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FEBRUARY 01, 1989




We know the sheriff has been shot and killed. We know who did it. We know the community's sense of loss and outrage, for we are a part of that community. The judicial function divines the legal consequences of this dastardly act.

Not every killing is legally murder. Even where the victim is a peace officer, the positive law of this state - depending upon the facts - defines several genera and species of homicide with life or death differences in punishment. Our oaths charge that we examine what happened at trial and determine how the choice among those legally defined genera and species has been made, and whether that making conformed to law, for if conformity to law be lacking, we are bound to


 Where the facts may fit two or more of the legally defined genera of homicide, the accused may of right demand that the jury be instructed of the alternatives the law affords. Only then may the jury know its duty. Here at the very least the facts on one reasonable interpretation reflect that Bart Helgrin Mease was guilty of capital murder under Miss. Code Ann. 97-3-19 (2)(a) (Supp.1988). *fn1 On another reasonable interpretation the facts reflect Mease guilty of manslaughter within Miss. Code Ann. 97-3-27 (1972). *fn2 The jury was not told it could or should consider the manslaughter option. We reverse and remand.


 Osborne Bell was elected sheriff of Marshall County, Mississippi on November 6, 1979. He served his people with distinction. Sheriff Bell was a leader in law enforcement and in his community as well. He died in the line of duty on the morning of May 7, 1986.

 Bart Helgrin Mease, then 22 years of age, and Paula Lush, 32 at the time, were "social friends" who had met recently in Atlanta. On Tuesday evening, May 6, 1986, the two set out from Atlanta in a rented white convertible Mustang, their destination Lush's hometown of Wyatte, Mississippi, thirteen miles from Holly Springs, ostensibly to move Lush's effects back to Atlanta. Mease came along to ride Lush's motorcycle back for her.

 Mease and Lush appear very much a part of this society's drug culture. For most of the afternoon before they left Atlanta, each used methamphetamine and lidocaine. On the road each injected more of the same drugs, drinking caffeine (coffee) every three hours or so. Mease was using maybe three times more of the drugs than Lush, though nothing turns on the point.

 When they neared Lush's hometown early Wednesday morning, Mease pulled the car off Highway 4 onto Highway 309, in southwest Marshall County. Mease turned the car around and parked facing south on the right side of the road and got out to freshen up. Lush became nauseous. They remained on the side of the road about two or three feet off the pavement for about an hour as Lush tried to quell her nausea.

 Bernice Totten, Supervisor for the Fourth District of Marshall County, was preparing a work crew for a job that day. She received an unidentified call over her CB radio that a

 suspicious vehicle was parked on Highway 309. Totten drove past the rented vehicle, took down the license number, radioed it in to the Marshall County Sheriff's Office and went on to work.

 Deputy Sheriff Walter Bell, Osborne's third cousin, was on duty when Totten's call came in. The dispatcher gave Walter *fn3 the call and he went to the scene. Approximately thirty minutes after Totten came by, Walter pulled his marked vehicle across the highway and parked nose-to-nose with the Mustang. Walter got out of his car and approached the Mustang.

 Lush thinks she may have met Walter halfway. As he neared the car Walter saw "particles and syringes and cotton" on the driver's side on the ground. Walter asked for Mease's license. As he did so he noticed a spoon in the ashtray and on the back seat a jug of liquid and luggage. There was an open black leather bag on the top of the vehicle. Walter noticed "track marks" on both Lush and Mease's arms, and Mease admitted to being a user.

 Walter ran a license check which came up clean. He went back to the car and, with Mease's and Lush's permission, looked through the property in the back seat. With Lush's permission, Walter searched the trunk, finding a box of syringes.

 At this point Walter called in for aid. He returned to Lush and Mease's car and told them someone else was coming out and to wait. Walter did not read them their rights but agrees that "at that point I probably would not have let them go." Lush says they waited about forty-five minutes; Walter says fifteen. Lush and Mease smoked by the car, reached into it for more cigarettes, and talked. There was a small, loaded .22 caliber pistol belonging to Lush resting in a side panel in the driver's door. For some reason Walter did not find or remove it. At some point, according to Lush, she told Mease to get rid of the pistol but, just prior to the Sheriff's arrival, Mease put the pistol in a red bag he was carrying.

