IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-KA-00081-SCT DAV ID STANFIELD a/k/a DAV ID LEE STANFIELD

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 06/20/2017 TRIAL JUDGE: HON. ANDREW K. HOW ORTH TRIAL COURT ATTORNEYS: BENJAMIN CREEKMORE THAD J. MUELLER JAMES D. MOORE W I LLIE C. ALLEN COURT FROM W HICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN T. COOK GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOE HEMLEBEN DISTRICT ATTORNEY: BENJAMIN CREEKMORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 05/09/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. David Lee Stanf

ield was convicted of aggravated assault a nd of f e lon in possession of a f i rearm . The sole issue bef ore the Court is whether the t rial court erred in instructing the jury t hat self

-def ense is not a d ef

ense to the c rim e of f

elon i n possession of a f

irearm

. It did not. Accordingly , we af

f irm

.FACTS AND PROCEDURAL HISTORY

¶2. On the night of February 18, 2015, Stanf ield was at his sister Glenda Rose Stanf ield’s house in Okolona, Mississippi, w h ere people were drinking, sm oking, and g am bling.
Terence “ B uck” Ford, M ichael “W eezee” F ord, and Markel “Ketchup” W eeks also were at Glenda’s that n ight. At som e point that night, gunshots were f ired, a nd Te r ence, Michael, and W eeks were injured. Several other people were at Glenda’s that night, b ut m ost had lef t
to obtain m ore alcohol bef ore the shooting o ccu r r e d

. 1 Conf licting testim ony exists in the record regarding whether Stanf ield f ired the s hots that night in self def ense or if Stanf

ield had been the aggressor. ¶3. Stanf

ield was indicted f

or three counts o f a g g r a v a t e d a s s a u l t f or the shooting of Terrance, Michael, a nd W e eks. Stanf ield was also indicted f

o r one count of f

elon in possession of

a f irearm

. ¶4. Terrance testif

ied that he had not been in possession of a gun the night of the shooting and that he had not seen Stanf ield gam b l i n g . T errence testif

i ed that Stanf

ield had walked into the kitchen that night and had shot him i n the chest three tim es. ¶5. Michael testif

ied t h a t h e had not seen Stanf ield g am bling the night of the shooting. Michael testif

ied that he had been s itting in the kitchen w ith Te r r e n c e and W e eks when Stanf i eld c am e i nto the kitchen w ith a gun in his hand and, without s peaking, shot Terrence three tim e s in the c hest. Af ter St a n f i e l d s h o t Terence, M ichael ran and hid in a corner.

1 Testim o ny indicated that Kevin “Tojo” S tanf i eld, R obert “Skeebo” Hill, and Octavious “Mookie” Stevens m ight have been in t he room when t he shooting occurred, but they did not testif

y at trial. 2Michael t estif ied t hat S tanf

ield then reached a cross the table a nd shot a t him

. M ichael saw W e eks dive under the table. T hen, Stanf ield was “ talking to Robert Hill, Skeebo; and Skeebo was talking to him

back. He said, [ Stanf

ield], y ou ain’t got to kill m e. You can have it.” ¶6. Michael t e s t i fi e d that S tanf ield then f lipped the table over and a sked W eeks, “W here’s the gun? ” W eeks responded that h e did not have a gun. Michael t estif ied, “I reached up f

or the b a c k d o o r . He s e en m e and said, Don’t y ou m ove. You know y o u had this com ing. I said, Don’t kill m e. I got a son to live f or. That’s when [ W eeks] started running.” Michael testif i ed that Stanf

ield began shooting at W eeks, and he jum ped o ut the window. Michael sustained a m inor injury

on his lef

t arm . The evidence was disputed whether Michael was grazed by a bullet or whether he sustained a laceration f rom jum p ing out of

the window. ¶7. W e eks testif

ied that he h a d not seen Stanf ield p lay dice the night o f the shooting, that Stanf i eld had entered t he kitchen without s ay ing any thing, and that Sta n f

