                      IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2008-KA-00845-SCT

STEADMAN DAVIS a/k/a STEADMAN ALLEN
DAVIS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          03/12/2008
TRIAL JUDGE:                               HON. W. SWAN YERGER
COURT FROM WHICH APPEALED:                 HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    M ISSISSIPPI OFFICE OF INDIGENT
                                           APPEALS
                                           BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                         ROBERT SHULER SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED IN PART AND REVERSED AND
                                           REMANDED IN PART - 10/08/2009
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE CARLSON, P.J., DICKINSON AND PIERCE, JJ.

       CARLSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Steadman Davis was convicted by a jury of motor-vehicle theft1 and felony possession

of a firearm 2 in the Circuit Court of the First Judicial District of Hinds County. Davis was


       1
           See Miss. Code Ann. § 97-17-42(1) (Rev. 2006).
       2
       Steadman Davis has a prior felony conviction for conspiracy to sell cocaine.
Mississippi Code Section 97-37-5 (Rev. 2006) provides, inter alia, that “[i]t shall be
unlawful for any person who has been convicted of a felony . . . to possess any firearm.”
sentenced to consecutive sentences of five years for the motor-vehicle-theft conviction and

three years for the firearm-possession conviction. In today’s appeal, Davis asserts that he

was denied crucial jury instructions and that the convictions should be reversed based on the

lack of evidence supporting the jury verdicts of guilty. Finding error as to the motor-vehicle-

theft conviction, we affirm in part and reverse in part, and remand for a new trial on the

charge of motor-vehicle theft.

               FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2.    On May 21, 2006, the Jackson Police Department received a domestic-disturbance call

and was dispatched to 233 Redwood Avenue to a house owned by Laquita Simpson. Upon

arrival, the responding officer learned that gunfire had been exchanged between Deborah

Wright (Simpson’s mother) and Wright’s ex-boyfriend, Steadman Davis.

¶3.    Wright and Davis had dated and lived together at Wright’s home (214 Queen Anne

Lane) for several months prior to the events which generated today’s appeal. Earlier in May,

an incident had been reported in which there had been a physical fight between Wright and

Davis, which resulted in Wright moving out of her home to live with her daughter, Laquita

Simpson, leaving Davis in Wright’s home. Davis claimed that, although he continued to live

at the Queen Anne Lane house, he was in the process of moving out. Davis alleged that, after

the earlier fight between Wright and Davis, Wright’s relatives began to threaten him. On the

other hand, Wright alleged that after she moved out, Davis began to make harassing

telephone calls to her and threatened to harm her and/or members of her family. Wright




                                              2
further asserted that Davis drove past her daughter’s house at least twice daily while she was

staying there.

¶4.    Not surprisingly, the events of May 21, 2006, are hotly disputed. Davis claimed that

he was tricked into going to Simpson’s house and, once there, was ambushed. Wright,

however, claimed that Davis threatened her and kidnapped her brother, Cornelius Wells,

eventually bringing her brother to Simpson’s house where a shoot-out occurred.

¶5.    Davis alleged that he was at the Queen Anne Lane house, gathering some of his

clothing, when Wells arrived at the house. According to Davis, when Wells arrived, Davis

was on his cell phone talking with Irene Shepard, a Hinds County deputy sheriff whose car

Davis had borrowed to go to the house and get his belongings. Davis stated that, due to the

fact that he was being harassed by Wright’s family, he was scared that Wells might harm

him, so he asked Deputy Shepard to remain on the other end of the call.3

¶6.    According to Davis, Wells told him that he wanted the dispute between Davis and

Wright’s family to be resolved and asked him to get in Wells’s vehicle with him, so they

could drive to Simpson’s house and get everything cleared up. According to Davis, Wells

then drove Davis to Simpson’s house. Davis claimed that just before they arrived at

Simpson’s house, Wells told him that he (Davis) might get hurt because of what was going

on and that nothing would happen to anyone who hurt him. Davis also claimed that, at this

point, he realized he was in trouble.



       3
           Deputy Shepard corroborated Davis’s story in her trial testimony.

                                               3
¶7.       Davis stated he was about to jump out of the vehicle, but they had already arrived at

Simpson’s house. He claimed that when they arrived, Wells jumped out of the vehicle and

ran to hide behind a tree while shouting “Shoot him!” Deputy Shepard, whose call was still

connected on Davis’s cell phone, claimed that she heard someone yell “Kill him,” and then

what sounded like firecrackers, though she suspected it was gunfire. Davis claimed that after

Wells jumped out of the vehicle, Wright appeared on the porch. Davis stated he was out of

the vehicle and beginning to run when Wright fired a gun, shooting him in the left buttock.

