Larmont Donzell Burchett a/k/a Larmont D. Burchett v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00776-COA

LARMONT DONZELL BURCHETT A/K/A APPELLANT
LARMONT D. BURCHETT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/27/2021
TRIAL JUDGE: HON. GRADY FRANKLIN TOLLISON III
COURT FROM WHICH APPEALED: MARSHALL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
CHARLES MITCHELL McGUFFEY
SPENCER MARK RITCHIE
LARMONT DONZELL BURCHETT (PRO
SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL:
BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY BEN CREEKMORE
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/06/2022
MOTION FOR REHEARING FILED:

EN BANC.

McCARTY, J., FOR THE COURT:

¶1. A factory employee was accused of murdering his co-worker. Despite being

identified by other workers as having committed the crime, his theory of defense was that no

one saw him do it. The jury found him guilty. On appeal, he argues he should have received

a lesser-included instruction on heat of passion manslaughter. Finding there was no evidence

to support giving such an instruction and no other issues requiring reversal, we affirm.
BACKGROUND

¶2. Larmont Burchett worked in Byhalia at Griffin Inc., where he assembled armored

cars. At the time Burchett worked there, the company had about 75 employees, who could

turn out 12 to 15 armored vehicles a month. Working close by him was Deandrae Jones.

Burchett would do the interior trim work on the vehicles, and Jones would do the exterior.

¶3. Although he had not worked long at Griffin, Burchett had complained to his

supervisor about how Jones treated him at work. Their supervisor, Carlos Young, would

later recall that the two were “joking around,” but Burchett “didn’t take the joke too well.”

After what he characterized as some teasing and “low jabs,” Burchett went to his supervisor

and told him “that he didn’t want to . . . continue to joke” with Jones.

¶4. The supervisor told them to knock it off, and according to him “both of them said that

there wouldn’t be anymore joking around with each other.” The two then “shook hands,”

and there did not seem to be any more trouble.

¶5. But on another day, something else happened. The supervisor would “normally get

with every employee early in the morning” to explain what was needed for the day. But

Burchett was not ready for work; instead, he was “just sitting like—he was just sitting

dazed,” his supervisor would later remember.

¶6. The supervisor asked him if he was okay, and Burchett said he was fine. Shortly

thereafter though he said, “[M]an I’m feeling bad. I’m feeling sick at my stomach.” The

supervisor called his immediate superior, who told him to let Burchett go to the doctor if he

did not feel well. So the supervisor gave Burchett permission to leave, and the worker agreed

2
he was going to the doctor. Young reminded Burchett that since he had not been working

at the plant longer than 90 days that he would need an excuse from his doctor. Burchett

asked if taking off sick would “count against” him, and the supervisor said no. Young

recalled telling him “Go get yourself taken care of and hopefully we’ll see you tomorrow.”

¶7. And then Young said Burchett “clocked out and went to his vehicle.” But Burchett

didn’t leave.

¶8. Less than five minutes later, the supervisor was stocking bins with nuts and bolts for

the workers when he “heard three shots.” Then he heard an “employee scream ‘Man, who

shooting firecrackers in here[?]’” But it wasn’t firecrackers—instead, the supervisor saw

Burchett shooting a gun. Because he thought Burchett was shooting at him, he ran and

“jumped behind the stairway and laid there until it was over with.” From his vantage point

he saw Burchett, who had moved his Jeep closer to the exit, get in and drive off.

¶9. It was after the shooting finally stopped when the supervisor learned Jones had been

shot multiple times. He would later die from the gunshot wounds.

¶10. Law enforcement later found Burchett some 30 miles away in Memphis, after the

company that had financed the Jeep shared its location. He was arrested and later indicted

for the deliberate-design first-degree murder of Jones.

PROCEDURAL HISTORY

¶11. Before trial, Burchett indicated to the trial court that he wished to proceed without

counsel. The trial court ultimately determined that he could proceed as he desired but left

his appointed lawyer in a hybrid capacity. Burchett’s counsel announced to the jury during

3
opening statement that the theory of defense was “that there is a lot of gray here.” According

to the defense, the jury would not hear the State’s witnesses say that “they were there” when

Jones was shot or “that they saw the gun” or “that they saw [the shooting].”