i e d had started shooting. W eeks testif

ied that Stanf

ield s hot Terrence t w o o r t h ree tim es and then leaned

over the table and s h o t a g a i n . W eeks hid under the table. Stanf ield then put a gun in
W e eks’s f

ace and asked him if he had a gun. W eeks responded that he d id n ot h ave a gun. W e eks testif

ied t hat no one else had brought a gun to Glenda’s on t he night o f the shooting.
W e eks t e stif

ied that he f

led and that Stanf

ield was chasing him

. W eeks heard g unshots.
W e eks f ell t o the g round, and, when he got up and began running again, he realized he had been shot in the p elvic a rea. T h e evidence was disputed whether W eeks was shot f rom behind or f

rom the f ront.

3¶8. Marquon E vans, a part-tim e Okolona Fire D epartm ent em ploy ee, testif

ied that he had lived close t o Glenda and t hat Michael had run to his h ouse that night, had asked f or help, and had stated t h at Stanf

ield had been shooting at h im

. T am eka Betts, an of f icer with the Okolona Police D epartm ent, testif ied that she had been patrolling that night when a vehicle

cam e behind h e rs at a h igh rate o f s p e e d

. O f f icer Betts stopped her car and observed
Terrenc e j u mp o u t o f the car behind hers. Of f icer Betts testif

i ed that Terrence had stated that he had been shot by Stanf ield while he was at Glenda’s house. Dwight P arker, assistant chief of police, testif

ied that he received a call that another gunshot v ictim was located at the Townhouse Apartm ents. Assistan t C h i e f Parker testif ied that w hen h e a rrived at the

a p a r tm ent, he observed W eeks with a g unshot wound to the pelvic a rea. Assistant C h i e f Parker also testif

i ed that W eeks said that Stanf ield had shot him

. ¶9. Stanf

ield gave a statem e nt that on the night of the shooting, he had been p lay ing dice

at Glenda’s ho u s e a n d won $900. Af ter he f i nished gam

bling, Stanf

ield f ell asleep in the living room . W hen he awoke, he stated t hat his pockets were f lipped inside out. Stanf

ield walked into the k itchen where Terence, Michael, and W e eks were sitting and asked who had taken his m oney . Stanf

ield stated that Terence then had pulled out a gun and had told him
to give him the rest of the m oney . Stanf ield claim ed that he started wrestling with Terence f or the gun, and the gun went of f and struck Terence. Stanf ield said he shot once or twice

m ore, dropped the gun, and lef t the house because he was scared. Stanf ield’s testim ony

at trial essentially m i rrored his statem ent. Stanf ield s tipulated that he had been convicted o f a f elony

.

4¶10. The trial court instructed the jury on both self -def e n se and the def

ense of necessity

. The trial court gave a d ef ense-of -necessity i nstruction, I nstruction C-7, which r e a d as f ollows:
A d ef ense to b eing a f

elon in possession of a f irearm m ay occur when the Def endant acts out of

necessity

. In o rder to be entitled to a def ense of necessity , the D ef e n dant m ust prove the f ollowing: (1) the act charged w as done to prevent a signif icant evil, (2) there was no adequate alternative, and (3) t he harm caused was not disproportionate to the harm

avoided. ¶11. O v e r Stanf

ield’s objection, the trial court gave Instruction S

- 6

. I n s t r u c t i o n S

- 6 provided as f

o llows: The Court instructs the jury that self -def ense is not a viable def

ense to possession of

a f irearm by a convicted f

elon. Stanf i eld had objected t o the instruction, a rguing that the self -def e n se i nstruction contradicted the necessity instruction. ¶12. The trial court ref

used Instruction D-3. Instruction D-3 read as f ollows:
I f y o u f ind that the def

endant unarm e d Terrance Ford acting in self def e nse and o n l y p o s s essed any f irearm which he m a y have taken f rom him in such d ef ense, then y ou s hall f