Davis then fired three shots toward the house, allegedly for “cover” so that he could run

around to the driver’s side of Wells’s vehicle. Davis then got into Wells’s vehicle and drove

off, claiming that he had no choice; he could either take Wells’s vehicle and leave or stay and

get shot. Since he was not familiar with the neighborhood, Davis accidentally drove to a

dead-end street. He stopped there and put some tissue in his wound, then used Wells’s cell

phone to call Deputy Shepard. He told her what had happened but asked her not to call the

police.

¶8.       In order to get out of the neighborhood, Davis got back into the vehicle and drove

back the way he had previously driven. He claimed that as he drove past Simpson’s house,

he saw people running, but he did not see a police car. Davis did not stop, but continued to

drive with the intention of going to his cousin’s house to be taken to the hospital. However,

between fleeing the scene and going to his cousin’s house, Davis stopped by Deputy

Shepard’s house to return the key to her car. Deputy Shepard stated Davis told her that he




                                                4
had been shot and that he had to go. Davis claimed that he was on his way to his cousin’s

house when he was apprehended by police.

¶9.    According to Wright, on May 21, 2006, her brother, Cornelius Wells, called to ask if

he could put some fish in her freezer. She told him she did not care, so he went to her house

on Queen Anne Lane. About thirty minutes later, Wells called to say he had been kidnapped

by Davis. According to Wells, when he arrived at the house on Queen Anne Lane, Davis

was sitting on the couch in his boxer shorts. Wells claimed that as he attempted to leave, he

passed by Davis again and Davis was putting on his clothes. Wells said that, at this point,

Davis pulled a gun on him and told him that if he did not take him to Wright he would kill

him. Wells then used his cell phone to call Wright to tell her that Davis had him, and that

Davis was demanding that she meet him on Flag Chapel Road. Wells said that if she

refused, Davis was going to kill him. Wright hung up the phone. Wells claimed that Davis

then held the gun to his head and forced him to drive to where Wright was – Simpson’s

house on Redwood Avenue. Davis then allegedly forced Wells to call Wright again and

inform her that if she called the police, he would kill Wells. Wright hung up again and called

911.

¶10.   Wright claimed that she and her daughter and grandchildren were in the front

bedroom, waiting for the police to arrive, when she looked out the bedroom window and

observed Wells’s truck pull into the driveway, with Wells in the driver’s seat and Davis in

the passenger seat. She further observed Wells jumping out of the truck and running for

cover, yelling “Call the police!” Wright claimed that Davis then got out of the truck and

                                              5
came up on the porch of the house while firing into the house. Wright stated that Simpson

and her children ran to another part of the house for safety, while Wright took cover behind

a dresser in the front room. She claimed that Davis came into the house and fired a number

of shots 4 at her inside the bedroom. Wright then drew her own gun, which she had received

from her daughter while she was talking to the 911 operator, and fired at Davis, shooting him

in the buttock. Wright stated that her gun jammed and she was not able to shoot Davis again.

Wright claimed that at this point Davis ran out of the house, jumped into Wells’s truck, and

drove off, moments before the police arrived.

¶11.   Carolyn Kirkland was the responding officer, and she testified that when she arrived,

she noticed a bullet hole in the front door and Davis driving past the house. Kirkland had

been informed that Davis was armed, so she and the other officers ducked and ran for cover

when he drove by. Wright informed Officer Kirkland that Davis had been there moments

before and had “shot up in the house.” Kirkland testified that she noticed a number5 of bullet

holes in the door and walls of the house.

¶12.   Vladimir Hill, the officer who arrested Davis, testified that he did not find a weapon

in the vehicle or on Davis’s person, and that Davis had been shot in the buttock. Davis was

indicted for kidnapping, shooting into an occupied dwelling, motor-vehicle theft, and being


       4
        Wright could not remember the exact number of shots Davis fired, but she claimed
it was more than three.
       5
        At one point in her testimony, Kirkland stated there were three holes, however, later
she said there were four. There was never any clarification as to whether she saw three or
four bullet holes.

                                              6
a convicted felon in possession of a firearm. At trial, after hearing testimony from witnesses

for the State and the defendant, the jury found Davis not guilty of kidnapping and not guilty

of shooting into an occupied dwelling; however, the jury found Davis guilty of motor-vehicle

theft and of being a convicted felon in possession of a firearm. Davis now appeals to this

Court from these two convictions.

