E-Filed Document May 15 2018 16:23:49 2016-KA-01287-COA Pages: 8 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI SHAUNTEZ JOHNSON PETITIONER v. No. 2016-KA-01287-COA STATE OF MISSISSIPPI APPELLEE PETITION FOR WRIT OF CERTIORARI COMES NOW the petitioner, Shauntez Johnson, Pursuant to Rules 17(a)(1), (2), and (3)(ii), Mississippi Rules of Appellate Procedure, and files this Petition for Writ of Certiorari and respectfully requests that this Court grant the relief requested and review the decision of the Court of Appeals of the State of Mississippi entered in this cause and in support of this petition states unto the Court the following: I. Johnson was convicted of one count of aggravated assault. He was sentenced to a total of twenty years in the custody of the Mississippi Department of Corrections, with four years suspended. II. Appeal of the conviction and sentence was timely perfected in this Court, and the case was assigned to the Court of Appeals. On November 21, 2017, the Court of Appeals rendered its opinion in the matter and affirmed the judgment and sentence of the trial court. III. On December 5, 2017, Johnson filed a Motion for Rehearing with the Court of Appeals, and the same was denied by order entered on May 1, 2018. 1
IV. The Court of Appeals s analysis conflicts with prior holdings of this Court which hold that a defendant is entitled to have a jury decide each element of the offense charged. On appeal, Johnson argued that the trial court erred when it added the words or temporary to his proposed jury instruction defining serious bodily injury. The change altered the definition of serious bodily injury recognized by this Court and lowered the State s burden of proof. Johnson s defense at trial was that the victim s injuries were not serious and that he was guilty only of simple assault. When the trial court changed the definition of serious bodily injury, it left Johnson with no proper instructions regarding his theory of defense, and the jury returned a verdict based on a misstatement of the law. The dispute over the instructions came from a misunderstanding of the case law regarding what constitutes serious bodily injury for the purposes of aggravated assault. At trial, the State relied on Buffington v. State, 824 So. 2d 576 (Miss. 2002), which stands for the opposite of the proposition the prosecutor cited it for. Buffington analyzed prior holdings in Yates v. State, 685 So. 2d 715 (Miss. 1996) and Wolfe v. State, 743 So. 2d 380 (Miss. 1999). In Yates, this Court defined serious bodily harm in a felony child abuse case, relying on the Court s previous approval of the definition of serious bodily injury found in the Model Penal Code 210 (1980). Yates, 685 So. 2d at 720 (citing Fleming v. State, 604 So. 2d 280, 292 (Miss. 1992) (relying on the definition of serious bodily injury found in Model Penal Code 210 to affirm an aggravated assault conviction.)). The Court in Yates used that definition of serious bodily injury in its analysis of a felony 2
child abuse case. Yates, 685 So. 2d at 720. The definition of serious bodily injury used in Yates stated: [S]erious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. Id. The jury instruction Johnson proposed was nearly identical to the definition of serious bodily injury favored in Yates. (Tr. 82, C.P. 18, R.E. 4). The confusion over the instruction seems to be caused by later felony child abuse cases which alter the definition of serious bodily injury and lower the burden for the State. In Wolfe, this Court clarified the definition of serious bodily injury to be used in felony child abuse cases. Wolfe, 743 So. 2d at 384-85 ( 22). The court explained that in its analysis in Yates, it did not expressly adopt the Model Penal Code definition to serve as the threshold standard to determine if serious bodily harm had been inflicted on a child in the context of a child abuse case. Id. The court noted that it had relied on an aggravated assault case when citing a definition of serious bodily injury. Id. See also Fleming, 604 So. 2d at 292. The Court in Wolfe recognized the difference in aggravated assault and felony child abuse, and that children are inherently more vulnerable than adults. Therefore, this Court held that the definition of serious bodily injury in aggravated assault cases would make the standard too high to protect children under the felony child abuse statute. Id. at ( 22). So, relying on the National Center on Child Abuse and Neglect s Model child Protection Act, this Court adopted a new definition of serious bodily injury as it pertains to felony child abuse cases. Miss. Code Ann. 97-5-39(2)(c)(1994). 1 Id. at 24. The definition adopted by this Court included the temporary language at issue in 1 97-5-39(2)(c) is the statute pertaining to felony child abuse. 3
this case. The newly adopted definition, for use in felony child abuse cases, provides: bodily injury which creates a substantial risk of death, or permanent or temporary disfigurement, or impairment of any bodily organ or function. Wolfe, 743 So. 2d at 385 ( 24) (emphasis added). Because Wolfe was a plurality decision, this Court addressed the issue again in Buffington, 824 So. 2d at 580 ( 15). In Buffington, this Court overruled its holding in Yates, finding that the definition of serious bodily injury set forth in that case was not appropriate in child abuse cases. Id. The Court adopted the definition it set out in Wolfe and made a distinction between child abuse cases and aggravated assault cases. While overruling Yates, a child abuse case, the Court reiterated that the definition of serious bodily injury set forth Yates and Fleming were still appropriate in aggravated assault cases. Buffington, 824 So. 2d at 580 ( 15). Accordingly, the instruction Johnson offered defining serious bodily injury was a proper statement of the law. The trial court erred in adding the words or temporary into the instruction, thereby lowering the threshold or easing the burden for the State to show serious bodily injury. Johnson s theory of the case was that Kimbrough s injuries were not serious under the definition set out in Yates, thus he was guilty at most of simple assault. Altering the instruction, as the trial court did, resulted in an incorrectly instructed jury and left Johnson without instructions reflecting his theory of the case. Whether Kimbrough s injuries were serious was a question of fact for the jury. And a defendant is entitled to have the jury instructed on his theory of defense, as long as his instruction correctly states the law of the case and has a foundation in the evidence. Manuel v. State, 667 So. 2d 590, 591 (Miss. 1995) (citing Hester v. State, 602 So. 2d 869, 872 (Miss.1992)). 4
