IN THE SUPREME COURT OF MISSISSIPPI
NO. 2021-KA-01254-SCT
WILLIAM THOMAS CHISHOLM
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 07/30/2021 TRIAL JUDGE: HON. LEE J. HOWARD TRIAL COURT ATTORNEYS: MARK G. WILLIAMSON WILLIAM R. LABARRE CHRISTOPHER SCOTT ROUTH MARC DARREN AMOS SCOTT WINSTON COLOM COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MARK ANDREW CLIETT ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DANIELLE LOVE BURKS LAUREN GABRIELLE CANTRELL DISTRICT ATTORNEY: SCOTT WINSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/08/2023 MOTION FOR REHEARING FILED:
BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.
MAXWELL, JUSTICE, FOR THE COURT:
¶1. William Thomas Chisholm killed his former girlfriend, Dr. Shauna Witt, by shooting
her to death. Dr. Witt had broken up with Chisholm and recently obtained a restraining order
against him. She was examining a patient at her optometry office in Starkville when
Chisholm barged in. He opened the office’s front door, walked through the hall to an interior
exam room, and overpowered Dr. Witt, forcing his way into the exam room. He then pulled out a pistol. Dr. Witt was able to squirm past Chisholm and out of the examination room into
the hall. But as she ran for her life, Chisholm opened fire—shooting her in the back and in
the back of her head. Dr. Witt collapsed against the foyer wall, dying near the office’s front
door.
¶2. Eyewitnesses saw the shooting. And surveillance video footage captured the audio
of shots being fired. It also showed Chisholm pacing between the optometry office and Wal-
Mart Vision Center—with pistol still in hand—immediately after he killed Dr. Witt. Police
apprehended Chisholm in his car in the Wal-Mart parking lot and recovered the pistol. A
jury convicted Chisholm of capital murder. He was sentenced to life imprisonment.
¶3. On appeal, Chisholm’s main argument centers on how the State charged and proved
burglary—the underlying felony pled in his capital murder charge. Specifically, the State
charged that Chisholm committed capital murder by killing Dr. Witt in the commission of
a burglary. The State based the predicate burglary on Chisholm’s breaking and entering the
office building, intending to commit “an assault” therein. Contrary to Chisholm’s assertions,
the State adequately pled a burglary-based capital murder. Our precedent makes clear the
State was not required to plead each and every element of the assault underlying the burglary
or to allege the assault was “aggravated”—since both statutory and notice requirements were
met.
¶4. Chisholm also argues because the building, which included Dr. Witt’s office, was
open to the public, he could not have committed the predicate burglary by entering the
building, intending to commit assault. We disagree. The required breaking for burglary “can
2 be actual or constructive.” Templeton v. State, 725 So. 2d 764, 766 (Miss. 1998).
“[C]onstructive breaking is present where the invitation [to enter the home or business] is
gained by deceit, pretense, or fraud.” Id. at 767. In such cases, we have held that the
invitation is “irrelevant.” Id. In Templeton, this Court concluded that “an owner would not
knowingly grant someone permission to enter his house with the intent to commit the crime
of burglary, much less the crime of murder.” Id. The same is true for business owners—the
invitation to enter the premises clearly does not extend to those who intend to commit crimes.
See, e.g., Fulgram v. State, 12 So. 3d 558, 561 (Miss. Ct. App. 2009).
¶5. Dr. Witt saw patients by appointment at her private optometry practice. Not only was
Chisholm not a patient, but Dr. Witt had recently obtained a restraining order against him.
She had also directed her employees to call 911 if Chisholm ever showed up at her
office—which they did. So he was clearly not a typical business guest; in fact, he was not
welcome. Further, in his quest to kill Dr. Witt, Chisholm not only entered the optometry
office door, but he also overpowered Dr. Witt, breaking into an interior examination room
where she was treating a patient—somewhere he unquestionably lacked permission to be.
So burglary was sufficiently proved.
¶6. We also find no merit to Chisholm’s additional challenges to several of the judge’s
discretionary evidentiary rulings. We thus affirm his conviction and sentence.
Facts and Procedural History
I. Murder of Dr. Witt
3 ¶7. Chisholm and Dr. Witt became romantically involved around 2012. When Dr. Witt
ended the relationship in 2017, Chisholm became angry, allegedly burning her belongings
she kept at his home. Dr. Witt sought a protective order against Chisholm, which a judge
entered around December 12, 2017. The order expired December 30, 2017.
¶8. Dr. Witt contracted with Wal-Mart for office space for her optometry office, which
was located on the front side of the department store. Her office was accessed separately
from Wal-Mart. While the general public entered Wal-Mart through doors at the front of the
store, Dr. Witt’s optometry patients did not. Her optometry patients entered her office
through a separate door located on the front side of the Wal-Mart building, just off the
department store’s parking lot.1
¶9. On January 13, 2018, Dr. Witt was seeing patients at her optometry office. Heather
Ashley—who worked for Dr. Witt and the Vision Center—and Kaylace Dorman, Dr. Witt’s
optometrist assistant, were both working that day. Between 9:20 and 9:35 a.m., Chisholm
entered Dr. Witt’s optometry office through the exterior door from the parking lot. When
Ashley saw Chisholm in the office, she immediately called 911.
