IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-KA-00558-COA MALCOLM JAMAL HUSBAND A/K/A MALCOLM HUSBAND A/K/A JAMAL HUSBAND APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/04/2015 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM W HICH APPEALED: MARION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: HALDON J. KITTRELL NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF MANSLAUGHTER AND SENTENCED TO TW ENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, W ITH TEN YEARS SUSPENDED, AND TO PAY A $5,000 FINE AND $2,500 IN RESTITUTION DISPOSITION: REVERSED AND REMANDED - 07/26/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ. BARNES, J., FOR THE COURT: ¶1. Malcolm Husband was convicted of m anslaughter and sentenced to twenty y ears in the custody of the Mississippi Departm ent of Corrections (MDOC), with t e n y ears suspended. Af

ter the trial court denied Husband’s m o tion f or a n ew t rial, he f

iled an appeal.Finding that the trial court com m i tted reversible error in the giving o f a castle-doctrine jury

instruction f

avoring the victim , we reverse and rem and f or a new trial. FACTS AND PROCEDURAL HISTORY ¶2. On Novem

ber 14, 2 0 1 3 , H u s b a n d a n d h is twelve-y ear-old stepson, Ty len Peters, visited Husband’s elderly aunt and uncle, the McGowans, a t t heir duplex a p artm ent in Colum bia, Mississippi. The M cGowans’ n eighbors, Phy licia Stokes and Forester Crenshaw,

were sitting outside on t he shared porch, celebrating C renshaw’s birthday w ith a cookout and drinks. Stokes lived at t he duplex with her two children; she and Crenshaw had only been dating one m o nth, and he was in the process of m oving in with her. W hen the McGowans did not answer their door, H usband began t alking with S tokes and Crenshaw. He asked f or

a beer, and Crenshaw com plied. P eters went back and sat i n the c a r and was talking on his cell phone. ¶3. Husband soon becam e conf rontational with Stokes over a m i nor dispute she had with his aunt and u n cle c oncerning l oud no i s e f r o m S tokes’s residence. Crenshaw pushed Husband back and rem a rked t hat Husband s hould show Stokes respect. According to Stokes, the two m en got in each other’s f aces, repeating “Now what? Now wha t ? ” to one another. Crenshaw handed Stokes his necklace and beer that he was holding, presum ably preparing to f i ght. Husband turned to walk back to his car in the driveway , m um bling as he lef

t. ¶4. Sim

ultaneously , Crenshaw walked to Stokes’s car and retriev e d h e r . 3 8 0

- c a l i b e r handgun f

rom the glove b ox. Husband entered his car and s a t down. S tokes s aid Husband

a p peared to reach f

or som ething; Husband later testif i ed it was his c ar key s that he h a d

2dropped. Crenshaw walked to H usband’s car, holding t he gun at his side, and stood inside

the open d o o r o f H u s b and’s car, not allowing Husband and Peters to leave. Peters said Crenshaw threatened to kill them

. ¶5. M r . McGowan cam e o utside and told Husband t o l e a v e ; H u s b a n d r e p l i e d t o McGowan, “I’m try ing to

. . . . But [ Crenshaw] won’t let m e leave.” M cGowan did not see either Crenshaw or Husband display ing a w eapon. Crenshaw turned to f ace McGowan, giving him

a dirty look. W hen he did so, Husband grabbed a gun f rom his car and pointed it at C renshaw, who ran behind a neighbor’s car. Husband s aid he i nitially f ired the gun in the air, but when Crenshaw b egan f iring back, h e f

i r e d at Crenshaw three t o f our tim es. S t o k e s , however, c laim ed H usband pointed the gun straight at Crenshaw. A bulle t h i t Crenshaw in his lower back. Crenshaw continued to return f ire, but Husband and Peters sped of f and were not injured. ¶6. Although the p aram e dic who treated Crenshaw at the scene said he was “ alert” and “oriented,” C renshaw later died at the hospital f rom a single gunshot wound to his back. The autopsy report indicated the f atal shot was f

i r e d f r om an indeterm inate rem ote distance. Toxicology reports revealed that Crenshaw had m arijuana a nd BZP, a st i m u l a nt “designer drug,” in his blood s y stem

. 1 Husband was arrested near his hom e shortly af ter the shooting.
He was a l so booked f

or f elony DUI; he adm itted to drinking beer b e f o r e arriving at the McGowans’ hom e. The police f ound several shell casings at the scene o f the shooting – f ive were f rom Stokes’s .380-caliber handgun. Stokes surrendered the gun to law enf orcem ent

