IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-CA-00282-COA
CONSOLIDATED WITH
NO. 2012-KA-00258-SCT
LISA SANDLIN A/K/A LISA A. SANDLIN A/K/A APPELLANT LISA BABLER A/K/A LISA HUSKY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/20/2019 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: MERRILL K. NORDSTROM LAWRENCE JOHN TUCKER JR. ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/25/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
LAWRENCE, J., FOR THE COURT:
¶1. On February 1, 2011, Lisa Sandlin was indicted for murdering her stepson, Kirk
Sandlin. She was convicted by a jury in Lee County Circuit Court on December 1, 2011 and
subsequently sentenced to life in prison. On February 8, 2012, Lisa appealed her conviction
which was affirmed by the Mississippi Supreme Court on October 10, 2013, in Sandlin v.
State, 156 So. 3d 813 (Miss. 2013). On June 5, 2015, Lisa filed an application for leave to
proceed in the trial court on a post-conviction relief (PCR) motion with the Mississippi Supreme Court, alleging seven issues. On November 4, 2015, the Mississippi Supreme Court
granted her motion as to three of the seven issues alleged. On January 20, 2016, Lisa filed
a PCR motion in the Lee County Circuit Court on the three authorized issues including: (1)
ineffective assistance of counsel in failing to object to the district attorney calling her
husband, Sammy Sandlin, as a witness, (2) ineffective assistance of counsel for objecting to
the state’s attempt to include self-defense in the elements instructions and (3) cumulative
errors denied her constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments. An evidentiary hearing was held on March 27, 2017, and her PCR was denied
on March 20, 2019. Lisa appealed.
FACTS AND PROCEDURAL HISTORY
¶2. Lisa and her husband Sammy lived in Saltillo, Mississippi in Lee County with
Sammy’s mother, Mary Sandlin (Mammie).1 Both Lisa and Sammy had children from
previous marriages. Lisa had one son, Jesse Husky,2 and Sammy had one son, Kirk Sandlin.
Kirk lived alone in his grandmother’s house, down the hill from Sammy and Lisa’s home on
the same parcel of family land. On September 22, 2010, Lisa and Mammie were sitting in
their backyard around a fire after dinner. Kirk walked up from his house to Sammy and
Lisa’s backyard and began talking to Mammie. During that conversation, Lisa and Kirk got
into a heated verbal altercation wherein Lisa ultimately went inside the house to remove
herself from the situation. While Lisa was inside, Sammy returned home and stayed outside
1 Mary Sandlin suffered from Alzheimer’s disease and was no longer capable of unassisted living. 2 Jesse has reached the age of majority and his legal name will be used in this opinion.
2 to speak to Kirk. Lisa went back outside to the backyard where Sammy and Kirk were
talking and she and Kirk resumed their argument. The situation began to escalate when Lisa
moved into the breeze-way patio between the house and the garage and Kirk followed her,
pushed her in the chest and spit at her. Trying to keep the peace, Sammy told Lisa to go
inside the house and told Kirk to leave the home. Lisa went inside and proceeded to
retrieved Sammy’s shotgun from their bedroom closet. Kirk initially began walking back to
his house; however, he turned around and returned to Sammy and Lisa’s breezeway to talk
to Sammy. As Kirk headed back to the breeze-way, he saw Lisa standing at the door with
Sammy’s gun. Kirk said, “[w]hat are you going to do with that, crazy bitch? Shoot me?”
Lisa stated that she would shoot him if necessary and Kirk replied “go ahead.” The shotgun
fired once, and Kirk died as a result of the shotgun wound to his abdomen.
¶3. Officer Kerry Gaddy of the Lee County Sheriff's Department was the first law
enforcement officer on the scene. Upon learning that Lisa was still inside the home, Officer
Gaddy entered the home and called for Lisa to come out. Lisa emerged from the home and,
stated, “I shot the m***f***. I was tired of his s***.” According to Gaddy, Lisa did not state
that she had been threatened or that the shooting was an accident or in her own self-defense.
