BEFORE ROY NOBLE LEE, DAN LEE AND PRATHER
DAN LEE, JUSTICE, FOR THE COURT:
Archie Leon Holmes, Jr. was indicted in the First Judicial District of Harrison County and charged with the murder of Timothy Ray Albert. On March 9, 1983, after three days of trial, Holmes was found guilty of murder and sentenced to life imprisonment in the Mississippi State Penitentiary.
On July 10, 1982, between 4:00 and 5:00 p.m., Archie Leon Holmes, in search of his girlfriend, Michelle Montgomery, went to the house trailer of Tim Albert. Albert told Holmes that he had given Montgomery a ride to Biloxi earlier but that he did not know her exact whereabouts at that time. Apparently satisfied, Holmes left the trailer and went to a nearby lounge where he danced and drank until sometime near midnight.
Holmes returned to Albert's trailer early on July 11, at about 1:00 a.m. At that time Tim Albert; his brother, John; a friend, Mike Jackson; and Holmes's girlfriend, Michelle Montgomery, were present at the trailer. Tim Albert met Holmes outside the trailer and a fight ensued during which Holmes pulled a knife on Albert. Holmes claims that during the scuffle he severely cut his own finger. Holmes was subdued by Tim Albert and the others who also summoned the police. After the police arrived and calmed the combatants, the two shook hands and Holmes left.
Holmes maintains that he then went to his mother's house, nursed his wounded finger and slept until he was awakened by police officers sometime after 6:00 a.m. Holmes's mother corroborates his story.
At about 2:00 to 2:30 a.m. that same evening, Tim Albert, Michelle Montgomery and another friend, Vivian Kekahuna, were sitting in the house trailer drinking beer. A shot was fired from outside the trailer, through a kitchen window and into the room where the three sat. All three immediately dove to the floor. After a few moments, Tim Albert stood up, peered out the window and said something to the effect of "Leon, I'm gonna kill you." Another shot was fired; it struck Tim Albert in the forehead.
At about the same time, John Albert (who had been present during the earlier fracas) and two friends were driving over to check on John's brother, Tim Albert. As they approached the vicinity of the trailer, they heard a sound
similar to the report of a firecracker. They drove through an alley behind the trailer in order to see what was happening. They saw Archie Leon Holmes standing outside the trailer, breaking glass out of the kitchen window using what appeared to be a gun barrel. The three immediately drove to a nearby grocery store and used a pay phone to call the police. Subsequently, they followed the police to the trailer where they saw Tim Albert lying on the floor and the two women crying.
Police Detective John Dawson was called to the scene at approximately 3:00 a.m. He took photographs of the crime scene, one of which will be discussed infra. He also found two .22-caliber "short" cartridges on the ground outside Albert's trailer, underneath the kitchen window.
A Biloxi police officer was sent to the home of Holmes's mother at approximately 4:00 to 4:30 a.m. in an effort to locate Holmes's dark green Ford automobile. It was not there at that time.
After 6:00 a.m., officers returned to the home of Holmes's mother and found Holmes's car parked nearby. Holmes was in the house, asleep.
Tim Albert was kept alive on a ventilator until he was determined to be brain dead. His death was caused by a small caliber gunshot wound. The weapon which caused that wound was never found.
At trial Holmes submitted the following manslaughter instruction to ...