Billy Ray Harris v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2001-KA-00507-SCT
BILLY RAY HARRIS
v.
STATE OF MISSISSIPPI
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 2/23/2001
TRIAL JUDGE: HON. JOHN T. KITCHENS
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAN W. DUGGAN, JR.
CYNTHIA HEWES SPEETJENS
MICHAEL V. WARD
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/31/2003
AMENDED MOTION FOR REHEARING 03/31/2003
FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2001-KA-00656-SCT
JASON HARRIS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 2/23/2001
TRIAL JUDGE: HON. JOHN T. KITCHENS
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAN W. DUGGAN, JR.
CYNTHIA HEWES SPEETJENS
MICHAEL V. WARD
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/31/2003
AMENDED MOTION FOR REHEARING 03/31/2003
FILED:
MANDATE ISSUED:
CONSOLIDATED WITH
NO. 2001-KA-00665-SCT
CHARLIE HARRIS
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 2/23/2001
TRIAL JUDGE: HON. JOHN T. KITCHENS
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAN W. DUGGAN, JR.
CYNTHIA HEWES SPEETJENS
MICHAEL V. WARD
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
SCOTT STUART
DISTRICT ATTORNEY: RICHARD D. MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/31/2003
AMENDED MOTION FOR REHEARING 03/31/2003
FILED:
MANDATE ISSUED:
EN BANC.
SMITH, PRESIDING JUSTICE, FOR THE COURT:
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¶1. The State’s amended motion for rehearing is granted. The original opinions are withdrawn, and
these opinions are substituted therefor.
¶2. Brothers Billy Ray (Bill), Jason, and Charlie Harris were indicted separately and tried together for
the murder of Ronnie Travis. A jury seated in the Circuit Court of Madison County returned a guilty
verdict against each for depraved-heart murder, as codified in Miss. Code Ann. § 97-3-19(1)(b) (2000).
They were each sentenced to life imprisonment without parole. From these judgments, they instituted this
consolidated appeal.
¶3. Because the Court finds that the Circuit Court of Madison County committed no reversible error,
we affirm the convictions and sentences.
FACTS
¶4. According to all the witnesses, the Windy City Club in Madison County was packed the night of
November 7, 1999. That night at the club, Enell Weatherspoon catered a birthday party for her friend,
Joan Booze. Booze's cousin and her cousin's boyfriend, Ronnie Travis, were in attendance. Also present
at the club were the Harris brothers: Charlie, Jason, and Bill. While testimony differed as to who was the
initial aggressor, a fistfight started inside the club between Ronnie Travis and Bill Harris. The fight spilled
out the front door onto the street outside the club where Jason and Charlie Harris joined it. Several
spectators watched the fight until gunshots were heard, and most took cover. At the conclusion of the fight,
Ronnie Travis lay in the ditch across the street from the club. A passing motorist took Travis to the
hospital. The Harrises fled the scene in a gold Cadillac. Travis died almost a day later due to cerebral
trauma secondary to blunt force trauma; his head had been struck with sufficient force to cause the brain
to swell to the extent that his body stopped performing basic functions.
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¶5. An investigator from the Madison County Sheriff's Office arrived at the hospital after Travis had
been taken there. He was told en route that Travis had been shot and acquired the names and telephone
numbers of several people at the hospital who mistakenly believed Travis had been shot by Charlie Harris.
Next, he went to the scene of the fight and took pictures. He observed a trail of blood drops leading from
the Windy City Club across the street to the ditch where a large pool of blood had collected. He found
a bloody white shirt in the street which belonged either to Travis or a bystander who had used it to wrap
Travis's bleeding head before he was taken to the hospital. He also saw numerous spent bullet casings
scattered about the parking lot, but none in the ditch.1
¶6. The investigator concluded from what he had been told at the hospital and the evidence at the scene
that the Harris brothers were the perpetrators of what, at the time, was an aggravated assault. He verified
that Charlie owned a gold Cadillac and worked at an automobile dealership in Jackson. He arrested
Charlie Harris the following day at work.
¶7. On the way back to Madison County, Charlie Harris was informed of his Miranda rights and
agreed to speak with the investigator about the events of the prior evening. During this conversation,
Charlie denied shooting Ronnie Travis, but admitted that he had fought with him. The next day, Jason and
Bill voluntarily surrendered to the Madison County Sheriff. They were also informed of their Miranda
rights and agreed to speak with the investigator about the incident with Travis. Bill told the investigator,
"I got to fighting with some boys in the club. One of them hit me with a gin bottle. The fight moved outside.
I was on top of the boy in the ditch. Some other boys went to get their guns out of the trunk. I ran to the
car and they were shooting at us." Bill did not see Travis with a gun. Jason told the investigator, "Me . .
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No tests were conducted on any blood on the ground or shirt, nor were tests conducted on
Charlie Harris's gun or any bullet casings found at the scene.
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. Bill and Charlie were sitting at the table. Ronnie came over to the table and asked Bill something. Ronnie
hit Bill with a bottle. I went outside fighting. I was kicking him." When Ronnie Travis died of his injuries,
the three brothers were indicted for depraved-heart murder.
¶8. At trial, the State called four witnesses: the state pathologist, the investigating officer,
Weatherspoon, and Booze. The pathologist testified as to the cause of Ronnie Travis's death. Specifically,
he stated that the bruises and injuries to Travis's body were inconsistent with being struck by solid objects
such as a piece of wood, but favored a conclusion that Travis was struck by an elbow, fist or possibly a
shod foot. He stated that it was unlikely Travis would be conscious after sustaining the injuries which killed
him. The medical examiner stated conclusively that Travis had not been shot. During his cross-
examination, the State objected on relevance grounds to a question concerning non-surgical scars found
on Travis's body. The trial court sustained the objection, and the issue was not pursued further.
¶9. The investigator with the Madison County Sheriff's Office testified about the information he
gathered in the course of his investigation, as summarized above. He also testified concerning the brothers'
statements made after arrest.
¶10. Enell Weatherspoon testified that Ronnie Travis was sitting with her cousin at her table in the club
when Bill Harris walked up and jabbed Travis in the face with his fingers. Bill then grabbed a full bottle of
gin off her table and attempted to hit Travis with it. She stated Travis took the bottle from Bill but lost
control of it, and it burst when it struck the ground. The fistfight erupted, and Travis had the upper hand
when the fight and the crowd of observers moved outside. There, Bill Harris was assisted by his brothers.
They grabbed Travis by his arms and took him across the street into the ditch where they repeatedly kicked
him. When some observers tried to help Travis, Bill Harris pulled a gun from his boot and "started shooting
into the crowd." Weatherspoon took cover beside her car, which was parked in front of the club, and saw
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others flee inside the club. The brothers returned to kicking Travis, who was "balling up like this in the
ditch, trying to keep them from kicking him in his face." When the passing motorist stopped and helped
Travis, Bill Harris fired his gun down the highway at the car as it drove away. No one else was involved
in the fight; all three brothers were larger physically than Travis; and Weatherspoon did not see the Harrises
drive away nor anyone shoot at them in the gold Cadillac. Weatherspoon soon followed the motorist to
the hospital and told the investigator about the event. She was not interviewed nor was her statement
taken until December of the following year.
¶11. Joan Booze observed Bill Harris and Ronnie Travis fighting inside the club. Once the fight moved
outdoors, she saw Ronnie Travis take off his shirt. She also saw the three Harris brothers kicking and
beating Travis in the ditch across the street. She heard a gunshot come from the area of the ditch, but she
backtracked from a statement she made to the investigator earlier that one of the Harris boys had a gun.