According to Officer Gaddy, Lisa seemed agitated and upset but not frightened. Officer
Jason Putt arrived at the residence and placed Lisa under arrest and read her the Miranda
rights.3 Once Lisa was placed in the patrol car, she made a similar statement to Investigator
Scotty Reedy and said that she was tired of Kirk’s s*** and shot him. Lisa also told Officer
3 Miranda v. Arizona, 384 U.S. 436 (1966),
3 Reedy that there had been no physical altercation, just a verbal one. Lisa admitted to Reedy
that she had shot Kirk, but she claimed that the gun had gone off by accident. During a
subsequent interview with Reedy on September 23, 2010, Lisa added facts to her initial
statement and told him that Kirk had run toward her before she shot him. In that Interview,
she also told him about previous domestic-violence reports that she had previously filed
against Kirk. Lisa was indicted for Kirk’s murder on February 1, 2011.
The Original Trial
¶4. Lisa was represented by Christopher Bauer at trial, during which he argued an
“accident” based defense on Lisa’s behalf. Lisa, through her attorney, argued throughout the
entire trial process that the shooting of Kirk was accidental and that she was not aware that
the gun was loaded.
¶5. The State called seven witnesses at the original trial including: Investigatory Scotty
Reedy, Officer Kerry Gaddy, Officer Jason Putt, John Sandlin, Sammy Sandlin, Dr. Amy R.
McMaster, and Lisa Robinson. The defense called two witnesses at the original trial
including: Lisa Sandlin and Jesse Huskey. Investigator Reedy, Officer Gaddy and Officer
Putt all testified to their participation in the initial investigation of Kirk’s death. They
testified to statements that Lisa made to each of them respectively as stated above, their
observations of the crime scene and their respective duties in securing the crime scene and
taking Lisa into custody. Sammy’s brother John testified at the trial to events that transpired
on the day before Kirk’s death wherein Lisa yelled at him and Kirk, “If ya’ll don’t get the
hell out from here, I’m fixing to start shooting.” He testified that Lisa’s statement was
4 unprovoked. Dr. Amy R. McMaster is the forensic pathologist who performed Kirk’s
autopsy. She testified as to the results of the autopsy and the cause of Kirk’s death being
shotgun wound to the torso by manner of homicide. Lisa Robinson was a detention officer
that worked at the facility where Lisa was housed. Lisa Robinson was called by the State to
testify to a certain incident that occurred at the facility involving Lisa. The defense made a
relevancy objection which was sustained by the trial court and Lisa did not testify any further.
Other than Lisa, the only other witness that the defense called at trial was Lisa’s son, Jesse
Huskey. Jesse testified as to Kirk’s character as he knew him growing up and Kirk’s
tumultuous relationship with Lisa.
¶6. Most relevant to this appeal, the State called Lisa’s husband, Sammy, during its case-
in-chief with no objection from Lisa’s attorney to testify, as the only reliable eye-witness to
the events that transpired on the night Kirk was shot.4 Ultimately, Sammy proved helpful to
both the State and the defense. Sammy was helpful to the defense in that he testified to the
following: (1) he did not think that Lisa wanted to kill Kirk, (2) Lisa worked hard in helping
him with his business, (3) Lisa and Kirk had a good healthy relationship at the beginning of
their marriage, (4) he never knew Lisa to touch the shotgun, (5) he was the owner of the gun
and he was the last person to use the gun, (6) further, that it was his practice to keep the gun
unloaded in the house but he could not be certain if he unloaded it before he put it back in
the closet, and (7) Kirk had a drug problem, criminal history, and propensity to steal from
4 Sammy’s mother, Mary Sandlin was present and a witness to the events leading up to Kirk’s death; however, she suffered from Alzheimer’s disease and could not be considered a reliable witness for that reason.
5 him. Conversely, Sammy made several statements in Lisa’s bond hearing and in his
statement to the investigators that were brought up at trial and proved helpful for the State
as follows: (1) “Anyone who would shoot somebody like that would either be evil or crazy,”
(2) When referring to the shooting, Sammy made the statement, “it might be me next time,”
and (3) “Lisa has talked about shooting Kirk for a long time.”
