      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01993-COA

QUINCY CLAYTON A/K/A QUINCY LEE                      APPELLANT
CLAYTON

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              09/30/2013
TRIAL JUDGE:                   HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:     JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        OFFICE OF STATE PUBLIC DEFENDER
                               BY: ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: SCOTT STUART
DISTRICT ATTORNEY:             ANTHONY J. BUCKLEY
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF MANSLAUGHTER AND
                               SENTENCED TO TWENTY YEARS, WITH
                               AN ADDITIONAL FIVE-YEAR SENTENCE
                               ENHANCEMENT FOR THE USE OF A
                               FIREARM DURING A FELONY, WITH THE
                               SENTENCES TO RUN CONSECUTIVELY,
                               ALL IN THE CUSTODY OF THE
                               MISSISSIPPI DEPARTMENT OF
                               CORRECTIONS, AND ORDERED TO PAY
                               A FINE OF $5,000
DISPOSITION:                   AFFIRMED IN PART; REVERSED AND
                               REMANDED IN PART - 05/19/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

     ROBERTS, J., FOR THE COURT:
¶1.    A jury in the Jones County Circuit Court convicted Quincy Clayton of manslaughter

for the death of Clayton’s wife, Alice Wash Clayton. The circuit court sentenced Clayton to

twenty years in the custody of the Mississippi Department of Corrections (MDOC) for the

manslaughter conviction and five years for the firearm sentence enhancement pursuant to

Mississippi Code Annotated section 97-37-37(1) (Rev. 2014), to run consecutively to his

manslaughter sentence. Clayton’s post-trial motions were denied, and he appealed, asking

this Court to determine whether the circuit court erred in not applying the Weathersby1 rule

and whether the application of the firearm sentence enhancement was proper. We affirm

Clayton’s conviction for manslaughter; however, we reverse on the issue of the firearm

sentence enhancement and remand for Clayton to be resentenced without the enhancement.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Following his first trial, a jury convicted Clayton of murder; however, on December

13, 2012, the Mississippi Supreme Court reversed his murder conviction and remanded the

case to the circuit court for a new trial. Clayton v. State, 106 So. 3d 802, 803 (¶1) (Miss.

2012). The case was reversed due to the circuit court’s denial of Clayton’s requested jury

instruction on an alternative theory of defense. Id. at 804 (¶6).

¶3.    Upon remand, Clayton’s second trial was held on September 5-6, 2013. At trial,

Alice’s sister, Mary Wash, testified that she was living with Clayton and Alice at the time of

the incident on June 21, 2009. According to Wash, Alice and Clayton had been arguing the

night before, and the fighting continued the following morning, when Alice swung a knife



       1
        Weathersby v. State, 165 Miss. 207, 147 So. 481 (1933).

                                              2
at Clayton a couple of times while they were all in the kitchen. Wash was able to convince

Alice to put the knife down. Clayton then began ironing some clothes for church, but Alice

pulled them off the ironing board and stomped on them. Alice then went to their bedroom

and shut the door. Clayton finished ironing, and he went to the bedroom to retrieve his

church shoes. Alice refused to let him in the room to retrieve his shoes. Alice and Clayton

continued arguing through the bedroom door. Wash testified that from her seat in the living

room, she could see down the hall to where Clayton was standing outside the room. She

stated that she did not see him kick open the bedroom door, but when she turned to look

down the hall again, she saw him with the shotgun and heard a “boom.” Wash stated that

when she heard the “boom,” she jumped out of her chair and ran down the hall toward

Clayton, and they began wrestling over the shotgun. Clayton let go of the shotgun, and, as

he was leaving, he said, “that will shut her up,” and “I’m through.”

¶4.    Clayton also testified at trial. Clayton stated that he and Alice had been arguing the

night before the incident, and that Alice would not let him sleep in their bedroom. The

following morning, the arguing continued, and Alice took his clothes, threw them on the

floor, and stomped on them. According to Clayton, he picked up the clothes, and Alice

started slapping him and “coming after him.” Clayton pushed her into a chair, and Alice then

went into the kitchen and returned with a knife.2 She continued hitting him and threatened

to cut him with the knife; Clayton pushed her into the chair again. Alice got up from the

chair and swung the knife at Clayton, cutting him on his shoulder. She went to the bedroom,

       2
       Clayton also explained that Alice had pulled a knife on him approximately six
months prior, but her son was able to get it away from her.

