        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-KA-00558-COA

MALCOLM JAMAL HUSBAND A/K/A                                                 APPELLANT
MALCOLM HUSBAND A/K/A JAMAL
HUSBAND

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          02/04/2015
TRIAL JUDGE:                               HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                 MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                         HALDON J. KITTRELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF MANSLAUGHTER AND
                                           SENTENCED TO TWENTY YEARS IN THE
                                           CUSTODY OF THE MISSISSIPPI
                                           DEPARTMENT OF CORRECTIONS, WITH
                                           TEN YEARS SUSPENDED, AND TO PAY A
                                           $5,000 FINE AND $2,500 IN RESTITUTION
DISPOSITION:                               REVERSED AND REMANDED - 07/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.

       BARNES, J., FOR THE COURT:

¶1.    Malcolm Husband was convicted of manslaughter and sentenced to twenty years in

the custody of the Mississippi Department of Corrections (MDOC), with ten years

suspended. After the trial court denied Husband’s motion for a new trial, he filed an appeal.
Finding that the trial court committed reversible error in the giving of a castle-doctrine jury

instruction favoring the victim, we reverse and remand for a new trial.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On November 14, 2013, Husband and his twelve-year-old stepson, Tylen Peters,

visited Husband’s elderly aunt and uncle, the McGowans, at their duplex apartment in

Columbia, Mississippi. The McGowans’ neighbors, Phylicia Stokes and Forester Crenshaw,

were sitting outside on the shared porch, celebrating Crenshaw’s birthday with a cookout and

drinks. Stokes lived at the duplex with her two children; she and Crenshaw had only been

dating one month, and he was in the process of moving in with her. When the McGowans

did not answer their door, Husband began talking with Stokes and Crenshaw. He asked for

a beer, and Crenshaw complied. Peters went back and sat in the car and was talking on his

cell phone.

¶3.    Husband soon became confrontational with Stokes over a minor dispute she had with

his aunt and uncle concerning loud noise from Stokes’s residence. Crenshaw pushed

Husband back and remarked that Husband should show Stokes respect. According to Stokes,

the two men got in each other’s faces, repeating “Now what? Now what?” to one another.

Crenshaw handed Stokes his necklace and beer that he was holding, presumably preparing

to fight. Husband turned to walk back to his car in the driveway, mumbling as he left.

¶4.    Simultaneously, Crenshaw walked to Stokes’s car and retrieved her .380-caliber

handgun from the glove box. Husband entered his car and sat down. Stokes said Husband

appeared to reach for something; Husband later testified it was his car keys that he had



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dropped. Crenshaw walked to Husband’s car, holding the gun at his side, and stood inside

the open door of Husband’s car, not allowing Husband and Peters to leave. Peters said

Crenshaw threatened to kill them.

¶5.    Mr. McGowan came outside and told Husband to leave; Husband replied to

McGowan, “I’m trying to . . . . But [Crenshaw] won’t let me leave.” McGowan did not see

either Crenshaw or Husband displaying a weapon. Crenshaw turned to face McGowan,

giving him a dirty look. When he did so, Husband grabbed a gun from his car and pointed

it at Crenshaw, who ran behind a neighbor’s car. Husband said he initially fired the gun in

the air, but when Crenshaw began firing back, he fired at Crenshaw three to four times.

Stokes, however, claimed Husband pointed the gun straight at Crenshaw. A bullet hit

Crenshaw in his lower back. Crenshaw continued to return fire, but Husband and Peters sped

off and were not injured.

¶6.    Although the paramedic who treated Crenshaw at the scene said he was “alert” and

“oriented,” Crenshaw later died at the hospital from a single gunshot wound to his back. The

autopsy report indicated the fatal shot was fired from an indeterminate remote distance.

Toxicology reports revealed that Crenshaw had marijuana and BZP, a stimulant “designer

drug,” in his blood system.1 Husband was arrested near his home shortly after the shooting.

He was also booked for felony DUI; he admitted to drinking beer before arriving at the

McGowans’ home. The police found several shell casings at the scene of the shooting – five

were from Stokes’s .380-caliber handgun. Stokes surrendered the gun to law enforcement

       1
       There was also evidence of several other narcotic drugs, but it was not clear at trial
whether these were introduced during Crenshaw’s medical treatment.

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the following morning.

¶7.    On April 15, 2014, Husband was indicted for heat-of-passion manslaughter under

Mississippi Code Annotated section 97-3-35 (Rev. 2006). After a jury trial in Marion County

Circuit Court on January 12-13, 2015, Husband was convicted and sentenced to twenty years

in the custody of the MDOC, with ten years suspended, and he was ordered to pay a $5,000

fine, court costs, and $2,500 in restitution to the victim’s family.