1 T h ere w as also ev i d en ce o f sev e ral o th er n a r co tic d ru g s, b u t i t w as n o t clear at trial w h eth er th ese w ere in tro d u c ed d u rin g C ren sh aw ’s m ed ical treatm en t. 3the f

ollowing m o r

ning. ¶7. O n A p r i l 15, 2014, Husband was indicted f or heat-of -passion m a nslaughter unde r Mississippi Code Annotated section 97-3-35 (Rev. 2006). Af t er a jury trial in Marion County Circuit Court o n January 12-13, 2015, Husband was convicted and sentenced t o twenty y ears in the c ustody of the MDOC, with ten y ears suspended, and he was ordered to pay a $5,000 f ine, court costs, and $2,500 in restitution to the victim ’s f am ily

. ¶8. On appeal, Husband alleges errors involving a castle-doctrine jury instruction and the

w e i g h t of the evidence. W e f ind that the trial court’s giving of Jury I nstruction 7 on the castle doctrine, which applied to the victim and not t he d e f e n d a n t, was reversible error. Theref ore, we reverse and rem and f or a new t rial consistent with this opinion. A ll rem aining issues are rendered m oot. DISCUSSION
Whether t h e g i ving o f J ury Instruction 7 regarding the castle doctrine w as prejudicial to Husband, as it shifted the burden o f proof by establishing a presum ption that the victim ’s actions w ere justified. ¶9. At trial, the State subm itted Jury Instruction 7, which provided:
T h e c o u rt instructs the jury that if y o u f ind f rom the e vidence in this case bey ond a reasonable doubt that, on or about Novem b er 15, 2013,

. . . Crenshaw was an inhabit a n t, occupant, and resident of the d welling house at 1275 Highway 13 South, Marion County , Mississippi, then y ou s h ould p resum e . .

. C renshaw was entitled, u nder the law, to use whatever f orce o r weaponry t hat would have been rea s o n a b l y n ecessary f or h im to m eet and r epel any attack upon him self a nd the other inhabitants o f the residence, which m ay have been m ounted or caused by

the def endant, . . . Husband. The trial ju d ge gave this instruction over def ense counsel’s o bjection, noting that it
“m irror[ ed] a [ c]astle d octrine.” H usband contends that because the castle doctrine applies

4“to the person who uses d ef ensive f orce, not the person against whom f orce was used,” and the State bears the burden to prove the def e ndant did not act in self

- def ense, this i nstruction im p roperly “shif

ted the burden of proof f

rom the State to the def

ense because it a l lowed the jury to presum e that Crenshaw’s a ctions w ere reasonably necessary to m eet whatever attack

m ay have com e f

rom Husband.” ¶10. The State a rgues Husband has waived h is r ight to b ring this issue o n appeal because his objection to the i nstruction at trial was on a dif f erent ground. “To p reser v e a jury instruction issue on appeal, the def endant m ust m a ke a specif

ic o bjec t ion to the proposed instruction to allow t he trial court to consider the issue.” Harris v. State , 861 So. 2d 1003,
1 013 ( ¶18) ( Miss. 2003) (citing Crawford v. State, 787 S o. 2d 1236, 1244-45 (¶35) (Miss

. 2001)). “Asserting grounds f o r a n objection on appeal that dif f er f rom t he ground given f

or the objection at the t rial level does not properly preserve the objection f or appellate review.” Bursey v. S

tate , 149 So. 3d 532, 535 (¶5) (Miss. Ct. A pp. 2 014) (quoting W oodham v. State, 779 So. 2d 158, 161 (¶12) ( M iss. 2001)). Husband’s o bj e c t i o n at trial w as that Crenshaw

was not entitled to the castle-doctrine instruction because he w as not a resident of the hom e. 2
Def ense counsel reasoned, “There’s absolutely

. . . no established testim ony that [ Crenshaw is] entitled

. . . to t hat instruction at all.” T hus, the State is correct; Hu s b a n d a s s e r t e d a dif f erent claim than what h e is arguing on appeal, procedurally b a r r i n g t h e issue f rom consideration on the m erits. ¶11. However, H usband responds that regardless of any procedural bar, t his Court should

2 S to k es ren ted th e d u p lex , an d s h e a n d C ren sh aw h ad o n ly b een d atin g ap p ro x i m ately

o n e m o n th p r io r to th e sh o o tin g . 5consider this issue f or plain e rror. The p l a i n -error doctrine requires a determ ination of “[ whether] the trial court has deviated f rom a legal rule, w hether that error is plain, clear or obvious, and whether the error has prejudiced t he outcom e of t he trial.” Brown v. State , 75 So. 3d 573, 577 ( ¶16) (Miss. Ct. App. 2011) (quoting Cox v. State, 793 So. 2 d 591, 5 97 (¶22) (Miss. 2001))

