IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2024-KA-01296-COA
JARMARION THOMPSON A/K/A JAMARION APPELLANT THOMPSON
v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/24/2024 TRIAL JUDGE: HON. ALAN D. LANCASTER COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: WILLIAM ADAM HOPPER NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 08/11/2026 MOTION FOR REHEARING FILED:
EN BANC.
WEDDLE, J., FOR THE COURT:
¶1. An Attala County Circuit Court jury found Jarmarion Thompson guilty of first-degree murder for the fatal shooting of Jamel Davis. The Attala County Circuit Court sentenced Thompson to serve thirty-five years in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Thompson argues that the circuit court erred by allowing the lead investigator to testify about a statement the victim’s brother made regarding how the shooting occurred and by refusing the defense’s proposed jury instruction about the defendant’s right to stand his ground. Upon review, we find no reversible error. We
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therefore affirm Thompson’s conviction and sentence for first-degree murder.
FACTS
¶2. Around 1:30 a.m. on July 20, 2023, Deputy Jacob Edwards with the Attala County Sheriff’s Office and Captain Matt Ward with the Kosciusko Police Department were both on duty and parked at a local business when they heard multiple gunshots. As the law enforcement officers drove to the suspected area of the gunshots, they received a call about a shooting victim at a local residence. Upon arriving at the scene, the officers saw a man, later identified as Davis, lying in the residence’s driveway. Davis had suffered a gunshot wound to his chest. Davis told Captain Ward that he did not believe he had much longer to live. In response to Captain Ward’s questions, Davis said that he had been standing by some bushes in his front yard when he was shot. Davis further said that he believed the shot had been fired from some nearby woods.
¶3. While Deputy Edwards and Captain Ward were canvassing the surrounding area, they received a report about a vehicle, later identified as a 2018 gray Nissan Altima, abandoned in a ditch on a nearby street. As the officers pulled up to the Altima, they saw one man, later identified as Taveon Rimmer, leaning into the passenger side window of the vehicle. The officers saw a second man, later identified as Billy Brown, walking down the street. After detaining both Rimmer and Brown, the officers noticed a rifle (an AR-15) leaning against a tree about five feet away from the vehicle. After Deputy Edwards collected the rifle, Captain Ward ran a search on the serial number and stowed the weapon in his patrol car. Captain Ward later turned over possession of the AR-15 to Greg Collins, the lead
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investigator with the Kosciusko Police Department.
¶4. When Investigator Collins arrived at the scene of Davis’s shooting, Davis had been loaded into an ambulance. Davis’s brother, Ferrell Bailey, lived with Davis and had been with him at the time of the shooting. Bailey remained at the crime scene and spoke with investigators about the shooting. As Investigator Collins walked around the area of the shooting, he observed numerous .40-caliber shell casings in the front yard of Davis and Bailey’s residence. He also noticed some AR-15 rifle shell casings at the wood line near the property.
¶5. As Investigator Collins canvassed the crime scene, he received a phone call from Lieutenant Jerry Erving with the Kosciusko Police Department. Lieutenant Erving had responded to a dispatch call about another shooting victim at the local hospital. At that point in time, law enforcement had no knowledge as to whether the new victim was related to Davis’s shooting or had been involved in a separate incident. Upon arriving at the hospital, Lieutenant Erving learned that the victim, Thompson, was only seventeen years old. After obtaining consent from Thompson’s mother, Lieutenant Erving interviewed Thompson about his gunshot injuries. Thompson stated that he was driving in his car with a female friend when he heard gunshots. Thompson said that he exited his car and walked toward the wood line. Thompson stated that he then realized he had been shot. Thompson denied that he had fired a weapon. Because Thompson’s account of his shooting placed him on a street near Davis and Bailey’s residence, Lieutenant Erving passed along the information about the incident to Investigator Collins.
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¶6. Upon receiving Lieutenant Erving’s phone call about Thompson, Investigator Collins turned the crime scene over to another member of the Kosciusko Police Department and drove to the hospital. After Investigator Collins informed Thompson of his Miranda rights,1 Thompson gave Investigator Collins a videotaped statement about the events leading to his injuries. Unlike what he told Lieutenant Erving, Thompson told Investigator Collins that he had been driving in his car with his friend, Rimmer, when two guys began shooting at them. Thompson stated that he exited his car and collapsed as he ran away. According to Thompson, Rimmer retrieved an AR-15 from the vehicle, went to the nearby wood line, and fired the weapon.
