E-Filed Document Nov :56: KA COA Pages: 24 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO.

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1 E-Filed Document Nov :56: KA COA Pages: 24 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA WILLIE ED SMITH JR. APPELLANT vs. STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT (ORAL ARGUMENT REQUESTED) Prepared by: Haley B. Wright, Law Student/Special Counsel Criminal Appeals Clinic The University of Mississippi School of Law Lamar Law Center Post Office Box 1848 University, MS Telephone: Facsimile: and Phillip W. Broadhead, MSB #4560 Criminal Appeals Clinic The University of Mississippi School of Law 520 Lamar Law Center Post Office Box 1848 University, MS Telephone:

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO KA COA WILLIE ED SMITH JR. APPELLANT vs. STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the Justices of this Court may evaluate possible disqualification or recusal: Willie Ed Smith, Jr., Appellant; Jim Davis, Esq., trial attorney; Haley B. Wright, and Phillip W. Broadhead, Esq., Attorneys for the Appellant, Criminal Appeals Clinic, University of Mississippi School of Law; Joel Smith, Esq., District Attorney, First Judicial District; Jim Hood, Esq. Attorney General, State of Mississippi; Honorable Christopher L. Schmidt, presiding Circuit Court Judge; Melvin Brlsolara, Sherriff of Harrison County; and Detective Jason Gouin, Gulfport Police Department, investigating/arresting agency. Respectfully submitted, --"s/_phillip W. Broadhead PHILLIP W. BROADHEAD, MSB #4560 Clinical Professor, Criminal Appeals Clinic -I-

3 TABLE OF CONTENTS STATEMENT OF ISSUES 1 PAGE NO. STATEMENT OF INCARCERATION 1 STATEMENT OF JURISDICTION 1 STATEMENT IN SUPPORT OF ORAL ARGUMENT 2 STATEMENT OF THE CASE 2-5 SUMMARY OF THE ARGUMENT 6-7 ARGUMENT 7-18 ISSUE ONE: Whether the trial court erred In failing to grant proposed defense jury Instruction 0-4, which properly placed the burden of proof on the State that the defense of necessity did not exist by proof beyond a reasonable doubt, but instead used a confusing jury instruction that did not instruct the jury who had the burden to prove or disprove the necessity defense. CONCLUSION 19 CERTIFICATE OF SERVICE TABLE OF CASES AND AUTHORITIES CASES: PAGE NO: Catchings v. State, 684 So. 2d 591 (Miss. 1996) 17 -ii-

4 Dear v. State, 966 So.2d 218 (Miss. 2007). 14 Frambes v. State, 751 So. 2d 489 (Miss. Ct. App. 1999). Haynes v. State, 934 So.2d 983 (2006). Heidel v. State, 587 So.2d 835 (Miss.1991). Knight v. State, 601 So.2d 403 (Miss. 1992) Lenard v. State, 828 So. 2d 232 (Miss. Ct. App. 2002). 11, ,9 14, 15, 16 Mcintosh v. State, 749 So.2d 1235 (Miss. Ct. App. 1999). Pierce v. State, 289 So.2d 901 (Miss. 1974) Sloan v. State, 368 So. 2d 228 (Miss. 1979). Stodghill v. State, 892 So. 2d 236 (Miss. 2005). White v. State, 542 So. 2d 250, 252 (Miss. 1989). Williams v. State, 953 So. 2d 260 (Miss. Ct. App. 2006) Young v. Guild, 7 So.3d 251, 259 (~23) (Miss. 2009) 12 13, ,9 16 8,9 8, 17, 18 STATUTES, CODE SECTIONS, AND CONSTITUTIONS Article 3, Sections 14, 23, and 26 of the Mississippi Constitution Article 6, Section 146 of the Mississippi Constitution 19-1 Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution 19 Miss. Code Ann (Supp. 2001). 1

