Jeffrey Peyton Horn v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-01223-COA

JEFFREY PEYTON HORN A/K/A JEFFERY APPELLANT
HORN A/K/A JEFFERY P. HORN A/K/A JEP
HORN

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/22/2017
TRIAL JUDGE: HON. JOHN KELLY LUTHER
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: EDWARD D. LANCASTER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/27/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

BARNES, J., FOR THE COURT:

¶1. A Chickasaw County jury convicted Jeffrey Horn of aggravated assault with a deadly

weapon; specifically, shooting his girlfriend in the thigh during a domestic altercation. The

trial-court judge sentenced Horn to serve twenty years in the custody of the Mississippi

Department of Corrections, with eight years suspended, twelve years to serve, and five years

of postrelease supervision. He was also ordered to pay court costs, medical expenses, and

restitution.
¶2. Horn appeals, arguing the trial court erred in not removing a “sleeping juror” from

the jury panel and in granting a pre-arming jury instruction. Horn also argues a judgment

notwithstanding the verdict (JNOV) or, alternatively, a new trial, should have been granted

due to a juror’s relationship with the victim. Finally, Horn argues cumulative error warrants

reversal. We find no merit to Horn’s arguments and affirm his conviction and sentence.

FACTS

¶3. The shooting in this case stems from a relationship Horn had with the victim, Regenia

Higginbotham. They began seeing each other in September 2014. Horn maintains their

relationship was turbulent and mainly sexual, while Regenia claims they did not argue much

and that she “truly loved” him. It was undisputed, however, that Regenia was frustrated

because she wanted a more committed relationship than Horn was willing to offer and that

Horn had a drinking problem.

¶4. Regenia claims their first physical altercation occurred at Horn’s home in Houston,

Mississippi, in November 2014, approximately four months before the instant assault. Horn

claimed Regenia knew he was seeing other women, but she was in “constant contact” with

him by telephone, text, or visits. Regenia had not seen Horn in a few days and decided to

drive to his house and “check on him” unannounced. When Regenia knocked on the

window of the utility-room door, Horn was inside entertaining a woman named Chelsea.

Horn answered the door but was reluctant to let Regenia in. A scuffle ensued as Regenia

attempted to come inside the house. According to Regenia, Horn grabbed her by the hair

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and placed her in a “choke-hold”; so, she took a broken window-pane glass shard and

stabbed him in the ankle. According to Horn, Regenia went running through the house in

an “absolute rage” screaming “where is she at, Jep?” Bleeding profusely, Horn walked

through the house yelling at Regenia. He retrieved a nine-millimeter gun that was kept

hidden under the mattress in his bedroom. Regenia—a nurse—satisfied no other woman

was at Horn’s house,1 calmed down and began tending to Horn’s wound. Regenia began

cleaning the blood from the floors with peroxide. Horn, angry, called 911. Horn told her

she could leave before law enforcement arrived, but she declined. Law enforcement arrived

and, unbeknownst to Horn, saw him holding a gun over Regenia’s head while she cleaned

the floor. Regenia was arrested for simple assault, but Horn later dropped the charges

because Regenia would lose her nursing license. He claims Regenia called him four days

later wanting to reconcile, but he adamantly declined.

¶5. However, in early 2015, the couple began communicating with each other again. By

February, Horn stated they were having sex in his used-car business office, located in front

of his house, several times a week during the lunch hour. On March 12, 2015, the sex- and

alcohol-filled weekend that led to the instant assault began when, according to Regenia,

Horn called and told her “to get her butt over [to his house].” Regenia complied. Both

claimed to enjoy riding around the back roads of the area “looking at nature and stuff.”

Regenia would drive while Horn would drink. On this day, they took a long drive. Horn

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Chelsea was hiding in a closet, unbeknownst to Regenia.

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was drinking, but they were not arguing. According to Horn, they “had a lot of sex” that

evening.

