Smith v. State

1

WALTER SMITH APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2020-KA-00774-COA

Court of Appeals of Mississippi

August 22, 2023

DATE OF JUDGMENT: 03/14/2019

COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JANNIE M. LEWIS-BLACKMON

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY GEORGE T. HOLMES

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY ALEXANDRA RODU ROSENBLATT ASHLEY L. SULSER

EN BANC

McCARTY, J.

¶1. A man was found guilty of aggravated assault and possession of a firearm by a felon after hitting another man in the head and then shooting him. He raises four issues on appeal. Finding no error, we affirm.

FACTS

¶2. The facts in this case are uncontested. Walter Smith and Humphrey Ryland were at the home of Roosevelt Brown. While there, Smith approached Ryland. He claimed Ryland "owed him some money" for drugs. When Ryland responded he would "pay him the rest of it the next month," Smith "got angry." He then hit Ryland "in the head" with a pistol.

Ryland did not have a gun. Nonetheless, he got up and "hit [Smith] two or three times" in the jaw. In turn, Smith shot Ryland "under the collarbone" and ran out of the backdoor of the house.

¶3. An ambulance was called. A first responder treated Ryland's wounds, and he was taken to the hospital. Police then arrived and began searching for Smith. He was eventually found at his father's home.

¶4. Smith was arrested and charged with aggravated assault and possession of a firearm by a felon.

PROCEDURAL HISTORY

¶5. At trial, the jury first heard from Chief Demtrius Allen. He testified he got a call that someone was shot. He stated when he and other officers arrived, the homeowner told him Ryland was in the house and had been shot. The officer testified the homeowner told him that Smith "took off running" toward the side of the house.

¶6. Chief Allen said he "saw the footprints on the side of the house" and "traced it back to [Smith's] father's house." He stated that once he and the other officers arrived, they surrounded Smith's father's home. He said he "knocked on the door [and] advised that the sheriff's department was out[side]," but they "didn't get a response." He told the jury he then called his supervisor because his supervisor knew Smith's father well. Chief Allen said Smith's father came to the house, and "around ten minutes later, he went in the house . . . and got Mr. Smith[.]"

¶7. When asked if he had known Walter Smith beforehand, Chief Allen responded, "Yes." The chief was also asked if there was any question as to the identity of the alleged shooter. He stated the homeowner told him that after hearing the gunshot, he saw Smith run out of the house. Chief Allen also told the court that during his investigation, "[they] concluded that Mr. Smith was the aggressor," as "Mr. Smith came to where Mr. Ryland was." He further testified that Ryland did not have a weapon of any kind.

¶8. The jury also heard from Investigator Ward Steed. He testified he was the first responder who tended to Ryland. He stated Ryland had "a gunshot wound to the upper left chest" and "a wound graze to the . . . left side of his head." He stated that after Ryland was taken to the hospital, he went to the street where Smith was found. The investigator told the court he did not see any injuries on Smith as officers took him out of his father's home. He also testified that to his knowledge, Smith did not ask for any medical assistance before he was arrested. When asked who seemed to be the aggressor, Investigator Steed replied, "Mr. Smith." He explained he came to this conclusion because he "did not see any injuries on [Smith,] and [he] did on Mr. Ryland."

¶9. The homeowner, Roosevelt Brown, also testified. He stated he was outside when he saw Smith "coming out [his] house" on the day of the incident. He testified he heard a gunshot right before seeing Smith run out of the house. Brown was asked who was in the house when Ryland was shot. He stated, "Walter." When asked how he knew Walter Smith, he responded, "I've been knowing him all my life."

¶10. Ryland then testified. He stated he did not know Smith "personally," but he "can describe him when [he] see[s] him."^[1] He then told the jury Smith was a "light skinny guy, brown skinny - hair about that thick." When asked if he was sure Walter Smith shot him, he responded, "Yeah." He was also asked if he was sure Smith hit him first. He responded, "Right."

¶11. Finally, Deputy Cole McGinnis testified. He stated he went to the hospital to talk to Ryland. He testified Ryland told him that Smith hit him first. The deputy also told the court Ryland identified Mr. Smith as the shooter. He stated that Ryland's version of events never changed.

