Anfernee Harris a/k/a Lil Mack a/k/a Thiro v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-00768-COA

ANFERNEE HARRIS A/K/A LIL MACK A/K/A APPELLANT
THIRO

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/05/2022
TRIAL JUDGE: HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN KEITH PERRY JR.
GARRET T. ESTES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 03/10/2026
MOTION FOR REHEARING FILED:

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

McDONALD, J., FOR THE COURT:

¶1. Anfernee Harris appeals his conviction of second-degree murder and life

imprisonment sentence for the death of Skyeesha Pige, who was an innocent victim of a

shooting between Harris and another individual. Harris was tried with co-indictee Dontarrius

Hibbler after Harris’s motion to sever was denied. On appeal, Harris raises several issues,

including the denial of his severance motion, prosecutorial misconduct for inappropriate

remarks made during closing, his sentencing without a separate sentencing hearing, and juror

misconduct warranting a new trial. Having considered the record and the arguments of

counsel, we affirm Harris’s conviction and sentence.
Facts and Procedural History

Background Facts

¶2. On March 31, 2019, Skyeesha Pige left home where she and her fiancé, Ray Conley,

lived with their children, to attend church. Conley stayed home to cut the grass and invited

friends Tyrone Stevenson and Ronnie Jackson to come over for a fish fry and barbecue.

Stevenson arrived first and went inside to retrieve a cooler for the drinks. Shortly thereafter,

Jackson arrived and began talking to Conley in the driveway.

¶3. While Jackson and Conley were speaking, they noticed Harris walking in the street

towards Andrea Norwood’s (“DeDe”) house across the street. They also saw Ronald Ladd

drive down the street, pull over, and get out to speak with Harris. At this point, Tevin

Vardaman drove around the curve in his maroon Nissan Maxima with Charles Golden riding

with him. Vardaman’s car approached Harris and Ladd, and as Conley described it,

Vardaman “began bouncing his car like he wanted to do something,” but he did not stop. As

Vardaman drove off, Harris fired several shots at Vardaman’s vehicle. It is not known when,

but at some point, Golden exited Vardaman’s vehicle and left the scene.

¶4. Vardaman turned his car around, blocked the street, and got out. He started taunting

Harris, stating that Harris could not hit him. At this point, Harris and Ladd got in Ladd’s

vehicle and tried to get away. But they were blocked by cars parked on the side of the street,

so they both got out. Ladd ran into DeDe’s house, while Harris ducked behind Ladd’s car.

Dontarrius Hibbler came out of De De’s house and joined Harris behind Ladd’s vehicle.

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Harris gave Hibbler the gun and started towards DeDe’s house, while Hibbler began shooting

at Vardaman. When Hibbler stopped, they all heard a loud crash. Ladd came out of DeDe’s

house and jumped into his car. Harris and Hibbler joined him, and they all sped away.

¶5. The loud crash was determined to be Pige, who was returning from church, colliding

into Vardaman’s vehicle. A stray bullet had pierced her windshield and struck her in the eye.

Medical assistance arrived, but Pige later succumbed to her injuries at the hospital.

Investigation

¶6. Tunica Sheriff’s Department personnel Captain Katie Ridley, Captain Bernadette

Logan, and Lieutenant Markendrick Keys arrived on scene to investigate. They took

photographs, collected physical evidence, including bullet casings, and spoke to witnesses.

Logan spoke to both Conley and Vardaman, but neither of their statements was audio- or

video-recorded. After obtaining a search warrant, Logan searched Vardaman’s car. She

found no weapons, only a jacket and ID belonging to Charles Golden, who was not at the

scene. Golden was later located, but he had no weapons on his person, and after tracking his

route back to the scene, law enforcement still found no weapons.

¶7. Deputy Logan was then contacted by another law enforcement officer, Jaylin James,

who had gone to the Cottenland Village Apartments nearby and found one of the shooting

suspects. Logan arrived at the apartments, photographed Harris, and James took Harris into

custody. Law enforcement found no weapons at Harris’s apartment location either.

¶8. In addition to the unrecorded statement he made on the day of the shooting, Conley

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also gave a written statement to Lt. Keys on April 7, 2019. In it, he said that all three

defendants had been shooting, with Harris and Ladd (aka J-Rock) firing at least four to five

shots at Vardaman, and with Hibbler (aka DT) firing twelve times or more. Keys also took

a statement from Stevenson on the same day. Conley came to the station and gave a third

statement (written) on May 15, 2019, in which he clarified that Ladd had not been shooting,

which led to Ladd receiving a lesser charge. On July 10, 2019, Keys presented both Conley

and Stevenson with a photo line-up that included photos of Harris and Ladd.1 Both were able

to identify Ladd as the driver who left the scene with Harris, who was one of the shooters.

Hibbler’s photo was not included in the photo lineup.

Indictment

¶9. On August 14, 2019, Harris and Hibbler were indicted and charged with second

degree murder for Pige’s death, more specifically that each:

while aiding and abetting with others or acting in concert with each other or
others, did willfully, unlawfully, feloniously, without any premeditated design
to effect death but in the commission of an act eminently dangerous to others
and evincing a depraved heart, without authority of law and not in necessary
self-defense, kill Skyeesha Pige A/K/A “Sky”, a human being, by shooting her
in the head with a pistol, with enhanced punishment for use of a firearm in the
commission of a felony.2

1
Keys referred to it as a “six pack line-up,” where law enforcement presents a photo
of the suspect or suspects among other photos of random individuals, for a total of six
photos. The witness then identifies the photo or photos of the suspect or suspects from this
group.
2
They were also charged with attempting to cause bodily injury to Charles Golden
(Count II) and with attempting to cause bodily injury to Tevin Vardaman (Count III). These
charges were later nolle prosequied.