¶10. Chisholm walked toward the eye examination room where Dr. Witt was examining
patient Amberley McCarter. The door was closed. So he began knocking on the door.
According to her patient, Dr. Witt opened the door and told Chisholm to leave. She then
closed and locked the door. But Chisholm did not leave. He instead continued to knock.
1 Dr. Witt’s office connected to the back of the Wal-Mart Vision Center through an inner corridor. The Vision Center is where Wal-Mart displays and sells eyeglasses and related products. Shoppers access the Wal-Mart Vision Center through the inside of the department store.
4 When Dr. Witt eventually opened the door again, Chisholm began “barging” in. The patient
remembered Chisholm “was pushing in” and Dr. Witt “was pushing out. They was [sic]
fighting over the door.” And he eventually “overpowered her and got into the room.”
Chisholm then began reaching into his pocket and pulled out a gun. Dr. Witt begged him to
“stop,” pleading “no, Tommy, stop[.]” She tried to keep him from drawing the gun, but he
managed to pull out the pistol. According to the optometrist assistant, Dorman, Dr. Witt saw
the gun, and was able to slip under Chisholm’s arm. When Dr. Witt took off running for the
office exit, Chisholm opened fire. She fell into the wall by the exit door and died. An
autopsy report showed she died from two gunshot wounds—one to the back and another to
the back of her head.
¶11. Chisholm left the optometrist office through the inner corridor leading into the Vision
Center. Surveillance video shows him holding his pistol, walking back and forth between
the optometrist office and Vision Center. Soon after, he returned to his car in the parking lot.
Officers arrived and instructed Chisholm to get out of his vehicle. When he exited the car,
officers directed him to get down on the asphalt. He began telling the officers to “kill [him].”
Chisholm was placed in a patrol car. When the officers walked off, he kicked out the rear
passenger window.
¶12. Investigators processed the scene and recovered eight shell casings. They found the
casings “in almost a trail” from the exam room to the door where Dr. Witt had collapsed.
They also located four rounds stuck in the wall. Officers recovered Chisholm’s Springfield
Armory 9mm pistol from his passenger seat, along with a loaded magazine and holster.
5 II. Capital Murder Charge
¶13. A grand jury charged Chisholm with capital murder with the underlying felony of
burglary and one count of aggravated assault. Chisholm filed a motion to quash the
indictment. He argued it “fail[ed] to state the underlying offense of the alleged [b]urglary.”
The State confessed the motion and reindicted Chisholm for capital murder in the
commission of a burglary—this time pleading that Chisholm intended to commit an assault
inside the building. Chisholm pled not guilty.
¶14. On July 15, 2021, Chisholm notified the State of his intent to pursue an insanity2
defense and forwarded a report by his retained expert, Dr. Jennifer Carroll.
III. Trial
¶15. At trial, the State called multiple eyewitnesses to the shooting, along with
investigators and medical personnel. Video surveillance from the Wal-Mart Vision Center,
a recording of Ashley’s 911 call, law enforcement body and car camera footage, and crime
scene photos were admitted and presented to the jury. So were shell casings and rounds
recovered from the scene.
¶16. When the State rested, Chisholm tried to call his purported expert forensic
psychologist, Carroll. Carroll told the jury that she had received a bachelor of science in
psychology, a master’s degree in counseling psychology, and a Ph.D. in general psychology.
In 2005, she became a licensed professional counselor. As part of her training, she was
2 “The test for insanity is whether the defendant was unable to distinguish right and wrong at the time the act was committed.” Roundtree v. State, 568 So. 2d 1173, 1181 (Miss. 1990) (quoting White v. State, 542 So. 2d 250, 252 (Miss. 1989)).
6 “exposed” to forensic psychology while interning at the Mississippi State Hospital at
Whitfield, where she learned about various testing methods. After detailing her experience
working in mental health facilities, Carroll represented that she had been qualified and
accepted by “[c]ourt[s] as an expert in either forensic or clinical psychology “[a]pproximately
30 maybe [times].” Chisholm tendered Carroll as an expert witness in forensic and clinical
psychology.
¶17. The State then questioned Carroll about her qualifications. Right out of the gate,
Carroll admitted she was not a licensed psychologist. And the reason she was not a licensed
psychologist was because she was not qualified. The university from which she received her
Ph.D. in psychology was not accredited by the American Psychology Association (APA).
Further, because her Ph.D. was primarily online, she never completed the minimum one year
of continuous full-time residency at her doctoral university, as required for licensure. Neither
did she complete the required pre-doctoral internship nor post-doctoral supervision.
¶18. Under cross-examination by the State, Carroll conceded she did not “qualify on any
level to hold [her]self out to be a psychologist in the State of Mississippi.” Moreover,
Carroll’s doctoral degree was in general psychology—not forensic psychology. She had
never even studied forensic psychology.
¶19. Carroll was not aware of the APA guidelines for forensic psychologists and did not
apply them to her report. Carroll further admitted her licensure as a professional counselor
did not allow her “to offer an opinion forensically to this Court in the field of clinical
psychology.” In fact, Carroll conceded it would be “totally outside the parameters of [her]
7 practice as an LPC” for her to offer an expert opinion on Chisholm’s mental capacity at the
time of the murder.
