IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01468-COA
MARTEZ

TAYLOR A/K/A MARTEZ D. TAYLOR A/K/A MARTEZ DEONTE TAYLOR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/06/2016 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED: 05/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. FAIR, J., FOR THE COURT: ¶1. Martez Tay lor was tried f or robbery and p ossession of a f irearm by a convicted f

elon f ollowing an altercation with his girlf r iend’s aunt, Danielle Brent. Brent c l aim ed Tay lor had attacked her suddenly and taken her phone, credit cards, and pistol. T ay lor testif i ed he took the gun af ter she threatened him with it and t hen im m ediately brought the pistol a nd the other item s (which h e had taken by m istake in his haste to leave) to his m other so she c o uld return them

. The circuit court ref used to instruct the jury on Tay lor’s asserted def e nse of necessityaf

ter f inding that Tay l or had n ot e stablished that he got rid of the gun at the f irst o pportunity

. 1 The jury acquitted Tay lor of robbery b ut c o nvicted h im of possessing a f

irearm af ter being convicted of

a f elony , and Tay lor appeals. ¶2. W e agree w ith t he c ircuit court that, when a convicted f elon takes a possession of a f i rearm out of necessity , he i s required to act im m ediately to relieve him self of it once the need has passed. But t he necessity does not end until the d ef e n dant h as an adequate

a l t ernative to p ossession of the gun, which m eans that the def endant m ay delay w h e n i t i s
necessary to transf

er the weapon saf

ely

. W e conclude t hat a reasonable juror who believed Tay lor’s testim o ny could h ave f ound the necessity def

ense m eritorious. T he jury theref ore

s h o u l d h ave been instructed on T ay lor’s theory of the case, a nd because it was no t , w e reverse his conviction and rem and f or a new trial.
DISCUSSION 1. Necessity ¶3. “[ N]ecessity

. . . provides a valid def ense to the o f

f ense of f elon i n p o s s e s s i o n o f a f irearm , but . . . the record m ust contain an evidentiary f oundation to support the def ense.” Anderson v. State , 185 S o. 3d 1015, 1024 (¶37) (Miss. C t. App. 2014). The necessity def ense requires a showing t hat “(1) t he act charged was done to prevent a signif icant evil; (2) there [ was] no adequate alternative; and (3) the harm caused was not d isproportionate to the harm

1 T h e circu it co u rt also f

o u n d th at T ay lo r f

ailed to estab lish n ecessity to tak e th e g u n in th e f irst p lace, b u t th e S tate d o es n o t ad v a n ce th a t th eo ry o n ap p e a l. 2avoided.” Flowers v. State , 51 So. 3d 911, 913 (¶7) (Miss. 2010).

¶4. T a y l o r t e s t i f

i e d t h a t h e had been stay ing with his girlf riend and her i nf

ant child (Tay lor was not the child’s f ather) in a hotel room f

or about three m onths, when one m orning Brent, his girlf

riend’s aunt, showed up at the d oor. The girlf riend l e t h e r i n , a n d Tay lor noticed Brent was h o lding a cell phone a n d a s m a ll-caliber pistol. W hen Tay lor tried to lea v e , B r e n t

—who Tay l or t estif

ied did not like h im seeing her niece and had previously threatened to shoot him

—blocked his way and b egan waivi n g the pistol a nd pointing it at him

. Brent was “f

urious” as she waved the gun at Tay lor w h ile speaking to her niece. Tay lor chose a m om ent when t he gun was not pointed at him to grab it and f orce it d own. The two struggled over the gun until Tay lor bit Brent on the w rist and she dropped it. B o th went f or the gun, b ut af

ter som e “wrestling,” Tay lor cam e up w ith i t a nd Brent “storm ed out of the

room .” Tay lor then hurriedly grabbed som e of his things that were within a rm ’ s reach and lef t. As he w as walking away f rom the m otel, he saw a city bus approaching, and he took it

to near w here his m other l ived. Af ter getting of

f the bus, Tay lor “ im m ediately ” went to his

m other and gave h e r t h e g u n a nd other i tem s t hat did not belong to him , w h ich he had inadvertently taken when he f led. He asked her to return them , and she did. I t is not clear f rom the record how f

ar Tay lor’s m other’s hom e was f rom t he m otel, but Tay lor estim ated that he possessed the gun f or about twenty

m inutes. ¶5. Tay lor of

f ered a n ecessity jury i nstruction, D-11, but it was ref used. The trial court f ound both that Tay lor had f ailed t o show necessity in taking the gun a nd had f ailed to show

