Lugene Greer v. State of Mississippi ( 1995 )

6/3/97
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 95-KA-00756 COA
LUGENE GREER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. JANNIE LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: EDWARD BLACKMON
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: PAT FLYNN
DISTRICT ATTORNEY: NOEL CROOK
NATURE OF THE CASE: CRIMINAL (FELONY) - MURDER
TRIAL COURT DISPOSITION: LIFE SENTENCE
MOTION FOR REHEARING FILED:7/8/97
MANDATE ISSUED: 10/16/97
BEFORE THOMAS, P.J., DIAZ, AND PAYNE, JJ.
THOMAS, P.J., FOR THE COURT:
Lugene Greer appeals his conviction of murder, raising the following issues as error:
I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING
TO PERMIT DEFENSE WITNESS EARL WHITNEY TO PRESENT TO THE JURY
CERTAIN THREATS MADE BY THE DECEASED AGAINST THE LIFE OF THE
APPELLANT WHICH WERE COMMUNICATED TO THE APPELLANT.
II. WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED
TO GRANT A DIRECTED VERDICT.
III. WHETHER THE TRIAL COURT COMMITTED ERROR IN DENYING DEFENSE
JURY INSTRUCTION NUMBER D-2.
Finding no error, we affirm.
FACTS
On the evening of October 15, 1993, Lugene Greer was at Mr. T's Lounge with Laverne Buchanan.
Buchanan was the ex-lover of Melvin McCollough. Greer and McCollough got into an argument
about Buchanan. Greer and Buchanan left together that night, with Greer staying at Buchanan's
house until the morning.
The next morning, McCollough drove to the home of Greer and talked with Greer's common-law
wife, Diane Sanders. McCollough told Sanders that Greer had been with Buchanan the previous
night. McCollough also told Sanders that he was going to kill Greer. McCollough left, and Greer
drove up at his home about thirty minutes later. Sanders told Greer the nature of McCollough's visit
and his accusations, including McCollough's statement that he was going to kill Greer.
Greer left his home and drove to McCollough's place of employment. The two got into an argument
about McCollough speaking with Sanders. Greer then pulled out a gun and shot McCollough three
times. McCollough tried to escape by crawling under a truck, but his effort failed. McCollough pled
for his life, but his pleas were to no avail. McCollough died as a result of the gunshot wounds. One
eyewitness said McCollough had nothing in his hands at the time of the shooting. Another eyewitness
said McCollough was carrying an unopened rifle case containing a rifle he had bought from his boss a
few minutes before the shooting.
ANALYSIS
I.
WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING
TO PERMIT DEFENSE WITNESS EARL WHITNEY TO PRESENT TO THE JURY
CERTAIN THREATS MADE BY THE DECEASED AGAINST THE LIFE OF THE
APPELLANT WHICH WERE COMMUNICATED TO THE APPELLANT.
Two to three weeks prior to the shooting, McCollough allegedly told Earl Whitney, a defense
witness, that McCollough was going to kill Greer. Whitney purported to testify to this at trial, and
also to the fact that he had told Greer about McCollough's threat. The State objected on the grounds
that the testimony was hearsay. Greer asserts that he was prohibited from going into the conversation
between McCollough and Whitney, and that this is error. Greer asserts that the exclusion of these
threats severely prejudiced his ability to show his state of mind at the time of the confrontation with
McCollough. However, Whitney did not tell Greer about McCollough's threat until after Greer shot
and killed McCollough. This is clearly evident in the record:
Testimony of Earl Whitney
Q: Did you talk to your son-in-law (Greer) about what had been told to you?
A: No, I didn't.
Q: You didn't tell him what Melvin (McCollough) had said?
A: No. Not until after Melvin's death.
Q: Oh, that's when you told him?
A: Uh-huh.
The statements to Whitney could hardly affect the state of mind of Greer because Greer was not
aware of the specific threats made upon his life until after Greer shot and killed McCollough.
Therefore, this point is moot and Greer's first assignment of error is without merit.
II.
WHETHER THE COURT COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO
GRANT A DIRECTED VERDICT.
Greer asserts that the evidence was insufficient for conviction because the state failed to show that he
was not acting in necessary self-defense. The State contends that the evidence was sufficient to
support the decision to deny a directed verdict for Greer.
When considering a motion for a directed verdict, we must consider the evidence introduced at trial
in the light most favorable to the State, accepting all evidence introduced by the State as true,
together with all reasonable inferences therefrom. Smith v. State, 646 So. 2d 538, 542 (Miss. 1994).
The motion for directed verdict must be denied if there is sufficient evidence to support a guilty
verdict. Smith, 646 So. 2d at 542 (citing Barnwell v. State, 567 So. 2d 215, 217 (Miss. 1990); Davis
v. State, 530 So. 2d 694, 703 (Miss. 1988); Thompson v. State, 457 So. 2d 953, 955 (Miss. 1984)).