¶20. For these varied reasons, the State objected to Carroll testifying as an expert in
forensic psychology. The trial court sustained the objection.
¶21. Chisholm sought a mistrial, arguing Carroll had misrepresented herself, claiming she
could provide expert testimony on Chisholm’s sanity. The State countered that a party’s
failure to qualify an expert was not a legal basis for a mistrial. The trial judge agreed and
denied the motion. The defense requested to use the State’s intended rebuttal expert witness
to Carroll’s testimony in Chisholm’s case-in-chief. So, after reaching an agreement with the
State, the defense called Dr. Robert Storer via previous video deposition. The defense also
requested and was granted a jury instruction on Chisholm’s insanity defense.
¶22. After deliberating, the jury found Chisholm guilty of capital murder. The judge
sentenced him to life imprisonment without parole.3
Discussion
¶23. On appeal of his conviction, Chisholm raises a variety of issues relating to the
admission of evidence and exclusion of his proposed expert witness. He also insists the
judge should have instructed the jury on heat-of-passion manslaughter, the State suppressed
his own cell phone records, and the judge wrongly refused to quash his indictment. Finally,
he attacks the sufficiency and weight of the evidence supporting his capital murder
conviction. But after review, we find each of his arguments lacks merit.
3 Prior to Chisholm’s trial, the State announced it would not be pursuing the death penalty.
8 I. Evidentiary Rulings
¶24. Chisholm disputes a number of the trial judge’s evidentiary calls, which this Court
reviews for abuse of discretion. Gales v. State, 153 So. 3d 632, 638 (Miss. 2014) (citing
Brown v. State, 965 So. 2d 1023, 1026 (Miss. 2007)).
A. Chain of Custody
¶25. First, Chisholm broadly asserts “multiple pieces of evidence were admitted over
objection into evidence.” He then references page numbers in the trial transcript, noting his
lawyer’s objections to the admission of eight shell casings and four rounds recovered from
Dr. Witt’s optometry office. He also objected to admission of the protective order police
found at Chisholm’s house. Chisholm essentially argues the State failed to prove the chain
of custody for these items because officers who initially gathered and sealed the evidence did
not testify.
¶26. The initial problem with Chisholm’s argument is that “gaps in the chain [of custody]
normally go to the weight of the evidence rather than its admissibility.” Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 311 n.1, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) (alteration
in original) (quoting United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)). And
Mississippi courts have “never required the proponent to produce every person who handled
the object” to establish chain of custody. Butler v. State, 592 So. 2d 983, 985 (Miss. 1991);
see also Cyrus v. State, 248 So. 3d 760, 762 (Miss. 2018) (“[I]t is unnecessary that every
handler of the evidence testify.” (citing Tubbs v. State, 185 So. 3d 363, 369 (Miss. 2016))).
So a gap in the chain does not, itself, bar admission.
9 ¶27. To exclude evidence, there must be “an indication or reasonable inference . . . ‘of
probable tampering with the evidence or substitution of the evidence.’” Id. And this Court
recognizes “[a] presumption of regularity applies to the actions of the public officers.” Id.
Indeed, the burden is on the defendant to show otherwise. And here, Chisholm has produced
zero evidence of tampering, much less that the chain of custody was even broken.
¶28. The testifying officer—Sergeant John Michael Lay—was the lead investigator tasked
with supervising the crime scene. Even if he did not seal and sign each evidence bag
himself, he observed and directed the officers who gathered and secured evidence. Before
each piece of evidence was admitted, Sergeant Lay explained the steps taken to secure it and
ensure the objects were what they were purported to be—evidence gathered from the crime
scene and from Chisholm’s home.
¶29. Because a sufficient foundation of authenticity was laid, the trial judge was well
within his discretion to admit the firearm evidence and restraining order over Chisholm’s
objection.
B. Prior Bad Acts
¶30. Next, Chisholm argues the trial judge erroneously admitted evidence of his prior bad
acts, particularly his behavior towards Dr. Witt.4 He mostly points to Ashley’s testimony that
Chisholm burned Dr. Witt’s possessions, leading to the restraining order against him.
¶31. But at trial, Chisholm made no character evidence objections. Instead, when the now
complained of specific instances were mentioned, he merely objected to hearsay. And the
4 Chisholm also filed a pro se supplemental brief, in which the sole issue he raised was the admission of prior bad acts.
10 judge overruled each objection. This Court has been clear that “[a]sserting grounds for an
objection on appeal that differ from the ground given for the objection at the trial level does
not properly preserve the objection for appellate review.” Saddler v. State, 297 So. 3d 234,
238 (Miss. 2020) (quoting Roberts v. State, 234 So. 3d 1251, 1262 (Miss. 2017)). In other
words, Chisholm has waived this argument. See Smith v. State, 986 So. 2d 290, 296 (Miss.
2008) (“issues not brought before the trial court are deemed waived and may not be raised
for the first time on appeal” (quoting Tate v. State, 912 So. 2d 919, 928 (Miss. 2005))).
