                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-KA-02231-SCT

NOAH BRENT CHINN

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          11/08/2005
TRIAL JUDGE:                               HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    MICHAEL DUANE MITCHELL
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                         ANTHONY J. BUCKLEY
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 06/28/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       DIAZ, JUSTICE, FOR THE COURT:

¶1.    Noah Brent Chinn was convicted of manslaughter and sentenced to a twenty-year

prison term. Finding that the trial court erred in failing to grant a jury instruction on the

defendant’s theory of the case, we reverse and remand for a new trial.

                                           Facts

¶2.    Around 2:00 a.m. on July 31, 2004, Chinn and his wife Shaniqua arrived at the house

of Latonsia and Jerry Patterson. According to Latonsia, the Chinns were “arguing and
fussing,” and her husband Jerry “got in between them . . . to try to see what the problem

was.” Shaniqua then jumped into the Chinns’ car and started to drive away. Chinn ran

around the back end of the car, and Shaniqua backed the car into a fence. He then attempted

to keep his wife from leaving, and during the struggle, Shaniqua was shot in the chest and

killed. The Pattersons were the only two witnesses.

¶3.    Latonsia testified that she saw Chinn reach inside the car with his right hand. She

then saw a flash of light and heard a gunshot, but could not see if Chinn and Shaniqua had

been struggling over a gun. Latonsia then saw Chinn holding a gun, which he tossed over

the fence. Chinn proceeded to pull his wife out of the car, where she stood up and took one

last breath before collapsing on the ground. Chinn then lay on top of her, begging her not

to die and yelling for someone to call the police.

¶4.    Jerry Patterson’s testimony substantially corroborated his wife’s version of events.

He also stated that he could not see if the couple was struggling over a gun before it fired.

However, Jerry testified that he saw Chinn with both arms inside the car. Jerry also testified

that he saw Chinn’s arm jerk when the gun fired. After Shaniqua had been pulled from the

car, Jerry heard Chinn saying, “Baby don’t leave me.” According to Jerry, the defendant

remained on top of his wife until the police arrived.

Both eye witnesses testified that Chinn did not have a gun before he ran to the car.

¶5.    Sergeants Robert Morris and Ken Williams arrived at the crime scene. Chinn told

them that he had thrown the gun over the fence, and the officers found a Larson .380 caliber




                                              2
semi-automatic pistol approximately forty to fifty feet from Shaniqua’s body. The gun’s

magazine was located a couple of feet away from the gun.

¶6.    The gun was registered to the defendant. Sergeant Morris testified that it had a safety

switch which had to be compressed upward to enable the gun to fire. He also testified that

in order to separate the magazine from the gun, a person would have to press a release at the

bottom of the gun’s handle.

¶7.    Steve Byrd, an expert in the field of firearm evidence examination, testified that the

gun was not considered to have a “hair trigger.” A “hair trigger” requires less than two

pounds of pressure to fire. He stated that the gun in question required seven pounds of

pressure to fire. On cross-examination, Byrd admitted that the gun could have fired if two

people were struggling over it.

¶8.    The pathologist, Dr. Steven Hayne, testified that Shaniqua died from a single gunshot

wound to her upper chest. Testing of her blood and urine revealed a blood alcohol content

between .18 and .20 percent. Dr. Hayne also stated that Shaniqua had been exposed to

marijuana prior to her death.

¶9.    Finally, Jamie Bush, a fingerprint expert, testified that the firearm bore no identifiable

fingerprints.

¶10.   The defense rested without calling any witnesses.

¶11.   On appeal, Chinn alleges that the trial court erred in refusing two of his proposed jury

instructions because they were required to present his theory of the case that the shooting was




                                               3
an accident. The State asserts that the trial court correctly refused the instructions as Chinn

offered no proof that the shooting was an accident.

                                    Standard of Review

¶12.   On review, “[j]ury instructions are to be read together and taken as a whole with no

one instruction taken out of context.” Austin v. State, 784 So. 2d 186, 192 (Miss. 2001). “A

defendant is entitled to have jury instructions given which present his theory of the case,

however, this entitlement is limited in that the court may refuse an instruction which

incorrectly states the law, or is without foundation in the evidence.” Howell v. State, 860 So.

