Brandon J. Barnett a/k/a Brandon Jay Barnett a/k/a Brick v. State of Mississippi

                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2023-KA-00742-SCT

BRANDON J. BARNETT a/k/a BRANDON JAY
BARNETT a/k/a BRICK

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          06/19/2023
TRIAL JUDGE:                               HON. DAL WILLIAMSON
TRIAL COURT ATTORNEYS:                     MATTHEW CHISOLM SHERMAN
                                           J. RONALD PARRISH
                                           DENNIS LEE BISNETTE
                                           BRAD RODRICK THOMPSON
                                           KRISTEN E. MARTIN
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                           BY: GEORGE T. HOLMES
                                                MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KATY TAYLOR SARVER
DISTRICT ATTORNEY:                         ANTHONY J. BUCKLEY
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 01/30/2025
MOTION FOR REHEARING FILED:



       BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    Brandon J. Barnett appeals his conviction for sale of methamphetamine. He argues

the trial court reversibly erred by giving a jury instruction that improperly commented on the

weight of the evidence. We agree.
¶2.    Instruction S-3A told the jury that “it is permissible for a technical reviewer to testify

in place of the primary analyst even if the witness did not perform the analysis first

hand . . . .” At Barnett’s trial, the forensic analyst who actually tested the substance Barnett

sold to a confidential informant did not testify. Instead, the State called a different analyst.

That analyst testified as a technical reviewer and gave her expert opinion that the substance

Barnett sold was 3.01 grams of methamphetamine. On cross-examination, Barnett’s counsel

seized on the fact that, as technical reviewer, the testifying analyst never personally observed

the purported methamphetamine. Nor did she test the substance. The trial court granted

Instruction S-3A over Barnett’s objection. The judge explained that he did so out of “fear

that”—based on the defendant’s cross-examination—“there’s a question in the jury’s mind

about the propriety of [the analyst’s] coming to testify about a test that she did not conduct.”

¶3.    We find the trial court, by granting the instruction, erroneously conflated the

admissibility of the analyst’s testimony—which is a question of law for the trial court to

decide—with its weight and credibility—which are questions in the jury’s exclusive purview.

The case law the judge cited for Instruction S-3A addressed the admissibility of a technical

reviewer’s testimony in light of Confrontation Clause protections.1 But here admissibility

is not the question. Indeed, the jury had no role in deciding the admissibility of witness

testimony—that was the trial judge’s job. And the trial court had already accepted the analyst

as an expert, permitted her to testify, and admitted the drug lab report in evidence. Instead,



       1
        Jenkins v. State, 102 So. 3d 1063, 1065-69 (Miss. 2012) (applying the Sixth
Amendment of the United States Constitution and Article 3, Section 26, of the Mississippi
Constitution).

                                               2
the jury had to decide if the technical reviewer’s testimony was credible and of sufficient

weight to support finding an essential element of the crime beyond a reasonable

doubt—namely, that the substance Barnett sold was methamphetamine. By specifically

instructing the jury that the State’s analyst could testify “even if” she “did not perform the

analysis first hand,” Instruction S-3A improperly commented on the weight of her testimony.

¶4.    Thus, the trial court abused its discretion by granting this instruction. We reverse

Barnett’s conviction and remand this case for a new trial.

                         Background Facts & Procedural History

¶5.    Following her arrest for possession of a controlled substance, Kimberly Dido worked

as a confidential informant for the Jones County Sheriff’s Department in exchange for her

charges being dropped. Dido had bought drugs from Barnett, a/k/a Brick, before. So on

August 16, 2021, she set up a buy with him.

¶6.    Before the buy, Dido met with narcotics investigators. They searched her body and

vehicle for contraband and currency. Then, they fitted Dido with a hidden video camera and

gave her four $20 bills. Dido went to Barnett’s house and traded the cash for drugs. She

returned to the investigators and turned over the drugs. Later testing revealed the substance

Dido obtained was 3.01 grams of methamphetamine.

¶7.    The State charged Barnett with selling methamphetamine.2 Dido testified at trial that

Barnett sold her the drugs. During her testimony, the State played the video recording of the

buy. Three officers involved with the controlled buy also testified. So did Charlotte



       2
           Mississippi Code Section 41-29-139(a), (b)(1)(B) (Rev. 2018).

                                              3
Cothern, who was admitted as an expert in forensic lab testing and drug analysis. But the

primary analyst who tested the substance did not testify. When cross-examined about this

absence, Cothern made clear that she did not personally test the substance. Nor did she

analyze it. But she agreed with the tests and results, and she explained the tests revealed the

substance the State submitted was 3.01 grams of methamphetamine.

