Kevin Boston v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2016-KA-00047-SCT
KEVIN BOSTON a/k/a KEVIN E. BOSTON a/k/a
KEVIN EARL BOSTON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 07/24/2015
TRIAL JUDGE: HON. W. ASHLEY HINES
TRIAL COURT ATTORNEYS: TAKIYAH HERMIONE PERKINS
WILLIE DEWAYNE RICHARDSON
BRANDON ISAAC DORSEY
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BRANDON ISAAC DORSEY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 09/07/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., KING AND MAXWELL, JJ.
WALLER, CHIEF JUSTICE, FOR THE COURT:
¶1. Kevin Boston was convicted of capital murder in the Washington County Circuit
Court for the killing of Willie Dean. Boston raises five issues on appeal, one of which is
raised by Boston himself in a pro se supplemental brief. In that supplemental brief, Boston
argues that the trial court erred by granting the State’s “pre-arming instruction.” Finding that
the granting of the pre-arming instruction was reversible error, we reverse Boston’s
conviction and sentence and remand the case for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2. On May 13, 2014, Barbara Boston called her estranged husband, Kevin Boston, the
defendant, to come fix the flat tire on her car parked at her place of employment, Trigg
Elementary. Because the school was administering state testing, Barbara could not go outside
to meet Boston, so she left the keys inside the car. When Boston arrived at Trigg Elementary,
he was unable to fix the tire because the jack was bent. While walking to the main school
office to inform Barbara he could not change her tire, Boston met the victim, Willie Dean.
¶3. Dean was a contract maintenance worker who reported for a work order at Trigg
Elementary on the day in question. Additionally relevant, Dean and Barbara had a romantic
relationship while Barbara was separated from Boston. However, Dean and Barbara
previously had ended their relationship.
¶4. How the contact between Boston and Dean initiated and what happened during their
confrontation are points of sharp dispute in the record. Boston contends he acted in self-
defense; whereas, the State claims Boston attacked Dean. State’s witness Abbie Allen, a bus
driver for Greenville Public Schools, testified that Boston approached Dean first.1 However,
Boston claimed Dean first approached him. Boston testified that Dean was upset because he
was in Barbara’s car, possibly indicating to Dean that Boston and Barbara might have
1
While Abbie Allen testified on direct examination she saw Boston first approach
Dean, she contradicted herself on cross-examination: Q. “Did you ever see Mr. Boston
approach Mr. Dean?” A. “No, I didn’t -- I just saw them talking.”
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reconciled. Boston further testified that Dean yelled he was going to kill Boston and then
attacked him with a pair of pliers, hitting Boston on his wrist. The State attempted to
discredit Boston’s testimony by offering into evidence a picture of Boston’s wrist taken after
his arrest, which showed no visible injuries. Moreover, no pliers ever were recovered from
the scene.
¶5. Boston continued his testimony, explaining that after he pushed Dean off, Dean came
running back toward him, at which point he fatally stabbed Dean once with a pocket knife.
Boston testified he had purchased the pocket knife from Auto Zone a month before the
incident. While the State did not present any direct evidence of what had caused the
altercation between the parties, Abbie Allen testified that she saw Boston and Dean talking,
and then they “got a little loud.” No one saw the stabbing, though. After Dean was stabbed,
the parties walked away from each other. The immediate aftermath of the stabbing was
caught on the school’s surveillance camera, but the footage does not show any physical or
verbal altercation between the parties. After the incident, Rita Mobley, another employee of
Trigg Elementary, testified that she found Dean standing in a doorway at the school, holding
his chest and asking for someone to take him to the hospital. According to Mobley, Dean
said, “[Kevin Boston] stabbed me for no reason.” An ambulance took Dean to the hospital,
where he died.
¶6. On March 11, 2015, a grand jury indicted Boston in the Circuit Court of Washington
County for capital murder on educational property grounds. See Miss. Code Ann. § 97-3-
19(2)(g) (Supp. 2016) (“The killing of a human being without the authority of law by any
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means or in any manner shall be capital murder in the following cases: . . . Murder which is
perpetrated on educational property as defined in Section 97-37-17[.]”). The case was tried
on July 21-24, 2015, at the close of which the jury found Boston guilty. In Boston’s appeal,
his attorney raised issues concerning the weight and sufficiency of the evidence, as well as
the denial of a proposed self-defense jury instruction.2 Boston in his pro se supplemental
brief asserted his objection to the issuance of the State’s “pre-arming instruction.” Because
the issue of the “pre-arming instruction” is dispositive, we decline to discuss the other
assignments of error.