 Sheriff Osborne Bell, in uniform, arrived and parked his patrol car across the highway from the other vehicles. Walter walked over to the Sheriff's car and they agreed to take Lush and Mease into custody. Lush and Mease were asked to empty their pockets. While the Sheriff brought Lush (and her small dog) back across the road to his car, Walter retrieved needles and a jug of what appeared to be alcohol from bushes near the car.

 The Sheriff placed Lush in the passenger side of the front seat of his patrol car. Then the Sheriff removed a .357 Magnum he kept on the front seat and placed it, still in its holster, on the trunk of his car. The Sheriff opened the back door of his vehicle (the passenger side which faced the trees), and Walter walked Mease over to the car, handing him to the Sheriff. Walter testified that he had patted down Mease, who was dressed in shorts, for a weapon by this time. Lush was never frisked. Walter then lifted the .357 from off the trunk.

 As the Sheriff began to handcuff Mease, Walter says Mease grabbed the Sheriff, putting his right hand across the Sheriff's right shoulder. Lush says Mease grabbed the Sheriff from the rear. Mease and the Sheriff began to scuffle. Walter came around from the other side of the car to intervene not knowing, he says, that Mease had the small .22 pistol in his hand. Walter hit Mease over the head with the butt of his .357. Then he hit him again. The pistol discharged and the bullet struck the Sheriff in the neck.

 The defense rests its case on the premise that Mease fired reflexively, not intentionally. Walter says his .357 discharged once. Two spent shells, however, were found from the .357 and one from the .22 - the bullet had passed through Sheriff Bell's head and exited his ear. In corroboration, Lush heard three gunshots.

 Lush got out of the car and saw Mease lying face down on the ground with a flesh wound. The Sheriff was still standing, with blood shooting from the side of his face. He then went to his knees. Walter was extremely upset but at Lush's prompting, called for an ambulance. Mease, still conscious, was lying about eight inches from the .22 on the ground.

 Apparently, there was considerable delay (up to an hour and one half) before a helicopter finally took Sheriff Bell to a hospital in Memphis, where he died. State Medical Examiner Dr. Thomas Bennett, an expert in pathology and forensic pathology, found a perforating wound consistent with a small caliber projectile. The wound was a "tight contact range" gunshot which means, Dr. Bennett testified, "the end of the gun barrel was tightly held against the skin when the shot was fired." There can be no doubt that the shot Mease fired proximately caused Sheriff Bell's death.

 Meanwhile Mease was taken to the Marshall County Hospital only twelve miles away. Mease was taken into custody at the hospital by Officer Kenneth Dickerson of the Mississippi

 Highway Patrol. Mease told Dickerson that he had shot the Sheriff with a small gun he had under his watch band. B.

 Bart Helgrin Mease was indicted May 12, 1986, by a Marshall County Grand Jury for the capital murder of Osborne Bell. Miss. Code Ann. 97-3-19 (2) (a) (Supp.1988). Trial of the case was transferred to Winston County upon Mease's motion for a change of venue. The case was called for trial in Louisville, Mississippi, on March 30, 1987, before a Winston County jury. That jury returned a verdict that Mease was guilty of capital murder. The next day the same jury sentenced Mease to death.

 From his conviction and sentence, Mease appeals to this Court. III. A.

 Today's outcome determinative issue is Mease's argument that the Circuit Court erred when it refused to instruct the jury on manslaughter and to direct the jury to consider whether it ought return a manslaughter verdict. The record reflects that the defense requested five separate manslaughter instructions, each of which was refused. *fn4 None of these instructions, it should be added, adequately tracked the language of the particular manslaughter statute implicated by the facts, Miss. Code Ann. 97-3-27 (1972), a point to which we return later.

 The Circuit Court refused all five manslaughter instructions, stating

 There has been absolutely no evidence in this record as to this crime being manslaughter as opposed to capital murder. There has been absolutely no evidence that the Defendant did not know that the deceased was a law enforcement officer, and consequently, I could not give a lesser included offense instruction as to simple murder in this case, Mr. Hill. I simply do not believe that the evidence and facts presented would bear the granting of a lesser included offense.

