Cortez Deontae Bass v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-01009-COA

CORTEZ DEONTAE BASS A/K/A TEZ A/K/A APPELLANT
CORTEZ BASS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/13/2017
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CORTEZ DEONTAE BASS (PRO SE)
HEATHER MARIE ABY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 12/11/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., GREENLEE AND TINDELL, JJ.

TINDELL, J., FOR THE COURT:

¶1. A Tunica County grand jury indicted Cortez Bass and Dedrick Small for the first-

degree (deliberate-design) murder of Donterrius Jackson with a firearm enhancement. See

Miss. Code Ann. §§ 97-3-19(1)(a) (Rev. 2014) & 97-37-37(1) (Rev. 2014). The Tunica

County Circuit Court later granted Small’s motion to sever his trial. Following the

completion of Bass’s trial, the jury found Bass guilty of first-degree murder. Because Bass

was seventeen when he committed the crime, the circuit court held a sentencing hearing to

determine whether he was entitled to parole eligibility under Miller v. Alabama, 567 U.S. 460
(2012). Finding that Bass was not entitled to any relief, the circuit court sentenced him to

life without eligibility for parole (LWOP) for the murder conviction and to a consecutive

five-year sentence for the firearm enhancement, with both sentences to be served in the

custody of the Mississippi Department of Corrections (MDOC).

¶2. On appeal, Bass1 argues the following: (1) actions by law-enforcement officers

violated his right to be free from self-incrimination; (2) the circuit court erred by failing to

grant a mistrial; (3) the State erroneously denied him access to Jackson’s criminal history;

(4) the State committed prosecutorial misconduct; (5) the verdict was against the weight of

the evidence; (6) the circuit court erred by denying his request for expert-assistance funds for

mitigation investigation; (7) the circuit court’s imposition of his sentence violated his

constitutional right to a jury sentencing; and (8) the circuit court erred by sentencing him to

LWOP.

¶3. Finding no error, we affirm the judgment of Bass’s conviction and sentence.

FACTS

¶4. On the afternoon of March 10, 2014, Jackson and his friend, George Anderson,

encountered Bass, Small, and Bass’s cousin, Kendrick, at an intersection in Tunica. An

argument erupted between the two groups. Seven witnesses testified that the altercation

ended with Bass fatally shooting Jackson.

1
In addition to the arguments Bass’s appellate attorney submitted on appeal, Bass
filed a supplemental pro se brief that raised additional issues.

2
¶5. Prior to the shooting, witnesses testified that Jackson and Anderson were walking

down Cotton Street when Bass drove by and tried to hit Jackson with his car. After missing

Jackson, Bass drove away, and Jackson and Anderson entered a nearby house. Later that

day, Jackson and Anderson exited the house and were standing near the Cottonland Village

Apartments at the intersection of Beatline Road and Cotton Street, when Bass, Small, and

Kendrick approached from the other side of the street. Although the two groups remained

on their respective sides of the street, Bass and Jackson began to argue with each other.

¶6. At Bass’s trial, multiple witnesses testified that Bass and Jackson initially appeared

to be headed toward a fistfight. According to one witness, however, Bass claimed just prior

to the shooting that he was going to kill Jackson. Witness testimony varied as to whether or

not Bass obtained the gun he used from Small. Witness testimony also varied as to whether

Bass fired the gun once or twice. Multiple witnesses for the State testified, however, that

they never saw Jackson pull out a weapon and that he was trying to run away when Bass shot

him. The medical examiner who performed Jackson’s autopsy testified that Jackson died

from a gunshot wound to the back of his head.

¶7. Jackson’s younger brother, Kendarrius, testified that he witnessed Bass shoot his

brother from the upstairs bedroom of his family’s apartment. Kendarrius further testified

that, after seeing the shooting, he retrieved a gun from a closet in the apartment and ran

outside. Kendarrius stated that he no longer saw Bass in the area but that a crowd had

gathered around his brother’s body. As a result, Kendarrius testified that he shot the gun into

3
the air a few times to disperse the crowd. Kendarrius identified State’s Exhibit S-11, a Davis

P-380 semiautomatic handgun, as the weapon he fired into the air.