¶7. Following Thompson’s statement, Investigator Collins informed Thompson that he was going to perform a gunshot residue test on Thompson to send to the Mississippi Forensics Laboratory for analysis. Although Thompson had initially denied firing a weapon, he subsequently changed his story. Thompson admitted to Investigator Collins that he, not Rimmer, had fired the AR-15 after the other two men had shot their weapons at him.
¶8. After completing the gunshot residue test, Investigator Collins again asked Thompson to recount the events that had led to Thompson’s injuries. This time, Thompson told Investigator Collins that after the two men shot at him and ran away, he retrieved the AR-15 from his car, went to the wood line nearby, and fired the weapon at the two men. Thompson stated that he was shot as he attempted to run away. Although Thompson made it back to his vehicle, he stated that he backed the car into a ditch.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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¶9. After completing his interview with Thompson, Investigator Collins returned to the crime scene. Law enforcement officers collected multiple .40-caliber shell casings where Davis and Bailey fired from their front yard, as well as multiple shell casings from Thompson’s AR-15 at the nearby wood line. At Thompson’s subsequent trial for Davis’s shooting death, Investigator Collins testified about his investigation. On cross-examination, Thompson’s attorney elicited testimony that “it was a hostile environment” when Investigator Collins arrived at the crime scene. Thompson’s attorney further elicited testimony that Bailey had made an excited and very emphatic utterance in Investigator Collins’s presence, although the State objected to Investigator Collins testifying about the exact words Bailey had uttered.
¶10. Thompson’s attorney asked if Investigator Collins had questioned Bailey about any weapons present at the crime scene. Investigator Collins initially responded that Bailey said someone had shot at him and the victim, which corresponded with the statement Davis made to the first officers to arrive at the crime scene. Following Investigator Collins’s response, Thompson’s attorney emphasized that he was only asking about what Bailey had said regarding any weapons present at the crime scene. Investigator Collins then responded that Bailey had admitted to putting the weapons he and Davis had fired under a bedroom mattress inside the residence.
¶11. Based on Bailey’s disclosure, Investigator Collins obtained a warrant to search the residence. Consistent with Bailey’s statement, Investigator Collins recovered two .40-caliber handguns from underneath a bedroom mattress. At least one of the weapons still had live
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ammunition inside it. In response to additional questioning on cross-examination, Investigator Collins explained that he did not have the weapons dusted for fingerprints because Bailey admitted that he and Davis had fired the weapons from the residence’s front yard, which was where law enforcement had recovered the .40-caliber shell casings.
¶12. On redirect examination, the State asked Investigator Collins what Bailey had disclosed regarding how the shooting occurred. Thompson’s attorney immediately raised a general objection to the testimony. Thompson’s attorney argued that he had limited his questions on cross-examination to statements Bailey had given regarding weapons concealed under the bedroom mattress. The circuit judge found, however, that the defense had opened the door to the issue of how the shooting occurred by asking Investigator Collins about the concealed weapons. The circuit judge concluded that in answering the defense’s questions regarding the weapons, Investigator Collins had “also [been] talking about the shooting.” As a result, the circuit judge overruled the defense’s objection and allowed Investigator Collins to testify as to what Bailey had said about Davis’s shooting.
¶13. According to Investigator Collins, Bailey said that he and Davis were standing in their front yard when a gray car drove by the residence multiple times. Bailey eventually saw the car pull onto a nearby street. He then heard the sound of doors closing and saw someone in the woods. Bailey told Investigator Collins that he and Davis ran to the back of their house. As they returned to the front yard, someone shot at them from the woods. Bailey told Investigator Collins that he and Davis then returned fire toward the wood line.
