Desmond Durr v. State of Mississippi

IN THE COURT OF APPEALS
9/9/97
OF THE
STATE OF MISSISSIPPI
NO. 95-KA-00488 COA
DESMOND DURR 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. BETTY SANDERS
COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: WARREN L. CONWAY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY GORE
DISTRICT ATTORNEY: MICHAEL HORAN
NATURE OF THE CASE: CRIMINAL - FELONY - MANSLAUGHTER
TRIAL COURT DISPOSITION: MANSLAUGHTER, 15 YEARS (7 YEARS SUSPENDED)
MOTION FOR REHEARING FILED:9/24/97
PETITION FOR CERTIORARI FILED: 11/17/97
BEFORE BRIDGES, C.J., HINKEBEIN, AND KING, JJ.
HINKEBEIN, J., FOR THE COURT:
Desmond Durr [Durr] was convicted in the Sunflower County Circuit Court of manslaughter for
having killed a fellow inmate while incarcerated at the state penitentiary in Parchman, Mississippi.
Durr appeals to this Court asserting that the lower court committed the following reversible error:
I. THE COURT ERRED WHEN IT DISMISSED BLACK JURORS WHOM THE STATE
PEREMPTORILY CHALLENGED, WITHOUT PROPER RACIALLY NEUTRAL REASONS.
II. THE COURT ERRED WHEN IT ALLOWED A WITNESS TO INSTRUCT THE JURY AS TO
A MATTER OF LAW AND GIVE AN EXPERT OPINION AS TO AN ULTIMATE ISSUE OF
FACT.
III. THE COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR A DIRECTED
VERDICT.
IV. THE COURT ERRED IN GRANTING STATE'S INSTRUCTION S-2 OVER THE
OBJECTION OF THE APPELLANT.
V. THE COURT ERRED IN GRANTING STATE'S INSTRUCTION S-3 OVER THE OBJECTION
OF THE APPELLANT.
VI. THE COURT ERRED IN REFUSING DEFENDANT'S INSTRUCTION D-11 OVER THE
OBJECTION OF THE APPELLANT.
Holding Durr's assignments of error to be without merit, we affirm the decision of the circuit court.
FACTS
This case involves a prison gang initiation ritual conducted in November of 1995 by inmates at the
state penitentiary in Parchman, Mississippi. The victim of this crime, Jerry Larry, died while
participating in a "ceremony" to initiate him into the ranks of a gang known as the "Black Gangster
Disciples" [Disciples], who apparently have a contingent at Parchman. Neither the Disciples nor their
initiation ritual is officially sanctioned by prison administrators. As part of the initiation ritual the
candidate must endure numerous so-called "love licks" to the right chest area. These "love licks" are
administered to the candidate by members of the gang. Normally the candidate receives thirty six
blows to the chest, but in this case an exception was made for the victim, who was only given twelve.
This decision to give the victim only twelve blows was made by the appellant, Durr, acting in his
capacity as a so-called "zone enforcer" for the Disciples. It is unclear why Durr concluded that the
victim needed to endure fewer blows than candidates were typically subjected to.
After Durr struck the victim twelve times in the chest, directly over the victim's heart, the victim fell
face forward onto the floor. The other inmates called for help and a guard responded, administering
cardiopulmonary resuscitation to the victim. The victim was subsequently treated by emergency
medical personnel who transported him to a hospital for more sophisticated care. These efforts,
however, were to no avail and the victim died of heart failure caused by the blows to his chest. Durr
was subsequently indicted and tried for murder, but was convicted of the lesser offense of
manslaughter predicated upon the unlawful act of simple assault. It is from this conviction that Durr
appeals.
ANALYSIS
I. THE COURT ERRED WHEN IT DISMISSED BLACK JURORS WHOM THE STATE
PEREMPTORILY CHALLENGED, WITHOUT PROPER RACIALLY NEUTRAL REASONS.
Durr contends that the race-neutral reasons offered by the State in defense of its peremptory strikes
of two potential jurors were not sufficient to satisfy Batson requirements. Durr contends that the
State's excuse that the potential jurors were unemployed and were "unknown" to local law
enforcement officials was inadequate, particulary considering that an unemployed white person was
subsequently seated on the jury. The State responds to Durr's allegation by claiming that the reasons
offered were in fact legitimate race-neutral reasons. We agree with the State.