¶12. Defense counsel was certain that “the one thing you won’t hear from any of the . . .

witnesses or from the law enforcement is [‘]I was there, I was standing there, I saw Larmont

shoot Deandrae Jones.[’]”

¶13. But the jury then heard testimony from two witnesses that they saw Larmont Burchett

shoot Deandrae Jones.

¶14. First was Samuel Klaus, who delivered parts to various sections of the plant. In his

words, he “was delivering parts to that building and then Larmont came around . . . and shot

Deandrae and then took off to his Jeep and got away.” When pressed repeatedly about

details, Klaus was steadfast that he saw Burchett shoot Jones with a handgun: “No doubt

about it.” On cross-examination, when defense counsel pressed if he could be mistaken

about the identity of the shooter, Klaus testified that he was sure—“No one looked like him

at all.”

¶15. The jury also heard from Jekiah Walton, who worked in quality control. That morning

he explained he had seen “Larmont and Deandrae into it”—well, more like “[n]ot into it, but

they [were] close to each other like talking to each other,” even though “they weren’t loud.”

He thought they should “chill out, whatever.”

¶16. According to Walton, he saw Burchett walk out of his area and ask where their

supervisor was. Walton then witnessed Burchett asking Young for permission to leave work

4
since he did not feel well. But he remembered being surprised when Burchett not only did

not leave, but came back inside the plant: “like I’ll say about five minutes later,” when he

thought, “I thought you were gone . . . I’d be gone in a minute.”

¶17. Walton then told the jury that Burchett “was walking around the truck where

Deandrae was and shot him.” He saw the gun in his hand because “I was standing behind

him,” and he “count[ed] about seven, seven shots.”

¶18. The witness also did not understand what had caused the conflict. Even though

people joked around at the plant—“We kept calling and checking each other”—there was

nothing so serious it would provoke violence. “[I]t was just joking to me.”

¶19. The State asked Walton about Burchett’s return to work after leaving that morning:

“did he seem calm to you?” Walton responded, “Yeah” and that he just “thought [Burchett]

had left his jacket or something.” And after Burchett shot Jones, the witness testified,

Burchett just “stepped over him and walked out.” He then “[w]alked out to his truck he had

parked beside the bay . . . and drove off.”

¶20. Next, the jury heard from Burchett and Jones’ supervisor, Young. He explained the

two men worked close by and had a verbal dispute in the past, and that he had issued them

an ultimatum. Critically, Young also explained that after he let Burchett leave to go to the

doctor, he believed the worker had moved his Jeep from the general parking lot for

employees up closer to the building. He noticed this only “after the shooting had taken

place” but testified that his Jeep was not parked as closely when he allowed him to go to the

doctor.

5
¶21. The father of the victim testified, as did two other plant employees who responded to

the shooting but did not directly witness it. First was human resources employee Tassie Cox,

who had previously been an EMT. Young had radioed her “and just told me to come to the

trim shop [because] there had been a shooting.” Jones was “bleeding from the head” when

she arrived, and she “tr[ied] to help him best I could.” She saw a gunshot wound to his head,

and “two on the front and then there was one on the back.” She stayed with the victim until

a helicopter arrived to transport him away.

¶22. Alongside her was Julio Gonzalez, a maintenance technician who, like Cox, had

emergency training—as a U.S. Marine. He heard a series of “pops” and then went to check

on what it was. He found Jones “riddled” with gunshots, and along with Cox tried to

administer first aid. On his way into the building, Gonzalez saw Burchett leaving. He “just

walked out” according to the witness.

¶23. An investigator from the Marshall County Sheriff’s Department testified, and the jury

was played the audio of an interview he made with Burchett after the defendant had been

picked up in Memphis. Burchett had at first been read his Miranda rights. According to

Burchett, he had only worked at the plant for about a month. He had been teased and teased

back, but he believed Jones had become more “aggressive” in his teasing. This led to the

dispute recounted by the supervisor. While Burchett thought this would conclude the teasing,

he said Jones “will be coming by and kick my tools over.”

