IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-KA-01758-COA DILLARD HARVEY A/K/A DILLARD C. HARVEY A/K/A DILLARD CHANNING HARVEY A/K/A HARVEY DILLARD A/K/A MITCHELL BEARD A/K/A MICHAEL TOWNS A/K/A MICHAEL ANTHONY TOWNES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/08/2013 TRIAL JUDGE: HON. JEFF W EILL SR. COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, MANSLAUGHTER, AND SENTENCED AS A HABITUAL OFFENDER TO TW ENTY YEARS, W ITH AN ADDITIONAL TEN YEARS AS A SENTENCE ENHANCEMENT FOR THE DISPLAY AND USE OF A FIREARM BY A CONVICTED FELON DURING THE COMMISSION OF A FELONY, AND COUNT II, FELON IN POSSESSION OF A FIREARM, AND SENTENCED TO TEN YEARS, W I TH ALL SENTENCES TO RUN CONSECUTIVELY, W I THOUT THE POSSIBILITY OF PROBATION, PAROLE, REDUCTION, OR SUSPENSION, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONSDISPOSITION: AFFIRMED IN PART; REVERSED AND RENDERED IN PART: 10/13/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., ISHEE, CARLTON AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Dillard Harvey broke up two auto burglaries in o ne day

. He m ight have been regaled

as a hero had he not shot the second burglar in the back as he retreated, begging f or his lif e. Harvey was t ried f

or m urder and convicted of m anslaughter as well as b eing a f elon in
p o s session of a f

irearm

. W e af

f irm those convictions and sentences, but we reverse and render an a dditional f

i rearm enhancem ent since Harvey was sentenced a s a h abitual of f ender f or the underly i ng crim e. FACTS ¶2. Harvey was o n his second date with Felita Brown. As the e vening was winding down and Harvey w as taking Brown back to her vehicle, he s potted som e y oung m en breaking into his son’s car. Harvey a

pprehended one, and Brown accom panied h im t o the police station. Harvey then took Brown back to her hom e, and, it being quite late by that point, went to sleep

on Brown’s couch. E a r l y t h a t m orning, he awoke t o the sounds of Aaron Y a t es, a f orm er boy f riend of Brown’s, beating on her door and breaking into her car. ¶3. According to Brown, Harvey told her to call the p olice. He then a rm ed him self with

a revolver he had been carry i ng and w ent to the door. He and Yates began f ighting over the
gun o n the porch, with Harvey eventually g etting t he upper hand. Harvey , in control of the
2gun, w as “ stom ping” on Yates while Yates was kicking up at him when Brown went back inside. She did not see what happened next, but the last thing she heard Yates say was: Man, I promise to God if you let me go I’ll never come b ack around here again. The pleas were f

ollowed by a g unshot. Harvey cam e back inside and s aid he had s hot Yates accidentally . W hen Brown went outside she saw Yates ly ing in the driveway , f ace up. ¶4. A n ei g h b or testif

ied that she heard Yates scream ing that he was going to l eave and begging Harvey t o stop. S h e s a w H arvey

– who w as m uch larger and stronger – beating
Yates about the head with a g un and dragging him around on the porch. Yates was try ing to get away , but Harvey would n ot l et him

. Yates did eventual l y g e t loose, a n d he retreated, with his hands up, begging f or his lif e . Harvey

shot Yates and then turned to the neighbor

a n d asked, “W hat have I done? ” Harvey w ent back into the house, and Yates repeat e d l y cried f or help bef

ore succum

bing to his wounds. ¶5. Harvey testif

ied in his o wn def

ense. He claim ed that the gun belonged to Yates and that Y ates was threatening h im with it and dem anding to know who he was, apparently out of rom antic jealousy

. According t o Harvey , he w as the one of f ering to leave and asking not to be shot, and the gun went of f accidentally

while he wrestled with Yates in self -def ense. DISCUSSION 1. Firearm Sentence Enhancem ent ¶6. Because Harvey was sentenced f or m a n slaughter as a habitual o f f ender, Mississippi Code Annotated section 99-19-81 (Supp. 2 014) required t h a t h e receive the m axim um
3sentence, twenty y ears. The trial court also s entenced Harvey to an a dditional ten y ears under

the enhance me n t f

o r the display or use of a f irearm while com m itting the f e lony , under section 97-37-37(2) ( Rev. 2014). However, that section provides that it is applicable only “except to the extent that a greater m inim um se ntence is otherwise provided by any other provision of

law.” I d

. ¶7. In Harris v. S

t ate , 99 So. 3 d 169, 174 (¶ 2 6 ) (Miss. 2012), the Mississippi Suprem e Court held that t he m andatory m a xim um penalty p rovided b y t h e h a b i tual of f ender statute is “a greater m inim