5 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 201S-KA COA WILLIE ED SMITH JR. APPELLANT vs. STATE OF MISSISSIPPI APPELLEE STATEMENT OF ISSUES ISSUE ONE: Whether the trial court erred In failing to grant proposed defense jury instruction D-4, which properly placed the burden of proof on the State that the defense of necessity did not exist by proof beyond a reasonable doubt, but Instead used a confusing jury Instruction that did not Instruct the jury who had the burden to prove or disprove the necessity defense. STATEMENT OF INCARCERATION i--- Willie Ed Smith Jr. is presently incarcerated in the Mississippi Department of Corrections. STATEMENT OF JURISDICTION This honorable Court has jurisdiction ofthis case pursuant to Article 6, Section 146 o/the Mississippi Constitution and Miss. Code Ann (Supp. 2001). STATEMENT IN SUPPORT OF ORAL ARGUMENT Page 11

6 This case is very fact-intensive and the Appellant, through counsel, would respectfully request this Court to grant oral argument to present conflicts in the rulings of the trial court based jury instructions given at trial that are alleged by the Appellant to be erroneous. STATEMENT OF THE CASE This case deals with true friendship, the love and loyalty felt for someone when they are at their darkest hour, and the terrible punishment a man received after he felt he only had one option-- to make sure his life-long friend was out of harms way by taking a weapon out of reach when the best friend threatened to "blow his own brains out." (T. I. 143). On March 19, 2013, Willie Smith received a call from a man named Jason Parker (hereinafter known as "best friend"). The best friend was frantic and Willie Smith knew this because he had known him almost his entire life. The best friend wanted to come by and speak with Willie, of course Willie obliged, hoping to help him out. (T. I. 142). When the best friend arrived, he was crying in his truck and Willie sat with him trying to figure out what happened. The best friend told Willie that his girlfriend was "tearing him down as a man", and he thought she was seeing another man who lived down the street. (T. I. 142). It was at this point that the best friend said he was "at the end of his rope" and was "ready to blow his brains out." Willie had immediately noticed a.380 caliber pistol sitting in an open case on the front seat. (T. I. 143). Willie did not know if the gun was loaded, so he continued to try to talk the best friend into handing over the gun. When he was finally able to calm down the best friend, Willie took possession of the gun for the sole purpose of preventing a harmful act. (T. I. 144). Willie knew Page 12

7 he did not want the gun back on the street, so he drove the best friend to the pawn shop to get some money for it that would allow the best friend to go stay with his brother in Memphis for a couple of days. (T. J. 144). The best friend testified that he did not go in and pawn the gun himself because he had left his wallet at his angry girlfriend's house, therefore, he did not have a driver's license that is needed when pawning a gun. (T. J. 124). Willie felt that he had no other alternative to except to get the gun out of the car in order to save his friend's life. Willie told the pawn shop owner that he was a convicted felon, but was trying to get rid of the gun. (T. J. 145). The pawn shop owner replied, "he wanted to get it out of his possession if he was a convicted felon." (T. J. 145). Willie then received $60 for the outright sale of the gun to the pawnshop owner. Knowing full well that he was a convicted felon and was not allowed to possess a gun, Willie was still willing to take a risk by pawning the gun because he had his best friend's life in the palm of his hand-he knew getting rid of the gun was the right thing to do. (T. J. 145). On August 19, 2013, a Grand Jury in Harrison County indicted Willie Smith for unlawful possession of a firearm by a convicted felon. (CPo 5, RE ). AJury was subsequently seated and the State presented its case. The State's case included testimony from Mr. Trosclair, the pawn shop owner, who testified that a man named Willie Smith came in on March 19, 2013, to pawn a Jiminez.380 caliber pistol and that Mr. Trosclair paid $60.00 for an outright buy, rather than a pawn, of the gun. (T. J. 72). Mr. Trosclair also testified that he is not allowed, and would not buy a gun from a convicted felon. (T. I. 74). The State's case also included testimony from Detective Jason Gouin from the Gulfport Police Department (hereinafter "Gouin"), who stated Page 13