                                             3
while Clayton remained in the living room. A few minutes later, Clayton went to the

bedroom to get his church shoes, but Alice “came at [him] with that knife stabbing at [him],

telling [him] to get out of her damn room.” Clayton testified he tried a couple more times

to get his shoes, and she kept running him out of the room. He sat down in the hallway

outside of the bedroom and said, “you need to stop acting stupid.” According to Clayton,

Alice came out of the bedroom and started kicking and slapping him, and she “stuck” him

in the side with the knife. Alice again went back into the bedroom and locked the door.

Clayton again asked to come get his church shoes, and when Alice said he could not, he

pushed the door all the way open, and “[t]he frame and everything came off,” because Alice

had slammed it so hard. Alice again came at Clayton with the knife. Clayton backed out of

the room and then got the shotgun he had used the day before to shoot a snake. He then went

back to the bedroom to “bluff” his way into getting his shoes. He testified:

       When I walked in my bedroom, inside of my bedroom, when I walked in she
       come from around that bed with that knife drawn back up at me. I mean, I can
       see the white in her eyes. I mean, she had a look on her face. I mean, she
       didn’t even look like my wife when I seen her. And she was coming up on me
       with that knife. . . . I ended up pulling the trigger. . . . And it was an accident
       what happened because I wasn’t trying to shoot her.

¶5.    Clayton elaborated that he had never been cut or stabbed in the twenty years they were

together. He stated, “I was scared. I was scared because she ain’t never did this to me. . .

. She came at me – when she came at me[,] she had that knife drawn back.” Clayton left the

house, flagged down a patrol car, and said, “I’m the one you’re looking for, . . . because I just

shot my wife.” He testified he was taken into custody without incident.




                                               4
¶6.       During his testimony, Jones County Deputy Sheriff Brian Buxton confirmed that

Clayton flagged him down while both were driving and said: “I’m Quincy Clayton. I’m the

man y’all are looking for. I just shot my wife.” Deputy Buxton stated that Clayton was not

combative at the time he was arrested. Deputy Buxton also took pictures of Clayton’s

injuries, which were on his shoulder, the side of his chest, and his wrist. These pictures were

entered into evidence and published to the jury.

¶7.       Betty Wash, Alice’s daughter, was unable to be present to testify; however, the State

and Clayton stipulated that her testimony would be read to the jury. Betty was not present

during the incident, but she arrived shortly thereafter. She removed a knife from Alice’s

hand and placed it either on top of the dresser or in a dresser drawer.

¶8.       After hearing the evidence presented, the jury returned a guilty verdict for

manslaughter. Following the verdict, the State sought to enhance Clayton’s sentence

pursuant to section 97-37-37, which the circuit court permitted. Clayton was sentenced to

serve twenty years in the custody of the MDOC for the manslaughter conviction and five

years in the custody of the MDOC for the sentence enhancement. Additionally, he was

ordered to pay a $5,000 fine. Clayton filed a motion to correct his sentence and a motion for

a judgment notwithstanding the verdict or, in the alternative, for a new trial; the circuit court

denied these post-trial motions.

¶9.       Following the denial of his post-trial motions, Clayton appealed, and he raises two

issues:

          I.     The trial court committed reversible error when it failed to apply the
                 Weathersby [r]ule and grant [Clayton] a directed verdict of acquittal on

                                                5
              manslaughter. Clayton was the only eyewitness to the homicide of
              Alice Clayton[,] and the evidence established that he injured Alice in
              necessary self-defense.

       II.    Clayton’s five-year sentence enhancement under . . . [section 97-37-37]
              is unconstitutional, illegal, and contrary to the . . . holdings in Apprendi
              v. New Jersey[, 530 U.S. 466 (2000),] and Waits v. State[, 119 So. 3d
              1024 (Miss. 2013)].