She did not see them with a gun that night nor did she see one of them shoot back at the crowd.
¶12. The defendants called four witnesses to testify at trial: a radiologist, Arthur Black, Margie Brooks,
and Charlie Harris. The sum of the radiologist's testimony was that Ronnie Travis could have sustained the
injuries which killed him prior to the fight . He reached this conclusion was reached after examining the
records of the autopsy performed on Travis's body, the hospital records, and one x-ray radiograph taken
of Travis's head before he died. He compared Travis's case to one where a boxer dies days after a fight
due to injuries sustained in the fight.
¶13. Arthur Black testified that he was related to both Ronnie Travis and the Harris brothers and had
spoken to Travis right before the fight began. Before he testified about what he heard Travis say moments
before the fight began, the State objected, and the jury was excused to resolve an issue of hearsay. Black
had previously given a written statement to defense counsel alleging Ronnie Travis said, among other things,
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"F— it, man, let's get it on" just before the fistfight began. The trial judge excluded any testimony Black
might offer with regard to what Travis specifically said that night. When the jury returned, Black testified
that when he spoke to Travis, he was standing between Travis and the table where the Harrises were
seated. Travis had nothing in his hands at the time. Travis made a sudden motion in front of Black and then
reached for something behind him. When Travis made a motion above his head, Black threw his hands
up and their hands hit. Black heard a bottle break on the floor behind him. He concluded Travis had
picked up a bottle from the table behind him. He then heard the Harris brothers rise from their table and
a general commotion happening around him. He covered himself and saw nothing more inside or outside
the club. He further testified that he heard both shotgun and pistol reports outside. Black testified that he
did not see Travis with a gun that night and that Travis was smaller in stature than the Harrises. He was
unaware of any prior encounter between Ronnie Travis and Bill Harris.
¶14. Margie Brooks testified that, over a year before the fight at Windy City, Ronnie Travis had gone
to her house, broken all the windows of her son's car and threatened to kill her entire family. Travis was
armed with a pistol and shotgun and had used a baseball bat he found in the son's car to break the
windows. He returned later, using profanity and again threatening to kill her family. During closing
argument, the State asserted that Travis was angry because Brooks's son had stolen his car.
¶15. Charlie Harris testified on his own behalf that he was not sitting at the table when Ronnie Travis
approached it. He saw Travis kick Bill's chair and swing the gin bottle at Bill over Arthur Black, who had
stepped between them. It broke when it hit Bill's raised hands, showering him with glass. He was unaware
of any previous encounter between Bill and Travis; Charlie testified that when Bill grabbed Travis, four or
five more people jumped into the fight against Bill. When they forced Bill to the floor and outside the club,
Charlie testified he and Jason stepped in to help him. He then heard someone other than Ronnie Travis say,
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"Go to the car and get your s—." Charlie ran to his car and got his gun. The fight now had ten to twelve
participants and had moved into the ditch across the street. Charlie testified that while he was returning
from his car with his pistol, he heard gunshots from the ditch and told his brothers to get in the car because
someone was shooting at them. They got into the gold Cadillac and raced away. Charlie testified someone
shot the back of his car with a shotgun as they were driving off. Several pictures of the gold Cadillac
showing pellet-sized holes in the rear were admitted into evidence.
¶16. At the conclusion of trial, the court instructed the jury on the applicable law, including murder,
manslaughter, and self-defense. It refused several more instructions. During its deliberations, the jury
drafted two questions and presented them simultaneously to the judge. One question reads, "Can a person
act in the heat of passion and at the same time events [sic] a depraved heart regardless of human life?" The
other asks, "What is the definition of heat of passion?" The trial court answered the jury that it had given
them all the instruction it could and ordered them to return to their deliberations. The jury found all three
brothers guilty of depraved-heart murder.
DISCUSSION
I. WHETHER THE MURDER CONVICTIONS MUST BE REVERSED
BECAUSE INSTRUCTION S-1 PRECLUDED THE JURY FROM
CONSIDERING EITHER SELF-DEFENSE OR THE DEFENSE OF
OTHERS.
II. WHETHER THE CONVICTIONS MUST BE REVERSED BECAUSE
THE MURDER INSTRUCTION (S-1) ALSO FAILED TO TELL THE
JURY THAT IF IT [sic] THEY HAD A REASONABLE DOUBT
ABOUT WHETHER THE DEFENDANTS ACTED IN SELF-
DEFENSE, IT HAD A DUTY TO ACQUIT.
¶17. The Harrises argue that the State's depraved-heart murder instruction for each defendant – numbers
8, 9, and 10 – lacks two important phrases which warrant reversal: (1) "without authority of law" and (2)
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"not in necessary self-defense." The Harrises also argue that the failure to instruct the jury that it had a duty
to acquit them if the element "not in necessary self-defense" was not proven beyond a reasonable doubt
also warrants reversal. These two issues are treated jointly because they are intertwined concerning the
self-defense element. The State responds to the first issue by pointing out that instructions 8, 9, and 10 use
the word "unlawfully," and other instructions place the burden of proof for conviction upon the State. With
regard to the second issue, the State directs this Court to other jury instructions given which instruct the jury
on self-defense and a statement made during closing arguments by the prosecution that the State must prove
the murder was not committed in self-defense. The State also argues that even if the Harrises were entitled
to further instruction on self-defense, the trial court's failure to do so was harmless error. In reply, the
Harrises go to great lengths to distinguish a "concrete" instruction from an "abstract" instruction and argue
that an "abstract" instruction cannot make up for the errors in a "concrete" instruction. Therefore, they argue
that the instructions as a whole do not adequately instruct the jury.
¶18. This Court employs the following standard of review when objections to given or refused jury
instructions are raised:
The standard of review for challenges to jury instructions is as follows: Jury instructions are
to be read together and taken as a whole with no one instruction taken out of context. A
defendant is entitled to have jury instructions given which present his theory of the case,
however, this entitlement is limited in that the court may refuse an instruction which
incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence. Humphrey v. State, 759 So. 2d 368, 380 (Miss. 2000)
(citing Heidel v. State, 587 So. 2d 835, 842 (Miss. 1991)).
Austin v. State, 784 So. 2d 186, 192 (Miss. 2001). To preserve a jury instruction issue on appeal, the
defendant must make a specific objection to the proposed instruction to allow the trial court to consider
the issue. Crawford v. State, 787 So. 2d 1236, 1244-45 (Miss. 2001).
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¶19. The full text of the single depraved-heart murder instruction given to the jury, duplicated for each
defendant save for the substitution of the name of the correct defendant, is as follows:
The Defendant, (name), has been charged in the indictment in this case with the crime of
murder. If you find from the evidence in this case, beyond a reasonable doubt that the
Defendant, (name), did on or about the 7th day of November, 1999, feloniously, willfully
and unlawfully in Madison County, Mississippi,
1. Engage in an act eminently dangerous to others, or aid and assist in an act
eminently dangerous to others; and that,
2. such act evinced a depraved heart, regardless of human life, although without
any premeditated design to effect the death of any particular individual, and that
3. such act inflicted injuries to Ronnie Travis which caused his death, then you
shall find the Defendant, (name), guilty of Murder as charged in the indictment.
If the State has failed to prove any one or more of the above listed elements, beyond a
reasonable doubt, then you shall find the Defendant not guilty of Murder.
