Michael Audy McCool a/k/a Michael A. McCool a/k/a Michael McCool and Audy David McCool a/k/a Audy D. McCool a/k/a Audy McCool v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-KA-01343-COA

MICHAEL AUDY McCOOL A/K/A MICHAEL A. APPELLANTS
McCOOL A/K/A MICHAEL McCOOL AND
AUDY DAVID McCOOL A/K/A AUDY D.
McCOOL A/K/A AUDY McCOOL

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/18/2019
TRIAL JUDGE: HON. CLAIBORNE McDONALD
COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: HARRY B. WARD
MARTIN E. REGAN JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BRITTNEY SHARAE EAKINS
DISTRICT ATTORNEY: HALDON J. KITTRELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/18/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE WILSON, P.J., LAWRENCE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. After an exchange of gunfire at their family store, a father and son were killed.

Another father and son were arrested and ultimately convicted of accessory after the fact to

second-degree murder and second-degree murder, respectively. Finding no reversible error

in the trial, we affirm.

BACKGROUND

¶2. Jason McLemore and his wife Melanie owned a small gun store that doubled as a
convenience store called McLemore Arms. The store was located in Henleyfield in Pearl

River County. In the afternoons, Melanie worked as a cashier handling daily business at the

store, while Jason, a gunsmith, repaired the weapons at his workshop in a barn on their

family property nearby.

¶3. One afternoon while Melanie was working alone in the store, a customer named

Michael McCool entered with his sixty-four-year-old father, Audy McCool, to pick up a gun

Michael had left for repair. In examining Michael’s Walther P22 the previous week, Jason

had determined that the weapon needed a new part, which Jason would have to order.

¶4. The McLemores had a policy to charge a fee in the event that Jason had taken steps

toward fixing a weapon, such as ordering parts, and the customer decided to discontinue the

McLemores’ service prematurely. The amount of money charged depended on the extent of

work performed and the price of parts ordered.

¶5. According to Melanie’s testimony at trial, Jason and Michael had discussed the status

of Michael’s gun over the phone a few days before the McCools came to the store to pick up

the pistol. Although Melanie admitted she did not know every detail of the conversation, she

said that Jason had explained the service charge policy to Michael and said that he could

come to the store if he would like to discuss it further. Jason told Michael that he worked

at the store in the mornings and that his wife took over around 2:00 p.m.

¶6. The McCools arrived at the store around 3:00 p.m. Upon their arrival, Melanie

informed Michael that he would need to pay the $25 service charge in order to pick up his

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gun, since Jason had already ordered the necessary part. Michael disagreed, claiming that

he could get the part directly from the manufacturer for free and therefore should not have

to pay the McLemores’ fee.

¶7. Melanie’s phone records indicate that the McCools argued with Melanie over the fee

for at least 10 minutes. At 3:00, Melanie sent a text message to Jason stating “the guy with

the Walther is here.” A minute later, Jason called Melanie, and they spoke for a few seconds.

Melanie testified that on that call, she offered for Michael to speak to Jason, but Michael

refused. Shortly thereafter, she sent another text telling Jason that Michael was “wanting to

pick it up for free.” A couple of minutes later, she sent a text saying “He’s cussing me out

now.” Then she sent her last text to Jason, saying “They’re still here.”

¶8. Melanie testified that Michael grew increasingly agitated as their conversation

progressed. She described him as becoming more and more belligerent, screaming in her

face and calling her a “bitch,” among other curse words. Meanwhile Audy was, according

to Melanie, “pumping Michael up.” Melanie also testified that Michael made threatening

statements toward her, insinuating that he could take her husband in a fight.

¶9. Around this time, Jason, who had been working with his two sons at the barn, arrived

at the store with his and Melanie’s seventeen-year-old son Jacob. Jason entered the store

first, with Jacob close behind. According to Melanie, her husband said to Michael, “Who

are you cussing? If you have a problem, let’s work it out.”

¶10. Melanie recalled that Michael “immediately attacked” Jason, jumping on and hitting

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him. On cross-examination, Melanie agreed that she thought “Michael was getting the better

of” her husband. She testified that Jacob tried “to pull Michael off of his daddy.” Audy also

joined the fight. Melanie estimated the altercation lasted about ten to fifteen seconds. It

culminated in gunfire.

¶11. In a state of shock, Melanie noticed her husband stumbling backward toward the front

door and her son unconscious on the ground. Realizing her husband and son were severely

injured, Melanie rushed over to check on them, then immediately called 911. Frantic and

screaming, Melanie told the 911 dispatcher, “My husband and son have been shot by a

customer,” and “Please hurry, please.” When asked whether the shooter was still in the

building, Melanie responded, “Yes—he’s—something’s wrong with him too. Please hurry

up and get them here, please.”

¶12. Phone records show that Audy also dialed 911. He told the dispatcher that they

needed multiple ambulances and that four people, including himself, had been shot. When

asked about the status of the injured parties, Audy responded “Two possible dead, one very

critical, and I’m shot myself.” Audy urged the dispatcher to get the ambulances to the store

quickly.

¶13. At some point before police arrived, Audy took Michael’s gun, a .40-caliber Glock,

from him. Audy walked through the scene, exited the store, and placed Michael’s Glock on

the floorboard of the McCools’ car and covered it with a plastic shopping bag. He then

reentered the store.

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¶14. When officers arrived on scene, they saw Melanie coming out of the store to meet

them. Jason was lying dead on his back in the front doorway of the store, having been shot

three times and fallen backward through the glass door. Jacob, also having sustained three

gunshot wounds, was found dead on the floor inside the store. Officers saw Audy standing

over his son, who was injured and lying on the floor near Jacob. Audy was also injured,

apparently having suffered a gunshot wound to his back.