 The defense concedes that Sheriff Bell was killed as a result of a round fired from the weapon which Mease was holding. However, Mease maintains that one fair

 interpretation of the evidence is that the gun fired as a result of a reflexive action not giving rise to the required elements of Section 97-3-19 (2)(a); hence, his entitlement to a manslaughter instruction.


 At common law the jury was permitted to find the defendant guilty of any lesser offense necessarily included in the offense charged. Beck v. Alabama, 447 U.S. 625, 633, 100 S. Ct. 2382, 65 L.Ed.2d 392, 400 (1980); see 2 C. Wright, Federal Practice & Procedure, 515, n.54 (1969). This rule developed as an aid to the prosecution in cases in which the proof failed to establish some element of the crime charged.

 Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.

 Keeble v. United States, 412 U.S. 205, 208, 93 S. Ct. 1993, 36 L.Ed.2d 844 (1973).

 A second tenet of common law validated the offense of felony-murder: an unintentional killing in the perpetration of or in an attempt to perpetrate a felony constitutes murder. 40 C.J.S. Homicide, 21; Stein v. People of State of New York, 346 U.S. 156, 73 S. Ct. 1077, 97 L.Ed. 1522 (1952). This common law rule has been modified by statute in some jurisdictions, including Mississippi.

 In some jurisdictions, the courts have established the doctrine that a homicide occurring in the commission, or attempt to commit, a felony other than one specified in the felony- murder statute may be first degree murder or murder in a lower degree. . . . of course, though a homicide occurring in the commission, or attempt to commit, a felony other than one specified in the felony-murder statute may at least constitute some lower grade of culpable homicide.

 40 Am. Jur.2d, Homicide, 72.


 Mississippi has gone one step beyond this general statutory exception, for we have adopted a statute, among others, which provides that a homicide, without intent, and in the course of a felony not enumerated, is manslaughter. Miss.

 Code Ann. 97-3-27 (1972) states:

 The killing of a human being without malice, by the act, procurement, or culpable negligence of another, while such other is engaged in the perpetration of any felony, except rape, burglary, arson, or robbery, or while such other is attempting to commit any felony besides such as are above enumerated and excepted, shall be manslaughter.

 There can be little doubt that Bart Mease was guilty of some crime when he cocked his pistol and pointed it at Sheriff Bell. Most probably we would label Mease's other crime aggravated assault. Miss. Code Ann. 97-3-7 (Supp.1988). But aggravated assault is not a felony within the exclusions of the manslaughter statute, Section 97-3-27. The killing of a human being without malice and by culpable negligence remains murder only where done in the course of one of these four: rape, burglary, arson or robbery. By no stretch of the imagination may Mease's "other" conduct be said to fit one of these. The defense sought to prove at trial that Mease fired his pistol accidentally, as a reflexive action induced by the head blows he received from Walter. We faced an analogous situation in O'Bryant v. State, 530 So.2d 129 (Miss.1988) and concluded Even if the killing was accidental, at most it would have reduced the crime from murder to manslaughter.

 530 So.2d at 134. For the moment it is sufficient that the accidental, reflexive discharge of a cocked, loaded pistol killing another may be manslaughter.

 That Osborne Bell was a peace officer does not render his death capital murder per se, nor does it preclude a conclusion of Section 97-3-27 manslaughter if the facts otherwise fit. Lanier v. State, 450 So.2d 69, 79-80 (Miss. 1984), where a peace officer was slain, holds on similar facts that "a manslaughter instruction is proper and essential when the evidence warrants," and, as well, that "the homicide of a law enforcing officer can be manslaughter." Lanier, 450 So.2d at 79; see Williams v. State, 122 Miss. 151, 84 So. 8, 14 (1919); Jones v. State, 170 Miss. 581, 587, 155 So. 430 (1934); Coleman v. State, 218 Miss. 246, 67 So.2d 304, 305 (1953).

 Today's issue has been addressed in Spencer v. State, 348 So.2d 1030 (Miss. 1977), where we said:

 Hendrick Spencer was convicted of the capital murder of a police officer under the provisions of

 Mississippi Code Annotated section 97-3-19 (2) (a) (Supp. 1976) and was sentenced to death.