¶8.    The jury found Barnett guilty. He was a non-violent habitual offender.3 And the court

sentenced him to twenty years’ imprisonment, to be served day for day.4

¶9.    Barnett timely appealed. While Barnett raises two issues, his claim that Instruction

S-3A improperly commented on the weight of the technical reviewer’s testimony is

dispositive and warrants a new trial. So we focus on this issue.

                                          Discussion

¶10.   Barnett argues the trial court reversibly erred by granting Instruction S-3A over his

objection. He asserts the instruction improperly commented on the weight of the evidence.

We agree. While jury instructions are within the discretion of the trial court, Newell v. State,

49 So. 3d 66, 73 (Miss. 2010), here, the trial court abused its discretion. This Court has been

clear that instructions should not “comment on the weight of the evidence” or “direct jurors’

attention to the quality or weight of the evidence.” Howell v. State, 860 So. 2d 704, 745

(Miss. 2003). And in this case, that is what Instruction S-3A did.

¶11.   Instruction S-3A advised the jury that “it is permissible for a technical reviewer to


       3
           Miss. Code Ann. § 99-19-81 (Rev. 2020).
       4
         Barnett originally received an enhanced sentence for selling methamphetamine
within 1,500 feet of a church. But the trial court later vacated that portion of his sentence.

                                               4
testify in place of the primary analyst even if the witness did not perform the analysis first

hand, as long as the witness has intimate knowledge of the analyses and was actively

involved in the production of the report at issue.” Barnett’s counsel objected. He argued the

instruction unfairly singled out an individual witness’s testimony. The State responded that

the instruction merely states the law about technical reviewers, with language taken directly

from Jenkins, 102 So. 3d at 1067-68.

¶12.   But Jenkins concerned the admissibility of a technical reviewer’s testimony in the

face of a Confrontation Clause challenge. Id. at 1065-69. It did not delve into issues about

a technical reviewer’s credibility or the weight to give such testimony. Admissibility and

credibility are two entirely separate issues. See, e.g., Clark v. State, 315 So. 3d 987, 997

(Miss. 2021) (deeming a trial court’s determination that one expert was more credible than

the other to be “irrelevant to the admissibility” of the other expert’s testimony).

¶13.   It is the trial judge’s role—as evidentiary gatekeeper—to decide if an expert’s

testimony is admissible. Poole ex rel. Wrongful Death Beneficiaries of Poole v. Avara, 908

So. 2d 716, 723 (Miss. 2005) (citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151, 119

S. Ct. 1167, 143 L. Ed. 2d 238 (1999)). But once the expert is qualified as an expert and

permitted to testify—as Cothern was here—it became the jury’s exclusive role to determine

the credibility and weight of the expert’s testimony.            Banks ex rel. Banks v.

Sherwin-Williams Co., 134 So. 3d 706, 711 (Miss. 2014) (“Determinations of weight and

credibility of expert witnesses lie ‘within the sole province of the jury as fact finder.’”

(quoting Butler v. State, 102 So. 3d 260, 268 (Miss. 2012))); Miss. State Highway Comm’n



                                              5
v. Stout, 242 Miss. 208, 134 So. 2d 467, 473 (1961) (“The jury should give the testimony of

the expert witnesses such consideration as it believes them entitled to receive.” (citing

Warren Cnty. v. Harris, 211 Miss. 80, 50 So. 2d 918 (1951); Robinson v. McShane, 163

Miss. 626, 140 So. 725 (1932))), overruled on other grounds by Leflore v. Miss. State

Highway Comm’n, 390 So. 2d 284 (Miss. 1980).

¶14.   The dissent misses this point. The dissent focuses instead on the admissibility and

sufficiency of Cothern’s testimony. But the admissibility and sufficiency of her testimony

are not at issue. The trial judge properly admitted Cothern’s expert testimony and the drug

lab report. And he also clearly ruled that the State’s evidence—when viewed favorably

toward the State—was sufficient to survive Barnett’s motion for a directed verdict. Barnett

does not attack either of these two commonplace judicial rulings on appeal, and neither do

we. So the dissent’s lengthy defenses and justifications of them are unnecessary.

