Jonathan Earl Herrington v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-KA-01376-COA

JONATHAN EARL HERRINGTON A/K/A APPELLANT
JONATHAN HERRINGTON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/08/2016
TRIAL JUDGE: HON. VERNON R. COTTEN
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/10/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

CARLTON, J., FOR THE COURT:

¶1. A Neshoba County grand jury indicted Jonathan Herrington for the deliberate-design

murder of Billy Scott Bishop. See Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2014). Following

Herrington’s trial, a jury convicted him of manslaughter. See Miss. Code Ann. § 97-3-35

(Rev. 2014). The Neshoba County Circuit Court then sentenced Herrington to twenty years

in the custody of the Mississippi Department of Corrections (MDOC). See Miss. Code Ann.

§ 97-3-25(1) (Rev. 2014).

¶2. On appeal from his conviction and sentence, Herrington raises the following issues:
(1) whether the circuit court erred by admitting improper opinion testimony; (2) whether the

circuit court erred by admitting Kimberly Gentry’s four written pretrial statements; (3)

whether insufficient evidence supported the verdict; (4) whether the verdict was against the

overwhelming weight of the evidence; and (5) whether resentencing or sentence clarification

is needed.1

¶3. Finding no error, we affirm Herrington’s conviction and sentence.

FACTS

¶4. Around 4 a.m. on October 16, 2014, Deputy Jessie Hamilton with the Neshoba County

Sheriff’s Department responded to a call about a disturbance and a shooting that had

occurred at Herrington’s residence almost two hours earlier around 2 a.m. Upon arriving at

Herrington’s mobile home, Deputy Hamilton encountered Herrington, who was sitting on his

back porch and bleeding from a cut under his eye. At trial, Deputy Hamilton testified as to

what Herrington said occurred prior to, during, and after Bishop’s shooting.

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Herrington’s judgment of conviction was signed on August 8, 2016, and filed on
August 15, 2016. Under Rule 4(a) of the Mississippi Rules of Appellate Procedure,
Herrington had thirty days to timely file his notice of appeal. The record shows that
Herrington submitted his motion for appeal to the circuit court prior to the thirty-day
deadline. Also prior to the expiration of the thirty-day deadline, the circuit court heard
Herrington’s motion and signed an order granting his appeal and his request for in forma
pauperis status. However, Herrington’s appeal was not filed with the circuit court clerk until
after the expiration of the thirty-day deadline. Even so, we may suspend Rules 2 and 4 of
the Mississippi Rules of Appellate Procedure to allow an out-of-time appeal in a criminal
case. See Wells v. State, 73 So. 3d 1203, 1207 (¶8) (Miss. Ct. App. 2011). As reflected by
its grant of Herrington’s appeal and request for in forma pauperis status, the circuit court
found Herrington’s appeal to be timely. Thus, in the interests of justice, we allow his appeal
to proceed, and we address the merits of his assignments of error. See id.

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¶5. According to Deputy Hamilton’s testimony, Herrington stated he was lying in his bed

when Bishop walked into his bedroom and attacked him. Herrington claimed that Bishop

entered his bedroom holding a cell phone and told Herrington the caller wanted to speak to

him. After taking the phone, Herrington reported that Bishop jumped on top of him and

began hitting him. Herrington said he tried to push Bishop away and then noticed Bishop

reaching for a pistol. Herrington told Deputy Hamilton that he then reached for his own

pistol, which he kept under his pillow. Herrington stated that he fired at Bishop twice and

that Bishop fell over but kept trying to come toward him. As a result, Herrington said he shot

Bishop a third time. Herrington further told Deputy Hamilton that he placed all the guns

involved in the incident on the kitchen table.

¶6. Upon entering Herrington’s residence, Deputy Hamilton saw Gentry sitting in the

living room. As Herrington had stated, Deputy Hamilton found three guns on the kitchen

table: Herrington’s .38 revolver, Gentry’s .380 pistol, and the .357 revolver that Herrington

claimed was in Bishop’s possession. Consistent with what Herrington had told him, Deputy

Hamilton removed three spent rounds from Herrington’s .38 revolver. Deputy Hamilton

removed one spent round from the .357 revolver, and he unloaded the magazine and one

bullet from the chamber of Gentry’s .380 pistol.

¶7. When he entered Herrington’s bedroom, Deputy Hamilton observed Bishop lying on

his back halfway across the bottom corner of the bed. Deputy Hamilton also noted blood

stains in the center of the mattress. Deputy Hamilton testified that “[m]ost of the blood that

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was on . . . Bishop was in the facial area[, a]nd the spot in the middle of the bed was

coagulated blood.” After overruling the defense’s objection, the circuit court allowed Deputy

Hamilton to testify that, based on his observations, he believed Bishop had lain face down

in the center of the mattress at one point but that his body had later been rolled over and

moved to the edge of the bed.

¶8. As further trial testimony reflected, Herrington had met both Bishop and Gentry only

recently before the shooting. Gentry testified that Herrington and Bishop had just started

hanging out the week before the shooting and that the two appeared to get along with each

other. Although Herrington’s house was about fifteen minutes from hers, Gentry stated that

both Herrington and Bishop had been staying with her for almost a week while they all used

crystal methamphetamine and marijuana. Gentry’s then-boyfriend, Jamey Johnson, testified

that he had also been hanging out and using drugs with the group during this time period.

