Hye v. State, No. 2010–CT–01780–SCT.

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PIERCE, Justice, for the Court
• Citation: 162 So.3d 750
• Parties: Terry HYE, Jr. v. STATE of Mississippi.
• Decision Date: 05 February 2015
• Docket Number: No. 2010–CT–01780–SCT.

162 So.3d 750

Terry HYE, Jr.
v.
STATE of Mississippi.

No. 2010–CT–01780–SCT.

Supreme Court of Mississippi.

Feb. 5, 2015.
Rehearing Denied May 14, 2015.

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Graham Patrick Carner, attorney for appellant.

Office of the Attorney General by Lisa L. Blount, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

PIERCE, Justice, for the Court:

¶ 1. Following his capital-murder conviction in Jackson County, Terry Hye Jr. received a life sentence without the possibility of parole. The Court of Appeals affirmed Hye's conviction but vacated and remanded his sentence as unconstitutional, pursuant to the intervening decision of the United States Supreme Court in Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding that mandatory life sentences without possibility of parole for individuals under the age of eighteen years at the time of their crimes violate the Eighth Amendment prohibition against cruel and unusual punishment). Hye was sixteen years old at the time of the crime. Hye v. State, 2013 WL 2303518, at *5, 162 So.3d 818, 824–25 (Miss.Ct.App. May 28, 2013). Aggrieved by the Court of Appeals' affirmance of his conviction, Hye filed a petition for writ of certiorari in this Court, arguing that the trial court violated his right to a fair trial by denying him an accessory-after-the-fact instruction and an accomplice instruction. Hye also claimed that the trial court failed to properly instruct the jury on the underlying felony of armed robbery, which resulted in a constructive amendment of the indictment. We granted Hye's petition, and, pursuant to Mississippi Rule of Appellate Procedure 17(h), address only the question of whether the trial court erred by denying Hye an accessory-after-the-fact instruction.

¶ 2. We agree with the Court of Appeals that the trial court properly denied Hye's request for an accessory-after-fact instruction because there was no evidentiary basis for it. We also find, after much consideration on the matter, that a criminal defendant no longer has the unilateral right under Mississippi law to insist upon an instruction for lesser-related offenses which are not necessarily included in the charged offense(s), i.e., so-called lesser-nonincluded-offense instructions. And we overrule Griffin v. State, 533 So.2d 444 (Miss.1988), and its progeny, to the extent they hold otherwise.

FACTS¹

On October 23, 2008, Michael and Linda Porter stopped at a Conoco gas station in Moss Point, Mississippi, to ask

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for directions. Linda testified that Michael got out of the car and began to walk toward the service station. Linda noticed three young black males standing near the car. One of these men had a white towel draped over his head. As Michael returned to the car, two of the men attacked him. Michael was able to get into the car, shut the door, and put the car in gear. Linda testified she saw the man with the white towel on his head walk toward the car, pull out a gun, and shoot Michael through the car window. Linda stated the car sped forward down the road. Linda tried to manage the car, eventually running the car into a ditch. Linda then sought help for Michael, who died from his injuries. Linda was unable to identify these three men.

The shooter was later identified as Darwin Wells, who was fifteen years old at the time of the murder. Wells was convicted of deliberate-design murder and sentenced to life imprisonment. Wells's conviction was affirmed by this Court in Wells v. State, 73 So.3d 1203, 1204 (¶ 1) (Miss.Ct.App.2011). Three other men were questioned about Michael's murder: Hye, Tevin Benjamin, and Alonzo Kelly. At the time of the murder, Hye was sixteen years old, Benjamin was fourteen years old, and Kelly was seventeen years old.

Kelly testified for the State at Hye's trial. Kelly was initially charged with capital murder but ultimately pleaded guilty to accessory after the fact and served eleven months in jail. According to Kelly, earlier that day he, Hye, and Benjamin met Wells at a store, the Little Super. Benjamin and Wells stated they needed money, and Wells said he would “hit a lick.” Kelly stated this meant getting money by any means, legally or illegally. The group left the Little Super and walked to Kelly's house. On the way, Wells got into a fight with another person on the street. The police responded, and all four men were searched. No weapons or drugs were found on the men. After this, Wells left the group for the afternoon.