                                          ANALYSIS

       I.     WEATHERSBY APPLICATION

¶10.   Clayton’s first assignment of error is based on the circuit court’s denial of his motion

for a directed verdict based on the Weathersby rule. In Garth v. State, 771 So. 2d 984, 987

(¶11) (Miss. Ct. App. 2000) (internal citation omitted), we explained:

       The Weathersby rule serves as a restatement of the conventional standard of
       review of a criminal trial court's refusal to direct a verdict of acquittal, that if
       the defendant and his witnesses are the only witnesses to the homicide and if
       their version of what happened is both reasonable and consistent with
       innocence and if, further, there is no contradiction of that version in the
       physical facts, facts of common knowledge or other credible evidence, then
       surely it follows that no reasonable juror could find the defendant guilty
       beyond a reasonable doubt. However, if there are circumstances shown in the
       evidence which materially contradict the defendant's version of self-defense,
       the jury is not required to accept his version, but may in determining guilt or
       innocence consider his version of self-defense along with conflicting evidence
       and any unfavorable inferences therefrom.

According to Clayton, he was the only eyewitness to the shooting of Alice, he consistently

testified that he acted in self-defense when Alice came at him with a knife, and there was no

evidence contradicting his version of the events. Therefore, Clayton asserts that the circuit

court erred in denying his request to have the Weathersby rule applied, which would have

resulted in a directed verdict in his favor.



                                                6
¶11.   “[I]t is a rare case that satisfies the requirements of the rule in Weathersby.” Garth,

771 So. 2d at 987 (¶10). And we find that the circuit court was correct in finding that the

Weathersby rule was not applicable to the present case. The Mississippi Supreme Court has

stated that, “if the defendant's testimony ‘satisfies all the elements of murder or

manslaughter, the defendant would not be entitled to a directed verdict of acquittal, as this

testimony would be the basis for a valid conviction,’ and the Weathersby rule would not

apply.” Booker v. State, 64 So. 3d 965, 970-71 (¶17) (Miss. 2011). Mississippi Code

Annotated section 97-3-35 (Rev. 2014) defines manslaughter as: “The killing of a human

being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use

of a dangerous weapon, without authority of law, and not in necessary self-defense[.]”

¶12.   A jury could reasonably believe that Clayton’s version of the incident satisfied the

elements of manslaughter, because a jury could have found that Clayton was not acting in

necessary self-defense when he shot his wife with a shotgun. Clayton testified that he shot

Alice after she came at him with a knife. However, it was Clayton who brought a gun to a

knife fight. Clayton pursued Alice into a closed bedroom, all while knowing that Alice had

a knife and had even struck him with the knife several minutes prior to the shooting. A jury

could reasonably conclude that the time Clayton spent to retrieve the loaded shotgun from

the closet, and the use of the shotgun to “bluff” his way into the room for his church shoes,

were unreasonable and were not actions in necessary self-defense.

¶13.   Additionally, while Clayton did turn himself in to the police shortly after the incident,

he never called 911 or checked to see if Alice was still alive before he left the home. In



                                               7
Kiker v. State, 130 So. 3d 554, 558 (¶13) (Miss. Ct. App. 2013), this Court addressed the

inapplicability of the Weathersby rule, and we found that “[t]he jury could certainly have

found this inconsistent with the way an individual would act if the shooting was actually in

self-defense,” since Julius Kiker never called the police after he shot his wife.

¶14.   Because Clayton’s version of events satisfied the elements of manslaughter and

because the reasonableness of Clayton’s actions was a question for the jury, we cannot find

that the circuit court erred in denying Clayton’s request for a directed verdict based on

Weathersby. We affirm Clayton’s conviction for manslaughter.

       II.    SENTENCE ENHANCEMENT

¶15.   Questions of law, which this issue involving the application of a sentence

enhancement is, receive a de novo review. See Sallie v. State, 155 So. 3d 760, 762 (¶7)

(Miss. 2015). Clayton argues that the circuit court improperly enhanced his sentence without

having a jury decide every element of the firearm enhancement. We agree.

