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Kierce v. State

March 24, 1998

KIERCE V. STATE


Before McMILLIN, P.j., Herring, And Hinkebein, JJ.

The opinion of the court was delivered by: Hinkebein, J.

ROBERT GLENN KIERCE, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 3/3/95

TRIAL JUDGE: HON. JOHN H. WHITFIELD

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF

DISPOSITION AFFIRMED - 3/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

Robert Glenn Kierce [hereinafter Kierce] was convicted in the Circuit Court of Harrison County of aggravated assault. Aggrieved by his conviction, Kierce appeals from the circuit court's judgment with the following assignments of error:

I. DID THE TRIAL COURT ERR BY REFUSING INSTRUCTION D-4 WHICH CORRECTLY INSTRUCTED THE JURY ON ACCIDENTAL FIRING OF THE

GUN OR FIRING OF THE GUN CAUSED BY THE VICTIM STRIKING THE GUN?

II. DID THE TRIAL COURT ERR BY NOT GRANTING MR. KIERCE A MISTRIAL AFTER PREJUDICING THE JURY BY STATING THAT ANOTHER CHARGE WAS PENDING AGAINST MR. KIERCE?

III. WAS THERE MISCONDUCT ON THE PART OF THE PROSECUTOR DURING HIS CLOSING ARGUMENT FROM STATEMENTS MADE BY HIM THAT COULD NOT HAVE REASONABLY BEEN INFERRED FROM THE FACTS OF THE CASE THAT MAY HAVE PREJUDICED THE JURY?

Holding Kierce's assignments of error to be without merit, we affirm the judgment of the circuit court.

FACTS

On December 1, 1993 Kierce drove to the residence of Dewayne Maloney [hereinafter victim]. The victim walked up to Kierce's automobile as it pulled into his driveway. Kierce and the victim soon began a verbal exchange concerning a wallet that had been stolen from Kierce's father. This exchange resulted in Kierce allegedly exiting the vehicle and aiming a loaded.357 magnum revolver at the victim's head. Although the testimony at trial was conflicting as to what happened next, it is undisputed that Kierce fired the.357 magnum revolver he was pointing at the victim and the bullet grazed the left side of the victim's head. After firing the shot Kierce allegedly returned to his vehicle and drove away. The victim received medical treatment and survived the incident. Kierce was subsequently arrested and indicted for the felony of aggravated assault. It is from his conviction of aggravated assault that the instant appeal is taken.

ANALYSIS

I. DID THE TRIAL COURT ERR BY REFUSING INSTRUCTION D-4 WHICH CORRECTLY INSTRUCTED THE JURY ON ACCIDENTAL FIRING OF THE GUN OR FIRING OF THE GUN CAUSED BY THE VICTIM STRIKING THE GUN?

With this assignment of error Kierce argues that the circuit court's refusal to grant his proposed jury instruction D-4 was reversible error because it "deprived [him] of his legal theory of the case." Kierce contends that he argued two theories of defense at trial. First, Kierce argued self-defense, which he concedes was adequately presented to the jury via instruction D-3. Second, Kierce argued that even if he was not justified in pointing the gun at the victim in self-defense, the discharge of the revolver was an accident caused by the victim striking the hand in which Kierce was holding the revolver. According to Kierce, this theory of accidental discharge was embodied in his proposed instruction D-4. Kierce contends that proposed instruction D-4 should have been given because "the self-defense instruction [D-3] alone was insufficient to fully advise the jury on Mr. Kierce's two theories of defense." The State responds to Kierce's argument by contending that there was no evidentiary basis to support his proposed instruction D-4, therefore, the circuit court did not err in refusing to ...


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