¶7. At the close of the trial, Lisa’s attorney objected to the State’s request to include “not
in necessary self-defense” in the elements instruction because it did not coincide with their
defense strategy. Defense counsel argued that there was no testimony presented at trial that
could substantiate a self-defense language. As a result of that objection, the trial court
removed the self-defense language from the elements instruction. On December 11, 2011,
Lisa was convicted by a jury on the charge of first-degree murder. Lisa directly appealed her
conviction which was affirmed by the Mississippi Supreme Court in Sandlin v. State, 156 So.
3d 813 (Miss. 2013).
¶8. On June 5, 2015, Lisa filed an application for leave to proceed in the trial court on a
PCR motion with the Mississippi Supreme Court, alleging seven issues. On November 4,
2015, the Mississippi Supreme Court granted her motion as to three of the seven issues
alleged. On January 20, 2016, Lisa filed a motion for post-conviction relief (PCR) in the Lee
County Circuit Court on those three issues An evidentiary hearing was held on March 27,
2017 in Lee County Circuit Court on Lisa’s PCR motion wherein only Lisa and her attorney,
Bauer, testified.
The Evidentiary Hearing
6 ¶9. Lisa testified that she recalled speaking to Bauer about the possibility of Sammy
testifying only once, about eight months after Kirk was shot. She testified that Bauer told
her that Sammy was going to be a witness for the State, but that he was going to “check the
legality of it” and re-approach her with the issue. According to Lisa, Bauer never again
mentioned the possibility of Sammy testifying against her. She also maintained that Bauer
never told her that, had they objected at trial, Sammy could have been prevented from
testifying. Lisa claimed that, had she known she could have prevented Sammy testifying for
the State, she would have. Further, Lisa testified that she and Bauer had never reviewed jury
instructions together and more specifically a self-defense instruction. She also testified that
Bauer never explained to her the likely outcomes or ramifications of raising an accident
defense versus a self-defense defense. Lisa alleges that Bauer’s failure to object to Sammy
testifying for the state based on spousal privilege constitutes ineffective assistance of
counsel. Further, Lisa alleges that Bauer’s objection to the State’s request for a self-defense
instruction on her behalf constitutes ineffective assistance of counsel. Finally, Lisa asserts
that the alleged cumulative errors constitutes a denial of her constitutional rights under the
Fifth, Sixth, Eighth, and Fourteenth Amendments.
¶10. Bauer testified at the PCR evidentiary hearing. He testified that he and Lisa began
talking about Sammy's testimony very “early” in the pre-trial process and that he made Lisa
aware that they could prevent Sammy from testifying on the basis of spousal privilege. Bauer
stated that he and Lisa spoke about it at the Lee County jail “extensively,” and that he,
Sammy, and Lisa discussed it together on another occasion at the Lee County courthouse.
7 Further, Bauer testified that the decision to rely on an accident defense was “made by Ms.
Sandlin” after she and Bauer discussed her case “thoroughly.” Bauer testified that he and
Lisa discussed her defense extensively and that he had originally attempted to convince Lisa
to argue self-defense. According to Bauer, it was ultimately Lisa who made the decision to
utilize an accident defense against his advice. It was Bauer’s contention that his objections
to the self-defense jury instructions were based on his belief that they were contrary to the
defense that Lisa maintained from the beginning of trial. Bauer testified that it was his belief
that it would have been confusing to the jury to bring up self-defense in the jury instructions
when it was never an argument that was made by the defense during trial. Finally, Bauer
testified that his decision to allow Sammy to testify and his decision to object to the self-
defense language in the elements instruction were decisions that were made as a part of his
trial strategy and which he formulated with Lisa’s input. It was Bauer’s testimony that Lisa
was the ultimate decision maker in the handling of her case which led to the decisions he
made at trial.