Rather than address the improper instruction in Johnson s case, the majority opinion of the Court of Appeals addresses the sufficiency of Johnson s conviction and the evidence supporting a finding of serious bodily injury. Essentially, the Court of Appeals finds that the evidence was sufficient to support the jury s finding of serious bodily injury, therefore, there was no reversible error. The majority relied on cases 2 where the appellant/defendant argued that the evidence was insufficient or that he was entitled to a lesser-included offense instruction on simple assault, rather than cases where the jury was given an instruction that misstated the law. The jury in this case was not properly instructed on the elements of the offense of aggravated assault, specifically, the element of serious bodily injury. This Court has held that [i]nstructing the jury on every element of the charged crime is so basic to our system of justice that it should be enforced by reversal in every case where inadequate instructions are given[.] Shaffer v. State, 740 So. 2d 273, 282 ( 31) (Miss. 1998). And, it is fundamental error to fail to instruct the jury of the essential elements of a crime. Moore v. State, 996 So. 2d 756, 760 ( 8) (Miss. 2008) (quoting Reddix v. State, 731 So. 2d 591, 592 ( 3) (Miss. 1999)). This Court has held that [s]o important is the right to a jury trial to our democratic form of government; so clear is the mandate from Section 31 of the Constitution of the State of Mississippi; that we overrule Kolberg to the extent that it provides harmless error analysis when the trial court fails to instruct a jury as to elements of a charged crime. We hold that it is always and in every case reversible error for the courts of Mississippi to deny an accused the right to have a jury decide guilt as to 2 The majority opinion cited Bright v. State, 986 So. 2d 1042, 1047 ( 8, 19 (Miss. Ct. App. 2008); Fleming v. State, 604 So. 2d at 292; Harbin v. State, 478 So. 2d 796, 799 (Miss. 1985); Rickman v. State, 150 So. 3d 983, 986 ( 13) (Miss. Ct. App. 2014); and Brown v. State, 934 So. 2d 1039, 1043 ( 12) (Miss. Ct. App. 2006). 5
each and every element. Harrell v. State, 134 So. 3d 266, 275 (Miss. 2014) (citing Kohlberg v. State, 829 So. 2d 29 (Miss. 2002)). Applying a harmless error analysis in this case would be to ignore the principle that appellate courts may use harmless error to preserve, but not supplement, a jury s findings. Harrell, 134 So. 2d at 273 (citing Pope v. Illinois, 481 U.S. 497, 509-510, 107 S.Ct. 1918, 95 L.Ed. 2d 439 (1987) (Stevens, J., dissenting)). Because the jury was given an incorrect statement of the law defining serious bodily injury, which is the element that distinguishes aggravated assault from simple assault, the State s burden of proof was lowered. The jury was allowed to convict Johnson if it found that he caused serious permanent or temporary disfigurement. Applying a harmless error analysis in this case puts this Court in the jury s position of evaluating the evidence. Saying the error in this case is harmless supplements the jury s verdict, rather than just preserving it. The jury did not reach a verdict based on a correct statement of the law. And the statement of law they received was one that lowered the State s burden of proving serious bodily injury. The harmless error analysis used here has the potential to invade the province of the jury to determine whether Johnson inflicted serious bodily injury on the victim. Johnson was entitled to have the jury determine his guilt of every essential element of the crime of aggravated assault. See Apprendi v. New Jersey, 530 U.S. 466, 477 (2000). The jury was not properly instructed on serious bodily injury. Johnson submits that the error is not harmless and his case should be reversed. WHEREFORE, PREMISES CONSIDERED, Johnson prays that this Court will issue a Writ of Certiorari, review and reverse the decision of the Court of Appeals, and remand this case to the trial court for further proceedings. 6
Respectfully Submitted, By /s/ Mollie M. McMillin Mollie M. McMillin Mollie M. McMillin Miss. Bar No. 102708 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS 39207 T: (601) 576-4290 F: (601) 576-4205 mmcmi@ospd.ms.gov ATTORNEY FOR SHAUNTEZ JOHNSON 7
CERTIFICATE OF SERVICE I, Mollie M. McMillin, counsel for Shauntez Johnson, hereby certify that I have this day filed by means of the electronic case filing system the foregoing Petition for Writ of Certiorari, pursuant to Mississippi Rule of Appellate Procedure 25 by which immediate notification to all ECF participants in this cause is made including: Jason L. Davis Office of the Attorney General Post Office Box 220 Jackson, MS 39205-0220 This, the 15th day of May 2018 /s/ Mollie M.McMillin Mollie M. McMillin, Miss Bar #102708 Mollie M. McMillin Miss. Bar No. 102708 OFFICE OF STATE PUBLIC DEFENDER INDIGENT APPEALS DIVISION Post Office Box 3510 Jackson, MS 39207 T: (601) 576-4290 F: (601) 576-4205 mmcmi@ospd.ms.gov Attorney for the Petitioner 8