¶14. Investigator Collins obtained a search warrant for Thompson’s Altima, where he
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recovered a gunstock from the back seat of the vehicle. Investigator Collins then conducted another interview with Thompson on August 31, 2023. Thompson again waived his Miranda rights and agreed to a recorded interview with Investigator Collins. Investigator Collins asked Thompson to share his account of the events leading to Davis’s shooting. Thompson’s version of events differed from those he had previously provided to law enforcement. Thompson stated that after dropping off a female friend, he drove by two men who began shooting at him. Thompson said that he was injured by the gunfire and attempted to flee the scene in his vehicle. Thompson stated that he reversed his Altima to leave the scene, but the car became stuck in a ditch. Thompson said that by this point the two men had retreated to the nearby woods. Thompson stated that he retrieved his AR-15 from his vehicle, proceeded to the wood line, and began shooting at the two men.
¶15. In light of Thompson’s statement, Investigator Collins canvassed the area along the street where Thompson claimed the shooting began. Despite searching multiple times, Investigator Collins did not find any shell casings to corroborate Thompson’s story that the two men had shot at him from the roadway. Instead, Investigator Collins reiterated that the only two places where he recovered shell casings were in the front yard of Davis and Bailey’s residence and the spot along the wood line where Thompson admitted he had fired his AR- 15.
¶16. Law enforcement officers arrested Thompson for Davis’s death. At trial, Thompson testified in his own defense. Thompson stated that he and Davis became interested in the same young woman. According to Thompson, Davis sent him threats over the Internet and
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social media and warned him to stay away from the young woman. Thompson stated that the day before the shooting, Bailey also sent him a threatening message over social media. Thompson testified that although he did not know Davis and Bailey personally, he was aware that they had a reputation for violence. As a result, Thompson stated that after receiving Davis’s and Bailey’s threats, he began to drive around with the AR-15 in the back seat of his vehicle.
¶17. Thompson testified that on the night of the shooting, he had driven to a friend’s home. Thompson explained that after he left his friend’s home, he turned onto another street and encountered two people standing in the road. Although it was dark outside, Thompson’s vehicle headlights illuminated the two people. Thompson testified that as a result, he could see that the two people were holding weapons.
¶18. Thompson stated that he opened his car door and asked the people what they were doing. Neither individual answered Thompson, but he testified that he was finally able to identify the two men as Davis and Bailey. Thompson stated that Bailey held a handgun, and Davis held an AK-47. Thompson further stated that he sustained a gunshot to his left arm as he tried to get back into his car. Thompson said that he tried to flee the scene but backed his Altima into a ditch. Thompson testified that Davis and Bailey were still standing in the same spot, and he feared for his life.
¶19. Thompson stated that he retrieved his AR-15 from the back seat of his car. Davis and Bailey had made it to the nearby wood line, so Thompson followed them to the woods. Thompson stated that by the time he reached the wood line, Davis and Bailey had reached
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their front yard. According to Thompson, as Davis raised his AK-47 to shoot him, Thompson “opened fire” and emptied his fifteen-round magazine. Thompson stated that Davis and Bailey began shooting at him as well. Thompson testified that as far as he knew, neither Davis nor Bailey had been injured during the exchange of gunfire.
¶20. After running out of ammunition, Thompson stated that he walked back toward his Altima. Another vehicle approached him, and after learning that Thompson had been shot, the driver transported Thompson to the hospital. Hospital staff administered treatment to Thompson and gave him medicine for his pain. Thompson stated that he was still receiving treatment at the time that Investigator Collins first interviewed him at the hospital. Thompson admitted that over the course of his various interviews with Investigator Collins, he provided several different versions of the events leading to his injuries and Davis’s shooting. Thompson stated, however, that in each version he maintained that Bailey and Davis had shot at and injured him first.
¶21. On cross-examination, Thompson stated that he had “been aware of” Davis and Bailey for about a year before the shooting occurred. He further stated that he could identify the two men by sight and knew where they lived. About a month before the shooting, Thompson began dating a young woman. Thompson stated that Davis was also dating the same woman and learned about the relationship around four days before the shooting, when the woman posted a picture on social media of herself and Thompson. Thompson stated that after the woman posted the picture on social media, he began to receive threats from Davis.
