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Cohen v. State

December 31, 1998

KEITH DEWAYNE COHEN, A/K/A KELO
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Smith, Justice, For The Court:

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 02/08/95

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

DISTRICT ATTORNEY: LAURENCE Y. MELLEN

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: DECISION OF COURT OF APPEALS REVERSED - JUDGMENT AND SENTENCE OF TRIAL COURT REINSTATED-

EN BANC.

¶1. Cohen was convicted of aggravated assault in the Circuit Court of Coahoma County. The appeal was duly filed and assigned to the Court of Appeals, which reversed the conviction finding that the trial court erred in refusing a requested defense instruction on accidental injury. On Petition for Writ of Certiorari filed by the State, we find the Court of Appeals majority to be in error, and accordingly reverse and reinstate the conviction and sentence of the trial court.

FACTS AND PROCEDURAL HISTORY

¶2. Cohen was indicted and convicted for the shooting of Ginger Wright. He alleged as his defense that he was defending himself against an alleged attack by a third party, Tyrone Johnson, when he accidentally shot and struck the victim, Wright, an innocent bystander. At trial, he offered the following instruction, D-3, which was denied by the trial court.

The court instructs the jury that the shooting and injuring of another human being shall be excusable when committed by accident and misfortune while necessarily defending oneself. In this case if you shall find from the evidence, or have a reasonable doubt therefrom, that Keith Dewayne Cohen, while necessarily defending himself from any sudden or sufficient provocation by Tyrone "Pooh Pooh" Johnson, fired a pistol and accidentally and/or through misfortune shot Ginger Wright, then it is your sworn duty to find Keith Dewayne Cohen and Martin Washington not guilty.

¶3. Cohen contends that this instruction which he had submitted is based upon Dykes v. State, 232 Miss. 379, 99 So.2d 602 (Miss. 1957). In that case, the defendant had already been acquitted of the murder of his father-in-law against whom he was allegedly defending himself, and was then tried for the murder of his wife whom he claimed stepped into the line of fire and was accidentally killed.

¶4. The Court of Appeals majority found that the failure of the trial court to grant this requested instruction "though it may not be perfectly drawn" was reversible error inasmuch as the jury was not otherwise instructed on accidental injury, and the matter was remanded for new trial. We hold that Court of Appeals Dissent was correct in its analysis and finding that the jury was adequately instructed by the other instructions granted by the trial court.

DISCUSSION

¶5. Before addressing the merits of the case at hand, the Court will, on its own initiative, address first impression the State's right to file the Petition for Writ of Certiorari. M.R.A.P. 17 is virtually silent on the issue, and therefore the analysis must begin at Miss. Code Ann. (1972) § 99-35-103 which defines the limits of the State's right to appeal. That section provides that

The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:

(a) "From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.

(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented.

(c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally presented by the state. All questions of law thus presented shall be decided by the Supreme Court. *fn1

Id. Furthermore, Miss. Code Ann. (1972) § 9-4-3 (1) and (2) provides; (1) The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court.

The jurisdiction of the Court of Appeals is limited to those matters which have been assigned ...


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