At trial the prosecution offered, sua sponte, to supply the court with race-neutral reasons for having
used peremptory strikes to remove two potential jurors, apparently in a pro-active attempt to
demonstrate that the United States Supreme Court's holding in Batson v. Kentucky had been complied
with. See Batson v. Kentucky, 476 U.S. 79, 89 (1986) (holding that peremptory challenges of jurors
based solely on racial considerations to be violative of Equal Protection Clause of Fourteenth
Amendment to United States Constitution). Under our Supreme Court's holding in Batson, a
defendant's(1) challenge to a peremptory strike involves a three-step process. First, the
defendant must establish a prima facie case of purposeful discrimination in the selection of jury
members. To do this the defendant must show:
1. That he is a member of a "cognizable racial group";
2. That the prosecutor has exercised peremptory challenges toward the elimination of venire men of
his race;
3. That facts and circumstances raised an inference that the prosecutor used his peremptory challenges
for the purpose of striking minorities.
Conerly v. State, 544 So. 2d 1370, 1372 (Miss. 1989) (citing Batson, 476 U.S. at 96-97). Second,
should the defendant make such a showing, the State must then provide a legitimate race-neutral
reason for the challenged peremptory strike. Batson, 476 U.S. at 97. Third, the trial court must make
a finding of fact to determine if, in spite of the allegedly race-neutral reason supplied by the State, the
defendant has proved purposeful discrimination. Batson, 476 U.S. at 98.
Keeping in mind this three-part analysis, however, we must acknowledge the fact that some trial
courts ignore the prima facie inquiry and require the State to provide race-neutral reasons to defend its
peremptory strikes upon the defendant's mere assertion that racial discrimination motivated the State's
strike. The Supreme Court has addressed this problem, stating that if the trial court ignores the prima
facie case inquiry, and "rule[s] on the ultimate question of intentional discrimination, the preliminary
issue of whether the defendant had made a prima facie showing becomes moot." Hernandez v. New
York, 500 U.S. 352, 359 (1991). In the case at bar the State offered the allegedly race-neutral reasons
on its own initiative, without Durr or the trial court having asked for them. In his brief on this appeal
Durr states that he and the two jurors involved in the Batson challenge are black, although he
concedes that this fact is not contained in the record. However, in light of the Supreme Court's holding
in Hernandez, we shall proceed to review the trial court's ruling as if all the procedural steps of a
proper Batson challenge had been complied with.
In determining if a race-neutral reason exists, the trial court's findings are reviewed with great
deference "and will not be overturned unless there appears an error that is against the overwhelming
weight of the evidence." Harper v. State, 635 So. 2d 864, 868 (Miss. 1994); see also Hatten v. State,
628 So. 2d 294, 299 (Miss. 1993) (holding that only clearly erroneous findings will be overturned on
appeal). When analyzing a party's reason offered to defend a peremptory challenge objected to on
Batson grounds, the proper inquiry is not whether the reason offered is reasonable, but whether or
not it is genuine. Purkett v. Elem, 115 S. Ct. 1769, 1171-72 (1995). Perfectly sound reasons may be
rejected by the trial court if found to be pretextual, and even "silly or superstitious" reasons, if
honestly advanced, do not automatically fall before a Batson challenge. Purkett, 115 S. Ct. at 1171.
Of paramount consideration is that the reasons offered need not "rise to the level justifying exercise
of a challenge for cause." Batson, 476 U.S. at 97. The Supreme Court has made it clear that "[u]nless
a discriminatory intent is inherent in the [party's] explanation, the reason offered will be deemed race-
neutral." Hernandez, 500 U.S. at 360. This is a factual determination within the sound discretion of
the trial court. See Lockett v. State, 517 So. 2d 1346, 1350 (Miss. 1987) (stating that trial court is
"proper forum for resolution of factual controversies").
In the case at bar Durr has presented this Court with no evidence to demonstrate that the trial court
was clearly erroneous in accepting the reasons offered by the State. In addition to the fact that the
potential jurors at issue were unemployed, the State argued that its contacts among the local law
enforcement community were unable to provide any information about these two potential jurors. We
hold this to be a legitimate race-neutral reason, as it seems perfectly reasonable that a prosecutor
would use his resources among the local law enforcement community to gain as much information as
possible about the prospective jurors. The fact that nothing was know about certain individuals in
effect made them "wild cards" to the prosecutor, who was apparently unwilling to take any chances
with jurors about whom the State knew nothing of their backgrounds other than the information
contained on the jury questionnaire. Accordingly, it is the conclusion of this Court that the trial court
was not clearly erroneous in finding that the employment/reputation among local law enforcement
reason offered by the State was a legitimate race-neutral reason. See Lockett v. State, 517 So. 2d at
1356-57 (acknowledging employment history/status as potentially legitimate race-neutral reason for
exercise of peremptory strikes of jurors). Durr's reference to an unemployed white person who was
subsequently seated on the jury is irrelevant as the State indicated that it had reliable information
from local law enforcement officials regarding this juror. We hold that these facts were sufficiently
distinct from those involving the previously struck unemployed blacks, so as to negate any inference
that race played a role in the State's exercise of peremptory strikes. This assignment of error is
without merit.