8 he recognized Willie Smith's name on a pawn receipt he obtained from leadsonline.com-a database of pawn shop receipts that officers regularly check to look for stolen merchandise. (T. I. 77). Once Gouin recognized the name, he went to the Gulfport Courthouse and obtained abstracts for previous convictions to make sure there were actually felony convictions to satisfy the requirements of the offense. (T. I. 79). After the State rested, the defense moved for a directed verdict because the State only showed a temporal possession by Willie Smith, rather than dominion and control prior to selling the gun to the pawn shop. The trial judge denied this motion. (T. I , RE ). The defense's case included testimony from Willie Smith and the best friend. The court heard how upset the best friend was when he arrived at Willie Smith's house and how he was contemplating suicide. (T. I ). The best friend also testified the gun was passed down from his uncle and had never been fired. (T. I ). The defense ended their direct of the best friend with him stating he believed Willie Smith saved his life that day. (T. I. 125). The State then decided to call a rebuttal witness for the purposes of impeaching the best friend's testimony. (T. II. 156). The defense was unaware of this possibility and objected to this witness on the grounds of a discovery violation, as well as the testimony being highly prejudicial. (T. II ). After much argument, the trial court allowed the witness, James Nolan Dickerson, who testified that he bought the Jimenez.380 pistol brand-new in January allowing the state to impeach the best friend's testimony that this gun had been in his family and was passed down to him. The State finally rested, at which point there was quite a bit of debate regarding the jury Page 14

9 instructions. The Defense offered an instruction based on the necessity defense presented during trial, which defense counsel argued the State had the burden to disprove the justification of necessity beyond a reasonable doubt. (CPo 67, RE. 28). The defense objected to the State's jury instruction (CPo 61, RE. 29) that did not include an element that the State had to disprove necessity beyond reasonable doubt, but this objection was overruled. (T. II , RE ). Ultimately, the state's view on the jury instructions were given, which did not place the burden on the State to disprove the necessity defense. During jury deliberations, a bomb threat was called into the courthouse. The fire alarm was going off in an attempt to clear the building, but the judge had the jury read the verdict. (T. II ). Ultimately, the jury returned a verdict of guilty of possession of a firearm by a convicted felon, at which point Willie Smith attempted to leave the room to see his wife and was tased by the bailiffs. (T. II ). Willie Smith was sentenced to ten years as a habitual offender without any hope of parole. (T. II , RE ) (CPo 80, RE. 17). The Defense filed a motion for a new trial or, in the alternative to find a judgment not Withstanding the verdict, which was ultimately denied by the court. (T. II. 256, RE. 34) (CPo 82, RE ). Feeling aggrieved by the verdict of the jury and the sentence imposed by the trial judge, the Appellant perfected this appeal to the Mississippi Supreme Court on April 20, (CPo 83-84, RE ). SUMMARY OF THE ARGUMENT It all started with a man who was simply trying to be loyal and to help out his best friend. Mr. Smith received a frantic call from his best friend-who had just been kicked to the curb by Page 15

10 his girlfriend. The best friend had a gun in his truck and was threatening to kill himself. Mr. Smith is a convicted felon, but he acted out of necessity to get rid of the thing he felt was going to cause the death of his best friend, and pawned the gun for money to get his friend out oftown. At trial, Mr. Smith was convicted of felon in possession of a firearm, despite the defense properly showing the necessity of his actions through the testimony of Mr. Smith and his best friend. The State put on evidence to merely show Mr. Smith was in fact a convicted felon, and that he did possess the firearm-even for only a short amount of time. The State did nothing to meet their burden of proof in disproving the necessity defense, Mr. Smith was denied a fair and proper trial because the trial judge did not instruct the jury that the State had a burden to disprove this necessity defense. Mr. Smith contends the trial court erred in refusing proposed defense jury instruction D- 4. The instruction was a correct statement of law, which pronounces that the State has the burden of proof in a criminal trial-including negating a necessity defense by proof beyond a reasonable doubt, which the Appellant contends is a legal justification. The defense established the three prongs of the necessity defense, and the State did nothing to disprove this. The only 1- action the State did in regard to the necessity defense during trial was simply asking Mr. Smith if there was another reasonable alternative to possessing the gun. It was an abuse of discretion for the trial judge to deny the proposed defense jury instruction, and as a result, the jury was unaware of the fact that the State had the burden to disprove the necessity defense in order for Mr. Smith to be found guilty. Mr. Smith was found guilty based on improper jury instructions, and an erroneous Page 16