3any necessity in keeping it a f t e r B rent lef

t. On appeal, the State only pursues the second theory : that Tay lor kept the gun af ter the necessity

had passed. ¶6. The grant or denial of a jury ins t r u c t i o n i s r e v i e w e d f

o r an abuse o f

discretion.
McInnis v. State , 6 1 So. 3d 872, 875 (¶10) (Miss. 2 011). That discretion is lim i ted, however,

as “a def endant is entitled to have jury instruction s g i v e n w hich p resent his theory of the
case.” Newell v. State , 49 So. 3d 66, 74 (¶20) (Miss. 2010). T he trial court should give such

an instruction unless i t “ i n c orrectly states the l aw, is covered f airly elsewhere in the instructions, or i s without f oundation in the evidence.” Id. And “[ w]hen serious doubt exists

as to whether an instruction should be included, t he doubt should be resolved in f avor of the accused.” Id. ¶7. T h e S t a t e c o n t e n d s t h a t Tay lor’s prof f ered necessity instructio n w a s w i t h o u t f oundation in the evidence because “he could h ave thrown the gun out of the m otel room or he could have had [ his girlf riend] secure the g un a f

t e r h e took it f

rom [ B rent].” The State analogizes t his case t o W illiams v. State , 9 5 3 S o. 2d 260, 263-64 (¶¶7-10) (Miss. Ct. App. 2006), and D avis v. State , 69 So. 3 d 45, 48-49 (¶¶11-14) (Miss. Ct. App. 2 011), but both of those cases involved def

endants who arm ed them selves in advance of conf rontations; they have little relevance to today ’s c ase. W e agree, however, that “ [ a ] def endant is not entitled

to a necessity d e f

ense when he or she pursues a continued course of crim inal conduct af

ter circum stances justif

y ing such conduct c ease to exist.” M yers v
. State , 153 So. 3d 581, 587 (¶20) (Miss. 2014).

4¶8. It is unclear w hether the State argues t hat Tay l or should have thrown the gun during

the altercation or sim

ply abandoned it som e w he r e o n ce the coast was clear, b ut both ideas

s t r ike us as untenable. Turning to the elem ents of the necessity def ense as articulat e d i n Flowers , the risks of the gun discharging upon h i t t i n g t h e ground or being picked up and turned against Tay lor bef ore he could retreat t o s a f e ty are “signif

icant evils.” See id. And “the harm caused was not disproportionate to the harm avoided” because, while the statute

m ay technically crim i nalize it, there is little h arm in a c o nvicted f elon, who has com e into possession of a f

irearm through necessity , holding it brief ly when required t o ensure that it is saf ely t ransf erred to a responsible person. See United States v. Mooney , 497 F .3d 397, 407 (4th Cir. 2007) (citing United States v. M a s o n , 2 3 3 F.3d 619, 625 (D.C. Cir. 2000)). A reasonable juror could likewise f ind that abandoning the gun in a public place or entrusting it t o a com plete stranger were n ot adequate alternatives to its brief c o ntinued possession. See Flowers , 51 So. 3d at 913 (¶7). ¶9. As to the suggestions that T ay lor s hould have just stay ed put and called the police or
gone som ewhere else and given the gun to som e other person, the Fourth Circuit’s discussion in Mooney i s instructive. Mooney took a gun f r om his e x -wif

e in self -def e nse and brought it to his place of em

ploy m ent, where he intended t o call the police without i nterf erence f rom his ex-wif

e. Mooney , 497 F.3d at 400. The district court f ound that there was no potential necessity def

ense because Mooney lef t with the g u n . Id. at 401. The Fourth Circuit reversed, holding that the necessity d ef ense was available to M o o n e y because “[ w]hen a

