Harris v. State

• Decision Date: 12 October 1988
• Docket Number: No. 56781,56781
• Citation: 532 So.2d 602
• Parties: George HARRIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 602

532 So.2d 602

George HARRIS v. STATE of Mississippi.

No. 56781.

Supreme Court of Mississippi.

Oct. 12, 1988.

Travis T. Vance, Jr., Eugene A. Perrier, Vicksburg, for appellant.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

George Harris was indicted, tried and convicted in the Circuit Court of Warren County on a charge of murder and sentenced to life imprisonment in custody of the Mississippi Department of Corrections. He has appealed to this Court and assigns two (2) errors in the trial below.

ROY NOBLE LEE, Chief Justice, for the Court:

I.

THE LOWER COURT ERRED IN DECLINING TO DISMISS THE CHARGE OF MURDER AGAINST APPELLANT.

Under this assignment of error, appellant contends that the court erred (1) in denying his request for a directed verdict of not guilty and a peremptory instruction of not guilty, (2) in refusing to reduce the charge to manslaughter, and (3) in refusing to grant his motion for a new trial on the ground that the verdict of the jury was contrary to the overwhelming weight of the evidence. Appellant addresses Assignment I in two pages of his brief and cites two cases in support thereof, i.e., Edwards v. State, 469 So.2d 68 (Miss.1985); and Cook v. State, 467 So.2d 203, 209 (Miss.1985).

The two cases cited by appellant correctly state the law. He quotes the following paragraph from Edwards:

If the facts and inferences so considered point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, granting the motion is required. May v. State, 460 So.2d 778, 781 (Miss.1984). On the other hand, if there is substantial evidence opposed to the motion--that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense--the motion should be denied.

469 So.2d at 70.

Also, appellant cites Cook v. State, 467 So.2d 203 (Miss.1985), which stated as follows:

Where a defendant has requested a peremptory instruction, the trial court must consider all of the evidence--not just the evidence which supports the State's case--in the light most favorable to the State. May v. State, 460 So.2d 778, 781 (Miss.1984). The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973).

467 So.2d at 208.

There are several versions as to what occurred prior to and at the time of the homicide. Neither the wisdom of Solomon nor the combined intellect of an appellate court could decide the issue of guilt. Only a jury from the county at large, after observing the demeanor of the witnesses, hearing the testimony, and considering all the evidence under proper instructions on the law from the trial judge, could resolve that issue. This is as it should be. An appellate court should not and cannot usurp the power of the fact-finder/jury where, as here, the evidence is so conflicting.

In Griffin v. State, 480 So.2d 1124 (Miss.1985), and in cases previous and subsequent to Griffin, this Court stated the standard as follows:

Hammond v. State, 465 So.2d 1031 (Miss.1985), stated the rule with reference to granting directed verdicts and peremptory instructions of not guilty in criminal and civil cases as follows:

The rule in regard to a peremptory instruction is the same in criminal and civil cases, the rule being that when all the evidence on behalf of the State is taken as true, together with all sound reasonable inferences that may be drawn therefrom if there is enough to support a verdict of conviction, the peremptory instruction must be denied. 465 So.2d at 1035.

480 So.2d at 1126.

In Smith v. State, 463 So.2d 1102 (Miss.1985), this Court stated:

We have often stated that where the testimony is in conflict, the jury is the sole judge of the weight and worth to be given that testimony. They may believe or disbelieve, accept or reject the utterance of any witness.