2d 704, 745 (Miss. 2003) (citing Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)). “We

will not find reversible error ‘where the instructions actually given, when read together as

a whole, fairly announce the law of the case and create no injustice.’” Adkins v. Sanders, 871

So. 2d 732, 736 (Miss. 2004) (quoting Coleman v. State, 697 So. 2d 777, 782 (Miss. 1997)).

¶13.   Furthermore, every accused has a fundamental right to have her theory of the case

presented to a jury, even if the evidence is minimal. We have held that “[i]t is, of course, an

absolute right of an accused to have every lawful defense he asserts, even though based upon

meager evidence and highly unlikely, to be submitted as a factual issue to be determined by

the jury under proper instruction of the court. This Court will never permit an accused to be

denied this fundamental right.” O’Bryant v. State, 530 So. 2d 129, 133 (Miss. 1988) (citing

Ward v. State, 479 So. 2d 713 (Miss. 1985); Lancaster v. State, 472 So. 2d 363 (Miss.

1985); Pierce v. State, 289 So. 2d 901 (Miss. 1974)). This Court recently has stated that

“[w]e greatly value the right of a defendant to present his theory of the case and ‘where the

                                              4
defendant’s proffered instruction has an evidentiary basis, properly states the law, and is the

only instruction presenting his theory of the case, refusal to grant it constitutes reversible

error.’” Phillipson v. State, 943 So. 2d 670, 671–72 (Miss. 2006) (citing Adams v. State, 772

So. 2d 1010, 1016 (Miss. 2000)).

                                          Discussion

¶14.   First, we must determine whether Chinn’s proposed instruction properly stated the

law. Miss. Code Ann. § 97-3-17 (Rev. 2006) provides in relevant part:

       The killing of any human being by the act, procurement, or omission of
       another shall be excusable:

       (a) When committed by accident and misfortune in doing any lawful act by
       lawful means, with usual and ordinary caution, and without any unlawful
       intent;

       (b) When committed by accident and misfortune, in the heat of passion, upon
       any sudden and sufficient provocation;

       ....

At trial, Chinn offered proper instructions, which tracked the language contained in

subsections (a) and (b) as cited above.

¶15.   Second, we examine whether the given jury instructions covered Chinn’s theory of

the case. The State gave two instructions setting forth the elements of both murder and

manslaughter. While both instructed the jury concerning self-defense, neither included an

exception for an accidental shooting under Miss. Code Ann. § 97-3-17. Therefore, Chinn’s

accident theory of the case was not sufficiently covered by other instructions. See Adkins,

871 So. 2d at 736.

                                              5
¶16.   Finally, we look at whether there was sufficient foundation in the evidence for an

accident instruction. The State is incorrect in its assertion that there was no evidentiary

foundation supporting the defendant’s accident theory. Even though Chinn did not present

evidence on his behalf, sufficient evidence was elicited from the State’s presentation of the

case to support the defendant’s theory. Neither of the two eyewitnesses could see inside the

vehicle, and both testified that Chinn did not have a gun before he reached into the car. They

also testified that after Mrs. Chinn was shot, the defendant tried to resuscitate her, pleading

with her not to die.

       Defense Counsel:      After Ms. Chinn was on the ground what did you see?

       Mrs. Patterson:       I saw him laying on top of her. And he was begging her
                             not to die, please say something. He was pumping her
                             chest . . . he was trying to save her.

       ....

       Defense Counsel:      Was he crying?

       Mrs. Patterson:       Yes, sir.

       Defense Counsel:      Okay. Was there any other statements coming from his
                             mouth that you recall?

       Mrs. Patterson:       Just, Shaniqua, please don’t die.

       ....

       Mr. Patterson:        Shaniqua was already out on the ground when I got
                             around there. Noah was on top of her crying. He was
                             saying, baby, don’t leave me. That’s when I got on the
                             phone and started talking with the dispatch. He stayed
                             over with Shaniqua until the cops got there.