¶24. The day of the shooting, according to Burchett, “was a typical morning.” But Jones

then bumped into him, and while the statement is rather disjointed, according to Burchett the

6
victim may have also kicked his bag. The witness explained he first went outside to calm

down. After this Burchett asked his supervisor if he could leave. As the narrative continued,

Burchett began to decline to answer questions. The deputy ceased his questioning, and the

tape concluded.

¶25. The defense rested without calling witnesses or offering evidence.

¶26. During the jury instruction conference, the defense offered a lengthy instruction that

included the elements of deliberate design murder. This instruction, D13, would have

instructed the jury that if it did not find beyond a reasonable doubt that Burchett committed

all the elements of deliberate design murder, it “must continue [its] deliberations to determine

whether the defendant has committed the lesser crime of Manslaughter.” The proposed

instruction would have told the jury that if they found “the defendant acted lawfully [sic],

willfully and feloniously, but without malice and in the heat of passion,” then it could return

the verdict of manslaughter.

¶27. The State objected, arguing that “based on what we’ve heard throughout this trial,”

the defense could not “articulate any scenario where . . . heat of passion was triggered.”

¶28. The defense countered that “it’s been said by several witnesses that there was an

altercation of sorts or an argument between the parties, the victim and Larmont, and possibly

others, but it was after that the shooting occurred shortly thereafter.” For this reason, the

defense argued that “this is a necessary and justified less[e]r-included offense instruction.”

¶29. In rebuttal, the State relied on precedent that heat of passion required “an emotional

state of mind characterized by . . . anger, rage, hatred, furious resentment or terror.” And that

7
the evidence showed only “[m]ere words no physical altercation at all” and that indeed there

were “certain deliberate actions” after the alleged dispute—including Burchett first sitting

down in the armored truck, speaking to his supervisor, claiming sickness, agreeing to go see

a doctor, leaving, and then returning, which some witnesses remembered as around a five-

minute period. Given these facts, the State argued there was no “fact in this case that we’ve

heard that would justify . . . the manslaughter instructions.”

¶30. The trial court agreed and declined to give the instruction, determining that “after

hearing the evidence, I don’t believe there’s an evidentiary basis to include D13[,] the lesser-

included offense” instruction.

¶31. The jury subsequently found Burchett guilty of deliberate-design murder.

DISCUSSION

I. The heat of passion manslaughter instruction was properly
rejected.

¶32. The sole issue on appeal raised by appointed counsel is that the trial court erred by

refusing the heat of passion manslaughter instruction.

¶33. “When reviewing a trial court’s grant or denial of a jury instruction, this Court

considers the jury instructions as a whole to determine if the jury was properly instructed,

giving abuse-of-discretion deference to the trial judge’s decision.” Clayton v. State, 106 So.

3d 802, 804 (¶5) (Miss. 2012) (internal quotation marks omitted). This discretion is not

unfettered, as “in homicide cases, the trial court should instruct the jury about a defendant’s

theories of defense, justification, or excuses that are supported by the evidence, no matter

how meager or unlikely, and the trial court’s failure to do so is error requiring reversal of a

8
judgment of conviction.” Id. at 806 (¶10) (alteration omitted) (emphasis in original).

¶34. While a “defendant is entitled to have jury instructions given which present his theory

of the case,” a trial court is not required to give an instruction simply because a defendant

requests it. Id. at 804 (¶6). “[T]his entitlement is limited in that the court may refuse an

instruction which [1] incorrectly states the law, [2] is covered fairly elsewhere in the

instructions, or [3] is without foundation in the evidence.” Id. (alterations in original).

