IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-00835-COA DERRICK NELSON A/K/A DERRICK DEMETRIUS NELSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/19/2016 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID NEIL MCCARTY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: SCOTT W INSTON COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED: 10/30/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. FAIR, J., FOR THE COURT: ¶1. Derrick Nelson was convicted of f i rst-degree m

urder f or t he shooting of his m other’s boy f riend, W illie Hood. Nelson told police that H ood attacked him and t ried to take his gun, which went of

f a ccidentally during the struggle and killed Hood. On appeal, Nelson claim s the evidence w as insuf

f icient to convict him of f

irst-degree m

u rder and that the c ircuit court erred in ref

using t o i nstruct the jury on im perf ect s elf -def ense, a legal theory that reduces an intentional killing f

rom m urder to m anslaughter w here the d ef e n dant killed the victim out of

a sincere but unreasonable belief t hat it was necessary to protect him self f rom death or great bodily harm

.¶2. The jury should have been instructed on im perf ect self -def ense, and, b ecause it was not, we reverse Nelson’s conviction and rem a nd f or a new trial. DISCUSSION 1. Im perfect Self-Defense ¶3. Two ey ewitnesses testif ied f or the prosecution. Both were N elson’s sisters, and their
accounts at t rial w ere m ostly consistent with h is: Nelson, Hood, Nelson’s sisters, his m other, and others were having a graduation party f or Nelson’s brother. There is no dispute Hood

was d runk—a post-m o r

tem exam i nation conf

irm ed t hat h is blood-alcohol c ontent was 0.21,

m ore than two and a half tim es the legal lim it f or operating a m o tor vehicle. N elson took the key s to Hood’s vehicle, and Hood dem anded that he return them

. Hood becam e very agitated when Nelson r ef

used. Eventually , Nelson relented and gave up the k ey s, calling a f riend f or

a ride. B ut Hood rem ained agitated and continued arguing with v arious m em b ers of Nelson’s f am ily

. ¶4. Hood then began “swinging wildly ” and p u n c h i n g h i s o w n v e h i c l e r e peatedly , breaking a wind guard a nd one of the vehicle’s windows; then he picked up a beer bottle and threw it e i ther at the v e h icle o r at Nelson; the b ottle g lanced o f f Nelson bef

o re h itting the vehicle and breaking, with som e of the b r o ken glass hitting Nelson. Around this t im e Nelson’s ride a rrived. A m an f r om out of s t a t e w h o m Nelson knew only as “ Sm iley ” was driving the vehicle. According t o Nelson’s statem ent, he saw a pistol on the passenger’s seat of Sm iley ’s vehicle, and he picked it up and f ired it into the air s e v e r a l t i m es i n what he

2claim ed w as a n ef f o rt to get Hood’s a ttention a nd put an e n d t o h i s tantrum

. Nelson told Hood to “ch i l l o u t ” a nd that he would not hurt him , but H ood responded by advancing on Nelson and try i n g t o t a k e t he gun. W hile t hey were grappling over it, the gun d ischarged, and Hood was hit in the f orehead, killing him

. ¶5. The sis t e r s ’ t e s t i mo n ies m ostly tracked N elson’s account, though both f requently claim ed a lack of m em ory at trial, and they were im peached with statem ents they h ad given the police on the night of the killing that suggested the shooting was a m urder by Nelson. Nelson f led the scene af

ter the shooting, but he turned him self in about ten hours later. ¶6. Nelson did not testif y at trial or present an y evidence in the def ense’s case in chief