¶32. Clear waiver aside, Chisholm’s argument still fails. It is true that “[e]vidence of a
crime, wrong, or other act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with the character.” MRE
404(b)(1). But such evidence may still be permitted “for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” MRE 404(b)(2). It may also be admissible when “integrally related in
time, place, and fact to the crime for which the defendant is being tried in order to allow the
State to tell a coherent story of what happened to the victim.” Flowers v. State, 773 So. 2d
309, 324 (Miss. 2000) (citing McFee v. State, 511 So. 2d 130, 136 (Miss. 1987)).
¶33. Dr. Witt had directed her coworkers to call 911 if Chisholm ever showed up to the
office. And the restraining order informed the jury why. To explain why Dr. Witt obtained
the restraining order required that the jury know Chisholm had recently burned Dr. Witt’s
possessions. In short, the restraining order and related evidence helped the jury understand
the full story leading to Dr. Witt’s murder.
11 ¶34. Dr. Witt had secured this restraining order just one month before her murder. So the
restraining order served as a method of proving Chisholm’s motive and intent, especially
given his purported insanity defense. So even if Chisholm had not waived this
argument—which he clearly did—it lacks merit. The trial judge did not abuse his discretion
by allowing testimony of Chisholm’s prior bad acts.
C. Expert Witness
¶35. Chisholm’s final evidentiary challenge centers on the trial judge’s exclusion of
Jennifer Carroll as an expert witness in clinical and forensic psychology. On appeal,
Chisholm insists Carroll was qualified. But this argument cuts against Carroll’s trial
testimony—even she admitted she was not qualified to hold herself out as an expert in
clinical and forensic psychology.
¶36. Without question, “[b]efore providing expert opinion testimony, a witness must be
qualified, tendered, and accepted as an expert under Rule 702 of the Mississippi Rules of
Evidence.” Chaupette v. State, 136 So. 3d 1041, 1045 (Miss. 2014) (citing Cotton v. State,
675 So. 2d 308, 312 (Miss. 1996)). Having the requisite qualification is key, as expert
testimony “offered from an unqualified witness” is “reversible error.” Hobgood v. State, 926
So. 2d 847, 854 (Miss. 2006) (citing Cotton, 675 So. 2d at 312).
¶37. Carroll initially testified she had a Ph.D. in psychology and had trained in forensic
psychology testing while interning at Whitfield. She also claimed she had been accepted as
an expert in clinical or forensic psychology in past trials. But when pressed by the State, she
quickly retracted these qualifications.
12 ¶38. Carroll readily admitted she was not and could not become a licensed psychologist.
She made clear she lacked the required education and training to do so. Her online Ph.D.
was not from an APA accredited university—it was in general, not clinical or forensic,
psychology. On top of that, Carroll conceded she had conducted no peer-reviewed research
in clinical or forensic psychology. She further admitted she lacked knowledge about APA
guidelines for forensic psychology. So when evaluating Chisholm, she obviously did not
follow those guidelines.
¶39. Instead, Carroll was licensed as a professional counselor (LPC). She conceded at trial,
this license did not allow her “to offer an opinion forensically to this Court in the field of
clinical psychology.” And she admitted that offering an expert opinion on Chisholm’s
mental capacity at the time of the murder would be “totally outside the parameters of [her]
practice as an LPC.” For these varied reasons, the trial judge did not abuse his discretion by
excluding her from testifying.
II. Mistrial
¶40. Curiously, Chisholm alternatively argues that the trial court erred by denying his
motion for mistrial, made after the judge excluded Carroll as an expert witness. Chisholm
insists Carroll had assured his lawyer that she was qualified to testify, despite not being a
licensed psychologist. On appeal, Chisholm asserts that a mistrial was warranted because
the jury had been tainted by Carroll’s testimony “and the fact that she was asked the same
questions by counsel for both sides and provided different answers.” He further argues
13 mistrial was warranted because of “misrepresentations made by Dr. Jennifer Carroll in
preparation of the defense.”
¶41. “Whether to grant a motion for mistrial is within the sound discretion of the trial
court.” Pulphus v. State, 782 So. 2d 1220, 1223 (Miss. 2001) (citing Ragin v. State, 724 So.
2d 901, 904 (Miss. 1998)). And a trial judge should only declare a mistrial “when there is
an error in the proceedings resulting in substantial and irreparable prejudice to the
defendant’s case.” Sharkey v. State, 265 So. 3d 151, 155 (Miss. 2019) (quoting Pitchford
v. State, 45 So. 3d 216, 240 (Miss. 2010)).
¶42. Here, there was no error in the proceedings. Chisholm proffered Carroll as an expert.
She testified about her qualifications. And then the State conducted its voir dire of Carroll.
The State’s challenging Carroll’s qualifications was neither surprising nor unjustly
prejudicial—rather, it was to be expected. In both bench trials and trials by jury, “the
purpose of qualifying a witness as an expert, is to allow opposing counsel the opportunity to
challenge the witness’ credentials and qualifications prior to testimony being proffered.”
Hobgood, 926 So. 2d at 854-55 (citing Sample v. State, 643 So. 2d 524, 530, (Miss. 1994)).
Chisholm’s counsel was wholly aware Carroll’s qualifications would likely be questioned
at trial. And he chose to tender—as his expert in clinical and forensic psychology—someone
he knew was not a licensed psychologist, nor even a clinical or forensic psychologist. The
trial judge properly excluded her expert opinion based on Rule 702. And Chisholm has cited
no authority that failure to qualify one’s chosen expert under Rule 702 is cause for mistrial.
