Higgins v. State

• Decision Date: 17 December 1998
• Docket Number: No. 96-KA-01325-SCT,96-KA-01325-SCT
• Citation: 725 So.2d 220
• Parties: Allen HIGGINS, a/k/a "Reamer," a/k/a "Jude" v. STATE of Mississippi.
• Court: Mississippi Supreme Court

725 So.2d 220

Allen HIGGINS, a/k/a "Reamer," a/k/a "Jude" v. STATE of Mississippi.

No. 96-KA-01325-SCT

Supreme Court of Mississippi.

December 17, 1998.

Richard Burdine, Columbus, for Appellant.

Office of the Attorney General By Jean Smith Vaughan, Jackson, for Appellee.

Before SULLIVAN, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.

SULLIVAN, Presiding Justice, for the Court:

I.

¶ 1. Allen Higgins was indicted in the Circuit Court of Oktibbeha County on a charge of murder in violation of Miss.Code Ann. § 97-3-19 (1972) on August 2, 1993. A jury found Higgins guilty of murder with malice aforethought on January 28, 1994. The Circuit Court of Oktibbeha County, Honorable John M. Montgomery presiding, sentenced Higgins to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections on January 29, 1994.

¶ 2. Thereafter, Higgins filed a motion for a new trial, which was denied on February 4, 1994. Higgins later filed a motion for out of time appeal, which was granted on November 7, 1996. Higgins assigns three errors on this appeal.

II.

¶ 3. The facts in this case arise out of an alleged attack on the victim and the fatal shooting of the victim inside the Rockhill Café in Oktibbeha County on January 29, 1993. Allen Higgins admits shooting the victim but denies beating him. Higgins claims he shot the victim in self defense.

¶ 4. At trial the State offered the testimony of nine witnesses, including one eyewitness to the shooting. The Defense offered the testimony of eight witnesses, including the defendant Higgins.

¶ 5. Betty Scales, manager of the Rockhill Café, testified she observed W.C. Boudery and Bruce Morris arguing during a pool game. She also testified someone hit Boudery in the head with a bottle, and he fell across a table. Scales further testified three or four men began beating Boudery and someone broke a gin bottle over Boudery's head. Scales also stated she heard three gun shots, the first softer than the later two. ¶ 6. David Williams claimed he witnessed both the beating and the shooting. He testified Boudery was hit in the head with a gin bottle and beaten by four or five men. Williams identified Higgins as the one who pointed a gun at Boudery and shot him. Williams recalled hearing several gunshots, the first a "light shot" followed by two "heavy shots." Williams stated he believed the light shot came from a small gun. Williams identified a gun found near the body of the victim (State's Exhibit 4) as a small thirty eight caliber pistol. Williams identified the gun he saw Higgins use (State's Exhibit 3) as a forty five caliber pistol.

¶ 7. Ruth Ann Scales, the mother of one of Boudery's children, testified Boudery told her he felt he needed to take his gun with him that night. Scales identified Higgins as the man she had seen near the Rockhill Café with a black gun and bullets prior to the shooting. Scales testified that after the shooting she asked Higgins why he shot Boudery and Higgins replied he would shoot her too if she did not shut her mouth.

¶ 8. Deputy Gordon Sharp testified that when he arrived on the scene Higgins approached him and admitted "I shot him." Sharp further testified that Higgins turned over the gun he had used; the officer identified the gun (State's Exhibit 3) as the same gun Higgins gave him in the Rockhill Café parking lot that night.

¶ 9. Officer James Lindsey testified as to the injuries he observed on Boudery's body. Lindsey stated it appeared a bullet entered under the victim's armpit, traveled into the chest area and exited through the center of the back. Lindsey also observed a small cut on the upper part of the victim's left eye and a more serious laceration on the victim's temple.

¶ 10. In addition, Lindsey testified concerning the evidence of gunfire at the café. He explained that two forty five caliber projectiles were retrieved, one from the wall and one from the couch; and that two forty five casings were recovered, one from the middle of the pool table and one lying on the floor near the pool table. Lindsey further testified that a small bullet hole was found in the ceiling which appeared to have been caused by a small caliber gun. The officer also stated he found a broken gin bottle against a wall.

¶ 11. Medical Examiner Orville Musgrove confirmed that Boudery died as a result of a gunshot wound under his right arm and that the bullet exited the body underneath the left shoulder blade.