11 statement of law that does not rise to Constitutional requirements that all defendants receive a fair trial. Therefore, for the above reasons, this honorable Court should reverse and remand this case for a new trial on the merits, with proper instructions to the lower court. ARGUMENT ISSUE ONE: Whether the trial court erred In falling to grant proposed defense jury Instruction D-4, which properly placed the burden of proof on the State that the defense of necessity did not exist by proof beyond a reasonable doubt, but instead used a confusing jury Instruction that did not instruct the jury who had the burden to prove or disprove the necessity defense. Willie Smith had a choice-to save his best friend's life by taking a pistol from him, or sit idly by to avoid breaking the law. He knew he was a convicted felon, and he was not allowed to possess a firearm. However, he did what he felt was necessary in order to prevent a great "evil." The trial court heard the accounts from him and his best friend of what happened that day and how Willie Smith probably saved his friend's life. The prosecution did nothing to disprove these accounts-instead merely offered rebuttal testimony to impeach a witness's statement about how long he had owned the gun. The Appellant was convicted of unlawful possession of a firearm by a convicted felon-a strict liability crime. However, every criminal defendant is entitled to their own theory of defense if there is a mere scintilla of evidence to support such a defense. Necessity is a valid defense to possession of a firearm by a convicted felon. Williams v. State, 953 So. 2d 260, 263 (Miss. Ct. App. 2006). In Knight v. State, 601 So.2d 403, 405 (Miss. 1992), the Court adopted the defense of necessity and held that when a "person reasonably believes that he is in danger Page 17

12 of physical harm[,] he may be excused for some conduct which ordinarily would be criminal." Stodghill v. State, 892 So. 2d 236, 238 (Miss. 2005). The defense is also available where the defendant reasonably acts out of fear of "imminent danger of death or serious bodily harm" to others. Id. Once a necessity defense is established, the Appellant is entitled to have the jury hear his theory of the case. The trial judge in this case erred in this respect by not correctly instructing the jury who had the burden of proof to prove or disprove the defense of necessity. The Appellant's fundamental rights to a fair trial were violated because his theory ofthe case was not presented correctly to the jury by the judge-the only instruction given was ambiguous statement regarding the elements of the necessity defense, and then the burden of proof and reasonable doubt regarding the elements of possession of a firearm by a convicted felon, rather than describing the burden of proof regarding the necessity defense. (CP. 61, RE. 29). The defense offered an instruction (CP. 67, RE. 28) that correctly specified the State had the burden to disprove the necessity defense, and the Appellant submits the denial of this instruction was erroneous. A party is entitled to a jury instruction if it concerns a genuine issue of material fact and there is credible evidence to supportthe instruction. Young v. Guild, 7 So.3d 251, 259 (~23) (Miss. 2009). The following discussion examines the question how the trial court abused its discretion when it denied the defense D-4 jury instruction on necessity and burden of proof regarding defenses. A. The Appellant was entitled to have his theory of defense properly presented to the jury. At trial, the Appellant argued he criminally possessed a firearm out of necessity, a defense excusing an accused's conduct in a criminal case. "Regarding the trial court's refusal to grant 81Page

13 Williams's request for a necessity instruction, we note that necessity is a valid defense to possession of a firearm by a convicted felon." Williams v. State, 953 So. 2d 260, 263 (Miss. Ct. App. 2006). In Knight v. State, 601 So.2d 403, 405 (Miss. 1992), the Court adopted the defense of necessity and held that when a "person reasonably believes that he is in danger of physical harm[,] he may be excused for some conduct which ordinarily would be criminal" Stodghill v. State, 892 So. 2d 236, 238 (Miss. 2005). The defense is also available where the defendant reasonably acts out of fear of "imminent danger of death or serious bodily harm" to others. Id. In order to be entitled to a defense of necessity, the defendant must prove the following: (1) the act charged was done to prevent a significant evil, (2) there was no adequate alternative, and (3) the harm caused was not disproportionate to the harm avoided. Williams, 953 So. 2d at , quoting Stodghill at 238. The Appellant admitted he is a convicted felon, and he did temporally possess a firearm. The defense argued he possessed the firearm out of necessity, and this necessity excused his criminal liability in this case. At trial, the defense established a sufficient factual basis of necessity for the trial judge to properly grant a jury instruction correctly stating the law of necessity to the jury. (CPo 61, RE. 29). The first prong to establish necessity is the act charged was done to prevent a significant evil. Jason Parker, the best friend of the Appellant, testified to his state of mind that day and how the Appellant saved his life. (T. I. 123). The exact words Jason Parker told the Appellant: "I'm ready to throw in the towel... I'm almost ready to just blow my brains out." (T. I. 123). Both Mr. Parker and the Appellant testified to a.380 pistol on the front seat of the truck where the two friends were sitting. Simply by taking this pistol away from Mr. Parker, the Appellant was preventing a 91Page