¶15.   What the dissent does is confuse the real issues before the jury—what weight and

credibility to give Cothern’s testimony—with issues the trial judge had already resolved

during trial, long before the jury began deliberations.

¶16.   The reality of criminal trial practice is that there are centuries of legal precedent

relevant to criminal cases. But they are not all painstakingly memorialized in separate jury

instructions in each case. The reason they are not is because they speak mostly to legal

questions—for example here, the admissibility of witness testimony in light of the

Confrontation Clause. And such legal questions do not fall within the jury’s fact-finding

role. In criminal cases, the judge almost always instructs the jury on this bedrock principle,



                                              6
just as the judge did here.5 But if the dissent’s view became our new law, hosts of jury

instructions relevant to a judge’s evidentiary decisions would be forced on the jury, despite

their not being relevant to the factual questions the jury must resolve.

¶17.   For example, our law is clear that in conspiracy cases, statements made by

co-conspirators in furtherance of the conspiracy are not hearsay by definition. See MRE

801(d)(2)(E). But surely the dissent would not suggest it is proper for a trial judge to

specifically instruct the jury on this evidentiary premise just because a defense attorney has

made hay by pressing a witness’s credibility when she is testifying about a coconspirator’s

statement.

¶18.   Similarly, here, no need existed to instruct the jury on Mississippi Rule of

Evidence 803. Nor did need exist to instruct the jury on the admissibility of expert reports.

The jury does not apply evidentiary rules. It also does not decide what evidence is

admissible—the trial judge does. The same is true for Instruction S-3A. There is no need

to instruct on the whether it is permissible for a technical reviewer to testify instead of the

analyst who performed the test. That is because the trial judge had already admitted the lab

report and ruled that Cothern could testify about the results. And since Cothern was clearly

permitted to testify—and did testify—there was no reason to give Instruction S-3A other than




       5
         The judge instructed: “From time to time during the trial, it has been my duty to
rule on the admissibility of evidence. You must not concern yourselves with the reasons for
the Court’s rulings since they are controlled and governed by Rules of law.” (Emphasis
added.)

                                              7
to bolster or rehabilitate her credibility once Barnett’s attorney had cross-examined her.6

¶19.   While the trial judge acknowledged a technical reviewer’s “credibility is fair game just

like any other witness,” the record shows the trial judge granted Instruction S-3A due to

weight and credibility concerns. The trial judge noted that, during the defense attorney’s

cross-examination of Cothern, “there was a lot about [how Cothern was] not even the one

that conducted the test . . . and her lack of ability to testify about a test that she did not

conduct.” In the trial judge’s own words, he “fear[ed] there’s a question in the jury mind

about the propriety of her coming to testify about a test that she didn’t conduct.” “[I]n light

of the how the testimony now stands,” the trial judge thought “the jury needs to hear the law

that it is permissible for a reviewer to testify in place of the person that actually conducted

the test.”

¶20.   In other words, while the trial judge certainly had good intentions, Instruction S-3A

was essentially aimed at rehabilitating or propping up Cothern’s testimony after the defense



       6
         The dissent suggests we presume too much about the jurors’ legal knowledge by
concluding the jury did not need this instruction. Diss. Op. ¶ 32. But, again, the dissent
misses what the language in the instruction was about. As the State admitted, the
“permitted” language was pulled straight from Jenkins. And Jenkins was about whether
it is permitted in the face of a Confrontation Clause challenge for a technical reviewer to
testify. Jenkins, 102 So. 3d at 1069. So were Hingle v. State, 153 So. 3d 659, 663 (Miss.
2014), and Grim v. State, 102 So. 3d 1073, 1081(Miss. 2012)—the two other cases the
dissent cites to argue Instruction S-3A is an accurate statement of the law.

        While the dissent is right that we cannot “know the amount of legal knowledge that
each individual juror may or may not possess,” it is probably a safe bet that your average
juror is not worried about whether a technical reviewer’s testimony violated the defendant’s
right to confront the witness against him. Diss. Op. ¶ 32. Thus, there is no need assuage any
constitutional concern by instructing the jury that Cothern’s testimony passes Confrontation
Clause muster.

                                              8
attorney cross-examined her. This was error. See Miss. State Highway Comm’n v.

