Darius D. Johnson a/k/a Darius Dion Johnson a/k/a Darius Johnson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-KA-01308-COA

DARIUS D. JOHNSON A/K/A DARIUS DION APPELLANT
JOHNSON A/K/A DARIUS JOHNSON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/06/2020
TRIAL JUDGE: HON. JOHN H. EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/12/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

McCARTY, J., FOR THE COURT:

¶1. A defendant was convicted of aggravated assault for shooting his cousin. He now

appeals, challenging the jury instructions and the weight of the evidence. Finding no

reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Darius Johnson shot his first cousin Mario in both his legs, his scrotum, his hand, and

his back. The shooting occurred in front of the home where their mothers lived, along with

Johnson and his children, in Canton.
¶3. The cousins had a history of not getting along and had just run into each other at a

nearby gas station. Mario was in town for his sister’s funeral. He had stopped for gas on his

way to visit his mother, and Johnson was picking up ice.

¶4. According to Mario, he had been moved by the pastor’s words earlier that day warning

that “[l]ife is too short” to have problems with family. So upon seeing his cousin at the gas

station, he “thought it was a sign” and felt inspired to make amends. Mario approached

Johnson and asked, “What’s up?” At first Johnson laughed and said, “What’s up?” to which

Mario responded, “No, I ain’t talking like that. I’m just asking you what’s up.” Then

Johnson said, “I’ll tell you what the f*** up. Get the f*** away from my truck.” Mario

threw his hand in the air, gesturing at Johnson, and they each got in their cars.

¶5. Mario pulled behind Johnson, intending to leave the gas station. There was no traffic,

yet Johnson’s Tahoe did not move. Mario drove up beside Johnson, who then flashed a gun

at Mario. “[I]n shock,” Mario pulled out of the gas station and “took off to the right.” He

then turned around in the direction of his mother’s house. Meanwhile, Johnson had exited

the gas station and turned left, driving “really, really, really s[l]ow,” also toward the house.

Three or four cars separated the cousins. As Mario would later say, he was not concerned

Johnson would actually shoot him, so he continued on to his mom’s house.

¶6. Johnson arrived at the house first. When Mario pulled up, Johnson had already parked

his SUV and was walking toward Mario’s truck. Just as Mario started getting out, Johnson

“pulled the pistol and he started shooting.” Mario, who had no gun, “jumped back” in his

truck. Johnson fired several rounds and stopped briefly. Mario lifted his head, and Johnson

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resumed shooting. Each time Mario raised his head, Johnson continued shooting. Mario got

out of the truck and started “running zigzag” toward the house for safety.

¶7. As Johnson continued to shoot at him, Mario, wounded, ran through the yard toward

the front door. As he reached the flowerbed in front of the house, Johnson shot him “square

up in the back.” Mario tried to get in the house, but the front door was locked. At that point,

he turned to face Johnson and said, “Man, look . . . [d]on’t shoot me no f***ing more. I’m

trying to live. I’m trying to go to the hospital.”

¶8. Mario then walked around to the garage, leaving a trail of blood behind him. As he

went inside the house, he turned around and saw Johnson raise the gun up again. Mario

locked the door behind him. Mario’s aunt and mother drove him in his truck to the hospital.

¶9. Johnson remembered things differently. He claimed he did not see Mario at the gas

station until Mario pulled up next to his truck. Mario “jumped out” of his truck and started

hitting on Johnson’s window. According to Johnson, Mario said, “I ought’a kill you” to

which Johnson responded, “We ain’t cousin. We ain’t friends. . . . Just get away from my

truck.” Johnson alleges that Mario was the one who pulled a gun at the gas station just

before they left. He recalled that Mario “sped up behind [him]” and followed him to their

mothers’ house. When they arrived at the house, Mario “jammed the car up and threw it in

park” and “jumped out.” Scared, Johnson said he “chambered a round and shot.” Johnson

denies shooting Mario in the back, claiming he stopped shooting when Mario headed toward

the house.

¶10. Johnson was indicted for aggravated assault following the shooting. In addition to

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photographic and video evidence, at trial the jury heard testimony from Mario, Mario’s

mother, the officer and the sergeant who worked the scene, and the state medical examiner

Dr. Mark LeVaughn. Dr. LeVaughn testified about the wounds to Mario’s upper chest and

back, noting that a bullet entered Mario’s back and exited through the chest. As a result of

his injuries, Mario is unable to use his right hand and lost strength in his right arm. He can

no longer perform the job he did before the shooting.

¶11. Johnson asserted self-defense, and the jury received instructions on the theory. After

hearing the testimony and considering the evidence presented, the jury ultimately convicted

Johnson of aggravated assault. He now appeals.

DISCUSSION

¶12. Johnson raises two issues on appeal. First, he contends that the jury was improperly

instructed on the theory of self-defense. He also argues that the jury’s verdict was against

the overwhelming weight of the evidence.

