author: MOORE, J.

text:
    STATE of Louisiana, Appellee v. Thomas G. WHITE, Appellant
    No. 52,530-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered May 8, 2019
    LOUISIANA APPELLATE PROJECT, By: Bertha M. Hillman, Counsel for Appellant
    ROBERT S. TEW, District Attorney, JOHN G. SPIRES, Assistant District Attorney, Counsel for Appellee
    Before MOORE, COX, and BLEICH (Ad Hoc), JJ.
   MOORE, J.

Following a bench trial, Thomas Casey White was convicted as charged for the attempted second degree murder of Charles Ashlock. White was sentenced to 20 years at hard labor, the first 10 years to be served without benefits. White now appeals.

The absence in the record evidencing a valid waiver of White's right to trial by jury requires that we vacate White's conviction and sentence.

FACTS

Mid-afternoon on February 25, 2013, while riding in the passenger seat of a pickup truck driven by Charles Ashlock on Naff Avenue near Highway 165 South in Bastrop, Louisiana, Casey White, age 42, suddenly told Ashlock, "I'm gonna kill you," and he pulled out his pocket knife and slashed Ashlock's throat. Ashlock received several more stab wounds as he fended off the attack. Meanwhile, Ashlock's truck veered off the road, knocking out a fence in front of a house before coming to a stop in the ditch in front of the house. White jumped out of the truck and fled. Ashlock got out of the truck and knocked at the door of the house to get help. He removed his shirt and wrapped it around his neck to help stop the bleeding. He got back into the truck and, fortunately, he was able to back it out of the ditch.

Driving north on Martin Luther King South, Ashlock came up behind a Morehouse Parish Sheriff's vehicle travelling in the same direction. He began honking his horn behind the police unit. Hearing the horn, Deputy Sara Coleman stopped her police unit. She got out and saw the shirtless Ashlock covered in blood with a "towel" around his neck. Ashlock told her he had been stabbed by his best friend. Concerned over his loss of blood, Deputy Coleman put Ashlock in the front seat of her vehicle and drove him to Morehouse General Hospital. Although critically injured, Ashlock survived.

Police went to Ashlock's home searching for White. He was not there, nor had Ashlock's wife seen White since he left with her husband earlier in the day. White was well known to the couple, and he had been living with Ashlock and his wife, Joanna, who were trying to help White. They knew that White was schizophrenic and thought he was taking his medication.

Police spoke with White's grandmother who lived next door to the Ashlocks. She informed them that White was on several types of medication, including one for schizophrenia.

The next day, White's grandmother notified authorities that he could be found at the Preferred Inn, Room 364, in Bastrop. White was taken into custody without incident. He told officers that he was taken off some of his medications and was hearing voices. It is also not disputed that White was experiencing paranoid delusions at that time. In his statement to police, White said that the night before the attack, he overheard the Ashlocks talking about getting rid of something by taking it off. He assumed that they were talking about getting rid of him.

In light of White's history of mental illness, his trial counsel filed a motion for appointment of a sanity commission. Drs. James B. Pinkston and John R. Turpin were appointed to the commission. On June 26, 2014, White was committed to the Department of Health and Hospitals. On September 12, 2014, White's doctor at the mental institution confirmed that he was now competent to stand trial.

White entered a plea of not guilty and not guilty by reason of insanity. At trial, his counsel offered the sanity commission reports of Drs. Turpin and Pinkston as evidence that White did not have the capacity to determine right from wrong at the time of the crime. Dr. Turpin evaluated White and concluded that he was suffering from chronic paranoid schizophrenia and was incapable of distinguishing right from wrong at the time of the offense. Dr. Pinkston also examined White and noted that White was experiencing paranoid delusions, but could not conclude that he could not distinguish right from wrong when he cut Ashlock's neck. The trial court found that White was competent to stand trial.

The minutes of the court show that, at his arraignment on March 26, 2013, White elected trial by jury. On June 15, 2015, White was present in court with his attorney for trial. On the morning of trial, however, the following exchange occurred:

Court: Alright. What does the state intend to try Mr. White on?
D.A.: Attempted second degree murder.
Court: Mr. White says he's waiving a jury trial. Has he formerly [sic ] waived it before?
Defense: Yes.
Court: Does the DA concur? Are you satisfied with his waiver?
D.A.: Sir?
Court: I was just checking with the DA. Are ya'll satisfied with his waiver?
D.A.: We are satisfied with the waiver, but there is another pretrial matter, I think, before we get into this trial that needs to be addressed.

After a discussion of the sanity commission proceedings, the trial court asked again:

Court: Is the state is [sic] satisfied that the defendant has adequately waived his right to trial by jury?
D.A.: Yes, Your Honor.
Court: You are confident in that?
D.A.: Yes, Your Honor.
Court: Very good. I take it you are ready to proceed with trial?
D.A.: Yes, Your Honor....

The bench trial proceeded and the court found White guilty as charged and subsequently sentenced him. This appeal followed.

DISCUSSION

By his first assignment of error, the defendant alleges that the record does not show a "free and voluntary" waiver of his right to a jury trial. The state concedes that the record does not show a valid waiver and agrees that White's conviction and sentence must, therefore, be vacated. Our review of the record confirms that there is no evidence whatsoever of a valid waiver of White's right to trial by jury.

"A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge." La. C. Cr. P. art. 780(A). However, Article I, Section 17 of the Louisiana Constitution requires that "[t]he waiver shall be by written motion filed in the district court not later than forty-five days prior to the date the case is set for trial" ... and "signed by the defendant" and "defendant's counsel unless the defendant waived his right to counsel." La. C. Cr. P. art. 780(B).

Prior to the legislature's amendment to Art. 780 in 2013, our law did not contain the requirement of a written motion signed by the defendant. Even prior to the amendment, however, our jurisprudence held that a defendant's knowing and intelligent waiver of his right to a jury trial must be sufficiently demonstrated by the record. State v. Muller , 351 So.2d 143 (La. 1977) ; State v. Morris , 49,987 (La. App. 2 Cir. 9/30/15), 178 So.3d 1028 ; State v. Robinson , 48,819 (La. App. 2 Cir. 2/26/14), 136 So.3d 302 ; State v. Hicks , 41,906 (La. App. 2 Cir. 12/20/06), 945 So.2d 959 ; State v. Davis , 41,180 (La. App. 2 Cir. 11/3/06), 942 So.2d 1196. The record on appeal must show some manifestation of an effective waiver. State v. Morris, supra . Because the waiver of the right to a jury trial will not be presumed from a silent record, the waiver must be express. State v. Wilson , 437 So.2d 272 (La. 1983) ; State v. Morris, supra ; State v. Hicks, supra .

Great importance is attached to the right to a jury trial, and a trial judge must exercise great care in allowing a criminal defendant to waive the right. A valid waiver of trial by jury occurs only if the defendant acted voluntarily and knowingly. State v. Kahey , 436 So.2d 475 (La. 1983). In making the determination whether a defendant made a voluntary and knowing waiver, a trial court is required to determine only whether the defendant's waiver was made knowingly and intelligently. State v. Campbell , 42,099 (La. App. 2 Cir. 6/20/07), 960 So.2d 363.

The preferred method is for the district court to advise a defendant of the right to trial by jury in open court before obtaining a waiver, but such a practice is not statutorily required. State v. Robinson, supra ; State v. Campbell, supra . Likewise, it is also preferred, but not necessary, for the defendant to waive the right to a jury trial personally. State v. Pierre , 02-2665 (La. 3/28/03), 842 So.2d 321. Defense counsel may waive the right on the defendant's behalf, provided that the defendant's decision to do so was made knowingly and intelligently. Id.

In State v. Robinson, supra , we said,

While the trial judge must determine if a defendant's jury trial waiver is knowing and intelligent, that determination does not require a Boykin -like colloquy. State v. Campbell, supra . Prior to accepting a jury trial waiver, the trial court is not obligated to conduct a personal colloquy inquiring into a defendant's educational background, literacy, and work history. Id. Additionally, nothing in the statutes or the jurisprudence requires the trial judge to inform a defendant of the details involving the number of jurors and the votes necessary for a conviction. Id.

The remedy employed by courts varies from remanding for a determination as to the voluntariness of the waiver to vacating the conviction and sentence. See above-cited cases.

The record in this case is devoid of any evidence of White's knowing and voluntary waiver of his right to trial by jury. There is no written waiver as required by La. C. Cr. P. art. 780, no express oral waiver either by White or his counsel and no evidence that any such waiver was timely made. The only reference to a waiver of jury trial is contained in the colloquy quoted above, which in no way proves a knowing and voluntary waiver on the part of White.