Johnson corroborated Gentry’s testimony that Herrington and Bishop appeared to get along

well with each other.

¶9. Gentry further testified at trial that Herrington left her house the morning of the

shooting and returned to his own home. Gentry stated that Bishop grew angry when he

learned Herrington had left. According to Gentry, Herrington took a stolen gun, a .357

revolver, with him when he left her house, and Bishop was upset because the two men “were

supposed to split whatever came out of [the sale of the gun.]” Gentry also testified that she

received a strange phone call the day of the shooting from an unknown caller. The caller

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allegedly threatened “to blow [Gentry’s] brains out” if Gentry did not stop mentioning

Herrington’s name and hanging out with him. Gentry testified that Bishop called the person

back and warned him or her against threatening Gentry.

¶10. Gentry also testified that, later the same day, she made plans with Herrington to go

to his house. Johnson picked up Gentry and Bishop, and the three drove to Herrington’s

residence. Both Gentry and Johnson testified that Herrington knew they were headed to his

house. When they arrived at Herrington’s residence, Herrington was already there with Billy

Withers and Josh Henley. Although neither Gentry nor Johnson were acquainted with

Withers, they knew Henley. Gentry and Johnson testified that they and Bishop gave Henley

a ride elsewhere and then returned to Herrington’s residence. Upon returning to Herrington’s

residence, Gentry testified that she, Johnson, and Bishop joined Herrington in his bedroom.

¶11. According to Gentry, she received a call from the same number as earlier in the day

when the caller had threatened her. Gentry said that this time the caller asked for Bishop.

Gentry stated that she handed the phone to Bishop, who then tried to give the phone to

Herrington. Although Gentry testified that Herrington refused to take the phone, Johnson

testified that Herrington took the phone and put it on speaker phone. However, both Gentry

and Johnson agreed that a fight ensued between Herrington and Bishop. Gentry and Johnson

testified that Bishop jumped on top of Herrington, who was sitting on his bed. According

to Gentry’s and Johnson’s testimony, Bishop then began to hit Herrington.

¶12. Gentry stated that she wanted to stop the fight. She testified that she went into the

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kitchen, grabbed her .380 pistol from her purse, and fired a single shot in the air away from

Herrington’s bedroom. Upon hearing the shot, Johnson ran from the bedroom to check on

Gentry. Johnson corroborated that he heard Gentry fire only one shot. After seeing that

Gentry was unharmed, Johnson immediately returned to the bedroom, where he saw Bishop

“jumping over the bed” toward Herrington. Johnson testified that Herrington was now sitting

on the floor and that Bishop was “[a]lmost touching” Herrington when Herrington fired two

shots toward Bishop’s head. Gentry, who was still in the kitchen, testified that she also heard

two shots but that she did not witness the actual shooting. After the shooting, Johnson stated

that Bishop lay face down in the middle of Herrington’s bed. Johnson testified that he

grabbed Gentry, and the two drove away in his vehicle.

¶13. While Johnson and Gentry were driving, Herrington called Gentry. Gentry agreed to

meet Herrington at his mother’s house. After Johnson dropped her off, Gentry returned with

Herrington to his residence. Gentry testified that Johnson and Herrington were both

members of the Simon City Royals gang. On the drive back to Herrington’s residence,

Gentry testified that Herrington said he had “earned his teardrop,” which meant he had killed

someone. Gentry further claimed that Herrington told her “[h]e did what he had to do.”

¶14. Gentry testified that she saw no gun in Bishop’s possession the day of the shooting,

and she stated that she saw neither Bishop nor Herrington in possession of a weapon just

before the shooting. Johnson also saw no gun in Bishop’s possession and testified that the

only weapons he saw were those fired by Gentry and Herrington. Although Gentry testified

6
that she, Bishop, and Herrington were not doing drugs the night of the shooting, she stated

that, at the time of the shooting, they were all still under the influence of the drugs they had

taken the previous day.

¶15. According to Gentry, about three hours elapsed between the shooting and when she

and Herrington arrived back at his residence from his mother’s house. Gentry said that

Herrington began gathering up items as soon as they entered his home. Gentry stated that

Herrington went into his bedroom, took a picture of Bishop’s body, and sent the picture to

someone. Gentry further said she overheard a phone conversation Herrington had in which

he stated, “[N]o, we’d have to burn my whole trailer down[] if we did that.” Based on the

context of the conversation, Gentry assumed Herrington and the person on the other end of

the call were talking about trying to get rid of Bishop’s body. Gentry further testified that,

upon returning to Herrington’s residence, she laid her .380 pistol on the kitchen table and that

Herrington laid his .38 revolver and a .357 revolver on the table. Gentry stated that

Herrington retrieved a fourth gun, the stolen .357 revolver, and then left the house to dispose

of the weapon. According to Gentry, Herrington gave her a phone to call 911 and instructed

her as to what to tell the operator.

¶16. During Gentry’s cross-examination, Herrington’s attorney questioned her about four

written pretrial statements she gave to law enforcement. Gentry gave two statements the day

of the shooting on October 16, one statement the day after the shooting on October 17, and

one statement several days later on October 28. The defense cross-examined Gentry about

7
portions of each individual pretrial statement and about any perceived differences between

her pretrial statements and her trial testimony. On redirect, the State moved to admit

Gentry’s pretrial statements into evidence. Over the defense’s objection, the circuit court

admitted all four statements. When asked on redirect about the number of pretrial statements

she gave, Gentry explained that she was in custody following the shooting and was therefore

no longer taking drugs. Gentry testified that the law-enforcement officers “knew [her] clarity

would become better after . . . [she] had more time to calm down from the event.” Gentry

further testified that her memory was still impaired from her drug use when she gave her

statements on October 16 and 17. However, she stated that she was no longer impaired when

she gave her final statement on October 28.