¶20. The question whether this instruction errs because it fails to include the language “without authority
of law” can be summarily resolved. As can be seen in its first paragraph, this instruction directs the jury that
it must find beyond a reasonable doubt that the defendant acted “unlawfully.” This Court has held the term
“unlawfully” to be synonymous with, and an acceptable substitute for the phrase “without authority of law,”
specifically in the context of a depraved-heart murder instruction.Turner v. State, 796 So. 2d 998, 1003-
04 (Miss. 2001). The Harrises list the numbers underneath the first paragraph in support of their argument,
but the term “unlawfully” is used immediately above this enumeration. We therefore hold that there is no
merit to their argument that the trial court failed to instruct the jury on the element “without authority of law,”
even though its acceptable synonym does not appear in a separate enumerated paragraph.
¶21. This Court must next consider whether the failure to instruct the jury to acquit if it found the Harrises
were acting in self-defense and the failure of the depraved-heart murder instruction to include the words
"not in necessary self-defense" constitute reversible error. In Reddix v. State, 731 So. 2d 591 (Miss.
1999), the jury was given instruction S-2 which was a verbatim recitation of the self-defense instruction first
10
announced in Robinson v. State, 434 So. 2d 206, 207 (Miss. 1983), overruled on other grounds,
Flowers v. State, 473 So. 2d 164, 165 (Miss. 1985). Reddix, 731 So.2d at 594. The trial court also
refused to give an instruction tendered by the defense that would have made the jury aware of its duty to
acquit if it determined the defendant was acting in self-defense. Id. On appeal, the defendant argued that
S-2 did not completely instruct the jury on its duty to acquit if it found he acted in self-defense, and it was
error to refuse his tendered self-defense instruction where no other instruction addressed the subject. Id.
This Court agreed with both propositions and concluded the error warranted reversal.Id. at 595. Standing
alone, the Robinson instruction does not sufficiently instruct the jury on self-defense because it fails to
inform the jury that it is are bound to acquit if it finds the defendant to have acted in self-defense. Id.
However, “we do not look at jury instructions in a vacuum.” Williams v. State, 803 So. 2d 1159, 1161
(Miss. 2001). The Harris brothers’ reliance on Reddix v. State, 731 So. 2d 591 (Miss. 1999), is
misplaced. As in Williams and Montana, the problem found in Reddix is cured by the instructions in
the case sub judice. Montana v. State, 822 So. 2d 954, 957 (Miss. 2002); Williams v. State, 803
So. 2d 1159, 1161 (Miss. 2001). The ultimate question here is whether the jury knew from the collective
instructions given to them that the Harris brothers could be acquitted if they were acting in necessary self-
defense. In reviewing a challenge to jury instructions, the instructions actually given must be read as a
whole. Montana, 822 So. 2d at 957; Williams v. State, 803 So. 2d at 1161 (citing Hickombottom
v. State, 409 So. 2d 1337, 1339 (Miss. 1992)). When so read, if the instructions fairly announce the law
of the case and create no injustice, no reversible error will be found. Id.
Reddix is distinguished in Montana and Williams. Montana, 822 So. 2d at 961; Williams, 803
So. 2d at 1161. This Court held in Williams that if another instruction supplied the missing requirement,
11
the problem was cured. Id. The facts here, as in Williams, are distinguished from Reddix in that these
instructions refer to self-defense as a defense. The instructions also discuss what has to be proven to find
an “assault justifiable on the grounds of self-defense.” As in Montana, the jury was given a manslaughter
instruction which included the allegedly omitted words, “in necessary self-defense.” See Montana, 822
So. 2d at 961.
¶22. Jury instructions are to be read together, and, if the jury is fully and fairly instructed by other
instructions, the refusal of a similar instruction does not constitute reversible error. Caston v. State, 823
So. 2d 473, 507 (Miss. 2002). The Harrises’ argument fails because the instructions, when read in their
entirety, properly charged the jury on the issues of law the Harrises claim were omitted. Further, the
instructions did not mislead the jury.
¶23. The State argues that use of the words “not in necessary self-defense” is not the only way of clearly
telling the jury that the State had the burden of proving that the defendant was not defending himself. It
points out that in this case, the jury was told that an assault is justifiable if the elements of self-defense were
present. See Instruction 16A (“The Court instructs the jury that to make an assault justifiable on the
grounds of self-defense, the danger . . . .”). The State cites Evans v. State, 797 So. 2d 811, 815-18
(Miss. 2000), where it claims this Court found it important that the instruction told the jury that a killing is
“justified” under certain conditions. The State argues that the use of the word “justifiable” in Instruction
16A, combined with other instructions on the burden of proof, sufficiently instructed the jury on the law.
¶24. The State also points out that jury instruction 16A was requested by the defendants, not the State.
It points to the designation in the lower right-hand corner of that instruction, which reads “D-8.” It also
points to the jury instruction charge conference, claiming that it further supports a finding that the instruction
was requested by the defense. A defendant cannot complain of an instruction which he, not the State,
12
requested. Buford v. State, 372 So. 2d 254, 256 (Miss. 1979); Musselwhite v. State, 212 Miss.
526, 54 So. 2d 911 (1951).
¶25. The State contends that the issue on appeal is not whether the Harrises were entitled to use
reasonable force sufficient to repel the attack by Travis. Rather, it submits that the question on appeal is
whether they were entitled to use deadly force to repel the attack. It argues that no evidence was
presented which established that the Harrises had any reason to use deadly force. Thus, the State
concludes that no reasonable juror could have found that the Harris brothers needed to use deadly force
against Travis in order to exercise reasonable self-defense.
¶26. The statute under which the Harrises were convicted states in pertinent part:
(1) The killing of a human being without the authority of law by any means or in any
manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any
human being;
(b) When done in the commission of an act eminently dangerous to others and evincing a
depraved heart, regardless of human life, although without any premeditated design to
effect the death of any particular individual;
Miss. Code Ann. § 97-3-19 (emphasis added). As the italicized portion of the statute reveals, the phrase
“without the authority of law” is an essential element of the statute. Though the exact language from the
statute was not used, this oversight is forgiven because the jury was adequately instructed through other
language.
¶27. There is no distinction between the that oversight and the failure of the instruction to include the
language “not in necessary self-defense.” Many other instructions contained this language, so it cannot be
said that the jury was not aware of its duty to acquit if it believed the Harrises were acting in self-defense.
The jury instructions must be read as a whole, not singled out. Heidel v. State, 587 So. 2d 835, 842
13
(Miss. 1991). If words and phrases with similar meaning are allowable for necessary phrases, such as
“without authority of law”, they are equally allowable for phrases such as “not in necessary self-defense.”
¶28. It was not error to give an instruction that omits the words “not in necessary self defense” when
charging depraved heart murder when the Court also instructs the jury in a separate instruction that the
killing would be justified if committed by the defendant in the lawful defense of his own person. The
instructions, when read in their entirety, properly instructed the jury that a killing may not be murder, that
the killing could be justified in self defense, the factors that must be considered when deciding if the killing
was in self defense, and that the burden of proof is always on the State. Considering the instructions as a
whole, this Court finds that the jury was properly instructed.
¶29. The jury was instructed on self-defense; it just chose not to credit that defense. Indeed, the granting
of any self-defense instruction was arguably erroneous, as the evidence did not support it. However, once
granted, the instructions were sufficient to inform the jury that it was bound to acquit if it found that the
Harrises acted in self-defense.
¶30. The instructions also adequately informed the jury on the burden of proof. Instruction 3 tells the
jury that the burden of proof is on the State, and “The Defendant is not required to prove anything.”
Instruction 5 tells the jury that the government is required to prove the defendant’s guilt and the defendant
has no burden. Instruction 6 expressly tells the jury that the defendant does not have the burden of proving
that he acted in self-defense. Specifically, the first sentence, in part, tells the jury, “ . . . it is never incumbent
upon the accused to prove conclusively that the act was committed in self-defense.” Instruction 16A told
the jury what they must find in order “. . . to make the assault justifiable on the grounds of self-defense .