¶8. Contrary to the testimony of the State’s witnesses, Bass and his cousin, Kendrick,

testified that Anderson escalated the altercation between the groups by saying, “Let’s pistol

play.” Both Bass and Kendrick testified that Jackson then pulled out a gun and pointed it at

them. In response, Bass and Kendrick stated that Small pulled out a gun of his own, a nine-

millimeter handgun, which Bass snatched from Small. Bass’s and Kendrick’s testimonies

differed as to what happened next. Bass testified that he fired the gun once and that he,

Kendrick, and Small immediately ran back to his home on Cotton Street.2 As he was

running, Bass testified that he saw Jackson’s brother, Kendarrius, arrive at the street corner

and pick up Jackson’s gun. Kendrick testified, however, that before Bass fired his shot,

Kendarrius ran out of an apartment with a gun and started shooting at them. Despite this

discrepancy, both Bass and Kendrick testified that Kendarrius followed them down the street

toward Bass’s house and shot in their direction.

¶9. The State’s witnesses corroborated that Bass, Kendrick, and Small ran to Bass’s home

on Cotton Street after the shooting. One witness testified, however, that as Bass ran by her

he said, “I hope I killed that bitch.” Lieutenant Dennis Hopson testified that he arrived at

Bass’s home shortly after the shooting to take Bass into custody. According to Lieutenant

2
The shooting occurred in front of 1251 Cotton Street, and Bass lived at 1185 Cotton
Street. Both Bass and Kendrick testified it took them about ten seconds from the location
of the shooting to reach Bass’s residence.

4
Hopson, when Bass exited his home, his hands were wet and sudsy as though he had just

washed them. Captain James Smith, who also responded to the dispatch about the shooting,

testified that he performed a gunshot-residue test on Bass. The forensic scientist who

analyzed the test results stated that, although thoroughly washing one’s hands can remove

gunshot residue, the test performed on Bass showed Bass still had particles indicative of

gunshot residue on both his hands. The forensic scientist further stated that no gunshot

residue was found on Jackson’s hands. Emergency responders did, however, discover a .32-

caliber handgun in Jackson’s pocket after the shooting. The emergency responder who found

the weapon testified that Jackson was wearing two pairs of pants and that the gun was tucked

into the front right pocket of Jackson’s inner pair of pants.

¶10. Captain Smith testified that he also collected evidence from the crime scene. Captain

Smith stated that he found four .380-caliber shells in the front yard of the home on Cotton

Street where the shooting occurred. He also found one nine-millimeter shell casing in the

middle of the road.

¶11. After being taken into custody, Bass gave a recorded statement to law-enforcement

officers. Investigator James Clark testified that Bass voluntarily waived his Miranda3 rights

and spoke to both him and Captain Rico Harris. The State called Investigator Clark as a

rebuttal witness to testify about the differences between Bass’s pretrial statement and his trial

testimony. Investigator Clark stated that, during their interview, Bass claimed Jackson pulled

3
Miranda v. Arizona, 384 U.S. 436 (1966).

5
out a gun and shot at him twice. Bass then told the officers that he pulled out his own gun,

which he had brought with him, and shot back at Jackson once or twice. Unlike during his

trial testimony, Bass denied during the pretrial interview that Small gave him the gun. In

fact, Investigator Clark testified Bass said Small had nothing to do with the gun. Bass

instead told the officers that he had bought the gun from a man for $100 and that he kept the

weapon under his mattress.

¶12. After considering all the evidence and testimony, the jury found Bass guilty of first-

degree murder with a firearm enhancement. Prior to sentencing, Bass filed multiple motions,

including a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative,

for a new trial; a motion for sentencing pursuant to Miller; and motions seeking expert-

assistance funds for a psychologist and a mitigation investigator. The circuit court granted

Bass’s request for funds for a psychologist but denied the requested funds for a mitigation

investigator. The circuit court also denied Bass’s motion for a JNOV or, in the alternative,

a new trial. After considering the evidence presented at Bass’s sentencing hearing, the circuit

court sentenced Bass to LWOP for first-degree murder and to a consecutive five-year

sentence for the firearm enhancement, with both sentences to be served in MDOC’s custody.

¶13. Aggrieved, Bass appeals.