                                              6
According to both witnesses, Chinn lay on top of his wife, crying, until the police arrived.

Other than the foregoing, Chinn made no other statements at the scene after the shot was

fired.

¶17.     The physical evidence, although minimal, also could support Chinn’s theory that the

shooting was an accident. Sergeant Morris testified that the weapon used was the type that

automatically feeds another bullet into the chamber after being fired, so that it is instantly

“ready to fire again,” and later agreed on cross-examination that Shaniqua Chinn was found

with only one gunshot wound. The State’s expert witness, Steve Byrd, testified on cross-

examination that although the gun in question was not classified as a “hair trigger,” it was

possible that the seven pounds of pressure needed to fire the gun could have been exerted by

Chinn pulling the gun in one direction and Shaniqua pulling it in another. Finally, the

fingerprints on the gun could not be identified as belonging to either Chinn or his wife. This

evidence, along with the eyewitness testimony of the facts surrounding the shooting, could

lead reasonable jurors to conclude that this was indeed an accidental shooting.

¶18.     Chinn was entitled to have his theory of the case submitted to the jury under proper

instruction of the court. Denial of this fundamental right is grounds for reversal. As this

issue is dispositive, there is no need to discuss Chinn’s other claims on appeal.

¶19.     Accordingly, this case is reversed and remanded for a new trial consistent with this

opinion.

¶20.     REVERSED AND REMANDED.




                                              7
    WALLER, P.J., GRAVES, DICKINSON AND LAMAR, JJ., CONCUR.
EASLEY, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
SMITH, C.J., CARLSON AND RANDOLPH, JJ.

       EASLEY, JUSTICE, DISSENTING:

¶21.   Based on the evidence actually contained in the record, Noah Brent Chinn’s

conviction and sentence should be affirmed. Not only has the majority muddled the actual

facts in the record with its speculation and hypothesizing, the majority also has completely

muddled the law in its application to the facts advanced in its opinion. Today’s decision

should be of interest to every attorney who practices criminal law in Mississippi, as the

majority now vastly opens the door for when an accident instruction is required. Accordingly,

based on the evidence presented in this case and the current law, I am compelled to dissent

with the direction the majority now takes.

¶22.   Chinn contends that the trial court erred in refusing proposed jury instructions D-3 and

D-5, arguing that the instructions were required to be given because they set forth his theory

that the shooting was an accident. The State asserts that the trial court correctly refused the

instructions because there was no proof that the shooting was an accident. Chinn admits in

his brief that the evidence supporting a jury instruction on the accidental discharge of the gun

“was admittedly thin.”      However, the record reveals that there is no evidence that

demonstrated that the shooting was accidental. While Chinn admittedly was not required to

present any evidence or testify in order to be entitled to an accident instruction, I note that

the defense rested without calling any witnesses and Chinn did not testify at trial At the very




                                               8
least, Chinn was required to point out sufficient evidence presented in the State’s case-in-

chief which would justify the trial court’s grant of an accident instruction.

¶23.   A detailed analysis of the facts of this case demonstrates that no evidence was

presented supporting an accidental jury instruction. The State called Latonsia Patterson, a

friend of Chinn and the decedent, Shaniqua, to testify. Shaniqua and Chinn, collectively “the

Chinns,” came to Latonsia’s house at about 2:00 a.m. on July 31, 2004. The Chinns were

“arguing and fussing.” According to Latonsia’s testimony, her husband, Jerry Patterson,

opened the door and tried to separate the Chinns from each other. Shaniqua jumped into the

Chinns’ car; she cranked it up; and she started to leave. Chinn then ran around the back end

of the car, causing Shaniqua to drive through the fence. Chinn tried to stop Shaniqua from

leaving.

¶24.   Latonsia testified that she saw Chinn reach inside the car with his right hand. She

then said she saw a flash of light and heard a gunshot. Latonsia could not see if Chinn and

Shaniqua had been struggling over a gun. She saw that Chinn was holding a gun, which he

later tossed over the fence. After he tossed the gun over the fence, he went back to Shaniqua

and pulled her out of the car. Shaniqua stood up and took one deep breath as she fell.

