IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-00807-COA MICHAEL SORRELL A/K/A MICHAEL SORRELL JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/08/2017 TRIAL JUDGE: HON. W ILLIAM A. GOW AN JR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 01/31/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. Michael Sorrell appeals his convictio n o f o n e c ount of f irst-degree m

u rder and one

count o f being a f

elon i n p o ssession of a f

irearm in the Hinds County C ircuit Court. Sorrell raises three issues on appeal. Af t er review of the record, we f i nd that the circuit court erred in giving a pre-arm ing instruction and reverse and rem and f or a new trial.
FACTS ¶2. O n A u g u s t 2 0, 2014, Sorrell shot and killed L a’Cordne Green at the A r b o r P a r k
A p a r t m e n t s in Jackson, where Sorrell lived with his g irlf r iend, R obin Darnell. At trial,Sorrell claim ed he s hot Green in self -def ense. The jury

was instructed on various theories including f

irst-degree m

urder, second-degree m

urder, heat-of

-pa ssion m anslaughter, self

def ense, and the def

ense of ne c e s s i ty

. A dditionally , the jury was given a pre-arm ing instruction. ¶3. Sorrell was convi c t e d o f f i r s t

- d e g r e e murder and possession of a f irearm by a convicted f

elon. He was sentenced as a habitual of f ender u nder Mississippi Code Annotated section 99-19-81 ( Rev. 2015) to lif e im prisonm ent on the m

urder conviction and ten y ears

on the possession conviction, with the sentences to b e served concurrently in the c ustody of the Mississippi Departm ent of Corrections. ¶4. S o r rell subsequently m oved f or a j u d g me n t n o t w i t h s t a n d i n g t h e v e r d i c t o r , alternatively , a new trial, w hich the circuit court d enied. Sorrell now a p peals and argues that: (1) the circuit court e rred in giving a pre-arm ing i nstruction, (2) the circu i t court erred in deny ing his m otion to suppres s e v i d e n ce, and (3) the S tate com m itted prosecutorial

m isconduct during its opening statem ents, or alternatively , he r eceived inef f ective assistance of counsel when his counsel f a iled to object. ¶5. W e f

ind that the circui t c o u r t c o mmi t t e d r e v e rsible error in g iving a pre-arm ing instruction and reverse and re ma n d this c a se to circuit court f or a new trial in a ccordance with this opinion.
STANDARD OF REVIEW ¶6. “Jury instructions are generally within the discretion o f the trial court, and the settled standard of review is abuse of discretion.” Boston v. State , 234 So. 3d 1231, 1233 (¶7)

2(Miss. 2017). “Jury instructions m ust f airly announce the l aw of the case and not create an injustice ag a i n st the def

endant.” Id. “For exam

ple, in hom icide cases, the jury s hould be instructed about a def

e ndant’s theories of def

ense, justif

ication, o r excuse that are supported by the evidence, no m atter how m eager or unlikely .” Id. (internal quotation m ark om itted).
DISCUSSION ¶7. S o r r e l l f

i r s t asserts that the circuit court erred in giving Jury Instruction S-10. Jury Instruction S-10 instructed the jury as f ollows: The Court instr u c t s t h e j ury that i f y ou f ind f rom the evidence that the def endant was the initial aggressor and provoked a dif f iculty , arm i ng him self in advance, a nd intending, if necessary , to use his weapon to overcom e his adversary , then the right of self -def ense is f orf eited. ¶8. Sorrell asserts that Jury Instruction S-10 is a “pre-arm ing instruction” that “depriv[ ed] [ him ] of his f

u ndam ental r ight to present a def ense” and should not have b e e n given since the evidence was conf

l icted as to whether he arm ed him self with the intention of

initiating a conf rontation with Green. W e agree. ¶9. T h e M i s s i s s i ppi Suprem e Court has strongly denounced the use of the pre-arm i n g instruction, even going as f a r as to warn the S t a t e that its use is done at the State’s “own peril.” Boston , 2 3 4 S o. 3d at 1234 (¶10). T his warning should be heeded, and this Court should discourage liberal use of the instruction. ¶10. The f

acts in the present case are very si mi l a r t o t h o s e i n B o s t o n . In B o ston , the altercation arose when Kevin Boston went to his estranged wif e’s j ob to change a tire f

or her. Id. at 1232 (¶2). W hile t here he e ncountered t he victim , W i llie Dean. Id. Dean worked as

a contract worker a t the sam e elem entary school as Boston’s wif e, and the two had previously

