Carter v. State, 2016-KA-00458-COA.
| Decision Date | 05 September 2017 |
| Docket Number | NO. 2016-KA-00458-COA.,2016-KA-00458-COA. |
| Citation | 227 So.3d 416 |
| Parties | Rodney CARTER a/k/a Rodney D. Carter, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JASON L. DAVIS
BEFORE LEE, C.J., BARNES AND CARLTON, JJ.
BARNES, J., FOR THE COURT:
¶ 1. At approximately 11 p.m. on January 10, 2015, Madison County Sheriff's Deputy Sam Howard observed a car that did not have a light illuminating its license plate. The car and the deputy's vehicle were both traveling west on Highway 463 in Madison but were in different lanes when they came to a stop at a red light. Once the light turned green, Deputy Howard accelerated slowly in order to get a better look at the car's license plate, but the driver, Rodney Carter, slowed the car to a near stop, obstructing traffic behind him. Because of this suspicious behavior, Deputy Howard followed Carter as he entered the exit ramp for Interstate 55 southbound and activated his blue lights and siren. Carter initially applied his brakes, as if to stop, but then he accelerated, speeding away from the deputy's car. Deputy Howard notified his dispatcher that he was engaged in pursuit. During the pursuit, Carter maintained speeds between 88–124 miles per hour (mph), well over the posted speed limit. He was weaving in and out of traffic and occasionally driving on the shoulder of the road. When Carter reached the intersection of Interstate 220 and Highway 49, he continued speeding north on Highway 49. After a few miles, Trooper Wade Zimmerman of the Mississippi Highway Patrol put out spike strips to stop Carter's vehicle, and the car came to a slow stop. Before Carter stopped, Deputy Howard observed an object being thrown from the passenger side of the car, causing a spark.
¶ 2. Carter was agitated, telling law enforcement he had just picked up his wife from work and was on his way to the hospital because he was having a severe asthma
attack. Deputy Howard later testified that Carter informed him he was having trouble breathing; so Deputy Howard advised Carter to sit up and quit yelling so he could "relax and breathe easier," but Carter "insisted on trying to slump over ... and continued yelling that [he] could not breathe." Carter was examined at the scene by emergency medical personnel, and then was arrested and taken into custody. A gun was recovered near the scene the following day.
¶ 3. Carter was indicted for felony evasion and possession of a firearm by a felon.1 A trial was held on October 28, 2015. Upset with his appointed counsel's legal advice, Carter insisted on self-representation, but the judge ordered appointed counsel to remain and assist Carter if needed. Carter was convicted of Count One, felony evasion; he was acquitted of Count Two, possession of a firearm by a felon. He was sentenced to five years in the custody of the Mississippi Department of Corrections (MDOC).
¶ 4. Carter filed a motion for a new trial or, in the alternative, a judgment notwithstanding the verdict, claiming the verdict was against the overwhelming weight of the evidence. The trial court denied the motion, and he now appeals.2 An appellant's brief was filed on Carter's behalf by the Office of the State Public Defender, but Carter has also filed a supplemental pro se brief, raising additional issues, as well as a pro se reply brief.3 Finding no error, we affirm the judgment.
DISCUSSION
¶ 5. Carter argues the trial court erred in denying his motion for a new trial, claiming that the evidence did not show that he was operating a vehicle in a reckless manner with indifference to human life. Carter insists that he was merely trying to get to the nearest hospital due to a medical emergency, and he thought the deputy was escorting him. He also argues the State failed to produce any evidence that he was not in need of medical attention when he was arrested.
¶ 6. In reviewing a trial court's denial of a motion for a new trial, we "will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State, 895 So.2d 836, 844 (¶ 18) (Miss. 2005). Evidence is weighed in the light most favorable to the verdict. Id. Carter was charged with felony evasion. Mississippi Code Annotated section 97–9–72(1) – (2) (Rev. 2015) provides:
Deputy Howard testified that when he activated his lights and siren, Carter sped off and began "driving at reckless speeds moving in and out of traffic, at times passing motorists on the shoulder of the roadway." The evidence showed that Carter traveled approximately twenty-two miles in thirteen minutes. Deputy Howard said when Carter reached Highway 49, he was "still driving recklessly, still passing vehicles, showing no regard for their safety." A dash-cam video was shown to the jury that supported the deputy's testimony. In the video, the jury could see Carter speeding down the freeway at high speeds, weaving in and out of traffic.
¶ 7. Carter acknowledged that he saw the deputy turn on his lights; he just contends that he "never anticipated on him chasing me at all ... because I did not do anything wrong." He claims he was speeding because he was having a medical emergency (asthma
attack), but he was stopped at a traffic light when the deputy first observed him and only began driving in a reckless manner after Deputy Howard began following him. When Carter cross-examined Deputy Howard, the officer replied:
Carter's wife testified that he was having an asthma
attack and disclaimed they were running from the police, but she also said that she did not know why he did not stop for law enforcement and did not know where Carter was going. Lastly, we note that medical personnel examined Carter at the scene of the arrest, and he did not require additional treatment at a hospital.
¶ 8. "When this Court analyzes a jury's verdict to determine whether it goes against the overwhelming weight of the evidence, we must keep in mind that the jury is the ultimate finder of fact." Langston v. State , 791 So.2d 273, 280 (¶ 14) (Miss. Ct. App. 2001). Thus, it is the "sole province of the jury" to evaluate the credibility of each witness. Blackwell v. State , 744 So.2d 359, 364 (¶ 18) (Miss. Ct. App. 1999) (citing Johnson v. State, 642 So.2d 924, 928 (Miss. 1994) ). "In determining a witness's credibility, jurors are allowed latitude in deriving facts from each witness's assertions, and jurors must determine the value of the conflicting testimony introduced during the trial." Flowers v. State , 144 So.3d 188, 196 (¶ 26) (Miss. Ct. App. 2014). Accepting as true the evidence which supports the verdict, we cannot find that the trial judge abused his discretion in denying Carter's motion for a new trial.
¶ 9. Carter asserts that the trial court should have granted him an instruction on "necessity and duress." Jury instruction D–9, which was drafted and handwritten by Carter, stated: "I[,] Rodney Carter[,] Request Jury on Necessity defense D[ue] to Duress—Medical Emergency." The judge found that it was a peremptory instruction and refused it.
¶ 10. "A defendant is entitled to have the trial court give jury instructions that present his theory of the case; however, the court may deny an instruction that misstates the law, is covered elsewhere in the instructions, or is not supported by the evidence." Graham v. State , 967 So.2d 670, 674 (¶ 15) (Miss. Ct. App. 2007) (citing Ladnier v. State, 878 So.2d 926, 931 (¶ 20) (Miss. 2004) ). The Mississippi Supreme Court has held:
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 [ (]¶ 8) (Miss. 2005). 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.
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