State v. Shaw
| Decision Date | 09 October 2003 |
| Docket Number | NO. 2001-KA-01854-SCT.,2001-KA-01854-SCT. |
| Court | Mississippi Supreme Court |
| Parties | <I>STATE OF MISSISSIPPI</I> <I>v.</I> <I>TOMMY DEAN SHAW.</I> |
ATTORNEYS FOR APPELLANT: OFFICE OF THE DISTRICT ATTORNEY, BY: CHRISTOPHER LOUIS SCHMIDT, BY: CONO A. CARANNA.
ATTORNEYS FOR APPELLEE: TADD PARSONS, JACK PARSONS.
DISTRICT ATTORNEY: CONO A. CARANNA, II.
EN BANC.
¶1. 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 and asks this Court to overrule Harris. 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 uncharged offense of manslaughter. We reject the State's contextion and reaffirm our ruling in Harris.
¶2. 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 court 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.
¶3. 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 should be overruled.
¶4. 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)).
¶5. The State calls upon this Court to overrule Harris. The State argues that this Court's ruling in 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. The State argues that this Court's recent decision in Ostrander is in direct conflict with Harris. Additionally, the State argues that other jurisdictions have recognized the right of a trial judge to grant a limited directed verdict on a superior offense and submit to the jury an unindicted lesser offense. 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.
¶6. 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 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. 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 be 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.
¶7. 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 prejudice the defendant. This argument fails for a couple of reasons.
¶8. Under the Mississippi Constitution art. 3, §§ 26, 27, a defendant is entitled to notice through indictment of the charges for which he is being prosecuted. See Hailey v. State, 537 So.2d 411, 416 (Miss. 1988); Grayer v. State, 519 So.2d 438, 439 (Miss. 1988). Likewise, indictments must "fully notify the defendant of the nature of the cause of the accusation." URCCC 7.06. An indictment for "murder" does not notify a defendant of a possible "manslaughter" conviction, because manslaughter is not a lesser-included offense to murder.
¶9. 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.
(emphasis added). 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 (Rev. 2000) 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." (emphasis added). 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. A murder indictment indicating malice does not place a defendant on notice of possible lesser charges without malice. If that were the case, then a defendant could not argue in his defense of a murder indictment that he lacked the requisite malice because in doing so he may be setting himself up for a manslaughter charge for which he...
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