IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2025-KA-00123-COA
THOMAS PHILLIP PEARSON, II A/K/A APPELLANT THOMAS PHILLIP PEARSON
v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/26/2024 TRIAL JUDGE: HON. ROBERT KEITH MILLER COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: AMBER LAUREN STEWART
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JULIANNE KAY BAILEY
DISTRICT ATTORNEY: ANGEL MYERS McILRATH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/08/2026 MOTION FOR REHEARING FILED:
BEFORE CARLTON, P.J., WESTBROOKS AND EMFINGER, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Thomas Pearson was convicted of first-degree murder for shooting and killing Jeffrey Summerlin. The Jackson County Circuit Court sentenced Pearson to life imprisonment in the custody of the Mississippi Department of Corrections. ¶2. Pearson now appeals his conviction and sentence, asserting the following assignments of error: (1) the trial court erred by prohibiting Pearson from referencing self-defense and Summerlin’s methamphetamine use during voir dire and opening statements; (2) the trial court erred by excluding evidence of Summerlin’s methamphetamine use during trial; (3) the trial court erred by excluding Pearson’s 911 call; and (4) the trial court erred by refusing
Pearson’s stand-your-ground jury instruction. ¶3. After our review, we find no error. We therefore affirm Pearson’s conviction and sentence.
FACTS
¶4. Summerlin and Pearson worked for Hal Mallette in Vancleave, Mississippi. Mallette owned a large piece of land that he used for a horse-boarding ranch, and Summerlin and Pearson lived on the property. ¶5. Witnesses testified that on April 21, 2021, Summerlin and Pearson had argued off and on all day. Later that day, at approximately 8:00 p.m., Pearson shot Summerlin in the head, killing him. Officers responded to the scene and arrested Pearson. Pearson admitted to shooting Summerlin and was charged with first-degree murder. ¶6. At trial, the jury heard testimony from Nancy Ladnier, another tenant on Mallette’s property, and Mallette, the two eyewitnesses to the shooting. The jury also heard testimony from Linnea Tynes, the 911 dispatcher who spoke to Ladnier; Deputy Ronnie Poole from the Jackson County Sheriff’s Office; Sergeant Joshua Rhoades from the Jackson County Sheriff’s Office; Investigator Jason Pharez from the Jackson County Sheriff’s Office; Investigator Justin Grafton from the Jackson County District Attorney’s Office; Darryl Travis and Allen Bebier, who witnessed the aftermath of the shooting; Stacy Turner, a forensic pathologist; Lori Beall, the State’s expert witness in the field of firearms and tool marks; and Sergeant Phillip Pearson from the Jackson County Sheriff’s Office. At the close of the State’s case-in-chief, defense counsel moved for a directed verdict, which the trial court
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denied. ¶7. Pearson testified in his own defense. According to Pearson, he and Summerlin had been arguing all day, and during the arguments, Summerlin threatened him. Pearson testified that just before the shooting, Summerlin started “coming at” him and told Pearson, “I got something for you.” Pearson testified that he heard Summerlin “messing with tools,” and he was afraid Summerlin had grabbed a tool to use as a weapon. Pearson admitted to shooting Summerlin, but he asserted that he did so because he thought his life was in danger. ¶8. The jury returned a verdict finding Pearson guilty of first-degree murder, and the trial court sentenced Pearson to life imprisonment. After the denial of Pearson’s post-trial motions, this appeal followed.
