Sherard Eugene Ward a/k/a Sherard E. Ward a/k/a Sherrard Ward v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-KA-00341-COA

SHERARD EUGENE WARD A/K/A SHERARD E. APPELLANT
WARD A/K/A SHERRARD WARD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/19/2023
TRIAL JUDGE: HON. GRADY FRANKLIN TOLLISON III
COURT FROM WHICH APPEALED LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MARK KEVIN HORAN
BRADLEY DAVID DAIGNEAULT
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 IN PART; REVERSED AND
REMANDED IN PART - 11/04/2025
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., EMFINGER AND WEDDLE, JJ.

EMFINGER, J., FOR THE COURT:

¶1. Sherard Ward was found guilty in the Circuit Court of Lafayette County, Mississippi,

of voyeurism as charged in Count I of his indictment and first-degree murder as charged in

Count II. Ward was sentenced to serve five years in the custody of the Mississippi

Department of Corrections for Count I and life imprisonment for Count II. He appeals his

convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2. Ward and his wife, Marisha Danielle “Danny” Golden, lived in a neighborhood in
Lafayette County that was comprised of multiple duplexes on County Road 1080. Rachel

and Jody Todd, sisters and college students, lived in a duplex alongside Ward and Golden.

According to both Rachel and Jody, Ward would often make them feel uncomfortable by

staring at them when they were coming and going from their home, looking in their windows,

and making inappropriate sexual comments and advances to them and their friends.

According to Jody, Ward told her on one occasion that he wanted to “hook up” and that she

would need to keep it a secret. Jody testified that after this incident, she felt anxious and

became concerned about going in and out of the house by herself, especially at night.

¶3. On Friday afternoon, August 28, 2020, Ward knocked on the sisters’ door. When

Jody answered the door, Ward told her that “he was going to be outside that night.” Not

understanding Ward’s comment, Jody shut the door. Ward knocked again and this time told

Jody that “he wasn’t trying to be an ass,” but he just wanted to let her know “that he was

going to be outside.” Jody testified that around 11:00 p.m. that same night, when she was

getting ready for bed, she heard Ward’s voice “loud and audible” outside her bedroom

window. Jody claimed that she immediately unplugged some string lights that were on in her

room. When her lights were turned off, she stated that she could see Ward’s silhouette walk

past her window. According to Jody, Ward was only a “couple of feet” from her window,

between her car and the bushes outside the window. According to trial testimony, there

would have been no reason for anyone to be in the small space near that particular duplex

window. After debating what to do next, the sisters ultimately decided to remain in the house

for the night; however, both Rachel and Jody slept in Rachel’s room. The sisters left the next

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morning to go out of town, but Rachel called their landlord, Summit Management, on the

following Monday, August 31 to report Ward’s actions. After reporting the incident to their

landlord, the girls also reported the incident to the police.

¶4. That same day, August 31, 2020, Deputy Kayla Shoffner was dispatched to respond

to the call from Rachael’s report of voyeurism that occurred on August 28. Based on the

report Rachel made, Shoffner met with Ward to question him about the incident. Shoffner

testified that during the interview, Ward stated that he would leave the Todd sisters alone.

Shoffner indicated that Golden was present during a portion of her initial interview with

Ward. After Shoffner left Ward’s home, she received another call from dispatch stating that

Ward had called and wanted to speak to Shoffner again. When Shoffner called Ward, he told

Shoffner that he wished to speak over the phone when his wife was not present. During their

second conversation, Ward admitted that he “messed up” and was going to get help.

According to Shoffner, on September 1 she received a “walk in complaint” from Jody

concerning the voyeurism that occurred on August 28. Shoffner indicated that all the

information received as a result of her interviews was passed along to Investigator Nathan

Noe as the charging officer.

¶5. On September 2, 2020, Investigator Noe conducted a follow-up investigation on the

reported voyeurism incident that occurred on August 28. The Todd sisters advised Noe that

they wished to press charges. On that same day, a warrant was issued, and Ward was

arrested in front of his home. At the time Ward was arrested, Noe observed a loaded

handgun in Ward’s car. After Noe verified that the gun was not stolen, he unloaded the

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handgun and placed it on a coffee table inside Ward’s home. A patrol deputy arrived on the

scene shortly thereafter and transported Ward to the Lafayette County Detention Center.

¶6. On the following day, September 3, 2020, Noe met with Ward at the jail. After

waiving his Miranda1 rights, Ward agreed to speak with Noe about his arrest and the

voyeurism charge. According to Noe, Ward admitted to looking through Rachel and Jody’s

window three or four times, but he said that one of the sisters was in the bedroom only one

time. Ward also told Noe that he only looked in their window when his wife was out of

town. Ward admitted again, this time to Noe, that he had a “sexual problem” and needed

help.

¶7. Later that day, Golden came to the sheriff’s department to find out details regarding

Ward’s charges and to find out if he would have to post a bond to be released from custody.

Noe testified that he spoke to Golden and explained the Todd sisters’ report and why Ward

was arrested. According to Noe, Golden then asked him to explain what had happened to

Ward’s parents (Eddie and Emma Ward), who were also with her at the sheriff’s department.

Noe explained the circumstances around Ward’s arrest to Eddie and Emma Ward. During

Noe’s conversation with Golden, Eddie, and Emma, Noe advised them that it would probably

be wise to remove Ward’s firearm from the house. Ward’s parents assured Noe that they

would remove his guns. Considering the nature of Ward’s charge and his admission that he

had a sex problem, Noe also offered to make some phone calls for the purpose of scheduling

some help for Ward. According to Eddie Ward, law enforcement arranged for Ward to have

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Miranda v. Arizona, 384 U.S. 436 (1966).

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a phone interview with a counselor at 11:00 a.m. on September 4. Ward was bailed out of

jail later that day, September 3, 2020.