As the parties have noted, prior jurisprudence offers two possible remedies in this type of case: (1) remand for a determination of the voluntariness of the waiver, or alternatively, (2) vacate the conviction and sentence. Both defense counsel and the state agree that the latter remedy is more appropriate in this case, particularly since the trial judge who accepted the waiver is retired and several years have passed since the alleged waiver.

Accordingly, we vacate the conviction and sentence in this case. In view of this decision, discussion of White's second assignment of error is pretermitted.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Thomas White are vacated.

CONVICTION AND SENTENCE VACATED.

      White's grandmother lived next door to the Ashlocks. Previously, White had lived with his grandmother but eventually moved in with the Ashlocks.

      In State v. Bazile , 12-2243 (La. 5/7/13), 144 So.3d 719, the Louisiana Supreme Court held that the 45-day period applies prior to the initial trial date regardless of any subsequent continuances.

      La. Acts 2013 No. 343, § 1, effective June 13, 2017.


source: Caselaw Access Project

author: COLEMAN, JUSTICE, FOR THE COURT: KING, PRESIDING JUSTICE, DISSENTING:

license: Public Domain

text:
    David STANFIELD a/k/a David Lee Stanfield v. STATE of Mississippi
    NO. 2018-KA-00081-SCT
    Supreme Court of Mississippi.
    May 9, 2019
    ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK, GEORGE T. HOLMES, JACKSON
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOE HEMLEBEN
    EN BANC.
   COLEMAN, JUSTICE, FOR THE COURT:

¶1. David Lee Stanfield was convicted of aggravated assault and of felon in possession of a firearm. The sole issue before the Court is whether the trial court erred in instructing the jury that self-defense is not a defense to the crime of felon in possession of a firearm. It did not. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On the night of February 18, 2015, Stanfield was at his sister Glenda Rose Stanfield's house in Okolona, Mississippi, where people were drinking, smoking, and gambling. Terence "Buck" Ford, Michael "Weezee" Ford, and Markel "Ketchup" Weeks also were at Glenda's that night. At some point that night, gunshots were fired, and Terence, Michael, and Weeks were injured. Several other people were at Glenda's that night, but most had left to obtain more alcohol before the shooting occurred. Conflicting testimony exists in the record regarding whether Stanfield fired the shots that night in self defense or if Stanfield had been the aggressor.

¶3. Stanfield was indicted for three counts of aggravated assault for the shooting of Terrance, Michael, and Weeks. Stanfield was also indicted for one count of felon in possession of a firearm.

¶4. Terrance testified that he had not been in possession of a gun the night of the shooting and that he had not seen Stanfield gambling. Terrence testified that Stanfield had walked into the kitchen that night and had shot him in the chest three times.

¶5. Michael testified that he had not seen Stanfield gambling the night of the shooting. Michael testified that he had been sitting in the kitchen with Terrence and Weeks when Stanfield came into the kitchen with a gun in his hand and, without speaking, shot Terrence three times in the chest. After Stanfield shot Terence, Michael ran and hid in a corner. Michael testified that Stanfield then reached across the table and shot at him. Michael saw Weeks dive under the table. Then, Stanfield was "talking to Robert Hill, Skeebo; and Skeebo was talking to him back. He said, [Stanfield], you ain't got to kill me. You can have it."

¶6. Michael testified that Stanfield then flipped the table over and asked Weeks, "Where's the gun?" Weeks responded that he did not have a gun. Michael testified, "I reached up for the back door. He seen me and said, Don't you move. You know you had this coming. I said, Don't kill me. I got a son to live for. That's when [Weeks] started running." Michael testified that Stanfield began shooting at Weeks, and he jumped out the window. Michael sustained a minor injury on his left arm. The evidence was disputed whether Michael was grazed by a bullet or whether he sustained a laceration from jumping out of the window.

¶7. Weeks testified that he had not seen Stanfield play dice the night of the shooting, that Stanfield had entered the kitchen without saying anything, and that Stanfield had started shooting. Weeks testified that Stanfield shot Terrence two or three times and then leaned over the table and shot again. Weeks hid under the table. Stanfield then put a gun in Weeks's face and asked him if he had a gun. Weeks responded that he did not have a gun. Weeks testified that no one else had brought a gun to Glenda's on the night of the shooting. Weeks testified that he fled and that Stanfield was chasing him. Weeks heard gunshots. Weeks fell to the ground, and, when he got up and began running again, he realized he had been shot in the pelvic area. The evidence was disputed whether Weeks was shot from behind or from the front.

¶8. Marquon Evans, a part-time Okolona Fire Department employee, testified that he had lived close to Glenda and that Michael had run to his house that night, had asked for help, and had stated that Stanfield had been shooting at him. Tameka Betts, an officer with the Okolona Police Department, testified that she had been patrolling that night when a vehicle came behind hers at a high rate of speed. Officer Betts stopped her car and observed Terrence jump out of the car behind hers. Officer Betts testified that Terrence had stated that he had been shot by Stanfield while he was at Glenda's house. Dwight Parker, assistant chief of police, testified that he received a call that another gunshot victim was located at the Townhouse Apartments. Assistant Chief Parker testified that when he arrived at the apartment, he observed Weeks with a gunshot wound to the pelvic area. Assistant Chief Parker also testified that Weeks said that Stanfield had shot him.

¶9. Stanfield gave a statement that on the night of the shooting, he had been playing dice at Glenda's house and won $ 900. After he finished gambling, Stanfield fell asleep in the living room. When he awoke, he stated that his pockets were flipped inside out. Stanfield walked into the kitchen where Terence, Michael, and Weeks were sitting and asked who had taken his money. Stanfield stated that Terence then had pulled out a gun and had told him to give him the rest of the money. Stanfield claimed that he started wrestling with Terence for the gun, and the gun went off and struck Terence. Stanfield said he shot once or twice more, dropped the gun, and left the house because he was scared. Stanfield's testimony at trial essentially mirrored his statement. Stanfield stipulated that he had been convicted of a felony.

¶10. The trial court instructed the jury on both self-defense and the defense of necessity. The trial court gave a defense-of-necessity instruction, Instruction C-7, which read as follows:

A defense to being a felon in possession of a firearm may occur when the Defendant acts out of necessity.
In order to be entitled to a defense of necessity, the Defendant must prove the following: (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided.

¶11. Over Stanfield's objection, the trial court gave Instruction S-6. Instruction S-6 provided as follows:

The Court instructs the jury that self-defense is not a viable defense to possession of a firearm by a convicted felon.

Stanfield had objected to the instruction, arguing that the self-defense instruction contradicted the necessity instruction.

¶12. The trial court refused Instruction D-3. Instruction D-3 read as follows:

If you find that the defendant unarmed Terrance Ford acting in self defense and only possessed any firearm which he may have taken from him in such defense, then you shall find him not guilty of possession of a firearm by a convicted felon. The burden of proof is on the State of Mississippi to prove the Defendant was not acting in self defense as to said charge.

¶13. The jury found Stanfield guilty of aggravated assault of Weeks and of felon in possession of a firearm. The jury found Stanfield not guilty of aggravated assault of Michael and could not come to a decision about the aggravated assault of Terrance. The trial court sentenced Stanfield to twenty years for the aggravated assault of Weeks and to ten years for felon in possession of a firearm, with five years suspended. The trial court ordered the sentences to run consecutively.

¶14. Stanfield appeals, raising the sole issue of whether the trial court erred in instructing the jury that self-defense is not a defense to a felon in possession of a firearm charge, while also instructing the jury that necessity is a valid defense to unlawful possession.

STANDARD OF REVIEW

¶15. The grant or denial of jury instructions is reviewed for an abuse of discretion. Thomas v. State , 249 So. 3d 331, 346 (¶ 49) (Miss. 2018). "A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id. (quoting Hale v. State , 191 So. 3d 719, 723 (¶ 9) (Miss. 2016) ). "[T]he instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found."

Newell v. State , 49 So. 3d 66, 73-74 (¶ 20) (Miss. 2010) (quoting Rubenstein v. State , 941 So. 2d 735, 785 (¶ 224) (Miss. 2006)).

DISCUSSION

Whether the trial court erred in instructing the jury that self-defense is not a defense to felon in possession of a firearm.