. .”. The purpose of jury instructions is to tell the jury what facts they have to find and who has the burden
of proving or disproving those facts. Therefore, this Court determines the jury was adequately instructed
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on the burden of proof.
¶31. We find that these assignments of error are without merit.
III. WHETHER THE HARRISES’ CONVICTIONS MUST BE
REVERSED BECAUSE THE TRIAL COURT REFUSED THEIR
REQUESTED INSTRUCTIONS ON THE DEFENSE OF ANOTHER.
¶32. The Harrises argue that the trial court erred in refusing to give two instructions which would have
told the jury it could acquit if it found the defendants were acting in defense of others. The State counters
that the evidence does not support a claim that deadly force was justified and that the jury was adequately
instructed on self-defense by the trial court with Instruction 6. The Harrises reply that the facts do support
an argument for self-defense and that only a “linguistically challenged juror [could] parse (Instruction 6) into
a defense of another instruction…merely because of the inclusion of the word ‘a’.”
¶33. We find that the facts do not support the Harrises’ argument and that Instruction 6 fairly and
adequately covered this issue. Either taking the evidence as a whole or only the evidence in favor of the
Harrises, there is no proof that Ronnie Travis was a danger to anyone other than the Harrises. The relevant
portion of Instruction 6 reads: “All that is necessary to establish self-defense is that the defendants prove
that there was a danger to the life of a defendant or good reason to believe that his life was in danger
because of the actions of Ronnie Travis.” The use of the word “a” in the sentence widens the scope of
lawful self-defense from that of one of the Harrises protecting himself to that of all three Harrises protecting
each other. If there was danger to any one of their lives, then the instruction allowed for their individual
response to be justified by self-defense. By so instructing the jury, the trial court adequately covered the
issue of self-defense with the jury, and it was not error to refuse other redundant instructions which are not
supported by the facts.
IV. WHETHER THE CONVICTIONS MUST BE REVERSED BECAUSE
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THE TRIAL COURT'S INSTRUCTIONS PRECLUDED THE JURY
FROM CONSIDERING THE CRIME OF MANSLAUGHTER.
¶34. The Harrises primarily contend that Instructions 8, 9, 10 (depraved-heart murder instructions), 13,
13A, and 13B (manslaughter instructions) gave the jury no basis for distinguishing between depraved-heart
murder and manslaughter because they did not define the degree of negligence associated with each.
Furthermore, the Harrises assert that they were deprived of the defense of manslaughter since the jury was
instructed that it must first find the defendants not guilty of murder before considering manslaughter. They
also claim that their trial counsel rendered ineffective assistance of counsel by failing to object to that portion
of the manslaughter instructions at trial. The State responds in two ways: by arguing the appellants waived
any error here because they objected when the trial court instructed the jury on manslaughter, and by
defining depraved-heart murder, malice aforethought, and heat of passion. It merely concludes that the two
sets of instructions "are sufficient to instruct the jury on the difference in murder and manslaughter." In
reply, the Harrises argue that objecting to the manslaughter instructions does not waive any complaint when
it incorrectly states the law and notes that the offered definitions are not helpful when the State does not
discuss how they apply.
¶35. The first question we must answer is whether a jury must always be instructed on the difference
between depraved-heart murder and manslaughter when both are available for conviction. This Court
requires the jury to be instructed on how to determine the "aforethought" portion of "malice aforethought"
or "deliberation" portion of "deliberate design" where a defendant is on trial for deliberate design murder
but the jury is also instructed on manslaughter. See Williams v. State, 729 So. 2d 1181, 1183 (Miss.
1998). The Harrises argue that this Court should also require that a jury be instructed how to distinguish
"heat of passion" from an act evincing a "depraved heart." They claim the necessity to instruct the jury
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regarding the distinction in the later case is even greater than the necessity for the distinction in the former
case.
¶36. This Court has held that a trial court is not required to instruct the jury sua sponte or give
instructions in addition to those tendered by the parties. Gray v. State, 728 So. 2d 36, 60 (Miss. 1998).
Neither the prosecution nor, more importantly, Harrises offered an instruction to the trial court which would
have instructed the jury on the difference between depraved-heart murder and heat of passion
manslaughter. The trial court cannot now be found in error because the tendered and given instructions do
not differentiate between the two. Concerning the claim that it is necessary in every case to differentiate
between depraved-heart murder and heat of passion manslaughter, the instructions given here contain
different elements which sufficiently differentiate "heat of passion" from acts evincing a "depraved heart" and
no further instruction was necessary. Since the instructions are different on their face and contain different
elements, we find that the trial court's instructions fairly and sufficiently instructed the jury as to the elements
of each.
¶37. The next question we consider is whether the jury instructions deprived the Harrises of their
manslaughter defense by first requiring the jury to find the Harrises not guilty of murder. We have had one
opportunity to rule upon this issue, but passed upon the chance once we found the defendant was
procedurally barred from raising the issue on appeal because he did not object to the language at trial. See
Ballenger v. State, 667 So. 2d 1242, 1256 (Miss. 1995). Such is the case here. The trial court
instructed the jury on manslaughter over the Harrises’ general objection. The record reflects that the Harris
brothers did not want the jury instructed at all concerning manslaughter. There is no specific objection in
the record concerning the language of the instruction requiring the jury to first find the Harrises not guilty
of murder before considering manslaughter. The procedural bar applies.
17
¶38. Finally, the Harrises claim that their trial attorney rendered ineffective assistance of counsel by failing
to object to this language. The Harrises argue that this alleged ineffective assistance of counsel requires
reversal because “this case is extremely close on the issue of whether the killing was murder, manslaughter
or self-defense.” The State does not respond to the assertion that the Harrises received ineffective
assistance of counsel at trial.
¶39. Where ineffective assistance of counsel is alleged, “the benchmark [ ] must be whether counsel's
conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on
as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2064, 80 L. Ed. 2d 674 (1984). In addition, the defendant must show that the counsel's performance was
deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 104 S. Ct. 2052. In order
to show prejudice under the Strickland standard, the Harrises must show “that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
at 694, 104 S.Ct. at 2068. A defendant must make both showings under Strickland, otherwise, “it
cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process
that renders the result unreliable." Jones v. State, 857 So. 2d 740, 745 (Miss. 2003) (quoting Stringer
v. State, 454 So. 2d 468, 477 (Miss. 1984)). We find that the Harrises failed to satisfy either prong of
Strickland. Thus, this issue is without merit. V. WHETHER THE TRIAL COURT
COMMITTED REVERSIBLE ERROR
IN SUSTAINING THE
PROSECUTION'S OBJECTION TO
EVIDENCE OF RONNIE TRAVIS'S
STATEMENT SHOWING THAT HE
WAS THE AGGRESSOR.
¶40. The Harrises argue that the trial court committed reversible error when it prohibited Arthur Black
18
fromtestifying that Ronnie Travis said, "F- it, man, lets get it on" and that Travis was cursing just before the
fight with Bill Harris began. They allege the statement demonstrates Travis's state of mind and is relevant
as evidence establishing Travis as the initial aggressor in the fight. The State replies that the statement does
not prove Travis to be the initial aggressor, but does support a finding that Travis did voluntarily go outside
to continue the fight with one or more of the Harrises. The State claims that the statement refutes the claim
of self-defense and establishes a claim for mutual combat. After noting that the prosecution merely
objected as to what was said, but not how Travis was behaving, the State concludes that exclusion of the
statement did not prejudice the appellants and at most was harmless error. The Harrises attempt to counter
this argument by reasserting that prior threats by a decedent are admissible.