¶8. Eddie Ward testified that he first saw his son about 7:30 a.m. on the morning of

September 4, 2020. According to Eddie, Ward came over to his house that morning to

discuss some problems he was having with his car and seemed “real tired.” Eddie testified

that he told Ward to “go on back home and get some rest because you have an interview at

11:00 o’clock and we will take that car later on.” Eddie also testified that he and Ward had

previously agreed to drive to Tupelo later in the day together to run some errands. According

to Eddie, he called Ward a little after 12:00 noon before he left his house to go pick up Ward

for their drive to Tupelo. Eddie stated that Ward seemed as if he did not understand what

Eddie was saying, and he hung up the phone. At that time, Eddie tried to call Golden

because Ward “didn’t sound like he was all right.” However, Golden did not answer her

phone. Eddie proceeded to drive to Ward’s home. On his way, Eddie saw Ward’s vehicle

stopped in the middle of the road. Ward got out of his car and began to approach Eddie’s

car. Eddie advised Ward to get back in his car, and they would both drive back to Ward’s

house. As Eddie and Ward began making their way back to Ward’s home, Ward pulled his

car beside Eddie’s and indicated that he needed to pull over to look for his phone. After both

cars had pulled over, Ward just stared at Eddie, and Eddie asked Ward twice what was wrong

with him. Ward proceeded to approach Eddie’s car and “hollered real loud[,]. . . ‘I shot

[Golden].’” Ward further admitted to Eddie that Golden was dead. Eddie testified that he

was shaken up but managed to call 911. As Eddie was on the phone with the 911 dispatcher,

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he flagged down a deputy sheriff who was coming down County Road 102. Eddie told the

deputy that Ward had just told him that he shot his wife.

¶9. Meanwhile, officers from the Lafayette County Sheriff’s Department responded to a

call claiming that someone had been shot at County Road 1080. When they arrived, officers

found Golden lying in a pool of blood on the parking pad in front of duplex number one.

Multiple residents of the duplex complex and surrounding residences were interviewed.

¶10. After arriving on the scene, officers recovered a Ruger 9-millimeter pistol and other

evidence in the parking area behind and around Golden’s vehicle. Also recovered outside

in the parking area was the key fob portion of Golden’s car key, located to the left of her

body. The metal file portion of the car key was found broken off in the ignition of Golden’s

car. Golden’s purse, cell phone, and wallet were all located in her car. Traces of Golden’s

blood were found on items found in her car. Additionally, a spent shell casing and a copper

projectile were found inside the residence. Multiple bloody objects from the couple’s

bedroom were collected and ultimately tested positive for Golden’s blood. The arresting

officer testified that Ward had “tiny blood spots” on the back of his shirt and his arm at the

time of arrest.2

¶11. On February 26, 2021, Ward was charged in a two-count indictment for voyeurism

and first-degree murder. In addition to the testimony described above, Ieasha Glover, a

neighbor, testified that sometime around 12:00 noon and 1:00 p.m., she heard screaming and

looked out her window. Glover testified that she saw Golden running from her apartment and

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Ward’s shirt was lost, and the blood from his arm was never tested.

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that she had blood on her face and her hair was messed up. The witness stated that she had

not heard any gunshots at that point. Minutes later, after she heard a gunshot, she looked out

her window again and saw Golden running from her residence a second time.

¶12. Another neighbor, Jeremy Rice, described hearing a female voice scream, “No! No!”

and then heard two gunshots, but he did not see anything. Another neighbor, Nicholas

Adams, testified that after he heard a woman scream, “No!” he then heard two bangs and

looked out his window. He testified that he saw Ward drop a gun, get into his car, and drive

off. Still another neighbor, Clara Fleitas, testified that in the middle of her Zoom class, she

heard two loud bangs. When she looked out her window, she saw a car fleeing the

neighborhood and identified the driver as Ward. She recognized the car as being one that is

usually parked at Golden and Ward’s residence. Fleitas grabbed her phone and ran outside

and called 911. Fleitas could see a woman lying on the driveway. Ward circled back through

the parking area and left again.

¶13. Dr. Mark LeVaughn testified as an expert in forensic pathology. LeVaughn performed

the autopsy on Golden’s body and described for the jury the injuries he found as a result of

the autopsy. LeVaughn found four blunt force injuries, which he described as any injury

caused by a non-sharp object. LeVaughn also described three gunshot wounds. The first

gunshot wound LeVaughn described entered Golden’s right cheek area, then went through

the back of her throat area, fracturing facial bones, and exited the left side of her chin,

fracturing her mandible. There was an additional gunshot wound to the base of Golden’s

neck on the right side of the shoulder base. The bullet from that wound perforated Goden’s

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lower neck, went through her airway and the trachea, and exited on the left side of her neck.

LeVaughn also described a graze-type gunshot wound that scraped the skin on Golden’s left

upper chest. LeVaughn further described the wounds as distant gunshot wounds, which

means the barrel of the gun was fired at a distance of more than three feet away from Golden.

On cross-examination, LeVaughn testified that it was possible that the blunt force injuries

were the result of a fight.

¶14. After a three-day jury trial, Ward was found guilty of both counts charged in the

indictment. Ward was sentenced to serve five years in the custody of the Mississippi

Department of Corrections (MDOC) for Count I and life imprisonment for Count II, with the

sentences set to run concurrently. On July 31, 2023, Ward filed a motion for a new trial,

which was denied on February 26, 2024. Ward filed his notice of appeal on March 13, 2024.

ANALYSIS

¶15. Ward raises the following issues on appeal: (1) he received ineffective assistance of

counsel at trial; (2) the court erred in refusing his proposed jury instructions regarding the

lesser included offense of manslaughter, self-defense, and the intent requirements for murder

and manslaughter; (3) the evidence presented at trial was insufficient to sustain the jury’s

guilty verdicts for both first-degree murder and voyeurism; and (4) cumulative error deprived

Ward of a fair trial. We address these issues below.

I. Ineffective Assistance of Counsel

¶16. Ward claims that his counsel was ineffective for several reasons that entitle him to a

new trial. Concerning the consideration of an ineffective assistance of counsel claim on

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direct appeal, in Robinson v. State, 400 So. 3d 527, 531 (¶14) (Miss. Ct. App. 2025), this

Court stated:

As an initial matter, we recognize that “this Court typically preserves
ineffective-assistance-of-counsel claims for post-conviction review.” Latham
[v. State], 299 So. 3d [768,] 773 (¶16) [(Miss. 2020)]. “This is because we are
limited to the trial court record in our review of the claim[,] and there is
usually insufficient evidence within the record to evaluate the claim [on direct
appeal].” Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss. Ct. App. 2002).
We therefore review ineffective assistance of counsel claims on direct appeal
when “[1] the record affirmatively shows ineffectiveness of constitutional
dimensions, or [2] the parties stipulate that the record is adequate and the
Court determines that findings of fact by a trial judge able to consider the
demeanor of witnesses, etc., are not needed.” Bell v. State, 202 So. 3d 1239,
1242 (¶12) (Miss. 2016). This Court may also resolve “ineffective-assistance-
of-counsel claims on direct appeal when the record affirmatively shows that
the claims are without merit.” Ross v. State, 288 So. 3d 317, 324 (¶29) (Miss.
2020).