¶22. When questioned by the State about another shooting that occurred at Davis and
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Bailey’s house just prior to Davis’s death, Thompson denied any involvement. In response to Thompson’s testimony that his AR-15 could shoot fifteen rounds at a time, the State asked how law enforcement had recovered twenty-one shell casings at the crime scene from Thompson’s weapon. In replying to the State’s questions, Thompson denied any knowledge of where the additional shell casings had come from, and he again denied any involvement in the earlier shooting that had occurred at Davis and Bailey’s residence.
¶23. Thompson admitted on cross-examination that on the night of the shooting, he snuck out of his house after his curfew and picked up his friend, Rimmer. Thompson also admitted that instead of avoiding the streets around Davis and Bailey’s residence, he drove on the roads near their home on the night of the shooting. On direct examination, Thompson had alleged that when he encountered Davis and Bailey in the road and exited his Altima, he kept his driver’s side door between himself and the two other men. Thompson had also alleged that Davis and Bailey shot him as he attempted to get back into his vehicle. Despite his description of events, Thompson admitted on cross-examination that “there were no bullet holes in [his] car” from the shots he claimed that Davis and Bailey initially fired at him. In addition, Thompson agreed with the State that if the men had shot him as he was getting back into his car as he had claimed, he likely “would have been hit in the front of the body” rather than sustaining a gunshot wound to the back of his arm. Thompson denied, however, that he actually fired at Davis and Bailey first from the wood line and then was shot in the back of the arm as he attempted to flee from their return gunfire.
¶24. Thompson conceded that he initially lied to law enforcement about how the shooting
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occurred and only admitted to firing the AR-15 after Investigator Collins got ready to perform the gunshot residue test on him. Thompson also conceded that after Davis and Bailey had allegedly fired at him from the road and then retreated to their residence, he “walked somewhere between 150 to 225 feet to[ward] danger to defend [himself].” In response to the State’s questions, Thompson stated that he had no explanation for why law enforcement had been unable to recover any shell casings from the spot near the road where he said Davis and Bailey had initially shot at him.
¶25. Following its deliberations, the jury found Thompson guilty of first-degree murder for Davis’s death. The circuit court sentenced Thompson to serve thirty-five years in MDOC’s custody.2 Thompson unsuccessfully moved for judgment notwithstanding the verdict or, alternatively, a new trial. Aggrieved, Thompson appeals.
DISCUSSION
I. Right to Confront Witnesses
¶26. Thompson argues that the circuit court erred by allowing Investigator Collins to testify
2 Mississippi Code Annotated section 97-3-21(2)(b) (Supp. 2024), which applied at the time of Thompson’s sentencing in September 2024, provides the following:
A juvenile offender who is convicted of first-degree murder after July 1, 2024, may be sentenced to life imprisonment in the custody of the Department of Corrections if the punishment is so fixed by the jury. If the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at not less than twenty (20) nor more than forty (40) years in the custody of the Department of Corrections.
Thompson was seventeen years old at the time of Davis’s death, and the jury convicted him of first-degree murder after July 1, 2024. As a result, the circuit court sentenced him in accordance with section 97-3-21(2)(b).
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on redirect examination about Bailey’s statement as to how the shooting occurred. Thompson asserts that the testimony regarding Bailey’s statement constituted prejudicial hearsay and violated his fundamental right to confront the witnesses against him. Thompson acknowledges that his trial attorney’s general objection to Investigator Collins’s testimony failed to explicitly reference either hearsay or a violation of the Confrontation Clause. He therefore asks this Court to review the issue for plain error, asserting that “[a] violation of the Confrontation Clause is a violation of a fundamental, substantive right, which seriously affects the fairness, integrity[,] or public reputation of judicial proceedings.” Corbin v. State, 74 So. 3d 333, 337 (¶11) (Miss. 2011) (citations and internal quotation marks omitted); see also Patterson v. State, 422 So. 3d 1062, 1069 (¶33) (Miss. Ct. App. 2025) (“For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affects the fairness, integrity, or public reputation of judicial proceedings.” (quoting Conners v. State, 92 So. 3d 676, 682 (¶15) (Miss. 2012))).
