IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00458-COA RODNEY CARTER A/K/A RODNEY D. CARTER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/30/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JASON L. DAVIS DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/05/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND CARLTON, JJ. BARNES, J., FOR THE COURT: ¶1. At approxim ately 11 p .m . on January 10, 2015, Ma d i s o n C o u n t y S h e r i f f ’s Deputy

Sam Howard observed a car t hat did not have a light illum inating its license plate. The car and the deputy ’s vehicle were both traveling west on Highway 463 in Madison but were in dif f erent lanes when they cam e t o a stop at a red light. Once the light t urned green, Deputy Howard accelerated slowly in order to g e t a b e t t er look at the car’s license plate, but the driver, R odney Carter, slowed the car to a near stop, o bstructing traf f ic behind him

. Because of t his suspicious behavior, Deputy Howard f ollowed Carter as he entered t he exit ram p f or Interstate 55 s o uthbound and a ctivated his blue lights and siren. Carter initially applied hisbrakes, as if to stop, but t hen he accelerated, speeding away f rom the deputy ’s car. Deputy Howard notif

ied his dispatche r that he was e ngaged i n pursuit. During the pursuit, Carter

m aintained speeds b etween 88-124 m iles per hour (m ph), well over the posted speed lim it.
He w as weaving i n and out of traf f ic and occasionally driving o n t he s houlder of the road.
W h e n C a r ter reached the i ntersection of Interstate 220 and Highway 49, he continued speeding north on Highway 49. Af ter a f ew m iles, T roop e r Wa d e Z i m m erm an of the Mississippi Highway Patrol put out spike strips to stop Carter’s v ehicle, a nd the car cam e to

a s l ow stop. Bef

ore Carter stopped, Deputy Howard o bserved an object being thrown f rom the passenger side of

the car, causing a spark. ¶2. Carter was agitated, telling law enf orcem ent he had just picked up his wif e f rom w ork and was on his way to the hospital because he was having a severe asthm a attack. Deputy Howard later testif

ied that Carter inf

orm e d him he was having t rouble b reathing; s o Deputy Howard a dvised Carter to sit u p and quit y elling so h e could “relax and b reathe easier,” but Carter “insisted o n t ry ing to slum p over . . . and cont i n ued y elling that [ he] c ould not breathe.” Carter w as exam ined a t the scene by em e r gency m e dical personnel, and then was arrested and taken into custody . A gun was recovered near the scene the f ollowing day

. ¶3. Carter was indicted f or f elony evasion and possession of a f irearm by a f

elon. 1 A trial

was held on October 28, 2015. Upset with his appointed counsel’s legal advice, Carter insisted on self

-representation, but the judge ordered appointed counsel to rem ain and assist Carter if needed. Carter was convicted of Count One, f e lony evasion; he w as acquitted of

1 H e h ad a p rio r arm ed ro b b ery co n v ictio n in 2 0 0 7 f

o r w h ich h e serv ed tw o y ears. 2Count Two, possession of a f irearm by a f

elon. He was sentenced to f ive y ears in the custody of the Mississippi Departm ent of Corrections (MDOC). ¶4. Carter f

iled a m otion f

or a new t rial or, in t he alternative, a j udgm ent notwithstanding the verdict, claim ing t he verdict was against the overwhelm ing w eight of t he evidence. The trial court denied the m o tion, and h e now appeals. 2 An appellant’s brief was f iled on Carter’s behalf by the Of

f i ce of the S tate P ublic Def ender, but Carter has also f iled a supplem ental
pro se brief

, raising additional i ssues, as well as a pro se reply brief

. 3 Finding n o e r r o r , we af f irm the judgm e nt. DISCUSSION I. Whether the v e r d i ct w as against t he o verw helm ing w eight of t he evidence. ¶5. Carter argues the t rial court erred in deny i ng his m otion f o r a new t rial, claim ing that the evide n c e d i d n ot show that he was operating a v ehicle in a reckless m anner with indif f erence t o h u m an lif

e. Carter ins i s t s that he was m erely try ing to get to the nearest hospital due to a m e dical em ergency , and he t hought the deputy was escorting him

. He also
argues the State f

ailed to produce any evidence that he was not i n need of m edical attention when he was arrested. ¶6. In r eviewing a trial c ourt’s denial of a m otion f or a new trial, we “will only disturb a verdict when it is so c ontrary to the overwhelm ing weight of the evidence that to allow it to

2 C arter’s ap p e al w as d ism issed f o r f ailu re to p ay

co sts, b u t

it w as rein stated b y th e trial j u d g e d u e to trial co u n sel’s u n f am iliarity w ith th e p ro cess o f su b stitu tin g th e O f f ice o f th e S tate P u b lic D ef

en d e r, In d ig en t A p p eals D iv isio n , to rep resen t C arter o n ap p eal.