Latonsia testified that Shaniqua appeared to have a “hole in her chest.” Chinn lay on top of

her, begging her not to die. After Chinn tossed the gun over the fence, he yelled to call the

police. Latonsia testified on redirect that she did not hear Chinn tell Shaniqua that it was an

accident.




                                              9
¶25.   Latonsia’s husband, Jerry, testified. Jerry testified that the Chinns arrived at his house

at approximately 1:45 a.m. on the morning of July 31, 2004. Jerry corroborated Latonsia’s

testimony regarding the Chinns’ arrival, their arguing, and Shaniqua’s attempt to leave.

When Jerry pulled Chinn back to separate him from Shaniqua, Shaniqua made a run for the

Chinns’ car. Shaniqua got inside the car and cranked it. As she started to leave, Chinn then

ran toward the car going behind the car. Shaniqua drove into the fence as she tried to back

up in order to leave. Chinn reached his arm inside the car’s window on the driver’s side.

Jerry testified that he saw Chinn with both his arms inside the car. Jerry testified that he

could not see any struggle over a gun before it fired.

¶26.   Jerry testified that he saw Chinn’s arm “come up” and then “heard a shot.” He stated

that Chinn’s arm jerked when the gun fired. Jerry testified that his wife had a better view of

the Chinns than he had. By the time Jerry could reach Shaniqua, Chinn had already pulled

her from the car and was on top of her crying. He heard Chinn saying, “Baby don’t leave

me.” Chinn remained on top of her until the police arrived and secured the scene.

¶27.   Sergeants Robert Morris and Ken Williams of the Laurel Police Department worked

the crime scene.1 Chinn informed the police that the gun had been thrown over the fence.

Sergeant Williams located the gun, a Larson .380 caliber semi-automatic, approximately

forty to fifty feet from Shaniqua’s body. Sergeant Morris testified that he processed the




       1
           Sergeant Morris was a criminal investigator on July 31, 2004.

                                              10
scene and secured the gun. The gun’s clip or magazine was located a couple of feet away

from the gun.

¶28.   Sergeant Morris testified the gun had a safety switch which had to be compressed

upward to enable the gun to fire. Sergeant Morris testified that in order to make the clip

come out of the gun, an individual would have to press a release at the bottom of the gun’s

handle. Sergeant Morris demonstrated to the jury how the safety switch operated. He further

demonstrated that the gun would not fire with the safety switch turned on, pulling the trigger.

Sergeant Morris had the Bureau of Alcohol, Tobacco, and Firearms (ATF) check the gun’s

registration, revealing that the gun was registered to Chinn.

¶29.   Steve Byrd of the Mississippi Crime Lab, an expert in the field of firearm evidence

examination, testified that the gun was not considered to have a “hair trigger.” Byrd was

called as an expert to testify as to trigger pressure of the gun in question. Byrd stated that the

pressure is measured by using trigger pull weights, which are increased in amount until the

gun discharges. The gun in question required seven pounds of pressure to fire. Byrd further

stated that a gun requiring less than two pounds of pressure to fire would be classified as a

gun with a “hair trigger.” Therefore, the gun that Byrd examined would not be classified as

having a “hair trigger.” Byrd further testified that the federal government does not have a

standard requirement for the amount of force necessary to fire a handgun.

¶30.   Dr. Steven Hayne, pathologist, testified that Shaniqua died from a single gunshot

wound to her upper chest. He stated that her exact cause of death was internal bleeding. The

blood alcohol content level from testing Shaniqua’s urine revealed that she had BAC level

                                               11
of .20 percent. Shaniqua’s blood specimen revealed that her BAC level was .18 percent. Dr.

Hayne further stated that her fluids showed that she had been exposed to marijuana prior to

her death.