¶ 12. After the State rested, Higgins moved for a directed verdict on the grounds that (1) there was no evidence of malice aforethought concerning the charge of murder, and (2) the testimony of the State's chief witness Williams conflicted with the factual evidence presented. The court denied Higgins' motion for a directed verdict, stating malice could be presumed in the use of a deadly weapon. The court also stated that since Williams had testified he saw Higgins shoot Boudery, the State had made a prima facie case.

¶ 13. Higgins testified on his own behalf. He claimed he was talking to Willie Johnson when Boudery walked up behind him. Higgins testified that when he turned around to speak, Boudery had a gun pointed in his face and said, "You little mother fucker." Higgins testified he ducked down, pulled his gun and fired without taking time to aim. Higgins insisted Boudery shot first and he shot Boudery in self defense. Higgins claimed he did not see anyone beating Boudery prior to the shooting.

III.

WHETHER THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE INSTRUCTIONS REQUESTED BY THE DEFENDANT?

¶ 14. In his first assignment of error, Higgins claims the trial judge committed reversible error when he denied proposed jury instructions D-2, D-3, D-4, D-8, D-9 and D-12, all of which advanced the defendant's theory of self defense. The trial court reasoned it denied these instructions because they were either repetitious or constituted a rehashing of previously granted instructions. ¶ 15. The trial court enjoys considerable discretion regarding the form and substance of jury instructions. Splain v. Hines, 609 So.2d 1234, 1239 (Miss.1992).

¶ 16. This state's law on jury instructions has been summarized as follows:

Jury instructions are to be read together and taken as a whole with no one instruction taken out of context. A defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is fairly covered elsewhere in the instructions, or is without foundation in the evidence.

Jackson v. State, 645 So.2d 921, 924 (Miss. 1994) (emphasis added) (citations omitted). We have also held a court's jury instructions "(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) (citations omitted).

¶ 17. In the case sub judice, the court granted four self defense instructions, S-4, D-1, D-7, and D-11. Instruction S-4 is the verbatim self defense instruction recommended to prosecutors by this Court in Robinson v. State, 434 So.2d 206, 207 (Miss.1983) (criticizing a state instruction and suggesting alternate language for the state), overruled by Flowers v. State, 473 So.2d 164, 165 (Miss. 1985)

(condemning the instruction previously criticized in Robinson and overruling all cases that approved it). The Robinson sets out the theory of self defense as follows:

The court instructs the jury that to make a killing justifiable on the grounds of self-defense, the danger to the defendant must be either actual, present and urgent, or the defendant must have reasonable grounds to apprehend a design on the part of the victim to kill him or to do him some great bodily harm, and in addition to this he must have reasonable grounds to apprehend that there is imminent danger of such design being accomplished. It is for the jury to determine the reasonableness of the ground upon which the defendant acts.

Robinson, 434 So.2d at 207.

¶ 18. The trial court also granted three additional self defense instructions requested by the defense. Instruction D-1 provided:

The court instructs the jury that the defendant having raised the claim of self-defense, the burden is on the State to prove beyond a reasonable doubt that the Defendant did not act in the necessary self-defense, and unless the State meets this burden and proves to you beyond a reasonable doubt that Allen Higgins was not acting in necessary self-defense, then it is your sworn duty to find the Defendant not guilty.

Instruction D-7 read:

The Court instructs the jury that in this State, no one is required to flee in the face of threatened assault, but may stand his ground, and in a proper case may anticipate an attack and, if reasonably necessary, slay his adversary to save his own life.

Instruction D-11 provided:

The Defendant, Allen Higgins, asserts that the killing of W.C. Boudery was a justifiable homicide because Defendant's act which caused the death of W.C. Boudery was committed in the lawful defense of one's own person or the defense of another human being where there is reasonable ground to apprehend a great personal injury and there is eminent danger of such design being accomplished.

The killing of a human being is justified if the Defendant was acting in self defense because he had reasonable grounds to fear that he would be shot and killed or another human being would be shot and killed and that there was imminent danger of the injury occurring.

If you find that this homicide is justifiable then it is your sworn duty to find the Defendant not guilty.

¶ 19. In the instant case, the trial judge determined instructions D-2, D-3, D-4, D-8 and D-9 were repetitious with instruction S-4. The trial judge also determined D-12 was repetitious with S-4 and D-11. "[W]here one jury instruction adequately covers the defendant's theory of self-defense, there is no...