. He instead based his def

e nse on his statem ent to police, which the State put into e vidence, and on t h e t e s t im o nies of his sisters. T he trial court instructed the jury on the theories of f irst-degree m

urder, second-degree m

u rder, m isdem e anor m anslaughter, heat-of -passion

m anslaughter, c ulpable-negligence m anslaughter, accident, and self -def e nse. Nelson’s instruction on im

per f e c t s e l f -def ense was initially accepted without objection f rom the prosecution. But when the State objected to the self -def ense instruction, the trial court expressed doubt about whether it w as w arranted. It ultim ately decided to give a self -def ense instruction out of an a

bundance of caution. But, without f urther prom

pting f rom either party , the court changed its m ind about the im perf ect self -def ense instruction and ref

used it. ¶7. “Unlike true self

- def ense, im perf ect self -def e n s e i s n o t a def

ense to a crim inal act. Rather, u nder the theory o f im perf ect self -def ense, an intentional killing m ay be considered

3m anslaughter i f done without m a lice but under a bona f ide (but unf

o unded) b elief that it was necessary to prevent death or g reat bodily harm

. ” Brown v. State , 222 So. 3d 302, 307 (¶21) (Miss. 2017). ¶8. The S tate of

f ers three reasons why t he instruction should not have been g iven but we f ind none persuasive. First, it contends that because N elson u sed a d eadly weapon, he acted with m alice and could not claim the shooting was m anslaughter by im perf ect self -def ense. T h is argum e nt warrants little discussion because m alice may be inf erred f rom the u s e o f a deadly weapon. Anderson v. State , 79 So. 3d 501, 507 (¶22) (Miss. 2012). ¶9. Next, the State contends the instruction should not have been g iven b ecause there was

no evidence Nelson had a b ona f ide f ear of death or serious injury f r om Hood, as Nelson did
not claim to have acted in s elf -def ense. The State a cknowledges Hood outweighed Nelson by f i f t y p ounds, was intoxicated, and had acted violently that night and on previous

o ccasions; but i t points out that his violence had been m ostly directed tow a r d h i s o w n pro p e r t y , a nd his prior scraps with Nelson had never r esulted in serious i njury

. In this argum ent, the State entirely n eglects to m ention that Hood was try ing to use his superior size
to take N elson’s f

irearm , which is a deadly weapon. W e c onclude that a bona f ide f ear could be inf erred f rom the c ircum stan c e s, notwithstanding Nelson’s claim that the shooting was an accident. ¶10. The last theory the State advances is essentially the opposite argum ent: it contends no

reaso n a b l e juror who believed Nelson’s a c count could f ind that self

-def ense was

4unreasonable. I f that were the c ase, the i nstruction would be properly d enied, as it was in

Y oung v. State , 99 So. 3d 159, 1 6 6 (¶22) (Miss

. 2 0 1 2 ). The State analogizes this case to Y oung , b ut Young claim ed t o have ki l l e d his wif e’s lover a f

ter the other m an pulled a gun during an argum ent. Id

. The circum stances here are m uch m ore m

urky , a s Nelson was the

one w ho i ntroduced the deadly weapon. A reasonable juror could conclude that, while Nelson m ay have sincerely believed Hood would use the weapon against him if h e was able to take it, such a f

ear was not reasonable under the circum stances. ¶11. Nelson claim ed i n his statem ent that the shooting was a n accident. But although there

was no direct evidence he shot on purpose, t here is quite a bit of c ircum st a n t i a l e vidence. The two had been a rguing, and t he gun that b egan t he f ight was in Nelson’s possession and

u n der his control. I t was d ischarged toward Hood’s h ead, k illing him a n d c ausi n g N e l s o n to w in the f

ight, which Hood’s s u p e r i or size suggested that Nelson would otherwise have lost. And instead o f sticking around to explain what he later said happened, Nelson f led af ter the shooting. Nelson also had plenty of reason to lie about whether the shooting was done

on purpose—to reduce his culpability b oth to the authorities a nd to his f am ily , since Hood was his m other’s boy f

riend and apparently had been f o r som e tim e. ¶12. From

these f acts, a reasonable juror could conclude Nelson shot H ood intentionally and l ied when he s aid it was a n accident; this w as exactly what the State argued in a dvancing its theory that the killing was m urder. B ut a reasonable juror could still believe the rest of Nelson’s account w as true. Our suprem e court h a s “ r e p e a tedly held that in a crim inal