¶12. At the end of trial, the State offered jury instruction S-3:

The Court instructs the Jury that flight is a circumstance from which in the absence of a reasonable explanation therefor, guilty knowledge and fear may be inferred. If you find from the evidence in this case, beyond a reasonable doubt that the defendant, Walter Smith did flee or go into hiding after the shooting, then the flight of Walter Smith is to be considered in connection with all other evidence in this case. You will determine from all the facts whether the flight was from a conscious sense of guilt or whether it was caused by other things, and give it such weight as you think it is entitled to in determining the guilt or innocence of Walter Smith.

¶13. Defense counsel objected stating, "I don't think that's an element of neither one of the actual charges." The State characterized the instruction as a "typical flight instruction[]." The State further argued that "the facts showed that Walter Smith after the shooting ran away by multiple people's testimony." The prosecution also argued Smith "ran away" and "hid in his house and . . . wouldn't come out." The trial court gave the flight instruction.

¶14. Next, the State offered jury instruction S-9:

The right to self-defense is forfeited when the defendant is the initial aggressor and provokes a difficulty, arming himself in advance, if necessary, to use his weapon and overcome his adversary.

¶15. Counsel for Smith objected to the pre-arming instruction, arguing it was duplicative. The trial court gave the instruction over Smith's objection.

¶16. Smith then offered a self-defense instruction. The State objected, arguing the defense "offered no testimony to say that there was an actual self-defense." The State further argued, "[A]ll the testimony basically stated that Walter Smith was the aggressor." Despite the prearming instruction, the trial court gave Smith's self-defense jury instruction. However, the court found there was an "insufficient factual basis" to support Smith's necessity instruction. ¶17. The jury found Smith guilty of aggravated assault and possession of a firearm by a felon. He was sentenced to serve twenty years for aggravated assault and ten years for the possession of a firearm, consecutively. He appealed, and the case was assigned to us by the Supreme Court.

¶18. But Smith's "[t]rial counsel did not file a notice of appeal until Monday, November 25, 2019, which was thirty-one days" after the denial of the post-trial motion, meaning it was one day late. There was also confusion over whether Smith was entitled to in forma pauperis status, and in any event, the appeal costs in his case were not paid; the Clerk of Appellate Courts administratively dismissed the appeal for that failure. Acting pro se, Smith then sought and was granted a withdrawal of the mandate and for his appeal to be reinstated. The State did not oppose his motion. By an en banc order of this Court, we withdrew the mandate and reinstated Smith's appeal.

¶19. During the pendency of this appeal, in what appears to be an effort to clear up the docket, Smith's newly appointed counsel filed a "motion for authorization to proceed out of time," which asked us to suspend the Rules of Appellate Procedure because "good cause exists to allow his appeal to proceed out of time so that the ends of justice can be served."

¶20. By an en banc order dated February 8, 2023, this Court considered whether Smith's appeal was time-barred, notwithstanding that we had earlier withdrawn the mandate and reinstated the appeal. "Nothing suggests that Smith caused his untimely appeal," we determined, but "it appear[ed] that his trial counsel simply missed the ten-day deadline to file a post-trial motion that would toll the appeal deadline." Relying on well-established law, we found that "we may grant an out-of-time appeal where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court." McGruder v. State, 886 So.2d 1, 2 (¶4) (Miss. 2003). Furthermore, "[w]e may suspend [the Rules of Appellate Procedure] 'when justice demands' to allow an out-of-time appeal in criminal cases." Id. (quoting Fair v. State, 571 So.2d 965, 966 (Miss. 1990)). By a vote of 8-2, the Court held that the motion would be granted, and "[p]ursuant to Rule 2(c) . . . the deadline to appeal is hereby suspended so this appeal may proceed on the merits."^[2]

DISCUSSION

I. The trial court committed harmless error by giving the pre-arming jury instruction.

¶21. Smith first argues the trial court erred by instructing the jury on pre-arming. In so doing, he argues it "unfairly impaired his right and ability to fully present his defenses" on self-defense and necessity.

¶22. At the time Smith was convicted, precedent allowed a jury to be instructed on "prearming." The purpose of the instruction was "to inform the fact-finder that one cannot arm...