Robertson, 350 So. 2d 1348, 1352 (Miss. 1977) (finding reversible error when jury

instructions told the jury they “should consider” the defendant landowner’s testimony but

cautioned the jury not to “blindly follow[]” plaintiff’s expert testimony). “An expert witness

is subject to ‘wide-open cross-examination’ on ‘any matter that is relevant.’” Murray v.

Gray, 322 So. 3d 451, 462 (Miss. 2021) (quoting Redding v. Miss. Transp. Comm’n, 169

So. 3d 958, 964 (Miss. Ct. App. 2014)). And “[i]n every case where an expert witness is

allowed to express an opinion such witness is subject to cross-examination as to the basis of

h[er] opinion.” City of Laurel v. Upton, 253 Miss. 380, 175 So. 2d 621, 625 (1965) (holding

defendants had the right to cross-examine plaintiff’s medical expert about basing his opinion

in part on another doctor’s report).

¶21.   In Williams v. State, this Court found reversible error when the jury was instructed

that “even though there is an expert opinion of a psychiatrist, his opinion is not conclusive”

on “whether the defendant . . . appreciated the nature and consequences of his act . . . .”

Williams v. State, 354 So. 2d 266, 267 (Miss. 1978) (emphasis added). While the instruction

“may be said to be a correct statement of the law in abstract form,” under the circumstances

of that case, this Court found the instruction improperly commented on the weight of the

expert’s opinion. Id. at 267-68. “‘Even though’ certainly would logically give to the jurors

the impression that in this particular case the psychiatrist’s opinion was, in the judgment of

the court, worthy of little if any consideration at all.” Id. at 268.

¶22.   We similarly find reversible error here. Instruction S-3A may have been a correct



                                               9
statement of the law about the admissibility of a technical reviewer’s expert testimony. But

under the circumstances, it is an improper comment on the weight of the expert’s opinion.

Telling the jury that a technical reviewer is permitted to testify “even if” she did not did not

conduct the test herself, just as in Williams, “logically give[s] the jurors the impression” that

Cothern’s testimony should, in the judgment of the court, be given much consideration. Id.

And it violates the “well established” prohibition “that instructions to the jury should not

single out or contain comments on specific evidence.” Duckworth v. State, 477 So. 2d 935,

938 (Miss. 1985). Cothern herself testified about her knowledge and experience with the

testing methods used. And she explained her qualifications for providing the opinion that

the substance tested was methamphetamine. She also testified that it was standard procedure

to review tests performed by the assigned analyst and that she agreed with the analysis and

testing results. The jury should have been allowed to assess Cothern’s testimony on its own

merits without further—and admittedly rehabilitative—comment from the court.

¶23.   Because of the improper jury instruction, we reverse Barnett’s conviction and remand

this case for a new trial.

¶24.   REVERSED AND REMANDED.

    KING AND COLEMAN, P.JJ., CHAMBERLIN, ISHEE, GRIFFIS AND
SULLIVAN, JJ., CONCUR. RANDOLPH, C.J., DISSENTS WITH SEPARATE
WRITTEN OPINION JOINED BY BRANNING, J.

       RANDOLPH, CHIEF JUSTICE, DISSENTING:

¶25.   Brandon Barnett’s guilt was overwhelming; in basketball vernacular, the case was a

slam dunk. Barnett assigns no error to exhibit S-6, an audio and video recording that



                                               10
revealed him selling a white crystal-like substance to Kimberly Dido in exchange for eighty

dollars. Barnett assigns no error to the admissibility of the evidence bag containing the

substance, exhibit S-3. Barnett assigns no error to the photocopy of the eighty dollars that

Dido used in the transaction, exhibit S-2. Barnett assigns no error to the trial judge’s

decision to admit a certified report of the Mississippi Crime Laboratory, exhibit S-6, which

confirmed that the substance Barnett sold to Dido was 3.01 grams of methamphetamine—a

Schedule II controlled substance.7

¶26.   The record is compelling throughout the trial that the trial judge informed the jury on

multiple occasions that it was within their province to determine the credibility and weight

of each witness’s testimony and of the exhibits presented.8 The jury did so and returned a

guilty verdict.

