      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01758-COA

DILLARD HARVEY A/K/A DILLARD C.                      APPELLANT
HARVEY A/K/A DILLARD CHANNING
HARVEY A/K/A HARVEY DILLARD A/K/A
MITCHELL BEARD A/K/A MICHAEL TOWNS
A/K/A MICHAEL ANTHONY TOWNES

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              02/08/2013
TRIAL JUDGE:                   HON. JEFF WEILL SR.
COURT FROM WHICH APPEALED:     HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:        OFFICE OF STATE PUBLIC DEFENDER
                               BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: SCOTT STUART
DISTRICT ATTORNEY:             ROBERT SHULER SMITH
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I,
                               MANSLAUGHTER, AND SENTENCED AS
                               A HABITUAL OFFENDER TO TWENTY
                               YEARS, WITH AN ADDITIONAL TEN
                               YEARS AS A SENTENCE ENHANCEMENT
                               FOR THE DISPLAY AND USE OF A
                               FIREARM BY A CONVICTED FELON
                               DURING THE COMMISSION OF A
                               FELONY, AND COUNT II, FELON IN
                               POSSESSION OF A FIREARM, AND
                               SENTENCED TO TEN YEARS, WITH ALL
                               SENTENCES TO RUN CONSECUTIVELY,
                               WITHOUT THE POSSIBILITY OF
                               PROBATION, PAROLE, REDUCTION, OR
                               SUSPENSION, ALL IN THE CUSTODY OF
                               THE MISSISSIPPI DEPARTMENT OF
                               CORRECTIONS
DISPOSITION:                                AFFIRMED IN PART; REVERSED AND
                                            RENDERED IN PART: 10/13/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE, CARLTON AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    Dillard Harvey broke up two auto burglaries in one day. He might have been regaled

as a hero had he not shot the second burglar in the back as he retreated, begging for his life.

Harvey was tried for murder and convicted of manslaughter as well as being a felon in

possession of a firearm. We affirm those convictions and sentences, but we reverse and

render an additional firearm enhancement since Harvey was sentenced as a habitual offender

for the underlying crime.

                                           FACTS

¶2.    Harvey was on his second date with Felita Brown. As the evening was winding down

and Harvey was taking Brown back to her vehicle, he spotted some young men breaking into

his son’s car. Harvey apprehended one, and Brown accompanied him to the police station.

Harvey then took Brown back to her home, and, it being quite late by that point, went to sleep

on Brown’s couch. Early that morning, he awoke to the sounds of Aaron Yates, a former

boyfriend of Brown’s, beating on her door and breaking into her car.

¶3.    According to Brown, Harvey told her to call the police. He then armed himself with

a revolver he had been carrying and went to the door. He and Yates began fighting over the

gun on the porch, with Harvey eventually getting the upper hand. Harvey, in control of the

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gun, was “stomping” on Yates while Yates was kicking up at him when Brown went back

inside. She did not see what happened next, but the last thing she heard Yates say was:

       Man, I promise to God if you let me go I’ll never come back around here
       again.

The pleas were followed by a gunshot. Harvey came back inside and said he had shot Yates

accidentally. When Brown went outside she saw Yates lying in the driveway, face up.

¶4.    A neighbor testified that she heard Yates screaming that he was going to leave and

begging Harvey to stop. She saw Harvey – who was much larger and stronger – beating

Yates about the head with a gun and dragging him around on the porch. Yates was trying to

get away, but Harvey would not let him. Yates did eventually get loose, and he retreated,

with his hands up, begging for his life. Harvey shot Yates and then turned to the neighbor

and asked, “What have I done?” Harvey went back into the house, and Yates repeatedly

cried for help before succumbing to his wounds.

¶5.    Harvey testified in his own defense. He claimed that the gun belonged to Yates and

that Yates was threatening him with it and demanding to know who he was, apparently out

of romantic jealousy. According to Harvey, he was the one offering to leave and asking not

to be shot, and the gun went off accidentally while he wrestled with Yates in self-defense.