¶6. Horn testified the next day Regenia began “hammer[ing]” him “constantly” about a

more exclusive relationship. They had “more sex” and drove around. Horn was drinking

heavily. That afternoon, they ended up at “The Pony,” a strip club in West Point,

Mississippi.2 Regenia became irritated because Horn was frequently going to “the back” to

enjoy lap dances. Later in the evening, Horn was removed from the strip club for slapping

a dancer’s buttocks during a lap dance. On the drive home, Horn testified that Regenia,

apparently jealous from the lap dances, “just out of the blue . . . tore me up” with her

fingernails while she was driving. Regenia testified that Horn was the one who was

angry—he was yelling and hitting the dash of the car while hitting and biting her right arm.

Regenia admitted grabbing his face to make him quit hitting her. Photographs of Regenia’s

heavily bruised right arm and Horn’s scratched face were entered into evidence. They

returned to his home and calmed down. Later, Horn admitted to Regenia he did not

remember hitting her arm in the car when she showed him her bruised arm.

¶7. On the morning of March 14, 2015, they woke up, had sex, and drove around back

roads again until 8:00 p.m. According to Regenia, that day Horn consumed two pints of

vodka, one-half of a case of beer, and approximately four Lime-a-ritas. According to Horn,

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Horn claimed Regenia “loved” to go there; Regenia stated she felt “uncomfortable
being there.”

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Regenia had been “hammering” him more about “being together.” Regenia testified that

during a stop at the Dollar General store, Horn became paranoid that people were “coming

after” him. Embarrassed, Regenia “fussed” at Horn about the incident. Horn became angry

and told Regenia he was going to “whoop her butt” when they got home. Later, Horn

admitted he did not remember going to the Dollar General store.

¶8. Upon arriving at Horn’s house, Regenia said Horn suddenly pulled a gun on her from

behind his back and pointed it at her. Initially, she headed toward the bathroom thinking she

could escape from him there, but she realized he could shoot the door open and she would

be trapped. Remembering there was a gun underneath the mattress in Horn’s bedroom, she

ran there instead. Regenia was uncertain if Horn was following her, but as she lifted the

mattress she heard him at the doorway to the bedroom. The next thing Regenia knew she

was shot in the thigh, and fell to the ground.

¶9. Horn’s version of the shooting differed. Regenia was angry about the state of their

relationship when they returned home. Horn was drinking a beer and smoking a cigarette

in the utility room when Regenia entered, talking about “the same thing”—a more serious

relationship. He told her “that’s not what I want.” Horn testified: “She quits talking. I see

her. She opens the door. She walks into it, walks into the house, shuts the door like normal,

and she takes off running.” Describing her demeanor, Horn testified, “She’s getting mad.

. . . She actually puffs up . . . but when she took off running, I knew where she was going

. . . to get that gun.” He continued:

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When I see her take off running, I get up; and I get my pistol; and I go into the
house; and as I’m going into the house, I can see she made it through the
dining area; and I see her turn down the hall. I follow her . . . I’m walking
down the hall fast; but as I get to where you can actually see into the bedroom,
probably . . . 6 or 7 feet before you actually get to the door frame, I mean she’s
right there. She’s getting the gun. As I walk up to the door, she’s got her
back to me. She turns around, and she’s pointing it directly at my head. I try
to take cover. . . . I put mine on her. She’s got the craziest look. . . . When I
see those eyes, I actually lunge; and I shoot her. . . . I shoot her right in the
middle.

He later testified “I popped her” because “she [was] fixing to kill me.”

¶10. The bullet actually struck Regenia’s left thigh. She collapsed in pain, dropping the

pistol. Horn picked it up and put both guns on top of the washing machine in the utility

room. Horn claimed he called 911 within seconds; Regenia claimed it was more like fifteen

to thirty minutes. A recording of the 911 call, placed at 9:40 p.m. on March 14, 2015, was

played for the jury and entered into evidence. Horn admitted a “woman’s been shot,” but

was reluctant to give his name. He also exclaimed to Regenia “Do you not fu--ing see what

you’re doing to me?” He told the ambulance dispatcher that he had shot Regenia “in the

gut.” When asked if it was an accident he replied, “Well, I mean I wouldn’t say that.” Due

to the bullet wound, Regenia’s leg bone was shattered, and required two surgeries to insert

a plate, rod, seven screws, and a wire into her thigh.

¶11. Horn was arrested and, once sober two days later, was interviewed by law

enforcement. Horn admitted he meant to shoot Regenia in the leg to stop her, not her “gut.”