¶15. Investigation would later reveal that Michael, Jason, and Jacob were all armed during

the fight. Michael had the .40-caliber Glock that Audy placed in their car after the

altercation. Evidence showed that Michael had fired the Glock five times. Jason had a 9mm

Sig Sauer, which was found unholstered on the floor next to his right hand. One or two

rounds had been fired from the gun.1 Jacob carried a Smith & Wesson .357 Magnum, which

was still in the holster with no rounds fired when police arrived. In addition to the gun, Jacob

also carried a long, curved knife, which his mother Melanie testified he used for clearing

brush and fending off snakes near their barn. The knife was found covered in blood and on

the floor near Jacob’s right hand, which was positioned above his head.

¶16. Melanie and Audy both appeared to have been unarmed. Melanie admitted to having

access to at least one revolver that the McLemores kept behind the counter, but she insisted

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Lori Beall, a ballistics expert from the Mississippi Forensics Laboratory, testified
that the maximum capacity of the gun was sixteen rounds and that fourteen live rounds
remained in the gun. Therefore, it is possible that Jason fired two rounds. Only one 9mm
round and one 9mm casing were recovered at the crime scene, but the McCools argue that
the other round may have entered Audy’s back.

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she did not fire a gun that day.

¶17. Sergeant David Bean and Corporal Jason Lee each questioned Michael at the scene.

Michael claimed he shot the McLemores in defense of his father and himself. He said that

Jacob first started swinging his knife around and pushing Audy. Michael said that Jason shot

Audy, so he fired back. When asked where the gun was, Michael told the officer that his

father had put it in their car.

¶18. Corporal Jason Lee, after questioning Michael, went outside to speak with Audy, who

was being treated by paramedics and was about to be transported to a hospital. When asked

about the gun, Audy admitted without hesitation that he had placed it inside the McCools’

car, and he told Corporal Lee that Michael had the car keys. On appeal Audy argues that he

placed the gun in the car for “safekeeping.”

¶19. The officer retrieved the keys from Michael and locked the car to secure potential

evidence. Ashley Moulton, the crime scene investigator who later examined the car,

testified at trial that she found the gun on the passenger-side floorboard. The pistol was

hidden under a plastic shopping bag.

¶20. Michael and Audy were transported directly to hospitals for treatment of their injuries.

They were not arrested at the time. About two months after the crime, Investigator

Kristopher Robbins met with the McCools to take photographs of their injuries and to obtain

DNA samples.

¶21. Upon investigation, bullets consistent with having been fired from Michael’s gun were

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found at the store and in Jason’s and Jacob’s bodies. Five days after the initial investigation

of the scene, a cleaning crew reported finding additional evidence at McLemore Arms,

including clothing items, a shell casing, a gun holster, a bullet hole in a booth, and a bullet

mark on a potato chip rack.

COURSE OF PROCEEDINGS

¶22. On March 7, 2017, Michael was indicted for two counts of second-degree murder, and

Audy was indicted for accessory after the fact.

¶23. At trial, Melanie, who was the sole surviving eyewitness aside from the McCools,

testified that she did not know or remember who shot first. She testified “I never saw any

weapons drawn . . . I don’t know who did what.” She also said “I know that somebody

pulled a gun. I know that somebody shot. I don’t know who did what.”

¶24. During Melanie’s testimony, the prosecution played her emotional 911 call for the

jury. While desperately pleading for help for her husband and son, Melanie answered several

questions from the 911 dispatcher regarding the incident. Notably, the dispatcher asked

whether the shooter intentionally shot them, to which Melanie, in a moment of clarity,

responded “Yes, yes, he did it on purpose.”

¶25. When asked if her husband and son were alert, she responded “No, they’re not alert

at all. They’re laying in pools of blood.” She noted that both Jason’s and Jacob’s faces were

covered in blood. The dispatcher asked Melanie to check their pulses, to which she said “I’m

trying but I’m shaking so bad I can’t tell.” Of the events that had just occurred, Melanie

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recalled “There was a customer in here, and he just started going nuts and he shot both of

them.” The dispatcher then asked whether the shooter had been trying to rob the store, to

which Melanie said “They were mad. I don’t know what they were doing. They were

griping about a bill they had to pay.”

¶26. Near the end of the call, Melanie desperately said, “Please help us. My son’s not

breathing, and my husband just gasps every now and then.” During a pause in conversation

with the dispatcher, Melanie pleaded, “Dear Father in heaven, please save them.”

¶27. The jury also heard Audy’s 911 call. As with Melanie, the dispatcher tried to gather

information from Audy about the incident while waiting for the ambulance to arrive. The

dispatcher asked Audy, “Who shot y’all?” to which he responded, “The owner of the store

come in shooting like a goddamn wild man cowboy.” The dispatcher attempted to clarify,

“The owner of the store did?” and Audy said, “Yes, him and his son. All over $25.”

¶28. Dr. Mark LeVaughn, the State’s chief medical examiner, testified as to the autopsy

findings on Jason and Jacob McLemore. According to Dr. LeVaughn and the autopsy reports

for both Jason and Jacob, the cause of death was multiple gunshot wounds, and the manner

of death was homicide. Each suffered three gunshot wounds. Jason sustained a graze wound

to his hand, a shot to the abdomen, and a fatal shot to the head. Dr. LeVaughn testified that

he believed the head wound instantly incapacitated Jason. Jacob sustained gunshot wounds

to his right armpit, left arm, and a likely fatal wound to the chest.

¶29. At the conclusion of the State’s case-in-chief, the McCools moved for a directed

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verdict. The trial court dismissed one count of accessory after the fact as to Audy and denied

the remainder of the motion. The McCools rested their case without calling any witnesses

or introducing any evidence. The jury was instructed on first-degree murder and the lesser-

included offenses of second-degree murder and manslaughter. Michael asserted a claim of

self-defense and accordingly received a jury instruction based on this theory.

¶30. The jury found Michael guilty of two counts of second-degree murder and Audy guilty

of accessory after the fact. Michael received two forty-year sentences, and Audy received

a twenty-year sentence—the maximum for their respective crimes.

¶31. The duo timely appealed, raising eleven issues on appeal. For clarity, we combine

some of their assignments of error.

