Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Coleman, J.
RAYMOND DOUGLAS ODOM A/K/A RAYMOND DOUGLASS ODOM, 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: 12/15/95
TRIAL JUDGE: HON. R. I. PRICHARD, III
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL -- ATTEMPTED AGGRAVATED ASSAULT TRIAL COURT disposition, APPELLANT CONVICTED OF ATTEMPTED AGGRAVATED ASSAULT AND SENTENCED TO SERVE 10 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS
DISPOSITION REVERSED AND REMANDED- 3/24/98
MOTION FOR REHEARING FILED:
Pursuant to the jury's verdict of "Guilty as charged," after his trial on an indictment for what the State termed "attempted aggravated assault," the Circuit Court of Lamar County entered its order of conviction by which that court sentenced the appellant, Raymond Douglas Odom, to serve a term of ten years in the custody of the Mississippi Department of Corrections to commence on December 15, 1995, and terminate on December 15, 2005. Odom has appealed from the trial court's judgment of conviction to pose three issues for this Court's resolution, a synopsis of which are: (1) the weight and sufficiency of the evidence did not support a conviction of aggravated assault, (2) the trial court erred when it granted Instruction S-5 which instructed the jury that "the intent to kill or do serious bodily harm may be inferred from the use of a deadly weapon," and (3) the trial Judge erred when he refused Odom's requested simple assault instruction. We address Odom's third issue and affirm the trial court's refusal to grant the simple assault instruction, but we reverse and remand for a new trial because we conclude that the trial Judge erred when he granted Instruction S-5.
The testimony adduced by the State and Odom portrayed two disparate versions of the events on the evening of September 17, 1994, which begot the indictment against Odom for the crime of "attempted aggravated assault." Because this disparity is relevant to our review of Odom's second issue, on which we reverse and remand for a new trial, we present both versions in some detail.
A. Genesis of the two versions
Talbot Tarvin Brown's go-cart, which he considered to belong to his young son, was stolen on or around September 16, 1994. Brown first accused Mike Kee of stealing it during a visit to Kee's home, but Kee blamed the appellant, Odom, for having stolen it. Brown called Odom several times the evening of the event which begot the indictment and accused him of stealing the go-cart. After several such conversations between Brown and Odom over the telephone, Odom suggested that Brown meet him at Kee's home to set the matter straight. What happened at Kee's home around midnight on September 17, 1994, between Brown, Odom, and others is the source of the two versions of the event developed by the witnesses for the State and Odom.
On September 17, 1994, the day following the theft of his son's go-cart, Brown called Odom and asked him if he knew of the go-cart's whereabouts. Brown knew Odom because he had repaired and painted Odom's house. Odom told Brown to call Mike Kee. Instead of calling Kee, Brown stopped by Kee's house during the late afternoon to inquire of Kee whether he had stolen the go-cart. Kee denied having it but suggested that Brown ask Odom about the go-cart. Brown left Kee's house and drove to his son's house in Hattiesburg, from where Brown again called Odom to ask him about the go-cart. During this conversation, Brown insinuated that "somebody could get hurt over [his] child's go-cart." Odom told Brown that Kee stole the go-cart and that he would meet Brown at Kee's house to compel Kee to tell Brown where Kee had hidden the go-cart.
Brown left his son's house and drove by his house to tell his wife where he was going. He then drove to the Purvis Police Department to find out which officers were on duty. His final stop before reaching Kee's house was the house of his next-door-neighbor, Brandon Martin. There, Brown traded vehicles with his friend Martin and drove Martin's dual-wheeled pick-up, a "dually," to Kee's house. Brown had traded vehicles with Martin so that Brown would not be recognized once he reached Kee's home. On his way to Kee's house, Brown spotted a police car parked at the Junior Food Mart in Lumberton. He stopped and explained his situation to Lumberton Police Officer P. C. Alton. Brown informed Alton that "there [might] possibly be trouble" at Kee's house.
Brown arrived at Kee's home at almost 11:00 P.M. He did not stop because he did not see Odom's car -- a 1978 Corvette painted with "electric yellow" paint -- parked there. After he had circled Kee's house two or three times, Brown drove onto the driveway to Kee's house and stopped his truck. Kee, who had been sitting under the carport, walked over to Brown's truck and told Brown to stop his truck's engine and get out, but Brown refused. Then, Brown saw Odom and Don Broom walking across Kee's yard. Odom was carrying a double-barreled shotgun, and Broom was carrying what Brown described as a nine-millimeter Uzi.