                                       DISCUSSION

¶13.   Davis asserts that the trial court erroneously denied him crucial jury instructions and

that the evidence did not support the guilty verdicts.

       I.     WHETHER DAVIS                WAS      DENIED        CRUCIAL         JURY
              INSTRUCTIONS.

¶14.   The standard of review when appellate courts consider issues involving jury

instructions is well-established. Jury instructions must be read as a whole to determine if the

instructions were proper. Milano v. State, 790 So. 2d 179, 184 (Miss. 2000). Jury

instructions must fairly announce the law of the case and not create an injustice against the

defendant. Id. This rule is summed up as follows: “In other words, if all instructions taken

as a whole fairly, but not necessarily perfectly, announce the applicable rules of law, no error

results.” Id. See Adams v. State, 772 So. 2d 1010, 1016 (Miss. 2000).

¶15.   A defendant has a right to jury instructions that present his theory of the case, but that

right is not absolute. “The court may refuse an instruction which incorrectly states the law,

is covered fairly elsewhere in the instructions or is without foundation in the evidence.”

Phillipson v. State, 943 So. 2d 670, 671 (Miss. 2006). Also, jury instructions are within the


                                               7
discretion of the trial court. Higgins v. State, 725 So. 2d 220, 223 (Miss. 1998). Finally,

when serious doubt exists as to whether an instruction should be included, the doubt should

be resolved in favor of the accused. Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss.

1992).

¶16.     Davis contends that the outcome of his trial was negatively affected because the trial

judge refused to give crucial jury instructions. He claims that, had the jury been properly

instructed, he would not have been convicted. The jury instructions in question are D-9,6




         6
             Jury Instruction Number D-9 stated:

         Evidence has been presented that the defendant acted under duress in
         committing the crime.

         “Duress” is the exercise of unlawful force upon a person whereby that person
         is compelled to do some act that he otherwise would not have done. In order
         for duress to be a defense to a criminal charge, the impelling danger must be
         present, imminent, and impending, and of such nature as to induce in that
         person a well-grounded apprehension of death or seriously bodily harm if the
         act is not done. A person having a reasonable opportunity to avoid committing
         the crime without undue exposure to death or serious bodily harm cannot
         invoke duress as a defense.

         If the State has failed to prove from the evidence in this case beyond a
         reasonable doubt that the defendant acted voluntarily in committing the crime
         and not under duress, then you shall find the defendant not guilty.

                                                   8
which included an instruction on the defense of duress for the convicted-felon-in-possession-

of-firearm charge, and D-11,7 which included an instruction on the defense of necessity for

the motor-vehicle-theft charge.

¶17.   The trial court was correct in denying Instruction D-9, the instruction on the defense

of duress for the convicted-felon-in-possession-of-firearm charge. Under our statute, it is

illegal for a convicted felon to have possession of a firearm in the state of Mississippi. Miss.

Code Ann. § 97-37-5 (Rev. 2006).8 All the evidence, including Davis’s own testimony,


       7
           Jury Instruction Number D-11 stated:

       Evidence has been presented that the defendant acted under necessity in
       committing the crime.

       In order for necessity to be a defense to a criminal charge, 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.

       If the State has failed to prove from the evidence in this case beyond a
       reasonable doubt that the defendant acted voluntarily in committing the crime
       and/or defendant prove the above elements of necessity, then you shall find the
       defendant not guilty.
       8
           The text of Section 97-37-5(1) reads:

       (1) It shall be unlawful for any person who has been convicted of a felony
       under the laws of this state, any other state, or of the United States to possess
       any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife,
       metallic knuckles, blackjack, or any muffler or silencer for any firearm unless
       such person has received a pardon for such felony, has received a relief from
       disability pursuant to Section 925(c) of Title 18 of the United States Code, or
       has received a certificate of rehabilitation pursuant to subsection (3) of this

                                               9
proves that Davis was in possession of the firearm before the events occurred. Davis

contends that the reason he had the gun in the first place was because he was being

threatened by Wright’s family, thus necessitating a duress instruction. For duress to be an

affirmative defense, four requirements must be met. The impending danger must be “present,

imminent and impending, and not to be avoided.” Ruffin v. State, 992 So. 2d 1165, 1178

(Miss. 2008). According to the United States Supreme Court, if there is a reasonable and

legal alternative to violating the law, it must be used. Also, if there is a chance to avoid the

threatened harm and refuse to do the criminal act, the defense of duress will fail. United

States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 62 L. Ed. 2d 575 (1980).

