Joseph David Heard v. State of Mississippi

Opinion

IN THE SUPREME COURT OF MISSISSIPPI NO. 2024-DP-00802-SCT

JOSEPH DAVID HEARD v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 05/10/2024 TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS, JR. TRIAL COURT ATTORNEYS: GEORGE RANDALL HUFFMAN MARA MICHÈLE LESIEUR JOFFE WILLIAM CROSBY PARKER

LAUREN RUTH HILLERY

FRANK PHILIP WITTMANN, IV DONALD RAFFERTY

BLAKE THORNBRO

HERMAN F. COX

BILLY EDWARD STAGE

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT

ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GREG R. SPORE

STACY L. FERRARO

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRAD A. SMITH

ALLISON K. HARTMAN

DISTRICT ATTORNEY: WILLIAM CROSBY PARKER NATURE OF THE CASE: CRIMINAL - DEATH PENALTY - DIRECT APPEAL

DISPOSITION: AFFIRMED - 08/06/2026 MOTION FOR REHEARING FILED:

EN BANC.

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. Joseph David Heard appeals his capital-murder conviction and death sentence. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Joseph and Hailey Heard began dating in November 2020 and married in February 2021. Joseph was thirty-seven years old. Hailey was twenty-one years old and had a one- year-old son, Hayden. Hayden turned two years old shortly thereafter in June 2021. Joseph, Hailey, and Hayden initially lived in Gulfport with one of Joseph’s friends, but they later moved into a house in Biloxi.

¶3. Joseph and Hailey struggled financially. Joseph quit his job at Waffle House and got a job at the port. But Joseph did not get picked to work very often, and he did not work much after he and Hailey got married. As a result, Joseph would watch Hayden while Hailey was at work at Walmart.1

¶4. Despite her job at Walmart, Hailey had to apply for loans at times in order to pay the rent and utility bills. Hailey applied for a loan in December 2021 and expected the funds to be deposited into her account later that month.

¶5. On the morning of December 27, 2021, Joseph, Hailey, and Hayden were at home, asleep. Around 5:00 a.m., Hailey’s phone alert went off. Joseph woke up Hailey so she could check her phone since they were expecting money from the loan. The commotion woke up Hayden, who slept in the same bedroom as Hailey and Joseph.

¶6. According to Hailey, Joseph noticed that Hayden had soiled his diaper, so Joseph picked up Hayden, and Hayden started to cry. Joseph took Hayden to the bathroom and gave Hayden a bath. Joseph then took Hayden to the living room and gave Hayden some

1 Hailey’s work hours varied. She would work from 5:00 a.m. to 2:00 p.m., or 5:00 a.m. to 5:00 p.m., or some days from 5:00 a.m. to 10:00 p.m.

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medicine, but Hayden was still crying. As a result, Hailey got up to check on Hayden. When Hailey walked into the living room, Hayden was on the couch and Joseph was kneeling in front of Hayden punching Hayden over and over again in the ribs with his closed fists, causing Hayden to again soil himself. Hailey put her hand over Hayden’s mouth to stop him from crying. As she held her hand over Hayden’s mouth, Joseph continued to punch Hayden in his ribs, chest, and head. Hayden eventually stopped breathing. Hailey then called 911,2 and Joseph performed CPR. Hayden was pronounced dead at 7:01 a.m.

¶7. Hailey and Joseph were indicted for capital murder. The indictment provided that Hailey and Joseph “on or about December 27, 2021, did . . . willfully, unlawfully, feloniously and with or without design to effect death, kill and murder Hayden . . . , a human being, while in the commission of the crime and felony of [f]elonious [a]buse and/or [b]attery of a [c]hild, as defined by Section 97-5-39(2)[.]”

¶8. Hailey pleaded guilty to first-degree murder and received a life sentence. Joseph pleaded not guilty and went to trial. At trial, multiple witnesses testified.

¶9. Rex Ritchie, a patrolmen with the Biloxi Police Department, responded to the 911 call regarding a possible child drowning.3 When Ritchie arrived at the Heards’ residence, Hayden was lying in the center of the living room and was not moving. When asked if anything stood out to him, Ritchie testified, “Yes, . . . [Hayden] had bruising on his face.” Ritchie further testified that Hailey was crying, and Joseph was “calm . . . like [it was] another day.” While

2 Hailey reported the emergency as a drowning.

3 Ritchie testified that he responded to the 911 call at 6:08 a.m. and that the 911 call would have been made before then.

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Ritchie admitted that he did not know Joseph or his demeanor, he stated that Joseph “was calm . . . for the situation.”

¶10. Mark Dillard, a paramedic with AMR, also responded to the 911 call. He arrived at the residence at 6:11 a.m. Dillard noticed that Hayden was not wet and had bruising on his face and neck. CPR and intubation were performed. Dillard testified that there was no water in Hayden’s airway. He further testified that Hayden was not responsive to the life-saving measures and that Hayden did not breathe on his own after the life-saving measures were performed. Hayden was transferred to the hospital and arrived at the hospital at 6:32 a.m.

¶11. Nick Sonnier, an investigator with the Biloxi Police Department, received a phone call regarding the incident and went to the hospital. Sonnier testified that when he arrived at the hospital, he observed Hayden “to be unconscious, unresponsive, and [with] bruising covering . . . his chest [and] extremities.” Sonnier left the hospital, went to the Heards’ residence, and then went to the police station, where he collected Hailey’s and Joseph’s cell phones.

¶12. Aaron Michael Allen, a forensic analyst for digital forensics with the attorney general’s office, testified that as a forensic analyst, he obtains data from electronic devices such as cell phones. Allen was admitted as an expert in forensic analysis specializing in computer and cell-phone extractions, and he testified regarding his extraction of Hailey’s and Joseph’s cell phones. Allen explained that based on his extraction, he was able to retrieve text messages between Hailey and Joseph. A summary of the text messages between May 4 and December 27, 2021, was introduced into evidence and published to the jury. The text messages show Joseph’s demeanor toward Hailey, and they also show Joseph’s history of

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abuse of Hayden.

¶13. Dr. Leanne Lee, a board-certified emergency-medicine physician, was admitted as an expert in emergency medicine. Dr. Lee testified that she has treated “thousands” of children during her career, and she explained that as an emergency-medicine physician, she is trained to look for signs of abuse when a child presents to the emergency room.

¶14. Dr. Lee was on call when Hayden presented to the emergency room. She testified that she “ha[d] never seen a kid that had sustained so much trauma” and that Hayden “was essentially dead on arrival.” She described Hayden as having “bruising everywhere,” specifically “[a]ll over [his] face,” “bruising to both eyes,” “[h]is arms, his torso, his back,” and “on [his] ribs.”

¶15. Dr. Lee explained the “various stages of bruising” on Hayden’s face and body, noting the older, green bruises versus the newer, “redder” bruises. She testified that while she could not identify when the older, green bruises occurred, the newer, redder bruises would have occurred “within the last 24 hours.” She stated that “in [her] experience[,] the bruise will pop up within an hour or two of it occurring.” Dr. Lee further noted a burn on Hayden’s right ear and “a scar on his right hand from a prior burn.”

¶16. Postmortem X-rays showed “bilateral proximate [humerus] fractures” to Hayden’s upper arms. Dr. Lee testified that “these fractures ha[d] the bucket handle appearance that you would suspect in child abuse” and that this “injury could be from taking the child’s arms and shaking them . . . while the body is remaining still.”

¶17. Dr. Lee acknowledged the report of drowning, but she explained that there were no

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signs in this case to indicate drowning, such as water in the airway, froth around the mouth, or water in the lungs. She further explained why Hayden’s injuries were inconsistent with a fall from a bed or a couch, stating, “I’ve seen hundreds of falls from beds and couches, and I’ve never seen anyone with the amount of bruising and stages of bruising in a kid like that before.”

¶18. Dr. Lee opined that Hayden’s injuries were most consistent with being hit or punched with something. And when asked if being punched in the chest or the abdomen would hasten someone’s death by smothering, Dr. Lee stated it would “hasten the death if not alone cause death.”

¶19. Dr. Staci Turner, the chief medical examiner with the Mississippi Department of Public Safety, performed Hayden’s autopsy. Dr. Turner, who was admitted as an expert in forensic pathology, noted that Hayden was two years old, weighed thirty pounds, and was thirty-seven inches tall.

¶20. Dr. Turner testified that the first thing she noticed from her external examination was that Hayden “had numerous bruises scattered over his entire body.” She explained:

Usually my procedure is to move from the head down to the feet when I do my examination, and as I was examining his head, face, mouth, I found a laceration on the inside of his upper lip and a bruise. It’s the part where the lip is attached to the gum called the frenulum. Also he had multiple bruises on the inside of his lips, and he had small hemorrhages in his eyes. He also had numerous bruises on the back of his head, on his face.[4] He had injuries to his ear, his right ear.

Dr. Turner further explained that after shaving Hayden’s hair, she saw “multiple bruises on

4 Dr. Turner noted that the bruises to Hayden’s face varied in color.

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the right side of his head and multiple bruises on the back and the front of his right ear.” She opined that these injuries were caused by “[e]ither a blunt force object striking the head or the head striking a blunt object.”

¶21. Regarding external injuries to the rest of Hayden’s body, Dr. Turner testified that “[t]here were numerous bruises on his torso, his upper extremities, his arms, and his lower extremities, his legs.” She further testified that there were multiple bruises and abrasions on Hayden’s back. Dr. Turner opined that the injuries on Hayden’s face and body were “blunt force injuries . . . made by a blunt object striking the skin and body or the body striking a blunt object.” Dr. Turner did not see any recent injuries to Hayden’s hands, but she noted a scar on the back of Hayden’s right hand.

¶22. According to Dr. Turner, X-rays showed

bony abnormalities of the top of the long bones in the arm. This bone is called the humerus, and there were abnormalities in both sides indicating injury, and the larger bone in your back, your shoulder blade, on the right side there was a visible fracture that had healed or was in the process of healing.

¶23. Dr. Turner opined that Hayden’s cause of death was suffocation by smothering and that his manner of death was homicide. She further opined that Hayden also suffered from blunt injuries and agreed that a closed fist would be considered a blunt object.

¶24. Hailey testified that her relationship with Joseph was okay at first but that after they got married, Joseph became very controlling and would “beat on [her].” And according to Hailey, Joseph was also violent toward Hayden. She explained:

There w[ere] days where [Joseph] would be upset with Hayden because [Hayden] used the bathroom on himself or Hayden would start crying for no reason. [Joseph] would put [Hayden] in a corner, tell [Hayden] to put his hands

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up, or [Joseph] would tell [Hayden] to “do it,” which [meant] to lift his arms up and down over and over. If [Hayden] was in trouble because he used the bathroom on himself, [Joseph] would make him sit on the toilet for hours.

She stated that Joseph would make Hayden raise his arms up and down for “[a]s long as Joseph wanted . . . [f]ive minutes to two hours.”

¶25. Hailey testified that Joseph would hit Hayden on the butt, ribs, or face and that he would pull Hayden’s arms. She also testified that Hayden had a second-degree burn on his right hand that Joseph used as a form of punishment. Specifically, Hailey explained that Joseph would hit Hayden’s blistered hand with a rubber spatula, causing Hayden to cry.

¶26. Hailey testified regarding the events on the morning of December 27, 2021. She stated that although Hayden was beaten “quite regularly,” she had never seen Joseph beat Hayden the way he did that morning.

¶27. On cross-examination, Hailey admitted that she smothered Hayden. She further admitted that she and Joseph never discussed “doing any kind of lethal injury to [Hayden],” that “at no point that morning did [she] see Joseph try to attempt to kill Hayden,” and that Joseph did not “say . . . that he was going to kill [Hayden].”

¶28. Hailey acknowledged it was her idea to tell the 911 operator that Hayden had drowned in the bathtub. Hailey further acknowledged she initially lied to the police by stating that Joseph did not hit Hayden and that Hayden’s bruises were accidental. Hailey testified, however, that she eventually told the police the truth about what had happened,5 and she stated that in doing so, she did not discuss any deals and did not ask for anything in exchange

5 Hailey told the police the truth one week later, on January 5, 2021.

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for telling the truth.

¶29. Joseph testified at trial in his own defense and denied causing any injury to Hayden. Joseph admitted that Hayden was alone with him most days while Hailey was at work, and he implied that Hayden’s bruises were from falling off the couch or bed or from playing. Notably, Joseph testified that he never saw Hailey “put any marks on [Hayden]” and that he “wouldn’t think a mother would.”

¶30. Joseph explained that on the morning of December 27, he had given Hayden a bath and some medicine and then took Hayden to the bedroom. Hayden was thirsty, so Joseph sent Hayden to the kitchen to get some juice, and when Hayden did not return, Joseph got up to check on Hayden. According to Joseph, he saw Hayden “leaning against the couch . . . gasping for breath.” Joseph noticed that Hayden had soiled his diaper again and went to get a clean diaper. He heard Hailey screaming and ran back to the living room where he saw that Hayden’s face was blue and then Hayden “just blinked out.” Joseph performed CPR, and Hailey called 911. When asked how he felt at that point, Joseph responded that he was “scared.” When asked who he was scared for, Joseph stated, “me.” It was only after his defense counsel asked who else he was scared for that Joseph responded he “was scared for Hayden as well.”

