Tran v. State, 92-KA-01058-SCT
| Decision Date | 22 August 1996 |
| Docket Number | No. 92-KA-01058-SCT,92-KA-01058-SCT |
| Citation | 681 So.2d 514 |
| Parties | Phuc Hoang TRAN v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
F. Holt Montgomery, Jr., Gulfport, for Appellant.
Michael C. Moore, Attorney General, DeWitt T. Allred, III, Sp. Asst. Attorney General, Jackson, for Appellee.
Before SULLIVAN, P.J., and BANKS and JAMES L. ROBERTS, Jr., JJ.
Phuc Hoang Tran (Tran) killed Chi Phuong Ho (Chi) with a shotgun in the parking lot of Anh Hong, a Vietnamese restaurant, in Biloxi Mississippi, on June 21, 1990.
On the afternoon of the shooting Tran and some friends had been picnicking. At around 6:00 p.m. the group decided to go to the Anh Hong restaurant. Chi and a group of friends also dined at the Anh Hong. During the evening Tran went to the restroom at the rear of the restaurant. Chi came into the restroom later and an argument followed. Tran remained in the restroom after Chi left. Tran left the restroom and Chi and three or four of his friends jumped on him and a fight ensued. Tran testified that Chi had a gun on his person. The police later arrived, breaking up the fight.
After the beating, Tran's friend, Xa Van Nguyen (Xa), drove him to an apartment where Tran washed up. Tran had suffered several cuts and a broken nose. According to Tran, he and Xa returned to the Anh Hong restaurant to return the two-door Oldsmobile they had borrowed. Xa was driving and Tran was in the passenger seat. Tran testified that upon entering the car, he noticed for the first time that the owner had left a shotgun lying on the floor of the back seat.
According to Tran, when he and Xa arrived at the Anh Hong Restaurant, Chi was outside. Tran testified that Chi said "one of you are going to die." Tran stated that when he saw Chi go for his gun, which was in his pants, he jumped into the back seat, grabbed the gun, pointed it out the window and fired it in the general vicinity of Chi. According to Tran, after he shot Chi, he and Xa left the premises as soon as they could, to avoid revenge from the friends of Chi.
One state witness, Violet Nguyen, testified that while inside the restaurant she viewed the car in which Tran and Xa were in when they arrived back at the Anh Hong. She testified that at first all she saw was Tran in the passenger seat, but later recognized Xa as the driver. She stated that she saw the barrel of the gun come out of the passenger side, but did not see the shooting itself.
Dr. Paul McGary's testimony, the forensic pathologist who performed the autopsy in this case, was stipulated to by the parties. His testimony was that Chi died as a result of a shotgun wound involving the face, neck, chest, shoulders, and upper abdomen with a total of one hundred forty-seven shot holes.
Xa, the driver of the car, was arrested in Louisiana in October of 1990, while driving the same two-door Oldsmobile. Tran was arrested in Hattiesburg around a year after the killing in 1991. Tran was indicted and tried along with Xa Van Nguyen in the Circuit Court of Harrison County, Mississippi, Second Judicial District, Honorable Jerry O. Terry presiding. The trial took place July 15, 16, and 17, 1992. On July 17, 1992, the jury returned a verdict finding both defendants guilty of the murder of Chi, and the lower court sentenced Tran on the same day to a term of life imprisonment.
Tran objects to the use of jury instruction S-1 for many reasons, the first being that the instruction relieved the prosecution of its burden of persuasion beyond a reasonable doubt of every essential element of a crime, secondly that the instruction was an incorrect definition of the element of deliberate design, third because of the facts of this case the instruction was incorrect because the defendant gave a full accounting of his actions, and lastly, the instruction was an abstract statement of the law and was not limited by the facts of the case. Instruction S-1, which Tran so vehemently objects to being given states:
Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime.
Deliberate design may be presumed from the unlawful and deliberate use of a deadly weapon.
At the outset we must note that counsel for Tran did not object to the first paragraph of the instruction. In fact counsel stated, "We feel that the top paragraph of S-1 is a correct statement of the law...." Thus, Tran's argument as to the first paragraph of this instruction is procedurally barred by his failure to object at trial. Mitchell v. State, 609 So.2d 416, 422 (Miss.1992); Rogers v. State, 599 So.2d 930, 937 (Miss.1992). Nevertheless, this Court will discuss this part of the instruction to help facilitate the lower court in the future.
Tran's argument against the first paragraph of this instruction is based upon his reading of cases involving the "at the moment" instruction citing Pittman v. State, 297 So.2d 888, 892-93 (Miss.1974) and Newell v. State, 308 So.2d 71 (Miss.1975).