¶27. “Under both the United States Constitution and the Mississippi Constitution, an accused has a right to confront and cross-examine the witnesses against him. The Confrontation Clause bars admission of testimonial hearsay unless the witness is unavailable or the defendant had a prior chance to cross-examine the witness.” Quinn v. State, 398 So. 3d 256, 267 (¶35) (Miss. 2024) (citations and internal quotation mark omitted). Here, nothing in the record reflects that Bailey was unavailable for trial. The record does clearly reflect, however, that Thompson had no prior chance to cross-examine Bailey about the statement he gave regarding how the shooting occurred.
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¶28. We next consider the nature of the statement that Bailey gave to Investigator Collins. “Statements are non-testimonial when they are ‘made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.’” Phillips v. State, 415 So. 3d 583, 592 (¶24) (Miss. 2025) (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)). By contrast, “[t]estimonial statements occur when the ‘circumstances objectively indicate that there is no such ongoing emergency’ and when ‘the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.’” Id. (quoting Davis, 547 U.S. at 822).
¶29. In Phillips, the Mississippi Supreme Court addressed the defendant’s argument that playing an eyewitness’s statements for the jury, which occurred following the admission of a responding officer’s body-camera footage, violated his right to confrontation. Id. at 591
(¶17). Similarly to the present case, the eyewitness in Phillips did not testify at trial, and the supreme court reviewed the matter for plain error. Id. at 591-92 (¶¶17, 22). Before determining whether the disputed statements were testimonial or non-testimonial, the Phillips court noted the following:
The relevant inquiry in determining whether the primary purpose of an interrogation is to meet an ongoing emergency, making statements non-testimonial, is the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred. Courts should further look at whether an ongoing emergency existed at the time of their encounter, the formality of the encounter between the victim and the police, and the statements and actions of both the declarant and the interrogators.
Id. at 593 (¶27) (citation and internal quotation marks omitted).
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¶30. In looking at other cases that discussed similar issues, the Phillips court focused on Michigan v. Bryant, 562 U.S. 344, 348 (2011), where the United States Supreme Court ultimately found that a victim’s statements to law enforcement at the crime scene were non-testimonial. Phillips, 415 So. 3d at 592-93 (¶26). As the Phillips court explained,
[i]n Bryant, police officers responded to a 911 call that a man had been shot, but they did not know why, where, or when the shooting occurred. Further, the officers did not know the location of the shooter or anything else about the circumstances in which the crime had occurred. The officers asked the victims question like what had happened, who had shot him, and where the shooting occurred to allow the police to assess the situation, the threat to their own safety, and possible danger to the potential victim and to the public. In other words, they solicited the information necessary to enable them to meet an ongoing emergency.
Additionally, the Bryant Court considered the informality of the situation and the interrogation. It reflected that the officers arrived to the scene at varying times, and they did not conduct a formal or structured interrogation. The Bryant Court ultimately found that the victim’s statements to the officers on the scene were made during an ongoing emergency, they were not testimonial, and they did not violate Bryant’s Sixth Amendment Confrontation Clause rights.
Id. at 593 (¶¶28-29) (citations and internal quotation marks omitted).
¶31. Consistent with the circumstances presented in Bryant, the Phillips court concluded that the statements contained in the body-camera footage “were made during an ongoing emergency, and the primary purpose of [the witness’s] statements to the officers that night were to ‘assess the situation, the threat to the officers’ safety, and possible danger to the potential victim and to the public.’” Id. at 593-94 (¶30) (quoting Bryant, 562 U.S. at 376). “Also consistent with Bryant, the interrogation by the officers on the scene that night was not structured or formal[,]” and the “responding officers arrived at different times, similar to
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Bryant.” Id. at 594 (¶32). The responding officers also both testified that although the witness in Phillips was not physically injured, he was distraught by what had just occurred. Id. “In conjunction with the fact that Phillips had fled the scene with a weapon,” the supreme court found sufficient record evidence to demonstrate “that the primary purpose of [the witness’s] statements made to officers was to assess the situation and to address the ongoing emergency.” Id. Based on what was known at the time, Phillips, who was “armed and at large, created a possible threat to the officers’ safety and a potential danger to the victim and the public.” Id. at (¶33). For these reasons, the Phillips court deemed the witness statements contained in the admitted body-camera footage non-testimonial and found no violation of Phillips’s right to confront the witnesses against him. Id.