5def

endant pursues, im m ediately and w ithout delay or detour, a r easonable course f or handing

over a gun to p roper authorities af ter legally taking possession of i t, we cannot f ault him f or
not choosing a dif

f erent reasonable course.” Id. a t 408. 2 W hile Mooney said he intended to
turn the f

irearm d i rectly over to the police, t h e Fourth C ircuit l ater e xplained that “a def endant’s o ptions f

or reasonable dispossession of a f irearm m ay include turning the gun

over to the authorities, but that i s not t he only o ption, and ultim ately , the reasonableness of the def endant’s c ourse of c onduct is a question f or a jury .” United States v. Ricks , 573 F.3d 198, 204 (4th Cir. 2009). In Ricks , the court held that the justif i cation def

ense was available where the def

endant, f earing h is room m ate m a y return af ter once attem

pting t o a ssault h im

w i t h a f irearm , picked the gun up, unloaded it, and concealed i t under som e clothes on a dresser used by

its owner. See id. ¶10. As to t h e particular question of whethe r T a y l o r s h o u l d h ave given the gun to his girl f r iend, he did not d irectly address that possibility in h is testim ony . W e recognize that

n e c essity is an a f

f irm ative def

ense and Tay l or, as its p roponent, bore the b urden o f p r o o f

. See Davis v. State , 158 So. 3d 1190, 1195 (¶22) (Miss. Ct. App. 2 015). And we agree that

a reasonable f

actf inder could conclude t hat Tay lor’s necessity def ense f ailed o n its m erits as

a result of his f

ailure t o a d d r e s s t his possibility

. I n Stodghill v. State , 892 So. 2d 236, 239

2 T h e n e cessity test em

p l o y ed b y th e F o u rth C ircu it ask s w h e t h e r t h e r e w as a “reaso n a b le” altern ativ e to p o ssessin g th e g u n , w h ile o u rs u s e s th e w o rd “ad eq u ate,” b u t w e tak e th em to h av e su b stan tially

th e sam e m ean in g . S

ee S to d g h ill v. S ta te , 8 9 2 S o . 2 d 2 3 6 , 2 3 8 -3 9 (¶8 ) (M i ss. 2 0 0 5 ) ( ref e rrin g to a reaso n a

b len ess stan d ard in an aly zin g a n a s s erted n ecessity d ef en s e). 6(¶¶9-10) (Miss. 2 0 0 5 ) , t h e def endant claim ed he drove under the inf luence of alcohol because of a m edical em ergency . On a p p e a l , he argued that the circuit court, w hich tried the case without a jury , lacked a basis in the evidence t o r e j e ct h is justif

ication def

e nse. Id. The
suprem e court af

f irm ed Stodghill’s conviction because he f a iled to show t hat he had asked his d a u g h t er and son-in-law, who were present a n d dem onstrably able to drive, to do it instead. Id. ¶11. It is im

portant t o note that the issue in S todghill was whether the f a c t f i n d er could reject the necessity def

ense, while today it i s whether the n ecessity d ef ense should have been subm itted to the f

actf inder in the f

irst place. As we said, when there is serious doubt as to the def ense’s viabi l i t y , i t should be subm itted to the jury , and despite Tay lor’s f ailure to directly address the p ossibility of handing t he weapon over to h is girlf riend, we f

ind that there is still a jury question based on the surrounding circum stances. See Newell , 49 So. 3d

at 7 4 ( ¶ 2 0 )

. Tay lor t estif ied that he f

led to avoid another conf rontation w ith Brent; he did

not k now where she h a d gone o r, potentially , w hat s he had gone to get. There were also reasons f or the jury

to conclude the girlf

riend was unlikely t o be able or willing to take the
gun: s he was twenty or twenty -one y ears of age and was caring f or a f ive-m o nth-old inf

ant. She apparently ended her relationship with Tay lor af ter the incident and lef

t the state, and the jury could have accepted Brent’s testim ony t hat her n iece was solidly on her side and that the conf ron t a t i o n had occurred because Tay lor ref used his girlf

riend’s dem ands that he lea v e —“the jury has the prerogative to accept o r reject, in w hole or part, the testim ony of