¶17. The jury also heard testimony from Investigator Kevin Baysinger with the Neshoba

County Sheriff’s Department. Investigator Baysinger stated that he responded to a call on

October 16 about someone being shot after breaking into a house. After arriving at

Herrington’s residence, Investigator Baysinger photographed the scene and collected

evidence. Investigator Baysinger testified that he recovered a spent shell casing from

Gentry’s .380 pistol by the kitchen garbage can. Consistent with Deputy Hamilton’s

testimony, Investigator Baysinger noted that Herrington’s .38 revolver had three spent shell

casings. Investigator Baysinger found one spent projectile from Herrington’s .38 revolver

on the bedroom floor close to Bishop’s body. As later testimony revealed, two more spent

projectiles from Herrington’s .38 revolver were recovered from Bishop’s body during the

8
autopsy. In addition to the shell casings and projectiles, Investigator Baysinger collected a

hat with a hole in the back of it from near the foot of the bed.

¶18. Investigator Baysinger testified that after waiving his rights, Herrington gave a written

statement to law enforcement on October 20. In his statement, Herrington said that he was

lying in his bed when Bishop attacked him without warning. Herrington wrote that Bishop

“handed me the phone with some unknown person yelling[,]” and then Bishop “began to hit

me in my face constantly[.]” Herrington’s statement said he felt he had no choice other than

to defend himself against Bishop’s attack. According to the statement, Bishop was on top

of Herrington when Herrington saw Bishop reach for a .357 revolver. Herrington wrote that

he pulled his own gun, a .38 revolver, from beneath his pillow and “fired twice directly

toward[] [Bishop’s] facial area.” Herrington further stated that Bishop was still on his legs

and moving when he “fired the third and final shot to the direct center of the back of

[Bishop’s] head.”

¶19. Although both Herrington and Gentry admitted handling the guns found on the

kitchen table, and although Herrington told law enforcement that Bishop had the .357

revolver in his possession, Investigator Baysinger testified that no prints were recovered from

any of the weapons. Investigator Baysinger further testified that, in his experience, this was

odd for a crime scene. In addition, Investigator Baysinger stated that, other than Herrington’s

pretrial statement, no evidence linked the .357 revolver to Bishop or indicated that Bishop

had ever had the weapon in his possession.

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¶20. During his testimony, Investigator Baysinger confirmed that law enforcement

recovered a fourth gun, another .357 revolver, from the home of Herrington’s mother and

stepfather. Investigator Baysinger testified that Gentry told law enforcement the gun

belonged to her father and had been stolen from her residence. Investigator Baysinger also

testified that the list of items removed from Bishop’s body and returned to his family

included a black-handled knife with a sheath and two pocket knives.

¶21. Dr. John Davis, who performed Bishop’s autopsy, testified that he observed two shots

to the back of Bishop’s head and one shot to his chest. Dr. Davis stated that the shot fired

at Bishop’s torso traveled from front to back at a downward angle. Dr. Davis recovered the

bullet that caused the torso wound. As for the two shots to the back of Bishop’s head, Dr.

Davis testified they were so close in proximity they entered Bishop’s skull through one

common defect and then traveled on inseparable wound paths. Although he recovered one

of the bullets fired at the back of Bishop’s head, Dr. Davis stated that the second bullet exited

Bishop’s body. Dr. Davis further said that any of the three shots, taken individually, would

have been fatal to Bishop. Depending on Bishop’s overall health and fitness, however, Dr.

Davis testified that it could have taken several seconds to a few minutes for Bishop to

succumb to his injuries. Dr. Davis also stated that Bishop was alive when all three shots

were fired, and he opined that all three shots were fired close together in a relatively short

amount of time.

¶22. According to the forensics expert who conducted a ballistics test on the two bullets

10
recovered from Bishop’s body, both were fired from Herrington’s .38 revolver. The jury also

heard testimony that an alcohol and drug screen revealed the presence of methamphetamine,

amphetamine, diazepam, and nordiazepam in Bishop’s blood. Although Bishop was under

the influence of these drugs at the time he died, the expert who conducted the analysis could

not say to what extent the drugs affected Bishop.

¶23. During the defense’s case-in-chief, Withers, who was also present at Herrington’s

residence at the time of the shooting, testified on Herrington’s behalf. Withers stated that he,

Henley, and Herrington were at Herrington’s residence when the others arrived. Withers

corroborated that Gentry, Bishop, and Johnson gave Henley a ride elsewhere. After they left,

Withers testified that he locked the front and back doors of Herrington’s residence. Withers

then fell asleep in Herrington’s living room while Herrington remained in his bedroom

talking on his phone.

¶24. According to Withers, he later awoke to a scuffle and saw two people beating

Herrington. Withers stated that he got up to help Herrington when a woman fired a gun at

him twice. Withers stated that he then ran out the front door of Herrington’s residence and

hid in the woods. After hiding in the woods about five minutes, Withers testified that he

heard two more shots in quick succession, and then he heard a truck drive away. About three

minutes later, Withers exited the woods and saw Herrington walking out of his residence.

