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CLARENCE EDWARD COOK v. STATE OF MISSISSIPPI

MARCH 13, 1985

CLARENCE EDWARD COOK
v.
STATE OF MISSISSIPPI



BEFORE WALKER, P.J., DAN M. LEE AND ROBERTSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Confronted by a drunken man, brandishing the large section of a two-piece pool cue in a dark lounge, Clarence Edward Cook panicked, took his friend's pistol out of his waistband and fired one shot, hitting Dudley Chandler, who was as close as two or three feet from him and heading in Cook's direction. After the shot, Chandler walked back to the bar, said something to the effect that "the nigger shot me," took a drink from his beer and fell to the floor. What had begun as an apparently friendly invitation from Chandler to play pool, ended in death.

 This appeal from the jury's verdict that Cook was guilty of manslaughter presents a question troubling the criminal justice systems of all states today: what are the rights and responsibilities of a citizen who is in a place where he has every right to be, engaged in an activity he has every right to participate in, and who is then threatened by another. The facts of these confrontations vary endlessly and are always bitterly disputed.

 In such cases, we have no choice but to accord great respect and deference to verdicts by properly instructed juries, for the chances of error and injustice in any determination we might make would be infinitely greater than is the case where those findings are made by an impartial jury drawn from a fair cross-section of the community. On the other hand, because we are sensitive to the difficulty of achieving justice and fairness in such cases, we review trial proceedings with care. Where, as here, the jury was not fully instructed regarding the law of justifiable homicide and self-defense, we have no authority but to reverse.

 II.

 A.

 The chain of events leading to the mortal wounding of Dudley Chandler began on March 10, 1982, at 10:00 a.m. Dudley Chandler and a friend, Mike Root, went to the Li'l Loafer Lounge in Gulfport, Mississippi, where they shot pool and drank beer off and on for the rest of the day. Because of Chandler's behavior while at the bar, which included hitting another person on the head with an ash tray, Kay Davis, the bartender on duty from 7:00 a.m. to 3:00 p.m., barred Chandler from the Lounge and told him if he returned she would "call

 the law" on him. Apparently some time after Chandler was ordered out of the lounge, he returned.

 At around 9:30 p.m., Clarence Edward Cook, Defendant below and Appellant here, and his friend Lee Hudson (both are black) stopped at the Li'l Loafer Lounge. Both Hudson and Cook had been to this lounge before. Hudson had previously shot pool there and never been involved in any trouble there. Cook remained in the car while Hudson went inside. When Hudson entered the lounge, he was met by Chandler (who was white), who followed Hudson into the bathroom. The bartender on duty at that time, Linda Chumney, was apprehensive because Chandler's friend, Root, told her that Chandler held a grudge against all black people. When they came out of the bathroom, Chandler was smiling and had his arm around Hudson. This scene appeared strange to Chumney. Chandler told Jeanine "J.J." Record that night that his wife had been shot and killed by blacks. Cook later became aware of this fact.

 Chandler and Hudson went outside the lounge, got Cook out of the car, and the well-inebriated Chandler invited the two black men to come inside and play pool. Cook purchased beers for all, and Hudson placed his quarters on the table to commence the game of pool. Chandler's lady friend, J.J., "broke the balls" with her shot. When Hudson sought his turn, he was told by Chandler that if he played a ball, he was going to get jumped upon. Hudson asked about his 50 cents, and when he received no response, he went to Chumney to advise her of the situation.

 Davis, who had returned to the lounge and was sipping a soft drink, saw what was happening and told Hudson she would give him a refund, but Hudson replied that Chandler owed him the money. Chandler, who had followed Hudson to the bar, cursed Davis and called Hudson a "m----- f------ nigger" or some such name and began slapping his pool stick in the palm of his hand and telling Hudson to leave the lounge. Chandler told Hudson either to get his "black ass" out or "I told you to get the hell out of the bar." Although Hudson said he did not want any trouble, Chandler, nevertheless, poked or pushed Hudson in the back with a pool stick, forcing Cook and Hudson to leave. After the black men had gone, Chandler bragged how he had run the "niggers" out of the bar.