Pittman and the cases following it, did not draw a distinction between the concepts of malice aforethought and deliberate design, these cases were concerned with instructions that require juries to convict defendants of murder upon the finding of the existence of "malice aforethought" or "deliberate design" at the very instant of the fatal act, without taking into account that a killing may be intentional and yet be manslaughter or excusable or justifiable homicide. Pittman, 297 So.2d at 893. In the case here, Instruction S-1 said nothing about formation of deliberate design "at the very instant" and clearly informed the jury "that there are instances in which a deliberate design to kill may exist ... and yet the homicide may be justifiable or excusable...." Id. There is no flaw in the instruction given as it does not state that deliberate design can be formed at the very moment of the fatal act, thereby avoiding the pitfall of Pittman and its progeny.
In Newell the erroneous instruction did not deal with an "at the very moment" instruction, but this Court's concern was that Tran also argues that the first paragraph of the instruction may be a correct statement of the law as to malice aforethought, but it simply does not do as a definition of the very different element of deliberate design. However, "[i]t has long been the case law of this state that malice aforethought, premeditated design, and deliberate design all mean the same thing." Windham v. State, 602 So.2d 798, 801 (Miss.1992) (quoting Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985)) (citing Dye v. State, 127 Miss. 492, 90 So. 180 (1921); Hawthorne v. State, 58 Miss. 778 (1881); McDaniel v. State, 16 Miss. (8 S. & M.) 401 (Miss.1847)). "Definitionally, we regard 'malice aforethought' and 'deliberate design' as synonymous." Blanks v. State, 542 So.2d 222, 227 (Miss.1989) (citing Fairman v. State, 513 So.2d 910, 913 (Miss.1987); Johnson v. State, 475 So.2d 1136, 1139 (Miss.1985); Lancaster v. State, 472 So.2d 363, 367 (Miss.1985)). Thus, Tran's arguments against the first paragraph of Instruction S-1 are meritless.
the instruction ignored the possibility that a killing can be deliberate or intentional and yet be other than murder. Newell, 308 So.2d at 73. This instruction does not cut off Tran's contention that the shooting was in self-defense
Tran also complains that the second paragraph of the instruction is erroneous. "Instructions in forms similar to the above have been before the Court for many years and a long line of cases have discussed such instructions." Carter v. State, 493 So.2d 327, 330 (Miss.1986) (citing Allison v. State, 274 So.2d 678 (Miss.1973); Blackwell v. State, 257 So.2d 855 (Miss.1972); Stewart v. State, 226 So.2d 911 (Miss.1969); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963); Funches v. State, 246 Miss. 214, 148 So.2d 710 (1963); Shields v. State, 244 Miss. 543, 144 So.2d 786 (1962); Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955); Tullos v. State, 222 Miss. 90, 75 So.2d 257 (1954); Smith v. State, 205 Miss. 283, 38 So.2d 725 (1949); Bridges v. State, 197 Miss. 527, 19 So.2d 738 (1944); Busby v. State, 177 Miss. 68, 170 So. 140 (1936); Batiste v. State, 165 Miss. 161, 147 So. 318 (1933); Winchester v. State, 163 Miss. 462, 142 So. 454 (1932); Smith v. State, 161 Miss. 430, 137 So. 96 (1931); Walker v. State, 146 Miss. 510, 112 So. 673 (1927); Cumberland v. State, 110 Miss. 521, 70 So. 695 (1915); Brandon v. State, 75 Miss. 904, 23 So. 517 (1898); Hansford v. State, 11 So. 106 (Miss.1891); Hawthorne v. State, 58 Miss. 778 (1881); Lamar v. State, 63 Miss. 265 (1885); McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847)).
"One hundred twenty-five years ago this Court condemned a similar instruction." Blackwell v. State, 257 So.2d 855, 856 (Miss.1972) (citing McDaniel v. State, 16 Miss. (8 S. & M.) 401 (1847)). "A review of the digest reveals more than twenty cases where similar instructions have been held erroneous." Blackwell, 257 So.2d at 856. This Court decided this case in 1972. Since then, this Court has consistently held such an instruction erroneous.
In a long line of cases, this Court has held that an instruction on an asserted presumption of malice from the use of a deadly weapon is proper only where the testimony has failed to establish the circumstances of the use of the weapon. Where the facts have been set forth in the evidence, as here on conflicting testimony, the question of malice should be left for the consideration of the jury, and the granting of such an instruction is error.
Stewart v. State, 226 So.2d 911, 912 (Miss.1969) (citing Chinn v. State, 210 So.2d 666 (Miss.1968); Hydrick v. State, 246 Miss. 448, 150 So.2d 423 (1963)).
This Court in Johnson v. State, 223 Miss. 167, 77 So.2d 824 (1955), considered an instruction essentially the same as that...
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