Withers testified that Herrington had a gash on his head and was holding what appeared to

be a .38 revolver. Withers rode with Herrington to Herrington’s mother’s house, and then

11
Withers ran by foot to someone else’s home. Withers testified that he never saw drugs or

anyone using drugs while at Herrington’s house.

¶25. Herrington’s mother, Linda Jones, also testified during the defense’s case-in-chief.

Jones testified that Herrington showed up at her house around 2 a.m. on October 16, bleeding

from injuries to his face. Jones further stated that, after Gentry arrived at her house, Gentry

and Herrington left together around 3:30 a.m. Jones claimed she had no knowledge of the

.357 revolver law enforcement found when they searched her home after the shooting.

¶26. Finally, Herrington testified on his own behalf. Herrington confirmed that he met

Gentry a few days prior to the shooting. He denied, however, that he had stayed at Gentry’s

house for several days and had used drugs with her, Johnson, and Bishop. Herrington also

testified that Bishop had sent him a threatening text message the day before the shooting, and

he denied knowing that Gentry, Johnson, and Bishop planned to come to his house the

evening before the shooting. According to Herrington, he never invited them to his house.

In addition, Herrington testified he was unaware that Johnson, Gentry, and Bishop planned

to return to his residence after they gave Henley a ride somewhere else. In fact, Herrington

testified that, after the others left, he asked Withers to lock the doors to his home. He

testified that he and Withers then went to sleep.

¶27. Herrington testified that he was asleep when his bedroom lights later turned on and

revealed Gentry, Johnson, and Bishop standing in his bedroom. Herrington said that Bishop

tried to hand him a cell phone, and he (Herrington) could hear the person on the other end

12
shouting. Herrington testified that he refused to take the phone, and that Bishop, and perhaps

Johnson, jumped on top of him and began hitting him. Herrington further testified that he

noticed Bishop had a .357 revolver and a black-sheathed knife stuck in the waistband of his

pants. Herrington claimed that he saw Bishop reach for the .357 revolver. Testifying that

he feared for his life, Herrington said he grabbed his own firearm from under his pillow and

fired twice at Bishop. Although Bishop fell in his lap, Herrington stated he was afraid

Bishop would still try to use the .357 revolver to shoot him. As a result, Herrington testified

that he fired a third shot at the back of Bishop’s head. Herrington claimed the third shot was

the only one he fired at the back of Bishop’s head, and he said he could not explain the

autopsy results showing a second shot to the back of Bishop’s head. Herrington further

testified, however, that he thought he heard someone else fire two shots before he ever fired

his weapon at Bishop.

¶28. After firing the third shot at Bishop, Herrington stated that he slid from underneath

Bishop and took the bullets out of both his and Bishop’s guns before placing the weapons

on the kitchen table. Herrington testified that he encountered Withers outside his house, and

he drove them both to his mother’s home. Withers then left, and Herrington waited for

Gentry to arrive. Herrington stated that he arrived at his mother’s house around 2 a.m. After

Gentry arrived, Herrington testified that she rode back with him to his house, where they

contacted law enforcement. Herrington stated he also retrieved Gentry’s gun, unloaded it,

and placed it on the table with the other two weapons.

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¶29. According to Herrington, he obtained a fourth gun, a .357 revolver, from a man named

Wade Pilgrim. Herrington testified that he planned to buy the gun from Pilgrim for $300 and

then trade the gun to his stepfather for another weapon. Herrington testified that the gun was

given to his stepfather a day or two prior to the shooting, and he denied that he took the gun

to his mother and stepfather’s house immediately after Bishop’s shooting to hide it.

Following Herrington’s testimony, the defense rested.

¶30. After hearing all the evidence and testimony, the jury convicted Herrington of

manslaughter, and the circuit court sentenced him to twenty years in MDOC’s custody.

Herrington subsequently filed an unsuccessful motion for a new trial. Aggrieved by his

conviction and sentence, Herrington appeals.

DISCUSSION

I. Whether the circuit court erred by admitting improper opinion
testimony.

¶31. The State asserted at trial that Herrington tampered with evidence before he alerted

authorities about the shooting. During Deputy Hamilton’s direct examination, the State

elicited testimony from Deputy Hamilton that he believed Bishop’s body was moved after

the shooting. On appeal, Herrington contends the circuit court erred by admitting this

improper opinion testimony. Based on this alleged error, Herrington requests a new trial.

¶32. This Court reviews the trial court’s admission or exclusion of evidence for abuse of

discretion. Cooper v. State, 200 So. 3d 1065, 1074 (¶32) (Miss. Ct. App. 2016). In the

present case, Deputy Hamilton testified as a lay witness and was never tendered as an expert.

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“Rule 701 of the Mississippi Rules of Evidence allows a lay witness to give opinion

testimony in certain limited circumstances.” Ramer v. State, 156 So. 3d 919, 921 (¶8) (Miss.

Ct. App. 2014). As this Court has previously explained:

Under Rule 701, if the witness is not testifying as an expert witness, his
testimony in the form of opinions or inferences is limited to those opinions or
inferences that are rationally based on his perception, and helpful to the clear
understanding of his testimony or the determination of a fact in issue.
Additionally, Rule 701 requires that the witness’s testimony must not be based
on scientific, technical, or other specialized knowledge.