. “ F o r t he plain-error doctrine to apply , there m ust have b een an error that resulted i n a m anif

est m iscarriage of j ustice or seriously af f ect[ ed] the f

airness, integrity or public reputation of ju d i c i a l proceedings.” Rodgers v. State , 1 66 S o. 3 d 537, 544 (¶15) (Miss. Ct. App. 2014) (quoting Conners v. State, 92 So. 3d 676, 682 (¶15) (Miss. 2012)). ¶12. Mississippi Code Annotated 97-3-15(3) (Rev. 2014) provides:
A person who uses defensive force shall be presum ed to have reasonably f eared im m i nent d eath or great bodily harm , or the com m ission o f a f elony upon him or another o r upon h is dwelling, or against a vehicle which he was occupy ing, or against his business or place of em ploy m ent or the im m ediate prem ises of s u c h b u s i ness or place of em ploy m ent, if the person against whom th e def e n s i ve force was used , was in the process o f unlawf ully and f

orcibly entering, or h ad unlawf

ully and f orcibly entered, a d

welling, occupied vehicle, business, place of em

ploy m ent o r t he im m e diate prem ises thereof or i f t hat person had unlawf

ully rem oved or wa s a t t e m pting to unlawf

ully rem ove another a gainst the other person’s will f rom that dwelling, occupied vehicle, busi n e s s , p l ace of em

p loy m ent or the im m ediate p rem ises t hereof and the p e r s o n who used d ef

ensive f orce knew or had reason to believe tha t t h e f orcible entry or unlawf

ul and f orcible act was occurring or had occurred. T his presumption shall not a

p p l y i f the person against whom defensive force was u s e d has a right to be in or is a lawful resident or o wner of the dwelling , vehicle, business, place of em ploy m ent or the i m m ediate prem ises thereof or is the lawf

ul r esident or o w n e r of the dwelling, vehicle, business, place of e mp loy m ent or the im m ediate prem ises thereof or if the person w h o u s e s def ens i v e f orce is engaged in u nlawf ul activity o r if the person is a law enf orcem ent of

f icer engaged in the perf

orm ance of his of

f icial duties[ .] (Em phasis added). Husband argues that apply ing the castle-doctrine presum ption to the victim , Crensha w , “ [ a ] llow[ ed] t he jury to presum e that [ Crenshaw] was entitled to use

6whatever f

orce was necessary to m eet or repel an attack f rom Husband [ and] obviate[ d] the need f or the State to prove t hat H usband did not act i n self -def ense.” W e agree. W hile we f ind no instance in Mississippi where a castle-doctrine instruction h as been given in regard

to t he victim ’s b eing granted t he statute’s m a n datory rebuttable pres u mp t i o n , it i s evident f rom our s tatute’s language t h a t s u c h an instruction i s patently inappropriate. The statute clearly indicates that the rebuttable presum ption i s granted to t he def endant, not the victim

. ¶13. The Arizona Court of Appeals has addressed this precise issue and reached the sam e conclusion regarding its statute. In State v. A bdi , 248 P.3d 209, 211 (Ariz. C t. App. 2011), the trial c ourt instructed the jury on s elf -def ense, b ut at the state’s request, also gave an instruction on the castle doctrine, apply ing t he instruction to the victim

. Like Husband, the def endant in that case argued that t h e castle-doctrine instruction “created a m andatory
presum ption that [ the victim ] acted reasonably ” and “this presum ption ‘lessened the state’s burden of proving t hat Abdi was not acting i n self

- def e nse.’” I d

. Although it noted that the Arizona statute used the term “ [ t]he person,” which c ou ld a p ply to either a def

endant or victim , the appellate court concluded that the historical background of the statute revealed the Arizona legislature’s intent that the statute apply to “ a def endant who is charged with using f orce i n response to s om eone unlawf u lly entering [ h is] hom e.” Id

. at (¶8). 3 Theref ore,

3 A lth o u g h o u r an aly sis h as rev ealed n o sim ilar b ack g ro u n d h i sto ry p ertain in g to th e M ississip p i L eg islatu re’s en actm en t o f sectio n 9 7