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Ladd was charged with being an accessory to murder after the fact. All three were scheduled

to be tried together.

Motion to Sever

¶10. On March 15, 2021, Harris filed a motion to sever his case from Ladd and Hibbler’s

for trial. Ladd also filed a similar motion. Harris argued that the jury would be unable to

distinguish Harris’s acts from those of his co-defendants. Moreover, Harris claimed that

videotaped statements given by Harris and Ladd implicated each other, as well as Hibbler.

The admission of these statements, Harris argued, would violate the defendants’ Fifth

Amendment rights against self-incrimination. The State responded, agreeing that Ladd’s

case should be severed, but not Hibbler’s and Harris’s. On March 21, 2021, the court entered

an order granting Ladd’s motion but denying Harris’s. The order reflects that at the hearing

on the motion, the State agreed it would not enter any hearsay statements made by Hibbler

that would implicate Harris. Thus, Harris and Hibbler were tried together.

Trial

¶11. Two attempts to try Harris and Hibbler ended in mistrials due to an inadequate number

of jurors remaining in the jury pool after jurors were excused for cause. A third trial began

on November 28, 2022.

Voir Dire

¶12. During the court’s voir dire, the court excused numerous jurors for various reasons,

including that they knew or were related to the defendants. The court also asked if anyone

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was related to the parties, witnesses, or the victim by blood or marriage. Several jurors

responded to these questions, and most replied that they could be fair and impartial despite

their connection or knowledge of the case. The few who said they could not be fair were

struck by the court for cause. Harris and Hibbler’s attorneys then questioned the venire about

jurors knowing each other and other matters.

¶13. During the jury selection conference, the court recapped the jurors it had already

stricken for cause and struck others. Harris’s attorney pressed for Juror 34 to be struck for

cause because he knew Norwood (DeDe) and Lt. Keys, and had law enforcement friends or

family. The court overruled the objection. Harris’s attorney also sought to have other jurors

struck for cause: Juror 24, who was the victim’s cousin; Juror 38, who knew law

enforcement officers; and Juror 42, who worked nights and may not be attentive. The court

overruled those requests as well. The court proceeded with the peremptory strikes for both

the State and the defense. Jurors 24 and 38 were struck during this process, and the final

jurors were chosen.

Testimony and Evidence

¶14. After opening statements, the State called the officers who responded to the dispatch

call of the shooting (Ridley, Logan, and Keys). Each testified to their observations and

actions at the scene as discussed above, including the photographs they took and the evidence

they collected. One photograph showed the hole in the windshield of Pige’s car where the

bullet had traveled and struck Pige. Ridley stated that no weapons were recovered at the

6
scene, but she found shell casings across the street from Conley’s home. Logan testified

about the search of Vardaman’s vehicle and how they located Golden and backtracked his

route from the scene. Despite the vehicle search and search of the crime scene, no weapons

were located.

¶15. Keys testified that he gathered one live round at the scene and seventeen shell casings,

which were sent to the forensics lab for examination. Photographs taken of each shell casing

at the scene were entered into evidence, including close-ups that showed brand information

on each. Two shells and one live round were admitted into evidence. Keys further testified

about his interviews with Stevenson and Conley individually on April 2, 2019. He told the

jury that said he showed these witnesses a photo line-up that included photographs of Harris

and Ladd. Keys stated that Jackson, who also was shown the photo line-up by another

officer, was unable to identify Harris, but Conley and Stevenson were able to identify both

Harris and Ladd. These photo line ups were admitted into evidence.

¶16. Officer James testified that he was directed to the Cottenland Village apartments just

down the street from the crime scene to look for any suspects. James stated that he saw

Harris on the phone behind a door of one of the apartments and told him to step out. He

detained Harris until other officers arrived to confirm that Harris was a suspect. Ultimately,

James transported Harris to the Tunica County jail. He stated that he did not conduct, nor

did he see any other officer conduct, a gunshot residue test on Harris. James also stated that

there were no weapons or anything associated with the case found in the search of the

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apartment where he found Harris.

¶17. The State called Dr. David Arboe, who was accepted as an expert in the field of

forensic pathology without objection from defense. Arboe testified that he performed an

autopsy on Pige’s body, examining it both externally and internally. He identified

photographs he had taken during the autopsy and bullet fragments he found in Pige’s head

and neck, which were entered into evidence. Arboe testified that the cause of Pige’s death

was a gunshot wound to the head, but he could not determine from what distance. Arboe also

concluded that the manner of Pige’s death was homicide.

¶18. The State then called the lay witnesses who were present at the Conley home:

Jackson, Stevenson, and Conley. Stevenson testified about the events that morning. He said

he saw Vardaman’s car traveling down the street and saw Harris begin shooting at it.

Stevenson confirmed the photo line-up pictures in which he identified Harris and Ladd. On

cross-examination, Stevenson testified that as he was coming out, one of the children who

was also in the house tried to come out with him. In an attempt to stop the child from exiting

the house, Stevenson said he fell but got right back up. However, this is why he would not

recall when the first shooter appeared. Stevenson also admitted that he had seen pictures of

the defendants from the Sheriff’s Department’s website on his phone prior to giving his

statement and viewing the photo line-up on April 2, 2019. Upon re-direct, however,

Stevenson testified that he would have been able to identify the defendants even without the

pictures from the website.