¶35. In this case, counsel for the defendant sought an instruction on heat of passion

manslaughter, arguing that it was a lesser-included offense. As with all instructions, “[a]

lesser-offense instruction can be refused if it is without foundation in the evidence.” McCune

v. State, 989 So. 2d 310, 319 (¶17) (Miss. 2008). Our precedent has established what first

must be present to warrant the instruction. In general, the defendant would have had to be

in a “state of violent and uncontrollable rage engendered by a blow or certain other

provocation given, which will reduce a homicide from the grade of murder to that of

manslaughter.” Id. at 319 (¶15) (emphasis omitted). “Passion or anger [must be] suddenly

aroused at the time by some immediate and reasonable provocation, by words or acts of one

at the time.” Id. (emphasis omitted). Heat of passion “includes an emotional state of mind

characterized by anger, rage, hatred, furious resentment or terror.” Id.

¶36. We have also explained what heat of passion is not. “[W]ords alone and

disagreements among people are not enough to invoke the passion required for this defense.”

Baker v. State, 304 So. 3d 707, 712 (¶17) (Miss. Ct. App. 2020). “Mere words, no matter

how provocative, are insufficient to reduce an intentional and unjustifiable homicide from

9
murder to manslaughter.” Id.

¶37. This standard for heat of passion is not subjective. It is a reasonable-person standard.

Abeyta v. State, 137 So. 3d 305, 310 (¶10) (Miss. 2014). “That the accused subjectively

experienced passion and anger is not enough to reduce a killing to manslaughter.” Id.

“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. “There must be such circumstances as would

indicate that a normal mind would be roused to the extent that reason is overthrown and

passion usurps the mind destroying judgment.” Id. at 310-11 (¶10) (alteration omitted).

¶38. In this case, the defendant did not take the stand, as was his right, so the only evidence

that might have been adduced to support his request for a lesser-included instruction was

from the State’s witnesses and his statement taken after the shooting. The jury heard that

Burchett had only worked at the plant for about a month, that he had been teased by some of

the other workers, and that he went to his supervisor to request the teasing stop.

¶39. One witness, Walton, described seeing Burchett in a dispute with Jones the day of the

shooting, but then noted how they “weren’t loud,” even if they seemed angry. Burchett had

asked his supervisor for permission to leave after this event, and permission had been

granted. He then actually left the plant floor.

¶40. The jury also heard the recorded statement made by Burchett to law enforcement.

Even if the statement by Burchett was credible, which was for the jury to weigh, at the very

10
worst he recounted how Jones had teased him, possibly kicked his toolbox, and that morning

had bumped into him. Under our precedent, despite that Burchett may have had his feelings

hurt by the teasing or being bumped by his co-worker, the evidence did not come close to

supporting an instruction for heat-of-passion manslaughter.

¶41. Indeed, the jury heard the opposite—of a person who requested to leave work, did so,

and then according to the supervisor, moved his Jeep up closer to the plant. He then came

back inside and shot a man over and over again. According to one witness, Walton, the

defendant was so calm walking back in that he thought he had merely left his jacket.

Notably, two witnesses—both supervisor Young and maintenance technician Gonzalez—also

described Burchett as calm when he left the plant after shooting Jones. Burchett was

described by both as simply walking away.

¶42. There was no proof in this trial that Burchett was induced into “an emotional state of

mind characterized by anger, rage, hatred, furious resentment or terror.” Abeyta, 137 So. 3d

at 310-11 (¶10). The only proof was of minor occurrences or inconveniences that do not

reach the point where “a normal mind would be roused to the extent that reason is

overthrown and passion usurps the mind destroying judgment.” Id. at 311. As a result, the

trial court did not abuse its discretion in declining the jury instruction.

II. Burchett’s pro se issues are without merit.

¶43. Burchett filed his own pro se brief which contained several complaints, all of which

are confined to the arena of procedure and do not attack the substantive eyewitness proof

introduced at trial.

11
¶44. The first is that the State did not “establish ‘probable cause’ to (indict) or bind

Appellant until trial.” There are also some general protests that evidence was somehow

fabricated, ignoring the testimony of multiple witnesses who saw Burchett shoot Jones

multiple times.

¶45. We have rejected arguments of this type before. “An indictment by a grand jury is a

determination that probable cause does exist to hold the person indicted for trial.” Griffin v.