¶11. After conducting an evidentiary hearing and “considering the totality of the entire
record,” the trial court found that Lisa failed to overcome the “strong presumption that under
the circumstances, the challenged actions of her trial counsel might be considered trial
strategy.” In its order denying petitioner Lisa Sandlin’s motion for post-conviction relief, the
trial court stated, “This court will not act as an armchair quarterback to the trial strategy of
trial counsel, especially in light of the explicit instructions of their clients.” The trial court
determined that trial counsel’s performance was reasonable considering all the circumstances
8 and that Lisa received a fair trial. Lisa’s PCR motion was denied by the Lee County Circuit
Court on March 20, 2019 and she perfected her appeal.
STANDARD OF REVIEW
¶12. “A trial court’s denial of a motion for post-conviction relief will not be reversed
absent a finding that the trial court’s decision was clearly erroneous.” Smith v. State, 806 So.
2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). “However, when issues of law are raised, the
proper standard of review is de novo.” Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
ANALYSIS
I. Ineffective Assistance of Counsel
¶13. Lisa claimed that her counsel was ineffective as follows: (1) failing to object to the
district attorney calling her husband, Sammy, as a witness at trial, and (2) for objecting to the
State’s attempt to instruct the jury on self-defense. In “extraordinary circumstances,” the
right to effective assistance of counsel may also be excepted from the Uniform Post-
Conviction Collateral Relief Act’s procedural bars.” See Chapman v. State, 167 So. 3d 1170,
1174 (¶12) (Miss. 2015).
¶14. To be successful in a claim for ineffective assistance of counsel,
[f]irst, the defendant must show that counsel’s performance was deficient. This requires showing counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or a death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
9 Strickland v. Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must
be proved, or the claim of ineffective assistance of counsel fails. Id. As to the first prong,
this Court has held that “the accused is not entitled to errorless counsel, and not counsel
judged ineffective by hindsight. Each case is to be decided on the totality of the facts of the
entire record.” Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984). “Judicial scrutiny of
counsel’s performance must be highly deferential. It is all too tempting for a defendant to
second-guess counsel’s assistance after conviction or adverse sentence . . . .” Id. at 477.
“Because of the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” Wilcher
v. State, 863 So. 2d 776, 796 (¶30) (Miss. 2003) (citing Stringer v. State, 454 So. 2d 468, 477
(Miss. 1984)). In determining what falls into the category of trial strategy, this Court has
held that “Counsel’s choice of whether or not to file certain motions, call certain witnesses,
ask certain questions, or make certain objections falls within the ambit of trial strategy.” Hill
v. State, 850 So. 2d 223, 226 (¶14) (Miss. Ct. App. 2003) (citing Scott v. State, 742 So. 2d
1190 (¶14) (Miss. Ct. App. 1999)). Further, “[a] strategic decision to pursue less than all
plausible lines of defense will rarely, if ever, be deemed ineffective if counsel first
adequately investigated the rejected alternative.” Cole v. State, 666 So. 2d 767, 776 (Miss.
1995) (quoting Washington v. Strickland, 693 F. 2d 1243, 1253-54 (5th Cir. 1982)). Finally,
the Mississippi Supreme Court held in Brawner v. State, 947 So. 2d 254, 264 (¶24) (Miss.
10 2006), that “[c]ounsel will not be deemed ineffective for following his client’s wishes, so
long as the client made an informed decision. A defendant may not block his lawyer’s efforts
and later claim the resulting performance was constitutionally deficient.”
A. Sammy’s Testimony
¶15. Lisa alleges that her trial counsel was ineffective for failing to object to the district
attorney calling her husband at the time, Sammy, as a witness at the original trial. Lisa
testified at the evidentiary hearing that had she known that she could have prevented Sammy
from testifying, she would have. She testified that she and Bauer had one conversation about
Sammy testifying but it was never mentioned again. Lisa testified that “had I known that he
would be used against me, I certainly would not have allowed him to take the witness stand.”
