                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2012-KA-01708-SCT

BERNARD TAYLOR, JR. a/k/a BERNARD
TAYLOR

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                        05/10/2012
TRIAL JUDGE:                             HON. JEFF WEILL, SR.
COURT FROM WHICH APPEALED:               HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: JUSTIN T. COOK
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                       ROBERT SHULER SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 05/01/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      BEFORE WALLER, C.J., CHANDLER AND KING, JJ.

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.   This case arose out of a shooting incident that occurred due to tensions between two

rival teenage gangs. Sixteen-year-old Bernard Taylor fired multiple shots into a car

containing five people, wounding three of them. He was charged with three counts of

aggravated assault, with each count alleging a firearms enhancement under Mississippi Code
Section 97-37-37.1 The trial court denied Taylor’s proposed jury instruction on the lesser-

included offense of simple assault. Taylor was granted a self-defense instruction. The jury

was not instructed on the firearms enhancement. Taylor was convicted of one count of

aggravated assault. At a separate sentencing hearing, Taylor received a twenty-year sentence

for aggravated assault and a five-year sentence for a firearms enhancement, to run

consecutively.

¶2.        On appeal, Taylor argues that the district court erred by denying the assault

instruction, and that the five-year sentence enhancement should be vacated either under the

United States Supreme Court case Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348,

147 L. Ed. 2d 435 (2000) or, alternatively, under double jeopardy. We find that Taylor’s

arguments are without merit and affirm the judgment of the circuit court.

                         FACTS AND PROCEEDINGS BELOW

¶3.    On the evening of January 1, 2011, and into the morning of January 2, 2011, Jessie

Whitfield and his brother Chris were taking a ride home from a party near the Jackson

Medical Mall with their friends Jasmyn, Meyhatta, Latisha, and Raven. Latisha was driving,

and Raven was sitting in the front passenger seat. Jessie was sitting by the driver’s side door

in the back seat, Jazmyn was beside him in the middle, and his brother Chris was on the




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        “Except to the extent that a greater minimum sentence is otherwise provided by any
other provision of law, any person who uses or displays a firearm during the commission of
any felony shall, in addition to the punishment provided for such felony, be sentenced to an
additional term of imprisonment in the custody of the Department of Corrections of five (5)
years, which sentence shall not be reduced or suspended.” Miss. Code Ann. § 97-37-37 (Rev.
2006).


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passenger side in the back seat with Meyhatta on his lap. As they were about to pull out of

the parking lot, they heard gun shots nearby, and Chris got out to see if he could tell where

the shots were coming from. Chris got back into the car, and just after he shut the door, a car

pulled up beside them with Taylor in the back passenger seat. Jessie told the others in the car,

“there go Bernard,” and “they fixing to shoot us. Fixing to shoot.” Taylor started shooting.

Jessie, Jazmyn, and Meyhetta were shot. They testified that none of them had a gun in the

car that night. Jessie testified that he had seen Taylor inside at the party but did not speak to

him.

¶4.    Diallo Vaughn was in the car with Taylor. He testified that a car pulled up beside them

and that they saw a gun. He said at the time he did not know it was Jessie with the gun, and

that he did not see anyone else in the car other than Jessie. He testified that the gun was

pointing at them, that Taylor shot Jessie because he was trying to protect himself, and that

Taylor was not trying to shoot Raven or Meyhatta.

¶5.    After the shooting, the police and an ambulance were called. Several of the victims

identified Taylor as the shooter. He was picked up the next day at school and questioned by

Detective Eric Smith and Detective Delars Smith. They took the following statement from

him:

       I was at the party. The police put me out of the club and I went to the car. I sat
       in the car and waited until the party was over for my friend. My friend came
       out of the party. They came and got me.

       Another group of guys were together. They were all ready–they were–there
       were ready to fight my friends. We got in the car. We started leaving out of the
       parking lot. They pulled up beside us. I looked to the right and seen them and
       I shot. We drove out of the parking lot after I shot. I am very sorry for what I
       did and it will never happen again.


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¶6.    Taylor told the officers that he was shooting at boys from a rival gang who were

riding in a brown, four-door car. He told the officers that he fired four shots into the back

driver side and that he was the only one to shoot into the car. Taylor did not mention that

anyone in the other car showed him a gun or shot at him. Detective Smith testified that, at

the scene, he saw four bullet-impact sites on the rear driver’s door of the victims’ car.

¶7.    At trial, Taylor testified on his own behalf. He said that as he was driving away from

the party, Diallo told him that someone in the car to their right had a gun, that he ducked

down, grabbed his gun, and saw Jessie with a gun pointed at his face. He thought Jessie was

about to shoot, so he started shooting.