Ramer, 156 So. 3d at 921-22 (¶8) (internal quotation marks omitted).

¶33. During the State’s direct examination of Deputy Hamilton, the following exchange

occurred:

Prosecutor: Deputy Hamilton, looking at that picture that was just
entered into evidence[, i]t looks like there’s one spot [on
the mattress] with blood and a splatter; is that correct?

Deputy Hamilton: Yes, sir.

Prosecutor: Were you able to gather anything from that [pattern?]

....

Defense Attorney: I would object. He’s not qualified to give an opinion as
to blood splatter or—

The Court: I would say the question does not require that level of
expertise. . . . Objection is overruled.

Deputy Hamilton: In my opinion, it appeared that the body may have been
laid across the bed at that point and then moved
afterward.

Prosecutor: Okay. Explain to us what you mean[.]

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 Deputy Hamilton: Most of the blood that was on . . . Bishop was in the
facial area. And the spot in the middle of the bed was
coagulated blood. So I would assume that his face was
actually on that spot at one time.

Prosecutor: Okay. And when you got [to the crime scene], his face
wasn’t there?

Deputy Hamilton: No, sir. He was [lying] on his back across the bed when
I arrived.

Prosecutor: In the position where you found him, was there much
blood pooled around him?

Deputy Hamilton: It was . . . on the floor, from his facial area.

Prosecutor: So you believe that the body was face down in that one
spot—

Deputy Hamilton: At one point. Yes.

Prosecutor: —and then rolled over?

Deputy Hamilton: Yes.

Prosecutor: But you don’t know?

Deputy Hamilton: I don’t know for sure if that’s what happened, but that’s
what it appeared to me.

¶34. As previously stated, Herrington argues that Deputy Hamilton’s testimony constituted

improper opinion testimony. Herrington asserts that Deputy Hamilton’s testimony delved

into crime-scene forensics and reconstruction—areas that require specialized knowledge not

possessed by the average person. Upon review, we disagree.

¶35. In Smith v. State, 725 So. 2d 922, 925 (¶7) (Miss. Ct. App. 1998), the trial court

16
admitted an officer’s testimony “that the shoe print he observed on the kicked-in back door

of the victim’s house was, in his opinion, of the ‘same pattern’ as that found on the sole of

a pair of shoes he observed at [the defendant’s] house.” In finding the officer’s testimony

admissible under Rule 701, this Court held the officer’s observations about shoe-print

patterns required no “specialized knowledge to assist the trier of fact.” Smith, 725 So. 2d at

925-26 (¶7). Instead, we concluded that the officer’s “testimony was nothing more than his

first-hand observation, rationally based on his personal perceptions[,]” and that his opinion

was “helpful to the jury in resolving [an] important factual issue” in the case. Id. at 926 (¶7).

¶36. In the present case, Deputy Hamilton testified that, upon arriving at the crime scene,

he observed most of the blood on Bishop’s body around his “facial area.” Deputy Hamilton

also noted a large pool of blood in the middle of Herrington’s mattress. Because Bishop’s

body was lying face up on the mattress rather than by the pool of blood, Deputy Hamilton

opined that Bishop’s body must have been moved at some point. Like in Smith, we find

Deputy Hamilton’s testimony consisted of nothing more than first-hand observations that

were rationally based on his personal perceptions and that required no specialized

knowledge. See id. at 925-26 (¶7). As a result, we find no abuse of discretion in the circuit

court’s admission of the opinion testimony. See Cooper, 200 So. 3d at 1074 (¶32). We

therefore find this issue lacks merit.

II. Whether the circuit court erred by admitting Gentry’s four written
pretrial statements.

¶37. Herrington further argues the circuit court erroneously admitted into evidence

17
Gentry’s four written pretrial statements. According to Herrington, the four pretrial

statements constituted hearsay that unfairly prejudiced him. Herrington also claims that the

State improperly used Gentry’s pretrial statements as substantive evidence to bolster her

testimony. As previously acknowledged, we review the circuit court’s admission of evidence

for abuse of discretion. See id.

¶38. Rule 801(d)(1)(B) of the Mississippi Rules of Evidence provides that a witness’s prior

statement is not hearsay when:

The declarant testifies and is subject to cross-examination about [the] prior
statement, and the statement . . . is consistent with the declarant’s testimony
and is offered to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying . . . .

¶39. Our caselaw further reinforces that a witness’s prior consistent statement is admissible

when the witness’s credibility and veracity have been attacked. Swindle v. State, 755 So. 2d

1158, 1164 (¶14) (Miss. Ct. App. 1999). However, the Mississippi Supreme Court has

explained that “[e]vidence of prior consistent statements made by the witness is not evidence

of the fact testified to by the witness, but may be offered for the sole purpose of supporting

the testimony of the witness whose veracity has been attacked.” Stampley v. State, 284 So.

2d 305, 307 (Miss. 1973). Thus, the supreme court has warned that the admission of a

witness’s prior consistent statement “should be received by the [trial] court with great caution

and only for the purpose of rebuttal so as to enable the jury to make a correct appraisal of the

credibility of the witness.” White v. State, 616 So. 2d 304, 308 (Miss. 1993) (quoting

18
Stampley, 284 So. 2d at 307).

¶40. In Swindle, the defense repeatedly questioned the State’s chief witness on cross-

examination about inconsistencies between his pretrial statement and his trial testimony.

