refusing to limit the jury instructions to only manslaughter and justifiable homicide.

¶37. The jury was properly instructed on the elements of first-degree murder, second-

degree murder, self-defense, and imperfect self-defense manslaughter. McDowell argues

that the circuit court erred in refusing to limit the jury instructions to only manslaughter and

justifiable homicide. We disagree.

¶38. First, there is no crime of justifiable homicide. In Ferrell, the Mississippi Supreme

Court made it clear that justifiable homicide is not a punishable offense:

[O]ur law provides that the killing of a human being is not unlawful when committed in the defense of one’s own person where there be reasonable grounds to apprehend a design on the part of the person killed to do some great personal injury and coupled with imminent danger of such design being accomplished. Miss. Code Ann. § 97-3-15(f) (Supp. 1984). Such a killing is in our law labeled justifiable homicide and is not punishable.

Ferrell v. State, 733 So. 2d 788, 791 (¶14) (Miss. 1999) (emphasis added) (quoting Burge

v. State, 472 So. 2d 392, 395 (Miss. 1985)). “Justifiable homicide is a defense to a criminal

act.” Brown, 222 So. 3d at 307 (¶20) (quoting Ronk, 172 So. 3d at 1126 (¶22)). The jury

was properly instructed on self-defense, and there was no need for any justifiable homicide

18 instruction.

¶39. Second, the court correctly instructed the jury on the other instructions. The court

correctly gave an instruction of first-degree murder. As previously noted, pursuant to

Mississippi Code Annotated section 97-3-19, there was sufficient evidence to prove

McDowell guilty of first-degree murder. In addition, there was sufficient evidence presented

to support the court’s giving of the instructions on the other crimes because they are lesser

offenses to first-degree murder. The court also properly gave a proper second-degree murder

jury instruction pursuant to Mississippi Code Annotated section 97-3-19(1)(b). The jury was

given an instruction on manslaughter pursuant to Mississippi Code Annotated section 97-3-

47 (Rev. 2014). Therefore, the circuit court did not err in giving the instructions to the jury.

IV. Whether the State knowingly presented false evidence or failed to correct the false impression of witness testimony.

¶40. McDowell argues that the State knowingly presented false evidence through Jackie’s

testimony regarding whether Deverick had a gun. McDowell raises this issue for the first

time on appeal. “Failure to raise an issue at trial bars consideration on an appellate level.”

McKnight v. State, 187 So. 3d 635, 645 (¶24) (Miss. Ct. App. 2015) (quoting Parisi v. State,

119 So. 3d 1061, 1066 (¶19) (Miss. Ct. App. 2012)). Notwithstanding the procedural bar,

we find this issue is without merit.

¶41. “The prosecution violates the defendant’s rights under the Fourteenth Amendment to

the United States Constitution when it knowingly presents false evidence or allows it to go

uncorrected when it appears.” Robinson v. State, 247 So. 3d 1212, 1235 (¶59) (Miss. 2018).

McDowell must demonstrate “(1) that a witness for the State testified falsely; (2) that such

19 testimony was material; and (3) that the prosecution knew that the testimony was false.”

Humphrey v. State, 159 So. 3d 560, 566 (¶21) (Miss. Ct. App. 2014) (quoting Thomas v.

State, 45 So. 3d 1217, 1222 (¶21) (Miss. Ct. App. 2010)). A new trial is appropriate when

the false testimony has “any reasonable likelihood” that may “affect the judgment of the

jury.” Robinson, 247 So. 3d at 1235 (¶59) (citing Napue v. Illinois, 360 U.S. 264, 271

(1959)). Furthermore, the testimony should be “material to the outcome of the case.” Id. at

1236 (¶60).

¶42. McDowell has not met the burden of proving that the State knowingly produced false

testimony through Jackie. To support his contention that Jackie falsely testified, McDowell

attached an exhibit of an incomplete investigative report to his supplemental brief. But the

report is not included the record.16 Additionally, even if we were to consider the report, it

does not prove that Jackie testified falsely. Officer Sandy Dyess’s partial investigative report

did not include any statements from Jackie. Because McDowell has not shown that Jackie’s

testimony was false, or that the State had improperly presented any false evidence, this issue

is without merit.