Horn maintained, however, that Regenia was “fixing to kill” him with the loaded nine-

millimeter gun.

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DISCUSSION

I. Alleged Sleeping Juror

¶12. Horn claims reversible error occurred when an alleged sleeping juror (number 23)

was not removed from the jury panel. Horn argues the trial court’s “denial” prejudiced him,

depriving him of a fair trial and due process. We find, however, that Horn’s counsel never

objected or requested the alleged sleeping juror be removed; the only “denial” by the trial

court related to Juror 23 was a challenge for cause.

¶13. Concern with Juror 23 began during voir dire, when the trial judge asked if anyone

had worked the night before. Juror 23 responded affirmatively, stating she had worked from

“6:30 to 3:30” and was usually asleep at this time of day. However, because she had not

asked to be excused and she was not working that night, the trial judge let her choose if she

wanted to remain in the jury pool or leave. She responded that she wanted to stay. When

the prosecutor asked if jury duty would cause a problem with her work schedule tomorrow

and the next day, she responded “I can do it.”

¶14. After voir dire, during challenges for cause, Horn’s counsel requested striking Juror

23, but the trial court denied his request.

BY [DEFENSE COUNSEL]: Judge, the only one we wanted to strike
was number 23. It was the reason she stated that she had been up all night.
She literally fell asleep out there a couple of times. I think for cause she
couldn’t sit here and actually hear the case the rest of the day. She was falling
asleep during voir dire.

BY [THE PROSECUTOR]: I specifically asked her the next day and
the next. She said she wants to stay.

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BY THE COURT: I didn’t notice her. Ms. Clerk?

BY THE CLERK: I didn’t notice.

BY THE COURT: I am going to let her stay. That will be one you can
use a challenge on if you would like to. She seemed awfully alert when I was
talking to her anyway.

(Emphasis added). Later, when peremptory strikes were to be made, Horn’s counsel did not

move to strike Juror 23, even though he had only exercised two previous peremptory strikes.

BY THE COURT: That brings to the defense Juror 23. . . .

BY [DEFENSE COUNSEL]: We’re at 9 [jurors accepted].

BY THE COURT: You’ve got 10.

BY [DEFENSE COUNSEL]: I’m sorry. We would tender [Juror 23].

(Emphasis added). Defense counsel then exercised a third peremptory strike on the next

juror.

¶15. During the first day of trial at 3:30 p.m., after three witnesses for the State had

testified—the 911 operator and two county sheriff department officers who first arrived at

the scene—defense counsel, outside of the presence of the jury, expressed concern about

two jurors: “Your Honor, they[3] are telling me that 20 and 23 have literally slept through

the entire part of that testimony, and they tell [me] that when [the prosecutor] hit the

microphone, one of them jumped up like she had been shot.” There was more concern over

3
It is unclear from the record who “they” is, but apparently counsel did not have first
hand knowledge of the jurors’ sleeping.

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Juror 20 than 23. The trial judge stated he had been observing Juror 20 but not Juror 23.

He proceeded to give a detailed on-the-record description of Juror 20’s behavior. He was

not willing to call Juror 20 a sleeping juror yet, but he would continue to monitor her, and

if it became appropriate to remove her, he would. As for Juror 23, the judge only stated he

would try to pay more attention to her. The State concurred with defense counsel’s

descriptions of the two jurors but did not request their removal. The trial judge stated:

“Regardless of whether I elect to move them into an alternate position, I’m not going to

remove them from the jury panel.” Defense counsel then asked if they could reconvene the

next day because equipment had to be set up, as well as “due to the concern of the jurors.”

The trial judge agreed, and the court recessed for the day. No motion for removal or further

mention was made of either juror being inattentive. Horn raised the issue in his motion for

a JNOV or a new trial, which was denied. In the motion, Horn claimed that he “objected”

to the alleged sleeping juror, but there is no such objection in the transcript. Counsel only

made a challenge for cause that was denied.

¶16. The Mississippi Supreme Court has stated that a sleeping juror is a matter of “great

concern” to the courts. Church v. Massey, 697 So. 2d 407, 414 (Miss. 1997). “It is well

founded that the trial judge has the discretion to excuse potential jurors for cause if the court

believes the juror could not try the case impartially.” Id. (quoting Burt v. State, 493 So. 2d

1325, 1327 (Miss.1986)). Further, “[t]his Court will not lightly interfere with a finding of

fact made by the trial judge in a criminal case, and it will reverse only when it is satisfied

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that the trial court has erred in holding a juror competent . . . .” Id. (quoting Woodward v.