DISCUSSION

I. Sufficient evidence supported Michael’s second-degree-murder
conviction.

¶32. The McCools argue that the evidence at trial was insufficient to convict Michael.2

Specifically, they claim that the prosecution failed to prove every element of the crime

beyond a reasonable doubt and failed to present evidence sufficient to disprove the theory

of self-defense because (1) based on the number of shots fired and wounds found, it was

factually impossible for Michael to have shot first; (2) Melanie’s testimony lacked personal

2
While the McCools classify their argument as contesting the weight of the evidence,
their cited precedent addresses sufficiency of the evidence. Because the two are distinct
concepts, we address each in turn.

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knowledge, corroboration, and credibility; and (3) only the McCools’ theory of events is

supported by objective physical evidence.

¶33. In evaluating the legal sufficiency of the evidence, “[t]he critical inquiry is whether

the evidence shows beyond a reasonable doubt that the accused committed the act charged,

and that he did so under such circumstances that every element of the offense existed.” Guss

v. State, 296 So. 3d 734, 737 (¶10) (Miss. Ct. App. 2020). “Under this inquiry, all evidence

supporting the guilty verdict is accepted as true, and the State must be given the benefit of

all reasonable inferences that can be drawn from the evidence.” Galloway v. State, 122 So.

3d 614, 665 (¶168) (Miss. 2013). “[I]f any rational trier of fact could have found each and

every one of the elements of the crime beyond a reasonable doubt, when viewing the

evidence in the light most favorable to the prosecution, the verdict must stand.” Smith v.

State, 250 So. 3d 421, 424 (¶12) (Miss. 2018).

A. The evidence was sufficient to prove second-degree murder.

¶34. State law defines second-degree murder as a killing “done in the commission of an

act eminently dangerous to others and evincing a depraved heart, regardless of human life,

although without any premeditated design to effect the death of any particular individual[.]”

Miss. Code Ann. § 97-3-19(1)(b) (Rev. 2015).

¶35. The foundational element for the crime of murder, regardless of degree, is that the

killing of a human being occurred. It is undisputed that two people, Jason and Jacob, were

killed.

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¶36. Next we consider whether there was sufficient evidence for a jury to find that the

killings were “done in the commission of an act eminently dangerous to others and evincing

a depraved heart, regardless of human life.” Id.

¶37. Michael was accused of shooting and killing Jason and Jacob. “[I]n cases involving

shootings, the courts have consistently upheld convictions of depraved heart murder where

the evidence suggested that the firing of a weapon was intentional, not accidental.” Steele

v. State, 852 So. 2d 78, 81 (¶12) (Miss. Ct. App. 2003).

¶38. In addition to this general rule, the jury heard the recording of Melanie’s call to 911

immediately following the shooting. When asked by the 911 dispatcher whether the shooter

acted intentionally, Melanie responded bluntly, “Yes, yes, he did it on purpose.”

Furthermore, the jury heard Corporal Lee testify that when he spoke with Michael the day

of the shooting, Michael admitted to having fired his gun, while maintaining he had done so

in an effort to protect himself and his father. Ballistic evidence showed that Michael’s gun

had been fired five times, which could support a finding that Michael fired his weapon

intentionally. Given this evidence, a reasonable juror could have found beyond a reasonable

doubt that Michael intentionally fired his gun, thereby acting in a manner “eminently

dangerous to others and evincing a depraved heart.” Miss. Code Ann. § 97-3-19(1)(b).

¶39. The final component of the second-degree-murder statute is that the killing is done

“without any premeditated design to effect the death of any particular individual.” Id. The

Mississippi Supreme Court has stated that “[a] finding of malice is not required for depraved-

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heart murder.” Swanagan v. State, 229 So. 3d 698, 704 (¶24) (Miss. 2017). Therefore, in

order to convict Michael of second-degree murder, the jury was not required to find intent

to kill.

¶40. In light of the evidence presented to the jury, we find that the evidence was sufficient

to prove each of the statutory elements of second-degree murder beyond a reasonable doubt.

B. The evidence was sufficient to disprove the theory of self-
defense.

¶41. Because the McCools raised the theory of self-defense, the evidence had to be

sufficient for the jury to determine that Michael did not act in necessary self-defense.

1. Factual Impossibility

¶42. The McCools’ core argument supporting their self-defense theory is that it was

factually impossible for Michael to have shot first. First, they contend that Michael’s six stab

wounds and his gunshot wound to the head, as well as Audy’s gunshot wound to the back,

indicate that the McLemores were the initial aggressors.3 The McCools also raise what

seems to be a theory of mathematical impossibility, claiming that “the prosecution’s case

makes no logical sense” based on the number of shots fired, wounds suffered, and other

3
Questions were raised at trial as to the exact cause of Michael’s head wound and
Audy’s back wound. Yet the jury was not provided with their medical records. The photos
of the McCools’ wounds were taken two months after the gunfight. When pressed on cross
about whether the medical records used in his investigation reflected that the McCools
sustained gunshot wounds, Investigator Kristopher Robbins declined to speculate.
However, Investigator Robbins did testify that he believed Michael’s head injury was caused
by a knife. Sergeant David Bean testified that he could not say for certain the cause of
Audy’s back injury. Ultimately, any dispute was for the jury to resolve.

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ballistic evidence found.

¶43. “When on appeal one convicted of a criminal offense challenges the legal sufficiency

of the evidence, our authority to interfere with the jury’s verdict is quite limited.” McFee v.

State, 511 So. 2d 130, 133 (Miss. 1987). It is not our duty as the appellate court to second-

guess the defense’s theory of impossibility as presented to the jury. Rather, the question

before us is whether sufficient evidence existed such that any rational juror could find that

the McCools did not act in necessary self-defense.

¶44. The jury heard the McCools’ impossibility argument at trial. Significantly, the jury

also heard the following: evidence that Michael’s gun had been fired five times; testimony

from a ballistics expert that bullets found in the victims’ bodies were consistent with having

been fired from Michael’s gun; and testimony from a responding officer that Michael

admitted to having fired his gun.