 Hudson and Cook, riding in Hudson's mother's Cadillac - which had a history of having a weak battery requiring jumps from other cars - went in the direction of Phillips College where Hudson planned to meet a girl at 10:00 p.m. Cook got out of the car at the Li'l General Food Store on Cowas Road, and Hudson continued his trip to the college. Hudson

 evidently failed to meet his girl as planned and returned a few minutes later to where he had left Cook and both men returned to the Li'l Loafer Lounge approximately 20 minutes after they had first left it.

 For reasons neither made clear nor adequately explained, Cook picked up a gun Hudson had in the car and put it in his waistband as the two walked in. Hudson preceded Cook into the bar and headed straight for the bartender to ask for his money. Hudson was not loud nor did he use foul language, but Chandler, who was standing nearby at the bar beside Root and Record, responded, "I'll give you your damn 50 cents." Chandler told Hudson that he had gotten run out of the bar before and he was going to get run out again. Cook, standing by the door, watched the events and said nothing.

 Chandler then grabbed the large part of Record's two-piece pool cue, which had been unscrewed and was lying on the bar. His demeanor menacing, Chandler headed toward Hudson, while Hudson backed away in the direction of the door Hudson retreated past Cook and out of the door, leaving Cook, who was then in a panic, to face Chandler. Cook, thinking he was about to be hit with a pool stick, pulled the gun, fired once and fled out the door. The two men then got in the Cadillac, the motor of which had been left running, and left. Cook and Hudson were arrested a few hours later and Cook gave a statement to police concerning the events of that night.

 B.

 Procedurally, this criminal prosecution was commenced on April 23, 1982, when the Grand Jury of the First Judicial District of Harrison County, Mississippi, charged in an indictment that Clarence Edward Cook and Lee Ellis Hudson had on March 10, 1982, murdered Dudley Forrest Chandler, contrary to the laws of this state. Miss. Code Ann. 97-3-19 (1)(a) (Supp. 1982). On June 16, 1982, the Circuit Court ordered a severance of the charges against Cook and Hudson.

 On June 28, 1982, this case was called for trial in Circuit Court in Gulfport, Mississippi. At the conclusion of the State's evidence, Cook moved for an order of dismissal on the grounds that the State's evidence was insufficient as a matter of law to sustain a conviction of murder. In the alternative, Cook asked that the charges be reduced to manslaughter. The trial judge overruled the defense motions but gave his opinion that an instruction on the lesser included offense of manslaughter should be submitted to the jury.

 Thereafter, Cook presented his case, and after both sides

 had rested, Cook requested that the jury be instructed peremptorily that he should be found not guilty. This request was denied. The State then requested that the jury be instructed regarding the lesser-included offense of manslaughter. Cook objected several times on the grounds that there was no basis in the evidence to support the giving of a manslaughter instruction. A careful review of the record suggests that Cook was objecting to the submission of any manslaughter instruction at all rather than to the form of the particular manslaughter instruction which was ultimately presented to the jury.

 At Cook's request the trial judge granted a standard self-defense instruction. Cook also requested Instruction No. D-8 which, in effect) would have advised the jury that, under the facts of this case, Cook was not required to flee when Chandler approached and that Cook did not by standing his ground lose the right to claim that the homicide was justifiable. Miss. Code Ann. 97-3-15 (f) (1972). Instruction No. D-8, about which more will be said later, was denied.

 In any event, on June 29, 1982, the matter was submitted to the jury on the charge of murder brought in the indictment, on the lesser-included offense instruction of manslaughter and on the defense's theory of self-defense. The jury found Cook guilty of manslaughter and on the following day Cook was committed to the custody of the Mississippi Department of Corrections for a term of fifteen (15) years.

 Cook timely filed the usual post-trial motions, challenging both the sufficiency and the weight of the evidence against him. These motions were overruled, ...


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