¶8.    On appeal, Husband alleges errors involving a castle-doctrine jury instruction and the

weight of the evidence. We find that the trial court’s giving of Jury Instruction 7 on the

castle doctrine, which applied to the victim and not the defendant, was reversible error.

Therefore, we reverse and remand for a new trial consistent with this opinion. All remaining

issues are rendered moot.

                                       DISCUSSION

       Whether the giving of Jury Instruction 7 regarding the castle doctrine was
       prejudicial to Husband, as it shifted the burden of proof by establishing
       a presumption that the victim’s actions were justified.

¶9.    At trial, the State submitted Jury Instruction 7, which provided:

       The court instructs the jury that if you find from the evidence in this case
       beyond a reasonable doubt that, on or about November 15, 2013, . . . Crenshaw
       was an inhabitant, occupant, and resident of the dwelling house at 1275
       Highway 13 South, Marion County, Mississippi, then you should presume . .
       . Crenshaw was entitled, under the law, to use whatever force or weaponry that
       would have been reasonably necessary for him to meet and repel any attack
       upon himself and the other inhabitants of the residence, which may have been
       mounted or caused by the defendant, . . . Husband.

The trial judge gave this instruction over defense counsel’s objection, noting that it

“mirror[ed] a [c]astle doctrine.” Husband contends that because the castle doctrine applies


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“to the person who uses defensive force, not the person against whom force was used,” and

the State bears the burden to prove the defendant did not act in self-defense, this instruction

improperly “shifted the burden of proof from the State to the defense because it allowed the

jury to presume that Crenshaw’s actions were reasonably necessary to meet whatever attack

may have come from Husband.”

¶10.   The State argues Husband has waived his right to bring this issue on appeal because

his objection to the instruction at trial was on a different ground. “To preserve a jury

instruction issue on appeal, the defendant must make a specific objection to the proposed

instruction to allow the trial court to consider the issue.” Harris v. State, 861 So. 2d 1003,

1013 (¶18) (Miss. 2003) (citing Crawford v. State, 787 So. 2d 1236, 1244-45 (¶35) (Miss.

2001)). “Asserting grounds for an objection on appeal that differ from the ground given for

the objection at the trial level does not properly preserve the objection for appellate review.”

Bursey v. State, 149 So. 3d 532, 535 (¶5) (Miss. Ct. App. 2014) (quoting Woodham v. State,

779 So. 2d 158, 161 (¶12) (Miss. 2001)). Husband’s objection at trial was that Crenshaw

was not entitled to the castle-doctrine instruction because he was not a resident of the home.2

Defense counsel reasoned, “There’s absolutely . . . no established testimony that [Crenshaw

is] entitled . . . to that instruction at all.” Thus, the State is correct; Husband asserted a

different claim than what he is arguing on appeal, procedurally barring the issue from

consideration on the merits.

¶11.   However, Husband responds that regardless of any procedural bar, this Court should

       2
        Stokes rented the duplex, and she and Crenshaw had only been dating
approximately one month prior to the shooting.

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consider this issue for plain error. The plain-error doctrine requires a determination of

“[whether] the trial court has deviated from a legal rule, whether that error is plain, clear or

obvious, and whether the error has prejudiced the outcome of the trial.” Brown v. State, 75

So. 3d 573, 577 (¶16) (Miss. Ct. App. 2011) (quoting Cox v. State, 793 So. 2d 591, 597 (¶22)

(Miss. 2001)). “For the plain-error doctrine to apply, there must have been an error that

resulted in a manifest miscarriage of justice or seriously affect[ed] the fairness, integrity or

public reputation of judicial proceedings.” Rodgers v. State, 166 So. 3d 537, 544 (¶15)

(Miss. Ct. App. 2014) (quoting Conners v. State, 92 So. 3d 676, 682 (¶15) (Miss. 2012)).

¶12.   Mississippi Code Annotated 97-3-15(3) (Rev. 2014) provides:

       A person who uses defensive force shall be presumed to have reasonably feared
       imminent death or great bodily harm, or the commission of a felony upon him
       or another or upon his dwelling, or against a vehicle which he was occupying,
       or against his business or place of employment or the immediate premises of
       such business or place of employment, if the person against whom the
       defensive force was used, was in the process of unlawfully and forcibly
       entering, or had unlawfully and forcibly entered, a dwelling, occupied vehicle,
       business, place of employment or the immediate premises thereof or if that
       person had unlawfully removed or was attempting to unlawfully remove
       another against the other person’s will from that dwelling, occupied vehicle,
       business, place of employment or the immediate premises thereof and the
       person who used defensive force knew or had reason to believe that the
       forcible entry or unlawful and forcible act was occurring or had occurred. This
       presumption shall not apply if the person against whom defensive force was
       used has a right to be in or is a lawful resident or owner of the dwelling,
       vehicle, business, place of employment or the immediate premises thereof or
       is the lawful resident or owner of the dwelling, vehicle, business, place of
       employment or the immediate premises thereof or if the person who uses
       defensive force is engaged in unlawful activity or if the person is a law
       enforcement officer engaged in the performance of his official duties[.]