State, 824 So. 2d 632, 635 (¶4) (Miss. Ct. App. 2002). In that case, we ruled “[t]his issue is

without merit because the grand jury indicted [the defendant] thus establishing probable

cause.” Id. The same rule is true in this case.

¶46. Next, Burchett protests that “to conceal the prejudice of the County, the State illegally

Wa[ived] [his] arraignment.” Our rules generally require arraignment, which “shall be held

within thirty (30) days after the defendant is served with the indictment.” MRCrP 15.1(a).

However, there is a notable exception: “A defendant need not be present for the arraignment

if the defendant, in a written waiver signed by both the defendant and the defendant's

attorney, has waived appearance and has affirmed that the defendant received a copy of the

indictment and that the plea is not guilty.” MRCrP 15.6(d).

¶47. In its response, the State points to the record, which contains a waiver of arraignment

which complies with Rule 15.1. The waiver was signed by both Burchett and his counsel,

combined with an entry of a plea of not guilty, and sets out that the defendant “acknowledges

service of a copy of the Indictment[.]” This claim has no merit.

¶48. Third, Burchett claims a Brady violation—specifically, that he was not provided

12
“audio/video evidence” he requested, again referring to “the forgery of material evidence.”

It is long settled that “that the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.” Mohamed v.

State, 323 So. 3d 532, 550 (¶55) (Miss. Ct. App. 2021) (internal quotation marks omitted).

To establish such a violation, a defendant “must meet all four prongs” of a test set by our

Supreme Court:

The defendant must prove: (a) that the State possessed evidence favorable to
the defendant (including impeachment evidence); (b) that the defendant does
not possess the evidence nor could he obtain it himself with any reasonable
diligence; (c) that the prosecution suppressed the favorable evidence; and (d)
that had the evidence been disclosed to the defense, a reasonable probability
exists that the outcome of the proceedings would have been different.

Id. (citation omitted).

¶49. In this case, there is no proof that the State possessed any evidence favorable to the

defendant. Instead, the transcript of pretrial matters reveals that while Burchett may not have

known the entire contents of discovery, it had been turned over to his counsel. There was

also no showing that this hypothetical evidence would have been exculpatory. Burchett’s

theory of the case at trial was that there was no proof of him committing the crime;

nonetheless, two witnesses testified they had seen him shooting Jones. Others had seen him

with a gun or calmly leaving the scene. To the extent there was any evidence tending to

favor Burchett, it was the audio recording of his interview with law enforcement where he

told his version of how he thought Jones was picking on him at work. This was played for

the jury. This claim of error is utterly without merit.

13
¶50. Burchett last complains about “the unjust denial of the Appellant to proceed pro se.”

“A defendant’s right to represent himself at trial is a constitutional guarantee, so this Court

will review alleged violations of a defendant’s right to self-representation de novo.” Ford

v. State, 333 So. 3d 896, 908 (¶25) (Miss. Ct. App. 2022). Under our rules, “[w]hen the court

learns that a defendant desires to act as his/her own attorney, the court shall conduct an

on-the-record examination of the defendant to determine if the defendant knowingly and

voluntarily desires to act as his/her own attorney.” MRCrP 7.1(c) (setting out a checklist of

five items to review with the defendant).

¶51. Once informed by Burchett that he wished to proceed pro se, the trial court followed

the requirements of Rule 7.1. The rule also contains a provision that “the court may appoint

an attorney to assist the defendant on procedure and protocol, even if the defendant does not

desire an attorney.” MRCrP 7.1(c). In this case, the trial court instructed Burchett’s

previously-appointed lawyer to assist him via hybrid representation. “[H]ybrid representation

is the participation by an attorney in the conduct of the trial when the defendant is proceeding

pro se,” and does not violate the defendant’s right to proceed pro se. Walker v. State, 340 So.

3d 335, 363 (¶93) (Miss. Ct. App. 2021). We find the trial court appropriately granted

Burchett the right to represent himself, with hybrid representation, after following the

requirements of the rule and making the required findings. Therefore this claim is rejected

as without merit.

CONCLUSION

¶52. A heat-of-passion-manslaughter instruction was not warranted by the proof in this

14
case, so the trial court was within its discretion to refuse it. Additionally, the pro se issues

argued by Burchett are also rejected. Therefore we affirm the conviction.