¶31. Regarding Hayden’s second-degree burn on his hand, Joseph explained that during the summer of 2021, Hayden “somehow fell” off the couch and his right hand was swollen. Joseph “put a towel in the microwave for about 30 seconds, and [then] sat it on a plate.” According to Joseph, two-year-old Hayden picked up the hot towel and wrapped it around

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his hand, causing a second-degree burn.

¶32. Joseph testified that despite the text messages, he “really wouldn’t . . . beat [Hayden].” He explained that he wanted a divorce from Hailey and that he sent the text messages to be mean and to “make her mad enough to just give [him] a divorce.” He further explained that the text messages were just a “figure of speech” and that it was just him “talking.”

¶33. Joseph maintained that he never put a bruise on Hayden. He testified that he did not kill, attempt to kill, or intend to kill Hayden, nor did he contemplate lethal force against Hayden.

¶34. The jury found Joseph guilty of capital murder. The penalty phase began the next day.

¶35. During the penalty phase, the State moved to admit all evidence from the guilt phase. The trial court granted the motion, and the State rested. After speaking with Joseph, defense counsel chose not to present any mitigation evidence during the penalty phase, and the defense rested.

¶36. The jury “unanimously f[ound] from the evidence beyond a reasonable doubt that . . . [Joseph] attempted to kill Hayden[.]” The jury also unanimously found the following two aggravating circumstances: (1) that “the capital offense was committed while [Joseph] was engaged, or was an accomplice, in the commission of, or an attempt to commit, or flight after committing or attempting to commit, . . . felonious abuse or battery of a child in violation of subsection (2) of Section 97-5-39,” Miss. Code Ann. § 99-19-101(5)(d) (Rev. 2020), and (2) that “[t]he capital offense was especially heinous, atrocious or cruel.” Miss. Code Ann. § 99- 19-101(5)(i) (Rev. 2020). The jury further unanimously found that there were “insufficient

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mitigating circumstances to outweigh the aggravating circumstances” and that “[Joseph] shall suffer death.” The trial court entered a final judgment sentencing Joseph to death.

¶37. Joseph filed a motion for a new trial or in the alternative a judgment notwithstanding the verdict. After a hearing, the trial court denied the motion. Joseph timely filed a notice of appeal. On appeal, Joseph asserts ten assignments of error.

STANDARD OF REVIEW

¶38. “The Court applies heightened scrutiny when reviewing capital murder convictions where the death penalty has been imposed.” Clark v. State, 343 So. 3d 943, 954 (Miss. 2022) (internal quotation marks omitted) (quoting Dickerson v. State, 175 So. 3d 8, 15 (Miss. 2015)).

DISCUSSION

I. Whether Dr. Lee provided improper expert testimony.

¶39. At trial, Dr. Lee was accepted as an expert in emergency medicine. Joseph argues Dr. Lee “provided improper expert testimony concerning the nature of Hayden’s bruising.” He claims certain testimony from Dr. Lee was improperly admitted since it commented on the ultimate issue in the case and was speculative.

¶40. “The admission of expert testimony is within the sound discretion of the trial judge.” Anderson v. State, 62 So. 3d 927, 936 (Miss. 2011) (quoting Bishop v. State, 982 So. 2d 371, 380 (Miss. 2008)). “This Court will not reverse a trial court’s decision to admit expert testimony unless it finds that the trial court’s decision ‘was arbitrary and clearly erroneous, amounting to an abuse of discretion.’” Id. (citing Bishop, 982 So. 2d at 380).

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A. Ultimate Issue

¶41. During direct examination, Dr. Lee testified as follows:

[State]: . . . Dr. Lee, based upon your examination and treatment of Hayden and based on your education and experience, do you have an opinion to a reasonable degree of medical certainty as to how Hayden’s injuries occurred, the nature of those injuries?

[Dr. Lee]: Yes. A hundred percent would be abuse.

¶42. Joseph asserts Dr. Lee provided improper expert testimony by failing to frame her opinions to a reasonable degree of medical certainty. He claims that “Dr. Lee testified to an absolute certainty or a fact” and that “Dr. Lee was neither assisting the trier of fact in understanding the evidence nor making a medical judgment; she was instead telling the jury precisely what to believe.” According to Joseph, “the damage from [Dr. Lee’s] ‘certainty testimony’ was irreparable” since “[i]n the jurors’ minds, it was now a fact that the bruising on Hayden was caused by abuse.”

¶43. But Joseph failed to object to this testimony. “This Court has long held that failure to make a contemporaneous objection waives any claim of error as to the evidence admitted, even in a capital case.” Abram v. State, 420 So. 3d 881, 887 (Miss. 2025) (citing Garcia v. State, 300 So. 3d 945, 976 (Miss. 2020)). Because Joseph failed to make a contemporaneous objection, his argument regarding the admission of Dr. Lee’s certainty testimony is waived. Id. (citing Garcia, 300 So. 3d at 976).

¶44. Joseph acknowledges that his trial counsel failed to contemporaneously object to Dr. Lee’s testimony. He argues, however, that “Dr. Lee’s testimony should be reviewed as plain error, or alternatively, as an ineffectiveness of counsel claim.”

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i. Plain Error

¶45. “The plain error doctrine requires not only the existence of an error, but also that either the error resulted in a manifest miscarriage of justice or ‘seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.’” Corrothers v. State, 148 So. 3d 278, 319 (Miss. 2014) (alteration in original) (internal quotation marks omitted) (quoting Brown v. State, 995 So. 2d 698, 703 (Miss. 2008)). “ The Court applies the plain-error rule only when the error affects a defendant’s fundamental rights.” Id. (citing Brown, 995 So. 2d at 703). “To determine if plain error has occurred, we must determine ‘if the trial court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial.’” Neal v. State, 15 So. 3d 388, 403 (Miss. 2009) (internal quotation marks omitted) (quoting McGee v. State, 953 So. 2d 211, 215 (Miss. 2007)).

¶46. Joseph clarifies that Dr. Lee’s “credentials and chosen methodology are not at issue” and that he is “not arguing a violation of [Mississippi Rule of Evidence] 702.” Instead, Joseph claims Dr. Lee’s “‘bald statement’ as to an ultimate issue in this matter” violates Mississippi Rule of Evidence 704. According to Joseph, “how Dr. Lee expressed her opinion[,] how she framed her opinion in absolute terms . . . stripp[ed] the jury of its role to determine if Hayden was abused.” We disagree.

¶47. “[I]t is not the expert’s function . . . to substitute himself or herself for the jury and advise them with regard to the ultimate disposition of the case.” Smith v. State, 925 So. 2d 825, 838 (Miss. 2006) (alteration in original) (internal quotation marks omitted) (quoting

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State v. Lindsey, 720 P.2d 73, 76 (Ariz. 1986)). “Clearly, the expert should not be permitted to pass judgment on whether the defendant was the specific perpetrator.” Id. “Questions which simply allow the witness to tell the jury what result to reach are impermissible, as are questions asking the witness for a legal conclusion.” Moffett v. State, 156 So. 3d 835, 864 (Miss. 2014) (emphasis omitted) (internal quotation marks omitted) (quoting Hart v. State, 637 So. 2d 1329, 1339 (Miss. 1994), abrogated on other grounds by Taylor v. State, 287 So. 3d 202, 209 (Miss. 2020)).

¶48. But under Rule 704, “[a]n opinion is not objectionable just because it embraces an ultimate issue.” MRE 704. “[E]xpert opinion embracing the ultimate fact . . . must be helpful to the trier of fact.” Moffett, 156 So. 3d at 864 (quoting Hart, 637 So. 2d at 1339).

¶49. Here, Dr. Lee did not “substitute . . . herself for the jury[,]” Smith, 925 So. 2d at 838 (quoting Lindsey, 720 P.2d at 76), nor did she “tell the jury what result to reach[.]” Moffett, 156 So. 3d at 864 (emphasis omitted) (quoting Hart, 637 So. 2d at 1339). Dr. Lee did not testify who inflicted Hayden’s injuries but instead provided her medical opinion as to what caused those injuries. And Dr. Lee’s testimony regarding Hayden’s injuries was helpful to the jury. Moffett, 156 So. 3d at 864 (quoting Hart, 637 So. 2d at 1339).

¶50. Dr. Lee testified that when a child presents to the emergency room, as an emergency- room physician, she is trained to look for signs of abuse such as “patterns of bruising, patterns of fractures” as well as “the history” and whether “the injury match[es] the history.” According to Dr. Lee, when Hayden arrived at the emergency room, “[t]here was bruising everywhere essentially,” including on his head, arms, torso, back, ribs, chin, cheek, and eyes.

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Dr. Lee testified that “on first glance,” the “most pronounced was the head trauma” with “lots of swelling, bruising in multiple stages on the head ranging to the arms as well.” She further testified that Hayden had

bilateral racoon eyes, which is bruising to both eyes, that appeared to be in the older stages of bruising [since] they were more of a green color. He had green bruises on his cheeks as well, but he also had redder bruises, which means they are new, on the cheeks as well on top of the green. He had what we call battle signs, which is bruising to the back behind the ears.

Dr. Lee opined that “[f]rom her experience, [Hayden’s] injuries were most consistent with being hit with something, punched with something.”

¶51. Additionally, postmortem X-rays revealed “bilateral proximate [humerus] fractures” to Hayden’s upper arm that Dr. Lee described as “bucket handle fractures.”6 Dr. Lee opined that the fractures were consistent with abuse and that “taking the child’s arms and shaking them . . . while the body . . . remain[s] still” could cause such injuries.

¶52. Although Hayden’s reported history “was a possible drowning,” Dr. Lee testified that she found “no evidence to . . . support the drowning.” She explained that if an individual had been a victim of drowning, the individual “would be wet” and “there would be signs of water in the airway, such as froth around the mouth.” Dr. Lee confirmed that there were no “signs in this case to indicate a drowning.”

¶53. Dr. Lee also testified that Hayden’s injuries did not appear to be self-inflicted or caused by an accident and that the injuries did not all appear to have happened in a single event. She admitted that she could not identify when the injuries occurred, but she testified

6 Dr. Lee explained that “buckle handle fractures of long bones are metastasis fractures” and “should be suspected for potential abuse.”

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that the newer, redder bruises would have occurred within twenty-four hours. She explained that in her experience, “the bruise will pop up within an hour or two of it occurring.”

¶54. Dr. Lee further testified that Hayden’s injuries were not consistent with a fall from a bed or a couch. She explained that she has “seen hundreds of falls from beds and couches and [has] never seen anyone with the amount of bruising and stages of bruising in a kid like that before.”

¶55. As the record reflects, Dr. Lee was asked if she had an opinion to a reasonable degree of medical certainty as to how Hayden’s injuries occurred. Notably, she answered that question in the affirmative, “[y]es,” and then explained, “[a] hundred percent would be abuse.” Joseph’s “absolute certainty” argument seeks to have this Court consider Dr. Lee’s one-line response in a vacuum, with no consideration to context or to her other testimony. Dr. Lee’s testimony as a whole was helpful to the jury in that it explained how and why she concluded that abuse caused Hayden’s injuries. She applied, in essence, a differential diagnosis, considering and excluding various etiologies before reaching the conclusion that the cause of Hayden’s injuries was abuse.

¶56. The trial court did not “deviate[] from a legal rule” in its admission of Dr. Lee’s testimony at issue. Neal, 15 So. 3d at 403 (quoting McGee, 953 So. 2d at 215). But even assuming the trial court’s admission of Dr. Lee’s certainty testimony was erroneous, as Joseph suggests, the testimony did not “prejudice[] the outcome of the trial” in light of all testimony and evidence presented. Id. (internal quotation mark omitted) (quoting McGee, 953 So. 3d at 215).

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¶57. Patrolman Ritchie testified that when he arrived at the Heards’ residence, Hayden was “laying . . . in the center of the living room” and “had bruising on his face.” AMR paramedic Dillard also testified that when he arrived on the scene, he observed significant bruising on Hayden’s face and neck. Investigator Sonnier further testified that when he arrived at the hospital, he observed Hayden with bruises covering his chest and extremities.

¶58. According to Dr. Lee, when Hayden presented to the emergency room, “[i]t was one of the most horrific scenes [she had] witnessed as an ER doctor.” Dr. Lee testified that Hayden had “bruising everywhere,” and she opined that Hayden’s bruising was “most consistent with being hit with something, punched with something.”

¶59. Chief Medical Examiner Dr. Turner, who performed Hayden’s autopsy, noted numerous bruises on his body, including his head, face, torso, arms, and legs, as well as hemorrhages in his eyes. Like Dr. Lee, Dr. Turner opined that Hayden’s injuries were caused by a blunt-force object such as a closed fist.

¶60. Hailey testified that on the morning in question, she witnessed Joseph repeatedly punch Hayden with closed fists in Hayden’s ribs. Even after she covered Hayden’s mouth, Joseph continued to repeatedly punch Hayden in his head, chest, and ribs until he stopped breathing. According to Hailey, Joseph “beat [Hayden] quite regularly.” But while she had seen Joseph beat Hayden before, Hailey testified that she had never seen Joseph beat Hayden like he did on the day Hayden died.