DISCUSSION

I. Right against Self-Incrimination

¶14. For the first time on appeal, Bass contends that law-enforcement officers violated his

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right against self-incrimination. Specifically, Bass asserts that, because he was only

seventeen years old at the time of the crime, Investigator Clark and Captain Harris should

never have accepted his Miranda-rights waiver or questioned him without permission from

a parent or guardian. Because Bass never raised this objection before the circuit court, he

is procedurally barred from doing so now. See Morton v. State, 246 So. 3d 895, 899 (¶35)

(Miss. Ct. App. 2017). Notwithstanding the procedural bar, we find Bass’s argument lacks

merit.

¶15. The Mississippi Supreme Court has previously held “that minors can be treated as

adults in such circumstances and are allowed to waive their rights and confess to a crime.”

Eskridge v. State, 765 So. 2d 508, 511 (¶16) (Miss. 2000) (citing Clemons v. State, 733 So.

2d 266, 269 (¶¶8-12) (Miss. 1999)); see also Woodham v. State, 779 So. 2d 158, 162 (¶19)

(Miss. 2001) (finding under the totality of the circumstances that a sixteen-year-old’s

confession was admissible, even without an attorney present at the time he confessed,

because the record indicated the defendant understood both his right against self-

incrimination and the consequences of waiving the right). In Clemons, a fourteen-year-old

boy confessed to fatally shooting several people. Clemons, 733 So. 2d at 268 (¶5). On

appeal, Clemons argued “that, because neither of his parents were present during his

interrogation, his understanding of his rights was diminished and the interrogation was

coercive.” Id. at 269 (¶13). However, the supreme court affirmed the admissibility of the

confession and held Clemons was not entitled to have a parent present during his

7
interrogation. Id. at 269-70 (¶¶13-14).

¶16. In the present case, the State called Investigator Clark to testify on rebuttal about the

discrepancies between Bass’s pretrial statement and his trial testimony. Under a belief that

the State planned to admit into evidence part of Bass’s recorded interview, the defense asked

the circuit court to restrict the admission to those interview portions that specifically rebutted

Bass’s trial testimony. The State informed the circuit court, however, that it only planned to

have Investigator Clark testify about the interview and had no intention to introduce the

actual recording into evidence. The defense raised no objections.

¶17. According to Investigator Clark, he and Captain Harris explained the Miranda rights

to Bass, and Bass indicated he understood his rights before voluntarily waiving them.

Investigator Clark further stated on cross-examination that Bass did not appear to be in an

excited state of mind at the time he waived his Miranda rights and gave his statement. Bass

himself confirmed during his testimony that Investigator Clark and Captain Harris explained

his Miranda rights to him and that he still wanted to give a statement about the shooting.

Therefore, based on our review of the evidence and relevant caselaw, we find no merit to

Bass’s assignment of error.

II. Motion for Mistrial

¶18. Bass argues the circuit court erred by failing to grant a mistrial. First, Bass asserts the

circuit court should have granted a mistrial due to media coverage of the trial. Second, Bass

contends the circuit court erred by not declaring a mistrial after learning the jury may have

8
been “contaminated by a person entering the jury room [who] was not a member of the

empaneled jury . . . .” We review the circuit court’s denial of Bass’s motion for a mistrial

for abuse of discretion. See Williams v. State, 240 So. 3d 436, 443 (¶15) (Miss. Ct. App.

2017). “The trial court must declare a mistrial when there is an error in the proceedings

resulting in substantial and irreparable prejudice to the defendant’s case.” Id. (quoting

Rayner v. State, 186 So. 3d 881, 893 (¶49) (Miss. Ct. App. 2015)).

¶19. Prior to opening statements, Bass’s attorney informed the circuit court that the “case

and some of the alleged facts . . . were covered fairly heavily on the Memphis[-]area news

this morning.” The defense did not move for a mistrial but asked the circuit court to inquire

whether the jurors had seen or heard anything about the case in the media. The defense

further requested that the circuit court instruct the jurors to refrain from watching the news

during the trial.

¶20. Just minutes later, the circuit court informed the trial attorneys that a non-juror had

entered the jury room. The circuit court explained that a member of the venire had failed to

find out whether he had been selected for the jury and had instead shown up for the trial and

entered the jury room. Upon learning this information, the defense moved for a mistrial on

the basis of jury contamination. The circuit court noted that it was not particularly concerned

about the incident because no proof had yet been presented in Bass’s trial. The circuit court

reserved its ruling, however, until after questioning the jurors.

