Cohen v. State

• Decision Date: 31 December 1998
• Docket Number: No. 95-CT-00233-SCT.,95-CT-00233-SCT.
• Citation: 732 So.2d 867
• Parties: Keith Dewayne COHEN, a/k/a Kelo v. STATE of Mississippi.
• Court: Mississippi Supreme Court

732 So.2d 867

Keith Dewayne COHEN, a/k/a Kelo v. STATE of Mississippi.

No. 95-CT-00233-SCT.

Supreme Court of Mississippi.

December 31, 1998.

Rehearing Denied March 31, 1999.

Darnell Felton, Clarksdale, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Attorney for Appellee.

EN BANC.

ON PETITION FOR WRIT OF CERTIORARI

SMITH, Justice, for the Court:

¶ 1. Cohen was convicted of aggravated assault in the Circuit Court of Coahoma County. The appeal was duly filed and assigned to the Court of Appeals, which reversed the conviction finding that the trial court erred in refusing a requested defense instruction on accidental injury. On Petition for Writ of Certiorari filed by the State, we find the Court of Appeals majority to be in error, and accordingly reverse and reinstate the conviction and sentence of the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. Cohen was indicted and convicted for the shooting of Ginger Wright. He alleged as his defense that he was defending himself against an alleged attack by a third party, Tyrone Johnson, when he accidentally shot and struck the victim, Wright, an innocent bystander. At trial, he offered the following instruction, D-3, which was denied by the trial court.

The court instructs the jury that the shooting and injuring of another human being shall be excusable when committed by accident and misfortune while necessarily defending oneself. In this case if you shall find from the evidence, or have a reasonable doubt therefrom, that Keith Dewayne Cohen, while necessarily defending himself from any sudden or sufficient provocation by Tyrone "Pooh Pooh" Johnson, fired a pistol and accidentally and/or through misfortune shot Ginger Wright, then it is your sworn duty to find Keith Dewayne Cohen and Martin Washington not guilty.

¶ 3. Cohen contends that this instruction which he had submitted is based upon Dykes v. State, 232 Miss. 379, 99 So.2d 602 (Miss.1957). In that case, the defendant had already been acquitted of the murder of his father-in-law against whom he was allegedly defending himself, and was then tried for the murder of his wife whom he claimed stepped into the line of fire and was accidentally killed.

¶ 4. The Court of Appeals majority found that the failure of the trial court to grant this requested instruction "though it may not be perfectly drawn" was reversible error inasmuch as the jury was not otherwise instructed on accidental injury, and the matter was remanded for new trial. We hold that Court of Appeals dissent was correct in its analysis and finding that the jury was adequately instructed by the other instructions granted by the trial court.

DISCUSSION

¶ 5. Before addressing the merits of the case at hand, the Court will, on its own initiative, address first impression the State's right to file the Petition for Writ of Certiorari. M.R.A.P. 17 is virtually silent on the issue, and therefore the analysis must begin at Miss.Code Ann. (1972) § 99-35-103 which defines the limits of the State's right to appeal. That section provides that

The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:

(a) From a judgment sustaining a demurrer to, or a motion to quash an indictment, or an affidavit charging crime; but such appeals shall not bar or preclude another prosecution of the defendant for the same offense.

(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented.

(c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally presented by the state. All questions of law thus presented shall be decided by the Supreme Court.¹

Id. Furthermore, Miss.Code Ann. (1972) § 9-4-3(1) and (2) provides;

(1) The Court of Appeals shall have the power to determine or otherwise dispose of any appeal or other proceeding assigned to it by the Supreme Court.

The jurisdiction of the Court of Appeals is limited to those matters which have been assigned to it by the Supreme Court.

The Supreme Court shall prescribe rules for the assignment of matters to the Court of Appeals. These rules may provide for the selective assignment of individual cases and may provide for the assignment of cases according to subject matter or other general criteria. However, the Supreme Court shall retain appeals in cases imposing the death penalty, or cases involving utility rates, annexations, bond issues, election contests, or a statute held unconstitutional by the lower court.