¶61. Text messages between Hailey and Joseph also reflect Joseph’s abuse of Hayden. For instance, the following text messages were sent from Joseph to Hailey:

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[I]f he’s is crying when I come out im whipping his ass

I hit that ass to hard but idgaf today he really pulled his dick out n pissed on our floor

I don’t get him at all he really has been spoiled but that shit dead now

I j[u]st beat his hands n bath him and I found a remedy to heal his bruises fast the ones he already got

I get up to use the bathroom n put him back on the couch this nigha shitted I whooped his ass good n put him in the tube

Oh ok sorry bae this night piss on himself after he got off the pot he gonna wear the next one[.]

¶62. While Joseph denied causing any injury to Hayden, he admitted that Hayden was alone with him most of the time and that he never saw Hailey put any marks on Hayden. And any suggestion that Hayden’s injuries were caused by falls off the bed or couch was refuted by Dr. Lee.

¶63. According to Joseph, “Dr. Lee’s improper testimony [regarding the nature of Hayden’s injuries] was a cornerstone of the prosecution’s case” and “was highly prejudicial.” He claims:

The prejudice created by [Dr. Lee’s] impermissible level of certainty and trial counsel’s failure to object was heightened as it corroborated Hailey’s testimony, which in turn implicated [Joseph] as the main abuser. . . . Hailey testified that [Joseph] repeatedly punched Hayden both in the months leading up to Hayden’s death and on the day of the incident. After hearing Hailey’s testimony, and because trial counsel failed to challenge Dr. Lee, the jury was led to believe that Hayden’s injuries were caused exclusively by abuse and that [Joseph] was responsible.

¶64. But as previously discussed, in addition to Dr. Lee, Ritchie, Dillard, Sonnier, Hailey, and Dr. Turner all testified to the bruising on Hayden’s body. Again, Ritchie, Dillard, and

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Sonnier all observed bruises on Hayden’s body. Dr. Turner opined that Hayden’s injuries were caused by a blunt-force object such as a closed fist, which corroborated Hailey’s testimony that Joseph repeatedly punched Hayden in the head, chest, and ribs on the morning of his death. Text messages from Joseph to Hailey also provided evidence of Joseph’s abuse of Hayden. And despite Joseph’s assertion that Dr. Lee’s testimony “implicated [him] as the main abuser,” Hailey admitted her role in Hayden’s death, i.e., that she put her hand over Hayden’s mouth and smothered him. Thus, even without Dr. Lee’s certainty testimony, sufficient evidence was presented to support the jury’s findings.

¶65. Regarding Dr. Lee’s complained-of certainty testimony, Joseph fails to show that the trial court “deviated from a legal rule[.]” Neal, 15 So. 3d at 403 (quoting McGee, 953 So. 2d at 215). But even assuming the trial court erred, the admission of Dr. Lee’s certainty testimony did not “prejudice[] the outcome of the trial” in light of all testimony and evidence presented. Id. (internal quotation mark omitted) (quoting McGee, 953 So. 2d at 215). Accordingly, Joseph’s plain-error argument fails.

ii. Ineffective Assistance of Counsel

¶66. Joseph argues that his trial counsel’s failure to object to Dr. Lee’s certainty testimony constitutes ineffective assistance of counsel. Every criminal defendant has a state and federal constitutional right to effective assistance of counsel. U.S. Const. amends. VI, XIV; Miss. Const. art. 3, § 26. To prove ineffective assistance of counsel, the defendant must show (1) that counsel’s performance was deficient and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To

20

show deficient performance, a defendant must show that counsel’s performance “fell below an objective standard of reasonableness.” Id. at 688. But a strong presumption exists that counsel’s performance constituted trial strategy and was “within the wide range of reasonable professional assistance[.]” Id. at 689. Prejudice is demonstrated by showing “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶67. Ordinarily, claims of ineffective assistance of counsel are not addressed on direct appeal. Wilcher v. State, 863 So. 2d 776, 825 (Miss. 2003). “[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings.” Ross v. State, 288 So. 3d 317, 324 (Miss. 2020) (alteration in original) (internal quotation marks omitted) (quoting Bell v. State, 202 So. 3d 1239, 1242 (Miss. 2016)). “This Court will address such claims on direct appeal when ‘[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that the findings of fact by a trial judge able to consider the demeanor of witnesses, etc.[,] are not needed.’” Id. (alteration in original) (quoting Bell, 202 So. 3d at 1242). When neither of these factors is present, “the appropriate procedure is to deny relief, preserving the defendant’s right to argue this issue through a petition for post-conviction relief[.]” Dartez v. State, 177 So. 3d 420, 423 (Miss. 2015) (citing Read v. State, 430 So. 2d 832, 837 (Miss. 1983)).

¶68. Here, neither factor is present. In other words, the record does not affirmatively show ineffectiveness of constitutional dimensions nor do both parties stipulate that the record is

21

adequate for consideration on direct appeal. Ross, 288 So. 3d at 324 (quoting Bell, 202 So. 3d at 1242). Thus, Joseph’s ineffective-assistance-of-counsel claim is denied at this time, but Joseph’s right to argue this issue is preserved for post-conviction review. Dartez, 177 So. 3d at 423 (citing Read, 430 So. 2d at 837).

B. Speculation

¶69. During direct examination, Dr. Lee testified as follows:

[State]: . . . [I]f someone was being punched in the chest or abdomen, say, while somebody was holding a hand over someone’s mouth so they were being simultaneously punched and smothered, what effect would the punching have, assuming they’re being punched in the chest or abdomen? Would that have any effect on a person’s ability to breathe?

[Dr. Lee]: Oh, yes. First of all, a punch to the chest, you know, itself could cause cardiac death. As instances of that, you know, like baseball to the chest and it hit it at the right time, the hitting of the chest would not allow—if anybody has ever had the wind knocked out of them, it takes you a few seconds to recover from that. So I can imagine that it would be difficult to regain your breath if you were being punched in the chest or even if the chest was being compressed by an arm.

[State]: Is it possible that someone being punched in the chest or the abdomen would hasten someone’s death by smothering?

[Defense Counsel]: Objection, Your Honor.

[Trial Court]: Can you answer that, doctor?

[Dr. Lee]: Yes.

[Trial Court]: You can answer it?

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[Dr. Lee]: Yes. It would hasten the death if not alone cause death.

¶70. Joseph argues Dr. Lee “testified to possibilities.” He claims Dr. Lee’s testimony “embraces suspicions and imaginings and possibilities.”

¶71. The opinion of an expert witness “must rise above mere speculation.” Parvin v. State, 113 So. 3d 1243, 1247 (Miss. 2013) (internal quotation marks omitted) (quoting Williams v. State, 35 So. 3d 480, 486 (Miss. 2010)). “‘[I]ndefinite’ expert opinions, or those ‘expressed in terms of mere possibilities,’ are not admissible.” Id. (alteration in original) (quoting West v. State, 553 So. 2d 8, 20 (Miss. 1989)).

¶72. But despite Joseph’s assertion, Dr. Lee’s testimony was not based on mere speculation or possibilities. Instead, Dr. Lee’s testimony was based on the facts of the case, her examination and treatment of Hayden, as well as her experience and training in the field of emergency medicine. Moreover, when asked if being punched in the chest would have an effect on a person’s ability to breathe, Dr. Lee answered affirmatively, “[y]es,” and then explained her answer. And while the State questioned whether it was “possible” that being punched in the chest would hasten death by smothering, Dr. Lee responded affirmatively that it “would hasten the death if not alone cause death.” (Emphasis added.)

¶73. Dr. Lee did not “express[] [her opinions] in terms of mere possibilities,” but instead answered affirmatively. Id. (quoting West, 553 So. 2d at 20). Thus, the trial court did not abuse its discretion by admitting her testimony.

¶74. Joseph further argues that “Dr. Lee’s testimony [wa]s contradictory,” stating, “[i]n one moment, she acknowledges that it is ‘possible that someone being punched in the chest or

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abdomen would hasten someone’s death by smothering,’ and that a punch ‘could cause cardiac death.’ In the very next moment, however, she’s certain that punching ‘would hasten the death.’” But whether Dr. Lee’s testimony was contradictory is an issue for the jury to resolve.

¶75. “We have held that the jury is charged with the duty of judging credibility.” Jones v. State, 920 So. 2d 465, 472 (Miss. 2006) (citing Jackson v. State, 614 So. 2d 965, 972 (Miss. 1993)).

Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. They may believe or disbelieve, accept or reject, the utterances of any witness. No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution.

Id. at 472-73 (quoting Jackson, 614 So. 2d at 972). Because the jury had the duty to determine Dr. Lee’s credibility and to resolve any alleged contradictory testimony, the trial court did not err by admitting Dr. Lee’s testimony.

II. Whether the trial court erred by allowing Dillard, a lay witness, to give expert testimony.

¶76. Dillard, a paramedic with AMR for thirty-two years, arrived at the Heards’ residence on the morning of December 27 in response to a service call regarding “a drowning of a two- year old in a bathtub.” At trial, Dillard, a lay witness, testified as follows:

[State]: And describe the scene for me when you walked inside that residence.

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[Dillard]: I remember the child being on his back, in the living room. I watched him take his last two breaths right in front of me, and then he went into cardiac arrest. I remember him being clothed in a T-shirt and pajama pants, and the one thing that kind of struck me as unusual is that [the] mom seemed nervous, [the]

stepdad seemed kind of nonchalant about the situation, which threw up reg flags for me because generally the parents, if both of them are there [are] just crying, screaming, and they don’t want to let go of the child.

....

[State]: And would you describe either of the parents in this case as being highly emotional in this case?

[Dillard] No.

....

[State]: Okay. And describe for me—when you talk about cardiac arrest, what is that?

[Dillard]: It’s just a complete stoppage of the heart and the whole body.

....

Basically it was the heart stopping. There’s no blood flowing.

He’s not breathing, just inadequate of pretty much everything.

....

[State]: Okay. And at some point was CPR performed— [Dillard]: Oh, yes. [State]: —on this child? Describe how that works.

[Dillard]: CPR on a child that age, you’re using one hand instead of both hands like you would on [an] adult and basically just sternal area.

[State]: Okay. And when doing CPR, can that cause bruises on a child?

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[Dillard]: Oh, yes.

[State]: And where would that bruising appear?

[Dillard]: Primarily in the sternal area.

[State]: Would that cause bruising on the ribs?

[Dillard]: It could.

[State]: Like on the sides—

[Dillard]: Just right here in the sternal area.

[State]: Could that cause bruising to the face?

[Dillard]: No.

[State]: Okay. And at some point did you intubate the child?

[Dillard]: Yes.

[State]: Describe for me how that process works.

[Dillard]: Intubation is—we’ve got a metal handle it’s got a blade on it that we put into the mouth. The back of the tongue that the blade fits in is what we call the vallecula back in there you lift up and see the vocal cords. That’s where the trachea is. We pass a plastic tube through the trachea and then attach this bag valve mask over that and breathe for them. It’s a lot more stabilized airway since he’s not in control of his airway.

[State]: So the purpose of intubation is to help him breathe?

[Dillard]: Exactly.

¶77. Joseph argues the trial court erred by allowing Dillard, over objection, to give expert testimony regarding Joseph’s demeanor at the scene, cardiac arrest, CPR, and intubation. According to Joseph, Dillard “should have [first] been tendered as an expert” since Dillard

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“repeatedly testified to experience as a paramedic and complex medical issues more appropriately introduced through an . . . expert” under Mississippi Rule of Evidence 702.

¶78. “In order to testify as an expert, a witness must first be offered as such and the qualifications established and, if desired, rebutted by opposing counsel.” Graves v. State, 761 So. 2d 950, 954 (Miss. Ct. App. 2000) (citing MRE 702). “The issue for admitting lay opinions is solely whether they are rationally based on the witness’s perceptions and would be helpful.” Id. (citing MRE 701). Under Rule 701,

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

MRE 701.

¶79. “There is a bright line rule to distinguish between the two rules. That is, where, in order to express the opinion, the witness must possess some experience or expertise beyond that of the average, randomly selected adult, it is a [Rule] 702 opinion and not a Rule 701 opinion.” Graves, 761 So. 2d at 954 (citing Miss. State Highway Comm’n v. Gilich, 609 So. 2d 367, 377 (Miss. 1992)).

A. Joseph’s Demeanor

¶80. Despite Joseph’s objection, Dillard did not offer expert “psycholog[ical]” opinion testimony regarding Joseph’s demeanor. Instead, Dillard’s testimony regarding Joseph’s

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demeanor was “rationally based on [Dillard]’s perceptions and w[as] . . . helpful” to understanding the testimony or to determining a fact in issue. Id. (citing MRE 701). Additionally, Dillard’s testimony regarding Joseph’s demeanor was “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” MRE 701(c). Indeed, Dillard’s testimony regarding Joseph’s demeanor at the scene did not require “experience or expertise beyond that of the average, randomly selected adult[.]” Graves, 761 So. 2d at 954 (citing Gilich, 609 So. 2d at 377). As a result, the trial court did not err by allowing Dillard to testify as a lay witness regarding Joseph’s demeanor.