STANDARD OF REVIEW
¶7. “Jury instructions are generally within the discretion of the trial court[,] and the settled
standard of review is abuse of discretion.” Moody v. State, 202 So. 3d 1235, 1236–37 (¶ 7)
(Miss. 2016) (quoting Bailey v. State, 78 So. 3d 308, 315 (¶ 20) (Miss. 2012)). “Jury
instructions must fairly announce the law of the case and not create an injustice against the
defendant.” Davis v. State, 18 So. 3d 842, 847 (¶ 14) (Miss. 2009) (citing Milano v. State,
790 So. 2d 179, 184 (Miss. 2002)). For example, in homicide cases, the jury should be
instructed “about a defendant’s theories of defense, justification, or excuse that are supported
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Boston’s attorney raised the following issues:
(1) Whether the trial court erred when it failed to grant one of Boston’s proposed self-
defense instructions;
(2) Whether the State presented sufficient evidence to convict Boston;
(3) Whether Boston’s conviction was against the overwhelming weight of the
evidence;
(4) Whether the trial court erred in denying Boston’s motion for directed verdict at
the conclusion of the State’s case-in-chief.
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by the evidence, no matter how meager or unlikely.” Evans v. State, 797 So. 2d 811, 815 (¶
11) (Miss. 2000) (quoting Manuel v. State, 667 So. 2d 590, 593 (Miss. 1995)).
DISCUSSION
¶8. Boston asserts in his pro se brief that the grant of Instruction No. 7 “is contrary to and
condemned by 140 years of Mississippi case law . . . .” The “pre-arming” jury instruction,
offered by the State as S-4A, was granted by the trial court as Instruction No. 7, over the
objection of Boston. The instruction reads as follows:
The Court instructs the Jury that if a person provokes a difficulty, arming
himself in advance, and intending, if necessary, to use his weapon and
overcome his adversary, he becomes the aggressor and cannot claim the right
of self-defense.
Boston argued that no evidence was presented that he had armed himself in advance
intending to harm someone. The State argued only that Boston had retrieved the weapon
from his pocket, and the trial court granted the instruction on that basis.
¶9. While instructions like Instruction No. 7 have appeared in different forms throughout
this Court’s history, they first received the name “pre-arming instruction” in 1999. See Dew
v. State, 748 So. 2d 751, 754 (¶ 18) (Miss. 1999). Essentially, a pre-arming instruction is “a
peremptory instruction for the prosecution, impairing or precluding the defendant’s right to
self-defense.” Id. at 754 (¶ 19). This Court has used the term “pre-arming instruction” to
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describe substantially similar language as used in Instruction No. 7 above, and its issuance
was found to be reversible error. Johnson v. State, 908 So. 2d 758, 762 (¶ 13) (Miss. 2005).3
¶10. This Court has used strong language condemning the use of pre-arming instructions,
as that type of instruction prohibits the defendant from being able to assert his theory of the
case. Id.; Dew, 748 So. 2d at 754 (¶ 18); Keys v. State, 635 So. 2d 845, 849 (Miss. 1994).
The Johnson Court held that the “pre-arming instruction cut off the jury’s consideration of
self-defense.” Id. at 763 (¶ 19). In other words:
“A criminal defendant is entitled to present his defense to the finder of fact.
This Court has condemned outright the granting of any instruction that
precludes a defendant from asserting a claim of self-defense.” Keys v. State,
635 So. 2d 845, 848 (Miss. 1984) (citations omitted). This type of pre-arming
instruction has repeatedly been denounced by this Court. Id. at 849.
Johnson, 908 So. 2d at 762 (¶ 15). Moreover, the Johnson Court explained that “this Court
has stated numerous times that ‘when the State seeks this instruction, it does so at its own
peril.’” Johnson, 908 So. 2d at 763 (¶ 19) (quoting Dew, 748 So. 2d at 754 (¶ 20) (internal
citations omitted)).
¶11. This Court also found the issuance of a pre-arming instruction to be reversible error
in Dew, explaining, “[t]o allow the instruction would result in manifest injustice.” Dew, 748
So. 2d at 754 (¶ 20). The Dew Court based its conclusion on the principle that “[e]ven if the
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The instruction at issue in Johnson v. State stated:
The Court instructs the jury that if a person provokes a difficulty, arming
himself in advance and intending, if necessary, to use his weapon and
overcome his adversary, he becomes the aggressor and deprives himself of the
right of self-defense.
Johnson, 908 So. 2d at 762 (¶ 13).