Ward also stipulates that the record here is adequate for appellate review of this issue. The

State agrees but contends the record affirmatively shows that Ward’s claims are without

merit. To be successful in a claim for ineffective assistance of counsel,

[f]irst, the defendant must show that counsel’s performance was deficient.
This requires showing counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Unless a defendant makes both showings, it cannot be said
that the conviction or a death sentence resulted from a breakdown in the
adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984) (emphasis added). Both prongs of the

Strickland test must be proved, or the claim of ineffective assistance of counsel fails. Id. As

to the first prong, this Court has held that “the accused is not entitled to errorless counsel, and

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not counsel judged ineffective by hindsight. Each case is to be decided on the totality of the

facts of the entire record.” Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984). “Judicial

scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a

defendant to second-guess counsel’s assistance after conviction or adverse sentence . . . .”

Id. at 477. “Because of the difficulties inherent in making the evaluation, a court must

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’” Wilcher

v. State, 863 So. 2d 776, 796 (¶30) (Miss. 2003) (citing Stringer v. State, 454 So. 2d 468, 477

(Miss. 1984)). In determining what falls into the category of trial strategy, this Court has

held that “[c]ounsel’s choice of whether or not to file certain motions, call certain witnesses,

ask certain questions, or make certain objections falls within the ambit of trial strategy.” Hill

v. State, 850 So. 2d 223, 226 (¶14) (Miss. Ct. App. 2003) (citing Scott v. State, 742 So. 2d

1190 (¶14) (Miss. Ct. App. 1999)). Further, “[a] strategic decision to pursue less than all

plausible lines of defense will rarely, if ever, be deemed ineffective if counsel first

adequately investigated the rejected alternative.” Cole v. State, 666 So. 2d 767, 776 (Miss.

1995) (quoting Adams v. Wainwright, 709 F. 2d 1443, 1445 (11th Cir. 1983).

A. Severance

¶17. First, Ward claims that he received ineffective assistance of counsel because his

attorney failed to request that the two counts of his indictment be severed. However, it is

important to note that Ward’s counsel vehemently sought to introduce evidence at trial of the

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specific details of a phone call interview that Ward allegedly participated in on the day of his

wife’s death. Counsel argued that the phone call stemming from Ward’s voyeurism charge

should be admissible to support Ward’s defense to his first-degree murder charge. That being

said, the State argues that defense counsel had a calculated reason for failing to request that

Ward’s indictment be severed and should be considered trial strategy.

¶18. This Court reviews the circuit court’s ruling to deny severance under an abuse-of-

discretion standard of review. Stribling v. State, 81 So. 3d 1155, 1162 (¶30) (Miss. Ct. App.

2011). Mississippi Code Annotated section 99-7-2 (Rev. 2020) provides:

Two (2) or more offenses which are triable in the same court may be charged
in the same indictment with a separate count for each offense if: (a) the
offenses are based on the same act or transaction; or (b) the offenses are based
on two (2) or more acts or transactions connected together or constituting parts
of a common scheme or plan.

In Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), the Mississippi Supreme Court

established a three-prong test to determine the appropriateness of severance, specifically,

reasoning:

In making its determination regarding severance, the trial court should pay
particular attention to whether the time period between the occurrences is
insignificant, whether the evidence proving each count would be admissible
to prove each of the counts, and whether the crimes are interwoven.

Id. at 772 (footnote omitted).

¶19. At first glance, the two counts in Ward’s indictment may seem unrelated, but the

series of events that took place between the alleged voyeurism incident and Golden’s death

require closer scrutiny. Golden’s murder occurred on the day after Ward was released from

custody on the voyeurism charge. It is undisputed that both Golden and Ward’s parents went

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to the sheriff’s department on the day of Ward’s release, September 3, 2020, to inquire about

the specific circumstances surrounding Ward’s voyeurism charge. It is also undisputed that

during that conversation with Investigator Noe, Golden was advised of the details of the

voyeurism allegation. Noe also testified that during that conversation, he suggested that

Ward’s firearms be removed from the couple’s residence as a precaution for everyone’s

safety. Further, Noe testified that Ward admitted to him that he had looked in the Todd

sisters’ window “three or four times,” but only once was one of the sisters in the bedroom.

Ward told Noe he had “a sexual problem and needed help.” After his discussion with Ward,

Noe offered to make some calls to assist Ward in finding some help. As a result of Noe’s

assistance, Ward allegedly participated in a pre-arranged phone interview regarding his

sexual tendencies shortly before Golden’s body was found by law enforcement. As stated

previously, defense counsel highlighted the nature of the alleged phone call on September

4, 2020, as well as the short proximity of time between that call and Golden’s death. It is

clear from the record that counsel did so to perpetuate a narrative to support Ward’s heat of

passion or self-defense argument. To now claim that the two counts are unrelated and should

have been severed is contradictory to the defense’s position at trial. Ward has failed to

overcome the presumption that not requesting a severance was a matter of “sound trial

strategy.” This issue is without merit.

B. Batson Challenges

¶20. Second, Ward claims that his counsel was ineffective for failing to object to the

State’s peremptory strikes during jury selection based on Batson v. Kentucky, 476 U.S. 79,

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(1986).3 As a result, Ward contends that an all-white jury was empaneled, which created an

inference that minority veniremen were struck based upon their race. However, there is no

proof in the record as to the racial composition of the empaneled jury or the race of the four

prospective jurors the State struck. In Camper v. State, 24 So. 3d 1072, 1076 (¶17) (Miss.

Ct. App. 2010), this Court stated:

Trial courts and attorneys have a duty to populate the record with adequate
information concerning the racial composition of prospective jurors in order
for the trial and appellate courts to fully analyze the voir dire
proceedings. . . .The record before us does not contain adequate information
to determine the racial composition of the venire or petit jury.