3had a rom antic relationship. Id. at (¶3). The initiation and c onf rontation b etween Kevin and
Dean was heavily disputed in the record. Id. a t (¶4)

. Boston contended that h e acted in self -def e nse while the State theorized that he attacked Dean. Id. Regardless, a s a result of the enc o u n t e r , B o s t on stabbed Dean with a pocket knif e he had purchased a m onth bef ore the incident. Boston m aintained that Dean t hreatened h im and attacked him with a pair of pliers on his wrist. Id. The S tate countered with pictures of Boston’s wrist af ter the arrest, which showed no visible injuries. Id. at 1233 (¶4). A dditionally , n o pliers were recovered f rom the scene, and there was no direct evidence o f the altercation or t he stabbing other than
Boston’s testim o ny . Id. Furtherm ore, there was w itness testim ony that Boston approached
Dean f irst and that Dean said t he def endant “stabbed m e f

or no reason.” Id. a t (¶5)

. At trial, the court gave a pre-arm ing instruction requested by the state, and on appeal, the Suprem e Court reversed a nd rem a nded, c o n d e m ning the u se of the pre-em ptory instruction. Id. at 1236 (¶15). ¶11. Here, t h ere wa s n o d i r e c t e v i dence regarding the initiation of the shooting, only contradicting theories. Sorrell testif ied that he saw Green looking into the Black Im pala he shared with his girlf

riend R obin Darnell, and Sorrell consistently stated that he approached
Green to determ ine why w as h e l o o k i n g i n t o his car. S orrell’s testim ony evinced that he calm ly approached Green without the intent of revenge as he m aintained that Green shot at him f irst im m ediately

upon him

asking that question. ¶12. Although no shell casings f rom Green’s gun were recovered, a stolen Beretta pistol

was f ound underneath Green’s body , as well as gunshot residue on the back of Green’s back

4h a n d

. T h e re was no indication that Green w as the person who shot into t he apartm ent i n

July , no evidence that Sorrel l p u r c h a s e d the gun intending to u se i t on Green, and no evidence o f known hostility between the two. The Mississippi Suprem e Court has held that “when there is am

biguity regrading who is the f irst aggressor, a pre-arm ing instruction is not appropriate.” J

o h n s o n v. State , 908 S o. 2d 758, 762 (¶15) (Miss. 2005) (citing Barnes v. State , 457 So. 2d 1347, 1349-50 (Miss. 1984)). ¶13. Since we reverse and rem and f or a new trial because o f t he pre-arm ing instructions,

we decline to address Sorrell’s claim s regarding his m otion to suppress and his assertion that the State com m itted prosecutorial m isconduct in its opening statem ent. CONCLUSION ¶14. In considering the evidence bef ore us and the f

act that the Suprem e Court h as stated that “[ w]e have consistently , painstakingly , and repeatedly c autioned and adm o nished bench and b ar t hat [ pre-arm ing] instructions

. . . s hould be given only i n the exceedingly rare circum stances where the f acts m eet all the required elem ents nec e s s a r y to preem pt a def endant’s right to claim

self def ense,” 1 we reverse and rem and f o r a new trial. ¶15. REVERSED AND REMANDED.
BARNES AND CARLTON, P.JJ., GREENLEE, TINDELL, McDONALD AND McCARTY, JJ., C ONCUR. LAWRENCE, J., SPECIA L L Y C O NCURS WITH SEPARATE W RITTEN OPINION, JOINED BY B ARNES, P .J., GR E ENLEE, TINDELL, McDONALD AND McCARTY, JJ. GRIFFIS, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY WILSON, J. LAWRENCE, J., SPECIALLY CONCURRING:

1 T h o m p so n v. S ta te , 6 0 2 S o . 2 d 1 1 8 5 , 1 1 8 9 (M iss. 1 9 9 2 ). 5¶16. I concur with t he m ajority

. I write separately to express disdain f or use of pre-arm ing instructions; their use should b e lim ited in clearly warranted s ituations due to t heir potential to allow m isguided evaluation of evidence of

self -def ense by juries. ¶17. At trial, Sorrell claim ed he ac t e d i n s e l f -def ense and only shot the victim af ter the victim s hot at him f

irst. T h e re was evidence presented at trial that arguably supported his theory of self

