Green v. State

• Decision Date: 20 January 1994
• Docket Number: No. 91-KA-0170,91-KA-0170
• Citation: 631 So.2d 167
• Parties: Luther Frank GREEN v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 167

631 So.2d 167

Luther Frank GREEN v. STATE of Mississippi.

No. 91-KA-0170.

Supreme Court of Mississippi.

Jan. 20, 1994.

Bobby T. Vance, Batesville, for appellant.

Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Ellen Y. Dale, Ridgeland, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and PITTMAN, JJ.

SULLIVAN, Justice, for the Court:

Luther Frank Green was indicted for the murder of Michael Wayne Camp, who was shot outside the City Finance Company in Water Valley, Mississippi, on June 25, 1990. The jury convicted Green of manslaughter and the trial judge sentenced Green to serve a term of twenty (20) years in the custody of the Mississippi Department of Corrections. Green was also ordered to make restitution to Camp's family for medical and funeral expenses, and to reimburse the county for his attorney fees and court costs. The trial judge also found Green had a vested right to workers' compensation proceeds and ordered a lien placed against them to secure payment of the restitution and attorney fees ordered.

Green's motion to proceed on appeal in forma pauperis was overruled, and the trial judge found Green was not an indigent. Green appeals to this Court and assigns the following as error:

1. The State of Mississippi did not prove all the elements of a prima facie case of murder beyond a reasonable doubt, therefore the trial court erred by not granting Green's motion for a directed verdict 2. The trial court denied Green's motion for a court-appointed expert (criminalist), therefore he could not properly present his theory of defense of accidental discharge;

3. The trial court erred in denying Green's motion for a court-appointed psychologist, therefore he could not properly present his theory of the defense related to his state of mind when he was assaulted by the victim;

4. The trial court erred in permitting the State to elicit testimony that Green did not flee when confronted by the victim;

5. The trial court erred in giving a lesser included offense instruction for manslaughter where the elements of manslaughter were not proven by the State;

6. The evidence was insufficient to support a verdict of guilty of manslaughter or in the alternative was against the overwhelming weight of credible evidence;

7. The court should have granted Green's Weathersby instruction because his version of the facts was not substantially contradicted in material particulars by a credible witness for the State;

8. The failure of the trial court to grant Green a directed verdict or a JNOV culminated at the sentencing hearing before the trial judge; and

9. The trial court erred in revoking Green's status as an indigent.

I.

THAT THE PROSECUTION DID NOT PROVE ALL THE ELEMENTS OF A

PRIMA FACIE CASE OF MURDER BEYOND A REASONABLE DOUBT AND,

THEREFORE GREEN SHOULD HAVE BEEN GRANTED A MOTION FOR A

DIRECTED VERDICT.

In order to preserve for appeal the issue of error in the trial judge's denial of motion for directed verdict made at the conclusion of the State's case, the motion must be renewed at the close of the defense case or a peremptory instruction must be requested. Roberts v. State, 582 So.2d 423, 424 n. 1 (Miss.1991). Green neither renewed his motion for directed verdict at the conclusion of his case nor requested a peremptory instruction. This issue is procedurally barred.

Under this same assignment Green contends that the prosecution failed to prove he acted with malice and deliberate design. The jury rejected the murder charge offered by the State and found Green guilty of manslaughter, which it may do pursuant to Miss.Code Ann. Sec. 99-19-5 (1972). The element of malice aforethought is irrelevant to the charge of manslaughter. Meshell v. State, 506 So.2d 989, 991 (Miss.1987). This assignment of error is without merit.

II.

THE TRIAL COURT DENIED GREEN'S MOTION FOR A COURT-APPOINTED

EXPERT (CRIMINALIST), THEREFORE HE COULD NOT

PROPERLY PRESENT HIS THEORY OF DEFENSE

OF ACCIDENTAL DISCHARGE.

Green challenges the denial by the trial judge of his motion for a court-appointed expert so that he could properly present his theory of defense of accidental discharge of the pistol.

At trial Green was an indigent. An indigent's right to defense expenses is "conditioned upon a showing that such expenses are needed to prepare and present an adequate defense." Ruffin v. State, 447 So.2d 113, 118 (Miss.1984). Concrete reasons for requiring an expert must be provided by the accused. Hansen v. State, 592 So.2d 114, 125 (Miss.1991).