¶31.   Jamie Bush, an expert in latent prints employed by the Mississippi Crime Lab,

testified that he examined the gun for fingerprints. However, the gun did not have any

fingerprints with enough ridge detail for him to identify them. Bush testified that in only

approximately eight to ten percent of firearms he examined did he find identifiable

fingerprints.

¶32.   The following exchange as to jury instruction D-3 transpired:

       State:        This is an accident instruction. Again, there’s no evidence that
                     justifies giving it. . . .

       Defense:      [T]he State must prove that each – the State must prove that it
                     was not an accident. And we feel like that the accident
                     instructions would instruct the jury to that effect.

       State:        [T]he State doesn’t have to prove in a murder case that it was
                     not an accident. We have to meet the elements of murder. If
                     they want to carry that burden, they can go forward. And they
                     hadn’t presented a scintilla – . . . .

       The Court:    [T]his time it will be refused because there’s no evidence to that
                     effect in this case.

¶33.   As to jury instruction D-5, the record reveals the following exchange:

       The Court:    There’s no evidence in this case that it was an accident, so
                     therefore, the Court can’t allow the jury to infer from any of the
                     – there’s no evidence in this case that the jury can even infer
                     that it was an accident.




                                             12
       Defense:      Well, I think, Your Honor, with all due respect, the actions of
                     the defendant after he pulled her out of the car trying to bring
                     her back – trying to resuscitate her, which is uncontradicted, his
                     emotional state and everything, it goes to show that he was
                     trying to save her. And I think that that [sic] is absolutely an
                     easy inference for the jury to make that this was an accident
                     from that type of evidence.

       The Court:    Be overruled. Be refused.

(Emphasis added). As stated above, Chinn’s trial counsel discussed Chinn’s efforts to revive

Shaniqua after she was shot only when objecting to refusal of the jury instruction.

¶34.   The majority focuses on Byrd’s testimony. When the record is reviewed, Byrd

actually testified to the defense’s hypothetical questions. Byrd testified as follows:

       Q:     Now, let me ask you this, if there were an opposite force, let’s say that
              you were holding that gun and I was holding that gun with my finger
              on the trigger and you were pulling one way and I was pulling the other
              way, would the force then go down to three and a half pounds to pull
              the trigger, assuming that we were both exerting the same force on the
              firearm?

       A:     It would take you seven pounds of pressure to that trigger in a rearward
              motion for it to discharge. You could either pull that trigger yourself
              and or you could hold that gun and push that trigger. Seven pounds is
              going to be seven pounds of pressure. It’s moving the trigger to the
              rear no matter which direction you move it from. Now, if I could
              control three and a half pounds and you could control three and a half
              pounds, together we’ve got seven pounds. As long as that seven
              pounds of pressure is going towards that trigger and forcing that trigger
              to the rear, yes, it would discharge.

       Q:     So[,] if you were pulling the three and a half and I was pulling the three
              and a half in opposite directions directly affecting that trigger, it would
              go off if it equaled greater than seven pounds?

       A:     If you are pulling in opposite directions[,] it’s not going to move three
              and a half pounds.

                                              13
       Q:     I’m saying if I takes [sic] seven – you just basically testified that if you
              had three and a half pounds controlled going one way and I had three
              and a half pounds controlled going the other way, that together we’ve
              got seven ponds [sic] and that would cause the trigger to go off?

       A:     No [sic] going in opposite directions. If I were pulling three and a half
              pounds and you were pushing three and a half pounds in the same
              direction[,] it’s the same direction. It’s still seven pounds, not in
              opposite directions, because three and a half pounds in opposite
              directions gives you nothing.

                                             ***

       Q:     I want to know – do you have that gun or is it up here?

       A:     It’s right there.

       Q:     All right. It’s not going to go off. We all know that. If I’m holding
              this gun like this and you pull on it that way and my finger is right there
              or if it’s caught on something or if there is a mechanism, a finger,
              anything inside that trigger mechanism right there and that guns [sic]
              gets pulled this way by you, that’s necessarily going to cause me to put
              some pounds of pressure on this trigger?

       A:     That’s a different question. And, yes, that is possible.