5prosecution the jury m ay accept the testim ony o f som e witnesses and reject that o f others, and

that they m a y a c c e p t i n p a r t and reject in p art the evidence on behalf of the [ S]tate or on behalf of the accused.” Mangum v . State , 762 So. 2d 337, 346 (¶35) (Miss. 2000). The jury

can “disregard any portion of t he evidence e ither f or the state or f

or the def endant.” Martin v. State , 112 Miss. 365, 374-75, 73 So. 64, 66 (1916). ¶13. In M

cTiller v. S

t ate , 1 13 So. 3d 1284, 1292-93 ( ¶¶26-28) (Miss. Ct. App. 2 013), this Court reversed a c onviction when presented with alm ost the sam e issue a s in today ’s case. McTiller and an o t h e r man were f ighting over a gun, and the other m a n ended up shot. Id.
at 1288 (¶¶5-9). At trial, McTiller contended both that the shooting was accidental and that, in the alternative, i t had been done in self -def ense. The trial court gave a n accident instruction (albeit an insuf f icient one), but it ref

used to ins t r u c t o n s elf

-def ense because it contradicted McTiller’s c laim the shooting was an accident. W e f ound this to be reversible

error because, just as in this c ase, “[ a] crim inal d e f e ndant has a r ight to a ssert alternative theories of def

ense, even inconsistent alternative theories.” I d. at 1292 (¶26) (quoting Reddix v. State , 731 So. 2d 591, 593 (¶9) (Miss. 1999)). ¶14. I t i s Nelson’s actual intent that m atters, and whether t o b elieve him about what h e intended to do was a question f or the jury , not the court. In Prine v. State , the suprem e court explained: The jury m ight b elieve Prine

. . . brought o n the dif f iculty , a nd that h e entered it arm ed with a pistol, y et P rine was n ot cut of f f rom the right of self

-def e nse, unless the jury should f

urther believe f

rom the evidence that Prine so b rought on the dif f iculty , arm ed with a deadly weapon, and i ntending to use it when he 6provoked or brought on t he encounter. H e m ust ha v e been t he originator of the dif f iculty ; he m

ust have entered it arm ed, and h e m ust have so brought it on and entered into it i ntending to use his p istol and overcom e h is a dversary , if necessary

in the course of

the encounter. Prine v. State , 73 M iss. 838, 843, 19 So. 711, 712 ( Miss. 1896). In his s t a t e me n t to the police, Nelson averred that he never intended to use the weapon on Hood; he s a id he f ired it to get Hood’s attention and s top his tantrum (which was at that point directed at Nelson’s

m other or sisters). Af

ter f iring the shots, perhaps because he realized t he gesture could be

m isinterpreted, N elson told Hood he would not hurt him , but Hood advanced on him i n an attem pt to take t he weapon. A reasonable juror could certainly conclude N elson’s story is

a lie and that he was just angry with Hood; but she could a l s o c o n c lude he was telling the truth and that his use of

the gun was just a bad d ecision in the heat of the m om ent, lacking

a “ m urderous purpose” that denies him the right t o claim self -def ense. See Prine , 73 Miss. 842-43, 19 So. at 712. “[ E ]ven if the g reat weight of the evi d e n c e . . . supports a contrary view, [ t he def

endant] is s till e ntitled to present his def ense to the jury

. ” J

ohnson v. State , 908 So. 2d 758, 763 (¶18) (Miss. 2005). ¶15. Even if we w e r e t o f i n d t h a t N e l s o n ’ s f

i r ing the gun i nto the air m ade him an aggressor, and at that point he lost his right t o claim self -def ense, N elson s aid he im m ediately told H ood to “chill out” and a verred that he did not intend to h urt him