II. THE COURT ERRED WHEN IT ALLOWED A WITNESS TO INSTRUCT THE JURY AS TO
A MATTER OF LAW AND GIVE AN EXPERT OPINION AS TO AN ULTIMATE ISSUE OF
FACT.
Durr asserts that the trial court committed reversible error when it overruled his objection to Dr.
Emilly Ward [Dr. Ward], a forensic pathologist, being allowed to testify that the manner of the
victim's death was homicide. Durr contends that Dr. Ward should not have been allowed to testify
that the death was a homicide, or that "according to the laws" a homicide is "a deliberate act of
another individual that results in the death of the deceased." Durr contends that Dr. Ward was not
accepted as an expert in the law, and her conclusion that a homicide had been committed "was not
helpful to a determination of the case and was therefore not admissible." The State responds by
conceding that Dr. Ward's testimony was an opinion as to an ultimate issue of the case, but that such
testimony was admissible under Mississippi Rule of Evidence 704.
Rule 704 of the Mississippi Rules of Evidence states that "[t]estimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue to be
decided by the trier of fact." Miss. R. Evid. 704. As such, Rule 704 abolishes the "ultimate issue rule"
which existed under pre-Mississippi Rules of Evidence practice. Miss. R. Evid. 704 cmt. Under the
ultimate issue rule opinion testimony that "invade[d] the province of the jury" was inadmissible."
Miss. R. Evid. 704. This change from pre-rule practice, however, "does not result in the admission of
all opinions." Hart v. State, 637 So. 2d 1329, 1338-39 (Miss. 1994). For an opinion to be admissible
it remains "an absolute requirement under Rules 701 and 702 that opinions must be helpful to a
determination of the case before they are admissible." Hart, 637 So. 2d at 1339. In addressing Rule
704, the Mississippi Supreme Court has stated that:
[e]very expert opinion embracing the ultimate fact is not per se admissible, however. The opinion still
must be helpful to the trier of fact. Questions which simply allow the witness to tell the jury what
result to reach are impermissible, as are questions asking the witness for a legal conclusion.
May v. State, 524 So. 2d 957, 964 (Miss. 1988).
In the case at bar Dr. Ward was allowed to testify that the "manner of death [was] homicide" and to
tell the jury that "according to the laws" a homicide is "a deliberate act of another individual that
results in the death of the deceased." We hold that her testimony as to the manner of death was not
helpful to the trier of fact; therefore, it was not admissible under Rule 704. While we would normally
make an identical disposition of Dr. Ward's opinion concerning the legal definition of homicide,
because Durr failed to object to this statement at trial he has waived the issue. See Read v. State, 430
So. 2d 832, 838 (Miss. 1983) (holding that issues not raised before trial court are waived). We will
not hold a trial court in error for a matter which was never presented for its consideration. Holland v.
State, 587 So. 2d 848, 868 n.18 (Miss. 1991). In analyzing Dr. Ward's opinion testimony regarding the
"cause" and "manner" of the victim's death, we acknowledge that
she was bound by statue to make these conclusions and to record them on the death certificate.
However, we must still address the admissibility of such conclusions.
At trial Dr. Ward testified that the "cause" of death was "cardiac concussion," a medical conclusion
which was within her field of expertise to make and was helpful to the trier of fact. No error was
committed in admitting such testimony into evidence. See Whittington v. State, 523 So. 2d 966, 976
(Miss. 1988) (holding admission of forensic pathologist's medical conclusion as to cause of death was
permissible under Rule 704). The admission of Dr. Ward's testimony regarding the "manner" of
death, however, is an entirely different matter. Under Mississippi law Dr. Ward was required to make
a conclusion as to the "manner" of death when filling out death certificates. The choices provided by
statute were "natural causes," "accidental," "suicide," "homicide," or "undetermined." To this Court it
is readily apparent that determining the manner of death beyond the statutory requirement involves a
significant inquiry into the non-medical facts surrounding a death. This is precisely the type of factual
inquiry that the jury was charged with conducting. Accordingly, it is the opinion of this court that the
statements the prosecutor elicited from Dr. Ward regarding the "manner" of death were factual
conclusions, well beyond any medical conclusions offered to provide the jury with facts to aid it in
resolving the issue. This was error, for it is the sole province of the jury to make factual conclusions
regarding issues presented to it for determination. Great Atl. & Pac. Tea Co. v. Mulholland, 84 So.