                                     DISCUSSION

       1. Firearm Sentence Enhancement

¶6.    Because Harvey was sentenced for manslaughter as a habitual offender, Mississippi

Code Annotated section 99-19-81 (Supp. 2014) required that he receive the maximum

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sentence, twenty years. The trial court also sentenced Harvey to an additional ten years under

the enhancement for the display or use of a firearm while committing the felony, under

section 97-37-37(2) (Rev. 2014). However, that section provides that it is applicable only

“except to the extent that a greater minimum sentence is otherwise provided by any other

provision of law.” Id.

¶7.    In Harris v. State, 99 So. 3d 169, 174 (¶26) (Miss. 2012), the Mississippi Supreme

Court held that the mandatory maximum penalty provided by the habitual offender statute

is “a greater minimum sentence . . . otherwise provided by any other provision of law.”

¶8.    In today’s case, the State concedes that Harris is controlling and that under Harris

Harvey was erroneously sentenced to the firearm enhancement. It argues that this Court

should reconsider Harris, but we are not in a position to overrule a recent, unanimous

decision of the Mississippi Supreme Court.

¶9.    We reverse and render Harvey’s ten-year sentence under the firearm enhancement.

       2. Testimony of Forensic Pathologist

¶10.   Dr. Adel Shaker, a forensic pathologist, testified about Yates’s injuries. Yates had

numerous contusions, abrasions, and lacerations, including a significant laceration to the

head consistent with being struck by a gun barrel. He died from a gunshot wound to the

back, with the absence of gunshot residue and burns indicating that the bullet was fired from

more than two and one-half feet away. Dr. Shaker described the trajectory of the bullet as

traveling through Yates’s body “from back to front, from down upwards, from the bottom


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to the top[,] and from the right to the left.” Photographs of the body were introduced into

evidence showing the entry and exit positions of the bullet. Over repeated defense objections

alleging that the testimony was speculative, Shaker was also asked as to the body position

of the victim when he was shot. Shaker testified:

       Q.      Do you have any expert opinion as to the body position Mr. Yates was
               in when the bullet penetrated his body?

       BY [THE DEFENSE ATTORNEY]: Objection, Your Honor.

       BY THE COURT: Overruled.

       A.      Basically, the shooter was behind him. And while he was shot, he was
               just ducking and kneeling down forward because during this position,
               this is the only explanation. The gunshot wound enter here and exit
               there (indicating). And the shooter was behind him. There is no
               alternative explanation and I imagine that you can imagine what has
               been happening at that time. The shooter is in the back.1

¶11.   First of all, we note that the objection at trial was to the question, while the objection

on appeal is to the answer that was given, which went beyond the question to encompass not

only the position of the victim’s body, but its position relative to its surroundings and relative

to the shooter. “An objection to a proper question does not reach an answer that is not

responsive or is otherwise objectionable . . . .” 88 C.J.S. Trial § 216 (2012). “[I]ssues not

presented to the trial court for lack of contemporaneous objection are procedurally barred,

and error, if any, is waived.” Goff v. State, 14 So. 3d 625, 654-55 (¶118) (Miss. 2009)



       1
        Dr. Shaker apparently stood up and leaned over to demonstrate, as was noted by the
attorneys and the trial judge during a subsequent discussion.

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(citation omitted).

¶12.   Otherwise, Harvey’s argument is cursory. Other than simply asserting that the

testimony was speculative, Harvey relies exclusively on Edmonds v. State, 955 So. 2d 787

(Miss. 2007), which he argues stands for the proposition that a forensic pathologist can never

testify as to the relative positions of the shooter and the victim. But in that case, the

pathologist testified that – for reasons he did not disclose – he believed it was more likely

there had been two people holding the murder weapon rather than just one. Id. at 791-92

(¶7). The supreme court cited this Court with approval when we had observed that “you

cannot look at a bullet wound and tell whether it was made by a bullet fired by one person

pulling the trigger or by two persons pulling the trigger simultaneously,” and it faulted the

pathologist in that case for apparently testifying otherwise. Id. at 792 (¶7). The court did not

hold that a pathologist can never testify to the relative positions of the victim and shooter,

and Harvey offers no real argument or analysis of that question. Notwithstanding the

procedural bar we find no merit to this issue.

