MICHAEL SORRELL A/K/A MICHAEL SORRELL JR. APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 06/08/2017
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.
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
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.
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.
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.
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
"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).
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.
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.
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.
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
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.
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
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 ...