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MILAS LEON McDONALD v. STATE OF MISSISSIPPI

FEBRUARY 09, 1989

MILAS LEON McDONALD
v.
STATE OF MISSISSIPPI



BEFORE HAWKINS, P.J., SULLIVAN AND ZUCCARO, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Milas Leon McDonald was indicted by the grand jury of the Second Judicial District of Harrison County for feloniously committing an aggravated assault upon Stanley Polk with a deadly weapon, namely a gun, by knowingly shooting him with the intent to cause serious bodily harm, on December 9, 1985.

There is no dispute but that McDonald did in fact shoot Polk with a pistol, wounding him in the leg. McDonald was 19 and Polk 23 years of age. The two had had some previous difficulty. According to Polk the shooting was deliberate and unwarranted. There was also evidence adduced that after shooting Polk, McDonald attempted to shoot him again as he lay on the ground, and while he did not hit him with the next shot, McDonald beat Polk on the head with the weapon.

 According to McDonald he shot Polk in self-defense, believing the latter was armed, and only after Polk made a movement as though he was going for a weapon. In fact, Polk was unarmed.

 The jury returned a verdict of guilty, and McDonald, who had a previous conviction for robbery, was sentenced to twenty years imprisonment.

 LAW

 There is no merit to McDonald's contention that he was entitled to a directed verdict of acquittal, or a new trial because of the insufficiency of the evidence. A jury issue was clearly made that this was a premeditated shooting and wounding with a pistol.

 McDonald argues that he should have been permitted to adduce testimony as to previous specific acts of violence of Polk. To sustain this, he has zeroed in on Rule 405 (b) of the Mississippi Rules of Evidence (MRE):

 RULE 405. METHODS OF PROVING CHARACTER.

 * * * * *

 (b) Specific Instances of Conduct. In cases

 in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct.

 Of course, it has long been the rule in this State that when the question of who was the aggressor in either a homicide or assault with a deadly weapon prosecution, proof of the victim's bad reputation for violence or threats that he has made against the defendant is competent. Gates v. State, 484 So. 2d 1002 (Miss. 1986); Freeman v. State, 204 So. 2d 842 (Miss. 1969); Harveston v. State, 493 So. 2d 365 (Miss. 1986); Amis v. State, 204 So. 2d 848 (Miss. 1968).

 Such testimony is not competent, however, until there has first been some evidence adduced showing that the defendant acted in self-defense; or, put another way, that the victim had been the aggressor in the affray. Tillman v. State, 225 Miss. 275, 83 So. 2d 86 (1955); Shinall v. State, 199 So. 2d 251 (Miss. 1967); Fornett v. State, 392 So. 2d 1154 (Miss. 1981); Fisher v. State, 481 So. 2d 203 ...


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