¶16. Bauer testified at the evidentiary hearing that “It is my practice that my clients are in
charge of their case . . . . It is their decision at every point, unless it is a tactical decision. He
stated that he made Lisa aware that they could keep him from testifying and that they spoke
about it specifically at the Lee County Jail extensively and on another occasion with Sammy
present. Further, Bauer testified:
Lisa, with my advisement decided that it would best for Sammy to testify. . . it was my tactical advice that we should let him testify early because Sammy was one of the few people that I believed would have good things to say about Lisa during the course of the trial, and I wanted those things to be said early. I didn’t want them to be said after the State had torn Lisa down
When asked if he told Lisa that it was ultimately her decision whether Sammy testified,
Bauer stated, “Yes.” Bauer testified at length regarding all of the factors that played a role
in having Sammy testify and he outlined those factors as follows: (1) he would have good
11 things to say about Lisa, (2) he was the only reliable witness other than Lisa who saw the
shooting, (3) he could help prove their accident defense, as he was the owner of the gun and
he was the last person to use the gun, (4) it was his practice to keep the gun unloaded in the
house, and (5) he could testify as to Kirk’s drug addiction, criminal history, and propensity
to steal from him.
¶17. Finally, the decision to call or not call certain witnesses falls within the realm of trial
strategy. Through his testimony at the evidentiary hearing, Bauer clearly and concisely laid
out his reasoning and strategy for choosing to allow Sammy to testify at trial. In essence,
Sammy helped to prove the defense of accident that Lisa testified to at the trial. Bauer
believed that Sammy’s testimony would give some credence that Lisa could reasonably think
that the shotgun was unloaded. Because Lisa was a part of the decision making process
throughout the trial, and it was ultimately her decision to have Sammy testify, this issue is
without merit.
B. Self-Defense Jury Instruction
¶18. Lisa alleged that her trial counsel was ineffective at the original trial for objecting to
the State’s attempt to insert the “not in necessary self-defense” language into the elements
instruction. At the evidentiary hearing, Lisa testified that Bauer never explained anything
about jury instructions. When asked specifically if Bauer ever explained the ramifications
and likely results of claiming self-defense or accident, Lisa testified that Bauer “never went
into any details of that.” However, even at the evidentiary hearing, Lisa still maintained her
position that she never intended to shoot Kirk.
12 ¶19. Bauer testified at the evidentiary hearing that “the decision regarding how to move
forward with the trial, as far as our defenses would go, was made by Lisa to rely on
accident.” Bauer testified:
She and I discussed it thoroughly, and it’s one of the few times in my legal career where I have come to a point where I virtually told a client, hey, you have to get on the stand and say these things in order for us to claim this. I did not go that far, but I got as close as I thought I could ethically get to telling her what needed to be said in order for us to claim [that] defense. Ms. Sandlin consistently told me that she never feared for her life and that she did not believe it was self-defense, It was an accident, she never intended to shoot her step-son and that she did not know that the gun was loaded. She just wanted to scare him away, which I believe.
When asked what his reasoning was for objecting to the self-defense language in the
elements instructions, Bauer stated that “The decision had been made by Ms. Sandlin that
self-defense was not the defense we were utilizing. It was going to be an accident, and solely
an accidental defense.” Bauer stated that he did everything in his power to convince Lisa that
self-defense was the proper defense; however, “Lisa held stubbornly to the position that this
was an accident” and Bauer quoted Lisa as saying, “I did not have to defend myself.” Bauer
testified that on one occasion, Lisa told him that Sammy never would have let Kirk do
anything to hurt her. Finally, Bauer testified that he advised Lisa on the potential likely
outcomes if she was successful on either the accidental defense or the self-defense defense.
But Lisa insisted on pursuing accident only, and to the exclusion of self-defense.
¶20. Just like the decision to let Sammy to testify, Bauer testified that Lisa was the driver
behind pursuing an accident defense to the exclusion of self-defense. The facts as laid out
by Bauer indicated that Lisa made an informed decision to pursue the accident defense over
13 the advice of counsel and is now trying to claim that his representation is constitutionally
deficient. The law should not sanction a second guessing of a jury verdict because a defense
used by and authorized by a defendant proved ineffective. See generally Brawner v. State,
947 So. 2d 254 (Miss. 2006).
¶21. We will not reverse a trial court’s decision to deny a motion for post-conviction relief
absent a finding that the decision was clearly erroneous. Bauer testified as to the trial
strategy utilized, the numerous conversations that he had with Lisa leading up to her trial, and
that she understood and directed that defense. “[T]he trial judge, sitting in a bench trial as
the trier of fact, has sole authority for determining credibility of the witnesses.” Johns v.