¶21. Once the jurors entered the courtroom, the circuit court inquired whether they had

9
seen the Memphis-area media coverage of the trial. None of the jurors indicated they had

seen the coverage. The circuit court then instructed the jurors to refrain from watching the

news for the duration of the trial. Next, the circuit court asked whether the jurors had “any

type of conversation at all or anything about this case or anything relating to this case” with

the venire member not empaneled as a juror. Again, the jurors indicated they had not.

Because the parties had not yet presented any evidence and the jurors indicated they had

neither seen the media coverage nor spoken with the non-juror about the case, the circuit

court denied the defense’s motion for a mistrial.

¶22. The following day of trial, the defense renewed its motion for a mistrial on the ground

there had been additional media coverage of the trial and that such coverage prejudiced Bass.

Bass’s attorney admitted, however, that he had no evidence any jurors had actually observed

the media coverage. When the circuit court subsequently questioned the jurors about the

additional media coverage, they all responded that they had not seen the news. As a result,

the circuit court again denied the defense’s mistrial motion.

¶23. “[W]henever there is a question of outside influencing of a jury, the trial judge himself

ought to examine the jury carefully to ensure that the jury’s deliberations are based on the

evidence produced at trial and not extraneous matters.” Wells v. State, 698 So. 2d 497, 505

(Miss. 1997). As the record reflects, several times throughout the trial the circuit court

questioned the jury to determine if it had been affected by any outside influences. At the

time of the defense’s first mistrial motion on the basis of jury contamination, the circuit court

10
correctly noted that no proof had yet been presented in the case and that all the jurors

indicated they had not spoken to the non-juror about case-related matters. In addition, both

times the circuit court questioned the jurors about whether they had seen the media coverage

of the trial, they indicated they had not.

¶24. “We must assume that jurors answer truthfully when polled, else the entire polling

procedure is rendered pointless.” Id. Based on our review of relevant caselaw and the trial

transcript, we find the circuit court’s actions in questioning the jury and reminding them to

avoid watching the news sufficiently ensured that Bass received a fair and impartial trial not

contaminated by outside influences. We therefore find no abuse of discretion in the circuit

court’s denial of the defense’s motion for a mistrial.

III. Jackson’s Criminal History

¶25. Bass also contends for the first time on appeal that the State violated his constitutional

rights by failing to provide him with Jackson’s juvenile record. Because Bass never raised

this issue before the circuit court, his argument is procedurally barred. See Britton v. State,

241 So. 3d 639, 645 (¶22) (Miss. Ct. App. 2018). Notwithstanding the procedural bar, we

find no evidence to show that the defense ever requested Jackson’s juvenile record or that

the State in any way suppressed such a document. Further, even had the defense sought and

obtained Jackson’s juvenile record, Bass raises no admissible purpose for the record’s

introduction. See M.R.E. 404 (discussing the admissible purposes for the introduction of

evidence of a victim’s character or prior bad acts). Without providing further detail or

11
reasoning, Bass simply asserts the outcome of his trial may have been different had the jury

been presented with evidence of Jackson’s criminal history. Upon review, we find Bass’s

argument fails to overcome the procedural bar and lacks merit.

IV. Prosecutorial Misconduct

¶26. Bass further claims the State committed several incidences of prosecutorial

misconduct. According to Bass, a majority of the State’s witnesses presented perjured

testimony. Bass claims that law-enforcement officers knowingly used this false testimony

to arrest him and that the State knowingly presented the testimony at trial. In addition, Bass

asserts the State withheld from him that it paid the forensic pathologist for his expert trial

testimony.

¶27. Not only did Bass’s trial attorney thoroughly cross-examine each of the State’s

witnesses, but the defense never raised these objections before the circuit court. See Britton,

241 So. 3d at 645 (¶22). Furthermore, Bass has failed on appeal to direct this Court to any

record evidence or relevant legal authority that supports his claims. See M.R.A.P. 28(a)(7)

(providing that an appellant’s brief must contain the appellant’s contentions “with respect to

the issues presented, and the reasons for those contentions, with citations to the authorities,

statutes, and parts of the record relied on”); Satterfield v. State, 158 So. 3d 380, 383 (¶6)

(Miss. Ct. App. 2015) (finding that an appellant’s failure to affirmatively demonstrate error

in the trial court waives the issue on appeal). As a result, we find these arguments are

procedurally barred.