¶45. This evidence was sufficient for a reasonable juror to determine that Michael did not

act in necessary self-defense. The question of who shot whom and when was a factual one.

See Strickland v. State, 309 So. 3d 1090, 1095 (¶26) (Miss. Ct. App. 2020) (holding that it

is the jury who weighs the evidence and not the appellate court). The jury considered the

evidence and ultimately rejected the McCools’ theory that it was impossible for Michael to

have shot first.

2. Witness Credibility

¶46. Second, the McCools argue that, given Melanie’s lack of knowledge, credibility, and

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corroboration as the sole eyewitness, a jury could not have found the McCools guilty beyond

a reasonable doubt.

¶47. Courts have long held that “[t]he weight and credibility to be given to a witness’s

testimony are within the sole province of the jury as fact finder.” Butler v. State, 102 So. 3d

260, 268 (¶22) (Miss. 2012) (internal quotation marks omitted).

¶48. In attacking Melanie’s credibility, the McCools claim that she lacked personal

knowledge of the incident. The credibility of a witness is a matter for the jury to decide—a

concept that the McCools concede in their brief. Nonetheless, the argument that Melanie

lacked personal knowledge of the incident is without merit. Melanie was working at the

store when the McCools arrived and was undisputedly present for the entire incident,

including the moment she realized her husband and son had been shot. While Melanie

admitted during trial that she did not know who shot first, she provided a number of details

in her testimony that the jury could have found significant. For example, she testified at trial

regarding the McCools’ demeanor upon arrival and their increased hostility as time passed,

which were reflected in text messages to her husband entered into evidence. She testified

that Michael made threatening statements toward her and about her husband. Melanie also

recalled that upon entering the store, her husband said to Michael, “Who are you cussing?

If you have a problem, let’s work it out.” According to Melanie, Michael then “immediately

attacked” Jason, starting a fight that lasted approximately ten to fifteen seconds and

culminated in gunfire. She remembered being in a state of shock, realizing as her husband

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fell backward through the glass door that he had been shot.

¶49. The issue of Melanie’s credibility was for the jury to decide, and we will not interfere

with that finding on appeal.

¶50. The McCools further argue that Melanie’s statements to police were contradictory and

that they were inconsistent with her testimony at trial. “When testimony at trial conflicts, it

is up to the jury to determine how much weight it will afford to the testimony it hears.”

Butler v. State, 300 So. 3d 550, 560 (¶45) (Miss. Ct. App. 2020). In addition to Melanie’s

testimony at trial, her statements to police, including the statement taken the day of the

incident and the two subsequent interviews in the days following, were entered into evidence.

It was up to the jury to consider the consistency and credibility of Melanie’s statements, none

of which presented meaningful contradictions.

¶51. The McCools argue that there was “absolutely no corroboration” of Melanie’s

account. As previously stated, the jury determines how much weight to afford a witness’s

testimony.

¶52. Last, the McCools argue that under the Weathersby rule, this Court is bound to accept

their version of events as true. In that case, the Supreme Court held that “where the

defendant or the defendant’s witnesses are the only eyewitnesses to the homicide, their

version, if reasonable, must be accepted as true, unless substantially contradicted in material

particulars by a credible witness or witnesses for the [S]tate, or by the physical facts[,] or by

the facts of common knowledge.” Weathersby v. State, 165 Miss. 207, 147 So. 481, 482

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(1933).

¶53. Here, the McCools were not the only eyewitnesses to the homicide. Melanie

witnessed the entire altercation and testified to what she saw and experienced. Given that

the Weathersby rule is reserved for situations in which the defendant or the defendant’s

witnesses are the only eyewitnesses, the rule simply does not apply here.

¶54. Viewing the evidence presented at trial in the light most favorable to the State, we find

that sufficient evidence supported Michael’s conviction such that any reasonable juror could

have found him guilty beyond a reasonable doubt. Michael’s argument that the prosecution

failed to disprove his theory of self-defense is without merit, as the jury considered all of the

evidence presented and ultimately rejected the McCools’ theory of events.

II. Sufficient evidence supported Audy’s accessory-after-the-fact
conviction.

¶55. Audy argues that the evidence presented at trial was insufficient to convict him of

accessory after the fact to second-degree murder.

¶56. When considering a sufficiency challenge, we consider whether, in viewing the

evidence in the light most favorable to the prosecution, a jury could find the defendant guilty

with regard to each element of the offense. Guss, 296 So. 3d at 737 (¶10).

¶57. A person found to have “concealed, received, or relieved any felon,” or “aided or

assisted any felon, knowing that the person had committed a felony, with intent to enable the

felon to escape or to avoid arrest, trial, conviction[,] or punishment after the commission of

the felony” is guilty of acting as an accessory after the fact. Miss. Code Ann. § 97-1-5(1)

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(Rev. 2015).

¶58. The first element of the crime of accessory after the fact is that a completed felony

was committed. Mangum v. State, 762 So. 2d 337, 342 (¶16) (Miss. 2000). Here, the act of

shooting and killing Jason and Jacob—the act for which Michael would later be convicted

of second-degree murder—had been completed when Audy removed Michael’s weapon from

the crime scene and placed it in the McCools’ car. The prosecution put forth evidence that

Michael shot and killed Jason and Jacob, and that the shooting had occurred before Audy put

the gun in the car. Namely, Michael’s gun had been fired five times, and bullets recovered

from the victims’ bodies came from Michael’s gun.

¶59. The second element of accessory after the fact is that the accused aided or assisted the

felon. Id. The Mississippi Supreme Court recently decided a case in which, following a

gang shooting, a defendant removed guns from a vehicle and took them to another location.

Thames v. State, 310 So. 3d 1163, 1167 (¶9) (Miss. 2021). The Supreme Court held that this

effort to conceal and dispose of physical evidence was sufficient to support a conviction of

accessory after the fact to murder. Id. at 1175 (¶63).