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¶19. Conley, Pige’s fiancé, testified to the facts as previously described, i.e., that he saw

Harris walking down the street, Ladd drive up and speak with Harris, and Vardaman driving

up and “bouncing” his car in front of Harris and Ladd. Conley said that Harris then shot at

Vardaman’s car as Vardaman was driving off. Ladd and Harris tried to leave, but were not

able to turn Ladd’s vehicle around. Hibbler left DeDe’s house and joined Harris behind the

car. Conley stated he saw them fumble with something, and then Harris began running

towards DeDe’s house as Hibbler began shooting at Vardaman. Conley said that in the first

statement he gave police, he said it looked like Ladd was shooting, but he could not be sure.

Conley then confirmed the line-up photos given to him by Keys where he identified Harris

and Ladd.

¶20. On cross-examination, Conley testified that about ten to fifteen seconds elapsed

between the last shot that Hibbler fired and the crash of the vehicles and that three to four

seconds elapsed between when Harris began running towards DeDe’s house and when

Hibbler began shooting. Conley confirmed that he had given three statements, including one

on the scene, one in April, and one in May. Conley testified that in his first statement at the

scene, he said he had not seen Harris fire a gun. Then, in his April written statement, he said

that Harris and J-Rock (Ladd) fired at least four shots and that Hibbler (DT) fired twelve

times or more. Conley agreed that in his May statement he said Ladd had not been shooting

at all. When asked why he did not tell police in his first statement that Harris was the first

shooter, Conley testified that he was traumatized and was confused by being asked multiple

9
questions at the same time. Conley further testified that he changed his first statement to the

police in a later statement after thinking more about the incident.

¶21. The State’s final witness was Melissa Deberry, a forensic specialist in firearm

examinations who has been employed by the Mississippi Forensics Laboratory since 2006.

After being accepted as an expert with agreement of the parties, Deberry explained the

different parts of a bullet, namely, the exterior casing or cartridge, which gets ejected at

firing, and the interior parts, including a pellet, a primer, and the cap of the bullet or

projectile. She said that casings can be compared to each other by looking at whether the

caliber is the same and whether the shape of the firing pin impression and breach face marks

are the same. This comparison is done microscopically.

¶22. With her expertise, Deberry can also “classify” projectiles to determine the kind of

gun they came from. Deberry testified that she was asked to analyze two bullet fragments

retrieved from Pige’s neck. She was able to classify one as having the characteristics

consistent with a .38 caliber or 9 mm barrel with six lands and grooves and a hard right twist.

The other fragment was mutilated and she could not identify any individual characteristics

on it. Deberry said she was also provided seventeen 9mm casings. Comparing the casings

to each other, she determined that all had been fired from the same gun. Deberry confirmed

her report, which was then entered into evidence without objection.

¶23. On cross-examination, Deberry was presented with a forensics report from a 2018

shooting with a victim named “Skykeesh Pige,” which had been prepared by another

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examiner for another case.3 Deberry explained that each examiner places his initials on the

specimens provided, so the examiner in the 2018 case was examining a completely different

casing than the one she examined in 2019. Deberry explained that a second reviewer looked

at and verified her work before the report was submitted. Deberry also testified that with an

extended clip, a semi-automatic gun could hold thirty to thirty-three rounds.

¶24. At the close of the State’s case, Harris and Hibbler both moved for directed verdicts

which the court denied. The court then determined from Harris and Hibbler that neither

desired to testify. Neither presented any evidence or testimony in his own defense, and both

parties finally rested.

¶25. The court and counsel discussed the proposed jury instructions, including the form of

the verdict, to which Harris voiced no objection. It read:

Your verdict regarding the Defendant, ANFERNEE HARRIS A/K/A
“LIL MACK” AKA “THIRO”, should be written upon a separate sheet of
paper, need not be signed by you, and may be in any one of the following
forms:

COUNT ONE: SECOND-DEGREE MURDER

1a. If you find the Defendant, ANFERNEE HARRIS A/K/A “LIL MACK”
AKA“THIRO” guilty of Count I, Second Degree Murder and agree to
fix the penalty of life imprisonment, then the form of the verdict shall
be,

3
The report was marked for identification but never entered into evidence. Deberry
identified that the report came from her agency but reflects an analysis of materials
submitted under a different case number and performed by a different examiner. In that
case, the examiner classified one of the projectile jackets as coming from a .38 caliber or
9 mm barrel with six lands and grooves and a hard right twist.

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“We, the Jury, find the Defendant,
ANFERNEE HARRIS A/K/A “LIL MACK” AKA “THIRO”,
guilty of Count One, Second Degree Murder, and fix the penalty
at life imprisonment.”

1b. If you find the Defendant, ANFERNEE HARRIS A/K/A “LIL MACK”
AKA“THIRO”, guilty of Count I, Second Degree Murder or unable to
fix the penalty at life imprisonment, then the form of your verdict
should be

“We, the Jury, find the Defendant,
ANFERNEE HARRIS A/K/A “LIL MACK” AKA “THIRO”,
guilty of Count One, Second Degree Murder, but are unable to
agree to fix the penalty at life imprisonment.”

1c. If you find the Defendant, ANFERNEE HARRIS A/K/A “LIL MACK”
AKA“THIRO”, not guilty of Count One, Second-Degree Murder, then
the form of your verdict shall be:

“We, the Jury, find the Defendant,
ANFERNEE HARRIS A/K/A “LIL MACK” AKA “THIRO”,
not guilty of Count One Second Degree Murder.

