Reddix v. State

• Decision Date: 14 January 1999
• Docket Number: No. 96-KA-00991-SCT.,96-KA-00991-SCT.
• Citation: 731 So.2d 591
• Parties: Terry Lee REDDIX v. STATE of Mississippi.
• Court: Mississippi Supreme Court

731 So.2d 591

Terry Lee REDDIX v. STATE of Mississippi.

No. 96-KA-00991-SCT.

Supreme Court of Mississippi.

January 14, 1999.

Robert James Knochel, Ocean Springs, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Dale Harkey, District Attorney, Attorneys for Appellee. Before SULLIVAN, P.J., and MILLS and WALLER, JJ.

SULLIVAN, Presiding Justice, for the Court:

¶ 1. Terry Lee Reddix was indicted in the Circuit Court of Jackson County on a charge of committing an aggravated assault on Kevin Bickham in Jackson County on August 23, 1994. A jury found Reddix guilty of aggravated assault on July 23, 1996; and the Circuit Court of Jackson County, Honorable James W. Backstrom, Circuit Court Judge, presiding, sentenced Reddix to a term of four years in the custody of the Mississippi Department of Corrections on July 26, 1996. A motion for new trial was denied. Reddix assigns three errors on this appeal.

¶ 2. All three issues before this Court challenge the sufficiency of the instructions of law given in this case. First, Reddix complains the jury was not instructed as to the elements of the crime of aggravated assault. Reddix also complains the jury was not instructed as to the lesser included offense of simple assault. Finally, Reddix claims the jury was not instructed it was duty bound to acquit him if it believed he acted in self defense.

LEGAL ANALYSIS

1. WHETHER THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY REGARDING THE ELEMENTS OF THE CRIME OF AGGRAVATED ASSAULT?

¶ 3. The State admits there is merit to Reddix's first assignment of error and confesses the judgment of the circuit court should be reversed and this case remanded for a new trial. We agree and find it is "fundamental error" to fail to instruct the jury of the essential elements of a crime. See Screws v. United States, 325 U.S. 91, 107, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)

.

¶ 4. Because it is the State's duty to prove every element of the crime beyond a reasonable doubt, the State also has a duty to make sure the jury is properly instructed with regard to the essential elements of the crime. Hunter v. State, 684 So.2d 625, 635 (Miss.1996). "It is rudimentary that the jury must be instructed regarding the elements of the crime with which the defendant is charged." Hunter, 684 So.2d at 636. See Henderson v. State, 660 So.2d 220, 222 (Miss.1995)

; Neal v. State, 451 So.2d 743, 757 (Miss.),

cert. denied, 469 U.S. 1098, 105 S.Ct. 607, 83 L.Ed.2d 716 (1984).

¶ 5. The State offered jury instruction S-1 as its elements instruction and it was granted by the lower court. Jury instruction S-1 reads as follows:

The Court instructs the Jury that if you believe from the evidence in this case beyond a reasonable doubt that on or about August 23, 1994, in Jackson County, Mississippi, the defendant committed an aggravated assault in and upon the body of Kevin Bickham with a certain deadly weapon, to wit: a shotgun, without provocation, or without threat of great bodily harm to himself, then it will be your sworn duty to find the defendant guilty as charged.

If the State has failed to meet its burden of proof beyond a reasonable doubt then you shall find the defendant not guilty.

¶ 6. According to Miss Code Ann. § 97-3-7(2)(b) (Supp.1998), the elements of aggravated assault with a deadly weapon consist of (1) attempting to cause or purposely or knowingly causing bodily injury; (2) to another; (3) with a deadly weapon or other means likely to produce death or serious bodily harm.

¶ 7. Instruction S-1 fails to set out the essential elements of the crime of aggravated assault. Instruction S-1 does not instruct the jury that it must find Reddix attempted to cause or purposely or knowingly caused bodily injury to Bickham; it merely employs the language "committed an aggravated assault" but fails to define what constitutes an aggravated assault. And no other jury instruction given by the lower court sets out the elements of aggravated assault.

¶ 8. We conclude the jury was not instructed as to the essential elements of aggravated assault. Consequently, the jury had no way to determine whether the State had met its burden of proof. Therefore, we reverse the judgment of the circuit court and remand the case for a new trial.

II. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT DEFENDANT'S LESSER INCLUDED OFFENSE INSTRUCTION?

¶ 9. On appeal Reddix asserts two theories of defense. First Reddix claims he was justified in shooting Bickham because he acted in self defense. As an alternative theory of defense, Reddix claims he negligently shot the victim thereby constituting simple assault under Miss. Code Ann. § 97-3-7(1)(b)(Supp.1998). A criminal defendant has a right to assert alternative theories of defense, even inconsistent alternative theories. Love v. State, 441 So.2d 1353, 1356 (Miss.1983).

¶ 10. Reddix submitted two simple assault instructions. Instruction D-4 is an "acquit first" lesser-included-offense instruction. Instruction D-3 is a lesser-included-offense instruction that would allow the jury to consider simple assault as an alternative to aggravated assault. The lower court denied both instructions finding there was no evidentiary basis for a simple assault instruction.

¶ 11. Reddix argues even though he testified that he shot at Kevin Bickham in self defense, the jury was not required to believe the defendant's testimony. See Clemons v. State, 535 So.2d 1354, 1359 (Miss.1988)

(stating that once the evidence is presented to the jury, the jury may choose to believe some, none or all of the evidence presented at trial), vacated, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990). Reddix contends the State depended primarily upon the testimony of its two eyewitnesses and the arresting officer to prove Reddix shot Bickham intentionally. Reddix argues that like his own testimony, the jury was not required to believe the testimony of these witnesses. Reddix asserts the jury could have determined the State proved Reddix shot Bickham but failed to prove it was intentional. Reddix claims since the jury had the right not to believe Reddix intentionally shot Bickham, the jury should have been allowed to consider whether or not Reddix negligently shot Bickham.

¶ 12. The issue is whether there was an evidentiary basis for a simple assault instruction based on the facts of this case. The lower court determined there was no evidentiary basis for a simple assault instruction based upon the negligent injury of another with a deadly weapon. Reddix complains, however, that there is no indication in the record as to what definition of negligence the judge relied upon in making this determination.

¶ 13. Reddix states there is no definition of negligence as it relates to Miss.Code. Ann. § 97-3-7(1)(b) in the case law of this State. Consequently, Reddix asks this Court to consider the case law defining negligence in the context of a manslaughter charge and claims it is the only guidance available in defining negligence for simple assault. In making his argument. Reddix relies on the case of Mease v. State, 539 So.2d 1324 (Miss.1989), in which this Court found the act of pointing a loaded gun at another constitutes culpable negligence. Mease, 539 So.2d at 1334. Reddix claims that if the law as set in Mease applies then this cause should be reversed because there were facts in evidence that Reddix pointed a loaded gun at Bickham thereby constituting a basis for a simple assault instruction.

¶ 14. Reddix further claims that if Mease does not apply then negligence as it relates to a simple assault charge is undefined and the statute is unconstitutionally vague. Reddix contends that in the absence of a definition of negligence, the lower court's opinion that there was no evidentiary basis for a simple assault instruction was arbitrary. Reddix explains the judge could not have analyzed the evidence for the presence of facts supporting negligence and the defendant could not have argued there were facts constituting negligence without first considering the law defining negligence.

¶ 15. A lesser-included-offense instruction can be given only if there is an evidentiary basis for it, and such an instruction cannot be given on the basis of speculation. Collins v. State, 691 So.2d 918, 925-26 (Miss.1997). In the case sub judice, the record offers no evidentiary basis to suggest Reddix acted negligently when he shot Bickham. There was no testimony from any witness supporting a finding that Reddix acted negligently when he shot Bickham. In fact, Reddix testified that he deliberately shot Bickham in the legs because he did not wish to kill him. Therefore, the facts of this case are distinguishable from those in Mease where at least some evidence was offered to suggest the pistol may have discharged as a result of the defendant's reflexive action rather than his deliberate design.

¶ 16. The trial judge correctly ruled the testimony was that Reddix intentionally shot the victim and the only issue was whether Reddix or Bickham shot first. Here, the evidence could only...