(Emphasis added). Husband argues that applying the castle-doctrine presumption to the

victim, Crenshaw, “[a]llow[ed] the jury to presume that [Crenshaw] was entitled to use

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whatever force was necessary to meet or repel an attack from Husband [and] obviate[d] the

need for the State to prove that Husband did not act in self-defense.” We agree. While we

find no instance in Mississippi where a castle-doctrine instruction has been given in regard

to the victim’s being granted the statute’s mandatory rebuttable presumption, it is evident

from our statute’s language that such an instruction is patently inappropriate. The statute

clearly indicates that the rebuttable presumption is granted to the defendant, not the victim.

¶13.   The Arizona Court of Appeals has addressed this precise issue and reached the same

conclusion regarding its statute. In State v. Abdi, 248 P.3d 209, 211 (Ariz. Ct. App. 2011),

the trial court instructed the jury on self-defense, but at the state’s request, also gave an

instruction on the castle doctrine, applying the instruction to the victim. Like Husband, the

defendant in that case argued that the castle-doctrine instruction “created a mandatory

presumption that [the victim] acted reasonably” and “this presumption ‘lessened the state’s

burden of proving that Abdi was not acting in self-defense.’” Id. Although it noted that the

Arizona statute used the term “[t]he person,” which could apply to either a defendant or

victim, the appellate court concluded that the historical background of the statute revealed

the Arizona legislature’s intent that the statute apply to “a defendant who is charged with

using force in response to someone unlawfully entering [his] home.” Id. at (¶8).3 Therefore,

       3
         Although our analysis has revealed no similar background history pertaining to the
Mississippi Legislature’s enactment of section 97-3-15(3) in 2006, the title to the Act
(Senate Bill 2426) states that it is “to provide immunity from criminal prosecution under
certain circumstances as they related to justifiable homicide[.]” (Emphasis added). While
we acknowledge the title to the Act is not necessarily determinative of whether the act
applies to a defendant or victim, we find it persuasive in our determination that applying the
presumption in the statute to a victim is incompatible with the statute’s intent to provide a
defendant with an affirmative defense of justifiable homicide.

                                              7
finding the jury instruction’s language created a mandatory presumption and shifted the

burden of proof, the Arizona appellate court held the trial court erred in giving the jury

instruction. Id. at 212-14 (¶¶11-16).

¶14.   The United States Supreme Court has held: “The Due Process Clause of the

Fourteenth Amendment . . . . prohibits the State from using evidentiary presumptions in a

jury charge that have the effect of relieving the State of its burden of persuasion beyond a

reasonable doubt of every essential element of a crime.” Francis v. Franklin, 471 U.S. 307,

313 (1985) (citing Sandstrom v. Montana, 442 U.S. 510, 520-524 (1979)). In Francis, the

Supreme Court concluded that a jury instruction that created a mandatory presumption with

respect to the element of intent and shifted the burden of persuasion to the defendant, was

unconstitutional. Id. at 315-18.

       An irrebuttable or conclusive presumption relieves the State of its burden of
       persuasion by removing the presumed element from the case entirely if the
       State proves the predicate facts. A mandatory rebuttable presumption does not
       remove the presumed element from the case if the State proves the predicate
       facts, but it nonetheless relieves the State of the affirmative burden of
       persuasion on the presumed element by instructing the jury that it must find the
       presumed element unless the defendant persuades the jury not to make such a
       finding. A mandatory rebuttable presumption is perhaps less onerous from the
       defendant’s perspective, but it is no less unconstitutional.

Id. at 317. Examining Francis and Sandstrom, our supreme court held in Williams v. State,

111 So. 3d 620, 626 (¶¶20, 22) (Miss. 2013), that a jury instruction that “created a mandatory

presumption which could allow a conviction based upon a presumption[,] as opposed to

evidence beyond a reasonable doubt,” constituted reversible error.

¶15.   Regarding a defendant’s affirmative self-defense claim, the supreme court held in



                                              8
Sloan v. State, 368 So. 2d 228, 229 (Miss. 1979):

       The burden of proof in a criminal case never shifts from the State to the
       defendant. The State is required to prove every material element of the
       indictment beyond reasonable doubt. Likewise, the defendant is not required
       to prove that he acted in self-defense, and, if a reasonable doubt of his guilt
       arises from the evidence, including evidence of self-defense, he must be
       acquitted.