2d 504, 508 (Miss. 1956).
However, merely because the trial court made an erroneous evidentiary ruling does not entitle Durr
to "get out of jail free." See Roundtree v. State, 568 So. 2d 1173, 1180 (Miss. 1990) (holding error
harmless unless outcome of case was affected); see also Jackson v. State, 645 So. 2d 921, 924 (Miss.
1994) (holding that evidentiary ruling must have resulted in denial of substantial right of defendant in
order to be grounds for reversal). Because Durr has done nothing to show that the outcome of this
case was influenced by the trial court's error, we hold it to be harmless. This assignment of error is
without merit.
III. THE COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR A DIRECTED
VERDICT.
Durr argues that the trial court was in error when it denied his motion for a directed verdict. It is
Durr's contention that because the victim consented to being struck in the chest, the blows he
delivered to the victim were not an "unlawful act," i.e., his act of striking the victim did not constitute
simple assault. Durr asserts that in order to be guilty of manslaughter the killing at issue must have
been an "unlawful act," so if there was no simple assault (due to the victim's consent), then he can not
be guilty of manslaughter. Durr concedes that he is unable to locate any Mississippi jurisprudence
dealing with the issue of whether the victim's consent is a defense to a criminal charge.
The State responds by asserting that the victim's consent to the blows was not relevant to whether
the jury could have reasonably found the State's evidence against Durr sufficient to satisfy the
elements of simple assault. The State argues that under Mississippi law one of the avenues for
obtaining a conviction for simple assault is by proving that the defendant "purposely, knowingly or
recklessly cause[d] bodily injury to another," which it contends was easily satisfied by the evidence
put on by the State in its case-in-chief. The State responds to Durr's argument regarding the victim's
consent by asserting that even if the victim's consent was a defense to a criminal prosecution, in this
case "the extent of the physical harm to [the victim], i.e., his sudden demise, far exceeded the terms
of any consent." The State, however, cites no authority in support of this conclusion. According to
the State, because Durr's actions amounted to the unlawful act of simple assault, the killing at issue
was without authority of law, therefore constituting manslaughter.
Directed verdict and JNOV motions challenge the legal sufficiency of the evidence. McClain v. State,
625 So. 2d 774, 778 (Miss. 1993). With regard to the legal sufficiency of the evidence, all credible
evidence consistent with the defendant's guilt must be accepted as true and the prosecution must be
given the benefit of all favorable inferences that may be reasonably drawn from the evidence.
McClain, 625 So. 2d at 778. This Court is authorized to reverse only where, with respect to one or
more of the elements of the offense charged, the evidence so considered is such that reasonable and
fair-minded jurors could only find the accused not guilty. Wetz v. State, 503 So. 2d 803, 808 (Miss.
1987).
The record of the case at bar makes no mention as to which of Mississippi's numerous manslaughter
statutes Durr was being prosecuted under. However, after careful review of the parties' arguments
during the directed verdict motions, we have concluded that the State was prosecuting Durr under
Section 97-3-47 of the Mississippi Code. Section 97-3-47 punishes as manslaughter "every other
killing of a human being, by the act, procurement, or culpable negligence of another, and without
authority of law . . . ." Miss. Code Ann. § 97-3-47 (Rev. 1994). The State argued that Durr's actions
in striking the victim amounted to simple assault; therefore, the killing was committed "without
authority of law." Section 97-3-7(1) of the Mississippi Code holds that "[a] person is guilty of simple
assault if he . . . attempts to cause or purposely, knowingly, or recklessly causes bodily injury to
another . . . ." Miss. Code Ann. § 97-3-7(1) (Rev. 1994). It is the opinion of this Court that the trial
court was correct in denying Durr's motion for a directed verdict, as there was sufficient evidence to
support the jury's finding of guilt.
At trial Durr admitted to having struck the victim in the chest with his fist, above the victim's heart.