¶35.   From the testimony stated above, Chinn contends that Byrd testified that the gun could

have been discharged accidentally.       However, Byrd did not testify that the gun was

accidentally discharged. Byrd simply answered a hypothetical question, which was not based

on any facts in the record or testified to by any witness in the case. No testimony from any

witness was presented at trial that Chinn and Shaniqua both pulled on the gun’s trigger. The

two eyewitnesses, the Pattersons, could not see the gun before it was fired from where they

were standing. Only two people, Chinn and Shaniqua, could have seen the gun before it was




                                              14
fired, and Shaniqua died at the scene from the gun shot. Further, no physical evidence

supported the hypothetical questions.

¶36.   Even on appeal, Chinn does not specify any other testimony or evidence in support

of his theory that this was an accidental shooting. The only evidence that we have is that

Chinn and Shaniqua came to the Pattersons’ home, fighting. When Jerry Patterson tried to

talk to Chinn, Shaniqua ran to the Chinns’ car and tried to leave. As she backed away, Chinn

reached into the car, and Shaniqua was shot. The Pattersons testified that Shaniqua ran to

the car and attempted to back away when Chinn ran towards the car and reached in, causing

Shaniqua to run over their fence. They testified that a gun fired, and Chinn then tossed the

gun over a fence before the police arrived at the scene.

¶37.   The jury convicted Chinn of the manslaughter of his wife, Shaniqua. Miss. Code Ann.

§ 97-3-35 (Rev. 2006) defines manslaughter as follows:

       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, shall be manslaughter.

(Emphasis added).

¶38.   “This Court does not review jury instructions in isolation.” Adkins v. Sanders, 871

So. 2d 732, 736 (Miss. 2004) (citing Jackson v. Daley, 739 So. 2d 1031, 1037 (Miss. 1999)).

“Jury instructions are to be read together and taken as a whole with no one instruction taken

out of context.” Austin v. State, 784 So. 2d 186, 192 (Miss. 2001) (citing Humphrey v.

State, 759 So. 2d 368, 380 (Miss. 2000)). “A defendant is entitled to have jury instructions

given which present his theory of the case, however, this entitlement is limited in that the

                                             15
court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere

in the instructions, or is without foundation in the evidence.” Howell v. State, 860 So. 2d

704, 745 (Miss. 2003) (citing Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)) (emphasis

added); see Adkins, 871 So. 2d at 740 (“There is insufficient evidence to support this

instruction. In fact, the overwhelming evidence . . . is just the opposite.”) (emphasis added);

see also Austin, 784 So. 2d at 193. “We will not find reversible error ‘where the instructions

actually given, when read together as a whole, fairly announce the law of the case and create

no injustice.'" Adkins, 871 So. 2d at 736 (quoting Coleman v. State, 697 So. 2d 777, 782

(Miss. 1997)).

¶39.   The Court of Appeals in Robinson v. State, 726 So. 2d 189, 194 (Miss. App. 1998),

correctly affirmed the trial court’s denial of an accident instruction where the evidence did

not support the instruction. The court provided instructive language that is helpful when

reviewing the trial court’s denial of an accident instruction, stating:

       Without further evidentiary basis to support Robinson's theories of
       self-defense and accident, the instructions were properly denied. Simply
       saying that you shot in self defense or that the shooting was an accident in and
       of itself does not provide a defendant with an automatic right to instructions
       thereon. The defendant's testimony or other evidence must provide an
       evidentiary basis for the same. There was none here.

Id. at 194 (emphasis added).

¶40.   I find that the trial court did not err in refusing jury instructions D-3 and D-5. Since

the record does not reveal that there was sufficient evidence to support a theory that the gun




                                              16
discharged accidentally, the trial court’s refusal of jury instructions D-3 and D-5 was proper

and should be affirmed.

¶41.   For the foregoing reasons, I find that the trial court did not commit any reversible

error. Accordingly, I would affirm the judgment of the Circuit Court of the Second District

of Jones County, Mississippi.

       SMITH, C.J., CARLSON AND RANDOLPH, JJ., JOIN THIS OPINION.




                                             17