12
 V. Weight of the Evidence

¶28. Bass argues the jury’s verdict was against the overwhelming weight of the evidence

because the State failed to prove he had the “deliberate design” necessary for first-degree

murder. When reviewing a challenge to the weight of the evidence, this Court views the

evidence in the light most favorable to the verdict. Hall v. State, 245 So. 3d 396, 403 (¶30)

(Miss. 2018). We will only reverse where the verdict “is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

Id. Where conflicts arise in the evidence, the jury acts as the sole judge of witnesses’

credibility and determines “the weight and worth of their testimony.” Little v. State, 233 So.

3d 288, 292 (¶20) (Miss. 2017).

¶29. The jury convicted Bass under section 97-3-19(1)(a), which defines first-degree

murder as “[t]he killing of a human being without the authority of law by any means or in any

manner . . . [w]hen done with deliberate design to effect the death of the person killed, or of

any human being . . . .” Thus, the State was required to prove Bass: (1) killed Jackson; (2)

without authority of law; and (3) with deliberate design to effect Jackson’s death. See Hall,

245 So. 3d at 402 (¶22). In previously discussing deliberate design, this Court stated:

A person can quickly form the deliberate design to kill a person; perhaps only
moments before the act. Deliberate design may be inferred through the
intentional use of any instrument which, based on its manner of use, is
calculated to produce death or serious bodily injury. Furthermore, intent may
be proven by showing the acts of the person involved at the time, and the
circumstances surrounding the incident. Ultimately, intent is a question of fact
gleaned by the jury.

13
Crump v. State, 237 So. 3d 808, 819 (¶37) (Miss. Ct. App. 2017) (citations and internal

quotation marks omitted).

¶30. Despite Bass’s contentions, the State presented evidence from which a jury could

conclude that Bass acted with deliberate design to effect Jackson’s death. The jury heard

testimony that, shortly before the shooting, Bass attempted to hit Jackson with his car and

then announced that he was going to kill Jackson. Although witness testimony varied as to

how Bass obtained the gun he used, seven of the State’s witnesses stated they watched Bass

shoot Jackson in the back of the head. Multiple witnesses further testified they never saw

Jackson with a gun and that he was actually trying to run away when Bass shot him. In

addition, one of the State’s witness testified that, as Bass ran past her after the shooting, he

said, “I hope I killed that bitch.”

¶31. As demonstrated by its verdict, the jury clearly accepted the State’s evidence and the

version of events presented by the State’s witnesses. Viewing the evidence in the light most

favorable to the verdict, we cannot say that upholding Bass’s conviction fails to sanction an

unconscionable injustice. See Hall, 245 So. 3d at 403 (¶30). We therefore find this

assignment of error lacks merit.

VI. Expert Funding for Mitigation Investigation

¶32. Prior to his sentencing hearing, Bass sought expert funding for a mitigation

investigator and a psychologist. The circuit court granted the funding for a psychologist but

denied it for a mitigation investigator. On appeal, Bass argues the circuit court’s decision

14
prevented him from presenting all aspects of his defense during sentencing. Bass further

contends the circuit court erred because he was entitled to the same expert assistance during

sentencing as a defendant facing the death penalty in a capital-murder case. “Whether an

indigent defendant must be provided expert funding is decided on a case-by-case basis, and

we review this issue for an abuse of discretion.” Barnett v. State, 192 So. 3d 1033, 1038

(¶17) (Miss. Ct. App. 2015) (quoting Barksdale v. State, 176 So. 3d 108, 111-12 (¶18) (Miss.

Ct. App. 2015)).

¶33. Our caselaw recognizes the responsibility States bear to ensure defendants receive a

fair opportunity to present their defense, including receiving expert assistance when the

denial of such assistance would render a trial fundamentally unfair. Barksdale, 176 So. 3d

at 111-12 (¶18). Even so, courts are not required to provide an expert every time an indigent

defendant requests one. Id. at 112 (¶18). “Rather, an indigent’s right to defense expenses

is conditioned upon a showing that such expenses are needed to prepare and present an

adequate defense.” Barnett, 192 So. 3d at 1039 (¶18) (internal quotation marks omitted).

Defendants must establish a substantial need for expert assistance and provide concrete

reasons for requiring an expert. Id.