B. Cardiac Arrest

¶81. Dillard’s explanation of cardiac arrest, i.e., “a complete stoppage of the heart and the whole body. . . . [h]e’s not breathing,” was just that—an explanation. Dillard’s testimony regarding cardiac arrest was “rationally based on [Dillard]’s perceptions and w[as] . . . helpful” in that it explained why Dillard was at the residence, what he saw when he arrived, the condition of Hayden upon arrival, and what Dillard did in response. Id. (citing MRE 701). Despite Joseph’s assertion, Dillard’s description of cardiac arrest was not based on scientific, technical, or other specialized knowledge in that it did not require “experience or expertise beyond that of the average, randomly selected adult.” Id. (citing Gilich, 609 So. 2d at 377). As a result, the trial court did not err by allowing Dillard to testify regarding cardiac arrest.

C. CPR and Intubation

¶82. Dillard’s testimony regarding CPR and intubation was “rationally based on [Dillard]’s

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perceptions and w[as] . . . helpful” to clearly understanding his testimony or to determining a fact in issue. Id. (citing MRE 701). Hayden was a “CPR in progress.” Dillard was called to the scene to provide medical care, including life-saving measures. Dillard testified that after he arrived at the scene, Hayden went into cardiac arrest and stopped breathing. As a result, Dillard performed CPR and an intubation. Dillard’s testimony regarding CPR and intubation helped explain why he was at the scene, i.e., to perform life-saving measures, Hayden’s condition upon arrival, i.e., “CPR in progress,” and what he did in response to his personal observations and perceptions, i.e., performed CPR and intubation because Hayden had stopped breathing. And even if Dillard’s testimony as to whether CPR and intubation would have caused bruising or injuries was based on scientific, technical, or other specialized knowledge, as Joseph suggests, the admission of the testimony was harmless error since Dr. Lee opined that neither CPR nor intubation would have caused Hayden’s bruising or injuries. The trial court did not commit reversible error by allowing Dillard’s testimony regarding CPR and intubation.

III. Whether the trial court erred by excluding a character witness’s opinion testimony about Joseph’s truthfulness.

¶83. Joseph testified at trial in his own defense. According to Joseph, “the State repeatedly attacked [his] character for truthfulness during . . . cross-examination.” As a result, Joseph “called Lemecia Gully to testify to her personal opinion that [Joseph] [wa]s a truthful person.” In other words, “the defense called Gully to testify to [Joseph]’s character for truthfulness.” When the State objected to Gully’s testimony, the trial court allowed Joseph to proffer the following testimony outside the presence of the jury:

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[Defense Counsel]: Ms. Gully, I want to turn our attention—do you know Joseph David Heard?

[Gully]: Yes, sir. [Defense Counsel]: How do you know Mr. Joseph?

[Gully]: He—when my daughter was six months old, him and his mother would sort of babysit my daughter.

[Defense Counsel]: Okay. Have you in the community had an opportunity to hear people speak and talk about him, about Mr. Joseph?

[Gully]: Not in the community, no. I only know him that way.

[Defense Counsel]: Okay. Do you know his reputation in the community for truth and veracity?

[Gully]: Yes, sir. [Defense Counsel]: And what is that reputation?

[Gully]: He’s a good-hearted person. He cares about others and stuff.

[Trial Court]: Ma’am, I thought you said you only knew him because he babysat your child.

[Gully]: I don’t know him in the community. [Trial Court]: So you are not aware of his reputation in the community? [Gully]: As far as communicating with other people? [Trial Court]: Yes, ma’am. [Gully]: Oh, no. Not communicating with other people, no.

[Defense Counsel]: Based on knowing him, do you have an opinion of his truth and veracity?

[Gully]: Yes, sir.

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[Defense Counsel]: And what is that opinion?

[Gully] He’s—he’s never told me any kind of stories and everything.

[Defense Counsel]: Judge, that would be the substance of our proffer. We would ask to be allowed to present this in front of the Jury, Your Honor.

[Trial Court]: Do you know his reputation in the community for truthfulness and veracity?

[Gully]: Oh, no, sir.

[Trial Court]: No. State?

[State]: Your Honor, based upon that, we would object to this witness.

[Trial Court]: She doesn’t know it . . . . Can’t testify. You may step down, ma’am.

[Defense Counsel]: She wouldn’t be allowed to give her opinion? She should[,] based on knowing him. She should be able to at least give her opinion on that.

[Trial Court]: What does the law say? I understand what you think it says, but it says she needs to be able to give the reputation for truthfulness, veracity in the community, and she point blank said no. Now I’ve ruled.

[Defense Counsel]: Yes, sir.

¶84. Joseph argues that the trial court erroneously excluded Gully’s testimony. The well-settled standard of review for the admission or exclusion of evidence is abuse of discretion. Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 34 (Miss. 2003) (citing Haggerty v. Foster, 838 So. 2d 948, 958 (Miss. 2002)).

¶85. Under Mississippi Rule of Evidence 608(a):

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A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

MRE 608(a). “Evidence shall be produced in the form of an opinion or reputation.” MRE 608 advisory comm. n.

¶86. In Cooper v. State, we explained as follows:

In 3 Weinstein’s Evidence § 608(01), pp. 608-10-11 (1993), we are told:

The theory underlying the use of evidence of character or conduct for impeachment purposes is that a person who possesses certain inadequate character traits-as evidenced in a variety of ways including that he has acted in a particular way-is more prone than a person whose character, in these respects, is good, to testify untruthfully. It follows from this hypothesis that evidence of his bad character, or conduct is relevant to prove that he is lying . . . .

. . . [C]redibility is often the crucial issue in a case, and character evidence, despite its flaws, “may still serve a purpose in calling to the jury’s attention what might be an otherwise unknown deficiency of the witness and thus give the jury a more adequate basis for judging his testimony.

Section 608(04), pp. 608-24-25 of Weinstein’s treatise also states the effect of Rule 608 as follows:

Attack on Character: Proof by Opinion

Rule 608 departs from previous practice in authorizing proof by opinion whenever proof could be made by reputation, a change endorsed by many commentators who agreed with Wigmore that the exclusion of opinion evidence was “historically unsound”

and “unfortunate.”

. . . Witnesses may now be asked directly to state their opinion of the principal witness’s character for truthfulness

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and they may answer for example, “I think X is a liar.” The rule imposes no prerequisites conditioned upon long acquaintance or recent information about the witness;

cross-examination can be expected to expose defects of lack of familiarity and to reveal reliance on isolated or irrelevant instances of misconduct or the existence of feelings of personal hostility towards the principal witness. (Emphasis added.)

Cooper v. State, 628 So. 2d 1371, 1374 (Miss. 1993) (alterations in original).

¶87. Here, the trial court failed to distinguish between opinion testimony and reputation testimony. This distinction allows a witness to give her own opinion on the truth and veracity of another, absent the foundation needed for reputation evidence. As the United States Court of Appeals for the Eleventh Circuit explained in United States v. Watson, 669 F.2d 1374, 1382 (11th Cir. 1982):

That opinion testimony does not require the foundation of reputation testimony follows from an analysis of the nature of the evidence involved. The reputation witness must have sufficient acquaintance with the principal witness and his community in order to ensure that the testimony adequately reflects the community’s assessment. Michelson v. United States, 335 U.S. 469, 478 (1948). In contrast, opinion testimony is a personal assessment of character.

The opinion witness is not relating community feelings, the testimony is solely the impeachment witness’s own impression of an individual’s character for truthfulness. Hence, a foundation of long acquaintance is not required for opinion testimony. Of course, the opinion witness must testify from personal knowledge. See Fed. R. Evid. 602. But once that basis is established the witness should be allowed to state his opinion, “cross-examination can be expected to expose defects.” 3 Weinstein’s Evidence P 608(04), at 608-20 (1981).

¶88. The trial court abused its discretion when it denied Joseph the opportunity to call Gully to testify regarding her opinion as to Joseph’s character. Nevertheless, the trial court’s abuse of discretion does not amount to reversible error since Joseph fails to show that the

33

trial court’s error prejudiced his defense. See Wilson v. State, 156 So. 3d 808, 810 (Miss. 2013) (“A conviction will not be reversed based on improper exclusion of evidence unless the exclusion results ‘in prejudice and harm.’” (quoting Jackson v. State, 594 So. 2d 20, 25 (Miss. 1992))).

¶89. The record reflects that Joseph could have called other character witnesses. Indeed, Joseph’s amended witness list included five other character witnesses. Joseph, however, chose to rest after the trial court ruled that Gully’s testimony was inadmissible.

¶90. Because Joseph had additional character witnesses available, he fails to show how the trial court’s exclusion of Gully’s testimony prejudiced his defense. As a result, the trial court’s error does not rise to reversible error.

IV. Whether testimony from the State’s forensic expert was the product of reliable principles and methods.

¶91. Allen, a forensic analyst for digital forensics with the attorney general’s office, testified that he used the software program Cellebrite to extract information from Hailey’s and Joseph’s cell phones. The State moved to admit Allen as an expert in the field of computer and cell-phone extractions. In response, Joseph’s defense counsel stated he wished to voir dire the witness. The following discussion then occurred:

[Defense Counsel]: Now, you’re being offered, though—you didn’t do the actual extraction from the phone or did you?

[Allen]: I did.

[Defense Counsel]: Okay. But you’re not here as an expert for the [C]ellebrite, are you?

[Allen]: No, sir.

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[Defense Counsel]: You’re here for the download. That’s what you do; is that correct?

[Allen]: Yes, sir. [Defense Counsel]: And who did the analysis of what was downloaded?

[Allen]: I also perform analysis of the chats and the pictures on them.

[Defense Counsel]: But that’s another subspeciality of what you were being offered as an expert for?

[Allen]: No, sir. It goes hand in hand doing the analysis and the extraction.

[Defense Counsel]: But you’re not here to say that the [Cellebrite] software is accurate and trustworthy, true?

[Allen]: I’m not.

[Defense Counsel]: You’re only here to say that based on what you were given through the [C]ellebrite, this is what you found; is that correct?

[Allen]: Yes, sir.

[Defense Counsel]: And you’re not here to give the validity to the program, correct?

[Allen]: That’s correct.

[Defense Counsel]: Have you ever been qualified as an expert to discuss and/or testify concerning the validity of the software?

[Allen]: No, sir. [Defense Counsel]: And you’re not being offered for that today, are you? [Allen]: No, sir. [Defense Counsel]: So that’s an issue we’re not here to discuss with you,

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correct?

[Allen]: That’s correct.

[Defense Counsel]: Thank you, Judge. . . .

[Trial Court]: Any objection?

[Defense Counsel]: Yes, sir. We object to his testimony as an expert.

[Trial Court]: He will be accepted as an expert in forensic analysis specializing in computer and cell phone extractions.

¶92. Joseph argues the trial court abused its discretion when it admitted Allen as an expert without making a reliability finding under Mississippi Rule of Evidence 702. Under Rule 702,

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

MRE 702.

¶93. Expert testimony is reliable if it is “based on the methods and procedures of science,” not “unsupported speculation.” Ross v. State, 954 So. 2d 968, 996 (Miss. 2007) (citing McLemore, 863 So. 2d at 36). In determining the admissibility of expert testimony, “[t]he trial court must make a ‘preliminary assessment of whether the reasoning or methodology

36

underlying the testimony is scientifically valid and of whether that reasoning and methodology properly can be applied to the facts in issue.’” Bateman v. State, 125 So. 3d 616 (Miss. 2013) (quoting McLemore, 863 So. 2d at 36). Rule 702 “imposes a special gatekeeping obligation on the trial judge to ensure that an opinion offered by an expert is reliable.” United States v. Velarde, 214 F.3d 1204, 1208 (10th Cir. 2000) (internal quotation marks omitted) (quoting United States v. Charley, 189 F.3d 1251, 1266 (10th Cir. 1999)). “While we recognize that the trial court is accorded great latitude in determining how to make . . . reliability findings before admitting expert testimony, . . . the court must, on the record, make some kind of reliability determination.” Id. at 1209.

¶94. But while Allen was offered and admitted as an expert in computer and cell-phone extractions, the information he obtained from Hailey’s and Joseph’s cell phones did not need to be introduced through expert testimony. Because no expert testimony was necessary, no reliability determination under Rule 702 was required.

¶95. In United States v. Williams, 83 F.4th 994, 995 (5th Cir. 2023), Howard Williams was arrested for child sex trafficking. After the arrest, Cellebrite software was used to obtain information from William’s and Jane Doe’s cell phones. Id. To use the software, “an investigator merely plugged each phone into [the Cellebrite device] and ran the program. The program pulled out the user data—including any messages, videos, or emails sent, received, or recently deleted—along with the apps used on the phone[.]” Id.

¶96. “At trial, the prosecution [offered] evidence taken from the Cellebrite extractions of both Williams’s and his victim’s phones[.]” Id. at 996. “Williams objected to the use of the

37

Cellebrite testimony without an expert witness to introduce it[.]” Id. “On voir dire, the police investigator disavowed any particular knowledge of Cellebrite’s technology or of any malware that may have affected the data extraction.” Id. “The district court then overruled Williams’s objection, and the investigator testified to (1) his certifications as a Cellebrite Operator and a Cellebrite Physical Analyzer, (2) the data-extraction process, and (3) the evidence he obtained.” Id.