463 So.2d at 1103.

Eight (8) witnesses testified for the State, and six (6) witnesses testified for the defendant. Evidence favorable to the State reflects that on January 20, 1985, around 8:15 p.m., Johnny Jenkins, the deceased, his wife, Clara, and friends left the Jenkins house after watching the Super Bowl football game and went to Henrietta's Cafe, a/k/a The Washington Cafe, in Warren County; that George Harris, appellant, approached Johnny Jenkins about a Super Bowl bet to which Jenkins responded either with a denial that they had a bet, or with a claim that he had won the bet; that appellant pushed or hit Jenkins first; that a fight ensued and bystanders pulled the two men apart; that appellant pulled a knife and said, "I'll be back to get you" and ran out the door; that Jenkins, his wife and friends, decided to go to another cafe, i.e., Mr. K's, but it was closed, and they returned to Henrietta's Cafe and went inside; that later Jenkins and his friends went outside where appellant was encountered near the cafe steps; that appellant made the following threatening statements to Jenkins, "Johnny, I want your curl" or "I'm gonna mess your curl up if I don't get my $10.00," referring to Jenkins' hair; that Jenkins and friends left and were moving toward Jenkins' car parked beside the cafe when appellant said something to Jenkins as they were walking away; that Jenkins broke from the group, made a running jump through the air as if to kick appellant, that Jenkins did not have a gun or any weapon; that appellant shot three times with a .22-caliber pistol, two bullets hitting Jenkins in the chest and one in the abdomen, which resulted in Jenkins' death.

Some witnesses testified that appellant was walking behind Jenkins, taunting him; that appellant pointed the gun at Jenkins from the top of the cafe steps; that when appellant and Jenkins confronted each other outside, appellant said, "I'm gonna' get you;" that Jenkins ran toward appellant and "played like he was going to do a kick on him and hit him;" that appellant "just came out of his pocket and just aimed at Jenkins and started shootin';" and that appellant fired at least the first shot through his coat pocket.

In Gandy v. State, 373 So.2d 1042 (Miss.1979), the Court said:

No formula dictates the manner in which jurors resolve conflicting testimony into findings of fact sufficient to support their verdict. That resolution results from the jurors hearing and observing the witnesses as they testify, augmented by the composite reasoning of twelve individuals sworn to return a true verdict. A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict.

373 So.2d at 1045.

In Jones v. State, 381 So.2d 983 (Miss.1980), the Court commented on the jury's scope:

The jury has the duty to determine the impeachment value of inconsistencies or contradictions as well as testimonial defects or perception, memory and sincerity.

381 So.2d at 989.

The jury was thoroughly instructed on murder, self-defense, and manslaughter. Two strong instructions on manslaughter were granted at the request of the State, as well as a form of the verdict on manslaughter (S-2, S-5 and S-6). The court granted, at the request of the appellant, two strong instructions on self-defense (D-2 and D-4), a strong instruction on the State's burden of proof (D-8), and a strong instruction on manslaughter (D-10).

We are of the opinion that the facts of this case presented a guilt issue of murder to the jury through proper instructions, and that the jury verdict of guilty is supported by the evidence.

HAWKINS, Presiding Justice, for the Court:

II.

THE LOWER COURT ERRED IN DENYING APPELLANT THE RIGHT TO A FAIR AND IMPARTIAL TRIAL BY LIMITING APPELLANT'S VOIR DIRE OF POTENTIAL TRIAL JURORS.

Harris next assigns as error that the court improperly sustained objections to questions he asked prospective jurors.

The following questions were allowed without objection by the State:

Ladies and gentlemen of the jury, if his Honor Judge Clements, at the conclusion of the trial, gives you an instruction on self defense and defines what the law of self defense is, can I rely on each and every one of you to read that instruction and to apply that instruction to the testimony and to the evidence in reaching your decision? Can I depend on you to do that? Will each of you do that? If the law tells you that you must acquit, if that be the circumstances, can you acquit the defendant of the charge in the indictment? And the word, "acquit" means, can you find him not guilty? Can you do that?

* * *

Will any of you gentlemen or ladies ignore or put aside the defense of the defendant? And, we are asserting the defense of self defense, but will you consider that defense along with the other evidence and other testimony submitted by the state? Would you consider the defense? Will each of you do that?

(Vol. I, pp. 49-50)

The questions to which the court sustained the State's objections follow:

Now, ladies and gentlemen of the jury, if it is shown by the evidence, that the defendant was confronted with a situation that warranted the use of force in the protection of his well being, and that it was imminent that his life was in grave danger, and that he was justified in using the necessary force to repel his assailant, the deceased, can the defendant depend upon you to bring in a verdict of not guilty?

(Vol. I, p. 47)

Now, ladies and gentlemen of the jury, if it is shown by the evidence and by the testimony that the defendant had reasonable grounds to apprehend a design on the part of the deceased to do bodily harm, or to take the defendant's life, and the defendant tried in every way...