. An aggressor can still claim self -def ense i f he by “ unequivocal acts abandons his original p osition of a ggression and discloses t hat f

a ct to his adversary in som e appropriate m a n ner.” W ilkinson v. State , 143 Miss. 324, 339, 1 0 8 S o . 7 1 1 , 714 (1926) (Ethridge, J., dissenting); see also 4 0 C.J.S. 7Homicide § 195 (2018) (“[ E]ven if a person is an a ggressor, he or s he can lose that status by

clearly withdrawing f

rom a f ight and can evince that desire t o withdraw by either word or act

so long a s the person’s intentions are clear.”). W hether Nelson’s attem pt at withdrawal was ef f ective was a question f

o r the jury , not f

or the court. ¶16. W e agree that the evidence was suf f icient to convict Nelson of f irst-degree m

urder. But i f the evidence was s uf f icient to convict N elson of m u rder, which is an i ntentional killing, then it w as s uf

f icient to s how the killing was intentional f o r the purposes o f Nelson’s prof f ered im perf ect self -def ense in s t r u c t ion. N elson told police the shooting was an accident, but that does not bar him f rom claim ing im

perf e c t s elf -def ense because he had “a right to assert alternative theories o f def ense, even inconsistent alternative theories.” Brown v. State , 39 So. 3 d 890, 899 (¶34) (Miss. 2010). The instruction should have been given if supported by

the evidence, “no m atter how m eager or unlikely

. ” Id

. ¶17. W e conclude t hat, s ince an evidentiary basis existed f or t h e i mp e r f

ect self -def ense instruction, it should have been g i ven. A reasonable juror could f ind N elson was in control

o f the weapon and f

ired it intentionally when he killed Hood. Thus, there was su f f i c i e n t evidence f

o r a jury to convict Nelson of f irst-degree m

urder. But, likewise, there was suf f i cient evidence f

or a jury t o f

ind Nelson acted intentionally f or the purposes of im

perf ect self -def e nse. ¶18. The Mississippi Suprem e C ourt has held that “every a ccused has a f undam ental right to have her theory

of the case presented to a jury , even if t he evidence is m inim al.” Chinn

8v. State , 958 So. 2d 1223, 1225 (¶13) (Miss. 2007). “ In hom icide c ases, the trial court should

i n s t r u c t t he jury a

bout a def

endant’s theories of def

e n se, justif

ication, or excuse tha t a r e supported by the evidence, no m atter how m eager or unlikely .” B rown , 39 So. 3d at 899 (¶34). Our c ourts “greatly v alue the right of a def endant to present his t heory of the case and where the def

endant’s prof

f ered instruction h as a n e videntiary basis, properly s tates the law, and i s t he only instruction presenting his th eory of the case, ref usal to grant it c onstitutes reversible error.” Chinn , 958 So. 2d at 1225 (¶13). ¶19. Since the jury was not i nstructed on i m perf ect self

- def e n s e , w e r e v erse Nelson’s conviction and rem a nd f

o r a new trial. 2. Sufficiency of the Evidence ¶20. Even though we are reversing on the j ury -instruction issue, Nelson also challenges the suf f i ciency of the evidence to support his conviction f or f irst-degree m

urder. If we were to f ind the e vidence insuf

f icient, this Court would be required to reverse a n d r e n d e r the conviction, at l east as to f

irst-degree m

urder. See Hawthorne v. S tate , 8 83 So. 2d 86, 89 (¶8) (Miss. 2004). This would preclude retrial o n that charge; so we address this issue as well. ¶21. First-degree m

urder is def

ined as a ki l l i n g , w i t h o u t authority of law, “done with deliberate design to e f

f ect the death of the person kille d .” See Miss. Code Ann. § 97-3- 19(1)(a) (Rev. 2014). “Deliberate design to kill a person m ay be f orm ed v ery quickly , and perhaps only m om ents bef ore the act of consum m ating the intent.” Brown v. State , 965 So. 2d 1023, 1030 (¶28) (Miss. 2007).