¶34. Even in relation to a capital-murder case, the supreme court has upheld the denial of

expert assistance where the defendant failed to show the necessity for such funding.

Crawford v. State, 218 So. 3d 1142, 1153 (¶¶26-27) (Miss. 2016). In Crawford, the

defendant argued in a successive postconviction relief (PCR) petition that his first PCR

15
attorney failed to obtain needed expert assistance. Id. at 1146-47 (¶2). Crawford’s first PCR

attorney requested that the trial court grant expert funding for a mitigation investigator to

thoroughly investigate evidence that should have been presented at the sentencing phase of

Crawford’s death-penalty case. Id. at 1152 (¶22). After the trial court denied the requested

funding, Crawford’s first PCR attorney filed a petition for an interlocutory appeal with the

supreme court. Id. at 1153 (¶26). A three-justice panel denied the petition after concluding

“that Crawford had failed to show that the appointment of a mitigation investigator . . . was

necessary.” Id.

¶35. In the present case, the circuit court noted in its denial of Bass’s requested funding for

a mitigation investigator that all the caselaw Bass provided involved situations where a jury

was “asked to make difficult decisions [on] . . . issues that perhaps the jury is unfamiliar.”

By contrast, the circuit court stated that “[n]o jury [would] be involved in determining the

instant question.” The circuit court further stated that it was quite familiar with the factors

to be analyzed at Bass’s Miller hearing.

¶36. The circuit court also addressed the claim made by Bass’s trial attorney that the

defense required a social-history investigation “and that lawyers are trained in the law, not

in conducting social histories.” The circuit court pointed out that attorneys conduct

investigations in all their cases as they sort through the facts and then present those facts to

the jury. The circuit court also stated it was “not persuaded that attorneys are so confined in

their intellect, experience[,] and training that they are incapable of researching and reviewing

16
the personal history of a defendant, determining what is pertinent and material to the issue

. . . [,] and presenting such evidence to the court.” For these reasons, the circuit court

concluded funding for a mitigation investigator was unnecessary.

¶37. Upon review, we find the circuit court’s denial of expert funds for a mitigation

investigator neither deprived Bass of the opportunity to present his defense during sentencing

nor rendered his sentencing hearing fundamentally unfair. After thoroughly considering both

Bass’s requests for expert funding, the circuit court determined Bass established a substantial

need for a psychologist but not for a mitigation investigator. Because we find no abuse of

discretion in the circuit court’s decision, we conclude this issue lacks merit.

VII. Jury Sentencing

¶38. According to Bass, the circuit court’s imposition of his sentence violated his

constitutional right to have a jury determine his sentence. In several recent opinions,

however, this Court rejected the argument that a defendant has a constitutional right to a jury

sentencing at a hearing conducted under the Miller guidelines. Jones v. State, No. 2015-KA-

00899-COA, 2017 WL 6387457, at *4 (Miss. Ct. App. Dec. 14, 2017) (recognizing that no

constitutional right exists to a jury sentencing in a Miller hearing); Cook v. State, 242 So. 3d

865, 876 (¶39) (Miss. Ct. App. 2017) (same); Davis v. State, 234 So. 3d 440, 442 (¶10)

(Miss. Ct. App. 2017) (“Our state Supreme Court post-Miller has treated life without parole

as a sentencing option and the trial judge as an appropriate sentencing authority.”).

¶39. In Wharton v. State, No. 2017-CA-00441, 2018 WL 4708220, at *6-*7 (Miss. Ct.

17
App. Oct. 2, 2018), while once again holding that no constitutional right to a jury sentencing

in a Miller hearing exists, we recognized that a statutory right to such sentencing sometimes

exists. “To determine the sentencing authority in a Miller hearing, we look to the statute

under which the juvenile offender was convicted and sentenced, until and unless the

Legislature prescribes otherwise.” Id. at *7. The juvenile defendant in Wharton was

convicted of capital murder under Mississippi Code Annotated section 99-19-101 (Rev.

1994). Id. at *4. With regard to sentencing under this statute, we explained:

Specifically, under section 99-19-101’s sentencing scheme, the Legislature has
vested sentencing authority in the jury, and that authority only allows a
sentencing proceeding to be conducted before a trial judge without a jury if the
right to a jury was waived or the defendant [pled] guilty, as follows:

If the trial jury has been waived, or if the defendant [pled]
guilty, the sentencing proceeding shall be conducted before a
jury impaneled for that purpose or may be conducted before the
trial judge sitting without a jury if both the State of Mississippi
and the defendant agree thereto in writing.

