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Taylor v. State

Court of Appeals of Mississippi

May 8, 2018

MARTEZ TAYLOR A/K/A MARTEZ D. TAYLOR A/K/A MARTEZ DEONTE TAYLOR APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/06/2016

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR JUDGE.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          FAIR, J.

         ¶1. Martez Taylor was tried for robbery and possession of a firearm by a convicted felon following an altercation with his girlfriend's aunt, Danielle Brent. Brent claimed Taylor had attacked her suddenly and taken her phone, credit cards, and pistol. Taylor testified he took the gun after she threatened him with it and then immediately brought the pistol and the other items (which he had taken by mistake in his haste to leave) to his mother so she could return them. The circuit court refused to instruct the jury on Taylor's asserted defense of necessity after finding that Taylor had not established that he got rid of the gun at the first opportunity.[1]The jury acquitted Taylor of robbery but convicted him of possessing a firearm after being convicted of a felony, and Taylor appeals.

         ¶2. We agree with the circuit court that, when a convicted felon takes a possession of a firearm out of necessity, he is required to act immediately to relieve himself of it once the need has passed. But the necessity does not end until the defendant has an adequate alternative to possession of the gun, which means that the defendant may delay when it is necessary to transfer the weapon safely. We conclude that a reasonable juror who believed Taylor's testimony could have found the necessity defense meritorious. The jury therefore should have been instructed on Taylor's theory of the case, and because it was not, we reverse his conviction and remand for a new trial.

         DISCUSSION 1. Necessity

         ¶3. "[N]ecessity . . . provides a valid defense to the offense of felon in possession of a firearm, but . . . the record must contain an evidentiary foundation to support the defense." Anderson v. State, 185 So.3d 1015, 1024 (¶37) (Miss. Ct. App. 2014). The necessity defense requires a showing that "(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." Flowers v. State, 51 So.3d 911, 913 (¶7) (Miss. 2010).

         ¶4. Taylor testified that he had been staying with his girlfriend and her infant child (Taylor was not the child's father) in a hotel room for about three months, when one morning Brent, his girlfriend's aunt, showed up at the door. The girlfriend let her in, and Taylor noticed Brent was holding a cell phone and a small-caliber pistol. When Taylor tried to leave, Brent-who Taylor testified did not like him seeing her niece and had previously threatened to shoot him-blocked his way and began waiving the pistol and pointing it at him. Brent was "furious" as she waved the gun at Taylor while speaking to her niece. Taylor chose a moment when the gun was not pointed at him to grab it and force it down. The two struggled over the gun until Taylor bit Brent on the wrist and she dropped it. Both went for the gun, but after some "wrestling, " Taylor came up with it and Brent "stormed out of the room." Taylor then hurriedly grabbed some of his things that were within arm's reach and left. As he was walking away from the motel, he saw a city bus approaching, and he took it to near where his mother lived. After getting off the bus, Taylor "immediately" went to his mother and gave her the gun and other items that did not belong to him, which he had inadvertently taken when he fled. He asked her to return them, and she did. It is not clear from the record how far Taylor's mother's home was from the motel, but Taylor estimated that he possessed the gun for about twenty minutes.

         ¶5. Taylor offered a necessity jury instruction, D-11, but it was refused. The trial court found both that Taylor had failed to show necessity in taking the gun and had failed to show any necessity in keeping it after Brent left. On appeal, the State only pursues the second theory: that Taylor kept the gun after the necessity had passed.

         ¶6. The grant or denial of a jury instruction is reviewed for an abuse of discretion. McInnis v. State, 61 So.3d 872, 875 (¶10) (Miss. 2011). That discretion is limited, however, as "a defendant is entitled to have jury instructions given which present his theory of the case." Newell v. State, 49 So.3d 66, 74 (¶20) (Miss. 2010). The trial court should give such an instruction unless it "incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence." Id. And "[w]hen ...


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