¶97. “On appeal, Williams claim[ed] that it was reversible error for the [district] court to admit the Cellebrite testimony without an expert witness and a finding of reliability.” Id. The United States Court of Appeals for the Fifth Circuit disagreed, stating,

Williams claims that Cellebrite is a complex technology, ergo, the operation of Cellebrite requires specialized knowledge, and the introduction of a Cellebrite report demands qualification of a witness as an expert. But this ignores the basic realities of life. All the officer did was run a computer program. He offered no technical understanding of the machine or software;

he did not write the program; and he did not opine on any application of specialized knowledge.

During trial, the investigator explained that “[a]s an operator, I purely operate the machine. I am not privy to the programming or how it extracts data.” Thus, he explicitly disclaimed that he was offering expert testimony. This is the antithesis of Rule 702’s requirement of “scientific, technical, or other specialized knowledge.” Fed. R. Evid. 702(a). Rather, the investigator knew no more than anyone else who runs a program on his computer that he did not write.

Williams, 83 F.4th at 996-97 (alteration in original).

¶98. The Court explained:

Every circuit that has addressed this question—whether evidence obtained with Cellebrite technology requires expert testimony for admission—has answered it in the negative. In United States v. Chavez-Lopez, the Fourth Circuit concluded that the sponsoring witness offered only fact testimony, such

38

as “the actions he took to extract the data—hooking the phones up to a computer, following a few prompts, and saving data onto an external drive.”

[United States v. Chavez-Lopez], 767 F. App’x 431, 434 (4th Cir. 2019). “At most, [the witness] offered the opinion that Cellebrite copies data from a cellphone, which he derived from his personal experience using the software.”

Id. That testimony “didn’t require a technical understanding of Cellebrite, and he made no claims about the program’s effectiveness or reliability.” Id.

Similarly, in United States v. Marsh, the witness merely described his training, explained how he used the software, and “confirmed the results by checking the [text] messages on the phone itself.” [United States v. Marsh], 568 F.

App’x 15, 17 (2d Cir. 2014). And in United States v. Ovies, the Ninth Circuit reached the same result. [United States v. Ovies], 783 F. App’x 704, 707 (9th Cir. 2019), cert. denied, [589] U.S. [1155], 140 S. Ct. 820, 205 L. Ed. 2d 498 (2020). Reasoning similarly to the Fourth Circuit in Chavez-Lopez, the Ninth Circuit found that the witness’s testimony was not based on technical or specialized knowledge, as he “testified only about the steps he took using the Cellebrite program” and “did not opine as to the reliability” of Cellebrite. Id.

Williams, 83 F.4th at 997 (alterations in original).

¶99. The Court found as follows:

We join our sister circuits. All the investigator testified to was how he downloaded the information from the phones using Cellebrite technology. At no point did he speak to the reliability of the software, except that he double-checked some of the report by looking directly at the source material in the phones themselves. To that end, he did not state any information on how Cellebrite operated in a technical sense, nor information that was beyond the knowledge of an average cell phone user. The investigator did not “implicitly vouch for the accuracy or reliability of Cellebrite’s software,” as Williams claims. Rather, the investigator acknowledged his lack of knowledge about the software and stated that he was merely an operator. Notably, the cross-examination of the investigator did not probe the reliability of Cellebrite technology.

Without a showing of specialized knowledge, the mere use and understanding of a Cellebrite extract at trial is insufficient to require an expert. Operating a Cellebrite device and understanding its report require knowledge in the realm of a reasonably tech-savvy lay person, regardless of the investigator’s testimony that he was a “certified” operator and analyzer.

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Id. at 997-98 (footnote omitted). The Court concluded that “[w]hen law enforcement uses Cellebrite to pull information from a phone and a lay juror would require no additional interpretation to understand that information, the party does not need to introduce the evidence through an expert.” Id. at 995.

¶100. Here, Allen testified that he used “[C]ellebrite . . . phone extracting software . . . to obtain the data forensically from the device” and then “use[d] another [C]ellebrite program called Physical Analyzer to go through the data and sort it for us so we can see all the messages, all the images in specific areas.” He explained that the software program is on his computer, that he plugs the cell phone into his computer, and that the software program then downloads the data. He further explained that Cellebrite doesn’t manipulate the data or “change any of the time or dates associated with the images or the texts collected[.]” And while Allen was trained on how to use the software program, he emphasized that Cellebrite does not “teach you the interworkings of their intellectual property.”

¶101. Allen further testified that he reviewed all of the text messages between Hailey and Joseph and “did a side-by-side comparison” with the data obtained from Cellebrite. But Allen confirmed that he was “not [t]here to verify . . . the software from [C]ellebrite,” and he did not speak to the software’s reliability.

¶102. As in Williams, “[a]ll [Allen] did was run a computer program. He offered no technical understanding of the machine or software; he did not write the program; and he did not opine on any application of specialized knowledge.” Id. at 996. Like the investigator in Williams, Allen simply “operate[d] the machine” and was “not privy to the programming

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or how it extracts data.” Id. (internal quotation mark omitted). In fact, Allen agreed that Cellebrite does not “want anybody to know how they’re doing it.” And Allen stated that he was not an expert for Cellebrite or its validity. Thus, as in Williams, Allen “explicitly disclaimed that he was offering expert testimony” and “knew no more than anyone else who runs a program on his computer that he did not write.” Id. at 996-97.

¶103. Allen “offered only fact testimony, such as ‘the actions he took to extract the data—hooking the phones up to a computer, following a few prompts, and saving data onto an external drive.’” Id. at 997 (citing Chavez-Lopez, 767 F. App’x at 434). He “merely described his training, explained how he used the software, and ‘confirmed the results by checking the [text] messages on the phone itself.’” Id. (alteration in original) (citing Marsh, 568 F. App’x at 17). As in Williams,

All [Allen] testified to was how he downloaded the information from the phones using Cellebrite technology. At no point did he speak to the reliability of the software, except that he double-checked some of the report by looking directly at the source material in the phones themselves. To that end, he did not state any information on how Cellebrite operated in a technical sense, nor information that was beyond the knowledge of an average cell phone user.

[Allen] did not “implicitly vouch for the accuracy or reliability of Cellebrite’s software,” . . . . Rather, [Allen] acknowledged his lack of knowledge about the software[’s] [interworkings].

Id. at 997.

¶104. “Without a showing of specialized knowledge, the mere use and understanding of a Cellebrite extract at trial is insufficient to require an expert.” Id. at 998. Because an expert witness was not required here, neither was a reliability determination regarding the expert’s testimony. Thus, the trial court did not err by failing to make a reliability determination

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under Rule 702.

V. Whether Joseph’s death sentence is enforceable under Enmund v.

Florida and Mississippi Code Section 99-19-101(7).

¶105. In Enmund v. Florida, “[t]he United States Supreme Court . . . held that the Eighth Amendment prohibits the imposition of the death penalty against a person who aids and abets in the commission of a felony that results in death, but who did not actually kill, attempt to kill, or intend that a killing would take place.” Ronk v. State, 172 So. 3d 1112, 1145 (Miss. 2015) (citing Enmund v. Florida, 458 U.S. 782, 797, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982)). In response to Enmund, Mississippi amended its capital sentencing scheme. See S.B. 2699, Reg. Sess., 1983 Miss. Laws ch. 429. Under Mississippi Code Section 99-19- 101(7),

In order to return and impose a sentence of death the jury must make a written finding of one or more of the following:

(a) The defendant actually killed;

(b) The defendant attempted to kill;

(c) The defendant intended that a killing take place;

(d) The defendant contemplated that lethal force would be employed.

Miss. Code Ann. § 99-19-101(7) (Rev. 2020).

¶106. Here, the jury found that Joseph attempted to kill Hayden. Joseph challenges the sufficiency of the evidence supporting that finding.

¶107. “When the sufficiency of the evidence is challenged, we must view the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the

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verdict.” Bishop v. State, 812 So. 2d 934, 948 (Miss. 2002). “We have no authority to disturb the verdict short of a conclusion that no rational trier of fact could have found the fact at issue beyond a reasonable doubt.” Id. (citing White v. State, 532 So. 2d 1207, 1220 (Miss. 1988)).

¶108. According to Joseph,

Hailey’s testimony and corroborating evidence prove that Hailey killed Hayden. Hailey testified that [Joseph] did not plan to kill, attempt to kill, or contemplate that lethal force would be employed. And, the available proof reinforces an inference that Hailey alone abused her son. Because nothing in the record satisfies Section 99-19-101(7), the death verdict dies.

But despite Hailey’s testimony that Joseph did not attempt to kill Hayden, sufficient evidence in the record supports the jury’s finding.

¶109. Hailey testified that Joseph was violent toward Hayden and explained as follows:

There w[ere] days where he would be upset with Hayden because he used the bathroom on himself or Hayden would start crying for no reason. He would put him in a corner, tell him to put his hands up, or he would tell him to “do it,”

which is to lift his arms up and down over and over. If he was in trouble because he used the bathroom on himself, he would make him sit on the toilet for hours.

Hailey also explained that Joseph would slap and punch Hayden in the ribs and face and would pull his arms.

¶110. Text messages between Hailey and Joseph corroborate Hailey’s testimony that Joseph abused Hayden. Indeed, several text messages from Joseph document instances of Joseph’s abuse of Hayden, consistent with Hailey’s testimony.

¶111. Regarding the day in question, Hailey testified that she saw Joseph beat Hayden like never before. She explained that on the morning of December 27,

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[Joseph] saw Hayden had [soiled] his diaper, so [Joseph] picked him up, and Hayden started crying. [Joseph] brought [Hayden] to the bathroom to give him a bath, and he took him out after he bathed him. [Joseph] brought [Hayden] to the living room [and] gave him some medicine. Hayden was still crying, so then [Joseph] . . . beat[] [Hayden], and [Hayden] [soiled his diaper] again.

Hailey testified that she saw Joseph kneeling in front of Hayden punching Hayden in the ribs. According to Hailey, Joseph was angry and “was going back and forth with both [hands].” Hailey stated that Hayden’s arms were “up over his head” while Joseph repeatedly punched him with closed fists. And even after Hailey put her hand over Hayden’s mouth, Joseph continued to punch Hayden in the head, chest, and ribs until Hayden stopped breathing.

¶112. Dr. Lee testified that upon arrival to the emergency room, Hayden had “bruising everywhere.” She stated that she had never seen a child that had sustained so much trauma, and she explained that the newer, redder bruises would have occurred within twenty-four hours, most likely within one to two hours. Dr. Lee opined that Hayden’s injuries were consistent with being hit or punched with something. Moreover, Dr. Lee opined that being punched in the chest or abdomen would hasten someone’s death by smothering.

¶113. Dr. Turner noted numerous bruises over Hayden’s body, including his head, face, torso, arms, and legs. She also noted hemorrhages in Hayden’s eyes. Like Dr. Lee, Dr. Turner opined that Hayden’s injuries were consistent with a blunt-force object such as a closed fist.

¶114. Joseph asserts that “it is plausible to accept that Hailey alone was responsible for abusing Hayden” since she admitted that she “used to beat [Hayden] with a belt,”7 that she

7 Hailey agreed under cross-examination that she told the police “that she used to beat Hayden with a belt in May 2021.”

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would “at times join in on th[e] abuse,”8 and that she would “lose control due to her anger.”9 He claims:

The record does not warrant a finding that [he] had any intention of participating in or facilitating a murder. . . . Having heard from both Hailey and [him], and in the absence of any evidence implicating [him] specifically, it cannot be said that [he] attempted to kill Hayden beyond a reasonable doubt.

¶115. But despite his assertions and his general denial of culpability, sufficient evidence “implicat[ed]” Joseph. The jury heard testimony that Joseph punched Hayden, a two-year- old weighing only thirty pounds, over and over again in the head, chest, and ribs, with no way for him to defend himself or to avoid Joseph’s abuse. Even after Hailey covered Hayden’s mouth, Joseph continued to punch Hayden in the head, chest, and ribs until he stopped breathing. The jury further heard evidence of Joseph’s frustration and irritation with Hayden and his past abuse of Hayden.10 And the jury heard that Joseph was unhappy in his marriage, that he wanted a divorce, and that he would be mean in hopes of Hailey giving him a divorce. Joseph’s “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement.” Tison v. Arizona, 481 U.S. 137, 158, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987).

8 Hailey explained that Joseph “would tell [her] [that] if [she] didn’t [join in on beating Hayden], he was going to beat [her] too.”

9 Hailey admitted at trial that “on the morning of the incident,” she told the police that she “did not like to spank Hayden because [she] would lose control due to [her] anger.”

10 While Joseph denied knowing how Hayden received the bruises, Joseph admitted that he was alone with Hayden the majority of the day while Hailey was at work and that he never saw Hailey “put any marks on [Hayden].” And medical testimony refutes Joseph’s testimony that Hayden’s injuries could have come from falls off the couch or bed.

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¶116. The jury heard all of the testimony and considered all of the evidence, including Joseph’s version of events, and found that Joseph attempted to kill Hayden. “[V]iew[ing] the evidence and all reasonable inferences which may be drawn therefrom in the light most consistent with the verdict[,]” we find that a “rational trier of fact could have found the fact at issue beyond a reasonable doubt.” Bishop, 812 So. 2d at 948 (citing White, 532 So. 2d at 1220). Because sufficient evidence exists to support the jury’s finding, Joseph’s argument fails.