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great weight of evidence against [the defendant] supports a contrary view, [the defendant]
is still entitled to present his defense to the jury unimpaired by instructions . . . [that] preclude
his right to self-defense.” Id. at 754 (¶ 19) (citations omitted). The Dew Court relied in part
on Keys v. State, which also found reversible error in the issuance of a pre-arming
instruction. Keys v. State, 635 So. 2d 845, 849 (Miss. 1994). The Court in Keys emphasized,
“our decision today should clearly indicate that we look with disfavor on instructions such
as S–10[, which is a pre-arming instruction].” Id.4
¶12. We have held that pre-arming instructions “should be given only in . . . exceedingly
rare circumstances . . . .” Thompson v. State, 602 So. 2d 1185, 1189 (Miss. 1992). Based on
that standard, the granting of a “pre-arming instruction” has been affirmed in only three
cases: Hart v. State, 637 So. 2d 1329 (Miss. 1994); Hall v. State, 420 So. 2d 1381
(Miss.1982); Reid v. State, 301 So. 2d 561 (Miss. 1974). In each case, the record was
uncontradicted that the defendants armed themselves with the intent to initiate a
confrontation. Hart, 637 So. 2d at 1334; Hall, 420 So. 2d at 1385; Reid, 301 So. 2d at 563.
¶13. In Hart, the defendant testified he armed himself and went to the victim’s house
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Keys collected citations for prior cases in which the use of pre-arming instructions
had been “denounced”: Thompson v. State, 602 So. 2d 1185 (Miss. 1992); Williams v. State,
482 So. 2d 1136 (Miss. 1986); Barnes v. State, 457 So. 2d 1347 (Miss. 1984); McMullen
v. State, 291 So. 2d 537 (Miss. 1974); Patrick v. State, 285 So. 2d 165 (Miss. 1973); Craft
v. State, 271 So. 2d 735 (Miss. 1973); Ellis v. State, 208 So. 2d 49 (Miss. 1968); Tate v.
State, 192 So. 2d 923 (Miss. 1966). See also Thompson v. State, 190 Miss. 639, 200 So. 715
(1941); Brown v. State, 186 Miss. 734, 191 So. 818 (1939); Vance v. State, 182 Miss. 840,
183 So. 280 (1938); Coleman v. State, 179 Miss. 661, 176 So. 714 (1937); Lee v. State, 138
Miss. 474, 103 So. 233 (1925); Adams v. State, 136 Miss. 298, 101 So. 437 (1924); Garner
v. State, 93 Miss. 843, 47 So. 500 (1908); Pulpus v. State, 82 Miss. 548, 34 So. 2 (1903); and
Lofton v. State, 79 Miss. 723, 31 So. 420 (1902).
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because it was his “only chance to settle [a dispute between the parties].” Hart, 637 So. 2d
at 1334. The Hart Court’s holding turned on the defendant’s own testimony as to his initial
aggression: “the proof is uncontradicted that, while in no physical danger from [the victim],
[the defendant] armed himself in advance with the intent of provoking or bringing on a
difficulty and shooting [the victim].” Id. at 1337. Similarly, in Hall–a case involving
aggravated assault instead of homicide–the defendant’s own testimony was that he armed
himself and deliberately drove to the victim’s house to engage in a confrontation. Hall, 420
So. 2d at 1384. The Hall Court observed:
The record is uncontradicted that Hall left his employment, armed himself with
a shotgun, went to the Bradleys [sic] home after having been warned by his
wife that they had threatened to “mess him up” if he came to the house, and
after his wife reported to him that Willie Bradley had cursed her and
threatened her earlier during the evening.
Id. at 1385. The same reasoning applied in Reid, where this Court noted that, by the
defendant’s own testimony, he “deliberately armed himself with his pistol,” drove to a trailer
where the victim was located, and “immediately challenged [the victim].” Reid, 301 So. 2d
at 564.
¶14. Here, the record is in conflict as to who initiated the fight in a chance confrontation,
which the Johnson Court found reversible. Johnson, 908 So. 2d at 762 (¶ 13). The only
evidence concerning the knife was that Boston bought the knife from Auto Zone about a
month before the incident and was carrying it in his pocket. No evidence exists that Boston
placed the knife in his pocket with the intent to provoke an altercation with Dean, with
similar facts resulting in reversible error in Johnson. Id.
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CONCLUSION
¶15. Because there is no evidentiary support for the granting of the pre-arming instruction,
we reverse Boston’s conviction and sentence and remand this case for a new trial consistent
with this opinion.
¶16. REVERSED AND REMANDED.
DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN,
MAXWELL, BEAM AND CHAMBERLIN, JJ., CONCUR.
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