ind him not guilty of possession of a f i r e a r m b y a convicted f

elon. The burden of proof is on the State o f Mississippi to prove the Def endant was not acting in self def ense as to said charge. ¶13. T h e j u r y f

o u n d S t a nf

ield guilty of aggravated assault of W eeks and o f f e l o n i n possession of a f

irearm

. The jury f

ound Stanf

i eld not guilty of a g gravated assault of Michael and could not com e to a decision about the a ggravated assault of Terrance. The trial court sentenced Stanf

i eld to twenty y ears f

or the aggravated assault o f W eeks and to ten y ears f or

5f

elon in possession of a f irearm , with f

ive y ears suspend e d

. The t rial c ourt ordered the sentences to run consecutively

. ¶14. Stanf

ield a ppeals, r a ising the sole issue of whether the trial court erred i n instructing the jury that self

-def ense is not a def

ense to a f

elon in possession of a f

i rearm charge, while also instructing the jury

that necessity

is a valid def

ense to unlawf

ul possession. STANDARD OF REVIEW ¶15. The grant or denial of j ury instructi o n s i s r e v i e w e d f o r a n abuse o f

discretion. Thom as v. State , 2 49 So. 3 d 331, 346 (¶ 49) (Miss. 2 018). “ A def endant is entitled to have jury instructions g i v e n which present his theory o f the case; however, this entitlem ent is lim ited in that t he court m ay ref use an instruction w hich incorrectly s tates t he law, is covered f airly elsewhere in t he instructions, or is without f oundation in t he evidence.” Id. (quoting Hale v. State , 191 S o. 3 d 7 1 9 , 7 2 3 ( ¶ 9) (Miss. 2016)). “[ T]he instructions actually given

m ust be read as a whole. W hen so read, if the instructions f a i rly announce the l aw of the case and create no i njustice, no reversible error w ill be f ound.” Newell v

. State , 4 9 So. 3d 66, 73- 74 (¶ 2 0) (Mi s s . 2 0 1 0 ) ( q u oting Rubenstein v. State , 941 S o. 2d 735, 785 (¶ 224) (Miss. 2006)). DISCUSSION Whether the trial court erred in instructing the jury that self-defense is not a defense to felon in possession of a firearm . ¶16. Stanf

ield does not contest the substance of the necessity instruction or argue o n appeal that the t r i a l c o u r t ’ s rendition of the elem ents o f t he def ense of necessity was incorrect; rather, Stanf

ield contends that the trial court erred in giving Instruction S -6, instructing the

6jury that “ self -def ense is not a viable def

ense t o posses s i o n o f a f irearm by a c onvicted f elon.” ¶17. Here, the trial court instructed the jury o n self -def ense—pertinent to the aggravated assault c ounts—and necessity —pertinent to the f

elon in p ossession c ount. In f act, the trial
court gave two instructions on self -def ense—one requested by

the State and one requested by Stanf ield. The f

irst self -def ense instruction, Instruction S-4B, read as f ollows:
THE COURT instructs the j u r y t h a t to m ake an assault upon a nother hum an being justif

iable on the grounds o f s e l f

- def e nse, the danger to the def endant m ust b e either a c t u a l , present and u rgent, or the def endant m ust have reasonable grounds to apprehend a design on the part of t he victim to kill him or to do him great b o dily harm , and in addition to this, that there was im m inent danger of such d esign being accom plished. I t is f

or the j ury t o determ ine the reasonableness of

the ground on which the def endant acts. The Court i ns t r u c t s the jury that it s hould apply this analy s is to [ the three aggravated assault counts]. ¶18. Stanf

ield’s requested self

-def ense instruction, Instruction D-1, also given, read,
In order f or the d ef endant to have acted in self -def ense, the def

endant m u st (1) have believed that h e was in actual danger; (2) h ave reasonably believed t hat Markell W eeks and/or Terrance F ord a n d/or Michael Ford i ntended to kill the def endant; or (3) have reasonably believed that any or a ll of t hem intended to cause great bodily h a rm to the def endant and t hat the def

enda n t reasonably believed that any or all of them w ere about t o carry out such actions against the def endant. The def

e ndant does not h ave to prove that he acted in self -def e nse. The State has the b u rden of p r o v i n g bey o nd a r easonable doubt that the def endant did not act in self