Wharton, 2018 WL 4708220, at *4. Because Wharton neither waived his right to a jury

sentencing nor pled guilty, we acknowledged that, at his resentencing pursuant to the Miller

guidelines, he had a statutory right to be resentenced by a jury rather than the trial judge. Id.

¶40. Unlike in Wharton, Bass was not convicted and sentenced under a statute that

specifically vests sentencing authority solely with the jury. After the jury found Bass guilty

of first-degree murder, the circuit court sentenced him under Mississippi Code Annotated

section 97-3-21(1) (Rev. 2014), which provides that “[e]very person who shall be convicted

of first-degree murder shall be sentenced by the court to imprisonment for life in the custody

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of [MDOC].” (Emphasis added). Because section 97-3-21(1) explicitly vests sentencing

authority with the court, Bass possesses no statutory right to a jury sentencing. And as

previously discussed, our recent decisions clearly refute his claim of a constitutional right to

a jury sentencing at his Miller hearing. We therefore find Bass’s argument regarding this

issue lacks merit.

VIII. Sentence of LWOP

¶41. Bass’s appellate attorney argues on appeal that the circuit court erred by sentencing

Bass to LWOP and that this Court should vacate Bass’s sentence so he can be resentenced

to life with eligibility for parole. Specifically, Bass’s attorney asserts that the circuit court

failed (1) to give proper weight to the expert opinion of Dr. Criss Lott, the clinical and

forensic psychologist who provided a report for Bass’s sentencing hearing, and (2) to

properly consider and discuss all the Miller factors. In his supplemental pro se brief, Bass

challenges the legality of his sentence. For the sake of brevity, we address these arguments

together under one assignment of error.

¶42. Our supreme court recently rejected the argument that heightened scrutiny should

apply to a review of a trial court’s sentencing decision under Miller. Instead, the supreme

court stated:

Heightened scrutiny is reserved for death-penalty cases due to the
unique and irreversible nature of that punishment. The Court has no
reasonable basis to raise its standard of review for a sentence in a noncapital
case simply because it involves a juvenile offender. Accordingly, we hold that
there are two applicable standards of review in a Miller case. First, whether
the trial court applied the correct legal standard is a question of law subject to

19
 de novo review. If the trial court applied the proper legal standard, its
sentencing decision is reviewed for an abuse of discretion.

Chandler v. State, 242 So. 3d 65, 68 (¶7) (Miss. 2018) (citations omitted).

¶43. With regard to sentencing hearings for juvenile homicide offenders, “Miller does not

prohibit sentences of life without parole . . . . Rather, it ‘requires the sentencing authority to

take into account how children are different, and how those differences counsel against

irrevocably sentencing them to a lifetime in prison.’” Parker v. State, 119 So. 3d 987, 995

(¶19) (Miss. 2013) (quoting Miller, 567 U.S. at 480)). Miller identified several factors the

sentencing authority must consider before sentencing a juvenile homicide offender to LWOP.

Miller, 567 U.S. at 477-78. These factors include the following: (1) an offender’s

“chronological age and its hallmark features—among them, immaturity, impetuosity, and

failure to appreciate risks and consequences”; (2) “the family and home environment that

surrounds [the offender]—and from which he cannot usually extricate himself”; (3) “the

circumstances of the homicide offense, including the extent of [the offender’s] participation

in the conduct and the way familial and peer pressures may have affected him”; (4) whether

the offender “might have been charged and convicted of a lesser offense if not for

incompetencies associated with youth—for example, his inability to deal with police officers

or prosecutors . . . or his incapacity to assist his own attorneys”; and (5) “the possibility of

rehabilitation . . . .” Id. Where a “judge determines that Miller does not mandate parole

eligibility, then the judge must deny relief because the Legislature has provided by law that

persons convicted of murder are not eligible for parole.” Cook, 242 So. 3d at 873-74 (¶27)

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(citing Miss. Code Ann. § 47-7-3(1)(f) (Rev. 2015)).