- 3

- 1 5 ( 3 ) in 2 0 0 6 , th e t itle to th e A ct (S en ate B ill 2 4 2 6 ) states th at it is “to p ro v i d e i m m u n i ty fro m crim in a l p ro secu tio n u n d er certain circu m stan ces as th ey related t o j u stif iab le h o m i cid e[ .] ” (E m

p h asis ad d ed ). Wh ile w e ack n o w led g e th e title to th e A ct is n o t n ecessarily d e t erm in ativ e o f w h eth e r th e ac t ap p lies to a d ef

en d an t o r v ictim , w e f

in d i t p ersu asiv e i n o u r d eterm in atio n th a t a p p ly in g th e p resu m p tio n in th e statu te to a v ictim is in co m p a t ib le w ith th e statu te’s in t en t to p ro v id e a d ef en d a n t w ith an af

f irm ativ e d ef

en se o f j u stif iab le h o m i cid e. 7f

i n d i ng the jury i nstruction’s language created a m andatory presum ption a nd shif

ted t h e burden of proof

, the Arizona appellate court held t he trial court erred in giving the jury instruction. Id . at 212-14 (¶¶11-16). ¶14. The United States Suprem e C o u r t h a s h e l d : “ T h e D u e P r o c e s s Clause of the Fourteenth Am e ndm ent

. . . . prohibits the State f rom using evidentiary presum ptions in a jury ch a r g e t h a t h a v e t he ef f ect of relieving the State of its burden of persuasion bey ond a reasonable doubt of every essential elem e nt of a crim e.” Francis v. Franklin , 471 U.S. 307, 313 ( 1985) ( citing Sandstrom v. Montana , 442 U.S. 510, 520-524 (1979)). In Francis, the Suprem e Court concluded that a jury instruction that created a m andatory presum ption with respect to the elem ent of intent and shif ted the burden of p e r s u asion t o the def endant, was unconstitutional. Id . at 315-18.
An irrebuttable or conclusive presump t ion relieves t he S tate of its burden of persuasion by rem o ving the presum ed elem ent f rom the case e ntirely i f the State proves the predicate f acts. A m andatory rebuttable presum ption does not rem ove the presum e d elem ent f rom the case if

the State proves the predicate f acts, but it n onetheless relieves the S t a t e o f the af f irm a t ive b urden of persuasion on the presum ed elem ent by instructing the jury that it m ust f ind the presum ed elem e nt unless the def endant persuades the jury n ot to m a ke s uch a f inding. A m andatory rebuttable presum ption i s perhaps less o nerous f rom the def endant’s perspective, but it is no less unconstitutional. Id

. a t 317. Exam ining Francis and Sandstrom , o ur suprem e court held i n W illiams v. State , 111 So. 3d 620, 6 26 (¶¶20, 22) (Miss. 2013), that a jury instruction that “created a m andatory
presum ption which could allow a c o n v i c t i on based upon a presum ption[ ,] as opposed to evidence bey ond a reasonable doubt,” constituted reversible error. ¶15. Regarding a def

endant’s a f

f i r ma t i v e self

-def ense claim , the suprem e court held in

8Sloan v. State , 368 So. 2d 228, 229 (Miss. 1979):

The b urden of proof in a c r i mi n al case n ever shif ts f rom t he State t o the def endant. The State is required to prove e v e r y m a terial elem e n t of the indictm ent bey ond reasonable doubt. Likewise, the def endant is not required to p rove t hat h e acted in self

- d ef ense, and, if a reasonable doubt of his guilt arises f rom the evidence, including evidence of self

- def ense, he m

u s t be acquitted. Theref ore, “[ i]t r em ains the burden of t he State to prove b ey ond a reasonable doubt that the def endant was n o t a c t i n g in self -def e nse.” Johnson v. State , 7 49 S o. 2 d 369, 374 (¶19) ( M i s s . Ct. App. 1999) (citing Heidel v. State, 5 87 So. 2d 835, 8 43 (Miss. 199 1 ) )

. “ A

succ e s s f ul self -def ense argum e nt requires that t he jury believe t hat it was objectively reasonable f

or the def endant to b elieve he was in d anger o f im m inent death or serious bodily harm .” Davis v. S

tate , 158 S o. 3d 1190, 1194 (¶15) (Miss. Ct. App. 2015) (quoting W ilder

v. State, 118 So. 3d 628, 631 (¶9) (Miss. Ct. App. 2012)). “[ S]o long as the evidence, f airly considered, leaves the jury with a reasonable d oubt a s to whether t he def endant was acting i n n ecessary s elf

-def e nse, the jury ’s obligation under the law i s to return a verdict o f n o t guilty .” Carter v
. State , 858 So. 2d 212, 215 (¶5) (Miss. Ct. App. 2003) (citing Sloan, 368 So. 2d at 229). ¶16. Jury Instruction 9 provided the elem ents of self -def ense and stated that the State bore the b urden to prove bey ond a reasonable doubt that Husband was not acting in self -def ense. However, when reading t he jury instructions a s a whole, we f ind the m andatory rebuttable
presum ption af f o r ded to C renshaw in Jury Instruction 7 was in direct conf lict with the State’s burden to prove that H usband was not acting in self -def ense. Under t hat instruction, Crenshaw was en t i t l e d t o u se r easonably n ecessary f orce to r epel an attack by H usband.

