Hogan v. State, 2002-KA-00521-COA.
| Decision Date | 16 September 2003 |
| Docket Number | No. 2002-KA-00521-COA.,2002-KA-00521-COA. |
| Citation | 854 So.2d 497 |
| Parties | Timothy HOGAN, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
David Lydell Tisdell, Tunica, attorney for appellant.
Office of the Attorney General by John R. Henry, attorney for appellee.
Before McMILLIN, C.J., THOMAS and CHANDLER, JJ.
McMILLIN, C.J., for the court.
¶ 1. Timothy Hogan has appealed his conviction on three felony counts by a jury in the Circuit Court of Coahoma County. The three counts arose out of a single incident involving Hogan's alleged improper appropriation of a motor vehicle and his ensuing efforts to injure two police officers trying to arrest him. Those efforts allegedly involved driving toward the officers with the vehicle and striking them or the vehicles the officers were in. Hogan raises four issues in his appeal. We determine that the issues are without merit and affirm the verdict and resulting judgment of sentence entered in the circuit court.
I.
Facts
¶ 2. In August 2001, police officers were attempting to arrest Hogan on an outstanding arrest warrant. Acting on a tip, Officer Otha Hunter went to an apartment complex and spotted Hogan. Hogan attempted to flee. In the course of his flight, Hogan ran to the parking lot of a nearby restaurant and jumped into a customer's parked car that had been left with the engine running. After initially appearing to comply with law enforcement officers' demands to exit the vehicle, Hogan suddenly drove the car towards an approaching officer. The car came in contact with the officer and he was dragged for some distance before he could free himself. The officer then fired a shot to deflate a tire on the vehicle to stop Hogan's escape. Hogan responded by driving the car toward the officer and striking him a second time.
¶ 3. Hogan then drove the vehicle into another police cruiser that had appeared on the scene. The impact of that collision was of sufficient force to throw the officer driving the cruiser out of the vehicle and into some nearby bushes.
¶ 4. By that time, other officers had arrived and there was a significant amount of gunfire as they attempted to disable the automobile Hogan was driving. The efforts to stop Hogan's flight were unsuccessful, however, and Hogan drove away from the scene. Shortly thereafter, he stopped the car—by then significantly damaged by gunfire—and fled on foot. He was apprehended before he managed to elude the pursuing officers.
¶ 5. Hogan was indicted for one count of taking away a motor vehicle and for four counts of aggravated assault; one count as to each of the four police officers who were on the scene in the restaurant parking lot. He was tried on all five counts. The jury convicted him on the motor vehicle count and for aggravated assault on two of the officers.
¶ 6. In this appeal from those convictions, the first three of Hogan's four issues deal with the trial court's decision to grant one particular instruction requested by the prosecution. Hogan's issues consist of several alternate arguments for the contention that it was error to give the instruction. We treat them under the general assertion that it was error to give the instruction, dealing with the alternate reasons advanced by Hogan as sub-issues to be addressed in the order presented by him in his brief. The fourth issue as defined by Hogan actually presents two distinct, though related, contentions. One is that the evidence was insufficient as a matter of law to support a conviction. The other is that the guilty verdicts are against the weight of the evidence to the extent that it would work a manifest injustice to permit them to stand.
II.
The Jury Instruction
¶ 7. Hogan contends that the trial court committed reversible error when it granted instruction C-31, which stated as follows:
It is presumed that a person intends the necessary or natural and probable consequences of his act.
¶ 8. His three contentions regarding this instruction are (a) that case law has established that it is reversible error to give such an instruction in the situation where specific intent is an element of the crime; (b) that the instruction is an incomplete statement of the law; and (c) that granting the instruction effectively denied the defendant his right to assert the defense that he acted under duress.
¶ 9. When the trial court took up proposed jury instructions, the matter of the propriety of this requested instruction was resolved in the following discussion:
BY [defense counsel]: Not from the Defense, Your Honor.
¶ 10. "It is the rule of this Court that no assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection." Walker v. State, 740 So.2d 873, 887 (¶56) (Miss.1999). We find that this alleged error in the manner that the jury was instructed was not properly preserved for appellate review and is, therefore, procedurally barred.
¶ 11. Even with the procedural bar in place, there remains the possibility that the granting of the instruction was an error so impacting the fundamental fairness of the trial that we ought to note it as plain error. See, e.g., Berry v. State, 728 So.2d 568, 571
(¶15) (Miss.1999); Hunter v. State, 684 So.2d 625, 636 (Miss.1996). We do not conclude the granting of Instruction C-31 to be that sort of error. The recognized problem with the instruction is that it is an abstract statement of the law that provides little, if any, concrete assistance to jurors. Hydrick v. State, 246 Miss. 448, 451, 150 So.2d 423, 424 (1963). However, it is only in cases where specific intent is an element of the crime that the instruction has been deemed reversible error. Thus, for example, in the hypothetical situation of a murder case where the victim is killed by a blow to the head from a blunt instrument, it would constitute reversible error to instruct the jury that the defendant's specific intent to cause the victim's death—a necessary element of murder— can be supplied by nothing more than the presumption that the defendant knew, or at least the law charges him with knowledge, that such a blow was likely to cause death. The instruction is apparently found objectionable in those circumstances because it raises the possibility that the jury will not fully deliberate the distinct issue of specific intent, but rather will rely on the instruction to assume the necessary intent from the circumstances of the event alone, even in instances where the actual intent may not, in fact, exist.
¶ 12. However, in cases that do not involve specific intent, the mere fact that the instruction is objectionable as being purely abstract and, thus, unhelpful to the jury is not considered to necessarily constitute reversible error. Stegall v. State, 765 So.2d 606, 609-10 (¶ ¶7-8) (Miss.Ct. App.2000). Aggravated assault has been determined by the Mississippi Supreme Court not to be a crime of specific intent. McGowan v. State, 541 So.2d 1027, 1029 (Miss.1989). Thus, while it appears beyond dispute that the instruction was objectionable as being an unhelpful abstract statement of the law, in this situation it does not have the sort of adverse impact on the fundamental fairness of Hogan's trial that would require us to note it as plain error.
¶ 13. Hogan argues in the alternative that this abstract statement was erroneous as being an incomplete statement of the law. Hogan relies on the case of Hydrick v....
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...(Miss. 1984). In our appellate review of jury verdicts, we must remember that the jury determines the credibility of witnesses. Hogan v. State, 854 So. 2d 497, 502 (¶17) (Miss. Ct. App. 2003) (quoting Jackson v. State, 614 So. 2d 965, 972 (Miss. 1993)). As previously noted, in reaching its ......
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Smith v. State, 2002-KA-01296-COA.
...acts as fact-finder and must determine the credibility of the witnesses, and the proper weight to be assigned to their testimony. Hogan v. State, 854 So.2d 497, 502(¶ 17) (Miss.Ct.App.2003) (quoting Jackson v. State, 614 So.2d 965, 972 ¶ 8. As stated by Mississippi law, on review we must lo......