Odom first pointed the shotgun through the window on the driver's side of the truck at Brown, but then Odom grabbed the weapon by its barrels and pulled it back preparatory to striking Brown with the butt of the gun. Broom was standing behind Brown's truck with his weapon and Kee, also armed, was standing in front of his vehicle. With these developments, Brown put his truck in reverse, "gassed it," and backed out of the driveway and into the street. Once Brown had driven into the street and had just begun to drive his truck down the street, Odom ran to within about ten feet of the passenger's side of his truck and pointed the shotgun at him from the passenger's side of the truck. Because Brown feared that Odom was about to shoot him, he fell over onto the seat of the truck with his head no more than "ten inches" from the passenger's door.
Odom fired his shotgun and hit the truck, which was still moving down the street. The shotgun blasted through the passenger's door of the truck beneath the window, which had been rolled down, but Brown was not injured because none of the buckshot exited the door on the passenger's side. The apparent reason was that the window-crank mechanism and the window rolled down inside the door had dispersed and diffused their trajectories. Brown fled Kee's premises immediately after the shotgun blast.
On the way back to his house, Brown decided that he should promptly report the incident to the police so he turned around and headed back toward town. He stopped at a convenience store and attempted to call the Lumberton Police Department from there. When he was unable to do so, Brown went home or to Martin's house and contacted the sheriff's department. Deputy Fred Steele of the Lamar County Sheriff's Office responded to Brown's call on September 18, 1994, at approximately 9:00 or 10:00 A.M. and took Brown's statement.
Brown had called Odom at his house between ten and fifteen times from about 5:00 P.M. until about 11:00 P.M. the night of September 17 to accuse Odom of taking his child's go-cart. During several of Brown's conversations with Odom, Odom turned on the speaker of his telephone so that his housekeeper, Deidra Penton, could hear their conversations. According to Penton's testimony, Odom never threatened Brown, but Brown threatened Odom several times. During their next-to-last telephonic verbal encounter, Brown threatened to burn Odom's house. Brown added that he did not care if Odom's son Chris was inside when he burned it. Finally, Odom suggested to Brown that they meet at Kee's house to settle the matter of who had stolen the go-cart.
Before Odom left to go to Kee's house, Penton suggested that he take a gun with him. Odom responded by picking up his short-barreled -- but of legal length -- shotgun on his way out the door. As Odom approached his electric yellow Corvette outside his house, Don Broom drove up into Odom's driveway. After Odom's explanation of the situation, Broom volunteered to accompany Odom to Kee's house.
When Odom and Broom arrived at Kee's house, Odom parked the Corvette in the driveway of a vacant house next-door to Kee's home. Odom and Broom walked over to Kee and his friend, who were waiting for them in under the carport, and Odom asked whether Brown had arrived. Kee answered that he had not but that a "dually" truck with an unknown driver had driven past the house several times. Brown soon drove his neighbor's "dually" into Kee's driveway. Odom and Broom stepped back into the shadows of the carport so that they could see whether anyone was with Brown before Brown saw them. When Odom heard Brown say that the only reason he had not killed Odom was because he, Brown, had not seen Odom, Odom stepped from the shadows within the carport and asked, "Kill who, Tarvin?" Odom told Brown to get out of the truck, and he started trying to open the door on the driver's side. After Odom had managed to open the truck's door, Brown put the truck in reverse and accelerated quickly out of the driveway. Odom jumped out of the way of the door.
When the truck had completed backing down the driveway and was in the road in front of Kee's house, it stopped briefly. Brown leaned toward the truck's glove compartment. When Odom saw Brown lean toward the glove compartment, he yelled, "Look out. He's going for a gun," and fired a blast from his shotgun into the passenger's side of the "dually" truck. Odom, who knew that Brown sometimes carried a handgun in his truck, fired his shotgun because he thought that Brown was reaching into the glove compartment for a gun. Odom later testified that he intended to scare Brown away from using the gun when he fired his shotgun into the passenger's side of the truck.
When Odom yelled that Brown was going for a gun, Kee turned and began running toward his house. Thus, Kee heard -- but did not see -- Odom discharge the shotgun. Kee never saw Brown with a gun, and he did not report the incident to the authorities. After Odom fired his shotgun, Broom and he left Kee's house.
While we have reviewed the facts which begot Odom's indictment for "attempted aggravated assault," including the State's and Odom's versions of those facts, which we distilled from the testimony of the witnesses whom both the State and Odom called, the following events during ...