¶21. In any event, in Sanders v. State, 825 So. 2d 53, 57 (¶6) (Miss. Ct. App. 2002), the

defendant made an identical claim in the direct appeal of his convictions of kidnapping,

capital rape, sexual battery, and possession of a firearm by a felon. The court reasoned there:

Sanders contends that he was provided ineffective assistance of counsel when
his attorney failed to make a challenge to the peremptory strikes made by the
State during the jury selection process based on Batson v. Kentucky, 476 U.S.
79 (1986). Batson challenges are utilized to contest whether one side is
utilizing its peremptory challenges to exclude potential jurors because of some
discriminatory basis. McGilberry v. State, 741 So. 2d 894, 923 (¶119) (Miss.
1999). The record before this Court is silent on the racial composition of the
jury making it impossible to conclude whether a Batson challenge was
warranted and if the failure to make such a challenge was prejudicial to
Sanders. Hall [v. State], 735 So. 2d [1124,] 1128 (¶12) [(Miss. Ct. App.
1999)]. The decision whether to assert a Batson challenge is part of the
attorney’s trial strategy and this court must defer to the attorney’s discretion.
Id. Sanders has not proven that he was prejudiced in any fashion by his
attorney’s decision to not assert a Batson challenge. This issue is without

3
In Ross v. State, 16 So. 3d 47, 60 (¶33) (Miss. Ct. App. 2009), this Court stated:

“[A]n attorney’s decision not to make a Batson challenge does not amount to
ineffective assistance of counsel absent a showing of prejudice to the
defendant.” Turner v. State, 953 So. 2d 1063, 1070 (¶21) (Miss. 2007).

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merit.

As in Sanders, the record in this case is silent as to the racial composition of the jury, and

there has been no evidence shown of prejudice to Ward.

¶22. Ward contends on appeal that it is not necessary to show “Strickland” prejudice in

order to obtain a new trial. Instead, he argues that the case should be remanded to the trial

court for an evidentiary hearing:

If “even a single prospective juror” is struck from the panel “for a
discriminatory purpose,” clear constitutional error has occurred. Based on the
strength of the prima facie case, counsel was deficient for not raising a timely
objection. The Court should thus remand this matter for a hearing – so the
prosecutor may offer race-neutral reasons for any strike and allow the trial
court an opportunity to assess those reasons in light of all of the evidence in
the record. If, after such a hearing, Mr. Ward demonstrated that the reasons
offered by the prosecutor, and not an appellate court, were pretextual, then Mr.
Ward would have shown prejudice.

However, we find that the record does not reveal a “prima facie case” of purposeful, racial

discrimination by the State in the jury selection process. In Perry v. State, 949 So. 2d 764,

766-67 (¶6) (Miss. Ct. App. 2006), the court described what is necessary to establish a prima

facie case:

To establish a prima facie case of discrimination, the party must demonstrate:
(1) that he or she is a member of a cognizable racial [or gender] group; (2) that
the opposing party has exercised peremptory challenges against members of
a particular race; and (3) that the facts and circumstances raise an inference
that the party exercising the peremptory strikes does so for the purpose of
striking a particular race [or gender]. See Snow v. State, 800 So. 2d 472, 478
(¶ 10) (Miss 2001).

While the record may reveal that the defendant is a member of a cognizable racial group, the

record does not provide support for the second and third elements of a prima facie case.

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¶23. Further, Ward argues that trial counsel’s failure to raise a Batson challenge to the

State’s peremptory challenges resulted in a “structural” error that must be automatically

reversed. However, the Mississippi Supreme Court specifically rejected this argument in

Powers v. State, 371 So. 3d 629, 682-84 (¶¶203-11) (Miss. 2023).

¶24. Ward has failed to show or argue on appeal that he suffered any prejudice as a result

of his trial counsel’s decision not to raise a Batson challenge to the four peremptory

challenges used by the State during jury selection. However, due to the state of the record,

we dismiss Ward’s claim that he received ineffective assistance of counsel as a result of trial

counsel’s failure to raise a Batson challenge, without prejudice to his ability to raise this

specific claim in a properly filed motion for post-conviction collateral relief.

C. Cumulative Error

¶25. Finally, Ward argues that this Court should apply the doctrine of cumulative error and

find that his counsel was ineffective at trial. Ward claims two additional deficiencies with

counsel to support his cumulative error argument. First, Ward claims that his counsel erred

in failing to cross-examine Jody and only briefly cross-examining Rachel. Lastly, Ward

claims that his counsel was deficient in failing to file a timely notice to the trial court that he

intended to pursue an insanity defense.

¶26. In Turner v. State, 953 So. 2d 1063 (Miss. 2007), the Mississippi Supreme Court held,

“Generally, an attorney’s decision to call certain witnesses and ask certain questions ‘falls

within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel

claim.’” Id. At 1073 (¶36) (quoting Bell v. State, 879 So. 2d 423, 434 (Miss. 2004) (quoting

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Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002))). Ward does not specify any

additional questions that his counsel should have asked Rachel Todd on cross-examination,

or what additional information could have been obtained from Jody Todd. There is nothing

in the record that indicates how Ward was prejudiced by his counsel limiting his cross-

examination of the Todd sisters, especially in light of the testimony that Ward admitted to

looking into the window on multiple occasions.

¶27. Ward contends on appeal that his trial counsel was ineffective for failing to timely

disclose an expert witness and for failing to give notice of his intent to pursue an insanity

defense. However, Ward admits in his brief that he suffered no prejudice from his trial

attorney’s late filing of the notice to pursue the insanity defense.4 Because we find no

deficiency in Ward’s trial counsel’s representation, we find that cumulative error does not

apply.

II. Refusal of Jury Instructions

¶28. Secondly, Ward argues that the trial court erred in refusing jury instructions he

proposed. Instruction D-1 was a lesser-included offense instruction for heat of passion

manslaughter. Instruction D-2 was a self-defense instruction, and instruction D-4 was an

instruction attempting to define deliberate design and distinguish deliberate design from heat

of passion. Instruction D-5 was another one that attempted to define “deliberate design.”

Each of these four instructions was refused by the trial court.

4
Ward’s trial counsel proffered the testimony of the proposed expert, Dr. Reb
McMichael, and he testified that, in his opinion, Ward was not insane at the time of the
murder.

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A. Heat of Passion Manslaughter Instruction D-1

¶29. We will first consider the trial court’s denial of Instruction D-1, the lesser-included

offense, heat-of-passion manslaughter instruction. In McCune v. State, 989 So. 2d 310, 319

(¶15) (Miss. 2008), the supreme court set forth the necessary elements of heat of passion

manslaughter as follows:

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. 2006) . . . . This Court has
defined “heat of passion” as:

[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.
Passion or anger suddenly aroused at the time by some
immediate and reasonable provocation, by words or acts of one
at the time. The term includes an emotional state of mind
characterized by anger, rage, hatred, furious resentment or
terror.

Agnew v. State, 783 So. 2d 699, 703 (Miss. 2001) (quoting Graham v. State,
582 So. 2d 1014, 1017 (Miss. 1991)) . . . . “[T]here 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.” Agnew, 783 So. 2d at 703-704 (citing Graham, 582 So. 2d at
1018).