¶16. Stanfield does not contest the substance of the necessity instruction or argue on appeal that the trial court's rendition of the elements of the defense of necessity was incorrect; rather, Stanfield contends that the trial court erred in giving Instruction S-6, instructing the jury that "self-defense is not a viable defense to possession of a firearm by a convicted felon."

¶17. Here, the trial court instructed the jury on self-defense-pertinent to the aggravated assault counts-and necessity-pertinent to the felon in possession count. In fact, the trial court gave two instructions on self-defense-one requested by the State and one requested by Stanfield. The first self-defense instruction, Instruction S-4B, read as follows:

THE COURT instructs the jury that to make an assault upon another human being justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him great bodily harm, and in addition to this, that there was imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground on which the defendant acts.
The Court instructs the jury that it should apply this analysis to [the three aggravated assault counts].

¶18. Stanfield's requested self-defense instruction, Instruction D-1, also given, read,

In order for the defendant to have acted in self-defense, the defendant must (1) have believed that he was in actual danger; (2) have reasonably believed that Markell Weeks and/or Terrance Ford and/or Michael Ford intended to kill the defendant; or (3) have reasonably believed that any or all of them intended to cause great bodily harm to the defendant and that the defendant reasonably believed that any or all of them were about to carry out such actions against the defendant. The defendant does not have to prove that he acted in self-defense. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the State did not prove beyond a reasonable doubt that the defendant did not act in self-defense, then you shall find the defendant not guilty of any and all such counts in this case in which the state did not prove such.

¶19. The trial court gave Instruction C-7 to cover Stanfield's claim of necessity. It read,

A defense to being a felon in possession of a firearm may occur when the Defendant acts out of necessity.
In order to be entitled to a defense of necessity, the Defendant must prove the following: (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided.

¶20. Stanfield does not take issue with the self-defense instructions given, but he contends that the trial court erred by instructing the jury that self-defense is not a defense to felon in possession of a firearm because the defense of necessity encompasses the right to act in self-defense. The Mississippi Court of Appeals, in several cases including Williams v. State , 953 So. 2d 260 (Miss. Ct. App. 2006), has provided a persuasive refutation of Stanfield's argument.

¶21. In Williams , the defendant was convicted of possession of a firearm by a convicted felon. Id. at 261 (¶ 1). Williams argued with another man in front of Williams's house. Id. at 261 (¶ 2). The argument ended when Williams shot the other man in the neck. Id. A grand jury indicted Williams for manslaughter and possession of a firearm by a convicted felon. Id. at 262 (¶ 3). At trial, Williams testified that he began to carry the firearm after the decedent struck him with a pistol the day before the shooting. Id. The trial court instructed the jury on the elements of possession of a firearm by a convicted felon, and Williams objected to the instruction because it did not list self-defense as a defense. Id. at 262 (¶ 4). The jury acquitted Williams of the manslaughter count but convicted him of possessing a firearm as a convicted felon. Id. at 262 (¶ 5).

¶22. The Court of Appeals rejected Williams's argument that "the trial court should have allowed a self-defense exception for possession of a firearm by a convicted felon because it allowed a self-defense instruction for manslaughter...." Id. at 263 (¶ 8). The Williams Court noted that, unlike manslaughter, possession of a firearm by a convicted felon "is a criminal act void of a third party" against whom to defend. Id. Williams committed the crime of possession of a firearm by a convicted felon whether the decedent argued with him or not. Id. ; see also Anderson v. State , 185 So. 3d 1015, 1023-24 (¶¶ 34-35) (Miss. Ct. App. 2014) ; Roberson v. State , 19 So. 3d 95, 101 (¶ 9) (Miss. Ct. App. 2009).

¶23. After reviewing the jury instructions as a whole, we hold that the trial court did not abuse its discretion in instructing the jury that self defense is not a defense to felon in possession of a firearm.

¶24. In addition to the above-described reasoning of the Court of Appeals, another difference exists between self-defense as delineated by the jury instructions in the case sub judice and the necessity defense. The necessity and self-defense affirmative defenses are different defenses that answer different alleged criminal conduct. As quoted above, Instruction D-1 placed the burden on the State to prove that Stanfield did not act in self-defense. The burden to prove the absence of self-defense traditionally lies with the State. The State bears the burden of proving each element of a crime, and the absence of self-defense is considered to be an element of some crimes against persons. Heidel v. State , 587 So. 2d 835, 843 (Miss. 1991).

¶25. It should be noted that the Legislature, in drafting the aggravated assault statute, chose not to make the absence of self-defense an element of aggravated assault. Accordingly, the practice of placing the burden of proving that the defendant did not act in self defense on the State in an aggravated assault case could be questioned. Nevertheless, the Legislature did not include any element requiring an absence of necessity in the statute criminalizing the possession of a firearm by a felon. The fact that, on one hand, self-defense, at least as instructed in the instant case, germinates from legislatively defined elements of crimes against persons and, on the other hand, necessity is a common-law defense that must be proved by the defendant further illustrates that the two instructions are not hopelessly in conflict, as Stanfield suggests.

¶26. Because self-defense and the defense of necessity are two distinct affirmative defenses with different origins, applicable to different situations, the trial court correctly instructed the jury, and we affirm Stanfield's conviction.

¶27. AFFIRMED.

RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.

KING, PRESIDING JUSTICE, DISSENTING:

¶28. David Stanfield presented testimony that, because he was in fear of bodily harm, he temporarily possessed a weapon out of necessity. Therefore, the trial court's decision to grant a necessity instruction while also instructing the jury that self-defense is not a defense to a charge of felon in possession of a firearm denied David Stanfield's fundamental right to assert his lawful defense. Accordingly, I dissent.

¶29. The standard of review for the grant or denial of jury instructions is abuse of discretion. Newell v. State , 49 So. 3d 66, 73 (Miss. 2010). When reviewing jury instructions, "[t]he instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Id. at 73 (quoting Rubenstein v. State , 941 So. 2d 735, 785 (Miss. 2006) ). "[E]very accused has a fundamental right to have her theory of the case presented to a jury, even if the evidence is minimal.... This Court will never permit an accused to be denied this fundamental right." Chinn v. State , 958 So. 2d 1223, 1225 (Miss. 2007) (internal quotation marks omitted) (quoting O'Bryant v. State , 530 So. 2d 129, 133 (Miss. 1988) ).

¶30. The trial court gave a defense-of-necessity instruction, Instruction C-7, which stated,

A defense to being a felon in possession of a firearm may occur when the Defendant acts out of necessity.
In order to be entitled to a defense of necessity, the Defendant must prove the following: (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided.

However, the trial court also gave Instruction S-6, which stated,

The Court instructs the jury that self-defense is not a viable defense to possession of a firearm by a convicted felon.

¶31. Therefore, the trial court simultaneously instructed the jury that Stanfield legally may have possessed a firearm out of necessity but that self-defense could not be a part of that necessity. I would find that both jury instructions conflicted, caused confusion, created an injustice, and denied Stanfield his right to present his defense. I do not disagree with the majority's statement that self-defense and necessity are separate legal defenses. However, although self-defense is a separate legal defense, the concept of the defense of oneself is a valid part of the necessity defense, just as reasonable necessity is an underlying part of the legal defense of self-defense. See Thornton v. State , 191 Miss. 407, 1 So. 2d 778, 779 (1941) (This Court previously has stated that "[t]he right of self-defense is coterminous with reasonably apparent necessity.").

¶32. The necessity instruction provided that Stanfield must prove that "the act charged was done to prevent a significant evil." Stanfield stated that when he walked into the kitchen, Terence pulled out a gun and demanded money. Stanfield then wrestled for the gun and the gun went off. Therefore, self-defense was the underlying part of the necessity of possessing a weapon. See Humphrey , 553 S.E.2d at 554 (emphasis added) ("The evidence, viewed in the light most favorable to appellant, supported a necessity instruction because it established that appellant's possession of the shotgun on December 29, 1999 was for the purpose of justifiable self-defense ...."). However, the trial court instructed the jury that self-defense could not be a viable defense to possession of the firearm. Therefore, when read as a whole, the jury instructions excluded the possibility that Stanfield possessed a firearm out of necessity to prevent bodily harm to himself. This denied Stanfield his fundamental right to assert his defense.