¶41. The admissibility of testimonial evidence is left to the sound discretion of the trial court within the
boundaries of the Mississippi Rules of Evidence, and it will not be found in error unless it is has abused its
discretion. Such error will warrant reversal only when the abuse of discretion has resulted in prejudice to
the accused. Parker v. State, 606 So. 2d 1132, 1137-38 (Miss. 1992).
¶42. At trial, the State objected to this expected testimony because it is hearsay. The trial court could
find no exception to the hearsay rule which would accommodate this testimony so he excluded it.
However, this testimony qualifies as an exception to the hearsay rule as a statement of a then-existing
mental condition, or state of mind. M.R.E. 803(3). This Court has held that M.R.E. 803(3) encompasses
relevant statements made by murder victims before their death. Id. at 1139. In the instant case, the
statement Arthur Black overheard Ronnie Travis make to the Harrises just before the fight began is relevant
to show that Travis intended to fight and might have been the initial aggressor. It was therefore error to
exclude the testimony.
¶43. However, we hold that this is nothing more than harmless error. Black's testimony concerning
19
Travis's actions and demeanor was sufficient to indicate to the jury that Travis might have been the initial
aggressor. Specifically, he testified that Travis picked up the bottle and attempted to strike one of the
Harrises with it, and he also testified about Travis's agitated state just before the fight. Charlie Harris's
testimony that Travis walked up to the table, kicked Bill's chair, and attempted to strike him with the bottle
bolsters this testimony. We find that no reversible error was committed here since the jury had sufficient
evidence of Travis's conduct before the fight began. Thus, excluding the statement did not prejudice the
Harrises. We find that this issue is without merit.
VI. WHETHER CHARLIE HARRIS’S CONVICTION MUST BE
REVERSED BECAUSE THE TRIAL COURT REFUSED TO
INSTRUCT THE JURY THAT HE WAS NOT ON TRIAL FOR
OTHER BAD ACTS.
¶44. The Harrises also allege it was error for the trial court to not give a cautionary instruction to the
jury, specifically tendered instruction D-22, that Charlie Harris was not on trial for his previous D.U.I.
conviction. They allege that the failure to so instruct the jury resulted in the jury’s considered the evidence
of the conviction for impermissible purposes. The State responds by pointing out that it was Charlie Harris
who introduced the evidence of the prior D.U.I. conviction on direct examination, and none of the
defendants asked for a limiting instruction at that time.
¶45. The State is correct that Charlie Harris introduced his prior D.U.I. conviction through his testimony
on direct examination. At that time, neither Charlie's counsel nor any other counsel for the defendants
asked for a limiting instruction from the trial court. When the State cross-examined him, he admitted that
he was drinking that night and drove the getaway car. This prompted the question from the prosecutor,
"You're used to that, right, D.U.I.'s?" Defense counsel objected, but was overruled because, stated the
judge, "It's in evidence he had a prior D.U.I." The trial court did not weigh the testimony's probative value
20
against the danger of unfair prejudice on the record after this objection. During closing argument, the
prosecutor reminded the jury that Charlie was drinking and driving that night. No objection to this closing
argument was made. The Harrises did object to the trial court's refusal to give instruction D-22, however,
the record is unclear whether the trial court was specifically addressing D-22 at the time.
¶46. The trial judge has the burden to give a cautionary instruction to the jury when character evidence
is introduced to show conformity with prior bad behavior. When the defendant objects to its admission,
the trial court must balance its probative value against the danger of unfair prejudice. M.R.E. 105, 403,
609(a); Smith v. State, 656 So. 2d 95, 100 (Miss. 1995). We find that this rule envisions an objection
contemporaneous with the admission of the testimony. As the prior bad acts evidence was introduced by
the defendant himself, any objection Charlie Harris may have had concerning its entry into evidence has
certainly been waived. The defendant did not object to the admissibility of this conviction until the State
cross-examined Charlie Harris. He did not request a cautionary instruction until arguing which instructions
should be read to the jury. As for the State's use of the information, there is nothing unduly prejudicial with
the way the prosecutor cross-examined Charlie Harris with the D.U.I. conviction or with its use during the
prosecution's closing argument. Furthermore, the Harrises did not object to the closing argument so any
error there was not preserved for appeal. Thus, we find that this issue is without merit.
VII. WHETHER THE HARRISES’ CONVICTIONS MUST BE
REVERSED BECAUSE THE TRIAL COURT DENIED THEIR
REQUEST FOR AN INSTRUCTION WHICH WOULD HAVE TOLD
THE JURY THAT A WITNESS COULD BE IMPEACHED BY
EVIDENCE OF PRIOR INCONSISTENT STATEMENTS.
¶47. The Harrises allege it was error for the trial court to refuse to give D-19 which would have
instructed the jury that testimony by a witness may be discredited or impeached with prior inconsistent
statements. Specifically, the Harrises argue that Weatherspoon's statement to the investigator that she took
21
cover from the shooting "down behind" her car is inconsistent with her trial testimony where she stated she
hid "beside" her car. They also argue that Booze's initial statement to the investigator that Charlie Harris
had a gun, which she retracted at trial, was inconsistent. They argue that these inconsistencies entitled them
to jury instruction D-19. The State counters that neither prior statement is directly contradictory to the
testimony adduced at trial to the extent that the statements have a reasonable tendency to discredit the
testimony of Weatherspoon and Booze, thus warranting the instruction.
¶48. The standard for determining the propriety of refusing a tendered instruction was reiterated in
Ferrill v. State, 643 So. 2d 501, 505 (Miss. 1994):
The refusal of a timely requested and correctly phrased jury instruction on a genuine issue
of material fact is proper, only if the trial court--and this Court on appeal--can say, taking
the evidence in the light most favorable to the party requesting the instruction, and
considering all reasonable favorable inferences which may be drawn from the evidence in
favor of the requesting party, that no hypothetical, reasonable jury could find the facts in
accordance with the theory of the requested instruction.
(quoting McGee v. State, 608 So. 2d 1129, 1134 (Miss. 1992) (emphasis in original), in turn quoting
Hill v. Dunaway, 487 So. 2d 807, 809 (Miss. 1986) (no emphasis)). This is a standard contemplates
giving instructions which correctly state the law and are supported by some evidence. Id. However, this
Court has recently held that the trial court's general instruction that the jury determine the weight and
credibility of a witness's testimony, coupled with cross-examination of the witness concerning the
inconsistent statement and closing arguments drawing attention to the inconsistencies is sufficient to remove
error from the refusal to give an impeachment instruction. Swann v. State, 806 So. 2d 1111, 1116-17
(Miss. 2002). This holding was not intended to completely deny defendants the availability of an
impeachment instruction, but when the instruction is tendered based upon inconsistent statements
concerning collateral matters, error is less likely to be found. Enell Weatherspoon's statement did not
22
contradict her earlier statement. Although the terms she used to describe how she took cover at trial
differed from how she described it to the investigator, the point which the defense could not counter was
that she could see the Harris brothers kicking Ronnie Travis after she saw Bill Harris shoot into the crowd.
This is true regardless of how or where she hid. The defense was never able to prove, or get
Weatherspoon to admit on cross-examination, that she could not see the Harrises kicking Travis, even
though she was thoroughly cross-examined concerning this point and the defendants made much of alleged
inconsistencies in her testimony during closing arguments. Furthermore, the trial court instructed the jury
that it was to determine the appropriate weight and credibility of each witness in its deliberations. We must
assume that the jury resolved any disbelief that it might have had regarding Weatherspoon's view of the
crime, when considering her testimony, when it announced its verdict.