VI. Whether Joseph’s trial counsel provided ineffective assistance of counsel for failing to offer mitigating evidence during the penalty phase.

¶117. Joseph argues he received ineffective assistance of counsel due to his trial counsel’s failure to call witnesses or to offer any mitigating evidence during the penalty phase. As previously discussed, “[g]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings.” Ross, 288 So. 3d at 324 (internal quotation marks omitted) (quoting Bell, 202 So. 3d at 1242). “This Court will address such claims on direct appeal when ‘[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that the findings of fact by a trial judge able to consider the demeanor of witnesses, etc.[,] are not needed.’” Id. (alteration in original) (quoting Bell, 202 So. 3d at 1242). When neither of these factors is present, “the appropriate procedure is to deny relief, preserving the defendant’s right to argue this issue through a petition for post-conviction relief[.]” Dartez, 177 So. 3d at 423 (citing Read, 430 So. 2d at 837).

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¶118. Here, neither factor is present, and the record before us lacks sufficient evidence and information in order to address Joseph’s ineffective-assistance-of-counsel claim on direct appeal.11 Thus, Joseph’s ineffective-assistance-of-counsel claim is denied at this time, but Joseph’s right to argue this issue is preserved for post-conviction review. Id. (citing Read, 430 So. 2d at 837).

VII. Whether Joseph’s death sentence is constitutionally disproportionate.

¶119. Under Mississippi Code Section 99-19-105(3)(c) (Rev. 2020), we must consider “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant[.]” According to Joseph,

This review provides a measure of confidence that “[the] penalty is neither wanton, freakish, excessive, nor disproportionate,” Gray v. State, 472 So. 2d 409, 423 (Miss. 1985) [,reversed in part on other grounds by Gray v.

Mississippi, 481 U.S. 648, 107 S. Ct. 2045, 95 L. Ed. 2d 622 (1987),] and that death sentences are limited only to those offenders whose “extreme culpability makes them the most deserving of execution.” Roper v. Simmons, 543 U.S.

551, 568 (2005); Atkins v. Virginia, 536 U.S. 304, 319 (2002).

¶120. Joseph asserts that “Hailey alone actually killed [Hayden] . . . and . . . was given a life sentence. [He] neither killed, attempted to kill, nor intended to kill . . . [and] was sentenced to die.” Joseph argues that “under the facts of this case, it is impossible to reconcile Hailey’s [life] sentence with [his] [death sentence][.]” In support of his argument, Joseph relies on Reddix v. State, 547 So. 2d 792 (Miss. 1989).

11 The record reflects that after the State rested, defense counsel discussed with Joseph what, if any, mitigating evidence he wanted to present. After meeting with Joseph, defense counsel announced that the defense would rest. Neither the trial court, nor this Court was privy to the discussion or the reason behind Joseph’s decision not to present mitigation evidence.

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¶121. In Reddix, Willie Reddix was convicted of capital murder and sentenced to death. Id. at 793. On rehearing, the Court found “that Reddix’[s] death sentence [wa]s disproportionate to the penalty imposed in similar capital cases, considering both the crime and the appellant,” and it remanded the case to the circuit court with instructions that Reddix be resentenced to life imprisonment. Id. at 795. The Court explained:

The crime underlying Reddix’[s] conviction occurred approximately fourteen years ago, on December 2, 1974. At that time Reddix was eighteen years old, suffering some mental illness and mild retardation. Reddix’[s] accomplice, Larry Jones, was also a borderline to mildly retarded man.

The facts of the crime come from Reddix’[s] confession. He and Jones had a plan to rob Arthur Weinberger, a Biloxi clothing store owner. Reddix distracted Weinberger “to keep him from seeing Larry [Jones]”. Nothing in the confession tells us what it was that Reddix was to keep Weinberger from seeing Jones do. Reddix watched during the three seconds it took for Jones to hit Weinberger “about three times” with a wrench. Reddix did nothing physically to assist Jones in this assault. Reddix later checked to see if Weinberger was dead and, finding him alive, placed Weinberger’s coat under his head before leaving the store.

Reddix, 547 So. 2d at 794 (fourth alteration in original).

¶122. Joseph’s reliance on Reddix is misplaced since Reddix is distinguishable. Unlike Reddix, Joseph was thirty-seven years old when the crime occurred, and no evidence was presented that Joseph suffers from mental illness or mild retardation.12 Id. And unlike Reddix, Joseph “physically . . . assist[ed] [Hailey]” in Hayden’s death. Id. Indeed, the testimony shows that Joseph actively assisted and participated in Hayden’s death, i.e., he repeatedly punched two-year-old Hayden in the head, chest, and ribs with his closed fists.

12 A mental evaluation performed by Dr. John Montgomery showed no signs of mental illness or retardation.

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Even after Hailey covered Hayden’s mouth, Joseph continued to beat Hayden in the head, chest, and ribs until he stopped breathing. Additionally, text messages show Joseph’s frustration with Hayden and his history of abuse of Hayden.

¶123. The Court has upheld the death penalty for capital murders committed during the commission of felony child abuse. See, e.g., Wilson v. State, 21 So. 3d 572 (Miss. 2009); Bennett v. State, 933 So. 2d 930 (Miss. 2006); Faraga v. State, 514 So. 2d 295 (Miss. 1987). We have further upheld the death penalty in cases in which multiple wounds were inflicted. See, e.g., King v. State, 960 So. 2d 413 (Miss. 2007).

¶124. Sufficient evidence was presented to support the jury’s findings and death sentence. The jury’s “sentence of death is [neither] excessive [n]or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant[.]” § 99-19- 105(3)(c).

VIII. Whether the trial court erred by giving a sentencing instruction regarding the heinous, atrocious, or cruel (HAC) aggravating circumstance.

¶125. Sentencing Instruction No. 4 instructed the jury that it could consider the aggravating circumstance that “[t]he capital offense was especially heinous, atrocious or cruel.” Miss. Code Ann. § 99-19-101(5)(i) (Rev. 2020). Sentencing Instruction No. 4 instructed the jury as follows:

The Court instructs the Jury that in considering whether the capital offense was especially heinous, atrocious or cruel; heinous means extremely wicked or shockingly evil; atrocious means outrageously wicked and vile; and cruel means designed to inflict a high degree of pain with indifference to, or even enjoyment of the suffering of others.

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An especially heinous, atrocious or cruel capital offense is one accompanied by such additional acts as to set the crime apart from the norm of capital murders, the conscienceless or pitiless crime which is unnecessarily torturous to the victim. If you find from the evidence beyond a reasonable doubt that the defendant utilized a method of killing which caused serious mutilation, that there was dismemberment of the body prior to death, that the defendant inflicted physical or·mental pain before death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim, then you may find this aggravating circumstance.

¶126. Joseph argues the instruction is vague and “affords the jury little guidance as it conflates Hailey’s involvement with [his] alleged participation in the crime.” He claims the instruction “is too inclusive, allowing the jury to apply anything in evidence, including Hailey’s actions and intent, to the HAC aggravator.” According to Joseph, “[a]bsent language limiting the HAC aggravator to [his] actions alone, the instruction ties Hailey’s involvement to [his].”

¶127. “The primary concern in the Eighth Amendment context has been that the sentencing decision be based on the facts and circumstances of the defendant, his background, and his crime.” Clemons v. Mississippi, 494 U.S. 738, 748, 110 S. Ct. 1441, 108 L. Ed. 2d 725 (1990). “The aggravating circumstance may be used only when the jury is instructed as to its meaning in a manner which will channel the jury’s discretion in sentencing.” Taylor v. State, 672 So. 2d 1246, 1276 (Miss. 1996). “This Court has recognized that the ‘especially heinous, atrocious or cruel’ aggravating circumstance, without limiting instruction, is unconstitutionally vague and, consequently, an invalid aggravating circumstance.” Dickerson, 175 So. 3d at 30 (internal quotation marks omitted) (quoting Brown v. State, 798 So. 2d 481, 501 (Miss. 2001)).

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¶128. In Batiste v. State, 121 So. 3d 808, 870 (Miss. 2013), the jury was instructed that it could consider the HAC aggravating circumstance. Importantly,

The trial court also gave a limiting instruction defining what the jury could consider in reaching its findings on the HAC aggravating circumstance. This instruction stated that “an especially heinous, atrocious, or cruel Murder is one accompanied by such additional acts as to set the homicide apart from other Murders; a conscienceless or pitiless crime which is unnecessarily torturous to the victim.”

Id.

¶129. On appeal, Batiste “argue[d] that the limiting instruction was unconstitutionally vague and self-referential, and did not properly limit the aggravator in violation of the Eighth Amendment.” Id. The Court disagreed, stating:

In King v. State, 960 So. 2d 413, 440 (Miss. 2007), this Court held that, at a minimum, a HAC instruction must define a “heinous, atrocious, or cruel”

offense as “a conscienceless or pitiless crime which is unnecessarily torturous to the victim.” We noted that, in Bell v. Cone, 543 U.S. 447, 125 S. Ct. 847, 160 L. Ed. 2d 881, 893 (2005), the United States Supreme Court held that “this narrowing construction was not unconstitutionally vague.” Id. (citing Bell, 543 U.S. at 458, 125 S. Ct. at 854-55). We find that the limiting instruction was a proper statement of the law.

Batiste, 121 So. 3d at 870.

¶130. Here, as in Batiste, Sentencing Instruction No. 4 defined “a ‘heinous, atrocious, or cruel’ offense as ‘a conscienceless or pitiless crime which is unnecessarily torturous to the victim.’” Id. (quoting King, 960 So. 2d at 440). The instruction further “defin[ed] what the jury could consider in reaching its findings on the HAC aggravating circumstance.” Id.

¶131. Additionally, in Dickerson, the Court approved the identical instruction given in the instant case. Dickerson, 175 So. 3d at 30-31. The Court held:

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The instruction included the language approved in Bell v. Cone, that the offense must be “a conscienceless or pitiless crime which is unnecessarily torturous to the victim,” and went even further to define heinous, atrocious, and cruel and to include specific examples of what that type of behavior could look like. The instruction was not unconstitutionally vague or overbroad.

Dickerson, 175 So. 3d at 31.

¶132. Likewise, in Godbolt v. State, we noted that “[t]his exact HAC instruction has been approved by this Court.” Godbolt v. State, 407 So. 3d 86, 126 (Miss. 2024) (citing King v. State, 784 So. 2d 884, 891 (Miss. 2001)). As a result, “the HAC aggravator instruction was constitutionally sound and sufficient to avoid the arbitrary imposition of the death penalty.” Id.

¶133. Regarding Joseph’s assertion that the instruction is “too inclusive,” the record clearly reflects that the given instruction limits the HAC aggravator to Joseph’s actions. The instruction states that in order to find the HAC aggravating circumstance, the jury must find “from the evidence beyond a reasonable doubt that the defendant . . . inflicted physical or·mental pain before death, that there was mental torture and aggravation before death, or that a lingering or torturous death was suffered by the victim[.]” (Emphasis added.) The jury heard testimony that Joseph “inflicted physical . . . pain before death” and that “a lingering or torturous death was suffered by [Hayden].”

¶134. Joseph also argues there was insufficient evidence to support the HAC aggravator, stating, “there [wa]s no proof of any ‘additional acts,’ acts attributable to [him], to elevate his alleged involvement to heinous, atrocious, or cruel.” He claims “[a]llegations of abuse defined in general terms are insufficient to justify an HAC finding[.]”

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¶135. Regarding the sufficiency of the evidence presented by the State to warrant the HAC aggravator instruction, we must “determine whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” Id. at 126 (internal quotation marks omitted) (quoting Ambrose v. State, 133 So. 3d 786, 791 (Miss. 2013)). “[T]his Court will reverse only when the facts and inferences which were considered ‘point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty.’” Id. (alteration in original) (internal quotation marks omitted) (quoting Ambrose, 133 So. 3d at 791).

¶136. When viewing the evidence in the light most favorable to the State, sufficient evidence was presented to warrant the HAC aggravator instruction. Dr. Lee testified that it was the “most horrific scene” she had seen as an emergency-room physician and that she had never seen a child that had sustained so much trauma. The State presented sufficient evidence that Hayden had numerous bruises, fractures, and injuries, both internal and external, over his entire body and that his death was painful and not immediate. And the State presented sufficient evidence that Joseph inflicted those bruises, fractures, and/or injuries.

¶137. “We have held that ‘“[t]he number of wounds . . . and the fact that death was not immediate, but prolonged” may all be considered as evidence supporting a jury’s finding of the HAC aggravator.’” Dickerson, 175 So. 3d at 30 (first alteration in original) (quoting Batiste, 121 So. 3d at 870). “When evidence to that effect has been presented to the jury, the

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Court has affirmed the [trial court]’s decision to grant an instruction on the especially heinous, atrocious, and cruel aggravating factor.” Id. Additionally, in Wilson, the Court found sufficient evidence was presented that the child’s death was especially heinous, atrocious, and cruel since the child victim “was extremely vulnerable because of her tender age and small size; that she did not have means to defend herself from the Defendant’s blows or to avoid his attack.” Wilson, 21 So. 3d at 592. Here, as in Wilson, sufficient evidence was presented that Hayden’s death was especially heinous, atrocious, and cruel “in that [he] was extremely vulnerable because of [his] tender age and small size; that [he] did not have means to defend [himself] from [Joseph]’s blows or to avoid his attack.”13 Id.