¶27.   So what remains for Barnett to challenge? Barnett contends that the trial court erred



       7
        Barnett was found guilty of selling methamphetamine within 1500 feet of a church
pursuant to Mississippi Code Sections 41-29-139, -142 (Rev. 2018). Exhibit S-7 was a map
purporting that Barnett’s transaction with Dido occurred within 1500 feet of Highlands
Baptist Church in Laurel, Mississippi. Barnett filed a post-trial motion challenging the
sufficiency of exhibit S-7 to prove the sentencing enhancement. The trial judge agreed and
entered an order amending Barnett’s sentence by vacating the sentencing enhancement.
       8
        In the trial judge’s final charge to the jury, instruction C-1 directed in part that the
jury must “carefully scrutinize all the testimony given, the circumstances under which each
witness . . . testified, and every matter in evidence which tends to show whether a witness
is worth of belief.” Instruction C-1 further informed the jury that “[i]t is your exclusive
province to determine the facts in this case and to consider and weigh the evidence for that
purpose.” Instruction C-1 additionally informed the jury in part that “[y]ou are not to single
out any one Instruction alone as stating the law, but you must consider all of the Jury
Instructions as a whole.” Moreover, in jury instruction S-1, the jury was informed that if the
prosecution failed to prove any essential element of the crime beyond a reasonable doubt,
then the jury was required to find Barnett not guilty.

                                              11
by improperly commenting on the weight of the evidence in jury instruction S-3A. S-3A

reads verbatim:

       The Court instructs the jury that it is permissible for a technical reviewer to
       testify in place of the primary analyst even if the witness did not perform the
       analysis first hand, as long as the witness has intimate knowledge of the
       analyses and was actively involved in the production of the report at issue.

¶28.   The Court’s longstanding principle when reviewing a trial judge’s decision to grant

or deny a proposed jury instruction is that if the instructions, when read together, (1) “fairly

announce the law of the case” and (2) “create no injustice,” then “no reversible error will

be found.” Stewart v. State, 378 So. 3d 379, 388 (Miss. 2024) (emphasis added) (internal

quotation mark omitted) (quoting Montgomery v. State, 253 So. 3d 305, 316 (Miss. 2018));

see also Rayburn v. State, 312 So. 2d 454, 456 (Miss. 1975). Moreover, “this Court has held

that instructions which emphasize any particular part of the testimony in such a manner as

to amount to a comment on the weight of that evidence are improper.” Sanders v. State, 586

So. 2d 792, 796 (Miss. 1991) (emphasis added) (citing Duckworth v. State, 477 So. 2d 935,

938 (Miss. 1985)). The instruction at issue in today’s case does not.

¶29.   Charlotte Cothern was employed as a technical reviewer at the crime lab. Generally,

a primary analyst physically examines the substance. The primary analyst first performs a

preliminary test, and if the preliminary test yields a presumptively positive result, the analyst

then conducts a confirmatory test. A work packet is prepared that logs the results of the tests.

The technical reviewer, i.e., the primary analyst’s supervisor, examines the work packet to

ensure that the primary analyst has followed the proper protocol in obtaining and recording

their findings. If the reviewer approves of the methodology, the reviewer certifies the results

                                               12
of the work packet in a final crime lab report, which is signed by the reviewer. This is what

occurred in today’s case.

¶30.   The majority does not opine that S-3A is an inaccurate statement of law. The report

had to be authenticated pursuant to Mississippi Rule of Evidence 803(6) to be admitted.9 It

is uncontested that the trial judge properly admitted the report.           This Court has

unambiguously held that “a supervisor, reviewer, or other analyst involved may testify in

place of the primary analyst where that person was actively involved in the production of the

report and had intimate knowledge of the analyses even though he or she did not perform the

tests first hand.” Hingle v. State, 153 So. 3d 659, 663 (Miss. 2014) (internal quotation marks

omitted) (quoting Grim v. State, 102 So. 3d 1073, 1081 (Miss. 2012); Jenkins v. State, 102


       9
       (6) Records of a Regularly Conducted Activity. A record of an act, event, condition,
opinion, or diagnosis if:

       (A)    the record was made at or near the time by—or from information
              transmitted by—someone with knowledge;

       (B)    the record was kept in the course of a regularly conducted activity of
              a business, organization, occupation, or calling, whether or not for
              profit;

       (C)    making the record was a regular practice of that activity;

       (D)    all these conditions are shown by the testimony of the custodian or
              another qualified witness, or by a certification that complies with Rule
              902(11); and

       (E)    the opponent does not show that the source of information or the
              method or circumstances of preparation indicate a lack of
              trustworthiness.