Swindle, 755 So. 2d at 1164 (¶12). On redirect, over the defense’s objection, the trial court

allowed the State to introduce the witness’s pretrial statement into evidence. Id. On appeal,

the defendant claimed the pretrial statement constituted hearsay and improperly bolstered the

witness’s trial testimony. Id. In reviewing the issue, however, the supreme court observed

that the defense had used the pretrial statement to cross-examine the witness and to challenge

his veracity. Id. at (¶15). As a result of the defense’s attack on the witness’s veracity, the

supreme court held the trial court properly admitted the witness’s prior consistent statement

for the limited purpose of determining the witness’s credibility. Id.

¶41. In his concurrence to the majority opinion in Swindle, Judge Southwick observed that,

in ruling upon the issue of the pretrial statement, the trial court simply “determined that[,]

since the defense had already discussed the statement at considerable length, it should be

admitted into evidence.” Id. at 1180-81 (¶69) (Southwick, J., concurring). After discussing

Rule 801(d)(1)(B) regarding prior consistent statements, Judge Southwick explained that

“even a prior consistent statement can be so selectively used as to appear inconsistent. That

concept seems to merge with [Rule 106 of the Mississippi Rules of Evidence,] another

admission[-]of[-]evidence rule[.]” Swindle, 755 So. 2d at 1181 (¶72). Rule 106 provides

that, “[i]f a party introduces all or part of a writing or recorded statement, an adverse party

19
may require the introduction, at that time, of any other part—or any other writing or recorded

statement—that in fairness ought to be considered at the same time.” The comment to Rule

106 explains that “[s]uch a rule attempts to prevent misleading the jury by taking evidence

out of context.”

¶42. According to the Swindle concurrence, “[e]ven if ‘Rule 106 does not necessarily

require that all the remainder of a document’ be admitted, it does not bar admission of ‘that

part which ought in fairness to be considered.’” Swindle, 755 So. 2d at 1181-82 (¶73)

(quoting Washington v. State, 726 So. 2d 209, 216 (¶33) (Miss. Ct. App. 1998)). In fact, the

purpose of Rule 106 is that, “to ‘minimize the inaccuracy of an incomplete presentation of

a record, trial courts have the power to determine whether fairness requires the proponent to

introduce the whole writing’ as relevant to the issues of the case.” Swindle, 755 So. 2d at

1182 (¶73) (quoting Weinstein’s Federal Evidence § 106.02[1] (1998) at 106-5).

Furthermore, the Swindle concurrence stated that, “even if evidence is otherwise

inadmissible, one party can open the door to its admission.” Id. at (¶74) (quoting

Washington, 726 So. 2d at 216 (¶34)). For those reasons, the concurrence agreed with the

majority in Swindle that the trial court properly admitted the witness’s prior consistent

statement. Id. at (¶75).

¶43. In discussing the nature of the pretrial statement, Judge Southwick stated:

[The prior statement] need not be identical in every detail to the trial testimony
to be considered consistent. The test of admissibility is whether a reasonable
mind would accept the central thrust of the prior statement as being consistent
with the witness’s in-court testimony. I also find that even by using the actual

20
 statement that is considered consistent, the defense implicitly charged that
what [the witness] was saying on the stand was different than what he had said
soon after the shooting. That implies recent fabrication. So long as the central
thrust of the prior statement is consistent with the trial testimony, it is a prior
consistent statement even if the cross-examining attorney was attempting to
show that it was not.

Id. (internal citation and quotation marks omitted).

¶44. We find the facts of the instant case are analogous to those presented in Swindle. As

in Swindle, Herrington’s attorney broached the topic of Gentry’s four pretrial statements on

cross-examination and then repeatedly questioned Gentry about any differences existing

between her pretrial statements and her trial testimony. The record reflects that, over the

course of the cross-examination, Herrington’s attorney discussed each of Gentry’s four

pretrial statements, even reading portions of the statements into evidence.

¶45. As a result of the defense’s attempt to discredit Gentry through her pretrial statements,

the State sought to admit the four statements into evidence on redirect. The defense objected,

arguing that the statements improperly bolstered Gentry’s trial testimony. In response, the

State argued, “Your Honor, I would point out that[,] during cross-examination, [the defense]

referred to these four statements and said that each one was a little different. [The defense’s]

classification of the evidence allows the jur[ors] to determine that for themselves.” After

holding that the defense had received the opportunity to fully cross-examine Gentry on each

of her individual pretrial statements, the circuit court concluded that the jury was “entitled

to know the whole story.” As a result, the circuit court overruled the defense’s objection and

admitted Gentry’s four pretrial statements into evidence. Consistent with the circuit court’s

21
holding, the record shows that the defense cross-examined Gentry separately on portions of

each pretrial statement.

¶46. After the admission of Gentry’s pretrial statements, the State asked why Gentry gave

four statements. In response, Gentry explained that the law-enforcement officers questioning

her knew her clarity would be better once she had more time to calm down from the shooting.

Gentry further stated that she was in custody the entire time and no longer using drugs. As

a result, by the date she gave her final statement, she was no longer impaired from her drug

use before the shooting. Following the State’s redirect examination of Gentry, the circuit

court allowed the defense to recross-examine her.