¶8.    Felicia Robinson, a Mississippi Crime Laboratory employee, testified that the ten

shells found at the scene could be separated into two groups of five, fired from two different

weapons. She did not have any information about the crime scene or the location in which

the shells were found at the crime scene.

                                       DISCUSSION

       I.     Whether Taylor was improperly denied a simple-assault, lesser-
              included-offense instruction at trial.

¶9.    Taylor first argues that he was improperly denied a jury instruction on the lesser-

included offense of simple assault. Taylor argues that the presence of shell casings from

multiple guns at the scene supports the theory that he shot negligently under the mistaken

belief that nearby gunshots were intended for him. “When jury instructions are challenged

on appeal, we do not review them in isolation; rather, ‘we read them as a whole to determine

if the jury was properly instructed.’” Rubenstein v. State, 941 So. 2d 735, 787 (Miss. 2006)



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(quoting Goodin v. State, 787 So. 2d 639, 657 (Miss. 2001)); Milano v. State, 790 So. 2d

179, 184 (Miss. 2001). “[T]he court may refuse an instruction which incorrectly states the

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

Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991). A lesser-included-offense instruction must

be refused if the circuit court finds that “taking the evidence in the light most favorable to

the accused, and considering all reasonable favorable inferences that may be drawn from the

evidence in favor of the accused, that no hypothetical jury could find the fact as the accused

suggests.” Williams v. State, 53 So. 3d 734, 741 (Miss. 2010).

¶10.   To be entitled to a lesser-included-offense instruction, the defendant must point to

evidence from which a jury reasonably could find him not guilty of aggravated assault and

at the same time find him guilty of simple assault. Ladnier v. State, 878 So. 2d 926, 932

(Miss. 2004). “Only where the evidence could only justify a conviction of the principal

charge should a lesser offense instruction be refused.” Mease v. State, 539 So. 2d 1324, 1330

(Miss. 1989). “Once a deadly weapon is introduced, the distinction between simple and

aggravated assault . . . hinges upon whether the injuries were inflicted negligently or

intentionally.” Jackson v. State, 684 So. 2d 1213, 1230 (Miss. 1996).

¶11.   Taylor’s trial testimony and choice of self-defense argument establish that he

intentionally shot Jessie. In denying Taylor’s request for a lesser-included-offense instruction

on simple assault, the trial court relied on this Court’s opinion in Ford v. State, 975 So. 2d

859 (Miss. 2008), in which we held in regard to simple assault:

       Because [the defendant] used a deadly weapon, there must be evidence that she
       acted negligently in causing harm to Gaddy: “A person is guilty of simple
       assault if he . . . negligently causes bodily injury to another with a deadly

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       weapon.” Miss. Code Ann. § 97-3-7(1) (Rev. 2006). In the present case, it is
       undisputed that [the defendant] intentionally stabbed [the victim].
       According to her own testimony, [the defendant] stabbed [the victim] with
       the knife in self-defense . . . .

Id. at 865 (emphasis added.)

¶12.   As in Ford, Taylor testified and argued at trial that he intentionally shot at Jessie in

self-defense because Jessie had a gun and pointed it at him. He did not argue at trial that he

acted negligently under the mistaken belief that undisputed gunshots near the scene were

intended for him. Based on the presence of a deadly weapon and Taylor’s concession that he

intentionally shot at Jessie, the evidence justified either “a conviction of the principal charge”

or acquittal based on a theory of self-defense. The evidence does not demonstrate negligence.

Therefore, the trial court did not err by denying the simple-assault instruction.

       II.     Whether Taylor’s five-year firearms sentencing enhancement
               should be vacated.

               A.     Whether the enhancement violates Apprendi v. New Jersey.

¶13.   Taylor next argues that reversal of his five-year sentence enhancement is mandatory

because the enhancement violates the United States Supreme Court’s holding in Apprendi,

which states: “[o]ther than the fact of a prior conviction, any fact that increases the penalty

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

proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490 (emphasis added). The

maximum sentence for aggravated assault is twenty years; when combined with the five-year

firearms enhancement, Taylor’s twenty-five year sentence is subject to an Apprendi analysis

because it exceeds the prescribed statutory maximum for the offense. We find that, because

the jury did decide every fact necessary to satisfy the elements of the sentencing

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enhancement –in particular, Taylor’s use of a firearm–the Apprendi standard is satisfied and

reversal of the enhancement is not required.