Durr and his trial counsel even went so far as to reenact the blows (using his attorney as the victim)
in front of the jury. Durr subsequently testified that the in-court reenactment of the "love licks" was
true to fact and that the actual blows inflicted upon the victim were no more severe than those
demonstrated for the jury. We feel that this evidence alone was sufficient to support the jury's finding
that Durr committed manslaughter, as it was his act of striking the victim without authority of law
which resulted in the victim's death.
To argue that "no reasonable, hypothetical juror could find beyond a reasonable doubt that the
defendant was guilty" is absurd. Clearly, striking a fellow human being's chest area over his heart with
twelve blows from a curled fist, regardless of the victim's consent, could be interpreted by a
reasonable juror as an "attempt[] to cause or purposely, knowingly, or recklessly cause[] bodily injury
to another," thereby making Durr guilty of simple assault. Contrary to Durr's claim that the blows
were "not too hard," it is this Court's opinion that a reasonable juror could have found that the blows
were in fact too hard, and that the victim's death was the result of Durr's unlawful act. Accordingly,
we hold that the victim's consent to being struck was not relevant to the disposition of this case
because, as discussed above, even with the victim's consent to Durr pounding on his heart, Durr's
actions amounted to the reckless infliction of bodily injury. Therefore, this Court need not address the
general proposition of whether a victim's consent is a defense to a criminal prosecution. Because
Durr's conviction was sufficiently supported by the State's evidence, which satisfied all essential
elements of our simple assault and manslaughter statutes, this assignment of error is without merit.
IV. THE COURT ERRED IN GRANTING STATE'S INSTRUCTION S-2 OVER THE
OBJECTION OF THE APPELLANT.
Durr argues that State's instruction S-2 was not a correct statement of the law regarding the crimes
of simple assault or manslaughter and was not supported by the evidence. Durr contends that in
addition to omitting several of the essential elements for manslaughter, neither S-2 nor any of the
other instructions instruct the jury as to the elements of simple assault, which Durr contends "the jury
must consider in its deliberations before it can properly return a verdict of manslaughter." As
discussed in conjunction with Durr's third assignment of error, supra, Durr argues that the killing
must have been an "unlawful act," i.e., that the State must prove that the killing occurred while Durr
was committing a simple assault upon the victim, in order for the act of killing the victim to
constitute manslaughter under the facts of this case. The State responds that instruction S-2 was a
correct statement of the law and that it was supported by the evidence. According to the State the
instruction was adequate and, based upon the overwhelming evidence of Durr's guilt, to affirm his
conviction would not result in an injustice.
In considering this assignment of error we are mindful that "whether error lies in the granting or
refusal of various instructions, the instructions actually given must be read as a whole. When so read,
if the instructions fairly announce the law of the case and create no injustice, no reversible error will
be found." Hickombottom v. State, 409 So. 2d 1337, 1339 (Miss. 1982). Accordingly, defects in
specific instructions do not require reversal where all instructions taken as a whole fairly -- although
not perfectly -- announce the applicable primary rules of law. Collins v. State, No. 94-KA-008550-
SCT, 1997 WL 183892, *12 (Miss. April 17, 1997). The jury, however, must be correctly and fully
instructed regarding each element of the offense charged. Hunter v. State, 684 So. 2d 625, 636
(Miss. 1996). If those instructions do not fairly or adequately instruct the jury, this Court can and will
reverse. Collins, 1997 WL 183892 at *12.
The jury instruction at issue read, in pertinent part, as follows:
[I]f you believe from the evidence in this case beyond a reasonable doubt that the [d]efendant,
Desmond Durr, committed that act of striking [the victim] in the chest with fists, and if you further
believe from the evidence in this case beyond a reasonable doubt that [the victim] died as a result of
that act then it is your sworn duty to find [the defendant] guilty of the lesser included crime of
manslaughter even though said act may have been committed without any premeditation design[ed] to
effect the death of [the victim].
The statute under which Durr was apparently convicted of manslaughter was Section 97-3-47 of the
Mississippi Code. Section 97-3-47 punishes as manslaughter "every other killing of a human being,
by the act, procurement, or culpable negligence of another, and without authority of law . . . ." Miss.
Code Ann. § 97-3-47 (Rev. 1994).
It is the opinion of this Court that instruction S-2, when read as a whole with the other jury
instructions, fairly and adequately instructed the jury as to the essential elements of manslaughter.
The instructions fairly announce the law on murder as well as manslaughter. In addition, the
instructions submitted by the defendant and approved by the trial court further qualify the issues for
consideration by the jury on both crimes. This assignment of error is without merit.
V. THE COURT ERRED IN GRANTING STATE'S INSTRUCTION S-3 OVER THE OBJECTION
OF THE APPELLANT.