       3. Denial of Recross

¶13.   Dr. Shaker’s testimony that we addressed above was offered on redirect. During

direct examination, the trial judge had sustained objections to similar questions based on a

failure of the prosecution to create a foundation. After the redirect, Harvey asked for a

recross to examine the issue of the victim’s position, but the trial court denied it after noting

that – although he may not have gone into the same detail – Dr. Shaker had made the same


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demonstration during direct examination.

¶14.   On appeal, Harvey argues that the question about the victim’s body position was

beyond the scope of the cross-examination and that the trial court therefore abused its

discretion in denying the recross. We review the trial court’s denial of recross-examination

for an abuse of discretion. Hubbard v. State, 437 So. 2d 430, 434 (Miss. 1983).

¶15.   It is difficult to analyze this issue since the trial court based its decision on gestures

or demonstrations Dr. Shaker had made during direct and cross-examinations, which were

not made part of the record on appeal. But we are of the opinion that, if the question or

answer were beyond the scope of cross-examination, as Harvey contends, he had a duty to

contemporaneously object on that basis. Harvey objected to the question on the (unspecified

contemporaneously, though previously argued) grounds that its answer would be speculative,

but he did not object to the answer. The failure to object or the “[o]bjection on one ground

at trial waives all other grounds for objection on appeal.” Rubenstein v. State, 941 So. 2d

735, 758 (¶75) (Miss. 2006).

¶16.   Having failed to contemporaneously object to the question as beyond the scope of

cross-examination, Harvey cannot argue the trial court abused its discretion in denying

recross.

       4. Instructions S-6 and D-14

¶17.   Harvey claimed he only possessed the gun for a few moments after he took it from

Yates. At trial, Harvey offered an instruction, D-14, which would have instructed the jury


                                               7
that self-defense was a defense to the charge of felon in possession of a firearm, while the

State offered S-6, which stated that it was not. The trial court refused D-14 and gave S-6.

¶18.   On appeal, Harvey concedes that self-defense is not a viable defense to possession of

a firearm by a convicted felon. Williams v. State, 953 So. 2d 260, 263 (¶8) (Miss. Ct. App.

2006). But he asserts that necessity is a defense and that the trial court’s giving an

instruction on self-defense was misleading.

¶19.   Harvey did not make this argument in the trial court, and he did not, in fact, even

request a necessity instruction. He cannot complain that S-6, which accurately stated the law,

was misleading to a defense he did not even ask be submitted to the jury. It is well-settled

law that “error cannot be predicated on failure of the court to give an instruction that was not

requested.” Blocker v. State, 809 So. 2d 640, 646 (¶23) (Miss. 2002). We find no merit to

this issue.

       5. Demonstration

¶20.   Finally, Harvey contends that the trial court abused its discretion in requiring defense

counsel to repeat a demonstration with Harvey (defense counsel played Yates) that had been

made during direct examination when he testified in his own defense. Harvey subsequently

made a motion for a mistrial, which was denied, where he argued that this undermined

defense counsel’s credibility before the jury and made it appear as if defense counsel was a

witness for the prosecution. The trial judge observed that the demonstration had been brief

and inoffensive.


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¶21.   As the State points out, Harvey’s defense counsel chose to participate in the

demonstration, and Harvey presents no real authority supporting his arguments on this point.

We find no merit to this issue.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF
CONVICTION OF COUNT I, MANSLAUGHTER, AND SENTENCE AS A
HABITUAL OFFENDER OF TWENTY YEARS AND COUNT II, FELON IN
POSSESSION OF A FIREARM, AND SENTENCE OF TEN YEARS, WITH THE
SENTENCES TO RUN CONSECUTIVELY, WITHOUT THE POSSIBILITY OF
PROBATION, PAROLE, REDUCTION, OR SUSPENSION, ALL IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. THE
TEN-YEAR SENTENCE ENHANCEMENT FOR THE DISPLAY AND USE OF A
FIREARM BY A CONVICTED FELON DURING THE COMMISSION OF A
FELONY IS REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HINDS COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
MAXWELL, JAMES AND WILSON, JJ., CONCUR.




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