14 significant evil-the suicide of his best friend. This also shows necessity is a valid defense because the Appellant was acting out offear of imminent danger of death or serious bodily harm of another. In this case, the appellant was acting out of fear that his best friend was going to commit suicide right in front of him. The second prong to establish necessity is to show that there was no adequate alternative. "I had no other alternative. 1 mean, in trying to turn to somebody else, I mean, this guy's life was in my hand. you know. When you got somebody's life In your hand, 1 mean, you just do what you got to do. And that's what 1 did." (T. I. 145). Could someone have taken the gun to the pawn shop? Maybe they would have had time for that under any other circumstances. But the Appellant was afraid his best friend was going to kill himself-he had to act immediately. (T. I ). There was no time to call someone else and walt for them to show up. The Appellant felt in that moment there was no other alternative than to take the gun away from his friend. (T. I. 145). The final prong of a necessity defense is that the harm caused was not disproportionate to the harm avoided. In this case- it may have been disproportionate, but only to the extent that the harm avoided was far greater than the harm caused. The Appellant preemptively saved a life, knowing he would have to suffer consequences. Since the trial judge was apparently convinced a jury issue of the defense of necessity had been sufficiently presented to create a jury question, it logically follows the judge should have also instructed the jury as to whom had the burden to prove or disprove this legal excuse. But instead, the trial judge refused to grant proposed defense instruction D-4, holding: IOIPage

15 THE COURT: Overall position of the court is that without any authority or guidance on this issue, I don't know that, because it's not required by statute, that the state has to disprove the elements of necessity beyond a reasonable doubt. I think I made that record clear earlier. But your objection is well preserved. (T. II , RE ) The Appellant contends the trial judge's ruling sided with the prosecution in what defense counsel described as "a classic burden shifting argument" by the State, which violated both the Constitutionally-imposed burden of proof on the prosecution and the presumption of innocence of an accused citizen. (T. II. 194) B. The State has the burden of proving beyond a reasonable doubt that the Appellant did not act under necessity. A criminal defendant never has the burden of proving himself innocent. The Appellant was entitled to raise a defense under the facts of this case, and did so adequately as discussed above. "In a criminal case, the burden of proof always remains with the prosecutions on each element ofthe offense." Heide/v. State, 587 So.2d 835, 843 {Miss.1991).lnstructions that shift the burden to the accused are error and of constitutional proportions.ld. The State must always prove the defendant's guilt beyond a reasonable doubt. Frambes v. State, 751 So. 2d 489, (Miss. Ct. App. 1999). "Though the defendant bears the burden of persuasion regarding matters he alleges affirmatively, mere persuasion is not to be equated with the obligation of proving one's innocence beyond a reasonable doubt." Id. The defense of necessity and the question of who bears the burden of proof is an issue not specifically ruled upon by Mississippi appellate courts, and the Appellant will analogize the defense of necessity with procedural requirements regarding lllpage