Therefore, “[i]t remains the burden of the State to prove beyond a reasonable doubt that the

defendant was not acting in self-defense.” Johnson v. State, 749 So. 2d 369, 374 (¶19)

(Miss. Ct. App. 1999) (citing Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991)). “A

successful self-defense argument requires that the jury believe that it was objectively

reasonable for the defendant to believe he was in danger of imminent death or serious bodily

harm.” Davis v. State, 158 So. 3d 1190, 1194 (¶15) (Miss. Ct. App. 2015) (quoting Wilder

v. State, 118 So. 3d 628, 631 (¶9) (Miss. Ct. App. 2012)). “[S]o long as the evidence, fairly

considered, leaves the jury with a reasonable doubt as to whether the defendant was acting

in necessary self-defense, the jury’s obligation under the law is to return a verdict of not

guilty.” Carter v. State, 858 So. 2d 212, 215 (¶5) (Miss. Ct. App. 2003) (citing Sloan, 368

So. 2d at 229).

¶16.   Jury Instruction 9 provided the elements of self-defense and stated that the State bore

the burden to prove beyond a reasonable doubt that Husband was not acting in self-defense.

However, when reading the jury instructions as a whole, we find the mandatory rebuttable

presumption afforded to Crenshaw in Jury Instruction 7 was in direct conflict with the State’s

burden to prove that Husband was not acting in self-defense. Under that instruction,

Crenshaw was entitled to use reasonably necessary force to repel an attack by Husband.

                                              9
“Even when viewed in the context of all the instructions given, a reasonable juror could have

interpreted the challenged instruction to create a presumption that lessened the state’s burden

of proof and required rebuttal evidence from the defendant to overcome.” See Abdi, 248 P.3d

at 213 (¶15). Thus, we conclude that it was plain error for the trial court to give this

instruction, as it was a clear misapplication of the law and prejudicial to Husband’s self-

defense claim. See Abdi, 248 P.3d at 214 (¶17) (concluding that when the defendant’s core

defense was justification, a jury instruction that created a presumption that the victim acted

reasonably was not harmless error and warranted a vacation of his conviction).

¶17.   We also reject the State’s alternative argument that Jury Instruction 7 “was not

actually a castle doctrine instruction.” The record shows that when the prosecution submitted

the jury instruction to the trial court, it noted: “So we think the [c]astle doctrine is

appropriate in this case.” Later, during closing arguments, the prosecutor also highlighted

for the jury the elements contained in Jury Instruction 7:

       [Crenshaw is] entitled to what’s called the [c]astle doctrine in Mississippi.
       The [c]astle doctrine is – which I’m going to read through in a minute.
       Basically it means that you can defend your home, you can defend your family
       or relatives in your home from an attack by someone else.

       ....

       You should presume . . . Crenshaw was entitled under the law to use whatever
       force or weaponry that would have been reasonably necessary for him to meet
       and repel any attack upon himself and the other inhabitants of the residence,
       which may have been mounted by or caused by the Defendant, . . . Husband.

The State clearly intended for Jury Instruction 7 to be a castle-doctrine instruction pertaining

to Crenshaw, the victim.



                                              10
¶18.   Accordingly, we find that the circuit court committed reversible error in the giving of

Jury Instruction 7, and we remand for a new trial.

¶19.   The other issues on appeal were (1) whether the sufficiency and weight of the

evidence were against the verdict and (2) whether trial counsel was ineffective for failing to

submit a castle-doctrine jury instruction pertaining to Husband, as he was in his vehicle and

unable to leave due to Crenshaw’s standing inside his car’s open door. Although we have

found plain error in the giving of Jury Instruction 7, we will briefly address Husband’s claim

regarding the sufficiency of the evidence, as a finding for Husband on this claim would result

in a reversal and rendering of the judgment in his favor. See Newell v. State, 175 So. 3d

1260, 1267 (¶5) (Miss. 2015) (stating that an argument regarding the sufficiency of the

evidence should be addressed on appeal, even if the appellate court has determined the trial

court committed an evidentiary error). We find that, had the jury been properly instructed,

the State offered sufficient and credible evidence to support the verdict of “heat of passion”

manslaughter. The evidence showed that the two men were engaged in a heated argument,

with Crenshaw’s holding a gun and preventing Husband from leaving during the altercation.

Further, Crenshaw was shot in the back, presumably retreating from Husband’s firing of the

gun. Husband’s argument that the evidence was insufficient is also based on his claim he

was entitled to a castle-doctrine instruction; however, no such instruction was requested. As

to Husband’s ineffective-assistance-of-counsel claim, our supreme has held that if a case is

reversed on other grounds, a claim of ineffective assistance is moot. Deloach v. State, 977

So. 2d 400, 404 (¶17) (Miss. Ct. App. 2008) (citing Read v. State, 430 So. 2d 832, 841 (Miss.



                                             11
1983)).

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF MARION COUNTY IS
REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO MARION COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND GREENLEE, JJ., CONCUR. WILSON, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




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