DISCUSSION
I. Voir Dire and Opening Statement ¶9. Pearson argues that the trial court erred by prohibiting defense counsel from referencing self-defense and Summerlin’s toxicology results during voir dire and defense counsel’s opening statement. Pearson maintains that by barring these references at the start of the trial, the trial court limited Pearson’s ability to frame his theory of self-defense from the beginning of trial and to prepare the jury to evaluate the case fairly. ¶10. When reviewing voir dire and a trial court’s ruling on motions in limine, we apply an abuse of discretion standard. Harris v. State, 389 So. 3d 296, 304 (¶43) (Miss. 2024); McTiller v. State, 113 So. 3d 1284, 1293 (¶29) (Miss. Ct. App. 2013). “The purpose of an opening statement is to inform the jury what a party to the litigation expects the proof to
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show.” Jones v. State, 390 So. 3d 498, 502 (¶15) (Miss. 2024). While attorneys are granted wide latitude in presenting their cases to juries during opening statements, a trial court still has considerable discretion to determine whether remarks in opening statements should be allowed. Porter v. State, 418 So. 3d 1287, 1303 (¶46) (Miss. Ct. App. 2025). However, we recognize that broad orders from the trial court “restricting any reference to certain defense theories during opening statements” are disfavored. Harris, 389 So. 3d at 304 (¶44). ¶11. The State filed a pre-trial motion in limine seeking to prohibit the defense from referencing self-defense during voir dire and in Pearson’s opening statement. Contrary to Pearson’s appellate brief, the record reflects that the trial court denied the State’s motion. The trial transcript also reflects that defense counsel referenced self-defense during voir dire and his opening statement. Accordingly, this issue is meritless and moot. ¶12. The State filed a second motion in limine seeking to exclude any reference to Summerlin’s postmortem toxicology report, arguing that the defense could not meet the evidentiary threshold required to admit the report. (Summerlin’s postmortem toxicology report confirmed the presence of methamphetamine in his system.) Specifically, the State argued that the defense could not offer evidence of an overt act of aggression perpetrated against Pearson by Summerlin and show that Summerlin’s alleged methamphetamine use increased his propensity for violence at the time of the crime. See Lewis v. State, 198 So. 3d 431, 434 (¶10) (Miss. Ct. App. 2016). ¶13. At the hearing on the motion, Pearson’s counsel argued that the defense could lay the appropriate foundation for admitting the toxicology report, stating, “I think that the experts
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would testify that in general, methamphetamine use can produce violent behavior. And specifically to [Summerlin], the level that was in his system, in the toxicology report, that specific level is tied to violent, aggressive behavior.” However, other than this assertion, defense counsel did not proffer any expert testimony during the hearing or otherwise lay a foundation for admitting evidence of Summerlin’s methamphetamine use at that time. ¶14. The trial court agreed with the State that evidence of Summerlin’s methamphetamine use would only be admissible if the defense could establish, outside the jury’s presence, that Summerlin’s intoxication contributed to his violent or hostile conduct toward Pearson. The trial court ultimately ruled that the toxicology evidence could not be mentioned during voir dire or defense counsel’s opening statement unless the State first “opened the door.” However, the trial court reserved ruling on the admissibility of Summerlin’s toxicology evidence at trial until defense counsel laid the appropriate foundation for admitting it. ¶15. After our review, we find that the trial court did not abuse its considerable discretion in prohibiting defense counsel from referencing Summerlin’s methamphetamine use and toxicology report during voir dire and defense counsel’s opening statement. During the hearing on the motion in limine, Pearson did not proffer any expert testimony or otherwise lay a foundation to show that Summerlin’s toxicology report and methamphetamine use were relevant and admissible at that time. (As we will discuss below, Pearson also failed to meet this burden at trial, and the trial court accordingly excluded the toxicology report.) ¶16. Furthermore, contrary to Pearson’s assertion on appeal, we find that the trial court’s exclusion of any references to Summerlin’s methamphetamine use during voir dire and
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opening statements did not prejudice or hinder Pearson from presenting his claim at trial that he shot Summerlin in self-defense. See Harris, 389 So. 3d at 305 (¶49). Pearson’s counsel referenced self-defense in his opening statement, and Pearson testified at trial that Summerlin had threatened him on the day of the shooting and that he shot Summerlin because he feared for his life. Therefore, if any error had resulted from the limitations on Pearson’s voir dire and opening statement, such error would be harmless. See Ellzey v. State, 412 So. 3d 358, 378 (¶42) (Miss. Ct. App. 2024) (“Without any showing of prejudice to [the defendant], the trial court’s ruling was, at most, harmless error.”).