-def ense. I f y o u f

ind that the State did n ot prove bey ond a reasonable d oubt that the d ef endant did not act in self

-def ense, t hen y ou shall f

ind the def

endant not guilty

of any and all such counts in this case in which the state did not prove such. ¶19. The trial court gave Instruction C-7 to cover Stanf i eld’s claim

of n ecessity . It read,
A d ef ense to b eing a f

elon in possession of a f irearm m ay occur when the Def endant acts out of

necessity

.
7In o rder t o be e ntitled to a d ef ense of necessity , the Def endant m ust prove the f ollowing: (1) the act charged was done t o prevent a s ignif icant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm

avoided. ¶20. Stanf

ield does not take i ssue with the self -def ense instructions given, but he contends that the trial court erred by instructing the jury that self -def ense is not a def

ense to f elon in possession of a f

irearm because the def

e nse of n ecessity encom

passes the right t o act in self

def ense. The Mississippi C ourt of Appeals, i n s everal cases including William s v. State , 953 S o . 2d 2 60 (Miss. Ct. App. 2006), has provided a persuasive ref utation o f Sta n f

i e l d ’ s argum ent. ¶21. In William s , the def endant was convicted of

possession of a f

i rearm by a convicted f elon. Id. at 261 (¶ 1). W illiam s argued with another m an in f ront of W illiam s’s h ouse. Id.
at 261 (¶ 2). The argum ent ended when W illiam s shot the other m an in the ne c k

. I d . A grand jury indicted W il l i a ms f or m anslaughter and possession of a f irearm by a c onvicted f elon. Id. at 262 (¶ 3 ). At t rial, W illiam s testif ied that he began t o carry t he f irearm af ter the decedent s truck him w ith a pistol t he day bef o re the shooting. Id. The trial court instructed the jury on the elem e nts o f p o s s ession of a f irearm by a convicted f

elon, and W illiam s objected to the i nstruction because it did not list self

- def ense as a def

e nse. Id. at 262 (¶ 4). The jury acquitted W illiam s of the m anslaughte r c o u n t b u t convicted him of possessing a f irearm as a convicted f

elon. Id. at 262 (¶ 5). ¶22. The Court of Appeals r ejected W illiam s’s argum ent that “the trial c ourt should have allowed a self

-def ense e xception f

or possession of a f

irearm by a convicted f

elon because it allowed a self

-def e n se instruction f

or m anslaughter.

. . .” I

d. a t 263 (¶ 8). The William s
8Court noted that, unlike m anslaughter, p ossession of a f i r earm by a convicted f

e lon “is a crim inal act void of a t hird party ” against whom to d ef e n d. Id . Wi l l i a m s com m itted the crim e of possession of a f irearm by a convicted f

elon whether t he decedent argued with h im

or not. Id. ; see also Anderson v. State , 185 So. 3d 1015, 1023-24 (¶¶ 34-35) (Miss. Ct. App. 2014); Roberson v. State , 1 9 So. 3d 95, 101 (¶ 9) (Miss. Ct. App. 2009). ¶23. Af ter reviewing the jury instructions as a whole, we hold that the trial court did not abuse its discreti o n i n instructing the jury that self def ense is not a def

ense to f elon in possession of

a f irearm

. ¶24. In addition to the above-described reaso n i n g o f t h e C o u r t o f A p p e a l s , another dif f erence exists between self -def ense as delineated by the jury instructions in t he case sub j u d i ce a n d the necessity def ense. The necessity and s elf -def ense af f irm a t ive def

