JAMES JOHN RODGERS A/K/A JAMES J. RODGERS A/K/A JAMES RODGERS, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/29/0213. TRIAL JUDGE: HON. JOHN C. GARGIULO. TRIAL COURT DISPOSITION: CONVICTED OF MURDER AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: MOLLIE MARIE MCMILLIN.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD.
ROBERTS, J., FOR THE COURT. IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, J.
NATURE OF THE CASE: CRIMINAL - FELONY
[¶1] James John Rodgers was convicted, in the Harrison County Circuit Court, of murder and sentenced to life in the custody of the Mississippi Department of Corrections. Rodgers filed post-trial motions, which the trial court denied. In his appeal, Rodgers argues the following: (1) the trial court committed plain error in giving a self-defense jury instruction containing " at peril" language; (2) there was insufficient evidence to support the guilty verdict; and (3) the guilty verdict was against the overwhelming weight of the evidence. Finding no reversible error, we affirm.
[¶2] On January 24, 2011, Rodgers was at his home in Gulfport, Mississippi, along with Megan Taylor (his girlfriend), Jessie Rodgers (his son, referred to as Jessie), and Bridget Waller (Jessie's girlfriend). Taylor received a phone call from Clinton Jackson, a prior boyfriend. Jackson was purportedly upset about photographs taken
by Rodgers showing Taylor's car at Jackson's house. Rodgers and Jackson spoke briefly. Taylor testified she heard Rodgers tell Jackson something like " come talk face-to-face." Taylor and Waller both testified Rodgers was agitated after his conversation with Jackson.
[¶3] Approximately thirty minutes later, Jackson came to Rodgers's home and knocked on the door. Jessie answered and was instructed by Rodgers not to let Jackson inside. Jessie escorted Jackson to his car.
[¶4] While escorting Jackson to his car, Jessie testified Jackson was upset, shouting he would not leave until the matter between Jackson and Rodgers was settled. Jessie told Jackson he was going to call the police if Jackson did not leave. Jackson exited his car and began to hit Jessie. The two began fighting inside the driver's side door of Jackson's car. Jessie testified that he saw a pocket knife on the console of Jackson's car, but never saw Jackson attempt to grab it. Jessie began to back away from Jackson just as Rodgers emerged from the house. Rodgers was carrying a gun. According to Jessie, Jackson stepped towards Rodgers, then Rodgers shot Jackson in the chest. Jessie testified Jackson was approximately ten to fourteen feet from Rodgers when Rodgers fired one shot, striking the victim in the chest. Jackson died on the scene.
[¶5] Taylor testified that while Jessie and Jackson were outside, Rodgers retrieved his gun from the bedroom. Taylor stated she attempted to keep Rodgers from going outside to confront Jackson, while armed, but was unsuccessful. Taylor testified Rodgers was " ranting and raving." After hearing the gunshot, Taylor went outside and ran to Jackson. She stated he was on the ground right beside his car. Taylor also said Jackson's car was running.
[¶6] Rodgers denied Taylor tried to keep him from leaving the house. Rodgers further testified he shot Jackson in self-defense because he thought he saw Jackson looking in the console of his car and assumed Jackson was searching for a weapon. However, Rodgers told the police he walked towards Jackson while he was fighting with Jessie, pulled Jackson off of Jessie, and shot Jackson. Furthermore, Rodgers never told the police he thought Jackson might be armed. When the police arrested Rodgers, they found a spray can of mace in his front pocket. According to the police, Rodgers asked if Jackson had died, then stated, " if he didn't, I'll make sure he does next time." Rodgers denied making this statement.
[¶7] Dr. Paul McGarry, the forensic pathologist who conducted Jackson's autopsy, testified Jackson did not have any defensive wounds. Dr. McGarry testified the blood spatter in Jackson's car indicated, in his opinion, that Jackson was either sitting in the driver's seat or in the process of getting out of the car when he was shot. Dr. McGarry stated, based on the trajectory and angle of the bullet's path through the victim's chest cavity and the blood spatter inside the victim's vehicle, his opinion was the single shot fired was an " aimed shot" at the " center mass." Dr. McGarry performed a toxicology test on Jackson, which indicated a high level of methamphetamine in his system.
I. "AT PERIL" SELF-DEFENSE JURY INSTRUCTION
[¶8] This case involves the inclusion of " at peril" language in one of six jury instructions on self-defense. Rodgers argues that, even though he did not object to it, giving the following instruction entitles
him to a reversal of his conviction. Instruction S-10 provided:
The Court instructs the Jury that a person may not use more force than reasonably appears necessary to save his life or protect himself from great bodily harm. Where a person repels an assault with a deadly weapon, he acts at his own peril and the question of whether he was justified in using the weapon is for determination by the jury.
The law tolerates no justification and accepts no excuse for an assault with a deadly weapon on the plea of self[-]defense except that the assault by the Defendant on the victim was necessary or apparently so to protect the Defendant's own life, or the life of another human being, or his person, or another human being, from great bodily injury and there was imminent danger of such design being accomplished. The danger to life or of great personal injury must be or reasonably appear to be imminent, present at the time the Defendant commits the assault with a deadly weapon. The term " apparent" as used in " apparent danger" means such overt, actual demonstration by conduct and acts of a design to take life or do some great personal injury as would make the killing apparently necessary to self-preservation.
[¶9] Citing Flowers v. State, 473 So.2d 164 (Miss. 1985), Rodgers argues that the giving of this instruction constitutes plain error, entitling him to a reversal of his conviction. In Flowers, the defendant specifically objected at trial to the following instruction:
The court instructs the jury that to make a homicide justifiable on the ground of self-defense, the danger to the slayer must be either actual, present and urgent, or the slayer must have reasonable grounds to apprehend a design on the part of the deceased to kill him, or to do him great bodily harm, and in addition to this that there was imminent danger of such design being accomplished, and hence mere fear, apprehension or belief, however sincerely entertained by the slayer, that another designs to take his life or to do him great bodily harm will not justify the slayer in taking the life of the latter party. The slayer may have a lively apprehension that his life is in danger or that he is in danger of great bodily harm, and believe the grounds of his apprehension just and reasonable, and yet he acts at his own peril. He is not the final judge; the jury may determine the reasonableness of the grounds on which he acted.
Id. at 164-65 (emphasis in original). This was the only self-defense instruction given. Referring to an earlier decision criticizing the instruction, the court explained that the instruction was invalid because
the instruction is self-contradictory and confusing. The troublesome part is the first sentence of the final paragraph. If a party has " an apprehension that his life is in danger" and believes " the grounds of his apprehension just and reasonable[,]" a homicide committed by that party is in self-defense. These are the grounds upon which a claim of self-defense must be ...