After being instructed, the jury heard closing arguments.

Closing Arguments and Verdict

¶26. In its closing argument, anticipating that the defense would point out things that

witnesses could not remember or remembered differently later, the prosecutor stated:

Does that matter? Seriously, does that matter? This lady is leaving church
worshiping and loses her life. I said to you that’s not the conduct that should
be allowed in Tunica County. That’s not appropriate. No matter what anybody
tells you.

Neither defendant objected to this statement. Later in the State’s rebuttal argument, the

prosecutor told the jury, “I don’t apologize for being passionate about this case. And I never

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will. This is senseless. This is conduct that should not be tolerated. These defendants

deserve to be found guilty.” Again, neither defendant objected to the State’s rebuttal

argument.

¶27. During deliberations, the jury sent a note that read, “If jury can’t decide on life, does

the judge decide the number of years of the sentence?” The court clarified that it was unable

to give further instructions and directed the jury to resume deliberations. The jury then found

Harris guilty of second-degree murder and “fix[ed] the penalty at life imprisonment.” The

jury was polled, and all jurors agreed that the verdict was his or hers.

¶28. Thereafter, the trial transcript reads:

The Court: The Defendants are remanded in the custody in the Tunica County
Sheriff’s Department. The court now sentences you under 97-3-21; convicted
of Second Degree Murder.

(The Court Confers with Counsel Regarding Separate Sentencing Hearing)

The Court: Mr. Shah, what do you say?

Mr. Shah: I don’t think the court has the authority what the jury has reached.

(Further Discussion Separate Sentencing)

(The Court Proceeds To Sentence - Life in Prison)[.]

In response to this Court’s order to supplement the record to include the discussion on a

sentencing hearing, the circuit court stated:

Regarding the bench conference/separate sentencing hearing; Mr. Rosharwin
Williams and Mr.Whit Cooper agreed that this portion of the proceedings were
conducted off of the record.

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In addition, the circuit court stated:

Regarding the Court’s comments during sentencing, Mr. Rosharwin Williams
and Mr. Whit Cooper agreed that, other than handing down sentences of Mr.
Harris and his co-defendant, Mr. Hibbler, the Court did not make any
additional comments during sentencing.

Motion for Judgment Notwithstanding the Verdict or New Trial

¶29. Harris filed a “Motion for Judgment of Acquittal Notwithstanding the Verdict or, in

the Alternative, a New Trial.” In it, Harris raised the following issues: (1) that the court erred

when it denied the Defendant’s motion to sever filed on March 12, 2021, (2) that the court

erred when it failed to strike Juror 24 for cause, (3) that the court erred in not granting

Defendant’s motion for a directed verdict of acquittal at the close of the State’s evidence and

at the close of all of the evidence for the reasons as stated herein above, (4) that the court

erred in refusing Defendant’s instruction D-1, (5) that the court should grant a new trial based

on newly discovered evidence that Juror 2, Juror 4, and Juror 10 knew the victim or victim’s

family and had knowledge about the case prior to voir dire but remained silent when asked

under oath whether they knew the victim or knew anything about the case prior to voir dire.

Harris attached printouts from Facebook to support his allegations concerning these jurors.

The trial court summarily denied this motion on May 24, 2023, and Harris filed his notice of

appeal on June 15, 2023.

¶30. On appeal, Harris raises the following issues:

(1) Whether the court erred in denying Harris’s motion for severance.

(2) Whether the verdict is against the overwhelming weight of the

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evidence.

(3) Whether the prosecutor committed misconduct that created unjust
prejudice against Harris.

(4) Whether jurors’ withholding information during voir dire constituted
juror misconduct warranting reversal.

(5) Whether the jury improperly sentenced Harris to life imprisonment, i.e.,
whether the court erred in sentencing Harris without a sentencing
hearing.

(6) Whether the court erred in summarily denying Harris’s motion for
judgment notwithstanding the verdict (JNOV).

Discussion

I. Whether the court erred in denying Harris’s motion for severance.

¶31. Harris argues that the circuit court should have severed his case from Hibbler’s

because the jury would have a difficult time distinguishing his acts from Hibbler’s and

because Ladd had given a statement implicating Harris. Thus, he claims, he was entitled to

a severance.

¶32. Rule 14.3(a)(2) of the Mississippi Rules of Criminal Procedure, titled Severance in

Non-Death Penalty Cases, provides:

The court may, on motion of the state or a defendant, grant a severance of
defendants or offenses if it is deemed appropriate to promote the fair
determination of a defendant’s guilt or innocence of each offense.

MRCrP 14.3(a)(2). A severance is not a right of the defendant, but it is a determination made

by the court at its discretion. Pope v. State, 330 So. 3d 409, 424 (¶65) (Miss. Ct. App. 2021).

“A trial court’s denial of a motion to sever will not be overturned on appeal absent an abuse

15
of discretion.” Hayes v. State, 168 So. 3d 1065, 1074 (¶34) (Miss. Ct. App. 2013).

¶33. There are two key factors that courts consider in determining a motion for severance.