¶32. Unlike its decision in Phillips, our supreme court more recently found in Gibson v. State, No. 2024-KA-00726-SCT, 2026 WL 1830389, at *10 (¶46) (Miss. June 25, 2026), that the circuit court “abused its discretion by allowing large amounts of prejudicial hearsay testimony” from investigators, who were permitted to testify over the defense’s continuing objections “in great detail regarding what they learned during their investigation” from the multiple witnesses they interviewed. The Gibson court reiterated the principle that an officer’s testimony about statements he obtained is admissible when “used to explain why [the officer] did what he did in the course of his investigation” rather than to “prove the truth of the matter asserted[.]” Id. (quoting Dukes v. State, 369 So. 3d 553, 562-63 (¶35) (Miss. 2023)). But in stark contrast to both the present case and Phillips, the supreme court concluded that the investigators’ testimony in Gibson far exceeded an explanation for the
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course of their investigation or the reason for their next investigatory step. Id. at *11 (¶47).
¶33. The Gibson court noted that the two investigators “were allowed to testify in depth as to what each person [whom] they had interviewed during their investigation had informed them, essentially forming the foundation of the State’s entire case.” Id. at *14 (¶57). The Gibson court further noted that in addition to the investigators’ improper testimony, “the State was allowed to cross-examine [the defendant] about a portion” of a pre-trial “statement that was not admitted into evidence and to which no witness had testified.” Id. at *15 (¶59). Finding that the inadmissible testimony “was used to establish key points of the State’s case during trial” as well as to “greatly prejudice[] Gibson,” the supreme court reversed Gibson’s convictions and remanded the matter for a new trial. Id. at *16 (¶61).
¶34. Upon review, we conclude that the present case more closely aligns with the facts set forth in Phillips than with the extreme circumstances detailed by our supreme court in Gibson. Like the witness in Phillips, Bailey was not himself physically injured, but he was clearly upset about his brother’s injuries. As Thompson’s attorney elicited from Investigator Collins on cross-examination, Bailey made an excited and emphatic utterance at the crime scene. In addition, Investigator Collins described the scene as “a hostile environment” by the time he arrived.
¶35. As law enforcement responded to Davis’s shooting and attempted to ascertain what had occurred, both Davis and Bailey made separate statements that someone had shot at them. As previously discussed, the circuit court admitted the testimony about Davis’s statement into evidence, and on appeal, Thompson raises no challenge regarding that ruling
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by the circuit court. At the crime scene, officers discovered numerous shell casings in both the residence’s front yard and at the nearby wood line. These discoveries corroborated the portion of Davis’s and Bailey’s statements in which they indicated that they had fired weapons from their yard as another person returned fire from the wood line.
¶36. While at the crime scene, law enforcement received a report about an abandoned car in a nearby ditch, and when the officers arrived at the car, they discovered a rifle leaning against a tree and two men in the vicinity. Law enforcement then received another report about an additional gunshot victim, who turned out to be Thompson, at the hospital. At the time of receiving the report, the responding officers had no idea if Thompson’s shooting was relevant to the crime they were already investigating. After learning about Thompson’s shooting from another officer, Investigator Collins testified that he left the crime scene to interview Thompson.
¶37. Thompson initially stated in both his first and second versions of events that someone had shot at him and that he had not fired a weapon in return. In his second version of events, he amended his statement to include that his friend, Rimmer, whom law enforcement had already detained near Davis and Bailey’s home, had fired the rifle found at that crime scene. It was only in Thompson’s third version of events that he admitted to actually being the one who fired the rifle found near Davis and Bailey’s home.
¶38. Based on the tense and chaotic environment of the crime scene, coupled with the incoming reports of an abandoned car nearby and another unknown gunshot victim at the hospital, the record provides sufficient evidence to establish that the statements Bailey made
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occurred “during an ongoing emergency, and the primary purpose of [the] statements to [Investigator Collins] that night were to ‘assess the situation, the threat to the officers’ safety, and possible danger to the potential victim and to the public.’” Phillips, 415 So. 3d at 593-94
(¶30) (quoting Bryant, 562 U.S. at 376). Accordingly, we conclude that the statement Bailey made to Investigator Collins regarding how the shooting occurred was non-testimonial in nature and that Thompson’s right to confrontation was not violated by the admission of the statement into evidence. We therefore find no reversible error with regard to this issue.