V. Whether McDowell was denied effective assistance of counsel.

¶43. McDowell argues that his trial counsel failed to interview the victim’s mother or, in

the alternative, failed to make use of the mother’s statement to law enforcement, which

would have discredited Jackie. McDowell asserts that without Jackie’s testimony, the State

would have no evidence that he committed murder. Additionally, McDowell argues that his

16 The scope of this review on appeal is confined to the record before the trial court. Robinson, 247 So. 3d at 1229 (¶38).

20 trial counsel failed to utilize a document showing that he made a 911 call immediately after

the killing occurred. Furthermore, McDowell argues that his trial counsel failed to use the

GPS coordinates of his and Deverick’s phones.

¶44. In order to prevail on a claim of ineffective assistance, McDowell must demonstrate

“(1) that his trial attorney’s performance was deficient” and (2) that this deficiency was

prejudicial to his defense. White v. State, 59 So. 3d 633, 636 (¶12) (Miss. Ct. App. 2011)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)) (other citation omitted).

McDowell must also show that “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Hills v. State,

101 So. 3d 691, 693 (¶9) (Miss. Ct. App. 2012) (quoting Hannah v. State, 943 So. 2d 20, 24

(¶6) (Miss. 2006)).

¶45. Mississippi Rule of Appellate Procedure 22(b) states the following regarding raising

post-conviction issues to the appellate court:

Issues which may be raised in post-conviction proceedings may also be raised on direct appeal if such issues are based on facts fully apparent from the record. Where the appellant is represented by counsel who did not represent the appellant at trial, the failure to raise such issues on direct appeal shall constitute a waiver barring consideration of the issues in post-conviction proceedings.

Because McDowell is not represented on appeal by the attorney who represented him at trial,

under this Rule McDowell is required to raise any issues in his direct appeal that are based

on facts fully apparent on the record or waive those issues in any subsequent post-conviction

relief (PCR) proceeding, Branch v. State, 882 So. 2d 36, 49 (¶18) (Miss. 2004), including the

issue of ineffective assistance of counsel.

21 ¶46. Despite the requirement of Rule 22(b) that appellate counsel raise issues that are

apparent on the record, it is still unusual for the appellate court to consider the issue of

ineffective assistance of counsel in a direct appeal because there is usually insufficient

evidence in the record to do so. Ware v. State, 301 So. 3d 605, 615 (¶45) (Miss. 2020). The

Mississippi Supreme Court has held that “[o]rdinarily, claims of ineffective assistance of

counsel are not addressed on direct appeal.” Owens v. State, 269 So. 3d 1280, 1288 (¶29)

(Miss. Ct. App. 2018) (quoting Pace v. State, 242 So. 3d 107, 118 (¶28) (Miss. 2018)), cert.

denied, 268 So. 3d 1282 (Miss. 2019). The Supreme Court stated that “there is usually

insufficient evidence within the record to evaluate the claim.” Id. (quoting Wilcher v. State,

863 So. 2d 776, 825 (¶171) (Miss. 2003)). We address the merits of an ineffective-

assistance-of-counsel claim on direct appeal “only in instances where ‘(1) the record

affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate

that the record is adequate to allow the appellate court to make the finding without

consideration of the findings of fact of the trial judge.’” Id. (quoting Collins v. State, 221 So.

3d 366, 372 (¶19) (Miss. Ct. App. 2016)). However, “if the defendant is represented by

counsel who did not represent him at trial, and the facts supporting the claim are fully

apparent from the appellate record, the Court may address the issue.” Williams v. State, No.

2019-KA-01007-COA, 2020 WL 7350420, at *4 (¶23) (Miss. Ct. App. Dec. 15, 2020)

(motion for rehearing pending).

¶47. After reviewing the record, we do not find it prudent to address the ineffective-

assistance-of-counsel issue at this time. The parties also did not stipulate that the record is

22 adequate to allow this Court to make the finding without consideration of the further findings

of fact of the trial judge, nor do we find the record before us is sufficient to affirmatively

show an ineffective assistance of counsel. Therefore, we find this issue best left for a motion

for PCR and decline to address the ineffective assistance of counsel issue.

Conclusion

¶48. Finding no merit to McDowell’s claims, we affirm his convictions and sentences.

McDowell’s claims of ineffective assistance of counsel are dismissed without prejudice to

his right to raise those issues in a properly filed PCR motion.

¶49. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE AND McCARTY, JJ., CONCUR. SMITH, J., NOT PARTICIPATING.