State v. Shaw

Citation880 So.2d 296
Decision Date12 August 2004
Docket NumberNo. 2001-KA-01854-SCT.,2001-KA-01854-SCT.
PartiesSTATE of Mississippi v. Tommy Dean SHAW.
CourtUnited States State Supreme Court of Mississippi

Christopher Louis Schmidt, Christian, Cono A. Caranna, Biloxi, Wayne Snuggs, Jackson, attorneys for appellant.

Tadd Parsons, Jack Parsons, Wiggins, attorneys for appellee.



EASLEY, Justice, for the Court.

¶ 1. The motion for rehearing is granted. The original opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. Relying on Harris v. State, 723 So.2d 546 (Miss.1997), the Circuit Court of Stone County granted a directed verdict for Tommy Dean Shaw on the indicted charge of murder and would not allow the jury to consider whether Shaw was guilty of the unindicted crime of manslaughter. The State of Mississippi appeals the entry of the directed verdict. The State argues that if the State fails to make out a prima facie case on the charge of murder, the trial judge should have the discretion to enter a "limited" directed verdict as to the murder charge and to submit the case to the jury on the unindicted offense of manslaughter.


¶ 3. Tommy Dean Shaw ("Shaw") was indicted by the Grand Jury of Stone County on November 22, 2000, for the crime of murder in violation of Miss.Code Ann. § 97-3-19(1)(a) (1972). Following a 2001 mistrial in Stone County, trial began in Stone County on November 5, 2001. After a three-day trial, the court granted a directed verdict of acquittal on the indicted charge of murder and would not allow the jury to consider whether Shaw was guilty of the unindicted crime of manslaughter. Relying on Harris v. State, 723 So.2d 546 (Miss.1997), the trial judge ruled that the State had failed to make a prima facie case on the indicted murder charge; therefore, the trial court determined that it was obligated to grant a directed verdict of acquittal on the charge of murder and not permitted to submit the case to the jury on manslaughter, a lesser unindicted offense.

¶ 4. Pursuant to Miss.Code Ann. § 99-35-103(b) (Rev.2000),1 which provides in relevant part that:

The state or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases:
. . . .
(b) From a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented.

The State seeks redress only as to a pure question of law and not for the purpose of further prosecution of Shaw. The State does not contest the trial judge's rulings as to the "facts" but only contends that this Court's ruling in Harris is distinguishable from the facts in the case at hand.


¶ 5. Since the issue presented is a question of law, we conduct de novo review. Ostrander v. State, 803 So.2d 1172, 1174 (Miss.2002) (citing Dep't of Human Servs. v. Gaddis, 730 So.2d 1116, 1117 (Miss.1998)).

¶ 6. The State argues that the trial court's ruling relying on Harris is contrary to the modern trend of allowing trial courts to submit a lesser charge to the jury without the necessity of a separate count in the indictment, if the court directs a verdict on the charge in the indictment. The State argues that a defendant under indictment for murder is sufficiently on notice that the subsequent submission of the charge of manslaughter, for which the defendant is not under indictment, does not cause prejudice. Further, the State argues that submitting to the jury a lesser unindicted crime is not contrary to the well-established precedent of allowing trial judges to submit uncharged lesser-included offenses to the jury upon a limited directed verdict acquitting the defendant of the superior offense.

¶ 7. The State alleges that manslaughter is a lesser-included offense to murder; and therefore, under current precedent, it should have been permitted to proceed. The State claims the present facts are very different from those in Harris; therefore, Harris should not be controlling. Finally, the State argues that since this Court has authority to find a defendant guilty of lesser-included offenses, the trial court should be able to give instructions on lesser offenses. ¶ 8. In Harris, the defendant was indicted on three charges of deliberate design murder under Miss.Code Ann. § 97-3-19 (1972) after a shootout on Mill Street in Jackson, Mississippi. 723 So.2d at 547. Harris and two other defendants had fired weapons into a Jeep Cherokee killing Doris, Harold, and Hosea Williamson. Id. Harris fired shots from a .357 magnum handgun, while one of the other defendants used an AK-47 assault rifle. Id. At trial, an expert for the State testified that the three victims were killed by a high velocity weapon not a .357 magnum. Id. At the close of the State's case, Harris moved for directed verdict based on a lack of evidence that he had caused the deaths of the three victims. Id.