¶60. Just as in Thames, the evidence indicates that Audy took steps to conceal and arguably

dispose of physical evidence by removing the gun from the crime scene and placing it in the

McCools’ vehicle outside the store. Sergeant Bean and Corporal Lee each testified that

Michael stated that Audy had taken the gun and put it in the car following the shooting.

Corporal Lee questioned Audy as he was being loaded onto a stretcher for transport to a

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hospital. When asked about the gun, Audy admitted to taking it from Michael and putting

it in the car. These accounts are supported by investigative reports and testimony stating that

Michael’s Glock was found in the McCools’ vehicle. Furthermore, a series of crime scene

photographs show the position of the gun on the passenger floorboard of the car. Crime

scene investigator Ashley Moulton testified that when she first opened the vehicle, a plastic

bag was covering the gun. Moulton stated that she had to remove the bag in order to see the

gun on the floorboard. In light of Thames, and given this proof, a rational juror could have

found beyond a reasonable doubt that Audy concealed the Glock, thereby assisting or aiding

Michael.

¶61. The third element of the offense of accessory after the fact is that the accused knew

the principal had committed a felony. Matula v. State, 220 So. 2d 833, 834 (Miss. 1969).

“To render one liable as an access[o]ry after the fact he must have had actual knowledge, at

the time he relieved or assisted the principal, that the latter had committed a felony, or was

an access[o]ry before the fact to a felony; and such knowledge must be personal as

distinguished from constructive.” Id.

¶62. We must determine whether sufficient evidence was presented to prove that Audy had

actual, personal knowledge that an illegal shooting had occurred. The Mississippi Supreme

Court dealt with a similar issue in Thames. The Court explained that the prosecution did not

have to prove that the principal had been convicted of the particular felony in order to satisfy

the knowledge requirement for accessory after the fact. Thames, 310 So. 3d at 1174 (¶57).

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Rather, the prosecution had to prove that the defendant had, in addition to satisfying the other

elements of the offense, known that the principal had “feloniously killed” the victim. Id.

The Court determined that, “from all the substantive evidence presented, a rational juror

could conclude that Thames, knowing that an illegal shooting had occurred, knowingly

assisted the principals by helping to conceal and dispose of physical evidence.” Id. at 1175

(¶63).

¶63. Evidence presented at trial indicated that Audy knew an illegal shooting had occurred.

First, by all accounts, Audy was present before, during, and after the shooting. He

accompanied his son to the McLemores’ store and witnessed his son fire a gun toward at

least two people. Audy was present when officers arrived on the scene and undisputedly had

witnessed the shooting. Even if Audy believed his son had shot in necessary self-defense,

that is merely a defense raised to justify the homicide. Based on the evidence presented, a

rational juror could have found that Audy knew an illegal shooting had occurred.

¶64. In order to be convicted of accessory after the fact, the accused must have acted with

the intent to enable the felon to avoid arrest, trial, conviction, or punishment. Miss. Code

Ann. § 97-1-5(1) (Rev. 2015). The McCools argue on appeal that Audy removed Michael’s

gun and placed it in the car for safety reasons. Similarly, in Thames, the defendant claimed

he ordered the removal and relocation of a vehicle involved in a drive-by shooting out of fear

of retaliation from a rival gang. Thames, 310 So. 3d at 1173 (¶51). The Court ultimately

rejected this “safety” argument, finding that the evidence was sufficient to find the defendant

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guilty of accessory after the fact beyond a reasonable doubt with regard to each element of

the offense, including the requisite intent. Id. at 1176 (¶66).

¶65. While Audy argues on appeal that he removed the gun for safety reasons, a jury could

have rejected this argument based on the evidence—namely, that by the time Audy took the

gun from Michael, everyone who had been involved in the shooting was injured and

effectively incapacitated. Furthermore, Audy only removed Michael’s gun, not the guns or

knife carried by the McLemores.

¶66. Audy took a number of affirmative steps in order to relocate his son’s gun.

Immediately following the shooting, Jason and Jacob were lying dead—or nearly dead—on

the floor, and Michael and Audy were injured as well. Melanie testified that when she called

911, Audy was leaning over Michael, talking to him. Michael and Audy both told

responding officers that Audy took the gun from Michael. Next, Audy moved past Jacob’s

body in the middle of the floor and Jason, who was lying lifeless on his back, headfirst

through the front door. Audy walked out the front door with his son’s gun and moved toward

the car. A blood stain was found on the driver’s seat, indicating that Audy opened the

driver’s door to place the gun inside. According to Investigator Moulton’s testimony and

report, the gun had been placed on the passenger-side floorboard and covered with a plastic

shopping bag. After covering the gun with the bag, Audy reentered the store. When

considered together, this evidence was sufficient for a rational juror to determine that Audy

intended to enable his son to avoid arrest, trial, conviction, or punishment.

20
¶67. In viewing all of the evidence presented at trial in the light most favorable to the

prosecution, we find that the evidence was sufficient such that any rational juror could have

found Audy guilty of acting as an accessory after the fact to second-degree murder beyond

a reasonable doubt with regard to each element of the offense.

III. The verdicts against Michael and Audy were not against the
overwhelming weight of the evidence.

¶68. The McCools argue that their guilty verdicts were against the overwhelming weight

of the evidence.

¶69. A weight-of-the-evidence challenge differs from legal sufficiency in that it seeks a

new trial. Dehart v. State, 290 So. 3d 373, 376 (¶16) (Miss. Ct. App. 2020). “When

reviewing a challenge to the weight of the evidence, the Court will disturb a jury verdict only

when it is so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice.” Jones v. State, 154 So. 3d 872, 880 (¶24)

(Miss. 2014) (internal quotation marks omitted). Central to our analysis is the well-

established concept that a jury determines matters of weight and credibility. Dehart, 290 So.

3d at 376 (¶19).

¶70. First we consider whether Michael’s conviction of second-degree murder was against

the overwhelming weight of the evidence such that allowing it to stand would constitute “an

unconscionable injustice.” Jones, 154 So. 3d at 880 (¶24).

