Derrick Levon Harris a/k/a Derrick L. Harris a/k/a Derrick Harris v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2025-KA-00084-COA

DERRICK LEVON HARRIS A/K/A DERRICK L. APPELLANT
HARRIS A/K/A DERRICK HARRIS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/13/2024
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY: BRENDA FAY MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 06/02/2026
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WESTBROOKS, AND McDONALD, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Derrick Harris was convicted of one count of first-degree murder in the shooting death

of Brandon Swain and of one count of aggravated assault arising out of the same incident.

On direct appeal, Harris argues that the trial court erred in giving a jury instruction that

referenced accident and misfortune as well as self-defense. On plain error review, we find

no reversible error and affirm.

FACTS

¶2. Brandon Swain was the bystander victim of a drive-by shooting that occurred on July
26, 2021, on Roosevelt Street in Cleveland. In the hours before the shooting, Harris’ sixteen-

year-old cousin Cedric Hall was socializing at a friend’s house with several other people.

According to his testimony at trial, Cedric decided to visit a different neighbor’s house.

Because Cedric knew that the neighbor did not allow guns inside her home, he gave his gun

to a friend for safekeeping. However, another person present, Jakavion Johnson, stole the gun

from Cedric’s friend and then robbed Cedric at gunpoint, taking his wallet and phone. Cedric

called Harris and told him what happened.

¶3. Cedric and his fourteen-year-old brother, Monterious Cox, who were in their mother’s

car, then drove to pick up Harris and his friend Malachi Butler. Harris and Butler got into the

back of the car. The four drove to Roosevelt Street looking for Jakavion. Cedric testified that

he “thought [Harris] was going to be a big cousin and get my stuff back.” Harris and Butler

both had guns. Butler’s gun was large, and Harris’ gun was smaller. After not initially seeing

Jakavion, Cedric wanted to go home; however, Harris berated Cedric for being a coward.

They switched seats, and Harris began driving the car. Cedric got on the floor of the car when

he realized that Harris was driving them back to the Roosevelt Street area.

¶4. This time, Jakavion was outside. Butler, who was next to Cedric in the back seat,

began firing his gun from the car. Cedric heard six or seven gunshots. Harris damaged the

car by running it into a mailbox and had to pull over. Harris got out of the car, and Butler

handed him the larger gun. Harris began shooting in the same direction that Butler had been

shooting. Everyone who was in the car then ran. Monterious also testified and corroborated

Cedric’s account of what happened. Monterious was riding in the front passenger seat and

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got on the floor when he heard the initial gunshots. He testified he heard returning gunshots

coming from Jakavion until Harris crashed the car, at which point Harris got out of the car

and started shooting back in Jakavion’s direction.

¶5. Frederick Johnson is a resident on Roosevelt Street who was shot twice in the back

during the incident. Frederick testified that he was close friends with both Jakavion Johnson

and Brandon Swain. On the day of the shooting, Jakavion and Swain were outside Johnson’s

house. Brandon was near the street talking to friends who had pulled up in a car. Jakavion

was near the open front door of the home. Frederick was inside when the gunshots started.

Frederick was trying to get his girlfriend and his kids to the back of the house for safety when

the bullets struck him in the back. Frederick testified that when the gunshots started, Jakavion

started running and did not come into the house.

¶6. Employees and customers of a nearby NAPA Auto Parts heard gunshots and then

observed a smoking vehicle with multiple flat tires come to a stop. One customer filmed the

occupants of the car running away, with more than one appearing to have a gun. The car was

traced to Cedric’s and Monterious’s mother, who cooperated with the investigation.

¶7. When law enforcement responded to the scene, they discovered Brandon deceased

from a stray bullet. Joe Smith, the Captain of Investigations with the Cleveland Police

Department, testified that a total of nine shell casings were recovered from the scene from

three different gun types. Police recovered seven 7.62x39mm shell casings, one .22-caliber

long rifle shell casing, and one 9mm shell casing. The car driven and crashed by Harris did

not have any bullet hole damage. However, two vehicles parked in front of Frederick’s house

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did have bullet-hole damage.

¶8. Harris and Butler fled to Texas and were apprehended in September 2021. They were

tried together as co-defendants. Cedric and Monterious pled guilty to accessory after the fact

and received non-adjudicated five-year sentences in exchange for testifying. In Harris and

Butler’s trial, the court gave Jury Instruction C-13, which stated:

Under the law the killing of another is excusable when committed by accident
and misfortune in doing any lawful act by lawful means with usual and
ordinary caution and without any unlawful intent.