¶33. Stanfield's theory of defense was that he was in fear of bodily harm, thus, out of necessity, he temporarily possessed a firearm to defend himself. Because self-defense is an interrelated concept with the defense of necessity, instructing the jury that the defendant may have lawfully possessed a firearm out of necessity while also giving the instruction that self-defense is not a defense to the charge was hopelessly confusing. When looking at the jury instructions as a whole, the conflicting instructions created an injustice to Stanfield and denied Stanfield his fundamental right to assert his lawful defense. Accordingly, I would find that the trial court abused its discretion in granting both instructions and would reverse Stanfield's conviction and remand for a new trial.

KITCHENS, P.J., JOINS THIS OPINION.

      Testimony indicated that Kevin "Tojo" Stanfield, Robert "Skeebo" Hill, and Octavious "Mookie" Stevens might have been in the room when the shooting occurred, but they did not testify at trial.

      See also Humphrey v. Commonwealth , 37 Va.App. 36, 553 S.E.2d 546, 552 (2001) (emphasis added) ("As set out above, the essential elements of the necessity defense, which allows a convicted felon to possess a firearm for self-defense ...."); State v. Padilla , 164 P.3d 765, 772 (Haw. Ct. App. 2007), corrected (Aug. 16, 2007) ("In felon-in-possession cases, the distinctions between the common law defenses of duress, necessity, and self-defense are regarded as immaterial, and the modern trend is to lump these defenses together under the generic rubric of 'justification.' " (citations omitted)); McGhee v. Commonwealth , 219 Va. 560, 248 S.E.2d 808, 810 (1978) (emphasis added) ("The law of self-defense is the law of necessity....").


author: FAIR, J., FOR THE COURT:

text:
    Sharon G. LEE and Herbert Lee, Jr., Appellants v. CITY OF BYRAM, Mississippi, Mayor Richard White and Board of Aldermen of the City, Appellees
    NO. 2016-CA-01649-COA
    Court of Appeals of Mississippi.
    August 28, 2018 Rehearing Denied November 20, 2018
    ATTORNEYS FOR APPELLANTS: JANE E. TUCKER, EDWARD BLACKMON, HERBERT LEE JR.
    ATTORNEYS FOR APPELLEES: JOHN PRESTON SCANLON, JERRY L. MILLS
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. Sharon and Herbert Lee filed a "Verified Complaint for Declaratory Relief, Injunctive Relief, Damages and Other Relief, Including Declaring Invalid Zoning Ordinance ...," contending, among other things, they had not received the required notice that the City of Byram intended to consider rezoning certain property located near their home. The Lees' complaint was filed about ten months after the zoning decision, and the circuit court ultimately dismissed the complaint after finding that it was not filed as an appeal from the zoning decision within ten days, as required by statute. We hold that this was in error because under the recent Mississippi Supreme Court decision City of Jackson v. Jordan , 202 So.3d 199, 204 (¶ 14) (Miss. 2016), when the required notice is not given, an appeal is not the exclusive remedy and the statutory time limit for appeals does not apply.

FACTS

¶ 2. The City of Byram incorporated in 2009 and adopted a comprehensive zoning plan in 2011. At issue here is the zoning of several parcels on Siwell Road, in the north part of town. 4101 Siwell Road is the site of a used-car dealership called "Hillcrest Motors." The site of Hillcrest Motors had been zoned commercial by the county, but it was zoned residential in Byram's new comprehensive plan. The parties agree this was a mistake, and the Lees say they have no objection to rezoning the Hillcrest Motors site. The Hillcrest Motors site was owned by Hillcrest Motors' proprietors, Brett and Joni Hutchins. A larger, eighty-seven-acre parcel to the south was owned by "Hillcrest Motors LLC" and zoned either residential or agricultural in the Byram comprehensive plan.

¶ 3. The Lees contend that the City has repeatedly confused the two parcels, since the Hutchinses own the site of Hillcrest Motors and Hillcrest Motors LLC owns the land to the south. In 2012 the City set out to correct the mistaken zoning of the site of the dealership, but the ordinance it passed identified the rezoned property only as "certain property located on Siwell Road owned by Hillcrest Motors." The Lees contend this language can only be interpreted as referring to the eighty-seven-acre parcel, not the site of Hillcrest Motors as the City may have intended. Then, in 2013, the City rezoned a two-acre portion of the eighty-seven acres, located at 4149 Siwell Road, where the Hutchinses were building a dance studio. This property is across the street from the Lees' home.

¶ 4. The City then moved to "correct" these rezonings due to a number of errors in the first efforts; it re-rezoned the sites of the dealership and the dance studio in late 2013 and early 2014, respectively. The 2013 and 2014 rezonings of the dance-studio site are apparently being contested by the Lees in separate, ongoing proceedings.

¶ 5. In 2015, the circuit court dismissed the Lees' 2013 complaint-the one that is the subject of this appeal-because it was not filed as a timely appeal from the 2012 zoning decision. The City contends that this was correct, a point we reject because a timely appeal was precluded by the City's failure to publish proper notice. The City also contends that the 2013 and 2014 rezonings render the 2012 rezoning moot. Given the disconnect between the City's assertions as to what the 2012 ordinance did and what it actually says, we disagree on that point as well, and so we reverse and remand for further proceedings.

DISCUSSION

1. Jurisdiction, Timeliness of Appeal, and Exclusive Remedy

¶ 6. The circuit court dismissed the Lees' suit on the basis that it was not filed as a timely appeal from the 2012 zoning decision. In doing so, the court relied on Mississippi Code Annotated section 11-51-75 (Rev. 2012), which provided in relevant part that:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision, and may embody the facts, judgment and decision in a bill of exceptions which shall be signed by the person acting as president of the board of supervisors or of the municipal authorities.

¶ 7. Ordinarily, an appeal to circuit court under section 11-51-75 is an "exclusive remedy" for a party aggrieved by the decision of a municipal authority. See, e.g. , Malone v. Leake Cty. Bd. of Sup'rs , 841 So.2d 141, 145 (¶ 9) (Miss. 2003). But in Jordan , 202 So.3d at 204 (¶ 14) (Miss. 2016), the Mississippi Supreme Court made it clear that "the appeal process of Section 11-51-75 contemplates the aggrieved party receiving proper notice of the hearing." The supreme court noted its prior decision in Williams v. Walley , 295 So.2d 286, 288 (Miss. 1974), where it had held that, when the required notice was not given, an appeal under section 11-51-75"would not have afforded [the plaintiff] adequate relief" and therefore "was not the exclusive remedy under the circumstances." Jordan , 202 So.3d at 204 (¶ 11).

¶ 8. The City seems to concede that there were deficiencies in the published notice for the 2012 hearing before Byram's Mayor and Board of Aldermen. Indeed, the published notice that appears in the record lacks any mention of any of the parcels at issue. We conclude that the notice was deficient, and appeal was not the exclusive remedy. Id. at 204 (¶ 14). The Lees' complaint should not have been dismissed for failure to timely appeal under section 11-51-75.

2. Mootness

¶ 9. Next, we consider the City's claim that the controversy is moot because of the 2014 rezoning of the dance-studio property. The issue here boils down to a dispute over what property the 2012 ordinance rezoned; the ordinance stated that it was rezoning "certain property located on Siwell Road owned by Hillcrest Motors." The Lees contend that by its own terms the 2012 zoning ordinance encompassed the eighty-seven-acre tract "owned by Hillcrest Motors" on Siwell Road; the City asserts that the tract rezoned was the site of Hillcrest Motors, a nearby (but non-adjacent) parcel owned by the proprietors of Hillcrest Motors. (Emphasis added). The City points out that the rezoned property was-at least sometimes-identified in the Zoning and Planning Commission documents as the "site" of Hillcrest Motors. According to the City, the issue is moot because of the 2013 re-rezoning of the Hillcrest Motors site and the 2014 re-rezoning of the two-acre portion of the eighty-seven-acre tract that is the site of the dance studio.

¶ 10. It is apparent to us that there is a remaining issue as to the effect of the 2012 ordinance because, on its face, the ordinance appears to refer to the property the Lees say it does. Regardless of the City's interpretation of the ordinance and assertions regarding its intent, the ordinance itself controls. Byram's Mayor and the Board of Aldermen, like any public board, can only speak and act through its minutes. Wellness Inc. v. Pearl River County Hosp. , 178 So.3d 1287, 1290 (¶ 9) (Miss. 2015). The controversy is not moot.

3. Failure to Prosecute

¶ 11. Finally, the City contends that the suit should have been dismissed for failure to prosecute. This claim is raised for the first time on appeal, and it is barred as a result. See Anderson v. LaVere , 136 So.3d 404, 410 (¶ 27) (Miss. 2014).