¶30. In Wallace v. State, 369 So. 3d 83, 87-88 (¶¶13-15) (Miss. Ct. App. 2023), this Court

discussed the standard of review for refusing to give a lesser-included-offense manslaughter

instruction:

Here, we review de novo the refusal of lesser-included-offense
instructions, “as this is a question of law.” Downs v. State, 962 So. 2d 1255,
1258 (¶10) (Miss. 2007). “A defendant has a right to a
lesser-included-offense instruction if there is some evidence from which

17
a reasonable juror could find him both not guilty of the indicted offense
and guilty of the lesser-included offense.” Curtis v. State, 298 So. 3d 446,
451 (¶11) (Miss. Ct. App. 2020) (citing Gilmore v. State, 119 So. 3d 278, 286
(¶13) (Miss. 2013)), cert. denied, 316 So. 3d 202 (Miss. 2021). But
“lesser-included-offense instructions should not be indiscriminately granted;
instead, the jury should not be presented with a lesser-included-offense
instruction unless the record provides an evidentiary basis for the instruction.”
Franklin v. State, 136 So. 3d 1021, 1026 (¶11) (Miss. 2014) (quotation marks
omitted). “Additionally, lesser-included-offense instructions should not be
granted on mere speculation.” Id.

(Emphasis added). Accordingly, we must conduct a de novo review of the record to

determine whether there was “some” evidence to support the requested heat of passion

manslaughter instruction.

¶31. During opening statements, defense counsel told the jury:

Thank you so much. Good afternoon. I want you to know that this, in my
opinion, my professional opinion, is a manslaughter case. It’s not a murder
case. And in two or three days when we get to the end of it, this proceeding,
I am going to come back up here and I am going to ask you for a manslaughter
verdict and I will give you the basis for my request then . . . [.]

From the outset, Ward’s theory of defense was shown to be that this was not a murder case;

instead, it was a manslaughter case. Defense counsel stated that he would argue the basis for

his request during closing arguments.

¶32. The trial proceeded, and both the State and the defense presented their evidence as set

forth above. At the jury instruction conference, after the close of all the evidence, the defense

offered Instruction D-1, and the State objected to the instruction. The State argued that there

was no evidence in the record to support a heat of passion manslaughter instruction.5 The

State pointed out that there was no evidence of any action by the victim that provoked or

5
The State did not challenge the form of the instruction.

18
enraged Ward to commit the act. In response, the following exchange occurred between

defense counsel, David Hill, and the circuit judge:

Hill: It’s a slippery slope, judge, when we start refusing lessor
included instructions. And it’s even slipperier slope when we
start refusing to allow the defendant to pursue his legal theory
of defense and there is plenty of circumstantial inference related
evidence in this case to justify lessor included. And certainly
justify allowing us to pursue our theory of defense. [In the]
Miller case [the] Mississippi Supreme Court says that we are
entitled to pursue our theory of defense even if on the flimsiest
of evidence and that is a sure way in my opinion to get us sent
back for another trial.

Judge: Help me fledge out what you consider the evidence is to support
the instruction granting the instruction.

Hill: You can start with the fact that the gun belonged to Danielle
Golden. It’s her gun. Okay. We know that she kept it in her car.
We know that on the day before she was upset in the presence
of Emma Ward and Nathaniel Noe when Mr. Noe was
disclosing to her [the] history of her husband’s conduct. And we
know that that upset her. We know from the record that there
was a scheduled 11:00 o’clock interview the next day. We know
that or we infer that if Golden was upset on Thursday in the
presence of Mr. Noe that she would have been even more upset
the next day when she is hearing an hour long interview. We can
assume and infer that there was an altercation inside the
apartment. We have her blood on the sheets. We have her blood
on shoes, we have blood drops on the floor. We know, don’t
have to infer, that Mrs. Golden was seen outside by Mrs. Glover
with blood on her face. We know that she went into her car at
some point. She went into her car before she was shot. We know
that she kept her gun in the car. We know that after she went
into her car after she was outside and Ms. Glover saw her
outside with blood on her face Mrs. Glover saw her for some
reason go back into the apartment. And we know that within 3
minutes, not more than 3 minutes, maybe not even 3 minutes
there was, they both exited with him with the gun in his hand.
We know that there was, according to Jarrett Bundren, what
appeared to be a struggle for the firearm because of the errant

19
shot into the wall, into the hallway and in the living room. The
jury can infer that there was a struggle. And they can infer that
he took the gun from her. I think that is more than sufficient for
me to argue manslaughter. And it’s certainly sufficient for me to
be allowed to pursue the theory of defense. And you are on a
slippery slope, thin ice, Judge.

The State, in response, argued that the fact that the victim owned a gun does not support a

self-defense instruction. The State argues further that the fact that the victim was upset on

the previous day because she was told of her husband’s voyeurism does not support a self-

defense instruction. The State contends that there is no evidence of an “altercation,” but,

instead, the evidence shows that all the blood found belonged to the victim, which the State

argues shows that the victim was being assaulted. Citing Avera v. State, 761 So. 2d 900

(Miss. Ct. App. 2000), the State told the judge that there is no evidence of any act by the

victim that could be said to have provoked the defendant and support a manslaughter

instruction. The State concluded by telling the trial judge that the inferences that the defense

tried to draw were not based upon facts that were in evidence. The defense replied by

continuing their argument that it was entitled to present its theory of defense to the jury so

long as there is some supporting evidence. Defense counsel cited Miller v. State, 733 So. 2d

846, 848-49 (¶7) (Miss. Ct. App. 1998), where our Court stated:

It is a basic tenet of our criminal system that a defendant is entitled to fully
develop his theory of the defense and, so long as there is some supporting
evidence in the record, to have the jury instructed as to the law on that theory.
Manuel v. State, 667 So. 2d 590, 591 (Miss.1995). It is not necessary that
the quality of the proof in support of the defendant’s theory rise to any
certain level of credibility or that some minimum quantum of proof be
developed. Id. at 593. Even the flimsiest of evidence, so long as it has some
probative value, is enough to permit a defendant to have the jury
instructed on his theory of the case. Hester v. State, 602 So. 2d 869, 872

20
(Miss. 1992).

(Emphasis added). After hearing extensive arguments from both sides, the trial judge refused

proposed Instruction D-1. Citing Wallace the court found that the inferences argued by the

defense were nothing more than speculation. The court found that there was insufficient

evidence to give the manslaughter instruction.