¶47. Upon review, we find no abuse of discretion in the circuit court allowing the State to

introduce the pretrial statements on redirect to support Gentry’s accuracy and credibility. See

Cooper, 200 So. 3d at 1074 (¶32). By cross-examining Gentry on portions of each of her

pretrial statements, Herrington’s attorney challenged her veracity as to each statement. See

Swindle, 755 So. 2d at 1164 (¶15). Furthermore, by using limited portions of each statement,

the defense challenged the consistency of the statements. In reading directly, but selectively,

from Gentry’s prior statements, Herrington’s attorney implied that her trial testimony was a

recent fabrication that differed from her pretrial statements to law enforcement. Id. at 1182

(¶75) (Southwick, J., concurring). However, a review of the entirety of Gentry’s four pretrial

statements establishes that “a reasonable mind [c]ould accept the central thrust of the prior

statement[s] as being consistent with [Gentry’s] in-court testimony.” Id. We therefore find

22
that, not only did the defense open the door to the State’s introduction of Gentry’s pretrial

statements, but as the circuit court ruled, fairness dictated that the jury have access to

Gentry’s complete statements.2 Thus, we find this assignment of error lacks merit.

III. Whether insufficient evidence supported the verdict.

¶48. Herrington challenges the sufficiency of the evidence supporting his manslaughter

conviction. In considering a challenge to the legal sufficiency of the evidence, “we consider

all evidence in the light most favorable to the State[,]” and “[w]e give the State the ‘benefit

of all favorable inferences reasonably drawn from the evidence.’” Duke v. State, 146 So. 3d

401, 405 (¶15) (Miss. Ct. App. 2014) (quoting Grossley v. State, 127 So. 3d 1143, 1147 (¶10)

(Miss. Ct. App. 2013)). Furthermore, we accept as true all credible evidence consistent with

the defendant’s guilt. Id. “The central question ‘is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. (quoting Grossley, 127 So.

3d at 1147 (¶10)). “[I]f ‘reasonable fair-minded jurors in the exercise of impartial judgment

might reach different conclusions on every element of the offense,’ the evidence will be

deemed to have been sufficient [to sustain the conviction].” Birge v. State, 216 So. 3d 1174,

1177 (¶11) (Miss. Ct. App. 2017) (quoting Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss.

2005)).

2
See M.R.E. 106; Esco v. State, 9 So. 3d 1156, 1163 (¶¶29-31) (Miss. Ct. App.
2008); Washington, 726 So. 2d at 216 (¶¶33-34).

23
¶49. Manslaughter is “[t]he killing of a human being, without malice, in the heat of

passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without

authority of law, and not in necessary self-defense.” Miss. Code Ann. § 97-3-35.

Mississippi Code Annotated section 97-3-15(1)(e)-(f) (Rev. 2014) provides that the killing

of a human being is justifiable:

(e) When committed by any person in resisting any attempt unlawfully to
kill such person or to commit any felony upon him, or upon or in any
dwelling, in any occupied vehicle, in any place of business, in any place
of employment or in the immediate premises thereof in which such
person shall be;

(f) When committed in the lawful defense of one’s own person or any
other human being, where there shall be reasonable ground to
apprehend a design to commit a felony or to do some great personal
injury, and there shall be imminent danger of such design being
accomplished[.]

Where a defendant claims self-defense, “the State bears the burden of proving beyond a

reasonable doubt that the defendant was not acting in necessary self-defense.” Birge, 216

So. 3d at 1177 (¶12) (quoting Harris v. State, 937 So. 2d 474, 481 (¶23) (Miss. Ct. App.

2006)).

¶50. Herrington argues that the circumstances surrounding Bishop’s death demonstrate a

clear case of self-defense and justifiable homicide. He further asserts that the State failed to

prove beyond a reasonable doubt that he did not act in necessary self-defense at the time of

Bishop’s shooting. As a result, he contends insufficient evidence supported his guilty

verdict.

24
¶51. The jury heard undisputed evidence from multiple witnesses that Bishop initiated the

fight with Herrington. Herrington asserted at trial that it “[f]elt like I was getting the life beat

out of me.” However, Herrington testified that he never sought medical treatment for any

injuries. Furthermore, Herrington claimed that he never feared for his life until he saw

Bishop reach for a weapon.

¶52. According to Herrington, Bishop reached for a .357 revolver during the fight, which

prompted Herrington to retrieve his own gun and fire three times. The State presented

evidence, however, to rebut Herrington’s assertion that the situation necessitated deadly

force. As Investigator Baysinger observed during his testimony, no other evidence supported

or corroborated Herrington’s claim that Bishop ever had a gun in his possession. Gentry

testified that she never saw Bishop in possession of a gun the day of or just prior to the

shooting. Johnson, who testified that he actually saw Herrington fire two shots toward

Bishop’s head, also stated that he never saw Bishop in possession of a gun. Furthermore,

Investigator Baysinger testified that no prints were recovered from the .357 revolver that

Herrington claimed belonged to Bishop.

¶53. Despite Johnson’s testimony that he saw Herrington fire two shots toward Bishop’s

head, Herrington asserted that he only shot Bishop once in the back of the head after Bishop

fell in his lap and continued to move while holding a gun. As the jury heard, however, the

autopsy revealed Bishop sustained one shot to his torso and two shots to the back of his head.

The autopsy further showed that the two shots to the back of Bishop’s head were so close in

25
proximity to each other that the bullets entered his skull at one common point and traveled

a similar path.