II. Stand-Your-Ground Jury Instruction
¶39. In his second issue on appeal, Thompson contends that the circuit court erred by refusing his proposed jury instruction about his right to stand his ground.3 We review the circuit court’s denial of the proposed jury instruction for abuse of discretion. Haynes v. State, 412 So. 3d 1170, 1179 (¶30) (Miss. Ct. App. 2025). The jury instructions “given must be read as a whole.” Id. (quoting Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010)). If the jury instructions as a whole “fairly announce the law of the case and create no injustice, no reversible error will be found.” Id. Although a “defendant is entitled to have jury instructions which present his theory of the case, . . . the court may refuse an instruction that incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting Newell, 49 So. 3d at 74 (¶20)).
¶40. As set forth in Mississippi Code Annotated section 97-3-15(4) (Supp. 2023),
3 Thompson’s proposed jury instruction stated, “If the Defendant was in a place where he had a right to be and the Defendant was not the initial aggressor or provoker, then the Defendant has no duty to flee and does not lose his right to self-defense.”
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Mississippi’s stand-your-ground law provides the following:
A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
¶41. Here, the jury was instructed on Thompson’s right to defend himself. The State objected, however, to a stand-your-ground instruction on the basis that the trial testimony and evidence did not support the instruction. In agreeing with the State, the circuit judge found that Thompson’s own testimony failed to provide a foundation for the proposed instruction. Thompson claimed that after Davis and Bailey shot at and wounded him from the road, they did not pursue him (even after he reversed his vehicle and became stuck in the ditch). Instead, Thompson stated that the brothers retreated to the nearby woods. Thompson further stated that after he retrieved his rifle from the back seat of his car, he pursued Davis and Bailey to the wood line. Thompson admitted that by the time he reached the wood line, Davis and Bailey had retreated even farther to their residence. As Thompson conceded on cross-examination, he “walked somewhere between 150 to 225 feet to[ward] danger to defend [himself].” Based on these admissions, the circuit judge concluded that Thompson lost the right to stand his ground when he did not return fire from the roadway, where he claimed the altercation initially occurred. Instead, as Thompson himself admitted, after Davis and Bailey retreated from the alleged altercation with him, he took the time to grab a weapon, pursue the brothers, and then fire upon them from the relative protection of the woods as they stood in their front yard.
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¶42. In addition to the circuit judge’s stated reason for refusing the stand-your-ground instruction, the physical evidence presented at trial failed to support Thompson’s version of events regarding how the shooting initially occurred. In the account of the shooting that he testified to at trial, Thompson stated that Davis and Bailey fired at him first from the roadway where his vehicle was found stuck in the ditch. But although numerous shell casings were found in front of Davis and Bailey’s residence and at the wood line, no shell casings were recovered from the road where Thompson claimed the altercation began. Thompson also claimed that he was standing behind the open driver’s side door of his car when the brothers first began to shoot at him. As he admitted on cross-examination, though, not only were no bullet holes found in his car, but if his injury had occurred as he claimed, he likely “would have been hit in the front of the body” rather than experiencing a gunshot wound to the back of his arm. Based on Thompson’s own testimony and a lack of foundation in the evidence, we find no abuse of discretion in the circuit court’s refusal to give the proposed stand-your- ground jury instruction.
CONCLUSION
¶43. Because we find no reversible error, we affirm Thompson’s conviction and sentence for first-degree murder.
¶44. AFFIRMED.
BARNES, C.J., LAWRENCE, McCARTY, EMFINGER AND LASSITTER ST. PÉ, JJ., CONCUR. CARLTON AND WILSON, P.JJ., AND McDONALD, J., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.