When considering a motion to sever, a trial court must analyze the factors
provided by our Supreme Court in Duckworth v. State, 477 So. 2d 935, 937
(Miss. 1985). First, the court must look to whether a co-defendant’s testimony
tends to exculpate himself at the expense of his co-defendant. Id. In other
words, the court looks to whether there “appear[s] to be a conflict of interest
among the co-defendants.” Id. Next, the court determines whether “the
balance of the evidence introduced at trial go[es] more to the guilt of one
defendant than the others.” Id. The denial of a severance only becomes error
when the defenses of the co-defendants are adverse to one another. Rigby v.
State, 485 So. 2d 1060, 1061 (Miss. 1986).

Pope, 330 So. 3d at 424 (¶66).

¶34. Examining the facts of cases involving severance claims helps to understand the

application of these factors. For example, the Duckworth case involved an armed robbery

at a grocery store. Duckworth, 477 So. 2d at 936. After Elton Duckworth and Willie George

Carter had entered, Duckworth pulled a gun on the clerk, and Carter tied her up with a piece

of wire. Id. After taking a bag of money and the change drawer, both left the store and were

driven away by Carter’s brother, Troy. Id. All three were later apprehended, and at trial,

prior to the testimony of co-defendant Troy, Duckworth moved for a severance, but the

motion was denied. Id. Troy testified about dropping his brother and Duckworth off at the

grocery store and waiting for them. Id. He also identified pictures taken when they were

stopped by police, showing the money bag and change drawer in the interior of his vehicle.

Id at 937. On appeal of his conviction, Duckworth argued that he had a right to a severance.

Id. However, the Mississippi Supreme Court disagreed and held that whether a severance

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is granted is within “the sound discretion of the trial judge.” Id. The Court stated that Troy

Carter’s testimony did not tend to exculpate himself at the expense of his brother or

Duckworth, nor did there appear to be a conflict of interest among the co-defendants. Id.

Accordingly, the court found no abuse of the trial court’s discretion in denying the motion

to sever. Id.

¶35. More recently, in Pope, J’Var Pope and Robert Hart were charged with capital

murder, aggravated assault and armed robbery for allegedly killing Jerry Lee Lewis, and

shooting Eugene Weathersby and Mitchell Weathersby while attempting to rob these men.

Pope, 330 So. 3d at 416 (¶10). When arrested, Hart was wearing a Mississippi Department

of Corrections ankle monitor. Id. at 416 (¶8). After his conviction, Pope appealed the trial

court’s denial of his motion to sever. Id. at 424 (¶67). This Court cited the factors to be

analyzed when considering a severance motion, see above, and noted that “[t]he denial of a

severance only becomes error when the defenses of the co-defendants are adverse to one

another.” Id. at (¶66) (citing Rigby v. State, 485 So. 2d 1060, 1061 (Miss. 1986)). Pope

argued that he was prejudiced by testimony from a witness, Bowie, who stated that the day

before the crime, he had spoken to both Pope and Hart. Id. at (¶67). Bowie testified that

Hart had told him of his plans to commit a robbery, and although Hart did most of the

talking, Pope was present and said he knew where to get a gun. Id. In finding no merit to

Pope’s severance argument, we stated, “[L]ooking at Bowie’s testimony[,] Hart’s statements

did not exonerate him, at all, much less at the expense of inculpating Pope. Rather, the

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statements inculpate Hart and Pope equally.” Id. at (¶68). Pope also pointed to the evidence

about Hart’s GPS monitor, but we held that this evidence did not tend to exculpate Hart at

Pope’s expense either. Id. at (¶69).

¶36. In this case, Harris claimed that there were pre-trial statements given that exculpated

Hibbler or Ladd and inculpated Harris. However, Hibbler never gave a statement to law

enforcement during the investigation of the case at all. Although Ladd did, the State assured

the court that it did not intend to use any pre-trial statement and further agreed to sever

Ladd’s case. Harris also gave a statement which the State characterized as being “couched

on an alibi and hearsay information of who may have committed the acts.”4 Harris’s

statement then did not inculpate the co-defendants at the expense of one over the other. The

defenses of both Harris and Hibbler remained the same: a denial of guilt for the crime. At

trial, neither defendant testified or introduced any evidence that would place more blame on

one defendant than the other. Rather, the proof showed that both Harris and Hibbler shot in

the direction of Vardaman, only to strike Pige instead.

¶37. Harris and Hibbler each presented a similar defense and trial strategy. They cross-

examined witnesses, attacking their credibility and ability to recall facts. They noted

deficiencies in the police investigation, for example, the failure to perform a gun residue test

on either defendant. Neither presented any testimony to undermine the defense of the other,

4
Harris’s statement does not appear in the record, although the State included its
impression of its contents in its response to Harris’s motion to sever.

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nor was there any inconsistency between their respective defenses. Accordingly, because

there was no testimony, either direct or through the introduction of a statement, by which it

could be said that Hibbler sought to exculpate himself at Harris’s expense, and because the

evidence did not show more guilt as to one than the other, Harris failed to present evidence

to warrant a severance. Accordingly, we find no abuse of discretion by the circuit court in

denying Harris’s motion to sever.

II. Whether the verdict is against the overwhelming weight of the
evidence.

¶38. Harris next contends that the jury’s verdict was contrary to the overwhelming weight

of the evidence, warranting reversal. In Mayfield v. State, 422 So. 3d 956, 961 (¶16) (Miss.

2025), the Mississippi Supreme Court succinctly summarized the principles for us to follow

in our analysis of Harris’s claim.