¶ 9. The trial judge granted a directed verdict, but allowed the State to proceed on three counts of the lesser offense of aggravated assault, charges for which Harris was never indicted. Id. The trial judge reasoned that an aggravated assault charge is a lesser-included offense of the deliberate design murder charge. Id. The jury convicted Harris of three counts of aggravated assault. Id. Harris appealed claiming that the "after the trial court granted him a directed verdict of acquittal on deliberate design murder, the State should not have been allowed to proceed on the theory that aggravated assault was a lesser-included offense of deliberate design murder." Id. We held that:

A trial court determination of insufficiency leading to a directed verdict of acquittal on the charge of the indictment summarily concludes the State's case on the charge. If the State has made no other charges within the indictment, then the State is precluded from trying the defendant on a lesser offense .... a directed verdict on an indictment for murder is a bar to trying the defendant on aggravated assault, since he had not been indicted for the offense of aggravated assault.

Id. at 547-48. We further held that "[w]hen a trial court grants a defendant's motion for directed verdict, the trial court should not thereafter be permitted to alter or modify its apparently unqualified acquittal by permitting the State, through amendment of the accusatory pleading to charge necessarily included lesser offenses." Id. at 548. We relied on URCCC 7.06 which states that "[t]he indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." We found that Harris was entitled to a grand jury indictment on aggravated assault. Id. We stated that "[t]he State cannot be allowed to charge only the highest offense and then test the evidence as it goes along until the burden for some lesser offense is met." Id. at 549.

¶ 10. Shaw was indicted for murder under Miss.Code Ann. § 97-3-19(1)(a) which states:

(1) The killing of a human being without the authority by law by any means or in any manner shall be murder in the following cases:
(a) When done with deliberate design to effect the death of the person killed, or of any human being.

The State now asserts that the trial judge should have been authorized to issue a "limited" directed verdict as to the murder charge and allow the State to proceed on the lesser unindicted offense of manslaughter under Miss.Code Ann. § 97-3-35 which provides that "[t]he killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner; or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter." Murder requires "deliberate design" which implies some form of malice. Miss.Code Ann. § 97-3-19. On the other hand, manslaughter requires "without malice, in the heat of passion, but in a cruel or unusual manner; or by the use of a dangerous weapon" which specifically excludes malice. Miss.Code Ann. § 97-3-35.

¶ 11. The State argues that since this Court has held that notice of a superior charge also includes notice of lesser-included offenses, it should also find notice of a superior charge includes notice of lesser offenses. See Payton v. State, 642 So.2d 1328 (Miss.1994)

; Porter v. State, 616 So.2d 899 (Miss.1993); Harveston v. State, 493 So.2d 365 (Miss.1986).

¶ 12. Additionally, the State argues that since under Miss.Code. Ann. § 99-19-5, a jury can return a verdict on a lesser-included offense, it should also be able to consider a lesser offense. Section 99-19-5 provides that "[o]n an indictment for any offense the jury may find the defendant guilty of the offense as charged, or of any attempt to commit the same offense, or may find him guilty 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, whether the same be a felony or misdemeanor, without any additional count in the indictment for that purpose."

¶ 13. There is a distinction between the lesser-included offense and lesser offenses. We have repeatedly allowed notice of a superior charge to stand for notice for an unindicted lesser-included offenses, but we have also refused to allow notice of a superior offense to suffice for a lesser offense for which the defendant was not indicted. In Hailey, we held that an indictment for forcible rape could not be submitted to the jury with an instruction for child fondling as it is not a lesser-included offense. 537 So.2d at 412. We found that "the indictment [for forcible rape] did not sufficiently inform Hailey that he...

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