Alternately, if the evidence does not support a directed verdict, the motion for directed verdict must
be sustained. Smith, 646 So. 2d at 542. A new trial will not be ordered unless we are convinced that
the verdict is so contrary to the overwhelming weight of the evidence that, to allow the verdict to
stand, would be to sanction an unconscionable injustice. Robinson v. State, 662 So. 2d 1100, 1104
(Miss. 1995) (citations omitted).
During the State's case-in-chief, eyewitness Billy Nevilles testified that Greer drove up, got out of his
car, went over to where Melvin McCollough was standing, asked McCollough about the visit with
Sanders, pulled out a gun and shot McCollough. Nevilles testified that Greer shot McCollough three
times while McCollough was begging for his life. Nevilles stated McCollough had nothing in his
hands during this time. Eyewitness John Stewart testified that Greer drove up, got out of his car,
walked over to McCollough, asked McCollough why he talked with Sanders, and then Greer pulled a
pistol out of his pocked and shot McCollough three times. Stewart testified that McCollough begged
Greer not to kill him, but Greer did not adhere to this request. Stewart stated that McCollough had a
rifle case in his hands, but that the case was zipped. The zipped rifle case was found laying behind
McCollough's dead body on the ground.
Taking the evidence in the light most favorable to the verdict, and finding that the verdict is not
contrary to the overwhelming weight of the evidence, we conclude there was ample evidence for
conviction and the trial court was correct in denying the motion for a directed verdict.
III.
WHETHER THE TRIAL COURT COMMITTED ERROR IN DENYING DEFENSE JURY
INSTRUCTION NUMBER D-2.
At the close of evidence, Greer proposed the following instruction:
You are instructed that if believed from the evidence that the conduct of the decedent, Melvin
McCollough, on the date and time charged in the indictment evidenced a present intention to kill, or
to do some great personal injury to the defendant Lugene Greer, and there was imminent apparent
danger of such intention on the part of the decedent, Melvin McCollough being accomplished, and
that it was the fear of decedent's then present intent to kill or inflict great personal injury that caused
the Defendant to shoot Melvin McCollough with a gun, resulting in his death, it is your sworn duty to
return a verdict of not guilty for the Defendant, Lugene Greer.
The trial judge refused to submit this instruction, citing that it was cumulative to S-3, which was
granted without objection:
The Court instructs the Jury that to make a killing justifiable on the grounds of self-defense, the
danger to the defendant must be either actual, present and urgent, or the Defendant must have
reasonable grounds to apprehend a design on the part of the victim to kill him or do him some great
bodily harm, and in addition to this, he must have reasonable grounds to apprehend that there is
imminent danger of such design being accomplished. It is for the Jury to determine the reasonableness
of the ground upon which the Defendant acts.
Defendant's instruction D-3 dealing with self-defense was also granted. It reads:
The Court instructs the jury that the defendant, Lugene Greer had a right to defend himself by the use
of a gun and to kill Melvin McCollough with said gun if at the time of his altercation with Melvin
McCollough it reasonably appeared to him as a reasonable man that Melvin McCollough was about
to commit an assault on the person of Lugene Greer, with the design to do him some great personal
injury being inflicted on the person of the defendant, Lugene Greer (sic).
If you find that the killing of Melvin McCollough was justifiable, it is not necessary that you believe
that the defendant, Lugene Greer had no ill will or malice toward Melvin McCollough.
Greer argues he was entitled to instruction D-2 because evidence showed that threats against his life
were made by McCollough in close proximity to the time of the fatal shooting. Greer further asserts
that this instruction would have allowed the jury to consider the events leading up to the shooting
and Greer's state of mind leading up to the shooting. However, Greer cites no authority in support of
his argument, and this precludes appellate review of the alleged error. Hoops v. State, 681 So. 2d
521, 526 (Miss. 1996); Peterson v. State, 671 So. 2d 647, 659 (Miss. 1996); Kelly v. State, 553 So.
2d 517, 521 (Miss. 1989).
Without waiving the procedural bar, we find this assignment does not warrant reversal. We have
reviewed the instruction requested by Greer and refused by the trial court and find it to be repetitious
of other instructions offered to the jury. The Supreme Court has held that "[a] trial court is not
required to instruct a jury over and over on a principal of law even though some variations are used
in different instructions." Laney v. State, 486 So. 2d. 1242, 1246 (Miss. 1986). "Furthermore, all
instructions are to be read together and if the jury is fully and fairly instructed by other instructions
the refusal of any similar instruction does not constitute reversal error." Id.
THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION
OF MURDER AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE TAXED TO THE APPELLANT.
BRIDGES, C.J., McMILLIN, P.J., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.