¶ 12. REVERSED AND REMANDED.

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

      The statute has since been superseded by legislation effective July 1, 2018.


author: CARLTON, J., FOR THE COURT:

text:
    Craytonia Latroy BADGER a/k/a Craytonia Badger a/k/a Craytonia L. Badger, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01141-COA
    Court of Appeals of Mississippi.
    August 28, 2018 Rehearing Denied January 15, 2019
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, Jackson
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. Craytonia Badger appeals his conviction for burglary of a building and sentence of seven years in the custody of the Mississippi Department of Corrections (MDOC). On appeal, Badger claims that his conviction is unlawful because his constitutional rights were violated when the trial judge denied him the opportunity to recall a witness to testify. While the transcript shows that Badger and his counsel were given an opportunity to question the witness during the State's case-in-chief, Badger claims that because the trial court denied him the ability to properly rebut the witness's testimony later in the trial, the State subjected him to "trial by ambush." Finding no error, we affirm the trial court's judgment.

FACTS

¶ 2. In the early hours of October 22, 2014, the Gloster Police Department received a call about a burglary at Gloster Drug Store (also known as Dixon's Discount Pharmacy). After officers assessed the scene, they received a call from the police department in Ferriday, Louisiana, informing them that Lieutenant Lee Williams of the Ferriday Police Department stopped Badger's vehicle that same evening going northbound on Highway 425. During the traffic stop, Lieutenant Williams conducted a search of Badger's vehicle where he discovered prescription drug bottles from Gloster Drug Store in Badger's possession.

¶ 3. At trial, Lieutenant Williams testified that he conducted a traffic stop after observing that Badger's vehicle did not have a license plate. Lieutenant Williams stated that although he did eventually notice a temporary license plate in the rear window, Badger could not produce a driver's license when requested. Badger did, however, produce a Mississippi identification card. Lieutenant Williams performed a warrant check and discovered two outstanding warrants for Badger's arrest. Lieutenant Williams then arrested Badger for driving without a license and having at least one outstanding warrant for his arrest.

¶ 4. Lieutenant Williams advised Badger of his Miranda rights and asked to search the vehicle, and Lieutenant Williams testified that Badger consented to the search. The search produced evidence connecting Badger to the break-in at Gloster Drug Store, including a maul hammer (that Gloster police believed to be used in the burglary), blood-stained shoes and clothing, and bottles of prescription drugs. Lieutenant Williams testified that his discovery of the prescription drug bottles led him to contact the Amite County Sheriff's Department about having Badger in his custody.

¶ 5. Joseph Heflin, a forensic DNA analyst with the Mississippi Forensic Laboratory, testified at trial that he performed tests on the blood and DNA samples recovered from Gloster Drug Store and Badger's car. Heflin testified that Badger's blood matched the blood on the hammer found in his car and the blood from the pharmacy within a reasonable degree of scientific certainty.

¶ 6. On April 13, 2015, a grand jury indicted Badger for the crime of burglary of a storehouse. The matter went to trial July 25, 2017, and the jury returned a guilty verdict. On July 26, 2017, the trial court sentenced Badger as a habitual offender to serve seven years in the custody of the MDOC. Because of his habitual-offender status, he is ineligible for parole or probation. After the trial court denied his posttrial motions, Badger filed his notice of appeal on August 15, 2017.

STANDARD OF REVIEW

¶ 7. The Mississippi Constitution ensures that those accused in a criminal proceeding have the right to confront witnesses against them. Miss. Const. art. 3, § 26. While criminally accused individuals have that right, the law clearly recognizes a trial court's authority "to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth." Robinson v. State , 40 So.3d 570, 577 (¶ 27) (Miss. Ct. App. 2009) ; see also M.R.E. 611(a). We recognize that "[i]t is within the sound discretion of the trial court to permit a witness to be recalled to the stand once the witness has completed his testimony." Clark v. State , 233 So.3d 832, 847 (¶ 26) (Miss. Ct. App. 2017).

DISCUSSION

¶ 8. On appeal, Badger's sole assignment of error is that the trial court violated his right to examine a witness necessary for his defense. Badger contends that during the trial, Lieutenant Williams's testimony produced new evidence about a potential video recording of the traffic stop. Our review of the record indicates that the defense, not the State, elicited the information from Lieutenant Williams during cross examination. Badger's argument hinges on the following testimony from Lieutenant Williams:

Q: Do y'all have body cameras over there?
A: Yes, sir, we do.
Q: Was it on?
A: I can't remember, sir. To be honest with you, I can't remember. I'm sure it was.
Q: Do you have a video of that?
A: Sir, it's been so long ago that I just can't remember. Honestly, I can't remember.

¶ 9. After concluding cross examination, defense counsel tendered the witness and alerted the trial court to the possibility of calling Lieutenant Williams at a later point in the trial. The trial court responded as follows:

THE COURT: This is your cross-examination. Why would you need to question him later?
[Defense attorney]: Well, we may find evidence that would support -
THE COURT: I'll take that up later. It's possible you can call him as a witness. We'll see.

¶ 10. After the State rested, defense counsel moved for a directed verdict, which the trial court denied. Defense counsel then requested that the trial court recall Lieutenant Williams to the courtroom to testify, claiming that inconsistencies existed between his testimony and that of officers from the Amite County Sheriff's Department and Mississippi Bureau of Narcotics. The State informed the trial court that it would be very difficult to recall Lieutenant Williams, explaining that he was on disability leave and lived a great distance away. The trial court agreed that he "remember[ed] something about the possibility of recalling him," but found that no basis existed to do so because Lieutenant Williams "was up here available and fully questioned yesterday." Badger responded, "There's basis because [Lieutenant Williams] ... testified about the body camera" and also that he took pictures of evidence he found in the trunk of Badger's vehicle, but none of the evidence actually appeared in the photographs. The trial court ruled as follows:

[T]hese are all matters that could have been inquired of the witness when he was here present yesterday. He's an out of state witness on disability, and the State advises that he's not available today. You will be allowed to call the other two witnesses. These are matters that could have been inquired of him yesterday.

¶ 11. Our review of the record indicates that neither Badger nor his counsel requested that the trial court retain Lieutenant Williams for later questioning or to instruct Lieutenant Williams that he remained under subpoena and should not leave in case defense counsel recalled him. The record shows that the State subpoenaed Lieutenant Williams to testify as a witness at trial. Defense counsel failed to subpoena Lieutenant Williams before trial and also failed to request a subpoena instanter for him after his trial testimony. Furthermore, neither defense counsel nor Badger requested a continuance to investigate the "new evidence" heard during Lieutenant Williams's cross examination. Nonetheless, Badger relies heavily on the principle of "trial by ambush" to support his appeal. Badger argues that Lieutenant Williams's disability status did not impede his ability to testify the day before and that the trial court never dismissed him.

¶ 12. The Mississippi Supreme Court has discussed cases where counsel is unable to fully prepare a defense because the prosecution fails to disclose certain facts or witnesses. Badger cites two specific cases, Harris v. General Host Corp. , 503 So.2d 795, 796-97 (Miss. 1986) and Fulks v. State , 18 So.3d 803, 805-07 (¶¶ 3-14) (Miss. 2009), to bolster his argument. Badger's brief cherry picks the applicable law of this State and compares his trial to scenarios where defendants are not given a fair trial because of surprise evidence. Our review of the law, however, identifies that Badger's claims are not as deeply rooted in the law as he contends.

¶ 13. In Harris , an expert witness who was not originally identified in discovery testified at trial, to the surprise of the defense. Harris , 503 So.2d at 796. The supreme court found that this put the defense at a disadvantage because it could not properly prepare to rebut the testimony of an expert witness that the defense had no knowledge of before the morning of trial. Id. at 798.

¶ 14. Additionally, Badger believes the trial court subjected his counsel to conditions similar to the facts in Fulks . Although Fulks did articulate the supreme court's distaste for unsavory prosecutorial tactics, like revealing inculpatory evidence on the eve of trial, it does not fit the facts before us. Fulks , 18 So.3d at 805 (¶ 9). Unlike the case before us, the defense counsel in Fulks moved for a continuance upon the State's revelation of new evidence, and the trial court improperly denied the motion. Id. at 807 (¶ 14).