¶71. The McCools argue that the objective evidence in this case only supports their theory

of events, and therefore the jury’s decision to reject their theory amounts to an

21
unconscionable injustice. Specifically, the McCools claim that (1) it was factually

impossible for Michael to have shot first; and (2) Melanie’s testimony lacked personal

knowledge, credibility, and corroboration. Yet under our precedent the jury must decide how

much weight to afford the evidence it is presented. Dehart, 290 So. 3d at 376 (¶19). The

jury heard the McCools’ trial arguments and ultimately rejected them. We will not disturb

this finding on appeal.

¶72. The jury was also presented with ample evidence to support the jury’s finding of guilt:

testimony from Melanie recalling that Michael became increasingly belligerent and made

threatening statements toward her; testimony from responding officers that Michael admitted

to having fired his gun, albeit in self-defense; ballistics evidence that Michael’s gun had been

fired five times; and testimony that projectiles found in the victims’ bodies were consistent

with having been fired from Michael’s gun. Perhaps most notably, the jury heard Melanie’s

emotional pleas for help during her 911 call, in which she also told the dispatcher that the

McCools came in and “just started going nuts” and that they shot her husband and son “on

purpose.” Given all of this evidence, we cannot say that allowing this verdict to stand would

amount to an unconscionable injustice. Therefore, the jury’s decision to convict Michael of

second-degree murder was not against the overwhelming weight of the evidence.

¶73. Nor was Audy’s accessory-after-the-fact conviction against the overwhelming weight

of the evidence. For the jury was presented with the fact that Michael and Audy each

admitted to responding officers that, following the shooting, Audy had taken the gun from

22
Michael and placed it in their vehicle outside the store. Additional evidence indicated

Audy’s concealment of the gun. Investigator Moulton testified that, upon examination of the

vehicle, she had to remove a plastic shopping bag in order to see the gun on the floorboard.

She also took before-and-after photographs showing Michael’s gun as initially

discovered—hidden under the bag—and the exposed gun after the bag was removed. After

placing his son’s gun in the car outside, Audy reentered the store.

¶74. Given this evidence, and viewing it in the light most favorable to the verdict, we find

Audy’s accessory-after-the-fact conviction does not constitute an unconscionable injustice.

IV. The jury was properly instructed.

¶75. The McCools argue that the trial court failed to properly instruct the jury on the theory

of self-defense. They also argue that the jury instructions did not sufficiently define

“depraved-heart” murder and “heat-of-passion” manslaughter.

¶76. The standard of review with regard to a trial court’s decision to grant or deny a jury

instruction is abuse of discretion. Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010). In

its analysis, an appellate court considers all given jury instructions to determine whether,

when read as a whole, they “fairly announce the law of the case and create no injustice[.]”

Rubenstein v. State, 941 So. 2d 735, 784-85 (¶224) (Miss. 2006). If the instructions fairly

state the law and do not prejudice the defendant, reversal is not warranted. Id. In other

words, “if all instructions taken as a whole fairly, but not necessarily perfectly, announce the

applicable rules of law, no error results.” Id.

23
A. The jury was properly instructed on the theory of self-
defense.

¶77. The McCools argue that the trial court improperly instructed the jury by failing to

place on the State the burden of disproving the theory of self-defense. Specifically, the

McCools take issue with Jury Instruction 23, which read as follows:

The Court instructs the jury that to make a killing justifiable on the grounds of
self-defense, the danger to the defendant must either be actual, present and
urgent, or the defendant must have reasonable grounds to believe that the
victim intended to kill the defendant or to do some great bodily harm, and in
addition to this, he must have reasonable grounds to believe that there is
imminent danger of such act being accomplished. It is for the jury to
determine the reasonableness of the grounds upon which the defendant acts.
If you, the jury, unanimously find that the defendant acted in self-defense, then
it is your sworn duty to return a verdict in favor of the defendant.

The McCools claim that this instruction, on its own and when considered together with other

instructions, misinformed the jury as to the State’s burden of proof.

¶78. A defendant must specifically object to the proposed instruction in order to preserve

the issue on appeal. Fitzpatrick v. State, 175 So. 3d 515, 522 (¶31) (Miss. 2015). However,

failure to instruct on the essential elements of the crime is plain error. Id. Here, the McCools

did not object to Instruction 23 at trial. Although the McCools initially proposed a different

self-defense instruction—D-11, which specifically stated that the burden to disprove self-

defense was on the prosecution—the McCools withdrew that instruction and agreed to accept

Instruction 23 without objection. Because there was no objection to Instruction 23 reserved

for appeal, this argument is procedurally barred.

¶79. Considering they did not object at trial, the McCools ask us to review for plain error.

24
The Mississippi Supreme Court has held that plain error exists “only where a fundamental

right of the defendant has been violated.” Id. In order to determine whether plain error has

occurred, we must consider “(1) whether the trial court deviated from a legal rule; (2)

whether the error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome

of the trial . . . [o]nly if the error resulted in a manifest miscarriage of justice will reversal

occur.” Willie v. State, 204 So. 3d 1268, 1279 (¶29) (Miss. 2016) (citation and internal

quotation marks omitted).

¶80. We recently approved an identical instruction to Instruction 23 in Sands v. State, No.

2019-KA-00869-COA, 2020 WL 5793458, at *3 (¶12) (Miss. Ct. App. Sept. 29, 2020), cert.

denied, 2021 WL 1885127, (Miss. April 29, 2021). We find, as in Sands, that “the trial judge

did not commit any error, much less plain error, by giving this instruction.” Id.

B. The jury was properly instructed on depraved heart murder
and heat of passion manslaughter.

¶81. The McCools argue that while the jury instructions defined “deliberate design,” they

failed to sufficiently define the lesser-included offenses of “depraved-heart” murder and

“heat-of-passion” manslaughter, which forced the jury to speculate as to their meanings.

They argue that the trial court was required to explicitly define the legal terms “depraved

heart” and “heat of passion.”

¶82. “A defendant’s failure to object to a jury instruction at trial creates a procedural bar

that prohibits appellate review of the issue, unless there is plain error.” Fitzpatrick, 175 So.