State, 533 So. 2d 418, 424 (Miss. 1988)).

¶17. Horn’s counsel did not make a motion to remove Juror 23, either during or at the end

of trial. This Court has held that failure to make a motion for removal bars the defendant

from raising the issue on appeal. Bush v. State, 222 So. 3d 326, 334-35 (¶¶30-31) (Miss. Ct.

App. 2017) (citing Jones v. State, 149 So. 3d 1060, 1070 (¶55) (Miss. Ct. App. 2014)). In

Jones and Bush, similar situations occurred. In Jones, both defense counsel and the trial

judge noticed one or two jurors sleeping more than once during the trial, and defense

counsel suggested one of the jurors “may need to be replaced.” Jones, 149 So. 3d at 1068

(¶45). The trial court reserved ruling on the issue until the end of trial. Id. This Court

stated the record did not show the juror slept through trial, but “perhaps” fell asleep during

one afternoon; however, the trial judge watched her and the rest of the jury closely, and there

were no further problems. This Court rejected the defendant’s argument on appeal that the

trial judge’s failure to remove a juror “sua sponte” entitled him to a new trial. Id. at 1069

(¶48). This Court explained that “merely voicing concerns” over a sleeping juror was

insufficient to preserve the issue for appeal; instead, an on-the-record motion to remove the

juror was required. Id. at 1070 (¶53).

¶18. Likewise, in Bush, defense counsel did not request a sleeping juror be removed and

replaced with an alternate. Even so, on appeal the defendant argued he was entitled to a new

trial. Bush, 222 So. 3d at 334 (¶28). This Court found the defendant waived the issue by

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failing to request relief from the trial court. Id. at 334-35 (¶31).

¶19. Here, the facts are similar, and the result is the same. Since Horn failed to request

Juror 23’s removal, the issue is waived. Notwithstanding the waiver, the record does not

indicate that Juror 23 had any further problems staying awake. The record only suggests that

the juror “might” have been sleeping during “part” of one officer’s testimony. There is no

evidence that Juror 23 was incompetent or that Horn suffered any prejudice.

¶20. Further, if we analyze Horn’s argument, as the State suggests, as a denial of a

challenge for cause or waiver of a peremptory strike, the issue is also without merit.

¶21. Our Court reviews challenges for cause by the following standard:

Generally, a juror removed on a challenge for cause is one against whom a
cause for challenge exists that would likely affect his competency or his
impartiality at trial. But, the selection of jurors is a judgment call peculiarly
within the province of the circuit judge, and one we will not on appeal second
guess in the absence of a record showing a clear abuse of discretion. The trial
court is entitled to deference when its for cause strikes are reviewed because
of its ability to evaluate the demeanor of potential jurors . . . .

Lomax v. State, 220 So. 3d 211, 213 (¶3) (Miss. Ct. App. 2017) (citations and internal

quotation marks omitted). Additionally, “before a claim related to a denial of a challenge

for cause may be valid, (1) the defendant must have exhausted all of his peremptory

challenges and (2) an incompetent juror must be forced by the trial court’s erroneous ruling

to sit on the jury.” Id. at (¶7) (quoting Burgess v. State, 178 So. 3d 1266, 1276 (¶28) (Miss.

2015)).

¶22. The trial court did not abuse its discretion in refusing to strike Juror 23 for cause.

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When questioned by the trial judge, the juror stated she would not work that night and could

serve. The fact she worked the night before did not affect her competency—witnesses’

testimony started the next day. Further, the trial judge told Horn’s counsel he could use one

of his peremptory challenges to strike her if desired, but he did not. Because Horn had not

exhausted all of his peremptory challenges when presented with Juror 23, we cannot find

the trial court abused its discretion in allowing Juror 23 to sit on the jury.

II. Jury Instruction S-3

¶23. Horn argues that the granting of jury instruction S-3, a pre-arming instruction, over

the defense’s objection, was error because it deprived him of claiming self-defense.