¶33. Our process to review the trial court’s decision is set out in Buchanan v. State, 84 So.

3d 812, 815 (¶8) (Miss. Ct. App. 2011), as follows:

In order to decide whether a proposed jury instruction is supported by the
evidence, “we must consider all of the evidence in the light most favorable
to the party requesting the instruction. That party must also be given the
benefit of all favorable inferences that may reasonably be drawn from the
evidence.” Booze v. State, 964 So. 2d 1218, 1221 (¶14) (Miss. 2007) (quoting
Jones v. State, 798 So. 2d 1241, 1254 (¶40) (Miss. 2001)). Moreover, a trial
court “should err on the side of inclusion rather than exclusion” for
proposed jury instructions. Id. The supreme court has long held that “only
where the evidence could only justify a conviction of the principal charge
should a lesser offense instruction be refuted.” Jones v. State, 798 So. 2d 1241,
1253 (¶38) (Miss. 2001) (quoting Taylor v. State, 577 So. 2d 381, 383
(Miss.1991)). “A lesser-included offense instruction must be granted
where a reasonable juror could not on the evidence exclude the
lesser-included offense beyond a reasonable doubt.” Id. (quoting Taylor,
577 So. 2d at 383-84). Another factor “to be considered is the disparity in
maximum punishments between the offenses. A great disparity is a factor in
favor of giving the lesser included offense instruction.” Id.

(Emphasis added). Ward argues that there was sufficient circumstantial evidence and

reasonable inferences to support giving the instruction. In Beasley v. State, 362 So. 3d 112,

123 (¶¶36-37) (Miss. Ct. App. 2023), this Court stated:

Circumstantial evidence is “evidence which, without going directly to prove
the existence of fact, gives rise to a logical inference that such a fact does
exist.” Keys v. State, 478 So. 2d 266, 268 (Miss. 1985). “A
circumstantial-evidence case is one where the State is ‘without a confession

21
and wholly without eyewitnesses to the gravamen of the offense charged.’”
Chism v. State, 253 So. 3d 343, 349 (¶29) (Miss. Ct. App. 2018) (quoting
Garrett v. State, 921 So. 2d 288, 291 (¶17) (Miss. 2006)).

Mississippi caselaw has a “clear and longstanding position that circumstantial
evidence and direct evidence carry the same weight.” Nevels v. State, 325 So.
3d 627, 632 (¶14) (Miss. 2021); accord Williams v. State, 305 So. 3d 1122,
1129 (¶17) (Miss. 2020) (“Evidence is either direct or circumstantial. And both
types of evidence carry the same weight.”); Cardwell v. State, 461 So. 2d 754,
760 (Miss. 1984) (“Circumstantial evidence is entitled to the same weight and
effect as direct evidence[,] and this Court has upheld convictions based solely
on circumstantial evidence.”); Bogard v. State, 233 So. 2d 102, 105 (Miss.
1970) (“[I]t is pointed out that circumstantial evidence, ordinarily, is entitled
to the same effect and weight as direct evidence and may, in the concrete, be
the more reliable and stronger.” (internal quotation marks omitted)).

¶34. We must review the record and consider the evidence and make any inferences in the

light most favorable to Ward’s request for a heat of passion manslaughter instruction. We

note that the evidence shows the victim’s blood was found in the bedroom. Dr. LeVaughn

testified that the blunt force injuries he found during his autopsy could have been inflicted

in a fight. Glover testified that the first time she saw Golden leave the house, which was

before she heard any gunshots, Golden had blood on her face and no shoes, and her hair was

messed up. The evidence further shows that although Glover did not see Golden enter her

car, items were recovered from inside Golden’s car that had traces of her blood on them. The

testimony also showed that Golden routinely kept her gun in the glove box in her vehicle and

that Ward’s firearms had been removed from the home prior to this event. Testimony

showed that the gun used to kill Golden, which was recovered from the scene, was owned

by Golden. Investigator Bundren testified that the trajectory of the shot through the wall

could very well indicate that Ward and Golden were struggling for the gun. This testimony

22
is circumstantial evidence that supports Ward’s contention that Golden brought the gun into

the house and that a shot was fired during a struggle over the weapon. The fact that the

testimony shows that Ward ended up with the weapon supports the reasonable inference that

he took the gun away from Golden. Ward then used that gun to kill Golden.

¶35. The separate opinion contends the only support for giving a heat of passion

manslaughter instruction is “speculation and conjecture put forth by Ward’s counsel.” Not

true. There is direct evidence that it was Golden’s gun that was used by Ward to kill her.

There is direct evidence that Ward’s parents removed all of Ward’s guns from the residence

the day before the shooting. There is direct evidence that Golden’s blood was found inside

her car. There is direct evidence that Golden kept her gun in the glove box of her car. There

is direct evidence that Golden was first seen running from her residence with her face bloody

and her hair messed up, before any gunshot was heard. There is direct evidence that a bullet

hole was found in an inside wall of the residence as described above. The logical inferences

that could be drawn from the direct and circumstantial evidence set out above supports the

argument by Ward that

1. Golden was not pleased with the fact Ward had been charged with
voyeurism.
2. There was initially some physical confrontation that day that caused
Golden to be bloody and running from the residence.
3. While dripping blood inside her car, Golden retrieved her gun from the
glove box and went back inside the residence.
4. Because Golden came back with her gun, Ward was provoked to the
point that he was enraged “to the extent that reason is overthrown and
passion usurps the mind destroying judgment” and he took the gun
from Golden and killed her.

¶36. The jury was not required to view the evidence in the light most favorable to Ward’s

23
request for a heat of passion manslaughter instruction as we are pursuant to Buchanan;

however, it would not be unreasonable for the jury to do so. Therefore, viewing this evidence

as we must, we find that the trial court erred in refusing Ward’s jury instruction on heat of

passion manslaughter. Therefore, Ward’s conviction of first-degree murder is reversed, and

we remand the charge to the circuit court for a new trial.

B. Refusal of Jury Instructions D-2, D-4, and D-5

¶37. Because we reverse and remand Ward’s conviction of first-degree murder and

remand, as stated above, the issues relative to the other defense instructions are moot. See

Brown v. State, 764 So. 2d 463, 466 (¶4) (Miss. Ct. App. 2000). However, we note that the

trial court gave the State’s elements instruction for first-degree murder, which required the

State to prove beyond a reasonable doubt that Ward did not act in necessary self-defense, but

the court refused to give the defense instruction that would have defined self-defense. There

was no other instruction defining self-defense. Where the court finds that the issue of self-

defense has been raised and places this burden of proof upon the State, the jury must also be

given an instruction that defines self-defense in order for the jury to be sufficiently

instructed. See Crook v. State, 105 So. 3d 353, 360 (¶18) (Miss. Ct. App. 2012).