¶18.   Davis does not meet the four duress requirements. The danger was not present,

imminent and impending, and not to be avoided. Davis admittedly had been threatened, but

since the threat, Davis had not been physically harmed. He could have avoided the situation

altogether by staying away from Wright, her property, and her family. Therefore, the

evidence did not support giving a duress instruction to the jury. Nor did the refusal of the

judge to give the duress instruction create an injustice to the defendant. Since the duress

instruction was not supported by the evidence, the trial judge correctly denied the jury

instruction on duress for the felony-possession-of-a-firearm charge, and this assignment of

error is thus without merit.




       section.

Miss. Code Ann. § 97-37-5(1) (Rev. 2006) (emphasis added).

                                              10
¶19.   However, the trial court erred in denying Jury Instruction No. D-11, the necessity

instruction for the motor-vehicle-theft charge. The defense of necessity is “available where

the defendant reasonably acts out of fear of ‘imminent danger of death or serious bodily

harm’ to others.” Stodghill v. State, 892 So. 2d 236, 238 (Miss. 2005) (citation omitted).

The three components to the defense of necessity are (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. Id.

¶20.   The trial judge denied this instruction due to its wording and a lack of evidence to

support it. Thus, any attempt by counsel to correct it would have been futile. There is,

however, ample evidence that could show Davis took Wells’s vehicle for the sole purpose

of fleeing from the scene of the shootout. Davis testified that he took the vehicle because he

felt it was the only option for him to successfully leave the scene and not be shot again.

Based on the record in this case, a properly instructed jury reasonably could have found that

taking the vehicle was a reasonable action under these circumstances. “Where a person

reasonably believes that he is in danger of physical harm, he may be excused for some

conduct which ordinarily would be criminal.” Knight v. State, 601 So. 2d 403, 405 (Miss.

1992). Again, if the jury believed Davis’s testimony that he had felt he was in danger of

physical harm if he did not flee the scene, then a properly instructed jury could have found

that Davis’s belief that he was in danger of physical harm was a reasonable one, considering

the fact that he already had been shot once.



                                               11
¶21.   While there appears to be little doubt that the proposed instruction was indeed worded

incorrectly, the law presented in the proposed instruction was supported by the evidence.

Therefore, the judge should have taken affirmative action to cure the error or to inform

counsel how to cure the faulty instruction. It is the duty of the trial judge to make sure that

the jury has been properly informed about the applicable law. Duvall v. State, 634 So. 2d

524, 526 (Miss. 1994). See also Kolberg v. State, 829 So. 2d 29, 45 (Miss. 2002) (“There

is no doubt that the trial court is ultimately responsible for rendering proper guidance to the

jury via appropriately given jury instructions, even sua sponte.”). The defense of necessity

was supported by the evidence and was not mentioned anywhere else in the jury instructions.

Because it was not addressed in jury instructions, the defendant suffered an injustice. The

trial court is given considerable discretion when dealing with an issue of a refused jury

instruction on appeal, and the “primary concern on appeal is that ‘the jury was fairly

instructed and that each party’s proof-grounded theory of the case was placed before it.’”

Cohen v. State, 732 So. 2d 867, 872 (Miss. 1998) (citations omitted). The denial of this

instruction prevented Davis’s “proof-grounded theory of the case” from being presented.

¶22.   In some circumstances, the trial court’s refusal of a similar instruction would

constitute harmless error; however, that is not true in the present case. “Harmless errors are

those which in the setting of a particular case are so unimportant and insignificant that they

may, consistent with the Federal Constitution, be deemed harmless, not requiring the

automatic reversal of the conviction.” Williams v. State, 991 So. 2d 593, 599 (Miss. 2008).

The failure of the trial judge in this case to instruct the jury on the defense of necessity was

                                              12
not harmless error and could have been the difference between Davis being found guilty of

the crime of motor-vehicle theft, or not; thus denying Davis his right to a fair trial.

Therefore, Davis’s conviction and sentence for motor-vehicle theft are reversed and

remanded for a new trial.

       II.    WHETHER THE GUILTY VERDICTS WERE BASED ON
              INSUFFICIENT EVIDENCE AND/OR WERE CONTRARY TO
              LAW OR THE WEIGHT OF THE EVIDENCE.

¶23.   The trial judge denied Davis’s motion for a judgment notwithstanding the verdict, or

in the alternative, for a new trial. An appellate court is not allowed to discharge a defendant

who has been found guilty by a jury unless “given the evidence, taken in the light most

favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable

doubt that the defendant was guilty.” May v. State, 460 So. 2d 778, 781 (Miss. 1984).