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WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:
¶45. I concur with the majority that no reversible error occurred related to Thompson’s Confrontation Clause argument. I write separately because I would find that Thompson was entitled to the proposed stand-your-ground jury instruction. Stand-your-ground jury instructions should be given consistent with Mississippi Code Annotated section 97-3-15(4) (Rev. 2020), which states in relevant part:
A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force under subsection (1)(e) or (f) of this section if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
¶46. A defendant may receive both a self-defense and a stand-your-ground instruction. Craig v. State, 660 So. 2d 1298, 1300 (Miss. 1995). Failure to give a stand-your-ground instruction is reversible error when the instruction is supported by the evidence and not adequately covered by the other instructions given. Williams v. State, 343 So. 3d 1035, 1039
(¶24) (Miss. 2022); see also Sanders v. State, 77 So. 3d 497, 502 (¶19) (Miss. Ct. App. 2011).
¶47. For example, in Haynes v. State, 412 So. 3d 1170, 1180 (¶32) (Miss. Ct. App. 2025), the jury that convicted the defendant of imperfect self-defense manslaughter received several instructions covering his theory of self-defense. Id. at 1179 (¶31). However, the trial court refused the defendant’s requested stand-your-ground instruction, reasoning that the evidence did not support that the defendant had an opportunity to retreat when he made a “split- second” decision to fire his gun during an argument in a parking lot. Id. at 1178 (¶26). This
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Court reversed, finding that the defendant’s testimony did support that he had an opportunity to retreat, that the evidence contained a basis for a jury to determine that the defendant was not the original aggressor, and that the stand-your-ground principle was not adequately covered when looking at the given instructions as a whole. Id. at 1184 (¶45).
¶48. Here, I would find that the evidence supported giving Thompson’s proposed jury instruction D-17, which stated, “If the Defendant was in a place where he had a right to be and the Defendant was not the initial aggressor or provoker, then the Defendant has no duty to flee and does not lose his right to self-defense.” Thompson’s testimony at trial provided an evidentiary basis to support that Davis and Bailey were the initial aggressors. Officer Collins testified that Thompson’s statement to him was that “he was shot, then he went to the wood line and shot back at them.” When asked, “[D]o you have anything to disprove that, that he was shot first?” Officer Collins replied, “I can’t – I can’t disclose if he was or if he wasn’t.” While Bailey told Officer Collins that someone shot at him and Davis first from the woods, in the face of conflicting evidence, it is the prerogative of the jury to determine who was the initial aggressor. McNeer v. State, 307 So. 3d 508, 516 (¶23) (Miss. Ct. App. 2020).
¶49. Additionally, this is not a circumstance in which the instruction should be properly refused because the defendant testified that he “had no time or opportunity to retreat.” Lewis v. State, 374 So. 3d 529, 545 (¶56) (Miss. Ct. App. 2023); see also Spires v. State, 10 So. 3d 477, 486 (¶36) (Miss. 2009); Shaheed v. State, 205 So. 3d 1105, 1112 (¶24) (Miss. Ct. App. 2016). Thompson’s testimony provided an evidentiary basis to support his account that after Davis and Bailey shot at him from the intersection, Thompson went back toward the house
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and then walked 50 yards to the wood line.
¶50. Finally, the stand-your-ground principle was not adequately covered in the other jury instructions when reading them together as a whole. Hayes, 412 So. 3d at 1180 (¶32). While the jury was instructed on self-defense, none of the instructions communicated that a defendant who was not the original aggressor does not have a duty to retreat or that the failure to retreat cannot be used as evidence that the use of force was unnecessary. Id. at
(¶33). “In homicide cases, the trial court should instruct the jury about a defendant’s theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely, and the trial court’s failure to do so is error requiring reversal of a judgment of conviction.” Reynolds v. State, 776 So. 2d 698, 700 (¶9) (Miss. Ct. App. 2000) (quoting Manuel v. State, 667 So. 2d 590, 593 (Miss. 1995)). Even when “based on meager evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be submitted as a factual issue for determination by the jury under proper instruction of the court.” Hester v. State, 602 So. 2d 869, 872 (Miss. 1992).
¶51. Because I would find that the court’s failure to give Thompson’s proposed jury instruction D-17 was reversible error, I respectfully dissent in part.
McDONALD, J., JOINS THIS OPINION.