State, 926 So. 2d 188, 194 (¶29) (Miss. 2006). Given the testimony presented at the
evidentiary hearing, Lisa does not overcome the first prong of the Strickland case in proving
that counsel was deficient, and the trial court obviously found attorney Bauer’s testimony to
be credible and trustworthy. Strickland, 466 U.S. at 687. Therefore, we find no error in the
trial court’s decision to deny Lisa’s motion for post-conviction relief.
II. Cumulative Error
¶22. Lisa argues that the alleged cumulative errors denied her of her constitutional rights
under the Fifth, Sixth, Eighth and Fourteenth amendments. “The cumulative error doctrine
stems from the doctrine of harmless error . . . [, which] holds that individual errors, which
are not reversible in themselves, may combine with other errors to make up reversible error,
where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial.”
Harris v. State, 970 So. 2d 151, 157 (¶24) (Miss. 2007) (quoting Ross v. State, 954 So. 2d
14 968, 1018 (Miss. 2007)). Because there were no errors by the trial court which would require
reversal, this issue is without merit.
CONCLUSION
¶23. After review, we do not find that the trial court’s decision to deny Lisa’s motion for
post-conviction relief on the basis of ineffective assistance of counsel was clearly erroneous.
Finding no error, the decision of the circuit court is affirmed.
¶24. AFFIRMED.
BARNES, C.J., WILSON, P.J., GREENLEE, WESTBROOKS, McDONALD AND McCARTY, JJ., CONCUR. CARLTON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION.
CARLTON, P.J., DISSENTING:
¶25. I respectfully dissent from the majority’s opinion finding that Lisa failed to show that
her trial counsel was ineffective. After reviewing the record, I find that Lisa met her burden
of proving that her trial counsel’s performance was deficient for failing to request jury
instructions on the Castle Doctrine, self-defense, and imperfect self-defense, as well as for
objecting to the State’s attempts to instruct the jury on self-defense. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Lisa also met her burden of proving that this
deficiency prejudiced her defense. Id. As a result, I would reverse and remand for a new
trial.
¶26. A defendant alleging ineffective assistance of counsel bears the burden of proving:
“(1) [her] counsel’s performance was deficient, and (2) this deficiency prejudiced [her]
defense.” Walden v. State, 270 So. 3d 1013, 1020 (¶25) (Miss. Ct. App. 2018); Strickland,
15 466 U.S. at 687. Lisa “must demonstrate that, but for the errors of trial counsel, there is a
reasonable probability that [s]he would have received a different outcome in the trial.” Nix
v. State, 8 So. 3d 141, 145-46 (¶22) (Miss. 2009). Upon review, we determine whether a trial
counsel’s performance was both deficient and prejudicial by examining the totality of the
circumstances.” Johnson v. State, 196 So. 3d 973, 976 (¶11) (Miss. Ct. App. 2015) (internal
quotation marks omitted).
¶27. The supreme court has explained that “[w]hen claiming ineffective assistance of trial
counsel because of jury instructions, ‘it is the duty of the appellant to demonstrate both error
in failing to receive the instruction and the prejudice to the defense.’” Havard v. State, 928
So. 2d 771, 789 (¶28) (Miss. 2006) (quoting Burnside v. State, 882 So. 2d 212, 216 (¶22)
(Miss. 2004)). We recognize that “[t]here is a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance and that the challenged
action might be considered sound trial strategy.” Woods v. State, 242 So. 3d 47, 55 (¶30)
(Miss. 2018) (quoting Giles v. State, 187 So. 3d 116, 120 (¶12) (Miss. 2016)). The supreme
court has clarified that “[t]rial counsel’s decisions on whether or not to file certain motions,
call witnesses, ask certain questions, or make certain objections fall within the ambit of trial
strategy and cannot give rise to an ineffective assistance of counsel claim.” Johnson, 196 So.