¶16.   The United States Supreme Court addressed sentence enhancements in Apprendi, 530

U.S. at 490, when it stated: “Other than the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” In Waits, 119 So. 3d at 1030 (¶23), the Mississippi

Supreme Court, relying on Apprendi, reversed David Waits’s sentence due to the circuit

court’s error in applying section 97-37-37, and remanded for resentencing without the

enhancement. In doing so, it found that “the fact that Waits used a firearm during the




                                               8
commission of the felony crime of manslaughter can be inferred only from the evidence, not

the jury’s findings.” Waits, 119 So. 3d at (¶21).

¶17.   Following the jury’s verdict at Clayton’s trial, the State requested Clayton be

sentenced in accordance with section 97-37-37, which is a firearm enhancement that would

add five years to Clayton’s sentence. Section 97-37-37(1) provides:

       Except to the extent that a greater minimum sentence is otherwise provided by
       any other provision of law, any person who uses or displays a firearm during
       the commission of any felony shall, in addition to the punishment provided for
       such felony, be sentenced to an additional term of imprisonment in the custody
       of the Department of Corrections of five (5) years, which sentence shall not be
       reduced or suspended.

As the Supreme Court explained in Apprendi, because the application of section 97-37-37

increased Clayton’s sentence for manslaughter beyond the statutory maximum of twenty

years, a jury would have to decide whether the State proved each element of section 97-37-

37(1) beyond a reasonable doubt. This included whether Clayton used or displayed a firearm

during the commission of the felony.

¶18.   The following jury instruction was given to the jury regarding manslaughter:

             If you find that the State has failed to prove all of the essential elements
       of the crime of Murder, then you may consider the lesser charge of
       Manslaughter.

              The [c]ourt instructs the jury that if you find from the evidence in this
       case that the Defendant, Quincy Lee Clayton, is not guilty of Murder, then you
       may proceed with your deliberations to determine whether the State has
       proved, beyond a reasonable doubt, all of the elements of the lesser crime of
       Manslaughter.

              However, notwithstanding this right, it is your duty to accept the laws
       as given by the [c]ourt; and if the facts and law warrant a conviction of the
       crime of Murder, then it is your duty to make such a finding uninfluenced by

                                               9
       the power to find a lesser offen[s]e. This provision is not designed to relieve
       you from the performance of an unpleasant duty. It is included to prevent a
       failure of justice if the evidence fails to prove the original charge of Murder[,]
       but does justify a verdict for the lesser crime of Manslaughter.

               If you find from the evidence beyond a reasonable doubt that on June
       21, 2009, Quincy Lee Clayton, in Jones County, Second Judicial District, State
       of Mississippi, did kill Alice Louise Clayton, a human being, without malice,
       in the heat of passion, by the use of a dangerous weapon, without authority of
       law, and not in necessary self-defense, it is your sworn duty to find the
       Defendant, Quincy Lee Clayton, guilty of Manslaughter.

             If the State has failed to prove any one or more of these elements
       beyond a reasonable doubt, then you shall find the defendant not guilty.

While this instruction does contain the phrase “by the use of a dangerous weapon,” it does

not describe what that dangerous weapon was. While there is no dispute that Clayton

actually used a firearm when he shot Alice with a shotgun, the jury’s verdict does not reflect

such a finding. As the supreme court explained in Waits, 119 So. 3d at1030 (¶21), while the

fact that a firearm was used during the commission of the felony can be easily inferred from

the evidence, it is impermissible to enhance a defendant’s sentence under section 97-37-37

if a jury did not specifically find that a firearm was used.

¶19.   Based on the jury instruction for manslaughter that was given, the jury did not

specifically find, beyond a reasonable doubt, that Clayton used a firearm during the

commission of the felony of manslaughter, and we reverse the application of section 97-37-

37 and remand for Clayton to be resentenced without the firearm enhancement.

¶20. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT OF
CONVICTION OF MANSLAUGHTER, AND SENTENCE OF TWENTY YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND
TO PAY A FINE OF $5,000 IS AFFIRMED. THE FIVE-YEAR SENTENCE
ENHANCEMENT UNDER MISSISSIPPI CODE ANNOTATED SECTION 97-37-37

                                              10
IS REVERSED, AND THIS CASE IS REMANDED FOR THE CIRCUIT COURT TO
STRIKE THE FIREARM ENHANCEMENT FROM THE SENTENCING ORDER.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.

     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR
AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION.




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