¶ 15. It is clear from our review of the law that Badger wrongly parallels his treatment at trial to Harris and Fulks . The record reveals that, unlike Harris , defense counsel knew that Lieutenant Williams arrested Badger and that the State subpoenaed Lieutenant Williams to testify at court. Defense counsel failed to request that the trial court retain Lieutenant Williams or instruct him that he remained under subpoena and should not leave in case defense counsel recalled him. The supreme court has addressed the duty of counsel to ensure witnesses are under subpoena many times before. Specifically, counsel has a duty to show that he or she is "either under process or a reasonable effort has been made to serve him or her with a subpoena." Triplett v. State , 666 So.2d 1356, 1359 (Miss. 1995) (quoting Eslick v. State , 238 Miss. 666, 673, 119 So.2d 355, 359 (Miss. 1960) ). To blatantly refuse to seek all avenues to ensure a witness will appear to testify at trial is a failure by the defense. Id. Furthermore, our stringent review of the record points to defense counsel considering the possibility of the existence of the video in trial preparation by way of cross examination questions.

¶ 16. After our review of the record, we find no merit to Badger's argument that he was subjected to trial by ambush or that the trial court erred by refusing to allow Badger to recall Lieutenant Williams after the State's case-in-chief. We therefore affirm the trial court's judgment.

¶ 17. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, FAIR, WILSON AND GREENLEE, JJ., CONCUR. TINDELL, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., CONCURS IN PART AND IN THE RESULT WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J., AND TINDELL, J.

WESTBROOKS, J., CONCURRING IN PART AND IN RESULT:

¶ 18. I agree with the majority's decision to affirm Badger's burglary conviction. I write separately because I find that the trial court abused its discretion in denying Badger the opportunity to recall a witness to testify. Nonetheless, the overwhelming weight of the evidence supports the jury's verdict, and therefore the trial court's error was harmless and does not require reversal of the conviction.

¶ 19. During trial, after cross-examinations, Badger's defense counsel requested an opportunity to recall Lieutenant Williams at a later point in the trial. The trial court responded, "I'll take that up later. It's possible you can call him as a witness. We'll see." The request to question Lieutenant Williams came after the defense learned of possible body-camera footage and photographs of Badger's trunk from the time of his arrest. The trial court ruled that:

[T]hese are all matters that could have been inquired of the witness when he was here present yesterday. He's an out of state witness on disability, and the state advises that he's not available today. You will be allowed to call the other two witnesses. These are matters that could have been inquired of him yesterday.

¶ 20. The Mississippi Court of Appeals has held that a trial judge has not abused his discretion in denying a defendant's request to recall a witness when the defendant has offered no evidence that questioning the witness again would provide any additional, helpful information to the jury. See Clark v. State , 233 So.3d 832, 848 (¶ 27) (Miss. Ct. App. 2017). Here, Badger's defense counsel purported he was not aware of the body-camera footage or photographs from the arrest before trial. Questioning Lieutenant Williams again may have provided clarity on the facts in dispute including whether Badger gave the Lieutenant permission to search his vehicle.

¶ 21. Although the trial court's exercise of discretion to deny permission to recall Lieutenant Williams was unreasonable, I find the error to be harmless in this case. The Mississippi Supreme Court has held that:

Constitutional error does not automatically require reversal of a conviction. However, before a constitutional error is determined to be harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. An error may be found by this Court to be harmless beyond a reasonable doubt only where the weight of the evidence against the accused is overwhelming. A harmless-error determination requires an examination of the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant's guilt.

Walton v. State , 998 So.2d 971, 976 (¶ 14) (Miss. 2008) (citations and internal quotation marks omitted). Badger did not make an effort to subpoena Lieutenant Williams and ensure his presence during his case-in-chief. He failed to request a continuance regarding any new evidence. Lastly, the evidence showed that the DNA of Badger's blood matched the blood found at the crime scene and that the video footage of clothing matched the clothing found in his car. He was caught with a hammer with glass and concrete on it along with prescription drugs taken from the drugstore. The jury's verdict was not contrary to the overwhelming weight of the evidence, and therefore the trial court's error was harmless.

GRIFFIS, P.J., AND TINDELL, J., JOIN THIS OPINION.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      The trial court held a separate hearing to determine Badger's habitual-offender status, and found that Badger constituted a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015).


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Travis CAFFIE a/k/a Travis Montrell Caffie a/k/a Travis M. Caffie, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-00692-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANT: W. TERRELL STUBBS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON
    BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Travis Caffie appeals his convictions of shooting into a dwelling, shooting into a motor vehicle, and two counts of aggravated assault. He argues the circuit court failed to properly instruct the jury on the essential elements of the crimes. Because we find the jury was properly instructed, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On May 21, 2015, Investigator Brian Buckley was dispatched to Elijah Myers's home located at 445 Mary Grove Church Road in Simpson County. When he arrived, Investigator Buckley saw Myers sitting under the carport of his house with a bullet wound to his leg. Myers's house had been hit by three bullets, and Investigator Buckley observed a vehicle parked in front of Myers's residence that had also been struck. The vehicle was owned by Linda Adams.

¶ 3. According to Lasheena Talley, Caffie had a problem with Myers's grandson. Talley explained that on the day of the incident, she, Caffie, Joshua Nelson, Lamarcus Washington, and Toumi Durr drove to Myers's house. As they drove by, Caffie and Nelson began to shoot toward the house. After passing Myers's house, the group turned around and drove by again, shooting into Myers's residence. According to Durr, Nelson had an AK-47 rifle and Caffie had a handgun.

¶ 4. At the time of the incident, Paige Smith, along with her two sons and nephew, was driving to her father-in-law's house, which is next to Myers's house on Mary Grove Church Road. As Smith approached, she was grazed by a bullet.

¶ 5. Following his convictions, Caffie was sentenced to serve ten years in the custody of the Mississippi Department of Corrections for shooting into a dwelling, five years for shooting into a motor vehicle, and twenty years for each count of aggravated assault, with the sentences to run consecutively.

¶ 6. Caffie subsequently filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial, which the circuit court denied. Caffie now appeals.

STANDARD OF REVIEW

¶ 7. "Jury instructions are within the discretion of the [circuit] court and the settled standard of review is abuse of discretion." Watkins v. State , 101 So.3d 628, 633 (¶ 16) (Miss. 2012). "The jury instructions are to be read as a whole, with no one instruction to be read alone or taken out of context." Id. "When read together, if the jury instructions state the law of the case and create no injustice, then no reversible error will be found." Id.

ANALYSIS

¶ 8. Pursuant to Mississippi Code Annotated section 97-37-29 (Rev. 2014), it is a felony to "willfully and unlawfully shoot or discharge any pistol, shotgun, rifle or firearm of any nature or description into any dwelling house or any other building usually occupied by persons, whether actually occupied or not ...."

¶ 9. Jury Instruction S-1, which was given by the circuit court, instructed the jury on the charge of shooting into a dwelling and read, in part, as follows:

[Caffie] has been charged ... with the felony offense of [s]hooting [i]nto a [d]welling. If you find from the evidence in this case beyond a reasonable doubt that [Caffie], acting alone or in conjunction with another:
1. On or about May 21, 2015[,] in Simpson County, Mississippi;
2. Did willfully and unlawfully shoot or discharge a firearm into a dwelling house, whether occupied or not, located at 445 Mary Grove Church Road;
then you shall find [Caffie] guilty of [s]hooting [i]nto a [d]welling.
Should the State fail to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find [Caffie] not guilty of [s]hooting [i]nto a [d]welling.

¶ 10. Caffie asserts that pursuant to section 97-37-29, "[i]t is an element of the crime that the building or dwelling house shot into be usually occupied by persons." Because Jury Instruction S-1 "did not require the jury to find that the building was usually occupied by persons," Caffie argues the jury was not properly instructed on the essential elements of the crime of shooting into a dwelling.

¶ 11. Caffie did not object to Jury Instruction S-1. "To preserve a jury instruction issue on appeal, the defendant must make a specific objection to the proposed instruction to allow the [circuit] court to consider the issue." Husband v. State , 204 So.3d 353, 356 (¶ 10) (Miss. Ct. App. 2016). Because Caffie failed to object to the proposed instruction, it appears this issue is procedurally barred.

¶ 12. Regardless, this Court will consider the issue for plain error. See id. at 357 (¶ 11). "The plain-error doctrine requires a determination of whether the [circuit] court has deviated from a legal rule, whether that error is plain, clear or obvious, and whether the error has prejudiced the outcome of the trial." Id. (internal quotation mark omitted). "For the plain-error doctrine to apply, there must have been an error that resulted in a manifest miscarriage of justice or seriously affected the fairness, integrity[,] or public reputation of judicial proceedings." Id.

