Stegall v. State, 98-KA-00684-COA.

• Decision Date: 22 August 2000
• Docket Number: No. 98-KA-00684-COA.,98-KA-00684-COA.
• Citation: 765 So.2d 606
• Parties: James Kelly STEGALL, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

765 So.2d 606

James Kelly STEGALL, Appellant, v. STATE of Mississippi, Appellee.

No. 98-KA-00684-COA.

Court of Appeals of Mississippi.

August 22, 2000.

Guy N. Rogers, Jr., Pearl, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Attorneys for Appellee.

BEFORE KING, P.J., PAYNE, AND THOMAS, JJ.

PAYNE, J., for the Court:

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶ 1. This case is on appeal and was orally argued before this Court based on the judgment of the Hinds County Circuit Court of conviction of one count of aggravated assault with a weapon and sentence of fifteen years in the custody of the Mississippi Department of Corrections, five years suspended, ten years to serve, followed by three years probation. His motion for new trial having been denied, Stegall perfected this appeal, raising the following issues for our consideration

WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW STEGALL'S COUNSEL TO CROSS-EXAMINE INVESTIGATOR MOULDER ABOUT THE CONTENTS OF POLICE REPORTS PREPARED BY MOULDER.

WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1 WHICH DID NOT INCLUDE THE PROPER STATUTORY LANGUAGE UNDER MISS. CODE ANN. § 97-3-7(2)(A).

WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTION D-14 WHICH INCLUDED THE PROPER STATUTORY LANGUAGE UNDER MISS. CODE ANN. § 97-3-7(2)(A).

WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-3 WHICH HAS BEEN HELD TO BE AN INCORRECT STATEMENT OF LAW IN MISSISSIPPI.

WHETHER THE VERDICT OF THE JURY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

After due consideration of the arguments in the parties' briefs and in oral arguments of this matter, we are unmoved by Stegall's assignments of error. Accordingly, we affirm the conviction and sentence in this matter.

FACTS

¶ 2. Late on February 25, 1996, and into the early morning hours of February 26, 1996, Stegall was involved in an argument with his girlfriend and mother of his child, Tanya Tubberville, and Tanya's sister, Sara Clark, at Sara's home. Sara called the Hinds County Sheriffs Office. As law enforcement arrived, an officer spotted Stegall's retreat to a wooded area behind Sara's home. Deputy Sheriffs Stacie Thomas and Tim Sanford went to the wooded area and heard movement. Deputy Thomas located Stegall in the thicket, identified himself, and ordered Stegall to come out of the wooded area. Stegall complied. On the way out of the woods, Stegall indicated that he had done nothing wrong and did not want to go to jail. He cursed the officers. Stegall charged Deputy Thomas and a struggle ensued. Stegall got his hands on Thomas's weapon and fired it, hitting Thomas in the leg.

¶ 3. Stegall was indicted pursuant to Miss.Code Ann. § 97-3-7(2) (Rev.1994). After a jury trial, Stegall was found guilty of the offense charged.

ANALYSIS AND DISCUSSION

WHETHER THE TRIAL COURT ERRED IN REFUSING TO ALLOW STEGALL'S COUNSEL TO CROSS-EXAMINE INVESTIGATOR MOULDER ABOUT THE CONTENTS OF POLICE REPORTS PREPARED BY MOULDER.

¶ 4. Stegall's first assigned error alleges that the trial court erred by not allowing cross-examination of Investigator Moulder about the contents of his police reports. We find this argument to be without merit. Moulder was a defense witness, and while police reports are admissible under the Mississippi Rules of Evidence's business records exception, the total contents of the report are not necessarily admissible. See Copeland v. City of Jackson, 548 So.2d 970 (Miss.1989); Bingham v. State, 723 So.2d 1189 (Miss.Ct.App. 1998). The purpose of questioning Moulder about these reports was to impeach the credibility of Deputies Thomas and Sanford. Both Thomas and Sanford took the stand, and Stegall had every opportunity for impeachment in that mode. Apparently, as a matter of trial strategy, Stegall chose not to use the reports to impeach the deputies. Given the great deference accorded trial judges in the admission and suppression of evidence, we find no basis for reversal in this regard.

WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-1 WHICH DID NOT INCLUDE THE PROPER STATUTORY LANGUAGE UNDER MISS. CODE ANN. § 97-3-7(2)(A).

WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT JURY INSTRUCTION D-14 WHICH INCLUDED THE PROPER STATUTORY LANGUAGE UNDER MISS. CODE ANN. § 97-3-7(2)(A).

¶ 5. Stegall next complains of Jury Instruction S-1, which provided as follows:

The Court instructs the jury that if you believe from evidence in this case, beyond a reasonable doubt, that the Defendant, James Kelly Stegall, on or about February 26, 1996, while acting recklessly and under circumstances manifesting extreme indifference to the value of human life, did cause serious bodily injury to Stacy Thomas, a human being, with a certain deadly weapon, to-wit: a handgun, by then and there shooting the said Stacy Thomas or causing the said Stacy Thomas to be shot, while, the said Stacy Thomas, a duly appointed and presently acting law enforcement officer, to-wit: a sworn officer of the Hinds County Sheriff's Department, was then and there engaged in the performance of and within the scope of said law enforcement officer's duties, then and in that event, James Kelly Stegall is guilty of aggravated assault and it is your sworn duty to so find.

Stegall argues that the instruction was incomplete. According to Stegall, the instruction in above is couched in the disjunctive (or) when it should be in the conjunctive (and). The statute under which Stegall was indicted reads as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injurypurposely, knowingly or recklesslyunder circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years. Provided, however, a person convicted of aggravated assault (a) upon a statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, superintendent, principal, teacher or other instructional personnel and school attendance officers or school bus driver while such statewide elected official, law enforcement officer, fireman, emergency medical personnel, public health personnel, superintendent, principal, teacher or other instructional personnel and school attendance officers or school bus driver is acting within the scope of his duty, office or employment, or (b) upon a legislator while the Legislature is in regular or extraordinary session shall be punished by a fine of not more than Five Thousand Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both. (emphasis supplied).

Miss.Code Ann. § 97-3-7(2) (Supp.1997). The statutory language appears to be written in the disjunctive, not the conjunctive. Thus, we find Jury Instruction S-1 was a correct statement of the law.

¶ 6. Stegall further complains that proposed Jury Instruction D-14, denied by the trial court, should have been granted. The instruction read as follows:

The Defendant, James Kelly Stegall, is charged with aggravated assault on Stacy Thomas. If you find from the evidence in this case beyond a reasonable doubt that on or about February 26, 1996, James Kelly Stegall did cause serious bodily injury to Stacy Thomas purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life, then you shall find the Defendant "Guilty." If the State has failed to prove each and every essential element of the crime charged beyond a reasonable doubt, then it is your sworn duty to find the Defendant "Not Guilty."

As the Attorney General suggests, the granting of the D-14 would have amounted to a constructive amendment of the indictment, as Stegall was indicted only under the reckless provision of the statute, which is prohibited by settled Mississippi precedent. Bell v. State, 725 So.2d 836 (¶ 58) (Miss.1998). Accordingly, this argument is without merit.

WHETHER THE TRIAL COURT ERRED IN GRANTING JURY INSTRUCTION S-3 WHICH HAS BEEN HELD TO BE AN INCORRECT STATEMENT OF LAW IN MISSISSIPPI.

¶ 7. Relying on Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963), Stegall maintains that Jury Instruction S-3 was reversible error. The instruction read as follows:

The Court instructs the Jury that a person is presumed to intend the natural and reasonable consequences of his own voluntary acts.

In Hydrick, the supreme court held that the following instruction was reversible error:

The court instructs the jury for the State that it is reasonable to infer that a person ordinarily intends the natural and probable consequences of his acts knowingly done; and the court instructs the jury further that, unless the contrary appears from the evidence, the jury may draw the inference that the defendant intended all the consequences which one standing in like circumstances and possessing like knowledge should reasonably have expected to result from his act knowingly done.

Hydrick, 246 Miss. at 451,150 So.2d at 424. Jury Instruction S-3 in the case sub judice is substantially similar to the forbidden Hydrick instruction. However, the Hydrick court limited the application of this rule to only those cases where a specific intent is required. Hydrick, 246 Miss. at 452,150 So.2d at 425.

¶ 8. This limitation noted, we next turn to whether specific intent is an element of aggravated assault. In short, it is not. "The essence of aggravated assault in today's context is that the accused has knowingly or recklessly attempted to cause serious bodily injury to another with a dangerous weapon. There is apparently no specific intent requirement." McGowan v. State, 541 So.2d...