DATE OF JUDGMENT: 05/28/93 TRIAL JUDGE: HON. JAMES E. THOMAS COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
BY: W. GLENN WATTS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED - 4/9/98
Before Prather, C.j., Smith And Waller, JJ.
The opinion of the court was delivered by: Prather, Chief Justice
STATEMENT OF THE FACTS AND CASE
On the afternoon of June 27, 1992, a fight occurred between Rico Ellis, Roy Lee Banks, Michael Banks, and Jessie Banks. Robert Leon Ellis ("Ellis"), the brother of Rico Ellis, was thrown to the ground by Roy Lee Banks and stabbed by Jessie Banks while trying to break up the fight. While Ellis was at the hospital being treated for his stab wounds, Roy Lee Banks ("Banks") and others drove by Ellis' home and fired shots into the house. Ellis was released from the hospital that same day.
Upon returning home, Ellis went to purchase a soft drink at Yeager's Food Store. On arriving at the store, Ellis testified that he saw Banks at the store and that Banks pulled out a chrome pistol. Ellis testified that he was frightened and that he pulled out his own pistol, at which time Banks ran to the side of the building and disappeared. Ellis next drove to the corner and crossed a highway, at which point, he testified, Banks came running across the highway towards him.
Ronald Holloman, an eyewitness to the shooting, testified to driving on Highway 49 when he heard a popping noise. Upon looking around, Holloman saw a blue Oldsmobile chasing after a man running on foot. Holloman testified that the driver of the car was shooting at the man running on foot and that the car stopped as the fleeing man reached a ditch. Finally, Holloman testified that the driver got out and fired several shots at the victim. Roy Lee Banks was fatally wounded as a result of these gunshots. Although Ellis claimed the killing was in self-defense, he was convicted of the murder of Banks on May 28, 1993 and sentenced to life imprisonment. Ellis timely appealed to this Court.
I. The court committed reversible error when it granted the State's jury instruction on self defense which did not instruct the jury properly on the defendant's right to reasonable grounds of apprehension and did not conform with this Court's prior rulings.
Ellis argues that the granting of the State's jury instruction S-6 was reversible error in that this instruction did not accurately instruct the jury regarding this State's law of self-defense. The State's jury instruction S-6 instructed the jury as follows:
(T)here must be something shown in the conduct of the deceased indicating a present intention to kill or do some great personal injury to the slayer and imminent danger of such intention being accomplished; mere fears or beliefs are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him or doing to him some great bodily harm.
This instruction is phrased differently than the self-defense instruction approved by this Court in Robinson v. State, 434 So.2d 206, 207 (Miss. 1983):
The Court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.
In the view of this Court, there are at least two areas in which this Court's model instruction set forth in Robinson is preferable to the instruction submitted to the jury in the present case. First, it could be argued that S-6 focuses excessively on the conduct of the deceased at the time of the shooting, stating that "(t)here must be something shown in the conduct of the deceased indicating a present intention to kill or do some great personal injury to the slayer." S-6 does not contain the broader language in the Robinson instruction regarding the slayer's "reasonable grounds to apprehend a design on the part of the victim to kill him or do him some great bodily harm." This State's law regarding self-defense examines whether a defendant had reasonable grounds to fear great personal injury under all the circumstances, and the Robinson instruction instructs the jury more clearly in this regard.
In the present case, the events which may have given rise to a reasonable fear on the part of Ellis that he was in danger of serious bodily injury from Banks occurred largely in the hours prior to the fatal shooting. The record indicates that Banks had attacked Ellis earlier in the day, forcing him to seek medical care at a hospital. The record further indicates that Banks had fired gunshots into Ellis' home later that same day, and Ellis testified that Banks had threatened to kill him. The language of S-6 could thus have been better phrased to make it clear to the jury that its inquiry was not limited to a consideration of Banks' actions at the time the shooting occurred.
This Court nevertheless concludes, however, that S-6 is not fatally defective in this regard, given that the instruction does refer generally to "conduct of the deceased" rather than specifically limiting the jury's consideration to Banks' conduct at the time of the shooting. The general term "conduct of the deceased" includes Banks' conduct earlier in the day, including the fight and drive-by shooting in which Banks is alleged to have participated. Counsel for Ellis argued extensively with regard to Banks' threatening behavior on summation, and Ellis was allowed to present his evidence in this regard. This Court concludes that S-6 did not deny Banks the right to have his defense of self-defense properly considered by the jury in the present case and that this point of error is without merit.
In addition, the State notes that the only objection to S-6 made by counsel for Ellis pertained to the statement in S-6 that "mere fears and beliefs are insufficient." Counsel for Ellis expressed his view to the trial Judge that fears and ...