When reviewing a claim that the verdict was against the overwhelming weight
of the evidence, this Court should “view the evidence in the light most
favorable to the verdict[.]” Little v. State, 233 So. 3d 288, 289 (Miss. 2017).
The Court should not disturb the jury’s verdict unless “it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction
an unconscionable injustice.” Id. On review, the Court should not reweigh the
evidence, assess witness credibility, or resolve conflicting evidence as these
are the jury’s responsibilities. Id. This Court has previously held that “[t]he
jury determines the weight and credibility to give witness testimony and other
evidence.” Moore [v. State], 933 So. 2d [910,] 922 [(Miss. 2006)] (citing
Johnson v. State, 904 So. 2d 162, 167 (Miss. 2005)). If the evidence justifies
a verdict, we must accept it “as having been found worthy of belief.” Id.
(internal quotation mark omitted) (quoting Davis v. State, 568 So. 2d 277, 281
(Miss. 1990)).

¶39. Harris and the State both identify testimony in the record to support their positions of

19
either guilt or innocence. Harris points out that only one of the three eyewitnesses, Conley,

could identify him without assistance (e.g., Stevenson admitted he had seen Harris and

Hibbler’s photographs on the sheriff’s website prior to picking them out of the photo line-

up). But in Price v. State, 361 So. 3d 105, 116 (¶43) (Miss. Ct. App. 2022), we upheld a

jury’s verdict with only one witness identifying the shooter. Moreover, at trial, Stevenson

testified that he could identify Harris regardless of whether he had seen the website photos.

Harris argues that Conley knocked Stevenson down in the melee that followed the initial

shots, so Stevenson could not see what was happening. But as the State points out, this was

for merely two or three seconds. “Unless testimony necessary to support the jury’s verdict

is so implausible or so substantially impeached as to be unworthy of belief, the jury’s

decisions in such matters is beyond the authority of a reviewing court to disturb.” Id. at 117

(¶43). The three eyewitnesses’ testimony in this case was not implausible or substantially

impeached in this manner.

¶40. Harris further argues that there was no gun residue evidence entered. However, “the

absence of physical evidence does not negate a conviction where there is testimonial

evidence.” Pritchett v. State, 134 So. 3d 857, 861 (¶13) (Miss. Ct. App. 2014). Harris also

contends that there was no proof of a conspiracy or that Harris and Hibbler planned the

shooting. However, the proof showed that Harris and Hibbler acted together in shooting at

Vardaman. Jackson and Stevenson testified that they saw Harris pass the gun to Hibbler, and

both fled the scene together. It was uncontested that both Harris and Hibbler shot in

20
Vardaman’s direction and that some bullet from the combined shooting killed Pige.

Considering all the evidence, and keeping in mind the province of the jury and the limits of

our review, we cannot say that allowing the jury’s verdict to stand would be sanctioning an

unconscionable injustice. Accordingly, we find no merit to this issue.

III. Whether the prosecutor’s comments in closing arguments
constituted misconduct that created unjust prejudice against
Harris.

¶41. Harris next argues that comments made by the prosecutor during closing arguments

were so prejudicial that his conviction should be overturned. In response, the State first

contends that Harris waived this issue by failing to object when the comments were made.

Notwithstanding this waiver, the State contends that the prosecutor’s comments were not so

inflammatory as to be improper or prejudicial.

¶42. “Traditionally, attorneys are given wide latitude in closing arguments.” Forbes v.

State, 771 So. 2d 942, 950 (¶23) (Miss. Ct. App. 2000). A party who fails to make a

contemporaneous objection is procedurally barred from raising prosecutorial misconduct on

appeal unless he can show plain error. Spiers v. State, 361 So. 3d 643, 662 (¶69) (Miss.

2023). Plain error, when applied to closing arguments, occurs “when the substance of the

statement is ‘out of bounds for closing arguments.’” Id. at (¶70) (quoting Boyd v. State, 977

So. 2d 329, 337 (Miss. 2008)). “To determine whether the statement was out of bounds, we

must find that the ‘prosecutor’s statement was so inflammatory that the trial judge should

have objected on his own motion.’” Id. (quoting Ambrose v. State, 254 So. 3d 77, 130 (¶167)

21
(Miss. 2018)). “Given the latitude afforded an attorney during closing argument, any

allegedly improper prosecutorial comment must be considered in context, considering the

circumstances of the case, when deciding on their propriety.” Rodriguez v. State, 413 So. 3d

646, 656 (¶31) (Miss. Ct. App. 2025) (quoting Ballenger v. State, 667 So. 2d 1242, 1270

(Miss. 1995) (quoting Ahmad v. State, 603 So. 2d 843, 846 (Miss. 1992))).

¶43. In the case at hand, Harris challenges statements made by the prosecutor in closing

argument. Anticipating that the defense attorney would argue that the eyewitnesses could

not recollect details, such as Conley’s failure to remember what side of the street cars were

parked on, the prosecutor stated:

Does that matter? Seriously, does that matter? This lady is leaving church
worshipping and loses her life. I said to you that’s not the conduct [street
shootings] that should be allowed in Tunica County. That’s not appropriate.
No matter what anybody tells you; there is a lot going on here.

The prosecutor ended by stating:

I said this, and I will say it again, I don’t apologize for being passionate about
this case. And I never will. This is senseless. This is conduct that should not
be tolerated. These defendants deserve to be found guilty.

However, Harris did not object to either statement; thus his claim of prosecutorial

misconduct is procedurally barred.