I. The jury was properly instructed.

¶13. Johnson argues that the trial court failed to properly instruct the jury as to the

“imminent danger” element of self-defense, which in turn “eliminated [his theory] from

consideration.” Specifically, Johnson takes issue with Instruction 5, claiming that it

misstated the law, was unnecessary, and conflicted with another instruction.

¶14. It is well established that “jury instructions [are] within the sole discretion of the

circuit court.” Victory v. State, 83 So. 3d 370, 373 (¶12) (Miss. 2012). We therefore review

a trial court’s decision to grant or deny an instruction using an abuse of discretion standard.

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Newell v. State, 49 So. 3d 66, 73 (¶20) (Miss. 2010). Our Supreme Court has stated that “the

instructions actually given must be read as a whole.” Id. When considered together, the

instructions must “fairly announce the law of the case and create no injustice[.]” Id. Finally,

if “all instructions taken as a whole fairly, but not necessarily perfectly, announce the

applicable rules of law[,]” then no error results. Id. at 74 (¶20).

A. The instructions accurately stated the law.

¶15. We first address Johnson’s argument that Instruction 5 misstated the law with regard

to “imminent danger.” Instruction 5 provided:

Imminent danger is defined as an immediate threat to one’s safety that justifies
the use of force in self-defense. Further, immediate is defined as occurring
without delay; instant. There must be an overt act at the time of the incident
to justify a claim of self-defense.

Johnson claims that this instruction “purports to define” imminent danger but inaccurately

states the law by including “the additional problematic component” of an overt act. He

argues that “[i]mminent danger can exist without a per se overt act.”

¶16. This argument fails in light of recent authority from the Mississippi Supreme Court.

See Wells v. State, 233 So. 3d 279 (Miss. 2017). In Wells, the Court quoted Black’s Law

Dictionary in defining imminent danger as “an immediate threat to one’s safety that justifies

the use of force in self-defense—The danger resulting from an immediate threatened injury

sufficient to cause a reasonable and prudent person to defend himself or herself.” Id. at 285

(¶12). The Court further explained that “immediate” means “occurring without delay;

instant.” Id. Most relevant to Johnson’s case, it clarified that “[a]dditionally, our caselaw

provides that there must be an overt act at the time of the incident to justify a claim of self

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defense.” Id. (emphasis in original).

¶17. Notably, the language from Instruction 5 is taken directly from Wells. The record

shows that the trial court specifically reviewed and discussed Wells in its decision to grant

the instruction. Accordingly, we find that granting Instruction 5 based on this precedent was

not an abuse of discretion.1

¶18. Johnson argues, as he did at trial, that Wells does not apply here because the issue in

that case was not the approval of an instruction defining imminent danger, but rather whether

the evidence supported a theory of self-defense at all. While it is true that Wells did not

concern an instruction defining imminent danger, it did discuss at length the concept of

imminent danger as an element of self-defense. Id. More specifically, the Wells Court

surveyed a century and a half of law in holding that “there must be an overt act at the time

of the incident to justify a claim of self defense.” Id. (emphasis in original).

¶19. The relevant question is whether the instructions, when considered as a whole,

accurately stated the law. Instruction 5 used language directly from Wells—a recent, binding

decision from our state’s highest court holding that an overt act is required to prove self-

defense. Accordingly, we find that Instruction 5 accurately stated the law.

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Johnson argues, “The language plucked by the State from the Wells opinion does
not justify abstractly supplanting that verbiage into a jury instruction.” In supporting his
argument, he cites caselaw warning “against copying sentences from opinions . . . into
instructions.” Freeze v. Taylor, 257 So. 2d 509, 511 (Miss. 1972). However, the purpose
of this rule, as explained in Freeze and other cases cited by Johnson, is to avoid the use of
legalese that would confuse a jury. “Abstract instructions on legal principles unrelated to
facts and issues set out in the instructions are d[an]gerous, because, although such
instructions may be correct in principle, they require legal training to properly interpret.”
Id. A trial court’s decision to grant an abstract instruction is not reversible error “unless it
tends to confuse and mislead the jury.” Id. That situation is not presented in this case.

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B. Granting Instruction 5 was not an abuse of discretion.

¶20. In addition to his argument that Instruction 5 misstated the law, Johnson alleges it was

unnecessary to define imminent danger because the term was “adequately and accurately

covered by Instruction 4,” the primary self-defense instruction.2 Johnson cites no authority

to support his contention; nonetheless, it is without merit.

¶21. We have long held that the decision “[w]hether to grant or deny proposed jury

instructions is within the sole discretion of the circuit court.” Victory, 83 So. 3d at 373 (¶12).

Here, after taking time to review Wells, the circuit judge stated, “I believe that a definition

of imminent is needed . . .” and subsequently granted Instruction 5. Given the binding

authority of Wells, and the wide discretion afforded to the trial court, we find that granting

the instruction was not an abuse of discretion.