¶49. In her testimony at trial, Joan Booze retracted a pretrial statement she made to the investigator.
While she had previously told the investigator she saw Charlie Harris with a gun that night, she testified at
trial that she only heard a gun that night and did not see who had it. However, Booze's statement that she
could see the three Harrises kicking Ronnie Travis was not inconsistent with her earlier statement to the
investigator. It was the defense's cross-examination which gave Booze the opportunity to withdraw the
portion of what she said to the investigator. The defendants also called the jury's attention to the alleged
inconsistencies in her testimony during closing arguments. In light of the trial court's given instruction
concerning the weight and credibility of the witness's testimony, we find that it was not error for the trial
court to refuse to give the impeachment instruction based upon Booze's retraction of a part of her statement
to the investigator.
¶50. The jury was instructed concerning what weight and credibility it could individually assign to any
witness's testimony. Both Weatherspoon and Booze were cross-examined concerning their alleged
23
inconsistent statements. The defendants again called the jury's attention to the alleged inconsistencies during
closing arguments. Both inconsistencies concerned matters collateral to the testimony which implicated the
brothers in the act of murder. Therefore, we find that the trial court committed no error, and this issue is
without merit.
VIII. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN ADMITTING THE ALLEGED CONFESSIONS OF THE
DEFENDANTS.
¶51. The Harrises argue that it was reversible error to admit the confessions of the three brothers at trial
because it violated their right to confront their accusers. The State counters that no error can be found in
admitting Charlie's statement because he took the witness stand. The statements given by Bill and Jason
do not implicate one another nor Charlie, so there was no violation of the right to confrontation. The State
also argues that the defendants had plenty of time to move for a severance, but failed to do so, and trying
the brothers together did not prejudice them.
¶52. As authority for finding reversible error based upon the right to confront the witnesses against them,
the defendants cite Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968),
and Gray v. Maryland, 523 U.S. 185, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). A reading of these
cases reveals the rule that where a codefendant's statement is introduced at a joint trial which powerfully
implicates the defendant in a crime, a jury instruction or redactions which naturally suggest the defendant's
name has been removed is not sufficient protection of the defendant's right to confront his accuser where
the codefendant does not take the stand and subject himself to cross-examination by the defendant. Gray,
523 U.S. at 197, 118 S.Ct. at 1157; Bruton, 391 U.S. at 137, 88 S.Ct. at 1628. However, where the
codefendant's statements do not facially implicate the defendant in the crime, there is no Bruton error.
Richardson v. Marsh, 481 U.S. 200, 208-9, 107 S. Ct. 1702, 1708, 95 L. Ed. 2d 176 (1987).
24
¶53. Specifically, the defendants object to the testimony of the investigator concerning what the
defendants told him:
1) Bill told him, "They dropped me off at the projects at my girlfriend's house." (thus
"implicating" Jason and Charlie)
2) Jason told him, "Me . . . Bill and Charlie were sitting at the table. Ronnie came
over to the table and asked Bill something. Ronnie hit Bill with a bottle. I went outside
fighting. I was kicking him." (thus "implicating" Bill and Charlie)
3) During his testimony, the investigator said concerning Jason's statements, "I've got
to leave out some of this, so it sounds choppy. I'm not allowed to say all of it. . . . It's
hard for me to explain who he's talking about." (thus "implicating" Bill and Charlie)
¶54. We find that the first statement does not implicate Charlie and Jason in any criminal activity. Read
in context, the Harrises contend that this meant Charlie and Bill were in the car, ergo they were present at
the club, the scene of the crime. It is not against the law to drop someone off at his girlfriend's residence
or be present at a club during a killing. The defendants did not even attempt to make absence from the
scene of the crime any part of their defense. All three told the investigator they were there that night, and
each eyewitness to the fight testified that they were there. Furthermore, both Charlie and Jason admitted
to fighting with Ronnie Travis. Their collective defense was self-defense. Bill's statement did not implicate
the other brothers in anything beyond what they had already individually told the investigator. Therefore,
we find that the first statement does not constitute a Bruton violation, and it was not error for the
investigator to testify concerning it.
¶55. The second statement passes the Bruton challenge for the same reason. All eyewitnesses testified
that the Harris brothers were present at the club that night, and all three brothers admitted to the
investigator that they were involved in the fight. The defense offered at trial was self-defense, not absence.
Therefore, the statement by Jason that the three brothers were present that night did not implicate any of
25
them in the subsequent murder. Again, it is not against the law to be present at the scene of a crime when
it occurs. Thus, we conclude that this statement does not violate the defendants’ right to confrontation.
¶56. The third statement, however, is more troubling. The investigator's testimony on the stand naturally
drew attention to the fact that some information from the defendants' statements was being withheld from
the jury. This was at the judge's instruction, but the defendants promptly moved for a mistrial when the
investigator made the omissions known to the jury. The trial court overruled the motion, but it is fair to say
that the jury knew that they were not told everything. Unlike Gray, however, this is not a case where a
proper name was deleted which would obviously lead the jury to conclude that the defendant's name was
the missing one. This is merely a statement made to the jury that portions of Jason's statement had to be
removed. When the jury returned from the recess to discuss the mistrial, the trial court told the jury:
Ladies and gentlemen, let me explain something to you. In civil trials and criminal
trials, as I've told you earlier, my job is to make sure only admissible evidence comes
before you. There's been some testimony here today by this particular witness concerning
the different statements that he took from the defendants. We have had pretrial hearings
on this case outside the presence of any jury, and I have ruled on certain portions of these
statements that I won't let in. Okay? This happens in every case. It's nothing unusual
about that.
This defendant made a comment about it being–I think he said choppy or
something. I can't recall. I want to ask you to just disregard that statement made by this
particular witness. It has no basis in law, and it doesn't run afoul of my prior rulings on the
evidence in this case.
There are some things that I have redacted from these statements that simply are
not admissible evidence, such as hearsay statements and things such as that. I don't want
you to find it prejudicial against either of the defendants that this witness has made the
statement. He simply made the statement in a way of trying to explain to you that it could
sound choppy when he's relating you the testimony.
Its my fault because I have ruled on certain pieces of evidence that are in these
statements. So can each one of you tell me that you can accept this explanation from me
and disregard the statement of this witness? Can each of you tell me that you'll do that and
not hold it against these defendants? Okay. All right. You may proceed.
As can be seen from the investigator's statement, no criminal activity was alleged and no defendant was
26
implicated in any portion of the act which occurred that night. It is safe to assume the jury was probably
full of natural curiosity. However, we hold that the trial judge's instruction was sufficient to satisfy the jury's
curiosity without drawing attention to the fact that the investigator might have been leaving out Charlie and
Bill's names from Jason's statement. It is true that the trial judge gave the defendants ample opportunity
to sever the trials, the last offer coming as late as the Friday before the joint trial began on Monday. The
trial courts and prosecution should be mindful that statements made by codefendants in joint trials face a
higher level of scrutiny for violations of the right to confrontation. Where it appears that the evidence, even
if revealed inadvertently to the jury, would naturally indicate to a jury that a statement by a codefendant
implicates another defendant, it is best to sever the trials. See generally Harrington v. State, 793 So.
2d 626 (Miss. 2001). Having acknowledged this danger, we find that no Bruton violation attended the
investigator's statements that he could not reveal portions of Jason Harris's statement. This issue is without
merit.