9¶22. On appeal, Nelson c ontends that t he prosecution l acked evidence to support a f inding of deliberate design. W e disagree. It was undisputed that N elson introduced the gun into the f ight, that he was in control of it when i t began, and t hat it was discharged and k illed Hood. A reasonable juror could c onclude that Nelson w a s s t i l l i n c ontrol of the weapon when it f ired, and “deliberate design[ ] m ay be inf erred f rom the use of a deadly weapon.” Anderson v. State , 79 So. 3d 501, 507 (¶22) (Miss. 2012). Moreover, there was evidence suggesting

a m otive—prior conf

licts between the two, a nd of an im m ediate provocation (if not a legally adequate one) by H ood through his a c t i o n s o n t h e night of the killing. There was also the testim o ny of one o f Nelson’s sisters describing him as m eeting Hood in com bat rather than

m erely r esisting his a dvance, and Nelson’s f light af ter the shooting. From these f acts, a reasonable juror could conclude that N e l son com m itted f irst-degree m

urder. This issue is without m erit. ¶23. REVERSED AND REMANDED. LEE, C.J., BAR N E S, CARLTON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. WILSON, J., DISSENTS WITH SEPARATE OPINION, JOINED BY IRVING AND GRIFFIS, P.JJ. WILSON, J., DISSENTING: ¶24. There w as no evidence f r om which a reasonable juror could have f ound that Nelson killed Hood intentionally “but under a bona f ide (but unf

ounded) belief that it was necessary to p revent death o r great bodily har m. ” Brown v . State , 222 So. 3d 302, 307 (¶21) (Miss. 2017). Theref

o re, t he trial judge did not err b y d e n y i n g Nelson’s request f or a jury

1 0instruction on im perf ect self -def ense. I would af

f irm Nelson’s conviction. Accordingly , I respectf ully dissent. ¶25. As the m ajority acknowledges, Nelson claim ed in a videotaped interview and signed
statem ent that he killed H o o d b y accident—that the gun just “went of f ” during a struggle. Nelson did not tell police that he shot Hood intenti o n a lly in self -def ense. And N elson did not testif y at trial. ¶26. Nelson’s sister K inuna Davis testi f i e d t h a t s h e recalled som e s ort of “verbal[ ]

. . . altercation t hat led to a phy sical a ltercation,” a nd Hood b r o k e a beer bottle o n his own car at som e point. But s h e c l a i me d t o r em em ber little else about the night of the m urder. At trial, Davis testif

ied as f ollows: Q. Okay

. But today as y ou sit i n t he stand, do y ou k now h o w t h e a ctual altercation that ended up with W illie Hood being shot? A. No. Q. Do y ou recall seeing exactly what happened? A. No. Davis’s testim ony directly contradicted her signed statem ent f rom the night of the m

urder, which was used to im

peach h e r . In her s tatem ent, Davis stated: “Nelson grabbed [ Hood] f rom behind and put his hands around his neck. [ Nelson] place[ d] [ Hood] o n t he car and shot [ Hood] in the head. [ Ho o d ] f ell t o the ground.” At trial, Davis claim ed that although she

rem em b ered telling the police that, she did not “recall actually seeing that happen.” ¶27. Nelson’s other sister Asia Nelson (Asia) sim ilarly incrim inated Nelson on the night 1 1of t he m

urder b u t then claim ed to rem em ber little at trial. In her testim ony at trial, Asia said she r ecalled “arguing,” “pushing,” and an “ altercation” of som e sort. She said Hood broke

a b eer bottle and was “wild swinging.” But she claim ed that she did not see what Nelson and Hood were doing when Nelson shot Hood. Indeed, s he cla i me d s h e d i d n ot e ven see who f ired the s hot that killed Hood. Her testim ony contradicted her s igned state me n t f r o m the night of the m urder, which was used to im peach her. In her statem ent to police, she stated that Nelson f