II. Exclusion of Summerlin’s Toxicology Evidence at Trial ¶17. Pearson next argues that the trial court improperly excluded Summerlin’s toxicology report, which confirmed the presence of methamphetamine in Summerlin’s system at the time of his death. Pearson maintains that this evidence was relevant to show that Summerlin’s behavior leading up to the shooting was aggressive and unpredictable, and therefore Pearson’s use of deadly force was reasonable. Pearson argues that the trial court’s exclusion of Summerlin’s methamphetamine use hindered Pearson’s ability to present his theory of self-defense to the jury. ¶18. Generally, evidence of a victim’s character is irrelevant. MRE 404(a)(1). However, the character of a victim may be relevant in specific instances “where the defendant claims that the victim was the initial aggressor and that the defendant’s actions were in the nature of self-defense.” MRE 404 adv. comm. note; see MRE 404(a)(2). At trial, Pearson attempted to admit evidence of Summerlin’s methamphetamine use at the time of the
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shooting. This Court has explained that often the “purpose of introducing character evidence of the victim’s intoxication is to further the defendant’s self-defense claim by proving the victim, who had a propensity for violence, became more violent after intoxication.” Lewis, 198 So. 3d at 434 (¶10) (quoting Rouster v. State, 981 So. 2d 314, 320 (¶17) (Miss. Ct. App. 2007)). Accordingly, “for character evidence of a victim’s intoxication to be relevant and admissible, the defendant must offer evidence of an overt act of aggression perpetrated against him by the victim and show that the alleged intoxication increased the victim’s propensity for violence at the time of the crime.” Id. (internal quotation marks omitted). However, “a trial judge should filter the evidence through Mississippi Rule of Evidence 403 and determine whether the evidence’s probative value” is substantially outweighed by the danger of an unfair “prejudicial effect to the defendant.” Easterling v. State, 306 So. 3d 808, 824 (¶46) (Miss. Ct. App. 2020). We review a trial court’s decision to exclude evidence for an abuse of discretion. Id. ¶19. As stated, prior to trial, the State filed a motion in limine seeking to exclude any reference to Summerlin’s methamphetamine use or the toxicology report, arguing that the defense could not offer evidence of an overt act of aggression perpetrated against Pearson by Summerlin and show that Summerlin’s alleged methamphetamine use increased his propensity for violence at the time of the crime. The trial court reserved ruling on the admissibility of Summerlin’s toxicology evidence until defense counsel laid the appropriate foundation for admitting it at trial. ¶20. At trial, the jury heard testimony from Ladnier and Mallette, the two eyewitnesses to
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the shooting. Ladnier and Mallette testified that on the day of the shooting, Pearson and Summerlin had argued off and on all day about some money Summerlin had lost in Mallette’s vehicle—that Pearson eventually admitted he stole—and about a motorcycle that Summerlin was purchasing from Pearson. Mallette described Pearson as “more aggressive” than Summerlin during the arguments. Ladnier also testified that Pearson was the one “instigating” the arguments. Ladnier explained that Summerlin tried to shake hands with Pearson and move on from arguing, but Pearson refused. ¶21. Ladnier and Mallette also testified that Pearson had been drinking that day, and Ladnier estimated that Pearson began drinking at around ten o’clock that morning, approximately ten hours before the shooting. Mallette testified that he noticed a change in Pearson’s behavior between the time he started drinking and the time of the shooting. ¶22. Ladnier testified that just before the shooting, she observed Summerlin walk from his truck toward an outside bar area of the main house. Ladnier stated that Summerlin did not appear aggressive or aggravated, and she never heard Summerlin threaten Pearson. Ladnier was walking to the bar area as Summerlin approached, and Ladnier asked him if he wanted more dinner. As Summerlin turned his head to answer Ladnier, Pearson approached the bar area and said that he was “sick of this shit, or going to end this.” Pearson then walked straight up to Summerlin, “put a gun right to [Summerlin’s] head and . . . pulled the trigger.” ¶23. Mallette, however, testified that just before Pearson shot Summerlin, he observed Summerlin aggressively approach Pearson. Mallette also testified that he heard Summerlin, not Pearson, saying either, “I’m tired of this shit,” or “I’m fixing to finish this.” Mallette