16 the burden of proof in self-defense and insanity cases, which are also legally-recognized defenses of justification or excuse to a criminal indictment. "Once a defendant properly raises self-defense, the burden of proof rests with the prosecution to disprove that a defendant acted in necessary self-defense." Mcintosh v. State, 749 So.2d 1235 (,i17) (Miss. Ct. App. 1999). The Mississippi proposed model jury instruction for the justification of self-defense states: In order for the defendant to have acted in self-defense, the defendant must [specify (1) have believed that [he/she) was in actual danger; (2) have reasonably believed that [name of victim] intended to kill the defendant; or (3) have reasonably believed that [name of victim] intended to cause great bodily harm to the defendant] and that the defendant reasonably believed that [name of victim] was about to carry out [his/her) actions against the defendant. The defendant does not have to prove that [he/she) acted in self-defense. The State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. If you find that the State did not prove beyond a reasonable doubt that the defendant did not act in self-defense, then you shall find the defendant not guilty of [specify crime charged]. 1 The underlined key phrase makes it very obvious to the jury that the burden is on the State to prove that the defendant did not act in self-defense. Self-defense is a justification to a criminal act. Similarly, necessity is also a justification and was the one presented in this case. Below is the pertinent part of the jury instruction that was given at trial: If the state has failed to prove the essential elements of the crime beyond a reasonable doubt, or the defendant's actions of possession of a firearm was the 1 %20Criminal.pdf website last visited on October 27, IP age

17 result of necessity, then you should find the defendant not guilty. (CP. 61, RE. 29) (T. II. 208) While the jury could have made an inference as to which party in this case had the burden of proof to prove or disprove necessity, the general burden of proof jury instruction did not specify on whom the burden of proof rested to guide their deliberations. The language of the instruction given to the jury on necessity (CP. 61, RE. 29) made it appear the Appellant had to prove himself innocent of possession of a firearm by a convicted felon, by proof beyond a reasonable doubt, by using a necessity defense. The State is required to prove every material element of the indictment beyond reasonable doubt. Sloan v. State, 368 So. 2d 228, 229 (Miss. 1979). likewise, a defendant is not required to prove that he acted in necessary self-defense, and, if a reasonable doubt of his guilt arises from the evidence, Induding evidence of self-defense, he must be acquitted. Id. In Pierce v. State, 289 So.2d 901 (Miss. 1974), this Court held that failure of a trial court to instruct the jury that the burden of proof rested upon the State to prove the defendant did not act in selfdefense, when so requested by the defendant, constituted reversible error. Id. In this situation, Pierce requested an instruction, which the court refused to grant, defining the burden of proof which rested upon the State with respect to such a defense, where there was evidence, which if believed by the jury, was sufficient to support it. Under the circumstances, the requested instruction was proper and should have been granted, and its refusal was fatal error. There was no other instruction, either for the State or for the defendant, setting out or dealing with the rule about which appellant desired that the jury be informed. Consequently. the denial of the instruction left the jury totally without any guide upon the subject and the omission was not cured by a reading of all of the instructions together. Pierce v. State, 289 So. 2d 901, 902 (Miss. 1974). 13IPage

18 The defense proposed instruction D-4 properly defined upon whom the burden of proof rested, as well as the facts needed to establish the defense of necessity. The defense proposed instruction differentiated from the State's instruction because it did not comingle the elements of possession of a firearm by a convicted felon with the elements of necessity. Just like in Pierce, the requested instruction was a proper statement of the law and the refusal by the trial judge was reversible error. It left the jury up to their own devices to decide who had the burden, and allowed them to assume that the Appellant had to prove his own innocence, which is simply not the case when raising a justification for a criminal act. As a general rule, the defendant will also be granted his requested jury instructions "which present his theory ofthe case." Dear v. State, 966 So.2d 218, (~5) (Miss. 2007). As noted In the above section, the Appellant met all the prongs of necessity with more than a "mere scintilla" of evidence, and as such was entitled to have the jury not only hear that theory of the case, but to also be properly instructed as to the law governing the prosecution's burden of proof. Just as a defendant is entitled to have the jury instructed on his theory of defense, an accused is also entitled to have the jury properly instructed on whom the burden of proof rested and the meaning of reasonable doubt as it relates to a defense theory of the case. Lenard v. State, 828 So. 2d 232, 236 (Miss. Ct. App. 2002). In Lenard, the defense also raised a necessity defense in conjunction with a self-defense claim to a charge of possession of a firearm by a convicted felon. The Court of Appeals compared the necessity instruction offered by the defense to the prosecution's self-defense instruction, and found the necessity instruction to be "cumulative and repetitious" to the self-defense instruction already granted by the trial judge. 14[Page