C. Instruction 5 did not conflict with Instruction 4.

¶22. Finally, Johnson asserts that Instruction 5 was improper because it contradicted

Instruction 4. He argues that unlike Instruction 4, Instruction 5 incorrectly implied that

imminent danger must be “actual.”

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Instruction 4 read in pertinent part:

To make such an act justifiable on the grounds of self-defense, the danger to
the defendant must be either: actual, present and urgent, or the defendant must
have objectively reasonable grounds, in the opinion of the jury, to apprehend
a design on the part of the other person to kill him or do the defendant some
great bodily harm. In addition, the defendant must have objectively
reasonable grounds, in the opinion of the jury, to apprehend that there is
imminent danger of such a design being accomplished. It is for the jury to
determine the reasonableness of the ground upon which the defendant acts.

(Emphasis added).

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¶23. To support his argument, Johnson cites caselaw holding that the danger can be “real

or apparent.” See Mitchell v. State, 90 So. 3d 584, 590 (¶13) (Miss. 2012) (stating that “[a]t

one time, common law required the danger to be actual, but now, the danger required must

be that which is reasonably apparent and imminent”); see also McGehee v. State, 138 Miss.

822, 104 So. 150, 150 (1925) (“While a person has a right to take life when it appears to be

necessary to reasonable men, he acts at his peril, because he must have reasonable grounds

to believe that what were appearances were in fact realities.”).

¶24. While Mitchell and McGehee accurately reflect the law, they do not preclude the

language in Instruction 5. The jury instructions are communicating different concepts of law.

After all, jury instructions should be read as a whole, and “[n]o one instruction should be

singled out.” Victory, 83 So. 3d at 373 (¶12).

¶25. As Johnson recognizes, Instruction 4 contains the following language: “the danger to

the defendant must be either: actual, present and urgent, or the defendant must have

objectively reasonable grounds, in the opinion of the jury, to apprehend a design on the part

of the other person to kill him or do the defendant some great bodily harm.” There was no

need to repeat such language in Instruction 5, as the instructions are meant to be read in

conjunction with one another. Therefore, the argument that Instructions 4 and 5 conflict is

without merit.

¶26. Given the trial court’s careful consideration of Instruction 5, and given the clear

authority of Wells, it was not an abuse of discretion for the trial court to grant the instruction.

II. The verdict was not against the overwhelming weight of the
evidence.

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¶27. Johnson argues that the jury’s guilty verdict was contrary to the overwhelming weight

of the evidence and requests a new trial on this ground.

¶28. “When reviewing a challenge to the weight of the evidence, the Court will disturb a

jury verdict only when it is so contrary to the overwhelming weight of the evidence that to

allow it to stand would sanction an unconscionable injustice.” Jones v. State, 154 So. 3d

872, 880 (¶24) (Miss. 2014) (internal quotation marks omitted). We “must accept as true the

evidence which supports the verdict.” Herring v. State, 938 So. 2d 1251, 1253 (¶14) (Miss.

Ct. App. 2006).

¶29. Johnson claims that the only evidence supporting the verdict is Mario’s testimony at

trial. Further, Johnson asserts that Mario’s testimony was “so unreasonable and unreliable

such that no reasonable juror could have considered it without having reasonable doubt about

Mario’s truthfulness.” However, it is well established that “[a] jury resolves matters of

weight and credibility.” Dehart v. State, 290 So. 3d 373, 376 (¶19) (Miss. Ct. App. 2020).

¶30. Even if Johnson’s theory were correct, the jury actually heard from several witnesses

at trial who supported the conclusion that Johnson committed aggravated assault. First,

Mario gave a step-by-step account of the incident, explaining how his cousin acted hostile

toward him at the gas station, flashed a gun at him, and then shot him repeatedly in front of

their mothers’ home—once in the back as he was running away. The jury also heard from

the officer and the sergeant who responded to and investigated the case. The state medical

examiner testified regarding some of Mario’s multiple, debilitating gunshot wounds.

Tellingly, Dr. LeVaughn noted that one bullet entered through Mario’s back and exited

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through his chest.

¶31. The weight and credibility of the testimony was for the jury to determine. The jury

considered the testimony, as well as the other evidence presented—including photographs

and video evidence—and ultimately voted to convict Johnson. By this decision, the jury also

effectively rejected Johnson’s theory of self-defense.

¶32. In light of this ample testimony, we cannot say that allowing the guilty verdict to stand

would “sanction an unconscionable injustice.” We therefore affirm the trial court’s denial

of Johnson’s request for a new trial.

CONCLUSION

¶33. Because the jury was properly instructed on imminent danger and the verdict was not

against the overwhelming weight of the evidence, the judgment is AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE AND SMITH, JJ., CONCUR.
EMFINGER, J., NOT PARTICIPATING.

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