¶ 13. We find Caffie's reading and interpretation of section 97-37-29 is misplaced. Caffie fails to recognize the distinction set forth in the statute between "any dwelling house or any other building usually occupied by persons." A "dwelling house" is "a place where people dwell or reside." Robinson v. State , 364 So.2d 1131, 1134 (Miss. 1978). As such, it is generally understood that a dwelling house is "usually occupied by persons." The "usually occupied by persons" language in section 97-37-29 applies to "any other building" that may not qualify as a dwelling house.

¶ 14. Here, Investigator Buckley testified that he was dispatched to 445 Mary Grove Church Road, which was Myers's residence. He further testified that Myers's residence had been shot three times. Thus, the record makes clear that the structure into which Caffie shot was a dwelling house, not "any other building usually occupied by persons." As a result, based on the facts of this case, the "usually occupied by persons" language of section 97-37-29 was not a necessary element of the crime. The omission of such language did not result in a manifest miscarriage of justice or seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Consequently, we do not find the circuit court's decision to give Jury Instruction S-1 amounted to plain error.

¶ 15. Caffie further claims the "circuit court committed fundamental plain error by failing to instruct [the] jury on the venue of [the crimes of shooting into a motor vehicle and aggravated assault]." We disagree.

¶ 16. Jury Instructions S-3, S-6, and S-7 instructed the jury on the elements of the crimes of shooting into a motor vehicle and the aggravated assaults of Myers and Smith. As with Jury Instruction S-1, Caffie failed to object to these jury instructions. Nonetheless, Jury Instructions S-3, S-6, and S-7 properly instructed the jury regarding venue. Indeed, each of the jury instructions required the jury to find that the felony offense occurred in Simpson County.

¶ 17. Caffie asserts that "[w]ithout a specified venue, anyone could have done it." However, the record reflects that on the day in question, Caffie drove by and shot toward and into Myers's residence, located at 445 Mary Grove Church Road in Simpson County. Moreover, the record shows that at the time of the incident, Adams's vehicle was parked in front of Myers's residence, Smith was approaching Myers's residence, and Myers was at his residence. Because the jury was properly instructed on venue, Caffie's argument fails.

CONCLUSION

¶ 18. The record shows the circuit court properly instructed the jury on the issues of law relevant to the case. See Conner v. State , 138 So.3d 143, 149 (¶ 13) (Miss. 2014) ("The trial court must assure that the jury is fully and properly instructed on all issues of law relevant to the case.") (internal quotation marks omitted). Thus, we affirm the judgment of the circuit court.

¶ 19. AFFIRMED.

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

      Exhibits admitted into evidence showed a bullet hole in the side of the vehicle.


author: LEE, C.J., FOR THE COURT:

text:
    Joshua Chance WARREN, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-KA-01086-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA BLOUNT, JACKSON
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this direct appeal, we must determine whether Joshua Warren's trial counsel was ineffective for failing to request a cautionary instruction about the reliability of accomplice testimony. Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. Warren was convicted of grand larceny by a jury in the Neshoba County Circuit Court. He was sentenced as a habitual offender to serve five years in the custody of the Mississippi Department of Corrections. He was also ordered to pay a $2,000 fine and $2,250 in restitution. Warren filed a posttrial motion requesting a new trial, which the trial court denied. He now appeals, asserting that his trial counsel was ineffective.

FACTS

¶ 3. Irene Eakes testified that on August 20, 2016, her granddaughter, Kassie Woods, and Warren came to her house. The two had been driven there by Debra Fox, who remained in the car. Woods was reporting to a drug-rehabilitation center the next day and needed Eakes's help to prepare. Eakes stated that the two were in her house for around one hour and that both were out of her sight at different times. She saw Warren place her phone's charger in his pocket and confronted him. She testified that she became worried Warren would take her phone. At one time she saw both Woods and Warren go into her bedroom. At another time, she was getting Warren a drink at his request and noticed that Woods disappeared for a short time. Later, several hours after Warren and Woods left her house, Eakes realized that seven rings were missing from her bedroom. She estimated the total value of the seven rings was approximately $4,500. Eakes called the Neshoba County Sheriff's Department (NCSD) to report her rings missing, suspecting that Woods and Warren had taken them.

¶ 4. Woods testified that she and Warren planned to steal Eakes's rings. She stated that the plan was for Warren to distract Eakes while she stole the rings. After leaving Eakes's house, Woods gave Warren the rings and told him to sell them. They ended up trading most of the rings for drugs and money. Woods admittedly lied in her initial statement to law enforcement. She told them that she and Warren planned to steal the rings but that she distracted Eakes while Warren stole the rings. During trial, Woods admitted to receiving a plea deal in exchange for testifying against Warren. Woods also testified that Warren later sent her a letter while she was in rehab, stating that he still had some of the rings and would pawn them while he was in North Mississippi.

¶ 5. Debra Fox testified that she drove Warren and Woods to Eakes's house. She did not know the two were planning to rob Eakes. When the two got back into her car and asked her for a ride to the pawnshop, she declined. She heard the two mention the money, stating "I do know that the jewelry was mentioned, ... but I never saw it." Fox said Warren later told her that they had sold the rings for drugs and money. On cross-examination, Fox stated she heard Warren ask Woods if he was going to get into trouble.

¶ 6. Kevin Baysinger, an investigator with the NCSD, testified that he conducted the investigation. Investigator Baysinger testified that Eakes suspected Warren and Woods had stolen her rings. He stated that the rings were never recovered.

¶ 7. Warren testified in his own defense. He stated that he did not know of Woods's plan to steal Eakes's rings. He said Woods told him the rings were given to her by either her mother or Eakes. He said he did take the rings to a local pawnshop to get a price and admittedly sold one for $20 to $25 when the two went to a casino that night. He testified that he put the other rings in a bag in the trunk of the car belonging to the person who drove Woods to rehab the next day.

DISCUSSION

¶ 8. We first note "that, generally, ineffective-assistance-of-counsel claims are more appropriately brought during [postconviction] proceedings." Dartez v. State , 177 So.3d 420, 422-23 (¶ 18) (Miss. 2015) (citing Archer v. State , 986 So.2d 951, 955 (¶ 15) (Miss. 2008) ). The supreme court has explained that

[a]n appellate court is limited to the trial-court record in its review of the claim(s), and there may be instances in which insufficient evidence and/or information exists within the record to address the claim adequately. In such a case, the appropriate procedure is to deny relief, preserving the defendant's right to argue the issue through a petition for [postconviction] relief (PCR).

Id. at 423 (¶ 8). But, an ineffective-assistance-of-counsel claim can be addressed on direct appeal when "(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Johnson v. State , 196 So.3d 973, 975 (¶ 7) (Miss. Ct. App. 2015). In the case before us, both parties did not stipulate that the record is adequate for this Court to make a finding on direct appeal. Thus, the proper inquiry is whether the record affirmatively shows that Warren was denied effective assistance of counsel of constitutional dimensions. See M.R.A.P. 22(b).

¶ 9. Warren argues that the State's case rested entirely upon the uncorroborated accomplice testimony of Woods; thus, a cautionary instruction was mandatory. "Although granting a cautionary instruction regarding the testimony of an accomplice is within the trial judge's discretion, such an instruction is required when the accomplice's testimony is the sole basis for the conviction, and the defendant's guilt is not clearly proven." Williams v. State , 32 So.3d 486, 490 (¶ 12) (Miss. 2010).

¶ 10. We cannot say from a review of the record before us that Warren's trial counsel was deficient in a constitutional sense. There was testimony other than Woods's testimony tying Warren to the crime. Eakes's testimony places Warren at her house and, at one point, in her bedroom. Eakes thought Warren had distracted her so that Woods could steal her rings. Fox stated that Warren told her he had sold some of the rings for drugs and money. This issue is without merit.

¶ 11. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.


text:
    Mary L. HARMON, Appellant v. SFD HOLDINGS INC. (Oxford Healthcare) and Liberty Mutual Insurance Company, Appellees
    NO. 2017-WC-01449-COA
    Court of Appeals of Mississippi.
    August 28, 2018
    ATTORNEY FOR APPELLANT: ROBERTA LYNN HAUGHTON, WEST POINT.
    ATTORNEYS FOR APPELLEES: GEORGE E. READ, SHEA STEWART SCOTT, OXFORD.
    BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.
   LEE, C.J., FOR THE COURT:

¶ 1. In this appeal, we must determine whether the Mississippi Workers' Compensation Commission's (the Commission) decision to reduce the claimant's loss of wage-earning capacity from 50% to 20% was arbitrary and capricious.

