PRATHER, JUSTICE, FOR THE COURT:
Recognizing that innovative alternatives to the traditional criminal sanction of imprisonment were needed, our legislature enacted the Restitution to Victims of Crime Act. Miss. Code Ann. 99-37-1 et seq. Victim restitution in the criminal process is an issue in this appeal. William Curtis Butler, defendant below, was tried in the Circuit Court of Harrison County for the shooting death of Charles F. Lassabe. The jury found him guilty of manslaughter, and he was sentenced to twenty (20) years imprisonment in the Mississippi Department of Corrections; however, Butler's sentence was suspended and Butler was placed on probation for a period of five (5) years on certain conditions, including restitution to victims. From this conviction he now perfects his appeal to this Court and assigns as error the following:
(1) The trial court erred in refusing the appellant's jury instruction D-10.
(2) The trial court erred in refusing to grant appellant's jury instructions D-11 and D-12.
(3) The trial court erred in not granting the appellant's peremptory instruction.
(4) The trial court erred in overruling the motion for new trial or alternatively for JNOV.
(5) The trial court erred in the imposition of sentence.
The appellant in this case, William Butler (Bill), was an attorney living in Pass Christian, Mississippi at the time of this tragic event. For tax shelter purposes, he desired to purchase a shrimp boat. The deceased, Charles F. Lassabe (Chuck), was to be hired by Butler to captain the shrimp boat. The two men had been spending time together searching for a shrimp boat for the appellant to buy.
On August 27, 1985, Bill and Chuck spent part of the day looking for a suitable boat for Bill to purchase. After spending most of the day looking for a boat, Bill and Chuck went to Mary's Grocery, a bar, to drink beer and shoot pool. Butler's wife, Janie, drove to Mary's Grocery around 8:30 p.m. While she was having a conversation with Bill, Chuck asked
Janie to bring his girl friend, Dawn Carter, (nicknamed Dee Dee) from her father's house. Janie said that she was tired and did not feel like transporting Dee Dee, but Chuck apparently insisted and Janie claimed that he called her a "bitch." Chuck also allegedly told Bill "if you don't like me calling your wife a bitch, I'll stomp your brains through the ground right here."
Eventually Janie consented to bring Dee Dee from her father's house to meet the group at the Butler residence. Bill and Chuck remained at Mary's Grocery.
When Bill finished his last game of pool, Chuck was on the telephone. Bill approached him and stated, "come on Chuck, I'm going to take you home so you can scratch your old lady's behind." Chuck threw the telephone down and struck Bill in the mouth, cutting his lip in the process. No fight broke out at this time, and apparently Bill even purchased several rounds of beer for everyone. He and Chuck remained at the bar for approximately 30 more minutes and then drove to the Butler residence.
When the two men arrived at the Butler residence, they were apparently on good terms and in fact were laughing and joking. When asked about his lip, Bill related that Chuck had hit him. Chuck then said, "I explained why I hit you and I apologized." At this point, Janie and Bill, Chuck and Dee Dee, were seated at the dining room table. The four parties conversed for approximately 15 minutes without any threats being made by anyone. Bill got up to go to the bathroom; while he was gone, Janie suggested that perhaps Chuck and Dee Dee should go to bed.
At trial, Dee Dee testified that when Bill returned from the bathroom he was a "different person" , meaning that he was very angry. Janie testified that Bill was not angry, but that he did ask Chuck to leave. Chuck apparently refused to leave, stating that he wanted to get everything worked out. Janie testified that Chuck stood up and said, "You're not going to hire me on the shrimp boat" and "you are a dead m___ f___." Chuck walked over to where Bill was sitting and either pushed or hit Bill and a fight ensued.
Dee Dee testified that Chuck picked up a chair and threw it in the direction of Bill's right leg. Janie testified that Chuck had kicked the chair and knocked it into the kitchen doorway, but she also testified that she did not observe him throw a chair at Bill. In any event Chuck was standing over Bill, who was lying on the floor and Janie also testified that she did not see any weapon in Chuck's hands during the
Bill testified that when he had gone to the bathroom earlier, he had picked up his 38 caliber pistol and placed it in his pocket. Chuck approached him and struck him on the left shin with a broken chair leg. Apparently fearing for his safety, Bill took out his gun and said "Chuck you are not going to kill me in my own house, get out." Chuck grabbed Bill by the hair, in the process ripping out a chunk of it, and a struggle took place. When the gun was free, Bill fired the weapon. Bill claimed that he was flat on his back when he shot Chuck and was partially trapped by a chair and table. He also stated that he shot Chuck as a last resort, to preserve his life and the life of his family. Janie was pregnant at the time.
The bullet from Bill's gun struck Chuck in the left upper portion of his torso, piercing his heart and killing him. Janie called the police, who arrived soon thereafter. When asked what had happened, Bill replied "I just shot the s__-of-a-b___." After Bill posted bond the next day, he went to the emergency room of Gulfport Hospital and was treated for a small laceration on the left side of his upper lip, a swollen right hand and an abrasion on his left shin. He also had a broken rib. However, these injuries did not require hospitalization. Butler was tried on November 4-6, 1985, and was found guilty of manslaughter.
DID THE TRIAL COURT ERR IN REFUSING THE DEFENDANT'S JURY INSTRUCTION D-10?
William Butler argued at trial that he had shot Charles Lassabe in self-defense. It was his contention that Lassabe instigated the incident and that he was only protecting himself and his family. Therefore, he requested a jury instruction on self-defense. His self-defense instruction, D-10, read as follows:
The court further instructs the jury that the defendant was entitled to act upon appearances, and if the conduct of the deceased was such as to induce in the mind of a reasonable person (under all circumstances then existing and viewed from the defendant's standpoint) a fear that death or great bodily harm was about to be inflicted on him by the deceased then it does not matter if there was no such danger, provided that the jury believe that the defendant acted in
self-defense from a real and honest conviction. Therefore, if under the circumstances, you find that the defendant acted in necessary defense of himself you shall find him "not guilty."
The assistant district attorney objected to this form of the jury instruction.
The trial judge reviewed this instruction and gave a different instruction based on an earlier instruction filed by Butler's previous counsel. The amended instruction, marked D-9 (A) read as follows:
The court instructs the jury that the killing of a human being is justified if the defendant was acting in necessary self-defense because he had reasonable grounds to fear under all the circumstances in evidence that he was in danger of great personal injury and that there was imminent danger of such bodily harm occurring. If you find that the homicide is justifiable in accordance with all of the instructions herein granted, then you will find the defendant not guilty.
Both parties, including Butler's defense counsel, stated that they had no objection to the amended instruction.
This Court has long held that the failure of a party to object to a jury instruction at the trial level bars that person's right to challenge the jury instruction on appeal. Moawad v. State, 531 So. 2d 632, 635 (Miss. 1988); Cole v. State, 525 So. 2d 365, 374 (Miss. 1987); Lockett v. State, 517 So. 2d 1317, 1332-1333 (Miss. 1987). Not only did counsel for Butler fail to object to the jury instruction, in fact, he acquiesced in the giving of that instruction. Therefore, it is the opinion of this Court that he cannot now be allowed to ...