DATE OF JUDGMENT: 04/05/96 TRIAL JUDGE: HON. ROBERT H. WALKER COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
Before Bridges, C.j., Coleman, And Diaz, JJ.
The opinion of the court was delivered by: Bridges, C.j., For The Court:
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 20 YRS. IN THE CUSTODY OF THE MDOC.
MOTION FOR REHEARING FILED:
¶1. Shabazz was indicted, tried, and convicted of aggravated assault in the Harrison County Circuit Court. He was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with placement in an appropriate mental health program. He presents twelve issues for appellate consideration:
I. THE TRIAL COURT ERRED IN FAILING TO HOLD A COMPETENCY HEARING AS REQUIRED BY THE MISSISSIPPI UNIFORM CIRCUIT AND COUNTY COURT RULES, RULE 9.06.
II. THE TRIAL COURT ERRED IN FAILING TO MAKE REQUIRED SPECIFIC FINDINGS BEFORE ISSUING AN ORDER TO FORCIBLY MEDICATE THE DEFENDANT.
III. IT WAS IMPROPER FOR APPELLANT TO BE FORCIBLY MEDICATED BEYOND THE POINT THAT HE WAS FOUND COMPETENT AND NO LONGER A DANGER TO HIMSELF OR TO OTHERS.
IV. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL EFFECTIVELY WAIVED A HEARING ON THE ISSUE OF APPELLANT'S MENTAL COMPETENCY IN VIOLATION OF RULE 9.06 OF THE MISSISSIPPI UNIFORM RULES OF CIRCUIT AND COUNTY COURT.
V. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS TRIAL COUNSEL ACQUIESCED ON THE ISSUE OF, APPELLANT'S COMPETENCY TO STAND TRIAL AND TO BE SENTENCED BY RELYING ON THE STATE'S EXPERTS' OPINIONS.
VI. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING, APPELLANT'S REQUESTS FOR A SENTENCING AND RE-SENTENCING HEARING.
VII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE CERTAIN EXHIBITS WHEN SUCH ITEMS HAD NOT BEEN PROPERLY AUTHENTICATED AND A PROPER CHAIN OF CUSTODY HAD NOT BEEN ESTABLISHED BY THE STATE.
VIII. THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE AN INFLAMMATORY AND PREJUDICIAL PHOTOGRAPH OF THE VICTIM WHICH UNFAIRLY PREJUDICED THE JURY.
IX. THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1M.
X. THE TRIAL COURT ERRED IN WITHDRAWING JURY INSTRUCTION C-50 AND ALTERNATIVELY GRANTING JURY INSTRUCTION S-5.
XI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION.
XII. WHETHER APPELLANT'S TWENTY YEAR SENTENCE IS HARSH UNDER THE CIRCUMSTANCES OF THIS CASE SUCH THAT THE PENALTY VIOLATES THE EIGHTH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 3, SECTION 28 OF THE MISSISSIPPI CONSTITUTION.
¶2. Finding no error, we affirm the conviction of aggravated assault and sentence of twenty years in the custody of the MDOC.
¶3. Shabazz was a life-long resident of the coast, and during summer vacations from Yale University, he returned home and worked for the local Sun-Herald newspaper. After college, Shabazz worked for a newspaper in Miami. At some point, Shabazz returned to the coast, but did not work at the newspaper. One of his fellow employees while he was at the Sun-Herald was Riva Brown. Shabazz and Brown were both Knight-Ridder scholarship recipients, and also worked on community projects together. The two were friends, but were never involved romantically.
¶4. On the evening of July 18, 1994, at approximately 6:30 P.M., Brown, a full time employee of the Sun-Herald, left the office and headed across the parking lot to her car. She saw Shabazz sitting in a car in the parking lot. Brown approached Shabazz's car in an effort to speak, but whenever Brown got close to the car Shabazz would pull away. Brown finally gave up and went to her own car to go home. Brown got in her car and was about to back out when she realized that Shabazz had pulled up behind her and blocked her in. She then saw Shabazz rushing hurriedly towards her car holding something down in his hand. Brown testified that the next thing she knew, her drivers' side window blew out. She felt something hit her arm, and experienced sharp pain in her left arm and lower abdomen. At that point, Brown looked up to see Shabazz pointing a shotgun at her head. The gun clicked again, but did not go off. She did not see any other person with Shabazz. Brown immediately crawled to the passenger's side of the car, got out, and ran back to the office to get help. Brown received severe injuries to her left arm (she is left-handed) and her abdomen. She had fourteen holes in her intestines, and has had a total of four reconstructive surgeries on her arm and abdomen. As a result of the shotgun blast, Brown's body is and will remain full of lead pellets.
¶5. Michael Tonos, executive editor of the Sun-Herald, testified that he saw Brown walking to her car on the evening of the shooting. As he noticed that her car was blocked in, he saw Shabazz get out of the car with a shotgun in his hand, walk to Brown's car, hold it up to Brown's window, and fire. ...