ired his gun into the air and “I then seen [ Nelson] walk up [ and] shoot [ Hood] in the head.” W hen q

uestioned about her statem ent at trial, Nelson claim ed, “I recall say ing it. I don’t recall it happening.” She said the statem ent was not true. ¶28. Nelson’s own version o f e vents, based on h is statem ents to police, did n ot warrant an instruction on im

perf ect self

- def ens e . “[ U]nder the theory o f im perf ect self

- def ense, an intentional k illing m ay be considered m anslaughter if done without m alice but under a bona f ide (but unf

o u n d e d ) b e l ief that it was necessary to prevent d eath or great bodily harm .” Brown , 222 So. 3d at 307 (¶21). Because self -def ense, im perf ect or otherwise, requires an intentional act, there is n o s u c h t h i n g as “accidental self -def ense.” S ee, e.g. , State v. W hitchurch , 9 6 S .W .2d 3 0, 35 (Mo. 1936) ( “ T a k i n g hum an lif e in self -def ense is an af f irm ative, positive, intentional a ct, and the law does n ot r ecognize the anom alous doctrine of accidental self

-def e nse.”) (citations om itted); W akefield v. State , 447 So. 2d 1325, 1327 (Ala. Crim

. App. 1983) (sam e); Grimes v. M cAnulty , 957 S.W .2d 223, 227 ( Ky

. 1 997) (“By its very nature, self

-def ense r elates to an int e n t i o n a l o r knowing use of f o rce and not an

1 2accidental shooting.”). Rather, to warrant an im p erf ect self -def ense instruction, there m

ust be proof that t he killing was intentional and the product of a “ subjective belief , held by the def endant, that his l if

e was in d anger or that he m ight suf f er g reat bodily h arm . ” Brown , 222 So. 3d at 3 06 (¶18). Th e r e f o r e , N elson’s claim that the s hooting was an accident did not support an im

perf ect self -def ense instruction. Nelson w as entitled t o an instruction on the excuse of accident. Such an instruction was given, but the jury rejected the excuse. ¶29. I grant that in som e cases a def endant m ay b e e ntitled to both an accident instruction

a n d a s elf -def ense a nd/or im

perf ect self -def ense instruction. For exam ple, instructions on inconsistent t heories m i ght be warra n t e d t he def endant’s own testim o ny (or statem ent) supported one theory while other evidence supported another theory

. However, Nel son’s sisters’ testim ony did not justif y a n im perf ect self -def e nse instruction in this case. The sisters testif i ed that they did not see the shooting and rem em b ered little else. Even setting aside the f act that t heir testim onies were thoroughly im peached by their prior inconsistent s tatem ents, the sisters’ hazy recollections of som e sort of “ altercation” or “wild swinging” d id not entitle Nelson to an im

perf ect self -def e nse instruction. ¶30. I n sum m ary , n o evidence was presented f rom which a reasonable juror could h a v e f ound that Nelson killed Hood intentionally “ b ut under a bo n a f i d e (but unf

ounded) belief that i t was necessary to prevent death or g reat bodily harm

. ” Brown , 2 22 So. 3d at 307 (¶21). Based on Nelson’s statem ents to police, the jury could h ave f ound that the shooting was an accident, and the trial judge granted Nelson an instruction on that theory . However, a jury

1 3would have to engage i n pure s peculation to f ind t hat Nelson shot Hood intentionally but in “im perf ect self -def ense.” To warrant an instruction on im perf ect s elf -def ense, there m

ust be evidence that the killing was intentional and the product o f a “subjective belief , h eld by the def endant, that his lif

e was in danger or that he m ight suf f er great bodily harm .” Id. at 306 (¶18). There i s no such ev i d e n c e in this case. Accordingly , the trial judge d id not err by ref using the prof

f ered instruction, and Nelson’s conviction should be af f irm ed. IRVING AND GRIFFIS, P.JJ., JOIN THIS OPINION.

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