¶54. Testimony from multiple witnesses established that Herrington failed to alert law

enforcement about the shooting until almost two hours after the fact. Gentry testified that,

upon returning with Herrington to his residence, he immediately began gathering up items.

Gentry stated that Herrington then gave her a phone and told her exactly what to say before

instructing her to contact the authorities. Before the authorities arrived, Gentry testified that

Herrington used a second phone to take a picture of Bishop’s body and to send the picture

to someone. Although Herrington claimed that he never moved Bishop’s body, Deputy

Hamilton testified that it appeared the body had been moved before authorities arrived.

Deputy Hamilton stated there was coagulated blood pooled in the center of Herrington’s

mattress as though Bishop’s face had rested there. However, when Deputy Hamilton entered

Herrington’s bedroom, Bishop’s body lay face up across the corner of the mattress as though

someone had rolled Bishop over.

¶55. Gentry further stated that, while waiting for the authorities to arrive, she overheard

part of a phone conversation in which Herrington said, “[N]o, we’d have to burn my whole

trailer down[] if we did that.” Gentry testified that she assumed Herrington and the other

person were discussing how to dispose of Bishop’s body. Gentry also claimed that, after she

put her .380 pistol on the kitchen table and Herrington put his .38 revolver and a .357

revolver on the table, Herrington retrieved a fourth gun, the stolen .357 revolver. Gentry

26
claimed that Herrington exited the house with the stolen gun and disposed of the weapon.

According to Investigator Baysinger, authorities later recovered the .357 revolver from

Herrington’s mother’s house.

¶56. Viewing the evidence in the light most favorable to the State, we find sufficient

evidence existed for a rational trier of fact to find the State met the essential elements of

manslaughter beyond a reasonable doubt. See Duke, 146 So. 3d at 405 (¶15).

IV. Whether the verdict was against the overwhelming weight of the
evidence.

¶57. Herrington also contends that his guilty verdict is contrary to the weight of the

evidence. In responding to this claim, the State correctly points out that Herrington untimely

filed his motion for a new trial. “Uniform Rule of Circuit and County Court 10.053 requires

that a motion for [a] new trial must be made within ten days of the judgment . . . .” Allen v.

State, 200 So. 3d 1100, 1101 (¶2) (Miss. Ct. App. 2016) (footnote added and citation

omitted). Herrington’s judgment of conviction was filed on August 15, 2016. Thus,

Herrington had until August 25, 2016, to timely file a motion for a new trial. See id.

However, Herrington’s attorney did not even sign and submit the posttrial motion to the

circuit court until September 7, 2016, which was well outside the ten-day time period. We

therefore find no error in the circuit court’s denial of Herrington’s motion for a new trial.

3
Effective July 1, 2017, the Mississippi Rules of Criminal Procedure superseded the
Uniform Rules of Circuit and County Court. However, at the time of Herrington’s judgment
of conviction, the Uniform Rules of Circuit and County Court still applied.

27
 V. Whether resentencing or sentence clarification is needed.

¶58. At the conclusion of Herrington’s trial, the circuit court sentenced him to twenty years

in MDOC’s custody “as a matter of law, albeit, without parole . . . [to be served] day for

day.” On appeal, Herrington acknowledges that his twenty-year sentence complies with the

statutory maximum provided by section 97-3-25(1). He contends, however, that he was

never indicted as a habitual offender or pursuant to a sentence enhancement. As a result,

Herrington questions whether the circuit court believed that his sentence was required to be

twenty years “as a matter of law.” Herrington asks that, if this Court affirms his conviction,

we remand his case for resentencing or for clarification as to whether the circuit court felt

legally obligated to sentence him to the statutory maximum of twenty years.

¶59. As Herrington contends, he was neither indicted nor convicted pursuant to the

habitual-offender statute or a sentence enhancement. Despite the circuit court’s

pronouncement in open court that Herrington was sentenced to twenty years “as a matter of

law, albeit, without parole . . . [to be served] day for day[,]” the sentencing order makes no

mention of parole ineligibility or a day-for-day requirement. Instead, the sentencing order

simply states, “The Defendant, . . . Herrington, is sentenced to serve a term of twenty (20)

years in the custody of [MDOC].”

¶60. As discussed, Herrington was sentenced under section 97-3-25(1), which permits a

sentencing range from two to twenty years in MDOC’s custody for anyone convicted of

manslaughter. Thus, Herrington’s sentence falls within the permissible range provided by

28
statute. “In general, a sentence which falls within the permissible range designated by statute

will not be disturbed on appeal.” Hayes v. State, 203 So. 3d 1144, 1146 (¶5) (Miss. Ct. App.

2016) (quoting McCline v. State, 856 So. 2d 556, 560 (¶18) (Miss. Ct. App. 2003)).

Furthermore, “we have recognized that ‘it is well-settled law in Mississippi that a written

order prevails over a conflicting oral pronouncement.’” Weary v. State, 155 So. 3d 866, 869

(¶9) (Miss. Ct. App. 2013) (quoting Jones v. State, 70 So. 3d 255, 259 (¶12) (Miss. Ct. App.

2011)). Accordingly, because Herrington’s sentencing order complies with statutory

guidelines, we decline to disturb his sentence on appeal. This assignment of error lacks

merit.

¶61. We affirm Herrington’s conviction and sentence.

¶62. AFFIRMED.

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

29