¶14.   Taylor attempts to argue that Apprendi requires the actual sentence enhancement itself

to be found by the jury. But that is not the law. The trial judge may impose the sentence

enhancement once the jury has found all of the facts necessary to satisfy the elements of the

sentencing-enhancement statute. Apprendi requires the jury to find not the sentence

enhancement itself, but every fact required for the sentence enhancement to be imposed. The

jury having found all of the necessary facts, the trial judge has the authority to impose the

sentence.

¶15.   This Court applied Apprendi in Brown v. State, 995 So. 2d 698 (Miss. 2008). In

Brown, the Court vacated a sentence enhancement because reasonable doubt existed as to

the question of whether the sale of a controlled substance occurred within 1,500 feet of a

church. Id. at 704. The proximity to the church was a required fact for satisfying the elements

of the sentencing-enhancement statute. Id. This Court held that “[t]he existence of a church

within 1,500 feet of Brown’s crime . . . is a fact that he was entitled to have determined by

a jury.” Id. at 703 (emphasis added).2




       2
        While this Court’s holding in Brown is clear (“[t]he existence of a church within
1,500 feet of Brown’s crime. . . is a fact that he was entitled to have determined by a
jury”)(emphasis added), the opinion in other places states arguably more broadly “[u]nder
Apprendi, Brown enjoyed a Sixth Amendment right to have the issue of his sentence
enhancement submitted to a jury.” Brown, 995 So. 2d at 704. We clarify that this language
in Brown does not mean that the jury itself must impose the sentence enhancement.

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¶16.   Here, unlike in Brown, the jury found all of the facts necessary to satisfy the elements

of the sentencing-enhancement statute. In particular, the jury found the fact that Taylor used

a firearm. Jury Instruction S-3B read:

       The Defendant is charged by indictment in Count Three with Aggravated
       Assault. If you find from the evidence in this case, beyond a reasonable doubt,
       that:

              1.     The Defendant, on or about the 2nd day of January, 2011, in the
                     county aforesaid and within the First Judicial District of Hinds
                     County, Mississippi;

              2.     Did purposely or knowingly cause serious bodily injury to
                     another, JESSIE WHITFIELD, a human being;

              3.     By shooting said person with a deadly weapon, a firearm;

       then you shall find the Defendant guilty of Aggravated Assault. If the State has
       failed to prove any one or more of the above elements beyond a reasonable
       doubt then you shall find the Defendant Not Guilty.

(Emphasis added.) The jury found all of the facts required for the judge to impose the five-

year sentence enhancement, and, therefore, this Court is not required to reverse the sentence

enhancement under Apprendi.

       B.     Whether Taylor’s sentence enhancement violates double jeopardy

¶17.   Finally, Taylor argues that the imposition of the sentence enhancement violates his

protection against double jeopardy because it constitutes multiple punishments for the same

offense, and the sentencing-enhancement statute requires proof of the same elements as the

underlying crimes. The Mississippi Court of Appeals has addressed this issue multiple times,

including in Lewis v. State, 112 So. 3d 1092 (Miss. Ct. App. 2013). Lewis argued that the

imposition of separate sentences under Mississippi Code Sections 97-37-5 and 97-37-37(2)



                                              8
violated his double-jeopardy protection against multiple punishments for the same offense.

The Court of Appeals disagreed, finding that “Section 97-37-37(2) merely imposes an

elevated sentence for use or display of a firearm during the commission of a felony, and it

does not delineate an independent substantive offense.” Id. at 1096. The Court of Appeals

was correct in this analysis. The Legislature intended for these two punishments to apply to

the same offense, therefore there is no double-jeopardy concern. See Mayers v. State, 42 So.

3d 33 (Miss. Ct. App. 2010); Wansley v. State, 114 So. 3d 793 (Miss. Ct. App. 2013).

                                     CONCLUSION

¶18.   The trial court properly denied the lesser-included-offense jury instruction. The jury

found every fact necessary for the trial court to impose the five-year sentence enhancement.

Finally, Taylor’s argument that the sentence enhancement violates double jeopardy fails

because it does not constitute a separate punishment for the same offense and is within the

sentence allowed by the Legislature for the offense when the aggravated assault and

enhancement statutes are read together. The conviction and sentence of the Hinds County

Circuit Court are affirmed.

¶19. CONVICTION OF AGGRAVATED ASSAULT WITH GUN ENHANCEMENT
AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. APPELLANT IS
SENTENCED FOR AN ADDITIONAL FIVE (5) YEARS FOR THE GUN
ENHANCEMENT AND IS GIVEN CREDIT FOR TIME SERVED. SENTENCES
SHALL RUN CONSECUTIVELY.

     WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS,
PIERCE, KING AND COLEMAN, JJ., CONCUR.




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