¶53. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, McDONALD, LAWRENCE,
SMITH AND EMFINGER, JJ., CONCUR. WILSON, P.J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS,
J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION, JOINED IN PART BY McDONALD, J.

WESTBROOKS, J., CONCURRING IN PART AND DISSENTING IN PART:

¶54. I agree with the majority’s finding that Burchett’s pro se issues are without merit.

However, I do not agree with the majority that the trial court properly rejected Burchett’s

lesser-included jury instruction for manslaughter in this case. Therefore, I concur in part and

respectfully dissent in part from the majority’s opinion.

¶55. On February 20, 2017, Deandrae Jones was tragically shot and killed at his place of

employment. After eyewitnesses identified Larmont Burchett as the shooter, he was arrested

in Memphis, Tennessee, later the same day. At trial, Burchett was permitted to represent

himself while Attorney Lori Shaw continued to assist Burchett in an advisory role. During

trial, Burchett presented evidence of an altercation with Jones that took place in the morning

prior to the shooting. Burchett presented evidence that Jones bumped into him, and possibly

kicked over a bag of his tools that morning. This kind of “aggressive” teasing had been

ongoing and had previously resulted in a meeting with their supervisor, Carlos Young, where

both Jones and Burchett were told their jobs were in jeopardy if the “joking around” did not

stop. The altercation that morning was corroborated by witness Jekiah Walton, who

15
observed Burchett and Jones in a tense situation before the shooting. Walton did not know

the context of their discussion, but he knew things were wrong because “they [were] close

to each other like talking to each other, . . . but I knew things really weren’t just. And I’m

like, ‘Chill out, chill out . . . .’” Young also commented on Burchett’s demeanor after the

incident that morning, stating that although Burchett told Young he was “fine,” Burchett

“was just sitting like - he was just sitting dazed like he was in a daze.” The record is unclear

exactly how much time elapsed between the altercation and the shooting, although all of the

events were said to have happened during the morning.

¶56. At the close of trial, Burchett, through Shaw, attempted to introduce the lessor-

included-offense instruction for manslaughter based on the evidence of this altercation

between the parties. The trial court stated that “under Mississippi law a defendant has a right

to a lesser-included instruction if there is evidence. But after hearing the evidence, I don’t

believe there’s an evidentiary basis to include [the jury instruction for] the lesser-included

offense. So that . . . will be refused.” I believe this determination by the trial court was in

error.

¶57. While it is true that a review of a trial court’s decision to give or refuse a jury

instruction is typically reviewed for abuse of discretion, the Supreme Court has stated that

“[w]e review a trial judge’s denial of a lesser-included-offense jury instruction de novo.”

Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013) (citing Downs v. State, 962 So. 2d

1255, 1258 (¶10) (Miss. 2007)); see also Taylor v. State, 291 So. 3d 14, 19 (¶15) (Miss. Ct.

App. 2019). This means this Court can determine on its own whether the instruction was

16
refused for the proper reasons, i.e., it “incorrectly states the law, is covered fairly elsewhere

in the instructions, or is without foundation in the evidence.” Gilmore, 119 So. 3d at 286

(¶13).

¶58. Manslaughter is defined by statute 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. 2014). “‘Heat of passion’ refers to a ‘state of violent and uncontrollable rage

engendered by a blow or certain other provocation given,’ but the passion must be the result

of ‘immediate and reasonable provocation’ arising from words or acts of the victim.” Hogan

v. State, 89 So. 3d 36, 40 (¶17) (Miss. Ct. App. 2011) (quoting Turner v. State, 773 So. 2d

952, 953 (¶5) (Miss. Ct. App. 2000)). The conflict that leads to the manslaughter can be

prolonged over a period of time, and as a result of escalating arguments. See Dedeaux v.