14 ¶43. Neither can Chisholm rely on his claim that his counsel was misled by Carroll’s
assurances she was qualified to testify and had testified previously as an expert forensic
psychologist. It is the trial judge who acts “as gatekeeper on questions of admissibility of
expert testimony.” Miss. Transp. Comm’n v. McLemore, 863 So. 2d 31, 40 (Miss. 2003).
Counsel was aware Carroll could not automatically testify as an expert simply because she
believed she was qualified or had been allowed to testify previously. Instead, Carroll could
only testify in Chisholm’s trial if she satisfied the trial judge. This required that she
demonstrate the requisite qualifications as a forensic psychologist, which she could not do.
¶44. Further, there was not irreparable prejudice to Chisholm. Carroll’s testimony, while
perhaps beneficial to Chisholm’s insanity claim, would not have conclusively resolved this
issue. Instead, it was up to the jury to decide Chisholm’s purported insanity. See Sanders v.
State, 63 So. 3d 497, 504 (Miss. 2011) (citing Laney v. State, 486 So. 2d 1242, 1245 1246
(Miss. 1986)). And the jury did decide this issue. Following Carroll’s exclusion, the judge
allowed the defense to offer video testimony from Dr. Storer—taken in anticipation of having
to rebut Carroll’s expert testimony—as evidence of Chisholm’s alleged insanity. And the
jury was instructed on it.
¶45. So the trial judge did not abuse his discretion by denying Chisholm a mistrial.
III. Manslaughter Instruction
¶46. Chisholm next argues he was entitled to a heat-of-passion manslaughter jury
instruction based primarily upon testimony from Dr. Witt’s patient, McCarter. Whether a
defendant is entitled to a lesser-included-offense instruction is a question of law. So this
15 Court’s review of the denial of that instruction is de novo. Sharkey, 265 So. 3d at 157 (citing
Downs v. State, 962 So. 2d 1255, 1258 (Miss. 2007)). A party is entitled to a lesser-
included-offense instruction only if there is “an evidentiary basis in the record” to support
it. Batiste v. State, 121 So. 3d 808, 844 (Miss. 2013) (citing Anderson v. State, 79 So. 3d
501, 505 (Miss. 2012)). And here, no evidentiary basis exists.
¶47. Heat-of-passion manslaughter is defined as “[t]he killing of a human being, without
malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous
weapon, without authority of law, and not in necessary self-defense . . . .” Miss. Code Ann.
§ 97-3-35 (Rev. 2020). Notably, the fact “that the accused subjectively experienced passion
and anger is not enough to reduce a killing to manslaughter.” Abeyta v. State, 137 So. 3d
305, 310 (Miss. 2014) (emphasis added). “Rather, the impassioned reaction of the accused
must have been reasonable: ‘the passion felt by the person committing the act should be
superinduced by some insult, provocation, or injury, which would naturally and instantly
produce, in the minds of ordinarily constituted men, the highest degree of exasperation.’”
Id. at 310-11 (quoting Agnew v. State, 783 So.2d 699, 703 (Miss. 2001)).
¶48. Instead of showing a reasonable reaction to a provocation, the trial record shows the
exact opposite. There is no record evidence that Dr. Witt provoked Chisholm. Rather,
Chisholm showed up to her office uninvited, with a loaded pistol, and forced his way into her
examination room. Chisholm wholly relies on testimony from the patient, McCarter, to
support his heat-of-passion claim. But McCarter testified that Dr. Witt told Chisholm to
leave and had locked the office door on him when he kept knocking and ultimately before
16 he “barg[ed]” into the room. As soon as Chisholm reached into his pocket for his gun, Dr.
Witt began trying to push back and begged him to stop. And when Dr. Witt saw the gun, she
took off running. Chisholm shot her multiple times in the back and the back of the head.
This is not provocation on Dr. Witt’s part—it is the behavior of someone trying to escape.
¶49. Because there was simply no objective evidence of provocation, the trial judge did not
err by denying an instruction on heat-of-passion manslaughter.
IV. Brady Violation
¶50. Chisholm also broadly asserts that the State violated Brady v. Maryland5 by not
“dump[ing]” his and Dr. Witt’s cell phones, which included exculpatory evidence. In the
same vein, he claims that the State recovered his laptop and journal but did not disclose the
contents of either in discovery.
¶51. This Court reviews whether a Brady violation occurred de novo. Thomas v. State,
45 So. 3d 1217, 1219 (Miss. 2010) (citing United States v. Moore, 452 F.3d 382, 387 (5th
Cir. 2006)). To establish a Brady violation, Chisholm must show:
(1) that the government possessed evidence favorable to the defendant (including impeachment evidence);
(2) that the defendant does not possess the evidence nor could he obtain it himself with any reasonable diligence;
(3) that the prosecution suppressed the favorable evidence; and
(4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.
5 Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963).
17 Carr v. State, 873 So. 2d 991, 999 (Miss. 2004) (emphasis added) (citing King v. State, 656
So. 2d 1168, 1174 (Miss. 1995)). Chisholm cannot prove any of these factors, let alone all
of them. In fact, his brief to this Court does not even mention the standard for a Brady
violation.
