Barnes v. State

763 So. 2d 216, 2000 WL 823422
CourtCourt of Appeals of Mississippi
DecidedJune 27, 2000
Docket1998-KA-01335-COA
StatusPublished
Cited by10 cases

This text of 763 So. 2d 216 (Barnes 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
Barnes v. State, 763 So. 2d 216, 2000 WL 823422 (Mich. Ct. App. 2000).

Opinion

763 So.2d 216 (2000)

Donald Eric BARNES, Appellant,
v.
STATE of Mississippi, Appellee.

No. 1998-KA-01335-COA.

Court of Appeals of Mississippi.

June 27, 2000.

*217 Mack A. Bethea, James L. Davis, III, Gulfport, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorneys for Appellee.

BEFORE SOUTHWICK, P.J., LEE AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. The Harrison County Circuit Court convicted Donald Eric Barnes of capital murder and sentenced him to life imprisonment. On appeal, Barnes alleges (1) the trial court erred in modifying his jury instruction on the defense theory of abandonment, (2) the trial court erred in granting the State's aiding and abetting instruction, (3) the trial court erred in overruling his objections to the introduction of his palm prints into evidence, (4) the trial court improperly sentenced him to life imprisonment without the possibility of parole rather than life imprisonment with eligibility for parole, and (5) the cumulative effect of the errors requires reversal. We reject Barnes's contentions and affirm.

*218 FACTS

¶ 2. At approximately 6:00 a.m. on October 19, 1994, Carol Ann Hill reported to work at the Broadwater Inn in Biloxi, Mississippi. As Hill pulled into the parking lot, she noticed a body lying on the ground and quickly realized that it was sixty-five year old Annette Hebert, who worked as a waitress in the hotel restaurant. Hebert had suffered massive head injuries and paramedics pronounced her dead at the scene.

¶ 3. Law enforcement authorities received information that Donald Eric Barnes was a possible suspect and compared a palm print obtained from Barnes following a prior arrest with a palm print recovered from the victim's eyeglasses. The Mississippi Crime Laboratory determined that the prints matched, and Barnes was arrested. Following his arrest, Barnes gave a statement in which he informed police that he, O.D. Smith, and Albert Gwin were at a nightclub in Moss Point on the night of the murder. He admitted that they needed money and decided to rob someone. According to Barnes, "[e]verything was slow around Pascagoula and Moss Point.... So we decided to come on drive to Biloxi." The group stopped at the Broadwater Inn and relieved themselves in the parking lot. The victim, Annette Hebert, arrived shortly thereafter and went inside the hotel. Because Hebert left her automobile's "park lights" on, the group surmised that she would be returning soon. When Hebert returned, Barnes grabbed her from behind; however, he claimed that when "she started screaming, I let her go and went and jumped back in the car." Barnes stated that Smith then began beating Hebert with a pipe.

¶ 4. Barnes was charged with capital murder. Following a trial held in the Harrison County Circuit Court on change of venue to Hancock County, the jury convicted Barnes of capital murder but was unable to agree on a sentence. The trial judge then sentenced Barnes to life imprisonment.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN MODIFYING BARNES'S ABANDONMENT INSTRUCTION.

¶ 5. Barnes claims that the trial court erred in modifying his proposed instruction on abandonment. Barnes's proposed instruction read as follows:

If you find from the evidence, beyond a reasonable doubt, that Donald Eric Barnes freely and voluntarily abandoned his intent to commit the crime of robbery after he had an intent to commit a particular crime and performed a direct ineffectual act toward its commission and that he failed to consummate its commission, then you should find the defendant not guilty.

As modified, Instruction DG-26A provided:

If you find from the evidence that DONALD ERIC BARNES freely and voluntarily abandoned his intent to commit the crime of robbery before the Defendant performed any overt act toward commission of that crime, and if you further believe that there was not an outside cause prompting abandonment, on the part of the victim or otherwise, then you shall find the defendant Not Guilty. (emphasis added).

Barnes specifically objected to the addition of the language "and if you further believe that there was not an outside cause prompting abandonment, on the part of the victim or otherwise...." Barnes contends that the additional language is not an element of abandonment.

¶ 6. The jury instruction, as modified, is a correct statement of the law.

Abandonment is a defense if the attempt to commit a crime is freely and voluntarily abandoned before the act is put in process of final execution, if there is no outside cause prompting the abandonment. *219 On the other hand, a voluntary abandonment of an attempt which has proceeded beyond mere preparation will not bar a conviction for the attempt.

Bucklew v. State, 206 So.2d 200, 204 (Miss. 1968). In Alexander v. State, 520 So.2d 127, 128 (Miss.1988), the defendant entered the victim's hospital room and attempted to rape her. He fled only after she was able to summon help by pressing the nurse's buzzer and speaking the word "help." Id. The defendant argued that he had voluntarily fled the room and thus had abandoned his attempt to rape the victim. Id. at 130. The supreme court found that,

[t]he victim's testimony shows that the appellant ceased his actions only after the victim managed to press the buzzer alerting the nurse.... [T]his Court stresses the fact that the evidence supports the conclusion that appellant's failure to rape the victim was due to her resistance and ability to sound the alarm, rather to any abandonment on appellant's part.

Id. When a jury instruction correctly states the law, and there is evidence to justify it, granting the instruction is not error. Weaver v. State, 497 So.2d 1089, 1095 (Miss.1986). We find no error.

¶ 7. Barnes also argues that because he abandoned the robbery before it escalated into murder, he should not be liable for capital murder. He contends that the instruction was improper because "it told the jury that it had to find that Barnes abandoned his intent to commit the robbery before any overt act toward commission of that crime before they could find him not guilty of capital murder." Barnes claims that the jury should have been allowed to acquit him if he abandoned the robbery prior to completion of the robbery and prior to the murder.

¶ 8. No assignment of error based on the giving of an instruction to the jury will be considered on appeal unless specific objection was made to the instruction in the trial court stating the particular ground or grounds for such objection. Watson v. State, 483 So.2d 1326, 1329 (Miss.1986). Further, on appeal, a party may not argue that an instruction was erroneous for a reason other than the reason assigned on objection to the instruction at trial. Young v. Robinson, 538 So.2d 781, 782 (Miss.1989). At trial, Barnes's ground for objection to the modification of Instruction D-26A was the addition of the language "and if you further believe that there was not an outside cause prompting the abandonment, on the part of the victim or otherwise...." He did not object to the instruction on the ground that it did not allow the jury to acquit him of capital murder if they found he abandoned the underlying felony, robbery, prior to its completion. Because Barnes objected to the instruction on a different ground from that now presented to this Court, review of any error is waived.

II.

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Bluebook (online)
763 So. 2d 216, 2000 WL 823422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-missctapp-2000.