III. Sufficiency of the Evidence

¶38. In Eubanks v. State, 341 So. 3d 896 (¶41) (Miss. 2022), the Mississippi Supreme

Court set forth the standard of review concerning the legal sufficiency of the evidence to

support a conviction as follows:

“When reviewing a challenge for sufficiency of the evidence, this Court must
determine whether, ‘after viewing the evidence in the light most favorable to

24
the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.’” Naylor v. State, 248 So.
3d 793, 796 [(¶8)] (Miss. 2018) (internal quotation marks omitted) (quoting
Ambrose v. State, 133 So. 3d 786, 791 [(¶16)] (Miss. 2013)). “The prosecution
must be given the benefit of all favorable inferences that may be reasonably
drawn from the evidence.” Id. (internal quotation marks omitted) (quoting
McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)).

[I]f a review of the evidence reveals that it is of such quality and
weight that, “having in mind the beyond a reasonable doubt
burden of proof standard, reasonable fair-minded men in the
exercise of impartial judgment might reach different conclusions
on every element of the offense,” the evidence will be deemed
to have been sufficient.

Id. at 909-10 (¶41) (alteration in original) (quoting Shelton v. State, 214 So. 3d 250, 256

(Miss. 2017)). Further, in Butler v. State, 354 So. 3d 308, 320 (¶32) (Miss. Ct. App. 2022),

this Court held:

In reviewing the legal sufficiency of the evidence, our authority to disturb the
jury’s verdict is quite limited. Clayton v. State, 652 So. 2d 720, 724 (Miss.
1995). This Court has held that “[t]he jury is charged with the responsibility
of weighing and considering conflicting evidence, evaluating the credibility of
witnesses, and determining whose testimony should be believed. The jury has
the duty to determine the impeachment value of inconsistencies or
contradictions as well as testimonial defects of perception, memory, and
sincerity.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct. App. 1999)
(citation omitted).

A. Count I: Voyeurism

¶39. Jody Todd testified that the voice she heard outside her window on August 28, 2020

was Ward’s voice. Both Jody Todd and Rachel Todd testified as to their previous

uncomfortable interactions with Ward leading up to the night of the incident. Further,

Investigator Shoffner testified that in the course of her interview with Ward, he admitted to

her that he had “messed up” and said he would leave the Todd sisters alone. Further, law

25
enforcement testified that Ward admitted to looking into the Todd sisters’ bedroom window

three or four times and that one of the sisters was in the bedroom only one time. The Todd

sisters’ testimony and Ward’s admission are legally sufficient to support the jury’s conviction

as to Count I.

B. Count II: First-Degree Murder

¶40. Although we are reversing Ward’s conviction of first-degree murder, we must

consider the legal sufficiency of the evidence to support the conviction because if the

evidence was legally insufficient, we would be required to reverse and render an acquittal.

See Roncali v. State, 412 So. 3d 1235, 1245 (¶46) (Miss. Ct. App. 2025). The State put on

uncontested proof that Ward shot and killed Golden, including Ward’s admission. The proof

showed that Golden suffered blunt force injuries as well as gunshot injuries. There is no

evidence that Ward was injured in any manner. There is no direct evidence as to who or what

started the series of events. The jury was instructed as follows:

In this instruction, “deliberate design” means a person decides to unlawfully
kill another person, and there is no legally justifiable or excusable reason for
doing so. The decision to kill a person can be formed very quickly and may
occur only moments before the actual act of killing. However, deliberate
design cannot be formed at the exact moment of the act of killing.

While no one actually saw Ward shoot Golden, there is sufficient evidence for the jury to

believe, as the State argued, that Ward had a gun and was chasing Golden, as she was

running away and screaming, “No!” and Ward shot her twice. The State further argued that

there was no evidence that Ward shot Golden in self-defense, especially when there was

evidence that she was trying to run away from him. We find that the evidence was legally

26
sufficient to support the conviction of first-degree murder. However, because we find the

trial court erred by failing to give the defense’s requested heat of passion manslaughter

instruction, we reverse the conviction and remand for a new trial.

IV. Cumulative Error

¶41. Finally, Ward claims that all the alleged errors, when combined, constitute cumulative

error. As discussed above, we find error only with the failure to give the heat of passion

manslaughter instruction. This issue is without merit.

CONCLUSION

¶42. We find no error related to Ward’s conviction of voyeurism as charged in Count I of

the indictment, and therefore, we affirm Ward’s conviction and sentence for that charge.

However, as discussed above, because we find that the trial court erred by refusing Ward’s

heat of passion manslaughter instruction, his conviction and sentence for first-degree murder

as charged in Count II of the indictment is reversed, and we remand for a new trial.

¶43. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

BARNES, C.J., McDONALD, McCARTY, WEDDLE AND LASSITTER
ST. PÉ, JJ., CONCUR. WILSON, P.J., AND WESTBROOKS, J., CONCUR IN PART
AND DISSENT IN PART WITHOUT SEPARATE WRITTEN OPINION.
LAWRENCE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE
WRITTEN OPINION, JOINED BY CARLTON, P.J., AND McDONALD, J.;
WILSON, P.J., JOINS IN PART.

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

¶44. I agree with the majority’s decision to affirm Ward’s voyeurism conviction. However,

I disagree with the decision to reverse his murder conviction because the trial court refused

to give a heat-of-passion manslaughter instruction.

27
¶45. While “[a] defendant is entitled to have jury instructions given which present his

theory of the case . . . this entitlement is limited in that the court may refuse an instruction

which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence.” Rodgers v. State, 777 So. 2d 673, 676 (¶12) (Miss. Ct. App.

2000) (emphasis added) (citing Murphy v. State, 566 So. 2d 1201, 1206 (Miss. 1990); Young

v. State, 451 So. 2d 208, 210 (Miss. 1984); United States v. Robinson, 700 F.2d 205, 211 (5th

Cir. 1983)). In this case, Ward “could be entitled to an instruction on heat-of-passion

manslaughter only if there is an evidentiary foundation to support the lesser-included

offense.” Johnson v. State, 391 So. 3d 217, 223 (¶15) (Miss. Ct. App. 2024) (emphasis

added) (citing McCune v. State, 989 So. 2d 310, 319 (¶17) (Miss. 2008)).