3d at 522 (¶31). Here, the defense did not object to either of the lesser-included-offense

25
instructions on these grounds at trial. Therefore, the arguments are procedurally barred on

appeal. Nonetheless, they are without merit.

1. “Depraved-Heart” Murder

¶83. Despite being procedurally barred on appeal, the McCools’ argument that they were

entitled to an instruction specifically defining “depraved heart” is unfounded. “The

Mississippi Supreme Court has ‘consistently held that instructions in a criminal case which

follow the language of a pertinent statute are sufficient.’” Humphries v. State, 18 So. 3d

305, 308 (¶14) (Miss. Ct. App. 2009) (quoting Crenshaw v. State, 520 So. 2d 131, 135 (Miss.

1988)). Based on this rule, we have held that a trial judge is not required to give an

additional instruction defining “depraved heart.” Nichols v. State, 27 So. 3d 433, 440 (¶22)

(Miss. Ct. App. 2009).

¶84. State law defines second-degree murder as “[t]he killing of a human being . . . done

in the commission of an act eminently dangerous to others and evincing a depraved heart,

regardless of human life, although without any premeditated design to effect the death of any

particular individual.” Miss. Code Ann. § 97-3-19(1)(b). Containing almost identical

language to the statute, Jury Instructions 19 and 21, to which the defense now takes issue,

stated the following:

Second degree murder is the killing of a human being, done in the commission
of an act eminently dangerous to others and evincing a depraved heart,
regardless of human life, although done without any premeditated design to
effect the death of any particular individual, and not in necessary self defense.

Jury Instructions 19 and 21 defined the elements of depraved-heart murder according to state

26
law. Miss. Code Ann. § 97-3-19(1)(b). Because the instructions at issue closely follow the

language of the relevant statute, an additional defining instruction was not necessary. Failure

to give such an instruction did not constitute reversible error.

2. “Heat-of-Passion” Manslaughter

¶85. The McCools’ argument that the “heat-of-passion” manslaughter instruction required

further definition is without merit. The Mississippi Supreme Court has held that it is not

reversible error or plain error not to give an instruction defining “heat of passion.” Bernard

v. State, 288 So. 3d 301, 312 (¶42) (Miss. 2019).

¶86. Furthermore, the McCools’ argument lacks merit because the jury did not reach the

lesser-included offense of manslaughter in its analysis. The circuit court instructed the jurors

that if they could not find beyond a reasonable doubt that Michael committed deliberate-

design murder, they should next consider whether Michael committed second-degree murder.

The jury ultimately convicted Michael of second-degree murder, indicating that it did not

reach consideration of the lesser-included offense of manslaughter.

¶87. The Mississippi Supreme Court has stated that “instructions may be made more

perfect does not mean they are legally inadequate.” Turner v. State, 573 So. 2d 1340, 1343

(Miss. 1990). As long as the instructions, when read as a whole, accurately state the law and

do not create injustice, reversal is not warranted. Rubenstein, 941 So. 2d at 784 (¶224). The

instructions in this case, when read in their entirety, accurately stated the law.

V. The sentences do not constitute cruel and unusual punishment.

27
¶88. The McCools argue that Michael’s two consecutive forty-year sentences for his

convictions of two counts of second-degree murder and Audy’s twenty-year sentence for his

accessory-after-the-fact conviction are grossly disproportionate and otherwise excessive

under the Eighth Amendment.

A. The sentences are within the statutory range.

¶89. “A sentence within the limits prescribed by statute is not ordinarily subject to appellate

review.” Portis v. State, 245 So. 3d 457, 474 (¶44) (Miss. 2018).

¶90. The jury convicted Michael of two counts of second-degree murder. The sentence for

a person convicted of second-degree murder was “not less than twenty (20) nor more than

forty (40) years” if the jury did not impose life imprisonment. Miss. Code Ann. § 97-3-21(2).

Michael received two forty-year sentences—one for each count—which was the maximum

allowed under statute.

¶91. Audy was sentenced to twenty years. Accessory after the fact carried a sentence of

“a period not to exceed twenty (20) years” if the corresponding felony was a violent crime

for which “the maximum punishment was life, death or twenty (20) years or more.” Miss.

Code Ann. § 97-1-5(1)(a)(i) (Rev. 2015). Audy’s sentence was within the statutory

requirement.

¶92. The sentences of both Michael and Audy were within the periods authorized by

statute. While sentences within the statutory range are generally not disturbed on appeal,

there is “a very limited and rarely imposed exception to the general rule.” Nash v. State, 293

28
So. 3d 265, 268 (¶12) (Miss. 2020).

B. The sentences are not grossly disproportionate to the crimes.

¶93. “The Eighth Amendment, which forbids cruel and unusual punishments, contains a

narrow proportionality principle that applies to noncapital sentences.” Ewing v. California,

538 U.S. 11, 20 (2003) (internal quotation marks omitted). The United States Supreme Court

has stated that “the Eighth Amendment does not require strict proportionality between crime

and sentence,” but rather “forbids only extreme sentences that are grossly disproportionate

to the crime.” Id. at 23 (internal quotation marks omitted). The Mississippi Supreme Court

has applied this narrow proportionality principle accordingly. See Nash, 293 So. 3d at 270

(¶17) (holding that a sentence of twelve years for possession of a cell phone by an inmate in

a correctional facility was not grossly disproportionate to the crime). “[T]o determine if a

particular sentence is grossly disproportionate, a court must first compare the gravity of the

offense to the severity of the sentence.” Id. at 269 (¶13).

¶94. In arguing that their sentences violated the Eighth Amendment, the McCools note that

both Michael and Audy were hurt in the conflict and that their sentences effectively

amounted to life sentences due to their life expectancies. Yet the McCools cite no case law

supporting their contention that their respective sentences were grossly disproportionate or

otherwise excessive.