3 S ee M .R .A .P . 2 8 (b )

. 3stand would sanction an unconscionable injustice.” Bush v. State, 895 So. 2 d 836, 8 44 (¶18)

(Miss. 2 005). Evidence is weighed in the light m ost f avorable to the verdict. Id. C arter was charged with f

elony evasion. M ississippi Code Annotated section 97-9-72(1)-(2) (Rev. 2015) provides: The d river of a m o tor vehicle who is given a v isible or a udible signal by a law enf orcem ent of

f ic e r by hand, voice, em ergency light or siren directing the driver t o bring his m otor vehicle to a stop when such signal is given by a law e n f orcem ent o f

f icer acting in the l awf

ul perf o rm a nce of duty who has a reasonable suspicion to believe that the d river in question has c o mmi tted a crim e, a nd w h o w illf

ully f ails to o bey such direction shall be guilty o f a m isdem e anor[ .] Any person who i s g u i lty of violating subsection (1) of this section by operating a m otor vehicle in such a m anner a s to indicate a reckless or willf ul disrega r d f

or the saf ety of persons or property , or who so operates a m otor vehicle i n a m anner m anif esting extrem e i n d i f

f e r ence t o the value of hum an lif e, shall be guilty

of a f e lony [ .] Deputy Howard testif

ied t hat when he activated his lights and siren, Ca r t e r s p e d o f f and began “driving at reckless speeds m oving i n and out of traf f ic, a t tim es passing m o torists on the shoulder o f the roadway .” The eviden c e showed that Carter traveled approxim ately twenty

- two m iles in thirteen m inutes. Deputy Howard said when Carter reached Highway 49, he was “still driving recklessly , still passing vehicles, showing no regard f or t heir saf

ety .” A dash-cam video was shown t o the jury that supported the deputy ’s testim ony . In the video, the jury could see Carter speeding down the f reeway a t high speeds, weaving in and out of traf f i c. ¶7. Carter acknowledged that he saw the deputy turn on his lights; he just contends that he “never anticipated on him chasing m e at all

. . . because I d id not d o any t hing w rong.” He

4claim s he was speeding because he was having a m edical em ergency (asthm a attack), but he

was stopped at a t raf

f ic light when the deputy f irst observed him and only began driving in

a reckless m anner af

ter Deputy Howard began f ollowing him

. W hen Carter cross-exam ined Deputy Howard, the of

f icer replied:
W e ll, Mr. C arter, I w as behind y ou several m inutes prior to that. You s t opped at a red light, and y o u saw a m arked patrol car next to y ou. You gave m e no sign, indication, acknowledgm ent that I was there, k nowing that I could have rendered y ou aid o r had AMR or f ire service dispatched to y o u m uch quicker than y our decision to go in the other direction of f i ve or six hospitals.

. . . . [ H]ad y ou stopped when I f irst a ctivated m y lights and siren and y ou notif ied m e that y ou needed to receive m e dical attention, we would h ave s t opped right there. Carter’s w if

e testif ied that h e was having an asthm a attack and disclaim ed they were running f ro m t h e p o l i c e , b u t she also said that she did not know why he did not stop f or law enf orcem ent and did not know w here Carter was going. Lastly , we note that m edical personnel exam ined C a r t e r at the scene of t he arrest, and he d id not require additional

treatm ent at a hospital. ¶8. “ When this C ourt analy zes a jury ’s v erdict to determ ine whether i t goes against t h e

overw h e lm ing weight of t he e vidence, we m u st keep in m ind that the jury is the ultim ate f inder of f act.” L angston v. State , 791 So. 2d 273, 280 ( ¶14) (Miss. Ct. App. 2001). Thus, it is the “sole province of the j ury ” to evaluate the credibility of each witness. Blackwell v. State , 744 So. 2d 359, 364 (¶18) ( Miss. Ct. App. 1999) ( citing Johnson v. State, 642 So. 2d 924, 928 ( Miss. 1994)). “ In determ ining a witness’s credibility , jurors are allowed latitude