¶44. To get around this bar, Harris argues that the prosecutor’s comments amounted to

improper “send-a-message” comments that constituted plain error because they were so

inflammatory that the court should have objected on its own. “A‘send-the-message’ argument

is one that encourages juries to use their verdict to ‘send a message’ to the public or to other

22
potential criminals, instead of rendering a verdict based solely on the evidence introduced

at the trial of that case.” Porter v. State, 418 So. 3d 1287, 1311 (¶72) (Miss. Ct. App. 2025).

For example, in Forbes, 771 So. 2d at 950 (¶27), we held that it was error to urge jurors to

consider that “the verdict you return is going to be reflective of the conscience of this

community.” However, in this case, the prosecutor’s comments were not urging the jury to

send a message to anyone. The prosecutor was not asking the jury to speak for the

community, or to other criminals, nor was he asking the jury to disregard the evidence to

uphold a community value. The prosecutor merely voiced, based on the facts of the case,

what conduct should and should not be allowed under the law.

¶45. In addition, the “test for determining [whether an] improper argument by the

prosecutor to the jury requires reversal is[] whether the natural and probable effect of the

improper argument of the prosecuting attorney is to create an unjust prejudice against the

accused as to result in a decision influenced by the prejudice so created.” Davis v. State, 660

So. 2d 1228, 1248 (Miss. 1995). Harris has presented no evidence or credible argument

concerning how these comments prejudiced the jury. In fact, the jury’s note during

deliberations indicated that they had all agreed on the issue of guilt and were only divided

on the extent of his sentence. Accordingly, we find no merit to Harris’s claim that

prosecutorial misconduct based on these comments warranted reversal.

IV. Whether jurors’ withholding information during voir dire
constituted juror misconduct warranting reversal.

¶46. Harris argues that two jurors failed to answer unambiguous questions during voir

23
dire,5 including if anyone knew any party involved or knew any facts about the case, when,

in fact, they had significant connections to the victim and the victim’s family. According to

Harris, these two jurors, Juror 10 and Juror 2, should have disclosed their connections, and

their failure to do so prejudiced the outcome, warranting reversal.

¶47. Harris raised juror misconduct in his motion for JNOV and attached copies of several

Facebook posts to support his claims. These posts included a statement by Pige’s mother

about missing her daughter and photographs of other events, including unidentified persons.

No affidavits were attached to the motion to authenticate the attachments or explain the

posts’ meaning or significance. The circuit court found that Harris had provided insufficient

evidence of any alleged jury misconduct. In essence, the circuit court found that Harris’s jury

was fair and impartial, a ruling that on appeal we will only disturb unless it appears from the

record that the court was clearly wrong. Watts v. State, 350 So. 3d 613, 618 (¶19) (Miss.

2022).

¶48. Harris argues that the juror misconduct here consisted of these two jurors allegedly

failing to answer questions during voir dire. This Court has developed the following test

when faced with post-trial claims of juror misconduct stemming from non-responsiveness

during voir dire:

[T]he trial court should, upon motion for a new trial, determine whether the
question propounded to the juror was (1) relevant to the voir dire examination;

5
In his motion for JNOV, Harris alleged misconduct by three jurors, including Juror
4. On appeal, Harris does not include Juror 4 in his argument.

24
(2) whether it was unambiguous; and (3) whether the juror had substantial
knowledge of the information sought to be elicited. If the trial court’s
determination of these inquiries is in the affirmative, the court should then
determine if prejudice to the defendant in selecting the jury reasonably could
be inferred from the juror’s failure to respond. If prejudice reasonably could
be inferred, then a new trial should be ordered. It is, of course, a judicial
question as to whether a jury is fair and impartial and the court’s judgment will
not be disturbed unless it appears clearly that it is wrong.

Id. at (¶20).

¶49. In this case, the court asked the venire:

Is anyone related by blood or marriage to Dontarrius Hibbler and Anfernee
Harris, Little Mack, Thiro, Hibbler DT or Sky, Skyeesha Pige?

Juror 24 on the venire was the only person to respond concerning her relationship with Pige.

She told the court that she was Pige’s cousin, but she said she could still be fair. The court

refused to strike Juror 24 for cause, and Harris used one of his preemptory strikes to strike

her. In his JNOV motion, Harris claimed that two other jurors failed to respond to this

question: Juror 10, whose nieces attended court every day and sat with the victim’s sisters,

and Juror 2, who failed to disclose that her cousin Tyrone was in a personal relationship with

one of the victim’s sisters. Harris claims their failure to respond constituted juror

misconduct. However, looking at the first prong of the misconduct test, the court’s question

clearly and unambiguously asked for any relations “by blood or marriage” to Skyeesha Pige.

Neither Jurors 10 or 2 had such a relation. So while they may have had other connections

with Pige that could have been disclosed in response to different question, neither failed to

answer the question posed by the court.

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¶50. Moreover, the transcript reveals that no one asked the venire if they had any other

contacts or connections to the victim. There was no question asked that would have required

Juror 10 to disclose that his nieces were apparently friends with Pige’s sister, or that would

have elicited Juror 2’s information that her cousin had a relationship with one of the victim’s

sisters. The only “catch all” question came from the court when it asked,

Does anyone who have [sic] not already spoken have a reason why they cannot
serve as fair and impartial juror in this case?

However, this question left it to the jurors to assess their own information and determine if

they should or should not serve. Jurors 10 and 2 had no obligation to respond unless they felt

they could not be fair and impartial.

¶51. Accordingly, because there was no question asked that Jurors 10 and 2 failed to

respond to, Harris cannot establish the first element of juror misconduct, the failure by a juror

with substantial knowledge to respond to an unambiguous question. Accordingly, we find

no merit to the issue of juror misconduct.

