Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Sullivan, Presiding Justice,
DATE OF JUDGMENT: 01/28/1994
TRIAL JUDGE: HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/17/98
¶1. Allen Higgins was indicted in the Circuit Court of Oktibbeha County on a charge of murder in violation of Miss. Code Ann. § 97-3-19 (1972) on August 2, 1993. A jury found Higgins guilty of murder with malice aforethought on January 28, 1994. The Circuit Court of Oktibbeha County, Honorable John M. Montgomery presiding, sentenced Higgins to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections on January 29, 1994.
¶2. Thereafter, Higgins filed a motion for a new trial, which was denied on February 4, 1994. Higgins later filed a motion for out of time appeal, which was granted on November 7, 1996. Higgins assigns three errors on this appeal.
¶3. The facts in this case arise out of an alleged attack on the victim and the fatal shooting of the victim inside the Rockhill Café in Oktibbeha County on January 29, 1993. Allen Higgins admits shooting the victim but denies beating him. Higgins claims he shot the victim in self defense.
¶4. At trial the State offered the testimony of nine witnesses, including one eyewitness to the shooting. The Defense offered the testimony of eight witnesses, including the defendant Higgins.
¶5. Betty Scales, manager of the Rockhill Café, testified she observed W. C. Boudery and Bruce Morris arguing during a pool game. She also testified someone hit Boudery in the head with a bottle, and he fell across a table. Scales further testified three or four men began beating Boudery and someone broke a gin bottle over Boudery's head. Scales also stated she heard three gun shots, the first softer than the later two.
¶6. David Williams claimed he witnessed both the beating and the shooting. He testified Boudery was hit in the head with a gin bottle and beaten by four or five men. Williams identified Higgins as the one who pointed a gun at Boudery and shot him. Williams recalled hearing several gunshots, the first a "light shot" followed by two "heavy shots." Williams stated he believed the light shot came from a small gun. Williams identified a gun found near the body of the victim (State's Exhibit 4) as a small thirty eight caliber pistol. Williams identified the gun he saw Higgins use (State's Exhibit 3) as a forty five caliber pistol.
¶7. Ruth Ann Scales, the mother of one of Boudery's children, testified Boudery told her he felt he needed to take his gun with him that night. Scales identified Higgins as the man she had seen near the Rockhill Café with a black gun and bullets prior to the shooting. Scales testified that after the shooting she asked Higgins why he shot Boudery and Higgins replied he would shoot her too if she did not shut her mouth.
¶8. Deputy Gordon Sharp testified that when he arrived on the scene Higgins approached him and admitted "I shot him." Sharp further testified that Higgins turned over the gun he had used; the officer identified the gun (State's Exhibit 3) as the same gun Higgins gave him in the Rockhill Café parking lot that night.
¶9. Officer James Lindsey testified as to the injuries he observed on Boudery's body. Lindsey stated it appeared a bullet entered under the victim's armpit, traveled into the chest area and exited through the center of the back. Lindsey also observed a small cut on the upper part of the victim's left eye and a more serious laceration on the victim's temple.
¶10. In addition, Lindsey testified concerning the evidence of gunfire at the café. He explained that two forty five caliber projectiles were retrieved, one from the wall and one from the couch; and that two forty five casings were recovered, one from the middle of the pool table and one lying on the floor near the pool table. Lindsey further testified that a small bullet hole was found in the ceiling which appeared to have been caused by a small caliber gun. The officer also stated he found a broken gin bottle against a wall.
¶11. Medical Examiner Orville Musgrove confirmed that Boudery died as a result of a gunshot wound under his right arm and that the bullet exited the ...