19 The self-defense instruction read: If you find from the evidence in this case beyond a reasonable doubt that: 1. the defendant, Jerry Lenard, has been previously convicted of a felony, and 2. the defendant, Jerry Lenard, had in his possession a deadly weapon, to-wit: a pistol, then you shall find the defendant, Jerry Lenard, guilty as charged. If the State has failed to prove anyone or more of these elements beyond a reasonable doubt, or that the Defendant acted in self-defense, then you shall find the defendant. Jerry Lenard, not guilty. Lenard, at p (emphasis added). This Court found the refusal of the defense necessity instruction was not error because the selfdefense instruction adequately covered the State's burden of disproving necessity. "The trial court properly informed the jury of their duty to acquit Lenard if the jury found the prosecution failed to disprove that Lenard acted in self-defense when he took possession of the firearm." Lenard, at p (emphasis added). In the jury instruction given at trial, there was no explicit statement regarding the burden to prove or disprove the defense of necessity. Below is defense D-4 instruction, which was proposed and refused: The court instructs the jury that the defense of necessity is available when the defendant reasonably acts out of fear of imminent danger or death or serious bodily harm to others. To prove that WILLIE ED SMITH, JR. had an objective need to commit a crime excusable by the defense of necessity, three elements must be present: i. The act charged was done to prevent a significant evil; 2. There was no adequate alternative; and 151 P age

20 3. The harm caused was not disproportionate to the harm avoided. If the State has failed to prove from the evidence in this case beyond a reasonable doubt that the Defendant's action of possession of a firearm was not the result of a necessity as defined above, then you should find the Defendant not guilty. (CP. 67, RE. 28) (emphasis in original). Unlike Lenard, reading the jury instructions in this case as a whole did not adequately inform the jury of the State's obligation "to prove from the evidence in this case beyond a reasonable doubt that the Defendant's action of possession of a firearm was not the result of a necessity" and was, therefore, error. Insanity is also a justification or excuse for a criminal act. The burden is initially on the accused to introduce evidence creating a reasonable doubt as to his sanity at the time of the act. White v. State, 542 So. 2d 250, 252 (Miss. 1989). Once the accused has overcome this initial burden, the burden shifts to the State to present sufficient evidence to prove the accused's sanity beyond a reasonable doubt. Id. It could be analogized that the defendant trying to use necessity as a justification needs to create the same reasonable doubt when the State was trying to prove he did not act out of necessity. The Appellant produced sufficient testimony at trial to meet the necessity prongs as stated above. This created reasonable doubt that he did have a justification for the crime, and the burden shifted back to the state to present sufficient evidence, beyond a reasonable doubt, that the Appellant did not act out of necessity. The jury was not properly instructed as to the State having the burden of disproving the necessity defense established by the evidence presented at trial. 161Page

21 C. Refusal of defense proposed jury instruction was not a harmless error. While the trial court holds the discretion to refuse or deny a jury instruction, denying the defense instruction on necessity was an abuse of discretion and constituted reversible error. Regarding jury instructions, the trial court possesses considerable discretion, but their discretion is guided by three considerations. A party is entitled to a jury instruction if it concerns a genuine issue of material fact and there is credible evidence to support the instruction. While a party is entitled to jury instructions that present his theory of the case, this entitlement is limited; the trial court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence. Young v. Guild, 7 So.3d 251, 259 (~23) (Miss. 2009). These are the only three circumstances when a trial court can deny a properly drawn defense instruction. The refusal of a timely requested and correctly phrased Jury instruction on a genuine issue of material fact is proper, only if the trial court -- and this Court on appeal n can say, taking the evidence in the light most favorable to the party requesting the instruction and considering all reasonable favorable inferences which may be drawn from the evidence in favor of the requesting party, that no hypothetical, reasonable jury could find the facts in accordance with the theory ofthe requested instruction. Catchings v. State, 684 So. 2d 591, 596 (Miss. 1996) (citing Ferrill v. State, 643 So. 2d 501, 505 (Miss. 1994) (emphasis added). In this case, the proposed 0-4 instruction correctly stated the law of necessity and the burden of proof as discussed above. It was also noted above that the defense presented evidence to lay the foundation for necessity, therefore the proposed instruction was with a foundation of evidence in the record. The main deficiency of the trial judge's refusal to instruct the jury in this way is State's burden of disproving necessity was not covered elsewhere in the instructions, 171Page