State, 630 So. 2d 30, 31-33 (Miss. 1993) (reversing and remanding for resentencing for

manslaughter instead of murder after a prolonged fight at a juke joint led to Dedeaux

retrieving gun from car trunk and shooting the man he was fighting); Clemons v. State, 473

So. 2d 943, 943-45 (Miss. 1985) (reversing and remanding for resentencing for manslaughter

instead of murder after two fights in a café and then a third fight some distance away led to

Clemons stabbing the man he was fighting).

¶59. “Whether a homicide is classified as a murder or manslaughter is ordinarily an inquiry

to be made by the jury.” Adams v. State, 291 So. 3d 405, 409-10 (¶14) (Miss. Ct. App. 2020)

(citing Moore v. State, 52 So. 3d 339, 347 (¶32) (Miss. 2010)). “A party has the right to have

17
his theory of the case presented to the jury by instructions, provided that there is credible

evidence that supports that theory.” McGee v. State, 820 So. 2d 700, 705 (¶9) (Miss. Ct.

App. 2000) (citing Alley v. Praschak Mach. Co., 366 So. 2d 661, 665 (Miss. 1979)). Even

so, “such an instruction should not be indiscriminately or automatically given.” Agnew v.

State, 783 So. 2d 699, 703 (¶11) (Miss. 2001) (citing Mease v. State, 539 So. 2d 1324, 1329

(Miss. 1989)). “Such an instruction ‘should only be given after the trial court has carefully

considered the evidence and is of the opinion that such an instruction is justified by the

evidence.” Id.

¶60. The Supreme Court has outlined a test to determine whether a lesser-included-offense

instruction should be submitted to the jury:

A lesser included offense instruction should be granted unless the trial
judge—and ultimately this Court—can say, taking the evidence in the light
most favorable to [the accused] and considering all reasonable favorable
inferences which may be drawn in favor of the accused from the evidence, that
no reasonable jury could find the defendant guilty of the lesser included
offense (and conversely not guilty of at least one essential element of the
principal charge).

Id. at (¶10) (citing Graham v. State, 582 So. 2d 1014, 1017 (Miss. 1991)). Furthermore,

“[o]ur case law leans heavily in favor of instructing the jury on a lesser-included offense.”

Id. at (¶11). “As recently as 1997, we reaffirmed that the jury should be given the option of

a lesser-included offense where there is any evidentiary basis.” Id. (citing Russell v. State,

729 So. 2d 781, 787 (Miss. 1997)). “Even though based on meager evidence and highly

unlikely, a defendant is entitled to have every legal defense he asserts to be submitted as a

factual issue for determination by the jury under proper instruction of the court.” Hester v.

18
State, 602 So. 2d 869, 872 (Miss. 1992). “Where a defendant’s proffered instruction has an

evidentiary basis, properly states the law, and is the only instruction presenting his theory of

the case, refusal to grant it constitutes reversible error.” Id. (citing Murphy v. State, 566 So.

2d 1201, 1207 (Miss. 1990)).

¶61. In the present case, Burchett presented some evidence of an altercation that took place

prior to the shooting. He described a physical interaction, and some part of the altercation

was witnessed and corroborated by Walton. Young described Burchett as appearing to be

“in a daze” prior to the incident. Although the exact timeline of the morning is unclear, all

testimony refers to events that occurred in that morning. If this evidence is taken “in the light

most favorable to the accused,” and “all reasonable favorable inferences” are considered, it

is possible that a reasonable jury could find that Burchett committed manslaughter instead

of murder. Agnew, 783 So. 2d at 703 (¶10). If there is any doubt over whether a reasonable

jury could find the manslaughter charge appropriate, our case law “leans heavily in favor”

of permitting the instruction. Id. at (¶11). I believe that to disregard evidence that points to

manslaughter, however meager, and to dismiss the instruction is to invade the province of

the jury and should be considered error.

¶62. In conclusion, Burchett provided some evidence of an altercation that had a physical

component that strongly affected his state of mind. This altercation was corroborated by a

witness. Given this evidence, the jury should have been given the opportunity to consider

the lesser-included offense of manslaughter in Burchett’s case. Accordingly, I respectfully

dissent on this issue alone.

19
McDONALD, J., JOINS THIS OPINION IN PART.

20