¶52. Chisholm merely states that his and Dr. Witt’s cell phone records contained
“exculpatory evidence” and should have been “dumped.” He contends that the records would
have shown that the two “might be considering reconciling” and would show that he was
“not trespassing on the day in question.” Beyond that, he lists no specifics of what the
messages would have revealed. This is simply not enough to meet the Brady requirement
of showing that the prosecution suppressed favorable evidence to Chisholm’s case. See
Montgomery v. State, 891 So. 2d 179, 183 (Miss. 2004).
¶53. Further, Chisholm makes no mention of any efforts on his part to obtain the
records—not even those of his own cell phone. And the State is not required to seek out and
discover “all possible exculpatory evidence” for a defendant. Id. (citing Randle v. State, 827
So. 2d 705, 712 (Miss. 2002)).
¶54. Chisholm also briefly mentions that his journal and laptop were taken from his home
and not produced by the State. But he fails to explain how either the journal or laptop would
have proved exculpatory—only that they were “exculpatory in nature.” So again, Chisholm
cannot even meet the first requirement of Brady—that the State possessed exculpatory
evidence at all. See Montgomery, 891 So. 2d at 183.
18 ¶55. In short, the burden to prove a Brady violation rested squarely on Chisholm. And he
failed to meet that burden.
V. Indictment
¶56. Chisholm focuses much of his brief on his argument that the trial judge should have
quashed his indictment, or in the alternative, reduced his charge from capital murder to first-
degree murder. Chisholm bases this assertion wholly on the burglary portion of the
indictment, claiming it lacked specificity.6 “The sufficiency of an indictment is a question
of law, and therefore is reviewed de novo.” Carson v. State, 212 So. 3d 22, 31 (Miss. 2016)
(citing Berry v. State, 996 So. 2d 782, 785-86 (Miss. 2008)). An indictment will be
considered legally sufficient “so long as a fair reading of the indictment, taken as a whole,
clearly describes the nature and cause of the charge against the accused[.]” Id. (quoting
Farris v. State, 764 So. 2d 411, 421 (Miss. 2000)).
¶57. Here, the nature of the cause was capital murder—namely, “[t]he killing of a human
being without the authority of law by any means or in any manner . . . [w]hen done with or
without any design to effect death, by any person engaged in the commission of the crime
of . . . burglary . . . .” Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2020). To that end,
Chisholm’s indictment read:
that WILLIAM THOMAS CHISHOLM late of the County aforesaid, on or about the 13th day of January, 2018, in the County aforesaid, did unlawfully, willfully, feloniously, and with or without the deliberate design to effect death, kill Shauna L. Witt, a human being, without the authority of law and not in necessary self defense, while in the commission of the felony crime of
6 To clarify, the indictment at issue before this Court is the second iteration, obtained by the State after confessing the first was defective and re-indicting Chisholm.
19 burglary, in that William Thomas Chisholm did willfully, unlawfully, feloniously and burglariously break and enter into a building located at 1010 Highway 12 West, Starkville, Oktibbeha County, Mississippi, the property of Walmart, in which goods, merchandise, equipment or valuable things were kept for use or sale, with the intent to commit an assault therein; in violation of Miss. Code Ann. § 97-3-19(2)(e); contrary to the form of the statutes in such cases made and provided, and against the peace and dignity of the State of Mississippi.
(Emphasis added.) Chisholm zeroes in on the phrase “with the intent to commit an assault
therein.” He claims this phrase was insufficient to allege the commission of the underlying
felony of burglary.7 He gives two reasons for this purported insufficiency—(1) that this
phrase fails to identify the intended victim of his assault and (2) that it fails to specify the
type of assault. But this Court has previously rejected both of these arguments.
¶58. First, in 2016, in Carson, this Court expressly overruled prior precedent that had
“purported to make the identity of the victim of the underlying felony . . . an element of the
crime of capital murder . . . .” Carson, 212 So. 3d at 34 (overruling in part Rowland v. State,
98 So. 3d 1032 (Miss. 2012)). So an indictment for capital murder that names the murder
victim but does not name the victim of the underlying felony is not fatally flawed. Id. at 31-
34.
7 Chisholm was charged with killing Dr. Witt in the commission of a burglary of a non-dwelling. This crime entails the
breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony . . . .”
Miss. Code Ann. § 97-17-33(1) (Rev. 2020).
20 ¶59. Second, this Court has consistently held that the phrase “with the intent to commit an
assault therein” fully notifies the defendant of the charge of burglary. Body v. State, 318 So.
3d 1104, 1114 (Miss. 2021) (citing Booker v. State, 716 So. 2d 1064, 1068 (Miss. 1998)).
As explained in Booker, while “the particular felony intended must be specified[,] [t]he
allegation of the ulterior felony intended need not . . . be set out as fully and specifically as
would be required in an indictment for the actual commission of that felony.” Booker, 716
So. 2d at 1068 (quoting 13 Am. Jur. 2d Burglary § 36). Rather, “it is ordinarily sufficient
to state the intended offense generally, as by alleging an intent to steal, or commit the crime
of larceny, rape or arson.” Id. (citing 13 Am. Jur. 2d Burglary § 36 (1964)). And in Booker,
this Court held “the indictment [that had] charged him with burglary with the intent to
commit assault, in general terms, provided sufficient notice of the charges against him.” Id.