IX. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN UNDULY RESTRICTING DEFENDANTS
APPELLANTS IN PRESENTING THE DEFENSE THAT TRAVIS
MIGHT HAVE SUSTAINED THE FATAL INJURIES AT SOME
TIME PRIOR TO THEIR ALTERCATION WITH HIM.
¶57. The Harrises contend that the trial court committed reversible error when sustaining the State's
objection to the question on cross-examination of the state pathologist about non-surgical scars found on
Ronnie Travis's body. They also cite the refusal of tendered instruction D-14 was reversible error. The
instruction would have told the jury that the State must prove the acts of the defendants were such that
death was the natural and probable result. These contentions are meant to be read together as the Harrises
theory concerning the non-surgical scars on Travis's body was that they indicated Travis was injured prior
to the fight that night at the club, and his death was not caused by the defendants. The State counters that
27
the Harris brothers failed to show by testimony or offer of proof how the scars might have been caused
by an earlier fight. It concludes that the other instructions given to the jury concerning proximate cause
covered the requisite level of proof the State must offer for conviction.
¶58. A trial court will not be found in error concerning the admissibility of testimonial evidence unless
it has abused its discretion. Parker, 606 So. 2d at 1137-38. The error is reversible only upon a showing
that the error prejudiced the accused. Id. It appears that the defendants were on a fishing expedition with
the pathologist, attempting to catch evidence which would indicate that the non-surgical scars on Ronnie
Travis's body caused his demise. Without an offer of proof or a good-faith basis for asking about the scars,
we cannot say that the trial court abused its discretion in sustaining the State's objection and refusing to give
the requested instruction. The defendants did not call a witness to testify that Travis was in a fight earlier
that day or week. The defendants did not offer their own medical testimony that the injuries which the non-
surgical scars indicate occurred previously to Travis would cause this type of death. Finally, the defendants
did not pursue the matter with the trial court. The question about the non-surgical scars was the last one
asked by the defendants on cross-examination of the pathologist, and when the prosecution's objection was
sustained, the defense tendered the witness back to the prosecution for rebuttal. Without deciding the
merits of the arguments for the jury instruction, we conclude that this issue is also without merit.
CONCLUSION
¶59. We find that the Circuit Court of Madison County committed no reversible error and that the
Harrises’ assignments of error are without merit. Therefore, the judgments of the Circuit Court of Madison
County are affirmed.
¶60. BILLY RAY HARRIS: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT, WITHOUT PAROLE, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED.
28
¶61. JASON HARRIS: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT, WITHOUT PAROLE, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED.
¶62. CHARLIE HARRIS: CONVICTION OF MURDER AND SENTENCE OF LIFE
IMPRISONMENT, WITHOUT PAROLE, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AFFIRMED.
WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. PITTMAN, C.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND
GRAVES, J. McRAE, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED
IN PART BY PITTMAN, C.J. DIAZ, J., NOT PARTICIPATING.
PITTMAN, CHIEF JUSTICE, DISSENTING:
¶63. The majority overlooks plain error in its opinion today. Its attempts to distinguish Reddix v.
State, 731 So. 2d 591 (Miss. 1999), do not withstand scrutiny based on the facts and the law. It is clear
that in its deliberations the jury paid very close attention to the differences between the depraved heart
murder instructions and the manslaughter instructions. Indeed, after deliberations had begun, it even asked
the trial judge for further instruction as to the differences between the two. The depraved heart murder
instructions for each defendant–instructions 8, 9, and 10–did not instruct the jury on its duty to acquit if it
found the defendants acted in self-defense, nor do they list "not in necessary self defense" as an element
of depraved heart murder. It is also clear that Reddix found reversible error where a jury was not
adequately instructed on its duty to acquit if it found the defendant was acting in self-defense. Since the
majority fails to recognize that Reddix controls the outcome of this case and mandates reversal and
remand for a new trial, I respectfully dissent.
¶64. The majority gives several reasons why Reddix is distinct from the instant case. First, it states that
the instructions other than 8, 9, and 10 refer to self-defense as a defense. Second, it states that another
instruction (apparently 16a) discusses what must be proven to find an "assault justifiable on the grounds of
29
self defense." Third, the majority claims that the omission of the element "not in necessary self defense" has
been sanctioned by this Court previously under similar circumstances. Fourth, it states that the defendants
cannot complain that the Robinson instruction 16A was given because they requested it. Fifth, it states
the depraved heart murder statute does not contain the language "not in necessary self defense," thus it was
not required and this Court generally approves of instructions which track the language of the statute.
Finally, it states that other words like "without authority of law" and "unlawfully" should be read to make
up for the lack of "not in necessary self defense." These reasons are either unfounded or insufficient to
distinguish this case from Reddix.
¶65. The "many other instructions" which refer to self-defense in any way are 6, 12, 13, 13A, 13B, and
16A. Instructions 12, 13, 13A, and 13B are specifically tailored manslaughter instructions. Instruction
16A is the Robinson instruction which does not inform the jury of its duty to acquit if it found the
defendants acted in self-defense. The majority's reliance upon this instruction to bridge the gaps in 8, 9,
and 10 is misplaced for the same reasons found in Reddix. Instruction 6, reproduced in its entirety, reads
as follows:
The Court instructs the Jury that every killing of a human being is not
murder, and that it is never incumbent upon the accused to prove
conclusively that the act was committed in self-defense. All that is
necessary to establish self defense is that the defendants prove that there
was a danger to the life of a defendant or good reason to believe that his
life was in danger because of the actions of Ronnie Travis.
The instruction obviously instructs the jury on the proof required of the defendants who claim self-defense.
It, like the Robinson instruction, does not inform the jury of its duty to acquit should it find sufficient proof
of self-defense. It is an inadequate supplement to Instructions 8, 9, and 10. Therefore, no instruction in
the record informs the jury of its duty to acquit the defendants of murder if it found the defendants were
30
acting in self-defense.
¶66. The majority's reliance on Montana and Williams is misplaced because their jury instructions
on murder–the crime of which both were convicted–quite clearly stated that the jury must acquit if it found
the defendants acted in self-defense. Cf. Montana v. State, 822 So. 2d 954, 959 (Miss. 2002) ("The
Court instructs the jury that if you find from the evidence in this case beyond a reasonable doubt that:
Joseph Scott Montana was not acting in self-defense, or defense of others, then you shall find him guilty
of murder. If you find the State has failed to prove any more [sic] of the essential elements of the crime
charged, you must find the defendant not guilty of murder.") (emphasis in original); Williams v.
State, 803 So. 2d 1159, 1162 (Miss. 2001) ("However, in addition to the Robinson instruction, the jury
below was given instruction S-1. This instruction provided the jury with the elements of murder, including
that 'the shooting was not in necessary self-defense.'").
¶67. The majority also misstates the defendants' claim of error when it argues that they cannot complain
of the presence of the Robinson instruction because they submitted it. Their claim is that Instructions 8,
9, and 10 do not adequately instruct they jury with respect to self defense of murder, they submitted and
were refused an acceptable alternative to instructions 8, 9, and 10 in the form of D-10 which contained the
missing language "not in necessary self defense," and no other instruction–including the Robinson
instruction 16A–adequately supplements instructions 8, 9, and 10. Who submitted the Robinson
instruction is immaterial so long as instructions 8, 9, and 10 are defective. The Robinson instruction did
not create error in Reddix. In Reddix, this Court clearly stated that the Robinson instruction alone was
insufficient to cure the defective aggravated assault instructions which did not instruct the jury on its duty
to acquit if Reddix was acting in self-defense. Reddix, 731 So. 2d at 595.