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later clarified that Summerlin and Pearson “approached each other” and that “[Summerlin] was not coming at [Pearson].” Mallette testified that as Summerlin walked toward Pearson, Pearson shot him. Mallette stated that in the moments before Pearson shot Summerlin, he did not see Summerlin with a weapon, nor did Summerlin have his hands raised to strike Pearson. ¶24. After Ladnier and Mallette testified, defense counsel attempted to introduce evidence of Summerlin’s methamphetamine use on two different occasions. First, defense counsel attempted to question Lori Beall, the State’s expert in firearms and tool marks, about evidence submitted to the Mississippi Forensics Laboratory, including Summerlin’s blood samples. The State objected, arguing that Beall was not the appropriate expert to address toxicology evidence. The trial court agreed and sustained the State’s objection. Later, during cross-examination of Investigator Phillip Pearson,1 defense counsel attempted to question the investigator about evidence found at the scene, including drug paraphernalia in Summerlin’s pockets, gunshot residue testing, and toxicology results. The State objected, arguing that such evidence had not been admitted. The State also argued that Investigator Pearson was not qualified to testify about toxicology because he was not a toxicologist. The court sustained the objection. ¶25. As stated, for Summerlin’s toxicology report and methamphetamine use at the time of the shooting to be relevant and admissible, Pearson had to “offer evidence of an overt act of aggression perpetrated against him by [Summerlin] and show that the alleged intoxication
1 Investigator Pearson is not related to the Appellant.
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increased [Summerlin’s] propensity for violence at the time of the crime.” Lewis, 198 So. 3d at 434 (¶10). Pearson argues on appeal that the relevancy of the toxicology evidence was already established by the time the defense sought to introduce it at trial. Pearson submits that Mallette’s testimony showed that Summerlin acted aggressively just before the shooting. We disagree. Although Mallette testified that Summerlin “aggressively” walked toward Pearson, he later clarified that both Summerlin and Pearson approached each other. Additionally, Ladnier’s testimony reflects that Summerlin was walking toward the bar area but stopped when she asked him about dinner, during which time Pearson approached Summerlin. Testimony also showed that Pearson was the more aggressive party during the ongoing arguments between the two men, while Summerlin was unarmed and had not physically attacked Pearson at any point during the day. Accordingly, we find that Pearson failed to present sufficient evidence to establish “an overt act of aggression” perpetrated against him by Summerlin. Moreover, Pearson “did not offer any specific testimony explaining how [methamphetamine] affects [Summerlin’s] propensity for violence, nor did he offer any testimony explaining [methamphetamine’s] effects on propensity for violence in general.” Lewis, 198 So. 3d at 434-35 (¶11). We therefore find that the trial court did not abuse its discretion in refusing to allow evidence of Summerlin’s methamphetamine use.
III. Exclusion of Pearson’s 911 Call ¶26. Pearson also asserts that the trial court erred by excluding Pearson’s 911 call as “self-serving.” Pearson argues that the 911 call was admissible under the excited utterance or present-sense impression exceptions to the rule against hearsay because the call was made
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immediately after the shooting, and his statements during the call reflected his perception of the threat he faced. Pearson further submits that under Mississippi Rule of Evidence 106, he was entitled to have the entire 911 call played for the jury. Pearson claims that the trial court’s exclusion of the 911 call prevented him from presenting a complete theory of defense, which he claims violated his right to due process and a fair trial. ¶27. We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. Mingo v. State, 944 So. 2d 18, 28 (¶27) (Miss. 2006). “We will not reverse the trial court’s evidentiary ruling unless the error adversely affects a substantial right of a party.” Id.
A. Self-Serving Statement ¶28. After the State rested its case-in-chief, Pearson informed the trial court that he intended to call as his first witness the 911 dispatcher who took his call and to introduce his 911 call into evidence. The State moved to exclude Pearson’s 911 call as “self-serving.” The State also moved to exclude the 911 dispatcher from testifying. When questioned by the trial court, defense counsel agreed that Pearson made self-serving statements during his 911 call. However, defense counsel asserted that the jury had already heard a portion of the 911 call when the State played Deputy Poole’s body camera footage. Defense counsel also stated that Pearson referenced his 911 call in his post-arrest interview with Investigator Pearson, which the State played for the jury. After hearing arguments from counsel, the trial court ruled Pearson’s 911 call was inadmissible as a self-serving statement. The trial court also excluded the 911 dispatcher from testifying.