¶60. Chisholm insists that Booker’s holding does not apply to him because he was charged
with burglary of a building, as opposed to burglary of a dwelling. As he points out, burglary
of a dwelling requires a breaking and entering “with the intent to commit some crime
therein.” Miss. Code Ann. § 97-17-23(1) (Rev. 2020). Burglary of a building requires a
breaking and entering “with intent to steal therein, or to commit any felony.” Miss. Code
Ann. § 97-17-33(1). So Chisholm insists the indictment had to specify that he intended to
commit aggravated or sexual assault. But Chisholm cites no authority for this assertion. In
fact, he concedes the Mississippi Court of Appeals rejected this very same argument in
Lancaster v. State, 878 So. 2d 140, 142-43 (Miss. Ct. App. 2004)—a decision he merely
brushes off as wrongly decided.
21 ¶61. But Lancaster was not wrongly decided. In that case, the defendant, like Chisholm,
had been charged with capital murder in the commission of a burglary of a building. His
indictment charged that he broke and entered the building with “the intent to commit an
assault therein.” Id. at 142. The defendant claimed his capital murder indictment was
defective because it “did not indicate what sort of assault [or] what degree of bodily
injury . . . .” Id. at 143. Relying on Booker, the Court of Appeals held that such specificity
was not required. Lancaster was not being charged with assault. Instead, Lancaster had been
charged with capital murder. Id. (citing Booker, 716 So. 2d at 1068). And that court held
the indictment’s language “sufficiently informed [Lancaster] of the underlying felony and
the essential facts constituting the offense of capital murder.” Id.
¶62. For this same reason, Chisholm’s indictment sufficiently informed him of the capital
murder charge. Here, the indictment clearly notified Chisholm that he was being charged
with killing Dr. Witt during the commission of a burglary of a building by specifying
Chisholm feloniously broke and entered into a commercial building where goods,
merchandise, equipment, or valuable things were kept for use or sale. And it also specified
the felony Chisholm intended to commit—assault. See Miss. Code Ann. § 99-17-33(1).
Again, when charging burglary, “the allegation of the ulterior felony intended need not . .
. be set out as fully and specifically as would be required in an indictment for the actual
commission of that felony[.]” Booker, 716 So. 2d at 1068 (quoting 13 Am. Jur. 2d Burglary
§ 36). This is likewise true when charging burglary as the underlying felony for capital
murder—nothing more specific is required. Lancaster, 878 So. 2d at 142-43.
22 ¶63. Chisholm also argues that the eventual jury instruction on burglary “agrees with [his]
argument” because it instructed that the jury had to find Chisholm broke and entered the
Wal-Mart building “with the intent to shoot Shauna Witt.” According to Chisholm this
instruction “constructively amended” the indictment. But Chisholm is incorrect as to the
definition of a constructive amendment. “[A] constructive amendment of the indictment
occurs when the proof and instructions broaden the grounds upon which the defendant may
be found guilty of the offense charged so that the defendant may be convicted without proof
of the elements alleged by the grand jury in its indictment.” Bell v. State, 725 So. 2d 836,
855 (Miss. 1998) (emphasis added) (citing United States v. Miller, 471 U.S. 130, 105 S. Ct.
1811, 85 L. Ed. 2d 99 (1985)). And here the jury instruction only further narrowed the
grounds upon which the jury could find Chisholm guilty. Not only did the instruction narrow
these grounds, but Chisholm expressly withdrew his objection to this instruction during the
jury instruction conference. So any potential appellate challenge to the instruction is waived.
Smith v. State, 724 So. 2d 280, 300 (Miss. 1998) (holding that a defendant “may not object
for a failure to instruct the jury . . . when he withdrew the submitted instruction”).
¶64. Chisholm’s indictment was neither defective nor was it constructively amended.
VI. Verdict
¶65. Finally, Chisholm argues the jury’s verdict was against the weight of the evidence.
He appears, however, to confuse this with the sufficiency of the evidence. Regardless,
Chisholm challenges only the underlying burglary portion of his capital-murder
23 conviction—that the State failed to prove the breaking element and that Chisholm intended
to commit an assault inside the building. But both of Chisholm’s arguments fail.
A. Sufficiency of the Evidence
¶66. The test for sufficiency of the evidence is whether, viewing the evidence in the light
most favorable to the State and giving the State the benefit of all favorable inferences
reasonably drawn from the evidence, any rational juror could have found the essential
elements of the crime beyond a reasonable doubt. Williams v. State, 285 So. 3d 156, 159
(Miss. 2019) (citing Martin v. State, 214 So. 3d 217, 222 (Miss. 2017); Hughes v. State, 983
So. 2d 270, 276 (Miss. 2008)). With this standard in mind, the State’s evidence was
sufficient to convict Chisholm of capital murder.
1. Breaking
¶67. First, Chisholm argues that because the murder occurred in an office connected to
Wal-Mart, a store open to the public, there can be no breaking. But both this Court and the
Court of Appeals have clearly rejected the argument that a business open to the public cannot
be burglarized.
¶68. This is because the required breaking for burglary “can be actual or constructive.”