en s e s a r e dif f erent def e nses that a nswer dif

f erent alleged crim inal conduct. As quoted above,
Instruc t i o n D-1 placed the burden on the State to p rove that Stanf ield did not act in self

def ense. The burden to prove t h e a b s ence of s e lf -def ense t raditionally lies with the State. The State bears t h e b urden of proving each elem e nt o f a crim e, and the absence of self

def ense is considered to be an elem ent of som e crim es against persons. Heidel v. State , 587 So. 2d 835, 843 (Miss. 1991). ¶25. It should be noted that the Legislature, in draf ting t he aggravated assault s tatute, chose
not to m ake the absence o f self -def ense an elem ent of a ggravated assault. A ccordingly , the practice of placing t he burden of proving that the def endant did not act i n self def ense on the State in an aggravated assault case could be question e d. Nevertheless, the Legislature did

9not i nclude any elem ent requiring an absenc e o f necessity in the statute crim inalizing the

possession of a f

irearm by a f

e l o n . T h e f

act that, on o ne hand, self

- def ense, at least as instructed in the instant case, g e rm inates f r om legisla tively d ef

ined elem e nts o f crim es against p e r s o ns and, on the other hand, necessity is a c om m on-law def ense that m

ust be proved by the def

endant f urther illustrates that the t w o i n s t r u ctions are not h opelessly in conf lict, as Stanf

ield suggests. ¶26. Because s elf

- def ense and the def

ense of necessity are t

w o d i s t i n c t a ffi r

m a t i v e d e fe n s e s with dif f e r ent origins, applicable to dif f erent situations, the trial court correctly instructed the jury , and we af

f i rm Stanf ield’s conviction. ¶27. AFFIRMED. RANDOLPH, C.J., M A XWELL, BEAM, CHAMBERLIN, I S HEE AND GRIFFIS, JJ., CONCUR. KING, P .J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J. KING, PRESIDING JUSTICE, DISSENTING: ¶28. David Stanf

i eld presented testim ony that, because he was in f ear o f bodily harm , he
tem porarily possessed a weapon out of necessity

. Theref ore, the trial court’s decision to grant

a necessity

instruction while also instructing the jury that self -def ense is not a d ef

ense to a charge of f

e lon in possession o f a f irearm d enied David Stanf i eld’s f undam ental right to assert his lawf

ul def ense. Accordingly , I dissent. ¶29. T h e s t a n d a r d o f r e view f or the grant or denial of jury instruct i o n s i s a b u s e o f discretion. Newell v. S

tate , 49 S o. 3d 66, 73 (Miss. 2010). W hen reviewing jury instructions, “[ t]he instructions actually given m ust be read as a whole. W hen so read, if the instructions

1 0f

airly a nnounce the law of the c ase and create no injustice, n o reversible error w ill be f ound.” Id. at 7 3 (quoting Rubenstein v. State , 941 So. 2d 735, 785 (Miss. 2006)). “[ E]very accused has a f undam ental right to have her theory of the case presented to a jury , e v e n i f t h e evidence is m inim al.

. . . This Court will never perm it a n a c c u sed to be denied this f undam ental right.” C

hinn v. State , 958 So. 2 d 1223, 1225 (Miss. 2007) (internal quotation

m arks om itted) (quoting O’Bryant v. State , 530 So. 2d 129, 133 (Miss. 1998)). ¶30. The trial court gave a def ense-of

- necessity i nstruction, Instruction C -7, which stated,
A d ef ense to b ein g a f

elon in possession o f a f irearm m ay occur when the Def endant acts out of

necessity

. In o rder to be entitled to a def ense of necessity , the Def endant m ust prove the f ollowing: (1) the act charged was done to prevent a signif icant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm

avoided. However, the trial court also gave Instruction S-6, which stated,
T h e Court instructs the j ury that self -def ense is not a v iable def en s e t o possession of

a f irearm by a convicted f

elon. ¶31. Theref

ore, the trial court sim

ultaneously i nstructed the j ury that Stanf i eld legally m a y have posse s s e d a f

i r e a r m o ut of necessity but t hat self -def e nse could not be a part of that necessity

