Before Thomas, P.j., Diaz, And Herring, JJ.
The opinion of the court was delivered by: Herring, J
DEMARCUS JOHNSON A/K/A SONNY JAKE JOHNSON , APPELLANT v. STATE OF MISSISSIPPI , APPELLEE
DATE OF JUDGMENT: 10/21/96
TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY
COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF 15 YRS IMPRISONMENT IN THE CUSTODY OF THE MDOC; THE COURT SUSPENDS 5 YRS OF SAID IMPRISONMENT UPON GOOD BEHAVIOR LEAVING 10 YRS TO SERVE; PAY $213 WITHIN 6 MONTHS AFTER RELEASE
DISPOSITION REVERSED AND REMANDED - 8/4/98
¶1. Demarcus Johnson appeals his conviction in the Chickasaw County Circuit Court for aggravated assault. The trial court sentenced Johnson to serve fifteen years in the custody of the Mississippi Department of Corrections with five years suspended pending his good behavior and to pay the sum of $213 within six months from his release from prison. We reverse and remand for a new trial.
¶2. Joseph Pratt, a seventeen-year-old resident of Houston, Mississippi, was at Quin's Pool Hall on the evening of December 26, 1996. While inside the pool hall, Pratt and Demarcus Johnson, who was sixteen years old at that time, exchanged words, and they started to fight. According to Pratt, Lavarus Yates handed Johnson a pistol. Johnson put the gun to Pratt's head and said "You got [to] believe I'll blow your, ----,----brains out of your head." Pratt stated that he pushed Johnson against a pool table, but then Lavarus Yates hit him with a pool stick, causing Pratt to fall to the floor. Pratt testified that as he attempted to flee, Johnson shot him in the leg. Thereafter, Pratt proceeded to run out of the pool hall along with numerous others. Outside the pool hall, Johnson fired his pistol several more times and shot Pratt in the back. Pratt was able reach a nearby gas station before passing out, and was ultimately taken to a local hospital for treatment. At trial, Pratt testified that the first shot fired by Johnson went through his leg, and although there was a bullet lodged in his spine, he is "okay." Following the shooting, Pratt was hospitalized for three days.
¶3. Chris Harris testified for the prosecution, and he was at the pool hall on the evening in question. According to Harris, Johnson started the altercation with Pratt when he "called Pratt a lie." Harris testified that as Pratt attempted to leave the pool hall, Johnson shot him in the leg. Further, Harris stated that he saw Johnson fire at Pratt a second time while outside the pool hall. After the shootings, Harris located Pratt at a nearby gas station and took him to the hospital for treatment.
¶4. William Pickens also testified for the State. Pickens, a friend of Joseph Pratt, was also at the pool hall on the night Pratt was shot. Pickens testified that he saw Johnson and Pratt get into an argument, and he saw Lavarus Yates give Johnson a gun. Pickens also saw Johnson put the gun in Pratt's face. According to Pickens, Pratt hit Johnson, and the gun fell to the floor. Thereafter, Johnson retrieved the gun, shot Pratt in the leg, and also shot him in the back outside the pool hall.
¶5. Johnson's version of the facts in this case are different from the prosecution's version. Johnson testified in his own defense and stated that on the night in question, he found a pistol on the ground behind the pool hall. Johnson picked up the gun and put it in his pocket. Thereafter, Pratt approached Johnson and asked Johnson where he was from. Johnson informed Pratt that he was from Mantee, and Pratt told him that persons from Mantee were not allowed in the pool hall. According to Johnson, Pratt lifted a bar stool above his head as if he was going to use it to strike Johnson. However, he then put the stool down without incident. Johnson also testified that at some point, he saw Pratt put his hand in his pocket. In response, Johnson took the pistol from his own pocket in order to scare Pratt. However, he did not aim nor intentionally fire the weapon at Pratt. Instead, Johnson stated that as he and Pratt fought over the gun; it discharged during the melee. According to Johnson, after the gun discharged, it dropped to the floor, and he ran out of the building. He has no idea who shot Pratt in the back.
¶6. Torean Cooperwood testified for Johnson and substantially corroborated Johnson's version of the facts. Cooperwood stated that after Johnson pulled out his weapon, the two fought over the gun, and it discharged while they were fighting. According to Cooperwood, the gun dropped to the floor, and Pratt and Johnson ran out of the pool hall. As he followed them, Cooperwood heard someone say "William, shoot him William, shoot." Cooperwood then heard another gun shot. He did not, however, know who "William" was or who actually shot Joseph Pratt outside the pool hall.
¶7. Prior to trial, Johnson moved the trial court to suppress Johnson's written statement which was given to police officers on January 3, 1996. Ultimately, the trial court ruled that the statement was admissible and allowed the State to enter the statement into evidence at trial.
¶8. Johnson was convicted of aggravated assault and sentenced by the trial court. He now appeals to this Court.
¶9. On appeal, Johnson raises the following issues as stated verbatim in his brief:
I. THE TRIAL COURT WAS INCORRECT IN REFUSING TO GRANT THE APPELLANT'S LESSER INCLUDED INSTRUCTION?
II. THE STATE PROVIDED INSUFFICIENT REASONS FOR STRIKING BLACK JURORS DURING THE SELECTION OF JURORS.
III. THE LOWER COURT SHOULD HAVE GRANTED THE DEFENDANT'S REQUEST FOR A NEW TRIAL DUE TO THE USE OF AN INVOLUNTARY CONFESSION.
I. DID THE TRIAL COURT ERR IN REFUSING TO GRANT THE APPELLANT'S LESSER INCLUDED INSTRUCTION.
¶10. Johnson argues that the trial court committed error in refusing to grant a lesser-included- offense instruction which would have allowed the jury to have found the Appellant guilty of simple assault. "It is well-established in this state that before a lesser-included offense instruction is given it must be warranted by the evidence." Stevens v. State , 458 So. 2d 726, 731 (Miss. 1994) (citations omitted). "A lesser-included offense instruction is warranted where the jury could find, from the evidence presented, the defendant not guilty of the crime with which he was charged, yet guilty of the lesser included offense." Green v. State , 631 So. 2d 167, 173 (Miss. 1994) (citing Toliver v. State , 600 So. 2d 186, 192 (Miss. 1992)). "In sum, a lesser included offense instruction must be granted where a reasonable juror could not on the evidence exclude the lesser-included offense beyond a reasonable doubt." Holland v. State , 587 So. 2d 848, 870 (Miss. 1991) (citing Boyd v. State , 557 So. 2d 1178, 1182 (Miss. 1989)); see also Fairchild v. State , 459 So. 2d 793, 800 (Miss. 1984) ("only where the evidence could only justify a conviction of the principal charge should a lesser included offense instruction be refused") (citation omitted). "Put another way, the test is whether 'there was sufficient evidence in the record so ...