3d at 976 (¶11) (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004)) (other
citation omitted).
¶28. At the trial, the transcript reflects that during the jury instruction conference, Lisa’s
trial counsel objected to the self-defense language in a proposed jury instruction, stating,
16 “There has been no evidence put on, or any attempt to show that there was some self-defense.
I think it would be confusing to the jury to bring up self-defense at this point, when it has not
happened during the testimony in the trial.” The trial court agreed that no evidence of self-
defense had been presented during the trial. The transcript from the evidentiary hearing on
Lisa’s PCR motion reflects that Lisa’s trial counsel testified that he “guess[ed]” it was trial
strategy to pursue the defense of accident, explaining that “I think that it would have been
confusing for the jury to be presented with a defense [(self defense)] that we had not
presented at trial.”
¶29. However, the supreme court has held that “[a] criminal defendant has a right to assert
alternative theories of defense, even inconsistent alternative theories.” Reddix v. State, 731
So. 2d 591, 593 (¶9) (Miss. 1999); see also Woods, 242 So. 3d at 57 (¶39) (“A defendant is
entitled to jury instructions on his theory of the case whenever there is evidence that would
support a jury's finding on that theory.”) (quoting Thomas v. State, 48 So. 3d 460, 469 (¶23)
(Miss. 2010)).
¶30. After reviewing the record, I submit that the testimony and evidence presented at
Lisa’s trial supported a self-defense jury instruction. Lisa testified that on the evening of the
shooting, she and Kirk engaged in a verbal altercation. Lisa stated that during the altercation,
Kirk was aggressive toward her and spit in her face. Lisa clarified that Kirk was not physical
with her and did not hit her, but she testified that during the altercation, he was verbally
abusive and came toward her “aggressively.” Lisa testified that she was afraid of Kirk
“[b]ecause [she] didn’t know how he was going to act when he was on drugs.” Forensic
17 pathologist Dr. Amy McMaster testified that Kirk’s toxicology report confirmed the presence
of methamphetamine in Kirk’s system on the evening of the shooting. Several witnesses
testified that Kirk had exhibited aggressive behavior in the past. The testimony at trial also
reflects that Lisa was standing in the kitchen door of her home when she shot Kirk.
¶31. Sammy, Lisa’s husband, testified that on the evening of the shooting, Lisa told Kirk
that she wanted him off her property. According to Sammy, Kirk “stood up and flexed his
muscles, and said, Daddy, if you don’t get her away from me, I’m going to kill her.” Sammy
testified that he did not think Lisa wanted to kill Kirk; rather, “[s]he wanted him to stay
away.” Sammy testified that Lisa wanted Sammy “to get a restraining order on [Kirk,]” but
Sammy explained that “[he] couldn’t do that [to] [his] son.”
¶32. At the evidentiary hearing on Lisa’s PCR motion, Lisa’s trial counsel testified that
“the decision regarding how to move forward with the trial, as far as our defenses would go,
was made by Lisa to rely on accident.” Trial counsel again stated that “[t]he decision had
been made by [Lisa] that self-defense was not the defense we were utilizing. It was going to
be an accident, and solely an accidental defense.” However, the comment to Mississippi
Rule of Professional Conduct 1.2 provides that although “[b]oth lawyer and client have
authority and responsibility in the objectives and means of representation[,] . . . a lawyer is
not required to pursue objectives or employ means simply because a client may wish that the
lawyer do so.” Miss. R. Prof. Conduct 1.2 cmt. The comment further states that “the lawyer
should assume responsibility for technical and legal tactical issues.” Id.
¶33. Based on the circumstances of this case, I find that the failure of Lisa’s trial counsel
18 to request jury instructions on the Castle Doctrine, self-defense, and imperfect self-defense,
as well as her trial counsel’s objection to the State’s attempts to instruct the jury on
self-defense, prejudiced Lisa’s defense and constituted ineffective assistance of counsel.
Accordingly, I would reverse and remand for a new trial.