 * * *

 Appellant has also assigned as error the trial court's refusal to grant an instruction that defined the lesser included offense of manslaughter and permitted the jury to find the defendant guilty of that offense if supported by the evidence. The question is answered by Jackson v. State, supra. [W]hen warranted by the evidence, the trial court may instruct the jury with reference to lesser included offenses. However, such an instruction should not be indiscriminately or automatically given, as was condemned in Roberts v. Louisiana, supra, 428 U.S. [325] at 334, 96 S. Ct. [3001] at 3007, 49 L.Ed.2d [974] at 982, but should only be given after the trial court has carefully considered the evidence and is of the opinion that such an instruction is justified by the evidence. (337 So.2d at 1255)

 The trial judge was without benefit of the Jackson holding during the trial of the case, but should follow its ruling and instruct the jury as to lesser included offenses if the evidence adduced upon retrial should justify the giving of such instruction.

 Spencer, 348 So.2d at 1030. Bart Mease, the same as any other criminal defendant, is of right entitled to have the jury instructed regarding any offense carrying a lesser punishment arising out of a common nucleus of operative fact with the scenario giving rise to the charge laid in the indictment. See also Griffin v. State, 533 So.2d 444 (Miss. 1988).


 We have repeatedly held that the accused is entitled to a lesser offense instruction only where there is an evidentiary basis in the record therefor. Lee v. State, 469 So.2d 1225, 1230 (Miss.1985); Ruffin v. State, 444 So.2d 839, 840 (Miss.1984); Colburn v. State, 431 So.2d 1111, 1114 (Miss. 1983). Such instructions should not be granted indiscriminately, Lee v. State, 469 So.2d at 1230, see, e.g., Ruffin v. State, 444 So.2d at 840; Colburn v. State, 431 So.2d

 at 1114, nor on the basis of pure speculation. People v. Simpson, 57 Ill. App. 3d 442, 448-49, 15 Ill. Dec. 463, 466, 373 N.E.2d 809, 812 (1978); Fairchild v. State, 459 So.2d 793, 801 (Miss.1984).

 Our evidentiary standard is laid out in Harper v. State, 478 So.2d 10 7, 1021 (Miss.1985):

 [A] lesser included offense instruction should be granted unless the trial judge - and ultimately this Court - can say, taking the evidence in the light most favorable to the accused and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, that no reasonable jury could find the defendant guilty of the lesser included offense (and conversely not guilty of at least one essential element of the principal charge).

 Harper, 478 , So.2d at 1021; Fairchild, 459 So.2d at 800; Lee v. State, 469 So.2d at 1230-31. Harper employs slightly different language than Ruffin v. State, 444 So.2d at 840:

 [O]nly if this Court can say, taking the evidence in the light most favorable to the accused, and considering all reasonable favorable inferences which may be drawn in favor of the accused from the evidence, and considering that the jury may not be required to believe any evidence offered by the state, that no hypothetical reasonable jury could convict [the defendant] of simple murder, can it be said that the refusal of a lesser included offense instruction was proper.

 See most recently Rowland v. State, 531 So.2d 627, 631 (Miss.1988).

 A third and simpler version is found in Monroe v. State, 515 So.2d 860, 863 (Miss.1987): "[T]he evidence in a particular case generally warrants granting a lesser offense instruction if a `rational' or a `reasonable' jury could find the defendant not guilty of the principal offense charged in the indictment yet guilty of the lesser included offense." Only where the evidence could only justify a conviction of the principal charge should a lesser offense instruction be refused. (emphasis added) Ruffin v. State, 440 So.2d at 840; Fairchild, 459 So.2d at 800; Lee, 469 So.2d at 1231. Reflection makes clear that all of these tests are different ways of saying the same thing.

 Neither the trial court nor this Court should ask which way the evidence preponderates - capital murder or the lesser offense.

 [W]e likewise do not merely ask if there is sufficient evidence to sustain the jury's verdict of guilty of capital murder. The answer to that question in this and other cases may be `yes' and there still be ...

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