Durr argues that the trial court committed reversible error in admitting the State's instruction S-3
because the instruction "fail[ed] to go on to explain that consent can be a valid defense . . . ." It is
Durr's contention that the proposition instruction S-3 stood for, i.e., that crimes are committed
against the State rather than individual citizens, is an incorrect statement of the law. Durr, however,
cites no relevant authority to support his argument. The State's position is that instruction S-3 "did
not misstate the law."
The instruction in question provided that "[t]he [c]ourt instructs the [j]ury that all crimes are
committed against the State of Mississippi and not against individual victims." Because Durr has failed
to direct this Court to any relevant authority which would support his contention that instruction S-3
was a misstatement of the law, we decline to address the merits of his argument. See Ferrill v. State,
643 So. 2d 501, 508 (Miss. 1994) ( stating that court should decline to address issues on appeal for
which no relevant supporting authority was offered); Holmes v. State, 483 So. 2d 684, 687 (Miss.
1986) (holding that general rule is that unsupported assignments of error are not considered on
appeal). Accordingly, this assignment of error is without merit.
VI. THE COURT ERRED IN REFUSING DEFENDANT'S INSTRUCTION D-11 OVER THE
OBJECTION OF THE APPELLANT.
Durr argues that the trial court's refusal to submit his instruction D-11 to the jury constitutes
reversible error. The essence of D-11 was that if the victim's death was "by accident and misfortune
in doing any lawful act by lawful means . . . without any unlawful intent," then the killing was
excusable. Durr once again asserts that his striking the victim was not a simple assault because of the
victim's consent. Accordingly, Durr asserts that the victim's death occurred "in doing [a] lawful act by
lawful means," so that his instruction was correct as a matter of law and was properly grounded in
the evidence adduced at trial. The State responds to Durr's claim by arguing that the victim's consent
to being struck was not relevant to whether Durr's actions constituted a simple assault under Section
97-3-7(1) of the Mississippi Code, or the resulting manslaughter conviction which was predicated
upon the "unlawful act" of simple assault.
In order for a jury instruction to be given it must be a correct statement of the law and be supported
by the evidence. Murphy v. State, 566 So. 2d 1201, 1206 (Miss. 1990) (holding that trial judge may
refuse instruction which incorrectly states law or is without foundation in evidence). Furthermore, a
trial court's failure to give a particular jury instruction "will not warrant reversal if the jury was fully
and fairly instructed by other instructions." Williams v. State, 667 So. 2d 15, 24 (Miss. 1996). In
reviewing a lower court's rulings on jury instructions the instructions given "are to be read as a whole
and no one instruction is to be taken out of context." Mackbee v. State, 575 So. 2d 16, 34 (Miss.
1990).
Instruction D-11 read as follows:
The [c]ourt instructs the [j]ury that the killing of any human being by the act, procurement, or
omission of another shall be excusable when committed by accident and misfortune in doing any
lawful act by lawful means, with usual ordinary caution, and without any unlawful intent. If you find
that [the victim] died at the hands of the defendant, Desmond Durr, and that [the victim's] death was
the result of an accident and/or misfortune in doing a lawful act by lawful means with usual ordinary
caution and without any unlawful intent then you must find the defendant, Desmond Durr, not guilty.
It is the holding of this Court that the trial court did not err in refusing to admit instruction D-11, as it
was not supported by the evidence in the case at bar. As has been discussed in previous sections of
this opinion, the evidence is clear that Durr's actions in striking the victim amounted to a simple
assault under Section 97-3-7(1) of the Mississippi Code. Accordingly, Durr was not engaged in a
"lawful act by lawful means . . . without any unlawful intent" when he caused the victim's death. This
assignment of error is without merit.
THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT OF CONVICTION
OF MANSLAUGHTER AND SENTENCE OF FIFTEEN (15) YEARS WITH SEVEN (7)
YEARS SUSPENDED IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS IS AFFIRMED. COSTS ARE ASSESSED AGAINST SUNFLOWER
COUNTY.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, KING,
PAYNE, AND SOUTHWICK, JJ., CONCUR.
1. While the instant case involves a Batson challenge in the context of a criminal prosecution, it
should be made clear that Batson applies equally to civil cases. Dedeaux v. J.I. Case Co., 611 So. 2d
880,883 (Miss. 1992). Additionally, any party to the case has standing to raise a Batson challenge.
Edmonson v. Louisville Concrete Co., 500 U.S. 614, 630 (1991).