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RANDY AVERY BROWN v. STATE OF MISSISSIPPI

FEBRUARY 20, 1985

RANDY AVERY BROWN
v.
STATE OF MISSISSIPPI



ON PETITION FOR REHEARING

EN BANC

JUSTICE DAN LEE FOR THE COURT:

In this appeal we are asked to decide to what extent a criminal defendant is allowed to present evidence corroborating his testimony as to his state of mind at the time he allegedly committed an aggravated assault and where his sole defense is that of self defense. The original opinion in this case (decided without dissent) was the subject of a Petition For Rehearing filed by the State. While we deny the State's petition, we nonetheless withdraw our original decision and substitute this one in its stead.

 On March 3, 1982, Connie Liddell was sitting in his car in the parking lot of the Golden Star, a nightclub. Beside the Golden Star was a laundromat and a hair salon. Directly across the road was a playground. As Liddell sat in his car, Brown crossed the street from the direction of the playground. When Liddell saw Brown coming he got out of his car and the two approached each other. Lidell stated "We got to talking and we argued and stood up in each other's faces and was talking." Liddell stated that the argument was about "past things going on." Apparently the "past things going on" was a personal feud between the two of them that had lasted for close to a year. This feud apparently stemmed from an argument that Brown had with Liddell's uncle. Liddell stated that he tried to get Brown to go behind a building and fight but "The next I knew he

 shoved me off and come up shooting."

 Liddell testified that after he was shot he ran behind his car and then chased Brown down an alley between the beauty salon and the Golden Star. Liddell claims to have then quit the chase and gone home. On cross-examination Liddell stated that the reason that he, an unarmed man, chased Brown, an armed man, was because "I wanted him that bad." Liddell admitted that Brown did not say anything to him before Liddell got out of his car and approached him. Liddell stated "When I got close to him I asked if he was ready to have his ass beaten." This was before Brown had said anything to Liddell. Liddell stated that he had not tried to start a fight but that "It was only words." Liddell denied ever having previously threatened Brown or passing any threats on to him through Brown's sisters. Liddell also denied ever exhibiting a gun to Brown.

 Brown took the stand in his own defense and testified that he pushed Liddell only after Liddell kicked him. He stated that he pulled his gun because of prior threats and gun play Liddell made against him. Brown then detailed a number of incidents in which he claimed Liddell had threatened him. The first of these confrontations was at a car wash where the two saw each other. Brown stated that Liddell went to the back of his car, opened his trunk and pulled out a pistol and displayed it to him in a threatening manner. The second such incident occurred when Brown was coming out of a store and Liddell rode by. Liddell stopped his car and told Brown he wanted to whip him. With that Liddell went to the car trunk, pulled a gun out and Brown left. Brown stated that on another occasion he was at the playground across the street from the Golden Star with his brother. Liddell came over and started shadow boxing in front of the car with a gun stuck in the back of his pants. Brown also testified that he had been told by his sisters that Liddell came in the laundromat when they were there with a stick in his hand threatening to whip Brown. Brown's brother and sisters corroborated his testimony regarding the prior threats.

 At trial, the circuit judge refused to allow Brown to testify that only two weeks earlier he had sought legal assistance because of his fear of Liddell. Brown was not allowed to testify that he had called the police for assistance after being threatened by Liddell because the trial court concluded it was "self serving." This was the only objection sustained on the "self serving" ground.

 Brown was prohibited from testifying that he had

 seen the city prosecutor for assistance because of his fears of Liddell on the ground that it was irrelevant. The trial court additionally prohibited Brown from introducing the testimony of the city prosecutor, Allan Purdie. On proffer, offered expressly to establish Brown's state of mind, Purdie's testimony was that Brown had come to him only two weeks before the shooting seeking some kind of legal protection from Liddell's harassments and threats. Purdie explained to Brown that he had a right to defend himself. The trial court sustained the state's objections to this evidence on the grounds that it was "irrelevant," and "unreasonable."

 It is important to remember that the only defense asserted by Brown was that of self defense. Because the key to the defense of self defense is the defendant's state of mind at the time of the incident and, because a defendant's testimony is often viewed with great suspicion, corroboration as to the defendant's state of mind is critical. Common sense and any lawyer who has defended a case of this nature will tell you that this is undeniably true. Brown's action in attempting to prevent any further trouble with Liddell by seeking the assistance of law enforcement officers is highly relevant to his state of mind leading up to the shooting. Since it is the jury's role to pass on the reasonableness of Brown's actions, they are entitled to be made fully aware of all relevant facts which reflect apprehension, fear or anxiety in his state of mind. Because such apprehension, fear or anxiety is a crucial element of self defense, the exclusion of this testimony had the effect of "whittling down" Brown's defense. Eaton v. State, 200 Miss. 729, 28 So.2d 230 (1946).

 Very recently, in Jackson v. State, 426 So.2d 405 (Miss. 1983), we wrote on whether a defendant may be allowed to introduce evidence of prior actions on the part of the victim which amount to harassments, threats and assaults directed toward the defendant. Jackson was being tried for the murder of her estranged lover. She claimed that the killing was in self defense. During the trial she attempted to introduce justice court records regarding convictions of the victim as the result of complaints made by her. The circuit court refused to allow those records to be admitted into evidence, although it did permit testimony as to the reputation of the deceased for peace and violence and for carrying firearms. On appeal we reversed the refusal of the trial court to allow the justice court records to be admitted into evidence. On that point we held:

 Under the undisputed evidence in this case, it is our opinion that much flexibility

 should have been given appellant in presenting prior harassments, threats and assaults directed toward her. Such evidence is material on the motives of both appellant and deceased in presenting the incidents that occurred in front of the store. The attitude, relationship and feelings of the accused and the deceased toward each other are material. Harley v. State, 345 So.2d 1048 (Miss. 1977); Rucker v. State, 248 Miss. 65, 158 So.2d 39 (1963); Clark v. State, 123 Miss. 147, 85 So. 188 (1920); Brown v; State, 88 Miss. 166, 40 So. 737 (1906); Guice v. State, 60 Miss. 714 (1883); and Josephine v. State, 39 Miss. 613 (1861).

 426 So.2d at 408.

 In an earlier case, Lee v. State, 160 Miss. 618, 134 So. 185 (1931), Lee appealed his conviction for the murder of Lanier. Under facts very similar to those now at bar, the sheriff was put on the witness stand to testify as to whether Lee had appealed to him for help after he had been assaulted by Lanier on a public road. The circuit court ...


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