- d ef ense. A witness testif

ied that som eone shot a t the apartm e nt where Sorrell had e xited during the incident (leaving a bullet hole), a gun was f ound u nder the victim , and gunshot r esidue was f

o und on the back of the victim ’s r ight hand. Ne v e r t h e l e s s , the jury could have easily concluded t hat Sorrell could not avail h im self of the def ense of self

-def ense when the State asked f

or and r e ceived a pre-arming instruction. The State’s intention in obtaining a pre-arm ing instruction valida tes the concerns with these ty pes of instructions. The f ollowing exchange occurred on the record:
THE COURT: It m ight -- it would b e under c astle doctrine. The real issue is here, can h e claim castle doctrine a s a - since h e’s having t o claim d ef ense of necessity

. You know, he’s got 911 on his telephone. He’s got the right to stay in that apartm ent and not put him self at risk by going out to talk

- - to look at his car.
DEFENSE: B ut, Your Honor, that constructively s ay s he h as a duty to retreat bef ore any thing ever happens. He has no duty to retreat and he certainly has a right t o p r o t e c t his property

. Even convicted f e lons have a right to protect their property

. THE COURT: W ell, see, I guess th a t ’s w here the real deal is. W hat’s the reasonable alternative to going out -- y ou know, f it that into those three -- into those three requirem ents.

. . . . STATE: I’m not asking for a necessity i n s t r u c t i o n , Y our Honor. I’m asking

6for an instruction that tells the jury that he can’t argue self

- d e f e n s e if he brought the g un and he was the initial a ggressor with the i ntent to create the drama. The State’s asking for that instruction based on this case

. (Em phasis added). ¶18. T h e State’s com m e nts indicate its intent of having t he pre-arm ing instr u c t i o n d o exactly what our suprem e court has condem ned—that is, prevent a def endant access to the def ense of self -def ense even if

suf f icient f acts are present warranting the grant o f the self

def ense instruction. In f

act, that is exactly what h appened. The jury was instructed on self

def ense and pre-arm i ng. The pre-arm ing instruction given to the jury read as f ollows: The Court instructs the jury that if y ou f ind f r o m t h e e v idence that the defendant was the initial aggressor a nd provoked a difficulty , arm ing him self in advance, a nd intending, if necessary , to use his weapon to overcom e his adversary , then the right of self -def ense is f orf eited. (Em phasis added). ¶19. W h en e vidence shows that a person walks out o f h i s h o me , g o e s t o h i s car to investigate suspicious a ctivity concern i n g h i s p r operty , it is hard to im agine those f acts as “provok[ ing] a dif

f iculty .” By granting both the self -def ense instruction a nd t he pre-arm ing instruction, the court, with o ne hand, gave the jury t he responsibil ity of deciding self -def ense, but t ook it away with the other hand by telling the jury s e lf -def ense could be “f

orf e ited.” Thus, the granting o f the p re-arm ing instruction p otentially caused the jury to ignore the self

def ense evidence entirely

. ¶20. If the pre-arm ing instruction had not been given and t he jury convicted S orrell af ter considering and weighing the s elf -def ense evide n c e , I w o uld f ind no error in the trial’s
process. My concern lies with the f act t h a t the law given to the jury n ot only has been

7condem ned but also potentially prevented Sorrell f rom having his evidence of self -def ense weighed by

the jury

. ¶21. T h e circuit court f o und suf f icient e vidence e x i s t e d t o w a r r a n t a s e l f

- d e f e n s e instruction y et essentially and e f f ectively precluded its consideration by the jury in giving the
pre-arm ing instruction. F or these reasons, I concur with t he reversal of Sorrell’s conviction and agree the m atter should be rem anded f or a new trial. BARNES, P.J., GREENLEE, TINDELL, McDONALD A ND Mc C ARTY, JJ., JOIN THIS OPINION. GRIFFIS, C.J., DISSENTING: ¶22. Because I f

ind no abuse of discretion by the circuit court in g iving Jury Instruction S10, I respectf

ully dissent. ¶23. “[ A] pre-arm i ng instruction is a p erem ptory i nstruction[ 2 ] f

or the p r o secution, im p airing or precluding the def endant’s right to self

-def ense.” Boston v. State , 234 So. 3d 1231, 1234 (¶9) ( Miss. 2017) ( internal quotation m ark om itted). The suprem e court has

st r o n g l y c ondem ned the use of a pre-arm ing instruction because such an i nstruction “precludes a def

endant f rom as s e r ting a c laim of self -def ense” and “cut[ s] of

f the jury ’s consideration of self

-def e n se.” Id

. at ( ¶10). A pre-arm ing instruction is only appropriate where “[ t ]he r e cord [ is] uncontradicted that the def endant[ ] arm ed [ him self