V. Whether the jury improperly sentenced Harris to life
imprisonment, i.e., whether the court erred in sentencing Harris
without a sentencing hearing.

¶52. Harris asserts that he was entitled by statute to a separate sentencing hearing before

being sentenced to life in prison. Thus, because the jury was given the option of finding him

guilty and fixing the penalty at life imprisonment in the guilt stage of his trial, his life

sentence was improperly imposed.

¶53. Harris was charged and tried for the second-degree murder of Pige in violation of

26
Mississippi Code Annotated section 97-3-19(1)(b) (Rev. 2020), which provides as follows:

(1) The killing of a human being without the authority of law by any means or
in any manner shall be murder in the following cases:

....

(b) When 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, shall be
second-degree murder[.]

Mississippi Code Annotated section 97-3-21(1)(b) (Rev. 2020) sets out the punishment for

defendants found guilty of second-degree murder:

(1) Except as otherwise provided for a juvenile offender in subsection (2) of
this section, every person who is:

....

(b) Convicted of second-degree murder shall be imprisoned for life in the
custody of the Department of Corrections if the punishment is so fixed by the
jury in its verdict after a separate sentencing proceeding. If the jury fails to
agree on fixing the penalty at imprisonment for life, the court shall fix the
penalty at not less than twenty (20) nor more than forty (40) years in the
custody of the Department of Corrections.

¶54. In this case, the court’s instruction concerning the verdict gave the jury three options:

finding Harris not guilty, finding Harris guilty and fixing his punishment at life in prison, or

finding Harris guilty but being unable to fix his punishment at life in prison. The instruction

was proposed by the State, and given without objection by Harris. During deliberations, the

jury posed a question, “If jury can’t decide on life, does the judge decide the number of years

of the sentence?” The court told the jury it could give them no further instructions. The jury

27
resumed deliberations and found Harris guilty of second-degree murder, fixing the penalty

at life in prison. The jury was polled and all agreed to the verdict.

¶55. After the verdict and the dismissal of the jury, the record reflects that the court and

counsel conferred about “a sentencing hearing.” Hibbler’s attorney questioned the court’s

sentencing authority and “further discussion ensued.” Although we asked for the transcript

of that discussion, the court indicated that it was off the record. Therefore, we do not know

if, after the fact, either defendant’s attorney objected to the sentence. However, we do know

that Harris’s attorney did not raise the form of the verdict instruction or challenge being

sentenced to life imprisonment without a separate hearing in his JNOV motion. In Fulks v.

State, 944 So. 2d 79, 85 (¶14) (Miss. Ct. App. 2006) (citing Peterson v. State, 740 So. 2d

940, 949 (¶30) (Miss. Ct. App. 1999)), we held that “objections to [a] sentence cannot be

made initially on appeal.” Because Harris did not object to the instruction or challenge the

validity or constitutionality of his sentence to the circuit court below, we find that Harris is

procedurally barred from raising those issues on appeal.

VI. Whether the court erred in summarily denying Harris’s motion for
JNOV.

¶56. Harris finally claims that the circuit court erred by not conducting further investigation

into his juror misconduct claims and holding a hearing. “We review the trial court’s

decisions concerning jury influence for an abuse of discretion.” Grimes v. State, 361 So. 3d

179, 189 (¶24) (Miss. Ct. App. 2023).

¶57. When a defendant raises allegations of juror misconduct, “[t]he trial court first

28
determines whether an investigation is warranted.” Murry v. State, 218 So. 3d. 303, 307

(¶17) (Miss. Ct. App. 2017). In cases where there is a claim of external influence, “[a]n

investigation is warranted if the trial judge finds that good cause exists to believe that there

was in fact an improper outside influence or extraneous prejudicial information.” Id.

(internal quotation marks omitted). “The trial court’s inquiry stops if it finds no threshold

showing of external influence.” Id.

¶58. “In order for the duty to investigate to arise, the party contending there is misconduct

must make an adequate showing to overcome the presumption . . . of jury impartiality.”

Grimes, 361 So. 3d at 189 (¶25) (citing Gladney v. Clarksdale Beverage Co., 625 So. 2d 407,

418-19 (Miss. 1993)). “Although a minimal standard of a good cause showing of specific

instances of misconduct is acceptable, the preferable showing should clearly substantiate that

a specific, non-speculative impropriety has occurred.” Id.

¶59. Harris argues that he attached documents to his JNOV motion to substantiate his

claims of jurors failing to disclose information to the court. However, as previously noted,

the undated Facebook pages merely show photographs and a comment to a post by the

victim’s mother. Harris provided no affidavits to authenticate the materials or explain the

meaning or significance of the Facebook postings. Merely alleging information about the

two jurors does not establish that the allegations are true in fact. “Statements by attorneys

are not evidence.” Wackenhut Corp. v. Fortune, 87 So. 3d 1083, 1092 (¶27) (Miss. Ct. App.

2012). Moreover, Harris provided no evidence that these jurors were biased or did not act

29
fairly and impartially. Thus, we find no error in the circuit court’s summary dismissal of

Harris’s motion for JNOV since there was no showing of a need for a hearing on the issues

of juror misconduct.

Conclusion

¶60. Finding no merit to any issue that is not procedurally barred, we affirm the jury’s

verdict of guilty and the sentence of life imprisonment imposed by the court.

¶61. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS,
LAWRENCE, McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ.,
CONCUR.

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