The defendant in this case is claiming that the victim here was shot by accident
and misfortune when he, the defendant, was acting in legal self defense. To
make the shooting of another, even a third party, justifiable or excusable on the
grounds of self-defense, the danger to the defendant must be either actual,
present, and urgent, or the defendant must have had reasonable grounds to
apprehend design on the part of another to kill them or to do them some great
bodily harm. And, in addition to this, there must have been reasonable grounds
to apprehend that there was imminent danger of such design being
accomplished. It is for the jury to determine the reasonableness of the grounds
upon which the defendants acted.

Harris did not object to the instruction, and the record indicates that Harris’ trial counsel

explicitly agreed three different times on the record to the instruction being given.

¶9. The jury returned guilty verdicts, and the court sentenced Harris to serve life in prison

for Count I and a concurrent twenty-year term in custody for Count II. Harris now appeals.

STANDARD OF REVIEW

¶10. Our appellate courts “review[] the grant or denial of proposed jury instructions for an

abuse of discretion.” Quinn v. State, 191 So. 3d 1227, 1231-32 (¶18) (Miss. 2016). “Whether

to grant or deny proposed jury instructions is within the sole discretion of the circuit court.”

Victory v. State, 83 So. 3d 370, 373 (¶12) (Miss. 2012).

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DISCUSSION

¶11. The sole argument Harris raises on direct appeal is that the trial court erred in giving

Jury Instruction C-13. Harris did not object to the instruction at trial. Further, the record

indicates that Harris explicitly agreed to the instruction three times. “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.” Ward v. State, 297 So. 3d 286, 289

(¶11) (Miss. Ct. App. 2020) (quoting Husband v. State, 204 So. 3d 353, 356 (¶10) (Miss. Ct.

App. 2016)). “Further, when a party acquiesces to the giving of a jury instruction, that party

is procedurally barred from later raising an error with the instruction on appeal.” Spiers v.

State, 361 So. 3d 643, 654-55 (¶36) (Miss. 2023) (quotation marks omitted); see also Rash

v. State, 416 So. 3d 1024, 1031-32 (¶24) (Miss. Ct. App. 2025).

¶12. Because Harris failed to object to the instruction at trial, we are limited to plain error

review. In an analysis under plain error review, “[o]nly an error so fundamental that it creates

a miscarriage of justice rises to the level of plain error.” Arnold v. State, 393 So. 3d 1096,

1105 (¶21) (Miss. Ct. App. 2024) (quoting Willis v. State, 999 So. 2d 411, 414 (¶9) (Miss.

Ct. App. 2008)). In reviewing whether giving the instruction affected Harris’ substantive or

fundamental rights, we “determine: (1) whether the trial court deviated from a legal rule; (2)

whether the error is plain, clear, or obvious; and (3) whether the error prejudiced the outcome

of the trial.” Short v. State, 349 So. 3d 193, 195 (¶6) (Miss. Ct. App. 2022).

¶13. “A defendant is entitled to have jury instructions given which present his theory of the

case; however, this entitlement is limited in that the court may refuse an instruction which

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incorrectly states the law, is covered fairly elsewhere in the instructions, or is without

foundation in the evidence.” Id. “In determining whether reversible error lies in the granting

or refusal of various instructions, the instructions actually given must be read as a whole.”

Jones v. State, 827 So. 2d 21, 26 (¶21) (Miss. Ct. App. 2002). Mississippi Code Annotated

section 97-3-17(b) (Rev. 2020) provides that “[t]he killing of any human being by the act,

procurement, or omission of another shall be excusable: . . . (b) [w]hen committed by

accident and misfortune, in the heat of passion, upon any sudden and sufficient

provocation[.]”

¶14. Harris points to Taylor v. State, 597 So. 2d 192 (Miss. 1992), in which a conviction

was reversed because the court gave a self-defense instruction when the defendant did not

present a self-defense argument at trial. Instead, the defense argued exclusively that the

killing occurred when the gun went off by accident. Id. at 193. However, the jury was

instructed primarily on self-defense with an ancillary accident and misfortune instruction. Id.

at 194. In finding reversible error, the Mississippi Supreme Court noted that the problem was

“that Taylor made no claim of self-defense. No one offered evidence of self-defense.

Taylor’s theory of defense throughout was one of accident or excusable homicide . . . . The

instruction, considered by itself, deflects the jury’s attention from accident as the defense.”

Id. at 194. Fatally, “placing the (non)issue of self-defense before the jury, and giving it a

place of prominence in excess of that given the defense of accident, resulted in the

substantial risk that the jury misapprehended the law in the course of its deliberations.” Id.

at 195.

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¶15. Harris argues that while his circumstance is the inverse of Taylor—i.e., Harris did

argue self-defense and did not argue that the gun went off accidentally—reversal is similarly

warranted because the jury could have been mislead into thinking they had to find that the

bullet that killed Brandon was shot by accident in order to acquit based on self-defense. He

asserts that intent and accident are inapposite, and, thus, potentially confused the jury.