¶138. Joseph further argues the HAC aggravating factor does not apply to him since he “neither ordered nor directed the particular manner in which [Hayden] was killed.” He claims that while “Hailey’s actions may have been heinous, atrocious, or cruel, . . . no aspect of [his] alleged involvement in the murder that he could control justified applying the HAC aggravator in his case.” In support, Joseph relies on Williams v. State, 622 So. 2d 456 (Fla. 1993).

¶139. In Williams, the Supreme Court of Florida found that “[w]hile the record reflects that the manner in which the victims were killed was heinous, atrocious, and cruel, the State in this instance failed to prove beyond a reasonable doubt that Williams knew or ordered the particular manner in which the victims were killed.” Id. at 463. The Court explained “that this aggravating factor cannot be applied vicariously, absent a showing by the State that the

13 Hailey testified that Hayden’s arms were “up over his head” while Joseph repeatedly punched him with closed fists.

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defendant directed or knew how the victim would be killed.” Id. The Court concluded that “the trial court erred in applying this aggravating factor vicariously.” Id. at 463-64.

¶140. Joseph’s reliance on Williams is misplaced. In Williams, “[i]t was undisputed that Williams was in Miami at the time the crimes were committed and did not shoot or stab any of the victims.” Id. at 459. Here, unlike Williams, Joseph was present and actively participated in Hayden’s death.14 Indeed, the record reflects more than general allegations of abuse, as Joseph suggests.

¶141. And while Joseph relies heavily on the fact that he “tried to save [Hayden’s] life through CPR,” the record reflects that Joseph showed no emotion at the scene15 and testified that he was scared for himself.16

¶142. Sufficient evidence was presented to warrant the HAC aggravator instruction. Thus, the trial court did not err by giving the instruction.

IX. Whether the death sentence is unconstitutional, cruel, and unusual punishment.

¶143. Joseph argues “Mississippi’s [death] sentencing statutes . . . are unconstitutional in

14 Dr. Lee opined that being punched in the chest or abdomen would hasten someone’s death by smothering if not alone cause it.

15 Ritchie, who responded to the 911 call, testified that Joseph was not crying but was instead “calm” and acted as if “[i]t was like another day.” Paramedic Dillard also testified that Joseph seemed “nonchalant about the situation.”

16 It was only after his defense counsel asked who else he was scared for that Joseph responded he was “scared for Hayden as well[.]” Additionally, text messages show that Joseph researched remedies to quickly heal Hayden’s bruises. And Hailey testified that Joseph would not “want people to come to the house because Hayden had bruises, and [Joseph] knew that [they] would get in trouble.”

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that they sanction the cruel and unusual punishment of death and fail to protect against its arbitrary and unreliable application.” Joseph, however, “acknowledges that neither this Court nor the United States Supreme Court has yet adopted the position he advances.”

¶144. “As this stance has not been recognized, [Joseph]’s death sentence[] [is] not unconstitutional.” Godbolt, 407 So. 3d at 127 (citing Dickerson, 175 So. 3d at 33-34; Chamberlin v. State, 55 So. 3d 1046, 1056 (Miss. 2010); Bennett v. State, 990 So. 2d 155, 160-61 (Miss. 2008)).

X. Whether cumulative error deprived Joseph of a fundamentally fair trial.

¶145. Joseph argues, “[g]iven the litany of errors in this case . . . , the cumulative error doctrine requires reversal.” “This Court may reverse a conviction and/or sentence based upon the cumulative effect of errors that do not independently require reversal.” Keller v. State, 138 So. 3d 817, 876-77 (Miss. 2014) (quoting Manning v. State, 884 So. 2d 717, 730 (Miss. 2004)). “It is true that in capital cases, although no error, standing alone, requires reversal, the aggregate effect of various errors may create an atmosphere of bias, passion and prejudice that they effectively deny the defendant a fundamentally fair trial.” Id. (internal quotation marks omitted) (quoting Manning, 884 So. 2d at 730).

¶146. Here, the record does not reflect an “aggregate effect of various errors” resulting in “an atmosphere of bias, passion and prejudice . . . effectively deny[ing] [Joseph] a fundamentally fair trial.” Id. (internal quotation mark omitted) (quoting Manning, 884 So. 2d at 730). As a result, the cumulative-error doctrine does not apply or require reversal in this case.

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XI. Section 99-19-105(3) Review

¶147. Having addressed all of Joseph’s issues raised on appeal, we now address the Court’s statutorily mandated duty to review Joseph’s death sentence under Mississippi Code Section 99-19-105(3). Under Section 99-19-105(3), the Court shall determine the following:

(a) Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor;

(b) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in Section 99-19-101;

(c) Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant; and

(d) Should one or more of the aggravating circumstances be found invalid on appeal, the Mississippi Supreme Court shall determine whether the remaining aggravating circumstances are outweighed by the mitigating circumstances or whether the inclusion of any invalid circumstance was harmless error, or both.

Miss. Code Ann. § 99-19-105(3) (Rev. 2020).

¶148. There is no evidence that Joseph’s death sentence “was imposed under the influence of passion, prejudice or any other arbitrary factor[.]” § 99-19-105(3)(a).

¶149. The jury found that the following two aggravating circumstances applied under Section 99-19-101(5): (1) “[t]he capital offense was committed while [Joseph] was engaged, or was an accomplice, in the commission of, or an attempt to commit, . . . felonious abuse or battery of a child in violation of subsection (2) of Section 97-5-39,” § 99-19-101(5)(d), and (2) “[t]he capital offense was especially heinous, atrocious or cruel.” § 99-19-101(5)(i). As previously discussed, sufficient evidence was presented in support of these aggravating

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circumstances. § 99-19-105(3)(b).

¶150. As discussed, Joseph’s death sentence is not “excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant[.]” § 99-19- 105(3)(c).

¶151. Having not found one or more of the aggravating circumstances invalid on appeal, Section 99-19-105(3)(d) is inapplicable.

CONCLUSION

¶152. Joseph’s capital-murder conviction and death sentence are affirmed.

¶153. AFFIRMED.

RANDOLPH, C.J., KING AND COLEMAN, P.JJ., ISHEE, SULLIVAN AND BRANNING, JJ., CONCUR. WILSON, J., NOT PARTICIPATING.

58

APPENDIX

DEATH CASES AFFIRMED BY THIS COURT Martez Abram v. State, 420 So. 3d 881 (Miss. 2025).

Willie Cory Godbolt v. State, 407 So. 3d 86 (Miss. 2024).

Tony Terrell Clark v. State, 343 So. 3d 943 (Miss. 2022).

Alberto Julio Garcia v. State, 300 So. 3d 945 (Miss. 2020).

Abdur Rahim Ambrose v. State, 254 So. 3d 77 (Miss. 2018).

Curtis Giovanni Flowers v. State, 240 So. 3d 1082 (Miss. 2017), rev’d and remanded, 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019).

Timothy Nelson Evans v. State, 226 So. 3d 1 (Miss. 2017).

James Cobb Hutto III v. State, 227 So. 3d 963 (Miss. 2017).

David Cox v. State, 183 So. 3d 36 (Miss. 2015).

David Dickerson v. State, 175 So. 3d 8 (Miss. 2015).

Timothy Robert Ronk v. State, 172 So. 3d 1112 (Miss. 2015).

Curtis Giovanni Flowers v. State, 158 So. 3d 1009 (Miss. 2014), vacated, 136 S. Ct.

2157, 195 L. Ed. 2d 817 (2016).

Caleb Corrothers v. State, 148 So. 3d 278 (Miss. 2014), leave to seek PCR granted in part and denied in part, 255 So. 3d 99 (Miss. 2017).

Jason Lee Keller v. State, 138 So. 3d 817 (Miss. 2014), leave to seek PCR granted in part and denied in part, 229 So. 3d 715 (Miss. 2017).

Leslie Galloway III v. State, 122 So. 3d 614 (Miss. 2013).

Bobby Batiste v. State, 121 So. 3d 808 (Miss. 2013), leave to seek PCR granted, 184 So. 3d 290 (Miss. 2016).

Roger Lee Gillett v. State, 56 So. 3d 469 (Miss. 2010).

59

Moffett v. State, 49 So. 3d 1073 (Miss. 2010).

Pitchford v. State, 45 So. 3d 216 (Miss. 2010).

Goff v. State, 14 So. 3d 625 (Miss. 2009).

Wilson v. State, 21 So. 3d 572 (Miss. 2009).

Chamberlin v. State, 989 So. 2d 320 (Miss. 2008).

Loden v. State, 971 So. 2d 548 (Miss. 2007).

King v. State, 960 So. 2d 413 (Miss. 2007).

Bennett v. State, 933 So. 2d 930 (Miss. 2006).

Havard v. State, 928 So. 2d 771 (Miss. 2006).

Spicer v. State, 921 So. 2d 292 (Miss. 2006).

Hodges v. State, 912 So. 2d 730 (Miss. 2005).

Walker v. State, 913 So. 2d 198 (Miss. 2005).

Le v. State, 913 So. 2d 913 (Miss. 2005), leave to seek PCR denied, 967 So. 2d 627 (Miss. 2007), leave to seek second PCR granted, 2013-DR-00327-SCT (Miss. Jan. 26, 2016).

Brown v. State, 890 So. 2d 901 (Miss. 2004).

Powers v. State, 883 So. 2d 20 (Miss. 2004)

Branch v. State, 882 So. 2d 36 (Miss. 2004).

Scott v. State, 878 So. 2d 933 (Miss. 2004).

Lynch v. State, 877 So. 2d 1254 (Miss. 2004).

Dycus v. State, 875 So. 2d 140 (Miss. 2004).

Byrom v. State, 863 So. 2d 836 (Miss. 2003).

Howell v. State, 860 So. 2d 704 (Miss. 2003).

60

Howard v. State, 853 So. 2d 781 (Miss. 2003). Walker v. State, 815 So. 2d 1209 (Miss. 2002). *following remand. Bishop v. State, 812 So. 2d 934 (Miss. 2002). Stevens v. State, 806 So. 2d 1031 (Miss. 2002). Grayson v. State, 806 So. 2d 241 (Miss. 2002). Knox v. State, 805 So. 2d 527 (Miss. 2002). Simmons v. State, 805 So. 2d 452 (Miss. 2002). Berry v. State, 802 So. 2d 1033 (Miss. 2001). Snow v. State, 800 So. 2d 472 (Miss. 2001). Mitchell v. State, 792 So. 2d 192 (Miss. 2001). Puckett v. State, 788 So. 2d 752 (Miss. 2001). * following remand. Goodin v. State, 787 So. 2d 639 (Miss. 2001). Jordan v. State, 786 So. 2d 987 (Miss. 2001). Manning v. State, 765 So. 2d 516 (Miss. 2000). *following remand. Eskridge v. State, 765 So. 2d 508 (Miss. 2000). McGilberry v. State, 741 So. 2d 894 (Miss. 1999). Puckett v. State, 737 So. 2d 322 (Miss. 1999). *remanded for Batson hearing. Manning v. State, 735 So. 2d 323 (Miss. 1999). *remanded for Batson hearing. Hughes v. State, 735 So. 2d 238 (Miss. 1999). Turner v. State, 732 So. 2d 937 (Miss. 1999). Smith v. State, 729 So. 2d 1191 (Miss. 1998).

61

Burns v. State, 729 So. 2d 203 (Miss. 1998).

Jordan v. State, 728 So. 2d 1088 (Miss. 1998).

Gray v. State, 728 So. 2d 36 (Miss. 1998).

Manning v. State, 726 So. 2d 1152 (Miss. 1998).

Woodward v. State, 726 So. 2d 524 (Miss. 1997).

Bell v. State, 725 So. 2d 836 (Miss. 1998), post-conviction relief granted in part and denied in part, 725 So. 2d 836 (Miss. 2011).

Evans v. State, 725 So. 2d 613 (Miss. 1997).

Brewer v. State, 725 So. 2d 106 (Miss. 1998).

Crawford v. State, 716 So. 2d 1028 (Miss. 1998).

Doss v. State, 709 So. 2d 369 (Miss. 1996).

Underwood v. State, 708 So. 2d 18 (Miss. 1998).

Holland v. State, 705 So. 2d 307 (Miss. 1997).

Wells v. State, 698 So. 2d 497 (Miss. 1997).

Wilcher v. State, 697 So. 2d 1087 (Miss. 1997).

Wiley v. State, 691 So. 2d 959 (Miss. 1997).

Brown v. State, 690 So. 2d 276 (Miss. 1996).

Simon v. State, 688 So. 2d 791 (Miss.1997).

Jackson v. State, 684 So. 2d 1213 (Miss. 1996).

Williams v. State, 684 So. 2d 1179 (Miss. 1996).

Davis v. State, 684 So. 2d 643 (Miss. 1996).