PROCEDURAL HISTORY

¶ 2. Mary Harmon suffered an on-the-job injury on June 14, 2013, while working as a certified nurse assistant (CNA) at SFD Holdings Inc., d/b/a Oxford Healthcare, in Tupelo, Mississippi. She filed a petition to controvert on August 21, 2013. Harmon's employer admitted that she sustained an injury to her cervical spine, back, and right upper extremity. After a hearing, the administrative judge (AJ) found that Harmon suffered a 50% loss of wage-earning capacity. The AJ awarded Harmon $242 per week in temporary total disability benefits beginning June 14, 2013, and ending October 14, 2015. The AJ also awarded Harmon $121.01 per week in permanent partial disability benefits beginning October 15, 2015, for 450 weeks.

¶ 3. SFD appealed to the Commission. The Commission affirmed the AJ's findings regarding the compensability of Harmon's claim and the award of temporary total disability benefits but reduced the loss of wage-earning capacity from 50% to 20%. As a result, Harmon was awarded $48.40 per week in permanent partial disability benefits.

FACTS

¶ 4. After her injury, Harmon went to a local emergency room for treatment, where she received pain medication. Harmon later sought treatment from Dr. Chad Altmeyer, who initially prescribed injections and physical therapy. Dr. Altmeyer continued to treat Harmon's right-shoulder injury, but referred her to Dr. Kenny Edwards for treatment of her back injury. Ultimately, Harmon required surgery on her back and her right shoulder. Dr. Edwards diagnosed Harmon with cervical stenosis and disc herniations from vertebrae C4 through C7. Dr. Edwards performed a cervical fusion on Harmon in April 2014 and placed Harmon at maximum medical improvement (MMI) on December 3, 2014, with a twenty-five-pound lifting restriction.

¶ 5. Dr. Altmeyer performed a right shoulder arthroscopy with debridement and decompression on Harmon's right shoulder in June 2015. Post-surgery, Dr. Altmeyer recommended that Harmon continue physical therapy. Dr. Altmeyer placed Harmon at MMI on October 14, 2015, with restrictions including no overhead work and no repetitive pushing or pulling. Dr. Altmeyer assigned Harmon a permanent impairment rating of 3% to her right upper extremity.

¶ 6. Dr. Rahul Vohra conducted an independent medical examination (IME) on Harmon in April 2016. Dr. Vohra also reviewed the medical records from both Dr. Edwards and Dr. Altmeyer. Dr. Vohra determined that Harmon had an impairment rating of 1% to her upper right extremity and 6% to her whole person for her cervical spine. Dr. Vohra agreed with the twenty-five-pound lifting restriction. He further found that Harmon should limit overhead work to an occasional basis and limit pushing and pulling up to forty pounds on an occasional basis.

¶ 7. Pete Mills conducted a vocational evaluation dated May 29, 2015. Mills's report referred to a functional capacity evaluation (FCE) conducted by Alan Thompson on October 21, 2014. The excerpt from the FCE in Mills's report stated that Harmon was capable of light-level work, or "exerting up to [twenty] pounds of force constantly and/or up to ten pounds of force frequently, and/or negligible amount of force constantly to move objects."

¶ 8. Mills noted that Harmon had initially returned to Oxford Healthcare performing "light type work, clerical and office type duties." But during this time, Harmon continued to experience pain in her neck, right shoulder, and extremities. Noting that her access to employment was reduced as a result of her physical restrictions and that she was unable to continue working as a CNA, Mills stated that Harmon would be capable of employment and activities in the "sedentary and light physical demand areas." Mills indicated Harmon could find work as a fast-food worker, cashier, restaurant manager, waitress, or office clerk. Mills performed a labor market survey and located jobs within Harmon's restrictions with a salary range from $7.25 to $9.50 per hour for the majority of the jobs. Two jobs paid more-one up to $11.00 per hour and the other up to $18.00 per hour. According to Mills, Harmon was unsure of her hourly salary but thought she was initially paid $9.00 per hour and was earning between $10.00 and $11.00 per hour around the time of her injury.

¶ 9. Harmon had filed two prior workers' compensation claims. Both prior claims were settled-one in 2010 and the other in 2011. In the first claim, Harmon complained of injuries to her head, neck, chest, and knees. In the second claim, Harmon complained of injuries to her neck, right shoulder, right arm, legs, back, and body as a whole.

¶ 10. Harmon testified during the hearing. Her testimony was limited because she could not remember details of her work history or her prior workers' compensation claims. She testified that she was still experiencing pain from her injury and wanted additional medical treatment.

STANDARD OF REVIEW

¶ 11. The standard of review in a workers' compensation case is well settled. If the findings of the Commission are supported by substantial evidence, then they are binding on this Court. Mitchell Buick, Pontiac & Equip. Co. v. Cash , 592 So.2d 978, 980 (Miss. 1991). "The [Commission] sits as the 'ultimate finder of facts' in deciding compensation cases, and therefore, 'its findings are subject to normal, deferential standards upon review.' " Pilate v. Int'l Plastics Corp. , 727 So.2d 771, 774 (¶ 12) (Miss. Ct. App. 1999). "We are bound even though the evidence would convince the [C]ourt otherwise if it were instead the ultimate fact[-]finder. We will overturn [the] Commission's decision only when there is an error of law or an unsupportable finding of fact." Mont.'s Sea Kettle Rest. v. Jones , 766 So.2d 100, 102 (¶ 7) (Miss. Ct. App. 2000) (citation and internal quotation marks omitted).

¶ 12. Additionally, decisions as to loss of wage-earning capacity are "largely factual and [are] to be left largely to the discretion and estimate of the Commission." Bryan Foods Inc. v. White , 913 So.2d 1003, 1010 (¶ 28) (Miss. Ct. App. 2005).

DISCUSSION

¶ 13. In her only issue on appeal, Harmon contends that the Commission's decision to reduce her loss of wage-earning capacity from 50% to 20% is arbitrary and capricious and not supported by the law.

¶ 14. To determine loss of wage-earning capacity, "[t]he Commission considers the employee's actual wages earned prior to the injury as compared to the employee's capacity to earn those same wages after the injury, as well as other factors such as the employee's age, education, training and work experience, and his or her ability to return to the same or other employment."

Airtran Inc. v. Byrd , 953 So.2d 296, 301 (¶ 11) (Miss. Ct. App. 2007).

¶ 15. At the time of the vocational evaluation, Harmon was forty-six years old. She had finished high school and taken courses at several community colleges over the years. In addition to her CNA certificate, Harmon had received certificates in business administration and cosmetology. Mills indicated that Harmon was "proficient in utilizing a computer in an office environment." Harmon's work history included cashier in a retail store, cashier in a fast-food restaurant, assistant manager at a restaurant, and homemaker aid.

¶ 16. Harmon argues that she made diligent efforts to secure other work but was unable to find another job. In the vocational evaluation, Mills stated that Harmon would be capable of employment and activities in the "sedentary and light physical demand areas." Mills also located over twenty-six jobs available within Harmon's restrictions. The record indicates Harmon only applied for three of the available jobs, and in one application-which SFD characterizes as an inquiry because Harmon did not fill out an application-she informed the potential employer about her physical restrictions. In a similar situation, we noted that a claimant's lack of effort in applying for available jobs "could have been seen by the Commission as rather perfunctory." Ford v. Magnolia Franchise Holdings LLC , 112 So.3d 467, 470 (¶ 12) (Miss. Ct. App. 2013).

¶ 17. All three doctors who had examined or treated Harmon indicated that she could return to light-duty work with certain restrictions. Based upon this information, the Commission found that Harmon had the ability to work in the light-duty category and earn at least minimum wage.

¶ 18. Viewing the record as a whole, we find that substantial evidence supports the Commission's decision to reduce the loss of wage-earning capacity from 50% to 20%. Our deferential standard of review requires this Court to affirm the Commission's judgment.

¶ 19. AFFIRMED.

IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      The medical records from Harmon's emergency-room visit were not produced.

      The medical records of Harmon's appointments with both Dr. Altmeyer and Dr. Edwards were not entered into evidence. Detailed information regarding these appointments is contained in Dr. Rahul Vohra's independent medical evaluation dated April 8, 2016, and in Pete Mills's vocational evaluations dated May 29, 2015, and December 11, 2015.

      At the time of the hearing before the AJ, Harmon was unemployed.