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Sorrell v. State

Court of Appeals of Mississippi

January 31, 2019

MICHAEL SORRELL A/K/A MICHAEL SORRELL JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/08/2017

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON. WILLIAM A. GOWAN JR. JUDGE.

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE.

          DISTRICT ATTORNEY: ROBERT SHULER SMITH.

         EN BANC.

          WESTBROOKS, J.

         ¶1. Michael Sorrell appeals his conviction of one count of first-degree murder and one count of being a felon in possession of a firearm in the Hinds County Circuit Court. Sorrell raises three issues on appeal. After review of the record, we find that the circuit court erred in giving a pre-arming instruction and reverse and remand for a new trial.

         FACTS

         ¶2. On August 20, 2014, Sorrell shot and killed La'Cordne Green at the Arbor Park Apartments in Jackson, where Sorrell lived with his girlfriend, Robin Darnell. At trial, Sorrell claimed he shot Green in self-defense. The jury was instructed on various theories including first-degree murder, second-degree murder, heat-of-passion manslaughter, self-defense, and the defense of necessity. Additionally, the jury was given a pre-arming instruction.

         ¶3. Sorrell was convicted of first-degree murder and possession of a firearm by a convicted felon. He was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to life imprisonment on the murder conviction and ten years on the possession conviction, with the sentences to be served concurrently in the custody of the Mississippi Department of Corrections.

         ¶4. Sorrell subsequently moved for a judgment notwithstanding the verdict or, alternatively, a new trial, which the circuit court denied. Sorrell now appeals and argues that: (1) the circuit court erred in giving a pre-arming instruction, (2) the circuit court erred in denying his motion to suppress evidence, and (3) the State committed prosecutorial misconduct during its opening statements, or alternatively, he received ineffective assistance of counsel when his counsel failed to object.

         ¶5. We find that the circuit court committed reversible error in giving a pre-arming instruction and reverse and remand this case to circuit court for a new trial in accordance with this opinion.

         STANDARD OF REVIEW

         ¶6. "Jury instructions are generally within the discretion of the trial court, and the settled standard of review is abuse of discretion." Boston v. State, 234 So.3d 1231, 1233 (¶7) (Miss. 2017). "Jury instructions must fairly announce the law of the case and not create an injustice against the defendant." Id. "For example, in homicide cases, the jury should be instructed about a defendant's theories of defense, justification, or excuse that are supported by the evidence, no matter how meager or unlikely." Id. (internal quotation mark omitted).

         DISCUSSION

         ¶7. Sorrell first asserts that the circuit court erred in giving Jury Instruction S-10. Jury Instruction S-10 instructed the jury as follows:

The Court instructs the jury that if you find from the evidence that the defendant was the initial aggressor and provoked a difficulty, arming himself in advance, and intending, if necessary, to use his weapon to overcome his adversary, then the right of self-defense is forfeited.

         ¶8. Sorrell asserts that Jury Instruction S-10 is a "pre-arming instruction" that "depriv[ed] [him] of his fundamental right to present a defense" and should not have been given since the evidence was conflicted as to whether he armed himself with the intention of initiating a confrontation with Green. We agree.

         ¶9. The Mississippi Supreme Court has strongly denounced the use of the pre-arming instruction, even going as far as to warn the State that its use is done at the State's "own peril." Boston, 234 So.3d at 1234 (¶10). This warning should be heeded, and this Court should discourage liberal use of the instruction.

         ¶10. The facts in the present case are very similar to those in Boston. In Boston, the altercation arose when Kevin Boston went to his estranged wife's job to change a tire for her. Id. at 1232 (¶2). While there he encountered the victim, Willie Dean. Id. Dean worked as a contract worker at the same elementary school as Boston's wife, and the two had previously had a romantic relationship. Id. at (¶3). The initiation and confrontation between Kevin and Dean was heavily disputed in the record. Id. at (¶4). Boston contended that he acted in self-defense while the State theorized that he attacked Dean. Id. Regardless, as a result of the encounter, Boston stabbed Dean with a pocket knife he had purchased a month before the incident. Boston maintained that Dean threatened him and attacked him with a pair of pliers on his wrist. Id. The State countered with pictures of Boston's wrist after the arrest, which showed no visible injuries. Id. at 1233 (¶4). Additionally, no pliers were recovered from the scene, and there was no direct evidence of the altercation or the stabbing other than Boston's testimony. Id. Furthermore, there was witness testimony that Boston approached Dean first and that Dean said the defendant "stabbed me for no reason." Id. at (¶5). At trial, the court gave a pre-arming instruction requested by the state, and on appeal, the Supreme Court reversed and remanded, condemning the use of the pre-emptory instruction. Id. at 1236 (¶15).

         ¶11. Here, there was no direct evidence regarding the initiation of the shooting, only contradicting theories. Sorrell testified that he saw Green looking into the Black Impala he shared with his girlfriend Robin Darnell, and Sorrell consistently stated that he approached Green to determine why was he looking into his car. Sorrell's testimony evinced that he calmly approached Green without the intent of revenge as he maintained that Green shot at him first immediately upon him asking that question.

         ¶12. Although no shell casings from Green's gun were recovered, a stolen Beretta pistol was found underneath Green's body, as well as gunshot residue on the back of Green's back hand. There was no indication that Green was the person who shot into the apartment in July, no evidence that Sorrell purchased the gun intending to use it on Green, and no evidence of known hostility between the two. The Mississippi Supreme Court has held that "when there is ambiguity regrading who is the first aggressor, a pre-arming instruction is not appropriate." Johnson v. State, 908 So.2d 758, 762 (¶15) (Miss. 2005) (citing Barnes v. State, 457 So.2d 1347, 1349-50 (Miss. 1984)).

         ¶13. Since we reverse and remand for a new trial because of the pre-arming instructions, we decline to address Sorrell's claims regarding his motion to suppress and his assertion that the State ...


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