um sentence . . . otherwise provided by any other provision of

law.” ¶8. In t oday ’ s c ase, the State concedes that Harris is controlling and that und e r Harris Harvey was erroneously sentenced to the f irearm enhancem ent. I t argues t hat this Court should reconsider Harris , but we are not in a p osition t o overrule a recent, un a n im ous decision of

the Mississippi Suprem e Court. ¶9. W e reverse and render Harvey ’s ten-y ear sentence under the f irearm enhancem ent. 2. Testim ony of Forensic Pathologist ¶10. Dr. Adel Shaker, a f orensic pathologist, t e s t if i ed about Yates’s injuries. Yates had

num erous co n t u s i ons, abrasions, and lacerations, including a signif icant laceration to the hea d c o n s i stent with being struck by a gun barrel. He died f rom a gunshot wound to the back, w ith the a

bsence of gunshot residue and burns indicating that the bullet was f ired f rom

m ore than two and one-half f e et away . Dr. Shaker d escribed the trajectory of the bullet as traveling through Yates’s b o dy “f rom b ack to f

ront, f rom do w n u pwards, f

rom the bottom

4to the top[ ,] a n d f r o m t h e r i g ht to the lef

t.” Photographs of t he b ody were introduced into evidence s howing the entry and exit positions o f the bullet. Over repeated def ense o bjections alleging that t h e t e s t i m ony w as speculative, Shaker was also asked as t o the body position of the victim

when he was shot. Shaker testif ied: Q. Do y o u have any e xpert opinion as t o t he body position Mr. Yates was in when the bullet penetrated his body ? BY [ THE DEFENSE ATTORNEY]: Objection, Your Honor. BY THE COURT: Overruled.
A. Basically , the shooter w as behind him

. And while h e was shot, he was just ducking and kneeling down f orward b ecause during this position, this is the only explanation. The g unshot wound enter here and e xit there (indicating). And the shooter was behind him

. T here is no alternative explanation and I i m a g ine that y o u c a n i ma g ine what h as been happening at that tim e. The shooter is in the back. 1 ¶11. First of all, we note that the objection a t trial was t o the q uestion, w hile t he objection

on appeal is to the answer that was given, which went bey ond the question to e n com pass not only the position of the victim ’ s b o dy , but i ts position r elative to its surroundings and relative

to t he shooter. “An objection to a proper q ues t i o n d o e s n o t r each an a nswer t hat is not responsive or is otherwise objectionable . . . .” 88 C.J.S. Trial § 216 (2012). “[ I]ssues not presented to the trial court f o r lack of contem

poraneous objection are procedurally barred, and error, if a ny , is w a ived.” Goff v. State , 14 So. 3d 625, 654-55 (¶118) (Miss. 2009)

1 D r. S h ak e r ap p aren tly sto o d u p an d lean ed o v e r to d em o n strate, as w a s n o ted b y th e atto rn ey s an d th e trial j u d g e d u rin g a su b seq u e n t d iscu ssio n . 5(citation om itted).

¶12. O t h e r w i s e , H a r v e y ’ s a rgum ent i s cursory . Other t han sim ply asserting that th e testim o ny was speculative, Harvey relies exclusively

on E d monds v. State , 955 So. 2d 787 (Miss. 2 0 07), which he a rgues s t ands f or the proposition that a f

orensic pathologist c an never testif y as to t h e r elative positions of the shooter and the victim

. B ut in t h a t case, the pathologist t estif

ied that – f

or reasons he did not disclose – he believed it was m ore likely there had been two peop l e h o l ding t he m urder weapon rather than just one. I d. at 791-92 ( ¶ 7 )

. The suprem e court cited this Court w ith a p proval when w e had observed that “y o u cannot look at a bullet w ound and tell whether it was m a d e by a bullet f ired by one person pulling the trigger or by two persons pulling the trigger sim ultaneously ,” and it f

aulted the pathologist in that case f

or apparently testif

y i ng otherwise. Id. a t 792 (¶7). The court did not hold that a pathologist can never t estif y to the relative positions of the vi c t i m a n d s hooter, and Harvey of

f ers no real argum ent or a n a l y s i s of that question. N otwithstanding the procedural bar we f

ind no m erit to this issue.
3. Denial of Recross ¶13. Dr. Sh a k e r ’ s t e s tim o ny that we addressed above was of f ered o n redirect. During direct exam ination, the trial judge had sustained objections to sim i lar questions based on a f ailure of the prosecution to create a f oundation. Af

ter the redirect, H a r v e y a s k ed f or a

recross to exam i ne the issue of the victim ’s position, b ut t he trial court denied it af ter noting that

– although he m ay

not have gone into the sam e detail – Dr. Shaker h ad m ade the sam e

6dem onstration during direct exam ination.

