Hye v. State
Citation | 162 So.3d 750 |
Decision Date | 05 February 2015 |
Docket Number | No. 2010–CT–01780–SCT.,2010–CT–01780–SCT. |
Parties | Terry HYE, Jr. v. STATE of Mississippi. |
Court | United States State Supreme Court of Mississippi |
Graham Patrick Carner, attorney for appellant.
Office of the Attorney General by Lisa L. Blount, attorney for appellee.
EN BANC.
PIERCE, Justice, for the Court:
¶ 1. Following his capital-murder conviction in Jackson County, Terry Hye Jr. received a life sentence without the possibility of parole. The Court of Appeals affirmed Hye's conviction but vacated and remanded his sentence as unconstitutional, pursuant to the intervening decision of the United States Supreme Court in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ( ). Hye was sixteen years old at the time of the crime. Hye v. State, 2013 WL 2303518, at *5, 162 So.3d 818, 824–25 . Aggrieved by the Court of Appeals' affirmance of his conviction, Hye filed a petition for writ of certiorari in this Court, arguing that the trial court violated his right to a fair trial by denying him an accessory-after-the-fact instruction and an accomplice instruction. Hye also claimed that the trial court failed to properly instruct the jury on the underlying felony of armed robbery, which resulted in a constructive amendment of the indictment. We granted Hye's petition, and, pursuant to Mississippi Rule of Appellate Procedure 17(h), address only the question of whether the trial court erred by denying Hye an accessory-after-the-fact instruction.
¶ 2. We agree with the Court of Appeals that the trial court properly denied Hye's request for an accessory-after-fact instruction because there was no evidentiary basis for it. We also find, after much consideration on the matter, that a criminal defendant no longer has the unilateral right under Mississippi law to insist upon an instruction for lesser-related offenses which are not necessarily included in the charged offense(s), i.e., so-called lesser-nonincluded-offense instructions. And we overrule Griffin v. State, 533 So.2d 444 (Miss.1988), and its progeny, to the extent they hold otherwise.
Hye, 2013 WL 2303518, at **2–4, 162 So.3d at 821–24.
¶ 3. This Court granted Hye's Petition for Writ of Certiorari by order entered on January 9, 2014. On June 12, 2014, this Court ordered supplemental briefing regarding “[w]hether Griffin v. State, 533 So.2d 444 (Miss.1988), and its progeny, authorizing ‘lesser non-included’ offense instructions[,] should be overruled.”
¶ 4. Having reviewed the supplemental briefing regarding the question outlined in the June 12, 2014, order from this Court, we find that Mississippi's practice of instructing the jury on lesser nonincluded crimes is “fundamentally unsound.” We, therefore, overrule Griffin and its progeny. Additional facts, as necessary, will be related in our discussion.
¶ 5. As mentioned, we agree with the Court of Appeals that the trial court properly denied Hye's request for an accessory-after-the-fact instruction. The trial court may refuse a proffered jury instruction if the instruction is without a foundation in the evidence. Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990) (citing U.S. v. Robinson, 700 F.2d 205, 211 (5th Cir.1983) ). As illustrated by the record, Hye's theory of the case was that he did nothing wrong the evening of October 23, 2008, other than illegally purchase cigarettes at the Conoco gas station, and not report the shooting to the police. No evidence was presented to Hye's jury that would have allowed it to consider whether Hye was guilty as an accessory after the fact, as prescribed by Mississippi Code Section 97–1–5(1) (Rev.2014).2
¶ 6. Hye's requested instruction in this instance is known as a lesser-nonincluded-offense instruction—typically referred to as such because it instructs the jury on an offense whose essential elements are not included (or a subset) of the offense(s) charged in the indictment. This type instruction lies in contrast with what is known as a lesser-included-offense instruction—referred to as such because all of its essential elements are also essential elements of the greater offense charged.
¶ 7. Like most jurisdictions, Mississippi has long recognized that an offense alleged in the indictment (or accusatory pleading) may necessarily include one or more lesser offenses. Under Mississippi Code Section 99–19–5, the jury may convict the defendant of an “inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment ....”3 This Court repeatedly has interpreted Section 99–19–5 (and its predecessors) to “apply only to an inferior offense ‘necessarily included within the more serious offense.’ ” See Hailey v. State, 537 So.2d 411, 414 (Miss.1988) citing Sanders v. State, 479 So.2d 1097, 1105 (Miss.1985) ; Gillum v. State, 468 So.2d 856, 861 (Miss.1985) ; Cannaday v. State, 455 So.2d 713, 725 (Miss.1984) ; Biles v. State, 338 So.2d 1004 (Miss.1976) ; Gray v. State, 220 Miss. 220, 70 So.2d 524 (1954) ; Boggan v. State, 176 Miss. 655, 170 So. 282 (1936) ; Brown v. State, 103 Miss. 664, 60 So. 727 (1913) ; Bedell v. State, 50 Miss. 492 (1874).
¶ 8. A lesser offense is necessarily included in the greater offense if the elements of the greater offense include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. See Porter v. State, 616 So.2d 899, 909–10 (Miss.1993) (Hawkins, J., specially concurring) () . As we explained in Hailey, 537 So.2d at 416, “if under the facts alleged in the indictment a lesser offense is necessarily included, then a conviction of the lesser offense may be proper[; but] [t]he indictment must sufficiently allege...
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