¶46. The majority heavily relies on the trial counsel’s argument to the court in support of

the heat-of-passion manslaughter instruction. For instance, counsel stated that Golden going

to the car to get the gun proved there was a struggle between Ward and Golden. On cross-

examination, counsel asked Investigator Bundren, “[Golden] and [Ward] very well could

have been struggling for the gun[,] right?” to which Investigator Bundren responded, “They

very well could.” (Emphasis added). In his closing argument, Ward’s counsel stated that

“[t]he jury can infer that there was a struggle. And they can infer that [Ward] took the gun

from [Golden].”

¶47. But crucially, “arguments of counsel are not evidence.” O’Kelly v. State, 267 So.

3d 282, 296 (¶55) (Miss. Ct. App. 2018) (emphasis added) (quoting One 1970 Mercury

Cougar v. Tunica County, 115 So. 3d 792, 796 (¶20) (Miss. 2013)). Likewise, “[q]uestions

28
asked by lawyers are not evidence—only the answers given by witnesses.” Id. (quoting May

v. State, 460 So. 2d 778, 783 (Miss. 1984)). Ward needed to provide an evidentiary

foundation in order to support giving a heat-of-passion manslaughter instruction, not mere

speculation or conjecture from his own counsel. That mere speculation is on display in this

exchange between the judge and Ward’s counsel:

BY THE COURT: Help me fledge out what you consider the evidence is to
support the instruction granting of the instruction.

BY MR. HILL: You can start with the fact that the gun belonged to
Danielle Golden. It’s her gun. Okay. We know that she
kept it in her car. We know that on the day before she
was upset in the presence of Emma Ward and Nathaniel
Noe when Mr. Noe was disclosing to her history of her
husband’s conduct. And we know that that upset her. We
know from the record that there was a scheduled 11:00
o’clock interview the next day. We know that or we infer
that if Golden was upset on Thursday in the presence of
Mr. Noe that she would have been even more upset the
next day when she is hearing an hour long interview. We
can assume and infer that there was an altercation inside
the apartment. We have her blood on the sheets. We have
her blood on shoes, we have blood drops on the floor.
We know, don’t have to infer, that Mrs. Golden was
seen outside by Mrs. Glover with blood on her face. We
know that she went into her car at some point. She went
into her car before she was shot. We know that she kept
her gun in her car. We know that after she went in her car
after she was outside and Mrs. Glover saw her outside
with blood on her face. Mrs. Glover saw her for some
reason go back into the apartment. And we know that
within 3 minutes, not more than 3 minutes maybe not
even 3 minutes there was, they both exited with [Ward]
with the gun in his hand. We know that there was,
according to Jarrett Bundren, what appeared to be a
struggle for the firearm because of the errant shot into the
wall, into the hallway and in the living room. The jury
can infer that there was a struggle. And they can infer

29
that he took the gun from her. I think that is more than
sufficient for me to argue manslaughter. And it’s
certainly sufficient for me to be allowed to pursue the
theory of the defense. And you are on a slippery slope,
thin ice, Judge.

(Emphasis added). Ward’s counsel leaned heavily, if not solely, on speculation rather than

evidence supporting his theory of defense. The courts of this state routinely and consistently

rely on evidence to do their work, not speculation. The criminal justice system requires

evidence beyond a reasonable doubt before justice is dispensed, not speculation. Giving a

jury instruction requires an evidentiary basis, not speculation.

¶48. Turning to the evidence that was presented, no one saw a struggle between Ward and

Golden for the gun. The blood found in the home was only Danny’s, not Ward’s blood.

Investigator Bundren never testified that there “appeared to be a struggle for the firearm[.]”

He answered that there “could” have been a struggle in response to Ward’s counsel asking

him that precise question. In addition, Ward did not testify in order to give his version of

how the events unfolded. Instead, he called only three witnesses. First, Officer McNeese

testified that he noticed small drops of blood on the back of Ward’s shirt and arm upon

arresting him. Officer McNeese testified that the shirt should have been preserved for

evidence, but for reasons unbeknownst to him, it was not. Next, Ward’s mother Emma

explained that while Ward was in custody for voyeurism, Officer Noe suggested that all

firearms be removed from Ward’s house. Ward’s family removed his firearms from the

home; Danny kept her own firearm in her car. Ward’s third witness did not even testify

before the jury. Nothing contained in the defense’s case sufficed as evidence for heat-of-

30
passion manslaughter.

¶49. The majority relies on attorney speculation that Golden brought the gun inside the

house, causing Ward to become “enraged.” But no one saw Golden carrying a gun. She was

only seen going to her vehicle! What if Ward had already retrieved Golden’s gun from her

vehicle before she went outside? A bullet casing and a bullet hole inside the house tell us

nothing about Ward’s “enraged” state, or lack thereof. We do not know if Golden or Ward

was the one who actually got the gun from Golden’s vehicle! There is simply not enough

evidence to hold that the trial court abused its discretion in refusing to give a manslaughter

instruction based on the speculative arguments of his counsel.

¶50. In summary, no one—not even Ward’s own witnesses—testified to seeing an

argument or struggle between Ward and Golden. At the conclusion of Ward’s trial, the jury

was given the following instruction for murder:

SHERARD EUGENE WARD is charged in Count 2 with murder. If you find
beyond a reasonable doubt from the evidence in this case that:

1. On or about September 4, 2020 in Lafayette County;
2. SHERARD EUGENE WARD unlawfully and with deliberate design
killed Marisha Golden a human being, by shooting Marisha Golden in
the face and neck and;
3. SHERARD EUGENE WARD was not acting in self-defense; then you
shall find SHERARD EUGENE WARD guilty as charged.

If the State did not prove any one of the above listed elements beyond a
reasonable doubt, then you shall find SHERARD EUGENE WARD not guilty
of Count 2.

Everything referenced in that instruction was supported by testimonial evidence at trial.

¶51. On the other hand, any evidence supporting a manslaughter instruction was mere

31
speculation and conjecture put forth by Ward’s counsel. It is, again, fundamental in

Mississippi jurisprudence that jury instructions be supported by evidence. Morris v. State,

777 So. 2d 16, 29 (¶63) (Miss. 2000) (citing Wilson v. State, 592 So. 2d 993, 997 (Miss.

1991)). Therefore, I respectfully disagree with the portion of the majority’s decision to

reverse Ward’s murder conviction and remand.

CARLTON, P.J., AND McDONALD, J., JOIN THIS OPINION. WILSON, P.J.,
JOINS THIS OPINION IN PART.

32