¶16. The State rebuts by pointing to two cases in which similar instructions were affirmed

on appeal when both defenses were supported by the testimony presented at trial. In Evans

v. State, 797 So. 2d 811 (Miss. 2000), the defendant testified that he tried to avoid a

confrontation with fellow bar patrons by leaving through a back door. Id. at 813 (¶3).

However, the back door was locked. Id. He pointed a gun in the air and shot it several times

to scare off aggressors. Id. A woman standing between him and the aggressors was shot and

killed. Evans testified that he did not intend to shoot her or think that he had shot her when

he pointed a gun in the air and shot. Id. at (¶5).

¶17. The court gave the jury the following self-defense instruction: “[I]f you believe from

the evidence that [the victim] died as a result of the discharge of a pistol which was, at the

time of the fatal shot, in the possession of Defendant, but that the fatal shot was fired through

accident and misfortune, at a time when Defendant, was lawfully acting in self-defense, then

you must find Defendant not guilty.” Id. at 814 (¶10). The instruction as a whole stated:

The Court instructs the jury that you are not to judge the actions of Defendant,
Milton Evans, Jr., in the cool, calm light of after developed facts, but instead
you are to judge the Defendant’s actions in the light of the circumstances
confronting the Defendant at the time, as you believe from the evidence that
those circumstances reasonably appeared to the Defendant on that occasion,
and if you believe that under those circumstances it reasonably appeared to

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Defendant at the instant, if any, that [any of the patrons] took up a weapon,
that the Defendant there and then had reasonable ground to apprehend a design
on the part of [any of the patrons] to kill the Defendant or do him some great
personal injury, and that there reasonably appeared to the Defendant to be
imminent danger of such designs being accomplished, then the Defendant,
Milton Evans, Jr., was justified in anticipating an attack by [any of the
patrons], and further if you believe from the evidence that Luciana Bunton
died as a result of the discharge of a pistol which was, at the time of the fatal
shot, in the possession of Defendant, but that the fatal shot was fired through
accident and misfortune, at a time when Defendant[] was lawfully acting in
self-defense, then you must find Defendant not guilty in the death of Luciana
Bunton.

Id. Examining a challenge to the instruction on appeal, our supreme court stated that “Evans’

theory as to the death of [the victim] was that if he shot her, it was an accident which

occurred as he was acting in lawful self defense. Evans was entitled to have this theory

presented to the jury, and instruction C-6 did just that.” Id. at 815 (¶12).

¶18. In Jones, 827 So. 2d at 26 (¶21), the defendant testified at trial “that he saw that [the

victim] was armed and pulled his gun out. It then happened to go off.” Id. Jones requested

an instruction on accident and misfortune, but the court gave an instruction that combined

self-defense with accident and misfortune. Id. On appeal, this Court noted that the combined

jury instruction “was based on the testimony given at trial.” Id. We determined that “[t]he

instruction accepted by the court therefore combined the two elements and was more closely

based on the testimony than either instruction submitted by [the defendant].” Id. The opinion

further noted that the instruction “afforded [the defendant] the benefit of a defense based on

‘accident and misfortune’ and most accurately coincided with the testimony given at trial.”

Id. at (¶22).

¶19. Here, Harris’ circumstance is more similar to the facts of Evans and Jones than to

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Taylor. Harris presented a theory that he intentionally shot the gun as an act of self-defense

in response to Jakavion’s alleged gunfire. Similar to Jones, the expansion of the instruction

permitting acquittal if the gun accidentally went off while Harris was using the gun to act in

self-defense broadened the grounds for the jury to acquit him. To the extent that Harris’ case

is distinguishable from Evans and Jones in that Harris exclusively argued self-defense and

not accident, we are limited to plain-error review in light of Harris’ repeated acquiescence

to the instruction at trial. Looking to the instruction, the testimony presented at trial, and the

comparable cases of Evans and Jones, we cannot say that the giving of the instruction

prejudiced the outcome of the trial or was plainly wrong and resulted in a miscarriage of

justice. Harris argued self-defense. Permitting the jury to find that an accident occurred while

Harris was intentionally acting in self-defense does not present the same risk of prejudicial

confusion as was present in Taylor, in which the defendant did not argue or present evidence

of self-defense, and the jury was at risk of thinking they needed to find self-defense before

it could find accident.1

CONCLUSION

¶20. On plain error review, we find no reversible error in the trial court’s grant of

Instruction C-13. We therefore affirm Harris’ convictions and sentences for first-degree

murder and aggravated assault.

¶21. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE,
McCARTY, EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR.

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Additionally, Taylor objected to the instruction at trial.

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