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¶29. The Mississippi Supreme Court has held that “the defendant is barred from introducing a statement made by the defendant immediately after the crime, if it is self-serving, and if the State refuses to use any of it.” Simmons v. State, 805 So. 2d 452, 489 (¶95) (Miss. 2001) (quoting Nicholson ex rel. Gollott v. State, 672 So. 2d 744, 754 (Miss. 1996)). The supreme court explained that if such statements were admissible, “the door would be thrown open to obvious abuse: an accused could create evidence for himself by making statements in his favor for subsequent use at his trial to show his innocence.” Id. (emphasis omitted) (quoting Wilson v. State, 451 So. 2d 718, 721 (Miss. 1984)). Here, both parties agreed that Pearson made self-serving statements during his 911 call. Additionally, as we will discuss below, the State used no part of the 911 call at the trial. Accordingly, the trial court properly excluded Pearson’s 911 call and the testimony of the 911 dispatcher.
B. Mississippi Rule of Evidence 106 ¶30. Pearson also claims that a portion of his 911 call was played for the jury via Deputy Poole’s body camera footage and referenced during his post-arrest interview, both of which were introduced into evidence by the State. Pearson argues that pursuant to Mississippi Rule of Evidence 106, he was entitled to have the full 911 call played to allow the jury to hear the full context and to prevent a misleading impression. Rule 106, also known as the rule of completeness, states that “when a party introduces all or part of a writing, recorded statement, or audio recording, ‘the adverse party may require introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time.’” Jackson v. State, 245 So. 3d 433, 443 (¶58) (Miss. 2018) (emphasis added)
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(quoting MRE 106). “The complete document, statement, or video also must be more probative than prejudicial.” Fontaine v. State, 256 So. 3d 615, 622 (¶20) (Miss. Ct. App. 2018). ¶31. Here, the transcript reflects that Pearson failed to exercise his right under Rule 106 to require the State to contemporaneously introduce and publish to the jury Pearson’s full 911 call. See Bunch v. State, 123 So. 3d 484, 493 (¶24) (Miss. Ct. App. 2013). Pearson did not move to introduce his 911 call until after the State rested. This Court has held that a party’s “failure to object or seek contemporaneous introduction and publication before the trial court procedurally bars our review of this issue on appeal.” Id. Because Pearson failed to seek contemporaneous introduction and publication of his 911 call when the State introduced the body camera footage and the recording of Pearson’s post-arrest interview, we are procedurally barred from reviewing this issue on appeal. ¶32. Procedural bar notwithstanding, we find that Pearson’s 911 call is not the type of recorded statement “that in fairness ought to be considered at the same time” as the body camera footage and Pearson’s post-arrest interview. MRE 106. The body camera footage shows Deputy Poole arrive at the scene of the shooting and approach Pearson. Pearson informed Deputy Poole that he was on the phone with 911, and Deputy Poole then told the dispatcher that she could hang up the phone. Contrary to Pearson’s assertion, “portions” of his conversation with the 911 dispatcher were not audible to the jury. Additionally, during Pearson’s post-arrest interview with Investigator Pearson, the only reference to his 911 call was Pearson’s statement that after the shooting, he called 911. The supreme court has
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explained that the purpose of Rule 106 “is to avoid misleading the factfinder by introducing only a fragment of an utterance out of context.” Kniep v. State, 525 So. 2d 385, 390 (Miss. 1988); see also MRE 106 adv. comm. note (stating that the purpose of the rule is “to prevent misleading the jury by taking evidence out of context”). We find that the body camera footage and post-arrest interview did not introduce Pearson’s 911 call out of context; therefore, there was no risk of misleading the jury. ¶33. After our review, we find that the trial court did not abuse its discretion in excluding Pearson’s 911 call.