] with the intent

to i nitiate a c onf

rontation.” I

d

. at 1235 (¶12). “[ W ]hen there i s am b iguity regarding who is the f i rst aggressor, a pre-arm ing instruction is not a ppropriate.” Johnson v
. State , 908 So. 2d

2 We n o te th at Ju ry In stru ctio n S -1 0 w as n o t “p erem p to ry ” in n atu re. T h e in stru ctio n w a s a c o r r ect statem en t o f th e law an d ad v ised th e j u ry w h a t th e law w as “if ” th ey f o u n d certain f acts “f ro m th e ev id en ce.” 8758, 762 (¶15) (Miss. 2005).

¶24. Sorrell claim s Jury Instruction S-10 should not have been given since “the evidence conf licted (i.e. was not uncontradicted) as to whether [ h e] arm ed him self with the intention of initiating a conf

rontation with Green.” I disagree. ¶25. At trial, Sorrell testif ied i n his own def

ense. Specif

ically , Sorrell testif

ied as f ollows: Def ense Counsel: Okay . Now what were y ou doing on that evening? Sorrel: Okay

. I was sitting in the living r oom play ing a gam e.

I heard a loud car pull up. W hen I looked outside, at the tim e, t he car was s t ill on just sitting there. So, just by m e bei n g on high alert, I watched

- I w atched h im

. Y ou know, I cut - I cut m y

lights of f and I watched him

. At f i r s t when he got out of t he car, look like he was talking to hisself

, as f ar as like he was talking to hisself like he was angry at som eone. So, I’m s teady watching. I’m steady watching. He went back t o his c ar, and he l ef t the door open. W hen he lef t t he door open, t hat h ad in m y m ind like, “okay [ ,] [ h]e going som ewhere else.”
W hi l e watching h im , that’s when he went between m y c a r a n d h is car, and he looked inside m y car. Once h e looked inside m y ca r , t h at triggered m y m ind, like, “I don’t know what w as going on with h im ,” y ou know. By that tim e - I don’t know hi m. I got $1,200 worth of speakers in m y car. So at that tim e, I’m t ry i ng to protect the car. He walked back to his car. By the tim e he walked back to h is car a n d g o t i n his car, he still had his door o pen. So by that tim e, I went o utside. B y the tim e I approached him , he was closing his door and walking a way . By t hat tim e, he was b ehind m y car. An d I a s ked him , I said, “W hat are looking in m y car f or? ” And next t hing y ou know, I just saw a f

lash. He shot at m e. And once he shot a t m e, I don’t know how - I don’t know

9h o w I ain’t get shot. But I just saw a f lash. He d u c k e d around the truck, I ducked behind t he truck, a n d we both m e t u p on the l ef

t side. And t hat’s when I shot t wo tim es, boom , boom

. And I took of f running, he t ook of

f running. And it just happened so f ast. ¶26. W h en asked why he w as on “high alert,” Sorrel l e x p lained that about t wo and half weeks bef ore the incident, h is house was “shot up.” Sorrell stated he was “paranoid” and had “a f am i ly in the house [ h e] [ had] to protect.” ¶27. Sorrell f

urther testif

ied: Def ense Counsel: O k a y . N o w , a t the tim e y ou looked out the wi n d o w ,

what did y ou see the individual in the car do and h ow did he act and what direction did he go? Sorrell: Okay

. W hen he f irst go o ut. Like I s aid, h e lef t the door open. He walked arou n d in this area right here in the m i ddle. Def ense Counsel: Okay . And when he lef t the door open, was his car still running? Sorrell: Yes, at the tim e , his car was still running. Def ense Counsel: Okay . And at that tim e, what did y ou do? Sorrell: W hen I seen him right there? Def ense Counsel: Yes. Sorrell: That’s when I h a d just started to just get m y things

together and walk outside. I walked outside. ¶28. W h en asked whether he had to com e out of his house w ith a g un, Sorrell responded: Of c o u r s e . I didn’t know because

- this is w hy I cam e out of t he h ouse with a gun, because that’s the sam e orange car I seen when m y house got shot up. Of course if a car that y ou see in a s hootout t hat shot y our house up, they park beside y ou car, y ou’re going to wonder why

. You’re g oing t o go out there and

1 0protect it.