31
¶68. I fail to see how a jury can be expected to understand without instruction that "unlawfully," "without
authority of law," or "justified" mean the same thing as "not in necessary self defense." I do not agree that
"not in necessary self defense" is synonymous with any of them like "unlawfully" and "without authority of
law" are synonyms. The majority fails to cite any authority from this Court which justifies such a
conclusion.2 The fact that the depraved heart murder statute does not contain the language "not in
necessary self defense" means nothing to the analysis of the issue either. A quick review of the aggravated
assault statute under which Reddix was charged reveals that no such language exists in it as well. See
Miss. Code Ann. § 97-3-7(2)(b) (Rev. 2000); Reddix, 731 So. 2d at 592. The holding in Reddix
demonstrates that instruction on the duty to acquit in cases of self defense is necessary, even where the
statute does not list self-defense as an element or contain self-defense language, and the failure to provide
such instruction is reversible error. There is no support for the majority to be found in the statute's failure
to list self-defense as an element of the crime.
¶69. The majority concludes with the argumentative notion that the jury probably should not have been
instructed on self-defense at all. This is contrary to what our case law states, including case law cited by
the majority. Cf. Williams, 803 So. 2d at 1161 ("In a homicide case, as in other criminal cases, the court
should instruct the jury as to theories and grounds of defense, justification, or excuse supported by the
evidence, and a failure to do so is error requiring reversal of a judgment of conviction. Even though based
on meager evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be
2
The closest thing to support offered is where the majority refers to the State's argument that Evans
v. State, 797 So. 2d 811, 815-18 (Miss. 2000), warrants relying on the word "justified" in one jury
instruction to cover the absence of "not in necessary self defense" in another. There is no equivalent
instruction using the word "justified" among those given by the trial court in the instant case save the
Robinson instruction which is insufficient for reasons already discussed.
32
submitted as a factual issue for determination by the jury under proper instruction of the court. Where a
defendant's proffered instruction has an evidentiary basis, properly states the law, and is the only instruction
presenting his theory of the case, refusal to grant it constitutes reversible error. Hester v. State, 602 So.
2d 869, 872 (Miss. 1992) (citations omitted)."). See also Montana, 822 So. 2d at 962. From the
testimony adduced at trial, questions requiring jury resolution include: how of the fight actually occurred,
who started the fight, the type of participation of each defendant, who was shooting at whom, how many
people were involved for either side, and what amount of force–if any–was reasonable for the defendants
to use to repel attack. It is more likely that error would have resulted had the trial court chosen not to
instruct on self-defense.
¶70. The facts of this case require reversal. The defendants were convicted of depraved heart murder.
The depraved heart murder instructions do not contain the language "not in necessary self defense" nor do
they inform the jury of its duty to acquit the defendants should it conclude the defendants were acting in self-
defense. No other instruction adequately informed the jury of that duty. The plain result is reversible error
under Reddix. There is no saving grace to be found in the manslaughter instructions 12, 13, 13A, and
13B. The jury is presumed to have followed the court's instructions and considered depraved heart murder
first and manslaughter separately. The jury noted the distinct differences between the two groups of
instructions and asked for clarification on those differences. The most glaring difference between these sets
of instructions is the lack of the self-defense language in the depraved heart murder instructions. Based on
the jury instructions, the jury here would have concluded that all the separate instructions relating to self-
defense applied only to the consideration of manslaughter.
¶71. By affirming these verdicts, the majority holds that a jury may find guilt without being adequately
instructed on the elements of the crime. Because the majority’s decision violates the defendants’ right to
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a fair trial, I dissent.
McRAE, P.J., AND GRAVES, J., JOIN THIS OPINION.
McRAE, PRESIDING JUSTICE, DISSENTING:
¶72. This Court's holding in Reddix v. State, 731 So. 2d 591 (Miss. 1999), controls the outcome of
this case. In Reddix, this Court concluded it is reversible error to fail to instruct the jury on its duty to
acquit should it determine the defendants were acting in self-defense. The Robinson self-defense
instruction discussed in Reddix was insufficient by itself to supplement the aggravated assault instruction
given to the jury because it did not inform the jury of its duty to acquit. Instructions 8, 9, and 10–the
depraved heart murder instructions under which these defendants were convicted–did not do this either.
Since these instructions fail to adequately apprise the jury of its duty, and no other instruction adequately
supplements them, I dissent.
¶73. The trial court instructed the jury that it must first find the defendants not guilty of depraved heart
murder before it could consider manslaughter. The striking difference between the murder instructions and
manslaughter instructions is the presence of the language "not in necessary self defense" in every one of the
manslaughter instructions. By merely reading the jury instructions alone, a juror can easily conclude that
"necessary self defense" does not apply to depraved heart murder, and all of the given self defense
instructions applied only towards the consideration of manslaughter. Even though we regularly presume
that a jury follows instruction from the trial court, the jury's note to the trial court gives us tangible evidence
that it was paying close attention to the differences between the two sets of instructions. The absence of
the language "not in necessary self defense" or other language which would have informed the jury of its
duty to find the defendants "not guilty" of depraved heart murder resulted in reversible error here.
¶74. The majority contends at several points that other instructions informed the jury of its duty to acquit.
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In each instance, the majority is referring to the manslaughter instructions or the Robinson instruction16A.
As discussed above, the jury was instructed that it could not consider manslaughter until after it had found
these defendants not guilty of depraved heart murder. Therefore, those instructions restrict their application
to themselves and do not supplement the depraved heart murder instructions 8, 9, and 10. The Robinson
instruction 16A, as discussed in Reddix, is insufficient alone to apprise the jury of its duty to acquit.
Instruction 6 does not inform the jury of its duty to acquit. Neither do all of the remaining instructions
discussed in by the majority all of which bear uncanny resemblance to other instructions given in Reddix
and proved insufficient to warrant affirmance in Reddix. Thus, I disagree with the majority's conclusion
that other instructions adequately informed the jury of its duty with respect to the depraved heart murder
instructions.
¶75. The majority believes that Reddix can be distinguished from the instant case the same way
Montana v. State, 822 So. 2d 954 (Miss. 2002), and Williams v. State, 803 So. 2d 1159 (Miss.
2001), were. This is incorrect because both murder instructions in Montana and Williams contained
the self-defense language missing here. Montana, 822 So. 2d at 959; Williams, 803 So. 2d at 1162.
The majority claims that the self-defense language was unnecessary because the depraved heart murder
statute does not list it as an element of the offense. This is immaterial, as demonstrated in Reddix, because
the aggravated assault statute under which Reddix was convicted did not list it as an element either. In
Reddix this Court found the failure to include the self-defense language a reversible error anyway.
Furthermore, I cannot join the majority's implication that some other word or phrase such as "unlawfully"
or "without authority of law" is a sufficient synonym with "not in necessary self-defense" that an average
juror would have been appraised of her duty to acquit here. Finally, the facts indicate a jury question was
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created concerning who started the fight, how many people were involved, which of the defendants
participated, and how much force–if any–was needed to act in self- defense. The majority's argument that
the self-defense instructions were arguably erroneous is neither supported by the evidence nor the case law
they cite which also discusses the granting of instruction on the defendants' theory of the crime. See
Montana, 822 So. 2d at 962; Williams, 803 So. 2d at 1161.
¶76. Because the jury convicted the defendants under a defective set of depraved heart murder
instructions which did not inform it of its duty to acquit where appropriate, I cannot join the majority today
in affirming this verdict.
¶77. Because I would reverse and remand for a new trial before a properly instructed jury, I dissent.
PITTMAN, C.J., JOINS THIS OPINION IN PART.
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