BEFORE ROY NOBLE LEE, DAN LEE and ANDERSON
ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:
James D. Koch was convicted in the Circuit Court of Hancock County on a charge of murder less than capital and was sentenced to life in the custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns five (5) errors in the trial below.
THE LOWER COURT ERRED IN REFUSING TO GRANT APPELLANT'S REQUEST FOR A PEREMPTORY INSTRUCTION OF NOT GUILTY .
At the time of the homicide, February 9, 1983, appellant was fifty (50) years of age and resided in Bay St. Louis, Mississippi, where he was employed by the Bay St. Louis Police Department. He was also security chief at a shopping center in the community. Appellant had been married for twenty-one (21) years, but had been seeing and going with Delois Manning. He also helped her with odd jobs around the Manning house and with some of her business affairs.
At approximately 9:55 p.m. on February 9, 1983, Sheriff Ronnie Peterson of Hancock County, received a telephone call from appellant, who said that he had shot and killed a woman. The sheriff and two investigators went to the Manning home, arriving at 10:25 p.m. They found Mrs. Manning in bed, dead as a result of a gunshot wound to the left side of her head. Appellant gave two versions of what had happened, i.e., (1) that he was walking out of the bedroom area, where the victim was in bed, and heard her say," I'm going to kill you. "At that time he saw a flash out of the corner of his eye and, in one motion, he reached for his .357 Magnum revolver in a shoulder holster on his left side, pulled it out as quickly as possible, turned around and shot her.
(2) A few minutes later, the appellant changed his story and said that he reached for his .357 Magnum, pulled it from the shoulder holster, aimed it at Mrs. Manning, cocked the hammer and shot. He demonstrated his position from the victim at approximately six to eight feet. Appellant said that he never saw a gun in the victim's hand, only something shiny.
The officers observed a .25-caliber automatic pistol in the victim's hand, as she lay in the bed. Koch told the officers a number of times that he could have put the gun in her hand after he shot her, but he didn't remember and he would hang his head when making the statement. Investigator Alvin Ladner testified that the appellant stated," he didn't know why he killed her because he knew that she never would have shot him. "The testimony of Sheriff Peterson and Investigator Ladner was corroborated by the testimony of Investigator Delbert Seay. The appellant also told the officers that he and Mrs. Manning had been drinking beer and that they had an argument earlier in the evening.
Dr. John David Rutherford, III, an expert in the field of pathology, testified that the area around the entrance wound had a pock mark, or stippled area, corresponding to a large powder burn or" tattooing; "that there was some black particulate matter consistent with unburned powder; and, in his opinion, the deceased was shot at very close range. John Michael Allen, a forensic scientist, demonstrated how he had fired the revolver at different intervals from one (1) to twenty-four (24) inches. He stated that the gun powder pattern in the photograph of the deceased was consistent with the pattern formed when appellant's pistol was fired at a distance of less than eighteen (18) inches, but greater than one (1) inch. He identified scrapings taken from the deceased as having particles of gunpowder, and it was his opinion that the shot was fired from a distance greater than one (1) inch, but less than eighteen (18) inches.
In considering the request for a peremptory instruction of not guilty, the lower court must consider all the evidence, supporting the State's case as true, together with reasonable inferences, and, if that evidence will support a guilty verdict, then the request for a peremptory instruction must be denied. Weeks v. State, 493 So. 2d 1280 (Miss. 1986); Griffin v. State, 480 So. 2d 1124 (Miss. 1985); Johnson v. State, 476 So. 2d 1195 (Miss. 1985); Hammond v. State, 465 So. 2d 1031 (Miss. 1985); Warn v. State, 349 So. 2d 1055 (Miss. 1977).
We are of the opinion that the facts create an issue for the jury to determine as to the guilt of the appellant and
that the verdict is supported by the evidence.
THE LOWER COURT ERRED IN ADMITTING INTO EVIDENCE AN ENLARGED FULL-COLOR PHOTOGRAPH DEPICTING A GRUESOME SCENE WHICH WAS NOT PROBATIVE OF ANY FACT IN ISSUE AND MERELY INTENDED TO INFLAME THE MINDS OF THE JURORS.
This Court will not reverse the lower court on the ground that photographs are gruesome and prejudicial, unless the lower court has abused its discretion in admitting same. Watson v. State, 483 So. 2d 1326 (Miss. 1986); Cardwell v. State, 461 So. 2d 854 (Miss. 1984). Further, if photographs have probative value, they are competent and should be admitted by the lower court. ...