“[R]eview of the sufficiency of the evidence is adequate protection from jury error or

irrationality.” Curry v. State, 939 So. 2d 785, 791 (Miss. 2006) (citing Holloman v. State,

656 So. 2d 1134, 1141 (Miss. 1995)). Therefore, as long as the evidence is sufficient to

support the jury’s verdict of guilty, a conviction cannot be overturned on insufficiency of the

evidence. Id. This Court must decide whether “after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the elements of the

crime beyond a reasonable doubt.” Curry, 939 So. 2d at 791. See also Bush v. State, 895 So.

2d 836, 843-44 (Miss. 2005).

¶24.   Allowing the conviction for convicted-felon-in-possession-of-firearm charge to stand

will not be prejudicial to the defendant. All the evidence pointed to Davis, a prior convicted

                                              13
felon, being in possession of a firearm while not under duress, a conclusion that could be

reached by any rational juror. Based on this Court’s standard of review for this issue, the

evidence is legally sufficient and supports the affirmance of the guilty verdict for felony

possession of a firearm.

¶25.   The evidence also is legally sufficient to support the motor-vehicle-theft conviction.

While it could appear to be inconsistent for the jury to find Davis not guilty of kidnapping,

but guilty of motor-vehicle theft, this is without consequence.9 This Court has stated:

       Inconsistent verdicts present a situation where “error,” in the sense that the
       jury has not followed the court’s instructions, most certainly has occurred, but
       it is unclear whose ox has been gored. Given this uncertainty, and the fact that
       the [prosecution] is precluded from challenging the acquittal, it is hardly
       satisfactory to allow the defendant to receive a new trial on the conviction as
       a matter of course.

Curry, 939 So. 2d at 791 (quoting United States v. Powell, 469 U.S. 57, 65 105 S. Ct. 471,

83 L. Ed. 2d 461 (1984)).

¶26.   In determining whether a jury verdict is supported by sufficient evidence to show the

defendant’s guilt beyond reasonable doubt, the appellate court must accept as true all

evidence presented that supports the verdict. Eakes v. State, 665 So. 2d 852, 872 (Miss.

1995). A jury verdict will be reversed only when the evidence is such that a reasonable and


       9
        On the other hand, based on today’s record, the jury reasonably could have found
that Davis was not guilty of kidnapping Wells, and that Davis did not “steal” Wells’s vehicle
to travel from the house on Queen Anne Lane to Simpson’s house on Redwood Avenue, but
that Davis was guilty of the theft of Wells’s vehicle when leaving Simpson’s house. The
problem with Davis’s motor-vehicle-theft conviction is not the sufficiency or the weight of
the evidence, but instead the failure to properly instruct the jury on the defense of necessity,
thus requiring a new trial on this charge.

                                              14
fair-minded juror could find the accused only not guilty. Harveston v. State, 493 So. 2d 365,

370 (Miss. 1986).     Since there is conflicting testimony in this case, reasonable and

fairminded jurors in the exercise of impartial judgment could reach different conclusions as

to the verdict, thus resulting in our finding that there was legally sufficient evidence to

convict Davis of motor-vehicle theft.

¶27.   Likewise, as to the weight of the evidence, based on the evidence before the Court,

as set out above, it is clear that the verdicts were not so contrary to the overwhelming weight

of the evidence that to allow them to stand would amount to the sanctioning of an

unconscionable injustice. Nelson v. State, 10 So. 3d 898, 908 (Miss. 2009) (citing Jones v.

State, 904 So. 2d 149, 154 (Miss. 2005)). See also Bush, 895 So. 2d at 844-45. This issue

is without merit.

                                      CONCLUSION

¶28.   For the reasons stated, the Hinds County Circuit Court judgment of conviction and

sentence for motor-vehicle theft (Count III) is reversed and this case is remanded to the

Circuit Court for the First Judicial District of Hinds County for a new trial consistent with

this opinion. The Hinds County Circuit Court judgment of conviction for convicted-felon-in-

possession-of-firearm (Count IV) and Steadman Davis’s sentence of three years

imprisonment in the custody of the Mississippi Department of Corrections are affimed.

¶29. COUNT III: REVERSED AND REMANDED. COUNT IV: CONVICTION OF
CONVICTED FELON IN POSSESSION OF A FIREARM AND SENTENCE OF
THREE (3) YEARS IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT IS CREDITED
FOR TIME SERVED.

                                              15
    WALLER, C.J., GRAVES, P.J., DICKINSON, RANDOLPH, LAMAR,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.




                            16