The group met again a few hours later at the Little Super. Wells stated again that he needed to “hit a lick.” Hye indicated he needed to find someone to buy him cigarettes, so the group walked to the Conoco. On the way Wells showed his gun to Kelly. Kelly's testimony indicates the whole group, including Hye, knew Wells was carrying a gun. Once the group neared the Conoco, Kelly decided to leave and turned around at a stop sign one block away from the Conoco. Kelly was concerned that “every time we go down there or something, we always get locked up for something.” As he was turning away, Kelly said he heard a gunshot and saw Wells, Benjamin, and Hye run past him. However, at one point, Kelly testified Hye and Benjamin were still standing in the road when Wells approached the Porters' car.

Hye testified in his own defense and denied any involvement with Michael's death. Hye stated he thought Wells wanted to sell drugs when he said “hit a lick.” Hye said he found someone to buy him cigarettes at the Conoco, but he never set foot on the property. According to Hye, after the Porters drove up, Wells ran from the side of the store but slipped and fell. Only then did Hye notice Wells had a gun. Hye said he and Kelly were walking away when he heard a gunshot.

Benjamin and Wells were called to the stand but refused to testify, each invoking his right against self-incrimination. Zachary Kelly, Alonso [sic] Kelly's cousin, was called to testify as to a conversation

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he had with Kelly. Zachary also invoked his right against self-incrimination.

Hye, 2013 WL 2303518, at **2–4, 162 So.3d at 821–24.

¶ 3. This Court granted Hye's Petition for Writ of Certiorari by order entered on January 9, 2014. On June 12, 2014, this Court ordered supplemental briefing regarding “[w]hether Griffin v. State, 533 So.2d 444 (Miss.1988), and its progeny, authorizing ‘lesser non-included’ offense instructions[,] should be overruled.”

¶ 4. Having reviewed the supplemental briefing regarding the question outlined in the June 12, 2014, order from this Court, we find that Mississippi's practice of instructing the jury on lesser nonincluded crimes is “fundamentally unsound.” We, therefore, overrule Griffin and its progeny. Additional facts, as necessary, will be related in our discussion.

DISCUSSION

¶ 5. As mentioned, we agree with the Court of Appeals that the trial court properly denied Hye's request for an accessory-after-the-fact instruction. The trial court may refuse a proffered jury instruction if the instruction is without a foundation in the evidence. Murphy v. State, 566 So.2d 1201, 1206 (Miss.1990) (citing U.S. v. Robinson, 700 F.2d 205, 211 (5th Cir.1983) ). As illustrated by the record, Hye's theory of the case was that he did nothing wrong the evening of October 23, 2008, other than illegally purchase cigarettes at the Conoco gas station, and not report the shooting to the police. No evidence was presented to Hye's jury that would have allowed it to consider whether Hye was guilty as an accessory after the fact, as prescribed by Mississippi Code Section 97–1–5(1) (Rev.2014).²

¶ 6. Hye's requested instruction in this instance is known as a lesser-nonincluded-offense instruction—typically referred to as such because it instructs the jury on an offense whose essential elements are not included (or a subset) of the offense(s) charged in the indictment. This type instruction lies in contrast with what is known as a lesser-included-offense instruction—referred to as such because all of its essential elements are also essential elements of the greater offense charged.

¶ 7. Like most jurisdictions, Mississippi has long recognized that an offense alleged in the indictment (or accusatory pleading) may necessarily include one or more lesser offenses. Under Mississippi Code Section 99–19–5, the jury may convict the defendant of an “inferior offense, or other offense, the commission of which is necessarily included in the offense with which he is charged in the indictment ....”³ This

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Court repeatedly has interpreted Section 99–19–5 (and its predecessors) to “apply only to an inferior offense ‘necessarily included within the more serious offense.’ ” See Hailey v. State, 537 So.2d 411, 414 (Miss.1988) citing Sanders v. State, 479 So.2d 1097, 1105 (Miss.1985) ; Gillum v. State, 468 So.2d 856, 861 (Miss.1985) ; Cannaday v. State, 455 So.2d 713, 725 (Miss.1984) ; Biles v. State, 338 So.2d 1004 (Miss.1976) ; Gray v. State, ...