Avera v. State

761 So. 2d 900, 2000 WL 291623
CourtCourt of Appeals of Mississippi
DecidedMarch 21, 2000
Docket1998-KA-01662-COA
StatusPublished
Cited by6 cases

This text of 761 So. 2d 900 (Avera v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avera v. State, 761 So. 2d 900, 2000 WL 291623 (Mich. Ct. App. 2000).

Opinion

761 So.2d 900 (2000)

Jimmy Lee AVERA, Appellant.
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01662-COA.

Court of Appeals of Mississippi.

March 21, 2000.
Rehearing Denied June 6, 2000.

*901 James L. Davis, III, Gulfport, Attorney for Appellant.

Office of the Attorney General by Dewitt T. Allred, III, Attorneys for Appellee.

BEFORE McMILLIN, C.J., BRIDGES, AND THOMAS, JJ.

BRIDGES, J., for the Court:

¶ 1. Jimmy Lee Avera was convicted of murder by a jury in the First Judicial District of Harrison County Circuit Court. Avera was sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections. Aggrieved by his conviction, Avera appeals to this Court raising the following six issues which he contends require his conviction to be reversed

I. THE COURT ERRED IN NOT GRANTING A LESSER INCLUDED MAN-SLAUGHTER INSTRUCTION AS REQUESTED BY THE DEFENDANT AT THE TRIAL (SEE JURY INSTRUCTIONS D-2 THROUGH D-6). THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GRANTING OF A MANSLAUGHTER INSTRUCTION.
II. THE COURT ERRED IN GIVING S-2, THE STATE'S INSTRUCTION ON THE INSANITY DEFENSE. THE INSTRUCTION WAS CONFUSING TO THE JURY AND IMPROPERLY SHIFTED THE BURDEN OF PROOF AS IT EXISTED AT THE TIME THE CASE WENT TO THE JURY.
III. THE COURT ERRED IN GRANTING STATE'S INSTRUCTION S-4 ON "DELIBERATE DESIGN". THE INSTRUCTION IS AN INCORRECT STATEMENT OF THE LAW.
IV. THE COURT ERRED IN NOT ALLOWING ADDITIONAL PEREMPTORY CHALLENGES, AND/OR NOT ALLOWING THE DEFENDANT'S STRIKE FOR CAUSE OF JURORS ALEXANDER AND GOODWIN.
V. THE VERDICT IS CONTRARY TO THE LAW AND EVIDENCE.
VI. THE ERRORS COMMITTED AT TRIAL, IF NOT INDIVIDUALLY, CUMULATIVELY REQUIRE REVERSAL.

¶ 2. After reviewing the record, we conclude that the issues raised by Avera are without merit. Accordingly, the judgment of the circuit court is affirmed.

FACTS

¶ 3. In 1991, Jimmy Lee Avera met Tabitha Sparks. The couple immediately fell in love and became engaged to be married. Several months later, the couple moved into a house that belonged to Avera's parents. Shortly thereafter, the relationship began to deteriorate, and Sparks moved out of the house that she was sharing with Avera. Avera testified that because of these events, he became severely depressed and stopped participating in all the daily activities that he once enjoyed.

¶ 4. On April 28, 1992, Sparks was working at the Majik Market, and Avera stopped by to talk with her. Sparks told *902 him to leave and said that they would talk later. Avera left and drove around in his Camaro, and around 11:30 P.M., he stopped at Sparks's trailer to finish their conversation. The conversation turned into an argument, and Avera testified that he went to his car and got a gun so that he could scare Sparks. The couple began to argue again this time waking Sparks's son. Avera testified that he asked to hold the boy who had been like a son to him, and he laid down the gun in order to hold the child. When Avera laid down the gun, Sparks picked it up. Avera then began to wrestle her for the gun finally taking it from her. Sparks ran out the door, and Avera started chasing her.

¶ 5. Avera testified that at this point all he remembers is that he wanted to catch Sparks and that he was angry and furious at the situation. Avera's testimony stated that he heard a ringing sound then blanked out, and when things cleared up, he saw Sparks lying on the ground. Various neighbors from the trailer park testified that they heard a commotion and saw Avera repeatedly firing at Sparks. The neighbors testified that Sparks was running away from Avera screaming for help and asking to be let in a trailer when Avera began shooting at her. After the shooting, Avera left in his Camaro, had a flat tire, abandoned the car, and then hitchhiked to Baton Rouge, Louisiana. When he arrived in Baton Rouge, Avera called his sister and then the police, and he told the police that he had shot his girlfriend in Gulfport the night before. Avera did not deny firing the fatal shot; rather, his defense was that he was temporarily insane when he shot Sparks.

PROCEEDINGS BELOW

¶ 6. In August 1992, Avera was indicted in the Circuit Court of the First Judicial District of Harrison County for the murder of Sparks. In January 1994, he was found guilty of murder by a jury and was sentenced to life imprisonment. Avera appealed, and this Court found that the jury was not properly instructed as to how to resolve the insanity defense issue. Accordingly, we reversed and remanded the cause for a new trial. In August 1998, the case was tried before another jury. Avera was again found guilty of murder and sentenced to life imprisonment. Aggrieved with the circuit court proceedings, Avera has now perfected this appeal.

ARGUMENT AND DISCUSSION OF LAW

I. THE COURT ERRED IN NOT GRANTING A LESSER INCLUDED MANSLAUGHTER INSTRUCTION AS REQUESTED BY THE DEFENDANT AT THE TRIAL (SEE JURY INSTRUCTIONS D-2 THROUGH D-6). THERE WAS SUFFICIENT EVIDENCE TO SUPPORT THE GRANTING OF A MANSLAUGHTER INSTRUCTION.

¶ 7. Avera argues on appeal that he presented evidence that he had no deliberate design to affect the death of Sparks. Avera alleges that he was severely depressed, and when he and Sparks argued, he became furious which made him unable to know what he was doing at the time of the shooting. According to Avera, that was sufficient evidence for the trial court to grant a lesser-included-offense instruction on manslaughter. We find this argument to be totally lacking in merit.

¶ 8. Manslaughter is defined as "[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." Miss.Code Ann. § 97-3-35 (Rev.1994). This Mississippi Supreme Court has defined heat of passion as:

[A] state of violent and uncontrollable rage engendered by a blow or certain other provocation given, which will reduce a homicide from the grade of murder to that of manslaughter. Passion or anger suddenly aroused at the time by *903 some immediate and reasonable provocation, by words or acts of one at the time. The term includes an emotional state of mind characterized by anger, rage, hatred, furious resentment or terror.

Tait v. State, 669 So.2d 85, 89 (Miss.1996) (quoting Buchanan v. State, 567 So.2d 194, 197 (Miss. 1990)).

¶ 9. The Mississippi Supreme Court has also held that "[a] lesser-included-offense instruction is proper only if the record supports finding an evidentiary basis for the instruction." Ormond v. State, 599 So.2d 951, 960 (Miss.1992) (citing Mease v. State, 539 So.2d 1324, 1330 (Miss.1989)) (other citations omitted). The standard used to determine whether a lesser-included-offense instruction should be granted is as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
761 So. 2d 900, 2000 WL 291623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avera-v-state-missctapp-2000.