(2) Decisions of the Court of Appeals are final and are not subject to review by the Supreme Court, except by writ of certiorari. The Supreme Court may grant certiorari review only by the affirmative vote of four (4) of its members. At any time before final decision by the Court of Appeals, the Supreme Court may, by order, transfer to the Supreme Court any case pending before the Court of Appeals.

Id. [emphasis added].

¶ 6. In this case, the Appellant, Cohen, brought the direct appeal, and his conviction was reversed and remanded. He does not stand acquitted, and more importantly, we find no rule statute, or constitutional provision which would limit the State's right to seek certiorari review of a Court of Appeals decision. M.R.A.P. 17(a) provides that:

A decision of the Court of Appeals is a final decision which is not reviewable by the Supreme Court except on writ of certiorari. Review on writ of certiorari is not a matter of right, but a matter of judicial discretion. The Supreme Court may grant a petition for writ of certiorari on the affirmative vote of four of its members and may, by granting such writ, review any decision of the Court of Appeals. Successive review of a decision of the Court of Appeals by the Supreme Court will ordinarily be granted only for the purpose of resolving substantial questions of law of general significance. [emphasis added].

¶ 7. Furthermore, this review is not available until a M.R.A.P. 40 motion for rehearing has been denied by the Court of Appeals. This Court has never placed any limitation on the State on the filing of these motions either before the Court of Appeals or before this Court. See Shaw v. State, 702 So.2d 386 (Miss.1997) and Ward v. State, 480 So.2d 524 (Miss.1985). Under our rules then, the function of certiorari review is akin to and serves essentially the same purpose as a motion for rehearing where a party believes that the Court of Appeals has made an error in law and/or the application thereof.²

¶ 8. The Florida Supreme Court at some point found itself asking the same question now under consideration by members of this Court, and that is, what, if any, limitation is there on the state regarding the filing of Petitions for Writ of Certiorari. In finding that the state had no special limitations upon it, the Florida court said:

The first question to be answered is whether the state has the right to seek certiorari from a decision of a district court in which that court in a criminal case rules adversely to the state and favorably to an accused. This question was raised by this Court. We requested the parties to file supplemental briefs on the question and they have done so.

There can be no doubt that this Court has the authority to entertain a petition for certiorari filed by the state in a criminal proceeding if the requisite conflict of decisions exists. Article V, Section 4(2), Florida Constitution, F.S.A., empowers this Court to review by certiorari `any decision' of a district court of appeal which is in conflict with a prior decision of this Court or of another district court of appeals. There is nothing in the constitution which limits the authority of this Court to entertain such petitions by the state in criminal proceedings, nor is the right of the state to file such a petition in a criminal proceeding limited by this or any other provision of the constitution.

Therefore any limitation on the right of the state to apply to this Court for a petition for certiorari directed to a decision of a district court in a criminal proceeding must arise not out of any lack of authority in this Court to entertain such nor out of any constitutional restriction on the state, but rather out of some statutory limitation imposed on the state by the legislature.

We find no such limitation or restriction in the statutes of this state.

The defendant contends, first, that the constitutional provision authorizing this Court to review conflicting decisions of the district courts by certiorari is not self-enacting and must be effectuated by an implementing statute. This position is not tenable. See Gray v. Bryant, Fla.1960, 125 So.2d 846, 851, and State ex rel. Attorney General v. Gleason, 1868, 12 Fla. 190, 209.

The defendant further contends that Sec. 924.07, F.S.A., which limits the right of the state to appeal from decisions adverse to it in criminal proceedings, also limits the right of the state to take certiorari.

Unfortunately for the defendant the plain words of Sec. 924.07, F.S.A., do not support his contention. The statute deals only with direct appeals in criminal proceedings and clearly does not and was not intended to proscribe the authority of the state to seek either common law certiorari now exercised by the district courts or constitutional certiorari of the variety now exercised by this Court.

While the legislature cannot limit the constitutionally conferred authority of this Court to entertain petitions for certiorari, we have no doubt that it can restrict the state in seeking review by certiorari of adverse

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