22 and the State's burden to disprove necessity by proof beyond a reasonable doubt could not be inferred by reading the instructions as a whole. The granting of an abstract jury instruction will be considered reversible error only if the instruction tends to confuse and mislead the jury. Young v. Guild, 7 So. 3d 251, 260 (Miss. 2009). This jury instruction could be considered abstract because it mentioned the burden of proof for the elements of possession of a firearm by a convicted felon in the same breath as the defense of necessity. themselves who was supposed to prove or disprove necessity. The jury was left to infer for The final instructions given to the jury, when viewed as a whole, did not properly instruct the jury on the burden of proof, and, therefore, were abstract, confusing, and misleading on the State's burden of proof, constituting reversible error. Viewing the instructions to the jury as to their deliberations on the defense of necessity as a whole, which only stated the law of necessity without any mention of the State's burden, the Appellant submits this error cannot be said to be harmless beyond a reasonable doubt. See generally, Haynes v. State, 934 So.2d 983 (2006). The trial court's refusal of defense proposed instruction D-4 was an abuse of discretion and therefore, the Appellant requests that this honorable Court reverse and remand this case to the lower court with proper instructions for a new trial. CONCLUSION The Appellant herein submits that based on the propositions cited and briefed hereinabove, together with any plain error noticed by the Court which has not been specifically raised, the judgment of the trial court and the Appellant's conviction and sentence should be 181Page

23 reversed and vacated, respectively, and the matter remanded to the lower court with instructions to the lower court for a new trial. The claims of error in this case are brought by the Appellant under Article 3, Sections 14, 23, and 26 of the Mississippi Constitution and the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. The Appellant further states to the Court that the individual and cumulative errors as cited hereinabove are fundamental in nature, and, therefore, cannot be harmless. Respectfully submitted, WILLIE ED SMITH JR., Appellant _~/s/ Tf.~ '13. WY~_ By: Haley B. Wright, Law Student/Special Counsel Criminal Appeals Clinic The University of Mississippi School of Law Lamar Law Center Post Office Box 1848 University, MS Telephone: Facsimile: and ----.ls/ _P'hClU:p W. '13y~_ PHILLIP W. BROADHEAD, MSB #4560 Clinical Professor, Criminal Appeals Clinic Criminal Appeals Clinic The University of MisSissippi School of Law 520 Lamar Law Center Post Office Box 1848 University, MS Telephone: Facsimile: P age

24 CERTIFICATE OF SERVICE I, Phillip W. Broadhead, Criminal Appeals Clinic Professor and attorney for the Appellant herein, do hereby certify that I have this day mailed postage fully pre-paid/hand delivered/faxed, a true and correct copy of the foregoing Brief of Appellant to the following interested persons: Honorable Christopher L. Schmidt, Circuit Court Judge FIRST JUDICIAL DISTRICT Post Office Box 1461 Gulfport, Mississippi 39502; Joel Smith, Esq., District Attorney Post Office Box 1180 Gulfport, Mississippi 39502; and Mr. Willie Ed Smith, Jr., Appellant South Mississippi Correctional Facility Post Office Box 1419 Leakesville, Mississippi I, Phillip W. Broadhead, attorney for the Appellant herein, hereby certify that on this day, I electronically filed the foregoing Record Excerpts with the Clerk of the Court using the MEC system which sent notification of such filing to the following: I Jim Hood, Esq. ATTORNEY GENERAL OF THE STATE OF MiSSISSiPPI Post Office Box 220 Jackson, Mississippi 39205; This the 2ND day of November, JsU)hCUCp W. 'BY'~_ PHILLIP W. BROADHEAD, MSB #4560 Clinical Professor, Criminal Appeals Clinic 20 I P age