¶95. There is no doubt that the McCools’ crimes were severe. Michael was found guilty

on two counts of second-degree murder for the shooting death of a teenage boy and his

29
father. The jury convicted Audy of accessory after the fact to second-degree murder for

removing Michael’s gun following the shooting. Both received the maximum penalty under

state law for their crimes.

¶96. The Mississippi Supreme Court has upheld sentences in cases where the record

indicated that the trial judge exercised discretion in imposing the sentence. Ford v. State,

975 So. 2d 859, 870 (¶40) (Miss. 2008) (holding that a sentence of seventeen years for

aggravated assault did not give rise to an inference of gross disproportionality). The

Supreme Court even upheld the sentence despite the fact that the trial judge denied the

request for a presentence investigation, since based on the record the trial judge had

expressed concerns about the severity of the crime. Id. at (¶42).

¶97. Here, the record shows that the trial judge weighed a number of factors before

imposing the sentences. Before sentencing Michael, the judge explained the various sources

of information that contributed to his decision. First, he noted that he sat through the entire

trial and observed Michael’s demeanor and the evidence. He reviewed the presentence

investigation report several times. Additionally, the trial judge reviewed letters and heard

testimony from the victims’ and the defendants’ families. He also heard from Michael

himself prior to sentencing. With all of this in mind, the trial judge ordered Michael to serve

two separate consecutive forty-year sentences.

¶98. The trial judge also considered ample information before sentencing Audy. He stated

that, as with Michael, he observed Audy and the evidence at trial and heard from the victims’

30
family, as well as Audy and his family. He also reviewed the presentence report multiple

times. Notably, the trial judge stated that he took into account Audy’s past, as well as the

fact that Audy is a father and “what a father would have done in those circumstances.” The

judge discussed the evidence that supported Audy’s conviction. Given this, he sentenced

Audy to twenty years in the custody of the Mississippi Department of Corrections, with

fourteen years to serve and the remaining six years under post-release supervision.

¶99. With regard to both Michael and Audy, the initial comparison of the sentence to the

severity of the crime does not give rise to an inference of disproportionality. Therefore, no

further analysis is required. The sentences of Michael and Audy are affirmed.4

VI. The ineffective-assistance-of-counsel claim is not appropriate for
direct appeal.

¶100. The McCools argue ineffective assistance of counsel by their trial attorney.

Specifically, they argue that counsel’s failure to acquire and introduce vital forensic, medical,

and DNA evidence, and to complete tasks for which he had already received payment,

amounted to a violation of the McCools’ Sixth Amendment right to counsel. They also cite

counsel’s decision not to give an opening argument as a reason for ineffectiveness.

¶101. “Ineffective-assistance-of-counsel claims should ordinarily be raised in a motion for

4
To some extent, the McCools also challenge whether the trial court had jurisdiction
to reconsider their sentences. “Our review of motions to reconsider a sentence is made
under an abuse-of-discretion standard.” Ducote v. State, 970 So. 2d 1309, 1312 (¶6) (Miss.
Ct. App. 2007). After finding it lacked jurisdiction to hear the motion for reconsideration,
the trial court proceeded to consider the McCools’ argument that their sentences were
grossly disproportionate. The trial court’s denial was not an abuse of discretion.

31
post-conviction relief, not on direct appeal.” Hamlin v. State, 306 So. 3d 843, 844 (¶2)

(Miss. Ct. App. 2020).5 “The Court will address such 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 appellate court determines that the findings of

fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed.” Id.

¶102. Here, the parties did not stipulate that the record is adequate to consider the

ineffective-assistance claim. The majority of the McCools’ arguments regarding ineffective

assistance are not based in the record. “This Court will not consider matters that do not

appear in the record, and it must confine its review to what appears in the record.” Pulphus

v. State, 782 So. 2d 1220, 1224 (¶15) (Miss. 2001). Some of the McCools’ arguments are

based on information simply attached to their briefs, and will therefore not be considered.

“Attaching documents to briefs or including them in record excerpts does not make them a

part of the certified record as required by Mississippi Rule of Appellate Procedure 10, and

so they will not be considered.” Jones v. Jones, 307 So. 3d 1229, 1231 (¶7) (Miss. Ct. App.

2020).

¶103. Because the parties did not stipulate that the record is adequate to determine whether

the McCools received ineffective assistance from their trial attorney, and because the record

does not affirmatively show ineffective assistance rising to the level of a constitutional

5
In both their brief and oral argument, counsel for the McCools admitted that
ineffective-assistance-of-counsel claims are more appropriately brought in a motion for post-
conviction relief.

32
violation, the McCools’ claim is not appropriately brought on direct appeal and should be

raised in a motion for post-conviction collateral relief.

VII. There is no cumulative error.

¶104. Finally, the McCools argue that the alleged errors in the trial court proceedings

combined to effectively deprive them of their fundamental right to a fair trial and that,

therefore, reversal is required. The Mississippi Supreme Court has held that “individual

errors, not reversible in themselves, may combine with other errors to make up reversible

error.” Wilburn v. State, 608 So. 2d 702, 705 (Miss. 1992). “The question under these and

other cases is whether the cumulative effect of all errors committed during the trial deprived

the defendant of a fundamentally fair and impartial trial.” Id.

¶105. Typically, where “there was no reversible error in any part . . . there is no reversible

error to the whole.” McFee, 511 So. 2d at 136. There was no error in this case, and so there

is no merit to this argument.

CONCLUSION

¶106. We find that sufficient evidence supported Michael’s second-degree murder

convictions and Audy’s accessory-after-the-fact conviction, and that the jury verdicts were

not against the overwhelming weight of the evidence. We also find that the jury was

properly instructed on the theory of self-defense and on the lesser-included offenses of

depraved-heart murder and heat-of-passion manslaughter. The sentences did not constitute

cruel and unusual punishment. We find that the McCools’ ineffective-assistance-of-counsel

33
claim is not appropriately brought on direct appeal. Finally, the cumulative effect of the

alleged errors did not deprive the McCools of a fair trial. For these reasons, we affirm.

¶107. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, SMITH AND EMFINGER, JJ.,
CONCUR.

34