¶44. In the present case, the circuit court stated that, prior to reaching a decision, it

carefully considered the witnesses’ testimony and carefully reviewed Dr. Lott’s twenty-

seven-page report on the factors relevant to determining an appropriate sentence for a

juvenile homicide offender. In sentencing Bass to LWOP, the circuit court addressed the

Miller factors. As to chronological age, the circuit court noted that Bass was only about

seventy days from his eighteenth birthday when he shot Jackson. The circuit court further

noted that, prior to shooting Jackson, Bass had already compiled an extensive youth-court

record between the ages of 11 and 17 and had previously used deadly weapons to commit

crimes. In addition, the circuit court found that Bass’s actions toward Jackson immediately

prior to the shooting demonstrated a lack of impetuosity (a hallmark feature of the current

Miller factor). Specifically, the circuit court stated that the threats Bass made to Jackson

prior to the shooting displayed premeditation and/or an intention to kill Jackson. Based on

these findings, the circuit court concluded Bass’s chronological age weighed against granting

parole eligibility under Miller.

¶45. As to Bass’s family and home environment, the circuit court recognized that Bass’s

family and personal lives were regularly in a state of chaos, that Bass lacked a male role

model, and that the lack of contact with his father affected Bass. The circuit court also

found, however, that Bass had denied using drugs or alcohol and that Dr. Lott’s report failed

to provide a significant psychiatric history on Bass or to identify any particular incidents that

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significantly negatively impacted Bass’s life. The circuit court determined Bass’s family and

home environment, especially the apparent lack of discipline in Bass’s upbringing, weighed

partially in favor of parole eligibility.

¶46. In considering the circumstances of Jackson’s murder, the circuit court concluded this

factor weighed against parole eligibility. Although testimony varied as to where Bass

obtained the gun he used to shoot Jackson, witnesses repeatedly testified that Bass was the

shooter and that he shot Jackson in the back of the head. The circuit court also discussed

Bass’s conduct toward Jackson immediately before the shooting, which included evidence

that Bass tried to hit Jackson with his car and then verbally threatened to kill Jackson before

shooting him. In addition, witnesses stated that Jackson was unarmed and was attempting

to run away when Bass shot him. Based on the circumstances of the homicide, the circuit

court found that Bass’s actions displayed premeditation and/or an intention to kill Jackson.

¶47. Finally, with regard to the possibility of rehabilitation, the circuit court stated that

Bass’s youth-court record failed to provide “any positive factors” or “any real substantial

hope of rehabilitation.” The circuit court noted that Bass’s youth-court record detailed the

commission of progressively more serious and violent crimes, including those involving the

exhibition and/or use of a deadly weapon. The circuit court further noted that this

progression culminated with Bass shooting Jackson in the back of the head. The circuit court

concluded the evidence “paint[ed] a picture of an individual with little or no regard for the

value of human life or general decency among his fellow man” and “with little, if any,

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possibility of rehabilitation.” The circuit court therefore found this factor also weighed

against parole eligibility.

¶48. The circuit court did not directly discuss on the record whether Bass might have been

charged and convicted of a lesser offense. However, the circuit court specifically provided

that it conducted Bass’s hearing and determined his sentence pursuant to Miller.

Furthermore, in concluding its bench ruling, the circuit court stated that it was sentencing

Bass to LWOP after considering all the factors, Dr. Lott’s assessment, the witnesses’

testimony, and the evidence presented. See Jones, 2017 WL 6387457, at *7 (recognizing

that, while the circuit court did not specifically discuss each Miller factor on the record,

“[n]either the United States Supreme Court nor the Mississippi Supreme Court has held that

reversal is required just because the sentencing judge omits some factors from his

on-the-record discussion of the reasons for the sentence”).

¶49. Upon review, we find the circuit court conducted a hearing as required by Miller and

only sentenced Bass to LWOP after applying every factor outlined in Miller. As a result, we

conclude the circuit court applied the correct legal standard. In addition, we cannot say the

circuit court abused its discretion by sentencing Bass to LWOP. Both the circuit court’s

bench ruling and its sentencing judgment sufficiently explained the court’s reasoning for

Bass’s sentence, and substantial evidence supported the circuit court’s findings. We

therefore find Bass’s assertions regarding this assignment of error lack merit.

CONCLUSION

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¶50. Because we find no error in Bass’s first-degree murder conviction and sentence of life

without eligibility for parole, we affirm.

¶51. AFFIRMED.

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

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