9“Even when viewed in t he context of all the instructions given, a reasonable juror could have

interpreted the challenged i nstruction to create a presum ption that lessened the state’s burden of p roof and required rebuttal evidence f rom the def

endant t o overcom e .” See Abdi , 248 P.3d

at 213 (¶15). Thus, we c o n c l u d e that it was plain error f or the trial court to give this instruction, as it was a clear m i sapplication of t he law and prejudicial to Husband’s self

def ense claim

. See Abdi , 248 P.3d at 2 14 (¶17) (concluding that when t he def endant’s core def ense was justif

ication, a jury instruction that created a presum ption t hat the victim acted reasonably

was not harm less error and warranted a vacation of his conviction). ¶17. We a l s o r e

j e c t t h e State’s alternative argum ent that Jury Instruction 7 “ w a s n o t actually a castle doctrine i nstruct i o n.” The record shows that when the p rosecution subm itted the jury instruction to the trial co u r t , i t n o ted: “So we think t he [ c]astle doctrine is appropriate in this c ase.” Later, d uring closing argum ents, the prosecutor also highlighted f or the jury the elem ents contained in Jury Instruction 7: [ Crenshaw is] entitled to what’s called the [ c ]astle doctrine in M is sissippi. The [ c]astle doctr i n e i s – which I’m going to read t hrough in a m inute. Basically it m e ans that y o u can def end y our hom e, y ou can def end y our f am i ly or relatives in y our hom e f rom an attack by

som eone else.

. . . . You should presum e . . . C renshaw was entitled under the law to u se whatever f orce or w eaponry that would have been reasonably necessary f or him to m eet and r epel any attack upon him s elf and the other inhabitants of t he residence, which m ay

have been m ounted by

or caused by the Def

e ndant,

. . . Husband. The S tate clearly intended f or Jury Instruction 7 to be a castle-doctrine instruction pertaining to Crenshaw, the victim

.

1 0¶18. Accordingly , we f ind that t he circuit court com m itted r eversible error i n the giving of Jury Instruction 7, and we rem and f or a new trial. ¶19. The other issues on appeal were (1) w hether t h e s u f f i c i e n c y a n d w e i g h t of

the evidence were against the verdict and (2) w hether trial counsel was inef f ective f or f ailing to subm it a castle-doctrine jury instruction pertaining to Husband, as he was in his vehicle and unable to leave due to C renshaw’s standing inside his car’s open door. Although we have f ound plain e rror in the giving of Jury I nstruction 7, we w ill brief ly address H usband’s claim regarding the suf

f iciency of the evidence, as a f inding f or Husband on t his claim would result in a reversal and r en d e r i ng of t he judgm ent in his f avor. See Newell v
. State , 175 So. 3d 1260, 1267 (¶5) (Miss. 2015) (stating th a t an a rgum e n t regarding the suf f i ciency of the evidence s hould be addressed on appeal, even if the appellate court has d eterm ined the trial

court com m itted an evidentiary error). W e f ind that, h ad the jury been properly instructed, the State of

f ered suf f i cient and credible evidence to support the verdict of “heat o f passion”

m anslaughter. The evidence showed that t he two m en were engaged in a heated a rgum ent, with Crenshaw’s holding a gun a nd preventing Husband f rom l eaving d

uring the altercation. Further, C renshaw w as shot in the back, presum a bly retreating f

rom Husband’s f

iring of the
gun. Husband’s argum ent that t he evidence was insuf f icient is also based on his claim he

was entitled to a castle-doctrine instruction; however, no such i nstruction was requested. As

to Husband’s inef

f ective-assistance-of

-counsel claim , our suprem e has held that i f a case is reversed on other grounds, a claim of inef f ective assistance is m oot. Deloach v. State , 977 So. 2d 400, 404 ( ¶17) (Miss. Ct. App. 2008) ( citing Read v. State, 430 So. 2d 832, 841 (Miss.

1 11983)).

¶20. THE J UDGMENT OF T HE CIRC U I T C O U R T O F M ARION COUNTY IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. ALL COSTS OF T HIS A P P EAL ARE ASSESSED TO MARION COUNTY. LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, JAMES AND GREENLEE, JJ., C ONCUR. WILS O N , J . , CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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