¶24. The decision to give or refuse jury instructions is within the discretion of the trial

court, and the well-settled standard of review is abuse of discretion. Moody v. State, 202 So.

3d 1235, 1236-37 (¶7) (Miss. 2016). “Jury instructions must fairly announce the law of the

case and not create an injustice against the defendant.” Davis v. State, 18 So. 3d 842, 847

(¶14) (Miss. 2009). “A criminal defendant is entitled to present his defense to the finder of

fact.” Keys v. State, 635 So. 2d 845, 848 (Miss. 1994).

¶25. Jury instruction S-3 states:

The Court instructs the jury that if a person provokes a difficulty,
arming himself in advance, and intending, if necessary, to use his weapon and
overcome his adversary, he becomes the aggressor and deprives himself of the
right of self defense.

If you believe from the evidence beyond a reasonable doubt that the
Defendant, Jeffrey Horn, provoked a difficulty with the alleged victim after
having armed himself with a deadly weapon in advance of pursuing Ms.

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Higginbotham through the house into the bedroom and intended, if necessary,
to use such weapon and overcome Ms. Higginbotham, then Defendant cannot
claim self defense.

The defense objected to S-3, and a discussion ensued. The State maintained it was a correct

statement of the law. The trial judge stated he wanted to give an instruction on this theory

of the law, and he wanted the parties to agree on the facts in the second paragraph of the

instruction—that Horn pursued Regenia down the hall. The defense did not object to that

portion, and the instruction was given. Other jury instructions given included aggravated

assault, self-defense, and the definition of “reasonableness.”

¶26. During deliberations, the jury sent the following note to the trial judge: “If Mr. Horn

armed himself could he have been arming himself to defend himself and still be innocent

instead of calling it provoking the situation?” After a discussion with both counsel, the trial

court declined to clarify the instruction.

¶27. The purpose of a pre-arming instruction is “to inform the fact-finder that one cannot

arm himself in advance when he is not in any physical danger, go forth and provoke a

confrontation or difficulty with another, shoot the other, and then attempt to hide behind a

smoke screen of self-defense.” Hart v. State, 637 So. 2d 1329, 1337 (Miss. 1994).

However, the Mississippi Supreme Court has cautioned that pre-arming instructions only be

used in “extremely rare incidents where the instruction [i]s supported by the evidence”

because this type of instruction can prevent the jury from considering the defendant’s theory

of the case on self-defense. Dew v. State, 748 So. 2d 751, 754 (¶19) (Miss. 1999).

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¶28. Horn claims that the pre-arming instruction nullified his self-defense instruction. In

the numerous cases where a conviction has been reversed for a pre-arming instruction, there

is usually no evidentiary basis, or an ambiguity, that the defendant pursued the victim, or no

evidence the defendant intended to provoke a confrontation. See Jobe v. State, 97 So. 3d

1267, 1270 (¶12) (Miss. Ct. App. 2012) (discussing facts of cases where self-arming

instruction has been approved or denied). However, in the rare instances where this

evidence is present, the Mississippi Supreme Court and this Court have approved a self-

arming instruction. See Hart, 637 So. 2d at 1337; Hall v. State, 420 So. 2d 1381, 1385

(Miss. 1982); Reid v. State, 301 So. 2d 561, 564 (Miss. 1974); Jobe, 97 So. 3d at 1270

(¶14).

¶29. Here, the pre-arming instruction was supported by the evidence, including the

defendant’s own testimony. The testimony of both parties shows Horn was in no physical

danger from Regenia, and she was not provoking him, when Horn armed himself by

grabbing a gun from on top of the cabinet in the utility room. Regenia testified that he

suddenly “pulled the gun from his back” on her, and then she ran toward the back of the

house. Additionally, Horn testified that he was sitting in a chair in the utility room when

Regenia became angry and ran to the back of the house. Horn explained that he grabbed his

gun because he “knew” she was running to the back of the house to get the gun from under

the mattress. But she did not provoke him. In both scenarios, Regenia was running down

the hall unarmed, and Horn was following her, armed. Further, Horn never abandoned his

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pursuit of Regenia down the hall or withdrew from the encounter, but instead he followed

her with his gun.