Miss. R. Evid. 803(6). See also Fed. R. Evid. 803(6) (containing a nearly identical rule).

                                             13
So. 3d 1063, 1069 (Miss. 2012)).

¶31.   S-3A was clearly not a peremptory instruction. It provided a statement of law to the

jury conditioned on their determination of specific factual questions. If, based on Cothern’s

testimony, the jury found that she did not have intimate knowledge of the analysis in testing

the substance for Barnett, the jury was free to disregard her testimony as well as the lab

report. The same is true had the jury found that Cothern was not actively involved in

producing the lab report. Conversely, if the jury had answered both questions affirmatively,

S-3A merely informed that the prosecution did not fail to meet its burden based on the sole

fact that the reviewer was called in place of the analyst. It made no comment on the weight

of the evidence nor did it bolster the credibility of Cothern.

¶32.   The majority opines that the average juror would know that it was permissible for

Cothern to testify in place of the primary analyst in her capacity as a technical reviewer from

the fact that she was allowed to take the stand in the first place. No one can know the

amount of legal knowledge that each individual juror may or may not possess. Parties are

permitted to propose instructions to provide jurors with accurate statements on a particular

point of law, and trial courts are aptly positioned to grant proper instructions in their sound

discretion.

¶33.   The jury was required to determine whether the substance obtained from Barnett was

a controlled substance to convict him of selling methamphetamine. Barnett’s defense

counsel contended when moving for a directed verdict that the prosecution failed to put on

proof that Barnett sold a controlled substance because “[t]he only person testifying on behalf



                                              14
of the crime lab was a technical reviewer, who is not able to testify as to the substance that

was analyzed, which she didn’t participate in.” (Emphasis added.) Later, in responding to

an objection during the instruction conference, the trial judge expressed that

       [U]nder the law from the Supreme Court it is permissible for the State to bring
       the reviewer as long as these requirements are met. . . . And without this
       information the jury will hear you argue that the State has failed because they
       didn’t go get the person that did the test, and that’s contrary to the law because
       the law says they can bring the reviewer.

¶34.   Had S-3A informed the jury that it should believe Cothern or that her testimony alone

was sufficient to conclusively establish an element of the crime, then this would be a horse

of a different color. But this is nothing more than an attempt to take portions of the trial

judge’s words out of the context in which they were spoken to infer a prejudicial motivation

for granting S-3A.

¶35.   In Robinson v. State, the Court reviewed an instruction that stated in part: “you have

heard evidence during the trial that the witness, Darius Wright, identified the defendant. The

identification of the defendant by a single eyewitness, as the person who committed the

crime, if believed beyond a reasonable doubt, can be enough evidence to convict the

defendant.” Robinson v. State, 247 So. 3d 1212, 1222 (Miss. 2018). In that case, the two

dissenting Justices opined that “[t]he problem with Instruction S-14A was that, although

there were numerous eyewitnesses to the shooting, it focused the jury’s attention on the

State’s strongest eyewitness[.]” Id. at 1238 (Kitchens, P.J., dissenting). Like the majority

in the case sub judice, the dissent in Robinson selected portions of the trial judge’s words

spoken outside the presence of the jury to find that the challenged instruction created an



                                              15
injustice against the defendant. Id.

¶36.   The majority in Robinson, however, held that “the mere mention of Wright’s

testimony in Instruction S-14 did not amount to an improper comment on the weight of the

evidence.” Robinson, 247 So. 3d at 1223-24 (majority opinion). The majority found that

“Instruction S-14A did not require the jury to assign a certain weight to Wright’s testimony.”

Id. at 1223. The majority further found that “Instruction S-14A did not require the jury to

convict Robinson even if it believed Wright’s testimony.” Id. Additionally, the instruction

provided a correct statement of law. Id. (quoting Doby v. State, 532 So. 2d 584, 591 (Miss.

1988)). The majority concluded that “Instruction S-14A left to the jury the task of judging

the credibility of Wright’s testimony and weighing it against the other evidence presented at

trial.” Id. at 1223.

¶37.   The same is true today. S-3A contained an accurate statement of law applicable to

today’s case. The trial judge’s decision to grant S-3A did not prejudice Barnett or create an

injustice against him. Accordingly, the trial judge did not commit reversible error by

granting S-3A.

       BRANNING, J., JOINS THIS OPINION.




                                             16