IV. Refusal of Proposed Jury Instruction D-8 ¶34. Finally, Pearson argues that the trial court erred by refusing to give his proposed stand-your-ground jury instruction. Pearson maintains that his right to stand his ground was supported by the evidence and was not fairly covered in other instructions. ¶35. The decision to grant or deny a request for a proposed jury instruction “is within the sole discretion of the [trial] court.” Brown v. State, 332 So. 3d 1287, 1289 (¶7) (Miss. 2022). We review a trial court’s decision to give or refuse a jury instruction for an abuse of discretion. Id. In so doing, we recognize that “[a] defendant is entitled to have jury instructions given which present his theory of the case; however, the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id. (quoting Valentine v. State, 322 So. 3d 417, 423 (¶27) (Miss. 2021)). “In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. There is no
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error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.” Id. (quoting Newell v. State, 49 So. 3d 66, 73-74 (¶20) (Miss. 2010)). ¶36. During the jury instruction conference, the State objected to Pearson’s proposed jury instruction D-8, which addressed the stand-your-ground theory.2 Proposed jury instruction D-8 states in pertinent part:
[A] person claiming the right to self-defense is not required to retreat or to consider whether he could safely retreat. If he is honestly and reasonably in fear of death or serious bodily harm, he may stand his ground and use whatever force is reasonably necessary under the circumstances, even to the extent of taking the life of the attacker.
The State argued that the trial court had already granted the State’s request for a self-defense jury instruction, and therefore jury instruction D-8 was cumulative and repetitive. The trial court ultimately refused jury instruction D-8. ¶37. Our appellate courts have held that “it is within the trial judge’s discretion to refuse a ‘stand your ground’ instruction when the defendant’s own testimony is that he had no time or opportunity to retreat, and there is nothing in the evidence to suggest to a reasonable juror that the defendant could have retreated but did not do so.” Lewis v. State, 374 So. 3d 529, 545 (¶56) (Miss. Ct. App. 2023). Here, Pearson testified during cross-examination that when
2 The stand-your-ground doctrine is codified in Mississippi Code Annotated section 97-3-15(4) (Supp. 2023) and provides:
A person who is not the initial aggressor and is not engaged in unlawful activity shall have no duty to retreat before using deadly force . . . if the person is in a place where the person has a right to be, and no finder of fact shall be permitted to consider the person’s failure to retreat as evidence that the person’s use of force was unnecessary, excessive or unreasonable.
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Summerlin was coming toward him, Pearson did not have time to look at Summerlin’s hands to see if he was armed because Summerlin was moving too fast. When the State asked Pearson if he had time to get away from Summerlin, Pearson answered, “Of course not.” Pearson also testified that he tried to call out “Stop” or “Don’t” to Summerlin before shooting him, and he did not have time to say anything else. During redirect examination, Pearson testified that Summerlin came at him so quickly that Pearson “[did not] have time to do anything but pull my pistol and pull the trigger.” We find that Pearson’s testimony does not “point[] to an opportunity when he could have retreated.” Id. at 546 (¶58). ¶38. Additionally, although Ladnier testified that Pearson was the initial aggressor, Pearson testified that Summerlin was the initial aggressor. This Court has held that “[i]f there is any evidence that the defendant was not the initial aggressor, and there is some evidence to support a claim of self-defense, the defendant is entitled to self-defense instructions. The jury, not the court, must resolve any conflicts in the evidence.” Cunningham v. State, 431 So. 3d 799, 811-12 (¶33) (Miss. Ct. App. 2025). The record before us reflects that “other instructions adequately covered the general rules of law pertaining to self-defense.” Shaheed v. State, 205 So. 3d 1105, 1113 (¶24) (Miss. Ct. App. 2016). Accordingly, the trial court did not abuse its discretion by refusing to give the defense’s proposed jury instruction D-8.
CONCLUSION
¶39. For the reasons set forth above, we find no error; accordingly, we affirm Pearson’s conviction and sentence. ¶40. AFFIRMED.
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BARNES, C.J., WESTBROOKS, LAWRENCE, McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.