5in deriving f acts f rom e ach w itness’s assertions, and jurors m ust determ ine the value of the conf licting testim ony introdu c ed during the trial.” F lowers v. State , 144 So. 3 d 188, 196 (¶26) (Miss. Ct. App. 2014). Accepting as true the evidence which supports the verdict, we
cannot f ind that the trial judge abused his d iscretion in deny ing Car t e r ’ s m otion f or a new trial.
II. Whether the trial co u r t erred in deny ing Carter’s defense

instruction on “necessity and duress.” ¶9. Carter asserts t hat the trial court should have granted him an instruction on “necessity and duress.” Jury instruction D-9, which was draf ted and handwritten by Carter, stated: “I[ ,] Rodney Carter[ , ] Request J ury on Necessity def ense D[ ue] to D uress – Medical Em ergency .” The judge f

ound that it was a perem

ptory instruction and ref

used it. ¶10. “A def

endant is entitled to have the trial court give jury instructions that present his theory of the c ase; however, the court m a y deny an instruction t h a t mi s s t a t es the law, is covered elsewhere in the instructions, or is not supported by the evidence.” Graham v. State , 967 So. 2d 670, 6 74 (¶15) (Miss. Ct. App. 2007) (citing Ladnier v
. State, 878 So. 2d 926, 931 (¶20) (Miss. 2004)). The Mississippi Suprem e Court has held: The def ense of necessity is “available where t he def endant reasonably acts out of f ear o f ‘ i m m inent danger o f death o r serious bodily harm ’ to others.” Sto d g h i l l v
. State , 892 So. 2d 236, 238 [ (¶8)] (Miss. 2005). The three com ponents to the def

ense of necessity are[ :] (1) the act charged w as done to p r e v e n t a signif

icant evil, (2) there was no adequate alternative, and (3) t h e harm caused was not disproportionate to the harm avoided. Id. Davis v. State , 18 So. 3d 842, 849 (¶19) (Miss. 2009). ¶11. In Stodghill , 892 S o. 2 d at 238-40 (¶¶7, 12), we af f irm e d a trial court’s determ ination

6that t he def

endant could not use the af f irm ative def

ense o f n ecessity af

ter h e drove under the inf luence of alcohol to take a s ick f riend to the hospital, as there w ere “reasonable alternatives” available to h i m . W e sim ilarly conclude t h a t J u r y I nstruction D-9 was not supported by the evidence in this case. Carter was not under an unlawf ul threat, and he had “reasonable alternatives” to driving him self , at speeds exceeding 100 m ph, to the hospital. His wif e was in the car; she c ould have driven him

. Further, as noted by D eputy Howard in his t estim ony , Carter could have alerted Deputy Howard, who was s itting at the light next to Carter, to contact a n am

bulance. M oreover, we f

ind the potential harm o f C arter’s reckless driving at excessive speeds over a span of twenty -two m iles was d isproportionate to the harm avoided – his asthm a episode. ¶12. According l y , w e f i n d t h e t r i a l court’s ref

usal of Carter’s jury i nstruction on the def ense of necessity was not in error.
III. Whether the State produced f alse evidence in v i o lation of Mississippi Rule of Evidence 609. ¶13. At trial, Carter r ef

used to stipulate t hat h e had a prior f elony conviction; so the State

m oved t o introduce i nto evidence a certif ied judgm e nt of conviction s howing Carter was convicted of arm ed robbery under Mississippi Code Annotated section 97-3-79 (Rev. 2006)

on October 22, 2007. Carter did not object to the adm i ssion o f this evidence. However, later

at trial, h e subm i tted a MDOC dischar g e c ertif icate to rebut the evidence t hat he was convicted of

arm e d robbery

. The court ruled the MDOC certif icate inadm issible, as it was not a self -authenticating docum e nt. ¶14. C a r t e r c o n tends that the trial court erred in a llowing the State to i n t r o d u c e t h e

7evidence of his prior conviction, arguing the evidence was “f alse” and prejudiced the jury