Templeton, 725 So. 2d at 766. “[C]onstructive breaking is present where the invitation [to
enter the home or business] is gained by deceit, pretense, or fraud.” Id. at 767. In such a
case, this Court has held that the invitation is “irrelevant.” Id. In Templeton, this Court
concluded that, because “an owner would not knowingly grant someone permission to enter
his house with the intent to commit the crime of burglary, much less the crime of murder, as
24 was ultimately committed by Templeton in the case at bar, Templeton’s entry was obviously
gained by deceit, pretense or fraudulent means.” Id. So there clearly had been a constructive
breaking. Id.; see also Haynes v. State, 744 So. 2d 751, 753 (Miss. 1999) (“[A] defendant
was properly convicted of burglary of a dwelling where the defendant did not actually break
into the dwelling, but rather had been invited into the house by the homeowner, but with the
full intention of committing unlawful acts in the house.”).
¶69. This is also true for business owners—the invitation to enter the premises clearly does
not extent to those whose real intent is to commit crimes. In Fulgham v. State, 12 So. 3d
558 (Miss Ct. App. 2009), then-Chief Judge King, writing for the Court of Appeals, held
constructive breaking had been established by evidence that two men had entered a deer
processing shop after hours to steal meat. While the processor permitted hunters to enter the
shop after hours to drop off deer to be processed, the defendant had “entered . . . with the
unlawful intent to steal meat, not to leave deer for processing.” Id. at 561. In other words,
the defendant “entered the store with a purpose outside of [the owner’s] consent,” so the
evidence was sufficient to support a constructive breaking. Id.
¶70. The same is true here. The invitation by Wal-Mart’s Vision Center was for
purchasing vision-related products. Further, the invitation to Dr. Witt’s separate clinic,
connected to the Vision Center, was for patients and those who had business to conduct.
Clearly, Chisholm had no such intent when he entered Dr. Witt’s office that day. More than
that, the State’s evidence established Chisholm specifically was not invited to Dr. Witt’s
office. Dr. Witt had recently obtained a restraining order against him, and her staff had been
25 instructed to call 911 if he ever set foot on the premises, which they immediately did. And
Dr. Witt herself tried to lock Chisholm out of the exam room—a place he clearly had no right
to be.
¶71. In other words, Chisholm walked into a public place with the intent not to shop or
utilize the Vision Center’s or Dr. Witt’s optometry services, but to assault Dr. Witt. This is
sufficient evidence of a constructive breaking.
2. Intent to Commit Assault
¶72. On appeal, Chisholm also argues that the State did not provide sufficient evidence to
prove he entered the building with the intent to commit an assault therein. But “it is well
settled that intent can be inferred from a defendant’s actions.” Friley v. State, 879 So. 2d
1031, 1035 (Miss. 2004) (citing Moody v. State, 841 So. 2d 1067, 1092-93 (Miss. 2003)).
And Chisholm’s actions clearly led to an inference that he intended to assault Dr. Witt. On
the day of Dr. Witt’s murder, Chisholm entered Dr. Witt’s office with a loaded gun. And he
did not ask to see her. He instead went straight to the exam room. Eyewitness testimony
evidenced that Dr. Witt did not provoke Chisholm—she merely asked him to leave. But
when she closed the door and locked it, he continued to knock. She then opened the door and
he began barging in, drawing his pistol. And within minutes of Chisholm entering the
building, he killed Dr. Witt. Chisholm’s actions on the day of the murder were
unquestionably sufficient for a jury to find he intended to assault Dr. Witt.
¶73. This Court is “not required to decide—and in fact we must refrain from
deciding—whether we think the State proved the elements.” Lenoir v. State, 222 So. 3d 273,
26 279 (Miss. 2017) (emphasis omitted) (quoting Poole v. State, 46 So. 3d 290, 293 (Miss.
2010)). Instead, this Court must determine “whether a reasonable juror could rationally say
that the State did” prove those elements. Id. (quoting Poole, 46 So. 3d at 294). And because
a reasonable juror could rationally say the State proved the elements of breaking and
Chisholm’s intent to commit an assault therein, his sufficiency of the evidence argument
fails.
B. Weight of the Evidence
¶74. When reviewing challenges to the weight of the evidence, this Court views the
evidence “in the light most favorable to the verdict[.]” Little v. State, 233 So. 3d 288, 292
(Miss. 2017) (citing Lindsey v. State, 212 So. 3d 44, 45 (Miss. 2017)). This Court will only
disturb a verdict “when it is so contrary to the overwhelming weight of the evidence that to
allow it to stand would sanction an unconscionable injustice.” Id. (quoting Lindsey, 212 So.
3d at 45). And that is not what occurred here. The State presented a plethora of evidence
against Chisholm, including surveillance footage, shell casings, ammunition rounds, and Dr.
Witt’s autopsy report. Chisholm stayed at the scene of the crime until authorities arrived to
arrest him. And the State had three eyewitnesses—Dorman, Ashley, and McCarter—recount
the events leading up to Dr. Witt’s murder. Simply put, the evidence overwhelmingly
supported his conviction. And allowing his conviction to stand certainly does not constitute
an unconscionable injustice.
Conclusion
27 ¶75. Each of Chisholm’s arguments lacks merit. Thus, we affirm Chisholm’s conviction
of capital murder.
¶76. AFFIRMED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.