7any witness.” Smith v. State , 925 So. 2 d 8 2 5 , 8 3 9 ( ¶ 3 3 ) (Miss. 2006). A reasonable juror

could f ind that the exigencies of the situation outweighed the harm in Tay lor’s twenty -m inute possession of

the f irearm

. S ee Mooney , 497 F.3d at 407. ¶12. W e conclude that the circuit co u r t e r r e d in ref using to instruct t he jury on Tay lor’s necessity def

ense. As to the potential that this m ight be harm le s s e r r o r , t h e case was essentially a “he said, she said.” Tay lor and Brent were the only witnesses to the altercation

to testif y at trial, a nd the jury clearly rejected at least som e of Brent’s account, as it acquitted Tay lor of robbery despite her direct and unam biguous testim ony that o ne had occurred. The jury deliberated f

or som e tim e over two day s and even sent notes t o t he circuit court asking about the use of the word “unlawf u l” i n t h e c o ntext o f possession of a f irearm in the indictm ent a nd jury instructions. The f ourth and f

inal note asked if there w as “a lawf ul way f or a f elon to be in p o ssession of a f irearm ” and whether the jury could “have any

research

m aterial o n state law”; T ay lor was convicted af ter the court a nswered “ no” to b oth questions. This is not a case where we can f ind ref using to subm it the def

e n se to be harm less error.
2. Im peachm e nt w ith Prior Convictions ¶13. T h e t r i a l court allowed Tay lor to b e im peached w i t h t h e d e t a i l s o f h i s p r i o r convictions, pursuant to Mississippi Rule of Evidence 609(a)(1)(B), but without m aking onthe-record f

indings regarding the f

actors outlined in Peterson v. State , 518 So. 2d 632, 637- 38 (Miss. 1987). The f

ailure to m ake such f

indings on the r ecord is reversible error in and of itself “in those cases where the accused’s credibility was central to his def e nse or where

8t h e evidence was hotly disputed.” See Jones v. State , 702 So. 2d 4 19, 421-22 (¶¶15-1 7 )

(Miss. 1997). ¶14. W e note, also, that t h e t r i a l c o u r t f o u n d t h e p r i o r c o nvictions adm issible f or im p eachm ent o nly , y e t the p r osecution clearly went b ey ond that purpose to suggest the prior convictions were evidence o f Tay lor’s intent in taking the various objects belonging to Brent.
W h ile this particular issue should not recur on rem and ( as Tay lor was acquitted of robbery and will not be r etried f

or t hat of f e nse), if the details of Tay lor’s prior convictions a re f ound

to be adm issibl e o n r e m a n d t heir use should be l im ited to credibility “and not to show a propensity

. . . to have acted on the present occasion in conf o rm ity with the crim inal character suggested by the previous c onviction.” I d. at 422 (¶17) (citation and internal q uotation m arks

om itted).
3. Sentencing as Habitual Offender ¶15. Finally , Tay l or contends that his indictm ent insuf f iciently charged him as a habitual of f ender and that t h e c o urt lacked suf f i cient evidence to s upport a lif e sentence under Mississippi Code Annotated section 99-19-83 (Rev. 2015). These contentions are m ade f or the f irst tim e on appeal, a nd so we decline to address them

. If the issue were the suf f iciency of t he evidence a s to the substantive of f ense (f elon i n possession of a f

irearm ), we would be required to address i t because d o uble jeopardy would bar a r etrial should the e vidence have been insuf

f icient f or any thing but an acquittal. See Newell v. S tate , 175 So. 3d 1 260, 1267-
68 (¶5) (Miss. 2015). B ut “the D ouble Jeopardy Clause does n ot p reclude retrial on a prior

9conviction allegation in the noncapital sentencing context.” Monge v. California , 524 U.S.

721, 734 (1998). Since we are reversing Tay l or’s conviction and rem anding f or a new trial, the circuit court can address these issues, should Tay l or choose to raise them there. ¶16. REVERSED AND REMANDED. LEE, C .J., I RVING AND GRIFFIS, P.JJ., BARNES, CARLTON, W I L S ON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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