. I would f

ind that b oth jury instructions conf l icted, caused conf

usion, created an injusti ce, and denied Stanf ield his right to present his d ef ense. I d o not disagree with the

m ajority ’s statem ent th a t self -def ense and n ecessity are separate legal def enses. However, although self

-def ense is a separate legal

def ense, the concept of

the def ense of oneself is a valid part of

the necessity

def ense, just as reasonable necessity i s an underly ing part of the legal def e nse o f self

-def ense. See Thornton v

. State , 191 M iss. 407, 1 So. 2d 778, 779 (1941)

1 1( T h i s Court previously has stated that “[ t]he right of self -def ense is c oterm inous wi t h reasonably

apparent necessity .”). 2 ¶32. The necessity instruction provided that S tanf ield m ust prove that “the act charged was done to prevent a s ignif

icant e vil.” Stanf

ield stated that when he w a l k e d i n to the kitchen,
Terence pulled o ut a g un and dem anded m oney . Stanf ield then wrestled f

or the g un and the
gun went of

f

. Theref o re, self -def ense was the underly ing p art of the necessity of p ossessing
a weapon. See Hum

phrey , 553 S.E.2d at 554 (em phasis added) (“The evidence, viewed in the light m ost f

avorable to a

ppellant, supported a necessity instruction because it established

t h a t a p p e l lant’s possession of the shotgun on Decem b er 29, 1999 was f

or the purpose o f justifiable self-defense . . . .”). However, the trial court instructed the jury that self -def ense could n ot be a viable def

e nse to possession of the f irearm

. Theref

ore, when r ead as a whole, the jury instructions excluded the possibility that Stanf ield possessed a f

i r e a r m out of necessity to prevent bodily

harm to him self

. T his denied Stanf

ield his f undam ental right to assert his def

e nse. ¶33. Stanf

ield’s theory of def

ense w as that he was in f e a r o f b o d i l y h a rm , thus, out of necessity , he tem

porarily possessed a f

irearm to def

end him self

. B ecause s elf

-def ense is an

2 S e e also Hum

phrey v. Com m onwealth , 5 53 S .E.2d 546, 5 52 (V a. C t. A p p . 2 0 0 1 ) (em p h asis ad d ed ) (“A s set o u t ab o v e, th e essen tial elem en t s o f th e n ecessity d ef en se, w h ich allo w s a co n v i cted f

e lo n to p o ssess a f

irearm f o r self-d efen se . . . .”); State v. Padilla , 164 P.3d 765, 772 (Haw. Ct. A pp. 2 0 07), corrected (Aug. 16, 2007) (“In f e lon- i n - p ossession cases, the d istinctions between the c om m on law def enses of d u r e s s , n e cessity , and s e l f -def ense are regarded as i m m aterial, and the m odern trend is to lum p t hese def

ense s together under the generic r ubric of ‘ justif

i cation.’” (citations om i tted)); McGhee v. Com m o nw e alth , 248 S.E.2d 808, 810 (Va. 1978) (em phasis added) (“The law of self -def e nse is the law of

necessity . . . .”). 1 2interrelated concept with the def e nse of necessity , instructing the jury t hat the def endant m ay have lawf ully possessed a f

irearm out of necessity while also giving the instruction that self

def ense is not a def

e nse to the c ha r g e w a s h o p e lessly conf using. W hen l ooking at the jury instructions as a w hole, the conf licting i nstructions created an inju s t i c e to S tanf ield and denied S tanf

ield his f undam ental r ight to a ssert h is lawf ul d ef ense. A ccordingly , I would f ind that the trial court abused its discretion in granting both ins t r u c t i o n s and would reverse Stanf i eld’s conviction and rem and f or a new trial. KITCHENS, P.J., JOINS THIS OPINION.

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