. This argum e nt i s waived as C arter did not o bjec t t o t h e a d mission o f the judgm ent of conviction a t trial. “[ A] def endant’s f a ilure to contem

poraneously object to the adm ission of e vidence at trial, as r equired by Mississippi Rule of Evidence 103, ef f ectively waives the issue on appeal.” Butler v
. State , 16 So. 3d 751, 755 (¶19) ( Miss. C t. App. 2009). Regardless, as C arter has provi d ed no evidence that t he certif ied judgm ent of conviction subm itted by

the State was “f

alse,” we f

ind no m erit to this claim

. 4
IV. Whether law enforcem ent had probable cause to arrest Carter. ¶15. Carter claim s Deputy Howard did not have probable cause to arrest him af ter he was inf orm ed of Carter’s em ergent m edical issue. He argues: Deputy Sam H oward m ay not ignore conclusiv ely established evidence of existence[ ] of an af

f irm a tive def

ense of necessity [ ;] if an of f i cer h as knowledge of f

acts a nd circum s tances which establish an af f irma t ive def ense[ ,] he or she lacks probable cause to m a k e a traditional arrest even when the f

acts and circum s tances establish that the person m eets all e lem ents of the of f ense. Essentially , Carter is reiterating his c laim r egarding the a f f i rma t i v e d ef

ense of n ecessity , which we have already f

ound to be inapplicable to the instant case. ¶16. Furtherm ore, “the decision to stop an autom obile is reasonable where the police have probable cause to believe t hat a traf f ic violation has occurred.” Goff v
. State , 14 So. 3d 625, 641 (¶48) (Miss. 2009) (quoting W hren v
. United S

tates, 517 U .S. 806, 810 (1996)). “To ef f ect an a rrest f

or a f elony , either with or without a warrant, a police of f icer m ust have (1)

4 We f u rth e r n o te th at C arter w as acq u itted o f th e ch a rg e f o r p o ssessio n o f a f

irearm b y a f elo n ; so th is claim i s n o t relev an t to th e cu rren t ap p eal, w h ich o n ly in v o l v e s h is f elo n y ev asio n co n v ictio n . 8reasonable cause t o believe a f elony has been com m itted; and, (2) reasonable c a use to believe that t he person proposed t o be arrested is the o ne w ho com m i tted it.” Henry v. State , 486 So. 2d 1209, 1212 (Miss. 1986). D eputy Howard t estif ied that he witnessed Carter com m it two
t r a f f i c v i olations – (1) his license plate was not illum inated; and (2) he was o bstructing traf f i c. Additionally , Deputy Howard saw Carter f a i l to stop when he activated his lights, exceed the posted speed lim it during pursuit, and drive on the s h o u l d e r of the road. Theref ore, we f i nd Carter’s claim that Deputy Howard lacked probable c ause to arrest h im to be without m erit.
V. Whether Carter w as denied effective assistance of counsel. ¶17. W h en discussing Carter’s w ish f or self -representation at trial, his attorney inf orm ed the trial court that he had counseled Carter that the d ef enses of necessity and duress were not “legitim ate def

enses” i n t hi s i n s tance. W hen Carter later asked f or h is instruction on “necessary u n d e r d u r e s s , ” a s he term ed it, t he attorney ’s com m ent t o the trial court was: “Your Honor, I’m not f

a m i liar with that ty

pe of instruction, so I wasn’t sure how to construct

som ething like that.” On appeal, Carter argues that trial c o unsel’s f ailure to help him craf

t

a jury instruction on “necessity u nder duress” constituted inef f ective a s sistance of counsel. ¶18. Since we are lim ited to the trial court’s record, it is unusual f or an a ppellate court to address a claim of i nef

f ective assistance of counsel on direct appeal, f inding it m ore appropriate f

or a m ot i o n f

or post-conviction relief

. Sims v. State , 213 S o. 3d 90, 97 (¶24) (Miss. Ct. App. 2016). However, in this case, as we have f ound n o basis f

or an i nstruction

on the d ef

ense of necessity , we can likewise f ind n o me r i t t o Carter’s claim o f inef f ective

9assistance of counsel regarding the f

ailure to subm it such an instruction. CONCLUSION ¶19. Finding the trial court’s denial of Carter’s m otion f or a new trial was not an abuse of discretion, and h is rem aining claim s are m e ritless, we af f irm Carter’s conviction f

or f elony evasion and sentence of

f ive y ears in the custody

of the MDOC. ¶20. AFFIRMED.
L E E , C . J . , I R

V I N G A N D GRIFFIS, P.JJ., I S H E E , C A R L T O N , F A I R , W I L S O N , GREENLEE AND WESTBROOKS, JJ., CONCUR.

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