Taylor v. State, 682 So. 2d. 359 (Miss. 1996).

62

Brown v. State, 682 So. 2d 340 (Miss. 1996).

Blue v. State, 674 So. 2d 1184 (Miss. 1996).

Holly v. State, 671 So. 2d 32 (Miss. 1996).

Walker v. State, 671 So. 2d 581 (Miss. 1995).

Russell v. State, 670 So. 2d 816 (Miss. 1995).

Ballenger v. State, 667 So. 2d 1242 (Miss. 1995).

Davis v. State, 660 So. 2d 1228 (Miss. 1995).

Carr v. State, 655 So. 2d 824 (Miss. 1995).

Mack v. State, 650 So. 2d 1289 (Miss. 1994).

Chase v. State, 645 So. 2d 829 (Miss. 1994).

Foster v. State, 639 So. 2d 1263 (Miss. 1994).

Conner v. State, 632 So. 2d 1239 (Miss. 1993).

Hansen v. State, 592 So. 2d 114 (Miss. 1991).

*Shell v. State, 554 So. 2d 887 (Miss. 1989); Shell v. Mississippi, 498 U.S. 1 (1990)

(reversing, in part, and remanding); Shell v. State, 595 So. 2d 1323 (Miss. 1992) (remanding for new sentencing hearing).

Davis v. State, 551 So. 2d 165 (Miss. 1989).

Minnick v. State, 551 So. 2d 77 (Miss. 1989).

*Pinkney v. State, 538 So. 2d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S.

1075 (1990) (vacating and remanding); Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) (remanding for new sentencing hearing).

*Clemons v. State, 535 So. 2d 1354 (Miss. 1988); Clemons v. Mississippi, 494 U.S.

738 (1990) (vacating and remanding); Clemons v. State, 593 So. 2d 1004 (Miss. 1992) (remanding for new sentencing hearing).

63

Woodward v. State, 533 So. 2d 418 (Miss. 1988).

Nixon v. State, 533 So. 2d 1078 (Miss. 1987).

Cole v. State, 525 So. 2d 365 (Miss. 1987).

Lockett v. State, 517 So. 2d 1346 (Miss. 1987).

Lockett v. State, 517 So. 2d 1317 (Miss. 1987).

Faraga v. State, 514 So. 2d 295 (Miss. 1987).

*Jones v. State, 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi, 487 U.S. 1230 (1988) (vacating and remanding); Jones v. State, 602 So. 2d 1170 (Miss. 1992) (remanding for new sentencing hearing).

Wiley v. State, 484 So. 2d 339 (Miss. 1986).

Johnson v. State, 477 So. 2d 196 (Miss. 1985).

Gray v. State, 472 So. 2d 409 (Miss. 1985).

Cabello v. State, 471 So. 2d 332 (Miss. 1985).

Jordan v. State, 464 So. 2d 475 (Miss. 1985).

Wilcher v. State, 455 So. 2d 727 (Miss. 1984).

Billiot v. State, 454 So. 2d 445 (Miss. 1984).

Stringer v. State, 454 So. 2d 468 (Miss. 1984).

Dufour v. State, 453 So. 2d 337 (Miss. 1984).

Neal v. State, 451 So. 2d 743 (Miss. 1984).

Booker v. State, 449 So. 2d 209 (Miss. 1984).

Wilcher v. State, 448 So. 2d 927 (Miss. 1984).

Caldwell v. State, 443 So. 2d 806 (Miss. 1983).

64

Irving v. State, 441 So. 2d 846 (Miss. 1983). Tokman v. State, 435 So. 2d 664 (Miss. 1983). Leatherwood v. State, 435 So. 2d 645 (Miss. 1983). Hill v. State, 432 So. 2d 427 (Miss. 1983). Pruett v. State, 431 So. 2d 1101 (Miss. 1983). Gilliard v. State, 428 So. 2d 576 (Miss. 1983). Evans v. State, 422 So. 2d 737 (Miss. 1982). King v. State, 421 So. 2d 1009 (Miss. 1982). Wheat v. State, 420 So. 2d 229 (Miss. 1982). Smith v. State, 419 So. 2d 563 (Miss. 1982). Johnson v. State, 416 So. 2d 383 (Miss.1982). Edwards v. State, 413 So. 2d 1007 (Miss. 1982). Bullock v. State, 391 So. 2d 601 (Miss. 1980). Reddix v. State, 381 So. 2d 999 (Miss. 1980). Jones v. State, 381 So. 2d 983 (Miss. 1980). Culberson v. State, 379 So. 2d 499 (Miss. 1979). Gray v. State, 375 So. 2d 994 (Miss. 1979). Jordan v. State, 365 So. 2d 1198 (Miss. 1978). Voyles v. State, 362 So. 2d 1236 (Miss. 1978). Irving v. State, 361 So. 2d 1360 (Miss. 1978). Washington v. State, 361 So. 2d 6l (Miss. 1978).

65

Bell v. State, 360 So. 2d 1206 (Miss. 1978).

*Case was originally affirmed in this Court but on remand from U. S. Supreme Court, case was remanded by this Court for a new sentencing hearing.

DEATH CASES REVERSED AS TO GUILT PHASE AND SENTENCING PHASE

Curtis Giovanni Flowers v. State, 287 So. 3d 905 (Miss. 2019), on remand from 139 S. Ct. 2228, 204 L. Ed. 2d 638 (2019).

Justin Barrett Blakeney v. State, 236 So. 3d 11 (Miss. 2017).

Sherwood Brown v. State, 2017-DR-00206-SCT (Miss. Oct. 26, 2017) (order granting post-conviction relief and vacating underlying convictions and sentences and remanding to the DeSoto County Circuit Court for a new trial).

Erik Wayne Hollie v. State, 174 So. 3d 824 (Miss. 2015).

Manning v. State, 158 So. 3d 302 (Miss. 2015) (reversing denial of post-conviction relief).

Byrom v. State, 2014-DR-00230-SCT (Miss. April 3, 2014) (order).

Ross v. State, 954 So. 2d 968 (Miss. 2007).

Flowers v. State, 947 So. 2d 910 (Miss. 2006).

Flowers v. State, 842 So. 2d 531 (Miss. 2003).

Randall v. State, 806 So. 2d 185 (Miss. 2002).

Flowers v. State, 773 So. 2d 309 (Miss. 2000).

Edwards v. State, 737 So. 2d 275 (Miss. 1999).

Smith v. State, 733 So. 2d 793 (Miss. 1999).

Porter v. State, 732 So. 2d 899 (Miss. 1999).

Kolberg v. State, 704 So. 2d 1307 (Miss. 1997).

Snelson v. State, 704 So. 2d 452 (Miss. 1997).

66

Fusilier v. State, 702 So. 2d 388 (Miss. 1997).

Howard v. State, 701 So. 2d 274 (Miss. 1997). Lester v. State, 692 So. 2d 755 (Miss. 1997).

Hunter v. State, 684 So. 2d 625 (Miss. 1996). Lanier v. State, 684 So. 2d 93 (Miss. 1996). Giles v. State, 650 So. 2d 846 (Miss. 1995). Duplantis v. State, 644 So. 2d 1235 (Miss. 1994). Harrison v. State, 635 So. 2d 894 (Miss. 1994). Butler v. State, 608 So. 2d 314 (Miss. 1992). Jenkins v. State, 607 So. 2d 1171 (Miss. 1992). Abram v. State, 606 So. 2d 1015 (Miss. 1992). Balfour v. State, 598 So. 2d 731 (Miss. 1992). Griffin v. State, 557 So. 2d 542 (Miss. 1990). Bevill v. State, 556 So. 2d 699 (Miss. 1990). West v. State, 553 So. 2d 8 (Miss. 1989). Leatherwood v. State, 548 So. 2d 389 (Miss. 1989). Mease v. State, 539 So. 2d 1324 (Miss. 1989). Houston v. State, 531 So. 2d 598 (Miss. 1988). West v. State, 519 So. 2d 418 (Miss. 1988). Davis v. State, 512 So. 2d 129l (Miss. 1987). Williamson v. State, 512 So. 2d 868 (Miss. 1987). Foster v. State, 508 So. 2d 1111 (Miss. 1987).

67

Smith v. State, 499 So. 2d 750 (Miss. 1986). West v. State, 485 So. 2d 681 (Miss. 1985). Fisher v. State, 481 So. 2d 203 (Miss. 1985). Johnson v. State, 476 So. 2d 1195 (Miss. 1985). Fuselier v. State, 468 So. 2d 45 (Miss. 1985). West v. State, 463 So. 2d 1048 (Miss. 1985). Jones v. State, 461 So. 2d 686 (Miss. 1984). Moffett v. State, 456 So. 2d 714 (Miss. 1984). Lanier v. State, 450 So. 2d 69 (Miss. 1984). Laney v. State, 421 So. 2d 1216 (Miss. 1982).

68

DEATH CASES REVERSED

AS TO PUNISHMENT AND REMANDED FOR RESENTENCING TO LIFE IMPRISONMENT

Bell v. State, 160 So. 3d 188 (Miss. 2016). Reddix v. State, 547 So. 2d 792 (Miss. 1989). Wheeler v. State, 536 So. 2d 1341 (Miss. 1988). White v. State, 532 So. 2d 1207 (Miss. 1988). Bullock v. State, 525 So. 2d 764 (Miss. 1987). Edwards v. State, 441 So. 2d 84 (Miss. l983). Dycus v. State, 440 So. 2d 246 (Miss. 1983). Coleman v. State, 378 So. 2d 640 (Miss. 1979).

69

DEATH CASES REVERSED AS TO PUNISHMENT AND REMANDED FOR A NEW TRIAL ON SENTENCING PHASE ONLY

Fulgham v. State, 46 So. 3d 315 (Miss. 2010).

Rubenstein v. State, 941 So. 2d 735 (Miss. 2006).

King v. State, 784 So. 2d 884 (Miss. 2001).

Walker v. State, 740 So. 2d 873 (Miss. 1999).

Watts v. State, 733 So. 2d 214 (Miss. 1999).

West v. State, 725 So. 2d 872 (Miss. 1998).

Smith v. State, 724 So. 2d 280 (Miss. 1998).

Berry v. State, 703 So. 2d 269 (Miss. 1997).

Booker v. State, 699 So. 2d 132 (Miss. 1997).

Taylor v. State, 672 So. 2d 1246 (Miss. 1996).

*Shell v. State, 554 So. 2d 887 (Miss. 1989); Shell v. Mississippi, 498 U.S. 1 (1990)

(reversing, in part, and remanding); Shell v. State 595 So. 2d 1323 (Miss. 1992) (remanding for new sentencing hearing).

*Pinkney v. State, 538 So. 2d 329 (Miss. 1989); Pinkney v. Mississippi, 494 U.S.

1075 (1990) (vacating and remanding); Pinkney v. State, 602 So. 2d 1177 (Miss. 1992) (remanding for new sentencing hearing).

*Clemons v. State, 535 So. 2d 1354 (Miss. 1988); Clemons v. Mississippi, 494 U.S.

738 (1990) (vacating and remanding); Clemons v. State, 593 So. 2d 1004 (Miss. 1992) (remanding for new sentencing hearing).

*Jones v. State, 517 So. 2d 1295 (Miss. 1987); Jones v. Mississippi, 487 U.S. 1230 (1988) (vacating and remanding); Jones v. State, 602 So. 2d 1170 (Miss. 1992) (remanding for new sentencing hearing).

Russell v. State, 607 So. 2d 1107 (Miss. 1992).

Holland v. State, 587 So. 2d 848 (Miss. 1991).

70

Willie v. State, 585 So. 2d 660 (Miss. 1991).

Ladner v. State, 584 So. 2d 743 (Miss. 1991).

Mackbee v. State, 575 So. 2d 16 (Miss. 1990).

Berry v. State, 575 So. 2d 1 (Miss. 1990).

Turner v. State, 573 So. 2d 657 (Miss. 1990).

State v. Tokman, 564 So. 2d 1339 (Miss. 1990).

Johnson v. State, 547 So. 2d 59 (Miss. 1989).

Williams v. State, 544 So. 2d 782 (Miss. 1989), sentence aff’d, 684 So. 2d 1179 (1996).

Lanier v. State, 533 So. 2d 473 (Miss. 1988).

Stringer v. State, 500 So. 2d 928 (Miss. 1986).

Pinkton v. State, 481 So. 2d 306 (Miss. 1985).

Mhoon v. State, 464 So. 2d 77 (Miss. 1985).

Cannaday v. State, 455 So. 2d 713 (Miss. 1984).

Wiley v. State, 449 So. 2d 756 (Miss. 1984), aff’d, Wiley v. State, 484 So. 2d 339 (Miss. 1986), cert. denied, 479 U.S. 1036 (1988), resentencing ordered, 635 So. 2d 802 (Miss. 1993), following writ of habeas corpus issued sub nom. Wiley v. Puckett, 969 So. 2d 86, 105-106 (5th Cir. 1992), resentencing affirmed, 691 So. 2d 959 (Miss. 1997).

Williams v. State, 445 So. 2d 798 (Miss. 1984) (case was originally affirmed in this Court but on remand from U. S. Supreme Court, case was remanded by this Court for a new sentencing hearing).