¶29. During trial, Sorrell argued that he “believed” Green was “bre a k i ng into his car, which would b e the initial aggression.” Yet, there was no evidence that Green was breaking into Sorrell’s car. I nstead, according to Sorrell, G r e e n s i mp ly “ l ooked inside [ his] car,” which “trig g ered [ Sorrell’s] m ind” that Green intended t o b reak in and steal $1,200 worth of speakers. As a result, Sorrell, who was adm ittedly “paranoid,” a r m ed him self with a gun and proceeded outside to conf r ont Green in order “to protect the car” and his f am ily

. ¶30. Additionally , K e eunta C otton testif ied that on the day of t he shooting, he had conversed with Sorrell, who wanted to know if Green had any m oney . Af ter the shooting, Sorrell c alled Cotton and s tated that “ t h e ma n went d own” a nd “didn’t get back up.” Moreover, Sorrell asked Cotton “to com e outside and pick up bullet shells and a hat.” ¶31. Like Sorrell, the m ajority a sserts i t was an abuse of discretion to give the pre-arm ing instruction a nd cites and relies o n Boston

. In Bo s t o n , t he court noted three cases wherein
a pre-arm ing instruction was given and af f irm ed on appeal: H

art v. State , 637 So. 2d 1329 (Miss. 1994); H

all v. State , 420 S o. 2d 1381 (Miss. 1982); and Reid v. S tate , 301 So. 2d 561 (Miss. 1974). Boston , 234 So. 3d at 1235 (¶12). ¶32. In H

art , the def

endant testif

ied that he arm ed him self and w e n t to the victim ’s house because it was his only chance t o settle a d i s p u t e b e t ween the parties. Hart , 637 So. 2 d at 1334. The suprem e court f ound that “ the proof [ w a ] s u ncontradicted that, while in no phy sical danger f

r om [ the victim ], [ the def endant] arm ed h im self in advance with the intent of provoking or bringing on a dif f iculty and shooting [ the victim ]. . . .” Id . at 1337.

1 1¶33. In Hall , the d ef endant’s own testim ony showed that he arm e d him self and deliberately d r o v e t o the victim ’s house t o engage in a conf rontation. H

all , 420 So. 2d a t 1 3 8 4

- 8 5

. Additionally , in Reid , the def endant testif

ied that he deliberately arm ed him self with a pistol, drove t o a trailer where the victim was located, and im m ediately challenged the victim

. Reid , 301 So. 2d at 564. ¶34. In B oston , t he only e vidence concerning a weapon w a s that t he def endant purchased

a k nif e about a m o nth bef

ore the incident and was carry ing the knif e in his pocket. Boston , 234 So. 3 d at 1235 ( ¶ 14). No evidence existed that the def endant pla c e d the knif

e in his pocket with the intent to provoke an altercation with the victim

. Id . Thus, the court f ound that u nlike H

art , Hall , and Reid , t here was n o evidentiary support f o r the g ranting of a prearm ing instruction. Id . at 1236 (¶15). ¶35. Although I agree with the m ajority that t he liberal use of a pre-arm ing i nstruction should be discouraged, I f i nd this case i s f

a c t u a l l y distinguishable f rom Boston

. As previously noted, Sorrell was inside his apartm ent when he saw Green outside in t he parking lot looking into his car. Instead of calling t he police to r eport Green, Sorrell arm ed him self with a gun and volu n t a r i l y proceeded outside to conf ront the m a n who he b elieved was breaking into his car. W hen asked if it was necessary f or him t o com e o ut of his house with a gun, Sorrel responded, “[ o ]f course . . . that’s the sam e orange car I seen when m y house got shot up . . . [ y ]ou’re going to go out there and protect it.” ¶36. Here, as in H

art , “the proof was uncontradicted that, while in no phy sical danger f rom [ Green], [ Sorre ll] arm e d him self in advance with the i ntent o f provoking or bringing on a

1 2dif

f iculty ” with Green. Hart , 637 So. 2d at 1337. A dditionally , sim i lar to the f a c ts in Hall and Reid , Sorrell testif

ied that he deliberately a r m ed him self a n d went o utside to where Green was located in order to “protect [ his] car.” ¶37. I f ind the “record [ i]s uncontradicted that [ Sorrell] arm ed [ him self ] with the intent to initiate a conf

rontation.” Boston , 234 So. 3d at 1235 (¶12). A ccordingly , I do not believe the circuit court abused its discretion in giving Jury Instruction S-10 and would af f irm

. WILSON, J., JOINS THIS OPINION.

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