Lancaster v. State, 54597

• Decision Date: 29 May 1985
• Docket Number: No. 54597,54597
• Citation: 472 So.2d 363
• Parties: Jimmy L. LANCASTER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 363

472 So.2d 363

Jimmy L. LANCASTER v. STATE of Mississippi.

No. 54597.

Supreme Court of Mississippi.

May 29, 1985.

Rehearing Denied July 24, 1985.

J. Joshua Stevens, Jr., H. Lee Morrison, Jr., Tubb, Stevens & Morrison, West Point, for appellant.

Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PATTERSON, C.J., and SULLIVAN and ANDERSON, JJ.

ANDERSON, Justice, for the Court:

Jimmy L. Lancaster was indicted, tried and convicted in the Circuit Court of Chickasaw County for the crime of capital murder of one, Robert Kirby. The indictment charges that the appellant killed Kirby while he was acting in his official capacity and in the performance of his official duties as deputy sheriff of Chickasaw County on December 1, 1981. In a bi-furcated trial, the jury found the appellant guilty of capital murder and after further evidence and arguments, the jury returned a sentence of life imprisonment, which was imposed by the trial court. Lancaster appeals from the sentence and judgment of the lower court and assigns the following as error:

I. THAT THE COURT ERRED IN PEREMPTORILY INSTRUCTING THE JURY THAT SELF-DEFENSE COULD NOT BE INTERPOSED IN THIS CASE.

II. THAT MANSLAUGHTER IS THE MOST SERIOUS OFFENSE FOR WHICH THIS DEFENDANT COULD POSSIBLY BE FOUND GUILTY.

III. THAT THE COURT ERRED IN REFUSING TO PROPERLY INSTRUCT THE JURY ON THE ELEMENTS OF CAPITAL MURDER.

IV. THE COURT ERRED IN ALLOWING THE PROSECUTION TO INTRODUCE EVIDENCE OF ANOTHER CRIME.

V. THAT THE TRIAL COURT FAILED TO TAKE STEPS TO PROTECT THE DEFENDANT FROM ATTEMPTS BY LAW ENFORCEMENT OFFICERS TO PRESSURE THE JURY.

The tragic facts of this case are that on November 29, 1981, Lancaster had an argument with his wife, which resulted in her filing simple assault charges against him in the Justice of the Peace Court. The justice court judge in due course issued a warrant for Lancaster's arrest.

On the morning of December 1, 1981, at about 8:30 a.m., Deputy Kirby went to appellant's house to serve the arrest warrant. Kirby was driving an official patrol car and was dressed in his deputy sheriff's uniform. He left the patrol car running and went to the house.

Lancaster, the only witness, testified that Kirby knocked on the door and rang the door bell. He went and blew the horn of the patrol car and then went back and rang the door bell again. Lancaster heard Deputy Kirby call out his name twice. He awakened, dressed and went to the door.

He testified that when he opened his front door, he saw Deputy Kirby. Appellant stated, "Do you have a problem?" At this point, Lancaster contends that Deputy Kirby saw a gun rack holding deer rifles inside the house, panicked and drew his .357 magnum revolver and fired once through the storm door. The fact that the deputy fired his gun once in this manner is confirmed by the physical evidence. The hollow point bullet fragmented when it hit the storm door and some of it lodged in appellant's left chest, the remainder lodging in the ceiling. Lancaster's wounds were superficial and not serious. It is uncontroverted that the Deputy fired from a crouched position with the gun at his hip. According to Lancaster, after Deputy Kirby fired his revolver, he then fled with Lancaster giving chase with a 30.06 deer rifle. As Deputy Kirby was fleeing toward a fence, the appellant fired at him five times with the automatic rifle. Lancaster claims that he did not think he hit Deputy Kirby, but the ballistics evidence shows that he did hit Kirby several times. At this point, Deputy Kirby still had his pistol in his hand.

Lancaster then reloaded his 30.06, but decided to go into this house to get his 7 mm. magnum that had a scope on it. He returned to his carport with the 7 mm. rifle with the scope. He braced himself against a refrigerator, some 80 feet from Kirby, and emptied that gun, striking the deputy

at least twice, and once in the head, which was the fatal shot. The autopsy of the deceased showed five entry wounds; one entering the outside of the right thigh, two entering the chest in a downward direction, one entering the back around the region of the kidney and the fatal blow that removed a large portion of the deputy's head.

POINT I.

THAT THE COURT ERRED IN PEREMPTORILY INSTRUCTING THE JURY THAT SELF-DEFENSE COULD NOT BE INTERPOSED IN THIS CASE.