¶30. Horn’s theory of self-defense was not preempted. The jury was given a self-defense

instruction, but rejected this theory. The trial court did not abuse its discretion in granting

the pre-arming instruction.

III. Juror No. 1’s Relationship to the Victim

¶31. Horn argues he is entitled to a new trial because during voir dire Juror 1 failed to

inform the trial judge that his wife was Regenia’s supervisor at Trace Regional Hospital in

Houston, Mississippi.

¶32. During voir dire, when clearly and specifically asked by the trial judge, none of the

potential jurors admitted they had any knowledge of, affiliation or social or family

connection with, the alleged victim. After trial, during the hearing on Horn’s motion for a

JNOV or a new trial, Horn’s sister, Shannon Carter, testified that Juror 1’s wife was

Regenia’s direct supervisor at the hospital where Regenia worked. Carter also worked at

that hospital, and she submitted an affidavit about the relationship, which was attached to

the post-trial motion. No affidavit or testimony was ever presented from Juror 1 or his wife.

Carter testified she was not present during voir dire, and there is no information in the record

about when the relationship was discovered.

¶33. The Mississippi Supreme Court has articulated the analysis for whether a new trial

should be granted in this situation:

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[W]here . . . a prospective juror in a criminal case fails to respond to a
relevant, direct, and unambiguous question presented by defense counsel on
voir dire, although having knowledge of the information sought to be elicited,
the trial court should, upon motion for a new trial, determine whether the
question propounded to the juror was (1) relevant to the voir dire examination;
(2) whether it was unambiguous; and (3) whether the juror had substantial
knowledge of the information sought to be elicited. If the trial court’s
determination of these inquiries is in the affirmative, the court should then
determine if prejudice to the defendant in selecting the jury reasonably could
be inferred from the juror’s failure to respond. If prejudice reasonably could
be inferred, then a new trial should be ordered.

Sewell v. State, 721 So. 2d 129, 137 (¶43) (Miss. 1998) (quoting Odom v. State, 355 So. 2d

1381, 1383 (Miss. 1978)). Further, “no precise formula exists for answering these three

questions . . . the trial court must make an ad hoc determination based on the facts before it.”

Id.

¶34. Here, the first two prongs are met—the inquiries were relevant to voir dire and

unambiguous; however, whether the juror had substantial knowledge of the information is

questionable. The trial court did not enter a detailed order analyzing the issues of Horn’s

post-trial motion, but did make findings from the bench at the hearing. The judge stated:

I’m going to assume that at that point in the proceedings somebody had said
that the victim in this case worked at the Houston hospital. I don’t know that
to be the case. When that question was asked, do you know the defendant in
this case; do you know the alleged victim in this case, I don’t know at that
point in response to those questions whether or not juror number one even
knew the hospital was in issue at that time; so at this point I’m going to find
that that’s not a valid grounds for a new trial or verdict of acquittal
notwithstanding the verdict.

While the judge did not have the transcript before him in making this ruling, our review of

the voir-dire transcript confirms that at the time the judge asked the jurors whether they

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knew the victim, her place of employment had not been mentioned. Later during voir dire,

when the prosecutor asked if anybody knew Regenia, he stated she was a nurse at Trace

Family Clinic. While Juror 1 did not respond, there is no information in the record that he

knew Regenia. Moreover, Carter’s affidavit merely represented that the relationship existed

between Regenia and the wife of Juror1; it did not allege that the juror knew her or knew

of his wife’s relationship with her. Nor does it appear that substantial prejudice could be

inferred from the juror’s failure to respond. Therefore, the trial court did not err in finding

Horn had a fair and impartial jury, and he is not entitled to a new trial.

IV. Cumulative Error

¶35. Lastly, Horn argues the errors that occurred in his case, when taken together, warrant

reversal. The cumulative-error doctrine states: “[I]ndividual 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.” Ross v.

State, 954 So. 2d 968, 1018 (¶138) (Miss. 2007). “However, where there is no error in part,

there can be no reversible error to the whole.” Harris v. State, 970 So. 2d 151, 157 (¶24)

(Miss. 2007). Since we have found the trial court committed no individual errors, there is

no cumulative error.

¶36. Based upon the foregoing, we affirm Horn’s conviction and sentence.

¶37. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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