In determining whether a defendant was denied a fair trial because of failure to appoint or allow funds for an expert, some of the factors to consider are whether and to what degree the defendant had access to the State's experts, whether the defendant had the opportunity to cross-examine those experts, and lack of prejudice or incompetence of the State's experts. Fisher v. City of Eupora, 587 So.2d 878, 883 (Miss.1991). We have also considered to what extent the State's case depends upon the State's expert Tubbs v. State, 402 So.2d 830, 836 (Miss.1981), and the risk of inaccuracy in resolving the issue for which the expert is requested. Johnson v. State, 529 So.2d 577, 592 (Miss.1988).

Green made a proffer of to what a criminalist, if appointed, would have testified. The State did not present any expert; therefore, whether and to what extent Green had access to the State's expert and opportunity to cross-examine him, whether the State's expert was prejudiced or incompetent, and the extent to which the State's case depended on its expert are not applicable. Moreover, Green elicited testimony from Preston Frayser that the Black Hawk pistol could fire without a deliberate effort to pull the trigger. Frayser provided this information both by reading from the instruction manual of the Ruger Black Hawk and by stating that he had personally experienced accidental discharges when using a Ruger Black Hawk. Green was able to present his defense of accidental discharge to the jury. No injustice resulted from the trial court's denial of the appointment of a criminalist and there is no merit to this assignment of error.

III.

THE TRIAL COURT ERRED IN DENYING GREEN'S MOTION FOR A

COURT-APPOINTED PSYCHOLOGIST, THEREFORE HE COULD NOT

PROPERLY PRESENT HIS THEORY OF THE DEFENSE RELATED TO HIS

STATE OF MIND WHEN HE WAS ASSAULTED BY THE VICTIM.

Green's motion for a court-appointed psychologist states, "[t]hat the services of a psychologist are necessary in this cause in order to adequately prepare for the presentation of psychological factors relating directly to the defense of the defendant" and such services are "necessary in order to properly and adequately prepare and present evidence in the trial of this case regarding the state of mind of defendant regarding his physical disability and other factors regarding the stressful conditions confronting the defendant at the time of the alleged murder." The motion further asserts, "a psychologist and competent evaluation by the same will, in this case, be able to establish that at the time of the offense the defendant was under the influence of extreme mental or emotional disturbance or extreme duress which would affect his state of mind and thought patterns at the time of the incident." As in his motion for a court-appointed criminalist, Green also asserts that denial of his motion for a psychologist "will deprive the defendant of effective assistance of counsel, right to equal protection of the law and the right to present evidence in his defense."

The specific purpose for which the psychologist was requested was to show Green's state of mind regarding his physical disability and to show that, at the time of the offense, Green was under extreme mental or emotional disturbance or extreme duress. Green failed to specify how denial of this requested expert would violate his constitutional rights. If Green had intended to use mental or emotional disturbance as a defense, a reasonable inference could be drawn that denial of a court-appointed psychologist would effect a deprivation of his right to present evidence in his defense. The record does not even hint at a defense of this nature, but highlights Green's constant contention that the gun fell out of his pocket, he picked it up to prevent Camp from getting it, and the gun accidentally discharged.

The State offered no expert testimony regarding Green's state of mind or possible mental or emotional disturbance. When Green took the stand himself, he did not testify as to his state of mind regarding his physical disability or that he had been under extreme duress at the time of the offense. Under these facts, a new trial is not warranted because the trial court denied Green the services of a court-appointed psychologist. Griffin v. State, 557 So.2d 542, 550 (Miss.1990). This assignment of error has no merit.

IV.

THE TRIAL COURT ERRED IN PERMITTING THE STATE TO ELICIT

TESTIMONY THAT GREEN DID NOT FLEE WHEN CONFRONTED

BY THE VICTIM.

Green testified that he had wanted to avoid Mike Camp on the day of the alleged murder because he was afraid of Camp. On cross-examination, the prosecution attempted to show that Green's actions on June 25, 1990, were inconsistent with this purported state of mind. Green objected and argued that there was "no duty to stay inside or retreat from Mr. Camp." The prosecutor explained that he was not raising the issue of whether Green had a legal right to retreat, but trying to compare Green's cross-examination responses to his testimony on direct examination. Green lodged a contemporaneous objection. The objection was overruled.

M.R.E. 611(b) allows wide-open cross-examination so long as the matter probed is relevant. M.R.E. 611(b), Comment. From the record it does not appear that the State was trying to raise the issue of Green's legal duty to retreat. It appears clearly that the State was simply trying to show inconsistencies between Green's...