¶14. On appeal, Harvey argues that the question about the victi m’ s b o d y p o s i tion was bey ond the scope o f t he c ross-exam ination and that the trial court theref o r e a b u s e d its discretion in deny ing the recross. W e review the trial court’s denial of recross-exam ination f or an abuse of

discretion. Hubbard v. State , 437 So. 2d 430, 434 (Miss. 1983). ¶15. It is dif

f icult to analy

ze this issue since the trial court based its decision on gestures

or dem onstrations Dr. Shaker had m ade during direct and cross-exam inations, which were

not m ade part of the record on appe a l

. B ut we are of the opinion that, if the question or answer were bey ond the scope of cross-exam i nation, as Harvey contends, he had a duty to
contem poraneously object on t hat basis. Harvey objected to the q uestion on the (unspecif

ied

c o n t e m p o raneously , t hough previously argued) grounds that its a n swer would be specu l a t i v e , but he did not object to the answer. The f ailure to object or the “[ o]bjection on one ground

at t rial waives all other g rounds f or objection on a p peal.” Rubenstein v. State , 941 So. 2d 735, 758 (¶75) (Miss. 2006). ¶16. Having f

a i l e d t o contem

poraneously object to t he q uestion a s bey ond the scope of cross-exami n a tion, Harvey cannot argue the trial court abused its discretion in deny ing

recross. 4. Instructions S-6 and D-14 ¶17. Harvey claim ed he only possessed the g un f or a f ew m o m ents af

ter he t o o k it f

rom Yates. At trial, Harvey of f ered an instruction, D-14, which would have instructed the jury

7that self

-def ense was a def

ense to the charge of f

e lon i n possession of a f

irearm , while the State of f ered S-6, which stated that it was not. The trial court ref u sed D-14 and gave S-6. ¶18. On appeal, Harvey c oncedes that self -def ense is not a viable def

ense to possession of

a f irearm by a convicted f

elon. W illiams v. State , 953 So. 2d 260, 263 (¶8) (Miss. Ct. App. 2006). B ut he asserts that n ecessity is a def ense and t hat the t r i a l c o u r t ’ s g iving an instruction on self

-def ense was m isleading. ¶19. Harvey did n ot m a k e t h i s a r g u m ent in the t rial court, and he did not, in f act, even request a necessity instruction. He cannot com plain that S-6, which accurately stated the law,

was m isleading to a d ef

ense he did not even ask be subm itted to the j ury . It is well-settled law that “error cannot be predicated on f ailure of the court to give an instruction that was not requested.” Blocker v
. State , 809 So. 2d 640, 646 (¶23) (Miss. 2002). W e f ind no m erit to this issue.
5. Dem onstration ¶20. Finally , Harvey contends that the trial court abused i ts d iscretion in requiring def ense counsel to repeat a dem onstration with Harvey (def e nse counsel play ed Yates) that had been

m ade during direct exam ination when h e testif ied in his o wn def

e nse. H a r vey s u bsequently

m ade a m otion f

or a mi s t r i a l , w hich was denied, where he argued that this underm ined def ense counsel’s credibility b ef ore the jury and m ade it appear as if def ense c ounsel was a witness f or the prosecution. The t rial judge observed that the dem onstration had b een brief and inof f e nsive.

8¶21. A s t h e S t a t e p o i n t s o u t , H a r v e y ’s def e nse counsel c hose t o p articipate i n t h e dem onstration, and Harvey presents n o real authority supporting his argum ents on this point.
W e f ind no m erit to this issue. ¶22. T H E J U D G M E N T O F THE C IRCUIT COURT OF HINDS CO U N T Y O F CONVICTION OF COUNT I, MANSLAUGHTER, AND SE N T E N C E AS A HABITUAL OFFENDER OF TWENTY YEARS A N D C OUNT II, FELON IN P O S S E SSION OF A FIREARM, AND SENTENCE OF TEN YEARS, W ITH T H E SENTENCES T O RUN CONSECUTIVELY, W I T HOUT THE POSSIBILITY OF PR O B A T I O N , P A R O L E , R E D U C T I O N , O R S U S P E N S I O N , ALL I N T HE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. THE TEN-YEAR SENTENCE ENHANCEMENT F OR THE DISPLAY AND USE OF A FIREARM B Y A C O NVICTED FELON D URING THE COMMISSION OF A FELONY IS REVERSED AND RENDERED. ALL COSTS OF THIS A PPEAL ARE ASSESSED TO HINDS COUNTY. LEE, C.J., IRV I N G A N D GRIFFIS, P.JJ., BARNES, I SHEE, CARLTON, MAX W ELL , JAMES AND WILSON, JJ., CONCUR.

9