The trial court, outside the presence of the jury, made the following statement:

"Now, taking the defendant's own testimony as he testified from the stand, had he killed Kirby when the thing started at the door, there would be no question about self-defense, absolutely, no question."

"In this case, I think the continuation of the affray, even admitting that the deputy started it, I think the deputy breaking and running twice and going and trying to hide, he only fired his gun one time from the physical facts as shown, the physical evidence that was found there, I am going to rule that he is not entitled to claim self-defense."

The trial court then affirmatively instructed the jury that they could not consider self-defense. ¹ In rejecting the self defense instruction, the trial court relied on our recent announcements in Parker v. State, 401 So.2d 1282 (Miss.1981). In that case a running argument took place between the appellant, his brother and one Tisdale. Tisdale has threatened appellant and his brother with a gun. Shortly thereafter, both Tisdale and Parker went to the police station to make affidavits on each other. Then, they encountered each other across the street from the courthouse and another argument developed. Tisdale fired twice at Parker's brother, striking him once in the leg; the brother shot back, wounding Tisdale, who ran into the courthouse. The brother was armed with a pistol and gave Parker his car keys to get a rifle out of the car. Parker then fired the rifle twice through the courthouse window apparently at Tisdale. This Court, while recognizing that with few exceptions the right of self-defense should not be excluded where the evidence indicates a violent situation and harm to the parties, on the facts of that case, we were of the opinion that the lower court correctly instructed against self-defense, and affirmed Parker's conviction of unlawfully shooting into an occupied building. [401 So.2d 1282, 1286 (Miss.1981) ].

Similarly, we feel that this is not a situation where self-defense was an issue and further there was no evidence of self-defense on which to base such an instruction. Considering the facts most favorable to the appellant and accepting his version of what transpired, Deputy Kirby, the initial aggressor fled after he fired the first shot. The appellant then became the aggressor seeking Deputy Kirby out. When he found him, he emptied one gun on Deputy Kirby, striking him at least three times, once in the back. After emptying one rifle and reloading it, the appellant then turned his back, went into the house, got a more powerful rifle with a scope, and loaded it, "to see the deputy better." The appellant returned now as the aggressor and, using the corner of his house and a refrigerator as obstructions between him and the deputy, fired three additional shots. He freely admits at this time he intended to kill Deputy Kirby. Under these facts, a reasonable jury would not disagree that Lancaster had no reason to believe himself to be in any imminent danger of bodily harm or death.

Accordingly, we agree with the trial judge that there was no evidence of self-defense on which to base such an instruction. To grant an instruction that is not supported by the evidence would be error. This Court stated in Pittman v This instruction embodies a correct principle of law, but was improper, and not applicable to this case, for the reason that we find no evidence in this record to [support it]....

                State, 297 So.2d 888, 893 (Miss.1974), "Instructions should be given only if they are applicable to the facts developed in the case being tried."   In McBroom v. State, 64 So.2d 144 (Miss.1953), we said
                

"... An instruction not based on the evidence is erroneous in that it introduces before the jury facts not presented thereby, and is well calculated to induce them to suppose that such state of facts in the opinion of the court is possible under the evidence and may be considered by them." 53 Am.Jur., Trial, Sec. 579, P. 455.

We held, in the recent case of Craft v. State, 214 Miss. 752, 59 So.2d 343, that the granting of a similar instruction was erroneous and reversible error where it was not based upon any evidence.

We are aware of our previous holdings that it is improper to refuse a self-defense instruction, save in a few, very rare, cases, but as in Parker, supra, this is one of those occasions. This assignment of error is denied.

POINT II

THAT MANSLAUGHTER IS THE MOST SERIOUS OFFENSE FOR WHICH THIS DEFENDANT COULD POSSIBLY BE FOUND GUILTY.

Appellant's second assignment of error is unusual to say the least. Appellant's contention is that manslaughter is the most serious offense for which the appellant could be found guilty, yet the appellant admits that he did not request a manslaughter instruction, since he felt it would encourage the jury to find him guilty on this compromised charge. Appellant states in his brief: "To be sure, neither the defense counsel nor the prosecuting attorneys requested a manslaughter instruction, even though the trial court indicated he would grant one. Among most experienced criminal attorneys, there is a feeling that giving a manslaughter instruction in a murder case, only encourages a jury to compromise a tough case and return a verdict of manslaughter." (Appellant's br. 32-33). If appellant felt the only thing he was guilty of was manslaughter, obviously he had the responsibility to request such an instruction. The appellant further suggests in his brief: "We believe the state should have requested a manslaughter instruction if they wanted a conviction...